Introduction to European JHA integration
JHA policy areas
= asylum, migration, border-crossing Judicial cooperation in civil matters
Criminal law/policy
- Substantive criminal law = materieel strafrecht
- Criminal procedural law = formeel strafrecht
International co-operation in criminal matters
- Judicial co-operation
- Police and customs (law enforcement) co-operation
Principal JHA cooperation levels
levels
• Council of Europe (hereafter: CoE) (limited unless for EIJHAS course)
• European Union (EU)
• Schengen (including Prüm)
• Benelux, NATO, OSCE, G7/G20, OECD, UN (EIJHAS course only)
• handbook: origin and historical development, institutional structure and functioning, policy, (selective
bibliography)
transversal European JHA integration overview
• during 5 joint classes
• transversal, i.e. cross-level character
• rationale: institutional and policy dynamics are interwoven
• not (entirely) following handbook/paragraph order
Schengen & European Union
Introduction
1. Council of Europe
1.1 Development & mandate
Post-war climate
- Churchill 1946: called for the creation of the Council of Europe
o Rise in movements and assocations
‘International Committee of the Movements for European Unity’
- Congress The Hague 1948 (Congress of Europe)
o Economic and political union
Safety, economic independence and social progress
Founding of a consulting assembly chosen by national parlements
European charter for human rights
Establishment of a court which enforces the charter
,1.2 Council of Europe (1949): judicial cooperation
Intergovermental cooperation (some supranational elements can be identified)
- Only Comittee of Ministers makes decisions
- Statute of Council of Europe
o Initiallly 10 member states
o Today: 46 countries (members and candidates)
Also observers: in the Committe of Ministers (bv. Japan) & Parliamentary Assembly
(bv. Canada)
- Legal instruments
o Conventions, resolutions, recommendation
o Conventions: seemingly strong, still weakness
None of the member states give up national sovereignty
No decisions made by majority and imposed on dissenting members
o Some conventions open to non-members
1950: ECHR
- European instrument for the protection of human rights
o EctHR (European court of human rights)
- European Social charter = social counterpart tot the ECHR
Broad mandate, including penal matters
- Judicial co-operation in criminal matters (mother conventions)
o Some conventions are mixed: substantial, procedural,..
- Judicial co-operation in criminal matters & criminal policy (including aspects of substantive criminal
law and criminal procedural law) with regard to specific topics and/or particular offences
o Computer-related crime & criminal procedural law connected with it, corruption, crimes
against humanity/war crimes, cultural property, data protection, DNA, drugs, environmental
crime, firearms,...
Democratic values at the heart of the institution
- Only states with previous democratic political process are welcome
- Council became ‘watchdog’ for human rights and democracy
o 2022: Russia announced withdrawal from the organisation
Avoid that comittee of ministers would formally vote on the expulsion of Russia
2. EC/EU
2.1 Institutional framework
Combination of cooperation mechanisms, both intergovermental and supranational
- Inter = between governements, governemental representatives, unanimity voting
- Supra = majority vote, no need acceptance of all participating states
2.2 Phase 1: European communities and european political cooperation
Supranational European Communities = reaction against weak intergovernemental council of europe
- European Coal and Steel community (1951)
o Two war industries: give up control to independent, supranational body ‘High Authority’
Decisions binding for all member states + for coal and steel industry itself
o Permanent peace between states western europe + strengthen power againt SU
- European Atomic Energy Community (1957)
, o Common policy & market
- European Economic Community (1957) (TEC)
o Deal between France & Germany
o General common economic market – Spaak report
o 1984: European Single Act (internal market by 1992)
Area without internal border: free movement of goods, capital, services, persons
focus on economic and monetary integration
No competence as regards criminal law
However: competence to combat fraud against the EC budget on an
administrative level
European Political co-operation
- Between member states, outside the formal framework of the european communities
- Zie verder
Treaty on European Union (TEU) (Maastricht Treaty, february 1992)
Amsterdam Treaty (October 1997) changes TEC and TEU, integrates Schengen acquis
Nice Treaty (February 2001)
European Constitution (2004)
Lisbon/Reform Treaty (2007) (from TEU/TEC to TEU/TFEU)
Schengen
1. Origin and Historical development
1.1 Context
Free momevent of EC citizens required EC citizenship to be documented at the border
- Lorry drivers remained confronted with long waiting lines at French-German border
- Bilateral agreement to abolish controls on persons at their border
o FR-DE Saarbrucken agreement 1984
1985 initial agreement (Benelux, Fra, Dui)
- Gradual abolition checks at the internal border
o = beyond free movement of persons as an EC notion
1.2 Aims
1.2.1 Lifting internal border controls for persons
1990: Schengen implementation convention (SIC)
- Creation external border
o Intra-schengen movement
No border controls for persons
o External border movement
Controls reinforced
1.2.2 Flanking measures
To support the policy regulating the entry of persons into Schengen area
a) Carrier liability
- Anyone bringing third-country nationals into Schengen is liable for repatriation costs
b) Obligation to register for providers of accommodation
c) Handling asylum applications & Eurodac
- Single member state: first entry
, o For processing asylum requests
o Other states can return asylum seeker to state of first entry
- Advance link with Dublin system
o Dublin Convention on Asylum Seekers 1990 by EC member states in context of EPC
o Later: link with Eurodac
EU-wide database with fingerprint of asylum applicants
Avoid asylum fraud under a fake identity
2016: widen scope of Eurodac to database in which states also store and
check fingerprint data of third-country nationals who are not applicants for
international protection and have irregularly crossed external border
Maintain security and use info for return purposes
d) Schengen visa & VIS
- Common understanding needed
o Common criteria based on which non-Schengen nationals would be allowed/refused
entry (common norms for issuing of Schengen visas)
o Uniform visa criteria for foreigners (people who remain in Schengen for < 3 months)
- Visa Information System (VIS) (since 2021 also for long term visa)
o Facilitate information exchange
o In 2008 law enforcement authorities and Europol also acces for prevention,
detection and investigation of terrorist offences and other serious crime
e) Operational police and judicial cooperation
- Cross border observation and pursuit
- Provisions regarding use of firearms and ammunition
- December 2021: proposed EU Police Cooperation Code
o 2022 recommendation for operation police cooperation (hot pursuit and
surveillance)
f) Information exchange via SIS
- National part of SIS (NSIS): monitor external border
- Central computer (CSIS): synchronizes various national parts
- Second-generation SIS
o Answer technical problems
o Include biometric data (bv. fingerprints, photographs)
- SIRENE bureaus
o Additional bilateral exchange that can be required to validate alerts
- SIC incorporated corpus of data protection rules
o Based on rules of Council of Europe (1981)
g) Smart borders, EES & ETIAS (2016)
- Regulation for establishment of entry/exit system (EES)
o Replace current system of manual stamping of passports (for short stay) + record
refusals of entry
o Reinforce internal security and fight against terrorism
provide acces for authorities and Europol to a record of travel histories
- Regulation to establish a European Travel Information and Authorisation System (ETIAS)
o Strenghten security of travel under visa-free agreements to Schengen area
Fill information gap on non-EU citizens who can travel visa-free to Europe
1.2.3 Limiting free movement in Schengen area?
JHA policy areas
= asylum, migration, border-crossing Judicial cooperation in civil matters
Criminal law/policy
- Substantive criminal law = materieel strafrecht
- Criminal procedural law = formeel strafrecht
International co-operation in criminal matters
- Judicial co-operation
- Police and customs (law enforcement) co-operation
Principal JHA cooperation levels
levels
• Council of Europe (hereafter: CoE) (limited unless for EIJHAS course)
• European Union (EU)
• Schengen (including Prüm)
• Benelux, NATO, OSCE, G7/G20, OECD, UN (EIJHAS course only)
• handbook: origin and historical development, institutional structure and functioning, policy, (selective
bibliography)
transversal European JHA integration overview
• during 5 joint classes
• transversal, i.e. cross-level character
• rationale: institutional and policy dynamics are interwoven
• not (entirely) following handbook/paragraph order
Schengen & European Union
Introduction
1. Council of Europe
1.1 Development & mandate
Post-war climate
- Churchill 1946: called for the creation of the Council of Europe
o Rise in movements and assocations
‘International Committee of the Movements for European Unity’
- Congress The Hague 1948 (Congress of Europe)
o Economic and political union
Safety, economic independence and social progress
Founding of a consulting assembly chosen by national parlements
European charter for human rights
Establishment of a court which enforces the charter
,1.2 Council of Europe (1949): judicial cooperation
Intergovermental cooperation (some supranational elements can be identified)
- Only Comittee of Ministers makes decisions
- Statute of Council of Europe
o Initiallly 10 member states
o Today: 46 countries (members and candidates)
Also observers: in the Committe of Ministers (bv. Japan) & Parliamentary Assembly
(bv. Canada)
- Legal instruments
o Conventions, resolutions, recommendation
o Conventions: seemingly strong, still weakness
None of the member states give up national sovereignty
No decisions made by majority and imposed on dissenting members
o Some conventions open to non-members
1950: ECHR
- European instrument for the protection of human rights
o EctHR (European court of human rights)
- European Social charter = social counterpart tot the ECHR
Broad mandate, including penal matters
- Judicial co-operation in criminal matters (mother conventions)
o Some conventions are mixed: substantial, procedural,..
- Judicial co-operation in criminal matters & criminal policy (including aspects of substantive criminal
law and criminal procedural law) with regard to specific topics and/or particular offences
o Computer-related crime & criminal procedural law connected with it, corruption, crimes
against humanity/war crimes, cultural property, data protection, DNA, drugs, environmental
crime, firearms,...
Democratic values at the heart of the institution
- Only states with previous democratic political process are welcome
- Council became ‘watchdog’ for human rights and democracy
o 2022: Russia announced withdrawal from the organisation
Avoid that comittee of ministers would formally vote on the expulsion of Russia
2. EC/EU
2.1 Institutional framework
Combination of cooperation mechanisms, both intergovermental and supranational
- Inter = between governements, governemental representatives, unanimity voting
- Supra = majority vote, no need acceptance of all participating states
2.2 Phase 1: European communities and european political cooperation
Supranational European Communities = reaction against weak intergovernemental council of europe
- European Coal and Steel community (1951)
o Two war industries: give up control to independent, supranational body ‘High Authority’
Decisions binding for all member states + for coal and steel industry itself
o Permanent peace between states western europe + strengthen power againt SU
- European Atomic Energy Community (1957)
, o Common policy & market
- European Economic Community (1957) (TEC)
o Deal between France & Germany
o General common economic market – Spaak report
o 1984: European Single Act (internal market by 1992)
Area without internal border: free movement of goods, capital, services, persons
focus on economic and monetary integration
No competence as regards criminal law
However: competence to combat fraud against the EC budget on an
administrative level
European Political co-operation
- Between member states, outside the formal framework of the european communities
- Zie verder
Treaty on European Union (TEU) (Maastricht Treaty, february 1992)
Amsterdam Treaty (October 1997) changes TEC and TEU, integrates Schengen acquis
Nice Treaty (February 2001)
European Constitution (2004)
Lisbon/Reform Treaty (2007) (from TEU/TEC to TEU/TFEU)
Schengen
1. Origin and Historical development
1.1 Context
Free momevent of EC citizens required EC citizenship to be documented at the border
- Lorry drivers remained confronted with long waiting lines at French-German border
- Bilateral agreement to abolish controls on persons at their border
o FR-DE Saarbrucken agreement 1984
1985 initial agreement (Benelux, Fra, Dui)
- Gradual abolition checks at the internal border
o = beyond free movement of persons as an EC notion
1.2 Aims
1.2.1 Lifting internal border controls for persons
1990: Schengen implementation convention (SIC)
- Creation external border
o Intra-schengen movement
No border controls for persons
o External border movement
Controls reinforced
1.2.2 Flanking measures
To support the policy regulating the entry of persons into Schengen area
a) Carrier liability
- Anyone bringing third-country nationals into Schengen is liable for repatriation costs
b) Obligation to register for providers of accommodation
c) Handling asylum applications & Eurodac
- Single member state: first entry
, o For processing asylum requests
o Other states can return asylum seeker to state of first entry
- Advance link with Dublin system
o Dublin Convention on Asylum Seekers 1990 by EC member states in context of EPC
o Later: link with Eurodac
EU-wide database with fingerprint of asylum applicants
Avoid asylum fraud under a fake identity
2016: widen scope of Eurodac to database in which states also store and
check fingerprint data of third-country nationals who are not applicants for
international protection and have irregularly crossed external border
Maintain security and use info for return purposes
d) Schengen visa & VIS
- Common understanding needed
o Common criteria based on which non-Schengen nationals would be allowed/refused
entry (common norms for issuing of Schengen visas)
o Uniform visa criteria for foreigners (people who remain in Schengen for < 3 months)
- Visa Information System (VIS) (since 2021 also for long term visa)
o Facilitate information exchange
o In 2008 law enforcement authorities and Europol also acces for prevention,
detection and investigation of terrorist offences and other serious crime
e) Operational police and judicial cooperation
- Cross border observation and pursuit
- Provisions regarding use of firearms and ammunition
- December 2021: proposed EU Police Cooperation Code
o 2022 recommendation for operation police cooperation (hot pursuit and
surveillance)
f) Information exchange via SIS
- National part of SIS (NSIS): monitor external border
- Central computer (CSIS): synchronizes various national parts
- Second-generation SIS
o Answer technical problems
o Include biometric data (bv. fingerprints, photographs)
- SIRENE bureaus
o Additional bilateral exchange that can be required to validate alerts
- SIC incorporated corpus of data protection rules
o Based on rules of Council of Europe (1981)
g) Smart borders, EES & ETIAS (2016)
- Regulation for establishment of entry/exit system (EES)
o Replace current system of manual stamping of passports (for short stay) + record
refusals of entry
o Reinforce internal security and fight against terrorism
provide acces for authorities and Europol to a record of travel histories
- Regulation to establish a European Travel Information and Authorisation System (ETIAS)
o Strenghten security of travel under visa-free agreements to Schengen area
Fill information gap on non-EU citizens who can travel visa-free to Europe
1.2.3 Limiting free movement in Schengen area?
