Depillarization and the Shaping of AFSJ
| Author | Janne Salminen |
| Published date | 01 September 2011 |
| Date | 01 September 2011 |
| DOI | http://doi.org/10.1177/1023263X1101800304 |
| Subject Matter | Article |
18 MJ 3 (2011) 275
DEPILLARIZATION AND THE SHAPING OF AFSJ
J S*
ABSTRACT
is articl e concerns the Treaty of Li sbon and its impact on the development of the Area
of Free dom, Securit y and Justice (AFSJ). e background of the study is the discussion
of the so-called pill ar structure of the European Union, its dismantling and the features
of the constitution of the EU Justice and Home Aairs (JH A), which have legitimized it s
characterization as a special eld of integration within the architecture of the Union . e
depillarization is considered to be one of the main achievem ents of the Treaty of Lisbon.
For this reason, the focu s of the article is on the special features of integ ration in the AFSJ.
It is noted that it would indeed be meaningless to characterize AFSJ as a separate eld
of integration. However, there still are rema ins of the features which made it possible
to consider JHA and the third pillar as di erent. Pil lars continue their life in ce rtain
aspects. e AFSJ mode of integration is still ba sed on a rationale of cooperation. Cer tain
possibilities for the dierentiation indicate the same attitu de. Another important point in
the same direction is the status of the individual: for this part the constitution see ms not to
be primarily rights-ba sed.
Keywords: depi llarization; Justice and Home Aai rs; the Treaty of Lisbon
§1. INTRODUCTION
e co operation presently taking place in the eld of Just ice and Home Aairs (JHA)
has risen relatively quickly to the centre of activ ities in the EU. Only with the Treaty
of Maastr icht did it become part of the constitutional foundations of the Union at the
Treaty-level law. Since the entry into force of the Treaty of Amsterdam, cooperation in
JHA has been built up in the form of the ‘Area of Freedom, Security and Justice’ (AFSJ). In
amendments made to the Treaties aer the Treaty of Maastricht, there has been considerable
pressure calling for basic legislation concerning the area. In these processes, the centre of
* Janne Salm inen, LL.Lic., Le cturer, University of Turku, Facu lty of Law.
Janne Salm inen
276 18 MJ 3 (2011)
attention has been the so-called pillar str ucture, in particular, how this structure is linked
with t he possibilities of protecting indiv iduals on the one hand, a nd with the eciency
of the activ ities of the Union on the other.1 As part of this development, the status of the
area h as been strengthened2 and its boundaries claried. Activ ity in t his eld has also
noticeably increased. In other words, the jurisdiction that devolved on the Union through
the constitutional Treaties has been used, and Treaty provisions concerning JHA have
also been applied in cour ts of law. is situation does not seem to be changing.
e ent ry into force of the Treaty of L isbon has meant t he initiation of t he latest
phase in t he development of the AFSJ. In this article t he constitutional foundation t hat
has now formed as the basis for t he AFSJ wi ll be exa mined. e a im is to identify the
distingu ishing cha racteristics of the AFSJ at the present st age of integration and the
framework created for the area throug h the Treaty of Lisbon. However, i n addition to
the changes in t he Treaty provisions as such, t he theme of the article is in pa rticular the
so-called pillar struc ture to describe the architecture of the EU in connec tion with the
legal development of the area. I n this ar ticle, the exam ination of matters related to the
Treaty provisions of the area is carried out above all to investigate whether or not there is
on the basis of the provisions of the present Treaties evidence on the idea of dismantli ng
of the so-called constitutional pilla r structure which was openly expressed during the
preparation of the Treaty of Lisbon and has later been presented as a fait a ccompli.
Making criminal law and police cooperation, which was previously c overed by the
third pillar, a matter of what was previously labelled Communit y policy, and as such part
of the same totality including with other JHA, and at the same time a part of the previous,
more traditional European Community (EC) legal f ramework, t hus disma ntling the
pillar structure in this respect, has been considered one of the centra l achievements of
the Treaty of Lisbon.3 A modication at the Treaty-level is especial ly notable, because the
substance of the area includes internal security and the control of immigr ation, along
with t he practicalities of both the procedu ral law and judic ial administrat ion which in
many respects provide, at least traditionally, the justicat ion for the existence of modern
nation states. Even more i mportantly, these elds are c oncerned with the legal status of
the individua l in a great many ways.4 us, it is now importa nt to evaluate the extent to
1 See S. Peers, EU Justice and Home Aair s Law (2nd edition, O xford University Press, Oxford 200 6),
p. 20–31 and C. Timmerma ns, ‘e Con stitutionaliz ation of the EU’, in P. Eeck hout and T. Tridima s
(eds.), Yearbook of European Law 2002 (Oxford University Press, O xford 2003), p. 1–11 at 8.
2 See J. Monar, ‘e Area of Free dom, Se curity and Justice’, i n A. von Bogdandy and J. Bast (eds.),
Principle s of European C onstitutional L aw (Hart Publ ishing/C.H. Beck Verlag, Munich 2010), p. 551–
585 at 552–553.
3 E.g. M. Dougan, ‘e Convention’s Dra Treaty: Bringi ng Europe Closer to its Lawyers’, 28 ELR (2003),
p. 763–793 and for the Lis bon Treaty M. Douga n, ‘e Treaty of Lisbon 2 007: Winni ng Minds, not
Hearts’, 45 CLMR 3 (20 08), p. 617–703 at 624–625.
4 See espec ially N. Walker, ‘I n Search of the Area of Freedom, Security and Ju stice: A Constitutiona l
Odyssey’, in N. Walker (ed.), Europe’s Area of Freedom, Se curity and Jus tice (Oxford Universit y Press,
Oxford 2004), p. 3–37 at 16–20.
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