¹ Treaty Establishing the Constitution for Europe, Dec. 16, 2004, 2004 O.J. (C 310) 1, 47 [hereinafter CT].Google Scholar

² The CT was initially scheduled to enter into force on 1 November 2006, provided that it would be ratified by all Member States. However, in May and June 2005, France and Netherlands rejected it in referenda and in effect other EU countries had to postpone their ratification procedures. On 17 June 2005 at the meeting of the European Council in Brussels, the Heads of State and Government of the EU have adopted a Declaration on the ratification of the CT (Declaration by the Heads of State or Government of the Member States of the European Union on the Ratification of the Treaty Establishing a Constitution for Europe, Brussels European Council (June 18, 2005)), http://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/ec/85325.pdf.), according to which they have agreed to come back to the CT matter in the first half of 2006. Thus, the future of the CT depends on their assessment of the respective national debates and on the political agreement of Member States on how to proceed.Google Scholar

³ Monar, Jörg, The Dynamics of Justice and Home Affairs: Laboratories, Driving Factors and Costs, 39 J. Common Mkt. Studies 747, 763 (2001).Google Scholar

⁴ Id.Google Scholar

⁵ Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice, 1999 O.J. (C 19) 1.Google Scholar

⁶ Presidency Conclusions, Tampere European Council, (Oct. 15-16, 1999), http://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/ec/00200-r1.en9.htm.Google Scholar

⁷ Area of Freedom, Security and Justice: Assessment of the Tampere Programme and Future Orientations, COM (2004) 4002 final (June 2, 2004).Google Scholar

⁸ Id. at para. 3.Google Scholar

⁹ The Hague Programme: Ten priorities for the next five years The Partnership for European renewal in the field of Freedom, Security and Justice, COM (2005) 184 final (Nov. 4-5, 2004).Google Scholar

¹⁰ These driving forces are: Council of Europe, Trevi and Schengen. See Monar, supra note 3, at 763.Google Scholar

¹¹ Monar, , supra note 3, at 760.Google Scholar

¹² Chairman of Working Group X, Final report of Working Group X “Freedom, Security and Justice,” delivered to the European Convention, CONV 426/02, WG X 14 (Dec. 2, 2002), available at http://register.consilium.eu.int/pdf/en/02/cv00/00426en2.pdf.Google Scholar

¹³ Monar, , supra note 3.Google Scholar

¹⁴ Monar, , supra note 3, at 763; Władysław Czapliński, Obszar wolności, bezpieczeństwa i sprawiedliwości, Współpraca w zakresie wymiaru sprawiedliwości i spraw wewnętrznych 5 (2005) (about the foundings of the co-operation in justice and home affairs).Google Scholar

¹⁵ The Agreement signed in Schengen, Luxembourg, ('Schengen Agreement') on 14 June 1985 by the three States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic, and the Convention implementing that Agreement, signed on 19 June 1990 by the same contracting parties; the Schengen Acquis also includes the accession protocols and agreements, both to the Agreement of 1985 and to the Convention implementing it, of other Member States of EU, the decisions and declarations adopted by the Executive Committee set up by the latter Convention, as well as the acts adopted by the organs on which the above mentioned Committee has conferred decision-making powers. A list of the elements which make up the Acquis, setting out the corresponding legal basis for each in TEC or TEU can be found in Council Directives. Council Directive 1999/439 1999 O.J. (L 176) 35 (EC); Corrigendum Jan. 12, 2000, 2000 O.J. (L 9).Google Scholar

¹⁶ See Rybicki, Robert, Schengen and Poland, 25 Polish Y.B. Int'l L. 97 (2001).Google Scholar

¹⁷ Monar, , supra note 3, at 763.Google Scholar

¹⁸ Protocol integrating the Schengen acquis into the framework of the European Union, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Art. 1.Google Scholar

¹⁹ Council Decision 1999/438, 1999 O.J. (L 176) 42 (EC) (on certain arrangements for the application of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application and development of the Schengen acquis).Google Scholar

²⁰ See European Union Consolidated Versions of the Treaty on European Union and of the Treaty Establishing the European Community Protocol 2, Dec. 24, 2002, 2002 O.J. (C 325) 1 (integrating the Schengen acquis into the framework of EU); see also Antonio Vitorino, Eurpean Commissioner for Justice and Home Affairs, Address to the Royal Institute for International Affairs/ National Bank of Belgium: Models of Co-operation within an enlarged European Union (Jan. 28, 2003), available at http://www:europa.eu.int/rapid/pressReleasesAction.do?reference=SPEECH/03/31&format=HTML& aged=1&language=EN&guiLanguage=en.Google Scholar

²¹ See Vitorino, , supra note 20.Google Scholar

²² Czapliński, , supra note 14, at 39.Google Scholar

²³ Its gradual realization is illustrated by the very broad list of acquis of the EU, accepted under the Title IV TEC and Title VI TEU, and consolidated by the European Commission into a complete list. European Commission, DG Justice, Freedom, and Security, Acquis of the European Union (Dec. 2004), http://www.europa.eu.int/comm/justice_home/doc_centre/intro/docs/jha_acquis_1204_en.pdf.Google Scholar

²⁴ Final report of Working Group X “Freedom, Security and Justice,” CONV 426/02 (Dec. 12, 2002).Google Scholar

²⁵ Treaty on European Union, 1992 O.J. (C 191) 1 [hereinafter TEU]. For the system of opt-outs from ECJ preliminary ruling under TEU art. 35 (2); see infra Part C IV this piece.Google Scholar

²⁶ Monar, , supra note 3, at 763.Google Scholar

²⁷ Arts. III-257, 277 CT (set out legal basis for EU action in this area).Google Scholar

²⁸ Art. I-3 CT.Google Scholar

²⁹ Commentary to the Constitutional Treaty, available at http://www.fco.gov.uk/Files/kfile/Commentary_Part2_Parts1-4.pdf.Google Scholar

³⁰ Art. I-14(2j) CT.Google Scholar

³¹ Art. I-11(2) CT.Google Scholar

³² Art. 29 TEU; Art. II-61 CT.Google Scholar

³³ The aspiration of the Member States already acknowledged under the Tampere and The Hague programmes.Google Scholar

³⁴ Art. III-257(2) CT.Google Scholar

³⁵ It corresponds to Art. 29 TEU.Google Scholar

³⁶ Art. 31(1a) TEU.Google Scholar

³⁷ It has been widened: under the existing Treaties these powers applied only to minimum rules regarding constituent elements of crimes and sanctions and only referred to the fields of organized crime, terrorism and drug trafficking; Arts. 29, 31(1e) TEU.Google Scholar

³⁸ Monar, Jörg, Justice and Home Affairs, 42 J. Common Mkt. Stud. 117, 129 (2004).Google Scholar

³⁹ Id.Google Scholar

⁴⁰ The Charter however makes no change to the redress procedures provided for by the Treaties, since it opens up no new procedures for seeking redress in the courts of the EU. The problem of the Charter of Fundamental Rights of the EU is very broad and its scope reaches much further beyond the topic of this paper. This is the reason why the Charter, although mentioned, is not discussed in this article.Google Scholar

⁴¹ Art. I-43 CT.Google Scholar

⁴² Monar, , supra note 38, at 129.Google Scholar

⁴³ CT Declaration 9.Google Scholar

⁴⁴ See Monar, , supra note 38, at 130; see also David Phinnemore, The Treaty establishing a constitution for Europe: An Overview, Royal Institute for International Affairs (Chatham house), June 2004, available at: http://www.riia.org/pdf/research/europe/BN-DPJun04.pdf Google Scholar

⁴⁵ See the opinion of Advocate General Ruiz-Jarabo Colomer in Case C-187/01 Gözütok and Brügge, 2003 E.C.R. I-1345, para. 6.Google Scholar

⁴⁶ Id. at para. 124.Google Scholar

⁴⁷ Id.Google Scholar

⁴⁸ Id. at para. 33.Google Scholar

⁴⁹ Art. I-42(1b) CT.Google Scholar

⁵⁰ Thym, Daniel, The Area of Freedom, Security and Justice in the Treaty Establishing a Constitution for Europe, Walter-Hallstein-Institut für Europäisches Verfassungsrecht, Dec. 2004, http://www.rewi.hu-berlin.de/WHI/deutsch/papers/whipapers1204/index.htm.Google Scholar

⁵¹ Program of Measures to Implement the Principle of Mutual Recognition of Decisions in Criminal Matters, 2001 O.J. (C 12) 2, para. 3.Google Scholar

⁵² Art. I-34(1) CT.Google Scholar

⁵³ It corresponds to the co-decision procedure in Art. 251 TEU.Google Scholar

⁵⁴ Art. I-34(3) CT; Art. III-396(15) CT.Google Scholar

⁵⁵ Art. 34(2) TEU (any Member State can make a proposal); Thym, supra note 50.Google Scholar

⁵⁶ Art. III-258 CT. An example of this role can be seen in the measures of the European Council taken in Tampere (1999) and Brussels (2004).Google Scholar

⁵⁷ Monar, , supra note 3, at 760 (on the evaluation of the parliamentary control under the current EU law).Google Scholar

⁵⁸ So called subsidiarity mechanism.Google Scholar

⁵⁹ Arts. III-260, III-273, III-276 CT.Google Scholar

⁶⁰ Arts. III-273, III-276(2) CT.Google Scholar

⁶¹ Vitorino, , supra note 20.Google Scholar

⁶² Protocol 34 states that these provisions will only enter into force on 1 November 2009. Before then, the Council will act under the system of weighted majority, as set out in its Art. 2 which is the same as that currently in force under the Art. 205(2) TEC. A definition of a qualified majority within the European Council and the Council is given by the Art. I-25 CT.Google Scholar

⁶³ Arts. III-269, III-270, III-277 CT; Monar, supra note 38, at 130; Thym, supra note 50.Google Scholar

⁶⁴ Art. III-274 CT.Google Scholar

⁶⁵ Monar, , supra note 38, at 130; Vitorino, supra note 20.Google Scholar

⁶⁶ Working document presented by Jean Louis Bourlanges, Working on the conditions for strengthening the effectiveness of the area of freedom, security and justice Committee on Civil Liberties, Justice and Home Affairs, Aug. 18, 2004, available at http://www.europarl.eu.int/meetdocs/2004_2009/documents/DT/539/539389/539389en.pdf.Google Scholar

⁶⁷ Vitorino, , supra note 20.Google Scholar

⁶⁸ Art. III-376 CT imposes limitations on the jurisdiction of the ECJ in relation to CFSP, equivalently to the current Art. 46 TEU. However, the ECJ has the jurisdiction to monitor compliance with Art. III-308 CT and to rule on proceedings, brought in accordance with the conditions laid down in Art. III-365(4) CT, reviewing the legality of European decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter II of Title V (Exercise of Union competence).Google Scholar

⁶⁹ See Tridimas, Takis, CFSP and Freedom, Security and Justice, University of Southampton College of Europe, Mar. 2004, http://www.fedtrust.co.uk/uploads/constitution/05_04.pdf; Thym, supra note 50.Google Scholar

⁷⁰ Art. 35 TEU.Google Scholar

⁷¹ Czapliński, , supra note 14, at 76.Google Scholar

⁷² Thym, , supra note 50.Google Scholar

⁷³ Thym, , supra note 50, at 4.Google Scholar

⁷⁴ Obszar wolności, bezpieczeństwa i sprawiedliwości, Współpraca w zakresie wymiaru sprawiedliwości i spraw wewnętrznych 53 (2005).Google Scholar

⁷⁵ Id. at 76.Google Scholar

⁷⁷ Thym, , supra note 50.Google Scholar