ABSTRACT

In the eyes of many detractors of the EU project, the creation and progress of Area of Freedom, Security and Justice (AFSJ) law may look like little more than window-dressing. They would perhaps insist that AFSJ plays at most a marginal role in the architecture of European integration, and their conviction that the economic dimension has always been prominent might seem strengthened by the fact that exceptional measures to handle the financial crisis of the Eurozone have been in the limelight recently. While sharing much of the criticism that is levelled at the AFSJ as such (for example, as regards the imbalance towards measures of proceduralisation1), I would like to argue that to belittle the significance of the AFSJ may be missing the point. In fact, the AFSJ represents the most important recent stage of development in European constitutionalism. Its relevance lies beyond its mere incorporation in the so-called Community pillars and goes to the heart of EU reflexivity, because it helps us to understand better the nature of the EU process of polity-building.2 Over the years, a powerful and pervasive security discourse has been unfolded, with an increasing focus on two functions, i.e., both securing the functioning or smooth operation of the internal market3

1 By ‘measures of proceduralisation’ here I mean measures that emphasise effectiveness at the expense of fundamental rights. See, for example, S. Peers, ‘Salvation outside the church: judicial protection in the third pillar after the Pupino and Segi judgments’ (2007) 44 Common Market Law Review 883. On the compatibility between automaticity and fundamental rights, see V. Mitsilegas, ‘The limits of mutual trust in Europe’s Area of Freedom, Security and Justice: from automatic inter-state cooperation to the slow emergence of the individual’ (2012) 31 Yearbook of European Law 319.