Module #
Module 1 general introduction: judicial cooperation in criminal
matters - Version 3.0Module 1 general introduction: judicial
cooperation in criminal matters - Version 3.0
Project description
The European Judicial Training Network
With the support of the European Union
This module is part of a standard training programme in judicial
cooperation in criminal matters within the European Union (EU-Copen
Training Programme).
The programme as a whole is an educational training tool
designed to facilitate the training of judicial authorities in the
field of judicial cooperation in criminal matters within the
European Union. The tool is primarily aimed at any national
authority responsible for judicial training, for the purpose of
developing specific training courses on the subject, as well as to
any stakeholder involved in judicial cooperation as part of their
day-to-day professional practice. It may also be used by anyone
interested in this field.
The methodological approach of the standard programme aims to
provide authoritative information while also focusing on the
practical aspects of the mechanisms of judicial cooperation.
This tool was originally developed based on two projects run in
2005-2006, and subsequently in 2009, by the Institute for European
Studies (Free University of Brussels) and ECLAN (European Criminal
Law Academic Network) with funding from the European Commission
(under the AGIS programme and subsequently the 'Criminal Justice'
programme) of the Ministry of Justice of the Grand Duchy of
Luxembourg and the International University Institute of
Luxembourg.
In 2012, the European Judicial Training Network, which has been
involved in the Copen Training programme since it began, took over
the projects management and coordination. Version 3 (3.0) of the
Copen Training tool is therefore the property of the European
Judicial Training Network. Any comments regarding its content and
any requests for information about Copen Training should be sent to
[email protected], quoting Copen Training.
The main authors of version 3.0 are: Serge de Biolley, Gisle
Vernimmen and Anne Weyembergh. Veronica Santamara and Laura Surano
contributed to the previous versions.
How to use this document:The 'standard training programme in
judicial cooperation in criminal matters' training tool and all
parts thereof are the property of the European Judicial Training
Network. Its use is subject to the following conditions:
1. Its content and layout cannot be altered in any way,
except:
- where space is explicitly provided for the insertion of data
relating to training organised on the basis of this standard
programme (organisers logo, date, place etc.)
- where space is explicitly provided for the insertion of data
relating to the national situation of the Member State
concerned
2. Where the user feels that corrections or additions need to be
made to the content of the tool or parts thereof, provided each of
the following criteria is met:
- the additions or amendments must be accompanied by a foreword
indicating the origin of these amendments or additions
- these additions and amendments must be notified to the
projects development team [email protected], quoting Copen Training.
3. No section of the tool or any of its parts may be copied or
separated from the tool as a whole without the express permission
of the Institute for European Studies and of its authors.
Whats new in this version?
This version is the 3rd version (3.0).
In particular, it takes into account the new institutional and
decision-making framework introduced since the entry into force of
the Lisbon Treaty.
Aims of this module
This Module 1 is the most 'theoretical' of the standard
programme. It is vitally important, since it introduces the other
modules by setting out the general background to the subject,
therefore facilitating understanding and providing a context for
the rest of the training. It describes how the institutional and
decision-making framework for cooperation in criminal matters has
evolved within the European Union and focuses on the legislative
procedure and legal instruments currently in effect in this
framework.
It provides an overview of all the developments in the criminal
justice sector within the European Union. It covers aspects that
will be explored further in the subsequent modules, namely judicial
cooperation, mutual recognition and European stakeholders, but also
focuses on the approximation and harmonisation of criminal laws and
the external dimension of the European criminal law-enforcement
area, which will not be examined in further detail later on.
Finally, it briefly highlights a number of similarities and
differences between Member States national criminal justice
systems.
Relevant legislation
Convention of 25 May 1987 on the application of the ne bis in
idem principle ( Compendium B.3.1.
Agreement of 25 May 1987 on the application among the Member
States of the European Communities of the Council of Europe
Convention on the Transfer of Sentenced Persons ( Compendium
B.3.2.
Agreement of 6 November 1990 on the Transfer of Proceedings in
Criminal Matters ( Compendium B.3.3.
Convention of 13 November 1991 on the Enforcement of Foreign
Criminal Sentences ( Compendium B.3.5.
Convention of 19 June 1990 implementing the Schengen Agreement
of 14 June 1985 ( Compendium B.2.1.
Agreement between the EU and the Republic of Iceland and Norway
on the surrender procedure between the Member States of the EU and
Iceland and Norway ( Compendium B.8.3.
Contents
71. Introduction: three general preliminary comments
1.1.Diversity of geographical settings71.2.Frequently used
concepts71.3.Sensitivity of the European criminal law-enforcement
area82.History and institutional framework102.1.The starting point:
The silence of the Treaty of Rome on criminal matters102.2.The
launch of cooperation in criminal matters within the EU102.2.1The
1970s: first attempts by the Member States of the European
Communities to develop cooperation in criminal matters in order to
combat certain types of crime, particularly European
terrorism102.2.2Resumption of work in the 1980s in the form of
compensatory measures accompanying the abolition of checks at
internal borders112.2.3Implementation of Schengen
cooperation122.3.The Maastricht Treaty132.3.1The emergence of the
'Treaty on European Union' and its three pillars132.3.2The third
pillar of the Maastricht Treaty142.4.The Treaty of Amsterdam and
the Treaty of Nice152.4.1The Treaty of Amsterdam152.4.2The Treaty
of Nice252.4.3The conclusions of Tampere of October 1999, The Hague
Programme of 2004 and its Action Plan of June 2005252.5.The Lisbon
Treaty and the current system262.6.Conclusion353.The European
criminal law-enforcement area and its
components373.1.Deepening/relaxation of mechanisms of cooperation
in criminal matters383.2.Establishment of European
stakeholders383.3.Approximation of laws393.3.1Approximation of
substantive criminal law393.3.2Approximation of procedural
law423.4.External dimension of the European criminal
law-enforcement area434.A European criminal law-enforcement area
founded on national criminal procedure and criminal
law474.1.Examples of differences in substantive criminal
law474.1.1Offences474.1.2Penalties494.2.Examples of differences in
criminal procedure504.2.1General differences504.2.2Differences in
the distribution of powers between investigation and prosecution
functions.514.2.3Differences in determining the authority
responsible for investigations524.3.Conclusion53
1. Introduction: three general preliminary comments
1.1. Diversity of geographical settings
This training focuses on the European Union (hereinafter, EU)
but the diversity of the geographical settings in which cooperation
in criminal matters takes place must be emphasised, and the various
other fora concerned with such matters cannot be overlooked. These
vary in size and cover different geographical areas:
Global: e.g. the activities of the United Nations (such as the
conventions for combating terrorism, organised crime and drugs) or
of Interpol in the field of police cooperation.
Regional: on the European continent, for example the activities
of the Council of Europe, which very soon after its creation was
concerned with judicial cooperation in criminal matters and signed
a number of agreements that can be considered the 'mother'
conventions in the field (such as the 1959 European Convention on
Mutual Assistance in Criminal Matters, and the 1957 European
Convention on Extradition). The European Convention on Human Rights
(hereinafter, ECHR) and some of its protocols, and the case law of
the European Court of Human Rights (hereinafter, Eur. Court HR) are
also essential. In addition to the Council of Europe, the
Organization for Economic Cooperation and Development (hereinafter,
OECD) also plays an important role in combating corruption.
Sub-regional or bilateral: e.g. judicial cooperation within the
Norden, between Iceland, Norway, Sweden, Denmark and Finland;
cooperation between the three Benelux countries (in particular the
Treaty of 27 June 1962 between the Kingdom of Belgium, the Grand
Duchy of Luxembourg and the Kingdom of the Netherlands concerning
extradition and mutual assistance in criminal matters); and the
agreements governing police cooperation in cross border areas (for
example, the agreements that led to the establishment in Luxembourg
of the joint police cooperation office (BCCP, between Luxembourg,
Germany and Belgium) and the Police and Customs Cooperation Centre
(PCCC, between Luxembourg and France).1.2. Frequently used
conceptsThe concept of cooperation in criminal matters within the
EU is closely linked to three other frequently used concepts that
need to be defined:
Cooperation in criminal matters within the EU is part of the
broader field of cooperation in justice and home affairs
(hereinafter, JHA), which also covers criminal matters, asylum,
immigration, external border controls and judicial cooperation in
civil matters. The links between these different sectors are
numerous.
The growth of cooperation in criminal matters between EU Member
States also contributed to the establishment of an area of freedom,
security and justice (hereinafter, AFSJ), a general objective of
the EU introduced by the Treaty of Amsterdam and now enshrined in
Article 3 (2) of the TEU and Article 67 et seq. of the TFEU.
Finally, work on developing cooperation in criminal matters that
falls under efforts to establish a 'European criminal
law-enforcement area'. This concept is not enshrined in the treaty
but is frequently referred to. This will be discussed further later
on.
1.3. Sensitivity of the European criminal law-enforcement area
Cooperation in criminal matters, and more generally the European
criminal law-enforcement area, is by nature extremely sensitive.
This is due to two factors: a) The close connection of the criminal
justice system with the nation-state and national sovereignty: the
criminal justice system is at the heart of national sovereignty,
which explains the difficulties of establishing a true European
criminal law-enforcement area.
b) The complexity of the relationships between the criminal
justice system and fundamental rights. The criminal justice system
has two instruments at its disposal for the protection of
fundamental rights: a sword, which aims to protect individuals from
criminality, to ensure their safety, and a shield, which aims to
protect individuals from misuse of the legitimate violence used by
law enforcement authorities. The following quote perfectly
illustrates this sensitivity, and the need to strike a balance
between these two functions:
Whatever view one holds about the penal law, no one will
question its importance in society. This is the law on which men
place their ultimate reliance for the protection against all the
deepest injuries that human conduct can inflict on individuals and
institutions. By the same token, penal law governs the strongest
force that we permit official agencies to bring to bear on
individuals. Its promise as an instrument of safety is matched only
by its power to destroy. If penal law is weak or ineffective, basic
human interests are in jeopardy. If it is harsh or arbitrary in its
impact, it works a gross injustice on those caught within its
coils. The law that carries such responsibilities should surely be
as rational and just as law can be. Nowhere in the entire legal
field is more at stake for the community, for the individual'
(Wechsler, H., 'The Challenge of a Model Penal Code', Harvard
Law Review, 1952, p. 1097).2. History and institutional
frameworkThis will be looked at in five distinct stages:
the starting point, or the silence of the Treaty of Rome, which
founded the EEC
the start of cooperation in criminal matters within the EU
(before the Maastricht Treaty)
the Maastricht Treaty and the creation of the 3rd pillar
the Treaty of Amsterdam and the Treaty of Nice (including the
conclusions of Tampere and The Hague programme) the Lisbon Treaty
(including the Stockholm Programme)
The 5th stage will be examined in greater depth, since it is the
stage we are in now. Some aspects of the 4th stage will also be
looked at in detail, since they still apply today, such as the
former competences of the Court of Justice (hereinafter, CJEU).
2.1. The starting point: The silence of the Treaty of Rome on
criminal matters
There was no provision in the 1957 Treaty of Rome, which founded
the European Economic Community (hereinafter, EEC) that expressly
attributed competences in criminal matters to the Community. This
is why the majority view in the Council has long been that the
E(E)C did not have competences in criminal matters. However, this
position was revised following the judgments of 13 September 2005
and 23 October 2007 of the CJEU in the Commission v Council cases
(see below), and more radically with the entry into force of the
Lisbon Treaty, which communitised cooperation in criminal
matters.2.2. The start of cooperation in criminal matters within
the EU 2.2.1 The 1970s: first attempts by the Member States of the
European Communities to develop cooperation in criminal matters in
order to combat certain types of crime, particularly European
terrorism
While the Member States of the Council of Europe and of the
Benelux countries addressed cooperation in criminal matters soon
after they were established, it was not until the late 60s and mid
70s that the subject began to be debated between the Member States
of the European Communities (hereinafter, EC).
This was the time when awareness of the internationalisation of
criminal threats, and the threat of terrorism in particular, set
in. In these years, there was a fear of seeing a growing European
terrorism from far left (such as the Red Army Faction in Germany
and the Red Brigades in Italy) and far right movements and from the
Middle East, directed against the West. In order to combat these
new threats together, the EC Member States created
intergovernmental cooperation organisations outside the Communitys
institutional framework. The Trevi Group, for example, was set up
in in Rome in 1975 by the Interior Ministers. This groups
activities focused primarily on police cooperation. It was in this
context, and during the same period, that the French proposal to
create a European criminal justice area' was presented by President
Giscard dEstaing. This was a way of building closer ties in the
area of criminal justice between the Member States of the EC, which
were seen as closer to one another than the Member States of the
Council of Europe. However, despite intense diplomatic effort, the
project was unsuccessful and was shelved.2.2.2 Resumption of work
in the 1980s in the form of compensatory measures accompanying the
abolition of checks at internal bordersAt the Fontainebleau summit
meeting in June 1984, the Heads of State or Government of the EC
decided to reactivate the Community machinery by emphasising, inter
alia, the need to establish a true internal market. This led to the
drafting of the famous White Paper from the Commission in 1985,
followed by the adoption of the Single European Act in 1986 the
first major revision of the Treaty of Rome. The Act inscribed in
the Treaty the aim of establishing a genuine common market,
characterised by the abolition of checks at intra-Community
borders.
To prevent this abolition of checks at internal borders from
benefiting criminal organisations and increasing illegal
immigration, and to prevent it leading to a security deficit,
compensatory measures' accompanying the abolition of checks at
internal borders were adopted. These compensatory measures were
applicable to areas affecting justice and home affairs in the
Member States concerned, in particular in the field of cooperation
in criminal matters. This was developed further in the second half
of the 1980s between EC Member States, in the form of compensatory
measures accompanying the abolition of checks at intra-Community
borders.
Work between the EC Member States at the time was done outside
the Community framework, within new bodies functioning, for the
most part, within the framework of European Political Cooperation
(EPC). These bodies differed in aspects such as their origin, the
authorities they were answerable to, how they functioned and were
chaired, and the nature of their links with the EC institutions.
They did, however, share some common characteristics, namely their
entirely intergovernmental nature and their consequences. The
instruments they established were adopted by unanimous vote; they
followed traditional diplomatic practice in so far as conventions,
recommendations and resolutions were adopted on the basis of
unanimity. Governments and administrations retained the major, if
not the exclusive, role, while national parliaments and the
European Parliament (hereinafter, EP) were kept at a distance and
there was no review by the CJEU.
Working groups of the era included the EPC group on judicial
cooperation in criminal matters. This group drafted five
conventions on judicial cooperation in criminal matters, the
objective being to implement (within the limited framework of the
Twelve) simpler, more operational and more suitable agreements than
those developed on the same subjects by the Council of Europe..
None of these conventions entered into force between all European
Union Member States. Nevertheless, a number still apply between
some of them.
2.2.3 Implementation of Schengen cooperation
Although actual cooperation in the field of criminal justice
between EC Member States before Maastricht was rather scant,
parallel to this, five Member States seeking further cooperation
(France, Belgium, Luxembourg, the Federal Republic of Germany and
the Netherlands) signed the Schengen agreements. They established a
type of cooperation that remained strictly intergovernmental. There
are two separate texts:
The Schengen Agreement on the gradual abolition of checks at
common borders of 14 June 1985 (entered into force on 2 March 1986)
and its implementing convention of 19 June 1990 (entered into force
on 26 March 1995) [Compendium B.2.1.].
The objective was that this would act as a laboratory' for
testing the opening up of borders within the Schengen area. They
thus abolished checks at their internal borders: internal borders
could be crossed freely anywhere by anyone, regardless of their
nationality. To prevent this abolition leading to a security
deficit, they set up a series of compensatory measures concerning
justice and home affairs. Both the Schengen Agreement of 1985 and
its implementing convention of 1990 therefore include provisions
regarding police cooperation and judicial cooperation in criminal
matters, as well as compensatory measures accompanying the
abolition of checks at internal borders within the Schengen area:
see in particular, Title III, 'Police and Security' concerning
police cooperation (Chapter 1) and judicial cooperation in criminal
matters, specifically Mutual Assistance in Criminal Matters
(Chapter 2), the application of the ne bis in idem principle
(Chapter 3), extradition (Chapter 4), and the transfer of
enforcement of criminal judgments (Chapter 5). Two specific areas
were also addressed: narcotic drugs (chapter 6), and firearms and
ammunition (chapter 7). Title IV of the implementing convention
establishes the Schengen Information System (SIS), in order to
maintain public policy and public security, including national
security, in the territories of the Contracting Parties, and to
apply the provisions of this Convention relating to the movement of
persons in those territories, using information communicated via
this system.' (see below).2.3. The Maastricht Treaty 2.3.1 The
emergence of the Treaty on European Union' and its three pillarsThe
Treaty on European Union, signed in Maastricht on 7 February 1992,
and which entered into force on 1 November 1993, added two new
pillars to the Treaty establishing the EC (which constituted its
first pillar). These two new pillars were predominantly
intergovernmental. Alongside the second pillar, or Title V of the
Treaty on European Union on the common foreign and security policy,
Title VI of the TEU, generally known as the third pillar,
introduced cooperation in justice and home affairs between EC
Member States into the framework of the EU.
Sch1_mod1_V10
Title VI of the TEU, or the third pillar, introduced
developments relating to cooperation in justice and home affairs
between Member States of the European Communities into the
framework of the EU, for example police and judicial cooperation in
criminal matters. Upon the entry into force of the Maastricht
Treaty, police and judicial cooperation in criminal matters between
Member States took place within the framework of this third
pillar'. As a result, the majority of the existing groups, such as
the Trevi Group or the ad hoc judicial cooperation in criminal
matters' group disappeared, and their work was integrated into the
institutional framework of the EU. But there was one notable
exception to this centralisation: Schengen cooperation, which
continued to take place outside the framework of the EU between a
small number of Member States until the Amsterdam Treaty.
2.3.2 The third pillar of the Maastricht Treaty
The creation of the 3rd pillar and absorption of cooperation
into the framework of the Treaty on European Union did not bring
any major changes to the objective of the work. The main objective
of cooperation in JHA, including cooperation in criminal matters,
remained the same as it was in the 1980s: compensating for the
abolition of checks at internal borders.
By contrast, the absorption of cooperation into the framework of
the 3rd pillar led to significant institutional changes. Although
the bodies that had hitherto operated in the field were purely
intergovernmental, integrating their work into the structure of the
Treaty on European Union led to the introduction of certain
elements that were specific to the Community approach. Although
there were three distinct pillars, there was nevertheless a single
institutional framework. This meant that the second and third
pillars in some way borrowed the existing Community institutions.
The EP, the European Commission and the CJEU thus made their
entrance into the sector. However, like the 2nd pillar of the TEU,
the third pillar, or Title VI of the TEU was still predominantly
intergovernmental and this intergovernmentality was strengthened
further in the field of criminal matters. It was part of the hard
core of States national sovereignty.
The main intergovernmental features of the 3rd pillar, as it
functioned under the Maastricht Treaty included: Unanimous
decision-making. This reflected Member States caution about
committing to this area of cooperation, since it guaranteed them a
veto power.
Community institutions were indeed borrowed by the 3rd pillar,
but the distribution of roles was not the same as in the 1st
pillar. The leading role was given to the Council of the European
Union (JHA Council bringing together Member States Ministers
responsible for justice and home affairs). The other Community
institutions were involved, but in a somewhat limited way: a) the
European Commission did not share the right of initiative in
criminal matters: this was reserved for Member States.b) the EP was
usually only notified of activities via the Commission and the
Presidencyc) the CJEU was not in principle competent to review
activities within the framework of the third pillar. 2.4. The
Treaty of Amsterdam and the Treaty of NiceThe 3rd pillar was
extensively revised by the Treaty of Amsterdam (2.4.1.). However,
no major changes to its functioning were introduced by the Treaty
of Nice (2.4.2.). Two programme-based instruments also exerted a
strong guiding force: the conclusions of the European Council of
Tampere and The Hague Programme (2.4.3.).
2.4.1 The Treaty of Amsterdam
The Amsterdam Treaty, signed on 2 October 1997 and which entered
into force on 1 May 1999 [Compendium B.1], introduced four major
changes:
2.4.1.1. New objective: area of freedom, security and justiceThe
Amsterdam Treaty made the establishment of an area of freedom,
security and justice a new objective for the EU (Article 29 (1)):
it was no longer solely about developing cooperation in JHA and
cooperation in criminal matters in particular to compensate for the
abolition of checks at internal borders. This cooperation was to
now enable the establishment of the AFSJ. This new objective
heralded key changes to the focus of developments in criminal
matters, changes that were linked to two elements of the new
objective, namely the concept of area on the one hand, and the
concepts of freedom, security and justice on the other:
The concept of area: this is to national territories what the
concept of EU citizenship introduced by the Maastricht Treaty is to
the nationality of the Member States. In the same way that the
concept of EU citizenship has not abolished the concept of
nationality, but has instead enhanced it by emphasising membership
of a common political entity, the concept of area did not abolish
the traditional concept of national territory but rather enhanced
it by emphasising the geographic unity represented by all of the
national territories making up the European Union. It is therefore
important to give practical expression to this concept of area by
qualifying it and by demonstrating gaps in the principle of
criminal territoriality. We will see later on that this is what was
done, inter alia, with the principle of mutual recognition and
joint investigation teams.
The concepts of freedom, security and justice: these should take
into account concerns other than security and combating
criminality; concerns that have massively dominated developments in
the field of criminal justice since the 1970s.
2.4.1.2. The splitting of JHA matters into two distinct groups
The Amsterdam Treaty divides JHA matters previously grouped under
the third pillar of the Maastricht Treaty into two distinct parts:
Most JHA matters were transferred from the third pillar to the
first pillar and have thus been 'communitised'. Asylum, crossing
the external borders of the Member States, immigration and policy
regarding nationals from third countries, together with judicial
cooperation in civil matters were thus transferred to the first
pillar and were the subject of the new Title IV entitled 'Visas,
asylum, immigration and other policies related to free movement of
persons'. Police and judicial cooperation in criminal matters was
kept in the third pillar, in the new Title VI renamed police and
judicial cooperation in criminal matters'. It is not surprising
that these matters, which were viewed by Member States as being
core to national sovereignty, remained within the third pillar at
that time.
2.4.1.3. Updating the 3rd pillarTitle VI, or the new 3rd pillar,
was extensively updated by the Amsterdam Treaty. It continued to
follow a traditional approach to intergovernmental cooperation, as
reflected in: the maintenance of the unanimity requirement: with
the exception of the measures implementing decisions and
conventions, decisions are taken by unanimous vote (Article 34 (2)
of the TEU);
the maintenance of the predominant role of the Council the
limited powers of the EP: the EP is merely notified. It must be
formally consulted but is no longer co-legislator.
However, major changes of Community influence were introduced.
These included:
strengthening the role of the European Commission: the right of
initiative, or to submit proposals, was now available to Member
States as well as to the Commission. Since the entry into force of
the Amsterdam Treaty, the Commission has made great use of its
right of initiative.
strengthening the effectiveness of the legal instruments
available: not only did the various provisions of the Amsterdam
Treaty help accelerate the entry into force of conventions (Article
34(2)(d) of the TEU), it provided new instruments, namely framework
decisions (hereinafter, FD) and decisions: these are legally
binding, but framework decisions are the only ones that can be used
to approximate the laws of Member States. Their scope is the same
as that of Community directives, in that they are binding upon
Members States as to the result to be achieved, but leave the
choice of form and methods up to them. However, unlike directives,
which can entail direct effect (see below), decisions and FDs are
expressly denied any direct effect. To be implemented in the
domestic legislation of Member States and for individuals to be
able to invoke them before national courts, they must therefore in
principle be the subject of national measures to transpose them.
The effectiveness of FDs was, however, strengthened by the CJEU in
its judgment of 16 June 2005 in Case C-105/03 against Maria Pupino.
It declared that the duty of loyal cooperation and the duty of
conforming interpretation, which, within the framework of Community
law, are the responsibility of the Member States, apply in the
framework of the 3rd pillar. It follows that national authorities,
including domestic courts and tribunals, called upon to apply and
interpret national law, are required to do so as far as possible in
light of the wording and purpose of the EU instruments concerned.
See the analysis of the Pupino judgment in module 3 for further
details. Strengthening the competences of the CJEU: compared with
its jurisdiction under the Maastricht Treaty, the CJEUs competences
were strengthened but were still subject to various limitations and
restrictions when compared to its jurisdiction as regards Community
law (Article 35 of the TEU). The jurisdiction of the Court that is
the most relevant for the practitioner is undoubtedly the reference
for preliminary ruling, since this means clarifications can be
given on the validity or scope of EU law on a specific matter and
enables a uniform interpretation of the European provisions
concerned. Explanation will, however, also be provided regarding
the other remedies available to the CJEU.Note: understanding these
powers of the Court under the Amsterdam Treaty is not solely a
question of historical interest. These powers also apply to the
instruments adopted before the entry into force of the Lisbon
Treaty, that is, the majority of instruments of criminal law and of
judicial cooperation in criminal matters in the EU. It is only from
1 December 2014 that the legacy instruments' will transfer to the
system of the Lisbon Treaty as regards the competences of the Court
of Justice (and of the European Commission). See the explanations
below regarding Protocol 36 of the Lisbon Treaty.- Reference for a
preliminary ruling: The CJEU had jurisdiction to give preliminary
rulings concerning:
the validity or interpretation of FDs and decisions. the
interpretation of conventions and the validity and interpretation
of their implementing measures. The preliminary jurisdiction thus
conferred on the Court was limited, since it did not apply to
common positions and, in the case of conventions, it only allowed
the Court to rule on their interpretation and not on their
validity. It was also optional: each State could make a declaration
accepting the jurisdiction of the CJEU. Some have still not
accepted it. It was at variable geometry: each Member State could,
through a declaration to that effect, agree to all national courts
and tribunals being able to refer questions for preliminary
rulings, or only those of final instance. But the option to request
a reference for a preliminary ruling and the terms thereof depended
on the existence of a declaration of acceptance by the requesting
Member State and, where applicable, on the content of this
declaration. Due to these restrictions, and also the duration of
preliminary procedures (20 months on average, which is difficult to
reconcile with the requirements for rapidity in criminal matters),
only a limited number of references for preliminary ruling have
been made. However, an urgent preliminary ruling procedure (PPU)
was established and has been in force since 1 March 2008 (see
Module 3). Although few in number, the references made have led to
some key decisions: good examples are the aforesaid judgment of 16
June 2005 in the Pupino case, and the decisions pronounced
concerning the ne bis in idem principle (such as the judgment of 11
February 2003 in the joined cases C-385/01 and C-187/01, Brgge and
Gztoc, or that of 9 March 2006 in Case C-486/04, Van Esbroeck) or
concerning the FD on the European Arrest Warrant (and its judgment
of 3 May 2007 concerning the Advocaten voor de wereld association
in Case C-303/05 of 12 August 2008, and Santesteban Goicoechea in
Case C-296/08 PPU).
Declarations concerning acceptance of the jurisdiction of the
CJEU to give preliminary rulings on the acts referred toin Article
35.1 of the TEU*
Type of court Reserves the right to stipulate in their domestic
legislation the obligation on courts of final instance to refer to
the CJEU (rather than just the option)
GermanyAll courts and tribunals Yes
AustriaAll courts and tribunals
Yes
BelgiumAll courts and tribunals
Yes
CyprusAll courts and tribunalsNo
SpainCourts of final instance
Yes
FinlandAll courts and tribunals No
FranceAll courts and tribunals Yes
GreeceAll courts and tribunals
No
Hungary All courts and tribunals
No
Italy All courts and tribunals
Yes
Latvia
All courts and tribunals
No
Lithuania
All courts and tribunals
No
LuxembourgAll courts and tribunals
Yes
NetherlandsAll courts and tribunals
Yes
PortugalAll courts and tribunals
No
RomaniaAll courts and tribunalsYes
SloveniaAll courts and tribunals
Yes
Sweden All courts and tribunals
No
Czech RepublicAll courts and tribunals
Yes
* Bulgaria, Denmark, Estonia, Ireland, Malta, Poland, Slovakia
and the United Kingdom have made no declaration conferring this
jurisdiction to the CJEU.tab1_mod1_V10
- In addition to its jurisdiction for preliminary rulings, the
CJEU had other powers within the framework of the third pillar, but
these had less of an impact on judges daily work: it could review
the legality of FDs and decisions where an action was brought by a
Member State or by the Commission on grounds of lack of competence,
infringement of an essential procedural requirement, infringement
of the Treaty or of any provision relating to its application, or
misuse of powers. Besides the fact that only the legality of
decisions and framework decisions could be questioned, and not that
of the other instruments adopted under Title VI, this challenge
could only be brought by the Commission or by a Member State, to
the exclusion of natural or legal persons and the other
institutions of the European Union. Individuals therefore had no
direct access to the Court. Action for failure to fulfil an
obligation, well known in Community law, did not exist in the 3rd
pillar. But the Court could rule on any dispute between Member
States regarding the interpretation or application of acts adopted
under the third pillar, whenever such dispute cannot be settled
within the Council within six months. It could also rule on any
dispute between Member States and the Commission regarding the
interpretation or application of conventions (Article 35 (7)).
Action for failure to act and for damages did not exist under the
3rd pillar.
=> Whether it was references for preliminary rulings or other
action brought before the CJEU in criminal matters, the Court did
not, in any event, have jurisdiction to review the validity or
proportionality of operations carried out by the police or other
law enforcement services in a Member State, or to rule on the
exercise of responsibilities incumbent on Member States to maintain
law and order and safeguard internal security. It could, however,
of its own motion review the facts of the grounds alleged by Member
States and shape the scope of the restriction placed on its
jurisdiction.
2.4.1.4. The integration of the Schengen acquis into European
Union lawEven though, since its launch, Schengen cooperation had
developed outside the EC and EU framework, the Amsterdam Treaty
integrated the Schengen acquis into the framework of the EU. This
integration took place through the Protocol integrating the
Schengen acquis into the framework of the European Union, which was
attached to the Treaty. Under this Protocol, the Council of the
European Union took the place of the Schengen Executive Committee
and, acting by a qualified majority, adopted the detailed
arrangements for the integration of the Schengen Secretariat into
the General Secretariat of the Council.
a) Why was the Schengen acquis integrated into the law of the
EU? There were three main reasons for this: the common objectives,
the ripple effect and the prospect of enlargement.
The close relationship between the substance of Schengen
cooperation and cooperation within the framework of the 3rd pillar
proves that there was a common objective in the two frameworks. The
integration of the Schengen acquis into the law of the European
Union put an end to having two parallel networks of institutions
and procedures with responsibility for the same matters. This
streamlining became all the more necessary in light of Schengens
considerable ripple effect. The first five Schengen partners were
joined in 1990 by Italy, in 1991 by Spain and Portugal, in 1992 by
Greece and in 1995 by Austria. In 1996, Denmark, Finland and Sweden
also joined so that, by the time the IGC leading to the Amsterdam
Treaty began, Schengen had brought together 13 of the 15 Member
States of the European Union (15 minus Ireland and the UK). The
prospect of enlargement also led to the integration of Schengen
into the EU, since if the Schengen provisions became part of the
Community acquis, candidate countries had to transpose them as
such. The protocol integrating the Schengen acquis also provides
that the Schengen acquis is henceforth binding on candidates for EU
membership. Decisions and measures arising from this acquis must be
accepted in full by these States. The integration of Schengen has
therefore resulted in an increase in the criteria that candidates
for admission will have to meet before joining the EU. Each of the
12 new Member States was therefore bound, upon admission, by a
significant part of the Schengen acquis, particularly all aspects
of judicial cooperation. The removal of checks at internal borders
with these States did not, however, occur immediately. It was
subject to specific evaluation, separate to that of admission to
the EU. This evaluation, which is undergoing reform, is based
largely on a peer evaluation', that is, a process whereby Member
States experts evaluate candidates for admission to the Schengen
area through in-country visits and reports.
This evaluation includes, inter alia, checks at external
borders. New Member States are not therefore part of the Schengen
area' (as defined as the area without internal borders) upon
admission to the European Union. For the criminal matters covered
here, this primarily means that the following aspects are not
immediately applicable to new Member States: the Schengen
Information System (important for the application of the European
Arrest Warrant, see Module 7) and the rules on cross-border
surveillance and hot pursuit (see Module 7). For 9 of the 12 new
Member States, checks at internal borders were abolished from 21
December 2007 for land and sea borders, and from March 2008 for air
borders. These 9 States were then connected to the SIS. The
abolition of checks has not yet been implemented for Cyprus,
Bulgaria and Romania (see Module 5).b) How has the Schengen acquis
been integrated into EU law?
Three aspects will be discussed in turn: the use of
differentiation or flexibility, the definition of the acquis and
its breakdown across EU law, and the status of the associate
Schengen countries.
The use of flexibility and the position of the United Kingdom
and Ireland: since only 13 of the 15 former EU Member States were
bound by the Schengen acquis at the time of the IGC, a formula
needed to be devised so that the United Kingdom and Ireland were
not bound by this integration. This was organised by the protocol
on the integration of Schengen itself, whereby only 13 States
participated in this integration. Nevertheless, it provided for an
opt in' for the two States not party to Schengen: Ireland and the
United Kingdom may at any time request to take part in some or all
of the provisions of the Schengen acquis. The Council must then
decide on the request with the unanimity of the Member States party
to Schengen and of the State concerned. The UK and Ireland
submitted a request to take part in some of the Schengen provisions
concerning police and judicial cooperation in criminal matters.
These were each authorised by a specific decision of the Council.
Pursuant to these decisions, these two States will take part in the
following aspects of the Schengen convention:
provisions on police cooperation, with the exception of the
right of cross-border hot pursuit (Article 41): this therefore
includes, inter alia, cross-border surveillance (see Module 5).
provisions on mutual assistance in criminal matters, the ne bis
in idem principle, extradition, the transfer of enforcement of
foreign sentences
provisions relating to combating drug trafficking
SIS, but solely for aspects relating to cooperation in criminal
matters (i.e. not alerts for foreign nationals for the purposes of
preventing them being admitted into the territory).
However, the application of this admission is conditioned by one
or more Council decisions laying down start dates for
implementation according to the specific areas of cooperation. This
is where the positions of the United Kingdom and Ireland
differ:
United Kingdom: in a decision of 22 December 2004, the Council
set 1 January 2005 as the start date for putting into effect all
aspects of Schengen cooperation accepted by the United Kingdom,
with the exception of provisions concerning the SIS.
Ireland: to date, there is no Council decision laying down a
start date for putting into effect these provisions. Work appears
to have been suspended at Irelands initiative. Ireland is therefore
the only country in the European Union to which none of the parts
of the Schengen agreement concerning cooperation in criminal
matters is applicable. The definition of acquis and its breakdown:
the Schengen acquis is defined in an annex to the protocol. It
refers to the Schengen Agreement of 1985, its Implementing
Convention of 1990, its protocols and accession agreements,
decisions and declarations adopted by the Executive Committee, as
well as acts adopted by the bodies to which the Committee has
conferred decision-making powers. As laid down in the protocol,
this acquis was incorporated, through a Council Decision of 20 May
1999, depending on the provisions at issue, either under the first
Community pillar, enriched by its new Title IV on the free movement
of persons, or under Title VI, now limited to police and judicial
cooperation. This decision determines the legal basis for the
provisions and decisions concerning the Schengen acquis, as set out
in Annexes A to D, with the exception of the provisions and
decisions for which the Council has established that a legal basis
was not necessary because they are no longer applicable. Breakdown
by area between the first and the third pillar had sometimes not
been possible, as evidenced by the provisions governing the
Schengen Information System. The problem lies mainly in the fact
that the SIS contains, on the one hand, a file relating to
undesirable foreign nationals, which should have its basis in the
first pillar of the Treaty, and the other a file containing the
data necessary to judicial and police cooperation, which by
contrast should have its legal basis in the 3rd pillar. There are,
in addition, horizontal provisions concerning, for example, the
purposes of the SIS, the categories of data that can be added to
it, data protection and financing. Pursuant to the Protocol
integrating the Schengen acquis, these provisions continued to be
based on the third pillar.
=> Identifying the legal basis for the provisions that
constitute the Schengen acquis was essential to their
implementation and development. It determined the framework in
which, and therefore the procedures by which, the acquis was
developed.
The protocol integrating the Schengen acquis governs the
position of certain third countries; the states with Schengen
associate status. On the eve of the IGC, some third countries were
recognised as associate countries of the Schengen Agreements,
namely Norway and Iceland. These two countries entered into a
cooperation agreement with the Schengen signatory states when
Denmark, Sweden and Finland signed the Schengen Agreements. The
aforesaid agreement was necessary to preserve the system already
operating between the five Nordic countries under the agreement on
the abolition of passport checks at inter-nordic borders signed in
Copenhagen on 12 July 1957 establishing the Nordic Passport Union.
Under the protocol integrating the Schengen acquis, these two
states are associated with the implementation of the Schengen
acquis and its subsequent development. The details of this
association are governed by an agreement signed on 18 May 1999 by
the Council of the European Union, the Republic of Iceland and the
Kingdom of Norway concerning the association of the latter two
states with the implementation, application and development of the
Schengen acquis.
Under this agreement: a) The provisions of the Schengen acquis,
as listed in Annex A, and the provisions of the acts of the
European Community replacing the corresponding provisions of the
Implementing Convention of 1990 or adopted pursuant thereto, as
listed in Annex B, shall be implemented and applied by Iceland and
Norway.
b) These States are also associated with the development of the
Schengen acquis. When a proposal is submitted, the Council must
determine whether it is a development of the Schengen acquis or not
(Schengen related' or not). If it is, Iceland and Norway are
associated with the decision-shaping process (i.e. negotiations,
debates, discussions) but they do not take part in the
decision-taking process (i.e. the adoption itself). When a
Schengen-related instrument is adopted, the Council notifies the
associate states. They must then signal whether they accept the
instrument and whether they agree to transpose it into their
internal legal order. They have 30 days to notify their decision.
If they do not provide a response or if they refuse, the
association agreement of 1999 shall be considered terminated. In
practice, to determine whether Iceland and Norway are bound by the
instruments adopted by the EU in criminal matters following the
integration of Schengen, we must therefore consider whether they
are Schengen related or not. If they are, they are considered bound
by them. Sometimes only certain provisions are; for example, the
2000 Convention on Mutual Assistance in Criminal Matters. But just
because an instrument or some of its provisions is not a
development of the Schengen acquis, it does not mean it will not be
binding on Iceland and Norway. On the basis of Article 24 and 38 of
the TEU, the EU may conclude external agreements with these
countries that incorporate the content of instruments or provisions
that are not Schengen related (for example, the agreement extending
the non-Schengen related provisions of the 2000 Convention on
Mutual Assistance in Criminal Matters to these two countries, and
also the agreement extending a light' version of the European
Arrest Warrant system to these two associate countries). The
case-law of the CJEU is also binding on these states.Iceland and
Norway have been joined' by two new Schengen associate states,
namely Switzerland and Lichtenstein.
2.4.2 The Treaty of Nice The Treaty of Nice signed on 26
February 2001 and which entered into force on 1 February 2003 did
not introduce major changes to Title VI, or the third pillar, of
the Treaty. However, there were two notable amendments:
An express provision regarding the establishment of Eurojust
(Article 31) was inserted (see below).
The conditions for initiating enhanced cooperation, that is,
being able to deepen cooperation without the need to involve all
Member States, while still operating within the framework of the
Treaty on European Union, were relaxed, in view of the prospect of
enlargement (Articles 40, 40(a) and 40(b) of the TEU). Now the
initiative had to come from the Commission or at least eight Member
States. This possibility has not yet been made use of. Cooperation
in the criminal sector was initiated with the entry into force of
the Treaty of Nice, but outside the scope of the treaty (see the
Prm Convention and the agreement on the exchange of criminal
records information, addressed in Modules 5 and 7
respectively).
2.4.3 The conclusions of Tampere of October 1999, The Hague
Programme of 2004 and its Action Plan of June 2005.
2.4.3.1. At the European Council in Tampere on 15 and 16 October
1999, which was the first Summit of Heads of State or Government
specifically dedicated to the field of justice and home affairs,
conclusions were adopted that set a five-year work programme
designed to implement the area of freedom, security and justice.
These conclusions were not legal commitments but rather policy
guidelines. But this does not make them any less essential: they
gave unprecedented impetus to the establishment of a European
criminal law-enforcement area, for example by opening up new
prospects. These were the conclusions that, inter alia, enshrined
the principle of mutual recognition as the cornerstone of judicial
cooperation in criminal matters (paragraph 33) and which referred
to the creation of a unit called Eurojust' (paragraph 46).
2.4.3.2. Adopted by the Brussels European Council of 4 and 5
November 2004, The Hague Programme succeeded the conclusions of
Tampere. It was put into practice' by an action plan adopted in
June 2005. The aim was to develop the concept of area, underlining,
from a judicial perspective, the importance of mutual recognition,
and establishing, from a police perspective, the principle of
availability (see paragraph 2.1. of The Hague Programme) (see
below).2.5. The Lisbon Treaty and the current system
The current system is laid down by the Lisbon Treaty, adopted by
the European Council on 18 October 2007 and signed on 13 December
2007, entering into force on 1 December 2009. This 5th phase is
also characterised by the Stockholm Programme, the name given to
the new multiannual programme adopted by the European Council on 10
and 11 December 2009, which succeeded the conclusions of Tampere
and The Hague Programme. Under the provisions of this new
programme, an action plan designed to implement it was presented by
the Commission in April 2010. This plan was greeted frostily by the
Council, which criticised it for not implementing certain
components of the Stockholm Programme and for developing other
aspects not provided for in that programme.
The Lisbon Treaty incorporates most of the many and far-reaching
reforms introduced by the Treaty establishing a Constitution for
Europe, adopted by the European Council on 17 and 18 June 2004 and
signed in Rome in October 2004. The field of JHA in general, and
criminal matters in particular, is one of the areas where the
Lisbon Treaty has introduced the most significant changes.
The most radical of these are the institutional changes. Changes
to the EUs competences in the field of cooperation in criminal
matters have also been introduced. Most of these merely maintain
the course already set by the European legislator and the CJEU,
such as enshrining the principle of mutual recognition and clearer
legal bases for the approximation of laws into the body of the
treaty itself. Others are more significant, such as the possibility
of expanding the mission of Europol (Article 88 of the TFEU) and
Eurojust (Article 85 TFEU), and the possibility of establishing a
European Public Prosecutors Office from Eurojust (Article 86 TFEU).
However, here we will focus on the major institutional changes
(2.5.1.); changes to the competences of the EU will be studied in
subsequent sections dedicated to those specific developments.
The Lisbon Treaty strengthened the EUs variable geometry, and
this was probably the price to pay for adopting all of the changes
it introduced (2.5.2).
2.5.1. Major institutional changes
The Lisbon Treaty introduced two fundamental reforms: first, the
abolition of the third pillar and, second, the end of the
intergovernmentality and the communitisation of cooperation in
criminal matters (2.5.1.1.). The Community method is nevertheless
still subject to some qualifications, due to the specific nature of
criminal justice. (2.5.1.2.). This overview of the major
institutional changes will conclude with a description of the
current decision-making procedure (2.5.1.3.).
2.5.1.1. The removal of the third pillar, the end of
intergovernmentality and the transition to the Community
method.
The Lisbon Treaty removed the third pillar. Provisions relating
to the area of freedom, security and justice were brought under
Title V of Part III of the Treaty on the Functioning of the
European Union (hereinafter, TFEU), the new name for the TCE, or
1st pillar. Title V is divided into five separate chapters. Three
of these are particularly relevant to the European criminal
law-enforcement area, namely the first, which contains various
rules common to this area; Chapter 4 on judicial cooperation in
criminal matters' and Chapter 5 on police cooperation'.
The abolition of the third pillar by the Lisbon Treaty, and the
integration of police and judicial cooperation in criminal matters
into Title V of Part III of the TFEU, resulted in the
communitisation of these fields. This had four significant
consequences.
The transition to the ordinary legislative procedure:
cooperation in criminal matters was now subject to the codecision
procedure, which entails the transition to qualified majority
voting within the Council (Article 294 of the TFEU). A single
Member State or a small group of Member States can therefore no
longer block negotiations: if they do not constitute a blocking
minority in the quorum of the qualified majority, these countries
must immediately and actively participate in seeking satisfactory
compromise solutions to prevent finding themselves isolated at the
end of the exercise and seeing their request purely and simply
rejected. The transition to the codecision procedure also entails
that the adoption of each instrument is subject to approval by both
the Council and the EP.
The provision of traditional Community instruments, including
regulations and directives: these instruments are much more
effective than the decisions and FDs of the former third pillar,
even after the indirect effect' they were afforded by the CJEU in
the Pupino case (see above and Module 3). A regulation is defined
as having general application, as being binding in its entirety and
directly applicable in all Member States (Article 288 of the TFEU).
This latter characteristic is a definite advantage, as it means
that this instrument does not require any measure to transpose or
implement it into the domestic law of the Member States: it is a
direct source of rights and obligations, that is, able as such to
confer rights and/or to impose obligations on Member States, their
institutions and on individuals in the same way as national law.
Directives are binding, as to the result to be achieved, upon each
Member State to which it is addressed, but leave to the national
authorities the choice of form and methods (Article 288 TFEU). The
directive is the preferred instrument for the approximation of
legislation but normally requires the transposition or adoption of
internal implementing measures. Under the Van Duyn case-law of the
CJEU, however, it can be afforded direct effect. This is, however,
subject to certain conditions and important limitations. The direct
effect of a directive is dependent on the existence of a provision
that is unconditional and sufficiently clear and precise, and when
consequently it does not leave any margin of discretion to the
Member States as to its application. This is one example of
vertical direct effect, which can only be invoked by individuals
against a defaulting Member State. In the criminal sector,
instances of vertical direct effect do not normally affect either
the rules of cooperation between judicial and police authorities or
the rules of substantive criminal law, since the latter primarily
lays down minimum standards for the purposes of prevention rather
than protection (see below). However, insofar as such instruments
also often include provisions that may benefit individuals in the
fields of data protection or the right of appeal they may also be
afforded partial vertical direct effect. Furthermore, directives on
the rights of victims or those intended to enhance the protection
of suspects and accused persons in criminal proceedings are likely
to entail direct effect (see below). Given the growing importance
of approximation work in these sectors, the potential direct effect
of directives could have a major impact at national level. These
new instruments are all the more effective because the review of
these instruments implementation is also enhanced. Infringement
proceedings, common in Community law, are now also applicable to
the criminal justice sector. Consequently, where the Commission
observes a failure to transpose or an incomplete transposition, it
may formally notify the Member State concerned, with the prospect
of infringement proceedings before the CJEU and the threat of a
penalty payment or a financial sanction being imposed on that
State. The strengthening of judicial review over the European
criminal law-enforcement area: firstly, the Lisbon Treaty opens up
the prospect of strengthening external judicial review by the
European Court of Human Rights, since it declared that the EU
accedes to the ECHR (Article 6(2) of the TEU). Furthermore, review
by the CJEU is substantially consolidated. It has become identical
to that it habitually exercised in Community law. These changes
particularly affect preliminary proceedings before the CJEU, as
well as action for failure to fulfil an obligation, review of
legality and action to declare an act void, action for failure to
act and compensation for damages. These changes do not only apply
to any new instrument adopted after the entry into force of the new
treaty, but also, under Protocol 36 annexed to the Lisbon Treaty
concerning transitional arrangements, to former instruments. The
transition from the former instrument to the new system can take
place in two ways. If an old model' legislative instrument (usually
a decision or a FD) is amended by a new model' legislative
instrument (a directive or regulation), the effects of the latter
thus contaminate' the resulting amended instrument as the amending
instrument under the new system. Even if an old model' instrument
is not amended by a new model' legislative instrument, it will
nevertheless entail the effects afforded to the new systems
legislative instruments on 1 December 2014. The new treaty
therefore not only offers new prospects for the law after Lisbon';
it could also give dozens of decisions and framework decisions
adopted between 1999 and 2009 a second life' (see Module 3).
The application of the general principles of Community law to
cooperation in criminal matters: following communitisation, the
general principles of Community law, such as the principle of
primacy or the exclusion of reciprocity are now applicable to
cooperation in criminal matters.
2.5.1.2. Some qualifications to communitisation
Despite the communitisation principle enshrined in the Lisbon
Treaty, the treaty retained some derogations.
Firstly, instead of enshrining the Commissions monopoly, the
Lisbon Treaty keeps the right of initiative shared between the
Commission and the Member States. But for a proposal to be
submitted by the Member States a minimum of one quarter of the
Member States needs to be reached (currently a minimum of 7 Member
States, and when Croatia joins the EU). The new treaty still
retains a number of exceptions to the ordinary legislative
procedure', that is, to the codecision system. It thus retains the
requirement to merely consult the EP and the requirement of
unanimity within the Council that is, the system under the old
third pillar for three specific areas of police and judicial
cooperation: the creation of a European Public Prosecutors Office
(Article 86(1) of the TFEU), operational police cooperation
(Article 87(3) of the TFEU) and the rules on the conditions and
limitations under which the competent authorities of the Member
States concerned may operate in the territory of another Member
State (Article 89 of the TFEU). These derogations reflect the
particularly sensitive relationship of these three specific areas
to national sovereignty.
In addition, and although the resulting legislative instruments
were adopted under the ordinary legislative procedures and
therefore by qualified majority, the treaty has padlocked the
approximation of procedural criminal law and substantive criminal
law by providing limitative lists of areas of crime in which the EU
could act, requiring a unanimous decision of the Council to add to
these lists (Article 82(2) and Article 83(1) of the TFEU).
Furthermore, in this field of approximation of procedural and
substantive laws, an alarm bell' procedure was also established.
When a Member State believes that a proposed directive affects
fundamental aspects of its criminal justice system, it may request
that the proposal in question be forwarded to the European Council.
In this instance, the ordinary procedure is suspended.
Finally, a exception to the normal competences of the CJEU lies
in Article 276 of the TFEU, which incorporates the former Article
35(5) TEU, whereby the Court has no jurisdiction to review the
validity or proportionality of operations carried out by the police
or other law enforcement services in a Member State, or to rule on
the exercise of responsibilities incumbent upon Member States to
maintain law and order and safeguard internal security.
2.5.1.3. Description of the current decision-making
procedure
The filing of an initiative: remember that the right of
initiative is shared between the European Commission and Member
States. Any legislative proposal must respect the principles of
subsidiarity and proportionality (Article 5 of the TEU). Protocol 2
to the Lisbon Treaty, which addresses the application of these
principles, provides for an obligation to give detailed grounds for
legislative proposals, including an assessment of the financial
impact. This applies to initiatives from the Commission as well as
those from Member States.
The involvement of national parliaments at the start of the
procedure: the Lisbon Treaty provides for national parliaments
formal involvement in the legislative procedure. National
parliaments have a period of 8 weeks from submission of the draft
legislation to issue a reasoned opinion stating why they believe
the proposal in question does not comply with the principle of
subsidiarity.
Negotiation: once the initiative has been filed, the negotiation
of an instrument submitted to the ordinary legislative procedure
begins with relatively separate negotiations within the Council and
the EP. Negotiations between the two institutions and with the
Commission then begin. The procedure is described in Article 294 of
the TFEU. The ordinary legislative procedure (codecision) may be
completed at three stages in the process:
after first reading: in the early stages of legislative
procedure, work within the Council and within the EP will progress
in parallel, but it is the Council that takes the lead in
determining a first approach. The first stage therefore involves,
in most cases, attaining a general approach' within the Council
that will guide the Presidency in its negotiations with the EP.
Discussions within the Council take place within a multi-level
pyramidal structure, and usually begin within the working group of
experts, usually from the Ministries of Justice or Interior
Ministries of the Member States. Working groups normally meet once
a month. The dossier may then be submitted to an interim committee
comprising high-level government officials, called the CATS.
However, this step is not mandatory. When political issues emerge
or the dossier is ready for agreement, the dossier is referred to
Coreper II (Committee of Permanent Representatives of the Member
States) and the JHA Council.
Within the EP, most of the discussions take place within the
competent Parliamentary committee and begin with the appointment of
a rapporteur. The rapporteur plays a central role as it is they,
assisted by the EP Secretariat, who must set out parliaments
position and negotiate with the Council. In the area of JHA, while
preparing their reports, the rapporteurs generally wait to receive
the general approach of the Council in order to take this into
account; converging on certain issues or taking an opposing
position. The rapporteur then presents their draft report to the
committee. The other Members of Parliament then have a period of
time to file their amendments. The rapporteur then prepares
compromise amendments and report is adopted through an orientation
vote'. This forms the EPs starting position in negotiations with
Council.
Negotiation can then begin. This takes the form of a trilogue
involving the Presidency, the rapporteur and the Commission. If the
Presidency and the rapporteur believe they have reached an
agreement at the end of the last trilogue, the Presidency presents
this compromise to Coreper. If Coreper approves the text by
qualified majority, this agreement is notified to the EP. The
competent committee then votes on the text, which is then sent to
the plenary session of the EP. It is when the text is adopted in
plenary session that an agreement at first reading is considered to
have been attained.
after second reading: in the small minority of instances where
there is no agreement at first reading, that is, if the rapporteur
and the Presidency fail to arrive at a text that is acceptable to
both the Council and to the EP, the latter each take a position,
starting with the Parliament. Even when the first phase of
negotiations has failed and where the EP has adopted an initial
position that is not acceptable to the Council, negotiations will
often continue until the Council has adopted its first position. If
these negotiations prove successful, the Council will adopt its
first position knowing that it is acceptable to the EP. This is
called 'early second reading'. It requires further confirmation by
a second position of the EP adopted in plenary session. Strict time
limits are imposed for the second reading stage. Once informed of
the position of the Council, Parliament must adopt a second
position within three months and in turn the Council has three
months to adopt its position. Again, there can only be agreement at
second reading if the EP position at second reading is acceptable
to the Council. The institutions therefore have three months after
the position at first reading of the Council to reach an agreement.
The procedures are the same as for the first reading stage and
therefore rely on trilogues involving the three institutions.
under a conciliation procedure: failure of the second reading
procedure automatically activates the conciliation procedure. This
is rarely necessary. Conciliation takes place through a
Conciliation Committee comprising one representative per Member
State for the Council, and an equal number of members representing
the EP and the commissioner concerned. The work of the committee
is, however, done through trilogues similar to those used during
other phases of the procedure. The timescales are very short:
within six weeks after the adoption of the position at second
reading of the Council for the first meeting of the Conciliation
Committee, a further six-week deadline between the first meeting
and an agreement being reached within the committee, and a final
six-week deadline for the Parliament and the Council to each
confirm the agreement reached within the Conciliation Committee. It
is very rare for the conciliation procedure to fail.
2.5.2. The price to pay: the variable geometry of the European
criminal justice area
The changes described above, which have often been radical,
greatly enhance European cooperation in criminal matters. This
evolution has not, however, been accepted as such by everyone. Two
types of compromise have therefore needed to be found: the closing
off of some competences, compensated for by increased scope for
enhanced cooperation (see above), and the granting of opt-out
mechanisms for the United Kingdom, Ireland and Denmark (2.5.2.1).
These modulations add to the already complex situation created by
Schengen cooperation, which will be briefly reiterated (2.5.2.2.).
Accompanying these specific provisions was also the general opt-out
possibility granted to the United Kingdom by Protocol No 36 on
transitional provisions (2.5.2.3.).
2.5.2.1. Opt-outs granted to Denmark, the United Kingdom and
Ireland by the Treaty of Lisbon
For instruments that do not fall under Schengen cooperation, the
justification for the specific system granted to these three
countries is the same: in JHA, due to the relationship with
national sovereignty, these Member States rejected the
communitisation of JHA. These opt-outs already existed for
communitised matters under the Amsterdam Treaty (asylum,
immigration, border crossings and judicial cooperation in civil
matters see above). Since the Lisbon Treaty extended
communitisation to cooperation in criminal matters, by the same
token it also extended the opt-outs granted to these three Member
States. The opt-out system is laid down by Protocol No 21 to the
Lisbon Treaty for the United Kingdom and Ireland, and by Protocol
No 22 for Denmark (hereinafter Protocols 21 and 22).
While Denmark has a full opt-out, the United Kingdom and Ireland
operate on a more ' la carte' basis.
For Denmark, the opt-out is total insofar as, when a new
instrument is proposed, Denmark does not have the option of
choosing to participate (no opt-in is possible, except in Schengen
matters). The only way the instrument could apply to Denmark would
be under a specific agreement between the European Union and
Denmark. Denmark may, however, decide to change this system at any
time. It may abandon the opt-out system in its entirety and join
the other 24 Member States (Article 7 of Protocol 22). It may also
decide to join the ' la carte' system enjoyed by the United Kingdom
and Ireland (Article 8).
The United Kingdom and Ireland benefit from a more flexible
system that can be described as an ' la carte' opt-in or opt-out.
The basic rule is that they do not participate in instruments
adopted since the Lisbon Treaty that relate to cooperation in
criminal matters. However, each time a new legislative proposal is
filed, these two Member States have an 8-week period to decide on
an 'a priori opt in', that is, to decide whether they will take
part in that instrument. If they decide to opt in, they assume the
benefits (their vote counts) as well as the risks, which may
include being in a minority in the final outcome of the
negotiations. They cannot withdraw from the instrument at the end
of these negotiations. Furthermore, they cannot simply opt in at
the start of negotiations and await their outcome. If they are
satisfied with the outcome, they can decide on an a posteriori opt
in (Article 4 of Protocol 21), which can be notified at any time
after the adoption of the instrument, as if part of enhanced
cooperation.
2.5.2.2. The complexity associated with Schengen cooperation
As regards Schengen cooperation, we must first remember that not
all Member States are bound by Schengen cooperation in the same
way. A distinction is drawn between four groups of Member States
from this perspective:
EU Member States that are part of the Schengen area: the entire
Schengen acquis is fully applicable to the following 21 countries:
Germany, Austria, Belgium, Spain, Estonia, Finland, France, Greece,
Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, the
Netherlands, Poland, Portugal, the Czech Republic, Slovakia,
Slovenia and Sweden. Five Member States are missing from this list,
namely the United Kingdom, Ireland, Cyprus, Romania and Bulgaria
(see below):
The United Kingdom and Ireland are not bound by Schengens
integration into the EU. They did, however, request, that without
taking part in the Schengen area (the area without checks at
internal borders), they take part in some measures of the Schengen
acquis, including many of the cooperation in criminal matters
measures (see above).
States that have recently joined the EU but that are not yet
members of the Schengen area: the opt-out granted to two 'old' EU
Member States is exceptional (United Kingdom and Ireland) and this
option is not available to new Member States. They must agree to
take part in Schengen cooperation and the Schengen area, as well as
to the remainder of the EU acquis. However, although EU membership
requires immediate participation in a large part of Schengen
cooperation, this is not true for is joining the Schengen area,
which is subject to supplementary conditions. Currently, Cyprus,
Romania and Bulgaria are still in the transition phase and are
therefore not yet members of the Schengen area. The same applies to
Croatia. Cyprus, Romania and Bulgaria were, however, bound by some
provisions of the Schengen acquis as part of the EU acquis upon
joining the EU. This part of the acquis is defined in the act of
accession to the EU. It covers a large part of the rules of
judicial cooperation in criminal matters and police cooperation,
with the specific exception of hot pursuit and cross-border
surveillance (Articles 40 and 41 of the CISA) and the SIS.
Finally, the case of Denmark is quite specific, as it forms part
of the Schengen area. Its status as a Schengen State needed to be
reconciled with its opt-out regarding communitised JHA matters. The
situation is laid down in Protocol 22 to the Lisbon Treaty. Under
its opt-out regarding JHA, Denmark is not directly bound by
measures adopted by the EU in this area, even if they fall under
the development of the Schengen acquis. Article 4 of Protocol 22
provides that Denmark shall decide on a case-by-case basis whether
or not to transpose such Schengen-related measures into national
law. Denmark therefore has more opportunity to opt in than it does
when the measures are not 'Schengen related'. This Article also
provides that 'if Denmark decides not to implement a measure of the
Council as referred to in paragraph 1, the Member States bound by
that measure and Denmark will consider appropriate measures to be
taken'.
Finally, remember that some third countries that are not EU
members are Schengen associate states. These are Norway, Iceland,
Switzerland and Liechtenstein. They are members of the Schengen
area and are bound by the Schengen acquis past and future. They
participate in all activities, legislative and otherwise, regarding
the implementation and development of the Schengen acquis. All
these activities take place in a 'Joint Committee' composed of EU
Member States and Schengen partners. In practice, the normal
working structure of the Council is used. The working group,
committee, Coreper or Council concerned meet to discuss the points
that are relevant to Schengen cooperation, as a Joint Committee',
and therefore in the presence of the 27 Member States and three
Schengen partners.
2.5.2.3. The general opt-out possibility granted to the United
Kingdom by Protocol No 36 on transitional provisions While the
opt-out laid down by Protocol No 21 concerns both the UK and
Ireland and applies to the 'new generation' instruments, that is,
those presented after the entry into force of the Lisbon Treaty,
the opt-out under Protocol No 36 only applies to the United Kingdom
and to previous acts of the EU in the criminal justice sector,
namely those adopted before the entry into force of the Lisbon
Treaty. Under Article 10(3) of Protocol No 36, the previous acts of
the EU in criminal matters will be subject to the new competences
of the institutions (European Commission and CJEU) five years after
the entry into force of the Lisbon Treaty, i.e. from 1 December
2014. Under Article 10(4) and (5), no later than six months before
the expiry of the transitional period, that is, before 1 June 2014,
the United Kingdom may notify to the Council that it does not
accept these new competences. In this instance, all acts adopted
before the entry into force of the Lisbon Treaty shall cease to
apply to that State. A possibility of notifying its wish to re-opt
into acts that have ceased to apply to it is provided for in
Article 10(5). It remains to be seen whether the United Kingdom
will actually use the aforesaid opt out and, if necessary, the
ability to re-opt in. A lively debate on this subject is underway
in the United Kingdom. Despite its complexity, and problems use of
such an opt-out would cause, the British Government stated in late
2012 its intention to propose use of this opt-out to the national
parliament.2.6. Conclusion
It appears that cooperation between EU Member States in the
criminal sector is emblematic of the evolving and dynamic process
of constructing a unified Europe:
This is true from an institutional perspective: initially, no
competence in criminal matters was provided for in the Treaty of
Rome. Cooperation in this area slowly developed outside the
Community framework at first, before being integrated into the
Treaty on European Union. The intergovernmental approach initially
adopted has gradually become tinged with Community shades, with the
Lisbon Treaty as the culmination of this evolution, aiming to
enshrine the transition to a true communitisation of criminal
matters.
It is also true as regards the pursued aims: we have seen the
emergence and gradual realisation of the concept of a European
criminal law-enforcement area; while and the constitutional treaty,
by virtue of the prospect of establishing a European Public
Prosecutors Office, has opened up the prospect of truly integrated
European institutions.
3. The European criminal law-enforcement area and its components
Since the entry into force of the Amsterdam Treaty, achievements in
the field of cooperation in criminal matters have increased. These
developments are not only impressive in their quantity. They are
also impressive in their content: some of them genuinely put the
concept of area into practice, beyond traditional concepts of
national sovereignty and the principle of criminal territoriality
(see above, particularly the principle of mutual recognition).
But strong resistance remains. This resistance centres on two
areas: The establishment of a genuine European criminal
law-enforcement area: the negotiations and adoption of a number of
instruments to develop the European criminal law-enforcement area
are proving difficult. This is the case for instruments of mutual
recognition, for example. Negotiations have proven very problematic
for some of them, even after the entry into force of the Lisbon
Treaty. In addition, once adopted, the instruments have also met
with resistance regarding their transposition into the national law
of the Member States. Many transpositions have been late or
incomplete. In this respect, it was hoped that the entry into force
of the Lisbon Treaty would improve the situation, in part because
action for failure to fulfil an obligation now exists in these
areas for the new acts and, from 1 December 2014, for the previous
acts.
The balance to be struck between the three key words: freedom,
security and justice. Since the Amsterdam Treaty, there has been
some diversification of objectives, both in terms of prevention
(cf. the establishment of a European crime prevention network), and
in the area of victims rights (cf. FD of 15 March 2001 on the
standing of victims in criminal proceedings). While under the
Amsterdam Treaty this diversification was still extremely timid
(the majority of the instruments adopted aim to develop
crime-combating measures and to serve the sword approach to
criminal law), since the entry into force of the Lisbon Treaty, it
has appeared to gain strength, as reflected primarily in the
Directive of 25 October 2012 establishing minimum standards on the
rights, support and protection of victims of crime, replacing the
aforementioned FD and the directives on procedural safeguards for
suspects.
In work to establish a European criminal law-enforcement area,
four dimensions can be distinguished:
deepening/relaxation of mechanisms of cooperation in criminal
matters (3.1.)
establishment of European stakeholders (3.2.)
approximation of criminal laws (3.3)
external dimension of the European criminal law-enforcement area
(3.4)
The first two dimensions, namely the development of mechanisms
of cooperation in criminal matters and police cooperation, and the
establishment of European stakeholders are most relevant to the
everyday practice of cooperation in criminal matters within the EU.
These will be the focus of the subsequent modules.
The existence of the two other dimensions, however, should not
be overlooked. The complementarity of the four dimensions is
essential: the complementarity of the approximation of laws and the
deepening of cooperation mechanisms, but also the complementarity
of the first three dimensions falling within the scope of the
internal dimension of the European criminal law-enforcement area
with the 4th, external, dimension.
3.1. Deepening/relaxation of mechanisms of cooperation in
criminal matters
In this first dimension, a distinction must be drawn
between:
a) work aimed at simplifying the mechanisms of judicial
cooperation in criminal matters, which has recently taken the form
of the mutual recognition procedure, on the one hand,
b) work concerning police cooperation on the other hand.
It should be noted that some mechanisms concern both police
cooperation and judicial cooperation in criminal matters, such as
the principle of availability (see Module 5).
3.2. Establishment of European stakeholders
The main stakeholders of police cooperation and judicial
cooperation in criminal matters are the national police and
judicial authorities of the Member States. However, various other
European stakeholders or organisations have been established. Their
function is to facilitate cooperation in criminal matters (for
example, liaison magistrates, the European Judicial Network,
Eurojust see below) and police cooperation between EU Member States
(for example, Europol see below). They are not European police or
judicial institutions in the strict sense: there is currently no
European criminal judicial authority or European police authority
with enforcement powers throughout the EU. However, the Lisbon
Treaty opens up new prospects, such as the strengthening of
Europol's powers (Article 88 of the TFEU), the granting of limited
enforcement powers to Eurojust (Article 85 of the TFEU), and the
even more ambitious prospect of establishing a European Public
Prosecutors Office (Article 86 of the TFEU) (see above).3.3.
Approximation of laws
Work to approximate the criminal laws of the EU Member States
began with the entry into force of the Maastricht Treaty. This was
stepped up following the entry into force of the Amsterdam Treaty,
which introduced Article 31 e), specifically dedicated to the
approximation of laws, into the treaty. This work has been
developed further since the entry into force of the Lisbon Treaty,
which provides clearer legal bases for this work (Article 82(2) of
the TFEU concerning the approximation of procedural criminal laws,
and Article 83 concerning the approximation of substantive criminal
laws). Until the entry into force of the Lisbon Treaty, work to
approximate laws mainly focused on substantive criminal law;
criminal procedure was, by contrast, somewhat neglected. Since the
entry into force of the Lisbon Treaty, the approximation of
substantive laws has continued and the approximation of procedural
law has developed. 3.3.1 Approximation of substantive criminal
law
The instruments adopted include:
a) a number of conventions adopted under the 3rd pillar of the
TEU (Maastricht Treaty), such as that of 26 July 1995 on the
protection of the European Communities financial interests and its
protocols of 27 September 1996, 29 November 1996, and 19 June 1997
and the Convention of 26 May 1997 on the fight against corruption
involving officials of the European Communities or officials of the
Member States of the European Union.
b) a number of joint actions adopted under the 3rd pillar of the
TEU (Maastricht Treaty), such as the Joint Action of 15 July 1996
concerning action to combat racism and xenophobia, the Joint Action
of 21 December 1998 on making it a criminal offence to participate
in a criminal organisation in the Member States of the European
Union, most of which have since been replaced by Framework
Decisions (see below).
c) Framework decisions adopted under the 3rd pillar, as revised
by the Treaty of Amsterdam and the Treaty of Nice:
Council Framework Decision 2000/383/JHA of 29 May 2000 on
increasing protection by criminal penalties and other sanctions
against counterfeiting in connection with the introduction of the
euro, as subsequently amended by Framework Decision 2001/888/JHA of
6 December 2001
Council Framework Decision 2001/413/JHA of 28 May 2001 on
combating fraud and counterfeiting of non-cash means of payment
Council Framework Decision 2001/500/JHA of 26 June 2001 on money
laundering, the identification, tracing, freezing, seizing and
confiscation of instrumentalities and the proceeds of crime
Council Framework Decision 2002/475/JHA of 13 June 2002 on
combating terrorism and Council Framework Decision 2008/919/JHA of
28 November 2008 amending the previous Framework Decision
Council Framework Decision 2002/629/JHA of 19 July 2002 on
combating trafficking in human beings, replaced by Directive
2011/36/EU (see below).
Council Framework Decision 2002/946/JHA of 28 November 2002 on
the strengthening of the penal framework to prevent the
facilitation of unauthorised entry, transit and residence, which
should be read in conjunction with Council Directive 2002/90/EC of
28 November 2002 defining the facilitation of unauthorised entry,
transit and residence Council Framework Decision 2003/80/JHA of 27
January 2003 on the protection of the environment through criminal
law: this framework decision was annulled by the CJEU (see above)
and 'replaced' at least in part by Directive 2008/99/EC (see below)
Council Framework Decision 2003/568/JHA of 22 July 2003 on
combating corruption in the