08 February 2023
Since the Amsterdam Treaty of 1999, various crises have served as a pretext for expanding EU security structures and the powers of repressive authorities. Politically motivated human rights abuses remain the order of the day and have been exacerbated by the recent “migration crisis” at the EU's eastern borders.
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This article was originally published in CILIP 128 (March 2022) as 'Die Europäische Union und ihre Krisen'
In 1992, the Maastricht Treaty turned the European Community into the European Union. Steps to improve cooperation in the area of justice and home affairs (JHA) followed: the establishment of Europol (for which the first measures had already been taken before Maastricht), and measures on extradition, corruption, visa requirements, residence permits and much more. Behind the scenes, the member states in the Council held confidential talks to improve coordination and step up joint activities, including a EU-US “partnership”.
JHA policy was shielded from effective parliamentary and democratic control by a “third pillar” of EU law (the first pillar dealt with EU economic policy and the second with foreign policy; in the second and third pillars member states played a dominant role).  There was therefore little to no counterweight to the demands of the interior ministries, police and border authorities, which were responsible for the development and coordination of JHA measures and whose perspective was primarily focused on security.
From Maastricht via Amsterdam to Tampere
In 1995, the Amsterdam Treaty created the institutional foundations for the forthcoming eastward enlargement of the EU. Legislation on asylum, border controls, visas and judicial cooperation in civil matters was moved from the third to the first pillar, giving the European Parliament (EP) co-decision powers alongside the Council. From then on, the EU was considered an “area of freedom, security and justice” (AFSJ), in which the free movement of people would be guaranteed by the abolition of controls at internal borders and compensatory measures with regard to external borders, asylum, migration and the prevention of and fight against crime.  At that time, the intelligence-collating centre INTCEN (EU Intelligence Centre, then known as SITCEN or EU Situation Centre), which evaluates information from national secret services and other authorities, was incorporated into the EU architecture together with the EU military staff.  INTCEN plays a key role alongside Europol in producing EU-wide “threat” assessments on terrorism and security matters.
The development of the ASFJ was driven by five-year plans, the first of which was adopted at the 1999 European Council in Tampere, Finland.  The Council conclusions containing the plan dealt with what are by now well-known topics: a Common European Asylum System (CEAS), the fight against crime, mutual recognition of court judgments, greater integration of JHA activity in foreign policy measures, and so on. The Tampere conclusions are an example of policy making dominated by police officials and interior ministries.  While earlier approaches accepted that asylum and immigration were “distinct areas, requiring different approaches and solutions,”  the emphasis was now on the “separate but closely related issues of asylum and migration”.  This also laid the groundwork for including phenomena such as terrorism, travel, hooliganism and political protests within the purview of JHA policy.
Terrorism, migration and asylum
The “war on terror” after 11 September 2001, followed by attacks on European soil in Madrid (11 March 2004) and London (7 July 2005) led to Islam being linked to terrorism in the political and popular imagination, leading to fear-mongering against ethnic minorities and migrants. “Security” again figured prominently in the EU's November 2001 proposals for a “common policy to combat illegal immigration”  and formed the basis of anti-terrorist measures taken in response to the attacks. This included a far-reaching definition of terrorism, a roadmap for “anti-terrorist proofing” in asylum and migration policy, a common list of banned organizations and the expansion of police and judicial cooperation.  At the same time, the “war on terror” also offered armaments companies lucrative opportunities to market weapons-capable technology for “internal security”. 
The 2005 Hague Program reaffirmed the link between terrorism, migration and asylum.  It said that “liberty, justice, the security of external borders, internal security and the prevention of terrorism should therefore be regarded as an indivisible whole for the Union as a whole.” The program limited the evaluation of certain measures by excluding policy decisions. The limitation of the evaluation to “the functioning of the measure” and the search for “solutions to problems” in its implementation prevented subsequent retraction or even possible changes in the approach of the measures.
New EU legislation in the field of justice and home affairs gave state authorities unprecedented powers, reinforced by opportunities for cooperation and the principle of assumed mutual trust between state authorities, such as mutual recognition of judicial decisions and police cooperation in criminal matters. These developments were driven by initiatives to improve legal assistance, a cornerstone of the AFSJ that would also be extended to the US. 
The Aznar Protocol: a prime example
The principle of mutual trust among EU member states is also at the root of systemic flaws in JHA policy. In the late 1990s, Spain’s then Prime Minister José María Aznar proposed that members of the Union should not grant asylum to citizens of other member states, as democratic standards and EU membership per se guaranteed that there were no human rights violations or persecution by state authorities in those states. This breach of the norms of the Geneva Convention, which require an assessment of asylum claims on the basis of individual circumstances, was eventually incorporated into EU law by Protocol 24 of the Amsterdam Treaty. Accordingly, it is impossible “that an asylum application from a national of a Member State can only be considered or approved for processing by another Member State.” 
Thus, the Aznar Protocol heralded a shift from earned to assumed trust among member states, undermining the right to asylum and guaranteeing member states’ support (by non-interference) in repressive efforts. Aznar's proposal was primarily intended to ensure state prosecution of ETA, since some of its suspected supporters or sympathizers had been granted asylum in other member states (such as France during Mitterand's presidency from 1981-1995). However, the assumption that EU countries are fundamentally free of persecution also created a precedent for a later joint list of “safe third countries” to automatically reject asylum applications from the countries included on the list.
Troublemakers and Prüm
Counter-terrorism in a crisis context and the indefinite emergency response that followed did not happen in a vacuum. Just as ethnic minorities (including EU citizens) became potential suspects because their appearance could be taken to indicate a potential irregular migration status, the term "troublemaker" came to affect groups ranging from activists and football hooligans, to people who have alternative lifestyles or use illegal substances.
Prior to 2001, there were already checks on persons and travellers for security purposes related to cross-border sporting events and political gatherings, including the prior exchange of information on "persons of interest" between authorities. The "anti-globalization movement" of the time, which also warned of an impending economic crisis, was viewed as a particular security threat. This became clear at the G8 summit in Genoa in 2001, when the Italian authorities refused entry to the country to 2,093, often with flimsy justifications.  This was the prelude to a police crackdown on protesters that became known as the “suspension of democracy,” and followed by repeatedly-renewed plans to expand the use of the Schengen Information System or other databases (such as the European Police Register, EPRIS, which remains under construction) to monitor demonstrators as "troublemakers". 
The Prüm Treaty, signed in 2005 by Belgium, France, Germany, Luxembourg, the Netherlands, Austria and Spain, ushered in a new era of police cooperation. The seven governments agreed to interrogate fingerprints and DNA records between national authorities to combat serious crime. In the Council they did not previously receive sufficient support for a central EU DNA database. Within a short period of time, this decentralized initiative at EU level was incorporated into the EU legal framework as the “Prüm Decisions”.  Now, 16 years later, the Commission also wants to include facial images in an expanded “Prüm II”, create a central router for queries and connect the system to the EU’s ‘interoperable’ policing and immigration databases. The interoperability project, implemented largely by the Agency for the Operational Management of Large-Scale IT Systems (eu-LISA), seeks to merge “identity data” from all biometric-based EU databases in a ‘Common Identity Repository’ and make them searchable via a ‘European Search Portal’. 
The bubble bursts
In 2008, the economic bubble that had arisen as a result of years of debt-driven speculation on the international financial markets burst. The EU imposed severe austerity measures, hitting the so-called “PIGS” (Portugal, Ireland, Greece and Spain) particularly hard. The EU ‘Fiscal Pact’ agreed in 2011 required member states to introduce constitutional requirements to limit their deficits. Angela Merkel remarked at the time that these “debt brakes” were “binding and valid forever” and could never be changed, even with a parliamentary majority. 
Despite protests, strikes, unrest and occupations, the member states were able to enforce the “budget discipline” demanded by the “troika” made up of the Commission, the European Central Bank and the International Monetary Fund. Police violence against protesters and striking workers was widespread, and extraordinary legal measures restricted civil liberties, particularly in Spain and Greece. 
The response to the financial crisis revealed the anti-social nature of the economic and social policies being pursued by EU institutions and governments. It was also an example of the limits of “democracy” at EU level – only in Ireland were was there a referendum on the constitutional changes required by the fiscal compact.
From The Hague to Lisbon and Stockholm
Before the Lisbon Treaty came into force in 2009, the EU hurriedly passed many legislative initiatives that had been discussed for a long time. This was followed in 2010 by the Stockholm Programme, the last five-year plan for the AFSJ.  “The EU has already embarked on a dangerous authoritarian course, introducing militarized borders, mandatory proactive surveillance systems and an increasingly aggressive external security and defence policy,” warned the European Civil Liberties Network (ECLN).  “Ongoing discussions among EU policymakers suggest that this approach will deepen and broaden over the next five years.”
The network was right. The dynamics described remain a key feature of the JHA area, from extensive EU databases and surveillance activities, the use of drones and automated entry/exit systems for border control purposes and passenger profiling, to joint EU deportation flights and EU military patrols in the Mediterranean.
The Lisbon Treaty increased judicial control by the European Court of Justice by incorporating the EU Charter of Fundamental Rights and Freedoms into EU law, and promoted transparency and parliamentary debate on legal acts through the legislative role of the EP. The late Heiner Busch nevertheless scoffed at the EU's democratic deficit and masterfully described the path dependency and structural imbalances in JHA policy and the common market after the Dutch and French parliaments adopted the constitution that had been rejected by voters in referendums, as the Lisbon Treaty. 
With the Lisbon Treaty, a “Standing Committee for Operational Cooperation in the Field of Internal Security” (COSI) was created in the Council. The Stockholm Program assigned this secretive body the task of developing, overseeing and implementing the “EU Internal Security Strategy” (ISS). The scope of “internal security” was extended to include road traffic accidents as relevant; “shoplifting” and “organized pickpocketing” were added in 2010 when the Council asked Europol to target “mobile (itinerant) criminal groups.” The initiative was directed against Sinti and Roma. After France was reprimanded by the Commission for discrimination, new wording was adopted. 
The Stockholm program included a “principle of availability” to apply to information held by authorities for public security purposes and can be seen as a first step towards developing “interoperability” between EU databases,  which ultimately undermines a fundamental pillar of data protection: that personal data should only be used for the purpose for which it was collected.
Politics, people and borders
After Lisbon, in line with the 2005 “Strategy for the External Dimension of the EU Area of Freedom, Security and Justice,”  the externalization of JHA policies has been promoted to combat “threats” (such as irregular migration), before they reach the EU territory. This meant the funding, training and reinforcement of externalized coercive measures in third countries: “hard” borders for people from non-EU countries, “soft” borders for police and border cooperation.
While the Lisbon Treaty gave the EP co-decision powers on JHA legislation, the “second pillar” (foreign and military affairs) remained firmly under the control of the member states. Common Security and Defence Policy missions have been deployed to promote externalization. Since then, there has been a lack of democratic oversight or control when supporting the repressive capabilities of third countries; for example, in the Mediterranean (where the EU operation “Irini” is helping the Libyan coast guard to track down people trying to flee) or in other anti-terrorism and migration-related missions in Africa.
Alongside the “war on terror”, the (unofficially declared) war on migration is the main pretext to push the adoption of EU laws, policies and powers in the field of security. After the dramatic scenes of 2015, when more than a million refugees walked into EU territory, EU institutions and member state governments opted for a “never again” response, strengthening agencies, laws and budgets. Rules reintroducing internal border controls have been relaxed to prevent “secondary movements” of migrants.  Positive values such as freedom of movement in the EU are thus subordinated to migration and security goals.
Crisis as an opportunity
In 2015, the crisis for refugees – who were mistreated at the EU borders and, if they even reached EU territory, often had to endure living in camps – was reinterpreted as a crisis of the EU and its member states. The denial of protection to asylum seekers from the Syrian civil war became a strategic goal. To do this, it was necessary to maintain a context of crisis that made it possible to subvert the rule of law and the guarantees of the national constitutions in the new control and processing centres in Italy and Greece, the “hotspots”. Asylum seekers were to be prevented from entering the country or treated as “illegal” and sent back to their countries of origin or transit (Morocco, Tunisia, Turkey, Serbia, Bosnia) as quickly as possible. Authoritarian regimes like Egypt became the EU's preferred partners because they effectively prevented people leaving and accepted people returning. “Hotspots” have become synonymous with these rights abuses, but a drive to keep people away from the more affluent northern EU states is also reflected in plans to reform the Common European Asylum System by introducing new border control procedures.
The so-called migration crisis, the terrorist attacks in Belgium and France in 2015 and 2016 and the return of "foreign fighters" from Iraq and Syria have ensured increasing power for the EU agencies Frontex and Europol, although there is now clear evidence of abuses of power and unlawful practices (in particular, involvement in pushbacks). 
Structural crisis management and blind trust
Having used various crises to advance existing plans, a framework is now being developed to systematically treat the arrival of migrants at the EU borders as a crisis. The EU institutions have developed narratives and concepts that are hardly credible and obscure the role of the EU in the dehumanization of people fleeing. A Libyan coast guard and sea rescue zone were set up, although the country does not have a unified government. Refugees at the EU borders (from Greece to the north-eastern member states) are labelled as “hybrid attacks”.
Amongst these new concepts is the idea of the “instrumentalization” and “weaponisation” of migrants and refugees. This refers to the strategy of neighbouring third countries exploiting the vulnerability of an EU obsessed with the idea of migration management. Libya's Muammar Gaddafi used this trick before he was overthrown, and Turkey and Morocco have recently played the same card. The most recent such crisis occurred on the Polish, Lithuanian and Latvian borders with Belarus. After Alexander Lukashenko's re-election in 2020 and the imposition of EU sanctions on the country, the regime facilitated the movement of thousands of refugees - mainly from the Middle East - towards the eastern EU borders. There, once again, a “migration crisis” was declared, the Commission presented a “proposal for a Council decision on provisional emergency measures in favour of Latvia, Lithuania and Poland”  to undermine refugee rights, followed by considerations to make this permanent as a standard response to such “crises”. It remains to be seen whether political agreement can be reached on the proposal; for the government in Poland, for example, it does not go far enough. In any case, it seems that the use of the crisis narrative to promote the integration and expansion of EU powers, policies and practices in the field of justice and home affairs is far from over.
The far more obvious crisis
Democratic standards in the EU are on the decline, in part due to authoritarian migration and security policies. The pandemic has exacerbated this trend and accelerated plans to monitor even EU citizens with the best-possible justification - public health. Surveillance of travel and of people’s presence in the streets (regardless of nationality) have been normalised.
The far more obvious crisis, the extent to which member state governments undermine the rule of law and ostracise minorities, is downplayed despite its damaging and expansive impact on refugees, social movements, LGTBQIA+ people, Roma and other groups. While the principle of mutual trust in the JHA field still exists, several member states no longer deserve it. New proposals for social media surveillance to combat fake news or encrypted telecommunications are worrying for the future of freedom of expression – particularly at a time when journalists are uncovering more and more migration policy crimes and rights violations that are being covered up by member state authorities.
Yasha Maccanico and Chris Jones
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 Der Aufgabenbereich von Frontex wurde 2016 und 2019 erweitert, Europol profitiert dieses Jahr von weitgehenden Veränderungen im Rahmen einer ebenfalls neuen Verordnung; siehe dazu die Artikel von Jane Kilpatrick sowie Chloé Berthélémy und Jesper Lund in diesem Heft.
 COM(2021) 752 final v. 1.12.2021
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