@article{2026:thnnes:invisible_,
title = {Invisible Infringements: On the AFSJ’s Under-Constitutionalisation},
year = {2026},
note = {Reading the Legal Service’s book on ‘70 Years of EU Law’, one
could almost have the impression that the EU is not in the business of
combating crime and upholding public safety. In this contribution, I
argue that this narrative choice is no coincidence. Much rather, it
reflects a trend that permeates the Area of Freedom, Security and
Justice (AFSJ). There is an increasing discrepancy between the image
the European Union (EU) and its Member States project to the outside
– one of public safety as a domain reserved to sovereign nation
states – and the AFSJ’s institutional reality which is
characterised by creeping supranationalisation. Perhaps
counterintuitively, it is precisely this structural attachment to the
limitation of the EU’s competencies that has enabled its
AFSJ-related powers to grow while often evading judicial scrutiny. The
AFSJ, because it operates in ways to which EU law is not fully
structurally committed, is not matched by effective constitutional
safeguards of accountability, judicial review, and rights protection.
It remains under-constitutionalised. EU security law renders invisible
those infringements it produces and remains curiously removed from the
Union’s dedication to its citizens. I defend this argument in three
steps. First, I illustrate how EU security law drives fundamental
paradigm shifts. Second, I show how the AFSJ’s composite
administration, due to its commitment to the paradigm of
Kooperationsverwaltungsrecht and the principle of double exclusivity,
remains under-constitutionalised. Third, I demonstrate how these
problems manifest in legal practice by pointing to the activities of
Europol and Frontex, as well as the Act on the Processing of Passenger
Name Record (PNR) Directive. I conclude with suggestions for reform.},
journal = {Zeitschrift für ausländisches öffentliches Recht und Völkerrecht / Heidelberg Journal of International Law},
pages = {299--330},
author = {Thönnes, Christian},
volume = {86},
number = {1}
}