Fundamental rights in the institutions and instruments of the Area of Freedom, Security and Justice

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Engström, Viljam
Heikkilä, Mikaela
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The purpose of this research report is to give an overview of institutional decision-making in the Area of Freedom, Security and Justice (AFSJ). Particular attention will be paid to how European Union (EU) institutions active in the AFSJ engage with fundamental rights and through which instruments. AFSJ policies raise fundamental rights concerns by their very definition. The aim of the study is to show the nexus of such concerns to institutional and instrumental features. The timing of this report is delicate, due to the fact that the Stockholm Programme, which sets the policy priorities in the AFSJ, is coming to an end in 2014. During the European Council in June 2014, new strategic guidelines for legislative and operational planning of the AFSJ were adopted. This report seeks to lay the foundation for the establishment of a nexus between institutional features of the AFSJ, the legal and policy tools available and the fundamental/human rights issues that may be of concern when acting in the AFSJ. The study will therefore not only provide the reader with an overview of the AFSJ policy-making landscape, but also an insight into recognised fundamental/human rights concerns that arise across the different policies. The discussions in this report build upon previous research concerning the EU and the AFSJ in the fields of both law and political science. Particular attention has also been paid to include EU policy and legislative instruments in the discussion. The report has been divided into three main parts. First, focus is put on the institutional landscape. This landscape consists of EU primary legislative actors, agencies and Member States at the implementing end, and democratic and legal mechanisms for monitoring and oversight. The multitude of actors also includes external actors as well as sub-actors in the form of committees, working groups and networks. Second, the interest is turned to the instruments through which policies are enacted in the different policy areas of the AFSJ. The interaction with fundamental rights is in this context displayed both in respect of general EU acts, as well as in respect of the specific legislative regime of individual policy areas. The overview of actors and instruments suggest some issues of particular concern for the realisation of fundamental rights in the AFSJ. In a third part, these concerns are summed up. The report singles out multiple possible sources of incoherence for the protection of rights of individuals. These sources entail (as non-exhaustive main categories) competence issues, Member State discretion and differentiation of obligations, lack of mainstreaming of fundamental rights concerns, flaws in accountability mechanisms, technocratisation of AFSJ policies, securitisation of fundamental rights issues, and disregard for external fundamental rights implications. It is to be noted that the concerns identified arise differently for different actors. Eventually, the activities of every individual actor and the implications of every single instrument must be assessed in more detail in order to pinpoint more concrete fundamental rights repercussions. This does not mean, however, that general conclusions on the role of fundamental rights in the institutions and instruments in the AFSJ, or on the coherence of the protection in the internal and external dimension of AFSJ policies could not be made. Above all, the discussions in the report reveal a two-fold image: on the one hand, especially since the adoption of the Lisbon Treaty, the AFSJ has changed dramatically. The AFSJ has been brought into the general constitutional scheme of EU decision-making and has become part of a system of constitutional checks (including fundamental rights). On the other hand, the AFSJ continues to be a policy area that is characterised by institutional peculiarities and novel forms of governance. The institutional improvements that the communitarisation of the AFSJ brought with it are counterbalanced by the challenges arising out of these special features. The incoherence affecting the protection granted to individuals can have a constitutional source. The very balancing of ́freedom ́, ́security ́ and ́justice ́ is inherent in all policy-making in the area. There is also a constitutional differentiation of Member State obligations. Furthermore, the fact that AFSJ decision-making (mostly) follows the ordinary EU decision- making procedure also means that the area displays the general problems of EU decision- making and institutional design. Fundamental rights issues can have their source at all levels of AFSJ policy- and law-making. One particular feature characterising the AFSJ is the complexity of the institutional design of the area. There is also in the AFSJ an increasing externalisation or outsourcing of functions, which not only challenges the reach of the EU system for the protection of fundamental rights, but also potentially exports flaws of the EU system to concern third country nationals. The use of agencies is a feature that has occupied much academic literature concerning the AFSJ. Agencies are both in themselves an expression of experimentalist governance as well as a source of novel governance techniques, which bring with them a particular set of challenges. Yet another feature of the AFSJ is the use of instruments and integration mechanisms that grant Member States considerable freedom of action. These tools may cause concern in cases where individual States do not respect fundamental rights. At the same time, further integration may not be a political option, or alternatively, requires a differentiation of obligations which raises new coherence issues. Given the nature of the cooperation within the AFSJ and the multiple sources of potential fundamental rights concern, the rights of individuals in the AFSJ will require constant attention. This report provides a background for further research on fundamental rights in the AFSJ.