Memorandum by Dr Valsamis Mitsilegas,
Queen Mary University of London
GENERAL REMARKS
1. Thank you for your invitation to submit
written evidence on the impact of the Reform Treaty in the European
Union area of freedom, security and justice. This is a timely
and important inquiry. 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 on which this submission will focus.
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.
2. 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. Last, but not least, the express binding force
of the Charter of Fundamental Rights may have a considerable impact
on the interpretation of EU action in criminal matters.
3. The potential impact of these changes
on state sovereignty in an area where, until recently, the European
Union had little to do with, has rekindled the debate over the
extent of EU competence in criminal matters. The sensitivity of
the issue resulted in battles between Member States and the Commission
before the ECJ, and in a series of compromises in the text of
the Reform Treaty. It is from the perspective of competence that
this contribution will attempt to demonstrate the impact of the
Reform Treaty on future EU action in criminal matters. In doing
so, the analysis will focus on the impact of the Reform Treaty
on: the adoption of EU legislation on criminal law and procedure;
the role of EU bodies such as Eurojust; and the future development
of the EU legislative agenda in the field in the light of provisions
seemingly safeguarding state sovereignty (in particular emergency
brakes and transitional provisions).
THE REFORM
TREATY AND
EU COMPETENCE TO
LEGISLATE IN
CRIMINAL LAW
AND PROCEDURE
Substantive criminal law
4. The recent ECJ rulings on the environmental
crime[23]
and ship-source pollution[24]
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. The Reform Treaty attempts to clarify
the situation in Article 69(f). 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 69(f)(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).
5. There are a number of elements that are
unclear in Article 69(f)(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. Last, but not least, it is not clear whether Article
69(f)(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. As has been pointed out to the Committee in its
oral evidence sessions, the answer to this question may have an
impact on the participation of Member States which have negotiated
a right not to opt into criminal law measures. The Court's case-law
and Article 69(f)(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.[25]
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 69(f)(2).
Otherwise the effectiveness of Union law may be seriously jeopardised.
6. Another issue which causes uncertainty
regarding the exact scope of EU competence on substantive criminal
law stems from different parts of the Reform Treaty. A development
that may imply that the Union's criminal law competence may extend
beyond the offences enumerated in Article 69f is the deletion
of the last sentence in current Article 280(4) TEC.[26]
This sentence states that measures to combat fraud (an area which
are not listed in Article 69f(1) but may be included in 69(f)(2))
will not concern the application of national criminal law and
the national administration of justice. With the deletion of this
sentence, the Union will now have competence under Article 280(4)
to adopt "the necessary measures in the fields of the prevention
and fight against fraud affecting the financial interests of the
[Union] with a view to affording effective and equivalent protection
in the Member States". It is not clear whether the wording
here (in an area dealing with issues closely related to criminal
law) signifies that the Union has competence under Articles 280(4)
to adopt criminal laws on fraud without the need to have recourse
to Article 69(f)(2).[27]
Criminal procedure
7. 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. However, it must be noted that 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 69(e)(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
69(e)(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. The Committee may recall the Commission's
justification of the proposal on the rights of the defendant,
where it was argued that harmonisation of criminal procedure would
lead to mutual trust which would then lead to the facilitation
of mutual recognition.[28]
However, the concept of mutual trust is highly subjective and
potentially difficult to be assessed by both legislators and judges.[29]
The management of investigations and prosecutions
8. 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 69h
and 69k 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.[30]
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.
9. The Reform Treaty may result in significant
changes in the nature and powers of Eurojust. According to Article
69(h)(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"
(69(h)(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 69i 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 69(i)(2)).
10. 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.[31]
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 emergency brakes as
a boost for European integration in criminal matters
11. The significant constitutional changes
that the Reform Treaty will bring about with regard to the third
pillar have resulted in attempts by a number of Member States
(in particular the UK) to limit the application of the "Community
method" as far as they are concerned. Techniques used include
the extension of the "opt-in" Protocols to criminal
matters, the introduction of a so-called "emergency brake"
where sovereignty-sensitive proposals on EU criminal law and procedure
will be referred to the European Council, and the introduction
of transitional periods regarding the applicability of existing
third pillar law resulting in a choice for the United Kingdom
on whether to participate in EU criminal law or not. The details
on the issues arising from the UK's position have been touched
upon in the oral evidence given to the Committee thus far. This
contribution will focus on the broader point of the impact of
these clauses on the future adoption of EU criminal law and point
out that, while for non-participating countries these clauses
may act as a safeguard (at least as regards attempts to justify
the Reform Treaty to domestic voters), for Member States willing
to move ahead with the adoption of new legislation on EU criminal
law, life becomes much less complicated in comparison with the
current unanimity requirement in the third pillar. In particular,
the "emergency brake" is accompanied by a simplified
flexibility clause in the second sentence of Article 69(f)(3)
which enables at least nine Member States to push on. The momentum
of this clause for the adoption of EU criminal law should not
be underestimated. Moreover, and perhaps more significantly, Articles
9 and 10 of the transitional provisions Protocol actually provide
an impetus for a new wave of EU criminal law measures, which in
practice will be mostly Directives replacing and repealing existing
third pillar Framework Decisions (with the legal instrument of
a Framework Decision no longer existing in the Reform Treaty).
The need to align the existing legal framework with the changes
brought by the Reform Treaty may thus lead to a combination of
proposals amending current third pillar law (such as the European
Arrest Warrant and, as seen above, the Eurojust Decision) by expanding
the scope of these instruments, with proposals on new areas of
criminal law (in particular criminal procedure).
12. As far as the UK is concerned, the possibility
not to opt into criminal law measures may in practice lead (as
is currently the case with Title IV measures) to complex legal
and practical questions, in particular in the light of the increased
inter-relationship between the various Treaty provisions and the
move towards an increasingly integrated EU action in criminal
matters. To take one example: judging from the UK's stance in
third pillar negotiations thus far, it would seem likely that
the UK would choose to opt into legislation amending the European
Arrest Warrant Framework Decision, but not participate in legislation
aiming at establishing minimum standards for defence rights. However,
given that the justification—and the legal basis—of
the defence rights proposal will depend on its aim to facilitate
mutual recognition, in practice the operation of the European
Arrest Warrant between the UK and other Member States which have
opted into the defence rights legislation may become problematic—with
the UK deemed not to provide the required minimum standards enshrined
by EU law. The situation may become legally complicated should
for instance the Commission choose to table and aim at negotiating
these proposals in parallel, or include in the EAW proposal cross-references
to the defence rights measure. A complex question which may arise
in this context is whether the non-participation of the UK in
one measure (in this example the defence rights proposal) may
render the application of another measure (the European Arrest
Warrant) inoperable for other EU Member States.[32]
The more integrated the "area of freedom, security and justice"
becomes, the harder it may prove for the UK to sustain its "pick-and-choose"
approach to EU home affairs.
30 November 2007
23 Case C-176/03, Commission v Council, judgment of
13 September 2005, [2005] ECR I-7879. Back
24
Case C-440/05, Commission v Council, judgment of 23 October 2007. Back
25
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
26
See doc CIG/1/1/07 REV 1, point 276. Back
27
It should also be noted here that in the case of fraud, the Reform
Treaty provides for a separate legal basis for the determination
of offences affecting the financial interests of the Union-new
Article 69i which envisages the future establishment of a European
Public Prosecutor's Office from Eurojust. Back
28
See in particular the Report on Procedural Rights in Criminal
Proceedings, 1st Report, session 2004-05, HL Paper 28. Back
29
For a more extensive analysis of this point and the constitutional
arguments regarding the relationship between the defence rights
proposal and mutual recognition see V Mitsilegas, "The Constitutional
Implications of Mutual Recognition in Criminal Matters in the
European Union", in Common Market Law Review, vol 43, 2006,
pp 1277-1311. Back
30
For details on the debate regarding Eurojust's mandate see the
Committee's Report on Judicial Co-operation in the EU: the Role
of Eurojust, 23rd Report, session 2003-04, HL Paper 138. Back
31
Article 69(h)(1)(b) includes in Eurojust's tasks the coordination
of investigations and prosecutions. Moreover, Article 69(e)(1)(b)
calls for the adoption of rules on preventing and settling conflicts
of jurisdiction between Member States. Back
32
A similar situation may arise with regard the European Evidence
Warrant on the one hand and possible future legislation on the
admissibility of evidence on the other. Back
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