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Panel 417: Legal and political integration in the Area of Freedom, Security and Justice
Time:
Tuesday, 05/Sept/2023:
9:30am - 11:00am
Session Chair: Paul James Cardwell, King's College London
Location:PFC/03/006A
Presentations
Legal and political integration in the Area of Freedom, Security and Justice
Chair(s): Paul James Cardwell (Kings College London)
The Lisbon Treaty (2009) abolished the European Union’s (EU) former pillar structure. The previously intergovernmental Area of Freedom, Security and Justice (AFSJ) has since witnessed significant institutional, legal and political developments. These reveal an important paradox: despite high sovereignty and national identity costs for the Member States, integration in the AFSJ has steadily continued towards supranationalism, embracing new substantive areas, actors and governance methods. Leading theories of EU integration have been unable to explain how supranational EU institutions and agencies have succeeded in pursuing comprehensive integration in this area. The different papers in this panel seeks to explore this paradox and analyse the extent to which the increased powers of the EU and the stronger influence of the EU institutions have transformed the EU’s Area of Freedom, Security and Justice (AFSJ) from a Member State-managed policy area to a supranational and ‘integrated’ regime. The papers also seek to analyse how legal rules and principles shape supranational policy and decision making in the AFSJ.The papers thus examine discrete developments of the AFSJ with a particular focus on its institutional and policy-making dimensions to analyse the general evolution of the AFSJ on the intergovernmental-supranational spectrum.
Presentations of the Symposium
Exit, Voice and Consensus—a Legal and Political Analysis of the Emergency Brake in EU Criminal Policy
Jacob Öberg University of Southern Denmark
This paper presents a political and legal analysis of the emergency brake in criminal law in Articles 82(3) and 83(3) TFEU. It suggests that the emergency brake offers a powerful discretionary prerogative for Member States seeking to protect the integrity of their criminal justice systems. This strong legal shield for Member States in the form of a “quasi-veto” is contrasted with a tendency to decision-making under
the “shadow of the vote”, cautiously moving towards supranationalism. On the basis of general theories of Council decision-making and a comprehensive review of EU criminal law legislation adopted to date, the paper argues that majority rule rather than general agreement appears to be the current driving force behind decision-making in EU criminal policy.
The Development of Europol’s External Relations: Towards Supranationalism?
Sarah Leonard, Christian Kaunert Dublin City University, Ireland & University of South Wales, United Kingdom
This article examines the extent to which, if any, the development of Europol’s external relations over time has contributed to the integration of EU policing and criminal justice. More precisely, with reference to the academic debates on ‘intergovernmentalism’ and ‘supranationalism’, it examines the extent to and the ways in which the growth in Europol’s external relations has indicated a move away from intergovernmentalism towards more supranationalism in the EU’s policing and criminal justice cooperation. It does so by systematically examining the development of Europol’s external relations over time using a continuum ranging from ‘intergovernmentalism’ to ‘supranationalism’ as ideal-types, whilst arguing for not reducing supranationalism to the ‘Community method’. The article shows that the balance between intergovernmental and supranational features in the governance of Europol’s external relations has changed over time as the latter have been gradually reinforced. Starting from a position close to the intergovernmental pole of the continuum, Europol has moved significantly towards the supranational pole, especially after the Europol Regulation began to apply in 2017.
Sharing Economy for Tackling Crypto-laundering: Europol Associated ‘Global Conference on Criminal Finances and Cryptocurrencies’
Ethem Ilbiz1, Christian Kaunert2 1University of South Wales, 2Dublin City University, Ireland & University of South Wales, United Kingdom
This paper examines the compatibility of Global Conference on Criminal Finances and Cryptocurrencies with sharing economy principles. The analysis is based on the claims presented in Europol documents and public statements of Europol executives that this initiative serves as platform for knowledge exchange and building of professional networks between public and private actors to tackle crypto-laundering. The article investigates validity of these statements with most prominent sharing economy variables; technology-driven accessibility, transaction cost and trust-building. The article employs each sharing economy variable on two beneficiaries of the platform: law enforcement agencies (LEAs) and non-governmental organisation while scaling the sharing economy level of the platform. The empirical analysis is based on Europol documents, in-depth of analysis of sharing economy and crypto-laundering literature and participation observation of 5th Global Cryptocurrency Conference held online.
The Area of Freedom, Security and Justice in Times of Crisis: Rethinking the EU’s Safe Space?
Nathan Cambien
University of Antwerp, Belgium
The Area of Freedom, Security and Justice (“AFSJ”) is one of the EU’s central pillars. In accordance with the EU Treaties, it is intended to be a “safe space” within which citizens can move freely while enjoying a high level of protection against crime.
Recent times have seen increased insecurity in areas bordering the AFSJ, making for a sharp contrast between the situation inside and outside the AFSJ. These developments have prompted the EU and its Member States to dramatically change the criteria for accessing the AFSJ, notably so as regards the application of the Schengen Borders Code, the rules on external border controls, the criteria for treating asylum applications in particular from neighboring countries and, even, the rules on access to EU citizenship. These fundamental changes appear to have been introduced, however, in a haphazard and uncoordinated way, resulting in legal uncertainty, political discord and tensions with third countries.
Against this background, this paper starts from the observation that the current times of crisis call for a more fundamental reflection on the criteria governing access to the AFSJ and the procedures for adopting them. It critically examines a number of the recent changes and proposes an alternative analytical framework for developing a coherent set of rules on accessing the AFSJ that take into account both the interests of the EU and its Member States as well as those of third countries and their citizens.
The European Intelligence Academy and the Challenge of Security Deficits: What Role for Intelligence Education and Outreach?
Artur Gruszczak
Jagiellonian University, Poland
Intelligence cooperation for European security has been an essentially contested endeavour. The European Union and its Member States have been striving for many years to develop cooperation in the intelligence field and increase the effectiveness of intelligence activities. Their aims are related to the collection and processing of data and information in order to support decision-making processes at national and supranational levels in regard to the identification of sources of risk, prevention of threats and reduction of security deficits. The launching of the Intelligence College in Europe (ICE) in 2019 on the initiative of France gave rise to expectations of its relevant contribution to the building of a common intelligence culture in Europe. Therefore, a series of questions must be posed: Why did the initiative of a European intelligence academy emerge in the late 2010s? Why was France behind this initiative? What value does it add to European security cooperation? Why have the practical results been modest thus far?
The argument developed here holds that the Intelligence College in Europe is an example of unsuccessful effort to promote sensitive national projects at the international level in accordance with the mechanism of horizontal isomorphism. The logic of international cooperation in an area concerning specific and sensitive matters, such as those of intelligence education and awareness building, substantiates the shift to the intergovernmental pattern of horizontal isomorphism. An auxiliary argument suggests that the strength of national assets and capabilities, especially in the security field, which foster vertical isomorphism as an organisational framework, is reduced at the international level if it is unaccompanied by adequate bottom-up incentives.
Data for the present paper was acquired using a combination of desk research, personal interviews with senior officials from ICE and the EU and national intelligence authorities, as well as some intelligence experts and scholars who agreed to a direct or online talk. In addition, a survey containing six open-ended questions was conducted among scholars with considerable expertise in intelligence education and international (European) intelligence cooperation.
