Justice and Home Affairs Agencies: Governing the Area of Freedom Security and Justice after Lisbon

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1 Justice and Home Affairs Agencies: Governing the Area of Freedom Security and Justice after Lisbon Paper to be presented at the ECPR Fifth Pan-European Conference, Porto June 2010 Jorrit J. Rijpma 1. Introduction Since the 1970s the EU legislator has set up a considerable number of independent bodies which assist the Commission in the preparation and execution of the EU s regulatory policies. These agencies have generally been created in response to the increased requirement for information and co-ordination at the EU level resulting from the internal market project. 1 They have allowed the EU to expand the scope of its regulatory policies, without overstretching the Commission s administrative capacity. Cooperation in the field of Member States justice and home affairs (JHA) originates in the 1970s when outside the EU framework a range of relatively informal and secretive working groups at ministerial level was set up, the most prominent being TREVI. 2 This cooperation was brought within the EU constitutional structure by the inclusion of competences in JHA by the Treaty of Maastricht. Since the Treaty of Amsterdam, the EU s objectives include not only the establishment of an internal market, but also of an Area of Freedom, Security and Justice (AFSJ), covering competences in JHA. By their very nature, these competences touch upon the core of Member States sovereignty and are consequently of a highly political nature. It therefore comes as no surprise that integration in this area, both in terms of the conferral of powers to the EU level as well as the use made of these powers, has taken place incrementally. There is a strong emphasis on practical cooperation between national enforcement authorities, thus avoiding to trigger Assistant Professor of European Law, Europa Instituut, Leiden University. 1 Vos, E., Reforming the European Commission: What Role to play for European Agencies, 37 CMLRev 5 (2000), The Rome European Council of 1975 created the TREVI group, which was a network of national officials from Ministries of Justice and the Interior. It developed a range of working groups that reported to occasional ministerial meetings. One of these working groups, Trevi 92, dealt with the security issues of the free movement of people, including compensatory measures needed for the relaxation of intra-ec border controls. See: Lavenex, S. and Wallace, W., Justice and Home Affairs: Towards a European Public Order?, in: Wallace, H. et al. (Eds), Policy Making in the European Union (Oxford, OUP, 2005),

2 Member States sovereignty concerns with familiar and more symbolically loaded legislation centred indices of national authority. 3 A distinctive feature of governance in the AFSJ has been the setting up of light institutional governance structures which task is to facilitate, coordinate and strengthen the cooperation between national enforcement authorities, whilst at the same time respecting their prerogatives. 4 Many of these institutional structures take the form of regulatory agencies familiar to other policy areas of EU competence. While the Commission has recently taken a more critical approach to agencies, essentially imposing a moratorium on the creation of new agencies awaiting a result of an evaluation of existing agencies, this has not applied to agency proposals already in the pipeline, most of which have concerned agencies in the AFSJ. 5 The purpose of this paper is twofold. First, it takes stock of the agencies established in the AFSJ. It will compare them with their counterparts in other areas of EU competence and position them within the governance structure of the AFSJ after the entry into force of the Lisbon Treaty. Second, it will show that notwithstanding their a-political nature, these agencies have an important potential in transforming law enforcement in the EU and the role of the EU in this regard. 2. Executive power after the Lisbon Treaty In order to better understand the constitutional reality in which agencies in general and JHA agencies in particular operate it is necessary at the outset to consider the nature of their tasks. Although there will be little disagreement that agencies are executive actors, the notion of executive power itself is difficult to define. A residual approach, labelling executive power as the power that does not pertain to the legislator, nor the judiciary is capable of covering the many guises executive action may take. 6 Following the Convention s Working Group on Simplification and the Constitutional Treaty, the Lisbon Treaty distinguishes between legislative acts and non-legislative or executive acts. 7 Here execution however refers to the adoption of legally binding measures 3 Walker, N., In search of the Area of Freedom, Security and Justice: A constitutional Odyssey, in: Walker, N. (Ed.), Europe s Area of Freedom, Security and Justice (Oxford, OUP, 2004), Monar, J., Specific Factors, Typology and Development Trends in Modes of Governance in the EU JHA Domain (New Gov Project, Strasbourg, 2006), 19, available at: 5 COM(2008) 135 final, Commission Communication, European Agencies - The Way forward, 9 6 Curtin, D., Executive Power of the European Union: Law, Pratices and the Living Constitution (Oxford, Oxford University Press, 2009), 51. See also Walker, N., supra note 3, Articles 290 and 291 TFEU. 2

3 which create rights and obligations for third parties. A distinction is made between two types of executive acts. Through delegated acts, the Commission may supplement or amend certain technical, non-essential parts of legislation on the basis of an enabling provision in the basic legislation. Implementing acts, which are adopted by the Commission or the Council, possibly under the supervision of committees consisting of Member State representatives, serve the uniform implementation of legislation throughout the Community. 8 Regulatory agencies have been described by the Commission as required to be actively involved in exercising the executive function by enacting instruments that contribute to regulating a specific sector. 9 This rather enigmatic description however fails to accurately cover the wide variety of tasks that have been attributed to agencies. The use of the term regulatory is also deceiving as the Meroni doctrine imposes strict limits on the delegation of powers to independent bodies, leaving EU agencies rather toothless in comparison to their national counterparts. 10 A number of regulatory agencies has been endowed with the power to adopt legally binding acts, but only in narrowly circumscribed areas where there is little to no room for discretionary decision-making. There is an implicit recognition of the possibility of endowing agencies with implementing powers in the Lisbon Treaty, which grants the ECJ jurisdiction on such act taken by agencies and other bodies of the EU. 11 Still, the Lisbon Treaty, as did the Constitutional Treaty, fails to acknowledge the role of agencies as institutional actors, nor does it provide for a comprehensive framework for executive action in the EU. It remains necessary to look beyond the administration s implementation activity in order to fully appreciate the extent of European administrative space. 12 This is particularly true in the AFSJ, where none of the agencies is endowed with decision making power. These agencies however play an important role in the process of integrating Member States JHA further. They facilitate the exchange of information, provide technical expertise and coordinate operational activities. Especially this latter task distinguishes JHA agencies from most regulatory agencies in other areas of Community policy. 8 The practical application of these articles is currently the subject of inter-institutional negotiations. See for the Commission s view: COM(2009) 673 final and COM(2010) 83 final. 9 COM(2002) 718 final, Commission Communication on the operating framework for the European regulatory agencies, Case 9/56, Meroni [1957] ECR 11 at and Case 10/56, Meroni [1958] ECR 53 at Under this case law, the principle of institutional balance limits the delegation of powers to other EU bodies to tasks involving technical or scientific advice. 11 Article 263 TFEU. 12 Hoffman, H., Mapping the European administrative space, 31 WEP 4 (2008),

4 It is important to recall that before the entry into force of the Lisbon Treaty, policies in JHA were, although united by the common objective of establishing an AFSJ, divided over the first supranational - pillar and the third - intergovernmental pillar of the EU. The Amsterdam Treaty transferred asylum, immigration and other policies related to the free movement of persons from the EU to the EC, to be dealt with under a new Title IV and reformed the third pillar which covered the remaining police and judicial cooperation. The Lisbon Treaty has now brought this policy area under a single legal framework in Title V TFEU. Even if the AFSJ is now united under a single legal framework, the gradual communitarisation of powers in the field of JHA has allowed the Council s Secretariat to develop a distinct executive role in the policy area. Not only did it come to act as a forum for cooperation on operational initiatives between national law enforcement agencies, it also took on a coordinating role itself, in the absence of powers in this regard for the Commission. 13 In addition, it established a range of independent bodies, in which the Member States, rather than the Commission play a prominent role. 14 The Convention s Working Group on the AFSJ intended to separate the Council s operational and legislative role more clearly. 15 It proposed a merging of the various Council working groups dealing with internal security and removing the so-called Article 36 Committee (CATS) from the legislative process, limiting its role to that of co-ordinator of operational co-operation. 16 The Constitutional Treaty provided for, as does Article 71 TFEU, the setting up of a Standing Committee on Internal Security (COSI) which should promote and strengthen operational cooperation on internal security and facilitate the coordination of the activities of Member States competent authorities. The COSI has been established by a Council decision of November Its membership consists of high-level officials from Member States Interior Ministries. EU s JHA agencies may be invited to attend as observers. The COSI will not have a legislative role. 13 Curtin, D., supra note 6, Curtin, D., European Union Executive Actors Evolving in the Shade?, in: De Zwaan, J., et al. (Eds), The European Union: an ongoing Process of Integration, Liber Amicorum A. Kellerman (The Hague, T.M.C. Asser Press, 2004), Interestingly, the Working Group seems to have included the implementation of legislation under the Council s legislative tasks: House of Lords Select Committee on the EU, The Future of Europe: Constitutional Treaty - Draft Article 31 and Draft Articles from Part 2 (Freedom, Security and Justice) (HL Paper 81, Session , 16th Report, 27 March 2003), The CATS formed an additional layer in the normal legislative decision-making process under the third pillar (working-group, COREPER-Council) allowing for the involvement of the ministries of the interior in the legislative process. Final Report of Working Group X on Freedom, Security and Justice, CONV 426/02, 3 17 Council Document 16515/09. 4

5 It will also not be involved in conducting operations, something which is explicitly left to the Member States. Still, the COSI does have the potential to become a powerful body, being the prime responsible for the EU s internal security strategy which covers the whole AFSJ. 18 It is interesting to see how the Council has managed to retain important influence over operational cooperation in JHA. One could even argue it has expanded its influence in areas of competence which had already been communitarised by the Treaty of Amsterdam, such as external border management. 3. JHA Agencies Let us now consider the agencies that have been established in the AFSJ. A distinction can be made between the agencies that were set up under the form first pillar and the bodies that were established under the third pillar. The only JHA agency that was set up under the first pillar is Frontex, the Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union. 19 The European Asylum Support Office (EASO), which was adopted after the entry into force of the Lisbon Treaty and the following merger of the pillars, would also have been covered by the competences of Title IV EC. 20 Eurojust, the European Police Office (Europol) and the European Police College (CEPOL) were adopted under the former third pillar. Eurojust and CEPOL were founded on a Council decision, Europol was initially established under an Article K.3 Agreement after the Maastricht Treaty. 21 The fact that Europol was set up by international agreement made it a difficult and time consuming process to adjust its legal basis to cover new tasks. Moreover, its exact legal position as an EU body with a legal basis under public international law was rather 18 The Stockholm Programme: An open and secure Europe serving and protecting the citizens, Council Document 16484/1/09, point Council Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, OJ 2004, L349/1. One could argue that also the European Union Agency for Fundamental Rights (FRA), set up by Council Regulation (EC) No 168/2007 (OJ 2007, L53/1) falls under the AFSJ objective. The Agency was adopted under Article 308 EC (currently Article 352 TFEU). Whilst it did not have competences as regards third pillar legislation, with the merging of the pillars, it should be deemed competent to provide the EU and the Member States with assistance and expertise relating to fundamental rights when implementing EU law. 20 Regulation (EU) No 439/2010 establishing a European Asylum Support Office, OJ 2010, L132/ Council Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime, OJ 2002, L63/1; Council Decision 2005/681/JHA establishing the European Police College (CEPOL) and repealing Decision 2000/820/JHA, OJ 2005, L256/63; Convention on the establishment of a European Police Office (Europol Convention), OJ 1995, C316/2. 5

6 pillar. 23 It could be argued that the former third pillar agencies should not be regarded as First draft please do not quote! unclear. This was remedied in 2009, when the Council adopted a decision transforming the organisation into an EU body. 22 Currently a proposal to establish an for the operational management of large-scale IT systems in the area of freedom, security and justice, such as the Schengen Information System (SIS), the Visa Information System (VIS) and EURODAC is pending. These databases cover data relating to migration, asylum, visa, as well as police and judicial cooperation. An initial proposal, submitted before the entry into force of the Lisbon Treaty, therefore provided foresaw in the adoption of two separate decisions, one under the first and one under the third regulatory agencies at all as they were set up by the Council, act as mechanisms of cooperation between national authorities and foresee only in a limited role for the Commission. 24 This conclusion seems justified as regards Eurojust and the possible future office of European Public Prosecutor. 25 Nevertheless, the Commission in its 2008 Communication on the future of agencies within the European Union did include Eurojust, Europol and CEPOL. 26 As regards the latter two it may be argued that their institutional setup largely follows the organisational structure of other agencies. In view of the merging of the pillars by the Lisbon Treaty, one could reasonably expect an increasing role for the Commission, as well as further alignment of the these third pillar agencies with the classic Community agencies. For instance, under the Europol Decision the Commission has a fixed position at the Management Board of the agency, whilst under the Convention it could only be invited to observe. 27 As has been the case for many agencies, the delegation of powers to Europol and Eurojust may be considered an extraction of powers of national administrations, much more than a true delegation of powers from the EU institutions to an independent entity. 28 The power to coordinate operational cooperation between national police or judicial authorities has been transferred from the Member States to Europol and Eurojust. A more complex 22 Council Decision 2009/371/JHA, establishing the European Police Office (Europol), OJ 2009, L121/ See for the amended single proposal after the entry into force of the Lisbon Treaty: COM(2010) 93 final. 24 Chiti, E., An important part of the EU's institutional machinery: Features, problems and perspectives of European agencies, 46 CMLRev 5, Article 86 TFEU. 26 COM(2008) 135 final, supra note 5, Article 37(1), Europol Decision. 28 Geradin, D. and Petit, N., The Development of Agencies at EU and National Levels: Conceptual Analysis and Proposals for Reform (New York, Jean Monnet Working Paper 01/04, 2004), 15. 6

7 example of the institutional dynamics of operational cooperation in the AFSJ is offered by Frontex. Although the management of the external borders had already become a Community competence with the Treaty of Amsterdam, it was only with the advent of a Community agency for this purpose that the implementation of this policy lost most of its intergovernmental character. The first initiatives on operational cooperation between national border management authorities took place within SCIFA+, a working party consisting of the Members of the Council s Strategic Committee on Immigration, Frontiers and Asylum (SCIFA) and the heads of national border guards services. Subsequently, the SCIFA+ was slimmed-down to the Practitioners Common Unit (PUC), consisting of the heads of national border guards services alone. The Council has always maintained that the operations conducted under the coordination of the SCIFA+/PUC constituted purely intergovernmental arrangements. This would then confirm that the transfer of powers to agencies often takes places vertically (from the national to the EU level), rather than horizontally (from Community institutions to specialized agencies). 29 On the other hand, if one were to consider the coordinating activities within the SCIFA+/PUC as Community activity, the transfer of operational coordination from the PUC to Frontex nonetheless entailed a significant shift from a Member States driven coordination within the Council to a more supranational approach within a Community agency. In this respect the creation of Frontex has also been described as a rebalancing of powers between the Commission and the Council in this area JHA agencies compared to other regulatory agencies. Upon examining the tasks of the different JHA agencies, once can observe a number of similarities with regulatory agencies in other policy fields in terms of their tasks and their position as focal points in networks of national authorities in their field of competence. Notwithstanding their classification as operational agencies, JHA agencies in many of their tasks resemble classic regulatory agencies in the way in which they contribute to the implementation of an EU policy through the provision of technical and informational assistance. A subtle, yet important difference is that this assistance is geared toward the 29 Dehousse, R., Misfits: EU Law and the misfits of European Governance (New York, Jean Monnet Working Paper 2, 2002), Neal, A., Securitization and Risk at the EU Border: The Origins of FRONTEX S, 47 JCMS 2 (2009),

8 Member States rather than the EU institutions, which bears witness to the intergovernmental origins of the cooperation in JHA and the continuing importance of the Member States in this policy area. With the exception of the proposed database management agency, the JHA agencies confirm the observation by Curtin and Egeberg that Europe s new administrative order does not replace former orders; instead it tends to be layered around already existing orders. 31 These existing orders include also the relations with authorities in third countries and international organisations. 32 Rather than forming the locus for deliberative policy making, which is the case of agencies in the field of product regulation such as chemicals or foodstuffs, agencies in the AFSJ allow for the exchange of information, the establishment of contacts between national authorities and the fostering of a culture of mutual trust. Both the EASO and Frontex have an important role in providing information and technical advice on the implementation of the EU s rules on asylum and the management of the external borders, as well as setting up training courses in their respective fields of competence. 33 Europol provides intelligence and analytical support to Member States in connection with major international events and prepares threat assessments, strategic analyses and general situation reports. 34 The CEPOL has an important role in establishing common curricula and training programmes. 35 A distinctive feature of JHA agencies is their role in the operational activity of the Member States national law enforcement authorities. It is important to stress that in the AFSJ neither the Commission staff, nor the staff of any of the JHA agencies is endowed with autonomous law enforcement powers, let alone powers of coercion. Operational activity at the EU level is therefore limited to the coordination of operational activities of national law enforcement agencies by EU bodies and institutions. Article 74 TFEU on administrative cooperation in the AFSJ refers to cooperation between the relevant departments of the administrations of the Member States. As Article 73 TFEU clearly stipulates, coordination at EU level also does not replace bi- or multi-lateral initiatives between Member States themselves. 31 Curtin, D. and Egeberg, M., Tradition and innovation: Europe's accumulated executive order, 31 WEP 4 (2008), See on the external relations of agencies: Ott, A., EU Regulatory Agencies in EU External Relations: Trapped in a Legal Minefield Between European and International Law, 13 EFARev 4 (2008), Article 2(1)(b), (d) and (e), Frontex Regulation and Articles 6 and 11, EASO Regulation. 34 Article 5(e) and (f), Europol Decision. 35 Article 7, CEPOL Decision. 8

9 Eurojust and Europol form a positive exception to the Lisbon Treaty s ignorance of agencies. Both agencies have a special position within the EU s institutional framework, since the TFEU contains an explicit legal basis for their establishment, and, importantly, for the exercise of their executive powers. 36 Article 88 TFEU on Europol contains also limits the Agency s powers to the extent that any operational activity must take place in agreement with the concerned Member State(s) and that the exercise of coercive powers remains exclusively within the hands of the Member States. These requirements may well be considered to apply to any operational activity in the AFSJ, in view of the Member State s ultimate responsibility for internal security, as confirmed by Article 4(2) EU and Article 72 TFEU. It should be interpreted so as to include a bar on the use of physical force, considering that individual Member States retain a monopoly of the legitimate use of violence. 37 In the case of Europol and Frontex the establishment of an agency formed the codification of previously existing cooperation arrangements between Member States. This on-the-ground cooperation originated in and was coordinated by working groups, consisting of senior officials or law enforcement staff of the Member States rather than forming a bottom-up development. 38 Even if the agency structure provides this type of cooperation with a legislative basis, the operational dimension of the AFSJ is likely to remain a prominent feature of this policy area. This is not merely because Member States are weary of adopting legislative measures in this area, it should also be recalled that law enforcement tasks are themselves of an intrinsically operational nature. The law can only provide the legal basis for enforcement powers and a framework for their exercise, providing for appropriate checks and balances. These powers, checks and balances for now remain determined by the Member States legal orders. 5. The transformative potential of operational cooperation On the one hand Member States and EU institutions alike do no seize to stress the importance of European action aimed at providing the EU citizen with an AFSJ. 39 On the other, the policy area remains highly controversial, touching upon the core of Member States sovereign powers. This has resulted in a focus on operational cooperation and the establishment of 36 Articles 85 and 88 TFEU. 37 Weber, M., The Vocation Lectures (Indianapolis, Hackett Publishing Company, 2004), See Aden, H., Administrative Governance in the field of EU Police and Judicial Cooperation, in: Hofmann, H. and Türk, A. (Eds), EU Administrative Governance (Cheltenham, Edward Elgar, 2006), See for instance the Stockholm Programme, supra note 18. 9

10 agencies in the AFSJ for this purpose, rather than the adoption of substantive harmonisation and a further reaching transfer of powers of law enforcement to the European level. Fostering European integration in the AFSJ by focusing on the merely technical cooperation between Member States competent authorities however fails to acknowledge the highly political and value-laden nature of the competences that are grouped in this policy field. Or more correctly, it acknowledges this highly political nature by masking it as nonpolitical. Of course, as Schmitt already stated, any decision about whether something is unpolitical is always a political decision. 40 However, the coordination of operational cooperation in the AFSJ should not be allowed to substitute policy and lawmaking processes as defined in the EU Treaties and according to which the future direction of the European project in a given area normally would be determined. It would be moreover be incorrect to consider the coordination of operational cooperation itself as a value-neutral or merely technical exercise. Steinberger has rightly argued that it is all too easy to eliminate discourse by reference to the expert-character of the problems involved. 41 The Council itself has noted that intelligence-led law enforcement includes the setting of political priorities. 42 The question is to what extent this should be the task of unaccountable working groups such as COSI or non-majoritarian bodies such as Europol or Frontex. The more general concern that regulatory agencies might stray into areas more properly the domain of the policy-making branches of the EU is equally valid in relation to those agencies that have the task of coordinating operational activity. 43 Lastly, Member States may fail to appreciate the extent to which operational cooperation may penetrate national systems and challenge statist prerogatives. 44 This may relate to both the organisation of Member States law enforcement agencies, as well as the way in which they operate. In this respect light forms of institutional governance, may actually have a deeper transformative potential than one would expect prima facie. Informal structures, which especially after enlargement served an important role as points of encounter and information exchange between officials from different Member States, are 40 Schmitt, C., Political Theology: four chapters on the concept of sovereignty (Chicago, The University of Chicago Press, 1985), 2. See also: De Buck, B., Joint Investigation Teams: The participation of Europol officials, 8 ERA Forum 2 (2007), Steinberg, P., Agencies, Co-Regulation and Comitology: and what about politics? (New York, Jean Monnet Working Paper No.6/01, 2001), Council Document 9596/1/06 REV 1, COM(2008) 135, supra note 5, Walker, N., supra note 3,

11 increasingly being formalised. 45 JHA agencies provide the legal framework through which the resources, technical and human, of the various participants in the network may be deployed jointly. Moreover, the founding legislation for this agency s often contain provisions, which regulate not merely the coordinating tasks of the Agency, but also that of the Agency s staff, as well as national officials that are being deployed outside the territory of their Member State. This is one of the examples in which agencies may promote further substantive integration in the AFSJ. 6. JHA agencies, the seeds for further integration in the AFSJ? In what will follow we will examine two examples that serve to demonstrate how the establishment of JHA agencies contributes not only to the Europeanisation of the administration in the AFSJ, but also to a degree of substantive harmonisation. 6.1 Position of national JHA officials deployed outside their Member State European law has considerably expanded the powers of national law enforcement staff outside national territory. In 2000, the Member States adopted the Convention on Mutual Assistance in Criminal Matters, which in Article 13 provided for the establishment and operation of joint investigation teams (JIT). 46 This provision was then taken over in the Council s Framework Decision 2002/465/JHA on JITs in the aftermath of the 9/11 attacks. 47 JITs are teams consisting of representatives of law enforcement authorities of different Member States that jointly investigate cases of international or cross-border crime. The JIT Framework Decision provides for a mechanism for their establishment and functioning. Seconded officers may be as a minimum be present during investigating actions, but the decision leaves room for an extension of their powers in accordance with the law of the host Member Statetask to take other investigative measures. Article 5(5) of the Europol Decision lists as one of the Agency s tasks to encourage the coordination of measures carried out in the context of joint investigation teams. Probably reflecting the wish to show decisiveness in the EU s struggle against the irregular landings at the southern European sea borders, the powers of guest officers in the 45 Monar, J., Justice and Home Affairs after the 2004 Enlargement, 38 International Spectator 1 (2003), Council Framework Decision of 13 June 2002 on joint investigation teams, OJ 2002, L162/1. 11

12 context of Frontex s joint operations go even further. The Commission s initial proposal regulating the tasks of visiting officers was relatively modest in comparison to the regulation that was finally adopted. The Commission had proposed to allow guest officers to exercise a limited number of task. These included the power to check travel documents, carry out interviews, search means of transport, participate in border patrols and prevent people from crossing illegally the external border of the host-member State, in itself already a very broad formulation. 48 The final version of the regulation however stated that guest officers would have the capacity to perform all tasks and exercise all powers for border checks or border surveillance in accordance with the Schengen Borders Code and that are necessary for the realisation of the objectives of that regulation. 49 Most far-reaching are the provisions on the carrying of weapons and the use of force. Guest officers may carry their service weapons, ammunition and equipment in accordance with the national law of the home Member States. Moreover, they are authorised to use force, including service weapons, ammunition and equipment on 1) consent of both home and host- Member State, 2) presence of border guards of the host Member State 3) in accordance with the law of the host-member State. One can observer here a type of mutual recognition in which as a result of EU law, the host Member State will recognises the status of law enforcement officer given by the home Member State, allowing this officer to act under the legislation of the host Member State. This may of course proof problematic in practice. The national rules, which the visiting officers are to comply with will obviously require translation, explanation and interpretation and can therefore not easily be summarised. One may validly question to what extent it is feasible to give visiting border guards a sufficient understanding of the host Member State s rules during the briefing for JITs or joint operations by Frontex. A project has been set up by Europol and Eurojust to collect the national legislation implementing the JIT Framework Decision. 50 Frontex has sent out questionnaires to its national contact points requesting information on national rules relating to the use carrying of weapons and the use of force in the Member States. 48 COM(2006) 401 final, Proposal for a Regulation establishing a mechanism for the creation of Rapid Border Intervention Teams and amending Council Regulation (EC) No 2007/2004 as regards that mechanism. 49 Regulation (EC) No 863/2007, establishing a mechanism for the creation of Rapid Border Intervention Teams and amending Council Regulation (EC) No 2007/2004 as regards that mechanism and regulating the tasks and powers of guest officers, OJ 2007, L199/30; Regulation (EC) No 562/2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), OJ 2006, L105/1. 50 See Horvatits, L and De Buck, B., The Europol and Eurojust Project on Joint Investigation Teams 8 ERA Forum 2 (2007),

13 In the case of Europol, the Europol Decision specifically foresees a role for its staff in JITs. Within the limits of the host Member State, they may assist in all activities and exchange information with all members of the joint investigation team. 51 Again it is stipulated that they shall not participate in the taking of coercive measures, yet it is unclear to what extent precisely this limits their participation. An operational plan between participating Member States and Europol s Director should specify the conditions for Europol s deployment. 52 In practice, Europol s role in the carrying out of operational activity is rather limited. It resembles the position of Frontex staff in joint operations carried out under the auspices of the Agency. A Frontex staff member coordinates the cooperation between host Member State and participating Member States. Although responsible for the management of the joint operation, s/he does not have the power to take operational decisions. The command over participating assets always remains in national hands and Frontex staff does not actively participate in the border guarding activities of the national officials. Although the Commission in its Communication in preparation of the Stockholm programme did propose the voluntary taking over of command by Frontex, this suggestion was not taken over by the European Council. 53 One may wonder whether in the future the new legal basis in Article 77(2)(d) TFEU, which gives the EU competence to adopt any measure necessary for the gradual establishment of an integrated management system for external borders, will be used to enhance Frontex s role in this regard. 6.2 The creation of pools of national JHA officials A second example of the way in which JHA agencies has an influence on the functioning of national administrations is through the creation of pools of national officials which may be deployed within short notice in emergency situations. Regulation (EC) No 863/2007 amended the Frontex regulation so as to set up such a register of national border guards which may be deployed in case of a sudden influx of third country nationals within the framework of Rapid Border Intervention Teams (RABITs). 54 Likewise, the Regulation establishing the EASO 51 Article 6(1), Europol Decision. 52 Article 6(2), Europol Decision. 53 COM (2009) 262 final, Commission Communication, An area of freedom, security and justice serving the citizen, Article 4c, Rabit Regulation; Article 8b, Frontex Regulation. 13

14 provides for an Asylum Intervention Pool, consisting of national experts, to be deployed in situations of particular pressure on the asylum and reception system of a Member State. 55 In the case of the RABIT Pool, the Frontex Management Board has adopted a decision as regards their number and profiles. 56 The EASO Regulation is more careful emphasising instead the home Member State s autonomy as regards the selection of the number and the profiles of the experts and the duration of their deployment. 57 However, in both cases there is an obligation for Member States to make the officials listed in the pool available when requested to do so, unless they are faced with a situation substantially affecting the discharge of national duties. 58 This has been referred to by the European Parliament as mandatory or compulsory solidarity. 59 Although the assessment of whether such situation exists will lie with the Member States themselves, in line with their ultimate responsibility for the internal security of their state, there is nevertheless a binding obligation on the Member States to provide their national staff for this purpose. For the moment neither the RABIT, nor the Asylum Intervention Teams, have yet been deployed. Nevertheless, the specialist training exercises organised by the agencies for the Members in this pool, will allow for the creation of a more common European approach to their respective duties. 60 In this sense the members of the pools could already be considered as no longer belonging solely to their national administration, but pertaining also to a European integrated administration. 6. Conclusion Since the Treaty of Amsterdam, the AFSJ has gained much importance, a development which with the entry into force of the Lisbon Treaty is likely to continue. However, notwithstanding the application of a unified legal framework to this policy field, it will maintain some of its key characteristics: the political sensitivity of the competences covered by the AFSJ and the operational character of the cooperation between the Member States. JHA Agencies will in many ways fulfil the function of regulatory agencies in other policy fields, namely that of assisting in the implementation of EU policies through the 55 Article 15, EASO Regulation. 56 Decision of the Management Board of Frontex on the profiles and the overall number of border guards to be made available for the Rapid Border Intervention Teams (Rapid Pool), August Article 16, EASO Regulation. 58 Article 8b, Frontex Regulation; Article 16, EASO Regulation. 59 Rapid response teams to tackle illegal immigration (EP Press Release, 26 April 2007). 60 Article 8c, Frontex Regulation, Article 6(6), EASO Regulation. 14

15 provision of technical expertise and information to the EU institutions, as well as the Member States. Their involvement in on-the-ground operational activity, coordinating the cooperation between Member States authorities however sets them apart from most classic regulatory agencies. Although in this regard JHA agencies have been regarded as light institutional structures leaving in tact the prerogatives of the Member States and their JHA authorities, the transformative potential of these bodies should be acknowledged. If the COSI is able to develop its full potential of becoming a powerful executive actor in charge of the EU s internal security strategy, an ever more important involvement of the EU in the JHA policies of the Member States and an empowerment of JHA agencies as instruments thereof, may be expected. The legal framework for the functioning of JHA agencies and the operational cooperation under their coordination has on several occasions expanded the powers of national law enforcement authorities within the framework of such cooperation. One may reasonably expect that in the future the powers of agency staff themselves in operational activity will expand. The Court s Meroni case law does not seem to stand in the way of such delegation of powers from the Member States to JHA agencies, although arguably a legal basis in the Treaties, comparable to that of Europol and Eurojust, would be desirable. The current institutional set-up of the EU would however stand in the way of a conferral of autonomous law enforcement powers, involving the use of coercive measures, to the EU. 15