The jurisdiction of Court of Justice over the European penal area

1. The jurisdiction of Court of Justice over the European penal area Prof. Dr. Stefan Braum University of Luxembourg May 2011

2. The jurisdiction of the Court under the new treaties Three new procedures in the field of police and judicial cooperation in criminal matters : • Actions for failure to act, art. 265 TFEU • Actions for failure to fulfill obligations, art. 258 – 260 TFEU • Action actions for compensation based on non-contractual liability, art. 268 TFEU

3. An extended jurisdiction: Action for annulement, art. 263 TFEU • Extended category of acts: • legislative acts • acts of the Council, Commission, Parliament and European Council intended to produce legal effects vis-à-vis third parties • acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties  Europol, Eurojust • New appellants: • European Parliament • Individuals may challenge a regulatory act which is of direct concern to them and does not entail implementing measures (even if the person is not individually concerned)

4. Preliminary ruling, art. 267 TFEU • Jurisdiction to give preliminary ruling becomesbinding: • Member States do not need to accept the jurisdiction of the Court, neither they can limit the possibility of referring for a preliminary ruling to the national courts against whose decisions there is no judicial remedy. • Still some exceptions: opt-in and opt-out Member States • The decision of referring to the CJ taken by national courts is: • A faculty, if national judge considers that a decision on the question is necessary to enable him to give judgment • A duty for the courts against whose decisions there is no judicial remedy under national law.

5. A specific procedure for criminal matters: Urgent preliminary ruling art. 104b of the Rules of Procedures of the Court of justice • Exclusively in the area of freedom, security and justice … … in the case of a person in custody or deprived of his liberty (Art. 267 TFEU) • Requested by a domestic court or, in exceptional circumstances, by the ECJ ex officio • Special chamber for handling JHA references (5 judges) decides whether the reference shall be handled under the urgent procedure • In case of positive answer, deadlines for the submission of statements and written observation. In case of extreme urgency, the written part of the procedure may be omitted • On average 3 months instead of 18 months

6. But stillsomesignificant limitations: • No jurisdiction with respect to the provisions relating to the common foreign and security policy nor with respect to acts adopted on the basis of those provisions (art. 275 TFEU) • no jurisdiction to review the validity or proportionality of operations carried out by the policeor other law-enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security (art. 276 TFEU) N.b.: transitional provisions 5 yearsafter the entry into force of the new treaties, art. 35 EU in the version before the treaty of Lisbonenteredinto force stillapply

7. Case-law of the Court of Justice: someexamplesrelating to the protection of FundamentalRights • The ne bis in idem principle • Anti-terrorismmeasures: the Kadi case, C-402/05 P and C-415/05P • Judicialreview over EU penalactors: the Eurostat case, T-48/05

8. The ne bis in idem principle Art. 54 CISA ; art. 50 of the Charter of Fundamental Rights Cases C-187/01 and C-385/01, Gözütok and Brügge • Member States have mutual trustin their criminal justice systems and each of them recognizes the criminal law in force in the other Member States even when the outcome would be different if its own national law were applied. • This argumentation is legitimized by the objective of maintaining and developing the European Union as an area of freedom, security and justice in which the free movement of personsis assured.

9. “Ne bis …” → the notion of “finally disposed” • Gözütok and Brügge, Cases C-187/01 and C-385/01: art. 54 CISA applies to the procedure by which the prosecution decides to discontinue criminal proceedings against a person once he has fulfilled certain obligations, e.g. the prosecutor offers a compromise • Bourquaim, Case C-297/07 : Judgemets rendered in absentiafall within the scope of article 54 CISA under the condition that there has been a final disposal of the trial by a Member State. Ne bis in idem principle applies even though the sentence could never have been directly enforced under the law of the State in which the person was convicted. • Gasparini and Others, Case C‑467/04 : Ne bis in idem applies in respect of a decision of a court by which the accused is acquitted finally because prosecution of the offence is time-barred.

10. Turansky , Case C-491/07 : a decision of a police authority which, while suspending criminal proceedings, does not under the national law concerned definitively bring the prosecution to an end, cannot constitute a decision which would make it possible to conclude that the trial of that person has been ‘finally disposed”. • Mantello,Case C-261/09 (ne bis in idem as a ground for refusal of the EAW): when the issuing judicial authority expressly stated that the earlier judgment delivered under its legal system did not constitute a final judgment covering the acts referred to in the arrest warrant issued by it and therefore did not preclude the criminal proceedings referred to in that arrest warrant, the executing judicial authority has no reason to apply the ground for mandatory non-execution provided for in Article 3(2) of the Framework Decision.

11. → Sentence served, currently served, no longer be carried out • Kretzinger, Case C-288/05 : suspended custodial sentence and pre-trial or provisional detention can not be regarded as complying with the conditions of art. 54 CISA. However they should take into account in the subsequent enforcement of any custodial sentence.

12. “…in idem” → “same acts” • Van Esbroeck, Case C‑436/04 : The only relevant criterion for the application of Article 54 of the CISA is identity of the material acts, understood in the sense of the existence of a set of concrete circumstances which are inextricably linked together • Van Straaten, Case C‑150/05 : irrespective of the legal classification given to them or the legal interest protected • Norma Kraaijenbrink, Case C‑367/05 : different acts consisting, in particular, first, in holding in one Contracting State the proceeds of drug trafficking and, second, in the exchanging at exchange bureaux in another Contracting State of sums of money also originating from such trafficking should not be regarded as ‘the same acts’ within the meaning of that article merely because the competent national court finds that those acts are linked together by the same criminal intention;

13. Anti-terrorismmeasures : the Kadi case, C-402/05 P and C-415/05 P • ECJ jurisdiction over European acts implementing anti-terrorism measures adopted by the UN Security Council • The EC is based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid review of the conformity of their acts with the basic constitutional charter, the EC Treaty, which established a complete system of legal remedies and procedures designed to enable the Court of Justice to review the legality of acts of the institutions. • An international agreement cannot affect the allocation of powers fixed by the Treaties or the autonomy of the Community legal system, observance of which is ensured by the Court by virtue of the exclusive jurisdiction conferred the treaties, jurisdiction that the Court has, moreover, already held to form part of the very foundations of the Community (pt. 281-282).  The review of lawfulness is ensured by the CJ and applies to the Community act intended to give effect to the international agreement at issue and not to the latter as such (pt 286-288).

14. Fundamental rights • International agreements are to be binding on the institutions of the Community and on Member States. However their primacy would not extend to primary law of the EC • In particular, fundamental rights form an integral part of the general principles of law (primary law) whose observance the Court ensures • Respect for human rights is a condition of the lawfulness of Community acts and measures incompatible with respect for human rights are not acceptable in the Community. • The obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect fundamental rights, that respect constituting a condition of their lawfulness which it is for the Court to review in the framework of the complete system of legal remedies established by the Treaty ( pt 283-285).

15. The CJ must ensure the review, in principle the full review, of the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of the general principles of Community law, including review of Community measures which, like the contested regulation, are designed to give effect to the resolutions adopted by the Security Council of the United Nations (pt 326). → Breach of the right to be heard, rights of defence and right to effective remedy

16. Review over EU penalactors: theEurostat case Franchet and Byk vs. Commission, Case T-48/05 • Jurisdiction for reviewing the way in which OLAF conducted and completed an investigation  admissibility of the action for compensation even if national criminal proceedings are still pending. • Rights to be informed (violation):   • the ‘information’ forwarded to the national judicial authorities for the purpose of prosecuting the applicant contains ‘conclusions referring by name’ to the them • balance between the rights of defence of the official concerned and the requirements of confidentiality • margin of discretion on OLAF in cases necessitating the maintenance of absolute secrecy for the purposes of the investigation. However, no discretion as regards the procedures for the adoption of the decision to defer informing the officials concerned

17. Presomption of innocence (violation): • the administration must avoid giving the press information concerning proceedings which might damage the official concerned and take all necessary measures to prevent any form of dissemination of information which might be defamatory of that official • individuals are entitled to expect that the investigations concerning them will be conducted in a manner that respects their fundamental rights. • by leaking information, OLAF breached the principle of the presumption of innocence, as well as the obligation to maintain the confidentiality of investigations. • by provoking the disclosure in the press of sensitive elements of the investigations, OLAF acted against the interests of sound administration in so far as it enabled the public at large to have access, during the investigation procedure, to confidential information of the administration • it is for OLAF to ensure that such leaks, which breach the fundamental rights of the persons concerned do not take place, as the administration has no margin of discretion with respect to compliance with that obligation

18. Future perspectives • To whatextent the CJ must ensure the effective judicial protection of individualswhithin the Europeanpenal area? See the case Ullens de Schooten v. Belgiumpending in front of the ECHR • Whatrole for the CJ in the protection of fundamentalrights ? Towards a competitionbetweenEuropeanjudgesafter the EU accession to the ECHR ? • Quid of a Europeancriminaljurisdiction? • A preliminarychamberfor the European Public Prosecutor • A specialised court according to art. 257 TFEU