Jurisdiction of the European
Court of Justice over criminal matters
59. By virtue of Article 35 EU the jurisdiction of
the European Court of Justice (ECJ) is currently limited in a
number of respects.
60. The ECJ has jurisdiction under Article 35(1)
EU to give preliminary rulings on the validity and interpretation
of decisions, framework decisions, and conventions, but the acceptance
of such jurisdiction depends on a declaration to that effect being
made by a Member State under Article 35(2)EU. Around half of the
existing Member States (not including the UK) have made such a
declaration. Where Member States have made such a declaration,
options are available under Article 35(3)EU to specify either
that only a supreme court may refer a question of interpretation
or validity to the ECJ, or that such a reference may be made by
any court.
61. By virtue of Article 35(5) EU the ECJ has "no
jurisdiction to review the validity or proportionality of operations
carried out by the police or other law enforcement services of
a Member State or the exercise of the responsibilities incumbent
upon Member States with regard to the maintenance of law and order
and the safeguarding of internal security".
62. Article 35(6)EU confers a jurisdiction on the
ECJ to review the legality of decisions and framework decisions
on grounds similar to those applying in respect of EC measures
under Article 230 EC. Article 35(7) EU confers a jurisdiction
to rule on any dispute between Member States on the interpretation
of measures adopted under Article 34(2) EU where the dispute cannot
be settled by the Council. The ECJ also has jurisdiction to rule
on any dispute between the Commission and a Member State on the
application or interpretation of any convention established under
Article 34(2)(d) EU.
63. The report of Working Group X proposes the abolition
of these limits on jurisdiction so that the general system of
jurisdiction of the ECJ under the EC Treaty would extend to the
"Area of Freedom, Security and Justice", including action
by Union bodies in this field. The report indicates that some
members wished to maintain the restriction imposed by Article
35(5)EU.[65]
64. The Working Group's proposal has been largely
reflected in the Articles relating to the ECJ in Part III of the
draft Treaty. Article III-271 largely reproduces the provisions
of Article 234 EC, which provides for the ECJ to give preliminary
rulings in First Pillar matters, but there is the important difference
that the interpretative jurisdiction of the ECJ would apply generally,
without distinction as to whether the measure relates to "freedom,
security and justice". Questions could be referred by courts
at the first instance and appellate levels. In cases where the
case concerned a person held in custody, the ECJ would be required
(by Article III-271) to give a ruling "with the minimum of
delay".
65. The exception contained in Article 35(5)EU has
been retained, but in a modified form. Article III-279 accordingly
provides that the ECJ has no jurisdiction to review the validity
or proportionality of operations carried out by police or law
enforcement services or the maintenance by a Member State of
law and order or its internal security "where such action
is a matter of national law".
66. Mr Hain told us that the Government wished to
retain the exception for law and order and internal security,
which he said "should be a matter for national governments
and national courts". It also sought a provision which would
allow Member States to restrict to final courts of appeal the
power to make preliminary references on particular aspects of
justice and home affairs.[66]
67. Mr Heathcoat-Amory expressed concern about extending
the general system of jurisdiction of the ECJ. The proposals of
the Working Group implied, in his view, that "we are effectively
gaining a supreme court".[67]
He explained that the long delays in obtaining a preliminary ruling
from the ECJ had worried the plenary meeting of the Convention.
At present, these delays were around 22 months and would only
increase as a result of the accession of new Member States and
incorporation into the Constitutional Treaty of the Charter of
Fundamental Rights, which included very general social, employment
and political rights, all of which would in theory be justiciable.
Mr Heathcoat-Amory thought that there would need to be more courts
of first instance. Creating a series of subsidiary courts would
have implications for the unity of justice at the European level,
and he concluded:
"I prefer to keep the existing Member State
justice systems intact and confine the European Court of Justice
to arbitrating between Member States in matters which are inescapably
of a cross-border and European Union level. Instead, I think we
are going to enmesh ourselves in a supreme court sitting elsewhere,
overwhelmed with cases dealing right the way across the board
and intruding into matters which really should be the responsibility
of national parliaments."[68]
68. JUSTICE supported the recommendations of Working
Group X but was opposed to the continuation of the exception now
contained in Article 35(5)EU. It was concerned that an exception
in these terms might have the effect of restricting the jurisdiction
of the ECJ in relation to possible future EU measures on matters
such as minimum standards and procedural safeguards for defendants
and other issues relating to the rights of the defence and the
duties of the prosecution. As for delays in dealing with cases
where a preliminary ruling was sought while the defendant was
held in custody, JUSTICE considered that some kind of "fast-track"
system would be necessary to avoid unnecessary delays.[69]
We learnt during our recent visit to the Court that the principal
reason for delay in preliminary ruling cases is the need to translate
pleadings and other documents. This problem cannot but be magnified
by enlargement, needing a significant increase of resources without
which any "fast-track" system will simply transfer delays
elsewhere.
69. Statewatch also agreed with the recommendations
of Working Group X on the jurisdiction of the ECJ and did not
think there was a convincing reason for allowing an opt-out in
respect of preliminary rulings. Statewatch did not favour limiting
to final courts the right to refer a question to the ECJ, arguing
that "this may delay the final resolution of cases and detract
from the prospects of uniform interpretation" and cause further
expense to be incurred by the bringing of appeals purely to secure
the prospect of a reference to the ECJ.[70]
Professor Peers and Mr Jakobi both agreed that it would not be
acceptable for a defendant to be held in custody for 22 months
while a preliminary ruling was obtained from the ECJ, but thought
that that this was more of a logistical problem of the Court's
organisation and resources than a question of procedure.[71]
70. Statewatch and JUSTICE put forward some substantial
arguments in favour of an extension of the jurisdiction of the
ECJ, but they appear to give less weight than we would to the
severe practical difficulty of delay, or to the ability of the
national courts to defend human rights in the national context.
We are not persuaded that
the jurisdiction of the ECJ should be extended to police and law
enforcement operations, or to the exercise by a Member State of
its responsibility to maintain law and order or internal security,
and believe that an exclusion along the lines of the existing
Article 35(5)EU should be maintained. We
note that such an exclusion has been proposed, but that it is
to apply only where the action taken is "a matter of national
law'" We consider that the exclusion now proposed is ambiguous,
since it is not clear, for example, whether action taken under
national law implementing a European framework law is within the
exception or outside it. As any exception from jurisdiction is
likely to be interpreted narrowly, we believe it is essential
to make clear either that the exception continues to apply to
all action taken by Member States, or to all such action except
that which is taken in giving effect to a directly applicable
"European law".
71. We do not
see any justification for removing the "opt-out" from
ECJ jurisdiction, which is presently provided for in Article 35(2)
EU. In any event, we do not consider it appropriate for Member
States to be required to permit lower courts to refer questions
for preliminary rulings in criminal matters.
For the trial court to make such a reference
would be highly disruptive to the trial process, and could lead
in some cases to a defendant being held in custody for an extended
period and in all cases to the evidence becoming stale while the
reference is being dealt with, which can hardly serve the interests
of justice. In our view, Member States must remain free to decide
that only final courts of appeal may make references.
48 
