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An analysis is made of the creation of new European Union (EU) spaces for cooperation in policing and immigration policies. The Treaty of Rome was silent on both topics, and before the Maastricht Treaty on European Union (TEU), European Community (EC) states had begun to coordinate their responses to specific problems – such as terrorism, drugs, and asylum seekers – usually on a bilateral basis, with multilateral forms of cooperation fragmented, ad hoc, and outside EC structures. The chapter has three main sections, the first of which briefly describes the institutional landscape in policing and migration in Europe before the TEU. Section 2 assesses the major internal and external changes – the Single Market and the collapse of the Iron Curtain, respectively – that provoked the move toward institutionalizing police and migration cooperation at the EU level; it devotes particular attention to the domestic crisis in Germany resulting from massive migrations from the east, and the policy entrepreneurship of Germany’s Chancellor Helmut Kohl. Section 3 analyses how the Third Pillar of the TEU, that on Justice and Home Affairs (in which policing and immigration policies were combined) borrowed from existing institutions – most notably the Second Pillar (the Common Foreign and Security Policy); the Amsterdam Treaty (1996) then partially separated policing and migration again – but with a completely different institutional structure within the European Union.

Chapter 6 sets out to explain the dynamics of multi-level governance as regards the evolution of forms of public communication and the making of a European public sphere. The central theoretical concern is discussed with empirical reference to core areas of governance in the fields of justice and home affairs. So far, research has mainly taken an intergovernmentalist perspective, which fails to explain the institutional dynamics of intensifying cooperation in these fields which is slowly integrating the ‘European security community’ into an encom-passing ‘area of justice, freedom and rights’. The intergovernmentalist account neglects two significant factors: first, that governments act within an expanding transnational field made up of norms, discourses and institutions that increasingly constrain their action. Second, competitive actors within the field are more and more linked to public monitoring of their activities. Consequently, the transnational field is transformed into a public space attended by different audiences with shifting attention and expectations. The term ‘transnational resonance structures’ is introduced to account for the integration and legitimation of forms of ‘loose coupling’ between international, European and domestic politics as the organizing principle of governance in Europe.

This chapter maintains that the transition of formal decision rule to the Community method, in combination with a high acceptance of conflict-minimizing special arrangements for cooperation-reluctant member states, has been at the centre of the EU's efforts to mitigate problems associated with the joint-decision trap in the field of justice and home affairs. The role of supranational actors in undermining veto players' positions has been less influential than in other policies, although it has evolved with the entering into force of the new decision rules. Using the Prüm Process of police data sharing as a case study, the analysis illustrates how a group of member states managed to escape from a particular decision-making blockade by promoting an enhanced form of cooperation outside the EU's legal framework.

This chapter examines the interplay between the desire to protect human rights and the need for citizens to have ‘freedom, justice, and security’ (FJS). It tracks the development of FJS from its early incarnation in the Justice and Home Affairs (JHA) Pillar — introduced by the Maastricht Treaty — through to the changes introduced by the Constitutional Treaty. It argues that the evolution of JHA and the present debate about the constitutional future of the EU are poignant reminders of the fact that EU constitutionalism is, essentially, an ongoing process of debate and engagement with the principles and terms of European governance and with institutional design.

European integration in Justice and Home Affairs (JHA) since the Maastricht Treaty is often imagined as a process of communautarization. This chapter argues that in spite of this characterization, the governance of JHA shares many features with the new intergovernmentalism. Similarities involve the leadership role of the European Council, the development of new flexible modes of governance as well as the rise of informality in co-decision. Much of what passes as closer integration in JHA is aimed at coordinating increasingly national resources around a set of elite and practitioner-driven networks. Furthermore, in spite of the increased polarization and politicization fostered by the European Parliament, the concern of JHA agencies as de novo institutions is overwhelmingly with that of ‘operationalization’, with the effect of de-politicizing issues that remain contentious at the national level.

EU Justice and Home Affairs (JHA) law has been subject to a complex institutional evolution, culminating in the application (to a large degree) of the ‘Community’ approach to decision-making, legal instruments, and jurisdiction of the Court of Justice with the entry into force of the Treaty of Lisbon. The trade-off for this evolution has been (as with the creation of monetary union) an opt-out for those Member States with misgivings about applying a supranational institutional framework to this area. The evolution of EU policy in relation to criminal law and police cooperation has been less dramatic, although it is clear that to date, different models have been followed in different areas of JHA law (visas/borders, asylum, irregular immigration, legal immigration, and criminal law), with some degree of evolution in the models followed, particularly as regards asylum and legal migration. In particular, there are interesting points of comparison between this area and some of the principles underlying the development of the internal market. This chapter considers the evolution of EU law in temporal terms. This is followed by consideration of the evolution of policy concerning criminal law and cooperation and analysis of the role of the CJEU in this area.

This chapter provides a wider historical perspective of internal security cooperation in Europe since 1975 before reviewing the specificity of this policy field in comparison with other areas of EU integration. This specificity is primarily due to its focus on internal security as a fundamental public good traditionally under the exclusive competence of the nation-state, along with its implications for the rights of the individual. The latter part of the chapter identifies five factors which primarily account for the dynamic evolution of internal security cooperation: the growth of common threat perceptions, the perceived need to take common compensatory action for the increased permeability of internal borders within the EU, the perception of EU enlargement as an internal security challenge, specific national concerns of certain member states, and, finally, the roles, interests, and agendas of the EU institutions and agencies.