Memorandum by Maria Kaiafa-Gbandi, Professor,
and Athina Giannakoula, Lawyer, LLM (Aristotle University Thessaloniki)
The following statements concern specifically
the field of criminal matters. Since the Treaty of Amsterdam
entered into force and the Conclusions of the European Council
were adopted in Tampere, EU legislation in this rather new field
has been developing quickly and affecting greatly the freedoms
of individuals.
A. The legislative initiatives of the
Commission regarding the creation of an area of freedom, security
and justice (third pillar) mostly come from the following sources[45]:
(a) The Conclusions of the European Council:
Most of the Commission's legislative initiatives are based on
certain Conclusions of the European Council. Although these are
documents of political and not legal force, they are considered
to be almost as significant as the founding Treaties, due to the
fact that they are adopted by the leaders of the Member States.
Most characteristically, the Conclusions of the European Council
held in Tampere (15-16 October 1999) defined the fields of EU
activities broader than article 31§1e TEU does and introduced
the principle of mutual recognition into the third pillar; the
said principle is currently regarded as the "cornerstone"
of judicial cooperation in criminal matters, even though it can't
be identified in the TEU.
(b) The annual and multi-annual programs
of the EU: These are also important sources for the Commission's
legislative initiatives, as they set the objectives of the area
of freedom, security and justice in a more specific way. Furthermore,
the Commission draws up reports concerning the progress of the
activities described in the programs.
(c) EU legislation is often triggered by
existing legislative acts of the Union or the Community.
In particular:
— After the amendment of the Treaties
in Amsterdam and the introduction of framework decisions into
the third pillar, apart from the common actions that were actually
replaced with framework decisions, certain others were either
supplemented or served as basis for the adoption of framework
decisions.[46]
— In other occasions the third pillar
is intertwined with the first pillar, as EU legislation is proposed
with the sole task to supplement EC legislation.[47]
(d) A number of the framework decisions adopted
so far refer to legal acts of other international organisations,
especially of the Council of Europe and the United Nations, stating
the intention of the EU to establish own rules on the subjects
of such international acts.
(e) Up till now, the introductory reports
of all the framework decisions adopted have never referred to
ECJ case law. However, in case C-176/03 the Court decided
that, although criminal law does not fall within the Community's
competence, this does not prevent the Community from taking measures
which relate to the criminal law of the Member States, when such
an action is necessary in order to ensure the effectiveness of
an EC policy. Since then, the Commission has founded a large number
of directive proposals on the ECJ judgement in the above case
as well as in case C-440/05.[48]
B. In relation to the above mentioned sources
of the Commission's legislative initiatives one can make the following
observations:
(a) The provisions concerning the amendment
of the founding Treaties, as cited in the latter, describe the
only procedure through which such an amendment can take place.
Therefore, no other decision taken by the leaders of the Member
States can result in an amendment of the Treaties. Hence, it is
acceptable for the Conclusions of the European Council to
interpret the texts of the Treaties and to set the priorities
of the Union for a certain period of time, as long as this is
done in line with the provisions of the Treaties. In other words,
the Conclusions themselves must be in accordance with the TEU;
if not, they are by no means binding and they can't serve as a
valid legal basis for the establishment of EU legislation. Nevertheless,
the Commission evokes the Conclusions of the European Council
regardless of the above condition and uses them to such an extent,
that one might think that it's not the Treaty but the Conclusions
that EU legislation must be based on.
(b) In a similar manner, programs can
define EU fields of action more specifically than the TEU does,
but not differently. Otherwise they also result in an unfounded
amendment of the provisions of the Treaty; in such a case the
irregularity is in reality even more serious, since the programs
are not decided by the leaders of the Member States. In addition,
the reports drawn up by the Commission regarding the implementation
of the programs exercise an unquestionable pressure on the Council.
(c) The existing EU and EC legislative
acts that a legislative proposal may allude to are definitely
important, because they connect the new proposal with the
rules that already exist regarding the issue of the proposal and
thus illustrate the way that the EU, or the EC, has been dealing
with this issue. However, existing legislation doesn't substitute
the TEU, which must be the basis of all EU legislation. Besides,
existing legislation may trigger new proposals but it is not decisive
for the legality or the quality of the proposals; the conformity
of each EU act with the principles set by the TEU (eg the principle
of subsidiarity) must be examined individually. Therefore, if,
for example, as certain scholars argue,[49]
the EU did not have the competence to introduce the european arrest
warrant using a framework decision based on the principle of mutual
recognition of criminal decisions, the fact that all Member States
had signed the EU conventions on extradition and shared the same
rules on the issue is not critical for the validity of the relevant
framework decision (2002/584/JHA), regardless of what the introductory
report of the latter states. On the other hand, the intertwining
of the pillars is by all means problematic, as it results
in the EC forming definitions of crimes, though such competence
is not envisaged by the TEC.
(d) The reference to legal acts adopted
by other international organisations, in which the EU Member
States participate, is usually meant to strengthen the arguments
supporting the EU legislative proposals. The Commission in fact
suggests that, since the Member States have already accepted the
regulation of an issue within the framework of an international
organisation, there is no reason why they shouldn't also agree
to the EU initiative on the same issue. The matters that concern
the states in their international affairs are naturally important
to the EU; the Union is justified to seek to promote special rules
within its borders, since it can act in more effective ways than
international organisations do. However, that is no reason
for the TEU to be set aside, since the provisions of the Treaty
are always the crucial criterion for the legality of EU legislation.
(e) The above mentioned ECJ judgements[50]
are of great importance and they would have already drastically
marked the evolution of EU law, if the Reforming Treaty of Lisbon
wasn't about to enter into force. The ECJ has never functioned
solely as a judicial body, since its judgements have often been
of political nature, causing serious legal implications.[51]
In some cases, like currently in the third pillar, the ECJ promotes
EU interests even more radically than the Commission does. The
arguments of the Court concerning the right of the Community to
adopt measures of criminal nature when such measures are required
to ensure the effectiveness of EC law, despite the fact that the
TEC provisions do not grant the relevant necessary competence
to the Community and despite the democratic deficit, entail an
actual breach of the principle of legality. Furthermore, it is
almost certain that a similar judgement could never have been
delivered from a national court; the preference of effectiveness
over the provisions of the Constitution is impossible. The fact
that the Commission evokes the above mentioned case law is not
strange, since it was the Commission's own applications that initiated
the relevant procedures before the ECJ. Nevertheless, the legislative
process in the EU and the EC is defective when the adoption of
a legislative act needs to be based on a court judgement (eg in
the case of a directive on the protection of the environment through
criminal law, the competence to regulate matters concerning the
environment comes from article 174 TEC, while the competence to
use criminal law can only be derived from the ECJ case law, since
the ECJ itself acknowledges that the TEC gives no such power).
C. In addition to the aforementioned observations,
one should add the following thoughts regarding the methods
and the criteria used by the Commission as to the configuration
of its initiatives in the field of freedom, security and justice:
— One of the basic attributes of EU
legislation in the third pillar is the unofficial expansion
of the area that EU competences cover and thus the disregard towards
the framework of rules set by the TEU, resulting in a de facto
growth of the Union's powers. As one can see in the introductory
reports of all framework decisions adopted so far, the right to
legislate is based on elements not found in the TEU, while the
legal bases of the Treaty are regarded as being of similar importance.
Moreover, the expansion is not just horizontal; the provisions
of the framework decisions are rather explicit and therefore rather
restrictive as to the choices left to national legislators. At
the same time, one should keep in mind that according to the ECJ
"the obligation of the national authorities to interpret
their national law as far as possible in the light of the wording
and purpose of Community directives applies with the same effects
and within the same limits where the act concerned is a framework
decision"; due to this statement, it is accepted that framework
decisions do develop some kind of direct effect.
— The principle of subsidiarity
(article 5§2 TEC) is also applied in the third pillar,
due to the preamble of the TEU and article 2§2 TEU. The said
principle regulates the exercise of the competencies that have
been conferred on both the Union and the Member States. According
to the criteria of subsidiarity, the legislative proposals of
the Commission must demonstrate that the EU proposed action is
necessary (due to an existing requirement for regulation
in a field that the Member States can't regulate sufficiently)
as well as prove that the Union's measures can be more effective
than the national ones.[52]
The introductory reports of all framework decisions adopted up
till now show that the Commission doesn't actually apply the principle
of subsidiarity. The few references to subsidiarity limit themselves
to the same quotation: "Since the objectives of this Framework
Decision ... cannot be sufficiently achieved by the Member States
in view of the international dimension of those offences and can
therefore be better achieved at Union level, the Union may adopt
measures, in accordance with the principle of subsidiarity as
set out in Article 5 of the Treaty establishing the European Community.
In accordance with the principle of proportionality, as set out
in that Article, this Framework Decision does not go beyond what
is necessary in order to achieve those objectives".[53]
In some cases, the quotation is even less essential: "It
is necessary that the serious criminal offence of ... be addressed
not only through individual action by each Member State but by
a comprehensive approach in which the definition of constituent
elements of criminal law common to all Member States, including
effective, proportionate and dissuasive sanctions, forms an integral
part. In accordance with the principles of subsidiarity and proportionality,
this Framework Decision confines itself to the minimum required
in order to achieve those objectives at European level and does
not go beyond what is necessary for that purpose".[54]
It is evident that the above `justification' also affects the
fundamental principle of proportionality and eliminates the significance
of proving the necessity for EU legislation; however, the latter
is not just a criterion of subsidiarity, but also an explicit
requirement of article 29§2 TEU and above all of criminal
law itself, which must always function as ultima ratio.[55]
— The intergovernmental features of
the third pillar require that the Union respects the legal
orders of the Member States when exercising its legislative
powers. Nonetheless, the introduction of EU legislation into national
legislations in most cases causes serious problems to the latter.
The fact that the prospect of a harmonised integration does not
lie among the criteria used by the Commission when developing
its legislative proposals doesn't correspond to the above requirement
of respect. Furthermore, it undermines the function of EU legislation
itself. The implementation of EU legal acts in the field of
criminal law relies on their incorporation into the national legal
systems. As long as there is no independent european legal order
nor an autonomous european criminal law nor european courts with
full competence in criminal justice, in other words as long as
EU rules only operate in the national legal environments, the
good function of the latter is actually a precondition for the
effectiveness of EU law. Therefore, before submitting a legislative
proposal the Commission should be interested in the content of
the national legislations in relation to the issue of the proposal.
Even more, the Commission should generally have good knowledge
of the function, the needs and the particularities of each national
legal order and thus exercise its right of initiative from a different
starting point. The circumstantial evaluation of EU legislation
after it has been adopted is obviously inadequate.
D. More specifically the attitude of
the Commission towards basic principles of criminal law:
— The fact that the Commission undertakes
legislative initiatives in the field of freedom, security and
justice is not itself a problem, since the Commission, which has
the task to promote the interests of the Union, has the power
of initiative in the third pillar as well (article 34§2 TEU).
The problems begin when the legislative proposals of the Commission
have negative effects on basic principles of criminal law that
are fundamental for national criminal legislations. The peculiarities
of the field that a legislative initiative concerns should by
all means be taken under serious consideration. Unfortunately,
this is not the case with the Commission's initiatives that become
EU legislation in the field of criminal matters. First of all,
EU legislation in this particular field has reversed the relationship
between substantive and procedural criminal law. In other
words, while procedural law aims at the enforcement of substantive
criminal law, which comes first and defines punishable offences
against legal interests as well as penalties on the basis of certain
principles (proportionality, ultima ratio etc), things happen
the other way round in the EU. The objective of harmonising
domestic substantive criminal laws aims at supporting transnational
judicial cooperation to combat crime and thus the basic features
of criminal law are affected. Hence, for example, as far as the
framework decision on combating trafficking in human beings is
concerned, the penalties for the offences under article 1 of the
framework decision are prescribed based on whether they render
the offences extraditable, in order to facilitate judicial
cooperation. On the other hand, the Commission doesn't make
any effort to ensure that its proposals in this field abide by
the principles of criminal law. The principle of proportionality
between the offences committed and the penalties prescribed is
actually "applied" by making an accidental choice of
those lower upper limits of sanctions that can be accepted by
all Member States, without any concern over the equivalence of
those limits to the specific characteristics of the crimes prescribed
in the EU legislative acts. This is obvious once again in the
framework decision on combating trafficking in human beings, where
article 3§1 requires a single penalty for all types of conduct
labelled as trafficking, despite the marked differences between
them. Similar deficiencies appear regarding the application of
basic procedural principles, such as the equality of arms or
the respect for fundamental rights of the defendant. All one
has to do in order to ascertain the above is simply look at the
views of the Commission in relation to the Green Paper on criminal
law protection of the financial interests of the Community and
the establishment of a European Prosecutor, as well as the relevant
criticism.[56]
In other words, while the advance of the EU in the field of crime
suppression is rapid, it is not combined with an equivalent guarantee
of due process rights of the defendant.
— The aforementioned arguments illustrate
that the Commission's legislative initiatives are not adequately
enriched with ideas related to the fundamental principles of criminal
law. Although there were cases where the Commission itself called
for a public dialogue on some of its proposals (eg Green Paper
on the establishment of a European Prosecutor, Green Paper on
procedural safeguards for suspects and defendants in criminal
proceedings throughout the EU), it seems that this procedure has
little actual effect, since the provisions regarding the European
Prosecutor were included in the Treaty establishing a Constitution
for Europe and the Reforming Treaty of Lisbon too, without any
improvement of the situation concerning due process rights of
suspects and defendants, as these are described in the above texts
and in relation with the powers of european institutions of penal
repression (eg Europol).[57]
This means that there is a vital need for the Commission to be
open for receiving and working on ideas from external sources,
eg universities, science associations, non-governmental organisations
for fundamental human rights; that is to say sources that don't
have a bureaucratic approach on the relevant issues and can enrich
the process with the basic principles to the EU legislative
procedure. In order to be effective, such cooperation must be
undertaken in a systematic and organised manner and not just by
calling for public discussions over Green Papers.
— Given the situation described above,
an important change of the EU criminal legislation towards the
basic principles of criminal law could be achieved by assigning
the national parliaments with the evaluation of EU legislative
proposals. However such a measure would require that the
problems concerning EU legislation in the field of criminal law
are given a higher importance in the domestic legal orders, while
also the EU must be ready to acknowledge in practice the significance
of the contribution of the Member States.[58]
E. The characteristics of the legislative
initiatives of the Member States in the area of freedom, security
and justice:
Studying the development of EU legislation in
the third pillar, one notices that the right of initiative is
exercised equally by the Commission and the Member States. What
is more, most of the framework decisions that have been adopted
so far are based on initiatives undertaken by Member States. At
this point, it should be stressed that the aforesaid observations
concern the whole of the legislation adopted in the third pillar,
regardless of who undertakes the initiative (the Commission
or a Member State). The Member States get their ideas from the
same sources as the Commission,[59]
and furthermore some national legislative initiatives were expressly
based on provisions of other EU legislative acts instead of the
TEU, and therefore lack a valid legal basis.[60]
In total, also the initiatives of the Member States consider that
the legal bases of the Treaty are not more important than the
rest of the other sources of ideas for legislation, especially
the Conclusions of the European Council and the Union's programs,
thus regarding the principle of legality as less essential than
the effectiveness of EU legislation and downgrading the significance
of the founding Treaties, which in other occasions are proclaimed
as the "Constitution of the Union". At the same time
the Member States' initiatives show similar to the Commission's
lack of concern for fundamental principles of criminal law and
the functional integration of EU legislation into the domestic
legal orders.
F. The inquiry is interested in the role
of the citizens in the EU legislative procedure. The preamble
and article 1§2 TEU prescribe the principle of proximity
to the citizens, which indicates that decisions should be
taken as closely as possible to the citizens, and therefore provides
the democratic basis of the Union's institutions and of their
activities. However, the only link between EU legislation and
EU citizens is made when the citizens' security is used as basis
to adopt legal acts that harmonise domestic legislation. Generally,
the distance between the people of the Union and the legislator
of the Union is long and unclear, although EU acts dramatically
affect national criminal laws. The Union still can't find the
way to be effective in the field of criminal law.[61]
EU legislation has yet to find a steady direction and a stable
way of function; therefore, it is currently difficult to reach
out to the citizens. However, the objectives and the fields of
action of the Union constantly increase. This way, the democratic
deficit[62]
grows, not only because the citizens can't vote directly for the
members of the institution that legislates, but also because there
are no mechanisms to which people could refer to in order to communicate
with the "legislators" (eg european political parties).
A step towards an improvement of this situation
would be the amendment of the Treaty's provisions on the role
of the European Parliament in the third pillar. The contribution
of the European Parliament, due to its democratic legitimation,
is extremely important for the legislative procedure, which is
essential in the field of criminal law. Unfortunately, so far
the advisory role of the European Parliament in relation to adopting
legislation in the frame of the third pillar does not allow a
substantive contribution. Therefore, the restriction of the democratic
deficit by the Treaty of Lisbon in the field of criminal matters
is expected to improve the situation.
7 April 2008
45 One can approach the sources enumerated in the
text through the issues regulated by EU legislation as well as
the introductory reports of the legal acts adopted so far (mainly
the framework decisions). Back
46
The introductory reports of framework decisions 2001/413/JHA,
2002/475/JHA, 2002/629/JHA, 2004/68/JHA refer to certain common
actions that are still in force. Back
47
Framework decision 2005/667/JHA prescribed penalties in relation
to the behaviours described in directive 2005/30/EC. The above
mentioned framework decision was later annulled by the ECJ in
case C-440/05, following an application for annulment of the Commission
(who had proposed the said act in the first place) on the grounds
of infringement of article 47 TEU. Back
48
Vide Communication from the Commission to the European Parliament
and the Council on the implications of the Court's judgment of
13 September 2005 (Case C-176/03 Commission v Council)-COM 2005
583 final. Back
49
 Back
50
Judgement in case C-105/03 on the interpretation of national legislation
in accordance to EU legislation is also very important, as it
practically abolished the prohibition of the direct effect of
framework decisions. Back
51
ECJ case law established the primacy of Community law, the direct
effect of Community directives, the requirement for Member States
to take all measures necessary to guarantee the effectiveness
of Community law (10 TEC), etc. Back
52
The Commission has always considered critical for the application
of the principle of subsidiarity the assessment of the effectiveness
of the Community in comparison with the effectiveness of the Member
States in certain issue (Communication from the Commission to
the European Parliament and the Council concerning the principle
of subsidiarity, 27. 20.1992, Bulletin 10-1992, 124 et seq).
The Commission's Reports to the European Council ("Better
lawmaking-pursuant to Article 9 of the Protocol to the EC Treaty
on the application of the principles of subsidiarity and proportionality")
comment on the application of the principle on the basis of the
number of consultation documents and legislative initiatives presented
each year. This quantitative approach on the application of the
principle is obviously superficial (European Parliament Resolution
25.3.2003, A5-0100/2003 final). Back
53
Vide framework decisions 2001/413/JHA, 2002/584/JHA, 2005/222/JHA
and 2005/667/JHA. Back
54
Vide framework decisions 2002/629/JHA, 2004/68/JHA. Back
55
 Back
56
 Back
57
M Kaiafa-Gbandi, Memorandum on the Lisbon Treaty in House of
Lords-European Union Committee (10th Report of session 2007-08),
The Treaty of Lisbon: an impact assessment, vol 2: Evidence (HL
paper 62-II), 2008, E162, B Schünemann, The Foundation
of Transnational Criminal Proceedings, in Schünemann (Ed)
A Programme for European Criminal Justice, 2006, 349-350. See
also especially the proposal for an institution supporting the
defence-rights (Eurodefensor), in Schünemann (Ed), A Programme
for European Criminal Justice, 2006, 301-307, 415 et seq. Back
58
Protocol on the role of national parliaments in the European
Union (1997). Back
59
In equivalence to the observations on the Commission's initiatives,
framework decision 2003/568/JHA is based on existing common actions,
while framework decision 2002/946/JHA prescribes penalties in
relation to the behaviours described in directive 2002/90/EK.
Moreover certain framework decisions are based on other framework
decisions related to similar issues (vide the connection of
framework decisions 2002/212/JHA and 2006/783/JHA on confiscation
with framework decision 2001/500/JHA on money laundering and confiscation
of instrumentalities and the proceeds of crime). Back
60
Framework decision 2000/383/JHA on increasing protection against
counterfeiting in connection with the introduction of the euro
evokes Regulation 947/98, which prescribed the obligation of the
Member States to lay down criminal sanctions. Similarly, framework
decision 2002/465/JHA on joint investigation teams evokes article
13 of the convention on mutual assistance in criminal matters,
which prescribes the establishment of the investigation teams. Back
61
Cooperation in criminal matters went from assimilation to harmonisation,
from substantive to procedural law, then to proposals for pure
european criminal law provisions (Corpus Juris) and finally the
cooperation is communitarised by the Reform Treaty. Back
62
For this deficit, its special meaning for criminal law and the
ways to overcome it see M Kaiafa-Gbandi, The Treaty Establishing
a Constitution for Europe and Challenges for Criminal Law at the
Commencement of the 21st century, European Journal of Crime, Criminal
Law and Criminal Justice 2005, 500 et seq, 510, B Schünemann,
Alternativ-Entwurf, "Europäische Strafverfolgung",
2004, 4, 22-23, as well as B Schünemann, The Foundations
of Trans-national Criminal Proceedings, in Schünemann (Ed),
A Programme for European Criminal Justice, 2006, 95. Back
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