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(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1575-1597 | Article | (Table of Contents) I. Introduction. – II. New formulas in the regime of mutual recognition in the EIO. – III. The question of defining investigative measures and having recourse to a different one. – III.1. The applicability of the corrective mechanism in other cooperation systems. – IV. An increased extent of direct communication between the issuing and the executing authorities. – IV.1. Regulating greater communication between issuing and executing authorities as a form of institutionalised distrust. – V. The fundamental rights-based refusal ground and the question of its applicability. – V.1. Making the fundamental rights-based refusal ground the norm instead of it being the exception. – VI. Conclusion. | (Abstract) This Article concerns the European Investigation Order (EIO) and its relations to the principle of mutual recognition. The principle has been the engine of judicial cooperation in criminal matters between Member States of the European Union since the adoption of the Tampere conclusions in 1999. Member States rely on the principle in creating cooperation systems, thereby facilitating interaction among their criminal justice systems. Since Member States refrain from extensive criminal law harmonisation, the principle is of utmost importance. As such, a common regulatory technique was developed through which the principle is given effect in every cooperation system created so far. Although this regulatory technique was mostly followed in the directive establishing the EIO, it also introduced several novelties in the regime, notably the option to have recourse to another investigative measure, the possibility for a greater extent of communication, and the fundamental rights-based refusal ground. This Article argues that these rules make the EIO directive more protective of fundamental rights and show a new trend in the cooperation systems based on the principle of mutual recognition. In addition, while reviewing the applicability of these rules in other cooperation systems, it provides a proposal on how to apply them to enhance mutual trust between Member States through legislation.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1221-1233 | European Forum Insight of 22 January 2024 | (Table of Contents) I. Introduction. - II. Pinpointing the problem with mutual trust. - III. Mutual trust in the draft Accession Instruments. - IV. The ECtHR and the CJEU on mutual trust: case law convergence?. - IV.1. Mutual trust in the ECtHR. - IV.2. Mutual trust in the CJEU. - V. Exploring outstanding areas of divergence. - V.1. Recognition of civil judgments. - V.2. Right to a fair trial. - VI. In Conclusion. | (Abstract) After more than forty years of discussion and a decade after the CJEU struck down EU accession to the ECHR in Opinion 2/13, negotiators provisionally approved a new version of the Accession Instruments in March 2023. This Insight examines how this new draft of the Accession Instruments has addressed the mutual trust concerns expressed in Opinion 2/13. It first traces the evolution of the negotiations on the “mutual trust basket”. Through a manual analysis of all negotiation documents, we concluded that the negotiated solution is built upon an alleged case law convergence between the CJEU and the ECtHR on mutual trust cases. Therefore, this contribution further assesses such assumption of convergence by looking at the CJEU’s broader language of mutual trust (beyond Opinion 2/13 and the Area of Freedom, Security and Justice) and the ECtHR’s mutual trust jurisprudence. We argue that the CJEU has conceptualised mutual trust as a general horizontal principle of EU law that, depending mostly on the cooperation scheme in which it is implemented and the fundamental rights that it might potentially affect, will present different degrees of automaticity. The latter, understood as the leeway (or lack thereof) for national authorities to invoke exceptions to mutual trust in light of potentially overriding interests, impacts the potential for convergence between the CJEU and ECtHR on mutual trust. Consequently, the full workability of the solutions devised in the draft Accession Instruments is called into question.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 905-929 | Article | (Table of Contents) I. Introduction. – II. The EU Treaty as guidance for rule of law, democracy and fundamental rights. – II.1. Constitutionalisation of the EU values. – II.2. Guidance for the Member States. – II.3. Guidance for the EU. – II.4. Guidance for the external dimension of EU action. – III. External dimension of EU asylum and migration policy. – III.1. Democracy and institutional balance. – III.2. Fundamental rights. – III.3. Conditionality and Treaty concerns. – III.4. Principles of equality and sincere cooperation. – IV. Lessons learnt from the EU rule of law crisis? | (Abstract) This Article analyses to what extent the EU values and principles are guiding the external dimension of EU migration policies, especially the principle of democracy and fundamental rights. To illustrate this, it elaborates on the consequences of the informalization of this cooperation, and of the lack of safeguards for fundamental rights compliance. In the second part, the Article analyses the consequences of the increasing tendency to apply conditionality in the external migration cooperation, illustrated with three recent examples (Union Visa Code, post-Cotonou Agreement and trade tariff preferences). While referencing to political science research from the perspective of third countries, the Article concludes that the conditionality approach also risks undermining the principles of equality and sincere cooperation, which eventually impede the effectiveness of the external dimension on migration policies. By drawing lessons from the internal rule of law mechanisms, the EU could bring the external cooperation on migration more in line with its own values and principles enshrined in the Treaties. By doing so, it would offer the necessary safeguards for more coherence in the EU’s policies.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 985-1011 | Article | (Table of Contents) I. Introduction. – II. The establishment of the European Border and Coast Guard. – III. The enhancement of the Agency’s mandate. – III.1. The conferral of executive powers on the Agency’s staff. - III.2. The emergence of a supervisory role. – IV. Cooperation with third countries in the framework of the European Border and Coast Guard Regulation. – V. The implications of the extraterritorial Frontex joint operations. – V.1. The deployment of border management teams on the territory of third countries. – V.2. The delimitation of responsibilities between the actors involved in the operations. – V.3. Redress in case of fundamental rights breaches. – VI. Conclusions. | (Abstract) The aim of this Article is to examine the role played by Frontex in the process of externalisation of EU migration policies. It is not surprising that the external dimension of Frontex’s powers has been reinforced in the successive reforms of its legal framework. There is a common agreement between Member States on the need to intensify international cooperation with third countries in order to face current challenges in the area of migration. The deployment of border management teams on the territory of third countries raises complex legal and political questions as regards the legal regimen applicable and the delimitation of responsibilities between the different actors involved in the extraterritorial operations. The allegations of fundamental rights violations in which Frontex was reportedly involved in the Aegean Sea show that it will be very difficult to clarify the role of Frontex in any wrongdoing that will happen in the context of operations implemented on the territory of third countries.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 809-851 | Article | (Table of Contents) I. Introduction. – II. Democracy as a value of EU Law. – II.1. The development of the value of democracy in the European Union – II.2. The value of democracy in art. 2 TEU and the Copenhagen criteria – III. The value of democracy beyond art. 2 TEU. – III.1. Right to vote and to stand as a candidate – III.2. Art. 10 TEU – III.3. Art. 21 TEU – III.4. The Charter of Fundamental Rights of the EU – IV. Enforcing Democracy Beyond Art. 7 TEU. – IV.1. Problematising art. 7 – IV.2. Centralised enforcement – IV.3. Decentralised enforcement – V. Conclusion. | (Abstract) This Article analyses several ways in which democracy as a core value of the European Union can be enforced against member States violating democratic principles. Following the crisis of democratic backsliding in several Member States, no legal action has been taken on the basis of a breach of democracy or democratic principles. A possible explanation is that violations of art. 2 TEU are subject to a specific enforcement procedure (laid down in art. 7 TEU), which is notoriously hard to trigger. Furthermore, since art. 2 TEU refers to abstract values, it is frequently asserted that values such as “democracy” cannot be legally enforced. This Article, however, claims that the value of democracy has a sufficiently clear core legal meaning in EU law to be legally enforceable. Secondly, this Article claims that EU law includes numerous other centralized (at EU level) and decentralized (at Member State level) enforcement mechanisms beyond art. 7 TEU that can be used to enforce democratic principles. The current absence of enforcement action against such Member States, therefore, is largely a political choice instead of a legal requirement.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 779-789 | European Forum Insight of 21 November 2023 | (Table of Contents) I. Introduction - II. L’activation inédite de la directive sur la protection temporaire - III. L’activation instructive de la directive sur la protection temporaire - IV. L’avenir de la directive sur la protection temporaire. | (Abstract) The Russian aggression in Ukraine led to the activation of the 2001 Temporary Protection Directive by the European Union to organise the reception of displaced persons fleeing the conflict. This is an un-precedented move, in the twenty years of its existence, this directive has never been implemented. It is therefore interesting to observe what this protection consists of, but also to recontextualise its activa-tion in the wider context of the European Union's immigration and border control policy. The mecha-nism is indeed very protective for the persons concerned, which puts into perspective the strict re-quirements of the Union regarding the access of third-country nationals to European territory.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 583-610 | Article | (Table of Contents) I. Introduction. – II. The evolution of the “New Approach” to harmonisation in the EU: setting the scene. – II.1. The “New Approach” to technical harmonisation. – II.2. The Digital Single Market. – III. Harmonisation in the Draft AI Act: old wine in a new bottle, or new wine? – III.1. Risk-based approach of the Draft AI Act. – III.2. The “New Approach” technique in the Draft AI Act. – III.3. “Privatization” of AI Regulation by ESOs and conformity assessment bodies. – IV. Future-proofing AI regulation through the “New Ap-proach”. – IV.1. The future-proofness from the perspective of the Internal Market. – IV.2. Future-proofness from the perspective of fundamental rights and ethics. – IV.3. The future-proofness from a democratic and legitimacy perspective. – V. Conclusion and recommendations. | (Abstract) In April 2021, the European Commission proposed a Regulation on Artificial Intelligence (AI) as part of a package of EU legislative harmonization measures that seek to tackle the societal challenges of digitalization and technological innovation. The proposed legislation draws heavily on the “New Approach” technique for the technical harmonization and standardization of goods. This raises several questions and concerns. Firstly, it can be questioned whether a harmonization technique that has been developed for health and safety standards in the offline, physical market, can be that easily transposed to the field of AI, where ethical and fundamental rights issues abound. Secondly, despite its success, the “New Approach” regulatory technique has been subject to much criticism, such as the responsibility of the manufacturers to carry out a conformity assessment, the role and decision-making powers of the private law standardization organizations and notified bodies, and the lack of public participation and public oversight in standardization and certification processes. These concerns are aggravated in the AI environment due to the pertaining legal, ethical and fundamental rights issues. This Article therefore seeks to explore the future-proofness of the proposed AI Act from three perspectives: i) the internal market; ii) protection of fundamental rights and iii) democratic legitimacy in the EU decision-making processes. Ultimately, it offers a broader reflection on the policy and legal implications of AI and proposes a number of recommendations on how to increase the fitness of the future AI Act, bearing in mind the balance between the economic and fundamental rights goals of the AI Regulation.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 561-578 | European Forum Insight of 27 september 2023 | (Table of Contents) I. Introduction. - II. Pushbacks and their human rights implications. - III. Instrumentalisation as justification for pushbacks in national rhetoric and law. - IV. Instrumentalisation arguments infiltrating the EU. - V. EU regulatory responses to “hybrid threats”. - VI. The worst of a series of bad legislative proposals. - VII. Fundamentally different situation on the ground? - VIII. Conclusion and discussion. | (Abstract) This Insight examines the discourse surrounding the instrumentalisation of migration and its impact on monitoring the EU’s external borders. It analyses the regulatory response, focusing on the Instrumentalisation Regulation, to determine if an exceptional emergency response is justified. The article explores recent arguments regarding changes in factual circumstances, such as pushbacks and their human rights implications. It also investigates the invocation of hybrid threats and instrumentalisation of migrants in national legal contexts (Greece, Spain, Poland, Lithuania and Latvia) to justify systematic pushback practices. The Insight discusses EU institutions’ adoption of these arguments and their inclusion in legislative proposals. The article critically examines the regulatory proposals from a fundamental rights perspective, questioning the extent to which the existing protection framework can be derogated. The Insight assesses whether a fundamental shift has occurred and if it warrants an exceptional response to safeguard the Area of Freedom Security and Justice, Schengen, and the Common European Asylum System. It offers an “insight” contributing to the ongoing scholarly conversation by providing a timely analysis of the legal implications of the instrumentalisation of migration, considering it as a continuation of the securitisation paradigm rather than a paradigm shift requiring an exceptional emergency response, as exemplified by the proposed Instrumentalisation Regulation.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 22-238 | European Forum Insight of 11 July 2023 | (Table of Contents) I. Introduction. - II. Defining migration instrumentalization. - III. Amendments to national legislation against instrumentalization of migration episodes: the cases of Lithuania, Latvia, and Poland. - IV. National emergency measures and their compliance with the fundamental rights framework. - V. EU legislative changes to address the instrumentalisation of migration phenomena. - VI. Concluding remarks. | (Abstract) Lithuania, Latvia, and Poland have amended their legislation to respond to the increased migration flows caused by the policies of instrumentalisation of migrants implemented by the Belarusian government. This Insight illustrates these responses and shows how these EU Member States instrumentalised border tensions with Belarus to adopt restrictive migration policies impacting the rights of people on the move. Such legislative changes follow a paradigm shift at the EU level, in light of which third country nationals who are subject to instrumentalisation are qualified as hybrid threats. As a consequence, EU migration management policies legitimise national restrictive border control measures into the EU legal framework, to prevent the entry of foreign persons into the EU territory. Such a policy approach confirms a chronic inability of the EU to respond effectively and uniformly to mass migration movements, thus driving hostile third States to perpetrate hybrid attacks, such as instrumentalisation of migration practices, to gain political or economic advantages over the EU and its Member States. This Insight argues that EU migration and asylum policies must conform to the highest standards of fundamental rights protection to avert future hybrid attacks in the form of mi-gration instrumentalisation practices. Furthermore, the EU should abandon a securitization rationale that equates people on the move as security threats, thus legitimizing their dehumanisation and dis-regarding their rights.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 361-378 | European Forum Insight of 1 July 2022 | (Table of Contents) I. Introduction. - II. Conceptual framework. - II.1. "Narratives". - II.2. Fundamental rights: the starting point and ultimate goal. - III. The case of the German Constitutional Court. - III.1. A case overview. - III.2. The narrative characteristics of the decision. - III.3. Interpretation: a narrative illustration of the climate crisis? - IV. Addressing emotions at the expense of "objectivity"? - V. Conclusion. | (Abstract) The reaction to the climate crisis is dominated by recurring political failure and a reluctance to engage in ambitious climate action individually and publicly. Against this setting the judiciary has been called into action to address the climate crisis, adapting general principles, including fundamental rights, to the phenomenon of global warming. Persuasive arguments are needed to compel individuals and policymakers to act in a foresightful manner that can combat global warming. Judicial decisions can transmit such arguments within society departing from the individual case. A narrative analysis can reveal the persuasiveness of judicial reasoning ad enable the re-imagining and stretching of existing law for the purpose of climate action. This Insight encourages Courts to engage in the role of a narrator. An analysis of the decision of the German Constitutional Court through the "interpretative lens" of narratives exposes how such an interdisciplinary perspective can enable the identification of the broader conviction communicated by the Court. Narratives showcase the interdependent relation-ship between judicial reasoning and societal debate by operating on an emotional level. The decision of the German Constitutional Court relating to the compatibility of the German Climate Act with fundamental rights illustrates how judges can become narrators of climate change and how this new perspective may benefit the understanding of the role of the judiciary in addressing the climate crisis.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 573-582 | European Forum Insight of 31 July 2022 | (Table of Contents) I. Introduction. - II. Cross-border police cooperation to counter 'secondary movements'. - III. The 'endtimes' of procedural safeguards. - IV. Conclusion. | (Abstract) A series of challenges and crises have highlighted the deficits of the 'Schengen Αrea' both regarding its external and internal borders. This resulted in the undermining of trust between the Member States which is essential to sustain an area free from internal borders. Thus, the EU Commission presented in December 2021 new rules to strengthen the Schengen System. This Insight aims to analyse the promotion of 'alternative' measures to internal border controls as an attempt to curb secondary movements of third-country nationals without resorting to border controls, such as through in-creased joint police patrols. Special attention will be given to the introduction of a new 'alternative' measure envisaged in art. 23a of the proposal to amend the Schengen Borders Code that provides for a distinct transfer procedure for those apprehended at the internal borders in the context of cross-border police cooperation and who do not have a right to enter or stay. It is highly questionable though how this procedure will be implemented to be in line with the fundamental rights and the procedural safeguards envisaged in the asylum acquis, the EU Charter of Fundamental Rights, and the European Convention on Human Rights.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 195-214 | Article | (Table of Contents) I. Introduction. - II. Theoretical framework. - III. Frontex's bumpy road towards fundamental rights protection. - IV. The Consultative Forum's contribution to Frontex's accountability. - IV.1. Political accountability. - IV.2. Legal accountability. - IV.3. Administrative accountability. - IV.4. Social ac-countability. - V. Conclusions. - Annex: List of interviews. | (Abstract) Frontex has been heavily criticized for disregarding fundamental rights in its border management from the outset. To address this critique, the EU legislators established a Consultative Forum on fundamental rights to provide independent advice in fundamental rights matters. Despite the importance of this issue, little effort has been made to study the role and impact of the Consultative Forum. Addressing this research gap, this Article seeks to answer whether the Consultative Forum has improved Frontex's fundamental rights accountability. Theoretically, we will combine the concept of accountability elaborated by Bovens and the notion of dialogues, allowing us to assess the interaction of the Consultative Forum with the various fora which are supposed to hold Frontex to account. As a special form of communication, dialogues focus on the giving and taking of various sorts including information, arguments and justifications. We argue that the status of the Forum and its possibility to engage with internal and external stakeholders on a regular basis provide an opportunity to strengthen dialogues with and between Frontex's accountability fora. While the impact of these accountability dialogues has been modest so far, we nonetheless acknowledge their normative potential to enhance the accountability of Frontex.

(Series Information) European Papers - A Journal on Law and Integration, 2021 6(1), 199-210 | European Forum Insight of 11 June 2021 | (Table of Contents) I. Facts of the case. - II. Directive on privacy and electronic communications. - III. Overview of the existing case-law regarding data retention. - IV. Highlights of the CJEU judgment. - V. Commentary. | (Abstract) Records of electronic communication metadata allow detailed conclusions about habits of daily life, such as places of residence, activities carried out, or social relations. This data can therefore be useful in criminal investigations. The CJEU elaborated in case Prokuratuur (case C-746/18 ECLI:EU:C:2021:152) on the conditions of access to such data. The court interpreted art. 15(1) of the Directive 2002/58/EC on privacy and electronic communications and ruled that access to traffic and location data may be provided to combat severe crime or to prevent serious public security threats. This interference with the fundamental rights enshrined in arts 7 and 8 of the Charter of Fundamental Rights when accessing traffic and location data is grave, regardless of the period granted for data access or the amount of data requested. The prosecution of less serious crimes can therefore not justify such intervention. According to Estonian law, the Public Prosecutor's Office has the task of conducting the criminal investigation and, if necessary, initiating prosecution in court. Consequently, it cannot be regarded as an independent authority to decide on access to traffic and location data for criminal investigations. As a basis for the presentation and discussion of the Prokuratuur decision by the CJEU, the facts of the case are briefly outlined before previous case law regarding data retention is summarised.

(Series Information) European Papers - A Journal on Law and Integration, 2021 6(1), 311-334 | Article | (Table of Contents) I. Introduction. - II. Prison systems in the EU. - II.1. Human rights in detention. - II.2. Inconsistent and unsatisfactory detention conditions. - III. The need for EU action. - III.1. The centrality of fundamental rights in the AFSJ. - III.2. Aranyosi/Căldăraru: balancing between trust and rights? - IV. Improving detention standards at EU level. - IV.1. Litigation. - IV.2. Management. - IV.3. Persuasion. - IV.4. Enforcement. - V. Conclusions. | (Abstract) Traditionally, the governance of detention has belonged to the sovereign state. Prisons across Europe present considerable disparities; in some states, penal systems are struggling with structural deficiencies, which result in systemic human rights violations. This reality directly undermines the notion of the EU as a community of values; in turn, the functioning of the Union as an Area of Freedom, Security and Justice, based on mutual trust between peers, is at risk. Departing from the negative consequences of the status quo of prisons in Europe, this contribution assesses the potential of Europe in prisons. The overarching premise revolves around the thesis that, to ensure the effective enforcement of Union values and policies, EU intervention in national prison systems proves necessary. Towards this purpose, the Article describes potential pathways, upon which EU authorities could potentially tread upon, in order to mitigate existing disparities, and enforce a common standard on detention. Consequently, the Article moves on to consider the potential impact and pitfalls that the future of Europe in prisons may hold.

(Series Information) European Papers - A Journal on Law and Integration, 2021 6(1), 473-491 | Article | (Table of Contents) I. The cumulative complexities of ETIAS. - II. ETIAS, element of a Global Information System. - II.1. Integration conditions. - II.2. The integration mechanisms. - III. ETIAS, element of a penal mechanism. - III.1. Differentiating the criminal and administrative functions of ETIAS. - III.2. Blurring of the penal and administrative functions of ETIAS. - IV. Conclusion. | (Abstract) In order to manage migratory flows, the large-scale information system ETIAS (European Travel Information and Authorisation System) aims to establish whether third- country nationals whose country takes part in visa-waiving agreements could be authorized to travel to the EU. This Article intends to shine a light from a legal perspective on the ambivalence of the means and ends of the ETIAS database. ETIAS is not solely an instrument of migratory flow management. It is also, more discretely, a criminal justice instrument. In addition to the ad-ministrative function of ETIAS, there is a law-enforcement capability: once data pertaining to candidates seeking travel authorization is collected, it becomes available to ends which are estranged from the administrative function of ETIAS. This Article intends to highlight the opaque nature of ETIAS resulting from its cumulating complexities at the crossroads of law and information technology, EU and member states competences, administrative and criminal laws. ETIAS is indicative of a more global model that it is helping to deploy, suggesting the prospect of a data set pertaining to migrants and available for criminal purposes. In conclusion, this Article raises the following questions: is ETIAS compatible with fundamental liberties? And in this respect should its hidden criminal dimension raise concerns?

(Series Information) European Papers - A Journal on Law and Integration, 2021 6(1), 441-471 | Article | (Table of Contents) I. A new framework for the collection of electronic evidence in cross-border cases. - II. Preliminary considerations. - III. Privacy at risk? - IV. Towards a re-allocation of protective functions? - V. Conclusion. | (Abstract) In April 2018, the Commission adopted a proposal for the collection of electronic evidence in criminal matters (the so-called e-Evidence Proposal). This proposal pursues the ambition to create an EU-wide legal framework for the collection of electronic evidence in the field of criminal procedure and establishes a new criminal justice paradigm at the EU level: direct cooperation between judicial authorities and service providers. This new type of cross-border cooperation raises important issues, two of which will be addressed in this Article. The first issue concerns the impact of this new criminal justice paradigm on the right to protection of personal data and the right to respect for private life. This Article will provide an assessment of the options presented by the EU institutions (Commission, Council and European Parliament) to safeguard these rights. The second issue relates to the role of private actors, i.e., service providers. This Article will discuss the protective functions assigned to service providers in the Commission's proposal and highlight some of the problematic aspects related to it.