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Published online by Cambridge University Press: 17 January 2008
The addition of “Justice and Home Affairs” (JHA) to the list of subjects covered in Current Developments reflects the growing significance of this area of European law and policy within the overall Treaty framework. In this introductory note, a brief account is given of the history of co-operation between EU member States in JHA matters, culminating in the significant changes announced in the Treaty of Amsterdam in October 1997. It is a historical record which is marked by discontinuity and institutional complexity, full justice to which would require detailed analysis. Here we confine ourselves instead to a broad-brush approach, seeking to highlight the main themes which have characterised JHA co-operation. In future notes particular areas and issues of current interest will be examined more closely.
1. See e.g. Bieber, R. and Monar, J. (Eds), Justice and Home Affairs in the European Union (1995)Google Scholar; Cullen, D., Monar, J. and Myers, P. (Eds), Co-operation in Justice and Home Affairs: An Evaluation of the Third Pillar in Practice (1996)Google Scholar; Anderson, M., den Boer, M., Cullen, P., Gilmore, W. C., Raab, C. D. and Walker, N., Policing The European Union: Theory, Law and Practice (1995).Google Scholar
2. See Walker, N., “Policing the European Union: The Politics of Transition”, in Marenin, O. (Ed.), Policing Change, Changing Police (1996).Google Scholar
3. For a more detailed analysis, see Benyon, J., Turnbull, L., Willis, A., Woodward, R. and Beck, A., Police Co-operation in Europe: An Investigation (1993).Google Scholar
4. Idem. pp.152–167.
5. A text in English is reproduced as an annex to Schemers, H. et al. (eds). Free Movement of Persons in Europe (1995), pp.547–551.Google Scholar
6. Idem. pp. 552–605.
7. See Anderson et al., op. cit. supra n.1, at chap.7.
8. Idem, chap.4.
9. Reproduced as App.5 to the Report of the House of Lords Select Committee on the European Communities, “1992; Border Controls of People”; Session 1988–89, 22nd Report (HX. Papers 90).
10. For more detailed analysis see Anderson et al., op. cit. supra n.1, at chap.2.
11. O'Keefe, D., “Recasting the Third Pillar” (1995) 32 C.M.L.R. 893, 902.Google Scholar
12. Art.K.3(2) TEU.
13. Monar, J.. “European Union—Justice and Home Affaire A Balance Sheet and an Agenda for Reform”, in Edwards, G. and Pijpers, A. (Eds), The Politics of European Treaty Reform: The 1996 Intergovernmental Conference and Beyond (1997), pp.326–339, at p.330.Google Scholar
14. Art.K.9 TEU.
15. Art.K.4(2) TEU.
16. Art.K.6 TEU.
17. Art.K.3(2) TEU.
18. The most controversial example to date has been the Europol Convention (1995) O J. C316. After its conclusion in July 1995. ratification and implementation were delayed pending an agreement on the role of the ECJ. When the matter was finally resolved in the form of a Protocol to the European Convention in July 1996, it effectively took the form of an agreement to differ, with each high contracting party retaining the option to accept the jurisdiction of the ECJ to interpret the Convention by means of a declaration to that effect.
19. See e.g. Monar, , op. cit. supra n.13: Meyring, B., “Intergovernmentalism and Supranationality: Two Stereotypes for a Complex Reality” (1997) E.L.Rev. 221.Google Scholar
20. See e.g. Bigo, D., “The European Internal Security Field”, in Anderson, M. and den Boer, M. (Eds), Policing Across National Boundaries (1994), pp.161–173Google Scholar; Spencer, M., States of Injustice: A Guide to Human Rights and Civil Liberties in the European Union (1995).Google Scholar
21. See Monar, op. cit. supra n.13.
22. The present note refers only briefly to the relevant provisions of the new Treaty. A more detailed analysis of these provisions in so far as they relate to the free movement of persons will be provided in a subsequent note by Julian Lombay.
23. New Title IIIa, Art.73i–q.
24. Protocol Integrating the Schengen Acquis Into the Framework of the European Union.
25. Protocol on the Application of Certain Aspects of Article 7a of the Treaty Establishing the European Community to the United Kingdom and to Ireland.
26. Protocol on the Position of the United Kingdom and Ireland.
27. Protocol, supra n.24, Arts.4–5.
28. Protocol on the Position of Denmark.
29. Protocol, supra n.24, Art.6.
30. The further development of this provision under the Amsterdam Treaty, replacing the existing Art.K.7 with new Arts. 12, IS and 16 TEU, allows member States to make use of Community mechanisms, institutions and procedures in the furtherance of co-operation.
31. New Art. K.11 TEU.
32. Under the new Treaty, joint actions and joint positions are both abolished, to be replaced by framework decisions, decisions, and common positions; see new Art.K.6 TEU.
33. New Art.K.6 TEU.
34. New Art.K.7 TEU.
35. Professor Dierdre Curtin, in a lecture to the Annual Congress of the Academy on European Law in Trier, 20 June 1997; quoted in Statewatch, Vol 7, No 3 (May–June, 1997), p.18.Google Scholar