EU Judicial Cooperation and Schengen Border Controls
Judicial Cooperation in Criminal Matters
Judicial cooperation in criminal matters is a core component of the Area of Freedom, Security and Justice (AFSJ). It aims to ensure security in the EU by combating cross-border crime. Its purpose is to facilitate cooperation between police, customs, and other law enforcement authorities of Member States (MS) regarding criminal offenses. This is essential in an area with no internal borders, as the free movement of persons must not be exploited by organized crime, terrorism, or trafficking.
The Union’s role is not to create a federal police force. Police cooperation remains operational and respects Article 72 of the Treaty on the Functioning of the European Union (TFEU), which states that Member States remain responsible for maintaining public order and internal security.
Legal Basis and Integration
The legal foundations include:
- Article 82 TFEU: Establishes the principle of mutual recognition of judicial decisions in criminal matters.
- Article 83 TFEU: Allows the EU to approximate criminal law regarding serious cross-border crimes, such as terrorism, human trafficking, and organized crime.
The Lisbon Treaty abolished the former third-pillar structure, integrating criminal justice into the ordinary EU framework. This area is now subject to:
- Ordinary legislative procedure: Includes co-decision by the European Parliament, increasing its legislative role.
- Qualified majority voting: Replaces unanimity in many cases, strengthening EU integration while allowing Member States to retain safeguards for sensitive national interests.
Operational Cooperation and Key Agencies
Operational cooperation is reinforced through key agencies:
- Europol: Supports and assists national authorities in serious international crimes and terrorism through intelligence sharing.
- Eurojust: A complementary judicial body that coordinates national prosecutors and judges in cross-border cases and jurisdictional conflicts.
- EPPO: The European Public Prosecutor’s Office, which investigates and prosecutes crimes affecting the EU’s financial interests, such as fraud.
Schengen Border Controls
The temporary reintroduction of internal border controls is an exception to the Schengen rule of no checks at internal borders. Under Article 77 TFEU and the Schengen Borders Code, the EU is based on the abolition of internal border controls to ensure the free movement of persons within the AFSJ. However, this principle is not absolute.
Exceptional Reintroduction of Controls
Member States may exceptionally and temporarily reintroduce internal border controls as a last-resort measure when there is a serious threat to public policy or internal security. Grounds include:
- Terrorist threats
- Serious organized crime
- Large-scale public health emergencies
- Mass irregular migration
- Major international events
Procedures for Border Controls
There are two main procedures for reintroducing controls:
- Foreseeable events: The Member State must notify the Commission, other Member States, and the European Parliament at least 4 weeks in advance. These controls may last up to 6 months and are renewable.
- Unforeseeable events requiring immediate action: Controls can be introduced immediately but must be notified simultaneously to EU institutions. The initial duration is 1 month, extendable to 3 months.
This mechanism must remain exceptional, necessary, proportionate, and limited in time. It cannot be used to recreate permanent national borders within the Schengen Area.
The Schengen system relies on a balance: no internal borders paired with common external management. Consequently, the EU requires harmonized external border controls, a common visa policy, shared databases, and the operational support of Frontex.