Select Committee on Home Affairs Written Evidence

14.  Memorandum submitted by Dr Valsamis Mitsilegas


  1.  Justice and Home Affairs is perhaps the fastest-growing area of European Union law and policy, with developments in the field challenging traditional perceptions of State sovereignty and having potentially far-reaching implications for the protection of fundamental rights and the relationship between the individual and the State. Recent years have witnessed a proliferation of EU laws (such as the European Arrest Warrant) and structures (such as Eurojust and the European Borders Agency), and sustained political pressure—most notably via the Hague Programme and its aftermath—towards the intensification of co-ordination and operational co-operation between national law enforcement agencies. However, these developments have not always been accompanied by an open, democratic debate in the future direction of EU action in the field, with both the European Parliament and national parliaments having a limited say. On the other hand, attempts for further integration have repeatedly stumbled upon current institutional constraints—such as decision-making by unanimity in the Council—which remains in place in the light of the rejection of the Constitutional Treaty, at the expense of the adoption of mostly "protective" measures for the individual (such as proposals on the rights of the defendant). This contradiction between the political pressure towards more EU co-ordination in enforcement and Member States' reluctance to cede sovereignty in the sensitive sphere of criminal law is reflected in the Hague Programme and has led to two major tendencies in the development of EU law and policy in the field: an emphasis on mutual recognition rather than harmonisation of criminal law; and an emphasis on operational co-operation rather than the development of a coherent legal framework to regulate co-operation between national authorities. My contribution will focus on these two aspects of EU action.


  2.  Mutual recognition of judicial decisions has been central in the development of EU criminal law post-Tampere and confirmed in the Hague Programme as the cornerstone of EU action in criminal matters. The emphasis on mutual recognition, instead of harmonisation of criminal law, has been a convenient choice for Member States concerned about ceding sovereignty in criminal matters. The political appeal of mutual recognition for such Member States lies in the fact that, instead of embarking in a very visible attempt to harmonise their criminal laws at EU level, they can be seen to promote judicial co-operation by not having to change in principle their domestic criminal laws. For EU institutions promoting the principle, on the other hand, mutual recognition would avoid stagnation in European integration in criminal matters (linked to Member States' reluctance to harmonise criminal law and the decision-making constraints of the third pillar) and would lead to a "spill-over" harmonisation of minimum procedural standards justified as facilitating the practical operation of mutual recognition and leading to the establishment of a common level playing field across the EU. [99]The Commission's proposal on defence rights is a clear example of such "spill-over" harmonisation strategy. [100]

  3.  The central element of the mutual recognition mechanism is that—instead of a common standard negotiated and adopted at EU level—it is a national standard, judgment or order (for example, a European Arrest Warrant) that must be recognised by the equivalent authorities of other Member States. [101]In recognising these standards in specific cases, national judicial authorities implicitly accept as legitimate the national legal, constitutional and judicial system which has produced them in the first place. In that sense, mutual recognition represents a "journey into the unknown", where national authorities are in principle obliged to recognise—with a minimum of formality and limited grounds for refusal—standards emanating from the national system of any given EU Member State. The basis for the smooth operation of the principle is therefore a high level of trust in each other's criminal justice systems, which would facilitate the quasi-automatic recognition of national judicial decisions in the sensitive sphere of criminal law by judges across the EU.

  4.  However, the issue of the extent to which one can successfully "borrow" the mutual recognition principle from its internal market framework and transplant it to the criminal law sphere is contested. The main objection that could be voiced to such transplant is one of principle, namely that criminal law and justice is an area of law and regulation which is qualitatively different from the regulation of trade and markets. As I have noted elsewhere, "Criminal law regulates the relationship between the individual and the State, and guarantees not only State interests but also individual freedoms and rights in limiting State intervention. Court orders and judgments in the criminal sphere may have a substantial impact on fundamental rights, and any inroads to such rights caused by criminal law must be extensively debated and justified. Using mutual recognition to achieve regulatory competition (as has been the case in the internal market) cannot be repeated in the criminal law sphere, as the logic of criminal law is different and market considerations cannot give a solution. While market efficiency requires a degree of flexibility and aims at profit maximisation, clear and predictable criminal law principles are essential to provide legal certainty in a society based on the rule of law. The existence of these—publicly negotiated—rules is a condition of public trust to the national legal order." [102]

  5.  It comes thus as no surprise that the application of the mutual recognition principle in criminal matters on the terms described above, has raised a number of constitutional concerns. A major objection has centered on the abolition of the dual criminality requirement for 32 offences in the mutual recognition instruments, which is seen to constitute a breach of the legality principle (or nullum crimen sine lege). It is doubtful whether it is acceptable to execute an enforcement decision (such as an arrest warrant) related to an act that is not an offence under the law of the executing State and whether a State should be asked to employ its criminal enforcement mechanism to help prosecuting/punishing behaviour which is not a criminal offence in its national legal order. A further concern involves the legitimacy of criminal law at the national—and EU—level. Criminal law is fundamental in a society governed by the rule of law, as it contains rules delineating the relationship between the individual and the State and providing guarantees and safeguards for the individual regarding the extent and limits of acceptable behaviour and reach of State power and force. Criminal law and the limits that it sets must be openly negotiated and agreed via a democratic process, and citizens must be aware of exactly what the rules are. However, mutual recognition challenges this framework. Contrary to harmonisation, which would involve a set of concrete EU-wide standards which would be negotiated and agreed by the EU institutions, mutual recognition does not involve a commonly negotiated standard. Agreeing on the procedure to recognise national decisions, rather than substantive rules in the field of criminal law reflects a legitimacy and democracy deficit. Mutual recognition without any level of open, democratic debate contributes towards a lack of clarity as to the objectives, content and direction of EU criminal law. [103]

  6.  The recent decision by the German Constitutional Court on the compatibility of the German legislation implementing the European Arrest Warrant is indicative of such concerns. While the Court avoided to clash with the Union legislator and the European Arrest Warrant itself, it sent a clear warning that any attempt to render judicial co-operation in criminal matters automatic would have to take into account the constitutional protection that—at least citizens—of EU Member States feel that they enjoy in their country of citizenship. Rather than emphasising trust in "each other's legal and judicial systems" which is at times taken for granted by EU institutions and certainly flagged up as the basis for mutual recognition, the German Constitutional Court rather emphasised the trust that the citizen has in his/her own legal system—and subsequently annulled the German implementing legislation of the European Arrest Warrant.

  7.  The Commission on the other hand attempted to address these concerns mainly by tabling a draft Framework Decision on defence rights, which was presented as a corollary to the European Arrest Warrant and justified on the basis that it would enhance trust in each other's criminal justice system. Given the measure's rather weak legal basis, the requirement of unanimity in the Council, and Member States' reluctance to agree on such issues, the proposal is still under negotiation in the Council. Bearing in mind that the European Arrest Warrant has now been fully implemented, this creates an imbalance in EU criminal law, which is exacerbated by the constant focus on mutual recognition at the expense of (and not in conjunction with) harmonisation of criminal law or an attempt to achieve a better common understanding of the aims and objectives of criminal law in a borderless Union. With the majority of Member States seemingly reluctant to use the "passerelle" provision to transfer criminal law decision-making in the first pillar, prospects of more harmonisation remain unclear. At the same time, though, mutual recognition is increasingly under attack (if the German Constitutional Court and the outcome of the negotiations on the European Evidence Warrant are credible indications). This state of flux can be seen as an opportunity to address the incrementalism in the development of EU criminal law and opening a far-reaching debate on the future and direction of EU action in criminal matters.


  8.  The main novelty in the rather "pragmatic" Hague Programme has been the emphasis on "operational" measures and a multi-pronged strategy to enhance operational co-operation. Measures aim in particular at boosting operational co-operation between national law enforcement (and to some extent intelligence) agencies, by introducing new concepts such as the principle of availability, enhancing the exchange of personal data and strategic information between these agencies and their EU counterparts, and developing European Union databases.

Intensifying co-operation between national police authorities

  9.  The key element in this process is the facilitation of exchange of information between national authorities on the basis of the "principle of availability". According to the Hague Programme, this means that "throughout the Union, a law enforcement officer in one Member State who needs information in order to perform his duties can obtain this from another Member State and that the law enforcement agency in the other Member State which holds this information will make it available for the stated purpose, taking into account the requirement for ongoing investigations in that State". The principle of availability, as evidenced by the Commission original proposal for a related Framework Decision and based on a maximal version of mutual recognition, is extensive and may have far-reaching implications for both the protection of human rights but also for the legitimacy of EU action in the field:

    —  It calls for the provision of information to "equivalent" authorities of other Member States almost exclusively on a "need to know basis".

    —  Exchange of information takes place on the basis of standard, pro-forma documents, becoming thus quasi-automated.

    —  No questions as to the purpose and use of this information by the requesting authority are asked (although the proposal currently includes a ground for refusal on human rights grounds).

    —  Requesting police authorities cannot ask for information to be obtained—with or without coercive measures—by the requested authority solely for the purposes of co-operation—but information already lawfully collected by the requested authority by coercive measures may be provided (even though these measures may not be lawful in the requesting State—something that would potentially infringe national constitutional provisions through the "back door").

    —  Authorities that can benefit from the principle of availability will be defined by a "comitology" Committee, and not by the ordinary EU legislative procedure (currently in the third pillar)—this move would bypass parliamentary scrutiny both at EU and national level and shields the issue of "availability" from public debate.

Developing EU databases and enhancing their "interoperability"

  10.  One of the main priorities in this context is the development of the "second generation" Schengen Information System (SIS II). These developments may bring about fundamental changes in the nature and purpose of the Schengen Information System, which may be transformed into a general, law enforcement database, with the boundaries between the so-called "immigration" and "police" data in the SIS database becoming increasingly blurred. Key in this process are proposals to interlink SIS alerts. Parallel developments are visible in negotiations regarding the Visa Information System (VIS), with calls for the database to be accessed not only by immigration, but also by police authorities. There are also calls for the VIS to include biometric identifiers, and a 2004 Regulation has introduced the requirement for EU passports to include biometrics. These developments raise important privacy concerns, which become more acute in the light of the recent emphasis on the need to ensure "interoperability" between EU databases. Following the example of the EU Declaration on combating terrorism produced after Madrid, the Hague Programme calls for maximising interoperability of EU information systems "in tackling illegal immigration and improving border controls" on the one hand, and "reciprocal access to or interoperability of national databases" for security purposes, or "direct (on-line) access", including for Europol, to existing central EU databases such as the SIS. [104]This could create a situation where databases including different categories of data and established for different purposes—not necessarily related to law enforcement—are "interoperable" and thus easily accessed by a wide range of authorities. The logic of maximum availability dictates that personal data—regardless of their nature and the purpose for which they have been collected—be readily available to any State/EU authority which may claim that access is necessary.

The proliferation of EU structures

  11.  There exist now a number of bodies and agencies dealing with operational co-operation in JHA matters and counter-terrorism in the EU. Europol and Eurojust are the most obvious references, both third pillar agencies established by and regulated extensively by EU law. Other structures, however, are less formal. The post of the EU Counter-terrorism Co-ordinator was established by the European Council after Madrid. There is no clear legal basis in EU law for this post, nor is there, quite some time after the establishment of the post, a clear description of the Co-ordinator's mandate (although he reports to Mr Solana)[105]. The Police Chiefs' Task Force, working within Council structures, has also been called to assist on counter-terrorism, as has SitCen, a second pillar intelligence centre also reporting to Mr Solana. The recently established European Borders Agency is also called to co-operate. We thus have a combination of first, second and third pillar bodies and structures, some founded on legal rules, some more informal. The work of all these agencies—especially if, as in the Hague Programme, they are called to co-operate and exchange data with each other—raises important issues of democratic control and scrutiny as well as accountability, but this is especially the case with the informal structures: it is not clear who checks the exercise of their powers, especially if these are coercive and involve the exchange of personal data. [106]


  13.  The development of EU action in the field of criminal law and counter-terrorism and its potential impact on human rights have not been properly debated in the EU or its Member States, and from that perspective the legitimacy of the operational project for the EU is questionable. Three are the main elements contributing to this democratic and legitimacy deficit:

    —  the current limits of the EU institutional and constitutional structures regarding democratic control: the third pillar envisages a very limited role for the European Parliament. Scrutiny is even more limited in third pillar international agreements and EU operational action. The European Parliament's role is even more limited when Europol and Eurojust are involved. National parliaments, on the other hand, have virtually no opportunities to scrutinise operational action, and intervene in the making of EC and EU law only in the negotiation stage, before measures are adopted. The proposed involvement of national parliaments, jointly with the European Parliament, in scrutinising the work of third pillar agencies is an option worth exploring.

    —  The proliferation of agencies and informal structures and the push towards co-operation: many of the structures created were established with minimal debate and even without a legal basis. All these bodies are asked to co-operate, but the nature of co-operation is unclear. Cross-pillar co-operation is desirable but the legal framework of each pillar is different—as is the legal framework of specific agencies and structures. There is a danger of operational co-operation which is totally unchecked. Greater attention should be placed on the scrutiny and accountability of third pillar agencies and the control of operational co-operation. Operational action and co-operation must be placed within a clear legal framework.

    —  The chosen method of integration—the emphasis on mutual recognition: this is the case both in criminal matters (with the European Arrest Warrant being the prime example) and to some extent in police co-operation (with the principle of availability). Co-operation takes place on the basis of trust in the legal systems of other Member States almost automatically, without examining how a judgment has been reached or how information has been obtained or how it will be used. This may have considerable constitutional implications for the Member States involved. It also serves to avoid or pre-empt EU wide scrutiny and debate on the level of co-operation desired by citizens and the standards that should underpin this. The lack of consultation and engagement with the public may however, as demonstrated by the rejection of the Constitutional Treaty in France and the Netherlands, be counter-productive, especially when one deals with matters of that importance.

Valsamis Mitsilegas

2 October 2006

99   See V Mitsilegas, "Trust-building Measures in the European Judicial Area in Criminal Matters: Issues of Competence, Legitimacy and Inter-institutional Balance" in S Carrera and T Balzacq, Security versus Freedom? A Challenge for Europe's Future, Ashgate, Aldershot, Hampshire and Burlington, VT, 2006, pp 279-289. Back

100   For background to this proposal, see House of Lords EU Committee, Procedural Rights in Criminal Proceedings, 1st Report, 2004-05, HL Paper 28. Back

101   For further details, see V Mitsilegas, "The Constitutional Implications of Mutual Recognition in Criminal Matters in the European Union", Common Market Law Review, October 2006. Back

102   Mitsilegas, ibidBack

103   IbidBack

104   Point 1.7.2, p 25 and 2.1, p 28 respectively. Back

105   See House of Lords EU Committee, After Madrid: the EU's Response to Terrorism, 5th Report, session 2004-05, HL paper 53. Back

106   See V Mitsilegas, "Operational Co-operation and Counter-terrorism in the EU", in F Pastore (ed), Supranational Counter-terrorism. A test under duress fort EU principles and institutions, Centro Studi di Political Internazionale (CeSPI), Rome, Working Paper 22/2005. Back

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