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Published online by Cambridge University Press: 27 October 2017
The EU’s ‘Area of Freedom, Security and Justice’ is a hugely important area covering criminal law, terrorism, immigration, visa control and civil justice, as well as the massive area of free movement of persons. What is clear, however, is that measures which fall within its scope have the capacity to alienate EU citizens rather than making them feel aware of their European identity in a positive sense. This chapter examines some of the measures taken by the EU in this broad field which cause particular concern, namely a lack of democratic and legal accountability as well as inadequate regard to human rights. It focuses in particular on two areas in which human rights protection in the EU has been undermined. The first is in the field of data protection. The second is in the field of suspects’ rights, particularly in the context of the European arrest warrant. The chapter concludes by considering why so many restrictions on freedom have been allowed to come about and suggests some possible solutions.
1 Nor even jurisdictionally, given that its territorial borders differ depending on what aspect of law is at issue—for example, the Schengen area has a different membership from that of the EU.
2 Since the Treaty of Amsterdam, the civil elements of Justice and Home Affairs have been moved to Title IV of the EC Treaty, leaving criminal matters in the Third Pillar, which deals with Police and Judicial Co-operation in Criminal Matters. However, there is surely not an exact correlation between JHA and AFSJ, as the latter is wider (covering, for example, aspects of EC law, notably free movement of persons) and more nebulous than JHA.
3 The Directorate-General for Justice, Freedom and Security home page lists the policy areas it covers, at the top of which is free movement of persons, illustrating the great width of this concept, going beyond Justice and Home Affairs.
4 For example, in cases where competence is not clear, such as in environmental cases and in the cases involving passenger name records data and data protection, discussed below.
5 But not solely—see, for example, Case C-176/03 Commission v Council [2005] ECR I-7879, regarding EC competence for environmental law under the EC Pillar.
6 See Council of the European Union, The Hague Programme: Strengthening Freedom, Security and Justice in the European Union, OJ 2005 C53/1. For an analysis of The Hague Programme, see Carrera, S and Balzacq, T (eds), Security versus Freedom: A Challenge for Europe’s Future? (Hampshire, Ashgate Publishing, 2006)Google Scholar.
7 See Future Group report: High-Level Advisory Group on the Future of European Justice Policy—Proposed Solutions for the Future EU Justice Programme, 11549/08 JAI 369, full text available at: http://www.statewatch.org/news/2008/jul/eu-futures-justice-report.pdf. The Commission has now finished consulting on the content of its new 5-year (2010–14) work programme on Justice and Home Affairs, and is expected to present its plans in a Communication to be issued in 2009. As it is likely that the 2009 Swedish Presidency of the Council will present conclusions on these, it is being dubbed the ‘Stockholm programme’.
8 Moravcsik, A, ‘In Defence of the “Democratic Deficit”: Reassessing Legitimacy in the European Union’ (2002) 40 Journal of Common Market Studies 603 CrossRefGoogle Scholar.
9 Haltern, U, ‘Pathos and Patina: The Failure and Promise of Constitutionalism in the European Imagination’ (2003) 9 European Law Journal 14 CrossRefGoogle Scholar.
10 Bradley, A and Ewing, K, Constitutional and Administrative Law, 13th edn (Harlow, Longman, 2002) 4 Google Scholar.
11 Pocock, J, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton NJ, Princeton University Press, 2003)Google Scholar.
12 See, eg, Guild, E and Geyer, F (eds), Security versus Justice? Police and Judicial Cooperation in the European Union (Hampshire, Ashgate Publishing, 2008) 289–307 Google Scholar.
13 All of which have some sort of impact on individuals and which I have detailed else where: see S Douglas-Scott, ‘The rule of law in the European Union—putting the security into the area of freedom, security and justice’ (2004) European Law Review 219.
14 Proposal for a Council framework decision on combating racism and xenophobia, OJ 2002 C75 E.
15 Ackerman, B, ‘Don’t Panic’ London Review of Books, 7 February 2002, 15–16 Google Scholar.
16 Ackerman, B, Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism (New Haven CT, Yale University Press, 2006)Google Scholar.
17 This article does not consider the ability of individual European states to rise to Ackerman’s challenge but it is suggested that their actions too cause concern—see, eg, the UK’s Terrorism Act 2005, A and Others v United Kingdom, judgment of European Court of Human Rights, 19 February 2009.
18 Although in some areas of EC work, the Council of Ministers has now opened up its legislative processes to a limited extent—see Council Rules of Procedure Art 4(1) and (2) and Art 207(3) EC; these have not yet been applied to the Third Pillar.
19 See comments of House of Commons Select Committee on European Scrutiny 33rd Report, Democracy Accountability and the Role of National Parliaments HC 152-xxxiii-I, 21 June 2002.
20 Case C-345/06 Gottfried Heinrich, judgment of 10 March 2009.
21 The relevant measure being the European Parliament and European Council Regulation (EC) No 2320/2002 establishing common rules in the field of civil aviation security of 16 December 2002, OJ 2002 L355/1.
22 Case C-345/06 Gottfried Heinrich, judgment of 10 March 2009, para 44.
23 Council Decision 2008/615/JHA on the stepping-up of cross-border cooperation, particularly in combating terrorism and cross-border crime, OJ 2008 L210/1, Art 2.
24 See, eg, Elspeth Guild’s written evidence to House of Lords European Union Committee, 18th Report of 2006–07 Session: ‘Prüm: an effective weapon against terrorism and crime?’
25 House of Lords European Union Committee, 40th Report of 2005–06 Session ‘Behind Closed Doors: the meeting of the G6 Interior Ministers at Heiligendamm’.
26 See Teubner, G, ‘Global Bukowina: Legal Pluralism in the World Society’ in Teubner, G (ed), Global Law without a State (Aldershot, Dartmouth Publishing, 1997)Google Scholar.
27 T Mathiesen, ‘Lex Vigilatoria—Towards a control system without a state?’ European Civil Liberties network, Essays for civil liberties and democracy in Europe, available at: http://www.ecln.org/essays/essay-7.pdf.
28 Although there was much litigation in national courts concerning the domestic legislation implementing the European arrest warrant—see further below.
29 Council Decision of 20 December 2007 amending the Protocol on the Statute of the Court of Justice and amendments to the Rules of Procedure of the Court of Justice adopted by the Court on 15 January 2008, OJ 2008 L24/39.
30 Case C-296/08 PPU Santesteban Goicoechea [2008] ECR 000.
31 See also Case C-467/05 Criminal Proceedings against Giovanni Dell’Orto [2007] ECR I-5557, para 36.
32 Case C-105/03 Criminal proceedings against Maria Pupino [2005] ECR I-5285; Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [2008] ECR 000.
33 See, eg, Lenaerts, K and Corthaut, T, ‘Of birds and hedges: the role of primacy in invoking norms of EU law’ (2006) 31 European Law Review 287 Google Scholar.
34 On this issue generally see Network of Independent Experts on Fundamental Rights, Thematic Comment, ‘The Balance between Freedom and Security in the Response by the European Union and its Member States to the Terrorist Threats’ (March 2003) and subsequent reports in 2004 and 2005. This Network produced very valuable annual reports on the state of fundamental rights in the EU following its inception in 2002. However, its contract was terminated in 2006 and was not subsequently renewed. See also the European Parliament resolution of 14 January 2009 on the situation of fundamental rights in the European Union 2004–08 (2007/2145(INI)) in which the Parliament expressed grave concerns about the number of rights violations in the EU.
35 It referred to the Charter in, for example, Case C-303/05 Advocaten voor de Wereld v Leden van de Ministerraad [2007] ECR I-3633.
36 Indeed, its role seems to have been limited partly as a result of an unsightly scrap between the EU and the Council of Europe over the protection of rights, and the Council of Europe fear that they might lose pre-eminence to the EU in this field; see, for example, Schutter, O De, ‘The two Europes of human rights: the emerging division of tasks between the Council of Europe and the European Union in promoting human rights in Europe’ (2008) 14 Columbia Journal of European Law 509 Google Scholar.
37 Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law, OJ 2008 L328/55.
38 And others are omitted simply on account of lack of space. One might equally well have highlighted the worrying growing powers of Europol and the European Police Agency, or the sweepingly broad definition of ‘terrorism’ in the framework decision on terrorism.
39 G de Vries, ‘The European Union’s Role in the Fight Against Terrorism’ (2005) Irish Studies in International Affairs 3.
40 See: Convention Implementing the Schengen Agreement of 14 June 1985 Between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany, and the French Republic on the Gradual Abolition of Checks at Their Common Borders, OJ 2000 L239/19; Convention Based on Article K3 of the Treaty of European Union, on the Establishment of a European Police Office, OJ 1995 C316/2, Arts 2–3; Decision 2002/187/JHA of 28 February 2002 Setting Up Eurojust with a View to Reinforcing the Fight Against Serious Crime, OJ 2002 L63/1, Art 5; Council Regulation 515/97 On Mutual Assistance Between the Administrative Authorities of the Member States and Cooperation Between the Latter and the Commission to Ensure the Correct application of the Law on Customs and Agricultural Matters, OJ 1997 L82/1, Art 30.
41 Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (‘Directive on privacy and electronic communications’), OJ 2002 L201/37.
42 Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks, amend ing Directive 2002/58/EC, OJ 2002 L105/54.
43 Implemented in the UK by the Data Retention (EC Directive) Regulations 2007 and 2009. Note that in the UK the Anti-Terrorism Crime and Security Act 2001, Part 11: Retention of Communications Data set up an almost identical ‘voluntary’ data retention scheme.
44 Opinion of the European Data Protection Supervisor of 29 November 2005 on the proposal for a Directive of the European Parliament and of the Council on the retention of data processed in connection with the provision of public electronic communication services and amending Directive 2002/58/EC. See also EDPS: Second opinion of the European Data Protection Supervisor on the review of Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector (‘Directive on privacy and electronic communications’), OJ 2009 C128/28.
45 More information about this challenge may be obtained at Digital Rights Ireland website: http://www.digitalrights.ie/category/data-retention/.
46 Case C-301/06 Ireland v Council of the European Union, European Parliament, judgment of 10 February 2009.
47 In this respect this judgment may be contrasted with that of the PNR case, Joined cases C-317/04 Parliament v Council and C-318/04 Parliament v Commission ECR [2006] I-4721, on which see further below.
48 Proposal for a Directive of the European Parliament and of the Council on the retention of data processed in connection with the provision of public electronic communication services and amending Directive 2002/58/EC, COM(2005) 438 final.
49 EU Council Framework Decision 2006/960/JHA on simplifying the exchange of information and intelligence between law enforcement authorities, OJ 2006 L386/89, which must be implemented in all Member States by 18 December 2008. It is commonly known as the ‘Swedish Initiative’, having arisen from a proposal from Sweden in 2004.
50 Agamben, G, ‘Bodies Without Words: Against the Biopolitical Tattoo’ (2004) 5 German Law Journal 2 Google Scholar.
51 Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States, OJ 2004 L385/1.
52 See, eg, S Peers, ‘The Legality of the Regulation on EU Citizens’ Passports’ on: http://www.statewatch.org/news/2004/nov/11biometric-legal-analysis-htm.htm.
53 Commission Decision 2004/535/EC of 14 May 2004 on the adequate protection of personal data contained in the Passenger Name Record of air passengers transferred to the United States Bureau of Customs and Border Protection, OJ 2004 L235/11.
54 Council Decision 2004/496/EC of 17 May 2004 on the conclusion of an Agreement between the European Community and the United States of America on the processing and transfer of PNR data by Air Carriers to the United States Department of Homeland Security, Bureau of Customs and Border Protection, OJ 2004 L183/83, and corrigendum at OJ 2005 L255/168.
55 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, OJ 1995 L 281/31.
56 Joined cases C-317/04 Parliament v Council and C-318/04 Parliament v Commission ECR [2006] I-4721. However, not to cause too much turmoil for the governments and the airlines, the Court of Justice allowed the Commission’s decision—and, therefore, the PNR agreement too—to stay effective until 30 September 2006.
57 Ibid, para 57.
58 It should be noted that such a response was not unique from the ECJ—it similarly failed to respond to human rights concerns in addressing the legality of the Family re-Unification Directive: Case C-540/03 Parliament v Council (Family Reunification) [2006] ECR I-5769.
59 Agreement between the European Union and the United States of America on the processing and transfer of passenger name record (PNR) data by air carriers to the United States Department of Homeland Security, OJ 2006 L298/29.
61 EU/US Passenger Name Record (PNR) Agreement, House of Lords European Union Committee, 21st Report of Session 2006/07.
62 Proposal for a Council Framework Decision on the use of Passenger Name Record (PNR) data for law enforcement purposes, COM(2007) 654 final.
63 Opinion of the European Data Protection Supervisor on the draft Proposal for a Council Framework Decision on the use of Passenger Name Record (PNR) data for law enforcement purposes, OJ 2008 C110/1.
64 Additionally, SWIFT (The Society for Worldwide Interbank Financial Telecommunications), which coordinates payments between financial institutions and has its headquarters in Brussels and offices in the US, and was revealed in 2006 to have breached privacy laws in passing details of European banking transactions involving the US to the US Government since the terrorist attacks in the US of 11 September 2001. See, eg, the Article 29 Data Protection Working Party 01935/06/EN WP128 Opinion of 22 November 2006 on the processing of personal data by the Society for Worldwide Interbank Financial Telecommunication (SWIFT).
65 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L281/31).
66 Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters (OJ 2008 L350/60).
67 European Data Protection Supervisor (EDPS): Press release 28 November 2008.
68 Notably, in the case of S and Marper v United Kingdom (App Nos 30562/04 and 30566/04) (2009) 48 EHRR 50, the European Court of Human Rights was highly critical of the EU for its obsessive collection and retention of personal data.
69 Elspeth Guild, Kees Groenendijk and Sergio Carrera, CEPS Policy brief No 173, October 2008, ‘Ten Recommendations on Freedom, Security and Justice for the European Parliament Elections’.
70 Mutual recognition is also the basis of other measures; an example is the Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union, OJ 2008 L327/27, which will enable sentenced persons to be transferred to another member State for enforcement of their sentences. A further example is the Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions, OJ 2008 L337/102.
71 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, OJ 2002 L190/1.
72 Report from the Commission based on Article 34 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (revised version), COM(2006) 8 final.
73 An unofficial translation, provided by the Polish Constitutional Tribunal, has been published by the Common Market Law Reports: ‘Re Enforcement of a European Arrest Warrant’ [2006] 1 CMLR 36.
74 Decision of 18 July 2005, upon an application by a German national, Mamoun Darkazanli, whose extradition was sought by the Spanish authorities on alleged Al-Qaeda terrorist charges.
75 Decision of 7 November 2005.
76 See annexe to Report from the Commission on the implementation since 2005 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, COM (2007) 407 final.
77 Case C-303/05 Advocaten voor de Wereld v Leden van de Ministerraad [2007] ECR I-3633.
78 See for example on this Geyer, F, ‘European Arrest Warrant: Advocaten voor de Wereld VZW v Leden van de Ministerraad’ (2008) 4 European Journal of Constitutional law 149 Google Scholar.
79 R v Secretary of State for the Home Department Ex p Ramda [2002] EWHC 1278. See also Irrastorza Dorronsoro (No 238/2003), judgment of 16 May 2003, Cour d’Appel de Pau (France).
80 Art 5(4) Belgian Law implementing the European arrest warrant—Loi du 19 December 2003: see Moniteur Belge (22 December 2003).
81 However, it should be noted that the main problem arises when a Member State seeks to assert an extra-territorial jurisdiction for something which is not an offence in the executing member state—see Spencer, J, ‘The European Arrest Warrant’ (2003–04) 6 Cambridge Yearbook of European Law 201 CrossRefGoogle Scholar.
82 See, eg, ‘Holocaust denier Fredrick Toben wins German extradition fight’, The Times, 20 November 2008.
83 M Fichera, ‘The European Arrest Warrant and the Sovereign State: A Marriage of Convenience? (2009) European Law Journal 70.
84 Commission Proposal for a Council framework decision on certain procedural rights in criminal proceedings throughout the European Union, COM(2004) 328 final.
85 On this, see ‘Joint Submission from Justice, Amnesty International, and Open Society on the legal basis for a framework decision on procedural rights in criminal proceedings for the experts meeting 26th and 27th March 2009’, which is accessible at: http://www.aieu.be/static/documents/2009/270309CriminalProcedures.pdf.
86 Council Framework Decision 2008/978/JHA of 18 December 2008 on the European Evidence Warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters, OJ 2008 L350/72.
87 D Bigo, S Carrera and E Guild, ‘What Future for the Area of Freedom, Security and Justice? Recommendations on EU Migration and Borders Policies in a Globalizing World’, CEPS policy brief March 2008.
88 Baumann, Z, Liquid fear (Cambridge, Polity Press, 2006)Google Scholar; Liquid times (Cambridge, Polity Press, 2007).
89 Baumann, Z, Liquid Fear (Cambridge, Polity Press, 2006), 45 Google Scholar.
90 The Power of Nightmares: the rise of the politics of fear, BBC documentary, Adam Curtis 2004.
91 See Günther, K, ‘World citizens between freedom and security’ (2005) 12 Constellations 379 CrossRefGoogle Scholar.
92 Eurobarometer, ‘Awareness of key-policies in the area of Freedom, Security and Justice’ Analytical report (The Gallup Organization, 2009)Google ScholarPubMed.
93 Ignatieff, M, The Lesser Evil: Political Ethics in an Age of Terror (Princeton NJ, Princeton University Press, 2004)CrossRefGoogle Scholar.
94 Günther, K, ‘World citizens between freedom and security’ (2005) 12 Constellations 379 CrossRefGoogle Scholar.
95 I Kant, Perpetual Peace: A Philosophical Essay, First Definitive article.
96 Art 6 of the TEU states that: ‘1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States. 2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law’.
97 See Gearty, C, Can Human Rights Survive? Hamlyn lectures 2005 (Cambridge, Cambridge University Press, 2006)Google Scholar.
98 For example, most of the crimes for which a European arrest warrant may be issued are not terrorist measures at all, but ordinary crimes, although it was the terrorist events of 9/11 which provided the conditions of possibility for the EAW’s adoption.
99 See Finland: Cabinet Committee on European Union Affairs on 24 May 2006, Preliminary Agenda for Finland’s Presidency of the EU. Perhaps there is an issue under the Vienna Convention here: once Member States have signed a treaty—such as the Draft Constitution, and in over half of cases EU Member States actually ratified it—there is a duty not to defeat the object and purpose of the treaty. Could it be argued that refusing to use the passerelle does this and thus breaches the Vienna Convention?
100 Raz, J, ‘The Rule of Law and its Virtue’ (1977) 93 Law Quarterly Review 195 Google Scholar. Raz in fact gives a rather minimal account of the Rule of Law, and others have given it more substantive content—but we can see that the EU Third Pillar is lacking even according to Raz’s rather formal account.
101 Presidency Conclusions at the Laeken European Council, 14–15 December 2001:
‘Does Europe not, now that is finally unified, have a leading role to play in a new world order, that of a power able both to play a stabilizing role worldwide and to point the way ahead for many countries and peoples? Europe as the continent of humane values, the Magna Carta, the Bill of Rights, the French Revolution and the fall of the Berlin Wall; the continent of liberty, solidarity and above all diversity, meaning respect for others’ languages, cultures and traditions. The European Union’s one boundary is democracy and human rights. The Union is open only to countries which uphold basic values such as free elections, respect for minorities and respect for the rule of law’.
102 In contrast, the other Europe, of Strasbourg and the European Convention on Human Rights, might claim more credit for creating a ‘Europe of values’.
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