Part I:
Introduction
The
gradual deepening of integration in the European Union’s Area of Freedom,
Security and Justice among member states represents a significant step in
advancing the European project. This policy area covers matters as diverse as visa policy,
immigration and asylum, police cooperation and crime prevention. In the
analysis that follows, it will be shown that the processes which led to the
progression of reform in this area demonstrate the influence of Haas’
neo-functionalist perspective. Integration in the Area of Freedom, Security and
Justice has exemplified the role supranational and sub-national actors play in
increasing states’ willingness to relinquish their sovereignty to the
institutions of the European Union, and in fostering the development of a
self-perpetuating deepening of integration. Furthermore, it will be argued that
the Area of Freedom, Security and Justice, as it operates pursuant to reforms
introduced in the Lisbon Treaty, represents a new ‘great project’ capable of
sustaining European integration in a political context- especially in light of
the recent challenges facing the single market.
Part II: The
Neo-functionalist Framework
Neo-functionalism
is a theory which is itself an outgrowth of functionalism, an earlier
theoretical perspective made famous by David Mitrany in the early 1940s. (Moga
797, Rosamond 31)Unlike the prevailing
idealism of the inter-war period, Mitrany believed that the “starting point” in
discussions surrounding the feasibility of integration should be a
determination of what the “essential functions
[of integration] would be” and not a broad, idealistic vision of a perfect international
society (Rosamond 32). Functionalism assumed that rational and peaceful
progress is possible and that “conflict and disharmony are not endemic to the
human condition” (Rosamond 31). Mitrany argued that “to regard the state as a
given, was to impose an unnecessary flexibility when it came to thinking about
how the requirements of human beings could best be served” (Rosamond 33). He
believed that transnational institutions could be better at providing for human
welfare than national governments, and predicted that the creation of these
institutions would lead to a process of “popular loyalty transference” from the
state and to these institutions, which would in turn reduce the potential for
international conflict (Rosamond 33). Functionalism maintains that integration
will proceed within particular sectors, fostering the creation of a web of
“task-oriented agencies,” which ultimately erode state sovereignty(Rosamond 36). According to Mitrany,
integration is governed by the “logic of functional necessity,” which
ultimately leads to the creation of new institutions at the supranational
level, and which in turn serve as venues for collective problem resolution (Meyers 10). In sum, functionalism argues that
it is common interests within a functional area which lead to the building of
community, and that institutions “provide the expertise in those sectors where
integration takes place” (Mazzucelli).
With respect to European integration,
functionalism is often used to explain the processes by which the European Coal
and Steel Community came into being. (Mazzucelli) A functionalist would see the
creation of European institutions such as the High Authority, the European
Parliament, the European Commission and the European Court of Justice under the
Treaty of Paris as a necessary condition for integration to proceed and would
see these institutions as integral to the integration process. (Mazzucelli) As
a result of their creation, policy-making autonomy in the sectors of coal and
steel was taken out of national hands and put into the hands of institutions
above the state, which in turn would serve as forums for deeper cooperation
within those sectors, leading to the transfer of national loyalties to
supranational institutions and an attendant erosion of national sovereignty.
(Rosamond 33)
Neo-functionalism is a theory of regional
integration articulated by Ernst B. Haas in his book The Uniting of Europe (1968),
and it expanded upon Mitrany’s previous conception of functionalism. (Moga 797,
Rosamond 54) According to Haas, integration is not a process which is limited
to the deepening of policy collaboration in a particular functional area.
Instead, Haas argued that integration has a “spill-over” effect in the sense
that integration in a few limited sectors will gradually create an unstoppable
dynamic which will then “spill-over” into other sectors (Mazzucelli). In
addition to this form of “functional spillover,” the spill-over effect can
occur in the form of “political spillover,” according to which “political actors in several distinct
national settings are persuaded to shift their loyalties, expectations and
political activities toward a new centre, whose institutions possess or demand
jurisdiction over the pre-existing national states” and finally,
“cultivated spillover,” which involves the processes by which supranational
institutions themselves seek to “build constituencies” and lobby for a further
deepening of integration (“Chapter 4: Competing Theories” 79, Mdladla 9). Therefore,
the primary players in the forging ahead of integration are actors above the
state (supranational institutions) and below the state (interest groups and
political parties). (Burley 54)
As summarized by Moravcsik, integration
under neo-functionalism proceeds by way of “European institutional momentum,”
“transnational business interest group activity” and “international political
leadership” (67). As national loyalties are transferred to supranational
institutions, common interests become the focal point, and as a result,
integration becomes self-sustaining, self-perpetuating, and self-expanding. It
is important to note that that the neo-functionalist perspective sees
integration proceeding primarily by way of economic interests, but ultimately,
its proponents believe that “the extent of economic integration [will]… make
political integration inevitable at some point.” (“Chapter 4: Competing
Theories” 78, Rosamond 54). In fact, one of the key strengths of the
neo-functionalist perspective have been its ability to “quite explicitly predic[t]
a wid[e] range of possible outcomes”
based on the evolution of “institutions, policies and payoffs”
(Schmitter 4).
Another of the most notable strengths of
the neo-functionalist perspective is its ability to offer a plausible
explanation for the sequential stages of European integration in its early
phases. In fact, neo-functionalism was initially seen as a “grand theory,” as
it was used to elucidate the bases for the transition from the creation of the
European Coal and Steel Community to attempts to create a European Defense
Community, as well as the “blend[ing] of the three Treaties of Rome,” which
included the European Coal and Steel Community, the European Economic
Community, and the European Atomic Energy Community (Moga 799, Harris 5).
Neo-functionalism offered an explanation for the transition in the European
dialogue from security concerns to economic concerns in the 1950s and 1960s,
based on a belief that integration in coal and steel “triggered demands” which
led to the founding of the European Economic Community with the Treaty of Rome
(“Chapter 4: Competing Theories” 79).
However, critics of the theory have
focused on the years that followed. During this time, neo-functionalism made
way for the leadership of Charles De Gaulle, both of France and of Europe, and
the attendant emergence of the “Luxembourg Compromise” led to a renewed focus
on intergovernmentalism, or pluralism- a theory which ultimately emphasized
“lowest-common-denominator” bargaining among sovereign states (Moravcsik 42, 46,
Rosamond 75). As a result, the 1970s are considered to be the “Dark Ages of the
neofunctionalist tenet” (Moga 800). By 1975, Haas declared neo-functionalism to
be “obsolescent” in its ability to describe European integration.(Rosamond 50) In 1986, Andrew Moravcsik
argued that the establishment of the Single European Act (SEA) effectuated a
“complete replacement of neofunctionalism with the intergovernmentalist tenant”
as he saw the SEA as coming into being based on lowest-common-denominator
bargaining between Britain, France and Germany.(Moga 801-2) He argued that the “integration
process did not supersede or circumvent the political will of national leaders;
in fact, it reflected their will” (Moga 802).
In addition to being criticized for
failing to offer a plausible explanation for the historical reality,
neo-functionalism has also been challenged for failing to account for why
states might continue to pursue their own interests and refuse to cede their
sovereignty to supranational institutions. (Schmitter 4) Many have criticized
neo-functionalism for its view of integration as being a largely “deterministic
process,” whereby “a given action, related to a specific goal, creates
situations, which in turn create a further condition and a need for more, and so
forth” (“EU-Studies” 5). Another weakness of the neo-functionalist model is its
“uni-directionality,” or the notion that it does not proffer an explanation as
to why states might backtrack from integration processes to which they have
committed themselves (Schmitter 4). It has also been
challenged on the grounds that it lacks “testable hypotheses” (Schmitter 12).
Yet despite these criticisms, analysis will show that in recent years, Europe
has witnessed the return of the ‘grand theory’ as neo-functionalism has
regained significant explanatory value. The forces that forged together to form
the single market have today ‘spilled over’ into integration in the policies
related to the Area of Freedom, Security and Justice. Rather than simply
“accepting the lowest common denominator,” integration has served to “upgrad[e]
the common interest[s]” of the Member States, thus demonstrating the continuing
validity of the neo-functionalist perspective in explaining the roots of
European integration (Moravcsik 67).
Part III: The
Development of the Area of Freedom, Security and Justice
Matters
related to criminal justice, border security and citizenship have traditionally
been seen as closely-guarded tenants of national sovereignty.(Hall 1) Throughout much of the early stages
of European integration, these matters were largely seen as national
competencies. Prior to the establishment of the Maastricht Treaty, common
policies only existed to the extent they related to the free movement of goods,
capital, labor and services.(Mdladla
27) Early efforts to coordinate justice and immigration-related policy were
predominantly intergovernmental in nature. For instance, the establishment of
the Trevi Group in 1975 as a intergovernmental forum aimed at encouraging
cooperation in counterterrorism efforts “fell outside of the scope of EC law
completely”(Fletcher 4). In 1985, the
“Schengen acquis” was signed by a
limited number of states on an intergovernmental basis, and it aimed to
harmonize policy related to police, border controls and judicial policy
(Mdladla 27-8, Hall 3).
The 1992
Maastricht Treaty which established the European Union represented the first
coordinated effort to bring justice policy into the European institutional
framework. Acknowledging the inefficiencies of intergovernmental
decision-making outside of the European Union, a separate pillar was created
within the EU institutional framework that was to be dedicated solely to
Justice and Home Affairs (JHA), although nevertheless still to be coordinated
on an intergovernmental basis. (Roşioru
12) Pursuant to Article VI of the Maastricht Treaty, most of the policy
areas constituting the third pillar remained under the competency of national
governments, as demonstrated by the Commission’s maintenance of a “shared right
of initiative” with member states, the existence of unanimous voting
requirements in the Council of Ministers, and by the fact that the Court of
Justice lacked jurisdiction in these areas (Roşioru 13-4). However, the creation of the third
pillar represented an important step insofar as it “secured a commitment from
willing member states that they would foster ‘close cooperation’” in the field
of Justice and Home Affairs(Mdladla
28). The insertion of a “passerelle” in the text of Title VI of the Maastricht
Treaty suggesting that the Council could, at its choosing, modify the
institutional framework to further supranationalize six additional policy areas
under the third pillar demonstrated a willingness among states to consider
further supranationalization in these areas at an indeterminate point in the
future (Roşioru 14). Although state interests remained the primary
feature of the Maastricht reforms, the Maastricht Treaty did introduce
qualified majority voting (QMV) in certain matters related to visa policy,
representing an early example of supranationalization and the erosion of
sovereignty in this policy area and perhaps a sign of what was to come.(Roşioru
13)
In 1997,
when the Amsterdam Treaty was signed, the Justice and Home Affairs pillar was
“reshaped” and broadened through the introduction of different categories of
specific policy areas that would fall under the third pillar; categories which
included “freedom,” “security,” and “justice” (Mdladla 28). Even more importantly, the Amsterdam Treaty
paved the way for a relocation of the applicable provisions from Title VI of
the Maastricht Treaty to Title IV of the 1965 European Community Treaty, which
ultimately had the effect of bringing policies in the areas of visas, asylum
and immigration, border inspections, and judicial cooperation in civil matters
into the purview of the first pillar, thereby subjecting such policy areas to
the “Community method” (Mdladla 28-9). Pursuant to the Community method, there
was to be co-decision between the Council of the European Union and the
European Parliament, as well as qualified majority voting (QMV) in these policy
areas. (Mdladla 29) The Amsterdam Treaty vastly extended the scope of European
Union law, and permitted the Court of Justice to issue rulings on matters which
previously would have fallen under the sole competency of national governments.
(Mdladla 29) As a result of this change, the legislative instruments made
available to the Court pursuant to the Community method offered “undisputed
bindingness, justiciability and… even direct effect” of its rulings in the
applicable policy areas. (Roşioru
16) Furthermore, the Amsterdam Treaty brought the Schengen acquis into the European framework, although Ireland,
Denmark and the United Kingdom chose to opt-out of its provisions. (Mdladla 29)
With the Amsterdam Treaty, the Commission was to gain an exclusive right of
initiative in the aforementioned policy areas after a phase-in period of five
years, and the only policy areas which to remain within the third pillar and
which would therefore remain subject to intergovernmental procedures (whereby
member states could unilaterally veto legislative proposals) were police and
judicial cooperation in criminal matters and the combating of racism and
xenophobia.(Roşioru 17, Mdladla
30)
Following
the Amsterdam Treaty was the Nice Treaty of 2003 which removed most of the
remaining requirements mandating unanimous decision-making in the areas of
visas, asylum and immigration, border inspections, and judicial cooperation in
civil matters, and also a result, these policies were placed under the purview
of the Community method. (Mdladla 31) As a result, the Nice Treaty would
subject policies in these areas to co-decision and qualified majority voting.
(Mdladla 31) At the same time, two influential programs paved the way for an
even more significant deepening of integration in the field of Justice and Home
Affairs. These programs were known as the Tampere Programme of 1999 and the
Hague Programme of 2004, and they sought to deepen integration by setting
guidelines and providing a roadmap for future integration in the Area of
Freedom, Security and Justice. ("Hague
Programme” 1) One significant outcome of these initiatives was the application
of the principle of “mutual recognition” to the third pillar, requiring member
states to recognize judicial decisions issued by other member states ("Judicial Co-operation” 1, Herlin-Karnell 2).
With the
Lisbon Treaty, which was signed by heads of state or government in December
2007, and which came into effect in December, 2009, the entire existing pillar
structure was abolished. (Court of Justice 1) As a result, matters previously
under the purview of the third pillar were to be treated pursuant the same
procedures as is legislation relating to the single market. (Council of the
European Union 1) QMV and co-decision were introduced in areas ranging from
legal immigration and residence permits, to judicial cooperation in criminal
matters, Eurojust, non-operational police cooperation, Europol, and civil
protection. (Sieberson 949-51, Donnelly 20) However, in certain matters such as
policies dealing with passports, family law, operational police cooperation,
and the proposed creation of a European Public Prosecutor’s Office, unanimity
in the Council was to remain the rule.(Council
of the European Union 2) With respect to the “right of initiative,” or the
ability to propose new legislation, the European Commission would retain this
right for itself, although a legislative initiative could be introduced by
one-quarter of EU member states in areas including judicial cooperation in
criminal matters, police cooperation, and administrative cooperation (Donnelly
20, Council of the European Union 2). In effect, individual Member States could
no longer unilaterally introduce legislation dealing with policies falling into
the framework of the Area of Freedom, Security and Justice.
Among the most significant effects of the
entering into force of the Lisbon Treaty in the Area of Freedom, Security and
Justice are that it brought the former third pillar entirely into the ambit of
the jurisdiction of the Court of Justice. (Herlin-Karnell 3, Council of the
European Union 1) Previously, the Court retained a very limited scope of
jurisdiction over the matters falling within the third pillar, as such
jurisdiction was limited to those instances where Member States had made a
“voluntary declaration” accepting the jurisdiction of the Court (Court of
Justice 2, Herlin-Karnell 8). Although the Court of Justice will not have the
power to review the “validity or proportionality” of law enforcement operations
carried out by Member States, or exercise responsibilities relating to the
“maintenance of law and order” or the “safeguarding of internal security,” the
Court will have the power to “rule on the validity or interpretation of EU
acts” (Herlin-Karnell 8). It will also have the power to issue preliminary
rulings, or rulings as to whether national legislation is in conformity with
European Union law in advance of an actual dispute arising upon request by any
national court on issues of police and judicial cooperation in criminal
matters, to matters surroundings visas, asylum, immigration and other polices
relating to the free movement of persons upon request by any national court.
(Court of Justice 2) Furthermore, the Lisbon Treaty has loosened the
requirements for individual standing in the Court of Justice, as now so long as
an individual is “directly affect[ed]” by a regulatory act, meaning that the
act entails no “implementing measures” that must be carried out by national
governments, individuals can bring actions against the institutions, bodies,
agencies or offices of the European Union, even if they are not “individually
concerned,” or personally prejudiced, by that particular act. (Court of Justice
4) Finally, the Lisbon Treaty has consolidated the procedures by which
“pecuniary sanctions” or punitive damages can be awarded by the Court, and has
introduced a new procedure by which the Commission can bring actions for
failure to comply with obligations existing prior to the date the Lisbon Treaty
went into effect concerning police cooperation and judicial cooperation in
criminal matters, after a phase-in period of five years. (Court of Justice 4)
With respect to substantive criminal law,
the Lisbon Treaty sets forth that “the European Parliament and the Council may
establish minimum rules concerning the definition of criminal law offenses and
sanctions in the area of particularly serious crime with a cross border
dimension or impact of such offences or from a special need to combat them on a
common basis” (Herlin-Karnell 5). A series of substantive crimes that with
respect to which, the EU was to have legislative competence was set forth by
the Treaty, including terrorism, organized crime and money laundering.
(Herlin-Karnell 5) The Treaty also brought about significant enhancements to
the operational capabilities of Eurojust, an EU agency tasked with
“facilitating the optimal co-ordination of action for investigations and
prosecutions covering the territory of more than one Member State” (“The
History of Eurojust”) The Treaty provided further for the future possibility of
a deepening of integration through the transforming of Eurojust into an office
of a European Public Prosecutor, which would be made responsible for
“investigating, prosecuting and bringing to judgment, where appropriate in
liaison with Europol, the perpetrators of, and accomplices in, offences against
the Union’s financial interests” (Pop 1, Herlin-Karnell 7). It is widely
believed that the establishment of the position of the European Public
Prosecutor is likely in the near future.(Caoimh 4)
Additionally,
the Lisbon Treaty brought about a vast expansion of the mandate of Europol, an
EU-wide police force. (“A Stronger Europol”) Although initially limited at its
founding in 1994 to measures to combat the sale and use of drugs, Europol’s
powers progressively expanded to include “organized crime and terrorism,” and
with the Lisbon Treaty, Europol now finds itself tasked with investigating “all
serious forms of cross-border crime” (“Europol to Become EU Agency”) Pursuant
to the Lisbon Treaty, Europol was brought into the framework of the European
Union as a “formal EU agency” for the first time in its fifteen year history.(“A Stronger Europol”) As a result, the
agency’s source of funding and accountability was shifted from national
governments to the European Union. (“A Stronger Europol,” “Europol to Become EU
Agency”) Along with this change in accountability came a vast expansion of
Europol’s procedural powers, and today the organization has the ability to
“implement” operational actions, carried out “jointly with” national
authorities; marking significant changes to the rules which prior to the Lisbon
Treaty only permitted Europol to “support” and “encourage” operational actions
which were to be carried out solely by national authorities. (“Europol to
Become EU Agency”)
Based on these reforms, it cannot be denied
that since the founding of the European Union with the Maastricht Treaty, there
have been significant advances in integration with respect to the policies now
constituting the Area of Freedom, Security and Justice. Given the strains on
the single market, the magnitude of the financial crises now plaguing the
Eurozone and the attendant declining pace of economic integration, the
political reforms undertaken that have resulted in the deepening of reform in
the Area of Freedom, Security and Justice have firmly established this policy
area as a new ‘great project’ capable of sustaining European integration well
into the future.
Part IV:
Neo-functionalism and the Area of Freedom, Security and Justice
Traditionally,
policies pertaining to criminal law and immigration are decisions which “go to
the heart of national sovereignty” (Reding 3). It has been argued that “few
areas of public policy can be more central to the concept of state sovereignty
than the right to determine a person’s entry on to sovereign territory and the
ability to maintain internal security” (Hall 6). As a result, forging consensus on
policies that were so “inextricably linked to notions of statehood and
sovereignty” has been a “painfully slow and complicated task” (Roşioru, 1).
As the forgoing analysis has shown, there has been a significant degree of
integration, both in depth and scope, with respect to policies comprising the
former area of Justice and Home Affairs. The reforms brought about by the
Lisbon Treaty paved the way for a significant deepening of integration in this
policy area. Analysis will show that these reforms are not attributable merely
to a ‘coming together’ of national interests, but can rather be more properly
attributed to “European institutional momentum,” “transnational… interest group
activity” and “international political leadership,” in combination with the
“spill-over effect,” thus demonstrating the continuing explanatory value of
Haas’ neo-functionalist perspective (Moravcsik 67, Rosamond 59). Unlike
Moravcsik’s conception of intergovernmentalism and its emphasis on lowest
common denominator bargaining among states, integration in the Area of Freedom,
Security and Justice has taken on a ‘life of its own’ as supranational
institutions, sub-national actors and states have become committed to tackling
a collective set of problems with a collective toolset.(46)
The ‘spill-over effect’ has been described
as “the condition whereby policies made pursuant to an initial task and grant
of power can be made real only if the task itself is expanded, as reflected in
the compromises among the states interested in the task”(Mdladla 5). Integration in policy areas
formerly under the purview of Justice and Home Affairs has been seen as “the
obverse side of the coin which is the European Union’s well-established
internal market” (Donnelly 22). Since the 1957 Treaty of Rome created an
internal market characterized by the free movement of goods, services, persons
and capital, and the subsequent establishment of a single market with the 1986
Single European Act (SEA), European integration has proceeded in large part on
the basis of reforms aimed at deepening the economic cooperation among European
states and peoples. (Moravcsik 41) The single market was a “boon to citizens,”
to the extent it permitted them to move goods, money and even themselves across
national frontiers without consequence. (Donnelly 22, Moravcsik 41) Yet, along
with the removal of the barriers which once restricted such movement has come
an increasing desire for “easy access to justice” and greater “protection from
a variety of threats” including transnational terrorism and organized crime (“European Commission Outlines Its Vision,”
Hall 3). The establishment of the single market also created a need for
EU governments to collaborate “ever more closely together to protect physical
security and civil liberties” (Donnelly 22). Furthermore, governments have come
to realize the ineffectiveness of traditional national legal systems in their
ability to cope with the challenges associated with rules of citizenship in the
context of a European Union where individuals may be born in one country,
reside in a second country and work in another. (Donnelly 22) Just as predicted
by neo-functionalism, integration in the economic sector has encouraged and
facilitated integration in the political sector. (“Chapter 4: Competing
Theories” 78, Rosamond 54)
Yet, it can be argued that with respect to
the reforms which have deepened integration in the Area of Freedom, Security
and Justice, governments have played an important but secondary role in forging
ahead with integration. Instead, what has emerged is a combination of factors
that can be analyzed within the framework of the key tenants of
neo-functionalism as outlined by Moravcsik; namely, “European institutional
momentum,” “transnational business interest group activity,” and “international
political leadership” (67).
With respect to European institutional
momentum, the growth in the powers of the Court of Justice demonstrates the
influence of a European institution in advancing the cause of integration in
the Area of Freedom, Security and Justice. By virtue of the fact that the
jurisdiction of the Court was expanded to include the power to issue rulings
regarding policies in this area, the full body of European Union legal
principles were to apply. (Herlin-Karnell 3, Mdladla 29) Among these legal
principles was the “direct effects doctrine,” or the notion that once an EU law
has been established, individuals could raise EU legal defenses and “invoke”
their rights under EU law in national courts (Folsom 76-7, “The Direct Effect of Community Law”). Another
legal principle established by the Court was the doctrine of “supremacy,”
according to which if an EU law and a national law come into conflict, the EU
law will be deemed the higher authority("European
Union Law"). It should be noted that both of these judicial powers were
effectively carved out by the Court itself through earlier case decisions, such
as the Van Gend en Loos case (1963)
with respect to direct effect, as well as
Costa vs. ENEL (1964) with
respect to supremacy. (“The Direct Effect of Community Law”) Although these
cases preceded the reforms in the Area of Freedom, Security and Justice, it can
be argued that by virtue of the expansion of the Court’s jurisdiction to this
area, the application of the Court’s own body of self-defined powers has
contributed to “European institutional momentum” and has furthered the cause of
integration (Moravcsik 67). As an additional example, with respect to proposals
made by the European Commission, proposals to combat human trafficking and
illicit arms trafficking exemplify the enhanced role of the Commission and its
consolidated ‘right of initiative’ pursuant to the Lisbon Treaty and demonstrate
specific efforts being undertaken by EU institutions to advance the cause of
reform in this policy area. (Rosamond 52)
With respect to ‘transnational business
interest group activity,’ it is important to note that neo-functionalism
implies that “political integration is a more or less inevitable side-effect of
economic integration” (Rosamond 52). Although the influence of transnational
business interest groups is more readily apparent with respect to economic
integration, an analogy can be drawn to the coming together of judges,
prosecutors, police officers, and individual litigants as similarly situated
sub-national actors who have “shift[ed] their loyalties” to the European Union
as they seek to realize their common interests (Rosamond 66). As the Court of
Justice has taken on increasing powers and an ever-more expansive role in the
public lives of European citizenries, there has been an attendant increase in
the “personal incentives for individual litigants, their lawyers, and lower
national courts to participate in construction of the…legal system” (Burley
41-76). The establishment of the “European Judicial Network” and of Eurojust
and Europol as EU agencies tasked with enhancing judicial cooperation between
the Member States has led police and prosecutors to transfer their loyalties to
the EU to the extent to which doing so allows them to better attain their
objective of ensuring that “suspected or convicted
criminals” cannot escape from justice (“Activities of the European Union”). In
short, European integration has fostered a transfer of loyalties from the state
to the institutions of the EU, as sub-national actors have increasingly come to
see EU law as offering them a mechanism by which they can advance their
interests.
Finally, international political
leadership has been a significant contributing factor to the furtherance of
integration in the Area of Freedom, Security and Justice. Several influential
leaders have emerged seeking to advance the cause of reform at the EU level.
Among these leaders are Jonathan Faull, the former Director-General for
Justice, Freedom and Security, a charismatic speaker who took a leading role in
planning and organizing the objectives and 170 initiatives of the Stockholm
Programme, a five-year plan commencing in 2010 aimed at continuing the process
of reform in the Area of Freedom, Security and Justice. ("Jonathan Faull on JHA Policy”) Even more recently, Viviane Reding has provided powerful
leadership as she serves as the European Commissioner for Justice, Fundamental
Rights and Citizenship, and has made a powerful case as she seeks to advance a
proposal requiring national authorities to provide individuals suspected of
criminal activity with a copy of the charges levied against them in a language
they can understand, as well as in coordinating data protection policies.
(Phillips 1, Sumner 1) Another influential leader has been Vassilios Skouris,
currently serving as President of the Court of Justice of the European Union.
In addition to presiding over the Court and its various reforms since 2003, Mr.
Skouris has played a role in bridging the fundamental rights of “freedom,
equality and social justice” and the “new fields of activity of the European
Union;” namely, freedom, security and justice. (Skouris 40) Through the efforts of these leaders, a belief
has been advanced that “ends already agreed to cannot be attained without
further united steps” (Moravcsik 45).
Although this analysis has suggested that
neo-functionalism has significant explanatory value, it is not without its
weaknesses in its ability to explain integration within the Area of Freedom,
Security and Justice. As previously discussed, one weakness of
neo-functionalism is that it discredits the role of national governments in
their continuing ability to pursue their own domestic interests. (Schmitter 4)
Some have argued that there is currently “[in]sufficient mutual trust and too
divergent criminal laws between the Member States to justify the application of
a trade based internal market model in the present area,” and the abolishment
of the traditional requirement of “dual criminality” remains an unlikely
prospect (Herlin-Karnell 5). This lack of mutual trust can be evidenced within
the Lisbon Treaty itself, as for instance, its provisions provide that member states
retain the ability to “opt-out” from “sensitive questions” that would “affect
fundamental aspects of a Member States’ criminal justice system”(Herlin-Karnell 4-5). Also, the changes
brought about in EU law pursuant to the Lisbon Treaty do not apply to the
United Kingdom, Ireland and Denmark, which have chosen to opt-out from the
entirety of EU law as it concerns Justice and Home Affairs. (Peers 1) A neo-functionalist
would perhaps see these occurrences as indicative that integration in this area
is not yet complete and that the progress made to date will, over time,
facilitate further integration in this area. Yet because neo-functionalism “predicts automatic integration, has
no testable hypotheses, [and] lacks a rigorous theory,” it does not provide a
firm understanding of exactly when one could expect further integration to
occur (Schmitter 12, 17). However, despite the criticisms of the salient
limitations of the theory, the evolution of Community competence within a
successively broader range of policy areas within the Area of Freedom, Security
and Justice over time demonstrates that its basic predictions, despite their
inability to be subjected to scientific testing, continue to have validity.
Another purported weakness of the
neo-functionalist model is its “uni-directionality,” or the fact that it fails
to explain why states, having chosen to “coordinate their efforts across a
wider range of tasks and delegate more authority to common institutions… decide
to defect from such arrangements” (Schmitter 4). For instance, with respect to
the Area of Freedom, Security and Justice, as a result of negotiations
surrounding the proposed Treaty Establishing a Constitution for Europe, there
was initially broad, unanimous support for the full “supranational governance
of criminal law matters” (Baker 53). Yet by the time of negotiations over the
Lisbon Treaty, the idea of bringing the “whole of the AFSJ fully within
Community competence had become thwarted by the insistence of three States on
securing arrangements for their flexible participation” (Baker 53). Although
the failure to account for states abandoning their prior commitments represents
a salient limitation of the theory, no single theory can be expected to explain
every possible aspect of the integration process. As a theory which endeavors
to explain how integration advances, it is perhaps left to others to examine
the bases as to why disintegration might occur.
Although significant challenges lie ahead
before it can be proclaimed that the European Union has created a single,
unified policy in the Area of Freedom, Security and Justice, it nevertheless
remains clear that the neo-functionalist perspective continues to offer a
cognizable explanation of European integration within this functional area. The
aforementioned initiatives taken over the past several years have contributed
to a regime whereby national governments have increasingly yielded to
supranational institutions. Furthermore, the popular loyalties of sub-national
actors in these policy areas are gradually shifting from national governments
to the European Union. Despite its methodological flaws, neo-functionalism
provides just as compelling of an explanation for integration as it did in the
earlier stages of the European project.
Part V: Conclusion
In closing, the development of the Area of
Freedom, Security and Justice indicates the ongoing influence of the
neo-functionalist school of thought. As presented, the gradual deepening of
integration in this area demonstrates the spill-over effect, as well as the
influence of actors above and below the state in furthering the cause of
reform. As integration in this policy area has progressed, states have found
themselves increasingly less capable of vetoing legislation and overriding
judicial decisions. Although neo-functionalism has significant explanatory
power, its major weaknesses are that it is that it discredits the role of
governments in their ability to advance or stifle further integration, and
fails to explain why states might choose to defect from the processes to which
they have previously committed to. Yet, the forgoing analysis has suggested
that a significant degree of integration has been made possible through the
realizing and “upgrading” of common interests (Moravcsik 67). Today, the European
Union faces significant challenges. With sovereign debt figures, budget
deficits and unemployment levels soaring, the European Union is in need of a
‘great project’ to sustain integration. As has been outlined, a significant
degree of integration has been achieved in the areas of judicial integration,
visa and asylum policy, and justice cooperation. It is without question that
given the significant strains on the economies of the Eurozone, the monetary
union and the single market, further integration in the Area of Freedom,
Security and Justice is a project capable of sustaining the European project
well into the future.
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