Area of freedom, security and justice
The Treaty of Lisbon intends to reinforce the establishment of a European common area within which persons move freely and benefit from effective legal protection. The creation of such an area has implications for areas in which European citizens have high expectations, such as immigration and the fight against organised crime and terrorism. These issues have a significant cross-border dimension and therefore require effective cooperation at European level.
The Treaty of Lisbon divides the themes related to the area of freedom, security and justice into four fields:
policies related to border control, asylum and immigration;
judicial cooperation in civil matters;
judicial cooperation in criminal matters;
police cooperation.
Matters relating to criminal judicial cooperation and police cooperation were previously covered by the 3rd pillar of the European Union (EU), governed by intergovernmental cooperation. Under the framework of the 3rd pillar, European institutions did not have any competences and could therefore not adopt regulations or directives. The Treaty of Lisbon puts an end to this distinction and henceforth enables the EU to intervene in all matters related to the area of freedom, security and justice.
BORDER CONTROL, ASYLUM AND IMMIGRATION
The Treaty of Lisbon attributes new competences to the European institutions, which can henceforth adopt measures with a view to:
establishing common management of the EU’s external borders; in particular through the strengthening of the European Agency for the Management of Operational Cooperation at the External Borders, known as Frontex;
creating a common European asylum system; such a system will be based on a uniform European status and common procedures for the granting and withdrawing of asylum;
establishing rules, conditions and rights in relation to legal immigration.
JUDICIAL COOPERATION IN CIVIL MATTERS
The Treaty of Lisbon authorises the European institutions to adopt new measures concerning:
the implementation of the principle of mutual recognition: each judicial system must recognise decisions adopted by the judicial systems of the other EU countries as valid and applicable;
effective access to justice;
the development of alternative methods of dispute settlement;
the training of the judiciary and judicial staff.
JUDICIAL COOPERATION IN CRIMINAL MATTERS
With the abolition of the 3rd pillar of the EU, the whole of criminal judicial cooperation becomes a field in which the European institutions may legislate.
Specifically, the European institutions may henceforth establish minimum rules concerning the definition and sanctioning of the most serious criminal offences. In addition, the EU may also intervene in the definition of common rules concerning the functioning of criminal procedure, for example with regard to the admissibility of evidence or the rights of individuals.
Furthermore, the Treaty of Lisbon intends to strengthen the role of Eurojust in the EU. Eurojust’s mission is to help coordinate investigations and prosecutions between the competent authorities of EU countries. Currently, Eurojust only has the power to make proposals: it can request national authorities to initiate investigations or prosecutions. Henceforth, the Treaty of Lisbon offers the European institutions the option of extending the missions and powers of Eurojust with the ordinary legislative procedure.
Moreover, the Treaty of Lisbon considers the possible creation of an actual European Public Prosecutor’s Office from Eurojust. Such an office would have significant powers as it could investigate, prosecute and bring to judgment the perpetrators of crimes. In addition, the European Public Prosecutor’s Office would itself be capable of exercising the functions of prosecutor in the competent courts of EU countries.
Nevertheless, the Treaty of Lisbon does not yet establish the European public prosecutor’s office, but merely authorises the Council, acting unanimously, to adopt a regulation in this regard. If the Council does not reach unanimity, then nine EU countries, at the least, will have the option of establishing a European public prosecutor’s office between them under the framework of enhanced cooperation.
POLICE COOPERATION
As with criminal judicial cooperation, police cooperation benefits from the abolition of the 3rd pillar of the EU. Henceforth, the European institutions will be capable of adopting regulations and directives in this field.
The ordinary legislative procedure is thereby extended to all non-operational aspects of police cooperation. In contrast, operational cooperation will be determined through a special legislative procedure requiring Council unanimity. However, the Treaty of Lisbon also provides for the option of establishing enhanced cooperation if unanimity is not reached by the Council.
Furthermore, the Treaty of Lisbon provides for the gradual strengthening of the European Police Office (Europol). As with Eurojust, the Treaty of Lisbon henceforth authorises the Council and the Parliament to develop the missions and powers of Europol under the framework of the ordinary legislative procedure. Currently, the role of Europol is limited to facilitating cooperation between the authorities of EU countries. The Treaty of Lisbon specifies that new tasks could also include the coordination, organisation and implementation of operational actions.
EXEMPTIONS
The United Kingdom (1), Ireland and Denmark benefit from special arrangements, which include all the measures adopted under the framework of the area of freedom, security and justice. These three countries have the option of deciding not to participate in the legislative procedures in this field. They will, therefore, not be bound by the adopted measures.
In addition, two types of derogating clause are applied to the United Kingdom (1), Ireland and Denmark:
an ‘opt-in’ clause which enables each of them to participate, on a case by case basis, in the adoption procedure for a measure or the application of a measure already adopted. They will then be bound by this measure in the same way as other EU countries;
an ‘opt-out’ clause enabling them not to apply a measure at any time.