Recent and potential future developments in judicial protection in the European Area of Freedom, Security and Justice
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Recent and potential future developments in judicial protection in the European Area of Freedom, Security and Justice Johanna Engström
Published online: 5 March 2009 © ERA 2009
1 Introduction This issue of ERA Forum focuses on the Area of Freedom, Security and Justice and more particularly on matters relating to Asylum and Immigration (Title IV or the EC Treaty) and Judicial Cooperation in Criminal Matters (Title VI of the EU Treaty). While these subject-matters initially co-habited in the third pillar, they appear, after the Amsterdam Treaty, in different pillars and are consequently governed by different institutional and regulatory frameworks. Notwithstanding being governed by different frameworks, the two subject-matters still share common features that create a special ‘bond’ between them. One such feature is the particular need for protection of rights and fundamental rights because of the specific risk for individual liberties and the right to self-determination in those areas where breaches tend to have serious and far-reaching negative effects on the individual. In a system governed by the rule of law such protection is ultimately ensured by the judiciary and this is also the case in the European Union. This editorial will discuss some topical aspects of the judicial protection of individuals in the matters that are of focus in this edition and it will analyse to what extent these adequately address the need for judicial protection in the relevant fields. It will also address some remaining challenges that need to be met to ensure an adequate judicial protection in matters relating to Asylum and Immigration and Judicial Cooperation in Criminal Matters. It will be argued that the Lisbon Treaty brings about J. Engström () Section III—Public and Criminal Law, Academy of European Law, Metzer Allee 4, 54295 Trier, Germany e-mail: [email protected]
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crucial and needed changes to the judicial protection in Title IV of the EC Treaty and Title VI of the EU Treaty (Sect. 2); changes which are crucial in order to ensure the effectiveness of for example the newly introduced urgent preliminary reference proceedings (Sect. 3). It will be argued that the response to the increased need for judicial protection of individuals in the areas mentioned in the near future lie rather with the legislator than with the Court of Justice, which is at present quite effectively using the means at its disposal to ensure judicial protection in the areas concerned.1
2 The Lisbon Treaty—the answer to incomplete judicial protection in the area of criminal justice and asylum and immigration? The question of judicial protection has been of some concern in both the area of asylum and immigration and especially in matters of police and judicial cooperation in criminal matters. It has already been stressed that in those areas individuals are more susceptible to suffer detriment by an insufficient or ineffective judicial protection, especially as they might be deprived of or suffer limitations to their personal freedom. For
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