Memorandum by Dr Valsamis Mitsilegas,
Queen Mary, University of London
INTRODUCTION
1. Thank you for your invitation to submit
written evidence on the impact of the ratification of the Reform
Treaty upon the UK Constitution.[44]
My contribution will focus primarily on the issue of powers and
national sovereignty. I will attempt to highlight the potential
impact of the Reform Treaty upon UK sovereignty by examining the
far-reaching changes brought about by the Reform Treaty in the
field of criminal law.
INSTITUTIONAL CHANGES
REGARDING EU CRIMINAL
LAW
2. The abolition of the pillars by the Reform
Treaty will have far-reaching consequences for EU action in Justice
and Home Affairs, in particular as regards action in matters currently
falling under the third pillar. The application in principle of
the "Community method" of decision-making into third
pillar matters will change the way in which Member States operate
as EU legislators in the Council as regards EU criminal law (with
the move from unanimity to qualified majority voting) and grant
the role of co-legislator to the European Parliament addressing
to some extent the democratic deficit in the field. The extent
to which this fundamental constitutional change will have an impact
on the volume and content of the measures adopted in the field
of EU criminal law remains to be seen. However, the move to the
"Community method" of decision-making coupled with a
number of substantive criminal law provisions in the Reform Treaty
as well as the relevant transitional arrangements seem to provide,
as will be seen below, a fresh impetus for a number of new, extensive
legislative initiatives in EU criminal law.
3. Along with any impact on decision-making,
the Reform Treaty will have far-reaching consequences for the
development of EU criminal law in terms of its interpretation
and enforcement. The Court will in principle assume full jurisdiction
on matters currently falling under the third pillar, with restrictions
on national courts regarding sending preliminary references to
Luxembourg being lifted- thus enabling a meaningful dialogue between
national courts and the ECJ on matters which, as has been demonstrated
by a number of cases (in particular those relating to the European
Arrest Warrant) may have fundamental constitutional implications
for both the Union and Member States. Moreover, the Court will
assume jurisdiction on infringement proceedings brought by the
Commission against Member States for deficient or non-implementation
of current third pillar matters. This change, along with the potential
direct effect of legislation in these matters, strengthen considerably
both the centralised and the decentralised enforcement mechanisms
of EU criminal law.
THE REFORM
TREATY AND
EU COMPETENCE TO
LEGISLATE IN
CRIMINAL LAW
AND PROCEDURE
4. The competence of the European Union
in the fields of substantive criminal law and criminal procedure
has been clarified, if not extended, by the Reform Treaty. However,
a degree of vagueness remains in the text, in particular when
this is read in the light of the concessions granted to the UK
with regard to the application of EU criminal law in its domestic
legal order. The analysis will focus on the changes brought about
by the Reform Treaty regarding criminal law competence, in the
light of their specific impact on the position of the United Kingdom.
SUBSTANTIVE CRIMINAL
LAW
5. The recent ECJ rulings on the environmental
crime[45]
and ship-source pollution[46]
cases clarified to some extent, but not fully, the extent of the
Community competence to adopt criminal law. The definition of
criminal offences (but not the imposition of specific criminal
sanctions) falls currently under Community competence if Community
action is necessary for the protection of the environment, deemed
by the Court as an essential Community objective. However, it
is not clear whether Community competence extends to other Community
objectives or policies if the latter do not include the objective
of environmental protection. At the same time, the provisions
constituting the legal bases for EU criminal law under the third
pillar (in particular Articles 29 and 31 TEU) are characteristically
vague and have resulted in a number of different interpretations
regarding the extent of Union competence in the field. The Reform
Treaty attempts to clarify EU competence in Article 69B (and in
the provisions on criminal procedure in Article 69A—see
below). Its first paragraph contains a strict delimitation of
Union competence in adopting minimum rules which relate
to the definition of both offences and sanctions in a number of
areas of crime (relating mostly to transnational crime) which,
at least in the English version of the Treaty, are exhaustively
enumerated. The EU competence in the field thus appears narrower
than the current EU competence under the third pillar. However,
Article 69B(2) extends EU competence in the field if criminal
law approximation "proves essential" to ensure the effective
implementation of a Union policy in an area which has been subject
to harmonisation measures (explicitly allowing the adoption of
criminal offences and sanctions).
6. There are a number of elements that are
unclear in Article 69B(2). First of all, what is the meaning of
"essential" to ensure effet utile. The concept
is not clear and is highly likely to be the subject of ECJ litigation.
Secondly, it is not clear which institution will "prove"
that a criminal law measure is essential in this context. Will
for instance the case-law of the Court be taken into account in
this context? Again, the wording is a prime candidate for litigation,
as it is highly likely that there will be disagreements between
the Council on the one hand and the Commission and the Parliament
on the other on what will "prove essential" in this
context.
7. It is also not clear whether Article
69B(2) is a sufficient, self-standing legal basis for the adoption
of criminal law or whether a dual legal basis (in conjunction
with the specific EU sectoral provision) will be necessary in
this context. Such legal classification may be important to determine
the position of the UK, in particular the scope of the UK "opt-out"
from EU criminal law. Under a renegotiated Protocol on the UK
position with regard to Title IV measures (which now include criminal
law), the UK may choose not to participate in EU criminal law
measures. The question thus arises: is it possible for the UK
not to participate in an EU measure on substantive criminal law
when such measure is justified as essential in order to achieve
the implementation of a general Union policy (where the UK participates
and no legal possibility of an "opt-out" exists). The
Court"s case-law and Article 69B(2) of the Reform Treaty
indicate that criminal law is treated not as a self-standing Union
policy, but rather as a means to an end with the ultimate
aim being the effective implementation of a Union policy.[47]
If this is the case, then the answer must be that a Member State
which has participated in and is bound by the underlying Union
policy is also bound by measures adopted under Article 69B(2).
Otherwise the effectiveness of Union law may be seriously jeopardised.
CRIMINAL PROCEDURE
8. The Reform Treaty contains an express
legal basis in Article 69(e)(2) for the adoption of minimum rules
in a number of areas of criminal procedure, including rules on
the mutual admissibility of evidence (a measure that may be deemed
a useful corollary to the European Evidence Warrant) and rules
on defence rights. The Reform Treaty thus addresses the current
controversy regarding the existence and extent of such competence
in the third pillar, vividly demonstrated by the ongoing negotiations
for a Framework Decision on the rights of the defendant in criminal
proceedings. A proposal for such a measure was tabled by the Commission
in 2004, but agreement has not been reached with a number of Member
States arguing that the current Treaty contains no legal basis
allowing for the adoption of a measure on criminal procedure.
However, it must be noted that under the Reform Treaty Union competence
in the field of criminal procedure applies only to the extent
necessary to facilitate mutual recognition of judgments and
police and judicial co-operation in criminal matters—with
mutual recognition being elevated by the Reform Treaty as the
basis for judicial co-operation in criminal matters in the EU
(Article 69A(1)). While the potential of the Reform Treaty to
result in the adoption of protective measures for the individual
is welcome, it must be noted that criminal procedure measures—and
the human rights implications which they may have- are clearly
subordinated to the efficiency logic of mutual recognition. Moreover,
and similarly to the provisions on substantive criminal law, Article
69A(2) may lead to extensive litigation on the interpretation
of whether EU criminal procedure rules are "necessary"
to facilitate mutual recognition. The link between criminal procedure
rules and the facilitation of mutual recognition is not always
straightforward or direct.
9. The subordination of EU criminal procedure
measures under the logic of mutual recognition may have significant
implications with regard to the participation of the United Kingdom
in such measures. To take the example of EU standards on defence
rights: currently the UK Government is opposed to the adoption
of a legally binding measure in the field, and has tabled as an
alternative a non-legally binding resolution. At the same time,
the UK has been an enthusiastic supporter of the European Arrest
Warrant, a prime example of mutual recognition which the defence
rights proposal aims partly to complement. As said above, the
United Kingdom has under the Reform Treaty the option of not opting
into Title IV measures, including measures on criminal procedure.
The position is not clear however in situations where the UK has
participated or wishes to take part in mutual recognition measures
(such as the European Arrest Warrant) but does not wish to participate
in criminal procedure measures (such as the rights of the defendant)
which are deemed necessary to facilitate such mutual recognition.
While the letter of the law indicates that the UK has the option
not to participate if the Government so wishes, the political
and practical repercussions of such a decision may be significant.
In the case where the EU has adopted minimum standards on the
rights of the defendant and the UK has not opted into this measure,
the viability of the operation of the European Arrest Warrant
in the UK may be seriously questioned.
DIVERSITY OF
THE DOMESTIC
LEGAL SYSTEMS
AND THE
"EMERGENCY BRAKE"
10. The opening provision of Title IV of
the Reform Treaty states that "the Union shall constitute
an area of freedom, security and justice with respect for fundamental
rights and the different legal systems and traditions of the Member
States" (Article 61). The emphasis on respect for domestic
legal systems and traditions reflects concerns in a number of
Member States regarding the potential impact of the institutional
changes brought about by the Reform Treaty in EU criminal law
(most notably the loss of the national veto in decision-making
in the Council) on the domestic criminal justice systems. These
concerns are also reflected in the provisions granting the EU
competence to legislate in the field of criminal law and procedure:
these introduce a so-called "emergency brake" procedure
(Articles 69A(3) and 69B(3)), whereby where a Member State considers
that a draft directive in the field "would affect fundamental
aspects of its criminal justice system", it may request that
the draft directive be referred to the European Council. Negotiations
will be suspended while the proposal is discussed by the European
Council. In case of consensus, within four months of this suspension
the proposal is sent back to the Council of Ministers for the
resumption of negotiations. In case of disagreement, within the
same timeframe, authorisation for Member States who wish to proceed
with the proposal under enhanced co-operation (if at least nine
Member States wish to proceed) is deemed to be granted. In this
manner, reluctant Member States which may be in the minority may
ensure that they do not take part in the measure, while allowing
those in favour of the measure to proceed with its adoption. The
emergency brake—which is a primarily political mechanism-
was introduced as a safeguard for a number of countries (including
the UK) in the Constitutional Treaty. It remains to be seen whether
and how often it will be used in practice. As far as the United
Kingdom is concerned, the Government may prefer to use the possibility
not to opt into such measures in the first place, under the Protocol
negotiated in the framework of the Reform Treaty.
THE MANAGEMENT
OF INVESTIGATIONS
AND PROSECUTIONS
11. Another effect of the Reform Treaty
may be to create the momentum for new EU legislation on Eurojust
and Europol. The Treaty contains specific and detailed legal bases
outlining the future development of these bodies (Articles 69D
and 69G respectively). This appears to pre-suppose the need for
a change in the mandate and role of these bodies. As far as Eurojust
is concerned, the debate is centered on whether the body should
be granted powers to oblige national judicial authorities to initiate
investigations and prosecutions. At present Eurojust can only
ask such authorities to do so, but its requests are not binding.
A parallel debate concerns the extent to which Eurojust should
co-ordinate national investigations and prosecutions, in cases
where more than one Member State can claim jurisdiction (this
is particularly the case for transnational offences). At present
such co-ordination is happening on an informal basis, with Eurojust
having established a series of indicative criteria for the allocation
of jurisdiction in such cases. The debate on the role of Eurojust
becomes increasingly relevant in the construction of an "area"
of freedom, security and justice, where freedom of movement and
the abolition of internal frontiers is matched by an attempt to
ensure effective co-ordination between national authorities.
12. The Reform Treaty may result in significant
changes in the nature and powers of Eurojust and the impact of
its action on domestic criminal justice systems. According to
Article 69D(1), the Parliament and the Council will determine
(in accordance with the ordinary legislative procedure) Eurojust's
tasks. These may now include "the initiation of criminal
investigations" (69D(1)(a)). This is a major change to the
current Eurojust powers. It is not clear whether this will mean
that Eurojust will be able to act itself, as a College, in national
criminal justice systems and initiate prosecutions, whether its
national member for the respective member state in their capacity
as national public prosecutor would do this, or whether this would
be translated to a binding request from Eurojust to the national
criminal investigation authorities. The Treaty does not give to
Eurojust an equivalent power to initiate prosecutions (this being
limited to proposing the initiation of prosecutions). However,
Article 69E of the Reform Treaty provides the legal basis for
the future establishment of a European Public Prosecutor's (EPP)
Office "from Eurojust". This provision may be seen a
triumph of the Eurojust model of investigative and prosecutorial
co-ordination over for instance OLAF. The EPP's Office will be
responsible for "investigating, prosecuting and bringing
to judgment" perpetrators associated with fraud offences
and will "exercise the functions of prosecutor in the competent
courts of the Member States in relation to such offences"
(Article 69E(2)).
13. The challenges that the future role
of Eurojust and the EPP if established to state sovereignty have
been the focus of the debate regarding the future of judicial
co-ordination in criminal matters, and have resulted in a number
of exceptional provisions as far as the establishment of the EPP
is concerned. Along with the issue of the precise role of Eurojust
or the EPP in the national criminal justice systems, another element
which may cause tensions extends to cases of positive conflicts
of jurisdiction: where co-ordination from above might in practice
lead to situations where a Member State may be refused the
right to prosecute in cases where another Member State having
jurisdiction is deemed by Eurojust better placed to prosecute.[48]
In this context, a less highlighted issue has been the impact
of such co-ordination on the rights of the defendant. A particular
concern in this context is whether the granting to Eurojust of
a potential monopoly to decide on where to prosecute will lead
in practice to a kind of "forum shopping" resulting
in choosing to prosecute in the jurisdiction where a conviction
might be secured more easily.
TRANSITIONAL PROVISIONS
AND STATE
SOVEREIGNTY
14. A temporary safeguard for state sovereignty
in the field of EU criminal law is introduced by Protocol No 10
of the Reform Treaty on transitional provisions. According to
Article 10 of the Protocol, the limited jurisdiction of the Court
of Justice under the provisions of the current third pillar[49]
will remain the same for measures adopted before the entry into
force of the Reform Treaty (Article 10(1)). This "transitional"
provision will cease to have effect five years after the entry
into force of the Reform Treaty (Article 10(3)). With regard to
existing third pillar measures, this transitional period may cease
even at an earlier stage if these measures are amended (for instance,
if the Framework Decision on the European Arrest Warrant is amended
via a Directive) (Article 10(2)).[50]
However, there is a further concession with regard to the United
Kingdom: at the latest six months before the expiry of the five
year transitional period the UK may notify the Council that it
does not accept the extension of the Court's jurisdiction (and
the Commission's powers to institute infringement proceedings).
If such notification is made however, all third pillar
acts adopted before the entry into force of the Reform Treaty
will cease to apply to the UK from the date of the expiry of the
transitional period (Article 10(4)). The UK may, at any time afterwards,
notify the Council of its wish to participate in acts which have
ceased to apply to it (Article 10(5)). In this manner, the UK
can choose the extent to which it wishes to apply the extended
jurisdiction of the Court to third pillar measures which it has
agreed under the current Treaty.[51]
15. This concession might be viewed by some
as an important safeguard for UK sovereignty with regard to EU
criminal law and another instance of vindication of the UK "pick-and-choose"
approach towards EU home affairs matters. However, the potential
consequences of the compromise reached in the transitional (and
the "opt-out") Protocol for the development of EU criminal
law and the position of the UK should not be underestimated. The
emphasis on the possibility of amending existing third pillar
law (which accompanies the transitional provisions)[52]
may create a significant momentum towards the adoption of more
EU criminal law, and prompting a series of amendments to important
third pillar instruments, such as the European Arrest Warrant
and the Eurojust Decision. As far as the UK is concerned, the
legal and political consequences in the light of such developments
may be considerable. Take the issue of UK participation in legislation
amending the European Arrest Warrant (which would
trigger the extension of ECJ jurisdiction): if the UK chooses
not to take part in the amended measure (in order to avoid the
Court's jurisdiction, and/or certain provisions in the amended
text), it is highly likely that the application of that measure
will be rendered, according to the wording of the UK and Ireland
"opt-out" Protocol "inoperable" for other
EU Member States. In this case (which is particularly likely if
for instance the amended EAW text itself contains provisions
on the rights of the defendant), the UK will be obliged to notify
the Council of its wish to participate in the measure- if there
is no such notification, the existing measure (in this
case the EAW Framework Decision currently in force) will no longer
be binding and applicable to the UK. The extent to which the UK
will wish to stay out of important developments in EU criminal
law in the light of these provisions remains to be seen. In an
increasingly integrated "area of freedom, security and justice",
the UK "pick and choose" approach on EU home affairs
may prove much harder to sustain.
5 February 2008
44 Following the call for evidence, the term "Reform
Treaty" will be used here instead of the term "Lisbon
Treaty". Back
45
Case C-176/03, Commission v Council, judgment of 13 September
2005, [2005] ECR I-7879. Back
46
Case C-440/05, Commission v Council, judgment of 23 October
2007. Back
47
On criminal law as a means to an end in this context, see V. Mitsilegas,
"Constitutional Principles of the European Community and
European Criminal Law", in European Journal of Law Reform,
vol.8, 2006, pp.301-324. Back
48
Article 69D(1)(b) includes in Eurojust's tasks the coordination
of investigations and prosecutions. Moreover, Article 69D(1)(c)
calls for the adoption of rules on preventing and settling conflicts
of jurisdiction between Member States. Back
49
No jurisdiction on infringement proceedings brought by the Commission
against Member States for non- or inadequate implementation of
EU law; and limits to national courts' powers to send questions
for preliminary rulings on the interpretation of Union law to
Luxembourg (the UK has made use of this latter option and not
made available the preliminary reference procedure for third pillar
matters to its courts). Back
50
According to Article 9 of the Protocol, the legal effects of the
acts of the institutions, bodies and agencies of the Union adopted
prior to the entry into force of the Reform Treaty will be preserved
until those acts are repealed, annulled or amended in implementation
of the Treaties. Back
51
The UK will have the right not to participate in legislation amending
existing criminal law measures adopted after the entry into force
of the Reform Treaty. Back
52
See also the Declaration concerning Article 10 of the Protocol
on transitional provisions, where EU institutions are invited
to adopt, in appropriate cases and as far as possible within the
five year period set out in the Protocol, legal acts amending
or replacing existing measures. Back
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