I.  Introduction

The five scenarios formulated in the European Commission’s White Paper on the Future of Europe represent a potential peek into the future, and the following paragraphs will investigate whether the European Union’s status quo should shift towards a new, ambitious vision or just continue muddling through. This paper will focus on the third scenario, i.e., a multi-speed Europe, which has been endorsed by the leaders of the big four EU Member States: Germany, France, Italy, and Spain. The purpose of this article is twofold: firstly, it tries to explore the feasibility of the third scenario envisioned in the European Commission’s White Paper on the Future of Europe, i.e., “those who want to do more do more,” and secondly, it examines and tests this scenario in the Area of Freedom, Security and Justice (AFSJ) by looking at European detention conditions. This particular focus will exemplify whether the current challenges can somehow be tackled more efficiently in the setting of a “coalition of the willing states.”¹

In the first section (below II.), the constitutional aspects of the EU, such as sovereignty and integration, will be touched upon, since it is also important to perceive the AFSJ in the broader context of European integration. After assessing the reality and impact of having a multi-speed AFSJ, the analysis will devote particular attention to the internal challenges that this single area faces. In the second section, I will argue that this common space has been built on a paradox, i.e., a form of “territorial unity”² based on three supposedly interlinked notions: freedom, security, and justice. Specifically, each of these three concepts will be associated with quantifiable issues such as the mutual recognition principle (based on mutual trust), fundamental rights, public security, and EU citizenship. It will be argued that the clash between the three supposedly interlinked notions of freedom, security, and justice constitute the main obstacle in achieving more coherence and uniformity in this European space. This will be demonstrated by looking at what I believe is the “root of the problem,” i.e., prison overcrowding. Therefore, the second section (III.) tests the feasibility of the third scenario by taking a closer look at European detention conditions.

The impracticability of having a “multi-speed AFSJ,” due to the potential tensions it might create among the Member States and their domestic legal systems, will become readily apparent. Examples will be provided to emphasize the spillover effects that poor detention conditions have, not only for the EU citizens but also for the Member States. Overall, the concerns voiced in this paper can be viewed in light of the current tug-of-war between the domestic and supranational levels, which in turn can be translated as an issue of “fragmented institutionalism.”³ The normative value of this paper will become evident when discussing three possible outcomes for the future of the AFSJ. It should be emphasized, however, that, in the end, it is up to the EU and its Member States to make this choice. It will be interesting to see which possibility will they favour: a multi-speed AFSJ, a utopian EU criminal law policy, or just a common EU legal culture?

II.  The Future of the AFSJ

The European Commission released its “White Paper on the Future of Europe”. on March 2017.⁴ This guiding document sets out the main challenges and opportunities for Europe in the coming decade. Firstly, the paper analyses the “driving forces” of Europe’s future. Secondly, it presents five scenarios on how the EU could evolve by 2025. This depends on how the Union responds to the on-going challenges. Moreover, these scenarios aim at creating a vision for the EU after UK’s Brexit. The drafters of the paper did not, however, envision concrete actions or policy prescriptions. Thus, as Armin Cuyvers notes, these five scenarios are not mutually exclusive, which means that, in the end, a combination of the different scenarios can also be contemplated.⁵ Even though the European Council was divided on the presented vision of a multi-speed EU (third scenario), the leaders of Germany, France, Italy, and Spain – the “Big Four” – endorsed it. Therefore, it will be interesting to see whether this leads to a situation where diverging perspectives (e.g., in relation to security information, criminal evidence, transfer of prisoners, etc.) of the “willing States” clash. The following paragraphs will only consider this third option and takes the AFSJ as a testing area. We will explore the potential impact in the AFSJ should the idea of a multi-speed EU become a fully-fledged political effort.

1.  Main Concerns

Under the proposed model of a “coalition of the willing”, a group of countries deepen their cooperation in certain areas such as security or justice matters. The issue of having different speeds of integration within the EU means that, by advancing integration among some countries, questions regarding the cohesion of the EU will arise. The challenge may then translate into a situation in which policies of integration produce a hostile environment within the EU, especially among those states that were not included in the process. In order to understand the potential consequences of the third scenario, one needs to first become familiar with the concept of sovereignty, which can be viewed as a claimed status that is usually asserted when this status is challenged. Here, it is important to note that Cuyvers, while discussing the potential conflict between sovereignty and integration, has tried to emphasise that this tension should be actually exposed as a clash between two strands of sovereignty, i.e., internal (the people) and external (the state) sovereignty.⁶

This relationship is described in the sense of a confederal notion of sovereignty. By making a comparison with the US federal system, Cuyvers highlights the fact that confederal systems, such as the EU, incorporate extra-state and even non-state entities into the national constitutional framework for the delegation of sovereign powers. As a result, the state loses some of its sovereignty, but the people do not lose their sovereignty. He therefore argues that European integration does not conflict with sovereignty as such but only with external concepts of sovereignty. He further states that we are witnessing a relative decline of external sovereignty and a relative ascendance of internal sovereignty.⁷ In the AFSJ, one could infer this from the 2017 EU Citizenship Report, which envisions that the vast majority’s belief leans towards a more common EU action in order to address security threats.⁸

The external sovereignty claim has been at the core of the AFSJ since its inception.⁹ This was due to its link with sensitive areas such as criminal law, security, migration, and border control, which are closely related to the nation-state. As a result, Member States were unwilling to abandon the intergovernmental structure entirely. ¹⁰ Particularly, since the drafting of the Maastricht Treaty, the Member States have tried to keep EU criminal law outside the supranational arena.¹¹ After the Amsterdam Treaty, the AFSJ emerged, and it was the Tampere Council conclusions in 1999 and the subsequent Hague and Stockholm programmes¹² that established the foundations for a European criminal law. The resulting institutional arrangement reflects a compromise, something that Stephen Coutts describes as a “halfway house between supranationalism and intergovernmentalism.”¹³ The Lisbon Treaty has been perceived as a step closer to constructing the AFSJ as a common space and, eventually, more as a European public order.¹⁴ Even after its consolidation and incorporation into the supranational architecture, the AFSJ was seen by many as lacking a “particular finalité.”¹⁵ Beyond abstract commitments, EU criminal law aspects are addressed in a fragmented way, and one can easily observe that there is no general broad criminal policy theme.¹⁶

Therefore, the main concerns for having a multi-speed Europe, in which only the willing States get to be involved, stem from the very fact that the framework in which it takes place cannot be characterized by uniformity and coherence, and it forces one to choose between either the EU or the Member States.¹⁷ A European criminal justice system is a vital part of securing the European public interest and, as a result, it should be more than the sum of the parts its Member States have endowed it with. By viewing European criminal law as set within a broader context that of a justice system, a clear condition that this new system requires is a quasi-constitutional setting. The current European criminal justice system can be regarded as undermining the constitutional relationship governments have with their citizens.¹⁸ As mentioned above, this occurs because, in the AFSJ, the external sovereignty component has often clashed with the internal one, and this in turn allowed national governments to create a forum in which their one-sided criminal policy concerns dominate. Therefore, this policy area essentially remains one driven purely by political will via ad hoc action (e.g., unanimity requirements and emergency break provisions) and, as such, the current structure ignores the revolutionary character of EU criminal law. The next section will discuss these issues and their consequences in light of a multi-speed AFSJ.

2.  AFSJ at a Crossroads Between Sovereignty & Integration

As we have seen, by applying the multi-speed scenario to the current AFSJ mechanism, one could argue that the current structure of the system will not be affected per se; thus, the idea of deeper cooperation will be preserved in the future. A possible outcome would be that the Member States are unreceptive to the overall concept of deeper integration, especially when asked to support certain areas of AFSJ cooperation.¹⁹ However, it is clearly not what the current situation (i.e., EU crisis on different fronts such as immigration flows and detention, threatened EU financial interests, overcrowded prisons, etc.) demands. Ostensibly, by allowing the possibility of having too many “speeds” that go in different directions, it seems that the AFSJ will become too prone to differentiation and exceptionalism.²⁰

Thus, it can be argued that the way forward is not to have a small group of countries that advance integration among themselves but to move towards a new criminal justice system in the AFSJ that takes into account not only cultural diversity (of the various national systems, both for practical and constitutional reasons)²¹ but also other imperative needs such as fundamental rights and security. Consequently, rather than dealing with the traditional questions such as the division of competences between the Union and its Member States, one should pay attention to questions that are more directly related to the EU constitutional structure, e.g., the balance between fundamental rights, on the one hand, and the States’ interest in public order, security, and migration control, on the other.²²

In the broader EU context, the question of conferral of powers is much more than the mere consideration of whether a law was enacted legitimately.²³ This is mostly due to the existence of EU law that builds and relies extensively on the willingness of its Member States to accept the supranational character of the Union. Consistency, however, stems directly from the principle of conferral, and a lack of consistency in the EU, especially in the AFSJ, might result in legal uncertainty, which in the context of the Court of Justice of the European Union (CJEU) case law, would have an adverse effect on, for example, the rights of EU citizens and effective judicial protection.²⁴

Therefore, as noted by Neil Walker, one cannot think of the AFSJ as forming a “natural unity” especially in terms of a clearly defined project.²⁵ As such, the AFSJ is sometimes seen as a fictio iuris, which reflects this ambiguous idea that, irrespective of the new EU competences in this area, they “shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security” (Article 72 TFEU).²⁶ However, configuring the AFSJ to what Massimo Fichera calls “a space in which imperialistic and functional elements are disguised under a thin veil of normativity”²⁷ may be difficult to achieve, especially if one disregards the balance between the three “common constitutional commitments” of freedom, security and justice.²⁸

III.  “A European Public Order:” Moving Towards an EU Criminal Law Policy?

Despite the above-mentioned hurdles, the AFSJ has constantly evolved into a complex set of institutions, agencies, legislative initiatives, and principles. This, however, is in sharp contrast with the loss of legitimacy and appeal that the EU is currently experiencing.²⁹ The following paragraphs will offer a visionary approach by focusing on the more sensitive area of criminal law. It will be argued that there is an immediate need to construct an EU criminal law policy so as to avoid the “legislative chaos” inherent in the “patchwork structure” of the AFSJ.³⁰ In order to understand this argument, it is important to first look at the clash between three supposedly interlinked notions of freedom, security, and justice. By doing so, I will show why this conflict constitutes the main obstacle in achieving more coherence and uniformity in this European space.

I will demonstrate the impracticability of having a multi-speed AFSJ by testing and applying this hypothesis to the issue of detention conditions. The feasibility of applying the third scenario to the current AFSJ structure will be assessed by looking at prison overcrowding which I consider the “root of the problem”. Potential tensions might be created among the Member States and their domestic legal systems. The normative value of this assessment will become evident when discussing three (possible) future outcomes. Thus, the following will consider alternative options to the multi-speed scenario in order to avoid a fragmented system subject to the principle of attributed powers.³¹

1.  The Challenge of Balancing Freedom, Security & Justice

The AFSJ is a unique concept that has the goal of creating and strengthening the European judicial area by combining two different elements: sovereignty and integration.³² However, in order to have an efficient, coherent, and fair system of police and judicial cooperation there is a need for a more coordinated approach. A successful policy that leads to such an outcome requires a strong foundation of mutual trust,³³ which in turn requires a certain degree of approximation in order to be achieved.³⁴ Even though the AFSJ is characterised as an important step in the process of EU constitutionalisation, it seems that its supposedly interconnected notions of freedom, security and justice have yet to acquire an autonomous meaning and weight in this process.³⁵ Striking a balance between these values is an important step towards constructing the AFSJ as a “legal and political, but mainly as a moral space,”, as Fichera puts it.³⁶ This is a difficult task for both the EU and the Member States, since one can clearly observe the EU’s insistence on adopting a dominant security approach.³⁷ Many scholars have argued that the keystones of EU integration (such as EU citizenship, the four freedoms, the uniform and effective implementation of EU law, etc.) are “exposed to the expansion of the security discourse.”³⁸ The prevalent idea that the other two values, freedom and justice, need to be seen “through the lens of security”³⁹ has to be considered in order to understand how this will affect the multi-speed AFSJ.

If one considers the leading academic perspective, i.e., that the AFSJ is permeated by a security discourse,⁴⁰ one can observe that the security dimension becomes the precondition for the exercise of free movement (the “freedom” aspect of the AFSJ).⁴¹ However, while free movement rights can only be enjoyed if they are not threatened or undermined by criminality, these rights also need to be secured, i.e., free from measures that arbitrarily constrain individual liberty. One can immediately observe how narrowly the concept of freedom has been constructed in the AFSJ. This is also the case for the notion of justice, which has been perceived mostly in procedural terms, and it has been frequently seen to form “a core part of the rule of law.”⁴² Unsurprisingly, the rule of law is considered an EU constitutional principle and is listed in the Treaty as one of the foundational notions on which the EU has been built.⁴³ It is also closely connected to the constitutional question concerning the objectives the EU should safeguard and the limits set by the Treaty.⁴⁴ Yet, the substantive legitimacy of a political community is premised not only upon the establishment of the rule of law but also upon subjecting it to popular self-determination, i.e., a people’s freedom to determine one’s own constitutional form.⁴⁵ Therefore, the AFSJ should be seen in the context of EU constitutionalisation as “a way of dealing with Europe’s complexity and multilevel realities.”⁴⁶ The following section will elaborate on the “root of the problem,” i.e., having a multi-speed AFSJ and, as a result, some alternatives will be suggested.

2.  The Challenge of Prison Overcrowding as a Testing Ground

In April 2001, the European Court of Human Rights (ECtHR) took a major turn in direction in its case law. In response to Peers v. Greece,⁴⁷ the Court declared that unsatisfactory detention conditions (e.g., overcrowding resulting in poor living space, inadequate ventilation, and lack of hygiene) could constitute a breach of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).⁴⁸ This judgment made clear that the Member States of the Council of Europe may run the risk of being convicted in case they fail to tackle the problem of overcrowding. Moreover, at the EU level, the prison overcrowding relates to mutual recognition of judgments, with the CJEU having to deal with this issue on several occasions.⁴⁹ It has done so by balancing fundamental rights against the mutual recognition principle. In the criminal justice area, this can become problematic, since it fails to appreciate that security interests need to present a necessary and proportionate deviation from a fundamental right, as becomes clear from Article 52(1) of the Charter.⁵⁰ It will be argued that, despite the case law on the matter, overcrowding still represents a key challenge in many European prisons.⁵¹ As a result, the following paragraphs will also take into account the debate on whether detention conditions may be considered an aspect of criminal procedure and therefore something that falls within the scope of EU competence to approximate.⁵²

In order to understand the widespread problem,⁵³ attention should be given to the harmful effects, both in quantitative and qualitative terms. Quantitatively, prison overcrowding is often seen as “the mismatch between prison capacity and the number of prisoners to be accommodated.”⁵⁴ Qualitatively, the impact of overcrowding on the prisoner can be described as “a subjective feeling of insecurity and insufficient living space” and with respect to the staff as “a sense of overload and uncontrollable situations.”⁵⁵ Thus, the harmful effects affect not only the prison administration but also the prisoners, staff, and society as a whole. As noted in Recommendation Rec (99)22 concerning prison overcrowding of the Council of Europe, these issues “represent a major challenge to prison administrations and the criminal justice system as a whole, both in terms of human rights and of the efficient management of penal institutions.” It is important to reiterate the urgency of remedying this problem, since there are various risks pertaining to both fundamental rights and internal security of the EU. For example, in July 2017, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) has publicly stressed the serious consequences of overcrowding for prisoners and staff due to the Belgian authorities’ failure to comply with existing prison capacity standards.⁵⁶

It is now necessary to examine this issue in light of the mutual recognition principle and fundamental rights. Accordingly, the application of the mutual recognition principle in the AFSJ implies a certain degree of automaticity, in the sense that judicial decisions taken in one Member State should be accepted in another Member State. In the criminal law area, the CJEU interpreted this principle as meaning that “Member States are in principle obliged to give effect to a European Arrest Warrant.”⁵⁷ These definitions are closely related to the goals of free movement and the integration method of home state control, which means that, once the requirements of the home state are fulfilled, the (judicial) product or person moves freely.⁵⁸ In the context of surrender procedures, one needs to stress the Court’s recent shift in approach,⁵⁹ whereby mutual recognition can be limited when there is a risk of a human rights violation (e.g., in case a person needs to be surrendered to a Member State that has serious overcrowding issues). However, this limitation has been constructed as an additional non-execution ground based on fundamental rights in the Framework Decision on the European Arrest Warrant. This may become a problematic situation that has direct effect on EU measures and judicial cooperation, since, according to the mutual trust principle (the corollary of mutual recognition), there is a presumption of compliance with international obligations (including fundamental rights).⁶⁰

In terms of fundamental rights, the issue of overcrowding is considered a significant source of inhuman and degrading treatment.⁶¹ This has also been reiterated by the ECtHR.⁶² For example, if there is a risk that the requested person (under a EAW) will be subject to such treatment, the executing authorities need to postpone the warrant until the issuing authority has provided assurances that eliminate the risk.⁶³ Such a mechanism is controversial for two reasons. First, by relying on assurances, one involuntarily creates two classes of EU citizens, i.e., those that are detained in adequate conditions and those that remain in inadequate conditions because they were not arrested abroad.⁶⁴ Second, by requesting assurances (i.e., by consulting ECtHR case law and UNHCR reports), the competent national authorities are encouraged to act as “delegates for the application of European fundamental rights law.”⁶⁵ Thus, by attributing judicial review powers to cases of potential human rights violations, it allows national authorities to transgress into their counterparts’ legal system. This in turn might become a source of great tension among the Member States, which, until recently, were used to adhering to mutual recognition based on trust.

IV.  Conclusions

In the early 90s, at the inception of the AFSJ, few would have imagined that this area would go so far in terms of both material scope and legislation, especially in such a short time.⁶⁶ As such, the AFSJ can be broadly conceptualized as the realization of the internal market principle of free movement, along with associated concerns as to individual rights.⁶⁷ Beyond the bare AFSJ label, however, there is not much coherence immediately apparent, in the sense of an attempt to construct a new policy out of the Member States’ diverse parts.⁶⁸ In the context of a multi-speed scenario, it has been seen that the Member States may be unreceptive to the overall concept of deeper integration, especially when asked to support other areas of AFSJ cooperation. This is because such cooperation can be perceived and presented as what Eleanor Sharpston calls “an enlightened defence of their national sovereignty,” rather than “the undesirable pooling of national sovereignty within a post-nation state universe.”⁶⁹

Some argue that, in order to remedy the current challenges, the EU needs to shape an EU criminal law policy. Some scholars argue that, by having a common criminal policy, the EU will be able to guide legislative development and, as a result, reflect on the goals of criminal law, also in light of social and political consideration.⁷⁰ Others⁷¹ advocate a purely legalistic approach. However, as we have seen there are a number of challenges (i.e., the principle of conferral, the balancing of the three notions “freedom, security and justice”, and the issue of coping with diversity) that the development of an EU criminal law policy faces in light of the specific EU context. Thus, the main point is that the constitutional fencing of asymmetry stemming from differentiation has to be counterbalanced against EU’s political nature and its irregular justifiability.⁷²

Given the multiple actors involved, the challenge of uniform implementation, while ensuring respect for diversity, is pressing and urgent. For this reason, I propose that the European Council should take up the task of drafting a single European criminal law policy. According to the Treaty and in particular Article 68 TFEU,⁷³ the European Council would be the most evident choice for drafting a global approach in relation to an EU criminal policy, since it could make the required political choices after a multidisciplinary consultation of all stakeholders involved, including practitioners. On the other hand, one can infer from the strategic guidelines of June 2014⁷⁴ that the European Council has radically changed its approach by choosing not to focus on an ambitious project for the AFSJ. While the Stockholm Programme emphasized the need for harmonisation of EU substantive criminal law, the European Council Conclusion contained minimal − if any − references to criminal law harmonisation. This new, limited approach may pose problems for a more active European Council in the field of EU criminal policy. This discussion is still in its early stages, and it is still not known whether the Member States will perceive this as an intrusive option that challenges respect for diversity. However, a less intrusive approach would be to develop a common EU legal culture among criminal justice practitioners with the help of the European Judicial Training Network,⁷⁵ whereby mutual trust would be strengthened across all levels of the national criminal justice system. Therefore, it remains to be seen which choice the EU and its Member States will favour: will it be a multi-speed AFSJ, a utopian EU criminal law policy or just a common EU legal culture?