Area of Freedom, Security and Justice Course number : EUI09/A-6

1. Area of Freedom, Security and Justice Course number: EUI09/A-6 Lecturer:

2. Aims of the lecture • To familiarize participants with the foundations of the Area of Freedom, Security and Justice, • To allow participants to appreciate the importance of AFSJ for countries within the Schengen Zone, • To enhance the knowledge of main pillars of AFSJ, • To facilitate understanding of EU competences and legal instruments employed in the AFSJ.

3. Evolution of Area of Freedom, Security and Justice The legal and institutional framework for Area of Freedom, Security and Justice has evolved gradually, After its creation it formed the so called third pillar of the EU, only to be fully integrated into the mainstream by the Treaty of Lisbon (in force since 2009), Phase I – Treaty of Maastricht (Treaty on European Union), Phase II – Treaty of Amsterdam, Phase III - Treaty of Lisbon.

4. Schengen acquis One of the reasons behind development of AFSJ was approval of Schengen Agreement (1985) and Schengen Implementing Convention (1990), The abolition of border controls was developed outside the European Communities/the European Union, It was incorporated into EU law in 1999 by means of Treaty of Amsterdam, Abolition of border controls meant that closer co-operation was necessary (immigration, co-operation in criminal matters).

5. Evolution of Area of Freedom, Security and Justice Lifting the frontiers between Member States to permit people to pass freely could not take place to the detriment of the security of the population, For instance, crime, terrorism and fraud could not longer be dealt by the Member States acting in a non-coordinated fashion, Some Member States were not happy to oblige, hence a system of complicated opt-outs was developed for Denmark, Ireland and the United Kingdom.

6. Reforms introduced by the Treaty of Lisbon • New legal framework: all relevant provisions governing AFSJ incorporated into TFEU, • Abolition of the Third Pillar governed by different procedures and types of legislation, • Some of the reforms were subject to a five year long transitional period, • Decision-making made more efficient and more democratic.

7. Reforms introduced by the Treaty of Lisbon • Revised powers of: • European Council • European Parliament, • European Commission, • Full jurisdiction of the Court of Justice of the European Union, • Note: involvement of Member States in the evaluation of AFSJ policy implementation, • Note: initiative to propose legislation is shared between the European Commission and the Member States.

8. Article 3(2) TEU ‘The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.’

9. Title V of the TFEU - Chapter 1: General provisions (Articles 67-76 TFEU), - Chapter 2: Policies on border checks, asylum and immigration (Articles 77-80), - Chapter 3: Judicial cooperation in civil matters (Article 81), - Chapter 4: Judicial cooperation in criminal matters (Articles 82-86), - Chapter 5: Police cooperation (Articles 87-89).

10. AFSJ: objectives (Article 67 TFEU) ‘The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States. 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.’

11. AFSJ: objectives (Article 67 TFEU) ‘The Union shall endeavour to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws. The Union shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters.’

12. Substantive elements of AFSJ

13. Immigration (Art. 77 TFEU) • European Union has the competence to adopt legislation on: • the common policy on visas and other short-stay residence permits, • the checks to which persons crossing external borders are subject, • the conditions under which nationals of third countries shall have the freedom to travel within the Union for a short period, • any measure necessary for the gradual establishment of an integrated management system for external borders, • the absence of any controls on persons, whatever their nationality, when crossing internal borders.

14. Immigration (Art. 77 TFEU) • Examples of legislation include: • Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code), • Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code).

15. Immigration (Art. 78 TFEU) • European Union has the competence to adopt legislation establishing a common asylum system comprising of: • a uniform status of asylum for nationals of third countries, valid throughout the Union, • a uniform status of subsidiary protection for nationals of third countries who, without obtaining European asylum, are in need of international protection, • a common system of temporary protection for displaced persons in the event of a massive inflow.

16. Immigration (Art. 78 TFEU) • common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status, • criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection, • standards concerning the conditions for the reception of applicants for asylum or subsidiary protection, • partnership and cooperation with third countries for the purpose of managing inflows of people applying for asylum or subsidiary or temporary protection.

17. Immigration (Art. 78 TFEU) • Examples of EU secondary legislation include: • Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection, • Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted.

18. Judicial Cooperation Art 82(1) TFEU: ‘Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States.’

19. Criminal law Art 83(1) TFEU: EU has the competence to establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis.

20. Criminal law • These areas of crime are the following: • terrorism, • trafficking in human beings and sexual exploitation of women and children, • illicit drug trafficking, • illicit arms trafficking,

21. Criminal law • money laundering, • corruption, • counterfeiting of means of payment, • computer crime, • organised crime.

22. Criminal law • Examples of legislation include: • Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism, • Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, • Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography.

23. Criminal procedure • Article 82(2) TFEU: to the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters the EU can adopt legislation on: • mutual admissibility of evidence between Member States, • the rights of individuals in criminal procedure, • the rights of victims of crime.

24. Criminal procedure • Examples of legislation include: • Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, • Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings, • Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings.

25. European Arrest Warrant Council Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States, The EAW replaced the traditional extradition with a quicker court to court mechanism of surrender of requested persons for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order, The mechanism of EAW is based on the principle of mutual recognition of judicial decisions with very limited grounds for refusal.

26. Case law: seminal examples • C-105/03 Criminal proceedings against Maria Pupino, • C-579/15 OpenbaarMinisterie against Daniel Adam Popławski, • Joined Cases C-404/15 and C-659/15 PPU PálAranyosi and Robert Căldăraru v Generalstaatsanwaltschaft Bremen, • C-399/11 Stefano Melloni v Ministerio Fiscal.

27. Judicial Co-operation in Civil Matters • EU judicial co-operation in civil matters is based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases, • Art. 81 TFEU: EU can adopt legislation on: • the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases; • the cross-border service of judicial and extrajudicial documents; • the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction.

28. Judicial Co-operation in Civil Matters • cooperation in the taking of evidence, • effective access to justice, • the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States, • the development of alternative methods of dispute settlement.

29. Judicial Co-operation in Civil Matters • Examples of secondary legislation include: • Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, • Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, • Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).

30. Specialist AFSJ management bodies • Europol (police cooperation), • Eurojust (judicial cooperation in criminal matters) • CEPOL (European Police College), • EU Fundamental Rights Agency, • European Monitoring Centre for Drugs and Drug Addiction, • EU Border Agency (Frontex), • European Asylum Support Office, • eu-LISA (EU Agency for the management of large-scale IT systems in the AFSJ).

31. ASFJ and the EU-Ukraine Association Agreement Title III covers the following areas of cooperation: • the rule of law and respect for human rights, • personal data protection, • mobility of persons covering mobility and treatment of workers, migration, asylum as well as border management, • prevention and fight of crimes (money laundering, terrorism, fight against illicit drugs, corruption), • judicial cooperation in civil and criminal matters.

32. EU-Ukraine Visa Facilitation Agreement • The Agreement sets out special facilitations which are applied to the citizens of Ukraine related to: • fees for processing visa applications (35 euro), • timeframes for processing visa applications (10 days in regular cases and 2 day in cases of urgent character) • simplified procedures for some categories of travellers such as, in particular, the list of supporting documents regarding the purpose of the journey, the criteria for issuance of multiple-entry visas.

33. Visa Liberalisation Dialogue with Ukraine The decision to transfer Ukraine to the list of third countries whose nationals are exempt from visa requirement  came into effect on 11 June 2017. Since then, the visa obligation for citizens of Ukraine who hold a biometric passport and want to travel to the Schengen zone for a short-stay was abolished.

34. Things to remember • Area of Freedom, Security and Justice has been developing incrementally since mid 1980s, • It is an area of constant tensions between the Member States, especially when it comes to migration, • EU criminal law has witnessed a rapid development since entry into force of the Treaty of Lisbon, • Judicial co-operation in civil matters is of equal importance for everyday commercial practice, • Association Agreement provides a general co-operation between the EU and Ukraine in Justice and Home Affairs matters.