Abstract
The European Union as an Area of Freedom, Security and Justice represents a very timely intervention in the field as edited by Maria Fletcher, Ester Herlin-Karnell and Claudio Matera. The book comprises a very large number of distinguished scholars engaging in analysis of key issues in the Area of Freedom, Security and Justice (AFSJ) of the European Union (EU). It encompasses a general first part, followed by a part on EU criminal law and a part on EU border controls, immigration and asylum paradigms. It also comprises a Part IV on civil law cooperation, Part V on the external dimension and impacts of the AFSJ and a final Part VI on the legal challenges of the network governance within the AFSJ. The book thus comprises 19 chapters of immense significance for the study of the AFSJ and symbolises very clearly since its publication in 2017 in hardback the extraordinary growth of the AFSJ.
The AFSJ is a study in evolution of the EU as it broadens and deepens, and the emphasis upon, by a large range of contributors, fundamental rights is very telling. It remains a very interesting case in point, the humanisation and individualisation of rights, and their complex placement within the AFSJ as a space. Moreover, it is a curious question of nomenclature and denomination where political scientists largely do not focus upon the AFSJ and instead focus upon Justice and Home Affairs. It is also interesting to see so many distinguished legal scholars focusing in broad measure up on the larger policy space. The AFSJ has continued to have a very broad number of interesting initiatives, for example the significant range of human rights for the individual in criminal procedure after the Treaty of Lisbon, as Chapter 8 ‘Legislating for human rights after Lisbon: the transformative effect of EU measures on the rights of the individual in criminal procedure’ by Valsamis Mitsilegas outlines, or the European Public Prosecutor for a certain number of EU Member States, as Gerard Conway outlines in Chapter 7, entitled ‘The future of a European Public Prosecutor in the AFSJ’.
Several scholars are much more concerned about the impact upon individual rights and the humanisation of the AFSJ, for example Dorota Leczykiewicz in Chapter 4 ‘Human rights and the AFSJ’, Anneli Albi in Chapter 6 ‘The European Arrest Warrant, constitutional rights and the changing legal thinking: values once recognised lost in transition to the EU level?‘. The vast majority of authors describe very imperfect regulatory and policy spaces where individual rights come in conflict with much of institutional challenges, for example: as to Europol, the European Police College, the Judicial Cooperation Unit of the EU (Eurojust) and the European Public Prosecutor’s Office, examined in Chapter 17 (entitled ‘Where does Eurojust lie in the constitutional architecture of the AFSJ?’ by Irene Wieczorek), regarding Frontex in Chapter 9 ‘Frontex and the European system of border guards: The future of European border management’ by Jorrit Rijpma, and as to the Common European Asylum System in Chapter 11 ‘The Common European Asylum System: Where did it all go wrong?’ by Cathryn Costello and Minos Mouzourakis. Ultimately, the AFSJ has evolved, ‘Europeanised’ and ‘Lisbonised’ itself in a very short period of time but it continues to have very awkward competitions and constitutional structures that limit its full realisation. Many of these are very understandable but in some senses are also the AFSJ’s great challenges. There are exceptional birds-eye view contributions in this edited volume by those such as Steve Peers in Chapter 2 ‘The rise and fall of EU justice and home affairs law’ or Massimo Fichera in Chapter 3 ‘Sketches of a theory of Europe as an AFSJ’, outlining the complexity of the evolution of the space.
There is no doubt that many of the pieces identify tremendous shortcomings in law-making, such as in the field of cybercrime in Chapter 18 ‘The EU’s fight against cybercrime: Policy, legal and practical challenges’ by Helena Carrapiço and Benjamin Farrand, or family reunification in Chapter 10 ‘The rule of life: Family reunification in EU mobility and migration laws’ by Dora Kostakopoulou and Ariadna Ripoll Servent, or in Chapter 11 by Costello and Mouzourakis on the Common European Asylum System, provocatively entitled, ‘Where did it all go wrong’. There is also no doubt that so many Member States retain very significant powers and ideologies on the future of the AFSJ, which often clash with those of the EU. Some time ago, a very famous piece by Sionaidh Douglas Scott questioned the freedom of the AFSJ, a reflection which continues on in much scholarship as the legislation and case law evolves. It has often been mentioned that the AFSJ prioritises everything except the individual over everything except the human, the freedom or the justice. It remains to be seen quite how much this critique is the case going forward in future iterations of the AFSJ as a law-making space.
The edited volume testifies to the depth of law-making to its breath and the institutional reactions to all of this, which are mostly mixed. There are many important, though, external dimensions of the AFSJ policies and institutional governance issues, which are quite problematic but are brought well to light by contributors. For example, Sara Poli in Chapter 15, ‘The EU anti-terrorism policy in its external AFSJ dimension: democratic accountability and human rights protection in the post-Lisbon Treaty era’, specifically, as the title suggests, on the antiterrorism policy in its external AFSJ dimension, or just generally in Chapter 14 ‘An external dimension of the AFSJ? Some reflections on the nature and scope of the externalisation of the AFSJ domains’ by Claudio Matera on the overall external dimension of the AFSJ.
Ultimately, the legal issues and legal challenges of the AFSJ will only be resolved through institutional governance and judicial control. These issues are well brought together in Chapter 19 ‘Entrenching the AFSJ: Questions of institutional governance and judicial control’ by Henri De Waele. The AFSJ has been the subject of a massive amount of CJEU case law in recent times. This proliferation of case law suggests that going forward there is much more likely to be a legal resolution to these issues as the Court assumes a much more developed and evolved jurisdiction. It also assumes a position of special authority upon such questions which go far from EU’s laws original economic orientation and take issues such as the development of the Charter of Fundamental Rights or the relationship of the AFSJ with international law significantly further. Overall this book can certainly be recommended for those engaging in a study of the AFSJ and no doubt much has evolved since 2017, with much more to come.