CHAPTER 4: The Scope of EU Legislation |
The requirement to facilitate
45. Professor Mitsilegas discussed the requirement
that EU legislation must be necessary to facilitate mutual recognition.
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.
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.
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.
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. 
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
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
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.
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.
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.
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.
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
COM(2011) 274. Back
Q 16. Back
Q 73. Back
Ministry of Justice, para 13. Back
Baroness Ludford, para 14. Back
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
Q 9 (Professor Peers and Professor Spencer); Bar Council, para
2.4; Ministry of Justice, para 43. Back
Bar Council, para 2.4.1. Back
Professor Mitsilegas, para 8. Back