T RANSNATIONAL J USTICE 2005

The Maastricht Treaty added two new intergovernmental pillars, one of which provides the outline for a network of cooperation among national ministries of justice and the interior. No other EU policy domain has made its way to the top of the agenda in such a short period of time as Justice and Home Affairs (Monar 3: 2001). Its subject matter involves the creation of common asylum and immigration policies, rules on external border controls, as well as a framework for combating drug traffic and fraud. Despite the chronic reticence on the part of

42 In all fairness, one must mention that a share of the monopolized sectors are not monopolized by domestic firms, but are “exported monopolies” e.g. Deutsche Telekom controls the Slovak telecommunications sector.

EU member states, a substantial body of integrationist policies and legislation has been created (Den Boer 1996: 405) and anchored by the Amsterdam Treaty.

As central Europe remains the crossroads for smuggling and illegal immigration, efforts have been made to incorporate the CEECs into the already established framework before accession.

It is odd that little attention has been given to whether the new members will become forerunners for the communitarization of this domain or join the existing group of laggards (in particular GB and DK). Data were gathered by presenting the current EU-15 preference constellation to the CEEC diplomats, who in turn numerically pinpointed the extent to which their country supports the Europeanization of this domain. In an attempt to extract greater variation, the diplomatic representatives and EU-enlargement experts elaborated on the CEECs’ standpoints on a more controversial, yet highly salient element of this policy domain – the Europeanization of asylum and immigration policy. In this case, the preference data for the CEECs have less to do with economic factors than with their attitudes on this traditional integration dimension. The results may in turn give us a pre-taste of élite and popular attitudes on integration in general terms.

More difficulties and contradictory answers, were encountered in gathering data here, as JHA policies are viewed much more as a process of legal coordination and an accession formality than a political matter (see Monar 2000, 2001). This explains the higher degree of inconsistencies in the results: aggregate stan. dev. 18.88. Nevertheless, mean values were calculated as indicators of the CEECs’ standpoints on this integration dimension while the EU-15 values reflect their voting behavior on JHA issues in Amsterdam (Aspinwall 2001).

Figure 7-13. Preferring Europe – Justice and Home Affairs

LV

H M LT EST F L B D I FIN UK PL SQ DK SK CZ SLO CY P S NL A E IRL GR

0 10 20 30 40 50 60 70 80 90 100

sovereignty integration 0: sovereignty: no further European cooperation in these areas

100: integration: complete Europeanization of these areas

(Preferences EU-15: Aspinwall 2002)

EU 15 EU 25

Minimum – Maximum 0 100 0 100

Mean 74.5 62.5

Median 81.5 66.3

Median by weighted Council votes 81.5 70.7

Standard Deviation 25.3 24.9

Skewness -1.9 -.43

(see Appendix C for calculation technique)

The resistant attitude of the candidates illustrates the current tug-of-war between competing social and political forces. One the one side, further integration is viewed as a stimulus to modernize weak and inefficient legal systems and as a bare necessity in light of the precarious geo-strategic situation (e.g. Baltic States, CY). On the other hand, the data point to a reluctance on the part of the CEECs to relinquish newly established elements of legal, political and symbolic sovereignty. Thus, exporting the EU’s JHA framework involves a delicate balance between highly sensitive issues stemming from the renaissance of nationhood and practical realities.⁴³

As for the general immigration dynamics, JHA is not an area prone to compromise for the sake of political integration (Monar 2001: 6). Thus, a pre-requisite for the provision of the public good of security and safety is extensive and consequent legal harmonization. However, this domain is plagued by an enormous diversity and legal inconsistencies both between the EU-15 and the candidates as well as among the candidates, who demonstrate substantial deficits. The assimilation to the existing acquis legislation has not only overburdened fragile judicial systems, but also raised questions surrounding the inefficient implementation capacities. As for money laundering, a number of transition CEECs have resisted the implementation of acquis legislation due to their acute dependence on foreign capital (see section 7.3). Such deficits also apply to visa/asylum legislation and anti-corruption measures, which have yet to be satisfactorily implemented due to the financial and organizational strains they bear (Monar 2001: 16).

On these grounds, we should anticipate the CEECs to export to judicial, organizational, and political heterogeneity into the highly rigid existing framework of cooperation (unanimity/co-decision) in JHA. Thanks to the unanimity requirement governing the bulk of JHA decision making, the complexities of the legislative game and executive implementation process will be multiplied. As for the far and few areas with QMV (see article 63), the CEECs will most probably slip into the blocking minority (see figure 7-13; Monar 2001: 32, interview report Mirel). The high degree of reluctance of the CEECs to adopt harmonized procedural standards is representative of the implementation difficulties bound to arise in the early stages of enlargement. The combination of legal and organizational diversity – and fragility in the case of the CEECs - as well as the ever-present élite and popular sentiments for the maintenance of national sovereignty will undoubtedly test the EU’s capacity for diversity management. The

43 see interview reports Mirel, Landáburu, Mitek.

data unmistakably indicate that the existing institutional structures for JHA (unanimity/co-decision) are mismatched with the increased political, legal and organizational diversity, which raises the danger of political stalemate after enlargement.