Lisbon Treaty & future 1

1. Lisbon Treaty & future 1 Helen Toner

2. 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

3. 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

4. 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

5. 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

6. 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?

7. 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?’

8. 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.

9. 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?

10. 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?

11. 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!?

12. 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’

13. 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’!

14. 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

15. 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

16. 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?

17. 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

18. 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

19. 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

20. 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?)

21. 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?)

22. 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 …

23. 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

24. Outline … Area of Freedom, Security & Justice? From Tampere to Hague & Stockholm Pact on Immigration & Asylum & Stockholm programme – agenda for the future?

25. ‘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)

26. ‘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?

27. Freedom Freedom – freedom of movement as well as fundamental freedoms How far has freedom of movement been truly achieved?

28. 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?

29. 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?

30. 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

31. 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

32. Successes and failures • Has been said that the agenda hasn’t exactly remained totally unfulfilled yet the content remains unfulfilling

33. 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

34. 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

35. 2009 - to the future Pact on Immigration and Asylum 2008 Development of Stockholm Programme Developing agenda for the next years

36. 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

37. 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

38. 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

39. Pact: Border controls Make border controls more effective Continued development of border controls, biometrics, Frontex

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

41. 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

42. 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?

43. 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.

44. 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’

45. Access to Europe in Globalised world Integrated External border management Visa Policy

46. Asylum & migration Europe of responsibility, solidarity and partnership …

47. Migration Consolidating global approach to migration Migration and development In keeping with labour market requirements Proactive policies for migrants and rights Integration

48. 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’

49. 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’

50. Action plan Migration Communication on coherence with other policy areas, Annual reports, developing statistics Global approach, development, labour market, migrant rights, integration, illegal immigration