International Migration and the European Union, Trends and Consequences

Member States of the European Union (EU) have undoubtedly changed into de facto countries of immigration. Since the upswing in migration in the late 1980s, net migration for the 15 EU Member States together has not been below 500,000. This article first focuses on trends in international migration (such as migration from former colonies, recruitment of temporary workers, and East-West migration) and special groups of immigrants (such as ethnic Germans, asylum seekers, and clandestine migrants). The second part of the article pays attention to immigrant settlement and migration policies, especially focusing on the European Union (trafficking and smuggling of humans, and the integration of migrants on the labour market). Detailed comparison of international migration flows is seriously hindered by a complexity of different national registration systems, and different countries display differences with regard to type and history of migration, country of origin, size of migration flows and immigrant populations.     

Holding to Account a Possible European Public Prosecutor Supranational Governance and Accountability Across Diverse Legal Traditions

The Lisbon Treaty provides a legal basis for the Member States of the European Union (EU) to establish a European Public Prosecutor (EPP) with competence to prosecute, in the courts of the Member States, crimes against the financial interests of the Union. Article 86 of the Treaty on the Functioning of the European Union, provides that the Member States may unanimously, or through flexible cooperation where nine Member States agree, establish such a European-level prosecution body, with the possibility for its powers to be extended by unanimity to include serious crime having a cross border dimension or affecting more than one Member State. Within the legal traditions of the Member States, means of holding prosecution authorities to account vary considerably. Probably the strongest form of accountability exists in the civil law tradition of Member States that permit appeals to judicial bodies for decisions not to prosecute, which contrasts with the traditional common law reluctance to even give reasons for not prosecuting. Similarly, the ways in which prosecution authorities interact or overlap with police functions, and thus with general mechanisms of police and/or bureaucratic accountability, differ. Some of the particular features of EU cooperation suggest additional accountability issues, notably, questions concerning competence spill-over and problems of remoteness. This paper seeks to address how to conceptualise governance and accountability of a possible EPP outside of the context of a trial (the latter entailing a type of open legal accountability that can be studied in its own right) and including the question of the definition of competences.     

Smuggling of Human Beings from a Human Rights Perspective: Obligations of Non-State and State Actors under International Human Rights Law

Although trafficking of human beings has been widely regardedas a human rights issue, little attention has been paid to humanrights aspects of smuggling as it is mainly characterised asfacilitation of illegal migration. The purpose of this articleis to demonstrate that smuggling of human beings equally raiseshuman rights concerns. The article begins by exploring the definitionsof trafficking and smuggling and their policy implications.It then highlights some human rights issues inherent in theact by examining its causes, process and consequences. It continueswith an analysis of human rights obligations imposed upon non-Stateand State actors. The fact that non-State actors are not helddirectly accountable under international human rights law pointsto an investigation of legal obligations imposed upon States,and this article examines an obligation to protect victims asan example.     

Traffick jam: a policy review of the United States’ Trafficking Victims Protection Act of 2000

The United States enacted the Trafficking Victims Protection Act (TVPA) of 2000 to combat organized networks specializing in the illicit transport of human beings across political and geographical boundaries. This response has engendered conflicting definitions and competing agendas attributable to the definition set forth by the TVPA, which divides the crime into ‘sex’ verses ‘labor’ trafficking. The European Union (EU) adopted a different and detailed definition introduced by the United Nations. This paper explores the disparity in anti-trafficking policies of the United States and the EU. By contrasting these efforts, recommendations to strengthen U.S. policy by adapting certain EU practices to an American context are suggested.     

Protecting Supremacy from External Influences: A Precondition for a European Constitutional Legal Order?

The number of international law obligations that have binding force on the Union and/or its Member States is sharply increasing. This paper argues that in this light the well‐functioning of the European Union ultimately depends on the protection of the principle of supremacy from law originating outside of the EU legal order. The supremacy of EU law is essential to ensuring that Member States cannot use national rules to justify derogation from EU law. As a matter of principle, international treaties concluded by the Member States rank at the level of ordinary national law within the European legal order and below all forms of European law (both primary and secondary). Article 351 TFEU exceptionally allows Member States to derogate from primary EU law in order to comply with obligations under anterior international agreements. It does not however allow a departure from the principle of supremacy that underlies the European legal order. In Kadi I, the Court of Justice of the European Union stated that Article 351 TFEU, while it permits derogation from primary law, may under no circumstances permit circumvention of the “very foundations” of the EU legal order. This introduces an additional condition that all acts within the sphere of EU law need to comply with a form of “super‐supreme law”. It also strengthened the principle of supremacy and gave the Court of Justice the role of the guardian of the Union's “foundations”. The Court of Justice acted on the necessity of defending the Union as a distinct legal order, retaining the autonomous interpretation of its own law, and ultimately ensuring that the Union can act as an independent actor on the international plane.     

REFLECTIONS ON EU INTERNATIONAL TRADE LAW: AN INTROSPECTIVE VIEW

This article presents three main arguments: First, shared competence exists between the national and supranational levels within the European Union (EU) because EU Member States do not trust the European Commission in the external relations law of the EU. Second, the EU will have greater bargaining power in international negotiations if it speaks in a single voice. Within the EU-27, we have compatible values, overlapping interests, shared goals, as well as economic, social and political ties. Therefore, there is a presumption of collective action in the EU’s external relations. However, EU Member States disagree on many issues before they start negotiations, while trying to define a mission together as partners of the European project. Third, Member States confer specific negotiating powers on the EU only when it is in their own national interest to have a common European position on international negotiations.     

Balancing Between Human Rights Assumptions and Actual Fundamental Human Rights Safeguards in Building an Area of Freedom,Security and Justice: a Cosmopolitan Perspective

Rhetoric often claims that the European Union (EU), in issues related to Justice and Home Affairs, has to be united in its diversity. As such, the asylum and judicial systems of the Member States are initially perceived as equally good. By applying the cosmopolitan theory on two fields of interstate cooperation, asylum and judicial cooperation in criminal matters, the article explores how cosmopolitan the EU is in these fields, with a specific focus on material detention conditions. For cosmopolitanism to work, it has to be grounded in commonly shared norms, which enable the EU to regulate its dealings with the otherness of the Member States. The crucial role of the European Court of Human Rights and the Court of Justice of the European Union in placing boundaries on the equal goodness of the Member States’ asylum and judicial systems is analysed. This judicial reality in which cosmopolitan norms are established and protected is discussed, together with the political realities dominating policy debates in order to build an Area of Freedom, Security and Justice.     

Punishment and Rights in European Union Citizenship: Persons or Criminals?

While European Union (EU) citizenship has traditionally been key to limiting criminalisation at national level, over recent years crime has become a criterion to distinguish between the good and the bad citizen, and to allocate rights according to that distinction. This approach has been upheld by the EU Court of Justice (CJEU) in its case‐law, where crimes show the offender's disregard for the societal values of the host Member States, and deny his/her integration therein. This article argues that citizenship serves to legitimate criminal law. The Court outlines two—counterposing—types of human being: the law‐abiding citizen and the criminal. The article shows the legal unsoundness of the Court's approach. It does so by analysing and locating the case‐law over a crime–citizenship spectrum, marked at its opposing ends by Duff's communitarian approach to criminal law, on the one hand, and Jakobs' criminal law of the enemy, on the other.     

Rules for Rights: European Law,Health Care and Social Citizenship

Social citizenship is about equality. The obvious problem for European social citizenship in a very diverse Union is that Member States will not be able or willing to bear the cost of establishing equal rights to health care and similar aspects of social citizenship. Health care is a particularly good case of this tension between EU citizenship and Member State diversity. The European Court of Justice (ECJ) strengthened the right to health care in other Member States, but this cannot create an equal right to health care when Member States are so different. In its efforts to balance a European right, the Court has formulated ‘rules for rights’—not so much European social citizenship rights, as a set of legal principles by which it judges the decisions of the Member States.     

EU Citizenship and Political Identity: The Demos and Telos Problems

Citizenship is the cornerstone of a democratic polity. It has three dimensions: legal, civic and affiliative. Citizens constitute the polity's demos, which often coincides with a nation. European Union (EU) citizenship was introduced to enhance ‘European identity’ (Europeans’ sense of belonging to their political community). Yet such citizenship faces at least two problems. First: Is there a European demos? If so, what is the status of peoples (nations, demoi) in the Member States? The original European project aimed at ‘an ever closer union among the peoples of Europe.’ Second: Citizens are members of a political community; to what kind of polity do EU citizens belong? Does the EU substitute Member States, assume them or coexist alongside them? After an analytical exposition of the demos and telos problems, I will argue for a normative self‐understanding of the EU polity and citizenship, neither in national nor in federal but in analogical terms.     

The Constitution of a European Democracy and the Role of the Nation State

Starting from the presupposition that European democracy is necessary to the survival and development of the European Union, the author deals with the process which may entail a European constitution, and discusses the elements of the present legal structure of the EU which are conducive to a European Democracy. In particular, the author focuses on the incomplete, polycentric, and dynamic character of a possible EC/EU constitution, and on the duality of its legitimating principle. This claim is that these characteristics necessitate some institutional modifications of democratic principles if compared with national democracy, and that Euro-democracy is possible if we do not simply apply the standards of democracy valid for Member States, but succeed in developing criteria which are adequate to the institutional qualities of the EC/EU. Finally, the author maintains the legal character of the regulatory power of the Community, and invokes the mutual legal bonds linking the Member States and their peoples as the source of the Community.     

Trafficking in Human Beings: The EU Approach between Border Control, Law Enforcement and Human Rights

The fight against trafficking in human beings has been high on the political agenda of international organisations, regional organisations and states for more than a decade. The European Union (EU) and the international community continuously reaffirm their commitment to work jointly in countering the phenomenon. After years of arguing over a common definition and approach that culminated in the first international definition in 2000, it could be assumed that the international and European definitions solve the issue of how to define and counter trafficking in human beings. Still, the debate on how to understand and approach the problem has not ceased to exist. In particular, the dominant opposition between a rights-based and a law enforcement approach has not been dissolved by calls for holistic or multi-faceted approaches. The aim of this article is to identify the approach taken by the EU, looking out for conceptual (in-)consistencies, underlying assumptions and convictions. The rationale guiding EU action is extracted and questioned by disclosing silenced aspects and contrasting them to their reappearance in other legal instruments. It is argued that the humanitarian intentions of victim protection are overshadowed by general anti-immigration conveniences. The approach taken by the EU not only provokes the somewhat artificial opposition between innocent victim and guilty migrant, but it can easily fall prey to deeply entrenched gender and racial stereotypes.     

Civil Protection Cooperation in EU Law: Is There Room for Solidarity to Wriggle Past?

This article provides insight into the under‐researched area of civil protection cooperation and disaster response capacity in EU law. It discusses how the mechanisms set up by the EU have assisted Member States in supporting one another when faced with natural or man‐made disasters, including those perpetrated by terrorists. In particular, the article provides a critique of the Article 222 of the Treaty on the Functioning of the European Union (TFEU) clause, which has introduced the principle of solidarity within the EU's security strategy. The author explores the broadened notion of ‘threat’ in Europe and assesses the significance of the Solidarity Clause vis‐à‐vis the level of commitment required by Member States for its coherent implementation. The article then contrasts Article 222 TFEU with the mutual defence clause of Article 42 (7) Treaty on European Union (TEU), and finally points into certain ‘grey areas’ that may have a diminution effect upon the political message concerning the EU as a community based on solidarity.     

An American Looks at the European Union

Abstract: Anyone who has followed the evolution of six European nations from a simple Coal and Steel Community to the current twenty‐five Member State European Union (EU), has witnessed a truly remarkable passage. Nonetheless, the EU remains a decidedly jerrybuilt affair. Through numerous enlargements, increased competences, changes in structure and operation, the Union has been bedevilled by the fact that it is neither a simple international treaty with 25 signatories, nor a truly federal union. Rather, the EU has operated, sometimes effectively, often shakily, between these two extremes; exhibiting a sort of ‘fear of federalism’. From a US perspective, this article looks at the present state of the European Union and asks why it has met its potential in some ways, but has fallen so far short in others. Obviously, the tension between the Member States and the Community institutions is one reason. The article asks why do the states compete so much with one another, when their true competition is often with non‐European entities? Why does the European Council never seem to act in a timely manner? Why do euro‐citizens have so poor of an appreciation of what the Community does for them? Why does the Common Agricultural Policy, which contributes such a small amount to European gross domestic product, so dominate the EU budget and agenda? Can the euro, clearly the world's second currency after the US dollar, ever win over its doubters and harmonise European financial service markets? Does enlargement improve or threaten the future of the Community? And can its Common Foreign and Security Policy ever be successful if it is forced to compete with parallel politics in the Member States? All of these questions are addressed in this article with the hope that, through an external critique, the EU will live up to its potential both at home and abroad.     

Data retention and the future of large-scale surveillance: The evolution and contestation of judicial benchmarks

Recent and upcoming judgments of the Court of Justice of the European Union (CJEU) have resurfaced a much-debated topic on the legal limitations of law enforcement authorities and intelligence services under EU law in implementing surveillance operations. In its decisions, the CJEU has reinstated and at times remoulded its case-law on data retention, unearthing a variety of legal issues. This article aims to critically analyse the legal limitations of (indiscriminate) surveillance measures, the role of the private sector in the scheme, and the line between the competence of the Member States and that of the EU on national security matters. It also aims to remark on the latest developments on the reception of the decisions by the Member States and the EU legislator, as well as on the ongoing dialogue between the CJEU and the European Court of Human Rights (ECHR).     

The Fight Against Organised Crime in Europe: A Comparative Perspective

This article provides an overview of the measures and actions taken by the Member States of the European Union in their fight against organised crime and transborder crime. The Action Plan to Combat Organized Crime adopted by the Ministers for Justice and Home Affairs during the Dutch EU Presidency, submitted some 30 recommendations with respect to greater harmonisation regarding the fight against organised crime in the EU Member States. The author gives a concise summary of the most relevant changes and the structural characteristics per Member State, paying attention to developments in the specific countries and the organisations involved. One of the conclusions reached is that few or no reforms within national investigative and prosecution authorities may be directly traced back to the regulatory impulses of the EU. Although the EU Action Plan has not yet realised a convergence of the systems, the European process of integration has increased the mutual transparency and knowledge of one another's systems.     

Credible Commitment in Non-Independent Regulatory Agencies: A Comparative Analysis of the European Agencies for Pharmaceuticals and Foodstuffs

Abstract: The creation of more and more supranational regulatory agencies has been one of the most significant institutional developments in the European Union during the last decade. Usually, these agencies evolve from EU committees and take over most of their structures. Accordingly, like most EU committees and the Commission, regulatory agencies are not independent, but act under the control of the member states. The question is, how far do they indicate a credible commitment of the Member States to long-term policy goals like health and consumer protection. This article compares the institutional structures and decision-making rules of the European Agency for the Evaluation of Medicinal Products and of the newly established European Food Safety Authority, in order to clarify the extent of credible commitment that the Member States show through the setting-up of these agencies. It concludes that the commitment of the Member States in the foodstuff sector is not as deep as in the pharmaceutical sector, and that the creation of the European Food Safety Authority will not lead to a success story similar to that of the European Agency for the Evaluation of Medicinal Products.     

The economic costs and consequences of mass communications data retention: is the data retention directive a proportionate measure?

This article seeks to determine the economic costs and consequences of implementing the Data Retention Directive (Directive 2006/24/EC), an extraordinary counter terrorism measure that mandates the a priori retention of communications data on every European citizen, by drawing on the insights of economic analysis. It also explores the monetary costs of the Directive on subscribers and communications service providers of Member States within the EU. Furthermore, it examines the implications of the Directive on the economic sector of the European Union, by focusing on the Directive’s impact on EU competitiveness and other EU policies such as the Lisbon Strategy. This analysis is motivated by the following questions: what are the monetary costs of creating and maintaining the proposed database for data retention? What are the effects of these measures on individuals? What obstacles arise for the global competitiveness of EU telecommunications and electronic communications service providers as a result of these measures? Are other policies in the European Union affected by this measure? If so, which ones?     

Variations in Member States’ Preliminary References to the Court of Justice—Are Structural Factors (Part of) the Explanation?

The preliminary reference procedure in Article 267 of the Treaty on the Functioning of the European Union (TFEU), which enables national courts to request the Court of Justice to provide a ruling on the interpretation or validity of an EU legal act, is widely considered to be the jewel in the crown of EU law. When considering the number of references from different Member States, it will become immediately apparent that there are considerable variations. This article examines to what extent these variations may be explained by three structural factors, namely (1) population size, (2) willingness to litigate and (3) Member State compliance with EU law. It is concluded that some—but not all—of the variations in number of references from Member State judiciaries may be attributed to structural factors rather than being merely a reflection of different Member State courts’ willingness to make use of Article 267 TFEU on such references (the so‐called behavioural factors).     

Are Protection Policies for Human Trafficking Victims Effective? An Analysis of the Italian Case

Since the 1990s trafficking in human beings has increasingly become a priority in the international and European policy agenda. The international community took action against it with the United Nations Protocol against Trafficking (2000), the Council of Europe Convention on Action Against Trafficking in Human Beings (2005) and the Directive 2011/36/EU of the European Parliament and of the Council on Preventing and Combating Trafficking in Human Beings and Protecting its Victims. In the same period the number of studies and research works on it has increased. Nevertheless, some of the most important research questions remain almost unanswered. In particular, there is a paucity of data about the effectiveness of the policies against human trafficking. This paper provides some knowledge in this field. In particular it presents some considerations on the effectiveness of the Italian policies on the protection of and assistance to victims in the period 2000–2008. The data analysis suggests that the effectiveness varied across years and that the entry of Romania in the European Union, apparently, had an impact on the phenomenon and on the policies effectiveness. The lesson to be learned is that under the umbrella of human trafficking very different situations, changing across time and countries, coexist. In order to be effective a national policy should be capable of a) planning actions which take into account the national characteristics of human trafficking; b) monitoring whether and how the phenomenon has changed and change the policies accordingly.