European and International Justice, Home
affairs and Security Policy – eigen cursus
1 Introduction to European JHA integration
What are the justice and home affairs areas?
Asylum, migration, border-crossing …
(judicial cooperation in civil matters)
Security
Criminal law/policy (there are 3 categories of their power):
1. Substantive criminal law: there is a list of crimes that are for the EU, what
constitutes crimes, what are offences and what are the sanctions. First form of
super nationality with substantive criminal law was created by the entry of the
Amsterdam treaty.
2. Criminal procedural law: what are the rules of play of crime fighting and
investigation, what technics are allowed,… First form of super national power
was created with entry into force of the Lisbon treaty, that’s how the EU
granted competence for a few aspects.
3. International co-operation in criminal matters: how traditional authorities (and
police) are able to cooperate across borders. International co-operation, here
it’s important for collaboration for example a crime happens in another country
(and de criminal has BEL nationality) it’s important to know which country is
competent to act). This domain was facilitated in an early fase at the European
level (EUROJUST, EUROPOL)
• Judicial co-operation
• Police and customs (law enforcement) co-operation ‘security’
Council of Europe
After WOII,1949, Winston Churchill has called for a council of Europe “united states of
Europe”. The goal of the council is to constitute Churchill’s dream. So, countries from
EU came together with this movement for creating the Council of Europe, as Churchill strived
for, happened with a congress called, the congress of Europe the movement was called ’the
international committee of the movements for European unity’ with the goal to establish a
union in Europe. That would:
- Guarantee safety
- Econ independence
- Social progress,
1950 The founding of a consulting assembly (raadgevende vergadering), human rights and a
court (Europees hof). It aims to strive for greater unity between members, to protect and to
realize the ideals and principles that are their common heritage.
It’s achieved by:
- Enhanching democracy and functioning of the rule of law which respects human rights
- Concluding treaties (verdragen) on themes that concern societies interest
- Promoting & supporting cultural diversty
- Structuring & stabilizing the democratic functioning
1
,Intergovernmental cooperation
= between states, between governments. There is nothing above (hierarchies). States may
decide to cooperate if they wish and to the extent that they wish. Equal nations who found and
build common grounds and instruments that they are fine with.
It’s not supernational -> sometimes this is a weakness because states retain all rights
that they have, they can freely decide if they commit or not = national sovereignty. It
makes the organization weak because the organization can’t take a decision on behave
of a member state.
If there is a negotiation-process, they sign it. A text that they agree upon but this does not
have effect unless there is a significant number of ratification (bekrachtiging). If the text says
that it’s effective if at least 5 countries ratify, only than the instrument starts the work and
only for those 5 countries.
= To adopt a new convention is irrelevant until it’s ratified.
The strength of an intergovernmental organization is that there are a lot of ratifications of
certain conventions, but the organization is incapable to control that.
≠ supernational (the nation states have decided to give away their powers to a level above
them, granting that level certain powers).
Legal instruments
• Conventions, resolutions, recommendation
Resolutions & recommendations: not binding at all, but still important.
Members still comply to it even if it’s not binding. Vb: European prison
rules
Conventions: can become binding, seemingly strong, still weaknesses
They are protentional hard law instruments because when they are binding, but if it’s
binding is a decision of the state, once there bound there bound and it’s a public
international law.
Broad mandate, including penal matters
judicial co-operation in criminal matters (mother conventions: adopted on the level of
the council of Europe)
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. The states can intergovernmentaly conclude an instrument
which will impact their substantive or procedural criminal law.
Human rights -> instrument: convention for the protection of human rights and
fundamental freedoms (ECHR)
Today: 46 countries
If you discontinue to stick with certain fundamentals than you are no longer eligible to be a
member, this happened to Russia.
Within the EU we have the European council and the Council of EU. Both are different from
the Council of Europe. The EU is a subgroup of the council of Europe, EU 27 members and
they are part of the 46 countries of the council (The council of Europe is bigger than the EU).
2
,Mother conventions in criminal matters
Sometimes there is a lot of time between when the convention gets signed and when it’s
ratified.
These "mother conventions" are essential because they lay the groundwork for the Council of
Europe’s legal system. They help ensure that member states uphold shared values of
democracy, human rights, …
= fundamental or core legal instruments that form the foundation of the Council's work
These are not ratified by all
In short:
• Ratification means the country is legally bound to follow the provisions.
• Signing without ratification is a show of intent but does not impose binding
obligations.
Examples of mother conventions:
- European Convention on Extradition
- The possibility to seek the extradition of person you want to bring to justice in
your own country (they are suspects or convicted and they fled)
- European Convention on mutual assistance in criminal matters
- Evidence collection across borders
- European Convention on Supervision of conditionally sentenced/released offenders
- To allow free movement across borders, they can transfer places to where the
offender wants to build up their life
- European convention on transfer of proceedings
- …
They do more than the mother conventions, they have a broad mandate. You can critizice a
certain policy (vb you are frustated that they don’t do more in a certain area) but you need to
understand the organisation for example that the member states did not grant more power to
the organisation to do anything more.
The core is that they are focussed around the rule of law, democraty and human rights.
European Union
Treaties Establishing the…
• European Coal and Steel Community (1951)
• Reason: coal and steel needed to be put in control under international
mechanism (6 countries) because the Council of Europe was not
capable to control the war-industries of Ger and Italy
• European Atomic Energy Community (1957)
• Functional econ integration, that’s what they stand for. Supernational
overside, to prevent new war. The council, the dream of Churchill, was
to weak to prevent war. That’s why we need a supernational group.
• European Economic Community (1957) (TEC)
• 1984 European Single Act: internal market by 1992, i.e. area without
internal borders in which the free movement of goods, capital, services
and persons is guaranteed
Maastricht 1 nov 1993 -> creation of the EU
3
, When the council of Europe was founded, some advocated the power which coincides with a
supranational organization while other preferred a intergovernmentalism. Do to the
intergovernmental nature they feared that the council of Europe would never be strong enough
to address issues of warfare. European leaders wished to take oppon two major industries
involved in production (coal & steel). Led to the Europea coal and steel community and later
there followed two other communities in the same fashion.
Espace judiciaire Europeén/European Political Co-operation
• between the Member States, outside the formal framework of the European
Communities
Treaty on European Union (TEU) (Maastricht Treaty, February 1992)
Amsterdam Treaty (October 1997)
• changes TEC and TEU, integrates Schengen acquis (Schengen protocol)
Nice Treaty (February 2001)
European Constitution (2004)
Lisbon/Reform Treaty (2007) (from TEU/TEC to TEU/TFEU)
European econ community
The european single act (1984) it changed the european econ community. By introducing the
new goal which is the realisation of an internal market, no internal borders where in we have
the 4 freedoms:
1. Free movement of goods
2. Capital
3. Service
4. 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
1 jan 1993 -> that was the deadline to achieve the goal (so at the end of 1992 it should be
achieved). It was called Europe 1992, that was an important promising motion.
Has it happend in time? Not fully, we are still working on it but the essentials are achieved
Free movement of persons -> has proven to be central in discussion about integration.
Because free movement of persons is also seen as a threat (police: it’s a free movement of
criminals, and the police have only national mandates, they will be hinderd by the border but
the criminals won’t be stopped by borders). Traditional criminal law is only on national
ground, (cross border ground was possible)
But that community is unhelpfull, because european econ community is about econ not
criminal law and police, they are not component for that. So we need something else to deal
with those challenges.
There is a hunger for one day to also be component to criminalis certain behavior, especialy
behavior that is againt the core of the EU, the budget. Vb Fraud
-> Later they will get this
4
affairs and Security Policy – eigen cursus
1 Introduction to European JHA integration
What are the justice and home affairs areas?
Asylum, migration, border-crossing …
(judicial cooperation in civil matters)
Security
Criminal law/policy (there are 3 categories of their power):
1. Substantive criminal law: there is a list of crimes that are for the EU, what
constitutes crimes, what are offences and what are the sanctions. First form of
super nationality with substantive criminal law was created by the entry of the
Amsterdam treaty.
2. Criminal procedural law: what are the rules of play of crime fighting and
investigation, what technics are allowed,… First form of super national power
was created with entry into force of the Lisbon treaty, that’s how the EU
granted competence for a few aspects.
3. International co-operation in criminal matters: how traditional authorities (and
police) are able to cooperate across borders. International co-operation, here
it’s important for collaboration for example a crime happens in another country
(and de criminal has BEL nationality) it’s important to know which country is
competent to act). This domain was facilitated in an early fase at the European
level (EUROJUST, EUROPOL)
• Judicial co-operation
• Police and customs (law enforcement) co-operation ‘security’
Council of Europe
After WOII,1949, Winston Churchill has called for a council of Europe “united states of
Europe”. The goal of the council is to constitute Churchill’s dream. So, countries from
EU came together with this movement for creating the Council of Europe, as Churchill strived
for, happened with a congress called, the congress of Europe the movement was called ’the
international committee of the movements for European unity’ with the goal to establish a
union in Europe. That would:
- Guarantee safety
- Econ independence
- Social progress,
1950 The founding of a consulting assembly (raadgevende vergadering), human rights and a
court (Europees hof). It aims to strive for greater unity between members, to protect and to
realize the ideals and principles that are their common heritage.
It’s achieved by:
- Enhanching democracy and functioning of the rule of law which respects human rights
- Concluding treaties (verdragen) on themes that concern societies interest
- Promoting & supporting cultural diversty
- Structuring & stabilizing the democratic functioning
1
,Intergovernmental cooperation
= between states, between governments. There is nothing above (hierarchies). States may
decide to cooperate if they wish and to the extent that they wish. Equal nations who found and
build common grounds and instruments that they are fine with.
It’s not supernational -> sometimes this is a weakness because states retain all rights
that they have, they can freely decide if they commit or not = national sovereignty. It
makes the organization weak because the organization can’t take a decision on behave
of a member state.
If there is a negotiation-process, they sign it. A text that they agree upon but this does not
have effect unless there is a significant number of ratification (bekrachtiging). If the text says
that it’s effective if at least 5 countries ratify, only than the instrument starts the work and
only for those 5 countries.
= To adopt a new convention is irrelevant until it’s ratified.
The strength of an intergovernmental organization is that there are a lot of ratifications of
certain conventions, but the organization is incapable to control that.
≠ supernational (the nation states have decided to give away their powers to a level above
them, granting that level certain powers).
Legal instruments
• Conventions, resolutions, recommendation
Resolutions & recommendations: not binding at all, but still important.
Members still comply to it even if it’s not binding. Vb: European prison
rules
Conventions: can become binding, seemingly strong, still weaknesses
They are protentional hard law instruments because when they are binding, but if it’s
binding is a decision of the state, once there bound there bound and it’s a public
international law.
Broad mandate, including penal matters
judicial co-operation in criminal matters (mother conventions: adopted on the level of
the council of Europe)
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. The states can intergovernmentaly conclude an instrument
which will impact their substantive or procedural criminal law.
Human rights -> instrument: convention for the protection of human rights and
fundamental freedoms (ECHR)
Today: 46 countries
If you discontinue to stick with certain fundamentals than you are no longer eligible to be a
member, this happened to Russia.
Within the EU we have the European council and the Council of EU. Both are different from
the Council of Europe. The EU is a subgroup of the council of Europe, EU 27 members and
they are part of the 46 countries of the council (The council of Europe is bigger than the EU).
2
,Mother conventions in criminal matters
Sometimes there is a lot of time between when the convention gets signed and when it’s
ratified.
These "mother conventions" are essential because they lay the groundwork for the Council of
Europe’s legal system. They help ensure that member states uphold shared values of
democracy, human rights, …
= fundamental or core legal instruments that form the foundation of the Council's work
These are not ratified by all
In short:
• Ratification means the country is legally bound to follow the provisions.
• Signing without ratification is a show of intent but does not impose binding
obligations.
Examples of mother conventions:
- European Convention on Extradition
- The possibility to seek the extradition of person you want to bring to justice in
your own country (they are suspects or convicted and they fled)
- European Convention on mutual assistance in criminal matters
- Evidence collection across borders
- European Convention on Supervision of conditionally sentenced/released offenders
- To allow free movement across borders, they can transfer places to where the
offender wants to build up their life
- European convention on transfer of proceedings
- …
They do more than the mother conventions, they have a broad mandate. You can critizice a
certain policy (vb you are frustated that they don’t do more in a certain area) but you need to
understand the organisation for example that the member states did not grant more power to
the organisation to do anything more.
The core is that they are focussed around the rule of law, democraty and human rights.
European Union
Treaties Establishing the…
• European Coal and Steel Community (1951)
• Reason: coal and steel needed to be put in control under international
mechanism (6 countries) because the Council of Europe was not
capable to control the war-industries of Ger and Italy
• European Atomic Energy Community (1957)
• Functional econ integration, that’s what they stand for. Supernational
overside, to prevent new war. The council, the dream of Churchill, was
to weak to prevent war. That’s why we need a supernational group.
• European Economic Community (1957) (TEC)
• 1984 European Single Act: internal market by 1992, i.e. area without
internal borders in which the free movement of goods, capital, services
and persons is guaranteed
Maastricht 1 nov 1993 -> creation of the EU
3
, When the council of Europe was founded, some advocated the power which coincides with a
supranational organization while other preferred a intergovernmentalism. Do to the
intergovernmental nature they feared that the council of Europe would never be strong enough
to address issues of warfare. European leaders wished to take oppon two major industries
involved in production (coal & steel). Led to the Europea coal and steel community and later
there followed two other communities in the same fashion.
Espace judiciaire Europeén/European Political Co-operation
• between the Member States, outside the formal framework of the European
Communities
Treaty on European Union (TEU) (Maastricht Treaty, February 1992)
Amsterdam Treaty (October 1997)
• changes TEC and TEU, integrates Schengen acquis (Schengen protocol)
Nice Treaty (February 2001)
European Constitution (2004)
Lisbon/Reform Treaty (2007) (from TEU/TEC to TEU/TFEU)
European econ community
The european single act (1984) it changed the european econ community. By introducing the
new goal which is the realisation of an internal market, no internal borders where in we have
the 4 freedoms:
1. Free movement of goods
2. Capital
3. Service
4. 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
1 jan 1993 -> that was the deadline to achieve the goal (so at the end of 1992 it should be
achieved). It was called Europe 1992, that was an important promising motion.
Has it happend in time? Not fully, we are still working on it but the essentials are achieved
Free movement of persons -> has proven to be central in discussion about integration.
Because free movement of persons is also seen as a threat (police: it’s a free movement of
criminals, and the police have only national mandates, they will be hinderd by the border but
the criminals won’t be stopped by borders). Traditional criminal law is only on national
ground, (cross border ground was possible)
But that community is unhelpfull, because european econ community is about econ not
criminal law and police, they are not component for that. So we need something else to deal
with those challenges.
There is a hunger for one day to also be component to criminalis certain behavior, especialy
behavior that is againt the core of the EU, the budget. Vb Fraud
-> Later they will get this
4
