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EUROPEAN CRIMINAL LAW - INTRODUCTION ECLAN Summer School 2014 Katalin Ligeti & Rolan Genson

EUROPEAN CRIMINAL LAW - INTRODUCTION ECLAN Summer School 2014 Katalin Ligeti & Rolan Genson. References on EU criminal law. Books: V. Mitsilegas, EU Criminal Law after Lisbon , Hart Publishing, 2016 S. Peers, EU Justice and Home Affairs Law, Oxford, OUP, 201 6

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EUROPEAN CRIMINAL LAW - INTRODUCTION ECLAN Summer School 2014 Katalin Ligeti & Rolan Genson

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  1. EUROPEAN CRIMINAL LAW - INTRODUCTIONECLAN Summer School 2014 Katalin Ligeti & Rolan Genson

  2. References on EU criminal law • Books: • V. Mitsilegas, EU Criminal Law after Lisbon, Hart Publishing, 2016 • S. Peers, EU Justice and Home Affairs Law, Oxford, OUP, 2016 • V. Mitsilegas, M. Bergström, T. Konstadinides: Research Handbook on EU Criminal Law, EE 2016 • A. Klip, European Criminal Law: An Integrative Approach, Antwerp, Intersentia, 2016 • D. Flore, Droit pénal européen, Bruxelles, Larcier, 2014

  3. Main reviews in the field : • New Journal of European Criminal Law (NJECL) – Intersentia • Eucrim, The European Criminal law associations’ forum • European Criminal Law Review (EuCLR) - Hart - Nomos

  4. These slides are an updated and extended version of the slides of A. Weyembergh & R. Genson of 2014.

  5. Preliminary remarks • „European criminal justice area “ is part of the larger AJSF. • Sensitivity of EU integration in this filed: • from the viewpoint of national sovereignty , • From the viewpoint of human rights a. double function of criminal law: sword function and shield function b. finding the right balance between these functions.

  6. 4 successive stages • The evolution of EU criminal law: - 70’ to 1993: the origins of cooperation in criminal matters between the EC member states, - 1993-1999: cooperation in the fields of justice and home affairs (the „third pillar”), - 1999-2009: police and judicial cooperation in criminal matters (the revamped third pillar), - since 2009 the Lisbon Treaty, the Stockholm programme and the Post Stockholm Programme.

  7. 1. 1970’s-1993 : the origins AW and RG - Summer School 2014

  8. The point of departure : silence of the Rome Treaty about cooperation in criminal matters • NO EC competence in the penal field • but potential impact of EC law on domestic penal law (substantive and procedural) • Either negative impact: when EC law requires the MSs to abstain from/avoid adopting a criminal provision which is incompatible with its principles or, if such national criminal provision exist, to remove it or to amend it. • Or positive impact: when EC law requires the adoption of national criminal law provisions in order to ensure its effectiveness => Active/positive duties for the MSs in the field of criminal law in order to ensure the execution of EC obligations AW and RG - Summer School 2014

  9. The European Political Cooperation In the 1970’s: need for better cooperation in criminal matters in order to face new common threats (see development of transnational crime and « euro-terrorism » - LPO…). =>Establishment of new cooperation structures, as the Trevi group in the field of police cooperation => Launching of new projects as the French proposal aiming at the establishment of a « European judicial penal area » in the field of judicial cooperation in penal matters. AW and RG - Summer School 2014

  10. In the 1980’s and in the beginning of the 1990’s:need to develop cooperation in criminal matters as a pre-condition for abolition of controls at internal borders (idea of “compensatory measures”) (see Single Act (17/02/86) which enschrined in the Treaty the objective of establishing a Single (Internal) Market and of abolishing the checks at internal borders (01/01/93)). => The existing structures of work continued to function and new ones appeared AW and RG - Summer School 2014

  11. Main features (and weaknesses) Cooperation between the MS of the EC butoutside the EC institutional framework, within structures of a purely intergovernmental nature => • Unanimity • Major role for the national governments and administrations => In-transparent and democratic deficit • Use of classical international instruments (conventions, resolutions, …) => Not applied, not in force (“virtual” cooperation) AW and RG - Summer School 2014

  12. Few achievements • In the field of police cooperation: some practical results (e.g. liaison officers) • In the field of judicial cooperation in criminal matters: 5 conventions aiming at enhancing judicial cooperation in criminal matters, one on ne bis in idem (25/05/87), four on improving functioning of existing CoE conventions (transfer of sentenced persons: 25/05/87; transmission of extradition requests: 26/05/89; transfer of criminal proceedings: 06/11/90; enforcement of sentences: 13/11/91). Not successful: poor level of ratification. HOWEVER : Cooperationwasstill of a traditional nature, marked by the principle of national sovereignty and national territoriality (with a few exceptions such as the 1987 ne bis in idem convention) AW and RG - Summer School 2014

  13. Schengen • Schengen Agreement of 14 June 1985 on the gradual abolition of checks at common borders • Convention of 19 June 1990 implementing the Schengen Agreement on the gradual abolition of checks at common borders (CISA) AW and RG - Summer School 2014

  14. Main objective: to serve as a laboratory, to prepare the abolition of checks at internal borders within the EC • Basic principle: abolition of checks at the internal borders of Schengen partners • Compensatory measures: in order to safeguard a high level of security, development of police cooperation and judicial cooperation in penal matters (Title III of the implementing Convention + Title IV about the SIS) AW and RG - Summer School 2014

  15. Same features as the European political cooperation (pure intergovernmental nature…) But, important achievements: cooperation of a still traditional nature but with some innovative elements: • in the field of police cooperation, see the crossborder surveillance/observation and crossborder pursuit (Art. 40 and 41 CISA) • SIS • in the field of judicial cooperation, see the ne bis in idem principle (Art. 54 and f. CISA) => First steps representative of the concept of EU area of criminal justice AW and RG - Summer School 2014

  16. 2. The Third Pillar – JHA

  17. The JHA Third Pillar - I • The MT introduced the pillar structure in order to include controversial areas (e.g. criminal law) in the Union remit, but ensure that these areas are subject to an intergovermental legal framework. • Common EU framework for judicial and police cooperation EXCEPT SCHENGEN). • Characteristics of the JHA pillar: - limited objectives (only cooperation and no common policy), - extremely limited role given to EU institutions (no influence of EP, ECJ), - unanimous decision making, - adoption of compensatory measures, - use of international conventions and joint actions.

  18. The JHA Third Pillar - II • Within the Third Pillar, cooperation in justice is weaker than cooperation in home affairs: - no right of initiative of the Commission, - EP is only informed, - member states have the monomopoly of initiative, - Art. 9 (passerelle) applies only to civil and immigration cases, - no competence of the ECJ.

  19. Characteristics and achievements of international cooperation based on the MT: • The institutional framework of criminal law cooperation is established at EU level, but the methods and the instruments are predominantly intergovernemental. • There are a lot of instruments adopted in the JHA Third Pillar, but none of them are binding. • For instance 1995 Europol convention, 1995 and 1996 conventions on extradition, several joint actions approximating substantive criminal law in the field of org. crime, drug trafficking, trafficking in human beings, corruption, R&X, joint actions establishing the European Judicial Network (EJN), or concerning liaison magistrates…) • But many resolutions, decisions, recommendations, …

  20. !! The cooperation was still of a traditional nature. But some instruments clearly improved the cooperation in the police and criminal justice fields (1995 Europol Convention, Joint action establishing EJN…) => Announcement of bigger changes => Slowly paved the way to the development of a EU area of criminal justice… AW and RG - Summer School 2014

  21. + Development of Schengen, outside the EU institutional framework • 26 March 1995: entry into force of the CISA and abolition of border controls between 7 Schengen States • Incredible driving force: • 5 initial partners (Benelux, Germany, France) • + 8 (Italy in 1990, Spain and Portugal in 1991, Greece in 1992, Austria in 1995, Denmark, Finland and Sweden in 1996) =13 MS (15 – UK and Ireland) when the intergovernmental conference opened + 2 associate States (Iceland and Norway : see agreement of Dec. 1996 concluded between the 13 Schengen partners and Iceland and Norway, as a consequence of the Passport Nordic Union) AW and RG - Summer School 2014

  22. 3. 1999-2009: Revised Third Pillar (PJC) under the Amsterdam and the Nice Treaties

  23. The Amsterdam Treaty • The Amsterdam Treaty introduced 4 important changes: - more clear definition of the objectives of the third pillar, - revamp the third pillar (civil law and immigration issues are moved to the first pillar), - integration of the Schengen acquis into PJC, - introducing enhanced cooperation.

  24. The objectives of PJC • Art 29 TEU: „to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action among the Member States in the fields of police and judicial cooperation in criminal matters”. • (Combined reading of Art. 2 TEU(4th indent); 61 TEC; 29 TEU (2d and 3d indents) + horizontal programmes of work) • The general Union objective is to create an AFSJ (not only to adopt compensatory measures). • Unclear remains: - the concept of the „area” (remiscent of Schengen area?), - the relationship between the 3 elements of „freedom, security and justice”.

  25. Revamped third pillar: PJC • The PJC: - still intergovermental (unanimity in the Council), but some community elements, - increased role of the Commission (shared right of initiative with the MS) and ECJ (may accept preliminary references), - new istrument: framework decision (Pupino). • Major concern: judicial protection (Gestoras and Segi).

  26. Main new features (closer to EC method) • Shared right of initiative => MS/Commission • Framework decisions and decisions replaced joint actions, and were defined as directives (Art. 34 §2 b). But deprived of any direct effect. See however Pupino case (Decision ECJ of 16/06/05, C-105/03). • ECJ competence (Art. 35) but more restricted than in EC law • Preliminary ruling (Art. 35 §1), • Control of legality (Art. 35 § 6) • Disputes between MSs or MS and COM (Art. 35 §7)(never used) => NO infringement procedure ! « PPU – Procédure préjudicielle d’urgence » in order to adapt the procedure to the constraints of the AfSJ… AW and RG - Summer School 2014

  27. Incorporation of the Schengen acquis into the PJC • The incorporation of the Schengen acquis was prompted by: - the desire to eliminate parallel forms of cooperation and to establish a single institutional framework, - the gradual enlargement of the Schengen area, - the perspective of the enlargement of the EU. • The incorporation of the Schengen acquis was problematic, because: - limited participation of UK and IRL, - associated status of NO, IS and CH and Lichtenstein. • Today the CISA has 30 parties (13 old MS; 13 new MS; 4 associated countries).

  28. Enhanced cooperation • With a view to the enlargement of the EU, the impoertance of enhanced cooperation increases. • According to the AT, enhanced cooperation can be developed both outside and within the EU framework. • The Treaty itself developed 2 enhanced cooperation in PJC: - UK, IRL and DK do not participate in issues of migration, visa and civil cooperation; - UK and IRL do not participate in Schengen. • Enhanced cooperation outside the EU framework is the Prüm Treaty (meanwhile incorporated by Council Decision of 23 June 2008).

  29. Passerelle technique • Art. 42 TEU maintains the passerelle. • It applies to any matters covered by Title VI; i.e. it is extended to police cooperation and judicial cooperation in criminal matters. • It requires unanimity. • Never used. It prospects, however, the goal of future communitarisation.

  30. Limited changes introduced by the Nice Treaty • Art. 31 TEU is the legal basis for Eurojust. • Simplifying the rules on enhanced cooperation (either on a proposal of the Commission or on the initiative of at least eigth Member States).

  31. Tampere and Hague Programmes • 15-16.10.1999: First JHA Council adopting the Tampere Conclusions according to whichmutual recognition should be the coernerstone of judicial cooerpation in both civil and criminal matters. • 2004: Hague Programme is devoted to boosting operational action and cooperation, exchange of personal data for police purposes and proclaims the principle of availability for police cooperation.

  32. Characteristics and achievements of international cooperation based on the AT: • Large number of framework decisions. • Acts representative of the concept of an „EU criminal justice area” (mutual recognition, eg. EAW, JITs). • Political impetus marked by JHA programmes and actions plans for the development of EU criminal law. • Diversification of goals: • Crime prevention • Rights of victims.

  33. Essential contribution of the ECJ • 3 types of rulings linked to the developement of hte AFSJ. 1.) Rulings related to the conflicts of legal basis between the first and the third pillars (e.g. Environmental case) 2.)Preliminary rulings related to some approximating FDs (e.g. Pupino) 3.) Preliminary rulings related to MR instruments, - ne bis in idem jurisprudence - EAW jurisprudence.

  34. However… • resistances to the building of a real “European criminal justice area ”: see difficult negotiations of some MR initiatives and decrease of ambitions, delays in adopting the necessary internal transposing measures (including the 2002 FD on EAW) • Resistances to reduce the general imbalance between the sword and shield functions of EU penal law (see especially, the difficulties encountered to develop other concerns than fight against crime – for example rejection of the Commission’s proposal of FD on procedural guarantees) AW and RG - Summer School 2014

  35. 4. Since 2009: The “communitarisation” of the Area of Freedom, Security and Justice

  36. The difficult birth of the Lisbon Treaty • 2001 Laeken Declaration  Convention on the future of the EU  Draft Treaty establishing a Constitution for Europe presented in July 2003. • IGC 2004  Treaty establishing a Constitution for Europe (adopted by the European Council on 17-18 June 2004 and signed on 29 October 2004) • Spring 2005: negative referendums in France and NL • Spring/Summer 2007: under the German presidency and linked to the 50th anniversary of the Rome Treaty the European Council agreed to a new IGC mandate • ICG 2007: Lisbon Treaty is adopted by the European Council on 18 October 2007 and signed on 17 December 2007 • 13 June 2008: negative referendum in Ireland • 2 October 2009: positive referendum in Ireland • 1 December 2009: entry into force of the Lisbon Treaty!

  37. The Lisbon Treaty (1.12.2009) • EU Justice and Home Affairs was a central topic in the negotiations of the Lisbon Treaty • Important provisions concerning the global aim (Art. 3 TEU)... • ...and the objectives of such AFSJ (Art. 67 TFEU) Respect of fundamental rights (and legal systems and traditions) No border controls High level of security

  38. Major changes by the Lisbon Treaty • abolition of the pillar structure • Police and criminal judicial cooperation under the community method • Co-decision between Council (majority voting) and EP in most areas • Legislation through regulations and directives (direct effect!) • full jurisdiction of the ECJ • preliminary rulings • infringement proceedings • EC principles (subsidiarity and proportionality) apply to the AFSJ • Why can it be better achieved at supranational level? • Art. 6 TEU • New legal value of the EU Charter of Fundamental Rights • Accession to the European Convention on Human Rights

  39. “Trialog” post Lisbon • Ordinary legislative procedure • Co-decision between Council and EP • National parliaments are empowered to consider whether proposals in criminal justice and judicial cooperation comply with subsidiarity (Art. 69 TFEU) • Shared initiative between COM and MS (Art. 76 TFEU) • Emergency brake (Art. 82(3) and Art. 83(3))

  40. Correction of the 4 institutional weaknesses of the ex 3rd pillar: • Complexity of the framework for cooperation • abolition third pillar • Lack of efficiency of the decisional process • no unanimity in the Council • Weak effectiveness of EU criminal law • direct effect • infringement proceedings • Deficit of legitimacy • democratic • jurisdictional

  41. Remaining intergovernmental elements • Respect for the diversity of national legal systems • Emergency brake procedure (Art. 82(3) and 83(3)) • MS retain some right of initiative (shared with the Commission) • Unanimity is required to expand Community competence in criminal matters and for operational cooperation (EPP)

  42. Opt ins and opt outs • Pre Lisbon • no uniform geographic application of law in the AFSJ (see Schengen and Prüm) • Post Lisbon • Transitional period of 5 years (1 Dec 2014) • DK, UK and IRL opted out from certain Schengen measures • RO, BG and Cyprus are not yet full members of SIS and all Schengen provisions • UK and IRL do not participate to measures adopted in the AFSJ as of 1 Dec 2009, but may opt in. • DK is excluded from pre-Lisbon third pillar measures and post Lisbon “third pillar” measures. • Enhanced cooperation.

  43. EU competences after Lisbon • Shared competence between the EU and MS i.e. MSs retain their competence as long as the EU has not acted or ceased to act • Areas of competence • Art. 82 TFEU i) judicial cooperation in criminal matters ii) general competence for harmonisation • Art. 83 TFEU i) genuine competence for substantive criminal law iI) ancillary competence for the approximation • Art. 325 TFEU and Art. 86 TFEU (PIF); Art. 33 TFEU customs etc. • European law enforcement bodies (Art. 84-85-86) • Framework for police cooperation (Art. 87-89)

  44. Art. 82 (procedural criminal law) • Para. 1: • Cross-border dimension • Measures for cooperation • Measures for mutual recognition • Para. 2: • Directives establishing minimum rules (approximation) • Only if necessary for mutual recognition • Taking into account different legal traditions and systems • Listed aspects (but may be extended by unanimity with EP)

  45. Art. 83 (substantive criminal law) • Directives • Minimum rules concerning the definition of offences and sanctions • Para 1: cross-border dimension “resulting from the nature or impact of such offences or from a special need to combat them on a common basis” - initial list may be extended by unanimity with EP consent • Para 2: Or “essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures”

  46. Art. 325(4) TFEU • Protection of financial interests of the EU • Difference with previous Art. 280(4) TEC • A stricto sensu EU criminal law?

  47. EU criminal justice actors • Strengthening of Eurojust (85 TFEU) • Possibility to confer binding powers as to initiation of criminal investigations, coordination of investigations, and resolution of conflicts of jurisdiction • Establishment of a European Public Prosecutor Office (86 TFEU)

  48. The Stockholm Programme (11.12.2009) • Political priority: to balance between guaranteeing fundamental rights and providing for security • Evaluation and implementation of existing instruments • Increase coherence and quality of regulation • Put in place mutual trust building measures (e.g. procedural rights, training of practitioners, etc.) • Adopt measures to facilitate the mutual admissibility of evidence (EIO, EEW2) • Adopt harmonised definitions of certain offences • Strengthen the external aspect of the EU penal area

  49. Assessment of the Post-Lisbon • Approximation of procedural law • Implementation of the Roadmap with a view to fostering protection of suspected and accused persons in criminal proceedings • Directive of 20 October 2010 on the right to interpretation and translation in criminal proceedings; • Directive 22 May 2012 on the right to information in criminal proceedings (letter of rights) • Directive of 22 October 2013 on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest (see Salduz) • Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural s • Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection • Other proposals (legal aid..) • Directive of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime

  50. Approximation of substantive criminal law: • Directive of 21 March 2011 on trafficking of human beings • Directive of 13 December 2011 on sexual exploitation of children • Directive of 12 August 2013 on attacks against information systems • Directive of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union • Directive of 16 April 2014 on criminal sanctions for insider dealing and market manipulation • Directive of 15 May 2014 on the protection of the euro and other currencies against counterfeiting by criminal law • Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, • Other initiatives • Proposal for a Directive on the fight against fraud to the Union’s financial interests by means of criminal law • Proposal for a Directive of the European Parliament and of the Council on combating terrorism

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