The role of supranational institutions in EU Justice and Home Affairs

The EUs cooperation in the field of justice and home affairs (JHA) touches upon core functions of statehood, namely safeguarding internal security, controlling national frontiers and providing citizens with justice. Against this background, member states have been reluctant to give the EUs supranational institutions a bigger say in this sensitive policy area. Cooperation has developed since the mid-70s in a range of intergovernmental groups that operated with a high degree of autonomy and secrecy. The Maastricht Treaty first added an intergovernmental Justice and Home Affairs pillar to the EUs treaty architecture, yet preserved the strict unanimity requirement and kept the supranational institutions at arms length. The EUs policy output in this intergovernmental third pillar was strongly criticised for having a negative consequence on the upholding of individual rights, civil liberties and established asylum and protection regimes of member governments, and was believed to disproportionally strengthen policing competencies. Since the Treaty of Amsterdam transferred the policy fields of asylum, immigration, visa, external border controls and civil law matters to the Community first pillar and launched the idea of creating an Area of Freedom, Security and Justice, the EUs policy cooperation took on an entirely new quality and developed a substantial growth dynamic. Interested in if the assumptions about the negative implications of this cooperation should be revaluated in light of the dynamic development of the policy, this project will analyse in a systematic and comprehensive manner the impact of the enhanced competences of the European Commission and the European Parliament on the decisionmaking process and the substance of policy output in the JHA field. Have these institutions been able to take on the role of policy entrepreneurs in this sensitive policy domain or have they rather fulfilled the function of passive agents of member governments ascribed to them by more state-centred theoretical accounts? Has the change of the institutional set-up of EU justice and home affairs cooperation affected the delicate balance between individual rights and security considerations? Relying on the literature on principal-agent relations, the project develops a range of research assumptions on the conditions under which supranational autonomy and influence might be brought to bear and seeks to test them in a comparative case study design. The three JHA issue areas selected for their variance with regard to the hypothesised independent variables are asylum, border controls and police cooperation. The overall research objective is to establish how and under which conditions the Commission and the European Parliament have exerted influence on policy development in the JHA field, and what this tells us not only about the dynamics of decision-making in the Area of Freedom, Security and Justice, but also about the logic of supranational integration more generally.

Access to justice, national security, border controls: justice and home affairs are core areas of national sovereignty. Accordingly, member states were reluctant to give competences to the supranational EU level and initially insisted on inter-state cooperation. The EUs supranational EU institutions such as the European Parliament and the European Commission started to gain more powers only in the late 1990s. This development inspired great hope of numerous human rights and civil liberties groups, which expected the emergence of more liberal EU policies as a result. The extent to which this expectation was fulfilled has now been established in a project funded by the FWF and implemented at the Institute for European Integration Research of the University of Vienna.To answer this question, the project members carried out a systematic analysis of justice and home affairs policies such as immigration and asylum, the fight against terrorism, criminal and civil law and data protection. Numerous interviews with Members of the European Parliament, as well as officials of the European Commission and the member states were effectuated and analysed. In this way, the positions of the EU institutions could be traced through the legislative processes and their shifts over time identified.The project demonstrates that the enhanced competences of the EUs supranational institutions have had less influence on the development of EU justice and home affairs than was widely assumed. Human and civil rights groups had hoped for strong support for their causes, but instead saw in particular the European Parliament move away from its former and often more liberal positions. This is not to say that the empowerment of the EUs supranational institutions has not been of relevance. The enhanced parliamentarian control and more judicial scrutiny have been important to improve the democratic legitimacy of policy-making processes in the Area of Freedom, Security and Justice. Yet the project demonstrates that institutional change does not automatically result in policy change. The era of inter-state policy-making has left deep marks on todays Area of Freedom, Security and Justice. The dominant role of member states at the time when most pillars of EU justice and home affairs policies were defined has allowed setting standards that have proven difficult to modify for the newly empowered supranational EU institutions. If policy change was to take place, it often came in reaction to rulings of the Court of Justice of the EU. Overall, the FWF project thus showed that the institutional change did not so much alter the direction of EU justice and home affairs policies but rather the way how supranational EU institutions such as the European Parliament has come to understand this field. Accordingly, the project offers unique insight into the dynamic development of an EU policy and, therefore, into the potential impact of EU institutions on the life of EU citizens as well.