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Flexibility and Loyalty in the AFSJ

Ester Herlin-Karnell

The Area of Freedom, Security and Justice (AFSJ) has been elevated to a central constitutional place by the Treaty of Lisbon. A relatively unexplored feature of the AFSJ sphere is the flexibility provisions, most prominently the enhanced cooperation mechanisms where some Member States can go further than less integrative Member States by establishing enhanced cooperation between them. In this paper I want to explore the impact of the principle of loyalty in this area and how it has changed after the Lisbon Treaty by looking at the flexibility provisions within the AFSJ. After all, not only does the loyalty obligation impose a general - and very well documented - duty for the Member States to be loyal towards the EU, but many of the subject matters in this area such as the fight against terrorism and organized crime have a global dimension to it and therefore touch upon the common security and foreign policy area. It will be argued that what is emerging in this area is something much stronger than a loyalty obligation and more similar to a strict proportionality test.

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