EU external action in the JHA domain: a legal perspective

Since the Conclusions of the European Council on the Area of Freedom, Security and Justice (AFSJ) at Tampere in 1999 the Union has recognised the significance of the external dimension to this policy field, and over the last decade the Union’s activity in this field has both intensified and broadened to include not only migration, border management and asylum but all aspects of the AFSJ, ranging from counter-terrorism to civil procedure. Although the scope of external action reflects the fragmentation of the subject matter and the AFSJ lacks an easily identifiable policy objective, there are ways in which we can identify certain common elements in the approach to external AFSJ policy, in particular in managing the relationship between different actors. This paper seeks to explore some of these distinctive elements; its purpose is to set out some of the particular legal features of external AFSJ policy. First, to examine the basis for and the scope of external competence given that there is no explicit provision in the EC Treaty for external action in the field. Second, the legal implications of the inter-pillar nature of the AFSJ: the consequences this has for the types of instrument available to the Union and the legal constraints imposed by the need to ‘police’ the boundary. And finally the paper explores the relationship between Union / Community action and Member State action: the possibility of exclusive Community competence, the mechanisms developed to manage shared competence and the additional complexity created by the varying ‘opt-outs’ for some Member States.