Memorandum by Maria Fletcher, Lecturer
in European Law, University of Glasgow (Comments are submitted
on an individual basis only)[17]
1. The legal basis for criminal law measures.
First, it is noteworthy that Article 4(2) TFEU (Treaty on the
functioning of the European Union) clarifies that the AFSJ is
an area in which the EU shares competence with the Member States.
2. The Reform Treaty offers a welcome clarification
of EU competences in respect of criminal law. Such clarity is
lacking in the present Treaty settlement which has resulted in
some awkward legal wrangling. Competences in matters of criminal
justice under the TFEU are expressly organised around the sometimes
competing methodologies of mutual recognition and approximation
of laws (Article 61(3)). Mutual recognition was expressly endorsed
as the cornerstone of judicial cooperation in criminal matters
by European leaders at the Tampere European Council in 1999. Until
now, it has had no express basis in the Treaties. The ECJ has
on numerous occasions endorsed this principle and used it as a
prism through which to interpret legislation adopted pursuant
to the mutual recognition agenda and indeed legislation which
predates even the Amsterdam legal settlement ie Article 54 of
the Convention implementing the Schengen Agreement which contains
the principle of ne bis in idem. Despite the sometimes
contested manifestation and consequences of the principle of mutual
recognition, it is the key ordering principle of the EU's criminal
justice agenda and it looks set to remain so upon entry into force
of the Reform Treaty.
3. As for the specific competences, the
Reform Treaty provides a clear distinction between criminal procedure
(Article 69e TFEU) and substantive criminal law (Article 69f TFEU).
On procedural issues Article 69e further distinguishes between
those procedures that will coordinate criminal justice systems
of the Member States (Article 69e(1) (a) the blanket mandate
to "lay down rules and procedures for ensuring recognition
throughout the Union of all forms of judgments and judicial decisions";(b)
to "prevent and settle conflicts of jurisdiction between
Member States";(c) to "support the training of the judiciary
and judicial staff"; and (d) to "facilitate cooperation
between judicial or equivalent authorities of the Member States
in relation to proceedings in criminal matters and the enforcement
of decisions) and what might be called `forensic' criminal procedure
ie domestic criminal procedures applicable in a specific trial";
(Article 69e(2) (a) "mutual admissibility of evidence between
Member States"; (b) "the rights of individuals in criminal
procedure"; (c) "the rights of victims of crime";
and (d) "any other specific aspects of criminal procedure
which the Council has identified in advance by a decision; for
the adoption of such a decision, the Council shall act unanimously
after obtaining the consent of the European Parliament").
This latter provision highlights the hierarchical relationship
between mutual recognition and approximation since it states that
approximation of the listed aspects of forensic criminal procedure
shall only be pursued to the extent necessary to give effect
to mutual recognition.
4. The competence basis in Article 69e(1)(a)
TFEU is written as, and clearly intended to be, a catch-all basis
for the implementation of the principle of mutual recognition.
Approximation of forensic criminal procedure is thus only justifiable
if the simple mutual recognition of the different laws and procedures
is for some reason unacceptable. This ought to ensure maximum
coordination while according maximum respect to national traditions.
It should be pointed out however that given the lack of criteria
by which to assess whether mutual recognition would be acceptable,
the new provisions are unlikely to settle the argument as to the
proper division of labour between the two methodologies in criminal
procedure generally.
5. Also of note is Article 69e(1)(b) TFEU
which gives the EU express competence not only to prevent conflicts
of jurisdiction—which is the present mandate under Article
31(1)(d) EU—but also to settle such conflicts.
6. Article 69g TFEU confers a supporting
role upon the EU in the field of crime prevention. Harmonisation
of national laws and regulations is expressly excluded.
7. When it comes to substantive criminal
law, the criteria governing EU intervention are a priori unrelated
to mutual recognition. Instead, the criteria provided by the TFEU
depend on a division of criminal legislation into "core"
or traditional criminal law, and what can be called "regulatory
criminal law". In the case of the former, Article 69f(1)
TFEU lays down that EU action is limited to approximating legislation
in 10 areas: "terrorism, trafficking in human beings and
sexual exploitation of women and children, illicit drug trafficking,
illicit arms trafficking, money laundering, corruption, counterfeiting
of means of payment, computer crime and organised crime".
This list can be expanded by unanimous decision in Council and
with the consent of the EP. Article 69f TFEU justifies the selection
of these specific areas because they are "areas of particularly
serious crime with a cross-border dimension resulting from the
nature or impact of such offences or from a special need to combat
them on a common basis". Presumably, any area which the Commission
or Council propose to add to this list will have to fulfil this
general criterion. In the case of regulatory criminal law, Article
69f(2) TFEU provides an independent legal basis for the approximation
of provisions of criminal law sanctioning the breach of EU regulation
in other policy fields. In short, if the EU has adopted regulatory
measures in any area and the effectiveness of those regulations
is deemed to require the application of criminal sanctions, the
EU shall be competent to approximate such offences and the sanctions
to be applied.
8. Impact of Case C-176/03 (Environmental
crimes) in the context of the Reform Treaty. Article 69f(2)
TFEU provides a neat solution to the rather complex situation
which arose as a result of the judgment in Environmental crimes
and which unfortunately remains after the ruling in Case
C-440/05 (Ship-source pollution). It confirms, in effect,
that the reasoning of the ECJ in Environmental crimes can
be applied to the other objectives and policy areas of the EU
ie the EC's competence to legislate in the field of substantive
criminal law can extend beyond the field of the environment to
any area of Union policy which has been subject to harmonisation
measures—in so far as criminal law approximation is deemed
essential to ensure the effective implementation of that policy.
9. Decision-making and institutional
arrangements. The move to the "ordinary legislature procedure"
ie qualified majority voting and co-decision in areas of criminal
law and policing is a most welcome development. The shift to qualified
majority voting (QMV) removes the right of veto from any single
MS as a matter of course (although see comments on the emergency
brake procedure below.) QMV is made more palatable by the simultaneous
clarification of criminal law competences envisaged in the Reform
Treaty. It may help to avoid political stagnation in the decision-making
process (which is made more likely following the recent enlargements
of the EU) and will force discussions and consensus building rather
than immediate resort to purely national positions/red-lines.
Unanimity voting traditionally results in "lowest common
denominator" legislation and therefore it is to be hoped
that a move to QMV will have a qualitative impact on legislative
output. One example of a piece of proposed legislation that began
life as ambitious and for the most part welcome, but which has
ended up as an unwieldy, disappointing and still unadopted text
is the Framework Decision on a European enforcement order and
transfer of sentenced persons between Member States of the EU.
The same argument about quality applies to the shift to the co-decision
procedure. A greater involvement of the European Parliament and
the conferral upon it of real power in the decision-making process
is long overdue in this field. It will lend legitimacy to the
European criminal justice project—something which has been
sorely lacking to date. We would emphasise the disciplining effect
of parliamentary scrutiny both in terms of the proposals actually
made and the quality of legislation once adopted.
10. In the "General provisions"
of the AFSJ, Article 68 TFEU provides a blanket derogation from
this "ordinary procedure" as applicable to criminal
justice and police cooperation in that it ensures that the right
of initiative continues to be shared between the Commission and
the Member States. It is difficult to see what the rationale for
this derogation is, especially in the context of a supranational
decision making structure. The practical experience of Member
States submitting proposals in the field of criminal law has been
problematic to date (they tend to either reflect the interests
of the individual state to a disproportionate degree (eg the Council
Framework Decision 2004/68/JHA combating the sexual exploitation
of children and child pornography) nor be inadequately framed
(eg Greek proposal for a Framework Decision on ne bis in idem
OJ [2003] C100/4.) The Commission, acting in the interests
of the Union and with the capacity to consult widely and conduct
impact assessments is far better placed to submit legislative
proposals.
11. A few specified decisions are subject
to a special decision making procedure (Article 69e(2)d, 69f(1)
para. 3, Article 69i). This is modelled on the present system
with unanimity in Council and mere consultation of the EP.
12. One of the most welcome aspects of the
new TFEU is that it does away with the specific legislative instruments
found in Article 34(2) EU. Henceforth, legislation in the area
of criminal justice is done by way of directives, regulations
and opinions.
13. The extent to which the adoption of
the "ordinary legislative procedure" combined with the
emergency brake and enhanced cooperation procedure will prevent
future resort to inter-governmental negotiations outside the framework
of EU law on criminal and policing matters remains to be seen.
The Prüm Treaty was negotiated in this way and later incorporated
into the EU law framework. Indications suggest that the Prüm
group of states wish to continue to work together to make progress
on judicial cooperation.
14. The emergency brake and enhanced
cooperation in criminal law and policing. The inclusion of
this possibility suggests that criminal justice remains an area
requiring additional safeguards for the Member States. If a measure
approximating laws is contemplated and a member of Council is
of the opinion that it would "affect fundamental aspects
of its criminal justice system", the ordinary legislative
procedure can be suspended for up to four months for discussions
in the European Council. At this point, one of two things can
happen. Either the European Council reaches a consensus and the
matter is referred back to Council for decision pursuant to the
ordinary legislative procedure or, in the absence of consensus
and if at least nine members of Council wish to proceed, the measure
will be adopted as a measure of enhanced cooperation. On the one
hand, this system raises the spectre of the normative fragmentation
of EU criminal justice. On the other hand, it is to be hoped that
the political pressure will be such that mere opportunistic blocking
of approximation measures is minimised. It should also be pointed
out that measures implementing mutual recognition are not subject
to this special procedure. In addition to approximating measures
which are adopted using the ordinary legislative procedure, whenever
a special legislative procedure is provided for, so is generally
the possibility of enhanced cooperation. This will prevent unanimity
from constituting an automatic block to EU action although, again,
there is likely to be considerable political reticence to too
frequent recourse to enhanced cooperation.
15. The jurisdiction of the ECJ to
FSJ measures. The general restructuring of the treaty framework
envisaged by the Reform Treaty brings with it a sea change as
far as judicial oversight by the ECJ of EU criminal justice is
concerned. Henceforth, the Commission will be able to introduce
infringement proceedings for Member State failure to fulfil their
obligations under the new Title IV TFEU (Articles 226-228 TFEU),
the direct action against legislative acts is opened up to include
acts adopted under Title IV TFEU (Article 230 TFEU), and the typical
Community preliminary rulings procedure is generalised (Article
234 TFEU). The somewhat patchy system of judicial oversight that
exists presently will be replaced by the full raft of mechanisms
traditionally associated with mainstream Community law. This will
secure more effective judicial oversight of EU developments and
enhance legal certainty. It is hoped that the application of the
infringement procedure to crime and policing measures will encourage
and secure a better application and enforcement of EU criminal
law at the national level.
16. Provisions on Eurojust and the
creation of a European Public Prosecutor. An entire Treaty
article is dedicated to Eurojust but it may be a disappointment
to some. Absent is a provision for Eurojust to be able to initiate
prosecutions on its own accord. On the other hand, Article 69i
TFEU lays down a special procedure for the establishment of a
European Public Prosecutor "from Eurojust" and "[i]n
order to combat crimes affecting the financial interests of the
Union". This remains a controversial development in many
quarters and it is unlikely that the required unanimous support
will be achieved in the short to medium term. Notably, the Reform
Treaty calls for arrangements to be laid down for involving the
EP and national Parliaments in the "evaluation of Eurojust's
activities".
17. Protocol on the position of the UK
and Ireland in respect of AFSJ and the Schengen Protocol.
The Treaty of Lisbon amends the existing protocol on the position
of the UK and Ireland annexed to the Amsterdam Treaty and makes
it applicable to the whole of the Title IV TFEU—ie the scope
of application of the protocol extends beyond police and judicial
cooperation in criminal matters to policies on border checks and
asylum and immigration and judicial cooperation in civil matters.
Article 2 of the protocol maintains the principle that no legal
instrument adopted in pursuance of the EU's AFSJ, or any judgment
of the ECJ interpreting such instruments are applicable to the
UK and Ireland. Article 3 gives the UK and Ireland the opportunity
to declare that they wish to participate in any proposed legal
instrument in this area. Article 3(2) makes it clear that if either
the UK or Ireland, after such a declaration, nevertheless makes
life so difficult for the other Member States, such that the measure
cannot be adopted after a reasonable period, they will be excluded.
The UK and Ireland will thus not be able to opt in only to sabotage
a proposed instrument. Article 4 gives the UK and Ireland the
chance to accept an instrument after it has been adopted, however
a new Article 4a is inserted by the Reform Treaty which in effect,
asserts some political pressure upon the UK and Ireland to opt-in
to measures that amend existing measures by which they are already
bound. The pressure derives from the potential legal consequences
of non-participation—although the principle of non-participation
applies even for these amending instruments, according to Article
4a(2), if they decide not to opt in, and the Council determines
that the non-participation of the UK or Ireland would make the
application of that measure "inoperable" for other Member
States or the Union, the original measure will cease to
apply to them. In effect, the UK and Ireland could be frozen out
of a measure which they had previoulsy signed up to. This means
that an existing instrument such as the EAW, if an important amendment
is proposed and, say, the UK decides not to participate in this
amendment, can cease to apply to the UK. It is hoped that all
sides will show political restraint in the use of these provisions
to prevent a too significant fragmentation of EU criminal justice.
A finding of "inoperability" would of course be open
to challenge before the ECJ.
18. The application of the Charter of
Fundamental Rights to FSJ measures. The direct legal impacts
of the Charter may not be as dramatic as some might have envisaged—this
is because the EU institutions and MS when implementing AFSJ legislation
already have to respect human rights, since respect for human
rights is deemed to constitute one of the general principles of
EC/EU law. Pursuant to existing Article 6 EU (new Article 6(3)
EU), the sources of such rights include the constitutional traditions
common to the Member State and the ECHR. Indeed, other international
human rights instruments have also been accepted as sources of
rights. In Case C-303/05 Advocaten voor de Wereld v Leden van
de Ministerraad the ECJ recognised the principles of legality
and equality before the law as general principles of EU law and
in C-305/05 Ordre des barreaux francophones et germanophones
and Others v Conseil des Ministres the ECJ did the same with
regard to all the aspects of a fair trial. If theECJ were to acknowledge
all the rights contained in the Charter as general principles
of Union law the distinction between the two becomes irrelevant
for practical and legal purposes—the Charter would simply
be another source of rights as general principles and any formal
attempt to limit the legal effects of the Charter would make little
or no difference to a State's human rights obligations pursuant
to EU law. Only to the extent that there may differences between
the general principles and the Charter rights will it be possible
to limit Member States human rights obligations by limiting the
legal effects of the Charter (as the UK has done by way of Protocol.)
Finally in this context, it should also be borne in mind that
the new Article 6(2) EU provides that "[t]he Union shall
accede to the [ECHR]". However, given that Article 188n(8)
TFEU specifies that Council shall adopt the act of accession unanimously,
this may not be as straightforward as perhaps expected.
26 November 2007
17 However, I would like to acknowledge Robin Lööf,
Doctoral candidate at the European University Institute, Florence
for his input to this evidence. I should also acknowledge the
forthcoming book- M Fletcher, R Lööf and W G Gilmore,
"EU Criminal Law and Justice" Edward Elgar, 2008. Back
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