Area of freedom, security and justice

KEY POINTS

Title V of the TFEU – Articles 67 to 89 – is focused on the area of freedom, security and justice. In addition to the general provisions, this title contains specific chapters on:

• policies on border checks, asylum and immigration;
• judicial cooperation in civil matters;
• judicial cooperation in criminal matters;
• police cooperation.

Article 47 of the TEU explicitly recognises the legal personality of the EU, making it an independent entity in its own right. However, before the TEU entered into force, matters relating to criminal judicial cooperation and police cooperation were covered by what used to be known as the EU’s third pillar, and were governed through intergovernmental cooperation. Under the third pillar, the EU institutions did not have any competences and could therefore not adopt regulations or directives. The Treaty of Lisbon brought an end to this, allowing the EU to intervene in all matters relating to the area of freedom, security and justice.

Border control, asylum and immigration

The Treaty of Lisbon attributed new competences to the EU institutions, which allow them to adopt measures with a view to:

• establishing common management of the EU’s external borders, in particular by strengthening the European Border and Coast Guard Agency, known as Frontex;
• creating a common European asylum system based on a uniform EU-wide status and common procedures for granting and withdrawing asylum;
• establishing rules, conditions and rights in relation to legal immigration.

Judicial cooperation in civil matters

The Treaty of Lisbon authorises the EU institutions, particularly the European Parliament and the Council of the European Union, to adopt measures on:

• implementing the principle of mutual recognition – each judicial system must recognise decisions taken in scope of other Member States’ judicial systems as valid and applicable;
• effective access to justice;
• developing alternative methods of dispute settlement;
• training the judiciary and judicial staff.

Judicial cooperation in criminal matters

With the abolition of the third pillar, criminal judicial cooperation became a field in which the EU institutions can legislate. Specifically, under Article 83 of the TFEU, they are able to draw up minimum rules defining and sanctioning the most serious criminal offences.

The EU may also define common rules concerning the operation of criminal procedure, for example with regard to the admissibility of evidence or the rights of individuals.

The Treaty of Lisbon strengthened the role of the European Union Agency for Criminal Justice Cooperation (Eurojust), whose mission is to help coordinate investigations and prosecutions between the Member States’ competent authorities.

Police cooperation

Effective police cooperation is a key element in making the EU an area of freedom, security and justice based on respect for fundamental rights. Since the Treaty of Lisbon entered into force, the ordinary legislative procedure has been extended to all non-operational aspects of police cooperation. Meanwhile, operational cooperation is subject to a special legislative procedure requiring unanimity in the Council. The Treaty of Lisbon also created the possibility of establishing enhanced cooperation if unanimity is not reached in the Council.

The Treaty of Lisbon also allows for the gradual strengthening of the European Union Agency for Law Enforcement Cooperation (Europol). As with Eurojust, the treaty permits the Parliament and the Council to further develop the missions and powers of Europol. It specifies that new tasks also include the coordination, organisation and implementation of operational actions, and these are incorporated in the revised Europol regulation (Regulation (EU) 2016/794 – see summary).

Exemptions

Denmark and Ireland benefit from special arrangements. Denmark does not take part in the adoption by the Council of the measures pursuant to Title V of the TFEU (Protocol No 22 – ‘opt-out’ – exempts Denmark from participating in the policy). Ireland only participates in the adoption and application of specific measures after a decision to ‘opt-in’ (Protocol No 21).

There are two types of derogating clauses that apply to Denmark and Ireland:

• 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 Member States;
• an ‘opt-out’ clause enabling them not to apply a measure at any time.