The Constitutional Structure of Europe's Area of 'Freedom, Security and Justice' and the Right to Justification

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The Constitutional Structure of Europe's Area of 'Freedom, Security and Justice' and the Right to Justification

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This book explores the implications of freedom as a non-domination-oriented view for understanding EU security regulation and its constitutional implications. At a time when the European borders are under pressure and with the refugee and migration crisis, which escalated in 2015, the idea of exploring a constitutional theory for the 'Area of Freedom, Security and Justice' (AFSJ) might seem to be a utopian project. This appears especially true in the light of the increased threat of terrorism in Europe (and on a global scale) and where the expanding EU security agenda is often advanced through the administrative law path, in contrast to the constitutional trajectory. Add to this the prolonged financial crisis, which continues to cast a long shadow on the future development of EU integration, and which suggests that Europe needs to 're-invent itself' beyond the sphere of economics. Therefore, it is precisely because of the current uncertainties regarding the progress of the EU and the constitutional law project that a constitutional take on the AFSJ is of particular importance.

The book investigates the meaning of non-domination and the idea of justice and justification in the area of EU security regulation. In doing so, it focuses on the development of an AFSJ, what it means, and why it represents a fascinating example of contemporary constitutional law with interacting layers of security regulation, human rights law and transnational legal theory at its core.

PART I.

1. Introduction I. The Idea of the Book II. The Structure of the Book III. Why Constitutionalism Matters for Constructing the AFSJ Sphere IV. Introduction to the Contested Concept of Justice and the EU Security Status Quo V. Justice, EU Legal Debate and the External Aspect VI. Conclusion

2. The Concept of Non-domination in the EU Security-related Context I. Introduction II. The Concept of 'Freedom as Non-domination' as a Constitutional Set-up: Charting the Main Debate III. Non-domination, Justice and EU Security Regulation IV. Legitimacy and Justification V. Judicial Review and Non-domination VI. Translating the 'Non-domination' Question to the Supranational EU Level and its Relevance for EU Security Regulation VII. Introduction to the Links between Justification and Proportionality in the Context of Non-domination VIII. Conclusion

PART II.

3. The Right to Justification, Justice and the Area of Freedom, Security and Justice I. Introduction II. Justice as a Contested Concept III. Justice and on the Constitutional Structure IV. The Idea of Justification, Democracy and the Question of Legitimacy V. The Ideal and Non-ideal Picture of Justice VI. Constitutional Essentials, Public Reason and Judicial Review II. Same for States and Citizens? The EU Context VIII. Conclusion

4. Proportionality and Reasonable Disagreement in the Area of Freedom, Security and Justice I. Introduction II. Proportionality in the AFSJ and Beyond III. Proportionality Discourse: Introductory Remarks to a Grand Debate IV. An Umbrella Principle of Proportionality in EU Law V. Proportionality on the EU Legislative Table VI. The New Contours of Proportionality within the AFSJ: Case Law VII. Critique and Appraisal of the Principle VIII. The Turn to Justification: Proportionality as Reasonable Disagreement IX. Proportionality and Justice as a Force for Good AFSJ Structure? X. Conclusion: Non-domination Utilised Through Proportionality?

PART III.

5. The Right to Justification, Territoriality and Migration, Refugees and Terrorism I. Introduction II. The Decent Society and its Borders: Some Key Debates Explored III. Migration Ethics and the AFSJ Challenge IV. Anti-terrorism, Security and Prevention V. Adjudication and Security in Real Time VI. Agencies and the Accountability Deficit VII. What Kind of Justification for What Kind of Solidarity? VIII. Conclusion

6. The Dimensions of Constitutional Justice: The Multi-Speed Scenario I. Introduction II. Justice and Fragmentation: Cherry-picking AFSJ Standards III. Constitutional Justice, Trust and the CJEU IV. The Court of Justice as a Trustee Court in the AFSJ? V. National Courts and Fiduciary Obligations: When the EU Standard is not Robust Enough VI. Conclusion

7. Conclusion I. Conclusion II. The Justification of the Book