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Lecture European law Week 5
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Notes from the lecture for the course European law, week 5
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Overview TFEU and TEU
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Institutional and Substantive Law of the EU: Part 2
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Lecture Week 5The Area of Freedom, Security and Justi ce
The origins of the Area of Freedom, Security and Justice
The member states have decided that they will share certain competences with the EU to
make sure that within the EU the citizens can move freely and safely. They will have the right
to have justice everywhere. From the beginning of the EU citizens of the member states were
allowed to move freely, but they still had to show their passports when crossing the border.
This was not very convenient, regarding time and money.
Schengen: Europe without border controls
Certain member states, Luxemburg, Belgium, the Netherlands, France and Germany, decided
in 1985 to set up an abolition of border controls in one agreement -> the Schengen
agreement of 1985. If you abolish the border controls, you may allow criminals, asylum
seekers etc. to cross the border. Therefore, you need to agree on rules on how to fight crimes
together, asylum etc. There was a need for more substantive rules between the 5 states. This
happened in the second convention, the Convention on the Implementation of the Schengen
Agreement (CISA) in 1990. The abolishment of the borders between Schengen States called
for concrete compensatory measures addressing issues concerning:
- Asylum and immigration
- External border controls
- Criminal activities.
The regulation of these issues was outside of the European Community. The Schengen states
did not want interference of the European Commission, Parliament etc. It was a very
successful agreement, so therefore the other member states of the EU, except the UK and
Ireland, decided to join the Schengen agreement.
It took some time to incorporate the Schengen rules in the rules of the European Union.
From a very informal agreement, it became more formalized, also with help of the European
Commission and Parliament. By this, more and more policies were incorporated.
Incorporating the Schengen Agreement and CISA within the EU law means that it now falls
under the provisions of the Treaty. There is one objective, which is to secure the EU as an
area of freedom, security and justice. It is organized in the Treaty, in part III title V. Member
states have given powers and competences to the EU.
, The AFSJ is an objective of the EU
- Art. 3(2) TEU: “The Union shall offer its citizens an area of freedom, security and
justice without internal frontiers, in which the free movement of persons is ensured
in conjunction with appropriate measures with respect to external border controls,
asylum, immigration and the prevention and combating of crime”
- New step towards a political Union
o The member states have decided to go a bit further than the internal market
functions. They are going to deal with the fields of the law which are very
sensitive to the sovereignty. This may be linked to what certain member states
think has gone too far.
Sub-objectives of the AFSJ (art. 67 TFEU)
- Respect for fundamental rights and the different legal systems
o All the rights must comply with the fundamental rights. It must not interfere
with the legal systems of the states. It is a question of balance.
- Freedom
o You regulate the free movement of persons. The concept of solidarity
between the member states is part of this.
- Security
o Coordination and cooperation. Providing security to the citizens of the EU. It
will not be about making all the laws in the EU uniform, it will be about giving
some powers to the EU to harmonize the law between the states.
- Justice
o The concept of justice has not been decided to have unformal procedural
rules, instead of the principle of mutual recognition.
The AFSJ is based on mutual trust
- The creation of an AFSJ was possible because of mutual trust between member
states.
o Certain main values and principles are valued. What these values and
principles are is very vague.
- Mutual trust exists because:
o All EU member states are party to the European Convention on Human Rights
This is not a EU convention, it is issued by the Council of Europe, which
is not an EU institution.
o All EU member states are bound by EU law (thus the Charter of Fundamental
Rights, Primacy, etc.)
o All member states are equal
Powers conferred (Title V Chapter 2 to 5 TFEU)
- Realize the objectives by transfer of powers/competences. There are 4 types of
powers that have been transferred from the states to the EU:
o Border checks, asylum and immigration
o Judicial cooperation in civil matters
o Judicial cooperation in criminal matters
o Police cooperation
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