Memorandum by Professor Jacqueline Dutheil
de la Roche"re, University Paris II (Panthéon-Assas)
1. The move to qualified majority voting and
co-decision in areas of criminal law and policing
1.1 In that connection, what appears most
significant is the drafting of Art 61 of Chapter I (General provisions),
previous Art III-257 of the Constitutional Treaty which confirms
the existence under a single legal regime of the area of freedom,
security and justice which had been introduced by the Amsterdam
Treaty. The principle of mutual recognition of judgments in criminal
matters, of judicial and extrajudicial decisions in civil matters
which, as from the Tampere Euopean Council of October 1999, had
been considered as the core aspect of judicial cooperation, is
now inscribed in the treaty. Concerning more precisely criminal
law and policing, it is interesting to observe the order of the
terms used in Art 61.3 as to the actions envisaged at Union level
in order to prevent and combat crime, racism and xenophobia; the
order is as follows: (1) measures for coordination and cooperation
between police and judicial authorities and other competent authorities,
(2) the mutual recognition of judgments in criminal matters, and
(3) if necessary, the approximation of criminal laws. The approximation
of criminal laws is clearly presented as subsidiary to other tools
such as administrative cooperation and mutual recognition of judgments.
The legal instruments provided in the Reform
Treaty are significantly modified. The decisions and framework
decisions of the present so-called third pillar are replaced by
directives; the third pillar conventions disappear. Further, whilst
according to the present treaty rule, unanimity in the Council
is needed and the European Parliament is consulted, under the
Reform Treaty, directives are adopted in accordance with ordinary
legislative procedure: co-decision with the Parliament and qualified
majority voting in the Council. However the right of proposition
remains shared between the Commission and a quarter of the Member
States, according to the provisions of Art 68 which apply to Chapter
4 (Judicial cooperation in criminal matters) and Chapter 5 (Police
cooperation), plus Art 67 of Chapter 1 (administrative cooperation
in the area of freedom, security and justice).
1.2 When we look at Chapter 4 devoted to
judicial cooperation in criminal matters, provisions on
mutual recognition of judgments and judicial decisions come first.
Art 69e (former Art III-270 of the Constitutional Treaty) replaces
Art 31.1 TUE. It provides a stronger and clearer legal basis to
EU acts aiming at developing mutual recognition, such as the European
warrant arrest (framework decision of 13 June 2002). The European
Union will also find in Art 69e a legal basis not only to prevent,
but also settle conflicts of jurisdiction between Member States.
A legal basis is equally explicitly provided to the EU in order
to support the training of judiciary and judicial staff.
New provisions of Art 69e, para 2 and 3 impose
various conditions to the adoption of EU legislation, limited
to what is necessary to facilitate mutual recognition of judgments
or to facilitate police and judicial cooperation in criminal matters
having a cross-border dimension; such rules must take into account
the different legal traditions of Member States. Further, three
domains are defined in which directives may be adopted: mutual
admissibility of evidence between Member States, the rights of
individuals in criminal procedure, the rights of victims of crime.
These three domains correspond to areas in which the Commission
has recently made proposals. Other specific aspects of criminal
procedure could be added to these three domains if the Council
so decides unanimously and with the consent of the European Parliament.
1.3 Art 69f (former Art III-271 of the Constitutional
Treaty) deals with the establishment of minimum rules concerning
the definition of criminal offences and sanctions. Approximation
of substantial criminal law was introduced in the TEU (Art 31(e))
by the Amsterdam Treaty, in the domains of organised crime, terrorism
and illicit drug trafficking. This legal basis has been extensively
used in order to adopt EU measures for the protection of environment
or to prevent sexual exploitation of children. Taking account
of the needs so expressed, the new drafting of Art 69 f retains
two alternative criteria of EU competence for approximation of
substantial criminal law and sanctions:
— either the criminal offences are
particularly serious, with a cross-border dimension resulting
from the nature or impact of such offences or from a special need
to combat them on common basis;
— or, the approximation of criminal
laws proves essential to ensure the effective implementation of
the Union policy in an area which has been subject to harmonisation
measures.
The offences corresponding to the first criteria
are listed in para.1 of Art 69f. The list is not exhaustive; other
items may be added by the Council acting unanimously, with the
consent of the European Parliament. The second criterion corresponds
to an old demand of the Commission which created conflicts with
the Council as to the appropriateness of the legal basis of certain
provisions, namely concerning the protection of the environment
and the use of criminal sanction. The entry into force of this
provision should give an easy solution to the question raised
in Case C-176/03 of 5 April 2005.
The legal instrument of approximation of substantive
criminal laws will be directives adopted according to the ordinary
legislative procedure, qualified majority in the Council and co-decision
with the Parliament.
1.4 The Reform Treaty (Art 69g) provides
that the same ordinary legislative procedure may be used to establish
measures to promote and support the action of Member States in
the field of crime prevention. In that connection, any harmonisation
of the laws and regulations of the Member States is excluded.
To sum up, even if some important limitations
remain, a very important step is made by the Reform Treaty, in
line with the Constitutional Treaty. Approximation of certain
aspects of substantial criminal laws becomes possible, under the
ordinary legislative procedure.
2. The emergency brake and flexibility procedure
in criminal law and policing
2.1 The mechanism adopted at Art 69e and
69f of the Reform Treaty is similar to that of the Constitutional
treaty (Art III-270 and 271), with slight adaptations. When a
Member State considers that a draft directive would affect fundamental
aspects of its criminal justice system, it may request that the
draft directive be referred to the European Council. Within a
period of four months, the European Council refers the draft back
to the Council. The other possibility which existed in the Constitutional
Treaty, which was to ask the Commission or a group of Member States
to submit a new proposal, has disappeared in the Reform Treaty.
The special mechanism of enhanced cooperation
has been maintained. In case of persistent disagreement on the
draft after reference to the European Council, if nine Member
States so wish, they may establish enhanced cooperation on the
basis of the draft directive concerned, without having to obtain
the authorisation to proceed which is normally required under
Art 10(1) of the Treaty on European Union and Art 280 d(1) of
the Treaty on the European Community as reviewed by the Reform
Treaty. The Constitutional Treaty referred to a third of Member
States where the Reform Treaty refers to nine Member States, which
will make the use of this flexibility clause easier with new enlargements.
2.2 The general idea of the provision remains
the same. Make the perspective of approximation of criminal law
more acceptable to Member States as they will be allowed to maintain
the fundamental aspects of their respective criminal justice system.
On the other hand, a Member State wishing to go further in the
direction of more approximation will not be prevented to do so,
as long as it finds at least eight other Member States sharing
the same views. This reasonable balance was the result of negotiations
in the Convention on the future of Europe inscribed in the Constitutional
Treaty.
3. Provisions on Eurojust and the creation
of a European Public Prosecutor
3.1 Art 69h of the Reform Treaty on Eurojust
(former Art III-273 of the Constitutional Treaty) is a more ambitious
substitute to Art 31.2 TUE as modified by the Nice Treaty. The
entity in charge of judiciary cooperation, Eurojust, was created
by a Decision of the Council of 28 February 2002. This type of
decision under present EU law requires unanimity in the Council;
further, it is deprived of any possible direct effect. According
to the new provisions of the Reform Treaty, Eurojust's structure,
operation, field of action and tasks shall be determined by means
of regulations adopted in accordance with the ordinary legislative
procedure, that is to say qualified majority in the Council and
co-decision with the Parliament. No doubt any regulation adopted
on such legal basis will have direct effect. As regards the right
of initiative, the general conditions of Art 68 will apply (Commission
or a quarter of the Member States).
In comparison with the Decision of 28 February
2002, the competences of Eurojust will be strengthened. Presently
it may only ask competent national authorities to initiate criminal
investigations on precise facts and to operate a coordination
of investigations. Under the new provisions, Eurojust will be
entitled to initiate criminal investigations and to coordinate
investigations and prosecutions conducted by competent national
authorities. Eurojust will also have the task of strengthening
judicial cooperation, which will include resolution of conflicts
of jurisdiction. One may infer from the drafting of Art 69h that
it may imply, as the case may be, removal of a case from a court.
On the other hand, as regards the initiation
of prosecutions, the competences of Eurojust remain unchanged;
it may only propose and not proceed. Further, it is specifically
provided that in the prosecutions, formal acts of judicial procedure
are carried out by the competent national officials, without prejudice
of the possible future creation of a European Public Prosecutor
as provided for in Art 69i.
3.2 Art 69i (derived from Art III-274 of
the Constitutional Treaty) is new. It makes it possible to establish
from Eurojust a European Public Prosecutor by means of
regulations adopted in accordance with a special legislative procedure—unanimity
in the Council and consent of the European Parliament. In the
absence of unanimity the system of reference to the European Council
at the request of at least nine Member States applies, and equally
the possibility to proceed to enhanced cooperation without previous
authorisation in the conditions explained here above. This possibility
did not exist in the Constitutional Treaty; it is an innovation
of the Reform Treaty with a view to encourage flexibility.
The powers of the European Public Prosecutor
are limited to crimes affecting the financial interests of the
Union. However, the European Council may at any time adopt a decision
amending Art 69i, para 1 in order to extend the powers of the
European Public Prosecutor's Office and include serious crime
having a cross-border dimension. In this connection, the European
Council acts unanimously after consulting the Commission and obtaining
the consent of the European Parliament.
4. The legal basis for criminal law measures
and continuing impact of Case C-176/03 in the context of the Reform
Treaty amendments
4.1 In the case referred to here above the
Court says in essence that the correct legal basis of provisions
aiming at a correct implementation of EC environmental policy
is Art 175 EC. Art 47 EU provides that nothing in the Treaty on
European Union is to affect the EC Treaty; the same requirement
is also found in the first paragraph of Art 29 EU which introduces
Title VI of the Treaty on European Union (police cooperation and
judicial cooperation in criminal matters). Therefore, according
to the interpretation of the TEU retained by the Court, the framework
decision must be annulled as it infringes Art 47 EU by encroaching
on the powers Art 175 confers on the Community. The amendments
introduced by the Reform Treaty should modify significantly the
situation as regards the correct legal basis for the adoption
of measures of approximation of criminal sanctions intended to
ensure the effectiveness of EC environmental law. First, Title
VI of the Treaty on European Union disappears; Art 29 to 39 of
the Title VI TEU on judicial cooperation in criminal matters and
police cooperation are replaced by Art 61 to 68 and 69e to 69
l of the Treaty on the functioning of the European Union. Therefore,
the provisions of Art 47 EU—replaced by Art 25 in the Reform
Treaty—if they keep a certain degree of significance as
regards CFSP because of the maintained specificity of that area
in the new treaty, are without object in the domain of judicial
cooperation in criminal matters which, in the future, should fall
under the ordinary EU rule.
4.2 Secondly, in order to prevent any doubt,
the new Art 69f(2) provides without ambiguity: "If the approximation
of criminal laws and regulations of the Member States proves essential
to ensure the effective implementation of the Union policy in
an area which has been subject to harmonisation measures, directives
may establish minimum rules with regard to the definition of criminal
offences and sanctions in the area concerned". Therefore
it should be possible to combine Art 69f(2) and Art 175 as legal
basis for the adoption of measures necessary for a correct implementation
of environmental policy; the risk of competition with a third
pillar legal basis will no longer exist. Further, the new provision
prevent the risk of differences in legislative procedures, as
Art 69f(2) provides: "Such directives shall be adopted by
the same ordinary or special legislative procedure as was followed
for the adoption of the harmonisation measures in question, without
prejudice to Art 68 (proposals by the Commission or by a quarter
of the Member States)".
5. The jurisdiction of the European Court
of Justice in relation to the FSJ area
Following tightly the wording of the Constitutional
Treaty, the reform Treaty establishes the full jurisdiction of
the ECJ as regards the FSJ area, putting aside most of the limitations
presently imposed by Art 35 EU in the area of judicial cooperation
in criminal matters and police cooperation and by Art 68 EC in
the area of border checks, asylum and immigration and of judicial
cooperation in civil matters. The new provisions of Art 230(c)
TFU enlarging the access to the European Court of individual and
legal persons may have some effects in the area of FSJ.
The only limitation concerns Chapter 4 and 5
of Title IV relating to the FSJ area. Art240 ter of the Treaty
on the functioning of the Union provides—in line with equivalent
provisions of the Constitutional Treaty—"In exercising
its powers regarding the provisions (of said chapters) the Court
of Justice of the European Union shall have 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". These provisions will
have the effect of limiting the efficiency of procedures for failure
to act initiated by the Commission against a Member State in the
relevant domains. It may also induce some limitations on the freedom
of the Court when delivering a preliminary ruling which might
indirectly imply an evaluation of the validity or proportionality
of an operation carried out by services of Member States in said
domains. On the other hand, one should mention the new provisions
added to Art 234 according to which if a preliminary ruling concerns
a case in which an individual is prisoner, the Court of Justice
should decide as quickly as possible. As a general remark, it
is clear that the relaxation of the restrictive conditions should
have the effect of multiplying the number of preliminary rulings
with the consequence that the delay for judgment by the Court
will increase.
On the whole, as regards the jurisdiction of
the Court, the improvement is significant.
6. The application of the Charter of Fundamental
Rights to FSJ measures
6.1 Although the Charter—proclaimed
in Nice in December 2007—is not part of the treaties, one
knows that the Court of Justice, under a certain pressure from
its advocate generals, has after a period of hesitation, decided
to refer explicitly to the Charter as a source of EU law, confirming
the content of fundamental rights as general principles of Union
law. For instance, the Court in Unibet (C-432/05, 13 March
2007) quotes Art 47 of the Charter as establishing the right of
everyone to an effective remedy before a tribunal. The recognition
by the Constitutional Treaty of the legal value of the Charter
of Fundamental Rights and its inclusion in part II of said Constitutional
Treaty would have given a stronger legal basis to the reference
to the Charter in court in connection with FSJ measures. With
the Reform Treaty, part II containing the Charter is suppressed;
however, Art 6 of the Treaty on European Union is modified, establishing
that "the Union recognises the rights, freedoms and principles
set out in the Charter of Fundamental Rights, which shall have
the same legal value as the treaties". On the ground of symbolism,
the status of the Charter declines while other symbols of constitutionalism
disappear (flag, hymn, Minister of Foreign Affairs, law). However,
one should appreciate the fact that as from the entry into force
of the Reform Treaty, the question of the legal value of the Charter
is no longer under discussion, within the limits intentionally
imposed: the text referred to is that adopted by the ICG concluded
in October 2004 and not that of the Charter proclaimed in Nice
in December 2000; for that reason, the Charter will have to be
re-proclaimed. The final provisions of the new text insist once
again on the fact that the Charter does not extend the competences
of the Union and refer to the "explanations" as instrument
of interpretation.
6.2 Further, in order to satisfy the reluctance
of the United Kingdom and Poland, a Protocol (n°7) on the
application of the Charter of Fundamental Rights to Poland and
to the UK has been added.
Art 1.1 of the Protocol aims at preventing the
Court of Justice of the Union and any court of Poland or the UK
from judging the conformity of "the laws, regulations or
administrative provisions, practices or actions of Poland or the
UK" with the rights and principles guaranteed by the Charter.
Art 1.2 specifies in particular the application of this rule to
Title IV of the Charter (Solidarity) which deals with social rights
and principles. We will observe that the preamble to this protocol
recalls that the Charter confirms rights already existing in the
Union and does not create new rights; therefore the UK is already
bound by these rights as a matter of general principles of law.
This seems to confirm that the essential objective of the UK when
requiring this special protocol, subsequently followed by Poland,
was to rule out application of the social principles contained
in the Charter insofar as these principles were not enshrined
in British law. Art 2 of the Protocol saying that to the extent
that the Charter refers to national laws and practices, law or
practices of Poland or the UK shall only apply sounds extremely
tautological. In the end one may expect that this Protocol will
nourish numerous comments by lawyers but perhaps not so much case
law. In effect the ECJ should manage to interpret the Charter
as it has done before, as the reservations imposed by this Protocol
do not subtract anything significant from what had been carefully
drafted in the Charter. Further, concerning the theme under scrutiny,
it appears that the questions raised in connection with the area
of FSJ have usually little to do with social matters therefore
the Protocol n°7 should be of few consequences.
28 November 2007
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