H1: Schengen and European Union
1. Introduction
1) JHA policy areas
Asylum, migration, border-crossing … (judicial cooperation in civil matters)
Criminal law/policy: different dimensions
o Substantive criminal law: offenses and sanctions
o Criminal procedural law: rules of play (who can investigate, what are
the politics allowed to do…)
o International co-operation in criminal matters
Judicial co-operation
Police and customs (law enforcement) co-operation
‘Security’: shaping a secure society (protect external borders)
2) 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)
3) Council of Europe
a. Development and mandate
1949: Council of Europe was created after WOII (was needed to prevent
another war, to end this types of conflicts)
1950: ECHR | ECtHR: first convention was concluded (on fundamental
freedoms)
Today: 46 countries
Russian Federation: 28 February 1996 - 15 March 2022 (was member
but we excluded them)
Intergovermental ( supernational) cooperation: ≠ European Union!
o UK, Ireland… favoured intergovernmental cooperation France,
Belgium, The Netherlands… favoured supernational cooperation =>
difficult negotiations regarding structure of CoE
o Intergovernmental character: only the Committee of Minsters make
the decisions
o No legislation power: can’t conclude a new convention
o Can be bound by international obligations => is powerless
Observers in the Committee of Ministers: f.e. Japan and US especially
subject to continuous criticism because both countries uphold and execute
the death penalty => we want to convince Japan and US to abolish death
penalty, by threatening to remove their observer status
Legal instruments
o Conventions (can be binding), resolutions and recommendation
(both can never be binding), they can also formulate exceptions
o Conventions: seemingly strong, still weaknesses
o Conventions are also open to non-members of the CoE
Broad mandate, including penal matters
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, Judicial co-operation in criminal matters (mother conventions: most
important ones where we rely on)
Judicial co-operation in criminal matters and criminal policy (including
aspects of substantive criminal law and criminal procedural law) with
regard to specific topics and/or particular offences
b. Judicial cooperation
Mother conventions in criminal matters (we still apply them)
1957 European Convention On Extradition | 3 Protocols
1959 European Convention On Mutual Assistance In Criminal Matters (To
Intercept Abroad) | 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 (Initiate A
Request, Not Urge)| Protocol
1990 Laundering Convention | Protocol
2001 Cybercrime Convention | Protocol
…
c. Crime and 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
4) EC/EU institutional framework
European Union = result of a combination of different cooperation mechanisms,
both intergovernmental and supranational in nature
EC - Treaties establishing the (3 communities)
o European Coal and Steel Community (1951): war industries (coal
and steel) need to be under international control => permanent
peace between the states of Western Europe + supranational
cooperation would simultaneously strengthen the power of the
Western European states regarding Soviet Union’s expansionism in
Central and Eastern Europe => Belgium, the Netherlands,
Luxembourg, Germany, France and Italy signed the Treaty
establishing the European Coal and Steel Community: the 6 states
agreed to give up the control over the war industries to an
independent, supranational body “High Authority” (and a “Common
Assembly”)
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, o European Atomic Energy Community (1957): linked to new
international markets and new posibilities (keeping certain sectors
under control)
Euratom Treaty: aimed to establish the conditions needed for a
rapid development of the atomic energy industry
common policy would be adopted in the fields of research,
safety norms, investments, supplies…
o European Economic Community (1957) (TEC)
Was first example of what would later be considered the
driving engine of the European Union: a deal struck between
France and Germany (French wanted Euratom, Germans
wanted European Economic Community)
Foundation for Treaty establishing the European Economic
Community: Spaak Report (Paul-Henri Spaak) concerning the
creation of a general common market
Realisation of an internal market
Area without internal borders in which the free
movement of goods, capital, services and persons is
guaranteed
Common market: common customs tariff and common
trade policy
meant to strengthen mutual cooperation
Focus on economic and monetary integration
No competence as regards criminal law
However: competence to combat fraud against the
European Community budget on an administrative level
(worst crime of all crimes => they start to push for
some criminal competence)
Free movement of persons also implies free movement
of criminals!
origins of supranational European Communities: being a counter
reaction against the weak intergovernmental nature of the CoE
Merger Treaty: aimed at uniting the 3 separate communities under one,
common overarching structure ‘the European Communities’ (3 community
treaties provide foundation for development of community law, which regulates
full extent of the triangular relationship between member states, community
institutions and private individuals)
Espace judiciaire Europeén/European Political Cooperation
o Between the Member States, outside the formal framework of the
European Communities
o Treaty on European Union (TEU) (Maastricht Treaty, February 1992)
o Amsterdam Treaty (October 1997): changes TEC and TEU, integrates
Schengen acquis (Schengen protocol)
o Nice Treaty (February 2001)
o European Constitution (2004)
o Lisbon/Reform Treaty (2007) (from TEU/TEC to TEU/TFEU)
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, 2. Schengen
1) Origin and historical development
a. Context
Systematic controls at the borders had been lifted, but the control on
persons had not been lifted: free movement for EC citizens required EC
citizenship to be documented at the border => lorry drivers were
confronted with long waiting times at French-German border => both
countries concluded a bilateral agreement in order to gradually abolish
controls on persons at the border (in view of eliminating the remaining
indirect barrier to commercial trans-border transport)
1985 initial agreement
o Extension 1984 FR-DE Saarbrücken agreement
o Gradual abolition checks at the internal border(s)
o = beyond free movement of persons as an EC notion
o Hindering commercial exportation across borders
b. Aims
Lifting internal border controls for persons
o 1990 Schengen Implementation Convention (SIC)
o Distinction between
Intra-Schengen movement = movement within Schengen
area: border controls for persons no longer existed in principle
External border movement = movement in and out Schengen
area: controls were reinforced
creation external border, f.e. to refuse unwanted foreigners
If you only control internal borders, you can’t control
who enters, so you have to move the control to
different spots
Does not prevent at random internal controls
Flanking measures: to support the policy regulating entry of persons into
Schengen area (to make it work)
o Schengen policy short term residence + Schengen visa (short term)
Schengen countries had to establish uniform visa criteria for
foreigners
Later: link with VIS (= Visa Information System)
Allows Schengen countries to exchange visa
information and check if someone presenting himself at
external border of Schengen area possesses a valid
visa to enter
Facilitates issuing of visas + simplifies handling of
asylum applications
Initially only for short term visa, but since 2021 also for
long term visa
o Single member state (first entry) for processing asylum requests
Responsibility for handling asylum applications was put with
the country of first entry => other states confronted with the
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