Documents: Justice and Home Affairs
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Jörg Monar and Anya Dahmani
NEWGOV Policy Brief no. 03, Summer 2007
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Jörg Monar and Anya Dahmani
The extensive use of ‘softer’ modes of governance is one of the distinctive features of EU governance in the JHA domain. It can be regarded as one of the reasons for the EU’s current problems of effective implementation in the JHA domain. Yet other factors – such as an often lacking sufficient common political will – are at least equally important, and the less hierarchical and more flexible ‘softer’ modes of governance have contributed over the last few years to a significant extension of policy objectives and cooperation mechanisms in the most sovereignty sensitive fields of the JHA domain. An ambitious initiative of the European Commission of June 2006 aimed at a ‘hardening’ of EU governance, primarily through a ‘communitarisation’ of the current ‘third pillar’ fields, has been shelved. The Reform Treaty package agreed on in June 2007 goes a long way in the same direction, but it provides a number of checks and balances which mitigate the ‘hardening’ effect. The Reform Treaty provisions – if adopted as they currently stand – will mark a substantial step towards ‘harder’ governance in the JHA domain and may well increase the effectiveness of EU governance both in terms of decision-making and implementation, but they will come at a price in terms of further fragmentation, and any potential reduction in the use of ‘softer’ governance instruments is not necessarily going to be made up by an equivalent higher use of ‘harder’ instruments.
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Jörg Monar
Since the 1990s there has been an evolution towards the use of “harder” modes of governance in the JHA domain, but this evolution has been slow and has not put an end to the very extensive use of non-binding texts and procedures with a lower degree of hierarchy in decision-making and of uniformity in implementation. In spite of a proliferation of objectives and a considerable output over the last few years EU governance in this domain is clearly not an unqualified success story, and there are substantial performance problems both as regards decision-making and the implementation of adopted measures, especially at the national level.
The initiatives of the European Commission to use “passerelle” provisions can be seen as an attempt to replace the slow and uneven evolution from “softer” to “harder” modes of governance in the JHA domain by a sort of major regime change in favour of the latter. This appears not only as politically premature – at least as long as the fate of the Constitutional Treaty remains undecided – but also potentially counterproductive as forcing “hard” EU governance on Member States in highly sensitive policy fields might well reduce the willingness of at least several of them to develop and engage in substantial common policies. “Soft” governance modes have contributed much to the development of the “area of freedom, security and justice”, and even if there are problems of effectiveness in the JHA domain, they should only be replaced by “harder” modes when, where and to the extent to which the common political will of the Member States is sufficient to sustain their use.
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Udo Diedrichs
Since the adoption of the Treaty of Maastricht, the evolution of the second and third pillars of the EU has attracted a high degree of interest; what seemed to be a case of parallelism in terms of institutional and procedural features, became a divorce in 1997, when substantial parts of the area of justice and home affairs were communitarised, while CFSP remained basically intergovernmental, enriched by a number of institutional and procedural innovations. In terms of the living constitution, both sectors have revealed a rather policy-specific development, making it difficult even to compare the remaining third pillar, i.e. the police and justice cooperation in criminal matters, to the CFSP. Governance in the two areas follows a policy-specific logic, although overarching trends in terms of the increasing degree of differentiation, growing links between intergovernmental and EC spheres of action, and dynamics towards mixed modes of decision-making, may be observed.
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Jörg Monar and Anya Dahmani
EU governance in the domain of justice and home affairs (JHA) has developed substantially since the entry into force of the Treaty of Amsterdam. It is marked by a number of determining factors specific to this domain such as the diversity of the policy fields covered, a particular focus on cooperation and coordination issues, a strong operational dimension and the artificial divide between the “first” and third pillar” fields. On the basis of a detailed analysis of the texts adopted by the JHA Council in the period 1999 to 2005 four modes of governments can be distinguished, tight regulation, framework regulation, target setting and convergence support. Especially the last two modes comprise a number of distinctive features of EU governance in this domain, such as the extensive use of multi-annual programme documents and collective/mutual evaluation reports. These phenomena can be explained both by the Member States’ preference for particularly ‘light’ forms of governance in sensitive areas and by the strong operational dimension of the JHA domain for which ‘hard’ regulation is often inappropriate. The strong reliance on supporting institutional structures, in particular the agencies Europol, Eurojust and Frontex, is a further distinctive feature. It can be explained by the preference of Member States for ‘light’ institutional governance structures which can facilitate the interaction between the national systems rather than integrating them through legislative harmonisation and the creation of institutions with supranational powers. As regards main trends, considerable variations of the ratio between the use of binding and non-binding measures can be observed as well an increasing blurring of the divide between the (communitarised) “first” pillar fields (Title IV TEC) and the (intergovernmental) “third” pillar fields can observed which can be interpreted as a pragmatic reaction to the different constraints in the individual fields.
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Jörg Monar
EU governance in the domain of justice and home affairs (JHA) has developed substantially since the entry into force of the Treaty of Amsterdam. It is marked by a number of determining factors specific to this domain such as the diversity of the policy fields covered, a particular focus on cooperation and coordination issues, a strong operational dimension and the artificial divide between the “first” and third pillar” fields. On the basis of a detailed analysis of the texts adopted by the JHA Council in the period 1999 to 2005 four modes of governance can be distinguished, tight regulation, framework regulation, target setting and convergence support. Especially the last two modes comprise a number of distinctive features of EU governance in this domain, such as the extensive use of multi-annual programme documents and collective/mutual evaluation reports. These phenomena can be explained both by the Member States’ preference for particularly ‘light’ forms of governance in sensitive areas and by the strong operational dimension of the JHA domain for which ‘hard’ regulation is often inappropriate. The strong reliance on supporting institutional structures, in particular the agencies Europol, Eurojust and Frontex, is a further distinctive feature. It can be explained by the preference of Member States for ‘light’ institutional governance structures which can facilitate the interaction between the national systems rather than integrating them through legislative harmonisation and the creation of institutions with supranational powers. As regards main trends, considerable variations of the ratio between the use of binding and non-binding measures can be observed as well an increasing blurring of the divide between the (communitarised) “first” pillar fields (Title IV TEC) and the (intergovernmental) “third” pillar fields can observed which can be interpreted as a pragmatic reaction to the different constraints in the individual fields.
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Jörg Monar
This article constitutes the second version of a chapter for the joint monograph “The Dynamics of Change in EU Governance: Policy-making and System Evolution“. Following the common framework of the volume the chapter identifies specific factors of emergence of modes of governance and proposes a categorisation of the main types in the area of Justice and Home Affairs. Finally, the author tracks major evolution trends of EU governance in the JHA domain and offers an evaluation in terms of efficiency, effectiveness and legitimacy.
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