EU External Action in the JHA Domain: A Legal Perspective

Abstract

Despite the importance of the external dimension of the EU’s policy on freedom, security and justice (AFSJ), reaffirmed in the Stockholm Programme, it is not possible to speak of a single ‘AFSJ external policy’; the scope of external action reflects the fragmentation of the subject matter and of course the development of external policy has been affected by the original cross-pillar nature of the AFSJ. The AFSJ lacks an easily identifiable policy objective, although the concept of an ‘Area’ suggests the aim of constructing a new ‘common policy domain’, and there are ways in which we can identify certain common elements in the approach to external AFSJ policy. This chapter seeks to explore some of these distinctive elements; its purpose is not to discuss the EU’s policy priorities or initiatives in the field, but rather to set out some of the particular legal features of external AFSJ policy. First, and most fundamental, is to examine the basis for and the scope of external competence given the limited explicit provision in the Treaties for external action in the field, and the implications of the fact that competence is therefore necessarily implied. Second, this paper will turn to the legal implications of the ‘inter-pillar’ legacy of the AFSJ: the consequences this has had for the types of instrument available to the Union and the legal constraints imposed by the need to ‘police’ the boundary. And finally we will explore the relationship between Union action and Member State action: the possibility of exclusive Union competence and the mechanisms developed to manage shared competence. These features, which have been shaped by its development prior to the entry into force of the Treaty of Lisbon, will shape the post-Lisbon AFSJ for some time to come.