- The Commission takes a step back in the fight for the Rule of Law
- Felix icitezew.tkn - Felix M. Lehrmann
- Table of contents
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Crime within the Area of …, Christina Eckes. Such an Area sounds like a present anyone would want to receive. However, what precisely is the meaning of these promising terms? What are the inherent limitations? What are the constitutional, political, and practical obstacles to establishing the Area in the way the Union envisage it? The establishment of the area of freedom, security and justice poses huge challenges for the Union and its Member States. The identification of joint objectives is difficult and might disenchant those who were inspired by the promising terminology, but even greater constitutional, political and practical difficulties arise when European law is incorporated into national law, when specific and effective cooperation arrangements are set up including those re- quiring exchange of information , when flexible and differentiated integration compartmentalises the Area to a patchwork, in the ex- ercise of parliamentary control, in the treatment of third country nationals, and in the control of minimum standards at all levels of cooperation.
Eckes uva. Such an area of freedom, security and justice sounds like a present that anyone would want to receive.
The Commission takes a step back in the fight for the Rule of Law
What are the inherent limitations of a European area of freedom, security and justice area? What are the constitutional, political, and practical obstacles to establishing this area in the way the Union envisages it? The Union has developed an extensive and complex legal and institutional architecture for the area.
In particular, threats to inter- nal security have been a driving force behind the Europeanisation of the policy fields gathered under this label police and judicial cooperation in civil and in criminal matters, visas, asylum and im- migration. This paper identifies these challenges and discusses a selection in more extensive detail. This two day colloquium gathered a small selection of established scholars as well as young researchers working in the Area of Freedom, Security and Justice.
While the overall aim was to address the most important changes introduced by the Lisbon Treaty in this area, its primary focus was to shed light upon specific substantive areas of Euro- pean constitutional and criminal law, such as freedom of information and data protec- tion, currently ranking high at the EU law-making agenda. The objective was to com- bine up-to-date presentations on main developments in the Area of Freedom, Security and Justice, with critical discussions on the impact of supranational legislation upon the freedom of information and data protection, fundamental rights in general, police co- operation, and public-private cooperation.
The aim is also to create a greater understanding of the true achievement of having reached the existing shape of the area of freedom, security and justice by focusing on the diversities and dif- ficulties that the Union has faced on the way.
Felix icitezew.tkn - Felix M. Lehrmann
This includes in par- ticular the newly conferred powers in the area of EU criminal law. Most of the challenges here identified relate to the area of freedom, security and justice as a whole or have at least broader cross-policy implications. Where any particular issue related to a specific policy only this is pointed out.
Part one sets out a range of internal challenges that the Union faces in its uphill strug- gle to offer its citizens an area of freedom, security and justice. It contains six subsections, each addressing one obstacle to effective cooperation. Part two addresses different external challenges and pressures. It contains three subsections of which each addresses one external obstacle.
Neither of the two parts gives a comprehen- sive account. A conclusion wraps up the discussion and makes tentative suggestions how these challenges should be ap- proached. The first great challenge on the way to establishing an area of free- dom, security and justice is to identify and formulate specific joint objectives.
Immigration and asylum as well as criminal policies are areas where a near consensual agreement on ambitious objectives is very difficult between 27 different constituencies. This has re- sulted in considerable inherent limitations. This might disenchant those who were inspired by the promising terminology. Freedom has a particular meaning in the context of the area. This links the area of freedom, security and jus- tice closely with the core policies of the internal market. On the other hand, the two are 4 Emphasis added. For thinkers of the enlightenment see in particular: Thomas Hobbes voluntary limitation of freedom , Immanuel Kant reconciliation of freedom and po- litical authority , Voltaire intellectual freedom ; and Mary Wollstonecraft freedom of women.
Free movement rights do not exist without protec- tion of political and civil liberties. This is not at all compelling. They do not relate to each other in form of an equation. More freedom does not necessarily equal less security; and more security does not necessarily equal less freedom.
An illustrative example is the surveillance 12 and political exclusion of minorities 13 that has led to alienation from the states they live in.
Additionally, the area of freedom, security and justice comprises policies which are in a particular way subject to different percep- tions and understandings. Freedom and security, and what should be done to achieve them, appear to be open to very different inter- pretations. The prime example is the perception of terrorism.
In Chapter One p. Donohue n 11 above. Within the limited understanding of freedom and from the par- ticular perspective that freedom and security can be and should be balanced, the Union formulates its objectives. These have been comprehensively expressed in the Stockholm programme in De- cember One difficulty remains the reservations of Member States to confer to the Union a meaningful comprehensive competence to regulate not only free movement rights but also the necessary restrictions and guarantees of human rights.
Great constitutional, political and practical difficulties arise when European law is incorporated into national law. See further Part II Section 7 below. Without di- rectly addressing the constitutionality of the framework decision, the Bundesverfassungsgericht discussed the possibility of national bod- ies breaching EU law obligations where compliance is irreconcil- able with the German Constitution.
The German Constitutional Courts sent a clear warning to Lux- embourg. However, it did not rule on the validity of the European framework decision. The above mentioned decision on the Lisbon Treaty could serve as an indication that will consider criminal law a particularly sensi- tive area that deserves greater scrutiny than other areas of law. In the Lisbon Treaty decision, the Bundesverfassungsgericht seized the opportunity to address fundamental issues of the relationship be- tween European and German law.
Table of contents
The Bundesverfassungsgericht listed five particularly sensitive policy areas where European com- petence must be exceptionally well-justified. They are related to the fact that the Union adopts meas- ures in area of freedom, security and justice — particularly in the area of EU criminal law — that impose significant limitations on civil liberties.
The EU has created a network of agencies operating in the area of freedom, security and justice. The link is not as surprising as it may seem. The SitCen has also in the past been focusing on external security. However, there is a growing understanding that internal and external security issues are so closely interlinked that they must be dealt with jointly. It predominantly of- fers assessment of intelligence from the Member States and public sources. Hence, Europe is in the process of establishing an internal intelligence apparatus to collect information about all Europeans.
Europol, Eurojust, Frontex support and strengthen action by the competent authorities of the Member States. Europol strength- ens mutual cooperation in preventing and combating organized crime, terrorism and other forms of serious crime affecting two or more Member States. Article 4. As we will see throughout this paper, the recent conclusion of the SWIFT agreement with the United States of America is an illus- trative example, not only of internal challenges relating to the pro- tection of data and the exercise of parliamentary control in the area of freedom, security and justice, but also of the external pressures to which the Union has to face up.
It will therefore be discussed both in this section and in Section 3. Besides all concerns relating to the protection of the rule of law and data protection, Member States face considerable technical difficulties. In the well-discussed case of Personal Name Record PNR systems the Union has opted to ensure com- pliance of separate national systems. The European Parliament was only consulted on these two policies and on visa lists and visa formats. It does not have the strong supranational Community roots.
This has remained the approach: a political preference pre- vails for cooperation between national systems rather than forcing harmonization through. Leaving national systems unchanged. As is well known, the third pillar was introduced by the Treaty of Maastricht and originally contained all the policy areas that are now part of the area of freedom, security and justice: cooperation in civil and in criminal matters, visas, asylum and immigration.
They were subject to what is commonly called the intergovernmen- tal method unanimity, right of initiative shared between the Com- mission and the Member States. With the Treaty of Amsterdam, parts of the third pillar visas, asylum, immigration and civil law moved into the EC Treaty and became subject to a hybrid form of decision-making with some elements of the Community method but also with some particularities that were rather intergovernmen- tal.
However, this does not mean that the entire area of freedom, security and justice has become subject to uniform rules mirroring the old Community method.
Indeed, even thought the ordinary legislative procedure has been introduced for most policy areas, 53 special procedures requiring unanimity apply to significant number of exceptions. The Protocol on Transitional Provisions provides for special in- terim rules applicable to the pre-Lisbon instruments. This keeps the legacy of the third pillar alive for an addi- tional five years.
The most important shadow of the intergovernmental nature of old third pillar is the fact that the area of freedom security and jus- tice does not correspond to the territory of the Union. The UK, Ireland and Denmark do not only continue to enjoy their pre- Lisbon opt-outs for the areas of immigration, visa and asylum and civil law , but extends it to cooperation in police and criminal mat- ters and for the UK and Ireland to amendments of pre-Lisbon in- struments by which they are already bound.
Hence, the position of the UK, Ireland and Denmark could be summarized as a default opt-out from the area of freedom security and justice with an opt- in possibility in the case of Denmark limited to visa lists and for- mats. It might also make it more difficult for EU citizens to feel that they are living in a European area of freedom, security and justice when it does not apply to the entire territory to which their free move- ment rights apply.
In sum, EU criminal law has become in many ways like any other policy field. At the same time, the pillar structure lives on in form of special decision-making rules in some areas, in form of limited jurisdiction of the Court for pre-Lisbon instruments and in form of the differentiated geography.
See also the following section on differences. Flexible and differentiated integra- tion compartmentalizes the area to a patchwork. On the one hand, Europeanisation is fueled by the desire to advance and the need to address internal security issues. Applied to our example that would mean: The federal administration body stages as a modern organization with efficient work processes, smooth procedures and solid expertise.
The celebrated name can lead to research grants, brighter students, or reputational gains. Legitimacy is strived by an organization towards its institutional environment. The environment term in new institutionalism is also paraphrased with the term of organizational fields , which means every reality the concerned organization acts in and which forms the framework for its actions cp. After all the example of the federal administration body would be reversable, so that it itself becomes an organizational field, maybe for a company.
Finally, it is to say that the new institutionalist environment term should not be confused with the systems theoretic variation of it: Mechanisms like coercive isomorphism allow operative interventions on the institutional environment which shows the biggest difference between the two conceptions.
This brings us to the next term: Isomorphism is the central process for the whole approach. If the myths described above were picked up by an organization and the process continues on and on so that the myths spread, it would be a case of isomorphism, of structural similarity. It is today, for example, an international consensus that administrations legitimate their existence and their actions with expertise and rational proceedings, so that as well in Germany as in Japan or Australia we could find basically similar forms of administrational organizations.
Mechanisms of isomorphism Why Myanmar's military government strives for a constitution Term Paper, 19 Pages, Grade: 2,3. F S Florian Sander Author. Add to cart.
Table of contents Abstract 1. Introduction 2. Isomorphism and de-coupling in Myanmar Historical and present overview Mechanisms of isomorphism in Myanmar 4. Conclusion 5. References Abstract This essay analyzes the question why the military regime of Myanmar recently makes efforts to give the country a constitution, although it used especially the missing of a constitution for a stabilization of its power and would limit it through an installation of a constitution and the included basic rights.
Introduction For the first time after many years the Southeast-Asian country Myanmar, which was called Birma before its official renaming, got back into the Western public gaze in the autumn of New institutionalist theory 2. Sign in to write a comment. Read the ebook. Organisation und Verwaltung Grundrechte in der Weimarer Reichsver II A Soziale Grundrechte oder Freiheitsrec