Policy brief

Ilke Adam, Jana Berg, Florian Trauner, Marie Tuley, Laura Westerveen
What is the state of EU policy? Justice and Home Affairs (JHA) has been a fast-growing field of the European integration process. JHA is an umbrella term for a range of distinct policies ranging from migration, asylum, border control to civil justice and the fight against terrorism. The importance of cooperating in Europe on these issues has rarely been higher than at the present day. A series of terrorist attacks, most recently in Paris and Brussels, and an unprecedented rise in the number of
more » ... igrants and refugees seeking to enter the territory of the EU have moved JHA issues high up on the agenda of policymakers throughout Europe. Given the sovereignty-sensitive nature of most JHA issues, EU member states have long been reluctant to transfer competences to the EU level. The cooperation has developed since the mid-1970s in a range of intergovernmental groups. The Maastricht Treaty first added an intergovernmental 'Justice and Home Affairs' pillar to the EU's treaty architecture, yet preserved the strict unanimity requirement and kept the supranational EU institutions at arm's length. This changed with the Treaty of Amsterdam (1999) that incorporated the Schengen border-free project into the EU's legal framework and transferred the policy fields of asylum, immigration, external border controls and civil law matters to the Community first pillar under Title IV. The Treaty of Lisbon ended this institutional development by introducing the Community method in the remaining third pillar areas (judicial cooperation in criminal matters and police cooperation). These treaty changes have significantly altered the modes of decision-making in JHA and enhanced the opportunities for parliamentarian oversight and judicial scrutiny at EU level. The EU is not striving to replace, say, a national police-corps with a European one. The Lisbon Treaty emphasised that the different legal systems of EU member states shall not be merged at EU level: 'The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States' (Art. 67, Par. 1 TFEU). A key difference is how legalised certain policies are at EU level. The EU does not have the same legal The UK in Justice and Home Affairs: the engaged outsider Issue 2016/6• April 2016 competences for all JHA policies. For issues such as asylum or visa, the EU has embarked on developing 'common policies', for instance a 'Common European Asylum System' that harmonises the rules of member states on how to receive an asylum seeker and process her or his application. In other areas, the EU has less legalised approaches and acts primarily on the basis of operational cooperation and the exchange of best practices. A case in point has been the integration of migrants into European societies. For a long time, member states resisted EU interference in their immigrant integration policies. Consequently, an explicit legal basis for developing or coordinating immigrant integration policy on the EU level has long been absent (van Puymbroeck, Adam & By bundling the manifold policy expertise of the researchers of the Institute for European Studies (IES), this paper forms part of a series of analyses investigating the potential implications of a 'Brexit' scenario for different EU policies. All papers ask the same three questions: 1) What is the state of the EU policy in focus? 2) What is the UK's role/interest in this policy field? 3) What are the potential implications of a 'Brexit' scenario at the policy-level? After Claire Dupont and Florian Trauner introduce the project, Richard Lewis sets the historical and cultural context and explains how the UK and the EU have come to such a low-point in their relations. Next, five policy fields are analysed: justice and home affairs; free movement policies; EU external representation; the (digital) single market; and environmental policy.