The European Union's Policy on Criminal Procedure - European Union Committee Contents

CHAPTER 4: The Scope of EU Legislation

The requirement to facilitate mutual recognition

45.  Professor Mitsilegas discussed the requirement that EU legislation must be necessary to facilitate mutual recognition.[73] He criticised post-Lisbon legislation and proposals on the ground that they did not seek to demonstrate that the specific criminal procedure measure in question facilitated a specific aspect of mutual recognition. Rather, they employed vague and general assertions that the measure in question would facilitate mutual recognition. His example was that proposals to establish minimum defence rights should be justified on the specific basis that they facilitate the EAW. He also found it hard to make any linkage between procedural rights for victims and mutual recognition, criticising the recent Commission Communication introducing a package of victims' rights for not doing so.[74] Professor Peers also raised a concern about the weakness of the link between facilitating mutual recognition and the position of crime victims in other Member States. However he saw the political necessity of addressing the needs of victims.[75]

46.  On the other hand Mr Tim Jewell of the Ministry of Justice, who gave evidence with the Lord Chancellor, did not agree that the wording of the Treaty required such a specific link, although he accepted that the more general and subjective the link the more difficult it would be to show that the setting of minimum standards was necessary to facilitate mutual recognition.[76] In its written evidence the Ministry of Justice acknowledged that EU legislation can play an important role in supporting instruments of mutual recognition such as the EAW. [77]

47.  Baroness Ludford put forward the proposition that minimum standards of defendants' rights benefit law enforcement authorities by avoiding disruptive challenge or political controversy which might otherwise frustrate the application of EU mutual recognition measures.[78]

48.  In considering Professor Mitsilegas' argument we take into account that Article 82(2) TFEU is capable of being read in a manner that does not require a specific linkage, and that to read it as he suggests would result in the overturning of valuable legislation assisting victims of crime and protecting the rights of defendants. The latter, if not as popular as assisting victims, is nevertheless consonant with the fundamental values of the EU. Furthermore the assessment of what is necessary or otherwise in order to facilitate mutual recognition is one which the legislator is best placed to make and therefore is likely to be given a margin of appreciation.

49.  The Treaty requirement that the EU should only legislate on criminal procedure to the extent necessary to facilitate mutual recognition is an important limitation on competence. However, it does not go so far as to require a criminal procedure measure to demonstrate that it facilitates a specific mutual recognition measure. It is enough that the criminal procedure measure provides support for the operation, generally, of mutual recognition.

The cross-border dimension

50.  We also considered whether EU legislation could only prescribe minimum rules applicable to criminal procedure in cases involving a cross-border dimension, in the light of the Treaty requirement that EU legislation must be necessary to facilitate mutual recognition "in criminal matters having a cross-border dimension".

51.  Whilst the Bar Council and the City of London Law Society's Corporate Crime and Corruption Committee accepted that this could be one reading of Article 82(2) TFEU, the other legal evidence did not subscribe to this view.[79] Furthermore it was pointed out that it would be impractical to seek to limit EU legislation to cross-border cases as it is often impossible to tell at the beginning of a case whether there might be a cross-border element to it.[80] The Bar Council mooted the possibility that EU legislation could be limited to cross-border cases and Member States encouraged to raise their domestic standards. Whilst this would not pose difficulties for the UK, it considered that this approach might fall short of the desired result in certain other Member States.[81]

52.  We note, however, that no legislation or proposal has been challenged on this ground. Nor does examination of the text of Article 82(2) TFEU force an impractical approach. Indeed it seems to us that the stronger reading of this Article is that the minimum criminal procedure rules are not limited cases with a cross-border dimension, rather they must facilitate mutual recognition which has a cross-border dimension.

53.  We accept the evidence given to us that it is not practical or strictly necessary for EU criminal procedure legislation to be limited to cross-border offences.


54.  Even if legislation is within the strict competence laid down in the Treaty, the principle of subsidiarity applies to the area of criminal procedure. Under this principle the EU should only legislate if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States but can, rather, by reason of the scale or effects of the proposed action, be better achieved at Union level. Professor Mitsilegas suggested that EU proposals on victims' rights merited careful examination of their compatibility with the principle of subsidarity, without suggesting that the proposals to date violated it.[82]

55.  Although, strictly, a legal test, compliance with subsidiarity involves an assessment by the legislator on a case by case basis of the added value of legislating at an EU level. In relation to the criminal procedure proposals brought forward for scrutiny to date we have not yet found it necessary to raise a subsidiarity objection, but we shall continue to scrutinise this aspect of any future proposals.

73   Professor Mitsilegas, paras 2-8. Back

74   COM(2011) 274. Back

75   Q 16. Back

76   Q 73. Back

77   Ministry of Justice, para 13. Back

78   Baroness Ludford, para 14. Back

79   Bar Council, para 2.4 and City of London Law Society's Corporate Crime and Corruption Committee, para B2; contrasted with Q9 (Professor Spencer and Professor Peers); Q 44 (Law Society); Faculty of Advocates, para 10; CCBE, para 29. Back

80   Q 9 (Professor Peers and Professor Spencer); Bar Council, para 2.4; Ministry of Justice, para 43. Back

81   Bar Council, para 2.4.1. Back

82   Professor Mitsilegas, para 8. Back

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