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Published by European University Institute (EUI) Via dei Roccettini 9, I-50014 San Domenico di Fiesole (FI) Italy ISBN:978-92-9084-882-0 doi:10.2870/66646 QM-04-20-173-EN-N 20 YEAR ANNIVERSARY OF THE TAMPERE PROGRAMME Europeanisation Dynamics of the EU Area of Freedom, Security and Justice EDITED BY Sergio Carrera Deirdre Curtin Andrew Geddes European University Institute, Florence, Italy iv V Table of Contents Preface - European AFSJ. Common Values as the Gateway for Future Development ix Malin Brännkärr Introduction - Setting the Scene 1 Sergio Carrera, Deirdre Curtin and Andrew Geddes PART I - The Lisbonisation of EU AFSJ Policies 5 1. Tampere and the Politics of Migration and Asylum in the EU: Looking Back to Look Forwards 7 Andrew Geddes 2. The Appeal to Tampere’s Politics of Consciousness for The EU’s AFSJ 19 Dora Kostakopoulou 3. The AFSJ Two Decades After Tampere: Institutional Balance, Relation to Citizens and Solidarity 27 Jörg Monar 4. Twenty Years Later: The Legacy of the Tampere Conclusions 39 Kimmo Nuotio 5. Tampere Programme 20 Years on: Putting EU Principles and Individuals First 51 Sergio Carrera PART II - Borders and Asylum 65 6. The European Border and Coast Guard in the New Regulation: Towards Centralisation in Border Management 67 Juan Santos Vara 7. Reinstatement of Internal Border Controls in the Schengen Area. Conflict, Symbolism and Institutional Dynamics 81 Galina Cornelisse 8. Normalising 'the Hotspot Approach?' An Analysis of the Commission's Most Recent Proposals 93 Giuseppe Campesi 9. EU Asylum Policies Through the Lenses of the UN Global Compact on Refugees 105 Sergio Carrera and Roberto Cortinovis VI 10. Search and Rescue at Sea, Non-Governmental Organisations and the Principles of The EUs External Action 123 Paolo Cuttitta PART III - Irregular and Regular Immigration 145 11. 20 Years After Tampere’s Agenda on “Illegal Migration”: Policy Continuity in Spite of Uninteded Consequences 147 Virginie Guiraudon 12. Micro-Harmonisation of The Fundamental Right to an Effective Judicial Remedy in the Proposed Return Directive and Beyond: a Dangerous Path? 157 Elise Muir and Caterina Molinari 13. 20 Years of ‘Partnership with Countries of Origin and Transit’ 173 Michael Collyer 14. Who Is a Smuggler? 183 Gabriella Sanchez 15. EU Legal Migration Policies Since Tampere, and Their Relationship with International Standards and the UN Global Compact for Migration 197 Ryszard Cholewinski PART IV - EU Criminal Justice Cooperation 217 16. 20 Years From Tampere. The Constitutionalisation of Europe’s Area of Criminal Justice 219 Valsamis Mitsilegas 17. European Criminal Justice – From Mutual Recognition to Coherence 225 Dominik Brodowski 18. ‘Scenes From a Marriage’: Trust, Distrust and (Re)Assurances in the Execution of a European Arrest Warrant 239 Pedro Caeiro 19. The Dynamic Evolution of EU Criminal Law and Justice 251 Maria Bergström VII PART V - Police Cooperation 265 20. Internal Security in the EU and Police Cooperation: Operational Police Cooperation 267 Saskia Hufnagel 21. From Tampere Over Stockholm to Luxembourg and Brussels: Where Are We Now? The Evolution of AFSJ Databases – Meandering Between Security and Data Protection 279 Teresa Quintel 22. Targeted Surveillance: Can Privacy and Surveillance Be Reconciled? 295 Edoardo Celeste and Federico Fabbrini Contributors List 309 VIII IX PREFACE EUROPEAN AREA OF FREEDOM, SECURITY AND JUSTICE – COMMON VALUES AS THE GATEWAY FOR FUTURE DEVELOPMENT Malin Brännkärr Twenty years ago, Finland, a relatively new member state of the European Union, held the Presidency of the Council of the Euro- pean Union for the first time. At the time, European integration had reached a new stage and the Tampere European Council held an important meeting in which a groundbreaking decision was made. This decision profoundly changed the European Union and subsequently created a Union of Freedom, Security and Justice. In 2019, the Finnish Presidency coincides with the 20th anni- versary of the adoption of the Tampere Milestones in the European Council Conclusions of October 1999. Since the very beginning, it was clear that the European area of freedom, security and jus- tice could only be built based on a shared commitment to human rights, democracy and the rule of law. Furthermore, the same basis serves as the foundation for any future development of EU Justice and Home Affairs. After Tampere, Justice and Home Affairs soon became the fastest developing policy field in the union, and fundamental rights, stable institutions and well-functioning justice systems became more and more important during any ongoing accession Table of Contents X PREFACE process. For two decades now, the area of freedom, security and justice has been built with remarkable achievements. Simultane- ously, the European Union has expanded by way of the accession of new Member States. In the multi-annual programmes of Tam- pere, The Hague and Stockholm, the European Council has guided further steps to be taken in the field of Justice and Home Affairs. Once again, we are at a crossroads, and I thank CEPS and the European University Institute (EUI) for taking this opportunity to jointly discuss new milestones and paths to follow. The Finnish Presidency in 2019 also coincides with a new insti- tutional set up. We decided to use the opportunity to invite EU Justice and Home Affairs ministers to identify and explore key issues for future development, based on the new Strategic Agenda adopted by the June 2019 European Council. Moreover, the new European parliament started its work and the President-Elect of the new Commission has published her political guidelines for the future. I myself approach the future from the perspective of common European values. For the development of Justice and Home Affairs, a strong foundation of our common values is per- haps more important today than ever before. Therefore, the first priority of the Finnish Presidency was to strengthen the toolbox that contributes to strengthening the protection of fundamental rights, democracy and the rule of law in the Union. With a view to the new strategic agenda and the political guide- lines of Ms Ursula von der Leyen, it seems clear that European leaders have also recognised the particular importance of our core values. Common values are the basis for mutual trust and confi- dence between Member States, and European cooperation in the field of Justice and Home Affairs relies heavily on mutual trust between Member States. The Tampere European Council endorsed the principle of mutual recognition to become the cornerstone of judicial coop- eration meaning that our focus has been, and still is, on smooth, direct and effective cooperation between authorities within the EU. There is no need for cross-checking human rights compliance due EUROPEAN AREA OF FREEDOM, SECURITY AND JUSTICE - M. Brännkärr XI to the fact that we have trust in one another. For the past decade, EU-legislators have established an impressive set of common min- imum standards for criminal procedural rights in order to further strengthen trust between Member States. This has truly been a remarkable achievement. The importance, as well as the effects, of mutual trust and common values reaches far beyond just the area of Justice and criminal law. Mutual confidence and the presumption of compliance, by other Member States, with EU law and fundamental rights has also been, for instance, at the core of all efforts to build a Common European Asylum System. At the same time over the years, in the field of civil law, the EU has taken decisive steps towards abolishing the exequatur, thus abol- ishing barriers hampering mutual recognition. However, in recent years, the European Court of Justice has been asked, on a number of occasions, to interpret the bounda- ries of mutual confidence and mutual recognition. For the future development of the area of freedom, security and justice, it is cru- cial that the aforementioned balance between mutual confidence and mutual recognition is maintained. The Court has repeatedly confirmed that the rebuttal of the principle of mutual trust should only occur in exceptional circumstances. In reality, today, mutual trust between Member States has been challenged in many ways. In the area of Justice, the Court has identified important issues that entail the potential to challenge mutual trust and mutual rec- ognition – we have to keep a close eye on these warning signs. For instance, poor prison conditions can become an obstacle for mutual recognition, and thus, weaken cooperation between Member States. During the Finnish Presidency, discussions have continued on ways to tackle the aforementioned problem. The EU can be an important forum for sharing best practices in this field, both in regards to detention as well as to its alternatives. This ini- tiative has received a positive response in the Council and there seems to be genuine support within the Member States in further discussing the increased use of alternative measures. XII PREFACE One important manifestation of our common values is the Charter of Fundamental Rights. The Charter’s influence has been significant in the field of Justice and Home Affairs and the evolving case law of the Court of Justice has been of great relevance to fur- ther development, for instance as regards any initiative affecting everyone’s right to the protection of personal data.