Lisbon Treaty & future 1

Helen Toner

Outline … Freedom, Security & Justice? From Tampere to Hague & Stockholm Lisbon Treaty; Competences and

decision-making – redressing democratic deficit?

Pact on Immigration & Asylum & Stockholm programme – agenda for the future

The new framework ‘A new supranational setting that is

characterised by stronger democratic accountability, judicial control, efficient evaluation mechanisms for the full application of the rule of law and an ambitious, fundamental human rights strategy’ (Guild & Carrera) – these are all important themes

Lisbon Treaty decision-making Prior to Lisbon Treaty – intergovernmental

third pillar in Maastricht Amsterdam Treaty 1999: significant but

not complete Communitarisation 1999 Intergovernmental processes – unanimity,

limited EP role and Commission shared initiative with MS – moves slowly to the more ‘traditional’ Community method in first years

Lisbon Treaty decision-making Immediately before Lisbon Treaty: QMV & Co-decision: border controls,

some visa issues, TCN travel, asylum and irregular migration

QMV & Consultation: admin co-operation, common visa format & list

Unanimity & Consultation: legal migration

Lisbon Treaty decision-making Virtually all shifts to regular ‘normal’

decision-making legislative process ie QMV and co-decision

Will this make a difference? Much already changed anyway ... legal

migration most significant change And to what extent will Parliament

actually make a real difference?

The good the bad and the ugly? Will this commonly perceived pattern

continue? First readings & Returns directive? Many first reading agreements – secret

‘trialogues’ have been roundly criticised Returns Directive major recent

legislation under co-decision – Acosta asks ‘has the Parliament become bad and ugly?’

The good the bad and the ugly? Directive passed on first reading in

EP after ‘trialogue’ compromise. Key compromises on issues such

as scope, voluntary departure, re-entry ban, remedies, a bit more success in amending Council position on detention and on unaccompanied minors.

The good the bad and the ugly? Why? Pragmatism, pressure from MS, fear

of something worse, procedural pressures to get agreement at first reading?

Is this undermining any potential benefit from input of EP and its LIBE committee?

Yet other indications are more positive with rejection of SWIFT agreement, VIS, position on fundamental rights, willingness to challenge to FR Directive etc?

National democracy? What new enhanced role for national

parliaments? Subsidiarity control mechanism strengthened especially in AFSJ (stronger than elsewhere).

Yet increased co-operation needs to work in practice – communication with, and between, national parliaments will be key.

Is it realistic to think that the timescales involved will really work effectively?

Lisbon Treaty competences General Provisions – Article 67 TFEU Concepts of Freedom, Security and

Justice central? Security – focused on crime 67(3) Justice – focused on civil proceedings

67(4) Freedom?? Where does that appear!?

Immigration & Asylum Instead of ‘freedom’ of movement … ‘It shall ensure the absence of internal

border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between member states, which is fair towards third country nationals. For the purpose of this title, stateless persons shall be treated as third country nationals’

Borders & visas competences Compare Art 77 TFEU with old Art 62 Three month limit dropped ‘Common policy’ on visas rather than

previous 4 categories … an extension? ‘Common’ policy vs ‘Uniform’ visa? Freedom to travel – beyond 3 months

to a ‘short period’!

Borders & visas competences New competence re gradual

establishment of integrated border management system for external borders

Line between this (opted-out) and customs co-operation (not opted-out) will have to be considered

Borders & visas competences Passports & other now other documents

also: if necessary to facilitate EU Cit’s rights ‘to move and reside freely’, and if not provided other power to do so

Passport and i/d for EU Citizens and id/residence cards for their family members security issues, could be covered by borders competence

Asylum competences Compare Art 78 TFEU, old Art 63(1) 64(2)

EC ‘Common policy’ on asylum rather than

previous refs often to ‘minimum standards’ Will this allow more ambition? With previous framework ‘difficult to see

how a genuinely common system could ever be established’ (Peers) and this may well now change?

Asylum competences Status vs Qualification? Asylum Status ‘valid throughout the

union’ – goes beyond competence relating to subsidiary protection. Range of possible approaches to interpreting this.

Temp protection: common system not just minimum, but only if ‘mass influx’ (which already had been in legislation)

More comprehensive limitation to TCNs

Asylum competences Burden sharing power old 63(2)

gone … but solidarity underpinning Measures for benefit of individual

MS Partnership and co-operation with

third countries - clearer competence

Immigration competences Compare Art 79 with old 63(3) and (4) ‘Common policy’ – again more

intensive competence? Guiding principles: efficient

management, fair treatment of lawful resident TCN, enhanced measures against illegal migration and trafficking

Legal migration 79(2)a and b Clearer competence to regulate

rights within first state as well as migration to second state: (tho’ this seems already to have be assumed previously … albeit mostly in context of onward migration (LTR, Blue Card; but common framework?)

Legal migration Express limitation in 79(5) re volumes

of admissions Only refers to art 79, volumes not

rights once admitted, or procedures, not applicable to intra-community migration, only for those seeking employment (what does this mean, maybe primary purpose of admission?)

Irregular migration Compare 79(2)c&d, 79(3) TFEU with

63a(c), (d) and 63(3) Limited changes ‘illegal’ becomes

‘unauthorised’ and ‘removal’ alongside ‘repatriation’

Re-admission treaties – competence already implied and exercised, express recognition of this

Trafficking competence expressly clarified - though watch for split between migration and criminal law related issues …

Conclusion Some changes in the Lisbon Treaty –

mainly to competences rather than decision-making processes, and most significantly moving to competences specifically ‘common policy’ rather than often being tied to ‘minimum standards’ as before – culmination and completion of movement from intergovernmental to supranational legislative processes

Outline … Area of Freedom, Security &

Justice? From Tampere to Hague &

Stockholm Pact on Immigration & Asylum &

Stockholm programme – agenda for the future?

‘An Area’? – fragmentation Fragmentation and opt-outs

continues and even becomes ever more complex, as Peers suggests they are ‘in a world of their own’?

UK, Ireland and Denmark continue to have special arrangements – even greater extent than before (all FSJ)

‘An Area’? – fragmentation Complex dilemma and difference of

views on what happens when legislation amended – procedure to ‘expel’ if it becomes inoperable without opt-in

UK has opted into some second stage asylum amending legislation (Dublin, Eurodac) but not others. Will it still be bound by previous legislation?

Freedom Freedom – freedom of movement

as well as fundamental freedoms How far has freedom of movement

been truly achieved?

Security Safety from external threats, could

also include protection against persecution & torture

How far has securitisation been pushed at the expense of providing secure refuge for those who need it?

Justice Law enforcement – but also

respecting the rule of law, and access to justice

Has access to justice and judicial remedies been neglected in favour of enforcing removals and strict rules?

Tampere … 1999-2004 First five year programme – setting

an ambitious agenda High expectations about

possibilities in Amsterdam Agenda including Partnerships with

countries of origin, CEAS, fair treatment of TCNs, management of migration flows

Successes and failures Commission ambition, yet member

states protecting existing provisions First building blocks put in place,

including much of first phase of CEAS Key measures including Family

Reunification, Long term residence, Dublin, Qualification Directive, Reception conditions

Successes and failures Has been said that the agenda

hasn’t exactly remained totally unfulfilled yet the content remains unfulfilling

Hague … 2004-2009 Securitisation emerges as much

stronger theme after 9.11 in the Hague programme

Metaphor of ‘balance’ between security and liberty, between rights and law enforcement emerges more strongly and has been much criticised

Successes and failures (Com) Schengen borders lifted Final completion of the first stage of CEAS

and common visa policy – Visa Code strengthening clarity and remedies

Framework for integration developed Stronger action against illegal immigration

(Frontex, Returns directive) Implementation of initial directives into

national law

2009 - to the future Pact on Immigration and Asylum

2008 Development of Stockholm

Programme Developing agenda for the next

years

Pact on Immigration and Asylum Political document developed under

French Presidency – reflects some of the domestic French immigration agenda?

Aiming to have impact on development of Stockholm programme

Five key areas

Pact: legal immigration ‘Organise legal immigration to take

account of the priorities, needs and reception capacities determined by each MS, and encourage integration’

Focus on MS competences and controls esp notable in comments on family reunification

Pact: irregular immigration Control irregular migration by

ensuring the return of irregular aliens to their country of origin

Regularisations discussed but proposed ‘ban’ didn’t survive into final version

Pact: Border controls Make border controls more

effective Continued development of border

controls, biometrics, Frontex

Pact: Asylum Construct a Europe of Asylum Continued development of CEAS

Pact: external dimension Comprehensive partnership with

countries of origin/transit, encourage synergy between migration and development

Global approach to migration – again emphasises MS agreements with countries of origin

Evaluation? Themes – re-emergence of Nationalism

and Intergovernmentalism? Perpetuates tension between

Europeanisation and National control Transfer of elements of domestic

agendas to European level? Little or no reference to significant EU

initiatives/measures?

Evaluation? Some developments between the July

and September drafts … some elements removed as discussions proceeded (eg, reference to integration contract) and some added (combating discrimination), and more references to the Commission and its role, strengthening this recognition, regularisations also.

Stockholm Programme Drafted in 2009 – after the 2008 Pact and

at same time as coming into force of the Lisbon Treaty

Building on Commissions communications in 2009 COM(2009)262 and 2008

Puts the political priorities in place Key features/themes: ‘Putting solidarity

and responsibility at the heart of our response’

Access to Europe in Globalised world Integrated External border

management Visa Policy

Asylum & migration Europe of responsibility, solidarity

and partnership …

Migration Consolidating global approach to

migration Migration and development In keeping with labour market

requirements Proactive policies for migrants and

rights Integration

Action plan Borders Amending Frontex Progress report on Eurosur Amending Borders code EES and RTP SIS II Development of Large-Scale IT systems

Agency EASO – methods for identifying protection

needs in ‘mixed flows’

Action plan Visa Western Balkans Handbook Further visa facilitation agreements VIS Communication re consular

co-operation/common application centres Evaluation of Visa Code, VIS Communication re ‘new concept of Visa

policy’

Action plan Migration Communication on coherence with

other policy areas, Annual reports, developing statistics

Global approach, development, labour market, migrant rights, integration, illegal immigration

Global approach Further report on

evaluation/development of Global Approach

Ongoing further dialogue, mobility partnerships

Migration & development Communication on maximising

positive and minimising negative effects of migration

Climate change communication Observatory network and co-

operation with third countries esp in Africa

Labour market Seasonal employment, intra-country

transfers Reports on existing directives and

follow-up Communication on labour shortages Developing European Migration

Network

Migrants and rights, minors Family Reunification – Green paper

and future amendment of directive? Development of Immigration Code

in longer term Further action on Integration Action Plan on unaccompanied

minors now published

Illegal immigration Evaluation of readmission

agreements Evaluation of return policy Report on directives, possible

amendments Continued negotiation of readmission

agreements (Turkey Morocco China Bangladesh etc)

Action Plan Asylum Eurodac Development Joint processing communication Geneva Convention Accession

communication EASO evaluation – impact on practical co-

operation Communication on framework for transfer

of beneficiaries and mutual recognition Common methodology to reduce disparities

Action Plan Asylum Reviewing national systems esp

Capacity issues Communication on solidarity Evaluation of possible mechanisms

for facilitating secondment procedures

Strategic partnership UNCHR

Action Plan Asylum Resettlement programme

evaluation and development New approaches to access –

targeting transit countries New Regional Protection

Programmes