Introduction to European JHA integration
JHA policy areas
asylum, migration, border-crossing …
(judicial cooperation in civil matters)
criminal law/policy – important classification:
- substantive criminal law
- criminal procedural law
- international co-operation in criminal matters
o judicial co-operation
o police and customs (law enforcement) co-operation
‘security’
Principal JHA cooperation levels
Levels
- Council of Europe (hereafter: CoE) (limited unless for EIJHAS course)
- European Union (EU)
- Schengen (including Prüm)
- Benelux, NATO, OSCE, G7/G20, OECD, UN (EIJHAS course only)
- handbook: origin and historical development, institutional structure and functioning, policy,
(selective bibliography)
transversal European JHA integration overview
- during 5 joint classes
- transversal, i.e. cross-level character
o rationale: institutional and policy dynamics are interwoven
o not (entirely) following handbook/paragraph order
530-548
council of Europe – development & mandate
starts after WOII
idea of council of Europe (Churchill) -> to strive for European unity
international Committee of the Movements for European Unity
organization of a congress in The Hague 7 may 1948
goal: to establish a union in Europe
o resolutions calling for an economic and political union that would guarantee
▪ safety, economic independence and social progress
▪ the founding of a consulting assembly chosen by national parliaments
▪ the drafting of e European charter for Human rights
▪ establish a court which enforces the charter through its judgements
5 may 1949: Statute of the Council of Europe was signed in Londen
- intergovernmental character
o political compromise
- Ministers, private assembly, decision-making body -> intergovernmentalism
- Parliamentary Assembly, advisory opinion
- Meetings started and still are in Strasbourg (seat of council of europe)
Supranational cooperation
- COE aims to strive for greater unity between the members
o This aim is achieved by:
▪ Taking initiatives to enhance democracy and the functioning of the rule of law, in
1
, which human rights are respected
▪ Drafting and concluding treaties on themes that concern the societies’ interests
in the Member States and that must enhance cooperation
▪ Promoting and supporting cultural diversity
▪ Structuring and stabilizing the democratic functioning in each of the Member
states
- None of the member states can give up their national sovereignty
o Discussion until a unanimously supported compromise is reached
None of the decisions are made by majority and imposed on dissenting members of the COE
ECHR
= European Convention for Protection of Human Rights and Fundamental Freedoms
- Singed 1950
- First European instrument for the protection of human rights
Few years later: European Court of Human Rights (ECtHR) was set up
The Council’s aspiration of a political and economic union incited several federally oriented countries
to take the initiative and look for ways to establish a stronger partnership
- Robert Schuman suggested uniting the 2 biggest war industries – the coal and steel industry – in a
supranational organization
o Be, Bl, Lu, Fr, D, I signed the Treaty establishing the European Coal and Steel Community
(infra EU) in spring 1951
- From the start democratic values were placed at the heart of the institution.
- The Council of Europe slowly became a ‘watchdog’ for human rights and democracy.
- Influenced by the developing European Society, new priorities such as migration, social exclusion
and discrimination are announced.
today: 46 countries
- Russian Federation: 28 February 1996 - 15 March 2022
o Russia was part of the COE, but bc of their “special military operation” in Ukraine they
were eventually expelled by the Committee of Ministers on March 16th 2022
In both the Committee of Ministers and the Parliamentary Assembly there are observers
Intergovernmental cooperation -> there is nothing above the states (so not supranational)
- Sometimes that’s a weakness
- Members can freely decide to commit or not
- Text is not binding until there is a sufficient number of ratifications (meaning … states need to
move to the state of rattification of the instrument and then it will work?)
- Then they are hard instruments
legal instruments
• conventions, resolutions, recommendation
• conventions: seemingly strong, still weaknesses
broad mandate, including penal matters
judicial co-operation in criminal matters (mother conventions)
judicial co-operation in criminal matters & criminal policy (including aspects of substantive criminal
law and criminal procedural law) regarding specific topics and/or particular offences
council of Europe – judicial cooperation (NK, gwn ter info)
mother conventions in criminal matters
2
, - 1957 European Convention on Extradition | 3 Protocols
- 1959 European Convention on Mutual Assistance in Criminal Matters | 2 Protocols
- 1964 European Convention on Supervision of Conditionally Sentenced/Released Offenders
- 1970 European Convention on the International Validity of Criminal Judgements
- 1972 European Convention on Transfer of Proceedings
- 1983 Convention on the Transfer of Sentenced Persons | Protocol
- 1990 Laundering Convention | Protocol
- 2001 Cybercrime Convention | Protocol
- …
Council of Europe – crime & criminal policy
judicial co-operation in criminal matters /criminal policy with regard to specific topics and/or
particular offences (sometimes part of the JHA acquis)
computer-related crime & criminal procedural law connected with it, corruption, crimes against
humanity/war crimes, criminal policy/justice in general, cultural property, data protection, DNA,
drugs, environmental crime, firearms, intimidation of witnesses/rights of the defence,
intolerance/racism and xenophobia, mediation, prison, road traffic, sanctions, (sexual) offences
against minors, terrorism, (victims of) violence
121-132
EC/EU institutional framework
EC - Treaties Establishing the
- European Coal and Steel Community (1951)
- European Atomic Energy Community (1957)
- European Economic Community (1957) (TEC)
Espace judiciaire Europeén/European Political Co-operation
- between the Member States, outside the formal framework of the European Communities
Treaty on European Union (TEU) (Maastricht Treaty, February 1992)
Amsterdam Treaty (October 1997)
- changes TEC and TEU, integrates Schengen acquis (Schengen protocol)
Nice Treaty (February 2001)
European Constitution (2004)
Lisbon/Reform Treaty (2007) (from TEU/TEC to TEU/TFEU)
EC prepared the way for the EU in the area of justice and home affairs
Origin and historical development European Union
The EU is a result of a combination of different cooperation mechanisms, both intergovernmental
and supranational in nature. There are important differences between cooperating in an
intergovernmental or supranational way.
1. Intergovernmental cooperation is a form of cooperation ‘between governments.
o Decision making power is vested in bodies composed of governmental
representatives. All decisions must be endorsed by all participating states.
o Most forms of international cooperation
2. Supranational decisions may be adopted following a majority vote and thus do not need the
acceptance of all participating states. These organizations are far less dependent upon the
goodwill of the participating states. Their bodies are independent, and their decision-making
process is one of qualified majority voting, rather than unanimity.
o Decisions can be made which bind all participating states, including those which did
3
, not vote in favor. As such, supranational cooperation requires participating states to
give up part of their sovereignty.
EU: unique and complex structure, which is a result of its organic and incremental development.
Within its historical development, 3 major phases:
- Phase 1: three supranational European Communities, as well as intergovernmental
cooperation within the framework of European Political Cooperation
- Phase 2: the structuring of different tracks of integration and further development thereof
within the so-called pillar structure. That structure maintained the distinction between
supranational and intergovernmental cooperation
- Phase 3: The reshaping of the EU towards its current form. The EU has now abandoned the
pillar structure. The phased development explains the mixture of supranational and
intergovernmental aspects, which is so typical of today’s EU
Phase 1:
Origin supranational European Communities = counter reaction against weak intergovernmental
nature of COE
Setting up of the ECSC
ECC and EURATOM
European Economic Community
realisation of an internal market
- area without internal borders in which the free movement of goods, capital, services and
persons is guaranteed
focus on economic and monetary integration
no competence as regards criminal law
- however: competence to combat fraud against the EC budget on an administrative level
EEC altered by European single act, changed the economic community treaty by introducing new goal
which is realization of new markets
Free movement of persons is also seen as a threat, because free movement of criminals
➔ criminals won’t be stopped by borders no more -> police and judicial cooperation needed
o cross border crime triggered the Schengen idea
1951 – ECSC (European Coal and Steel Community)
- control over these 2 traditional war industries to an independent, supranational body: ‘High
Authority”
- also a ‘Common Assembly’ was installed (later evolve to the current European Parliament)
- basis for founding the two additional European Communities
1957 – EEC (European Economic Community) & EURATOM (European Atomic Energy Community)
- both creations went hand in hand
- Spaak Report foundation for the Treaty establishing the EEC Treaty
o Signed march 1957, but went into force January 1958
o Introducing common market
- EEC provided an approximation of national legislation to the extent that such would be
deemed necessary for the proper functioning of the common market
o Also a common policy for agriculture and transport
o Introduction of a common customs tarrif and a common trade policy vis-à-vis third
states
4
JHA policy areas
asylum, migration, border-crossing …
(judicial cooperation in civil matters)
criminal law/policy – important classification:
- substantive criminal law
- criminal procedural law
- international co-operation in criminal matters
o judicial co-operation
o police and customs (law enforcement) co-operation
‘security’
Principal JHA cooperation levels
Levels
- Council of Europe (hereafter: CoE) (limited unless for EIJHAS course)
- European Union (EU)
- Schengen (including Prüm)
- Benelux, NATO, OSCE, G7/G20, OECD, UN (EIJHAS course only)
- handbook: origin and historical development, institutional structure and functioning, policy,
(selective bibliography)
transversal European JHA integration overview
- during 5 joint classes
- transversal, i.e. cross-level character
o rationale: institutional and policy dynamics are interwoven
o not (entirely) following handbook/paragraph order
530-548
council of Europe – development & mandate
starts after WOII
idea of council of Europe (Churchill) -> to strive for European unity
international Committee of the Movements for European Unity
organization of a congress in The Hague 7 may 1948
goal: to establish a union in Europe
o resolutions calling for an economic and political union that would guarantee
▪ safety, economic independence and social progress
▪ the founding of a consulting assembly chosen by national parliaments
▪ the drafting of e European charter for Human rights
▪ establish a court which enforces the charter through its judgements
5 may 1949: Statute of the Council of Europe was signed in Londen
- intergovernmental character
o political compromise
- Ministers, private assembly, decision-making body -> intergovernmentalism
- Parliamentary Assembly, advisory opinion
- Meetings started and still are in Strasbourg (seat of council of europe)
Supranational cooperation
- COE aims to strive for greater unity between the members
o This aim is achieved by:
▪ Taking initiatives to enhance democracy and the functioning of the rule of law, in
1
, which human rights are respected
▪ Drafting and concluding treaties on themes that concern the societies’ interests
in the Member States and that must enhance cooperation
▪ Promoting and supporting cultural diversity
▪ Structuring and stabilizing the democratic functioning in each of the Member
states
- None of the member states can give up their national sovereignty
o Discussion until a unanimously supported compromise is reached
None of the decisions are made by majority and imposed on dissenting members of the COE
ECHR
= European Convention for Protection of Human Rights and Fundamental Freedoms
- Singed 1950
- First European instrument for the protection of human rights
Few years later: European Court of Human Rights (ECtHR) was set up
The Council’s aspiration of a political and economic union incited several federally oriented countries
to take the initiative and look for ways to establish a stronger partnership
- Robert Schuman suggested uniting the 2 biggest war industries – the coal and steel industry – in a
supranational organization
o Be, Bl, Lu, Fr, D, I signed the Treaty establishing the European Coal and Steel Community
(infra EU) in spring 1951
- From the start democratic values were placed at the heart of the institution.
- The Council of Europe slowly became a ‘watchdog’ for human rights and democracy.
- Influenced by the developing European Society, new priorities such as migration, social exclusion
and discrimination are announced.
today: 46 countries
- Russian Federation: 28 February 1996 - 15 March 2022
o Russia was part of the COE, but bc of their “special military operation” in Ukraine they
were eventually expelled by the Committee of Ministers on March 16th 2022
In both the Committee of Ministers and the Parliamentary Assembly there are observers
Intergovernmental cooperation -> there is nothing above the states (so not supranational)
- Sometimes that’s a weakness
- Members can freely decide to commit or not
- Text is not binding until there is a sufficient number of ratifications (meaning … states need to
move to the state of rattification of the instrument and then it will work?)
- Then they are hard instruments
legal instruments
• conventions, resolutions, recommendation
• conventions: seemingly strong, still weaknesses
broad mandate, including penal matters
judicial co-operation in criminal matters (mother conventions)
judicial co-operation in criminal matters & criminal policy (including aspects of substantive criminal
law and criminal procedural law) regarding specific topics and/or particular offences
council of Europe – judicial cooperation (NK, gwn ter info)
mother conventions in criminal matters
2
, - 1957 European Convention on Extradition | 3 Protocols
- 1959 European Convention on Mutual Assistance in Criminal Matters | 2 Protocols
- 1964 European Convention on Supervision of Conditionally Sentenced/Released Offenders
- 1970 European Convention on the International Validity of Criminal Judgements
- 1972 European Convention on Transfer of Proceedings
- 1983 Convention on the Transfer of Sentenced Persons | Protocol
- 1990 Laundering Convention | Protocol
- 2001 Cybercrime Convention | Protocol
- …
Council of Europe – crime & criminal policy
judicial co-operation in criminal matters /criminal policy with regard to specific topics and/or
particular offences (sometimes part of the JHA acquis)
computer-related crime & criminal procedural law connected with it, corruption, crimes against
humanity/war crimes, criminal policy/justice in general, cultural property, data protection, DNA,
drugs, environmental crime, firearms, intimidation of witnesses/rights of the defence,
intolerance/racism and xenophobia, mediation, prison, road traffic, sanctions, (sexual) offences
against minors, terrorism, (victims of) violence
121-132
EC/EU institutional framework
EC - Treaties Establishing the
- European Coal and Steel Community (1951)
- European Atomic Energy Community (1957)
- European Economic Community (1957) (TEC)
Espace judiciaire Europeén/European Political Co-operation
- between the Member States, outside the formal framework of the European Communities
Treaty on European Union (TEU) (Maastricht Treaty, February 1992)
Amsterdam Treaty (October 1997)
- changes TEC and TEU, integrates Schengen acquis (Schengen protocol)
Nice Treaty (February 2001)
European Constitution (2004)
Lisbon/Reform Treaty (2007) (from TEU/TEC to TEU/TFEU)
EC prepared the way for the EU in the area of justice and home affairs
Origin and historical development European Union
The EU is a result of a combination of different cooperation mechanisms, both intergovernmental
and supranational in nature. There are important differences between cooperating in an
intergovernmental or supranational way.
1. Intergovernmental cooperation is a form of cooperation ‘between governments.
o Decision making power is vested in bodies composed of governmental
representatives. All decisions must be endorsed by all participating states.
o Most forms of international cooperation
2. Supranational decisions may be adopted following a majority vote and thus do not need the
acceptance of all participating states. These organizations are far less dependent upon the
goodwill of the participating states. Their bodies are independent, and their decision-making
process is one of qualified majority voting, rather than unanimity.
o Decisions can be made which bind all participating states, including those which did
3
, not vote in favor. As such, supranational cooperation requires participating states to
give up part of their sovereignty.
EU: unique and complex structure, which is a result of its organic and incremental development.
Within its historical development, 3 major phases:
- Phase 1: three supranational European Communities, as well as intergovernmental
cooperation within the framework of European Political Cooperation
- Phase 2: the structuring of different tracks of integration and further development thereof
within the so-called pillar structure. That structure maintained the distinction between
supranational and intergovernmental cooperation
- Phase 3: The reshaping of the EU towards its current form. The EU has now abandoned the
pillar structure. The phased development explains the mixture of supranational and
intergovernmental aspects, which is so typical of today’s EU
Phase 1:
Origin supranational European Communities = counter reaction against weak intergovernmental
nature of COE
Setting up of the ECSC
ECC and EURATOM
European Economic Community
realisation of an internal market
- area without internal borders in which the free movement of goods, capital, services and
persons is guaranteed
focus on economic and monetary integration
no competence as regards criminal law
- however: competence to combat fraud against the EC budget on an administrative level
EEC altered by European single act, changed the economic community treaty by introducing new goal
which is realization of new markets
Free movement of persons is also seen as a threat, because free movement of criminals
➔ criminals won’t be stopped by borders no more -> police and judicial cooperation needed
o cross border crime triggered the Schengen idea
1951 – ECSC (European Coal and Steel Community)
- control over these 2 traditional war industries to an independent, supranational body: ‘High
Authority”
- also a ‘Common Assembly’ was installed (later evolve to the current European Parliament)
- basis for founding the two additional European Communities
1957 – EEC (European Economic Community) & EURATOM (European Atomic Energy Community)
- both creations went hand in hand
- Spaak Report foundation for the Treaty establishing the EEC Treaty
o Signed march 1957, but went into force January 1958
o Introducing common market
- EEC provided an approximation of national legislation to the extent that such would be
deemed necessary for the proper functioning of the common market
o Also a common policy for agriculture and transport
o Introduction of a common customs tarrif and a common trade policy vis-à-vis third
states
4
