Setting Priorities: Functional and Substantive Dimensions of Irregular Immigration and Data Protection Under Co-decision

During the months leading to the end of the transitional period (January 2005), most academics and actors involved in the Area of Freedom, Security and Justice (ASFJ) expected the introduction of co-decision as the normal decision-making procedure in this area to change the balance between security and liberty. The involvement of the European Parliament as a co-legislator was thought to be a positive aspect, since this institution had persistently adopted a pro-civil liberties stance. Since then, this question has not been systematically tackled in the literature and consequently the impact of co-decision on the AFSJ remains unclear. However, in 2007, Maurer and Parkes looked at the securitised policy-image governing European asylum policy in order to understand why the European Parliament had been unable to redress the balance and establish civil liberties as a priority. Following their line of reasoning, this paper develops the functional and substantive dimensions introduced by these scholars, in order to explain why the European Parliament, and especially the LIBE committee, has been equally unable to change priorities in the fields of irregular immigration and data protection. I argue that the persistent weakness of the European Parliament in the functional dimension, i.e. the need to legitimise its presence in negotiations dealt with under co-decision, has made changes in the substantive dimension difficult to attain. In those areas were the substantive dimension is weak, as was the case in the Returns directive, the need to legitimise the presence of the EP creates more polarisation among the members of the LIBE committee. In those cases where there is a strong substantive alternative in the LIBE committee, as was the case in the Data retention directive, change is hindered by the Plenary, which establishes the strengthening of the functional dimension as a priority for the institution. In both cases the introduction of co-decision led to the persistence of a securitised policy-image and the impossibility of engaging in conflict expansion.