Small steps towards a comprehensive approach after Lisbon

Date01 March 2018
AuthorElodie Sellier
Published date01 March 2018
DOI10.1177/2032284418761070
Subject MatterArticles
Article
Small steps towards a
comprehensive approach
after Lisbon: The Common
Foreign and Security Policy
and the fight against terrorism
Elodie Sellier
Universite
´libre de Bruxelles, Belgium
Abstract
This articleexamines the changes brought aboutby the Lisbon Treaty (LT) in the overall institutional
architecture of the European Union’s Common Foreign and Security Policy (CFSP), alongside their
impact on the operation of the internal–external nexus in counterterrorism (CT) policies. It argues
that the inclusionof CFSP actors in the making and implementation processof CT policies eased the
legal, institutional and policy boundaries between the CFSP andthe field of Justice and Home Affairs
(JHA). This is despite the specific status granted to the CFSP in the Treaties, the former remaining
subject to intergovernmental procedures and unanimity in decision-making, even after the strides
towards the ‘communautarization’ of policies achieved by the LT, in Police and Judicial Cooperation
in Criminal Matters in particular.Central to the analysis is the interplay and division ofcompetences
between ‘new’ CFSP actors endowed with a coherence mandate, such as the European External
Action Service andthe upgraded office of High Representative, and ‘old’, pre-Lisbon,CT actors, JHA
structures and member states in particular. This article finds that the involvement of the CFSP and
more particularly its defence component, that is, the Common Defence and Security Policy, to
realize CT objectives ‘affected’ the very content of foreign and security policies and heralded a
process of ‘judiciarization’ of CSDP missions deployed in third countries resulting from the inte-
gration of criminal justice and law components in their mandate. The article concludes that the
ensuing blurring of frontiers between the realms of CSDP and JHA raises fundamental rights con-
cerns as to the judicial remedies available to individuals suspected or accused of terrorist activities.
Keywords
CFSP, counterterrorism, AFSJ, Lisbon Treaty, coherence
Corresponding author:
Elodie Sellier, Centre of European Law, Institute for European Studies, Universite
´libre de Bruxelles, 39, av. F.D. Roosevelt -
1050 Brussels, Belgium.
E-mail: elodie.sellier@ulb.ac.be
New Journal of European Criminal Law
2018, Vol. 9(1) 109–137
ªThe Author(s) 2018
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DOI: 10.1177/2032284418761070
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Introduction
The scourge of terrorism on European soil has posed an immediate challenge to the European
Union (EU): Classic distinctions between internal and external security no longer apply to the fight
against terrorism. Though, arguably, exter nal counterterrorism (CT) policies could have been
operationalized through the further development of the external dimension of Justice and Home
Affairs (JHA), the EU has devoted particular attention to the specific role of the Common Foreign
and Security Policy (CFSP). Shortly after the Charlie Hebdo attacks of January 2015, the conclu-
sions of the Foreign Affairs Council (FAC) meeting of 9 February 2015 called for a ‘mainstream-
ing’ of CT into EU foreign policy and highlighted the need for enhanced coordination between
internal and external action on the one hand, and national and supranational actors’ action on the
other hand.
1
The Conclusions feed into an impressive amount of programmatic documents
acknowledging the ‘indissoluble link’
2
between CT and the CFSP.
3,4
However, the practical results of the EU’s recognition of the internal–external security nexus
have been unimpressive. A cursory glance at the pre-Lisbon commentary concerning the inclusion
of foreign policy in the fight against CT reveals that coherence problems, in the form of turf wars
between the Council and the Commission,
5
have been rife, alongside the difficulties of coordinat-
ing positions and actions across the fragmented pillar structur e inherited from the Maastricht
Treaty. With these caveats in mind, much hope was placed in the Lisbon Treaty (LT) as a possible
breakthrough in the EU’s longstanding issues of coherence. The rationale for the LT was indeed to
‘complete the process started by the Treaty of Amsterdam and by the Treaty of Nice in order ...to
improve the coherence of (the EU’s) action’.
6
But then again, the LT’s pledges to abolish the legal
and institutional boundaries of the post-Maastricht compartmentalized structure and make the
Union’s external action more ‘coherent’ failed to erase completely the fragments of the Second
Pillar that still percolate beneath the surface of current Treaties. Whereas the much sovereignty-
sensitive former ‘third’ pillar on Police and Judicial Cooperation in Criminal matters was trans-
ferred to the Treaty on the Functioning of the European Union (TFEU),
7
the CFSP resisted
comparable processes of ‘communautarization’ and ‘Lisbonization’ that underpinned much of the
realm of JHA
8
and EU criminal law in particular,
9
thus remaining isolated in the Treaty on the
1. Council of the European Union, Council Conclusions on Counterterrorism 6048/15, 9 February 2015, p. 3.
2. Conclusions and Plan of Action of the Extraordinary European Council, Laeken, 21 September 2001, p. 3.
3. See, inter alia, European Council, Presidency conclusions of the Tampere Council, 15 and 16 October 1999; European
Security Strategy, 2003; Conceptual Framework on Terrorism, 2004.
4. See European Commission, A strategy on the external dimension of the area of freedom, security and justice, Brussels,
12 October 2005, COM(2005) 491 final, on p. 7: ‘External action concerning freedom, security and justice is at times
cross-pillar, touching on fields of Community competence, but also the CFSP’.
5. SeeJ. Argomaniz,The EU and Counter-Terrorism:Politics,Policyand Policiesafter 9/11 (New York:Routledge,2012), p. 1.
6. The Preamble has to be understood in conjunction with the mandate for the 2007 Intergovernmental Conference, which
was asked to enhance ‘the efficiency and democratic legitimacy of the enlarged Union, as well as the coherence of its
external action’. IGC 2007 Mandate, Council doc. 11218/07, 26 June 2007, p. 2.
7. Special legislative procedures are retained for sensitive matters, that is, the European Public Prosecutor (Article 86
TFEU), police operations (Article 87(3) TFEU), cross-border police operations (Article 89 TFEU) and family law
(Article 81(3) TFEU).
8. S. Wolff, The Mediterranean Dimension of the European Union’s Internal Security (New York/London: Palgrave
macmillan, 2012), p. 72.
9. See H. Labayle, ‘The Institutional Framework’, in V. Mitsilegas, M. Bergstro¨m, T. Konstadinides eds., Research
Handbook on EU Criminal Law. (Cheltenham: Elgar Publishing, 2016), p. 42.
110 New Journal of European Criminal Law 9(1)

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