Reactive Integration

Police and Judicial Cooperation in Criminal Matters: Cooperation or Communitisation?

Seminar Paper, 2005

33 Pages, Grade: 1,5



I. Introduction

II. The EU Anti-terrorism Strategy in the Third Pillar
a) Evolution of the third pillar
b) The 9/11 effect

III. Cooperation or Communitisation
a) Defining the terms
b) More likely
1. The “Will of the People”
2. The two 11s
c) More recommendable

IV. The definition of terrorism
a) The international level (UN)
b) EU
1. The Framework Decision
2. Argumentation

V. Conclusion

VI. Bibliography

I. Introduction

European competences do not exist and develop for the sake of the European Union; the European Union exists and develops in spite of the states, as a solution of their failures, as they are forced to accept that the Union level can offer better solutions in a particular field than the national level. Cooperation in Police and Criminal Law Matters, the 3rd pillar of the Union, is still subject to intergovernmental cooperation among the Member States. The terrorist attacks in the USA and in Spain had undoubtedly a strong impact on this area, leading to a visible intensification of inter-state cooperation. This consequence is only natural, since terrorism is a crime, therefore a matter for police and judicial cooperation in criminal matters; terrorism is a global issue, affecting multiple states and therefore its combating needs the cooperation among states. Unlike on the international stage, in European Union’s case more than intensified cooperation could be possible, by way of transferring 3rd pillar matters to the supranational level of the 1st pillar.

This paper is putting forward an assessment on the likelihood of this process taking place, within the following structure: a brief overview of the way anti-terrorism measures affected the 3rd pillar, followed by an assessment of intergovernmental cooperation and communitisation as likely and recommendable for the cooperation in police and criminal matters. Finally, the “case-study” of the Framework Decision regarding the definition of terrorist offences will serve as exemplification of the arguments brought in the previous chapter.

II. The EU Anti-terrorism Strategy in the Third Pillar

a) Evolution of the third pillar

Justice and Home Affairs was not part of the European institutional arrangement from the very beginning; during the timeframe Rome-Maastricht, Member States cooperated indeed on matters such as “terrorism, drug trafficking or illegal immigration”[1], yet in the framework of ad-hoc meetings. Institutionalisation comes with the incorporation of justice and home affairs into the Maastricht Treaty, as the third pillar of the new European Union architecture. Like the Common Foreign and Security Policy (second pillar), JHA worked according to the “intergovernmental” method, whilst in the first pillar, the community method was used. The Amsterdam Treaty introduced the concept of the “Area of Freedom, Security, and Justice (AFSJ)” as umbrella denomination for the two parts in which the Maastricht JHA split: immigration, asylum, and judicial cooperation in civil matters[2], which was to be communitised after a transitory period of five years (for the “normalization” of the decision-making process) and police and judicial cooperation in criminal matters[3], which remained as the third pillar.

b) The 9/11 effect

Subsequent to the terrorist attacks, a series of initiatives have been taken in the field of judicial cooperation in criminal matters, including the European Arrest Warrant, the execution of orders freezing property or evidence and the definition of terrorist offences[4].

The European Arrest Warrant [5] (Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures[6] ) is based on the principle of mutual recognition of judicial decisions, thus replacing the existing extradition procedure. Among the innovations brought by the EAW: in general a relationship of direct execution, rather than a request-approval one as it was before between the judicial authorities of the Member States; the timeframe of delivery to the State issuing the EAW is reduced to 90 days, as compared to around 18 months (the approximate duration of the extradition procedure); the dual criminality principle- for 32 serious offences including terrorism, or for ones punished by at least 3 years' imprisonment - and nationality are no more reason to refuse surrender[7], and last but not least, the location of the procedure is entirely at the judicial level[8].

Also based on the principle of mutual recognition of judicial decisions, Council Framework Decision of 22 July 2003 on the execution in the European Union of orders freezing property or evidence [9] establishes the rules under which a Member State recognises and executes immediately in its territory a freezing order issued by a judicial authority of another Member State in the framework of criminal proceedings for the purpose of securing evidence or the subsequent confiscation of property (related to proceeds of an offence, used in an offence or the object of an offence). The innovations and advantages here are similar to those of the EAW.

The Council Framework Decision of 13 June 2002 on combating terrorism[10] contains an approximation of the definition of terrorist offences in all Member States, general principles for penalties and sanctions relating to terrorist offences and rules on the competence of Member States' jurisdiction. The idea is to eliminate the possibility of terrorists finding refuge in countries where terrorism is not an offence, as well as the obstacles caused to judicial cooperation by the eventual legal variations[11]. On the international level, a common framework within the Union could facilitate a closer co-operation regarding third country implementation of international instruments related to the prevention and suppression of terrorism (i.e. the 12 UN Conventions on terrorism[12] or UNSCR 1373[13] ).

Measures in the fields of police cooperation in criminal matters include the structural changes in Europol and the enactment of Joint Investigation Teams[14].

The terrorist attacks determined a series of structural and operational innovations within Europol. In response to the Madrid bombings, the Council decided to reactivate the closed counter-terrorist task force within Europol. The latter constitutes a framework of information gathering both from and among national representatives, as well as findings from Europol’s work-file on Islamic terrorism. This terrorism specific data is meant to be very detailed and can concern specific individuals, number plates of cars and phone numbers.[15]

Another development pursuing the principle of intelligence-led law enforcement is yearly terrorism oriented analyses establishing strategic priorities for the information of the Council. By decision of the European Council[16], with effect from 1 January 2006, Europol will replace its “crime situation reports” by yearly “threat assessments” on serious forms of organised crime, based on information provided by the Member States and input from Eurojust and the Chiefs Police Task Force.

An operational aspect of Police cooperation are the Joined Investigation Teams which emerged after the 9/11 attack through the Council Framework Decision of 13 June 2002[17]. The concept basically means that competent authorities of two or more MS's may set up a Team for a specific purpose and a limited period, to carry out criminal investigations in one or more of the MS's setting up the team. As a first step in this direction, the European Council decided that each Member State should designate an expert “with a view to encouraging the use of such teams and exchanging experiences on best practices[18] ”; nevertheless, no deadline was provided.

III. Cooperation or Communitisation

a) Defining the terms

Subsequent to the entry into force of the Treaty of Amsterdam, the questions related to the free movement of persons (asylum, immigration, visa) which used to be under cooperation on justice and home affairs were “communitised”- to be dealt under the Community method after a five-year transitional phase. Police and Cooperation in Criminal Matters remained in the Third Pillar, under the “intergovernmental method”.

Communitisation means: “transferring a matter which, in the institutional framework of the Union, is dealt with using the intergovernmental method (second and third pillars) to the Community method (first pillar).”[19]

The "Community method", the institutional operating mode for the first pillar of the European Union proceeds from an integration logic and entails the following features:

- “Commission monopoly of the right of initiative;
- general use of qualified majority voting in the Council;
- an active role for the European Parliament in co-legislating frequently with the Council;
- uniformity in the interpretation of Community law ensured by the Court of Justice.”[20]

The main consequence of this institutional arrangement relates to the weight of individual states in decision-making, and, inevitably, to the question of sovereignty. Concretely, a Community decision can enter into force without the support of all the Member States: a MS can be outvoted and obliged to abide to a decision, which it does not agree with.

In general, the intergovernmental method refers to the “method of decision-making in international organizations, where power is possessed by the member-states and decisions are made by unanimity. Independent appointees of the governments or elected representatives have solely advisory or implementation functions.”[21]

The understanding of “intergovernmental method” in the context of the European Union displays some specificity, as compared to the original concept. “The method used for the second and third pillars is similar to the so-called intergovernmental method, with the difference that the Commission shares its right of initiative with the Member States, the European Parliament is informed and consulted and the Council may adopt binding acts. As a general rule, the Council acts unanimously.”[22] A majority decision may however be allowed if based on a previous unanimous decision. In concrete terms, this means that for a measure to enter into force, all Member States have to agree and that a Member State cannot be outvoted and obliged to abide to a decision it does not agree with.

As commentators observe, the distinction first pillar – community method, second and third pillar – intergovernmental method, is in some respects blurred. With the partial communitisation of the third pillar at Amsterdam and is spite of the Nice reforms on voting rules, elements of intergovernmentalism remained in the first pillar[23]. On a general basis, it can however be argued that, at least in the planning, the above distinction stands.

b) More likely

1. The “Will of the People”

The integration theories, as applied to the creation of the 3rd pillar and its partial communitisation, do not offer the same overview on the future perspectives of the current third pillar. Dr. Hagedorn points out, for instance, that the Maastricht institutional change received two different interpretations, as to whether there was a communitisation intention or merely the institutionalisation of previous intergovernmental cooperation:

“When the Maastricht Treaty introduced the two new pillars for Union policies, their relationship to the first pillar and the Community method remained unclear. Some saw these two pillars as permanent alternatives to the Community method of the first pillar, others preferred to see the arrangement as temporary. Passerelles were to facilitate the transfer of powers and functions to the Community.”[24]

Intergovernmentalism in short refers to the “arrangement whereby nation-states, in situations and conditions they cannot control, co-operate with one another on matters of common interest. The existence of control, which allows all participating states to decide the extent and nature of this cooperation, means that national sovereignty is not undermined.[25] ” The intergovernmentalist vision of European integration – integrative bargaining[26] – sees the European Council as the most adequate institutional framework, as it is there that States bargain and argue in order to convert national interests into beneficial package deals. States are the most adequate to represent the populations, since they are endowed with an elections-based legitimacy; the European Parliament is a mere forum for discussion and the Commission a sort of secretariat general. According to this theory, the fact that unanimity is still guarding the sovereignty of states not only in the 2nd and 3rd pillar, but also in some areas of the 1st is only one of the many confirmations that states will remain the main actors in the European decision-making process. It is obvious that in such a context, the partial communitisation of the third pillar was a mistake that should not be repeated. However, by Stanley Hoffman’s approach on the theory[27], cooperation is only to take place in the fields of low politics, such as agriculture and trade. The member states retain their sovereignty in the fields of high politics such as foreign policy and national security. Therefore it could be argued that CFSP would be the natural choice for exclusion from the community method, and not JHA, which, though entailing security, it does so on a lower level – internal, police matters, and not defence.


[1] “From 1975 onwards intergovernmental cooperation was gradually established in the fields of immigration, the right of asylum and police and judicial cooperation. The first instance of this was the Trevi Group, in which the Ministers for Home Affairs met for the purpose of combating terrorism and coordinating police cooperation on terrorism in the Community. The Ministers in the Group discussed questions relating to law and order and terrorism, and various working parties and subparties were set up under its auspices. The European institutions were at the time excluded from this process, which was conducted on an intergovernmental basis.”: The Amsterdam Treaty: a Comprehensive Guide, Freedom, security and justice,

[2] “Visas, asylum, immigration and other policies related to free movement of persons”, Title IV, TEC

[3] “Provisions on Police and Judicial Cooperation in Criminal Matters”, Title VI, TEU

[4] Legal basis: Art. 31.1 TEU„Common action on judicial cooperation in criminal matters shall include“

(b) „ facilitating extradition between Member States“

(e) „progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking.“

Art. 34.2(b)TEU The Council shall…unanimously…on the initiative of any Mamber State or of the Commission …“adopt framework decisions for the purpose of approximation of the laws and regulations of the Member States. Framework decisions shall be binding upon the Member States as to the result to be achieved, but shall leave to the national authorities the choice of form and method. They shall not entail direct effect.”

[5] „any judicial decision issued by a Member State with a view to the arrest or surrender by another Member State of a requested person, for the purposes of: conducting a criminal prosecution; executing a custodial sentence; executing a detention order”,

[6] Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, Official Journal L 190, 18.07.2002.

[7] EAW is based on the principle that EU citizens shall be responsible for their acts before EU courts.

[8] In extradition procedures, the final decision on whether to surrender the person or not, is a political decision.

[9] Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence, L 196/45 Official Journal of the European Union, 2.8.2003

[10] Official Journal of the European Communities EN 22.6.2002 L 164/3

[11] Before the framework decision was adopted, only 7 countries - France, Germany, Italy, Portugal, Greece, Spain and the United Kingdom - out of the 15 Member States of the European Union had specific laws to fight terrorism which varied from one country to another, Elisabeth Symeonidou-Kastanidou, „Defining Terrorism”, European Journal of Crime, Criminal Law and Criminal Justice, Vol. 12/1, 14–35, 2004



[14] Article 30.2 TEU: The Council shall promote cooperation through Europol and shall, in particular, within a period of five years after the date of entry into force of the Treaty of Amsterdam:

(a) enable Europol to facilitate and support the preparation, and to encourage the coordination and carrying out , of specific investigative actions by the competent authorities of the Members States including operational actions of joint teams comprising representatives of Europol in a support capacity;

(d) establish a research, documentation and statistical network on cross-border crime.

Article 34.2 TEU: The Council shall take measures and promote cooperation, using the appropriate form and procedures as set out in this article…acting unanimously on the initiative of any Member State or of the Commission, the Council will:

(c) adopt decisions for any other purpose consistent with the objectives of this title, excluding any approximation of the laws and regulations of the Member States. These decisions shall be binding and shall not entail direct effect; the Council, acting by a qualified majority, shall adopt measures necessary to implement those decisions at the level of the Union;

[15] Björn Müller-Wille Building a European Intelligence Community in response to terrorism European Security Review, Number 22, April 2003


[17] Council Framework Decision of 13 June 2002 on joint investigation teams (2002/465/JHA), L 162/1 Official Journal of the European Communities, 20.6.2002


[19] Communitisation:

[20] Community method and intergovernmental method:


[22] idem

[23] “The Treaty of Amsterdam shows most clearly how ‘third pillar issues’ were formally brought into the framework of the first pillar, but also illustrates the blurredness of the Community method and intergovernmental method: most issues continued to be subject to a shared right of initiative and unanimity voting. The European Parliament was only to be consulted. Measures regarding the controls on persons at the borders, the crossing of the external borders, the freedom of travel for third country nationals were to be decided upon by unanimity, after consulting the Parliament and on a proposal from the Commission or a Member State. This was also foreseen for all measures on asylum, on refugees, immigration policy as well as those relating to the legal residence of third country nationals in a Member State. Only after a unanimous vote in the Council could these measures be transferred to the procedure under Art. 251 TEC. This meant that only the measures concerning the list of third country nationals requiring a visa to enter the Union and the provisions for a uniform format for visas could be initiated by the Commission only and decided upon by QMV in the Council. Even here, the European Parliament only had the right to be consulted, thus was not a full partner. The only automatic move to Art. 251 was foreseen for procedures and conditions for issuing visas and rules on a uniform visa. A few of these were exempted from the limitation of a five-year period.

The Treaty of Nice did not constitute a major change, but extended the automatic transfer to co-decision and QMV for a number of measures. In the TEC, the only significant change is that measures concerning asylum and those regarding minimum standards for the protection of refugees are decided by the procedure of Art. 251 – provided that the Council has agreed unanimously on the basic rules for the issue area. Judicial cooperation in civil matters is subject to co-decision and QMV without this condition (except the rules on family law).”

Dr. Franziska Hagedorn, Center for Applied Policy Research, The Community method vs. Intergovernmental method in the European Constitution, “Internal Reform and the Constitution Building Capacities” Seminar, organised by the Center for International Relations, the Austrian Academy of Sciences and the German Institute for International and Security Affairs, Warsaw, April 2003, organised under the CONVEU-30 project with the financial support of the European Union.

[24] Dr. Franziska Hagedorn, Center for Applied Policy Research, The Community method vs. Intergovernmental method in the European Constitution, “Internal Reform and the Constitution Building Capacities” Seminar, organised by the Center for International Relations, the Austrian Academy of Sciences and the German Institute for International and Security Affairs, Warsaw, April 2003, organised under the CONVEU-30 project with the financial support of the European Union.

[25] Nugent, Neil, The Government and Politics of the European Union, Macmillan, 4th ed., 1992, p. 502

[26] Wolfgang Wessels, Teaching Companion, 2004, DA, p. 19

[27] Nelsen and Stubb, The European Union, Reading on the theory and practice of European Integration, 2003: 163

Excerpt out of 33 pages


Reactive Integration
Police and Judicial Cooperation in Criminal Matters: Cooperation or Communitisation?
Diplomatic Academy of Vienna - School of International Studies
Intensive Seminar “The EU as a Global Actor”
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ISBN (eBook)
ISBN (Book)
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Integration, Polizei, Justiz, Kooperation, EU
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M.A. Daniela Pisoiu (Author), 2005, Reactive Integration, Munich, GRIN Verlag,


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