EU Criminal Law 9781849464581, 9781474203401, 9781509904167

Table of contents :
Preface
Contents
Table of Cases
1. History, Principles and Institutions The Constitu tionalisation of EU Criminal Law
I. Introduction
II. Background: The Community and Criminal Law before Maastricht
III. The Third Pillar: The Institutional Framework
IV. The Third Pillar and the Constitutional Principles of the Community: The Contribution of the Court of Justice
V. The Politics of the Third Pillar: Member States’ Security Ambitions versus Institutional Checks and Limits
VI. The Lisbon Treaty and the Constitutionalisation of EU Criminal Law: Institutions, Principles and Rights
VII. Legal Basis Disputes and Contested Competence
VIII. Sovereignty Concerns and the Persistence of National Diversity
IX. The Interplay between EU Criminal Law and Upholding the Rule of Law
X. Conclusion
2. Substantive Criminal Law From Securitised to Functional Criminalisation
I. Introduction
II. Before Lisbon: The Interplay between Community Law and National Criminal Law
III. The Constitutional Politics of Criminalisation before Lisbon: The Competence Question
IV. EU Competence to Criminalise after Lisbon: Securitised and Functional Criminalisation
V. The Relationship between Criminal and Administrative Law
VI. Extending EU Competence to Criminalise Elsewhere in the Treaty
VII. Contesting EU Competence in Substantive Criminal Law: The Lissabon-Urteil
VIII. Policy Responses to the EU Competence to Criminalise after Lisbon
IX. EU Criminalisation Challenges and Prospects for Law Reform
X. Conclusion
3. Ne Bis in Idem and Conflicts of Jurisdiction
I. Introduction
II. Legislation on Ne Bis in Idem at the European Level
III. Transnational Ne Bis in Idem: Scope and Content
IV. Concurrent Jurisdiction
V. Application of Ne Bis in Idem to Criminal and Administrative Proceedings Concerning the Same Facts
VI. Conclusion
4. Mutual Recognition and Mutual Trust
I. Introduction
II. Mutual Recognition and Mutual Trust: Origins and Legal Architecture
III. Mutual Trust, Legality and Dual Criminality: From Advocaten voor de Wereld to Grundza
IV. Mutual Trust, Fundamental Rights and Proportionality: Radu
V. Mutual Trust and the Primacy and Autonomy of EU Law: From Melloni to Opinion 2/13
VI. Mutual Trust as a Challenge to Fundamental Rights and Constitutional Identity: The Response from the ECtHR and National Constitutional Courts
VII. A Paradigm Change by the Court of Justice: The Dialogical and Interactive Model of Scrutinising Mutual Trust in Aranyosi
VIII. Aranyosi as a Catalyst for Calm in the Battle for Authority and Primacy
IX. Contesting the Parameters of Mutual Trust after Aranyosi: Fundamental Rights
X. Contesting the Parameters of Mutual Trust after Aranyosi: The Rule of Law
XI. Mutual Trust through a Judicially Developed Level Playing Field: Autonomous Concepts
XII. Conclusion
5. Legislating for Human Rights The EU Legal Framework on the Rights of Individuals in Criminal Proceedings
I. Introduction
II. The Rocky Road towards EU Law on the Rights of the Defendant before Lisbon
III. The Lisbon Breakthrough: The Emergence of an Express EU Competence to Legislate on Criminal Procedure
IV. The Renewed Momentum towards EU Procedural Rights in the Light of Lisbon
V. The Content of EU Procedural Rights
VI. The Relationship between EU Secondary Law on Defence Rights and National Law
VII. The Relationship of EU Secondary Law with the ECHR and the Charter
VIII. Enhancing Defence Rights through Effective Enforcement
IX. Effectiveness through Interpretation: Autonomous Concepts
X. Conclusion: Towards a Paradigm Change in Europe’s Area of Criminal Justice
6. The Place of the Victim in Europe's Area of Criminal Justice
I. Introduction
II. Victims' Rights in EU Criminal Law: A Typology
III. The Place of the Victim in Europe's Area of Criminal Justice: Constitutional Implications
IV. The Impact of EU Law on Victims' Rights on National Criminal Justice Systems
V. The Impact of Victims' Rights on Justice in Europe
VI. Conclusion
7. The Uneasy Relationship between EU Criminal Law and Citizenship of the EU
I. Introduction
II. Citizenship in EU Criminal Law
III. EU Criminal Law in EU Citizenship
IV. Conclusion: Towards a Paradigm Change in Citizenship and EU Criminal Law
8. Bodies, Offices and Agencies
I. Introduction
II. Europol
III. Eurojust
IV. OLAF
V. The EPPO
VI. Other Bodies: Counter-terrorism, Migration, Informality and the Legacy of 'Cross-Pillarisation'
VII. Inter-agency Cooperation
VIII. Controlling Bodies by Other Bodies and Agencies
IX. Conclusion: Extending the Field of Enforcement in the EU?
9. Databases
I. Introduction
II. Centralised Databases
III. Decentralised Mechanisms of Data Exchange Amongst National Authorities
IV. The Privatisation of Information Exchange
V. Privacy and Protection of Personal Data in the Post-Lisbon Era
VI. Conclusion: What is the Future for Privacy and Data Protection in an Era of Security?
10. The EU and the Global Governance of Crime
I. Introduction
II. Governing Crime via Global Multilateral Treaties: The EU and the UN
III. Governing Crime via Regional Multilateral Treaties: The EU and the Council of Europe
IV. Governing Crime via 'Soft' Law: The EU and the FATF
V. Governing Crime via 'Global Administrative Law': The EU and the UN Security Council
VI. Globalisation of Criminal Law through Synergy between 'Hard' Law, 'Soft' Law, 'Global Administrative Law' and Supranational Law: The Case of 'Foreign Fighters'
VII. Conclusion
11. The External Dimension of Mutual Trust Transatlantic Counter-terrorism Cooperation
I. Introduction
II. Transatlantic Counter-terrorism Cooperation: A Typology of EU–US Agreements and their Impact on European Values
III. The Quest for Mutual Trust in Transatlantic Counter-terrorism Cooperation
IV. Conclusion
12. EU Criminal Law after Brexit
I. Introduction
II. Before Brexit: The Ambivalent Relationship between the UK and European Criminal Law
III. The Run-up to Brexit: Political versus Operational Considerations
IV. After Brexit: The EU-UK Trade and Cooperation Agreement
V. Conclusion
Bibliography
Index

Citation preview

EU CRIMINAL LAW Second Edition This is the second edition of EU Criminal Law which, since its initial publication in 2009, has become a key point of reference in the field. The second edition is updated and substantially expanded to take into account the significant growth of EU criminal law as a distinct legal field and the impact of the entry into force of the Lisbon Treaty on European integration in criminal matters. The book offers a holistic and in-depth analysis of the key elements of European integration in criminal matters, including EU powers and competence to criminalise, the evolution of judicial co-operation under the principles of mutual recognition and mutual trust, EU action in the field of criminal procedure including legislation on the rights of the defendant and the victim, the evolving role of European bodies and agencies (such as Europol, Eurojust and the European Public Prosecutor’s Office), the development of EU-wide surveillance mechanisms, and the external (including post-Brexit) dimension of EU criminal law. Covering all aspects of EU criminal law, with clear explanation and rigorous analysis, this book will give scholars, students, policy makers and legal practitioners interested in the subject a strong understanding of this fascinating but complex field. Volume 110 in the Series Modern Studies in European Law

Modern Studies in European Law Recent titles in this series: Sixty Years of European Integration and Global Power Shifts: Perceptions, Interactions and Lessons Edited by Julien Chaisse Fundamental Rights and Mutual Recognition in the Area of Freedom, Security and Justice: A Role for Proportionality? Ermioni Xanthopoulou Law and Judicial Dialogue on the Return of Irregular Migrants from the European Union Edited by Madalina Moraru, Galina Cornelisse and Philippe De Bruycker Framing Convergence with the Global Legal Order: The EU and the World Edited by Elaine Fahey EU Citizenship at the Edges of Freedom of Movement Katarina Hyltén-Cavallius The Internal Market 2.0 Edited by Sacha Garben and Inge Govaere New Directions in European Private Law Edited by Mateja Durovic and Takis Tridimas Standing to Enforce European Union Law before National Courts Hilde Ellingsen The Relative Authority of Judicial and Extra-Judicial Review: The EU Courts, the Boards of Appeal and the Ombudsman Michal Krajewski Responsive Human Rights: Vulnerability and the ECtHR Corina Heri The Architecture of Fundamental Rights in the European Union Šejla Imamovic The EU and its Member States’ Joint Participation in International Agreements Edited by Nicolas Levrat, Yuliya Kaspiarovich, Christine Kaddous and Ramses A Wessel The UN Convention on the Rights of Persons with Disabilities and the European Union: The Impact on Law and Governance Carmine Conte EU Criminal Law, Second Edition Valsamis Mitsilegas For the complete list of titles in this series, see www.bloomsbury.com/uk/series/modern-studies-in-european-law

EU Criminal Law Second Edition

Valsamis Mitsilegas

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA 29 Earlsfort Terrace, Dublin 2, Ireland HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2022 Copyright © Valsamis Mitsilegas, 2022 Valsamis Mitsilegas has asserted his right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2022. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Library of Congress Control Number: 2021952796 ISBN: HB: 978-1-84946-458-1 ePDF: 978-1-50990-416-7 ePub: 978-1-50990-417-4 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

PREFACE This book comes more than a decade after the publication of its first edition, EU Criminal Law, in 2009. Since then, a lot has changed. The entry into force of the Lisbon Treaty has led to the normalisation, or as I argue constitutionalisation, of EU criminal law, moving from the pre-Lisbon intergovernmental institutional framework to the ordinary constitutional framework of EU law. It can be said that EU criminal law has since come of age. The EU has acted on a number of new and important areas of competence – legislating on defence rights and the establishment of a European Public Prosecutor’s Office (EPPO) are key examples in this regard. Moreover, the operation of EU criminal law on the ground, most notably through the application of the principle of mutual recognition in criminal matters and in particular through the emblematic European Arrest Warrant system, has raised a number of questions on the relationship between EU criminal law and the citizen, the protection of fundamental rights and the rule of law, leading to a growing and important body of case law in the Court of Justice of the European Union, and increasingly in the European Court of Human Rights and in national courts. In this manner, EU criminal law questions become essentially constitutional questions which necessitate answers in order to define the fundamental rights and rule of law benchmarks in the European Union and its Member States. And of course, Brexit has happened. This second edition takes full account of these developments. The number of chapters has doubled in size compared to the first edition (there are 12 chapters in this edition). All chapters in the first edition have been substantially revised and expanded. There are now three chapters devoted to external relations ­(Chapters 10–12), including a chapter specifically devoted to Brexit. The chapter on mutual recognition is now accompanied by three new chapters on defence rights, the rights of victims, and EU criminal law and EU citizenship (Chapters 5–7). The chapter on agencies now includes a detailed analysis of the establishment of the EPPO. And there is now a specific chapter on ne bis in idem and conflicts of jurisdiction. I would like to take this opportunity to thank a number of friends and colleagues for their support and input in developing this second edition, and my ideas and arguments on EU criminal law more broadly. Sinead Moloney and her colleagues at Hart Publishing have shown unwavering support and patience during the completion of this volume. I would also like to thank them for their stellar work and commitment towards the development of the Hart Studies on European Criminal Law series, which has succeeded in publishing cutting-edge scholarship in the field and, like the first edition of this book and hopefully this edition, has contributed to defining EU criminal law as a distinct and dynamic academic discipline. I would also like to thank Jon Lloyd for outstanding copyediting on this very demanding second edition – his care and attention to the clarity and consistency of the manuscript have been exemplary.

vi  Preface This book further owes a lot to the work, ideas and commitment of academic, s­ cholarly and policy communities working in the field of EU criminal law. The European Criminal Law Academic Network (ECLAN) is a prime example of such an academic community. I have benefited enormously from my interactions with colleagues in ECLAN and would like to thank my colleagues and friends on the Management Committee, including Pedro Caeiro and my ECLAN fellow coordinators Katalin Ligeti and Anne Weyembergh, for their generosity, spirit and unparalleled insights into the field. Ideas and arguments in this volume have also developed through interactions and dialogue with scholars and students in a number of institutions across Europe, which have emerged as hubs for advanced and innovative thinking in the field of EU criminal law. I would like to take this opportunity to salute colleagues at the Universities of Bologna, Catania, Coimbra, Ferrara, Luxembourg, Paris (Paris 1 Panthéon Sorbonne), Thessaloniki, ULB, Uppsala and the European University Institute for their engagement with EU criminal law, and I thank them for the opportunities given to me to present and discuss ideas and arguments with outstanding colleagues and students. I have also benefited from discussions with colleagues at the European Commission’s Expert Group on EU Criminal Policy. Last, but not least, I would like to pay tribute to the positive impact my interaction with students and early career researchers has had on the development of this volume. The time since the first edition of this volume saw the launch of the annual PhD conference of ECLAN, which gives scholars and research students the opportunity to discuss cutting-edge issues in EU criminal law. I have benefited enormously from organising and participating in these events and engaging with the ideas of early career researchers, who are arguably the future of EU criminal law. I would also like to thank in particular my Queen Mary LLM students on EU criminal law, discussions with whom always help to focus the mind, and the outstanding cohort of Queen Mary PhD students working in the field. Clementina Salvi provided excellent editorial support during the finalisation of the manuscript. It is an honour for me that two of my former PhD students – now alumni with outstanding career trajectories who have already established their own stellar reputations in the field – have worked with me to develop parts of this volume: Dr Fabio Giuffrida, now Policy Officer, Directorate-General for Justice and Consumers at the European Commission, who co-authored the chapters on agencies and ne bis in idem with me, and Dr Niovi Vavoula, now Lecturer in Migration and Security at Queen Mary, who co-authored the chapter on databases with me and provided excellent research assistance during earlier stages of the development of this volume. The usual disclaimers, of course, apply. The volume takes into account developments up to August 2021. Valsamis Mitsilegas London, August 2021

CONTENTS Preface���������������������������������������������������������������������������������������������������������������������������������������� v Table of Cases���������������������������������������������������������������������������������������������������������������������������xi 1. History, Principles and Institutions: The Constitutionalisation of EU Criminal Law������������������������������������������������������������������������������������������������������������1 I. Introduction��������������������������������������������������������������������������������������������������������� 1 II. Background: The Community and Criminal Law before Maastricht����������� 1 III. The Third Pillar: The Institutional Framework������������������������������������������������ 5 IV. The Third Pillar and the Constitutional Principles of the Community: The Contribution of the Court of Justice�������������������������������� 17 V. The Politics of the Third Pillar: Member States’ Security Ambitions versus Institutional Checks and Limits����������������������������������������������������������� 24 VI. The Lisbon Treaty and the Constitutionalisation of EU Criminal Law: Institutions, Principles and Rights������������������������������������������������������������������� 29 VII. Legal Basis Disputes and Contested Competence����������������������������������������� 47 VIII. Sovereignty Concerns and the Persistence of National Diversity��������������� 67 IX. The Interplay between EU Criminal Law and Upholding the Rule of Law��������������������������������������������������������������������������������������������������������� 77 X. Conclusion���������������������������������������������������������������������������������������������������������� 87 2. Substantive Criminal Law: From Securitised to Functional Criminalisation������������89 I. Introduction������������������������������������������������������������������������������������������������������� 89 II. Before Lisbon: The Interplay between Community Law and National Criminal Law�������������������������������������������������������������������������������������� 90 III. The Constitutional Politics of Criminalisation before Lisbon: The Competence Question������������������������������������������������������������������������������� 95 IV. EU Competence to Criminalise after Lisbon: Securitised and Functional Criminalisation����������������������������������������������������������������������������114 V. The Relationship between Criminal and Administrative Law�������������������120 VI. Extending EU Competence to Criminalise Elsewhere in the Treaty��������121 VII. Contesting EU Competence in Substantive Criminal Law: The Lissabon-Urteil������������������������������������������������������������������������������������������125 VIII. Policy Responses to the EU Competence to Criminalise after Lisbon�����127 IX. EU Criminalisation Challenges and Prospects for Law Reform���������������130 X. Conclusion��������������������������������������������������������������������������������������������������������146

viii  Contents 3. Ne Bis in Idem and Conflicts of Jurisdiction�������������������������������������������������������������148 Valmasis Mitsilegas and Fabio Giuffrida I. Introduction�����������������������������������������������������������������������������������������������������148 II. Legislation on Ne Bis in Idem at the European Level����������������������������������150 III. Transnational Ne Bis in Idem: Scope and Content��������������������������������������152 IV. Concurrent Jurisdiction����������������������������������������������������������������������������������171 V. Application of Ne Bis in Idem to Criminal and Administrative Proceedings Concerning the Same Facts������������������������������������������������������180 VI. Conclusion��������������������������������������������������������������������������������������������������������191 4. Mutual Recognition and Mutual Trust����������������������������������������������������������������������196 I. Introduction�����������������������������������������������������������������������������������������������������196 II. Mutual Recognition and Mutual Trust: Origins and Legal Architecture�������������������������������������������������������������������������������������������196 III. Mutual Trust, Legality and Dual Criminality: From Advocaten voor de Wereld to Grundza������������������������������������������������202 IV. Mutual Trust, Fundamental Rights and Proportionality: Radu����������������207 V. Mutual Trust and the Primacy and Autonomy of EU Law: From Melloni to Opinion 2/13������������������������������������������������������������������������212 VI. Mutual Trust as a Challenge to Fundamental Rights and Constitutional Identity: The Response from the ECtHR and National Constitutional Courts��������������������������������������������������������������218 VII. A Paradigm Change by the Court of Justice: The Dialogical and Interactive Model of Scrutinising Mutual Trust in Aranyosi��������������223 VIII. Aranyosi as a Catalyst for Calm in the Battle for Authority and Primacy������������������������������������������������������������������������������������������������������226 IX. Contesting the Parameters of Mutual Trust after Aranyosi: Fundamental Rights����������������������������������������������������������������������������������������230 X. Contesting the Parameters of Mutual Trust after Aranyosi: The Rule of Law������������������������������������������������������������������������������������������������235 XI. Mutual Trust through a Judicially Developed Level Playing Field: Autonomous Concepts������������������������������������������������������������������������������������242 XII. Conclusion��������������������������������������������������������������������������������������������������������252 5. Legislating for Human Rights: The EU Legal Framework on the Rights of Individuals in Criminal Proceedings����������������������������������������������������������������������254 I. Introduction�����������������������������������������������������������������������������������������������������254 II. The Rocky Road towards EU Law on the Rights of the Defendant before Lisbon���������������������������������������������������������������������255 III. The Lisbon Breakthrough: The Emergence of an Express EU Competence to Legislate on Criminal Procedure���������������������������������257 IV. The Renewed Momentum towards EU Procedural Rights in the Light of Lisbon��������������������������������������������������������������������������259 V. The Content of EU Procedural Rights����������������������������������������������������������260 VI. The Relationship between EU Secondary Law on Defence Rights and National Law���������������������������������������������������������������������������������������������284

Contents  ix VII. The Relationship of EU Secondary Law with the ECHR and the Charter��������������������������������������������������������������������������������������������������������287 VIII. Enhancing Defence Rights through Effective Enforcement����������������������289 IX. Effectiveness through Interpretation: Autonomous Concepts������������������292 X. Conclusion: Towards a Paradigm Change in Europe’s Area of Criminal Justice�����������������������������������������������������������������������������������������������294 6. The Place of the Victim in Europe’s Area of Criminal Justice������������������������������������296 I. Introduction�����������������������������������������������������������������������������������������������������296 II. Victims’ Rights in EU Criminal Law: A Typology��������������������������������������297 III. The Place of the Victim in Europe’s Area of Criminal Justice: Constitutional Implications����������������������������������������������������������������������������305 IV. The Impact of EU Law on Victims’ Rights on National Criminal Justice Systems�������������������������������������������������������������������������������������������������308 V. The Impact of Victims’ Rights on Justice in Europe������������������������������������315 VI. Conclusion��������������������������������������������������������������������������������������������������������318 7. The Uneasy Relationship between EU Criminal Law and Citizenship of the EU����������������������������������������������������������������������������������������������������������������������320 I. Introduction�����������������������������������������������������������������������������������������������������320 II. Citizenship in EU Criminal Law�������������������������������������������������������������������320 III. EU Criminal Law in EU Citizenship�������������������������������������������������������������336 IV. Conclusion: Towards a Paradigm Change in Citizenship and EU Criminal Law���������������������������������������������������������������������������������������������346 8. Bodies, Offices and Agencies���������������������������������������������������������������������������������������349 Valsamis Mitsilegas and Fabio Giuffrida I. Introduction�����������������������������������������������������������������������������������������������������349 II. Europol��������������������������������������������������������������������������������������������������������������350 III. Eurojust�������������������������������������������������������������������������������������������������������������391 IV. OLAF�����������������������������������������������������������������������������������������������������������������419 V. The EPPO����������������������������������������������������������������������������������������������������������435 VI. Other Bodies: Counter-terrorism, Migration, Informality and the Legacy of ‘Cross-Pillarisation’������������������������������������������������������������������465 VII. Inter-agency Cooperation�������������������������������������������������������������������������������473 VIII. Controlling Bodies by Other Bodies and Agencies�������������������������������������475 IX. Conclusion: Extending the Field of Enforcement in the EU?��������������������477 9. Databases��������������������������������������������������������������������������������������������������������������������480 Valsamis Mitsilegas and Niovi Vavoula I. Introduction�����������������������������������������������������������������������������������������������������480 II. Centralised Databases�������������������������������������������������������������������������������������481 III. Decentralised Mechanisms of Data Exchange Amongst National Authorities����������������������������������������������������������������������������������������523 IV. The Privatisation of Information Exchange�������������������������������������������������548 V. Privacy and Protection of Personal Data in the Post-Lisbon Era��������������601 VI. Conclusion: What is the Future for Privacy and Data Protection in an Era of Security?��������������������������������������������������������������������������������������608

x  Contents 10. The EU and the Global Governance of Crime�����������������������������������������������������������612 I. Introduction�����������������������������������������������������������������������������������������������������612 II. Governing Crime via Global Multilateral Treaties: The EU and the UN�����������������������������������������������������������������������������������������613 III. Governing Crime via Regional Multilateral Treaties: The EU and the Council of Europe���������������������������������������������������������������627 IV. Governing Crime via ‘Soft’ Law: The EU and the FATF�����������������������������631 V. Governing Crime via ‘Global Administrative Law’: The EU and the UN Security Council�����������������������������������������������������������638 VI. Globalisation of Criminal Law through Synergy between ‘Hard’ Law, ‘Soft’ Law, ‘Global Administrative Law’ and Supranational Law: The Case of ‘Foreign Fighters’�������������������������������������655 VII. Conclusion��������������������������������������������������������������������������������������������������������656 11. The External Dimension of Mutual Trust: Transatlantic Counter-terrorism Cooperation�����������������������������������������������������������������������������������������������������������������658 I. Introduction�����������������������������������������������������������������������������������������������������658 II. Transatlantic Counter-terrorism Cooperation: A Typology of EU–US Agreements and their Impact on European Values����������������������659 III. The Quest for Mutual Trust in Transatlantic Counter-terrorism Cooperation��������������������������������������������������������������������663 IV. Conclusion��������������������������������������������������������������������������������������������������������691 12. EU Criminal Law after Brexit������������������������������������������������������������������������������������693 I. Introduction�����������������������������������������������������������������������������������������������������693 II. Before Brexit: The Ambivalent Relationship between the UK and European Criminal Law��������������������������������������������������������������������������693 III. The Run-up to Brexit: Political versus Operational Considerations���������698 IV. After Brexit: The EU–UK Trade and Cooperation Agreement�����������������702 V. Conclusion��������������������������������������������������������������������������������������������������������721 Bibliography������������������������������������������������������������������������������������������������������������������������724 Index���������������������������������������������������������������������������������������������������������������������������������������757

TABLE OF CASES ECJ, CJEU A v Staatsanwaltschaft Offenburg (Case C-9/16), ECLI:EU:C:2017:483, 21 June 2017��������������������������������������������������������������������������������������������������������������������522 A and Others (Staatsanwaltschaft Wien) (Case C-584/19), ECLI:EU:C:2020:1002, 8 December 2020�������������������������������������������������������������������251 Achughbabian v Prefet du Val-de-Marne (Case C-329/11), [2011] ECR I-12695, ECLI:EU:C:2011:807, 6 December 2011���������������������������������� 92 Advocaten voor de Wereld VZW v Leden van de Ministerraad (Case C-303/05) ECLI:EU:C:2006:552, A-G’s opinion, 12 September 2006�������������������������������������������������������������������������������������������������204, 206 Advocaten voor de Wereld VZW v Leden van de Ministerraad (Case C-303/05) [2007] ECR I-3633, ECLI:EU:C:2007:261, 3 May 2007������������������������������������������������������������������������������������������������ 11, 39, 201, 202, 203–6, 222, 321, 323 Afton Chemical Ltd v Secretary of State for Transport (Case C-343/09), [2011] 1 CMLR 16, ECLI:EU:C:2010:419, 8 July 2010����������������������������������������������564 AK and Others v Sąd Najwyższy, CP v Sąd Najwyższy and DO v Sąd Najwyższy (Independence of the Disciplinary Chamber of the Supreme Court) (Case C-585/18, C-624/18 and C-625/18) ECLI:EU:C:2019:982, 19 November 2019�������������������������������������������������������������������237 Åklagaren v Hans Åkerberg Fransson (Case C-617/10) ECLI:EU:C:2013:105, 26 February 2013���������������������������������������35, 36, 46, 47, 182–3, 185, 187, 193, 288, 318 Amsterdam Bulb BV v Produktschap voor Siergewassen (Case 50/76) [1977] ECR 137, [1977] 2 CMLR 218, ECLI:EU:C:1977:13, 2 February 1977��������������������������������������������������������������������������� 93 Aranyosi (Pál) and Căldăraru (Robert) v Generalstaatsanwaltschaft Bremen (Joined Cases C-404/15 and C-659/15 PPU) [2016] QB 921, [2016] 3 CMLR 13, 42 BHRC 551, ECLI:EU:C:2016:198 (Grand Chamber) 5 April 2016��������������������������������������� 17, 219, 223–5, 226, 227, 228, 230, 231, 234, 235, 236, 237, 238, 239, 240, 241, 242, 247, 251, 252, 284, 704 Ardic (Case C-571/17 PPU) ECLI:EU:C:2017:1026, 22 December 2017���������������������292 ASBL ‘Ligue des Droits Humains’ (Case C-817/19) (pending)��������������������������������������592 Asociaţia ‘Forumul Judecătorilor din Romania’ et al (Joined Cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19) ECLI:EU:C:2021:393, 18 May 2021���������������������������������������������������������������������������83–4

xii  Table of Cases Associacao Sindical dos Juizes Portugueses v Tribunal de Contas (ASJP) (Case-64/16) [2018] 3 CMLR 16, [2018] CEC 1216, ECLI:EU:C:2018:117, 27 February 2018��������������������������������������������236, 238, 240, 247 AY (Case C-268/17) ECLI:EU:C:2018:602, 25 July 2018������������������������������������������������160 Balaž (Case C-60/12) ECLI:EU:C:2013:733, 14 November 2013�����������������������������������310 Berlusconi, Adelchi, Dell’Utri and Others (Joint Cases C-387/02, C-391/02 and C-403/02) [2005] ECR I-3565, [2005] 2 CMLR 32, ECLI:EU:C:2005:270 (Grand Chamber), 3 May 2005������������������������24, 31, 94–5, 122 Bickel and Franz (Case C-274/96) [1998] ECR I-7637, [1999] 1 CMLR 348, ECLI:EU:C:1998:563, 24 November 1998�������������������������������������������� 92 Bob-Dogi (Case C-241/15) [2016] 1 WLR 4583, [2017] 3 CMLR 40, ECLI:EU:C:2016:385, 1 June 2016���������������������������������������������������������������� 17, 243, 248 Bonda (Case C-489/10) ECLI:EU:C:2011:845, A-G’s opinion, 15 December 2011���������������������������������������������������������������������������������������������������������182 Bonda (Case C-489/10) ECLI:EU:C:2012:319, 5 June 2012����������������������������� 181–2, 183, 185, 193, 278 Bouchereau (Pierre Roger) (Case 30/77) [1978] QB 732, [1977] ECR 1999, [1977] 2 CMLR 800, ECLI:EU:C:1977:172, 27 October 1977����������������������������������344 Bourquain (Case C-297/07) [2008] ECR I-9425, ECLI:EU:C:2008:708, 11 December 2008����������������������������������������������������������������������������157, 158, 165–6, 170 Bundesrepublik Deutschland (Notice Rouge d’Interpol) (Case C-505/19), [2021] 3 CMLR 26, ECLI:EU:C:2021:376, 12 May 2021�����������������������������������154, 158 Bundesrepublik Deutschland (Case C-222/20) (pending)���������������������������������������������592 Calfa (Case 48/96) [1999] ECR I-11, [1999] 2 CMLR 1138, ECLI:EU:C:1996:6, 19 January 1999������������������������������������������������������������������������������ 91 Casati (Guerrino) (Case C-203/80) [1981] ECR 2595, ECLI:EU:C:1981:261, 11 November 1981�������������������������������������������������������������������������������������������� 91, 92, 298 Commission v Council (Case C-176/03) ECLI:EU:C:2005:311, A-G’s opinion, 26 May 2005������������������������������������������������������������������������������������������102 Commission v Council (Case C-176/03) (Environmental Crime) [2005] ECR I-7879, [2005] 3 CMLR 20, ECLI:EU:C:2005:542, 13 September 2005���������������������������������������������������������������� 49, 100–102, 103, 104, 106, 111, 115, 117–8, 131 Commission v Council (Case C-91/05) [2008] ECR I-3651, [2008] 3 CMLR 5, ECLI:EU:C:2008:288, 20 May 2008���������������������������������������������111 Commission v Council (Case C-440/05) (Ship-Source Pollution) ECLI:EU:C:2007:393, A-G’s opinion, 28 June 2007��������������������������108, 110–112, 113 Commission v Council (Case C-440/05) (Ship-Source Pollution) [2007] ECR I-9097, [2008] 1 CMLR 22, ECLI:EU:C:2007:625 (Grand Chamber), 23 October 2007���������������������������������������������������������������������������� 49, 108–109, 110–112, 113, 115, 117 Commission v Council (Titanium Dioxide) (Case C-300/89) [1991] ECR I-2867, [1999] 3 CMLR 359, ECLI:EU:C:1991:244, 11 June 1991������������������������������������������������������������������������������������������������������� 57, 61, 308 Commission v Council (the Philippines case) (Case C-377/12), ECLI:EU:C:2014:1903 (Grand Chamber), 11 June 2014������������������������������������������696

Table of Cases  xiii Commission v European Central Bank (Case C-11/00) [2003] ECR I-7417, ECLI:EU:C:2003:395, 10 July 2003������������������������������������������������������������������������������420 Commission v European Investment Bank (Case C-15/00) [2003] ECR I-7281, ECLI:EU:C:2003:396, 10 July 2003��������������������������������������������������������420 Commission v Greece (Case C-68/88) [1989] ECR 2965, [1991] 1 CMLR 31, ECLI:EU:C:1989:339, 21 September 1989��������������������������������� 93–4, 419 Commission v The Netherlands (Case C-50/06) [2007] ECR I-4383, [2007] 3 CMLR 8, ECLI:EU:C:2007:325, 7 June 2007�����������������������������������������������343 Commission v Poland (Case C-791/19 R) ECLI:EU:C:2020:277, order of 8 April 2020������������������������������������������������������������������������������������������������������237 Commission v SGL Carbon AG (Case C-301/04 P) [2006] ECR I-5915, [2006] 5 CMLR 15, ECLI:EU:C:2006:432, (29 June 2006)���������������������������������������278 Commission v Violetti and Others (Case T-261/09 P) EU:T:2010:215, 20 May 2010��������������������������������������������������������������������������������������������������������������������430 Commission and Parliament v Council (Case C-137/12) ECLI:EU:C:2013:675, 22 October 2013�����������������������������������������������������������������������696 Covaci (Gavril), Criminal Proceedings against (Case C-216/14) ECLI:EU:C:2015:305, A-G’s opinion, delivered on 7 May 2015���������������������������������������������������������������������������������������������261, 285, 286, 288 Cowan v Trésor Public (Case 186/87) [1989] ECR 195, [1990] 2 CMLR 613, ECLI:EU:C:1989:47, 2 February 1989���������������������������������� 91, 298, 299 Czech Republic v European Parliament and Council (Case C-482/17) ECLI:EU:C:2019:1035 (Grand Chamber), 3 December 2019������������������������� 48–9, 63 Da Silva Jorge (Joao Pedro Lopes) (Case C-42/11) ECLI:EU:C:2012:151, A-G’s opinion, 20 March 2012��������������������������������������������������������������������������������������328 Da Silva Jorge (Joao Pedro Lopes) (Case C-42/11) ECLI:EU:C:2012:517 (Grand Chamber), 5 September 2012�������������������������������������������������������� 32, 33, 327–8 DB v Consob (Case C-481/19) ECLI:EU:C:2021:84, 2 February 2021�������������������������121 Dell’Orto (Giovanni) (Case C-467/05) [2007] ECR I-5557, [2007] 3 CMLR 29, ECLI:EU:C:2007:395, 28 June 2007�������������������������������������������������������314 Deutsche Post and Germany v Commission (Joined Cases C-463/10 P and C-475/10 P) [2011] ECR I-9639, ECLI:EU:C:2011:656, 13 October 2011�������������������������������������������������������������������������������������������������������������429 Di Puma and Zecca (Joined Cases C-596/16 and C-597/16) ECLI:EU:C:2018:192, 20 March 2018������������������������������������������������������������������� 189–90 Digital Rights Ltd v Minister for Communications, Marine and Natural Resources and Others and Kärntner Landesregierung, Michael Seitlinger, Christof Tschohl and Others (Joined Cases C-293/12 and C-594/12, UE:C:2013:845) A-G’s opinion, 12 December 2013������������������������563 Digital Rights Ltd v Minister for Communications, Marine and Natural Resources and Others and Kärntner Landesregierung, Michael Seitlinger, Christof Tschohl and Others (Joined Cases C-293/12 and C-594/12) [2015] QB 127, [2014] 3 CMLR 44, ECLI:EU:C:2014:238 (Grand Chamber), 8 April 2014������������������������������������390, 501, 509, 513, 562–8, 569, 570, 571, 572, 573, 574, 575, 578, 586, 608, 673, 687

xiv  Table of Cases DK (Case C-653/19) ECLI:EU:C:2019:1024, 28 November 2019����������������������������������279 Dorobantu (Case C-128/18) ECLI:EU:C:2019:857, 15 October 2019������������������������������������������������������������������� 227, 229, 230, 232, 233, 235 Dworzecki (Case C-108/16 PPU) ECLI:EU:C:2016:346, 24 May 2016�������������������17, 292 Dzivev (Petar) (Case C-310/16) ECLI:EU:C:2018:623, A-G’s opinion, 25 July 2018����������������������������������������������������������������������������������������������������������������������� 44 Dzivev (Petar) (Case C-310/16) ECLI:EU:C:2019:30, 17 January 2019������������������44, 289 ‘EEA Case’. See United Kingdom v Council (Case C-431/11) El-Dridi (alias Soufi) (Case C-61/11 PPU) [2011] ECR I-03015, [2011] 3 CMLR 6, ECLI:EU:C:2011:268, 28 April 2011��������������������������������������������� 92 Environmental Crime. See Commission v Council (Case C-176/03) EP (Case C-467/18) ECLI:EU:C:2019:765, 19 September 2019�������������������������������������266 Eredics and Sapi (Case C-205/09) [2010] ECR I-10231, ECLI:EU:C:2010:623, 21 October 2010�����������������������������������������������������������������������314 European Commission v European Parliament and Council (Case C-43/12) ECLI:EU:C:2013:534, A-G’s opinion, 10 September 2013������������������������������������������ 51 European Commission v European Parliament and Council (Case C-43/12) ECLI:EU:C:2014:298 (Grand Chamber), 6 May 2014���������������������������������� 50–52, 129 European Commission v Kadi (Joined Cases C-584/10 P, C-593/10 P and C-595/10 P) ECLI:EU:C:2013:176, (Kadi II) A-G’s opinion, 19 March 2013����������������������������������������������������������������������������������651–2 European Commission v Kadi (Joined Cases C-584/10 P, C-593/10 P and C-595/10 P) [2014] 1 CMLR 24, [2014] All ER (EC) 123, ECLI:EU:C:2013:518, (Kadi II) 18 July 2013���������������������������������� 452, 649–50, 652–5 European Parliament v Council and Commission (Cases C-317/04 and C-318/04) [2006] ECR I-4721, [2006] 3 CMLR 9, ECLI:EU:C:2006:346, 30 May 2006���������������������������������������������������������������������104, 660 European Parliament v Council (Case C-130/10) ECLI:EU:C:2012:472 (Grand Chamber), 19 July 2012�������������������������������������������������������������������������������54–61 European Parliament v Council (Case C-658/11) ECLI:EU:C:2014:2025, 24 June 2014������������������������������������������������������������������������������������������������������������������63–7 European Parliament v Council (Joined Cases C-317/13 and C-679/13) ECLI:EU:C:2015:223, 16 April 2015����������������������������������������������������������������������������258 European Parliament v Council (Case C-540/13) ECLI:EU:C:2015:224, 16 April 2015�������������������������������������������������������������������������������������������������������������������258 European Parliament v Council (Case C-263/14) ECLI:EU:C:2016:435, 14 June 2016���������������������������������������������������������������������������������������������������������������������� 63 Facebook Ireland and Schrems (Case C-311/18) ECLI:EU:C:2019:1145 (Data Protection Commissioner v Facebook Ireland Ltd and Maximillian Schrems; ‘Schrems II’), A-G’s opinion, 19 December 2019�������������������������������������������������������������������������������������������� 681–8, 689 Facebook Ireland and Schrems (Case C-311/18) [2021] 1 WLR 751, [2021] 1 CMLR 14, ECLI:EU:C:2020:559 (Data Protection Commissioner v Facebook Ireland Ltd and Maximillian Schrems; ‘Schrems II’), 16 July 2020����������������������������������������������������������������������385, 681, 688–92

Table of Cases  xv Federal Republic of Germany v Telekom Deutschland GmbH (Case C-794/19) (in progress)��������������������������������������������������������������������������������������585 Filev and Osmani (Case C-297/12) ECLI:EU:C:2013:569, 19 September 2013������������� 92 Forster v Hoofddirectie van de Informatie Beheer Groep (Case C-158/07) [2008] ECR I-08507, [2009] 1 CMLR 32, ECLI:EU:C:2008:630, 18 November 2008���������������������������������������������������������������������������������������������������������326 Foto-Frost v Hauptzollamt Lubeck-Ost (Case 314/85) [1987] ECR 4199, [1988] 3 CMLR 57, ECLI:EU:C:1987:452, 22 October 1987������������������������������������452 Franchet and Byk v Commission of the European Communities (Case T-48/05) EU:T:2008:257, 8 July 2008������������������������������������������������������������430–1 Gambino and Hyka (Case C-38/18) ECLI:EU:C:2019:628, 29 July 2019���������������������304 Garlsson Real Estate and Others (Case C-537/16) ECLI:EU:C:2018:193, 20 March 2018�������������������������������������������������������������������������������������������������� 188–9, 190, 191, 193, 194 Gasparini and Others (Case C-467/04) ECLI:EU:C:2006:406, A-G’s opinion, 15 June 2006����������������������������������������������������������������������������������� 155, 169, 170 Gasparini and Others (Case C-467/04) [2006] ECR I-9199, [2007] 1 CMLR 12, ECLI:EU:C:2006:610, 28 September 2006��������������������������� 155, 161, 192 Gavanozov I (Case C-324/17) ECLI:EU:C:2019:312, A-G’s opinion 11 April 2019�������������������������������������������������������������������������������������������������������������������251 Gavanozov I (Case C-324/17) ECLI:EU:C:2019:892, 24 October 2019������������������������251 Gavanozov II (Case C-852/19) ECLI:EU:C:2021:346, A-G’s opinion 29 April 2021�������������������������������������������������������������������������������������������������������������������253 GD v Commissioner of the Garda Siochana, Minister for Communications, Energy and Natural Resources, Attorney General (Case C-140/20) (in progress)��������������������������������������������������������������������������������������������������������������������585 Generálna prokuratura Slovenskej republiky v XY (Case C-919/19) ECLI:EU:C:2021:650, A-G’s opinion, 3 June 2021�����������������������������������������������������330 Generalstaatsanwaltschaft Berlin (Extradition vers l’Ukraine) (Case C-398/19) ECLI:EU:C:2020:1032, 17 December 2020���������������������������335, 336 Gestoras Pro Ammnistia v Council (Case C-354/04 P) [2007] ECR I-5179, ECLI:EU:C:2007:115, 27 February 2007������������������������������������������������ 11 Gestoras Pro Amnistia v Council (Case T-333/02) (not published)�������������������������15, 16 Giovanardi (Case C-79/11) ECLI:EU:C:2012:448, 12 July 2012������������������������������������314 Google Spain and Google (Case C-131/12) [2014] QB 1022, [2014] 3 CMLR 50, ECLI:EU:C:2014:317, 13 May 2014�������������������������������������������683 Gözütok (Huseyn) and Brügge (Klaus), Criminal Proceedings againt (Cases C-187/01, C-385/01) ECLI:EU:C:2002:516, A-G’s opinion, 19 September 2002�������������������������������������������������������������������������������������������������170, 192 Gözütok (Huseyn) and Brügge (Klaus), Criminal Proceedings againt (Cases C-187/01, C-385/01) [2003] ECR I-1345, ECLI:EU:C:2003:87, 11 February 2003��������������������������������������������������������������������� 153–4, 155, 156, 158, 161, 164, 168, 169–170 Greek Maize Case. See Commission v Greece (Case C-68/88) Grundza (Case 289/15) ECLI:EU:C:2017:4, 11 January 2017��������������������������� 202, 206–7

xvi  Table of Cases Gueye and Sanchez (Joined Cases C-483/09 and C-1/10) [2011] ECR I-8263, [2012] 1 WLR 2672, ECLI:EU:C:2011:583, 15 September 2011����������������������313, 314 HK v Prokuratuur (Case C-746/18) ECLI:EU:C:2020:18, A-G’s opinion, 21 January 2020��������������������������������������������������������������������������������������������������������������583 HK v Prokuratuur (Case C-746/18) ECLI:EU:C:2021:152, 2 March 2021�������������������583 International Association of Independent Tanker Owners (Intertanko) v Secretary of State for Transport (Case C-308/06) [2008] ECR I-4056, [2008] 2 Lloyds Rep 260, [2008] 3 CMLR 9, ECLI:EU:C:2008:312, 3 June 2008 ���������������������������������������������������������������������������������������������������������������������205 International Management Group v Commission (Case T-110/15) EU:T:2016:322 425, 26 May 2016�����������������������������������������������������������������������������425–6 IR (Case C-649/19) ECLI:EU:C:2021:75, 28 January 2021���������������������������������������������285 Ireland v European Parliament and Council of the European Union (Case C-301/06) [2009] ECR I-593, [2009] 2 CMLR 37, ECLI:EU:C:2009:68, 10 February 2009�����������������������������������������������������������������������562 Jeremy F (Case C-168/13 PPU) ECLI:EU:C:2013:358, 30 May 2013������������� 17, 201, 215 JR and YC (Joined Cases C-566/19 PPU and C-626/19 PPU) ECLI:EU:C:2019:1077, 12 December 2019�����������������������������������������������������������������248 Jyske Bank Gibraltar Ltd v Administración del Estado (Case C-212/11) ECLI:EU:C:2012:607, A-G’s opinion���������������������������������������������������������������������������551 JZ v Prokuratura Rejonowa Łodź –Środmieście (Case C-294/16 PPU) ECLI:EU:C:2016:610, 28 July 2016������������������������������������������������������������������������17, 201 Kadi (Yassin Abdullah) v Commission (Case T-85/09) [2010] ECR II-5177, [2011] 1 CMLR 24, ECLI:EU:T:2010:418, 30 September 2010���������������������������������������������������������������������������������������������������������650 Kadi (Yassin Abdullah) v Council and Commission (Case T-315/01) [2005] ECR II-3649, ECLI:EU:T:2005:332, 21 September 2005�������� 19, 20, 452, 645, 647, 650, 651 Kadi (Yassin Abdullah) and Al Barakaat International Foundation v Council and Commission (Kadi I) (Joined Cases C-402/05 P and C-415/05) [2008] ECR I-6351, [2008] 3 CMLR 41, ECLI:EU:C:2008:461, 3 September 2008����������������������������� 53–4, 59, 61, 62, 452, 643, 645–8, 649, 650, 654 Kadi II. See European Commission v Kadi (Joined Cases C-584/10 P, C-593/10 P and C-595/10 P) Katz (Győrgy) v Sós (István Roland) (Case C-404/07) [2008] ECR I-7607, ECLI:EU:C:2008:553, 9 October 2008������������������������������������� 314–5, 318 Kol v Land Berlin (Case C-285/95) [1997] ECR I-3069, [1997] 3 CMLR 1175, ECLI:EU:C:1997:280, 5 June 1997�����������������������������������������������������341 Kolev and Others (Case C-612/15) ECLI:EU:C:2018:392, 5 June 2018������������������������������������������������������������������������������������������������ 31–2, 43, 44, 46, 285, 288, 289 Kolpinghuis Nijmegen BV (Case 80/86) [1987] ECR 3969, [1989] 2 CMLR 18, ECLI:EU:C:1987:431, 8 October 1987���������������������������������������� 95 Kossowski (Piotr) (Case C-486/14) ECLI:EU:C:2016:483 (Grand Chamber), 29 June 2016�����������������������������������������������������������������������156, 158, 159, 170

Table of Cases  xvii Kovalkovas (Case C-477/16 PPU), ECLI:EU:C:2016:861, 10 November 2016������������������������������������������������������������������������������������������ 17, 243, 245 Kozlowski (Case C-66/08) ECLI:EU:C:2008:253, A-G’s view, 28 April 2008�������������������������������������������������������������������������������������������������������������������322 Kozlowski (Case C-66/08) [2008] ECR I-06041, [2008] 3 CMLR 26, ECLI:EU:C:2008:437 (Grand Chamber), 17 July 2008��������������������� 17, 321, 322, 323, 324, 325, 326, 327, 328 Kraajenbrink (Case C-367/05) [2007] ECR I-6619, ECLI:EU:C:2007:444, 18 July 2007��������������������������������������������������������������������������161–2 Kreil v Bundesrepublik Deutschland (Case C-285/98) [2000] ECR I-69, [2002] 1 CMLR 36, ECLI:EU:C:2002:2, 11 January 2000�����������������������338 Kretzinger (Case C-288/05) [2007] ECR I-6441, [2007] 3 CMLR 43, ECLI:EU:C:2007:441, 18 July 2007�������������������������������������������������162–3, 164, 165, 167 L and P (Openbaar Ministerie) (Indépendance de l’autorité judiciaire d’émission) (Joined Cases C-354/20 PPU and C-412/20 PPU) ECLI:EU:C:2020:925, A-G’s opinion, 12 November 2020��������������������������������240, 241 L and P (Openbaar Ministerie) (Indépendance de l’autorité judiciaire d’émission) (Joined Cases C-354/20 PPU and C-412/20 PPU) ECLI:EU:C:2020:1033, 17 December 2020����������������������������������������237, 238, 239, 240 Land Baden-Württemberg v Tsakouridis (Case C-145/09) ECLI:EU:C:2010:322, A-G’s opinion, 8 June 2010�������������������������������������� 337–40, 341 La Quadrature du Net and Others v Premier Ministre and Others (Joined Cases C-511/18, C-512/18 and C-520/18) [2021] 1 WLR 4457, [2021] 1 CMLR 31, ECLI:EU:C:2020:791 (Grand Chamber), 6 October 2020�������������������������������������������������������������������564, 575–6, 577–82, 584, 720 Land Baden-Württemberg v Tsakouridis (Case C-145/09) [2010] ECR I-11979, [2011] 2 CMLR 11, ECLI:EU:C:2010:708, 23 November 2010����������������������������������������������������������������������������336–7, 340, 342, 344 Lanigan (Case C-237/15 PPU) [2016] QB 252, [2016] 1 CMLR 16, ECLI:EU:C:2015:474 (Grand Chamber), 16 July 2015���������������������������������������������215 Leifer and Others (Case C-83/94) [1995] ECR I-3231, ECLI:EU:C:1995:329, 17 October 1995�������������������������������������������������������������������������������������������������������������338 Leymann and Pustovarov (Case C-388/08 PPU) [2008] ECR I-8993, ECLI:EU:C:2008:669, 1 December 2008�������������������������������������������������������������210, 323 M (Case C-398/12) ECLI:EU:C:2014:1057, 5 June 2014������������������������156, 157, 158, 163 Mantello (Gaetano) (Case C-261/09) [2010] ECR I-11477, ECLI:EU:C:2010:683, 16 November 2010������������������������������������������156, 163, 200, 210 MAS and MB (Case C-42/17) ECLI:EU:C:2017:936 (Taricco II), 5 December 2017�������������������������������������������������������������������������������������������� 31, 39, 41–3, 44, 94, 288 Melki (Aziz) and Abdeli (Sélim) (Joined Cases C-188/10 and C-189/10) [2010] ECR I-5667, [2011] 3 CMLR 45, [2010] ECLI:EU:C:2010:363 (Grand Chamber), 22 June 2010����������������������������������������������������������������������������������522 Melloni v Ministerio Fiscal (Case C-399/11) ECLI:EU:C:2012:600, A-G’s opinion, 2 October 2012�����������������������������������������������������������������������������214, 215

xviii  Table of Cases Melloni v Ministerio Fiscal (Case C-399/11) [2013] QB 1067, [2013] 2 CMLR 43, ECLI:EU:C:2013:107 (Grand Chamber), 26 February 2013������������������������������������������������������������������������������35, 40, 46, 83, 212–3, 214, 215, 217, 218, 219, 220, 232, 233, 286 Menci (Case C-524/15) ECLI:EU:C:2017:667, A-G’s opinion, 12 September 2017���������������������������������������������������������������������������������������������������������187 Menci (Case C-524/15) [2018] 3 CMLR 12, ECLI:EU:C:2018:197, 20 March 2018������������������������������������������������������������������������������������������185–6, 187, 188, 189, 190, 191, 194 Miasto Łowicz and Prokurator Generalny (Cases C-558/18 and C-563/18) ECLI:EU:C:2020:234, 26 March 2020�������������������������������������������������������238 Milev (Case C-310/18 PPU) ECLI:EU:C:2018:732, 19 September 2018����������������������284 Minister for Justice and Equality v LM (Defaillances du systeme judiciaire) (Case-216/18 PPU) ECLI:EU:C:2018:586, 25 July 2018��������������������������������������235–6, 240, 241, 246, 247 Minister for Justice and Equality v RO (Case C-327/18 PPU) ECLI:EU:C:2018:733, 19 September 2018������������������������������������������������������������������719 Ministerio Fiscal (Case C-207/16) ECLI:EU:C:2018:300, A-G’s opinion, 3 May 2018������������������������������������������������������������������������������������������������������575 Ministerio Fiscal (Case C-207/16) ECLI:EU:C:2018:788 (Grand Chamber), 2 October 2018����������������������������������������������������������������������������������574–5, 580, 581, 683 Miraglia (Case C-469/03) [2005] ECR I-2009, [2005] 2 CMLR 6, ECLI:EU:C:2005:156, 10 March 2005�������������������������������� 154, 155, 156, 158, 159, 161 ML (Generalstaatsanwaltschaft, – Conditions of Dentention in Hungary) (Case C-220/18 PPU) ECLI:EU:C:2018:589, 25 July 2018������������������������������������������������������������������������������������������������230–2, 233, 235 MM (Case C-414/20), ECLI:EU:C:2021:4, 13 January 2021������������������������������������������248 Möllendorf and Möllendorf-Niehuus (Case C-117/06) [2007] ECR I-8361, [2008] 1 CMLR 11, ECLI:EU:C:2007:596, 11 October 2007������������������������������������648 Moro (Case C-646/17) ECLI:EU:C:2019:489, 13 June 2019�������������������������������������������264 NJ (Case C-489/19 PPU) ECLI:EU:C:2019:849, 9 October 2019����������������������������������248 NS v Secretary of State for the Home Department and ME and Others v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform (Joined Cases C-411/10 and C-493/10) [2011] ECR I-13905, ECLI:EU:C:2011:865 (Grand Chamber), 21 December 2011���������207 Nunes de Matos (Case C-186/98) [1999] ECR I-4883, [1999] 2 CMLR 1403, ECLI:EU:C:1999:376, 8 July 1999���������������������������������������������������������������������������������� 94 Oesterreichischer Rundfunk (Case C-195/06) [2007] ECR I-8817, ECLI:EU:C:2007:613, 18 October 2007�����������������������������������������������������������������������292 OG (Public Prosecutor’s Office of Lübeck) and PI (Public Prosecutor’s Office of Zwickau) (Joined Cases C-508/18 C-82/19 PPU) ECLI:EU:C:2019:337, A-G’s opinion, 30 April 2019������������������������������������������245, 246

Table of Cases  xix OG (Public Prosecutor’s Office of Lübeck) and PI (Public Prosecutor’s Office of Zwickau) (Joined Cases C-508/18, C-82/19 PPU) ECLI:EU:C:2019:456 (Grand Chamber), 27 May 2019�������������������211, 239, 240, 241, 244–5, 246, 247, 248–9, 595, 703 Ognyanov (Atanas) (Case C-554/14) [2017] QB 732, [2017] 2 WLR 1249, ECLI:EU:C:2016:835, 8 November 2016���������������������������������� 33–4, 201 Okrazhna prokuratura – Varna (Criminal Proceedings v DR (Case C-845/19) and TS (Case C-863/19)), ECLI:EU:C:2021:229, A-G’s opinion, 24 March 2021��������������������������������������������������������������������������������������116 OMPI (Organisation des Modjahedines du peuple d’Iran v Council) v Council (Case T-228/02) [2006] ECR II-4665, ECLI:EU:T:2006:384, 12 December 2006������������������������������������������������������ 16, 23, 650 Onuekwere v Secretary of State for the Home Department (Case C-378/12) [2014] 1 WLR 2420, [2014] 2 CMLR 46, ECLI:EU:C:2014:13, 16 January 2014��������������������������������������������������������������������������347 Openbaar Ministerie, Criminal Proceedings against AZ (Case C-510/19) [2021] 2 CMLR 6, [2021] CEC 1059, ECLI:EU:C:2020:953, 24 November 2020���������������������������������������������������������������������������������������������������������251 Opinion 1/15 of the Court on the agreement between Canada and the European Union on the transfer and processing of Passenger Name Record data (PNR) ECLI:EU:C:2016:656, 8 September 2016��������������385, 390 Opinion 1/15 on the EU–Canada PNR Agreement, ECLI:EU:C:2017:592, 26 July 2017�������������������������������������������������������������������������������������������543, 578, 586, 587, 590, 591, 599, 718 Ordre des Barreaux Francophones et Germanophone v Council (Case C-305/05) [2007] ECR I-5305, [2007] 3 CMLR 28, ECLI:EU:C:2007:383, 26 June 2007�����������������������������������������������������������������������������584 Orsi and Baldetti (Joined Cases C-217/15 and C-350/15) ECLI:EU:C:2017:264, 5 April 2017���������������������������������������������������������������������������������������������������������������������160 Österreichischer Rundfunk (Joined Cases C-465/00, C-138/01 and C-139/01) [2003] ECR I-4989, [2003] 3 CMLR 10, ECLI:EU:C:2003:294, 20 May 2003��������������������������������������������������������������������������������������������������������������������687 Özcelik (Case C-453/16 PPU) ECLI:EU:C:2016:783, A-G’s opinion, 19 October 2016�������������������������������������������������������������������������������������������������������������244 Özcelik (Case C-453/16 PPU) ECLI:EU:C:2016:860, 10 November 2016������������������������������������������������������������������������������������������ 17, 243, 244 Öztürk (Case C-373/02) [2004] ECR I-3605, ECLI:EU:C:2004:232, 28 April 2004�������������������������������������������������������������������������������������������������������������������246 Parliament v Council (Case C-540/03) [2006] ECR I-5769, [2006] 3 CMLR 28, ECLI:EU:C:2006:429, 27 June 2006�����������������������������������������������204, 205 People’s Mojahedin Organization of Iran v Council (PMOI II) (Case T-256/07) [2008] ECR II-3019, [2009] All ER (EC) 1221, ECLI:EU:T:2008:461, 23 October 2008�����������������������������������������������������������������������651

xx  Table of Cases Petruhhin, (Case C-182/15) [2017] QB 299, [2017] 1 CMLR 28, ECLI:EU:C:2016:630, 6 September 2016�����������������������������������������������331–2, 333, 334 PF (Prosecutor General of Lithuania) (Case C-509/18) ECLI:EU:C:2019:457 (Grand Chamber) 27 May 2019�����������������������������������������������������������������������������������595 Pfeiffer et al v Deutsches Rotes Kreuz (Cases C-397/01 to C-403/01) [2004] ECR I-8835, [2005] 1 CMLR 44, ECLI:EU:C:2004:584, 5 October 2004�����������22, 23 ‘Philippines Case’. See Commission v Council (Case C-377/12) PI (Case C-648/20 PPU) ECLI:EU:C:2021:187, 10 March 2021������������������������������������251 PI v Oberburgermeisterin der Stadt Remscheid (Case C-348/09) ECLIE:EU:C:2012:123, A-G’s opinion, 6 March 2012���������������������������������� 336, 340–2 PI v Oberburgermeisterin der Stadt Remscheid (Case C-348/09) [2012] 3 CMLR 662, ECLI:EU:C:2012:300 (Grand Chamber), 22 May 2012�����������������������������������������������������������������������������������������������������������115, 340, 342–6, 347, 348 Piotrowski (Case C-367/16) ECLI:EU:C:2018:27, 23 January 2018������������������������������202 Pisciotti (C-191/16) ECLI:EU:C:2018:222, 10 April 2018���������������������331, 332, 333, 335 Placanica, Palazzse, and Sorricchio (Cases C-338/04, C-359/04 and C-360/04) [2007] ECR I-1891, [2007] 2 CMLR 25, ECLI:EU:C:2007:133, 6 March 2007������������������������������������������������������������������������������ 91 Poltorak (Case C-452/16, PPU) ECLI:EU:C:2016:858, 10 November 2016�����������17, 243 Popławski (Daniel Adam) (Case C-579/15) ECLI:EU:C:2017:503, 29 June 2017������������������������������������������������������������������������������������������������������� 33–34, 202 Popławski II (Case C-573/17) ECLI:EU:C:2019:530, 24 June 2019�������������������������34, 202 Powszechny Zakład Ubezpieczeń na Życie SA (Case C-617/17) ECLI:EU:C:2018:976, A-G’s opinion, 29 November 2018����������������������������������������164 Powszechny Zakład Ubezpieczeń na Życie SA (Case C-617/17) ECLI:EU:C:2019:283, 3 April 2019������������������������������������������������������������������������������164 Presidenza del Consiglio dei Ministri (Case C-129/19) ECLI:EU:C:2020:566, 16 July 2020���������������������������������������������������������������������������������������������������������������������299 ‘Prestige Case’ (2013) 10 Eurojust News 14����������������������������������������������������������������������173 Privacy International v Secretary of State for Foreign and Commonwealth Affairs and Others (Case C-623/17) ECLI:EU:C:2020:5, AG’s opinion, 15 January 2020��������������������������������������������������������������������������������������������������������������576 Privacy International v Secretary of State for Foreign and Commonwealth Affairs and Others (Case C-623/17) ECLI:EU:C:2020:790 (Grand Chamber), 6 October 2020��������������������������������������������������������576–7, 584, 720 Prosecutor General of Lithuania (Case C-509/18 PF) ECLI:EU:C:2019:457, 27 May 2019�����������������������������������������������������������������������������245 Pupino (Maria) (Case C-105/03) ECLI:EU:C:2004:712, A-G’s opinion, 11 November 2004����������������������������������������������������������������������������������������������������������� 22 Pupino (Maria) (Case C-105/03) [2006] QB 83, [2005] ECR I-5285, [2005] 2 CMLR 63, ECLI:EU:C:2005:386, 16 June 2005������������11, 14, 19, 20–23, 24, 33, 39, 94, 312–3, 315, 318

Table of Cases  xxi Queen (on the Application of M and Others v Her Majesty’s Treasury (Case C-340/08) [2010] ECR I-3913, ECLI:EU:C:2010:232, 29 April 2010�������������������������������������������������������������������������������������������������������������������648 Radu (Ciprian Vasile) (Case C-396/11) ECLI:EU:C:2012:648, A-G’s opinion, 18 October 2012�������������������������������������������������������������������������������� 39, 207–11 Radu (Ciprian Vasile) (Case C-396/11) ECLI:EU:C:2013:39, 29 January 2013����������������������������������������������������������������������������������������������� 210–11, 213 Raugevicius (Case C-247/17) ECLI:EU:C:2018:898, 13 November 2018�������� 331, 333–4 RH (Case C-8/19 PPU) ECLI:EU:C:2019:110, Order of the Court, 12 February 2019������������������������������������������������������������������������������������������������������������279 Richardt and Les Accessoires Scientifiques SNC (Case C-367/89) [1991] ECR I-4621, [1992] 1 CMLR 61, ECLI:EU:C:1991:376, 4 October 1991���������������������������������������������������������������������������������������������������������������338 Rothley v European Parliament (Case C-167/02P) [2004] ECR I-3149, [2004] 2 CMLR 11, ECLI:EU:C:2004:193, 30 March 2004���������������������������������������427 Ruska Federacija (Case C-897/19 PPU) ECLI:EU:C:2020:262, 2 April 2020���������77, 335 Rutili v Ministre de l’interieur (Case 36/75) [1975] ECR 1219, [1976] 1 CMLR 140, ECLI:EU:C:1975:137, 28 October 1975����������������������������������������������343 Sagor (Case C-430/11) ECLI:EU:C:2012:777, 6 December 2012������������������������������������� 92 Schrems (Maximilian) v Data Protection Commissioner (Case C-362/14) [2016] QB 527, [2016] 2 CMLR 2, ECLI:EU:C:2015:650 (Schrems I), 6 October 2015������������������������������������������385, 390, 490, 564, 671–4, 681, 687, 688, 690, 692, 719, 720 Schrems II. See Facebook Ireland and Schrems (Case C-311/18) Scialdone (Case C-574/15) ECLI:EU:C:2018:295, 2 May 2018���������������������������������������� 94 Segi v Council (Case C-355/04 P) [2007] ECR I-1657, ECLI:EU:C:2007:116, 27 February 2007�������������������������������������������������������������������������������������������������������������� 11 Segi v Council (Case T-338/02) [2004] ECR II-1647, [2007] 1 CMLR 8, ECLI:EU:T:2004:171, 7 June 2004����������������������������������������������������������������������������15, 16 Ship-Source Pollution Case. See Commission v Council (Case C-440/05) Sigma Orionis v Commission (Case T-48/16) EU:T:2018:245, 3 May 2018��������427, 433 Siragusa v Regione Sicilia (Case C-206/13) ECLI:EU:C:2014:126����������������������������������� 47 Sison v Council (Case T-47/03) [2007] ECR I-1233, [2007] 2 CMLR 17, ECLI:EU:C:2007:75, 1 February 2007�������������������������������������������������������� 15, 19, 20, 23 Skanavi and Chryssanthakopoulos (Case C-193/94) [1996] ECR I-929, [1996] 2 CMLR 372, ECLI:EU:C:1996:70, 29 February 1996����������������������������91, 299 Sleutjes (Case C-278/16), ECLI:EU:C:2017:757, 12 October 2017��������������������������������285 Spain v Eurojust (Case C-160/03) [2005] ECR I-2077, ECLI:EU:C:2005:168, 15 March 2005����������������������������������������������������������������������������������������������������������15, 409 Spasic (Case C-129/14 PPU) ECLI:EU:C:2014:739, A-G’s view, 2 May 2014����������������������������������������������������������������������������������������������������������������������167 Spasic (Case C-129/14 PPU) ECLI:EU:C:2014:586, 27 May 2014��������������� 166, 167, 168, 169, 170, 186, 194, 332

xxii  Table of Cases Sut (Case C-514/17) ECLI:EU:C:2018:1016, 13 December 2018����������������������������������201 Taricco and Others (Case C-105/14) ECLI:EU:C:2015:293, A-G’s opinion, 30 April 2015��������������������������������������������������������������������������������������������������������������������� 38 Taricco and Others (Case C-105/14) ECLI:EU:C:2015:555, 8 September 2015�����������������������������������������������������������������������������������31, 35–42, 44, 47, 94, 288, 448 Taricco II. See MAS and MB (Case C-42/17) Tele2 Sverige AB v Post-och telestyrelsen and Secretary of State for the Home Department v Tom Watson, Peter Brice and Geoffrey Lewis (Joined Cases C-203/15, C-698/15) ECLI:EU:C:2016:572, A-G’s opinion, 19 July 2016�����������������������������������������������������������������������������������571, 573 Tele2 Sverige AB v Post-och telestyrelsen and Secretary of State for the Home Department v Tom Watson, Peter Brice and Geoffrey Lewis (Joined Cases C-203/15, C-698/15) ECLI:EU:C:2016:970 (Grand Chamber), 21 December 2016������������������������������� 501, 509, 513, 568–73, 574, 575, 576, 577, 578, 579, 580, 582, 586, 683, 720 TG, UF (Case C-603/19) ECLI:EU:C:2020:774, 1 October 2020�����������������������������������303 Tillack v Commission of the European Communities (Case T-193/04R) [2004] ECR II-3575, [2004] 3 CMLR 44, ECLI:EU:T:2004:311, 15 October 2004���������������������������������������������������������������427, 428 Tillack v Commission of the European Communities (Case T-193/04) [2006] ECR II-3995, [2007] 1 CMLR 5, ECLI:EU:T:2006:292, 4 October 2006�������������������������������������������������������������������������������������279, 379, 425, 427, 428–30, 431, 454 Tillack v Commission of the European Communities (Case C-521/04 P(R)) [2005] ECR I-3103, [2005] 2 CMLR 37, ECLI:EU:C:2005:240, 19 April 2005��������������������������������������������������������������������427, 428 Toshiba Corporation and Others (Case C-17/10) ECLI:EU:C:2011:552, A-G’s opinion, 8 September 2011���������������������������������������������������������������������������������164 Toshiba Corporation and Others (Case C-17/10), ECLI:EU:C:2012:72 (Grand Chamber), 14 February 2012��������������������������������������������������������������������������164 TR (Generalstaatsanwaltschaft Hamburg) (Case C-416/20 PPU), ECLI:EU:C:2020:1042, 17 December 2020�����������������������������������������������������������������290 Tranca (Ianos), Reiter (Tanja), Opria (Ionel) (Joined Cases Cases C-124/16, C-188/16, and C-213/16) ECLI:EU:C:2017:228, 22 March 2017��������������������������������������������������������������������������������������������������������285, 292 Tupikas (Case C-270/17 PPU) ECLI:EU:C:2017:628, 10 August 2017�������������������������292 Turansky (Case C-491/07) [2008] ECR I-11039, ECLI:EU:C:2008:768, 22 December 2008������������������������������������������������������������������������������������155–6, 158, 159 ‘Turkey Case’. See United Kingdom v Council (Case C-81/13) United Kingdom v Council (Case C-482/08) [2010] ECR I-10413, ECLI:EU:C:2010:631, 26 October 2010�����������������������������������������������������������������������507 United Kingdom v Council (Case C-431/11) ECLI:EU:C:2013:589, 26 September 2013 (‘EEA Case’)����������������������������������������������������������������������������������696

Table of Cases  xxiii United Kingdom v Council (Case C-81/13) ECLI:EU:C:2014:2449, 18 December 2014 (‘Turkey Case’)������������������������������������������������������������������������������696 UY v Staatsanwaltschaft Offenburg (Case C-615/18) ECLI:EU:C:2020:376, 14 May 2020��������������������������������������������������������������������������������������������������������������������264 Van Esbroeck (Case C-436/04) ECLI:EU:C:2005:630, A-G’s opinion, 20 October 2005�������������������������������������������������������������������������������������������������������������161 Van Esbroeck (Case C-436/04) [2006] ECR I-2333, [2006] 3 CMLR 6, ECLI:EU:C:2006:165, 9 March 2006�������������������������������������������������������������� 151, 160–1, 162, 170, 171 Van Straaten v the Netherlands and Italy (Case C-150/05) ECLI:EU:C:2006:381, A-G’s opinion, 8 June 2006�����������������������������������������������������154 Van Straaten v the Netherlands and Italy (Case C-150/05) [2006] ECR I-9327, ECLI:EU:C:2006:614, 28 September 2006������������������������������� 154–5, 161 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen (Joined Cases C-92/09 and C-93/09) [2010] ECR I-11063, ECLI:EU:C:2010:662 (Grand Chamber), 9 November 2010������������������������������������564 Wolzenburg (Dominic),(Case C-123/08) ECLI:EU:C:2009:183, A-G’s opinion, 24 March 2009��������������������������������������������������������������������������������������325 Wolzenburg (Dominic) (Case C-123/08) [2009] ECR I-9621, [2010] 1 CMLR 33, ECLI:EU:C:2009:616, 6 October 2009����������������������������322–4, 325, 326, 328, 333 X (Case C-60/02) [2004] ECR I-651, [2004] ETMR 37, ECLI:EU:C:2004:10, 7 January 2004������������������������������������������������������������������������������������������������������������������ 95 X (European arrest warrant – Double criminality) (Case C-717/18), ECLI:EU:C:2020:142, 3 March 2020����������������������������������������������������������������������������206 X (Mandat d’arret europeen – Ne bis in idem) (Case C-665/20 PPU) ECLI:EU:C:2021:339, 29 April 2021��������������������������������������������������������������������163, 168 XD (Case C-625/19 PPU) ECLI:EU:C:2019:1078������������������������������������������������������������249 Yusuf (Ahmed Ali) and Al Barakaat International Foundation v Council and Commission (Case T-306/01) [2005] ECR II-3533, [2005] 3 CMLR 49, ECLI:EU:T:2005:331, 21 September 2005��������������������������������������19, 645 ZB (Case C-627/19 PPU) ECLI:EU:C:2019:1079, 12 December 2019��������������������������249 Zdziaszek (Case C-271/17 PPU) ECLI:EU:C:2017:629, 10 August 2017���������������������292 ECHR A and B v Norway (App Nos 24130/11 and 29758/11) [2016] ECHR 987, (2017) 65 EHRR 4, 19 ITL Rep 868, 15 November 2016���������������������������� 184–5, 187, 189, 190, 191 Advisory opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother – Requested by the French Court of Cassation (Request no P16-2018-001), [2019] ECHR 281, 10 April 2019)������������������������������194

xxiv  Table of Cases AT v Luxembourg (App No 30460/13) [2015] ECHR 367, 9 April 2015��������������265, 266 Avotiņš v Latvia (App No 17502/07) (2017) 64 EHRR 2, [2016] ECHR 440, (Grand Chamber) 23 May 2016��������������������������������������������� 219, 226, 228 Ben Faiza v France (App No 31446/12) [2018] ECHR 153, 8 February 2018��������������580 Big Brother Watch and Others v UK (App Nos 58170/13, 62322/14 and 24960/15) [2018] ECHR 722, (Grand Chamber) Judgment of 13 September 2018��������������������������������������������������������������������������������������������577, 585 Bivolaru and Moldovan v France (App Nos 40324/16 and 12623/17) judgment of 25 March 2021������������������������������������������������������������������������������������������228 Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v Ireland (App No 45036/98) (2005) 42 EHRR 1, [2005] ECHR 440 (Grand Chamber) 30 June 2005�����������������������������������������������������������������������������������226 Camilleri v Malta (App No 42931/10) (2013) 57 EHRR 32, [2013] ECHR 281, 22 January 2013�����������������������������������������������������������������������������������������179 Centrum for Rattvisa v Sweden (App No 35252/08) [2021] ECHR 440, (Grand Chamber) 25 May 2021�����������������������������������������������������������������������������������585 Chernov v Ukraine (App No 16432/10) [2020] ECHR 895, 10 December 2020���������163 Coeme and Others v Belgium (App Nos 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96) [2000] ECHR 250, ECHR 2000-VI������������������������������������� 38 Dayanan v Turkey (App No 7377/03) [2009] ECHR 2278, 13 October 2009��������������263 El Haski v Belgium (App No 649/08) (2013) 56 EHRR 31, [2012] ECHR 2019, 25 September 2012���������������������������������������������������������������������������������������������������������281 Engel and Others v the Netherlands (App Nos 5100/71, 5101/71, 5102/71, 5354/72, 5370/72) Series A no 22, (1979-80) 1 EHRR 647, [1976] ECHR 3, 8 June 1976���������������������������������������������������������������������������181, 182, 183, 185, 188, 275, 278 Gäfgen v Germany (App No 22978/05) (2011) 52 EHRR 1, 28 BHRC 463, [2010] Crim LR 865, [2010] ECHR 759, 1 June 2010�����������������������������������������������281 Glantz v Finland (App No 37394/11) [2014] STC 2263, [2014] ECHR 495, 20 May 2014��������������������������������������������������������������������������������������������������������������������163 Grande Stevens v Italy (App No 18640/10) [2014] ECHR 230, 4 March 2014������������������������������������������������������������������������������������������������� 183, 185, 187 Haralampiev v Bulgaria (App No 29648/03), 24 April 2012�������������������������������������������213 Kapetanios et al v Greece (App Nos 3453/12, 42941/12 and 9028/13) [2015] ECHR 453, 30 April 2015���������������������������������������������������������������������������������163 Khodorkovskiy v Russia (App No 5829/04) [2011] ECHR 841, 31 May 2011�������������279 Leander v Sweden (App No 9248/81) (A/116) (1987) 9 EHRR 433, [1987] ECHR 4, 26 March 1987�����������������������������������������������������������������������������������563 McFarlane v Ireland (App No 31333/06) (2011) 52 EHRR 20, [2010] ECHR 1272, (10 September 2010)��������������������������������������������������������������������������������� 46 Medenica v Switzerland (App No 20491/92) [2001] ECHR 395, 14 June 2001�����������213 Mihalache v Romania (App No 54012/10) [2019] ECHR 530, 8 July 2019����������153, 158 Murray v United Kingdom (App No 18731/91) (1996) 22 EHRR 29, [1996] ECHR 3, (Grand Chamber) 8 February 1996����������������������������������������280, 281

Table of Cases  xxv Muršić v Croatia (App No 7334/13) (2017) 65 EHRR 1, 42 BHRC 439, [2016] ECHR 927, (Grand Chamber) 20 October 2016�������������������������������������������234 Nada v Switzerland (App No 10593/08) (2013) 56 EHRR 18, 33 BHRC 453, [2012] ECHR 1691, 12 September 2012����������������������������������������������������������������������654 Nykanen v Finland (App No 11828/11) [2014] ECHR 494, 20 May 2014�������������������163 OAO Neftyanaya Kompaniya Yukos v Russia (App No 14902/04) (2012) 54 EHRR 19, 14 ITL Rep 229, [2011] ECHR 1342, 20 September 2011������������������� 38 Osterlund v Finland (App No 53197/13) [2015] ECHR 150, 10 February 2015���������163 Pakelli v Germany (App No 8398/78) Series A No 64, (1984) 6 EHRR 1, [1983] ECHR 6, 25 April 1983��������������������������������������������������������������������������������������272 Pirozzi v Belgium (App No 21055/11) [2018] ECHR 337, 17 April 2018�������������������������������������������������������������������������������������������������� 226, 228, 242 Quaranta v Switzerland (App No 12744/87) [1991] ECHR 33, 24 May 1991��������������272 Ramishvili and Kokhreidze v Georgia (App No 1704/06) [2009] ECHR 153, 27 January 2009�����������������������������������������������������������������������������������������279 Rinas v Finland (App No 17039/13) [2015] ECHR 88, 27 January 2015����������������������163 Romeo Castańo v Belgium (App No 8351/17) [2019] ECHR 542, 9 July 2019������������������������������������������������������������������������������������������������������ 227, 228, 230 Rotaru v Romania (App No 28341/95) (2000) 8 BHRC 43, [2000] ECHR 192, 4 May 2000�������������������������������������������������������������������������������������������������563 S and Marper v UK (App No 30562/04) (2009) 48 EHRR 50, 25 BHRC 557, [2008] Po LR 403, [2008] ECHR 1581, 4 December 2008�������������������������������495, 540, 564, 565 Salabiaku v France (App No 10519/83) (A/141-A), (1991) 13 EHRR 379, [1988] ECHR 19, 7 October 1988��������������������������������������������������������������������������������279 Salduz v Turkey (App No 36391/02) (2009) 49 EHRR 19, 26 BHRC 223, [2010] Crim LR 419, [2008] ECHR 1542, 27 November 2008�������������������������259, 267 Saunders v UK (App No 19187/91) (1997) 23 EHRR 313, 2 BHRC 358, [1996] ECHR 65 (Grand Chamber) 17 December 1996�������������������������������������������280 Scoppola v Italy (No 2) (App No 10249/03) (2010) 51 EHRR 12, [2009] ECHR 1297, (Grand Chamber) 17 September 2009��������������������������������������� 38 Sejdovic v Italy (App No 56581/00) [2004] ECHR 620, (2004) 42 EHRR 360, 10 November 2004���������������������������������������������������������������������������������������������������������213 Strategies et communications et Dumoulin v Belgium (App No 37370/97) [2002] ECHR 598, 15 July 2002�������������������������������������������������������������������������������������� 46 Svinarenko and Slyadnev v Russia (App Nos 32541/08 and 43441/08) 37 BHRC 628, [2014] ECHR 790 (Grand Chamber) 17 July 2014��������������������������279 Szabó and Vissy v Hungary (App No 37138/14) (2016) 63 EHRR 3, [2016] ECHR 579, 12 January 2016�����������������������������������������������������������������������������572 Tarakhel v Switzerland (App No 29217/12) (2015) 60 EHRR 28, [2015] Imm AR 282, [2014] ECHR 1435 (Grand Chamber) 4 November 2014���������������218 Tillack v Belgium (App No 20477/05) (2012) 55 EHRR 25, [2008] ECHR 190127 November 2007 (final version 27 February 2008)���������������������������430

xxvi  Table of Cases Weber and Saravia v Germany (App No 54934/00) (2008) 46 EHRR SE5, (2000) 8 BHRC 43, [2006] ECHR 1173, 29 June 2006����������������������������������������������563 Zakharov v Russia (App No 47143/06) 39 BHRC 435, (2016) 63 EHRR 17, [2015] ECHR 1065, (Grand Chamber) 4 December 2015�������������������������������509, 572 Zolotukhin (Sergey) v Russia (App No 14939/03) (2012) 54 EHRR 16, 26 BHRC 485, [2009] ECHR 252 (Grand Chamber) 10 February 2009������������������������������������������������������������������������������������������� 163, 183, 185 BELGIUM Court of Cassation of Belgium, No P.13.2082.N, Judgment of 1 December 2015 (Yahoo! case)�����������������������������������������������������������������������������������593 Court of First Instance Antwerp (Belgium), ME20.F1.105151-12, Judgment of 27 October 2016 (Skype case)����������������������������������������������������������������593 CZECH REPUBLIC 2011/03/22 Pl. ÚS 24/10, www.concourt.cz/clanek/pl-24-10, Constitutional Court�����������������������������������������������������������������������������������������������������561 FRANCE Bourquain (1961), Military Tribunal���������������������������������������������������������������� 157, 158, 165 Decision No 393099 Conseil d’État, Judgment of 21 April 2021�����������������������������������583 GERMANY Ausl 301 AR 95/18, Karlsruhe Higher Court, 17 February 2020�����������������������������������241 Ausl 301 AR 104/19, Karlsruhe Higher Court, 27 November 2020������������������������������241 Bundesverfassungsgericht – 1 BvR 1215/07, (anti-terrorism databases case) judgment of 24 April 2013���������������������������������������������������������������������������������������������� 47 BVerfG, 2 BvE 2/08, Gauweiler, Die Linke v Act of Approval of the Lisbon Treaty (‘Lisbon’), 30 June 2009�������������������������������������������������������������������������������������118 BVerG, judgment of 1 December 2020–2 BvR 1845/18 – Rn 1-85, www.bverfg.de/e/rs20201201_2bvr184518.html (EAW III Decision)������������229, 230 Decision 1 BvR 256/08, 1 BvR 263/08, 1BvR 586/08 (2 March 2010) German Constitutional Court��������������������������������������������������������������������������������������560 Decision of 30 June 2009 (2 BvE 2/08, 5/08, 2 BvR 1010/08, 1022/08, 1259/08, 182/09)�������������������������������������������������������������������������������������������������� 69, 125–6

Table of Cases  xxvii Judgment of BVerG 2017 2, BvR 424/17 (EAW II Decision)�����������������������������������������228 Kretzinger, Landgericht Augsburg; on appeal Bundesgerichtshof���������������������������������162 Order of the Second Senate of 15 December 2015–2 BvR 2735/14 (EAW I Decision), BverfG����������������������������������������������������������������������������������������220–3 Puigdemont case – Higher Regional Court of Schleswig-Holstein] July 12, 2018, 1 Ausl (A) 18/18 (20/18), Neue Juristische Wochenschrift 93, 2019 (Ger), Judgment of July 12, 2018������������������������������������������������������������������207 Solange II – Wünsche Handelsgesellschaft, Re (22 October 1986) BVerfGE 73, 339�������������������������������������������������������������������������������������������������������������222 Solange III – BverfG 2 BvR 2735/14, 15 December 2015�����������������������������������������������222 GREECE Areios Pagos, Case 1/2011, Supreme Ct����������������������������������������������������������������������������167 IRELAND Dwyer (Record No 2019/18), Supreme Court������������������������������������������������������������������585 Minister for Justice and Equality v Artur Celmer [2018] IEHC 119, 12 March 2018����������������������������������������������������������������������������������������������������������������235 Minister for Justice and Equality v Artur Celmer (No 5) [2018] IEHC 639, 19 November 2018���������������������������������������������������������������������������������������������������������241 ITALY Constitutional Court, Order No 24, 2017��������������������������������������������������������������������������� 39 Constitutional Court, ruling of 23 January 2019, No 20��������������������������������������������������� 43 Constitutional Court, ruling of 20 February 2019, No 63������������������������������������������������ 43 Constitutional Court, ruling of 10 May 2019, No 112������������������������������������������������������ 43 Constitutional Court, Order of 10 May 2019, No 117������������������������������������������������������� 43 Kretzinger judgment of 25 January 2001, Tribunale di Ancona������������������������������������162 Kretzinger judgment of 22 February 2001, Corte d’appello di Venezia (Court of Appeal, Venice�����������������������������������������������������������������������������������������������162 NETHERLANDS RK 20/771 13 / 751021-20, Amsterdam District Court, 10 February 2021������������������241 RK 20/3065 and 13/751520-20, Amsterdam District Court, 27 January 2021������������242

xxviii  Table of Cases POLAND Bonda (Łukasz Marcin), Criminal Proceedings against, Sąd Najwyższy, 27 September 2010���������������������������������������������������������������������������������������������������������181 Judgment of the Supreme Court, Chamber of Labour and Social Insurance of 5 December 2019�������������������������������������������������������������������������������������������������������237 ROMANIA Decision No 1258 of 8 October 2009, Constitutional Court������������������������������������������561 SPAIN STC 13/2017 of 30 January 2017, Constitutional Court�������������������������������������������������290 UNITED KINGDOM Assange v Swedish Prosecution Authority [2012] UKSC 22, [2012] 2 AC 471, [2012] 3 WLR 1, [2012] 4 All ER 1249������������������������������������������������������310 Bucnys v Ministry of Justice, Lithuania [2013] UKSC 71, [2014] AC 480, [2013] 3 WLR 1485, [2014] 2 All ER 235��������������������������������������������������������������������310 Dabas v High Court Of Justice, Madrid [2007] UKHL 6, [2007] 2 AC 31, [2007] 2 WLR 254, [2007] 2 All ER 641������������������������������������������������������������������������ 14

1 History, Principles and Institutions The Constitutionalisation of EU Criminal Law I. Introduction The evolution of the constitutional framework of EU criminal law has been a contested and gradual process. Criminal law is inextricably linked with state sovereignty and the exercise of state power, with states being reluctant to cede sovereignty and power to a supranational organisation. Although inevitably Community law has had an impact on national criminal justice systems, the European Union (EU) first acquired express competence in the field of criminal law following the entry into force of the M ­ aastricht Treaty, which established an intergovernmental framework of action under the so-called ‘third pillar’. Criminal law has been largely normalised constitutionally following the entry into force of the Lisbon Treaty, although, as will be seen below, a degree of resistance to the ‘Lisbonisation’ of criminal law remains. This chapter will provide a detailed analysis of the constitutional evolution of EU criminal law by focusing primarily on history, principles and institutions, It will chart the evolution of the field from the early days when the Community was not granted express competence in the field of criminal law, to the intergovernmental EU criminal law model introduced by the Maastricht Treaty and in place until the entry into force of the Lisbon Treaty, which aimed to normalise EU criminal law and align the field constitutionally with more traditional areas of EU action. In addition to examining the evolution of the Treaty framework, the chapter will examine in detail the contribution of the Court of Justice of the European Union (CJEU) towards the constitutionalisation of EU criminal law and will h ­ ighlight the intersection of broader constitutional issues, such as upholding fundamental rights and the rule of law, with the development of a legitimate and credible system of EU criminal law.

II.  Background: The Community and Criminal Law before Maastricht Over the years, there have been a number of factors influencing common action in criminal matters among EU Member States. One of these factors has traditionally been

2  History, Principles and Institutions the emergence of areas of criminality which were of common concern to Member States and which were perceived as necessitating cooperation. Outside the EU framework, such cooperation has been longstanding within the intergovernmental framework of the Council of Europe.1 This has led to the adoption of a series of hard and soft law instruments in the criminal justice field, a number of which are still influential in the development of internal EU law.2 It was the preference for intergovernmental cooperation within the Council of Europe that reportedly blocked French plans in the late 1970s and early 1980s to establish an ambitiously named ‘European judicial area in criminal matters’ covering primarily judicial cooperation in criminal matters in the fields of terrorism.3 However, the 1970s did witness Member States’ efforts to explore the establishment of channels of cooperation between their law enforcement authorities in areas of common concern such as terrorism. A prime example has been the establishment of TREVI, a network of law enforcement officials meeting on an informal basis to discuss action on counter-terrorism issues.4 The remit of TREVI (and its organisational chart) – which, however, remained an informal structure with no clear legal framework or standing under Community law – expanded in the 1980s, especially in the light of the emergence of new areas of criminality such as drugs and organised crime as areas of common interest for Member States.5 The focus on drug trafficking as a threat in the 1980s also led to efforts for action within the Community law framework, in particular in the field of external action, as demonstrated by the involvement of the Community in the negotiation and signature of the 1988 United Nations (UN) Vienna Convention.6 Another factor leading to the emergence of EU criminal law has been the development of EU internal market law. Already in the 1980s, it had become evident in cases brought before the Court in Luxembourg that the focus of the Community on economic matters did not stop Community action having criminal law implications or being associated with the criminal law choices in Member States.7 Moreover, calls for the abolition of internal frontiers in the single market – a central objective of the Commission and subsequently of the Community in the 1980s and early 1990s – and steps take to achieve these objectives created a ‘spill-over effect’ of law and policy to broader issues to the economy/market, including criminal law.8 A key to this spill-over process has been the abolition of internal frontiers and the goal of free movement. The achievement of free movement brought about the realisation of the need to look at the implications of this freedom and of the abolition of borders for issues such as immigration and crime. This link had already been made to some extent by the Commission in its 1985 White 1 See V Mitsilegas, J Monar and W Rees, The European Union and Internal Security (Palgrave, 2003) 19–22. 2 See in particular in the field of data protection; see ch 9. On the relationship between EU and Council of Europe instruments covering similar topics, see ch 10. 3 ‘Espace Judiciaire Pénal Européen’: see A Weyembergh, L’Harmonisation des Législations: Condition de l’Espace Pénal Européen et Révélateur de ses Tensions (Éditions de l’Université de Bruxelles, 2004) 13–15. 4 See Mitsilegas, Monar and Rees (n 1) 22–24. For more on TREVI, including bibliographical references, see chapter 4. 5 ibid 25. 6 See V Mitsilegas, Money Laundering Counter-measures in the European Union: A New Paradigm of Security Governance versus Fundamental Legal Principles (Kluwer Law International, 2003) 52–54. 7 For more on this, see ch 2. 8 See Mitsilegas, Monar and Rees (n 1) 27–31.

Background: The Community and Criminal Law before Maastricht  3 Paper on the completion of the internal market.9 It was put forward more forcefully in the Palma Document,10 whose conclusions were endorsed by the Madrid European Council in 1989.11 The Document asserted that the achievement of an area without internal frontiers could involve, when necessary, the approximation of laws, adding that the abolition of internal borders affects a whole range of matters, including combating terrorism, drug trafficking and other illicit trafficking; improved law enforcement cooperation; and judicial cooperation. In the latter context, it was noted that judicial cooperation in criminal matters should be intensified in order to combat terrorism, drug trafficking, crime and other illicit trafficking, and that the harmonisation of certain provisions should be studied.12 Another significant development involving the abolition of borders in the 1980s, this time outside the Community legal framework, was the 1985 Schengen Agreement between the Benelux countries, France and Germany, leading to the adoption of the 1990 Schengen Implementing Convention, which included a wide range of provisions on immigration, asylum, border controls and police cooperation, including the establishment of the Schengen Information System.13 Schengen can be viewed as a compensation for freedom: the abolition of internal frontiers (including physical frontiers) among the participating states would be combined with further integration between these states in the fields of immigration and criminal law, thus leading to a strong external border compensating for the lack of internal borders. This model of closer integration between a number of Member States outside the Community framework was a pioneering step at the time and resulted in a momentum towards extending such closer integration within the EU. As will be seen below, the Schengen acquis is integrated into EU law, which is indicative of the influence of the Schengen logic on the development of the EU as an ‘Area of Freedom, Security and Justice’ (AFSJ). The influence of the Schengen logic is dominant in the development of EU immigration and borders law, but it is also visible in the development of EU criminal law principles, in particular by the Court of Justice: when interpreting the operation of EU criminal law, the Court has repeatedly examined criminal law in conjunction with free movement within the framework of an ‘area’ of freedom, security and justice.14 Calls for further integration in relation to criminal matters were also linked with political events external to the Community at the end of the 1980s, namely the fall of the Berlin Wall. The collapse of the Soviet Bloc led to a number of concerns in 9 ‘Completing the Internal Market: White Paper from the Commission to the European Council’ COM (1985) 310, 14 June. The Commission considered that matters such as the coordination of rules concerning extradition were essential for the removal of internal frontier controls; see PA Weber-Panariello, The Integration of Matters of Justice and Home Affairs into Title VI of the Treaty on European Union: A Step Towards More Democracy?, EUI Working Paper RSC No 95/32, European University Institute, Florence, 5. 10 The Palma Document was prepared by a Coordinators’ Group set up by the European Council and composed of 12 high-ranking officials, a chairman and the vice-president of the Commission to coordinate Member States’ actions with regard to free movement. See Weber-Panariello (n 9) 8–9. 11 Council Doc 89/1, 27 June 1989, http://europa.eu/rapid/pressReleasesAction.do?reference=DOC/89/1& format=HTML. 12 The Palma document is reproduced in E Guild and J Niessen, The Developing Immigration and Asylum Policies in the EU (Nijhoff, 1996) 443–48. 13 On the Schengen Information System, see ch 9. 14 This is particularly the case with regard to the Court’s case law on the European Arrest Warrant and ne bis in idem; see chs 3 and 4.

4  History, Principles and Institutions Western Europe. These were linked most notably to fears that political instability in Eastern Europe and the lack of a stable legal and constitutional framework in countries in transition would lead to the increase of criminogenic factors therein and the export of criminality from the East to the West. These concerns resulted in calls – in particular by Member States such as Germany fearing that they would be the most affected by these developments – towards greater EU cooperation and integration in criminal matters. In this context, countries like Germany attempted to render domestic concerns into EU issues,15 at the same time creating considerable impetus towards the development of European integration in the field. Lack of trust towards Eastern European countries – which subsequently became candidate countries with now many of them progressing to become full EU Member States – continued in the 1990s and the 2000s, during the enlargement process and led to the Schengen logic increasing in political capital in accession negotiations and beyond, with compliance with the Schengen acquis becoming a central requirement for accession to the EU.16 The end of the Cold War also had broader implications for the reconfiguration of security threats globally. The shift from the emphasis on military threats to the securitisation of broader phenomena was well documented early on by international relations scholars.17 In the EU and beyond, one element of this securitisation shift has been the elevation of forms of criminality as threats which require urgent and concerted response by governments.18 Security threats in this context have assumed a chameleon nature over the years, from drug trafficking in the 1980s to organised crime in the 1990s and terrorism in the 2000s.19 At the EU level, such securitisation of crime has largely acted as a factor justifying further EU integration in criminal matters and has led to the adoption of a plethora of legal and policy initiatives. In this context, particular focus has been placed on the transnational elements of the perceived threats, which are deemed to require a common EU approach, with Member States not being able to address these challenges solely at the national level.20 The securitisation of crime and the focus on the transnational are also increasingly acting as a motor for the emergence of the EU as a global security actor speaking with ‘one voice’ and influencing the development of global standards in the field.21 In this process, as will be seen in a number of instances in this book, the emergence of both internal and external EU criminal law is marked by a strong emphasis on security objectives. 15 On Germany’s influence on developing police cooperation (and immigration and asylum law cooperation) as a response to developments in Eastern Europe, see J Monar, ‘Justice and Home Affairs: Europeanization as a Government-Controlled Process’ (2003) 119 Proceedings of the British Academy 309, 320–22. 16 See section VIII.D below. 17 See in particular B Buzan, People, States and Fear: An Agenda for International Security Studies in the PostCold War Era (Harvester Wheatsheaf, 1991); B Buzan, ‘New Patterns of Global Security in the Twenty-First Century’ (1999) 67 International Affairs, 431. In the context of securitisation and crime, see D Bigo, Polices en Réseaux. L’Experiénce Européenne (Presses de Sciences Po, 1996). 18 On the securitisation process, see B Buzan, O Waever and J de Wilde, Security: A New Framework for Analysis (Lynne Rienner, 1998); and O Waever, ‘Securitization and De-securitization’ in RD Lipschutz (ed), On Security (Columbia University Press, 1995) 46–86. 19 On this changing focus in the context of the development of money laundering counter-measures, see V Mitsilegas, ‘Countering the Chameleon Threat of Dirty Money: “Hard” and “Soft” Law in the Emergence of a Global Regime against Money Laundering and Terrorist Finance’ in A Edwards and P Gill (eds), Transnational Organised Crime: Perspectives on Global Security (Routledge, 2003) 195–211. 20 On the concept and role of transnational crime, see Mitsilegas (n 6) 19–21. 21 See ch 10.

The Third Pillar: The Institutional Framework  5

III.  The Third Pillar: The Institutional Framework The above factors became increasingly relevant in negotiations to amend the EC Treaty as a follow-up to the Single European Act. In these negotiations, the issue of whether the Community competence should extend to criminal law – and Justice and Home Affairs more generally – proved to be extremely contested. The final compromise came with the adoption of the Maastricht Treaty, which introduced a three-pillar structure for the EU. The primary function of this structure was, on the one hand, to include within the EU’s remit controversial areas such as foreign and security policy and Justice and Home Affairs, but, on the other hand, to ensure that EU action in these sovereignty sensitive fields would not be under the supranational elements of the first pillar, but would be subject to a more intergovernmental legal framework.22 This pillar structure was retained until the entry into force of the Lisbon Treaty, with EU action in criminal matters largely confined (but increasingly not limited to) the third pillar. This section will provide with an overview and analysis of the evolution of the third pillar from Maastricht to Amsterdam and Lisbon. The specificities of the former third pillar and the current Lisbonised framework will be examined from three perspectives: institutions, instruments and principles.

A.  The Maastricht Treaty In the Maastricht Treaty, provisions relating to EU criminal law were included in Title VI of the EU Treaty entitled ‘Provisions on cooperation in the fields of Justice and Home Affairs’ (or, as it is better known, the former third pillar).23 For the first time, the Treaty established EU competence in the field of Justice and Home Affairs, including judicial cooperation in criminal matters, customs cooperation and police cooperation for the purposes of preventing and combating terrorism, unlawful drug trafficking and other serious forms of international crime, including the establishment of a European Police Office (Europol).24 Moreover, the Treaty contained a legal basis for establishing a Co-ordinating Committee consisting of senior officials and contributing to the preparation of the Council’s ‘discussions’, as well as giving opinions for the attention of the Council.25 It has been argued that in this manner, the Maastricht third pillar

22 For a critique of the Maastricht Treaty, see, inter alia, D Curtin, ‘The Constitutional Structure of the Union: A Europe of Bits and Pieces’ (1993) 30 CML Rev 17; see also R Dehousse, ‘From Community to Union’ in R Dehousse (ed), Europe after Maastricht: An Ever Closer Union? (Law Books in Europe, 1994) 5–15. 23 For an overview of the Maastricht third pillar, see: P-C Müller-Graff, ‘The Legal Bases of the Third Pillar and its Position in the Framework of the Union Treaty’ (1994) 31 CML Rev 493; D O’Keeffe, ‘Recasting the Third Pillar’ (1995) 32 CML Rev 893; G Barrett, ‘Cooperation in Justice and Home Affairs in the European Union: An Overview and a Critique’ in G. Barrett (ed), Justice Cooperation in the European Union (Institute of European Affairs, Dublin, 1997) 3–48; M Anderson, M den Boer, P Cullen, W Gilmore, C Raab and N Walker, Policing the European Union (Clarendon Press, Oxford, 1995), in particular 200–17; and the contributions in J Monar and R Morgan (eds), The Third Pillar of the European Union: Cooperation in the Fields of Justice and Home Affairs (European Interuniversity Press, 1994). 24 Article K.1, in particular paras (7)–(9). 25 Article K.4.

6  History, Principles and Institutions consolidated and formalised earlier law enforcement initiatives.26 These initiatives, along with extra-EU mechanisms of cooperation such as the Council of Europe and Schengen, have thus been accurately characterised as ‘laboratories’ of European integration in the field of Justice and Home Affairs.27 However, the provisions on the form of EU action in criminal matters remained extremely weak. The opening provision of the Maastricht third pillar, Article K, referred to ‘cooperation in the fields of Justice and Home Affairs’, and not to a common policy on Justice and Home Affairs (as has been the case with both first pillar policies, such as the Common Agricultural Policy) and second pillar initiatives (see the Common Foreign and Security Policy (CFSP)). As has been noted, this approach and contrast ‘suggested the much less ambitious objective of cooperation in making effective national policies which would remain unchanged’.28 Moreover, Article K.1 merely declared that Member States must regard a number of areas in Justice and Home Affairs as ‘matters of common interest’. The emphasis here was not on integration, but on ‘matters of common interest’. Moreover, the emphasis was on Member States, with no explicit reference to the EU as an actor in the third pillar.29 Further, the extent to which the EU could take legally binding action in these areas of ‘common interest’ was both limited and unclear. The main legally binding instrument provided for by the Maastricht third pillar was the instrument of Conventions which clearly mirrored intergovernmental cooperation under international law fora such as the United Nations and the Council of Europe.30 The Council could also adopt the seemingly non-legally binding ‘joint positions’ and ‘Joint Actions’, the legally binding character of which is unclear and has been contested.31 Thus, while in principle the Maastricht third pillar established a degree of competence for the EU in the field of Justice and Home Affairs, including criminal matters, the powers given to the EU to exercise such competence remained significantly limited and unclear. The reluctance of – at least certain – Member States to communitarise Justice and Home Affairs was also reflected in the extremely limited role given to EU institutions in the third pillar, most notably in the area of criminal law. The Commission was not granted a right of initiative with regard to measures on the main areas relating to criminal matters, with the initiative only being granted to Member States.32 The European Parliament was also granted an extremely limited role: it was to be ‘regularly informed of discussions’ in third pillar areas; the Presidency would merely ‘consult’ the Parliament ‘on the principal aspects of activities’ in the third pillar; and it could ‘ask questions or make recommendations’.33 The only provision on the European Court of Justice (ECJ) 26 M den Boer, ‘Europe and the Art of International Police Co-operation: Free Fall or Measured Scenario?’ in D O’Keeffe and Twomey (eds), Legal Issues of the Maastricht Treaty (Wiley Chancery, 1994) 279–294, at 281. 27 See J Monar, ‘The Dynamics of Justice and Home Affairs: Laboratories, Driving Factors and Costs’ (2001) 39 Journal of Common Market Studies 747. 28 E Denza, The Intergovernmental Pillars of the European Union (Oxford University Press, 2004) 194. Note also art K.2(2), which stated that Title VI would not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security. 29 See in this context the observation of Müller-Graf ((n 23) 507), who noted that the provisions of the third pillar do not even mention the EU as a separately acting agent in the relevant fields of policy. 30 Article K.3(2)(c). 31 For the view that Joint Actions are not legally binding, see Müller-Graf (n 23) 509; for the contrary view under certain circumstances, see O’Keeffe (n 23) 914. 32 These are the areas referred to in arts K.1(7)–(9) and K.3(2). 33 Article K.6.

The Third Pillar: The Institutional Framework  7 did not grant jurisdiction via the Treaty, but mentioned that third pillar conventions adopted under the third pillar might provide for such jurisdiction to interpret their provisions and to rule on any disputes regarding their application.34 Unsurprisingly, given the extent of the limits to the Community method, decision-making in the Council would – with limited exceptions – take place by unanimity.35

B.  The Amsterdam Treaty i. Background The operation of the former third pillar demonstrated the weaknesses and limits of the compromise reached in Maastricht. Legislative production was not abundant and mainly took the form of conventions, which proved to be extremely cumbersome to ratify.36 A number of Joint Actions were adopted, some of them providing definitions of key concepts for EU criminal law such as organised crime, but their legal status was unclear and their implementation prospects were questionable.37 Enforcement and judicial control of third pillar law were minimal following the very limited Treaty provisions. The same applied to democratic control and transparency, with the European Parliament being essentially marginalised. An assessment of the Maastricht third pillar in 1995 pointed out the inactivity in the field and noted that: Many of the reasons for this inactivity or lack of concrete progress are to be found in the structure of the Third Pillar itself. Other failures to achieve consensus seem to derive from an unwillingness to change the patterns of inter-governmental cooperation existing prior to the entry into force of the Third Pillar. A further disturbing trend is that the Third Pillar structure seems to have in no way assisted in making intergovernmental cooperation in this area more transparent, precisely at a time when transparency has become one of the major concerns at Union and Community level.38

The deficiencies of the Maastricht third pillar were discussed in the intergovernmental conference leading to the adoption of the Amsterdam Treaty.39 Central to the debate were again issues of competence, the institutional framework and the question of whether to 34 Article K.3(2)(c). 35 Article K.4(3). 36 See, for example, the Europol Convention, which was signed in 1995 and entered into force in 1999; see ch 4. 37 For an analysis of the Joint Action on organised crime, see V Mitsilegas, ‘Defining Organised Crime in the European Union: The Limits of European Criminal Law in an Area of Freedom, Security and Justice’ (2001) 56 European Law Review 565. 38 O’Keeffe (n 23) 894. 39 For a diplomat’s view of the Treaty of Amsterdam negotiations, including the provisions on Justice and Home Affairs, see B McDonagh, Original Sin in a Brave New World: An Account of the Negotiation of the Treaty of Amsterdam (Institute of European Affairs, 1998); for a similar account of the UK position, see S Wall, A Stranger in Europe: Britain and the EU from Thatcher to Blair (Oxford University Press, 2008). On the Amsterdam Intergovernmental Conference and Justice and Home Affairs, see H Labayle, ‘La Coopération Européenne en Matière de Justice et d’Affairs Intérieures et la Conférence Intergouvernmentale’ (1997) 33 Revue Trimestrielle du Droit Européen 1; on the Intergovernmental Conference (IGC), see further J. ­Grünhage, ‘The 1996/97 Intergovernmental Conference: A Survey of the Process’ in J Monar and W Wessels (eds), The European Union After the Treaty of Amsterdam (Continuum, London and New York, 2001).9–30.

8  History, Principles and Institutions transfer matters falling under the third pillar to the Community pillar.40 The different national approaches on these matters did not stop the adoption of significant changes to the third pillar in Amsterdam: Maastricht third pillar areas of immigration, asylum, borders and civil law were ‘communitarised’, forming part of Title IV of the EC Treaty;41 and the third pillar itself, now entitled ‘Provisions on police and judicial cooperation in criminal matters’, was revamped and strengthened.42 The Amsterdam provisions were subject to some limited amendments by the Nice Treaty, in particular regarding the role of the European Union Agency for Criminal Justice Cooperation (Eurojust) and enhanced cooperation, formed the basis of the institutional framework until 2009. The latter included detailed provisions on competence and the types of common action in the fields of police cooperation, judicial cooperation in criminal matters, and criminal law approximation.43 Significantly, these forms of common action were required to achieve a general EU objective ‘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 and by preventing and combating racism and xenophobia’.44

ii.  The AFSJ and the Incorporation of the Schengen Acquis The institutional developments in the third pillar brought about in Amsterdam must be viewed in the context of the express reference to the development of the EU as an ‘Area of Freedom, Security and Justice’, which was elevated to the status of a EU objective. According to Article 2 TEU, the EU’s objectives included ‘to maintain and develop the Union as an area of freedom, security and justice, in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime’ (emphasis added). The inclusion of this objective, which was also visible in both Title IV of the EC Treaty (the ‘communitarised’ Maastricht third pillar)45 and Title VI TEU (the remaining third pillar dealing with criminal matters)46 was significant, in that it formed the framework within which EU action on Justice and Home Affairs, including criminal law, would be interpreted. While the concept of the ‘area’ is not clear, and the r­ elationship 40 See in this context the Progress Report on the IGC of June 1996, Doc CONF 360/1/96 REV 1, Brussels, 17 June 1996, www.consilium.europa.eu/uedocs/cms_data/docs/cig1996/03860-r1en6.pdf. 41 And customs cooperation moving to a separate EC Treaty provision: art 135. On art 135 and criminal law, see ch 2. 42 On the evolution of Justice and Home Affairs matters in the Amsterdam Treaty, see Denza (n 28); J Monar, ‘Justice and Home Affairs in the Treaty of Amsterdam: Reform at the Price of Fragmentation’ (1998) 23 European Law Review 320; H Labayle, ‘Un Espace de Liberté, de Sécurité et de Justice’ (1998) 34 Revue Trimestrielle du Droit Européen 813; J Kuijper, ‘The Evolution of the Third Pillar from Maastricht to the European Constitution: Institutional Aspects’ (2004) 41 CML Rev 609; D Kostakopoulou, ‘The Area of Freedom, Security and Justice and the European Union’s Constitutional Dialogue’ in C Barnard (ed), The Fundamentals of EU Law Revisited. Assessing the Impact of the Constitutional Debate (Oxford University Press, 2007) 153–92; and M den Boer, ‘An Area of Freedom, Security and Justice: Bogged Down by Compromise’ in D O’Keeffe and P Twomey (eds), Legal Issues of the Amsterdam Treaty (Hart Publishing, 1999) 303–22. For a h ­ istorical overview of the evolution of EU Justice and Home Affairs, see W de Lobkowicz, L’Europe et la Sécurité Intérieure. Une Élaboration par Étapes (La Documentation Francaise, 2002). 43 Articles 29–31 TEU. 44 Article 29(1) TEU. On specific areas of criminal law competence under art 29, see ch 2. 45 Article 61 EC. 46 Article 29 TEU.

The Third Pillar: The Institutional Framework  9 between the three elements of ‘freedom, security and justice’ is contested,47 it is important to note that the conception of the EU as an ‘area’ (or espace in French) is reminiscent of earlier initiatives, in particular the Schengen Area (espace Schengen).48 In this context, it is noteworthy that the introduction of the development of the EU as an ‘Area of Freedom, Security and Justice’ was accompanied in Amsterdam by the incorporation of the Schengen acquis into Community/Union law.49 The latter was a complex process generating a raft of issues, such as what constitutes the acquis, how to allocate this and subsequent Schengen-building measures between pillars, and of course issues relating to variable geometry, ie, non-participating Member States and participating non-EU Member States.50 However, it also signified the affirmation of the Schengen logic within the EU framework.51 Linked to the Schengen logic, the EU as an ‘area’ of freedom, security and justice was based on the objective of free movement in an area without internal frontiers, thus entailing a reconfiguration of territoriality at both the national and the EU level. While this reconfiguration of territoriality was particularly relevant in the field of EU immigration and borders law, most notably with regard to practices of inclusion and exclusion,52 it will be seen that it also had implications for the development of EU criminal law, both by the legislator and by the Court of Justice – in particular when the latter has had to approach the relationship between national legal orders under mutual recognition in criminal matters, and Schengen-related matters such as ne bis in idem.53

iii.  The Institutional Framework a. Decision-Making Intergovernmental elements in the third pillar remained in Amsterdam, although the role of the EU institutions was in general enhanced in comparison with Maastricht.54 47 On different takes on the concept of the ‘Area of Freedom, Security and Justice’, see H Lindahl, ‘Finding a Place for Freedom, Security and Justice: The European Union’s Claim to Territorial Unity’ (2004) 29 European Law Review 461; and P Twomey, ‘Constructing a Secure Space: The Area of Freedom, Security and Justice’ in O’Keeffe and Twomey (n 42) 351–74. 48 See Labayle (n 42) 824. See also the discussion in Mitsilegas, Monar and Rees (n 1) 84–86. 49 See the Protocol Integrating the Schengen Acquis into the Framework of the European Union; for the subsequent definition of the Schengen acquis, see the Decision 1999/435 (OJ L176, 10 July 1999, 1) corrected by Decision 2000/645 [2001] OJ L9, 13 January, 24. 50 On the incorporation of Schengen into EC/EU law, see S Peers, ‘Caveat Emptor? Integrating the Schengen Acquis into the European Union Legal Order’ (1999) 2 Cambridge Yearbook of European Legal Studies 87; M den Boer, ‘The Incorporation of Schengen into the TEU: A Bridge Too Far?’ in Monar and Wessels (n 39) 296–320; and D Thym, ‘The Schengen Law: A Challenge for Legal Accountability in the European Union’ (2002) 8 European Law Journal 218. 51 Unsurprisingly, the incorporation of the Schengen acquis into the EC/EU framework was strongly supported by the Benelux countries; see Benelux Memorandum on the Intergovernmental Conference, Doc CONF 3844/96, Brussels, 5 May 1996, 10, www.consilium.europa.eu/uedocs/cms_data/docs/ cig1996/03844en6.pdf. 52 In this context, see E Guild, ‘Moving the Borders of Europe’, Inaugural Lecture, University of Nijmegen, http:/cmr.jur.ru.nl/cmr/docs/oratie.eg_pdf; C Groenendijk, E Guild and P Minderhoud (eds), In Search of Europe’s Borders (Brill, 2003); D Bigo and E Guild (eds), Controlling Frontiers: Free Movement into and within Europe (Ashgate, 2005); D Kostakopoulou, ‘Is There an Alternative to “Schengenland”?’ (1998) 46(5) Political Studies 886. 53 For an analysis of this case law, see ch 3. 54 For a comparison of a number of institutional aspects, see A Dashwood, ‘Issues of Decision-Making in the European Union after Nice’ in A Arnull and D Wincott (eds), Accountability and Legitimacy in the European Union (Oxford University Press, 2002) 13–40.

10  History, Principles and Institutions As far as decision-making is concerned, unanimity in the Council remained for the vast majority of third pillar law.55 The European Parliament, while in an enhanced position in comparison to the situation under Maastricht, continued to have an extremely limited role: it was merely consulted in the adoption of Framework Decisions, decisions and conventions.56 Thus, law-making in the third pillar remained firmly with Member States, which obtained a further reassurance on checking the EU’s reach in criminal matters by retaining the Maastricht provision that the third pillar would ‘not affect the exercise of responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security’.57 However, as an opening to Member States which supported further integration in criminal matters, the Treaty – as amended in Nice – included provisions expressly allowing enhanced cooperation in the third pillar.58 Moreover, Amsterdam also included a passerelle provision,59 which was reformulated to state that the Council may decide unanimously after consulting the European Parliament to transfer action in areas mentioned in Article 29 TEU to Title IV of the EC Treaty.60 The Commission – which also embarked on a series of Court challenges contesting the legality of the choice of third pillar legal bases for EU criminal law harmonisation instruments61 – proposed the use of this provision after the rejection of the Constitutional Treaty (which largely ‘communitarised’ decision-making in criminal matters by abolishing the third pillar), but the proposal was not taken on board by Member States.62 b. Instruments Although the decision-making arrangements remained in essence intergovernmental, the Amsterdam Treaty strengthened significantly the legal instruments under the third pillar. Conventions, which were introduced by Maastricht, remained in the Treaty,63 although their use post-Amsterdam was minimal. Amsterdam introduced a series of new instruments for the third pillar. A new instrument was the Common Position ‘defining the approach of the Union to a particular matter’.64 Common positions were

55 Article 34(2) TEU. The exception is measures necessary to implement third pillar Decisions which are adopted by qualified majority (art 34(2)(c)). 56 Article 39(1) TEU. Parliament also must be regularly informed of discussions on the third pillar by the Presidency and the Commission, and may ask questions of the Council and make recommendations (art 39(2) and (3)). The role of the European Parliament is even more limited in the negotiation and conclusion of third pillar international agreements under arts 24 and 38 TEU; for details, see ch 6. 57 Article 33. See also art 64(1) EC in Title IV. See art K.2(2) of the Maastricht Treaty. 58 Articles 40, 40a and 40b TEU. 59 See the passerelle in Article K.9 of the Maastricht Treaty, which, however, did not apply to judicial cooperation in criminal matters, customs and police cooperation. 60 Article  42 TEU. Member States will adopt that decision in accordance with their constitutional requirements. 61 See ch 2. 62 On the Commission passerelle proposals and the evolution of Member States’ reactions, see House of Commons Home Affairs Committee, Justice and Home Affairs Issues at European Union Level, 3rd Report, session 2006–07, HC 76-I, paras 328–33; and V Mitsilegas, ‘Constitutional Principles of the European Community and European Criminal Law’ (2006) 8 European Journal of Law Reform 301, 308–09. 63 Article 34(2)(d). 64 Article 34(2)(a).

The Third Pillar: The Institutional Framework  11 particularly relevant in the context of EU external action, with the Treaty stating that Member States must defend them within international organisations and at international conferences.65 The Court of Justice has applied the duty of loyal cooperation to Common Positions, holding this to mean in particular that ‘Member States are to take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under European Union law’.66 The Court has not excluded the possibility for Common Positions to have legal effects vis-a-vis third parties.67 Third pillar measures which the Treaty introduced expressly as legally binding were Decisions, which exclude legal approximation and do not entail direct effect,68 and Framework Decisions for the purposes of legal approximation.69 The introduction of Framework Decisions, which constituted the main form of third pillar law-making post-Amsterdam, considerably strengthened third pillar law. Framework Decisions were very similar to first pillar Directives – according to the Treaty, they were binding upon the Member States as to the result to be achieved, but left the choice of form and methods to the national authorities.70 The main difference with Directives was that Framework Decisions did not entail direct effect.71 However, as will be seen below, this did not stop the Court from stressing the legally binding character of third pillar law and boosting efforts to implement it in Member States.72 Moreover, the Court has confirmed the discretion of the Council to choose which third pillar legal instrument to adopt: in a case involving the Framework Decision on the European Arrest Warrant, the Court upheld the legislative choice of a Framework Decision as a form of third pillar law-making against arguments that this was the wrong choice of instrument and that the Council should have adopted a convention.73 The strengthening of the third pillar legal instruments was also confirmed by the elements of Maastricht which were not included in the Treaty, namely joint positions and, in particular, Joint Actions. The disappearance of Joint Actions from the Treaty resulted in a number of complex questions, especially regarding the status of Joint Actions adopted under the Maastricht procedures post-Amsterdam, their effects and their judicial scrutiny by the ECJ.74 While a number of proposals to replace Joint Actions by Framework Decisions were tabled by the Commission, these proposals – covering important aspects of criminal law harmonisation such as organised crime and

65 Article 37 TEU. 66 Case C-354/04 P, Gestoras Pro Amnistia et al v Council [2007] ECR I-5179, paragraph 52; and Case C-355/04 P, Segi et al v Council, ECR [2007] I-6157, para 52. Here the Court applied its earlier Pupino ruling (see below). 67 Gestoras and Segi; see the analysis below. 68 Article 34(2)(c). 69 Article 34(2)(b). 70 ibid. 71 ibid. 72 See the analysis on the Pupino judgment below. 73 Case C-303/05, Advocaten voor de Wereld VZW v Leden van de Ministerraad [2007] ECR I-3633. For an analysis of this, see ch 3. 74 On the uncertainty as to whether a measure of secondary law survives the repeal of its legal basis, see N Fennelly, ‘The Area of “Freedom, Security and Justice” and the European Court of Justice: A Personal View’ (2000) 49 International and Comparative Law Quarterly 10, at 12.

12  History, Principles and Institutions racism and xenophobia – have not yet been formally adopted.75 This exacerbates legal uncertainly, especially in the light of the unclear legal status of Joint Actions. c. Initiative Intergovernmental elements were also retained in the Amsterdam Treaty with regard to the right of initiative. While the Commission was granted a right of initiative in the third pillar, this right was shared with Member States, with any Member State having the right to table a proposal for a third pillar instrument.76 While the majority of third pillar proposals post-Amsterdam were tabled by the Commission, initiatives by Member States did not cease to exist. One form of Member State initiatives involved a number of Member States (at times consecutive EU presidencies) acting together to table proposals on matters perceived quite close to state sovereignty and thus rather ‘intergovernmental’ – examples in this context include a series of Member States’ sole or joint initiatives promoting mutual recognition in criminal matters,77 as well as initiatives that can be seen at times as a response to or pre-emption of more integrationist proposals by the Commission.78 Another form of intervention involved initiatives by one Member State, usually at the time of its holding of the EU Presidency. From an EU law and policy perspective, Member States initiatives presented a number of challenges: being prepared at times by civil servants in domestic interior or justice ministries whose job was to table draft domestic law, their structure and drafting left much to be desired in comparison to proposals prepared by expert EU law staff in the Commission; there was minimal consultation; their tabling could clash with the Commission’s timetable as outlined in its annual work programmes; and they could reflect a very narrow agenda or attempts to export a matter of purely domestic interest at the EU level.79 On some of these grounds, a number of Member State initiatives over the years failed to be adopted.80

75 For details on this, see ch 2. 76 Article 34(2). 77 These include proposals for the adopted Framework Decisions on the mutual recognition of: financial penalties (France, Sweden and the UK, Council Doc 19710/01, Brussels, 12 July 2001, and accompanying Explanatory Memorandum (EM) ADD 1, Brussels, 16 July 2001); confiscation orders (Denmark, Council Doc 9955/02, Brussels, 14 June 2002, and EM in ADD 1, Brussels, 2 July 2002); and freezing orders (France, Sweden and Belgium, Council Doc 13986/00, Brussels, 30 November 200 and EM in ADD 1, Brussels, 22 December 2000). They also include more recent proposals such as the proposal on the recognition and supervision of suspended sentences and alternative sanctions (Germany and France, Council Doc 5325/07, Brussels, 15 January 2007 and EM in ADD 1, Brussels, 1 February 2007); and the proposal on a common approach on judgments in absentia for mutual recognition purposes (Slovenia, France, the Czech Republic, Sweden, Slovakia, the UK and Germany, Council Doc 5213/08, Brussels, 14 January 2008 and EM in ADD 1, Brussels, 30 January 2008). On mutual recognition, see ch 3. 78 The example of the evolution of Eurojust is characteristic in this context; see ch 4. 79 On this point, see H Nilsson, Decision-Making in EU Justice and Home Affairs: Current Shortcomings and Reform Possibilities, Sussex European Institute Working Paper No 57, November 2002, 4. 80 Examples of aborted presidency initiatives include a Spanish initiative for a Convention on the suppression by customs administrations of illicit drug trafficking on the high seas (Council Doc 5382/02, Brussels, 4 February 2002); a Greek initiative for a Framework Decision on the prevention and control of trafficking in human organs (Council Doc 6290/03, Brussels, 13 February 2003); and, more controversially, a Greek initiative for a Framework Decision on the application of the ne bis in idem principle (Council Doc 6356/03,

The Third Pillar: The Institutional Framework  13 d.  The Role of the CJEU The Treaty Framework Another significant limitation to the Commission’s powers under the third pillar was that it did not have a right to institute infringement proceedings against Member States, which was particularly relevant in cases of the misimplementation or nonimplementation of third pillar law. This limitation on the Commission’s role as ‘guardian of the Treaties’ presented considerable challenges in ensuring the timely and appropriate implementation of third pillar instruments by Member States, with Member States’ implementation records in the third pillar being consistently criticised by the Commission.81 The absence of infringement proceedings was not the only limit to judicial control in the third pillar.82 The role of the CJEU was strengthened in comparison with the situation under Amsterdam, but remained subject to significant limitations. The Court’s third pillar jurisdiction was delineated by (then) Articles 46(b) and 35 TEU.83 The Court did have jurisdiction to give preliminary rulings on the validity and interpretation of Framework Decisions and decisions, on the interpretation of conventions, and on the validity and interpretation of the measures implementing them.84 However, such jurisdiction was subject to acceptance by Member States85 – and not all Member States declared acceptance.86 This limitation of the preliminary ruling jurisdiction – introduced largely at the insistence of the UK, which, unsurprisingly, did not accept such jurisdiction thus far87 – was extremely detrimental, in that it limited the avenues of cooperation between Luxembourg and national courts, and deprived national courts of Brussels, 13 February 2003; on the issues resulting from the non-harmonisation of ne bis in idem across the EU, see ch 3). An example of a ‘watered-down’ proposal is the Spanish initiative on the setting up of a network of contact points of national authorities responsible for private security (Council Doc 5135/02, Brussels, 29 January 2002), which ended up as a Council Recommendation (OJ C153, 27 June 2002, 1). 81 For criticism of Member States’ implementation of third pillar measures, see European Commission, ‘Report on Implementation of The Hague Programme for 2007’, COM (2008) 373 final, Brussels, 2 July 2008; and for more details, see the accompanying Commission Staff Working Document SEC (2008) 2048, Brussels, 2 July 2008. 82 On the role of the ECJ in the third pillar, see A Arnull, ‘Taming the Beast? The Treaty of Amsterdam and the Court of Justice’ in O’Keeffe and Twomey (n 42) 109–22; Dashwood (n 54); S Peers, ‘Salvation outside the Church: Judicial Protection in the Third Pillar after the Pupino and Segi Judgments’ (2007) 44 CML Rev 883; Denza (n 28); Fennelly (n 74); A Albors-Llorens, ‘Changes in the Jurisdiction of the European Court of Justice under the Treaty of Amsterdam’ (1998) 35 CML Rev 1273. 83 See also art 2(1) of the Protocol on the Schengen acquis. For further details, see Peers (n 82). 84 Article  35(1). Note the strengthening of the provision with regard to the pre-existing instrument of Conventions in comparison to Maastricht, which left the determination of ECJ jurisdiction to the specific Conventions and did not include a general Treaty provision establishing such jurisdiction. 85 Via a declaration: art 35(2). Even if they accept jurisdiction, Member States can allow references only by courts and tribunals against whose decisions there is no judicial remedy under national law. This is similar to the limitation of the Court’s jurisdiction in Title IV; see art 68 EC. 86 Not all Member States made a Declaration under Article 35(2) TEU, including Denmark, Ireland and the UK. According to the Court of Justice, no official information was available in March 2008 with regard to Declarations by Bulgaria, Cyprus, Estonia, Malta, Poland, Romania and Slovakia. The remaining 17 Member States have made such Declarations with varying content. For details (including the relevant OJ references), see note by the ECJ Research and Documentation Service, ‘Jurisdiction of the Court of Justice to Give Preliminary Rulings on Police and Judicial Cooperation in Criminal Matters’, March 2008, http://curia.europa/eu/en/ instit/txtdocfr/txtsenvigueur/art35.pdf. 87 On UK resistance, see Denza (n 28) 317.

14  History, Principles and Institutions the ability to influence the development of EU law by sending to Luxembourg questions that were shaped in their domestic legal systems.88 There may also have been an impact on the consistency of the interpretation of EU law by national courts, although, as has been demonstrated by the interpretation of the European Arrest Warrant by the House of Lords, denying the right to send references to Luxembourg did not stop domestic courts from taking into account Luxembourg interpretation of third pillar law and applying it in their domestic context.89 The Court also established jurisdiction to review the legality of Framework Decisions and decisions on the grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaty or of any rule of law relating to its application, or misuse of powers; however, standing was limited to Member States and the Commission, and was not extended to individuals.90 The Court also had jurisdiction to rule under certain conditions on any dispute between Member States regarding the interpretation or application of third pillar instruments, and on similar disputes between Member States and the Commission regarding the interpretation of conventions only.91 However, mirroring Member States’ willingness to keep domestic operational action in criminal matters out of bounds, the Court did not have jurisdiction ‘to review the validity or proportionality of operations carried out by the police or 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’.92 This represented a considerable limitation of judicial control on operational action under the third pillar.93 Judicial Protection The limits to the Court’s jurisdiction raised a number of concerns regarding the capacity of the third pillar framework to provide effective judicial protection for affected individuals. The issue of judicial protection arose most prominently in the context of EU counter-terrorism measures: along with their significant human rights implications, these measures present considerable legal complexity as they may transcend one pillar and represent cross-pillar initiatives, while also representing a merging of internal with external EU criminal law, and involve the incorporation of international commitments into EU law. In this context, a distinction can be made between two categories of situations: instances where the EU legislator did not have any discretion in implementing 88 On this point, see also Arnull (n 82) 118. 89 See in particular the case of Dabas v High Court of Justice, Madrid [2007] UKHL 6, where the House of Lords referred to Pupino to interpret the domestic Extradition Act 2003 in the light of the Framework Decision on the European Arrest Warrant. For details, see V Mitsilegas, ‘Drafting to Implement EU Law: The European Arrest Warrant in the United Kingdom’ in H Xanthaki (ed), Legislative Drafting: A Modern Approach. Essays in Honour of Sir William Dale (Routledge, 2008) 199–212. For accurate predictions on the effect of ECJ third pillar preliminary rulings on UK courts, see Denza (n 28) 317; and Arnull (n 82) 118. On the erga omnes effects of preliminary rulings, see K Lenaerts, ‘The Rule of Law and the Coherence of the Judicial System of the European Union’ (2007) 44 CML Rev 1625, 1641–45. 90 Article  35(6). Arnull has criticised the failure to grant to individuals standing with regard Decision: Arnull (n 82) 119. 91 Article 35(7). 92 Article 35(5). 93 It has been argued that the practical effect of Article 35(5) may be limited as the provision is concerned with national, and not EU, measures. See A Arnull, The European Union and its Court of Justice, 2nd edn (Oxford University Press, 2006) 134.

The Third Pillar: The Institutional Framework  15 UN measures; and instances where the EU legislator had some degree of discretion in implementation by specifying individually the persons, groups and entities affected.94 The first category of cases will be examined in Chapter 10.95 In the second category, two important cases concerning judicial protection arose involving the adoption of a crosspillar Common Position which implemented Resolution 1373(2001) of the UN Security Council (UNSC) on terrorist finance.96 Individuals and organisations affected by this Common Position sought recourse to the Court of First Instance97 and, on appeal, to the Court of Justice.98 Central to these cases was the question of effective judicial protection and remedies to challenge the inclusion of those concerned within the scope of EU restrictive measures. The Court of Justice upheld the Court of First Instance’s ruling with regard to the applicant’s action for damages: based on then Articles 46 and 35 TEU (with the Court stating that the latter ‘confers no jurisdiction on the Court of Justice to entertain any action for damages whatsoever’),99 as well as then Article 41(1) TEU (on compensation for damages caused by EU institutions),100 the Court confirmed that no action for damages is provided for in the third pillar. However, it did go one step further when examining the issue of effective judicial protection in the context of preliminary rulings. In a striking judgment, it applied its first pillar case law on the right to make a reference for a preliminary ruling to the third pillar,101 stating that this right exists ‘in respect of all measures adopted by the Council, whatever their nature or form, which are intended to have legal effects in relation to third parties’.102 On the basis of this substantive test, and notwithstanding the fact that Article  35 did not confer ECJ jurisdiction in this regard, the Court held that ‘it has to be possible to make subject to review by the Court a Common Position which, because of its content, has a scope going beyond that assigned by the EU Treaty to that kind of act’.103 The Court would have jurisdiction to find ‘that the Common Position is intended to produce legal effects in relation to third parties, to accord it its true classification and to give it a preliminary ruling’.104 It would also have jurisdiction to review the lawfulness of Common Positions under the conditions set out in then Article 35(6) TEU.105 94 On this distinction, see Court of First Instance, Case T–47/03, Sison v Council [2007] ECR I-1233, paras 147–50. 95 For an analysis of the issues raised by the relationship between international law and EU law for judicial protection, see ch 8. 96 Council Common Position 2001/931 adopted under Articles 15 and 34 TEU ‘on the application of specific measures to combat terrorism’ [2001] OJ L344, 28 December, 93. This Common Position has been amended a number of times since to update the lists of individuals and organisations affected by it; for the latest version at the time of writing, see Council Decision (CFSP) 2018/475 of 21 March 2018 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision (CFSP) 2017/1426 [2019] OJ L79, 22 March, 26. 97 Cases T-338/02 ECR [2004] II–1647 (Segi) and T-333/02 (Gestoras). 98 ibid. 99 ibid para 46. 100 ibid para 47. The Court referred to its judgment in the case Spain v Eurojust; see ch 4. 101 The Court has also applied on a number of occasions the admissibility rules of Article  234 EC to third pillar cases; see Peers (n 82) 887–88. 102 Segi and Gestoras (n 97) para 53. 103 ibid para 54. 104 ibid. 105 ibid para 55.

16  History, Principles and Institutions The Court’s judgments in Gestoras Pro Amnistia and Segi represented a clear effort to address the criticism that it was reluctant to go beyond the Treaty constraints and provide effective judicial protection to individuals affected by far-reaching restrictive measures, such as their inclusion on terrorist lists,106 which were adopted with little scrutiny.107 The substantive test adopted could address the practice of Member States in the Council choosing to adopt restrictive measures with human rights implications by choosing a form of instrument, such as Common Positions, whose legal status was unclear and which were subject to minimal judicial scrutiny on the basis of the letter of the EU Treaty – this may also be the case in particular in cases of a combined second and third pillar legal basis.108 The Court indicated its willingness to look behind the formal classification of a measure and to provide a mechanism for review for measures affecting the rights of individuals irrespective of such classification, albeit in a decentralised manner, via the preliminary rulings route.109 According to the Court, this avenue constituted a remedy, and ironically for the applicants, their claim that there was no effective judicial protection at the EU level was rejected.110 Another source of judicial protection concerns proved to be not the letter of Title VI (and Title IV for that matter), but the implementation of these provisions in practice. It was thought that the conduct of preliminary ruling proceedings in Luxembourg, in particular their lengthy duration, was not appropriate for cases involving Justice and Home Affairs matters, which involve situations such as individuals in custody and require speedy resolution.111 The President of the Court subsequently presented to the Council a request by the Court to amend its Statute with a view to instituting an

106 For a critical overview of the development of EU terrorist lists, see E Guild, ‘The Uses and Abuses of Counter-terrorism Policies in Europe: The Case of the “Terrorist Lists”’ (2008) 46(1) Journal of Common Market Studies 173. 107 A degree of willingness to provide some avenues for judicial review had been demonstrated a few months earlier by the Court of First Instance in Case T-228/02 OMPI v Council [2006] ECR II-4665. The Court dismissed the applicant organisation’s action for annulment of the Common Position as inadmissible, ruling that neither the second nor the third pillar contains provisions for action for annulment (paras 45–54, with the Court stressing in para 54 that these pillars provide a ‘limited system of judicial review’). However, the Court did accept jurisdiction to hear an action for annulment directed against a Common Position adopted on the basis of arts 15 and 34 TEU ‘only strictly to the extent that, in support of such an action, the applicant alleges an infringement of the Community’s competences’ (para 56). In this context, the Court found the application to be unfounded. It then went on to examine issues of judicial protection with regard to first pillar measures implementing the Common Position. For commentaries on OMPI, see Guild (n 106); and C Eckes, ‘Case Note’ (2007) 44 CML Rev 1117. 108 The impact of the judgment on Member States’ discretion to choose the form of legislative action in the third pillar remains to be seen. It must be recalled in this context that the Court has accepted a wide range of discretion in the European Arrest Warrant case. However, there is a significant difference as that case involved the choice between two legally binding measures (a Convention and a Framework Decision). The solution may be different if the legal classification of a measure has a substantial impact on judicial protection. 109 On this point, see also Peers (n 82) 898. 110 Segi and Gestoras (n 97) para 57. Commentators called the Court’s rulings a ‘Pyrrhic victory’ for the applicants; see A Johnston, ‘The European Union, the Ongoing Search for Terrorists’ Assets and a Satisfactory Legal Framework: Getting Warmer or Colder?’ (2007) 66 Cambridge Law Journal 523, 523–25. 111 This issue was highlighted inter alia in a discussion paper presented by the Court in 2006 where it was noted that the average duration of preliminary ruling procedures has been reduced from 25.5 months in 2003 to 20.4 months in 2005. See V Skouris, President of the Court of Justice, ‘Treatment of questions referred for a preliminary ruling concerning the area of freedom, security and justice’, Council Doc 13272/06, Brussels, 28 September 2006, 2.

The Third Pillar and the Constitutional Principles of the Community  17 emergency preliminary ruling procedure.112 Negotiations resulted in a Council Decision amending the Protocol on the Statute of the Court of Justice,113 followed by amendments to the Court’s Rules of Procedure.114 The new framework allowed in particular with regard preliminary rulings in Justice and Home Affairs matters an urgent procedure at the request of the national court or, exceptionally, following the Court’s own motion.115 Rulings were to be given by a designated court chamber, after hearing the Advocate General.116 According to an Information Note published by the Court, the urgent procedure must be requested ‘only when it is absolutely necessary for the Court to give its ruling on the reference as quickly as possible’, including cases where a person is detained or deprived of their liberty and where the answer to the question raised is decisive as to the assessment of the person’s legal situation.117 This new procedure thus contributed significantly towards expediting procedures and achieving legal certainty in cases having a significant impact on fundamental rights.118

IV.  The Third Pillar and the Constitutional Principles of the Community: The Contribution of the Court of Justice The beginning of the 2000s witnessed the proliferation of judgments from Luxembourg relating to the third pillar. These judgments – which must be viewed in conjunction with case law by national courts, including constitutional courts – have played a major role in the development of the principles of EU criminal law. A central feature in this context has been the interpretation of the reach of the third pillar provisions (which, as explained above, form a more limited, less supranational framework than the Community law first pillar), and the determination of the applicability of first pillar Community law principles to the third pillar.119 The influence of the Court of Justice120 and, where appropriate, national courts in the development of legal principles for the third pillar 112 Justice and Home Affairs Council Conclusions of 18 September 2007, 15 (Council Doc 12604/07, Presse 194). 113 [2008] OJ L24, 29 January, 42. 114 ibid 39. 115 For details see Rules of Procedure, new Article 104b inserted by the 2008 amendments. 116 Article 104b(5). In cases of extreme urgency, the Chamber may decide to omit the written part of the procedure altogether. See art 104b(4). 117 ‘Information Note on References from National Courts for a Preliminary Ruling. Supplement Following the Implementation of the Urgent Preliminary Ruling Procedure Applicable to References Concerning the Area of Freedom, Security and Justice’, http://curia.europa.eu/instit/txtdocfr/txtsenvigueur/noteppu.pdf. 118 The Court has already applied the expedited procedure in a case involving the European Arrest Warrant. See the judgment of 17 July 2008 in Case C-66/08, Kozlowski [2008] ECR I-06041. For cases decided postLisbon, see Case C-168/13 PPU Jeremy F, ECLI:EU:C:2013:358; Joined Cases C-404/15 and C-659/15 PPU, Aranyosi and Căldăraru, ECLI:EU:C:2016:198; Case C-108/16 PPU Dworzecki, ECLI:EU:C:2016:346; Case C-241/15, Bob-Dogi, ECLI:EU:C:2016:385; Case C-294/16 PPU, JZ, ECLI:EU:C:2016:610; Case C-452/16, PPU Poltorak, ECLI:EU:C:2016:858; Case C-453/16 PPU, Özçelik, ECLI:EU:C:2016:860; Case C-477/16 PPU, Kovalkovas, ECLI:EU:C:2016:861. 119 For details, see Mitsilegas (n 62). 120 The term ‘CJEU’ will be used primarily to refer to the Court, although there will inevitably be references to the Court as ‘ECJ’, given the usage and evolution of the term.

18  History, Principles and Institutions and EU criminal law more broadly will be examined in the relevant sections throughout this book. This section aims to provide a general overview of the development by the Court of such principles by focusing in particular on the application of constitutional principles of (first pillar) Community law to the third pillar.121 In this context, the development of the relationship between both the first and third pillars, but also between EU law and national law, is becoming increasingly significant.

A. Primacy A question that would inevitably emerge in the context of the evolution of third pillar law is whether the latter has primacy over national law, in particular national constitutional law. This issue is especially thorny in the light of the nature of the matters covered by the third pillar, which is at the heart of state sovereignty and has considerable implications for both fundamental rights and national constitutional principles. Not surprisingly, it was national constitutional and supreme courts that had to deal with primacy implications when examining the implementation of a flagship third pillar measure, the European Arrest Warrant Framework Decision, in their domestic legal orders. Different courts gave different solutions in the light of the domestic constitutional and legal framework, but no firm views on primacy have been offered. These courts began to varying degrees a constitutional dialogue with the Court of Justice with regard to the development of EU criminal law. The Court was proactive in ruling on the issue of primacy of first pillar law over third pillar law. In a number of cases, dealing primarily with competence issues and legal basis disputes, it confirmed the primacy of the first pillar based on Article 47 TEU.122

B.  Conferral in the Light of Effectiveness The Court has had to rule in a number of high-profile cases on issues of conferral of competence in criminal matters. With the choice of pillars having significant repercussions on the powers of EU institutions, unsurprisingly these cases were prompted by efforts by EU institutions to boost their institutional prerogatives. In all these cases, the Court used first pillar principles and methods in order to allocate the appropriate legal basis. One line of case law concerned challenges by the Commission with regard to the choice of a third pillar legal basis for the adoption of legislation on the definition of criminal offences and the imposition of criminal sanctions, with the Court confirming first pillar competence in certain criminal matters twice: the environmental crime and the ship-source pollution cases.123 In both cases, effectiveness was central in the

121 The term ‘constitutional principles of EC law’ is understood to include ‘systemic principles which underlie the constitutional structure of the Community and define the Community legal edifice’; see T Tridimas, The General Principles of EU Law, 2nd edn (Oxford University Press, 2006) 4. Tridimas referred to these principles as a subcategory of the general principles of Community law. 122 For more details on this, see ch 2. 123 For more details on this, see ch 2.

The Third Pillar and the Constitutional Principles of the Community  19 Court’s reasoning. Rather than treating criminal law as a special case confined to the third pillar, the Court viewed it in the same way as any other field of law – as a means to an end towards the effectiveness of Community law.124 Another case concerned an intervention by the European Parliament challenging the legal basis of an international agreement on passenger name records (PNRs) concluded between the Community and the US under the first pillar. In this case, the Court applied the first pillar criteria in looking at the appropriate legal basis of an instrument, noted the counter-terrorism focus of the agreement and went the opposite way to the previous cases, ruling that the agreement should have been concluded under a third pillar legal basis.125 These cases have had considerable implications for subsequent legislative action in criminal matters.

C.  Fundamental Rights Third pillar law is inextricably linked with issues relating to the protection of fundamental rights. Such issues have arisen explicitly or implicitly in all cases involving EU criminal law. As seen above, one category of cases involves issues of fundamental rights, including judicial protection at the EU level, concerning in particular access to the Luxembourg Court and remedies. The Court has increasingly been trying to broaden avenues of judicial protection, with the issue of effective judicial protection becoming increasingly central. Another line of cases involves the implications of third pillar law on the rights of the defendant at the national level. Thus, major cases have involved the application of the European Arrest Warrant,126 the rights of the defendant against the rights of the victim127 and the rights of the defendant in cases involving double jeopardy.128 Two main – and not entirely consistent – trends can be discerned in this context. The first is the Court’s assertions of the centrality of fundamental rights in EU law, including third pillar law (with the Court referring repeatedly to the European Convention on Human Rights (ECHR), but also explicitly to the Charter of Fundamental Rights of the European Union in the European Arrest Warrant case) and the obligations of national courts to take into account and uphold such rights. However, the second tendency of the Court is paradoxically to limit the applicability of these rights by ruling that aspects of third pillar law do not involve substantive criminal law, but procedure; therefore, the special human rights safeguards reserved for criminal law do not apply.129 This is a worrying trend, as it transforms criminal law into a field where 124 For further details, see ch 2. Effectiveness also played a part in the Court’s application of the first pillar principle of indirect effect to the third pillar. As will be seen below, in Pupino the Court linked effectiveness with the duty of loyal cooperation enshrined in Article 10 EC and justified the application of loyal cooperation in the third pillar – and subsequently indirect effect – on the grounds of the effective achievement of this time an EU objective: an ever closer Union as enshrined in Article 1 TEU. 125 On PNRs, see ch 9. 126 See ch 4. 127 See in particular Pupino, below. 128 See chs 5 and 6. 129 Note also the case law of the Court of First Instance regarding freezing orders: the Court has repeatedly held that as a precautionary measure, these measures do not constitute criminal sanctions and do not imply any accusation of a criminal nature (Sison (n 94) para 101; see also Case T–315/01, Kadi v Council [2005] ECR II-3649, para 248; and Case T-306/01, Yusuf and Al Barakaat International Foundation v Council

20  History, Principles and Institutions maximum EU-led enforcement capacity is matched with a shrinking field of applicability of human rights safeguards.130

D.  Loyal Cooperation and (In)Direct Effect: The Impact of Pupino As noted above, one of the fundamental differences between first and third pillar law is that, as is stated explicitly in the TEU, Framework Decisions – the main legislative instrument in the third pillar and in general mirroring the design of Directives – do not have direct effect.131 This limitation reflects Member States’ sensitivity with regard to the potential effects of third pillar law. The limitation is significant as it considerably restricts the potential for enforcement of third pillar law by blocking avenues for individuals to challenge their legal position as resulting from EU criminal law before the domestic courts. With the Treaty referring only to direct effect and excluding it in the context of Framework Decisions, however, the question arises as to whether other principles of Community law ensuring the enforcement of EC law in national courts – such as indirect effect – apply to the third pillar. The Luxembourg Court dealt with this issue in the Pupino judgment.132 This case arose after a reference by an Italian court asking to what extent the Italian Code of Criminal Procedure could be interpreted, in the light of a Framework Decision on the standing of victims in criminal proceedings,133 as allowing children allegedly having suffered a number of forms of abuse by their teacher to testify under a special procedure, and not in normal court proceedings, against the teacher. The Italian Code of Criminal Procedure allowed for this possibility for children under 16 only in cases involving sexual offences or offences with a sexual background. The Luxembourg Court was thus asked to decide whether, and in which context, Framework Decisions entail indirect effect.

[2005] ECR II-3533 para 299, in which the Court distinguished between asset freezing and confiscation). However, the Court has referred to the criminal procedure standards developed by the Strasbourg Court as a standard by which to interpret the extent of the obligation for a fair hearing in freezing decisions. See Sison (n 94) para 182. On the Kadi litigation, see ch 10. 130 On this point, see V Mitsilegas, ‘The Transformation of Criminal Law in the “Area of Freedom, Security and Justice”’ (2007) 26 Yearbook of European Law 1. 131 Article 34(2)(b) TEU. It is interesting to note while the judge-made principle of direct effect makes its appearance in the TEU in this ‘negative’ manner. 132 Case C-105/03, Maria Pupino [2005] ECR I-5285. For commentaries on the case, see, inter alia: S Prechal, ‘Direct Effect, Indirect Effect, Supremacy and the Evolving Constitution of the European Union’ in Barnard (n 42) 35–70; Peers (n 82); JR Spencer, ‘Child Witnesses in the European Union’ (2005) 64(3) Cambridge Law Journal 569; M Fletcher, ‘Extending “Indirect Effect” to the Third Pillar: The Significance of Pupino?’ (2005) 30 European Law Review 862; Editorial, ‘The Court of Justice and the Third Pillar’ (2005) 30 European Law Review 773; C Hillgruber, Anmerkung, Juristenzeitung, no.17, 2005, 841–844; D Sarmiento, ‘Un paso más en la constitucionalización del tercer pilar de la Union europea. La sentencia Maria Pupino y el efecto directo de las decisiones marco’ (2005) 10 Revista Electronica de Estudios Internacionales; and, more generally, H Labayle, ‘Architecte ou Spectatrice? La Cour de Justice de l’Union dans l’Espace de Liberté, Sécurité et Justice’ (2006) 42 Revue Trimestrielle du Droit Européen 1. 133 [2001] OJ L82, 22 March, 1.

The Third Pillar and the Constitutional Principles of the Community  21 After asserting jurisdiction,134 the Court accepted that the ‘interpretative obligation’ of national courts under Community law also extended to third pillar Framework Decisions. The Court based its approach to a large extent on the binding character of Framework Decisions. It stressed that the wording of Article 34(2)(b) TEU on Framework Decisions is very closely inspired by that of the third paragraph of Article  249 EC on Directives, with Article 34(2)(b) EU conferring a binding character on Framework Decisions in the sense that they ‘bind’ the Member States ‘as to the result to be achieved but shall leave to the national authorities the choice of form and methods’.135 The Court then asserted that ‘the binding character of Framework Decisions, formulated in terms identical to those of the third paragraph of Article  249 EC, places on national authorities, and particularly national courts, an obligation to interpret national law in conformity’.136 The limits placed on the jurisdiction of the Court do nothing to invalidate that conclusion.137 The Court backed up its conclusion with a further line of argumentation focusing on the need to achieve the objectives of the EU effectively, which is linked to the principle of loyal cooperation. According to the Court, irrespective of the degree of integration envisaged by the Amsterdam Treaty, it is perfectly comprehensible that the authors of the TEU should have considered it useful to make provision, in the context of Title VI of that Treaty, for recourse to legal instruments with effects similar to those provided for by the EC Treaty, in order to contribute effectively to the EU’s objectives.138 As with its case law on ne bis in idem, the Court seems to have adopted a rather ahistorical approach to European integration, effectively arguing that the degree of integration envisaged by Member States when signing the Amsterdam Treaty is irrelevant.139 In this context, the Court stated that it would be difficult for the EU to carry out the task of creating an ever closer Union (enshrined in Article 1 TEU) effectively if the principle of loyal cooperation – which is enshrined in Article 10 of the EC Treaty – were not also binding in the area of police and judicial cooperation in criminal matters.140 On the basis of these arguments, the Court asserted that the principle of conforming interpretation is binding in relation to Framework Decisions.141 Having applied the Community law principle of interpretative obligation to the third pillar, the Court referred to first pillar case law to set out, in a manner similar to the first pillar, the limits and contours of indirect effect.142 The Court reiterated that the interpretative obligation of national courts is limited by general principles of law, such as legal certainty and non-retroactivity, adding that, in particular, those principles prevent that obligation from leading to the criminal liability of persons who contravene the

134 See Pupino (n 132) paras 19–30 of the judgment, in particular on the applicability of art 234 EC to the third pillar. 135 ibid para 33. 136 ibid para 34. 137 ibid para 35. 138 ibid para 36. 139 On the ne bis in idem case law, see ch 3. 140 Pupino (n 132) paras 41 and 42. 141 ibid para 43. 142 For an analysis, see, inter alia, G Betlem, ‘The Doctrine of Consistent Interpretation: Managing Legal Uncertainty’ (2002) 22 Oxford Journal of Legal Studies 397.

22  History, Principles and Institutions provisions of a Framework Decision from being determined or aggravated on the basis of such decision alone, independently of an implementing law.143 However, the Court, following the Opinion of AG Kokott,144 noted that the present case did not concern the extent of criminal liability of the person concerned, but the conduct of the proceedings and the means of taking evidence.145 Further on in the judgment, the Court stated that the principle of conforming interpretation cannot serve as the basis for an interpretation of national law contra legem. However, following its recent judgment in Pfeiffer,146 the Court qualified this limitation by adding that indirect effect does require that, where necessary, the national court consider the whole of national law in order to assess how far it can be applied in such a way as to not produce a result contrary to that envisaged by the Framework Decision.147 Having established the principle and its limits, the Court went on to examine the specific case.148 It confirmed that the achievement of the aims of the Framework Decision on the rights of victims in criminal proceedings require that a national court should be able, in respect of particularly vulnerable victims, to use a special procedure, such as the one provided for already in Italian law.149 However, in the light of the concerns raised regarding the potential impact of such interpretation on the rights of the defendant, the Court added two caveats: that, in the light of the Framework Decision, the adopted conditions for giving evidence must be compatible with the basic legal principles of the Member State;150 and that the national court must ensure that the application of those measures is not likely to ‘make the criminal proceedings against Mrs Pupino, considered as a whole, unfair within the meaning of Article 6 of the [ECHR], as interpreted by the European Court of Human Rights’.151 Pupino was a landmark ruling. The Court did not hesitate to transplant Community law to the third pillar by stating that Framework Decisions entail indirect effect. This is notwithstanding the fact that the third pillar itself excluded the application of direct effect – the basic Community law principle whose limits are inextricably linked to the development of the indirect effect concept by the ECJ. It is also irrespective of the degree of integration the states signatory to the Amsterdam Treaty wished to achieve in criminal matters – the Court disassociated the envisaged degree of integration in Amsterdam from the need to ensure the effective achievement of EU objectives. The reasoning of the Court is noteworthy, especially the emphasis on the principle of loyal cooperation. At that time, the principle was enshrined in Article 10 of the EC Treaty,152 but not in the third pillar – the Court seems to apply loyal cooperation by analogy to the third pillar, 143 Pupino (n 132) paras 44 and 45, including references to the Court’s case law. 144 Opinion delivered on 11 November 2005: [2005] ECR I-5285, para 42. 145 ibid para 46. 146 Cases C-397/01–C-403/01, Pfeiffer et al v Deutsches Rotes Kreuz [2004] ECR I-8835, in particular para 115. For a commentary, see Sacha Prechal, ‘Case Note’ [2005] 42 CML Rev 1445. 147 ibid para 47. See also Fletcher (n 132) 873. 148 Pupino (n 132) paras 50–61. 149 ibid para 56. 150 ibid para 57. The Court referred to art 8(4) of the Framework Decision. 151 Pupino (n 132) para 60. In the preceding paras, the Court stressed the fact that according to art 6(2), TEU, the EU respects fundamental rights and that the Framework Decision must be interpreted in a way that fundamental rights are respected (paras 58 and 59). 152 Under the current rules, the principle of sincere cooperation is enshrined in art 4(3) TEU.

The Third Pillar and the Constitutional Principles of the Community  23 based not on the specific objective of developing the EU as an ‘Area of Freedom, Security and Justice’, but rather on the very general provision of Article 1 TEU calling for the establishment of an ‘ever closer Union’.153 By focusing on the principle of loyal cooperation, the Court not only emphasised the importance of the effective achievement of Treaty objectives (only this time these involve the EU and not the Community);154 similarly to the Pfeiffer ruling,155 the Court also avoided linking indirect effect with the primacy of EU law over national law.156 The Court’s silence in this regard may indicate that, as with the issue of the application of state liability in the third pillar,157 the primacy issue remained open.158 The impact of the application of the interpretative obligation of the national judge in this case is striking. The Luxembourg Court in reality rewrote the Italian Code of Criminal Procedure. Following the Court’s guidance, the domestic judge had little choice but to allow minors in this case to take advantage of the Code’s protective provisions, although they were not covered by the legislation. This led to the criticism that in fact the Court conferred not indirect but direct effect to the Framework Decision, in stark breach of the wording of Article 34 TEU.159 The Court seemed to overcome potential obstacles caused by the argument that adding a category of privileged witnesses to the Italian Code of Criminal Procedure in the face of the silence of the Code in this regard would in fact be contra legem by using the Pfeiffer formula that the national judge must consider national law ‘as a whole’. However, at that time, this raised important questions regarding the impact of such consideration on the internal coherence of national criminal justice systems, whose balance may be disturbed by piecemeal attempts of national 153 See K Lenaerts and T Corthaut, ‘Of Birds and Hedges: The Role of Primacy in Invoking Norms of EU Law’ (2006) 31 European Law Review 287. This reasoning has been heavily criticised by the European Law Review editorial (Editorial (n 132)), where it is stated that art 1 TEU is not subject to the Court’s jurisdiction (art 46 TEU). Fletcher ((n 132) 71) also criticises the emphasis on loyal cooperation by arguing that the third pillar covers cooperation between Member States. However, this seems to be an extremely ‘intergovernmental’ view of the third pillar, whose system indeed shares a number of common features with the first pillar, and laws stemming from it represent a further degree of integration from international law instruments. 154 For an interesting use of the duty of loyal cooperation in the context of first pillar measures with a criminal law dimension, see inter alia the judgments of the Court of First Instance in OMPI (n 107) paras 122 et seq and Sison (n 94) paras 170 et seq. Referring to Pupino, the Court held that on the basis of loyal cooperation, it is in principle for the national courts to ensure the observance of fair hearing rights in the context of EU counter-terrorism listing measures; however, Luxembourg will be involved in cases where the Council bases its initial decision or a subsequent decision to freeze funds on information or evidence communicated to it by representatives of the Member States without it having been assessed by the competent national authority. 155 See Prechal (n 146). 156 See Labayle (n 132) 31. See also Lenaerts and Corthaut ((n 153) 293), who argue that ‘the Court could have avoided this frantic search for a ground for an equivalent provision, if it had recognised that the duty of consistent interpretation is inherent in any hierarchy of norms and thus a simple corollary of the principle of primacy in that it is the easiest way to ensure that no inconsistent national laws are applied over EU law’. 157 Prechal takes the view that the application of loyalty can form the basis of state liability; see Barnard (n 42) 61. 158 Peers ((n 82) 920) argues that primacy or the connected obligation to set aside national law in order to apply Community law does not apply to the third pillar. He makes the valid point that if these principles (and direct effect) applied to the third pillar, the essential distinctions between the first and third pillars would be lost and the intentions of the Treaty authors would clearly be ignored. A diametrically opposite view with regard to supremacy is put forward by Prechal, who also seems to be in favour of disapplication unless fundamental rights or general principles oppose such a disapplication or where the solution of the case would require the application of a Framework Decision – and not national law – to the facts of the case; see Barnard (n 42) 62–63. 159 Sarmiento (n 132).

24  History, Principles and Institutions judges to accommodate EU law demands in specific cases. Judges themselves could be faced with difficult balancing exercises, especially in cases where EU law itself – as in the case of the Framework Decision in question – is drafted in broad terms, having to take into account all complex parameters and interests involved in a criminal trial. In this balancing of competing interests, Pupino raised a number of questions regarding safeguarding the rights of the defendant in the development of the EU as an ‘Area of Freedom, Security and Justice’. In Pupino, it appeared that the interpretation emphasised the rights of the alleged victims at the expense of the rights of the defendant. This approach raised concerns as to whether the position of the defendant could become even worse if the legislative output of the third pillar focused predominantly on enforcement/security aspects rather than instruments protective of rights.160 These concerns were accentuated by the limits posed by the Court in existing case law safeguards regarding indirect effect and criminal law. In Pupino, the Court seemed to transpose all the first pillar safeguards limiting indirect effect in criminal law cases, but then substantially qualified its position by stating that the present case does not involve criminal law per se, but the gathering of evidence, ie, criminal procedure.161 This narrow framing of protection in the criminal justice process raised particular concerns, not only due to the difficulty in disassociating aspects of criminal law from criminal procedure, but, more importantly, because it is questionable to exclude the application of principles such as legal certainty, non-retroactivity and aggravation of a person’s criminal liability from the criminal process and limit them, as the Court did, to ‘the extent of the criminal liability of the person concerned’ in the light of the significant consequences that the criminal process may have for the individual.

V.  The Politics of the Third Pillar: Member States’ Security Ambitions versus Institutional Checks and Limits The gradual and contested institutional developments in EU criminal law as reflected in the evolution of the third pillar were combined with increasing activity at the level of politics and strategy by Member State governments. This activity was prominent both within and outside the EU framework. Within the EU framework, governments were proactive in defining strategy and policy targets within the framework of the European Council, which determined the two major political blueprints for the development of

160 In this context, it is noteworthy that in the post-Lisbon era, a series of legislative instruments strengthening individual rights, including the rights to a lawyer, a translator and an interpreter, and the right to the presumption of innocence, have been adopted. See ch 5; V Mitsilegas, ‘Trust-Building Measures in the European Judicial Area in Criminal Matters: Issues of Competence, Legitimacy and Inter-institutional Balance’ in S Carrera and T Balzacq, Security versus Freedom? A Challenge for Europe’s Future (Ashgate, 2006) 287–88. 161 The question arises here of how the Court’s approach in the first pillar cases setting limits to indirect effect to protect the individual, in particular Berlusconi (Cases C-387/02, C-391/02 and C-403/02 [2005] ECR I-3565) will apply to first pillar criminal law after the environmental crime case (for an analysis, see ch 2). Lenaerts and Corthaut ((n 153) 312) are of the view that the limits posed by the Court will be applicable in these cases, assuming that first pillar criminal law will be limited to the determination of criminal liability.

The Politics of the Third Pillar  25 EU Justice and Home Affairs, the five-year plans of action adopted in Tampere in 1999 and The Hague in 2004. Moreover, governments developed a number of Action Plans as a response to events such as 9/11 and the need to provide an imminent reaction to them. Outside the EU framework, the Schengen example was followed by similar concerted action by a number of Member States in the field of police cooperation. Moreover, large Member States met regularly outside the EU framework and discussed priorities in the field. This section will focus on the impact of government initiatives both within and outside the EU legal framework, and will examine the implications of such action in the light of the EU institutional framework in criminal matters prior to the entry into force of the Lisbon Treaty.

A.  Action within the EU Framework A major actor influencing the direction of legislation and policy in EU Justice and Home Affairs in general and EU criminal law in particular was the European Council.162 Central to the development of EU action in the field of Justice and Home Affairs was the adoption by the European Council of two detailed, five-year legislative and policy programmes outlined in the Tampere European Council Conclusions in 1999163 and in the successor to Tampere, The Hague Programme of 2004.164 The strategy adopted by the European Council was thus to provide political impetus for the development of the objective to develop the EU as an ‘Area of Freedom, Security and Justice’ via the adoption of target-setting mechanisms outlining long-term, detailed directives for law and policy development.165 The agenda put forward in Tampere, but also to a lesser extent in The Hague, was markedly ambitious, with the programmes calling for the adoption of a plethora of EU legislative measures. However, this ambitious agenda did not sit comfortably with the considerable institutional limitations described earlier in this chapter. What the Member State governments proclaimed in the European Council did not necessarily coincide with the powers they were prepared to grant to the

162 On the role of the European Council in EU Justice and Home Affairs, see J Monar, ‘Decision-Making in the Area of Freedom, Security and Justice’ in Arnull and Wincott (n 54) 63–80. 163 For the text of the Conclusions, see www.europarl.europa.eu/summits/tam_en.htm. On the background, see House of Lords European Union Committee (then Select Committee on the European Communities), Prospects for the Tampere Special European Council, 19th Report, session 1998–99, HL Paper 101; see also Mitsilegas, Monar and Rees (n 1) 91–95. 164 [2005] OJ C53, 3 March, 1. For details, see House of Lords European Union Committee, The Hague Programme: A Five Year Agenda for EU Justice and Home Affairs, 10th Report, session 2004–05, HL Paper 84. On different aspects of The Hague Programme, see also JW de Zwaan and FAN Goudappel (eds), Freedom, Security and Justice in the European Union (TCM Asser Press, 2006); T Balzacq and S Carrera, ‘The Hague Programme: The Long Road to Freedom, Security and Justice’ in Balzacq and Carrera (n 160) 1–34; D Bigo, ‘Liberty, Whose Liberty? The Hague Programme and the Conception of Freedom’ in Balzacq and Carrera (n 160) 35–44; and V Mitsilegas, ‘Operational Co-operation and Counter-terrorism in the EU’ in F Pastore (ed)., Supranational Counter-terrorism: A Test under Duress for EU Principles and Institutions, Centro Studi di Political Internazionale (CeSPI), Rome, Working Paper 22/2005, 10–20. 165 On the target-setting function of Action Plans and Programmes in EU Justice and Home Affairs, see J Monar, Specific Factors, Typology and Development Trends of Modes of Governance in the EU Justice and Home Affairs Domain, NEWGOV Deliverable 01/17, May 2006, www.eu-newgov.org/database/DELIV/ D01D17_Emergence_NMG_in_JHA.pdf.

26  History, Principles and Institutions EU in the third pillar, and nor did it always lead to the political will to translate the European Council mandate into third pillar law. This was particularly the case with measures giving rights to individuals.166 Along with these all-encompassing programmes, the European Council provided further political impetus for developing EU criminal law by the adoption of detailed Action Plans promulgated as a response to phenomena framed as threats in a particular moment. In the 1990s, a major example was the adoption, in 1997, of an Action Plan to fight organised crime.167 In the 2000s, when terrorism replaced organised crime as the major threat in the political vocabulary, the European Council adopted an Action Plan to combat terrorism.168 Both Action Plans were detailed and contained calls for a wide range of EU legislative action, with the terrorism Action Plan also followed by detailed implementation ‘Roadmaps’ and being regularly updated.169 Each major attack in the recent past – in New York, Madrid and London – was followed by a swift intervention by the European Council and calls for the adoption of further measures at the EU level.170 It is noteworthy in this context that in both the cases of organised crime and terrorism, the European Council followed the strategy of framing a wide range of issues – not all of which were closely linked to fighting organised crime or terrorism specifically – as necessary EU responses, with the Action Plans thus calling for (and at times facilitating) the adoption of measures having a much broader scope and which were justified as essential to fight organised crime or terrorism. As will be seen in a number of occasions in this book, the fight against terrorism rationale justified and led to the swift adoption of measures as disparate as the Framework Decision on the European Arrest Warrant,171 the Decision establishing Eurojust,172 and a series of measures boosting police cooperation between the authorities of Member States.173 Moreover, the terrorism Action Plans included measures transcending the third pillar and covering the other two pillars as well, blurring the boundaries between criminal law and the market, as well as between criminal law and foreign policy.174 Framing a wide range of 166 See in particular in this context the failure to adopt the Framework Decision on the rights of the defendant in criminal proceedings, which according to The Hague Programme should have been adopted by the end of 2005. For details on the proposal, see ch 5. 167 [1997] OJ C251/1. This was followed by the so-called ‘Millennium’ Action Plan on the Prevention and Control of Organised Crime [2000] OJ C124/1. On the Action Plan, see Mitsilegas, Monar and Rees (n 1) 88–91; see also WC Gilmore, ‘The EU Action Plan to Combat Organised Crime: The Scope and Implementation of Legal Instruments’ in E Bort and R Keat (eds), The Boundaries of Understanding. Essays in Honour of Malcolm Anderson (University of Edinburgh Social Sciences Institute, 1999) 97–106. 168 Conclusions and Plan of Action of the Extraordinary Meeting on 21 September 2001, www.consilium. europa.eu/ueDocs/cms_data/docs/pressData/en/ec/140.en.pdf. 169 See R Bossong, ‘The Action Plan on Combating Terrorism: A Flawed Instrument of EU Security Governance’ (2008) 46 Journal of Common Market Studies 27. 170 On the EU’s reaction post-9/11, see B Gilmore, The Twin Towers and the Third Pillar: Some Security Agenda Developments, EUI Working Paper Law No 2003/7; and S Douglas-Scott, ‘The Rule of Law in the European Union: Putting the Security into the “Area of Freedom, Security and Justice”’ (2004) 29 European Law Review 219. On the EU response to the Madrid bombings see House of Lords European Union Committee, After Madrid: The EU’s Response to Terrorism, 5th Report, session 2004–05, HL Paper 53. 171 See ch 4. 172 See ch 8. 173 See ch 9. 174 On the nexus between criminal law and the market in EU counter-terrorism efforts, in particular in the context of the fight against terrorist finance, see V Mitsilegas and B Gilmore, ‘The EU Legislative Framework against Money Laundering and Terrorist Finance: A Critical Analysis in the Light of Evolving Global Standards’

The Politics of the Third Pillar  27 measures as essential to fighting terrorism, responding to terrorist attacks with further calls for EU legislation, and revising the relevant Action Plans regularly have all contributed to the adoption of a wide range of EU criminal law measures in the recent past. In examining the outcome of this strategy, two major issues arise: the issue of securitisation and the issue of scrutiny and transparency in the shaping of law and policy. On the first issue, an examination of the sectoral Action Plans on organised crime and terrorism, but also of the general five-year programmes, in particular the Hague Programme, reveals that the primary emphasis of the development of EU action was on security.175 In terms of the sectoral Action Plans, such emphasis is perhaps unsurprising given the fact that, at least in terms of political discourse, these initiatives were the outcome of a securitisation process constituting blueprints for urgent responses to threats perceived to be in need of imminent combat. In terms of action to combat terrorism, the increasing blurring of boundaries between pillars – in particular, the second and third pillars – leads to important issues of accountability and judicial control.176 Moreover, this process of securitisation seeped through the formulation of the general EU strategy on criminal law. A prime example of such spill-over has been the Hague Programme: much less coherent than Tampere, large sectors of the Programme were devoted to specific issues such as boosting of operational action and cooperation, the exchange of personal data for police purposes and the development of interagency cooperation for security purposes.177 On the contrary, The Hague Programme included much less with regard to the protection of fundamental rights in this context. The other matter of concern in the development of the EU policy – and subsequently legislative – agenda in criminal matters, especially in the light of the increasing securitisation in the field, was the lack of detailed scrutiny and transparency of the action of the European Council. While there was, at least with regard to general programmes such as the Hague Programme, some intervention by the EU institutions (and national parliaments) prior to the final adoption of the final documents,178 the development of avenues of meaningful, detailed and open debate on the direction of EU criminal law left much to be desired. In this context, the process of formulating the Stockholm Programme that followed The Hague Programme in 2009 is noteworthy: the process was driven by interior ministers of a number of Member States, who constituted a ‘Future Group’ to prepare recommendations to influence the formulation of the new Programme.179 (2007) 56 International and Comparative Law Quarterly 119; on the nexus between the second and third pillars, see J Monar, ‘Common Threat and Common Response? The European Union’s Counter-terrorism Strategy and its Problems’ (2007) 42 Government and Opposition 292. 175 On Tampere, see the warnings in an editorial entitled ‘The Tampere Summit: The Ties that Bind or the Policemen’s Ball’ (1999) 36 CML Rev 1119; on security and the Hague Programme, see in particular Bigo (n 164) and Mitsilegas (n 164). 176 On judicial control with regard to cross-pillar measures involving the second and third pillars, see above. On the cross-pillar aspect of inter-agency cooperation, see ch 4. 177 On these aspects, see chs 8 and 9. 178 See, for instance, the pre-Hague Commission Communication entitled Area of Freedom, Security and Justice: Assessment of the Tampere Programme and Future Orientations, COM (2004) 401 final, Brussels, 2 June 2004. For examples of national parliamentary scrutiny, see the House of Lords EU Committee Reports on Tampere and The Hague. 179 The Future Group, created in 2007 after the proposal of the German government and the Commission, was co-chaired by the Vice President of the Commission responsible for Justice and Home Affairs and the Minister of the Interior of the acting EU presidency. It brought together the Ministers of the Interior

28  History, Principles and Institutions The dominance of the interior ministries agenda in this context is evident, with the absence of justice ministers being striking.180 More broadly of course, it is clear that the development of key guidelines for future law and policy was largely taking place behind closed doors, mostly involving experts and government officials.

B.  Action Outside the EU Framework Issues of transparency and democratic control also arose in instances where the primary impetus for the development of EU law and policy in criminal matters came from outside the EU framework. A prime example of this process has been Schengen. As was mentioned earlier in this chapter, the Schengen Agreement and Convention and their implementing measures were adopted by certain EU Member States outside the Community – and then the EU – law framework. In Amsterdam, the Schengen acquis was effectively imported into the EC/EU legal order, which had to accommodate as a fait accompli a complex legal framework – and a potent logic of compensatory measures – which had been agreed and developed with a minimum of transparency, and outside the EU scrutiny mechanisms.181 Even post-EU incorporation, fundamental aspects of the Schengen mechanism – in particular judging whether a country meets the criteria for becoming a full Schengen member – remained (and continue to remain) essentially intergovernmental, with membership being subject to the agreement of the existing Schengen full members.182 A similar example of action à la Schengen was the recent efforts to introduce the Prüm Convention into EU law, which was concluded by a number of EU Member States again outside the EU framework.183 As with Schengen, far-reaching standards agreed outside the EU framework were introduced into the EU with minimal scrutiny and consultation, in that case by the Council as third pillar legislator, rather than by Member States in the IGC. The Prüm Convention is perhaps more

of the two current trios of presidencies (Germany, Portugal and Slovenia; France, the Czech Republic and Sweden) and a representative of the future presidency trio; it is thus evident that not all Member States took part. Further participants were a common law observer (the UK), the President of the European Parliament Civil Liberties Committee and a representative of the Council General Secretariat. On the setting-up of the Future Group, see M Niemeier, La Sécurité Intérieure dans l’Union Européenne: Après la Présidence Allemande et Avant la Présidence Francaise, Université Robert Schuman, Strasbourg, Collection Securint, Working Paper No 6, 2008. 180 A parallel ‘Future Group’ on Justice was also established in 2007 at the initiative of the Portuguese EU presidency.; the membership logic was similar to the ‘police’ future group. Issues arising from interior and justice ministries were thus seemingly not integrated into a single discussion forum, but discussed separately. Both Reports were discussed at the Justice and Home Affairs Council of 24–25 July 2008 (Council Doc 11653/08 Presse 205) 18 and 24. 181 With the decision on the integration of the Schengen acquis into the Community/Union framework being taken at the 1996 IGC. It is noteworthy that the Schengen Protocol containing rules on the allocation of the acquis in the respective pillars did not provide any role for the European Parliament; see in this context, and more generally on the implications of Schengen and Prüm for the EU democratic deficit, A Weyembergh and V Santamaria, ‘Le Contrôle Démocratique dans l’Espace Pénal Européen’ in M Doni and L.S Rossi, Démocratie, Cohérence et Transparence. Vers une Constitutionnalisation de l’Union Européenne? (Institut d’Etudes Européennes, 2008) 73–92. 182 On the basis of peer reviews conducted by Member States; on these reviews in the context of the increased centrality of evaluation mechanisms in EU criminal law, see the part on the Lisbon Treaty below. 183 On Prüm, see chapter 9.

The Lisbon Treaty and the Constitutionalisation of EU Criminal Law  29 striking, in that it arose in a period where European integration in criminal matters had somewhat matured, and the need for greater transparency and democratic control was ascertained repeatedly in the context of the EU constitutional debate.184 Even at this stage of European integration, it seems that the big countries are happy to lead the way outside the EU framework, subject to minimal scrutiny. This happened in particular in the context of the meetings of the G6, namely the UK, France, Germany, Italy, Spain and Poland. At regular meetings, the interior ministers of these countries discussed matters of common interest and reached agreement in principle on fundamental home affairs choices which could subsequently be imported – on the basis of the political strength of the G6 within the EU legal framework. A prime example of such a strategy was the consensus on the need to maximise the exchange of personal data at a meeting at the German Baltic resort of Heiligendamm – a meeting, which as the House of Lords European Union Committee has noted, took place ‘behind closed doors’.185

VI.  The Lisbon Treaty and the Constitutionalisation of EU Criminal Law: Institutions, Principles and Rights The entry into force of the Lisbon Treaty constituted a major step towards the ­constitutionalisation of EU criminal law. The term ‘constitutionalisation’ is understood here within the meaning put forward by Loughlin as the attempt to subject all governmental action within a designated field to the structures, processes, principles and values of a ‘constitution’.186 In the field of EU law, the constitutionalisation of EU criminal law must be viewed from a number of different perspectives, which will be outlined below: from the perspective of the institutional normalisation of decision-making which the post-Lisbon abolition of the third pillar entails; from the perspective of the full application in the field of EU criminal law of the constitutional principles of EU law; and from the perspective of underpinning EU criminal law by a constitutional framework of fundamental rights protection, most notably via the constitutionalisation of the EU Charter of Fundamental Rights in the Lisbon Treaty. The examination of the constitutionalisation of EU criminal law from these perspectives will be accompanied by an analysis of two factors embedding further EU action in the field within the broader EU constitutional framework: the growing emphasis on the correct implementation of EU criminal law by Member States and the enhanced mechanisms for scrutiny and monitoring such implementation at the EU level; and the increased interdependence of various areas of criminal law leading to the emergence of a coherent legal framework on EU criminal justice. As will be seen below, such interdependence appears at the level of interconnection between various EU strands of action, but also – and importantly – at the level of the relationship between EU law and national law, including national constitutional law. 184 On calls for further ‘communautarisation’ of the third pillar, see section VI below. 185 House of Lords European Union Committee, Behind Closed Doors: The Meeting of the G6 Interior Ministers at Heiligendamm, 40th Report, session 2005–06, HL Paper 221. 186 M Loughlin, ‘What is Constitutionalisation?’ in P Dobner and M Loughlin (eds), The Twilight of Constitutionalism? (Oxford University Press, 2010) 47–72.

30  History, Principles and Institutions

A. Institutions The entry into force of the Lisbon Treaty has radically changed the institutional framework underpinning EU criminal law by granting – with few exceptions – EU institutions their full powers in the field and moving to a system of supranational decision-making. The full powers of EU institutions have applied since the entry into force of the Lisbon Treaty vis-a-vis legislation adopted after Lisbon, and from 1 December 2014 (the end of the transitional period provided in the Treaty Protocol on Transitional Provisions)187 for pre-Lisbon third pillar law remaining in force. The first major institutional change involves decision-making, which, for the vast majority of Title V (former Title VI) measures, takes place under the ‘ordinary’ legislative procedure,188 namely co-decision between the Council (which decides by majority voting) and the European Parliament.189 This change has been accompanied by a normalisation of the legal instruments of EU criminal law post-Lisbon, which now take the form of Regulations, Directives, and Decisions.190 The second major institutional change involves the role of the Court of Justice and the ‘communautarisation’ of judicial control. The Court has now full jurisdiction to rule on infringement proceedings in criminal matters.191 The full jurisdiction of the Court in the field of preliminary rulings now applies.192 It has also assumed full jurisdiction to hear actions for compensation for damages193 and the review of legality;194 to review the compliance of legislative acts with the principle of subsidiarity;195 and to review the legality of acts of the European Council and bodies, offices or agencies of the EU intended to produce legal effects vis-a-vis third parties.196 The third major change involves the role of the Commission, which emerges having stronger powers of initiative (albeit still shared with Member States)197 and full powers as ‘guardian of the Treaties’ to monitor the implementation of EU criminal law by

187 Protocol No 36. For an analysis, see section VIII.D on enhanced cooperation below. 188 Exceptions include the adoption of legislation establishing a European Public Prosecutor’s Office under art 86(1) TFEU, which requires unanimity in the Council and the consent of the European Parliament; the adoption of measures on operational cooperation in the field of policing under art 87(3) TFEU, which requires unanimity in the Council and the mere consultation of the European Parliament; the adoption of rules on the operation of national authorities in another Member State in cases of cross-border police and judicial cooperation in criminal matters, which requires unanimity in the Council and consultation of the European Parliament (art 89 TFEU); and the adoption of minimum EU rules in areas of criminal procedure not mentioned in the Treaty which requires unanimity in the Council and the consent of the European Parliament (art 82(2)(d)). In arts 86(1) and 87(3) TFEU, lack of unanimity does not preclude the adoption of legislation under enhanced cooperation. 189 On the ‘ordinary’ legislative procedure see arts 289(1) and 294 TFEU. 190 Article 288(1) TFEU. 191 Articles 258–60 TFEU. 192 On the preliminary ruling jurisdiction under Lisbon, see art 267 TEU. The last paragraph states that such rulings must be given with a minimum of delay in cases involving individuals in custody. 193 Article 268 TFEU. 194 Article 263(4) TFEU. 195 Article  8, Protocol No 2 on the Application of the Principles of Subsidiarity and Proportionality. For further analysis, see below. 196 Article 263(1) TFEU. See also art 277 TFEU. 197 See art 76 TFEU. For further analysis, see section VIII.A on national diversity below.

The Lisbon Treaty and the Constitutionalisation of EU Criminal Law  31 Member States.198 The full involvement of EU institutions has had a significant impact on the content, enforcement and development of EU criminal law. The stronger role of the European Parliament in the decision-making process serves to address democratic deficit concerns and may serve to enhance the protection of fundamental rights in the content of secondary EU criminal law adopted post-Lisbon.199 The full involvement of the Commission as guardian of the treaties and the possibility of instituting infringement proceedings will lead to a greater focus on the correct and timely implementation of EU criminal law, including third pillar law.200 On the other hand, allowing courts of all Member States to send questions on the interpretation of EU law to the Court of Justice in Luxembourg on third pillar measures will have a beneficial effect on the development and interpretation of the EU third pillar acquis, especially in cases where national courts seek recourse to the Court of Justice in order to assist with the interpretation of key third pillar law concepts.201

B. Principles i.  Direct Effect The constitutionalisation of EU criminal law is also inextricably linked to the full application of the constitutional principles of EU law in the field. A major development post-Lisbon has been the change in the legislative instruments of EU criminal law, with Directives being the main instrument of EU legislative intervention in the field. The use of Directives post-Lisbon means that the principle of direct effect is now applicable to EU criminal law Directives if the conditions of its application are fulfilled. Despite the limits set out by the Court of Justice regarding the application of direct effect in cases involving substantive criminal law,202 the Court has found that a Treaty provision related to criminal law – Article 325 of the Treaty on the Functioning of the European Union (TFEU) – does have direct effect.203 This finding has been further reiterated in MAS and MB (Taricco II)204 and Kolev,205 where the Court explained that ‘that article imposes on the Member States precise obligations, as to the result to be achieved, which are not subject to any condition regarding the application of the rules which that article lays down’.206 Whereas the primary responsibility lies with the national legislature to

198 In particular under art 258 TFEU. The TFEU also introduces in art 70 a more intergovernmental process of evaluation of implementation of Title V policies conducted by Member States in collaboration with the Commission. 199 For an assessment, see V Mitsilegas and N Vavoula, ‘Criminal Law: Institutional Rebalancing and Judicialisation as Drivers of Policy Change’ in F Trauner and A Ripoll Servent (eds), Policy Change in the Area of Freedom, Security and Justice: How EU Institutions Matter (Routledge, 2015) 133–51. 200 See, for instance, the Commission scrutiny of the post-Lisbon defence rights Directives; see ch 5. 201 For further details, see section B below. 202 See Cases C-387/02, C-391/02 and C-403/02, Berlusconi [2005] ECR I-3565. 203 Case C-105/14, Taricco and Others, EU:C:2015:555, para 51. 204 Case C-42/17, MAS and MB, EU:C:2017:936 (Taricco II). 205 Case C-612/15, Kolev and Others, ECLI:EU:C:2018:392. 206 ibid paras 38 and 64 respectively.

32  History, Principles and Institutions adopt the measures necessary to meet those obligations,207 the referring courts must also, without waiting until the national legislation is amended by legislation or by any other constitutional procedure, give full effect to those obligations by interpreting that legislation so far as possible in the light of Article 325(1) TFEU, as interpreted by the Court or, as necessary, disapplying that legislation.208 Moreover, the application of the principle of direct effect may increasingly come into force in view of the change in the content of EU criminal law post-Lisbon, with the Treaty now providing an express legal basis – Article 82(2) TFEU – which has led to the adoption of EU secondary law conferring rights to individuals in criminal proceedings. It is submitted that key provisions in these instruments – including the provision of key rights on access to a lawyer, to a translator and to an interpreter – do entail direct effect, enabling individuals to claim these rights before national courts and thus ensuring the decentralised enforcement of EU criminal law.209

ii.  Indirect Effect With regard to the principle of indirect effect after Lisbon, the seminal ruling in Pupino, as examined above, was confirmed in a series of cases concerning the interpretation of the European Arrest Warrant. In Da Silva Jorge,210 the Court was faced with a preliminary reference issued by the French Court of Appeal of Amiens regarding the optional ground for refusing to execute a European Arrest Warrant, under which the executing judicial authority may refuse to execute such a warrant where the requested person ‘is staying in, or is a national or a resident of, the executing Member State’, and that Member State undertakes to enforce that sentence in accordance with its domestic law. The ground was introduced to give particular weight to the possibility of increasing the requested person’s chances of reintegrating into society when the sentence imposed on him expires. Da Silva Jorge resided in France and was married to a French national, but the French legislation restricted the scope of the optional ground to French nationals only. The Court opined that a differentiated treatment between French nationals and nationals of other EU Member States cannot be sustained,211 and that irrespective of the national provisions transposing the European Arrest Warrant Framework Decision that may delimit the scope of the optional ground, nationals of other Member States staying or residing in the national territory cannot be excluded automatically and absolutely irrespective of their connections with it. The principle of indirect effect was key in this context, with the Court highlighting the interpretative duty of the national courts to 207 See ibid para 65, where the Court explained that: ‘The primary responsibility lies with the national legislature to adopt the measures necessary to meet those obligations. It is therefore for the national legislature, where required, to amend the legislation and to ensure that the procedural rules applicable to the prosecutions of offences affecting the financial interests of the European Union are not designed in such a way that there arises, for reasons inherent in those rules, a systemic risk that acts that may be categorised as such offences may go unpunished, and also to ensure that the fundamental rights of accused persons are protected.’ 208 ibid para 66. 209 For confirmation of this point by national constitutional courts and by the CJEU, see ch 5. 210 Case C-42/11 João Pedro Lopes Da Silva Jorge, ECLI:EU:C:2012:517. For further details, see ch 7. 211 ibid para 50

The Lisbon Treaty and the Constitutionalisation of EU Criminal Law  33 take into consideration not only the provisions intended to transpose the Framework Decision, but also: [T]he principles and provisions of domestic law governing the conclusions which a court is entitled to draw from the existence of discrimination prohibited under that law, and in particular the principles and provisions enabling that court to alleviate such discrimination until the legislature has taken the measures necessary to eliminate it.212

To that end, the Court took the view that the national court should examine – on the basis of an overall assessment of the objective factors characterising the situation of the requested person – whether there are sufficient connections between the person and the executing Member State, in particular family, economic and social connections, such as to demonstrate that the person requested is integrated into that Member State, so that he is in fact in a comparable situation to that of a national.213 In Da Silva Jorge, the principle of indirect effect as interpreted by the Court led to surrounding the requested person with a protective net, taking into account his personal circumstances to effectively disapply the restrictive French provision and benefit from the more holistic and fundamental rights friendly approach taken in the Framework Decision. As such, the effect of the principle in this context was not towards the maximisation of enforcement as in Pupino, but rather towards broadening the scope of protection to EU nationals who may rely directly on the optional ground even when the national law excludes them from its protective function. However, this does not signify a shift in the Court’s jurisprudence; the judgments in Ognyanov and Poplwaski mark a return to the enforcement approach echoed in Pupino. In Ognyanov,214 the Court was faced with questions on the interpretation of Article 17(1) and (2) of Council Framework Decision 2008/909/JHA on the mutual recognition of judgments imposing custodial sentences.215 The case involved a Bulgarian national, who, having served part of his sentence in Denmark, was transferred to Bulgaria, with the issue arising as to whether a reduction of his sentence by reason of work carried out in custody was possible based on Bulgarian law, although Danish legislation precluded this from being so. The Court found that the obligation to interpret national law in conformity with EU law is ‘inherent’ in the system of the TFEU, since it permits national courts, for the matters within their jurisdiction, to ensure the full effectiveness of EU law when they rule on the disputes before them.216 Drawing from its findings in Pupino and Da Silva Jorge, the Court reiterated that the principle of indirect effect is limited by general principles of EU law, in particular the principle of legal certainty and non-retroactivity, which preclude the

212 ibid para 57. 213 ibid para 58. 214 Case C-554/14 Atanas Ognyanov ECLI:EU:C:2016:835. 215 Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union [2008] OJ L327, 5 December, 27. 216 Ognyanov (n 214) 59.

34  History, Principles and Institutions determination or aggravation of criminal liability of individuals.217 The Court held that the obligation to interpret national law in conformity with EU law would mean that Mr Ognyanov cannot qualify, under Bulgarian law, for a reduction in sentence by reason of work carried out during his period of detention in Denmark, because that matter is wholly within the competence of Denmark. However, that obligation would not cause the criminal liability of Mr Ognyanov to be determined or aggravated, or alter, to his disadvantage, the length of the sentence imposed on him in the judgment in Denmark.218 In addition, the principle cannot serve as the basis for an interpretation of national law contra legem.219 The requirement to interpret national law in conformity with EU law includes the obligation, on national courts, including those ruling as courts of last instance, to alter, where necessary, settled case law if that case law is based on an interpretation of national law that is incompatible with the objectives of a Framework Decision.220 In the present case, since the interpretation towards a reduction of sentence by reason of work carried out in custody stemmed from interpretation of Bulgarian legislation by the Supreme Court of Appeal, the practical effect of the applying the principle would be to disapply that interpretation on its own authority. These findings were further reiterated in the case of Poplawski,221 which concerned the interpretation of the optional ground of the European Arrest Warrant Framework for non-execution in favour of persons residing in the territory of the requested Member State. The Court took note of its findings in the previous cases222 and stated that the obligation for the Netherlands to execute the European Arrest Warrant or, in the event of a refusal, to execute the sentence pronounced by the Polish authorities did not determine or aggravate Mr Poplawski’s liability, which stemmed from the Polish judgment.223 As such, the competent national court, by taking the whole body of domestic law into consideration and applying the interpretative methods recognised by it, is obliged to interpret the provisions of national law at issue, so far as possible, in the light of the wording and the purpose of the Framework Decision.224 In the present case, this means that when a Member State refuses to execute a European Arrest Warrant, the judicial authorities of the executing Member State are themselves required to ensure that the sentence pronounced against that person is actually executed.225

217 ibid paras 63–64. 218 ibid para 65. 219 ibid para 66. 220 ibid para 67. 221 Case C-519/15 Daniel Adam Popławski, ECLI:EU:C:2017:503. 222 ibid paras 25–36. 223 ibid para 37. 224 See also the follow-up ruling in Poplawski II, where the CJEU held that the principle of the primacy of EU law does not require a national court to disapply a provision of national law which is incompatible with the provisions of a Framework Decision, the legal effects of which are preserved in accordance with art 9 of Protocol (No 36) on transitional provisions, annexed to the treaties, since those provisions do not have direct effect – the authorities of the Member States, including the courts, are nevertheless required to interpret their national law, to the greatest extent possible, in conformity with EU law, which enables them to ensure an outcome that is compatible with the objective pursued by the Framework Decision concerned. See Case C-573/17 Poplawski II ECLI:EU:C:2019:530. 225 ibid para 43.

The Lisbon Treaty and the Constitutionalisation of EU Criminal Law  35

iii.  Primacy, Effectiveness and Constitutional Identity: From Melloni to Taricco A key question following the entry into force of the Lisbon Treaty has been whether EU criminal law, including secondary law, has primacy over national law, including national constitutional law. The CJEU has confirmed primacy in two different strands of case law: in the Melloni litigation, the CJEU confirmed the primacy of EU secondary law on mutual recognition in criminal matters (the Framework Decision on the European Arrest Warrant) over national constitutional law); and in the Taricco litigation, the CJEU evoked primacy based on Article 325 TFEU on the protection of the EU’s financial interests. In both cases, primacy was linked with the effectiveness of EU law, with the Court emphasising in Taricco in particular the link between giving effect to primacy and the disapplication of domestic law. However, both Melloni and Taricco raised serious constitutional identity concerns in EU Member States,226 leading to a judicial backlash from national constitutional courts. The interplay between primacy and constitutional identity in the case of Melloni,227 where the CJEU confirmed the applicability of the principle of primacy of secondary EU third pillar law over national constitutional law, will be analysed in detail elsewhere in this volume,.228 This chapter will focus more extensively on the Taricco litigation and the lessons it provides for the relationship between primacy, effectiveness and disapplication on the one hand and national constitutional identity concerns on the other. In the first Taricco case,229 the key question that the Court of Justice decided to answer was the extent to which national rules in relation to limitation periods for criminal offences in Italy were in compliance with EU law, and in particular with EU law on the protection of the EU’s financial interests. The Court followed a three-step approach to answer this question: first, it identified specific EU law obligations in the field; second, it determined the effect of these obligations on national law; and, third, it assessed the compatibility of compliance by national authorities with these obligations with fundamental rights and, in particular, with the principle of legality. In terms of the first step, namely the identification of specific EU law obligations, the Court established such obligations as emanating from both secondary and primary EU law. On the one hand, the Court found (by reference to its ruling in Fransson)230 that Directive 2006/112, read in conjunction with Article 4(3) TEU on the principle of loyal cooperation, imposes on Member States ‘not only … a general obligation to take all legislative and administrative measures appropriate for ensuring collection of all the VAT due on their territory,

226 For a view of constitutional identity understood as the product of an interactive process creating or interpreting constitutional sources see G van der Schyff, ‘Member States of the European Union, Constitutions, and Identity: A Comparative Perspective’ in C Callies and G van der Schyff (eds), Constitutional Identity in a Europe of Multilevel Constitutionalism (Cambridge University Press 2020) 328. For a critical view of the use of constitutional identity by national courts as a means of attacking the supremacy of EU law, see F Fabbrini and A Sajo, ‘The Dangers of Constitutional Identity’ (2019) 25 European Law Journal 457. 227 Case C-399/11, Melloni v Ministerio Fiscal, ECLI:EU:C:2013:107. 228 See ch 4. 229 Taricco and Others (n 203). 230 Case C-617/10, Åklagaren v Åkerberg Fransson, EU:C:2013:105, para 25.

36  History, Principles and Institutions but … also fight against tax evasion’.231 Furthermore, also by reference to Fransson, the Court reiterated that: Article 325 TFEU itself obliges the Member States to counter illegal activities affecting the financial interests of the European Union through effective deterrent measures and, in particular, obliges them to take the same measures to counter fraud affecting the financial interests of the European Union as they take to counter fraud affecting their own interests.232

Again, this stressed the importance of the principle of assimilation.233 The Court recalled its finding in Fransson that: [T]here is … a direct link between the collection of VAT revenue in compliance with the EU law applicable and the availability to the EU budget of the corresponding VAT resources, since any lacuna in the collection of the first potentially causes a reduction in the second. (Emphasis added)234

The Court noted that: Although the Member States have freedom to choose the applicable penalties … in order to ensure that all VAT revenue is collected and, in so doing, that the financial interests of the European Union are protected in accordance with the provisions of Directive 2006/112 and Article 325 TFEU … criminal penalties may nevertheless be essential to combat certain serious cases of VAT evasion in an effective and dissuasive manner. (Emphasis added)235

The Court further recalled the duty of Member States: [U]nder Article 2(1) of the PFI Convention … to take the necessary measures to ensure that conduct constituting fraud affecting the European Union’s financial interests is punishable by effective, proportionate and dissuasive criminal penalties, including, at least in cases of serious fraud, penalties involving deprivation of liberty.236

In a move which is also significant for the determination of the mandate of the E ­ uropean Public Prosecutor’s Office (EPPO),237 the Court further found that the concept of ‘fraud’ as defined in Article 1 of the PFI Convention ‘covers revenue derived from applying a uniform rate to the harmonised VAT assessment bases determined according to EU rules’, a conclusion which ‘cannot be called into question by the fact that VAT is not collected directly for the account of the European Union’.238 The Court confirmed that the offences in the present case (inter alia, conspiracy to commit offences in relation to VAT and VAT evasion amounting to several million euros) ‘constitute cases of serious fraud affecting the European Union’s financial interests’,239 and confirmed that ‘such cases of serious fraud are punishable by criminal penalties which are, in particular, effective and dissuasive’ and that ‘the measures adopted in that respect must be the



231 Taricco

and Others (n 203) para 36. (n 230) para 26. 233 ibid para 37. 234 ibid para 38. 235 ibid para 39. 236 ibid para 40. 237 For an analysis, see ch 8. 238 Fransson (n 230) 41. 239 ibid para 42. 232 Fransson

The Lisbon Treaty and the Constitutionalisation of EU Criminal Law  37 same as those which the Member States adopt in order to combat equally serious cases of fraud affecting their own financial interests’.240 Having established obligations under EU law, the Court went on to spell out the effect of these obligations on national authorities. It noted that ‘the national provisions at issue … have the effect, given the complexity and duration of the criminal proceedings leading to the adoption of a final judgment, of neutralising the temporal effect of an event interrupting the limitation period’.241 Crucially, it added that: [I]f the national court concludes that the application of the national provisions in relation to the interruption of the limitation period has the effect that, in a considerable number of case[s], the commission of serious fraud will escape criminal punishment, since the offences will usually be time-barred before the criminal penalty laid down by law can be imposed by a final judicial decision, it would be necessary to find that the measures laid down by national law to combat fraud and any other illegal activity affecting the financial interests of the European Union could not be regarded as being effective and dissuasive, which would be incompatible with Article  325(1) TFEU, Article  2(1) of the PFI Convention as well as Directive 2006/112, read in conjunction with Article 4(3) TEU.242 … In the event that the national court concludes that the national provisions at issue do not satisfy the requirement of EU law that measures to counter VAT evasion be effective and dissuasive, that court would have to ensure that EU law is given full effect, if need be by disapplying those provisions and thereby neutralising the consequence referred to in paragraph 46 above, without having to request or await the prior repeal of those articles by way of legislation or any other constitutional procedure. (Emphasis added)243

The Court stressed in this context that: [T]he Member States’ obligation to counter illegal activities affecting the financial interests of the European Union through dissuasive and effective measures, and their obligation to take the same measures to counter fraud affecting those interests as they take to counter fraud affecting their own financial interests, are obligations imposed, inter alia, by EU primary law, namely Article 325(1) and (2) TFEU.244 Those provisions of EU primary law impose on Member States a precise obligation as to the result to be achieved that is not subject to any condition regarding application of the rule, which they lay down.245 The provisions of Article 325(1) and (2) TFEU therefore have the effect, in accordance with the principle of the precedence of EU law, in their relationship with the domestic law of the Member States, of rendering automatically inapplicable, merely by their entering into force, any conflicting provision of national law.246

Thus, the Court here confirmed that Article 325 TFEU has direct effect and primacy over national law, which leads to the disapplication of conflicting national law.

240 ibid

para 43. para 46. para 47. 243 ibid para 49. 244 ibid para 50. 245 ibid para 51. 246 ibid para 52. 241 ibid 242 ibid

38  History, Principles and Institutions In the third step of its response to the national court, the Court of Justice found that the disapplication of the national provisions in question would be compatible with the principle of legality as enshrined in Article 49 of the Charter of Fundamental Rights. [T]he sole effect of the disapplication of the national provisions at issue would be to not shorten the general limitation period in the context of pending criminal proceedings, to allow the effective prosecution of the alleged crimes, and to ensure, if necessary, that penalties intended to protect the financial interests of the European Union and those intended to protect the financial interests of the Italian Republic are treated in the same way.247

Such a disapplication of national law: [W]ould in no way lead to a conviction of the accused for an act or omission which did not constitute a criminal offence under national law at the time when it was committed … nor to the application of a penalty which, at that time, was not laid down by national law. On the contrary, the acts which the accused are alleged to have committed constituted, at the time when they were committed, the same offence and were punishable by the same criminal penalties as those applicable at present.248 The case law of the European Court of Human Rights in relation to Article  7 [ECHR] … support[s] that conclusion. Thus according to that case law, the extension of the limitation period and its immediate application do not entail an infringement of the rights guaranteed by Article 7 of that convention, since that provision cannot be interpreted as prohibiting an extension of limitation periods where the relevant offences have never become subject to limitation.249

The judgment in Taricco has a major impact on the relationship between EU law and national criminal law. The Court confirmed in the strongest possible terms that national sovereignty in criminal matters is limited in order to ensure the effective enforcement of EU law. Taricco is significant in this context because it confirms that the obligation of national authorities to disapply national law may stem directly from a Treaty provision which is seen as having direct effect. Effectively, the Court here granted the principle of assimilation, as enshrined in Article 325 TFEU, direct effect. It has thus sent a very powerful message regarding the obligation of Member States to ensure the effective protection of the EU budget.250 It confirmed that Article 325 TFEU has direct effect and primacy over national law, thereby placing obligations on national authorities to ensure the effectiveness of the fight against fraud in the strongest possible terms. Taricco is also of broader significance in confirming the inclusion of VAT fraud within the scope of the PFI Convention and had an impact in the inclusion of VAT within the scope of the post-Lisbon EU Directive on fraud, which in turn forms the basis for the mandate and competence of the EPPO.251 However, the significance of Taricco is broader than strictly 247 ibid para 55. 248 ibid para 56. 249 ibid para 57, omitting references to Coëme and Others v Belgium, App Nos 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 149, ECHR 2000-VI; Scoppola v Italy (No 2) [GC], App No 10249/03, § 110 and the case law cited therein, 17 September 2009; and OAO Neftyanaya Kompaniya Yukos v Russia, App Nos 14902/04, §§ 563, 564 and 570 and the case law cited therein, 20 September 2011. 250 See also the Opinion of Advocate General Kokott, who called for the referring court to refrain from applying a provision if that provision were to reflect a ‘systemic shortcoming’ which prevents the achievement of an outcome consistent with EU law – Opinion delivered on 30 April 2015, para 11. 251 For details, see chs 2 and 8.

The Lisbon Treaty and the Constitutionalisation of EU Criminal Law  39 the field of the protection of the EU’s financial interests. The Court has opened the door for the disapplication of national law which is not in compliance with the achievement of objectives contained in primary law provisions when these provisions are deemed to impose precise obligations, thus extending the principle of functional criminalisation at the level of national enforcement. It remains to be seen whether the Taricco approach will be applicable with regard to Treaty provisions which, unlike Article 325 TFEU, do not necessarily include references to the principle of assimilation. Last, but not least, Taricco has a very significant impact on domestic criminal justice choices and the protection of fundamental rights. In a manner reminiscent of its case law in Pupino252 and Advocaten voor de Wereld,253 the Court narrowly interpreted the scope of substantive criminal law, finding that the principle of legality is not affected because the national provisions in question (here on limitation periods) do not involve substance, but procedure. However, there is a very thin line between substance and procedure in this context, and Taricco has the effect of effectively overturning domestic criminal justice choices, and in this manner lowering the level of fundamental rights protection at the national level in the name of the effective fight against fraud. The Court’s ruling in Taricco I caused a commotion in Italy. It has resulted in a vivid academic debate and critique,254 and in a flurry of litigation in domestic courts, culminating in an intervention by the Italian Constitutional Court,255 a further ruling by Luxembourg and further debate and critique.256 Rather than electing to have the final say on the issue – with the likely outcome that the Constitutional Court would find EU law as interpreted by the CJEU in Taricco contrary to the Italian Constitution, thereby instigating a direct constitutional clash between the two Courts – the Constitutional Court decided to refer the case back to Luxembourg in the form of a reference for a preliminary ruling.257 The core of this reference was the compatibility of the ruling in Taricco I with the principle of legality. The Italian Constitutional Court stated unequivocally that it was convinced that an individual could not have reasonably considered, prior to the judgment given in the Taricco case, that Article  325 TFEU required the courts to disregard the relevant articles of the Italian Criminal Code in situations in which this would have resulted in an exemption from punishment in a considerable

252 Case C-105/03 Pupino [2005] ECR I–5285. For an analysis, see V Mitsilegas, ‘Constitutional Principles of the European Community and European Criminal Law’ (2006) 8 European Journal of Law Reform 301. 253 See in particular Advocaten voor de Wereld VZW v Leden van de Ministerraad and the Court’s departure from Advocate General Sharpston’s Opinion in Radu; for an analysis, see ch 4. 254 See A Bernardi (ed), I Controlimiti (Jovene Editore, 2017). 255 See F Vigano, ‘Supremacy of EU Law vs (Constitutional) National Identity: A New Challenge for the Court of Justice from the Italian Constitutional Court’ (2017) 7 European Criminal Law Review 103. 256 S Manacorda, ‘The Taricco Saga: A Risk or an Opportunity for European Criminal Law?’ (2018) 9 New Journal of European Criminal Law 4; V Manes, ‘Some Lessons from the Taricco Saga’ (2018) 9 New Journal of European Criminal Law.12; F Viganò, ‘Melloni Overruled? Considerations on the “Taricco II” judgment of the Court of Justice’ (2018) 9 New Journal of European Criminal Law, 18–23; R Sicurella, ‘Effectiveness of EU Law and Protection of Fundamental Rights: The Questions Settled and the New Challenges after the ECJ Decision in M.A.S. and M.B. Case (C-42/17)’ (2018) 9 New Journal of European Criminal Law 24; F G ­ iuffrida, ‘Taricco Principles beyond Taricco: Some Thoughts on Three Pending Cases (Scialdone, Kolev, Menci)’ (2018) 9 New Journal of European Criminal Law 31; V Mitsilegas, ‘Judicial Dialogue in Three Silences’ (2018) 9 New Journal of European Criminal Law 38; V Manes and M Caianiello, Introduzione al Diritto penale Europeo. Fonti, Metodi, Istituti, Casi (Giappichelli, 2020) 25–30. 257 Italian Constitutional Court, Order No 24, 2017.

40  History, Principles and Institutions number of cases involving serious fraud.258 It considered necessary to ask whether the Court of Justice took the view that the national courts should apply the rule even where it conflicts with a supreme principle of the Italian legal system, expressly adding that it thought this was not the case.259 The Italian Constitutional Court made an explicit reference to national constitutional identity and stated its conviction (confirmation of which was sought by the Court of Justice) that the rule inferred from Article 325 TFEU was only applicable if it is compatible with the constitutional identity of the Member State, and that it falls to the competent authorities of that Member State to carry out such an assessment.260 While the approach of the Italian Constitutional Court may be viewed as being in direct contrast to the CJEU approach in Taricco I, a more careful reading of the ruling reveals a more conciliatory approach.261 The Italian Constitutional Court seemed to be at pains to confirm the CJEU emphasis on upholding the effectiveness of Article 325 TFEU. It stated that ‘it is certainly not for this Court to attribute to Article 325 TFEU a meaning different from that which it was found to have by the Court of Justice; it is in fact its duty to take note of that meaning and to decide whether it could have been appreciated by the individual who carried out the acts of relevance under criminal law’.262 The Court added that it did not doubt that the rule applies to the systematic impunity which the legal rules governing the suspension of limitation periods entails for tax fraud, but added that the concept remains by its very nature ambiguous, and in any case cannot be substantiated through interpretation.263 The Court confirmed explicitly that it cannot be excluded that national law can and must be disregarded if this is required in specific cases by European law.264 In distinguishing Taricco I from Melloni, the Italian Constitutional Court stated that it did not call into question the meaning which the Court of Justice has ascribed to Article 325 TFEU.265 The Court chose to frame its questions to Luxembourg with a focus on the compatibility of Taricco I with the principle of legality as a supreme principle of the constitutional order or an inalienable human right recognised by the national Constitution. It did not refer to Luxembourg questions relating to the interpretation of Article 325 TFEU per se, thereby confirming the CJEU’s remarkable ruling that Article 325 TFEU entails direct effect. Therein lies the second silence in this judicial dialogue, this time by the Italian Constitutional Court. In view of the framing of the questions by the Italian Constitutional Court, the CJEU was faced with an important dilemma: to insist on upholding its ruling in Taricco I tout court, emphasising the effectiveness and primacy of EU law, or to accommodate the concerns raised by the referring court on the protection of the principle of legality, thereby undermining these very principles and its own authority. In its answer to the Italian Constitutional Court (a ruling which will be referred to in this commentary



258 Point

5. 6. 260 Point 7. 261 See Mitsilegas (n 256). 262 Point 5. 263 ibid. 264 ibid. 265 Point 8. 259 Point

The Lisbon Treaty and the Constitutionalisation of EU Criminal Law  41 as Taricco II),266 the CJEU attempted a careful balancing act. It started by reiterating the key principles established in Taricco I: the direct effect of Article  325(1) and (2) TFEU;267 the duty of disapplication of national provisions incumbent upon national courts;268 and the finding that the extension of limitation period does not infringe the principle of legality.269 However, the CJEU then visibly tried to find a space to accommodate the concerns raised by the Italian Constitutional Court. It did so in four steps. The first step was to accept that there is a degree of leeway given to national authorities in view of the fact that the protection of the EU’s financial interests is a matter of shared competence within the meaning of Article 4(2) TFEU;270 the second step was to focus on the temporal element of the facts in question, stating that Italy was at the time of the proceedings free to provide that limitation rules fall under substantive criminal law – prior to EU harmonisation, which has since occurred partially via the PIF Directive;271 the third step was to reiterate the general obligation of national courts under Taricco I to respect the fundamental rights of the defendant when they have to decide to disapply national criminal law provisions272 and to restate the Fransson finding that national courts free to apply national standards provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised;273 and the fourth step was to give space to the national legal system to apply the principle of legality in national proceedings. The CJEU gave space to the national legal order by going into a detailed examination of the elements of the principle of legality in EU law, focusing on foreseeability, precision and non-retroactivity,274 and by stating that these requirements also apply in the Italian legal system to the limitation rules for criminal offences relating to VAT.275 It stated that it is for the national court to assess the compatibility of the obligation to disapply with the principle of legality: if the national court finds that there would be a conflict, it would not be obliged to comply with that obligation, even if compliance with the obligation allowed a national situation incompatible with EU law to be remedied.276 In this way, the CJEU allowed Italian courts to apply the principle of legality as a substantive criminal law principle defined largely under national law in proceedings occurring before the adoption of the PIF Directive. The Court thus accommodated national constitutional and criminal law concerns, while at the same time avoiding engaging with the argument of the Italian Constitutional Court regarding primacy and national constitutional identity. Nor does Taricco II include any reference to Melloni in that regard. Herein lies the third silence in the Taricco judicial dialogue, a silence which reflects a pragmatic approach and a desire to avoid head-on constitutional confrontation while leaving room



266 Taricco

II (n 204) judgment of 5 December 2017. para 38. para 39. 269 ibid para 42. 270 ibid para 43. 271 ibid para 44–45. 272 ibid para 46. 273 ibid para 47. 274 ibid para 51–57. 275 ibid para 58. 276 ibid para 59–61. 267 ibid 268 ibid

42  History, Principles and Institutions from the CJEU perspective for the application of EU constitutional law principles such as primacy and effectiveness in the future.277 The dialogue between the CJEU and the Italian Constitutional Court in the Taricco litigation can be seen as reaching a successful outcome from the perspective of both Courts. On the one hand, the Italian Constitutional Court ensured that its position on the legality principle is not jeopardised, at least for cases occurring before the adoption of the EU PIF Directive. On the other hand, the CJEU maintained (at least on paper) the basic principles put forward in Taricco I. In a spirit of mutual accommodation, based not only on the two Courts’ findings but also on their silences, a direct constitutional clash was avoided. This does not mean that every single issue arising from the Taricco litigation has been clarified. The meaning and scope of the principle of legality, and the relationship between EU law and Article 49 of the Charter of Fundamental Rights and national law remain to be further clarified. Also unclear is the impact of EU harmonisation on limitation periods on the conceptualisation of the principle of legality in national law. Moreover, the Taricco litigation leaves a number of questions unanswered regarding the effectiveness of EU and national action to combat fraud against the EU budget. The Taricco I reference can be seen as a cry for help from a lower court in Italy, with the referring judge feeling helpless in view of the way in which national law on limitation periods operated to lad to impunity for PIF offences. Italy has adopted a new law on the matter whose impact remains to be seen and whose effectiveness will be assessed not only in relation to the PIF Directive, but also in relation to Article 325 TFEU. Both the Italian Constitutional Court278 and the CJEU279 stressed the role of the legislature in addressing any shortcomings. From an EU law perspective, the European Commission has a crucial role to play in this regard in its role as guardian of the Treaties. However, ultimately, a new raft of questions and constitutional controversies may arise in the future concerning the question of who will ultimately have the final say on the compatibility of EU law requirements with national constitutional provisions: national courts or the CJEU. In the Taricco litigation, the CJEU has attempted to uphold its key findings regarding the applicability of EU law principles and obligations of national authorities to ensure the fight against impunity for violations of EU interests; at the same time, it addressed domestic concerns by creating a somewhat artificial temporal dividing line before and after harmonisation, with Member States retaining a certain amount of leeway to act in cases where the EU has not acted.280 The immediate response by the Italian Constitutional Court was not encouraging, but rather entrenched,281 with the question being dealt with from an internal balance of power rather than from an antiimpunity perspective. However, this is not a zero-sum game, as Italian domestic rules

277 Mitsilegas (n 256). 278 Point 7. 279 Taricco II (n 204) para. 41. 280 V Mitsilegas, ‘Conceptualising Impunity in the Law of the European Union’ in S Montaldo and L Marin (eds), The Fight against Impunity in EU Law (Hart Publishing, 2020) 13–45. 281 V Manes, ‘Taricco, Endgame’ in V Mitsilegas, A di Martino and L Mancano (eds), The Court of Justice and European Criminal Law: Leading Cases in a Contextual Analysis (Hart Publishing, 2019) 188–95.

The Lisbon Treaty and the Constitutionalisation of EU Criminal Law  43 on limitation periods have been amended to accommodate anti-impunity concerns,282 and the subsequent case law of the Italian Constitutional Court appears to be more open towards fully applying the cooperative mechanisms with the CJEU.283 The approach of the CJEU, especially in Taricco II, stresses the role of legislation more broadly in addressing both impunity and legal certainty concerns. In this manner, the fight against impunity acts once more as a driver for European integration by requiring further EU harmonising legislation. However, the fact remains that EU law obligations to ensure the effectiveness of the fight against fraud on the EU budget and to avoid impunity in this context remain even in cases where limited EU harmonisation has occurred – this is particularly the case in the field of criminal procedure, where the impact of EU law on national rules remains unclear and contested. A key question here is the extent to which national authorities must respect fundamental rights when applying their obligations to ensure the effectiveness of EU law in the context of the fight against impunity. A recent example of the CJEU’s approach has been its ruling in Kolev,284 where it focused on the conformity of national procedural measures with fundamental rights in proceedings aimed at safeguarding the EU’s financial interests. In Kolev, the CJEU extended the obligation stemming from Article 325 TFEU to ensure the effectiveness of EU law expressly in the field of criminal procedure.285 The CJEU proceeded with a delicate balancing act: on the one hand, it called upon the national legislator to amend rules when there is a systemic risk that acts that may be categorised as offences against the EU’s financial interests may go unpunished, while also ensuring that the fundamental rights of accused persons are protected;286 that the national court disapplies national law if necessary;287 and that the referring court ensures that, at the various stages of proceedings, any deliberate and abusive obstruction on the part of the defence to the proper conduct and progress of those proceedings can be overridden.288 On the other hand, the CJEU stated that fundamental rights cannot be defeated by the obligation to ensure the effective collection of the EU’s resources.289 The CJEU then focused on the requirement to protect the right of accused persons to have their case heard within a reasonable time,290 which was treated by the Court as a general principle of EU law, enshrined in Article 6(1) ECHR and in Article 47 of the Charter of Fundamental Rights.291 The Court referred to European Court of Human Rights (Strasbourg) case law to determine the temporal applicability of that right in the field of criminal law.292 However, and while the interpretation of the parameters of a specific rights have 282 Law 23 June 2017, No 103, known as ‘Orlando reform’. See Gazzetta Ufficiale della Repubblica Italiana, 4 July 2017. 283 See Constitutional Court, ruling of 23 January 2019, No 20; Constitutional Court, ruling of 20 February 2019, No 63; Constitutional Court, ruling of 10 May 2019, No 112. Furthermore, with the Order of 10 May 2019, No 117, the Constitutional Court has referred to the CJEU a request for a preliminary reference. I am grateful to Michele Caianiello, Giulia Lasagni and Luisa Marin for drawing my attention to these cases. 284 Kolev (n 205); see also ch 5. 285 Kolev (n 205) para 55. 286 ibid para 65. 287 ibid para 66. 288 ibid para 67. 289 ibid para 68. 290 ibid para 70. 291 ibid para 71. 292 ibid.

44  History, Principles and Institutions again been based on Strasbourg case law, it is noteworthy that the CJEU reverted to its internal ‘constitutional’ approach, focusing on the general principles of EU law in order to address the broader question of balancing the protection of fundamental rights with the requirement to achieve the effective enforcement of EU law in the protection of an EU interest. This attempt to temper the national courts’ duty to fight impunity and ensure the effectiveness of Article 325 TFEU by their duty to respect fundamental rights is also evident in the case of Dzivev.293 In Dzivev, the CJEU extended rights protection by stating expressly that the obligation to ensure the effective collection of the EU’s resources does not excuse national courts from the necessary observance of the fundamental rights guaranteed by the Charter of Fundamental Rights and of the general principles of EU law. More precisely, it argued that the criminal proceedings instigated for VAT offences amount to an implementation of EU law, and that those rights and principles must be respected not only during the criminal proceedings, but also during the stage of the preliminary investigation, from the moment when the person concerned becomes an accused.294 In a case involving unlawful interception of communications, the CJEU, emphasising the importance of protecting legality and the rule of law,295 found that EU law cannot require a national court to disapply such a procedural rule, even if the use of that evidence gathered unlawfully could increase the effectiveness of criminal prosecutions, enabling national authorities, in some cases, to penalise non-compliance with EU law.296 The trajectory of the Court’s approach from Taricco to Dzivev thus reveals an interesting trend regarding the fight against impunity in terms of the protection of the EU budget. The CJEU took full advantage of ‘Lisbonisation’ in Taricco I to set out a clear benchmark of effectiveness and anti-impunity by empowering Article 325 TFEU with direct effect and spelling out far-reaching obligations of disapplication for national authorities, including courts. The CJEU hinted at the importance of further European integration in the form of legislative harmonisation, but insisted on the application of these duties in national legal orders, even in the face of limited harmonisation – with duties stemming from Article  325 also applying in the fields of criminal procedure and criminal investigations. However, the quest for effectiveness in the fight against impunity is limited by the constitutional requirement for national authorities to respect legality and the rule of law. In a field of law where there is still limited, minimum and piecemeal harmonisation, this European approach of balancing the fight against impunity with the protection of fundamental rights and the rule of law leaves a number of questions of certainty and consistency unanswered, as responses may vary considerably in accordance with national legal systems and policy priorities.297 293 Case C-310/16, Petar Dzivev, ECLI:EU:C:2019:30. 294 ibid para 33. 295 ibid para 34. 296 ibid para 39. 297 See the criticism of AG Bobek in his Opinion in Dvizev, noting the challenges to foreseeability (any national court can and should draw appropriate procedural consequences from a finding of incompatibility, which it is entitled to make for itself, without a reference to the CJEU). When extended to the setting aside of national rules of criminal procedure by individual courts in the Member States based on their self-assessment, criminal justice appears to run the risk of becoming an EU-sponsored lottery (para 106) and that, even after the ruling in Kolev, the catalysing point set by the Court for any such selective disapplication of offending national rules remains unclear (para 107).

The Lisbon Treaty and the Constitutionalisation of EU Criminal Law  45

C. Rights Another key factor in the constitutionalisation of EU criminal law after Lisbon has been the central place of the protection of fundamental rights in the Treaty. A key development in this context has been the constitutionalisation of the Charter of Fundamental Rights, which has the same legal value as the Treaties298 and has been seen as contributing to reinforcing the centrality of fundamental rights in the EU legal order.299 The Charter contains a whole Title (Title VI) on Justice. Title VI enshrines key rights and principles for the development of EU criminal law, including the right to an effective remedy and to a fair trial,300 the presumption of innocence and right of defence,301 the principles of legality and proportionality of criminal offences and penalties,302 and the right not to be tried or punished twice in criminal proceedings for the same criminal offence.303 Further Charter rights which are relevant to EU criminal law include rights and principles enshrined in Title I of the Charter on dignity (including the provisions on human dignity,304 the right to life,305 the right to the integrity of the person306 and the prohibition of torture and inhuman or degrading treatment or punishment);307 in Title II on freedoms (including the provisions on the right to liberty and security,308 respect for private and family life,309 and the protection of personal data,310 as well as the provisions on freedom of expression and information,311 freedom of assembly and association,312 the right to property313 and protection in the event of removal, expulsion or extradition);314 in Title III on equality (most notably the provisions on equality before the law,315 non-discrimination316 and the rights of the child);317 and in Title V on citizens’ rights (including the right to good administration,318 the right of access to documents319 and freedom of movement and of residence).320 A whole raft of articles – and thus the majority of the Charter provisions – are relevant and applicable in the 298 Article 6(1) TEU. See P Craig, The Lisbon Treaty: Law, Politics, and Treaty Reform (Oxford University Press, 2010) 200. 299 See S Iglesias Sanchez, ‘The Court and the Charter: The Impact of the Entry into Force of the Lisbon Treaty on the ECJ’s Approach to Fundamental Rights’ (2012) 49 CML Rev 1565, 1582. 300 Article 47. 301 Article 48. 302 Article 49. 303 Article 50. 304 Article 1. 305 Article 2. 306 Article 3. 307 Article 4. 308 Article 6. 309 Article 7. 310 Article 8. 311 Article 11. 312 Article 12. 313 Article 17. 314 Article 18. 315 Article 20. 316 Article 23. 317 Article 24. 318 Article 41. 319 Article 42. 320 Article 45.

46  History, Principles and Institutions implementation of EU criminal law. The impact of the Charter in this context will be analysed in detail throughout this volume. Linked to the protection by the Charter is the emphasis of the Lisbon Treaty on other sources of rights. Fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, constitute general principles of EU law.321 In Kolev, the understanding of fundamental rights as general principles of EU law has been underlined in relation to the right of an individual to have his case heard within a reasonable time, which forms part of the right to a fair trial as enshrined in Article 6(1) ECHR and Article 47 of the Charter. In that respect, the CJEU stressed that this right must be respected not only during the trial procedure, but also during the stage of the preliminary investigation, from the moment when the person concerned becomes an accused.322 The Treaty also calls for the EU’s accession to the ECHR.323 Throughout this volume, it will be demonstrated that, notwithstanding the methodological difficulties regarding the accession of the EU to the ECHR that the Court of Justice is currently facing,324 the Court has also been using Strasbourg case law in detail in order to evaluate human rights compliance of EU law.325 The influence of the Charter in the development of EU criminal law after Lisbon is not limited to the interpretation of the content of EU criminal law in conformity with the Charter. It is also crucial when determining the scope of application and interpretation of rights and the level of protection provided by the Charter – aspects which are addressed in the final, horizontal provisions of the Charter.326 These provisions aim to regulate the relationship between the Charter and national law on the one hand, and the relationship between the Charter and other sources of human rights protection (including the ECHR) on the other. The Court of Justice has thus far intervened on both aspects. In the seminal ruling in Melloni, the Court found that EU law which is found to be in compliance with the Charter has primacy over national constitutional law which provides a higher level of protection. While this ruling may be seen as lowering the protection of fundamental rights in certain jurisdictions, the Court has compensated for this potential outcome (which was justified by the need to ensure the primacy, unity and effectiveness of EU law) by adopting a broad interpretation of what constitutes the implementation of EU law which triggers the application of the Charter under Article 51(1) of the Charter. In the case of Fransson,327 the Court of Justice adopted a broad interpretation of the application of the Charter, including in cases where national legislation does not 321 Article 6(3) TEU. 322 Kolev (n 205) para 71. See also ECtHR, Affaire stratégies et communications et Dumoulin v Belgium (Judgment of 15 July 2002) para 39; and McFarlane v Ireland (Judgment of 10 September 2010). 323 Article 6(2) TEU. 324 See the discussion on the impact of Opinion 2/13 in ch 4 on mutual recognition. 325 See in particular references to the ECHR in the Court’s case law on substantive criminal law on fraud (ch 2), ne bis in idem (ch 3) and mutual recognition and the European Arrest Warrant (ch 4). 326 See in particular arts 51–53 of the Charter. For commentaries, see, inter alia, K Lenaerts, ‘Exploring the Limits of the EU Charter of Fundamental Rights’ (2012) 8 European Constitutional Law Review 375; D Sarmiento, ‘Who’s Afraid of the Charter? The Court of Justice, National Courts and the New Framework of Fundamental Rights Protection in Europe’ (2013) 50 CML Rev 1267; and F Fontanelli, ‘Implementation of EU Law through Domestic Measures after Fransson: The Court of Justice Buys Time and “Non-preclusion” Troubles Loom Large’ (2014) 39 European Law Review 682. 327 Case C-617/10, Åklagaren v Hans Åkerberg Fransson, ECLI:EU:C:2013:105.

Legal Basis Disputes and Contested Competence  47 implement an EU criminal law instrument expressly or directly. The Court found that domestic law on VAT fraud does fall within EU law since there is a direct link between the collection of VAT revenue in compliance with the applicable EU law and the availability to the EU budget of the corresponding VAT resources.328 This reasoning has become influential in the development of the Court’s case law on the relationship between EU law and national law on criminal procedure.329 At the same time, it has caused concern in Member States, which fear that the Court’s expansive approach might lead to the extension of the competence of the EU.330 The Court of Justice developed its approach on the applicability of the Charter in Siragusa,331 where it ruled that the concept of ‘implementing Union law’, as referred to in Article 51 of the Charter, requires a certain degree of connection above and beyond the matters covered being closely related or one of those matters having an indirect impact on the other.332 The Court’s approach has the effect of including a wide range of national legislation and measures relating to national criminal justice systems within the scope of the Charter. This view is reinforced by the Court’s finding in Siragusa that it is important to consider the objective of protecting fundamental rights in EU law, which is to ensure that those rights are not infringed in areas of EU activity, whether through action at the EU level or through the implementation of EU law by the Member States.333

VII.  Legal Basis Disputes and Contested Competence A key testing ground for the constitutionalisation of EU criminal law is the application of the principle of conferral and the existence, extent and exercise of EU competence in the field of criminal justice. The entry into force of the Lisbon Treaty has demonstrated two at first sight conflicting tendencies in the field: on the one hand, the drafters of the Treaty have been ambitious enough to include in Title V for the first time new, express legal bases which would extend the powers of the EU to new areas of criminal justice, including criminal procedure (Article  82(2) TFEU), ‘functional’ substantive criminal law (Article  83(2) TFEU) and the establishment of a EPPO (Article  86 TFEU). On the other hand, and in accordance with the general spirit of the Treaty,334 the drafters have been careful to articulate and determine as precisely as possible the extent of EU 328 ibid para 26. 329 See in particular the case of Taricco (n 203). 330 See in this context the judgment of the Bundesverfassungsgericht in the anti-terrorism databases case – 1 BvR 1215/07, judgment of 24 April 2013, where the Court adopted a restrictive interpretation of Fransson, finding that art 51(1) of the Charter cannot operate when the domestic measure relates to the purely abstract scope of EU law or when it has a merely de facto effect upon it (para 91). See F Fontanelli, ‘Hic Sunt Nationes: The Elusive Limits of the EU Charter and the German Constitutional Watchdog’ (2013) 9 European Constitutional Law Review 315. On the broader concerns of the Bundesverfassungsgericht with regard to the potential impact of the Lisbon Treaty on national sovereignty and competence in criminal law, see the commentary on the Lisbon judgment below. 331 Case C-206/13, Siragusa v Regione Sicilia, ECLI:EU:C:2014:126. 332 ibid para 24. 333 ibid para 31. 334 See in particular arts 4(1) and 5(2) TEU; and art 51(2) of the Charter; for an analysis, see L Azoulai, ‘Introduction: The Question of Competence’ in L Azoulai (ed), The Question of Competence in the European Union (Oxford University Press, 2014) 1–18, at 10–11.

48  History, Principles and Institutions competence in criminal law and to ensure that the EU acts within the limits of conferral. However, the care of the Treaty drafters has not avoided controversy over the existence, extent and exercise of EU competence in criminal matters. There has already been extensive litigation at three levels: at the level of the relationship between national and EU powers in criminal matters; at the level of the choice of legal basis in the adoption of internal EU law; and at the level of the choice of legal basis and inter-institutional balance concerning the choice of legal basis in external relations. These three aspects of competence and legal basis litigation will be examined in this section.

A.  Criminal Law versus the Internal Market: The Weapons Case Legal basis and competence disputes regarding security-related instruments adopted under an internal market legal basis have arisen repeatedly in the field of data retention and the transfer of personal data.335 A similar dispute has arisen regarding the adoption of Directive (EU) 2017/853 of the European Parliament and of the Council of 17 May 2017 amending Council Directive 91/477/EEC on control of the acquisition and possession of weapons.336 The Czech Republic sought the annulment of the Directive inter alia on the grounds that Article 114 TFEU cannot constitute an appropriate legal basis for its adoption as the objectives it pursues consist exclusively in ensuring a higher level of public security in relation to the terrorist threat and other forms of crime, and prohibiting the possession of certain semi-automatic firearms and their magazines, which was the main novelty of the contested directive, has no link with the isolated shortcomings in the functioning of the internal market.337 As in recent litigation on the data retention Directive,338 it was argued that not only was the legal basis for the adoption of the instrument in question incorrect, but also that the EU did not have competence to adopt the measure in the first place as in the field of prevention of crime and terrorism, harmonisation is specifically excluded by Article 84 TFEU, echoing the national security exception set out in Article 4(2) TEU.339 The CJEU did not accept these arguments and held that the Directive in question was adopted under the correct legal basis. It found that in adopting the Directive, the EU legislature has continued to pursue, in the context of risk developments in the area of security, the stated objective of the fifth recital of Directive 91/477 of reinforcing mutual confidence between Member States in the field of the protection of the safety of persons.340 It noted that the circumstances have evolved significantly since the adoption of Directive 91/477341 and that the EU legislature cannot be denied the possibility of adapting, on the basis of Article 114 TFEU, an act such as Directive 91/477 to any change in circumstances or development of knowledge having regard to its task of 335 For further analysis, see ch 9. 336 [2017] OJ L137/22 337 Case C-482/17, Czech Republic v European Parliament and Council, ECLI:EU:C:2019:1035, paras 21 and 22. 338 See ch 9. 339 Czech Republic v European Parliament and Council (n 337) para 23. 340 ibid para 54. 341 ibid para 55.

Legal Basis Disputes and Contested Competence  49 safeguarding the general interests recognised by the Treaties, including the maintenance of public security.342 The CJEU further noted that harmonisation of aspects relating to the safety of goods is one of the essential elements for the proper functioning of the internal market343 and that the measure resulting from the amendments made to Directive 91/477 by the contested directive includes rules governing the internal market in firearms for civilian use that are adapted to the particular features of those goods and that continue to ensure, as regards the free movement of goods, legal approximation.344 Moreover, it does not appear that the EU legislature exceeded the margin of discretion conferred upon it by the legal basis of Article 114 TFEU as regards the method of approximation, when in order to ensure the maintenance of a limited degree of free movement of firearms for civilian use within the internal market, it adopted the measures adding certain semi-automatic firearms to the category of firearms that are prohibited by Directive 91/477.345 By upholding the internal market legal basis, the CJEU has also upheld the very existence of EU competence to legislate in a security-related matter where legislation was adopted in response to security emergencies in Europe.346

B.  Criminal Law versus Transport Policy: The Road Traffic Offences Directive Case The entry into force of the Lisbon Treaty included an attempt to address the pre-Lisbon inter-institutional battles over the existence and extent of EU competence in criminal matters. As will be analysed in the following chapter, Article 83(2) TFEU establishes a paradigm of functional criminalisation by attempting to translate into Treaty terms the seminal rulings of the Court of Justice in litigation concerning the delimitation of criminal law competence on environmental crime and pollution at sea.347 The precise scope and contours of EU competence under Article  83(2) TFEU remain contested, and the wording of the provision may still raise questions that will need to be resolved by the Court of Justice. However, competence questions are not limited to substantive criminalisation. The entry into force of the Lisbon Treaty has already triggered litigation regarding the correct legal basis on a measure introducing a cooperation mechanism on the investigation of road traffic offences. Directive 2011/82/EU facilitating the crossborder exchange of information on road safety related traffic offences was adopted on 25 October 2011.348 Its legal basis was Article 87(2) TFEU, which is a police ­cooperation

342 ibid para 56. 343 ibid para 57. 344 ibid para 59. 345 ibid para 62. 346 The CJEU did not have an issue with the fact that the Directive in question was tabled by the Commission without the publication of an Impact Assessment; for a critical overview, see V Mitsilegas, ‘Counter-terrorism and the Rule of Law in an Evolving European Union: Plus ça Change?’ (2021) 12 New Journal of European Criminal Law 36. 347 Case C-176/03, Commission v Council [2005] ECR I-7879; Case C–440/05 Commission v Council [2007] ECR I-9097. For an analysis, see ch 2. 348 Directive 2011/82/EU of the European Parliament and of the Council of 25 October 2011 facilitating the cross-border exchange of information on road safety related traffic offences [2011] OJ L288/1, 5 November.

50  History, Principles and Institutions legal basis under Title V TFEU.349 Its stated objective was to ensure a high level of protection for all road users in the EU by facilitating the cross-border exchange of information on road safety-related traffic offences and thereby the enforcement of sanctions, where those offences are committed with a vehicle registered in a Member State other than the Member State where the offence took place.350 The key measures it introduced were a procedure for the exchange of information between Member States351 and the issuing of an information letter on the road safety-related traffic offences.352 The Commission challenged the validity of the Directive on the grounds of the incorrect use of legal basis.353 The Commission argued that Article 87(2) TFEU could only be the legal basis of measures specifically related to the prevention or detection of criminal offences. It further argued that ‘it cannot be inferred simply because an “offence” is punitive in nature or seeks to achieve deterrence, that it can automatically be regarded as a “criminal” offence within the meaning of Article 87 TFEU’.354 According to the Commission, both the goal and the content of the Directive fell within the field of transport policy and in particular Article 91 TFEU, which should have been used as the legal basis of the Directive.355 The aim of the Directive, argued the Commission, was to improve road safety and its content confined itself to ‘organising the exchange of information with regard to … conduct bearing upon road safety, without adopting harmonising measures in relation to that conduct and … without obliging the Member States to criminalise such conduct’.356 The Commission’s arguments were rebutted by the European Parliament and the Council, supported by seven Member States (Belgium, Ireland, Hungary, Poland, the Slovak Republic, Sweden and the UK). The European Parliament, supported by the majority of the intervening Member States, considered that the Directive principally pursued the objective of establishing a system of exchange of information and only indirectly objectives relating to road safety – for that reason, the Directive could not have been based on Article 91 TFEU.357 The Council further pointed out that the Directive provided for rules relating to the enforcement of sanctions concerning road safetyrelated traffic offences. While these offences may be of an administrative or criminal nature, the means for enforcing them must be regarded as falling, in all cases, within the category of rules of criminal procedure, with the question of what is a ‘criminal

349 According to art 87(1) TFEU, the EU will ‘establish police cooperation involving all the Member States’ competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences’. According to art 87(2)(a) TFEU, the European Parliament and the Council may establish for the purposes of art 87(1) measures concerning ‘the collection, storage, processing, analysis and exchange of relevant information’. 350 Directive 2011/82/EU, art 1. 351 ibid art 4. 352 ibid art 5. 353 Judgment of the CJEU (Grand Chamber) in Case C-43/12, European Commission v European ­Parliament and Council, ECLI:EU:C:2014:298. For an analysis, see N Vavoula, ‘Exchanging Information on Road Traffic Offences: A Measure of Police Cooperation or Transport Policy? Case Note on C-43/12 Commission v Parliament and Council’ (2016) 7 New Journal of European Criminal Law 113. 354 ibid para 17. 355 ibid para 19. 356 ibid para 20. 357 ibid para 24.

Legal Basis Disputes and Contested Competence  51 matter’ to be interpreted autonomously under EU law.358 The Council argued that provisions such as those in the Directive, the aim of which is to improve road safety by deterring certain types of behaviour regarded as dangerous, are necessarily ‘criminal’ matters and cannot be classified as road safety related norms within the meaning of Article 91 TFEU.359 It also argued that the Directive fell entirely within the objectives of Article 87(2) TFEU, as the measures sought to facilitate the detection of persons who have committed cross-border road safety-related offences, and the aim of the Directive was to collect information concerning offences in order to help deter them, which are measures for which the EU has competence under Article 87 TFEU. According to the Council, the reference to ‘all the … competent authorities’ in Article 87(1) TFEU confirms that it is immaterial, for the purposes of determining the applicability of that provision, whether the services at issue were, in each Member State concerned, administrative or criminal in nature.360 The Court found in favour of the Commission. It began its reasoning by reiterating that in assessing the appropriate use of the legal basis, both the aim and the content of the measure must be examined,361 and that if examination of the measure concerned reveals that it pursues a twofold purpose or that it has a twofold component, and if one of those is identifiable as the main or predominant purpose or component (whereas the other is merely incidental), that measure must be based on a single legal basis, namely that required by the main or predominant purpose or component.362 Examining the Directive in question, the Court found that its main aim was to improve road safety, which is a prime objective of the European transport policy.363 The aim of the establishment of the system of cross-border information exchange set out in the Directive was to enable the EU to pursue the goal of improving road safety.364 With regard to the content of the Directive, and following an examination of the key provisions of that measure,365 the Court found again that the system for the exchange of information set up by the Directive provides the means of pursuing the objective of improving road safety and enables the EU to attain that aim.366 The Directive was thus a measure to improve transport safety within the meaning of Article 91(1)(c) TFEU and it should have been adopted under that legal basis.367 The Directive was not directly linked to the AFSJ objectives enshrined in Article 67(2) TFEU.368 The Court thus annulled the Directive, but decided to maintain its effects until the entry into force within a reasonable period of time and not exceeding 12 months from the date of the delivery of the judgment of a new Directive based on the correct legal basis of Article 91(1)(c) TFEU.369 358 ibid para 25. 359 ibid para 26. On the deterrent effect of the Directive, see also the Opinion of AG Bot, delivered on 10 September 2013, para 33. 360 ibid para 27. 361 ibid para 29. 362 ibid para 30. 363 ibid para 36. 364 ibid para 37. 365 ibid paras 38–41. 366 ibid para 42. 367 ibid para 44. 368 ibid para 47–49. 369 ibid para 56.

52  History, Principles and Institutions A new Directive based on Article  91(1)(c) was indeed adopted and published in the Official Journal 10 months after the date of the delivery of the judgment in the road traffic offences case.370 The Court’s ruling has far-reaching implications for the delimitation of EU powers to act in criminal matters. First of all, the change in the legal basis of the road traffic offences Directive has had a profound impact on the position of Member States which did not participate (Denmark) or had a right not to opt into (Ireland and the UK) Title V legislation. All these states are now bound by the new ‘transport’ road traffic offences Directive (as there is no possibility of an opt-out from Article 91 TFEU), although they were not (Denmark) or chose not to be (Ireland and the UK) subject to the original Directive adopted under a Title V legal basis. The new Directive recognises this change by granting these Member States additional time to implement a Directive, the substance of which is identical to the measure to which they were not subject.371 The Court’s ruling is also significant in that it reiterates the functional criminalisation approach adopted in the earlier rulings on environmental crime and ship-source pollution rulings, and extends this approach beyond the field of substantive criminal law to the field of cooperation in criminal matters. As with its earlier rulings, the Court here views criminal law as merely a means to an end for the achievement of EU objectives, in this case transport. In order to reach this conclusion, the Court has privileged in its analysis the objective of the road traffic offences Directive, while it essentially subordinated the content of the measure (which was – and still is – essentially related to law enforcement cooperation) to the rather general and broad aim of transport policy. In this manner, law enforcement cooperation becomes the means to the end of the achievement of transport policy objectives. This reasoning is not convincing in disregarding the cooperation essence of the measure. It has a profound effect in that it seems to enable the adoption of functional criminal law measures outside the field of substantive criminal law under legal bases outside the scope of Title V TFEU. There is thus a functional criminal law spill-over from Title V to other parts of the Treaty, with the road traffic offences ruling leaving open the possibility of EU legislation in criminal matters being adopted outside Title V.372 This approach may challenge significantly the position of Member States which have, as seen in this chapter, inserted a number of sovereignty and legal diversity safeguards into Title V TFEU, which could thus be circumvented.

C.  The Internal/External Dimension: The Case of Terrorist Sanctions Persistent questions with regard to the legality of EU action against terrorism have arisen in the context of the adoption by the EU of sanctions amounting to the freezing of assets of terrorist suspects, implementing in the EU legal order UNSC Resolutions 1267 and 1373. One of the key legality hurdles that the EU legislator had to overcome 370 Directive (EU) 2015/413 of the European Parliament and of the Council of 11 March 2015 facilitating cross-border exchange of information on road-safety-related traffic offences [2015] OJ L68/9, 13 March. 371 Recital 29. 372 For further details on this debate, see ch 2.

Legal Basis Disputes and Contested Competence  53 pre-Lisbon was the absence in the Treaties of an express legal basis conferring on the Community or the Union competence to legislate on sanctions against individuals.373 In order to overcome this hurdle, and in particular to implement Resolution 1267, the Council adopted a Common Position under Article 15 TEU374 and in parallel a first pillar Regulation on the basis of Articles 60, 301 and 308 EC.375 The addition of Article 308 to the legal basis of Regulation 881/2002 has been attributed to the need to take account of political developments taking place at the time. By January 2002, the Taliban regime in Afghanistan had fallen and so at the time that the Regulation was adopted, the persons and entities listed did not have a direct connection with the territory or governing regime of a third country. The initial choice of legal bases of Articles 60 and 301 EC, which was based on the principle that the individuals and entities listed were in effective control of the territory of a third country, or were associated with those in effective control and provided them with financial support, was thus no longer deemed adequate to address the situation in Afghanistan.376 Under this technique, sanctions against individuals not linked with the government or the control of a country were thus included within the scope of Community law, with Regulation 881/2002 consolidating and expanding the sanctions regime in the light of developments in the UNSC.377 Although the legality of the adoption of Regulation 881/2002 is questionable, it was affirmed by the Court of Justice in its ruling in Kadi I. The Court found that inasmuch as they provide for Community powers to impose restrictive measures of an economic nature in order to implement actions decided on under the CFSP, Articles 60 and 301 EC are the expression of an implicit underlying objective, namely, that of making it possible to adopt such measures through the efficient use of a Community instrument,378 adding that that objective may be regarded as constituting an objective of the Community for the purposes of Article 308.379 The Court then found a link between the Regulation and the operation of the common market, stating that if sanctions were imposed ­unilaterally by Member States, the multiplication of those national measures ‘might well affect the operation of the common market’, adding that such measures could have a particular effect on trade between Member States, especially with regard to the movement of capital and payments, and on the exercise by economic operators of their right of establishment, and that they could create distortions of competition, ‘because any differences between the measures unilaterally taken by the Member States could operate to the

373 V Mitsilegas, ‘The European Union and the Globalisation of Criminal Law’ (2010) 12 Cambridge Yearbook of European Legal Studies 337. See also ch 10. 374 Council Common Position of 27 May 2002 concerning restrictive measures against Usama bin Laden, members of the Al-Qaida organisation and the Taliban and other individuals, groups, undertakings and entities associated with them and repealing Common Positions 96/746/CFSP, 1999/727/CFSP, 2001/154/CFSP and 2001/771/CFSP (2002/402/CFSP) [2002] OJ L139/4. 375 Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 [2002] OJ L139/9. 376 See M Cremona, ‘EC Competence, “Smart Sanctions” and the Kadi Case’ (2009) 28 Yearbook of European Law 559, 569. 377 See in particular arts 2, 4 and 6 of the Regulation. 378 Joined Cases C-402/05 P and C-415/05 Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351, para 226. 379 ibid para 227.

54  History, Principles and Institutions advantage or disadvantage of the competitive position of certain economic operators although there were no economic reasons for that advantage or disadvantage’.380 The Court thus attempted to accommodate the transposition of the UNSC sanctions system within the EU legal order, by accepting the legality of the use of Community legal bases targeting states and related to the operation of the common market for the adoption of EU internal security law introducing sanctions against individuals.381 The Lisbon Treaty has addressed the gaps with regard to the legal basis for terrorist sanctions which the Court attempted to fill in Kadi I by the introduction of specific provisions in the field. Not one but two Treaty provisions are potentially applicable in this context. Article 75 TFEU, located in the Treaty part on the EU as an AFSJ, states that where necessary to achieve the objectives set out in Article 67, as regards preventing and combating terrorism and related activities, the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, must define a framework for administrative measures with regard to capital movements and payments, such as the freezing of funds, financial assets or economic gains belonging to, or owned or held by, natural or legal persons, groups or non-state entities. Article 215(2) TFEU states that where a decision adopted in accordance with Chapter 2 of Title V TEU so provides, the Council may adopt restrictive measures under the procedure referred to in paragraph 1 against natural or legal persons and groups or non-state entities. We have thus moved from the pre-Lisbon constitutional landscape, when arguably the EU Treaties did not include a legal basis for the adoption by the EU of sanctions against individuals, to a post-Lisbon proliferation of legal bases in the field. The post-Lisbon developments have thus not stopped legal basis litigation before the Court of Justice, as Articles 75 and 215(2) TFEU contain differences in the legislative procedure they set out for the adoption of sanctions, and the proliferation of legal bases leads to a lack of clarity as regards the role, scope and extent of each of these legal bases. After the entry into force of the Lisbon Treaty, the Council elected to continue the amendments to Regulation 881/2002 on the basis of Article  215(2) TFEU and not Article  75 TFEU. Article  215(2) TFEU was the legal basis for Regulation 1286/2009 of 22 December 2009 amending Regulation 881/2002.382 The validity of Article 215(2) as the legal basis for Regulation 1286/2009 was contested by the European Parliament, which sought the annulment of the measure by the Court of Justice.383 The Parliament based its plea on two main arguments relating to the aim and content of the contested Regulation and its position in the general scheme of the Treaties. With regard to the aim and content of the Regulation, the Parliament argued that the objective of the contested regulation is, as corroborated by the Court’s ruling in Kadi I, and like that of Regulation No 881/2002, ‘to combat terrorism and the financing of terrorism, which is consistent with the objectives of Article 75 TFEU’.384 ‘Given that it is not the purpose of Regulation No 881/2002 to achieve CFSP objectives, it is difficult to see how the contested 380 ibid para 230. 381 For a critical analysis, see Mitsilegas (n 373). 382 Council Regulation (EU) No 1286/2009 of 22 December 2009 amending Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban [2009] OJ L346/42. 383 Case C-130/10, European Parliament v Council, ECLI:EU:C:2012:472. 384 ibid para 14.

Legal Basis Disputes and Contested Competence  55 regulation, adopted to ensure the application of the former regulation, could do so’; according to the Parliament, ‘the Council may have recourse to Article 215 TFEU only for measures that pursue CFSP objectives, more particularly when a decision intended to achieve the objectives of that policy makes provision for such recourse’.385 The Parliament further challenged the Council’s distinction between ‘internal’ and ‘external’ terrorism, noting that ‘the only distinction that can be made in this context is between national measures to combat terrorism, and international anti-terrorism measures’ and that ‘it is not always possible to say with any certainty whether terrorist and related activities carried out within the European Union will create a threat within or without the European Union’.386 The Council on the other hand argued that ‘in the light of its objectives and its content, the contested regulation falls within the scope of the provisions of the Treaties relating to the European Union’s external action, and more specifically within the sphere of the CFSP’ and that ‘Article 215 TFEU constitutes the appropriate legal basis for that measure’.387 According to the Council: ‘The purpose of that regulation, like that of Regulation No 881/2002, is to combat international terrorism and its financing in order to maintain international peace and security’ (emphasis added).388 Moreover, it argued that the content of the contested Regulation No 1286/2009 was consistent with that objective. Articles  7a and 7c, which that Regulation inserts into Regulation No 881/2002, confirm that those Regulations directly implement the listing decisions adopted by the Sanctions Committee and establish a system of interaction between the Sanctions Committee, the EU and the individuals and entities listed.389 In the Council’s view, Regulation No 881/2002 and the contested Regulation do not in any way fall within the scope of the provisions intended to create an AFSJ within the EU.390 ‘Article 75 TFEU now provides a legal basis for adopting measures to freeze the funds of “internal” terrorists’; ‘conversely, if the threat relates primarily to one or more third States or to the international community in general, Article 215 TFEU is the appropriate legal basis’.391 The Council was supported by the Commission, which, following a different line of argument, challenged the Parliament’s claim that an act based on Article 308 EC cannot pursue a CFSP objective. According to the Commission, the Court did not in that judgment deny that Articles  60 and 301 EC were legal bases permitting the adoption of Community measures pursuing a CFSP objective. As regards Regulation No 881/2002, the Court identified a second, underlying Community objective linked to the functioning of the common market to justify the inclusion of Article 308 EC as a third legal basis. Moreover, it confirmed that the EC Treaty required recourse to that provision for the imposition of restrictive measures in respect of natural or legal persons in cases where

385 ibid para 15. 386 ibid para 16. 387 ibid para 17. 388 ibid para 18. 389 ibid para 19. 390 ibid para 20. 391 ibid para 22. ‘Furthermore, the Council, supported in substance by the Kingdom of Sweden, submits that the Parliament’s proposition fails to take account of those cases where, in the context of the fight against terrorism, the European Union seeks to adopt or impose restrictive measures other than the freezing of assets, such as a travel ban, in respect of persons or entities associated with “external” terrorism’ (para 23)

56  History, Principles and Institutions there is no link with the governing regime of a non-Member State.392 Moreover, the Commission considered that Articles 215 and 75 TFEU cannot be used jointly as legal bases for the contested regulation. It is not possible to base an act on those two articles at the same time, for they lay down different procedural and decision-making conditions. The Commission further emphasised that one of the crucial differences between Articles 215 and 75 TFEU is to be found in the need for a link to decisions in the sphere of the CFSP, taken in the interests of international peace and security, whatever the precise geographical location or the scope of the terrorist threat at issue. When restrictive measures relating to terrorism must be adopted under the TFEU following a CFSP decision further to a UNSC Resolution, Article 215 TFEU is, according to the Commission, the only possible legal basis.393 With regard to the position of the contested Regulation in the general scheme of the Treaties, the Parliament argued that ‘the general scheme and spirit of the Treaties justify the use of Article 75 TFEU as the legal basis of the contested regulation’.394 ‘The contested regulation is linked to the protection of individuals and groups’ and ‘[s]ince the entry into force of the Treaty of Lisbon, however, the European Union may adopt measures concerning fundamental rights only under the ordinary legislative procedure or with the consent of the Parliament’. According to the Parliament, this link with fundamental rights means that ‘Article 215(2) TFEU is applicable only in respect of measures that do not raise issues of fundamental rights to the same extent’.395 The contested Regulation involves ‘measures with regard to capital movements and payments, thus recognising that such measures may affect the proper functioning of the internal capital market and the provision of financial services’ which fall within Article 75 TFEU and ‘is linked to the establishment of an area of freedom, security and justice’.396 Finally, according to the Parliament, there is no link between the contested Regulation and the CFSP. Under Article 24(1) TEU, the CFSP is subject to specific rules and procedures. To give effect to those rules and procedures outside their ambit would run counter to the objectives set out in the second paragraph of Article  1 TEU and would have the effect of depriving national parliaments of the application of the protocols on their role and on the application of the principles of subsidiarity and proportionality, and of denying the Parliament the application of the ordinary legislative procedure.397 [i]t would be contrary to European Union law for it to be possible to adopt measures having a direct impact on the fundamental rights of individuals and groups, on the internal market and on the fight against crime by means of a procedure which excludes the participation of the European Parliament, when the ordinary legislative procedure applies for the adoption of measures in those areas … Recognising Article 215(2) TFEU as the correct legal basis for measures such as the contested regulation would, in practice, deprive Article  75 TFEU of much of its effectiveness. The Parliament also points out that Article 75 TFEU constitutes a more specific legal basis than Article 215 TFEU.398

392 ibid

para 26. para 27. para 28. 395 ibid para 29. 396 ibid paras 30 and 31 respectively. 397 ibid para 32. 398 ibid para 34. 393 ibid 394 ibid

Legal Basis Disputes and Contested Competence  57 The Council on the other hand submitted ‘that the arguments put forward by the European Parliament with respect to the general scheme of the Treaties do not constitute relevant criteria for determining the correct legal basis of the contested regulation’ as ‘the Parliament’s proposition amounts to a claim that procedures determine the choice of legal basis rather than the other way round’.399 According to the Council, the Parliament’s argument to the effect that the EU can adopt measures concerning respect for human rights only with the Parliament’s involvement is contradicted by Article 215(3) TFEU, which provides that: ‘The acts referred to in this Article shall include necessary provisions on legal safeguards.’400 The Council also submitted that the purpose of Article 215 TFEU was ‘to enable the Council to adopt measures which are directly applicable to economic operators’, thus helping ‘to ensure the proper functioning of the common market’.401 As regards the relationship of the contested regulation to the CFSP, ‘[the] regulation constitutes the framework within which the European Union performs its obligations under the Charter of the United Nations’ and ‘it is not unreasonable to take account of the objective of the resolutions adopted by the Security Council in determining the appropriate legal basis’.402 Lastly, the Council pointed out that the Treaty of Lisbon has not affected the distinction between the CFSP and the AFSJ. On the contrary, the importance of a line clearly delimiting those two fields was emphasised in the second paragraph of Article 40 TEU. As a consequence, if the Court were to take the view that the contested regulation pursues an objective falling under the CFSP, Article 215(2) TFEU would be the only possible legal basis for its adoption.403 The Court dismissed the action brought by the European Parliament, ruling that Article 215(2) was the correct legal basis for the contested legislation. In order to reach this conclusion, the Court proceeded on the basis of three steps: the examination of the relationship between Articles 75 and 215(2) TFEU and the pre-Lisbon legal bases of Articles  60, 301 and 308 EC; the examination of the ambit of Article  251(2); and the purpose and tenor of the contested Regulation. However, this three-step analysis was preceded by the Court’s acceptance of the Commission’s argument that even if the contested regulation does pursue several objectives at the same time or have several components indissociably linked, without one being secondary to the other, the differences in the procedures applicable under Articles  75 and 215(2) TFEU mean that it is not possible for the two provisions to be cumulated, one with the other, in order to serve as a twofold legal basis for a measure such as the contested regulation.404 The Court based this finding in its earlier case law in Titanium Dioxide,405 where it found that recourse to a dual legal basis is not possible where the procedures laid down for each legal basis are incompatible with each other.406 The Court found that the T ­ itanium Dioxide approach ‘is still valid, after the entry into force of the Treaty of Lisbon, in

399 ibid

paras 35 and 36. para 38. 401 ibid para 39. 402 ibid para 40. 403 ibid para 41. 404 ibid para 49. 405 Case C-300/89 Commission v Council (Titanium Dioxide) [1991] ECR I-2867, paras 17–21. 406 Case C-130/10, European Parliament v Council, ECLI:EU:C:2012:472, para 45. 400 ibid

58  History, Principles and Institutions the context of the ­ordinary legislative procedure’.407 In this instance, while Article 75 TFEU provides for the application of the ordinary legislative procedure, which entails qualified majority voting in the Council and the Parliament’s full participation in the procedure, Article 215(2) TFEU, for its part, entails merely informing the Parliament. In addition, recourse to Article 215(2) TFEU, unlike recourse to Article 75 TFEU, requires a previous decision in the sphere of the CFSP, namely, a decision adopted in accordance with Chapter 2 of Title V TEU, providing for the adoption of restrictive measures such as those referred to in that provision. As a general rule, the adoption of such a decision calls for unanimous voting in the Council acting alone.408 According to the Court, ‘differences of that kind are such as to render those procedures incompatible’.409 Having established that the procedures laid down under Articles  75 and 215(2) TFEU are incompatible, the Court went on to assess the relationship of these provisions in the light of their relationship with the pre-Lisbon legal bases for the Regulation which the contested Regulation sought to amend. It found that as a result of the amendments made to primary law after the Treaty of Lisbon entered into force, the content of Articles 60, relating to restrictive measures with regard to capital movements and payments, and 301 EC on the interruption or reduction, in part or completely, of economic relations with one or more third countries, is mirrored in Article 215 TFEU.410 Furthermore, Article  215(2) TFEU allows the Council to adopt restrictive measures against natural or legal persons and groups or non-state entities, namely, measures that, before the Lisbon Treaty entered into force, required Article  308 EC too to be included in their legal basis if their addressees were not linked to the governing regime of a third country.411 The ‘context and tenor’ of Article  75 TFEU differ according to the Court from those of Articles 60 and 301 EC as ‘Article 75 TFEU does not, in fact, refer to the interruption or reduction, in part or completely, of economic relations with one or more third countries’.412 However, it is difficult to see how this finding is relevant in the field of terrorist sanctions, which are targeting individuals and not third states. In its next step, the Court analysed in detail the ambit of Article 215 TFEU (and mentioned only in passing the ambit of Article 75 TFEU). It noted in particular the link between restrictive measures and the CFSP. It referred to the wording of Article 215(1) and (2), and the fact that the latter concerns the adoption by the Council of ‘restrictive measures … against natural or legal persons and groups or non-State entities’, without specifically referring to the combating of terrorism and without limiting those measures to those alone that concern capital movements and payments.413 Moreover, the Court noted that ‘Article  215(2) TFEU, unlike Article  75 TFEU, provides … that it may not be used until a decision under the CFSP has provided for the adoption of restrictive measures against natural or legal persons, groups or non-State entities’, while ‘Article 75 TFEU states that it may be used where necessary to achieve the objectives set out in Article  67 TFEU, that is to say, in connection with creating

407 ibid

para 46. para 47. para 48. 410 ibid paras 51 and 52. 411 ibid para 53. 412 ibid para 54. 413 ibid para 57. 408 ibid 409 ibid

Legal Basis Disputes and Contested Competence  59 an area of freedom, security and justice’.414 Referring to Kadi I, which established a bridge between the Community legal bases of Articles 60 and 301 and external relations including the CFSP, the Court noted that post-Lisbon, ‘Article 215 TFEU expressly provides such a bridge, but this is not the case with Article 75 TFEU, which creates no link with decisions taken under the CFSP’.415 It found that as regards combating terrorism and its funding, ‘there is nothing in Article 215 TFEU to indicate that measures designed to combat them, taken against natural or legal persons, groups or non-State entities, could not constitute restrictive measures provided for in subparagraph 2 of that article’.416 It noted that while admittedly the combating of terrorism and its financing may well be among the objectives of the area of freedom, security and justice, as they appear in Article 3(2) TEU, ‘the objective of combating international terrorism and its financing in order to preserve international peace and security corresponds, nevertheless, to the objectives of the Treaty provisions on external action by the Union’ (emphasis added).417 The Court mentioned in this context the references to the preservation of peace and international security in Article  21(2)(c) TEU, the broad reference to ‘the Union’s security’ in the CFSP provision of Article 24(1) TFEU,418 and the wording of Article 43(1) TFEU, according to which the CFSP may contribute to the fight against terrorism.419 On the basis of this very broad conceptualisation of security, the emphasis on international peace and security, and the establishment of a general link between security and EU foreign and defence policy, the Court asserted that given that terrorism constitutes a threat to peace and international security, the object of actions undertaken by the EU within the sphere of the CFSP, and the measures taken in order to give effect to that policy in the EU’s external actions – in particular, restrictive measures for the purpose of Article 215(2) TFEU – can be to combat terrorism.420 As regards the purpose and tenor of the contested Regulation, the Court stated, again quoting Kadi I, that ‘the essential purpose and object’ of the latter ‘is to combat international ­terrorism’ (­emphasis added).421 ‘In the light of its objectives and of its content, the contested regulation relates to a decision taken by the Union under the CFSP.’422 The Parliament’s argument that it is impossible to distinguish the combating of ‘internal’ terrorism, on the one hand, from the combating of ‘external’ terrorism, on the other, does not appear capable of calling into question the choice of Article 215(2) TFEU as a legal basis of the contested Regulation.423 Article 215(2) TFEU provides a sufficient legal basis for adopting, in response to a decision taken under the CFSP, restrictive measures taken in order to apply that policy to natural or legal persons, groups or non-state entities involved in acts of terrorism.424 In the present case the contested regulation amends Regulation No 881/2002 which ‘constitutes one of the instruments by which the European Union

414 ibid

para 58. para 59. para 60. 417 ibid para 61. 418 ibid para 62. 419 ibid para 64. 420 ibid para 63. 421 ibid para 68. 422 ibid para 72. 423 ibid para 74. 424 ibid para 75. 415 ibid 416 ibid

60  History, Principles and Institutions put into effect an action decided upon within the UNSC and intended to preserve international peace and security’.425 The Parliament has not called into question whether it was possible for that Common Position, having enabled adoption of Regulation No 881/2002 in accordance with Articles 60 and 301 EC, to be validly based on Title V TEU as it stood before the Lisbon Treaty, that is to say, the title of that treaty concerning the CFSP.426 Having regard to those factors, it suffices to note that Article 215(2) TFEU constitutes the appropriate legal basis for measures, such as those at issue in the present case, directed to addressees implicated in acts of terrorism who, having regard to their activities globally and to the international dimension of the threat they pose, affect fundamentally the EU’s external activity.427 The Court further considered the consequences of this finding for the Parliament’s prerogatives. It accepted the Council’s assertion that ‘it is not procedures that define the legal basis of a measure but the legal basis of a measure that determines the procedures to be followed in adopting that measure’.428 It accepted that ‘participation by the Parliament in the legislative process is the reflection, at Union level, of the fundamental democratic principle that the people should participate in the exercise of power through the intermediary of a representative assembly’,429 but stated that the difference between Articles 75 and 215 TFEU, so far as the Parliament’s involvement is concerned, is the result of the choice made by the framers of the Lisbon Treaty conferring a more limited role on the Parliament with regard to the EU’s action under the CFSP.430 The Court added that in relation to the Parliament’s argument, it would be contrary to EU law for it to be possible for measures to be adopted that impinge directly on the fundamental rights of individuals and groups by means of a procedure excluding the Parliament’s participation. The duty to respect fundamental rights is imposed, in accordance with Article 51(1) of the Charter of Fundamental Rights, on all the institutions and bodies of the EU. In addition, under both Articles 75 and Article 215(3) TFEU, the acts referred to in those articles are to include necessary provisions on legal safeguards.431 The Court added that the Parliament’s argument ‘that such a measure may be adopted only on the basis of Article 75 TFEU, would … render Article 215(2) largely redundant, whereas the duty to respect fundamental rights bears also on Union measures giving effect to resolutions of the Security Council’.432 The attempt by the Court of Justice to justify the legality of Article  215(2) TFEU with regard to the adoption of terrorist sanctions by the EU implementing UNSC Resolution 1267 – at the expense of the AFSJ legal basis of Article 75 TFEU – is premised on a number of contradictions. The Court accepted the Council’s statement that it is not procedures that define the legal basis of a measure, but the legal basis of a measure that determines the procedures to be followed in adopting that measure, yet its reasoning on the preference of Article 215(2) TFEU over Article 75 TFEU is based essentially

425 ibid

para 76. para 77. 427 ibid para 78. 428 ibid para 80. 429 ibid para 81. 430 ibid para 82. 431 ibid para 83. 432 ibid para 84. 426 ibid

Legal Basis Disputes and Contested Competence  61 on procedural arguments. In the first place, the Court chose to exclude the possibility of Articles 75 and 215(2) acting as joint legal bases for the contested Regulation by ruling that these legal bases are incompatible with each other. This declaration of incompatibility was by no means a one-way street for the Court, which in earlier case law accepted the adoption of a dual legal basis consisting of Treaty provisions which prescribed different legislative procedures. In these cases, procedural differences were reconciled, with the Court opting for the adoption of the procedure which respects the Parliament’s prerogatives more fully.433 The Court could have certainly followed this reasoning in the present case, where the content and objective of the two legal bases were very similar. Second, the Court’s emphasis on procedure is evident in its attempt to justify the legality of Article 215(2) on the basis of the existence of a bridge between terrorist sanctions and the CFSP. In order to establish this bridge, the Court adopted a historical approach aiming to interpret the relationship between the post-Lisbon legal bases on terrorist sanctions in the light of the articulation of the relationship between the pre-Lisbon legal bases for the Regulation that the contested measure seeks to amend, as put forward by the Court of Justice in Kadi I. Yet this approach disregards the fundamental procedural and constitutional differences between the pre- and the post-Lisbon legal bases for terrorist sanctions. Pre-Lisbon, the Treaties did not include an express legal basis allowing the EC or the EU to adopt sanctions against individuals. In Kadi I, the Court of Justice went out of its way to find a way to uphold the legality of EU action in the field by establishing a bridge between the first pillar legal bases and the CFSP.434 Yet the situation is radically different after the entry into force of the Lisbon Treaty. The EU legislator in Lisbon attempted to address the legality gaps in the pre-Lisbon constitutional framework by including express legal bases for the adoption of terrorist sanctions against individuals, including Article  75 TFEU. To establish a continuum between the preLisbon and the post-Lisbon legal bases is to disregard the new legal situation brought about by the Lisbon Treaty. In establishing the constitutional link between Articles 75 and 215(2) TFEU, the pre-Lisbon constitutional arrangements should not be decisive. The Court’s approach has profound implications for the conceptualisation of security in EU law, the relationship between internal and external security in the context of counter-terrorism law, as well as the configuration of the relationship between CFSP and other areas of EU law and policy after Lisbon. The Court rightly did not attach weight to the artificial distinction made by the Council between ‘internal’ and ‘external’ terrorists. Yet at the same time, the Court seemed to treat the imposition of terrorist sanctions on individuals under EU law as a matter of ‘international terrorism’, which was justified in order to achieve the professed CFSP objectives of maintaining peace and security. The reference to international peace and security echoes UN law, and a system which was initially designed to govern inter-state relations. Moreover, references to international terrorism and international peace and security disregard the internal security dimension of counter-terrorism law as well as the impact of these measures on

433 G de Baere, ‘From “Don’t Mention the Titanium Dioxide Judgment” to “I Mentioned it Once, But I Think I Got Away with it All Right”: Reflections on the Choice of Legal Basis in EU External Relations after the Legal Basis for Restrictive Measures Judgment’ (2013) 15 Cambridge Yearbook of European Legal Studies 537, 541–42. 434 Mitsilegas (n 373).

62  History, Principles and Institutions the fundamental rights of affected individuals. By giving security such a broad meaning in order to be able to justify the legality of an external relations legal basis, and at the same time finding that the use of this legal basis is incompatible with the use of an AFSJ legal basis for measures imposing terrorist sanctions, the Court radically reconfigured the relationship between the CFSP and other areas of EU law and policy.435 Post-Lisbon, Article 40 TEU436 has been seen as abolishing the pre-Lisbon hierarchy whereby CFSP should not affect EC policies by establishing an equal relationship between the CFSP and other fields of EU law and policy.437 Yet the Court’s ruling in the terrorist sanctions legal basis case effectively grants primacy to the CFSP over other policies, including the AFSJ. Any aspect which may fall under the very broad scope of security for the purposes of the CFSP would potentially negate the application of other legal bases located elsewhere in the Treaties. In this manner, EU policies relating to security (including internal security and AFSJ policies) are effectively subordinated to CFSP objectives.438 There is very little room for ‘internal security’ in a landscape where a large part of counterterrorism law can be seen as related to external security. In the case in question, the Court’s ruling has led to the paradox whereby terrorist sanctions – which are clearly related to internal security – were adopted pre-Lisbon under first pillar legal bases, whereas post-Lisbon, in an era where the old third pillar has collapsed and the AFSJ part of the Treaty contains a specific legal basis on terrorist sanctions, measures on such sanctions are adopted exclusively under an external relations legal basis. The key issue which the Court’s ruling fails to take into account is the content of the contested Regulation and the impact of its provisions on the affected individuals. As confirmed by the Court of Justice in its case law, including the Kadi litigation, terrorist sanctions have profound consequences for the daily lives and fundamental rights of affected individuals. The implementation of the UN sanctions regime by the EU reflects a change of paradigm, in that international law (and EU sanctions law) targets not states, but individuals. The impact of terrorist sanctions on fundamental rights clearly places them within the ambit of the part of the TFEU on the AFSJ, which focuses on law enforcement, contains a specific provision on terrorist sanctions, and whose title and provisions confirm the focus on developing policies on security and justice while respecting free

435 On the broad concept of security, see P Eeckhout, EU External Relations Law, 2nd edn (Oxford University Press, 2011) 181–83. 436 Article 40 reads as follows: ‘The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3 to 6 of the Treaty on the Functioning of the European Union. Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this Chapter.’ 437 On different views on the relationship between the CFSP and other areas of EU policy post-Lisbon, see Eeckhout (n 435); P van Elsuwege, ‘The Adoption of “Targeted Sanctions” and the Potential for Interinstitutional Litigation after Lisbon’ (2011) 7 Journal of Contemporary European Research 488, 494, arguing for a non-hierarchical relationship. 438 E Neframi, ‘L’aspect externe de l’espace de liberté, de sécurité et de justice: quel respect des principes et objectifs de l’action extérieure de l’Union?’ in C Flaesch-Mougin and LS Rossi, La Dimension Extérieure de l’Espace de Liberté, de Sécurité et de Justice de l’Union Européenne après le Traité de Lisbonne (Bruylant, 2013) 509–32. Neframi argues that counter-terrorism measures fall under the external aspect of the AFSJ only to the extent that they do not relate to the CFSP (at 524).

Legal Basis Disputes and Contested Competence  63 movement and fundamental rights. The impact of terrorist sanctions imposed by EU law on fundamental rights not only justifies their treatment as an internal security measure falling within the AFSJ, but also necessitates a high intensity of scrutiny by the European Parliament. In its ruling, the Court seems to accept that fundamental rights will be observed anyway, especially post-adoption (by referring to the Kadi litigation). Yet this is not a convincing argument to exclude the European Parliament (which is a co-legislator post-Lisbon in the vast majority of EU internal security law) from having a decisive say on the content of EU measures which have a far-reaching impact on the daily lives and human rights of individuals affected by EU law. The Court’s willingness to prioritise the CFSP at the expense of AFSJ objectives in the context of security is confirmed in two rulings concerning piracy.439 In the first case, the European Parliament sought the annulment of Council Decision 2011/640/ CFSP of 12 July 2011 on the signing and conclusion of the Agreement between the EU and the Republic of Mauritius on the conditions of transfer of suspected pirates and associated seized property from the EU-led naval force to the Republic of Mauritius and on the holding conditions of suspected pirates after transfer.440 The Parliament alleged infringement of Articles 218(6) and 218(10) TFEU. With regard to Article 218(6), the Parliament argued that the Council was wrong to consider that the contested decision concerned an agreement relating exclusively to the CFSP within the meaning of the first part of the second subparagraph of Article 218(6) TFEU.441 Article 218(6) TFEU envisages the involvement of the European Parliament in the adoption of such decisions via consent442 or consultation443 ‘except where agreements relate exclusively to the CFSP’. The Council treated the contested Decision as involving an agreement relating exclusively to the CFSP. This is notwithstanding the fact that the agreement contains a number of provisions on judicial and police cooperation,444 and its stated aims include the transfer of persons suspected of attempting to commit, committing or having committed acts of piracy and the treatment of transferred persons.445 The Joint Action to which the contested Decision and subsequent agreement constitute a follow-up,446 and which calls for the conduct of an EU military operation (‘Operation Atalanta’) in support of UNSC Resolutions 1814(2008), 1816(2008) and 1838 (2008), includes in its mandate the arrest, detention and transfer of persons suspected of intending to commit acts of piracy or armed robbery,447 and includes a specific provision on the transfer of persons arrested and detained with a view to their prosecution.448 In spite of the inclusion of specific 439 Case C-658/11, European Parliament v Council, ECLI:EU:C:2014:2025; Case C-263/14, European Parliament v Council, ECLI:EU:C:2016:435 440 [2011] OJ L254/1. 441 Czech Republic v European Parliament and Council (n 337) para 23. 442 Article 218(6)(a), including cases involving agreements covering fields to which the ordinary legislative procedure applies (art 218((6)(a)(v)). 443 Article 218(6)(b). 444 See in particular arts 3–6 of the Agreement. 445 Article 1(a) and (c). 446 Council Joint Action 2008/851/CFSP of 10 November 2008 on a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast ([2008] OJ L3010/33) as amended by Council Decision 2010/766/CFSP of 7 December 2010 [2010] OJ L327/49. 447 Article 2(e). 448 Article 12.

64  History, Principles and Institutions provisions dealing with judicial cooperation in criminal matters in both the agreement and its underlying Joint Action, the Court of Justice did not accept the Parliament’s argument that the contested decision and agreement do not pursue exclusively CFSP objectives.449 In order to reach this conclusion, the Court once again employed criteria of form rather than substance, focusing on procedure rather than content. According to the Court, Article 218(6) TFEU reflects a symmetry between EU internal and external action, with the substantive legal basis of a measure determining the procedures to be followed in adopting that measure:450 ‘in the context of the procedure for concluding an international agreement in accordance with Article 218 TFEU, it must be held that it is the substantive legal basis of the decision concluding the agreement which determines the type of procedure applicable under paragraph 6 of that provision’.451 The Court’s reasoning means that in practice, the unilateral decision by the EU legislator (on this occasion the Council) to label a decision concluding an international agreement as a CFSP Decision suffices to exclude the European Parliament from any involvement in the adoption of the decision, even in cases where the agreement following the adoption of the decision in question clearly includes elements related to non-CFSP EU policies, including judicial cooperation in criminal matters. This reasoning is even more noteworthy bearing in mind that the Parliament here did not challenge the legality of the use of the CFSP as a legal basis, but merely argued – correctly – that the contested Decision did not relate exclusively to the CFSP. The Court attempted to compensate for the exclusion of the Parliament from the procedure regarding the adoption of the contested decision by affirming its right to be informed immediately and fully under Article 218(10) TFEU. According to the Court, the procedural rule laid down in Article  218(10) ‘constitutes an essential procedural requirement within the meaning of the second paragraph of Article 263 TFEU and its infringement leads to the nullity of the measure thereby vitiated’.452 ‘That rule is the expression of the democratic principles on which the European Union is founded’453 and the Lisbon Treaty has enhanced its importance in the treaty system ‘by inserting it as a separate provision that is applicable to all types of procedures envisaged in Article 218 TFEU’.454 According to the Court, it cannot be inferred that despite its exclusion from the procedure for negotiating and concluding an agreement relating exclusively to the CFSP, the Parliament has no right of scrutiny in respect of that EU policy.455 On the contrary, it is precisely for that purpose that the information requirement laid down in Article 218(10) TFEU applies to any procedure for concluding an international agreement including agreements relating exclusively to the CFSP.456 If the Parliament is not immediately and fully informed at all stages of the procedure in accordance with Article 218(10) TFEU, including that preceding the conclusion of the agreement, it is not in a position to exercise the right of scrutiny which the Treaties have conferred on

449 Case

C-658/11, European Parliament v Council (n 439) para 47. para 57. 451 ibid para 58. 452 ibid para 80. 453 ibid para 81. 454 ibid para 82. 455 ibid para 84. 456 ibid para 85. 450 ibid

Legal Basis Disputes and Contested Competence  65 it in relation to the CFSP or, where appropriate, to make known its views as regards, in particular, the correct legal basis for the act concerned. The infringement of that information requirement impinges, in those circumstances, on the Parliament’s performance of its duties in relation to the CFSP and therefore constitutes an infringement of an essential procedural requirement.457 The same approach was taken in the second case where the European Parliament sought to annul Council Decision 2014/198/CFSP of 10 March 2014 on the signature and conclusion of an almost identical Agreement between the EU and the United Republic of Tanzania on the conditions of transfer of suspected pirates and associated seized property from the EU-led naval force to Tanzania. The Parliament had lodged that action for annulment before the delivery of the judgment in the case of the EU–Mauritius Agreement, putting forward the same pleas of law: that the decision in question ought not to have been adopted in accordance with the specific procedure for agreements relating exclusively to the CFSP prescribed in Article  218(6) TFEU, which excludes any participation of the European Parliament; and that the Council had failed to keep it immediately and fully informed at all stages in the negotiation and conclusion of the Agreement, as mandated by Article 218(1) TFEU. As in the case of the EU–Mauritius Agreement, the Parliament submitted that the Agreement served two objectives, with the secondary aim being the transfer of persons suspected of criminal activities, who are under the jurisdiction of the Member States and are on EU territory, to the judicial and police authorities of a third state in order to enable them to exercise their powers to investigate and prosecute in relation to those suspects.458 In its defence, the Council stressed the strong similarity between the two Agreements459 and further noted that the detention and transfer of suspected pirates was ‘no more than a mere consequence of Operation Atalanta’s security mission’.460 The Parliament understood the Court’s decision in Case C-658/11 as not having given a ruling on whether the contested Decision in that case should have been founded solely on the legal basis of Article 37 TFEU or whether, in addition, it should have been based on other Treaty provisions. While conceding that the elimination of piracy with the objective of protecting vessels was ‘undeniably’ the main objective of Operation Atalanta, it took the view that all the activities which follow on from that operation do not automatically fall within the scope of the CFSP.461 In response to the Parliament’s arguments, the Council took the view that the measures concerning the AFSJ, whether of an internal nature or having an external dimension, must be adopted with the objective of promoting freedom, security and justice within the EU or at its borders, and when transferring suspects pirates to Tanzania, no Member State exercises its jurisdiction.462 The Court retained its approach and found in favour of the Council. However, this time it was more prepared to engage with the aim and content of the Agreement in question. While recognising that the some of the obligations laid down in the EU–Tanzania



457 ibid

para 86. para 28. 459 ibid para 34. 460 ibid para 36. 461 ibid para 38. 462 ibid para 40. 458 ibid

66  History, Principles and Institutions Agreement appear, at first sight, to relate to the field of cross-border judicial cooperation in criminal matters and police cooperation, in line with the Advocate General’s view, it opined that an affinity with rules that may be adopted within an EU police area is not in itself sufficient to determine the appropriate legal basis.463 As regards the aim of the Agreement, the Court made a direct link to Operation Atalanta to stress that it is designed to establish a mechanism that is an essential element in the effective realisation of its objectives, particularly international cooperation regarding the prevention of acts of piracy and in general to preserve international peace and security.464 ­Therefore, the Agreement is merely ancillary to the European Union Naval Force Somalia (EU NAVFOR) action and would be rendered devoid of purpose as soon as that force ceases its activities.465 The Court considered it to be of no relevance that Member States themselves would be in a position to ensure that criminal proceedings were brought against the persons taken into custody.466 It further dismissed the argument that the actions undertaken by the naval force can be treated as equivalent to actions of the judicial or police authorities, since those actions take place exclusively within the framework of a specific operation falling within the scope of the CFSP, to which the performance of these are inseparably linked.467 The Court has attempted to address this democratic deficit not via the route of legality, but via the route of transparency by providing precise and strict guidelines as to the Council’s obligations of information. In particular, the Court first explained that the obligation to inform the Parliament is incumbent on the Council, since Article 218(2) TFEU prescribes that it is for the Council to authorise the opening of negotiations, to adopt negotiating directives and to authorise the signing and conclusion of the agreements.468 Second, it was submitted that this obligation does not merely arise at the beginning of the negotiations, but ‘extends to the stages that precede the conclusion of such an agreement, and therefore covers, in particular, the negotiation phase’.469 Third, the scope of the information obligation involves a series of components in the negotiating process: the authorisation to open negotiations, the definition of the negotiating directives, the nomination of the EU negotiator and, in some cases, the designation of a special committee, the completion of negotiations, the authorisation to sign the agreement, where necessary, the decision on the provisional application of the agreement before its entry into force and the conclusion of the agreement.470 Importantly, the Court cautiously underlined that whilst the information requirement does not extend to stages that are part of the internal preparatory process within the Council, it nonetheless ‘extends also to the intermediate results reached by the negotiations’.471 As such, ‘the Council should communicate the text of the draft agreement and the text

463 ibid

para 47. paras 49–51; see also para 54. 465 ibid para 51. 466 ibid para 52. 467 ibid para 53. 468 ibid para 73. 469 ibid para 75. 470 ibid para 76. 471 ibid para 77. 464 ibid

Sovereignty Concerns and the Persistence of National Diversity   67 of the draft decision approved by the Council’s Foreign Relations Counsellors who are responsible for the negotiations, when the text of those drafts was communicated to the Tanzanian authorities with a view to the conclusion of the agreement’.472 Fourth, the fact that agreement displaying similar characteristics existed and thus the Parliament could exercise scrutiny was of relevance.473 Fifth, the Court reiterated that publication in the Official Journal of the EU is not capable of remedying an infringement of Article 280(1) TFEU.474 Last, as regards the extent to which provision of information was late, because the Parliament was informed of the adoption of the contested Decision nine days later and not ‘immediately’ as mandated by Article  218(10) TFEU, the Court was more sympathetic, stating that in some circumstances, information delivered to the Parliament after a period of a few days may be regarded as ‘immediate’. However, the Council had failed to transmit both that Decision and the Agreement altogether. The analysis of the aforementioned rulings demonstrates that while the Court is not ready to grant to the European Parliament a full legislative scrutiny role in cases of measures involving the CFSP and other EU policies, it accepts that the Parliament should be fully and immediately informed in negotiations of international agreements under Article  218, even if the latter relate exclusively to the CFSP. The information requirement entails a precise and detailed scope from which the Council can no longer deviate. In this manner, the Court has, as will be seen below, to some extent prioritised transparency as a rule of law safeguard for internal security.

VIII.  Sovereignty Concerns and the Persistence of National Diversity A key concern of Member States following the entry into force of the Lisbon Treaty has been the perceived adverse impact that the ‘communautarisation’ of EU criminal law would have on state sovereignty and the diversity of their domestic criminal justice systems. In order to address these concerns, the Lisbon Treaty introduced a number of mechanisms aiming to safeguard sovereignty national legal diversity in the field of criminal justice. These mechanisms reflect what I have called resistance to the ‘communautarisation’ of EU criminal law475 and have resulted in the shadow of the third pillar ‘looming large’ post-Lisbon.476 This section will focus on four key mechanisms aimed at safeguarding the role of the state in shaping EU criminal law and addressing sovereignty and national diversity concerns: provisions on the form and legal effect of EU criminal law; provisions on strategy and initiative; provisions on subsidiarity; and provisions on variable geometry and enhanced cooperation.

472 ibid. 473 ibid para 78. 474 ibid paras 79–80. 475 V Mitsilegas, ‘European Criminal Law and Resistance to Communautarisation Post-Lisbon’ (2010) 1 New Journal of European Criminal Law 458. 476 J Monar, ‘The Institutional Framework of the AFSJ: Specific Challenges and Dynamics for Change’ in J Monar (ed), The Institutional Dimension of the European Union’s Area of Freedom, Security and Justice (Peter Lang, 2010) 21–52, at 47.

68  History, Principles and Institutions

A.  National Diversity, Directives and the Emergency Brake In terms of the first mechanism outlined above, respect for national diversity occupies a central place from the very outset in Title V TFEU on the AFSJ. Its opening provision, Article 67(1), states that the EU will constitute an AFSJ ‘with respect for fundamental rights and the different legal systems and traditions of Member States’. The emphasis on maintaining the diversity of national legal systems is further reflected in a number of choices made in the Treaty with regard to the method of law-making in EU criminal law. The Lisbon Treaty places great emphasis on mutual recognition as a method of European integration in criminal matters, and, as will be seen further in this chapter, extends EU competence in criminal procedure only by subordinating harmonisation in the field to mutual recognition – this choice is significant, as mutual recognition does not in principle involve the adoption of harmonised EU standards and is perceived, at least prima facie, by governments as less threatening to state sovereignty, as they will not have to change their law.477 The need to respect national diversity is also reflected in the choice of the form of EU legislative action concerning the harmonisation of substantive criminal law and criminal procedure: in both cases, harmonisation will take place by means of Directives.478 This choice is significant as Directives leave Member States with a considerable margin of manoeuvre as to how to implement EU law, being binding as to the result to be achieved, but leaving the choice of form and methods to the national authorities.479 This discretion left to Member States may serve to take into account the particularities of their domestic criminal justice systems when called on to implement EU measures on matters such as rules on the admissibility of evidence or the rights of the defendant in criminal proceedings.480 It is clear that Member States opted for such discretion rather than for top-down uniform standards across the EU. Concerns with regard to the respect of national diversity and the challenges to state sovereignty posed by the introduction of supranational decision-making in EU criminal law have been articulated perhaps most clearly in the introduction of provisions establishing a so-called ‘emergency brake’ on the adoption of Directives in the fields of criminal procedure and substantive criminal law. Under the ‘emergency brake’ procedure, where a Member State considers that a draft Directive in the field ‘would affect fundamental aspects of its criminal justice system’, it may request that the draft directive be referred to the European Council – leading to the suspension of the ordinary legislative procedure. After discussions in the European Council, in the event of consensus, within four months of this suspension, the proposal is sent back to the Council of Ministers for the resumption of negotiations. In the event of disagreement, within the same timeframe, authorisation for Member States who wish to proceed with the proposal under enhanced cooperation referred to in Articles  20(2) TEU and 329(1) TFEU is deemed to be granted.481 In this manner, reluctant Member States which may be in the

477 I have developed this point further in V Mitsilegas, ‘The Constitutional Implications of Mutual Recognition in Criminal Matters in the EU’ (2006) 43 CML Rev 1277. 478 Articles 82(2), 83(1) and (2) TFEU respectively. 479 ibid art 288(3). 480 For the legal bases for such measures, see art 82(2)(a) and (b) TFEU respectively. 481 Article 82(3) TFEU on criminal procedure and art 83(3) TFEU on substantive criminal law.

Sovereignty Concerns and the Persistence of National Diversity   69 minority may ensure that they do not take part in the measure, while allowing those in favour of the measure to proceed with its adoption.482 As witnessed by the inclusion of the European Council in the legislative process, the emergency brake is a primarily political mechanism of dispute resolution which places national governments centre stage in terms of law-making at the EU level.483 It has not been used widely thus far, but its existence remains important for national authorities.484 The European Council here assumes the role of a mediator in cases where Member States express concerns over the development of EU criminal law and press the emergency brake. A similar procedure is envisaged in the event of disagreement on legislation establishing a European Public Prosecutor, and legislation establishing operational cooperation between national law enforcement authorities (although in both cases, unanimity is in principle required in the Council).485

B.  The European Council: Initiative and Strategy In terms of maintaining national influence at an institutional level by controlling the initiative on future strategic priorities, an important institutional development in the Lisbon Treaty is the express recognition of the European Council as one of the EU institutions.486 According to the Treaty, the European Council – the most intergovernmental of the EU institutions – will provide the EU with the necessary impetus for its development and will define the general political directions and priorities thereof, but will not exercise legislative functions.487 This is an example of what has been characterised as the ‘high politics’ nature of the European Council decisions.488 This role of the European Council is further confirmed in the specific context of EU Justice and Home Affairs, with Title V TFEU stating that the European Council will define ‘the strategic guidelines for legislative and operational planning within the area of freedom, security and justice’.489 It is thus the leaders of Member States who will continue to set out, post-Lisbon (as in the cases of Tampere Conclusions, The Hague Programme and most recently the Stockholm Programme), the general guidelines for the development of EU Justice and Home Affairs law.

482 For an analysis of several aspects of the emergency brake mechanism, see J Öberg, ‘Exit, Voice and Consensus: A Legal and Political Analysis of the Emergency Brake in EU Criminal Policy’ (2021) 46 European Law Review 506. 483 For a discussion of the ‘emergency brake’ provisions, see House of Lords European Union Committee, The Treaty of Lisbon: An Impact Assessment, 10th Report, session 2007–08, HL Papers 62-I and 62-II, paras 6.44–6.66. 484 See the Lisbon judgment of the German Constitutional Court in ch 2. 485 Articles 86(1) and 87(3) TFEU respectively. 486 See art 13(1) TEU. Under Lisbon, the European Council will consist of the Heads of State or Government of the Member States, together with its President and the President of the Commission, with the High Representative of the Union for Foreign Affairs and Security Policy also taking part in its work (art 15(2) TEU). 487 ibid art 15(1). However, note that the Treaty does not preclude acts of the European Council from having effects on third parties and thus establishing ECJ jurisdiction; see art 263(1) TFEU. On the role and procedures of the European Council, see art 15 TEU and arts 235 and 236 TFEU. 488 See M Dougan, ‘The Treaty of Lisbon 2007: Winning Minds, Not Hearts’ (2008) 45 CML Rev 627. 489 Article 68 TFEU.

70  History, Principles and Institutions This emphasis on the role of the European Council in drawing up the strategy for the EU action in the AFSJ creates inevitable tensions in the general framework of supranationalisation of EU criminal law post-Lisbon. The prominent role of the European Council seems potentially at odds with the central role of the Commission as a generator of initiative and policy. These tensions between Member States and the Commission became public in the context of the implementation of the Stockholm Programme and the publication of the Commission’s Action Plan to that effect. Member States took the striking step of criticising the Commission’s priorities, with the June 2010 Justice and Home Affairs Council emphasising ‘strongly that the Stockholm Programme is the only guiding frame of reference for the political and operational agenda of the European Union in the Area of Freedom, Security and Justice’, noting that ‘some of the actions proposed by the Commission are not in line with the Stockholm Programme and that others, being included in the Stockholm Programme, are not reflected in the Communication of the Commission’, urging the Commission ‘to take only those initiatives that are in full conformity with the Stockholm Programme in order to ensure its complete and timely implementation’ and finally calling on ‘all parties concerned to ensure due implementation of all necessary measures and actions stemming from the Stockholm Programme, including those not present in the above Commission proposal’.490 These are far-reaching conclusions, aiming to assert the exclusivity of the Member States’ strategic initiative in the AFSJ, and to push through the totality of Member States’ priorities under Stockholm, disregarding the Commission’s views. Competition as to who has the final say, rather than cooperation, sits uneasily with the principle of mutual sincere cooperation between the EU institutions.491 In its post-Stockholm follow-up, the European Council has again departed from the positions of the other institutions492 and has demonstrated a marked lack of ambition with regard to the adoption of new EU legislation in the field of criminal law and a strong emphasis on consolidation and implementation.493 More than a decade since the entry into force of the Lisbon Treaty, we have seen the end of the format of the five-year strategy plans like The Hague and the Stockholm Programmes. On the other hand, we have seen the Commission focusing on specific priorities, not over-legislating (for some under-legislating) and also focusing on sectoral initiatives such as the development of a ‘Security Union’.494 The initiative remains with Member States not only at the stage of the initiation of policy and strategy, but also at the stage of the initiation of legislation: individual Member States (and not the European Council as such) retain the right of initiative

490 Council conclusions on the Commission Communication, ‘Delivering an area of freedom, security and justice for Europe’s citizens – Action Plan Implementing the Stockholm Programme’, 3018th Justice and Home Affairs Council meeting, Luxembourg, 3 June 2010, points 1, 3, 4 and 6 respectively. 491 Article 13(2) TEU. 492 On the Commission’s views, see Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘An open and secure Europe: making it happen’ COM (2014) 154 final, Brussels, 11 March 2014; European Parliament, Motion for a Resolution on the mid-term review of the Stockholm Programme, 2013/2024 (INI), 4 March 2014. 493 European Council Conclusions, 26–27 June 2014, Brussels, EUCO 79/14, para 3. 494 For details, see V Mitsilegas and S Carrera (eds), Constitutionalising the Security Union: Effectiveness, Rule of Law and Rights in Countering Terrorism and Crime (Centre for European Policy Studies, 2017).

Sovereignty Concerns and the Persistence of National Diversity   71 after Lisbon, sharing the right with the Commission – proposals for EU legislation on police cooperation and judicial cooperation in criminal matters can be tabled either by the Commission or on the initiative of a quarter of Member States.495 In this manner, Member States retain some control of the legislative agenda. Pre-Lisbon, Member States – at times involved in consecutive EU presidencies/troikas – have used the right of initiative to table proposals on matters perceived as quite close to state sovereignty and thus rather ‘intergovernmental’ – examples in this context include a series of Member States’ sole or joint initiatives promoting mutual recognition in criminal matters,496 as well as initiatives that can be seen at times as a pre-emptive response to more integrationist proposals due by the Commission.497 These tendencies continued to some extent in the early days after the entry into force of the Lisbon Treaty. Key examples are the Directives on the European Protection Order498 and on the European Investigation Order,499 which were adopted as Member State initiatives. The rationale behind Member State intervention has been different in these two cases: in the European Investigation Order, Member States clearly wanted to control the agenda, while the European Protection Order was an instrument which was essentially promoted by a Member State (Spain) and not by the Commission. Another example of a showdown between the Commission and Member States is the adoption of the first EU instrument on defence rights, namely the Directive on the right to translation and interpretation in criminal proceedings, with Member States tabling a draft Directive in the field shortly after the entry into force of the Treaty (as early as 11 December 2009).500 The Commission’s response was to propose its own initiative for a Directive on the right to interpretation and translation in criminal proceedings, tabled in March 2010.501 The Commission’s proposal can be seen as an attempt to defend its own right of initiative in the field after Lisbon. The Directive on the right to interpretation and translation was eventually deemed to be agreed as a Member State initiative,502 but the subsequently adopted measures on procedural rights have been adopted as Commission initiatives, with the decision-making process in the field being now fully normalised.

495 Article 76 TFEU. 496 See n 77 above. 497 The example of the evolution of Eurojust is characteristic in this context; see V Mitsilegas, ‘The Third Wave of Third Pillar Law: Which Direction for EU Criminal Justice?’ (2009) 34 European Law Review 523. 498 Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters [2004] OJ L130/1, 1 May, was an initiative of the Kingdom of Belgium, the Republic of Bulgaria, the Republic of Estonia, the Kingdom of Spain, the Republic of Austria, the Republic of Slovenia and the Kingdom of Sweden. 499 Directive 2011/99/EU of the European Parliament and of the Council of 13 December 2011 on the European protection order [2011] OJ L338/2, 21 December, was an initiative of the Kingdom of Belgium, the Republic of Bulgaria, the Republic of Estonia, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Hungary, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Finland and the Kingdom of Sweden. 500 Initiative for a Directive on the rights to interpretation and translation in criminal proceedings, tabled by Belgium, Germany, Estonia, Spain, France, Italy, Luxembourg, Hungary, Austria, Portugal, Romania, Finland and Sweden, Council Doc 16801/09, Brussels, 11 December 2009. 501 COM (2010) 82 final, Brussels, 9 March. 502 Preamble, recital 2.

72  History, Principles and Institutions

C.  Subsidiarity and its Limits A central theme in the discussions on the reform of the EU constitutional framework, including the negotiations on the Lisbon Treaty, has been the issue of ‘bringing Europe closer to its citizens’ – with the principle of subsidiarity, used to best allocate the level of desired action in Europe, playing a central part in this context.503 The principle of subsidiarity has been enshrined post-Lisbon in Article 5 TEU, which states that in areas which do not fall within its exclusive competence, the EU must act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at a central level or at a regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at the EU level. In the field of criminal law, respect for the principle of subsidiarity and its monitoring can be seen as a safeguard for respecting national legal diversity, which, as seen above, is one of the aims of the evolution of the EU as an AFSJ under Article 67 TFEU. The move towards a greater focus on subsidiarity as a constitutional principle of EU law – as a means of better justifying action at the EU level and of connecting citizens with the EU – has been inextricably linked with calls to provide national parliaments with a greater role in the scrutiny and development of EU legislation. The view that national parliaments can address the democratic deficit in the EU by providing a useful intermediate link between the EU and citizens in the various Member States, and can provide extra checks on proposed EU action in particular by monitoring subsidiarity, justifies and underpins the expansion of the relevant provisions in the Lisbon Treaty.504 The Lisbon Treaty brings national parliaments more prominently within the EU legal framework. According to Article 12 TEU, national parliaments contribute actively to the good functioning of the EU in a number of ways, including being informed by EU institutions of draft legislation505 and seeing that the principle of subsidiarity is respected506 – with more detailed provisions on both roles included in separate protocols annexed to the Treaty.507 A specific provision on national parliaments and subsidiarity is also included in Title V TFEU, which states that national parliaments ensure that proposals and legislative initiatives in the field of police cooperation and judicial cooperation in criminal matters comply with the principle of subsidiarity in accordance with the relevant protocol.508 The Subsidiarity Protocol establishes a so-called ‘early warning mechanism’ leading to a ‘yellow card’: any national parliament or any chamber of a national parliament can send to EU institutions, within eight weeks from the 503 See T Tridimas, The General Principles of EU Law, 2nd edn (Oxford University Press, 2006) ch 4; and, for a post-Lisbon analysis, P Craig, EU Administrative Law, 2nd edn (Oxford University Press, 2012) 390–98. 504 For an early analysis of the link between national parliaments, subsidiarity and monitoring EU powers in the context of the Convention on the Future of Europe, see A Vergés Bausili, Rethinking the Methods of Dividing and Exercising Powers in the EU: Reforming Subsidiarity and National Parliaments, Jean Monnet Working Paper 9/02, NYU School of Law, at https://www.jeanmonnetprogram.org/archive/papers/02/020901.pdf; see also House of Lords European Union Committee (then Select Committee on the European Union), The Future of Europe: National Parliaments and Subsidiarity: The Proposed Protocols, 11th Report, session 2002–03, HL Paper 70. 505 Article 12(a) TEU. 506 ibid art 12(b). See also art 5(1) and (3) on the principle of subsidiarity. 507 Protocol No 1 on the Role of National Parliaments in the European Union and Protocol No 2 on the Application of the Principles of Subsidiarity and Proportionality respectively. 508 Article 69 TFEU.

Sovereignty Concerns and the Persistence of National Diversity   73 transmission of draft legislative acts (and their amended drafts), ‘a reasoned opinion stating why it considers that the draft in question does not comply with the principle of subsidiarity’;509 where such reasoned opinions for EU criminal law proposals represent at least one-quarter of the votes allocated to national parliaments, the draft must be reviewed.510 Protocol No 2 contains a further, ‘orange card’ mechanism: under the ordinary legislative procedure, where reasoned opinions represent at least a simple majority of the votes allocated to national parliaments, the proposal must be reviewed, and if the Commission chooses to maintain the proposal, a special procedure is triggered in the Council and the European Parliament examining whether negotiations should go ahead.511 The Protocol also contains a provision on the ex post control of subsidiarity, granting jurisdiction to the Court of Justice in actions on the grounds of infringement of the principle of subsidiarity by a legislative act, brought in accordance with the rules laid down in Article 263 TFEU by Member States, or notified by them in accordance with their legal order on behalf of their national parliament or a chamber thereof.512 However, it is clear that national parliaments cannot block the adoption of EU law. As Schütze notes, the Lisbon mechanism will leave the political decision on subsidiarity ultimately to the European legislator, while allowing national parliaments to channel their scrutiny to where it can be most useful and effective, namely on their respective national governments.513 In the field of EU criminal law, it was the Commission’s proposal for a Regulation on the establishment of a EPPO which provided national parliaments with the opportunity to issue a ‘yellow card’, reflecting concerns in a number of Member States about the content of the proposal and the added value of the EPPO. The process and content of the opinions of national parliaments was summarised by the European Commission in its response containing a review of national parliaments’ subsidiarity concerns.514 No fewer than 14 chambers of national parliaments had sent reasoned opinions to the Commission, thus triggering the subsidiarity control mechanism provided for in Article 7(2) of the Protocol.515 The Commission summarised and responded to the main subsidiarity concerns as follows. The first concern involved the view that the Commission did not sufficiently explain the reasons justifying the proposal. Reference was made to the – quite laconic – subsidiarity assessment put forward by the Commission in the foreword to the text of the draft Regulation. The Commission on the other hand rebuked this claim by referring to

509 Articles 4 and 6 of Protocol No 2. 510 ibid art 7. For all other proposals, the threshold is one-third of the votes. 511 ibid art 7(3). 512 ibid art 8. For an analysis, see J-C Piris, The Lisbon Treaty: A Legal and Political Analysis (Cambridge University Press, 2010) 130; and X Groussot and S Bogojevic, ‘Subsidiarity as a Procedural Safeguard of Federalism’ in Azoulai (ed) (n 334) 234–52. 513 R Schütze, From Dual to Cooperative Federalism: The Changing Structure of European Law (Oxford University Press, 2009) 60–61. 514 European Commission, Communication from the Commission to the European Parliament, the Council and the National Parliaments on the review of the proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office with regard to the principle of subsidiarity, in accordance with Protocol No 2, COM (2013) 851 final, Brussels, 27 November. 515 ibid 3.

74  History, Principles and Institutions the detailed justifications provided in the impact assessment preceding the proposal.516 While it is true that the Commission did not refer expressly to the impact assessment in the text or the foreword to the draft Regulation,517 it must be recognised that the impact assessment itself has been extremely detailed and followed detailed external and internal consultation on the proposal. The second principal subsidiarity argument put forward by national parliaments was that investigation and prosecution action by Member State and EU coordination mechanisms are sufficient to tackle fraud against the EU budget. The Commission responded by referring to the statistics from the European Anti-Fraud Office (OLAF), showing that the Treaty objective of an effective, deterrent and equivalent level of protection is not achieved in general518 and by pointing out the limitations of OLAF, Europol and Eurojust in particular regarding issues of admissibility of crossborder evidence and establishing cross-border links.519 The latter point can arguably be addressed by reforming existing EU criminal justice bodies, while on the evidence of the scale of the phenomenon, detailed OLAF statistics should be accompanied by external independent studies.520 The third doubt by national parliaments concerned the added value of the EPPO, to which the Commission responded by stressing the need for a common EU-level prosecution policy and the contribution of the EPPO towards the simplification of action in cross-border cases521 (although the latter does not seem to be the focal point of the Commission’s draft). The fourth subsidiarity concern by national parliaments involved the centralised structure of the EPPO, to which the Commission responded that while a collegiate structure is not necessarily less centralised than that of the proposal, it can hamper efficiency, rendering its decision-making less efficient.522 The fifth concern involved the extension of the powers of the EPPO via the attribution of exclusive and ancillary competence by the Regulation, to which the Commission responded that exclusive competence arises out of the nature of the crimes in question which have an intrinsic EU dimension (thus putting forward a federal, ‘Eurocrimes’ argument), while pointing out that the attribution of ancillary competence may work in both directions.523 In the light of the above, the Commission concluded that its proposal complied with the principle of subsidiarity enshrined in Article  5(3) TEU and that a withdrawal or an amendment of the proposal was not required. It decided to maintain the proposal, but reassured the recipients of its report that it would take due account of the reasoned

516 European Commission, Commission Working Document: Impact Assessment accompanying the proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office, SWD (2013) 274 final, Brussels, 17 July 2013. 517 H Bang Fugslang Madsen and T Elholm, ‘EPPO and the Principle of Subsidiarity’ in P Asp (ed), The European Public Prosecutor’s Office: Legal and Criminal Policy Perspectives (Stifelsen Skrifter utgivna av Juridiska fakulteten vid Stockholms universitet, 2015) 31–50, at 40. 518 ibid 5. 519 ibid 7–8. 520 Note in this context the criticism by the House of Lords European Union Committee pointing out that the Commission treats VAT fraud as a fraud affecting the financial interests of the EU when the UK, along with other Member States, does not consider that it is. See House of Lords European Union Committee, Subsidiarity Assessment: The European Public Prosecutor’s Office, 3rd Report, session 2013–14, HL Paper 65, 6–7. 521 ibid 9. 522 ibid 10. 523 ibid 11–12.

Sovereignty Concerns and the Persistence of National Diversity   75 opinions of the national parliaments during the legislative process.524 The Commission’s approach met with adverse reactions at the national level, with the Dutch Parliament in particular criticising the lack of willingness by the Commission to engage in a dialogue with national parliaments.525 Regarding the procedure followed, one can indeed view the glass as half full or half empty depending on one’s perspective: from a supranational position, subsidiarity review has played a significant role in forcing the Commission to revisit its proposal and to provide a detailed explanation of its reasoning and justification of the proposal; however, from a national perspective, the lack of a detailed follow-up may come as a disappointment, demonstrating a lack of substantive engagement with national parliamentary concerns. Regarding the substance of the Commission’s subsidiarity assessment, one may agree or disagree with the content and rigour of its reasoning. However, what has been made clear is the temporal limitation of the ‘yellow card’ mechanism, in that it does not take into account subsequent developments in negotiations in the Council. Indeed, the move from a centralised to a collegiate model may temper the Commission’s efficiency argument. Moreover, the possible exclusion of VAT fraud from the scope of the mandate of the EPPO would raise further questions with regard to the evidential basis and added value of the establishment of a new EU prosecutorial body.526 These are questions which can be further addressed before the Court of Justice if an action for annulment of the eventually adopted EPPO Regulation is brought under Article 8 of Protocol No 2.

D.  The Limits of Justice à la Carte: Variable Geometry Another legal avenue aiming to address Member States’ concerns on the impact of the ‘Lisbonisation’ of EU criminal law on state sovereignty and national diversity has been the option for states not to participate in EU criminal law adopted under Title V TFEU. Conditions for non-participation (or ‘opt-outs’) are spelt out in a series of Protocols accompanying the Lisbon Treaty which determine the specific position of a number of EU Member States, in particular Denmark, Ireland and (in the pre-Brexit era) the UK. Protocol No 22 on the position of Denmark states that Denmark will not take part in the adoption of all Title V measures527 and that no Title V measure will be binding upon or applicable to it.528 Denmark may decide to opt into Schengen building measures adopted post-Lisbon, and in such cases the measures will create an obligation under international law between Denmark and the other Member States bound by the measure.529 At any time Denmark may decide not to avail itself of all or part of the Protocol, in which case Denmark will apply in full all relevant measures then in force taken within the framework of the EU.530 Moreover, at any time Denmark may notify the other Member States of the replacement of Part I of the Protocol with provisions attached in its annex,

524 ibid

11. Fugslang Madsen and Elholm (n 517) 45–46. of VAT fraud were eventually included within the remit of the EPPO; see ch 8. 527 Protocol No 22, art 1(1). 528 ibid art 2. 529 ibid art 4(1). 530 ibid art 7. 525 Bang

526 Aspects

76  History, Principles and Institutions introducing, inter alia, an ‘opt-in’ mechanism similar to the arrangements for the UK and Ireland.531 Denmark has also declared that it will not block measures which contain both provisions applicable to it and provisions not applicable to it.532 In terms of the position of the UK and Ireland, Protocol No 19 on the Schengen acquis continued these Member States’ pre-Lisbon position after Lisbon, stating in particular that they may at any time request to take part in some or all of the provisions of the Schengen acquis, but that the Council must decide on this request by unanimity of the full Schengen members.533 Moreover, Protocol No 21 also extended the UK and Irish ‘opt-out’ (or rather the option for these Member States not to participate in EU law) to EU criminal law by covering all measures under Title V TFEU. Ireland (and before Brexit the UK) may decide to take part in post-Lisbon Title V measures on a case-by-case basis.534 Further, Protocol No 36 on Transitional Provisions retained the limited powers of EU institutions under the largely intergovernmental framework of the third pillar with regard to third pillar law for a period of five years after the entry into force of the Lisbon Treaty.535 In addition to these country-specific provisions, the Lisbon Treaty has also introduced a more generalised legal possibility for the development of EU criminal justice à la carte, in the Treaty legal basis enabling the establishment of an EPPO. Reflecting Member States’ concerns over the impact of such an agency on national sovereignty and legal diversity, Article  86 TFEU introduces an exception to the ordinary decision-making procedure by requiring unanimity in the Council for the establishment of the EPPO. However, if such unanimity is not forthcoming, the Treaty enables the establishment of enhanced cooperation with the participation of at least nine Member States.536 These ‘opt-outs’ and enhanced cooperation avenues reflect a mistrust of Member States towards European integration in criminal matters. This mistrust is extended in the relations between EU Member States in the context of full membership of the Schengen acquis. Acceptance to full membership remains intergovernmental, with accession to the EU not meaning automatic Schengen membership for the newcomers – although the latter had to implement the Schengen acquis pre-accession, the old, ‘intergovernmental’ mechanism of granting full Schengen membership remains, with the existing Schengen members being required to agree unanimously on the readiness of candidate countries to be members.537 A long time after their accession to the EU, Bulgaria, Romania and Croatia are still at the time of writing not full Schengen members.538 On the other hand, a higher degree of trust towards non-EU Member States has led to the full 531 Protocol No 22, art 8. 532 Declaration 48 annexed to the Final Act of the Lisbon Treaty. 533 Protocol No 19, art 4. 534 See arts 3 and 4 of Protocol No 21. 535 Article 10(1) and 10(3) of Protocol No 36. For further analysis, see ch 12. 536 Article 86(1) TFEU. For details on how enhanced cooperation has evolved in the adoption of the EPPO Regulation, see ch 8. 537 On the sensitivity of Schengen membership for newcomers, see Mitsilegas, Monar and Rees (n 1); and J Monar, Enlargement-Related Diversity in EU Justice and Home Affairs: Challenges, Dimensions and Management Instruments, Dutch Scientific Council for Government Policy, Working Document W112, The Hague, 2000. 538 See the calls by the European Parliament in favour of full membership: https://www.europarl.europa.eu/ doceo/document/A-9-2021-0183_EN.html, para 7.

The Interplay between EU Criminal Law and Upholding the Rule of Law  77 Schengen membership of Iceland, Norway,539 Switzerland540 and Liechtenstein.541 The high degree of mutual trust allowing membership of the Schengen area has significant implications for the position of states in EU criminal law. The high degree of mutual trust (and the operational capacities offered by the use by third states of key EU mechanisms underpinning intra-EU cooperation in criminal matters, such as the Schengen Information System (SIS) II)542 has facilitated the conclusion of an Agreement on surrender between the EU and Norway and Iceland.543 The CJEU has evoked this close relationship in extending the protection provided by EU law to a national of Iceland: according to the Court, the fact that the person concerned has the status as a national of an EFTA state, which is a party to the EEA Agreement, but also the fact that that state implements and applies the Schengen acquis, renders the situation of that person objectively comparable with that of an EU citizen to whom, in accordance with Article 3(2) TEU, the EU offers an AFSJ without internal frontiers, in which the free movement of persons is ensured.544 The Court noted that while Iceland did not take part in the European Arrest Warrant Framework Decision, it was party to a surrender Agreement with the EU, which reflected close cooperation and mutual trust and whose provisions on the surrender procedure are very similar to those of the European Arrest Warrant Framework Decision.545 A close, ‘special’ relationship based on a high level of mutual trust is thus recognised by the Court.

IX.  The Interplay between EU Criminal Law and Upholding the Rule of Law In recent years, links between rule of law concerns and the operation of EU criminal law have come prominently to the fore. These concerns are inextricably linked with the question of mutual trust between authorities which are entrusted to implement and operate EU criminal law instruments and mechanisms. The existence and extent of mutual trust is dependent on broader issues of rule of law fundamentals, including judicial independence and robust anti-corruption standards. However, these questions are not new. Considerations relating to mutual trust and the rule of law have appeared

539 Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the implementation, App and development of the Schengen acquis – Final Act [1999] OJ L176/36. 540 Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, App and development of the Schengen acquis [2008] OJL 53/52. 541 Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, App and development of the Schengen acquis [2011] OJ L160/3. 542 On the SIS II, see ch 9. 543 Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the surrender procedure between the Member States of the European Union and Iceland and Norway – Declarations [2006] OJ L292/2. 544 Case C-897/19 PPU, Ruska Federacija, EU:C:2020:262, para 58. 545 ibid paras 72–74.

78  History, Principles and Institutions prominently in the process of accession of new Member States in the EU. The road of third countries towards their accession to the EU is marked by a very strong role for the EU as a ‘rule generator’, exporting EU law to third countries.546 The latter are obliged to adopt and implement the EU acquis as an indispensable condition for them joining the EU, with accession thus being dependent on conditionality in those terms.547 Conditionality is central to the enlargement process in ensuring that the new Member States are able to absorb the – at times heavy – demands of the EU acquis and ultimately fully assume their membership obligations. From the point of view of ‘old’ Member States, conditionality is crucial in creating trust towards the newcomers, thus contributing to mutual trust within the EU post-accession.548 The link between conditionality and trust appeared very prominently in the process leading to the eastward enlargements of the EU. In this context, the EU had to face a situation whereby countries in transition, with a very different economic, social and political background, were aiming at being further integrated with the EU. To address this complexity, the EU adopted a gradual approach, much broader than simply requiring candidates to adopt the EU acquis. The European Council adopted in 1993 the so-called Copenhagen criteria –these included, inter alia, institutional stability guaranteeing democracy, the rule of law, human rights and minority protection, and the existence of a functioning market economy.549 These criteria in effect co-existed with the specific requirements to implement the specific EU acquis in criminal matters in the accession process, and continue to be of relevance in the assessment of candidates’ (but also new Member States’) progress in meeting EU standards. Moreover, compliance with aspects of EU criminal law such as anti-money-laundering measures was also prompted – much earlier than the adoption of specific negotiating Justice and Home Affairs chapters – by the need to achieve internal market integration.550 The issue of trust in the candidate countries of Central and Eastern Europe has been central in the field of integration in criminal matters. The transitional state of these countries in the early 1990s raised fears that political, societal and economic instability would lead to the development of criminogenic factors which would ‘export’ criminality to the EU. The East was thus increasingly viewed as a source of insecurity, threatening the ‘safe’ inside of the EU – with mistrust regarding the potential capacity of the relevant candidate countries to provide security in home affairs being prevalent.551 Linked to

546 On the concept of the EU as a ‘rule generator’, see M Cremona, ‘The Union as a Global Actor: Roles, Models and Identity’ (2004) 41 CML Rev 555, 557–58. 547 On conditionality and enlargement, see KE Smith, ‘The Evolution and Application of EU Membership Conditionality’ in M Cremona (ed), The Enlargement of the European Union (Oxford University Press, 2003) 105–40; see also F Schimmelfennig and U Sedelmeier, ‘Governance by Conditionality: EU Rule Transfer to the Candidate Countries of Central and Eastern Europe’ (2004) 11 Journal of European Public Policy 661. 548 On the link between conditionality and trust, see M Cremona, ‘Introduction’ in Cremona (n 547) 1–8, at 5–6. 549 For an overview, see C Hillion, ‘The Copenhagen Criteria and Their Progeny’ in C Hillion (ed), EU Enlargement: A Legal Approach (Hart Publishing, 2004) 1–22. 550 See European Commission, White Paper – Preparation of the Associated Countries of Central and Eastern Europe for integration into the internal market of the Union, COM (95) 163 final. For further details, see V Mitsilegas, Money Laundering Counter-measures in the European Union (Kluwer Law International, 2003) 79–80. 551 See Mitsilegas, Monar and Rees (n 1) 126–27.

The Interplay between EU Criminal Law and Upholding the Rule of Law  79 the background of the candidate countries, exiting from a communist past,552 a related source of mistrust involved the ability of these countries to actually implement the EU criminal law standards in the light of the weakening of their internal control structures (an ability which would mean – along with the implementation of specific EU measures – a remodelling of institutions and mentality/culture in the criminal law sphere).553 It is this lack of trust in implementation capacity that was to some extent behind the recommendation by the European Council554 and the subsequent adoption by the Justice and Home Affairs Council of a ‘Pre-Accession Pact’ on Organised Crime between the EU Member States and the applicant countries of Central and Eastern Europe (and Cyprus).555 The Pact, which called inter alia for intensified police and judicial cooperation in criminal matters and action to combat corruption and money laundering, was soon followed by the establishment, via a Joint Action, of a mechanism for collective evaluation of the Justice and Home Affairs acquis by candidate countries.556 This evaluation mechanism (conducted by experts from Member States and the Commission) was ‘without prejudice’ to the accession negotiations,557 but the Commission was invited to take account of the collective evaluations produced in the context of the pre-accession strategy and evaluations would be taken into account ‘in the context of future discussions on enlargement’.558 This move is another example of the emphasis placed by the existing EU Member States on addressing the lack of trust and the perceived limited capacity of candidate countries to effectively implement EU measures in criminal matters. In this climate of mistrust and with negotiations on the Justice and Home Affairs chapter beginning at the end of the 1990s, the candidate countries had to face considerable challenges prior to their eventual accession in the EU.559 A central challenge has been the ‘moving target’ character of the EU acquis in criminal matters, with EU criminal legislation proliferating following the entry into force of the Amsterdam Treaty and events such as 9/11, which rendered EU action in criminal matters a top priority for Member States. Candidate countries were thus asked to implement a constantly growing acquis, the novelty of which posed significant challenges to the ‘old’ Member States.560 Along with this quantitative change, the EU acquis in criminal matters presented a qualitative change as well: the integration of the Schengen acquis in the EC/EU legal framework in Amsterdam (and the related proclaimed EU objective of developing 552 For an overview of crime control features under Communism, see A Fijakowski, ‘The Paradoxical Nature of Crime Control in Post-communist Europe’ (2007) 15 European Journal of Crime, Criminal Law and Criminal Justice 155. 553 On the implementation challenges, see K Henderson, ‘Perceptions of Internal Security Issues in the New Member States’ in K Henderson (ed), The Area of Freedom, Security and Justice in the Enlarged European Union (Palgrave Macmillan, 2004) 15. 554 In its 1997 Action Plan on Organised Crime [1997] OJ C251, 15 August, 1 (Recommendation 3). 555 [1998] OJ C220/1. 556 [1998] OJ L191/8. 557 See art 1 of the Joint Action. 558 ibid art 4(2). 559 For a detailed overview of the various stages in the accession negotiations, see W de Lobkowitz, ‘La ­sécurité intérieure de l’Union Européenne élargie’ in G de Kerchove and A Weyembergh (eds), Sécurité et justice: Enjeu de la politique extérieure de l’Union Européenne (Éditions de l’Université de Bruxelles, 2003) 31–65. 560 For a detailed overview of the acquis, see Mitsilegas, Monar and Rees (n 1).

80  History, Principles and Institutions into an ‘area’ of freedom, security and justice) on the one hand, and the furthering of integration in criminal matters primarily on the basis of mutual recognition (with the European Arrest Warrant Framework Decision being a prime example)561 on the other. In this process, a key requirement for integration in criminal matters within the EU has been the existence of mutual trust between the authorities (and arguably the citizens) of Member States.562 With the internal EU acquis in criminal matters requiring an enhanced degree of trust for the ‘Area of Freedom, Security and Justice’ to function, the benchmark has been set even higher for the candidate countries. The lack of trust and the considerable challenges that the candidate countries faced in trying to align themselves with the EU criminal law acquis and related EU standards were not eventually an obstacle to the accession of 10 new Member States (eight of which from Central and Eastern Europe) to the EU in 2004. However, elements of mistrust remained during and post-accession. The Act of Accession included a so-called ‘safeguard clause’ to cover potential shortcomings in the implementation by newcomers of EU instruments relating to mutual recognition in criminal (and civil) matters. In the event of serious shortcomings or imminent risks thereof in the field, the Commission may adopt, after consulting the Member States, safeguard measures including the temporary suspension of the provisions on judicial cooperation in criminal matters.563 The safeguard clause could be invoked for three years after accession.564 This period passed without the clause having being invoked. If the attitude of the judiciary is a reliable indication, it is striking that the highest courts of new Member States, faced with potential conflict between the domestic Constitution and the European Arrest Warrant implementation requirements, attempted to some extent to accommodate EU law requirements in their domestic legal order, taking into account both the security rationale of the European Arrest Warrant and Luxembourg case law on the third pillar.565 This stance may be viewed as an attempt to address the general climate of mistrust towards the newcomers and the existence of safeguard clauses specifically, attempting to demonstrate that every effort should be made to fully implement EU criminal law domestically.566

561 [2002] OJ L190/1. 562 On the issue of trust in the context of mutual recognition in criminal matters, see ch 4. 563 Article 39 of the Accession Act. For an overview, see C Hillion, ‘The European Union is Dead, Long Live the European Union: A Commentary on the Treaty of Accession 2003’ (2004) 29 European Law Review 583, 605–607. Hillion notes the role of the Commission in this context, notwithstanding the fact that mutual recognition in criminal matters is a third and not a first pillar issue. 564 A similar safeguard clause has been included in the Treaty accompanying the accession of Croatia to the EU, according to which ‘the Commission may, until the end of a period of up to three years after accession, upon the reasoned request of a Member State or on its own initiative and after consulting the Member States, adopt appropriate measures’, which may take the form of a temporary suspension of the application of relevant provisions and decisions in the relations between Croatia and any other Member State or Member States (art 39). See A Lazowski, ‘EU Criminal Law and Enlargement’ in V Mitsilegas, M Bergström and T Konstadinides (eds), Research Handbook on European Criminal Law (Edward Elgar, 2016) 507–531 and also on the EU’s position on the current accession negotiations. 565 See Mitsilegas (n 477). 566 It has been argued that the safeguard clause has had an impact on the outcome of the Polish Constitutional Tribunal judgment; see A Lazowski, ‘Constitutional Tribunal on the Surrender of Polish Citizens under the European Arrest Warrant. Decision of 27 April 2005’ (2005) 1 European Constitutional Law Review 569, 580.

The Interplay between EU Criminal Law and Upholding the Rule of Law  81 Concerns regarding the implementation of the EU criminal law acquis by new Member States persisted in the context of the sixth EU enlargement, which saw Bulgaria and Romania joining the EU in 2007. Compliance of these two countries with the EU acquis on Justice and Home Affairs has been perceived over a period of time to be problematic.567 In its pre-accession monitoring reports, the Commission has been consistently critical of progress in the field, with gaps in institutional capacity raising broader questions regarding the feasibility of the 2007 accession date for both countries.568 Getting closer to the accession date, the Commission published a critical monitoring report, where it pointed out remaining gaps regarding progress in the justice systems of the two countries and the fight against corruption, with Bulgaria also being singled out for gaps in the field of measures against organised crime and money laundering.569 The Commission also recommended – along with the introduction of a safeguard clause allowing the unilateral suspension of Member States obligations with regard to judicial cooperation in civil and criminal matters vis-a-vis Bulgaria and Romania – the introduction of a mechanism verifying progress by the newcomers after accession. The Commission’s recommendations were taken up by Member States, with the Act of Accession including a safeguard clause in criminal matters similar to the one used in 2004,570 and the Commission adopting – using as legal basis the Accession Treaty and the safeguard clauses in the Accession Act – two Decisions establishing ‘a mechanism for cooperation and verification of progress’ to address specific benchmarks in the areas of judicial reform and the fight against corruption (Romania) and these areas plus organised crime (Bulgaria).571 In an unprecedented manner, pre-accession monitoring continues post-accession with regard to key aspects of the rule of law linked also to the capacity of new Member States to meet EU law obligations in the field of criminal law. The benchmarks themselves are attached as annexes to the Commission Decisions and are indicative of the concerns regarding the preparedness of Bulgaria and Romania to fully take up their EU obligations in the criminal law field. Romania is asked to ensure a ‘more transparent and efficient judicial process’ and to combat corruption by establishing an integrity agency, conducting ‘professional, non-partisan investigations’ into allegations of high-level corruption, and taking ‘further measures’ to prevent and fight corruption in particular within the local government. The latter benchmark (also including corruption at the borders) applies to Bulgaria as well, as does the benchmark on corruption investigations and the one regarding ensuring a more transparent and efficient judicial process. However, the benchmark list for Bulgaria is somewhat more extensive: it also includes two further benchmarks dealing with the independence of the judiciary (adopting constitutional amendments ‘removing any ambiguity’ regarding 567 For an analysis of Bulgaria’s early efforts to implement the EU acquis, see D Bozhilova, ‘Measuring Success and Failure of EU: Europeanization in the Eastern Enlargement: Judicial Reform in Bulgaria’ (2007) 9 European Journal of Law Reform 285. 568 For a background, see A Lazowski, ‘And Then They Were Twenty-Seven: A Legal Appraisal of the Sixth Accession Treaty’ (2007) 44 CML Rev 401–430. 569 European Commission, Monitoring Report on the state of preparedness for EU membership of Bulgaria and Romania, COM (2006) 549 final, 26 September, 4–5. 570 Articles 37 and 38. For an overview, see Lazowski (n 568). 571 [2008] OJ L354/ 56 and 58.

82  History, Principles and Institutions the independence and accountability of the judicial system, and continuing the reform of the judiciary) and an additional, separate benchmark urging Bulgaria to implement a strategy to fight organised crime, focusing on serious crime, money laundering and confiscation. It is thus evident that the benchmarks are essentially aimed at broader institutional changes and not so much at the implementation of specific legislation forming part of the EU criminal law acquis. Even the benchmarks involving specific areas of EU action in criminal matters (such as corruption) refer to broader measures aiming to change the culture and practices of the administration and the judiciary. Bulgaria and Romania are required to report once a year to the Commission on their progress made in addressing each of these benchmarks.572 The Commission may gather and exchange information on the benchmarks and organise expert missions for that purpose.573 The benchmarks may be adjusted in the future by amending the two Decisions.574 If Bulgaria and Romania fail to address the benchmarks adequately, the Commission may apply safeguard measures based on Articles 37 and 38 of the Accession Act, including the suspension of Member States’ obligation to recognise and execute, under the conditions laid down in Community law, judicial decisions from the two countries ‘such as European arrest warrants’.575 However, the progress verification Decisions do not preclude the adoption of safeguarding measures at any time if the conditions for such measures are fulfilled.576 The Cooperation and Verification Mechanism (CVM) is ongoing, with the Commission publishing reports on an annual basis.577 The design of the progress verification process is noteworthy. This is an ex post monitoring mechanism, operating after the entry of the new Member States into the EU. This means that, for the time being, Bulgaria and Romania are subject to further, more detailed evaluation and monitoring in the criminal law sphere than the other EU Member States. The role of the Commission in this context is significant. Notwithstanding the fact that the object of the monitoring exercise (and the ambit of the safeguard clause) falls primarily within the third pillar, the Commission has an extensive monitoring role by setting benchmarks, gathering information, organising expert missions and ultimately evaluating progress. This role for the Commission – which can be viewed as a continuum of its role before accession, where it was involved actively in negotiations on the Justice and Home Affairs chapter, in spite of its third pillar reach – is again at odds with its current limited role in the third pillar with regard to the other 25 Member States. One could thus speak of ‘double standards’ with regard to the two newcomers. However, on the other hand, one cannot help but notice the content of the benchmarks – which, beyond looking at the implementation of specific EU criminal law standards, take us back to the fulfilment of the very fundamental Copenhagen criteria (namely institutional stability which guarantees the rule of law) and examine the institutional and justice system of the assessed states as a whole. It appears that the perceived lack

572 Article 1 first indent of both Decisions. 573 Article 1 second indent of both Decisions. 574 Preamble, recital 9 in both Decisions. 575 ibid, Preamble, recital 7. 576 ibid, Preamble, recital 8. 577 For details, see https://ec.europa.eu/info/policies/justice-and-fundamental-rights/upholding-rule-law/ rule-law/assistance-bulgaria-and-romania-under-cvm/reports-progress-bulgaria-and-romania_en.

The Interplay between EU Criminal Law and Upholding the Rule of Law  83 of preparedness to fulfil the fundamental Copenhagen criteria – at least in the context of the functioning of criminal law in the ‘are of freedom, security and justice’ – was not deemed sufficient to change the political decision to admit Bulgaria and Romania to the EU in 2007. The CVM is a key mechanism to address rule of law shortcomings. Its legal impact has been strengthened by the CJEU, which held that Commission Decision 2006/928/ EC of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption, and the reports drawn up by the Commission on the basis of that decision constitute acts of an EU institution, which are amenable to interpretation by the Court under Article 267 TFEU; that Decision 2008/928 is binding in its entirety on Romania and that the benchmarks in its Annex are intended to ensure that Romania complies with the value of the rule of law, set out in Article 2 TEU, and are binding on it, in the sense that Romania is required to take appropriate measures for the purposes of meeting those benchmarks, giving due account, under the principle of sincere cooperation laid down in Article 4(3) TEU, to the reports drawn up by the Commission on the basis of that decision, and in particular the recommendations made in those reports; that the legislation governing the organisation of justice in Romania falls within the scope of Decision 2006/928, with the result that it must comply with the requirements arising from EU law and, in particular, from the value of the rule of law set out in Article 2 TEU; and that the principle of the primacy of EU law must be interpreted as precluding legislation of a Member State having constitutional status, as interpreted by the constitutional court of that Member State, according to which a lower court is not permitted to disapply of its own motion a national provision falling within the scope of Decision 2006/928, which it considers, in the light of a judgment of the Court, to be contrary to that decision or to the second subparagraph of Article 19(1) TEU.578 The CJEU has thus confirmed that the CVM mechanism is legally binding and it has used the process to rule on the incompatibility of a Member State’s internal law and practice on the rule of law and the organisation of justice with EU law. The evocation of the principle of primacy of EU law over national constitutional law579 here serves to empower lower national courts to disapply provisions of a constitutional status validated by the constitutional court in order to ensure the effectiveness of EU law and the proper implementation of the CVM benchmarks, which are themselves designed to improve the rule of law situation in the Member State in question. However, rule of law concerns have persisted with regard to EU Member States beyond the CVM and beyond Bulgaria and Romania. Calls for increased scrutiny of Member States’ compliance with the rule of law, emphasising ex post monitoring on institutional capacity, was reflected in the Commission’s 2014 Communication on ‘A New Framework to Strengthen the Rule of Law’.580 The Commission emphasises that mutual trust among EU Member States and their respective legal systems is the

578 Joined Cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, Asociaţia ‘Forumul Judecătorilor din România’ et al, ECLI:EU:C:2021:393. 579 See also the reference to Melloni in ibid para 245. On the primacy principle, see section VI.B.iii above. 580 Commission, ‘A New Framework to Strengthen the Rule of Law’ COM (2014) 158 final, 11 March 2014.

84  History, Principles and Institutions ‘foundation of the Union’ and that the way in which the rule of law is implemented at the national level plays a key role in this respect.581 The Commission considered the confidence of EU citizens and national authorities in the functioning of the rule of law ‘vital’ for the further development of the EU into an AFSJ without internal frontiers.582 After stressing the links between the rule of law and the respect for democracy and fundamental rights, it also acknowledged that there may be situations of concern falling outside the scope of EU law and, therefore, outside the scope of the infringement procedure. These cases still pose ‘a systemic threat to the rule of law’ and may lead to the application of the preventing and sanctioning mechanisms provided for by Article 7 TEU.583 However, Article 7 TEU sets high thresholds for activating both mechanisms, which are defined as ‘a last resort’.584 In addition to Article  7 TEU and to infringement procedures, the Commission introduced a new instrument to protect the rule of law across the EU, namely the EU Framework to Strengthen the Rule of Law. This is a three-stage process that aims to find a solution through dialogue with the Member State concerned and to guarantee an objective and thorough assessment of the situation at stake.585 It should also ensure equal treatment among Member States and indicate ‘swift and concrete actions’ that could be taken to address the systemic threat and to avoid the use of Article 7 mechanisms.586 The first stage is the Commission’s assessment, which may include a ‘rule of law opinion’ where the Commission explains its concerns and initiates a dialogue with the Member State concerned, which has the opportunity to respond.587 Should the matter not be resolved by this exchange between the Member State and the Commission, the latter may then adopt a ‘rule of law recommendation’, where it indicates the reasons for its concerns and recommends that the Member State solves the problems identified within a fixed time limit.588 The third stage is the follow-up to the Commission’s recommendation. The Member State should keep the Commission informed of the measures taken to solve the problems identified in the recommendation. If there is no satisfactory follow-up to the recommendation within the time limit set, the Commission assesses the possibility of activating one of the mechanisms set out in Article 7 TEU.589 The Commission activated the procedure vis-a-vis Poland in 2016. Concerned by several pieces of legislation undermining the independence and the functioning of the Polish Constitutional Tribunal, as well as of the Polish judicial system more broadly, the Commission issued four Rule of Law Recommendations between 2016 and 2017, and it also launched infringement proceedings against Poland.590 The procedure 581 ibid 2. 582 ibid 4. 583 ibid 5. 584 ibid 6. 585 ibid 7. 586 ibid. 587 ibid 7–8. 588 ibid 8. 589 ibid. For a critique of the process, see L Pech and K Lane Scheppele, ‘Illiberalism Within: Rule of Law Backsliding in the EU’ (2017) 19 Cambridge Yearbook of European Legal Studies 3. 590 European Commission, ‘Rule of Law: Commission Launches Infringement Procedure to Protect the Independence of the Polish Supreme Court’, press release, Brussels, 2 July 2018. See the Commission Recommendations issued on 27 July 2016 (C(2016) 5703 final), 21 December 2016 (C(2016) 8950 final), 26 July 2017 (C(2017) 5320 final), and 20 December 2017 (C(2017) 9050 final).

The Interplay between EU Criminal Law and Upholding the Rule of Law  85 culminated in the adoption by the Commission of a Reasoned Proposal in accordance with Article 7(1) TEU asking the Council to determine that there is a clear risk of a serious breach of the rule of law in Poland.591 The Commission highlighted the links between the rule of law, mutual trust and judicial cooperation by stating that respect for the rule of law ‘is also essential for mutual trust in the area of Justice and Home Affairs, in particular for effective judicial cooperation in civil and criminal matters which is based on mutual recognition’.592 Effective cooperation needs to be founded upon an independent judiciary in each Member State.593 In 2015, the European Parliament has called twice on the Commission to activate the first stage of the EU Framework to Strengthen the Rule of Law with regard to Hungary, voicing serious concerns over recent initiatives and measures resulting in a ‘serious systemic deterioration in the situation as regards the rule of law and fundamental rights’.594 The procedure was eventually triggered not by the Commission but by the European Parliament in September 2018.595 The effectiveness of triggering Article 7 procedures in both cases has been severely criticised. It has been noted that: [B]oth Article 7 procedures were initiated with great delays – after two years of meaningless ‘dialogue’ in case of Poland and only in year eight of ongoing constitutional destruction in Hungary. In the only two cases in which Article 7 has ever been invoked, then, it is hard to find a reason for optimism that Article  7 can ever become an instrument bringing lasting constitutional change.596

In addition to the triggering of the Article 7 procedure, recent years have seen the proliferation of the institution of rule of law-related infringement proceedings before the CJEU. While the routine institution of these proceedings is a welcome step to increase rule of law scrutiny and to provide a strong EU response to Member States’ deviation from EU values, proceedings inevitably target specific cases of rule of law deficiencies (which include crucially issues of judicial independence) on a case-by-case and not a holistic basis – a situation which has led scholars to propose the launch of systemic infringement actions.597 In 2019, the Commission published a ‘Blueprint for Action’ on the rule of law which launched an annual assessment of rule of law compliance by each EU Member State.598 This monitoring process results in the publication of annual reports and involves a focus, inter alia, on monitoring the quality of the justice systems of

591 European Commission, Proposal for a Council Decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law, COM (2017) 835 final, 20 December. 592 ibid para 180(3). 593 ibid. 594 European Parliament Resolution of 16 December 2015 on the situation in Hungary (2015/2935(RSP)), para F. See also European Parliament Resolution of 10 June 2015 on the situation in Hungary (2015/2700(RSP)). 595 European Parliament Resolution of 12 September 2018 on a proposal calling on the Council to determine, pursuant to Article  7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded (2017/2131(INL)). 596 K Lane Scheppele, D Kochenov and B Grabowska-Moroz, ‘EU Values are Law, after All: Enforcing EU Values through Systemic Infringement Actions by the European Commission and the Member States of the European Union’ (2020) 39 Yearbook of European Law 3, 40. 597 See Lane Scheppele, Kochenov and Grabowska-Moroz (n 596), which includes a detailed analysis of existing infringement proceedings before the CJEU. 598 European Commission, ‘Strengthening the Rule of Law within the European Union: A Blueprint for Action’ COM (2019) 343 final.

86  History, Principles and Institutions EU Member States (including perceived judicial independence, procedures for appointing judges, autonomy and independence of the prosecution services, and ensuring accountability in the judiciary and safeguarding judicial independence in disciplinary procedures) and the national anti-corruption framework of Member States.599 Upholding the rule of law in the EU and its action in the field of criminal law are linked at two levels: at the operational level and at the monitoring level. At the operational level, upholding the rule of law – including crucially judicial independence – is a pre-requisite for the legitimacy of the functioning of EU criminal law cooperation mechanisms, in particular the operation of the principle of mutual recognition in criminal matters. A number of instances in the operation of the European Arrest Warrant Framework Decision have raised key challenges on safeguarding EU values in cases where serious rule of law concerns exist with regard to the legal orders and systems of individual Member States which take part in the EU cooperation system.600 At the level of monitoring compliance with the rule of law, a key development has been linking rule of law monitoring with the monitoring of Member States’ compliance with the EU framework on fraud against the EU’s financial interests – and with full cooperation of Member States with the EU competent bodies, including OLAF and the EPPO.601 The link between rule of law monitoring and the protection of the EU budget is also evident in the Regulation introducing a conditionality regime for the protection of the EU budget.602 The Preamble acknowledges that there is a clear relationship between respect for the rule of law and the efficient implementation of the EU budget in accordance with the principles of sound financial management.603 The Regulation establishes a system where measures will be taken against Member States in cases where breaches of the rule of law affect or seriously risk affecting the sound financial management of the EU budget or the protection of the financial interests of the EU in a sufficiently direct way,604 with such breaches being defined as concerning, inter alia, effective and timely cooperation with OLAF and, subject to the participation of the Member State concerned, with EPPO in their investigations or prosecutions pursuant to the applicable EU acts in accordance with the principle of sincere cooperation.605 Cooperation of Member States with OLAF and the EPPO thus becomes a key tool for rule of law compliance. An obstacle in this direction is the fact that a number of EU Member States – most notably Poland and Hungary – currently do not take part in the EPPO Regulation. While the idea of linking conditionality with participation in the EPPO would appear to be a logical step in order to ensure effective rule of law monitoring, the enhanced cooperation framework established in Article 86 TFEU complicates direct legal avenues to that effect. 599 European Commission, 2021 ‘Rule of Law Report, The rule of law situation in the European Union’, COM (2021) 700 final, 20 July 2021, accompanied by country reports. 600 For further details, see ch 4. 601 This link is highlighted in the 2021 Commission Rule of Law Report (n 599), which states that the effectiveness of the national justice systems analysed in the report will be a key factor for ensuring that cases initiated by OLAF and the EPPO are brought to conclusions and effective sanctions apply (at 29). For more on OLAF and the EPPO, see ch 8. 602 Regulation (EU, Euratom) 2020/2092 on a general regime of conditionality for the protection of the Union budget [2020] OJ LI 433/1. 603 ibid, Preamble, recital 13. 604 ibid art 4(1). 605 ibid art 4(2))(g).

Conclusion  87

X. Conclusion The entry into force of the Lisbon Treaty has created significant momentum towards the constitutionalisation of EU criminal law. The immediate impact can be seen at the institutional level, where EU action in criminal matters – especially after the end of the transitional period imposed by Protocol No 36 – is, with few exceptions, subject to the full powers of EU institutions. The move towards supranationalism in the field has not stopped legal basis litigation and has, if anything, alerted Member States further to the potential impact that European integration in the field can have on their national criminal justice systems. Legal basis litigation has emerged involving the reconfiguration of inter-institutional balance after Lisbon touching upon both internal and external dimensions of EU criminal law, as well as involving attempts by Member States to assert their legal position regarding the possibilities of an ‘opt-out’ from EU criminal law. However, thus far, it can be seen that the Lisbon provisions aimed at safeguarding national diversity have been relatively underused – with Brexit of course presenting a ‘total opt-out’ and its own post-withdrawal challenges.606 Instead of strong governmental Member State action to safeguard national diversity on the basis of the provisions of the Lisbon Treaty, we have instead seen national constitutional courts emerging as the defenders of national constitutional identity in cases where they felt that fundamental constitutional principles (and their own powers to define them) are under threat from EU law. In this process, criminal law questions become constitutional law questions, and trigger a dialogue with the CJEU which brings questions on the extent of mutual trust, upholding the rule of law and protecting fundamental rights firmly into the fore. If the entry into force of the Lisbon Treaty has already had a significant effect on the intra-EU interinstitutional balance and the balance of power between the EU and Member States, its constitutionalising impact will be felt most strongly in relation to the relationship between the individual and the state in an increasingly integrated system of EU criminal justice. Constitutionalisation means in this context that the constitutional principles of EU law, including the protection of fundamental rights, apply fully on EU criminal law. These principles (and, as will be seen later in this volume, secondary EU law on the rights of the individual) have the effect of placing the individual at the heart of Europe’s area of criminal justice. Constitutionalisation means that not only is the protection of fundamental rights a sine qua non condition for the development of EU criminal law, but also that Member States, when implementing EU criminal law, are obliged to comply fully with the EU’s constitutional principles. The application of these principles ensures both the decentralised and the centralised enforcement of EU law. In terms of decentralised enforcement, individuals can claim rights before national courts by evoking the principle of direct effect – this is very likely to be the case concerning key provisions of criminal procedural law. In terms of centralised enforcement, EU institutions have increased powers to scrutinise Member States’ implementation of EU criminal law. Their scrutiny remit is extensive, entailing a holistic examination of domestic criminal justice systems to the extent that aspects of these systems are



606 See

ch 12.

88  History, Principles and Institutions connected with the implementation of key EU criminal law instruments, including the Framework Decision on the European Arrest Warrant and the Directives on procedural rights in criminal proceedings. Monitoring implementation means monitoring conditions from the police station to the court to prison in order to ensure that the requirement of effective protection of fundamental rights on the ground is complied with fully. This continuum of scrutiny will inevitably extend to core rule of law issues, with upholding the rule of law being a key factor in safeguarding the legitimacy and credibility of EU criminal law.

2 Substantive Criminal Law From Securitised to Functional Criminalisation I. Introduction The extent of the competence of the EU to criminalise – namely to define criminal offences and adopt criminal sanctions – has traditionally been contested and remains contested, notwithstanding the abolition of the third pillar and the normalisation of EU criminal law after the entry into force of the Lisbon Treaty. Concerns with regard to the impact of EU action to criminalise on national sovereignty and the diversity and integrity of national legal systems have led to the evolution of EU criminalisation competence in a series of fraught, incremental steps, reflecting a number of EU interinstitutional battles and necessitating the intervention of the Court of Justice. Informed by an overview of the evolution of EU competence in the field, this chapter will analyse the extent of the EU’s power to define criminal offences and introduce criminal sanctions after Lisbon, and the impact of such competence on the harmonisation of substantive criminal law.1 The chapter will demonstrate that EU competence to criminalise can

1 The term ‘harmonisation’ is a commonly used term regarding Community action in the first pillar, in particular with regard to the development of the internal market, but also expanding into other areas of Community competence. For an overview, see S Weatherill, ‘Harmonisation: How Much, How Little?’ (2005) 16(3) European Business Law Review 533; and S Weatherill, ‘Why Harmonise?’ in T Tridimas and P Nebbia (eds), European Law for the Twenty-First Century. Rethinking the New Legal Order, vol 2 (Hart Publishing, 2004) 11–32. For a discussion on the applicability of the concept in EU criminal law, see the contributions in A Klip and H van der Wilt (eds), Harmonisation and Harmonising Measures in Criminal Law (Amsterdam, Royal Netherlands Academy of Arts and Sciences, 2002). Harmonisation in the context of EU criminal law has also been examined in comparison to the term of ‘approximation’, which is also used in the TEU. It has been argued that, with the difference between the two concepts being unclear, they can be deemed to be in effect synonymous; see A Weyembergh, L’harmonisation des législations: condition de l’espace pénal européen et révélateur de ses tensions (Editions de l’Université de Bruxelles, 2004) 33. ‘Approximation may be seen as a process of ‘bringing things closer to each other’ (see FM Tadic, ‘How Harmonious Can Harmonisation Be? A Theoretical Approach towards Harmonisation of (Criminal) Law’ in A Klip and H van der Wilt (eds), Harmonisation and Harmonising Measures in Criminal Law (Amsterdam, Royal Netherlands Academy of Arts and Sciences, 2002) 9), and as such can certainly apply to EC/EU criminal law. However, the difference of this process to harmonisation may indeed be a matter of degree and is not always clear. While both approximation and harmonisation are different from uniformity and from the development of a ‘one-size-fits-all’ criminal law, harmonisation can be seen to imply – along with the approximation of national criminal laws – the creation of common standards aiming at ensuring ‘harmony’ in the Community/Union system of criminal law. It is in this context that the term ‘harmonisation’ will be used in this chapter.

90  Substantive Criminal Law be justified in a twofold manner: by the need for the EU to address security threats (securitised criminalisation); and by the need for the EU to use criminal law in order to ensure the effectiveness of EU law (functional criminalisation). While the focus will be on an analysis of the EU’s power to criminalise under Article 83 TFEU, the chapter will also test the wording of this article in relation to other Treaty legal bases and the practice of the institutions with regard to proposals on EU substantive criminal law after the entry into force of the Lisbon Treaty. These legal developments will also be evaluated in the light of the inter-institutional debate on EU criminalisation, as reflected in a series of policy documents published by the Commission, the Parliament, the Council and the European Council. The chapter will then evaluate critically a number of areas where there are gaps or shortcomings regarding EU criminalisation, addressing both the securitised and functional criminalisation options set out in the Lisbon Treaty. The underused potential of decriminalisation will be highlighted in this context.

II.  Before Lisbon: The Interplay between Community Law and National Criminal Law The debate on the existence and extent of a role for the European Community in the field of criminal law has been a longstanding one.2 A key factor leading to ambiguity and conflicting views on the existence of competence of the Community in criminal matters has been the silence of the EC Treaty on the matter. At first sight, the primary focus of Community law on the market and free movement could be seen –at least on the surface – to preclude any interaction between the European (economic) Community and criminal law. However, there have been a number of occasions where Community law and criminal law have had to interact in the enactment or implementation of Community law. Such interaction has led to a substantial body of case law by the Court of Justice, which demonstrates that shielding criminal law from the objectives and legislation of the Community has not always been possible. There are three main lines of cases in which the Court has affirmed the interrelationship between criminal law and Community law – the first two confirm the impact of Community law on national criminal law, while the third demonstrates the impact that domestic criminal law principles may have on Community law.

2 Of the plethora of academic writing in the field, see in particular M Delmas-Marty, ‘The European Union and Penal Law’ (1998) 4(1) European Law Journal 87; H Labayle, ‘L’ouverture de la jarre de Pandore: réflexions sur la compétence de la Communauté en matière pénale’ (2006) 42 Cahiers de droit européen 379; C Harding, ‘Exploring the Intersection of European Law and National Criminal Law’ (2000) 25 European Law Review 374; U Sieber, ‘Union européenne et droit pénal européen’ (1993) Revue de science criminelle et du droit pénal comparé 249; J Dine, ‘European Community Criminal Law?’ [1993] Criminal Law Review 246; HG Sevenster, ‘Criminal Law and EC Law’ (1992) 29 CML Rev 29; M Wasmeier and N Thwaites, ‘The “Battle of the Pillars”: Does the European Community Have the Power to Approximate National Criminal Laws?’ (2004) 29 European Law Review 613; A Klip, ‘European Integration and Harmonisation and Criminal Law’ in D. Curtin et al, European Integration and Law (Intersentia, 2006) 109–50; and G Giudicelli-Delage and S Manacorda (eds), L’intégration pénale indirecte (Paris, Société de législation comparée, 2005). For an early analysis, see JW Bridge, ‘The European Communities and the Criminal Law’ [1976] Criminal Law Review 88.

Before Lisbon: The Interplay between Community Law and National Criminal Law  91

A.  The Impact of Community Law on National Criminal Law: Proportionality and the Limits to National Criminal Law In a number of cases, the Court of Justice has confirmed that Community law places limits on the application of national criminal law, if the latter would have as its effect to disproportionately limit rights established by Community law, in particular rights relating to free movement. As early as 1981, the Court stated in Casati that: In principle, criminal legislation and the rules of criminal procedure are matters for which the Member States are still responsible. However, it is clear from a consistent line of cases decided by the Court, that Community law also sets certain limits in that area as regards the control measures which it permits the Member States to maintain in connection with the free movement of goods and persons. The administrative measures or penalties must not go beyond what is strictly necessary, the control procedures must not be concerned in such a way as to restrict the freedom required by the Treaty and they must not be accompanied by a penalty which is so disproportionate to the gravity of the infringement that it becomes an obstacle to the exercise of that freedom. (Emphasis added)3

The Court justified this approach, notwithstanding the objections of a number of Member States,4 on the grounds of the necessity to prevent the erosion of Community law freedoms by national measures.5 The Court’s approach is based on the principle of proportionality. As Tridimas has noted, the Court followed in Casati a strict proportionality test, and confirmed this approach in a series of cases concerning obstacles posed by national criminal law to the exercise of Community free movement rights.6 In order to ensure the exercise of Community rights, the Court has not hesitated to check the compatibility with Community law of domestic criminal laws penalising conduct as diverse as driving without a licence in the host Member State (resulting from a failure to exchange the home state driving licence with the host state licence within the time limits prescribed by the law of the host state),7 and pursuing the organised activity of collecting bets without a licence or a police authorisation.8 In addition to limits to the imposition of criminal sanctions by Member States, the Court has held that state sovereignty in choosing the language of criminal proceedings may be limited in order

3 Case 203/80, Casati [1981] ECR 2595, para 27. 4 See in particular the views of Ireland and Denmark, which both argued that in principle penalties are a matter for Member States to determine; ibid para 2606. 5 ibid para 28. 6 T Tridimas, The General Principles of EU Law, 2nd edn (Oxford University Press, 2006) 234; see also at 234–38 for an overview of the Court’s application of proportionality to a series of cases concerning the free movement of persons and goods, particularly cases concerning residence conditions of EU nationals in other Member States. 7 Case C-193/94, Skanavi and Chryssanthakopoulos [1996] ECR I-929. For an overview, see Tridimas (n 6) 235–36. 8 Joint Cases C-338/04, C-359/04 and C-360/04, Placanica, Palazzese and Sorricchio [2007] ECR I-1891. The Court referred therein to Case 48/96 Calfa [1999] ECR I-11, where it was held that the penalty of expulsion of a Community national found guilty of drug possession for personal use was precluded by arts 48, 52 and 59 of the EC Treaty and art 3 of Directive 64/221/EC. Being a tourist, Calfa was deemed by the Court to be a recipient of services following the earlier Cowan ruling (Case 186/87, Cowan v Trésor Public [1989] ECR 195).

92  Substantive Criminal Law to ensure non-discrimination against persons to whom Community law grants equal treatment rights, as well as free movement.9 The Court’s approach on the limits that EU law places upon national power to criminalise has continued after the entry into force of the Lisbon Treaty. In a significant post-Lisbon development, the Court has extended its case law to include limiting national criminalisation on the grounds of ensuring the effectiveness of an instrument of immigration enforcement within the AFSJ. In the case of El-Dridi,10 which concerned the compatibility of national criminalisation of immigration offences with the EU Return Directive, the Court reiterated that although in principle criminal legislation and the rules of criminal procedure are matters for which the Member States are responsible, this branch of the law may nevertheless be affected by EU law.11 The Court added that Member States may not apply rules, even criminal law rules, which are liable to jeopardise the achievement of the objectives pursued by a Directive and therefore deprive it of its effectiveness.12 It also confirmed the applicability of the principle of loyal cooperation as expressed in Article 4(3) TEU.13 The Court’s effectiveness reasoning in El-Dridi has been since reiterated by the Court in a number of cases concerning the compatibility of national criminalisation initiatives with the Return Directive.14 These cases are significant as they mark a departure from earlier case law: while traditionally, in rulings like Casati, the Court of Justice has placed limits on national criminal law in order to achieve free movement objectives, in El-Dridi and its follow-up cases, limits to national criminalisation are justified in order to achieve the effectiveness of an enforcement measure, namely the EU Return Directive.15 In this context, the decriminalisation potential of the application of the principle of effectiveness has increased considerably.16

B.  The Impact of Community Law on National Criminal Law: Effectiveness and Assimilation The Court’s intervention in criminal matters has not been confined to cases limiting the application of national criminal law. In a number of cases, the Court has developed mechanisms whereby the use of criminal law at the national level might be encouraged and thus increased. This increase in the application of national criminal law primarily concerns cases where the latter is deemed necessary to ensure the effectiveness of

9 Case C-274/96, Bickel and Franz [1998] ECR I-7637. 10 Case C-61/11 PPU, El-Dridi [2011] ECR I-03015. 11 ibid para 53. 12 ibid para 55. 13 ibid para 56. 14 Case C-329/11, Achughbabian v Préfet du Val-de-Marne [2011] ECR I-12695; Case C-430/11, Sagor, ECLI:EU:C:2012:777; Case C-297/12, Filev and Osmani, ECLI:EU:C:2013:569. 15 See V Mitsilegas, ‘The Changing Landscape of the Criminalisation of Migration in Europe: The Protective Function of European Union Law’ in M Guia, M van der Woude and J van der Leun (eds), Social Control and Justice: Crimmigration in an Age of Fear (Eleven International Publishing, 2012) 87–114; and V Mitsilegas, The Criminalisation of Migration in Europe: Challenges for Human Rights and the Rule of Law (Springer, 2015) ch 3. 16 See V Mitsilegas, ‘From Overcriminalisation to Decriminalisation: The Many Faces of Effectiveness in European Criminal Law’ (2014) 5 New Journal of European Criminal Law 415.

Before Lisbon: The Interplay between Community Law and National Criminal Law  93 Community law. Already in the 1970s, the Court more than hinted at the use of national criminal law for that purpose, stating that: Although Article 5 of the EEC Treaty places Member States under a duty to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations resulting from action taken by the institutions of the Community, it allows the various Member States to choose the measures which they consider appropriate, including sanctions which may even be criminal in nature. (Emphasis added)17

Amsterdam Bulb is a clear reflection of the view that criminal law may be used as a means to an end, with the end being the achievement of the effectiveness of Community law.18 This view applies here in the context of criminal law at the national level, while, as will be seen below, it has also played a central role in the development of Community competence to legislate in criminal matters. The Court maintained effectiveness at the heart of its case law on the impact of Community law on national criminal law, and in the late 1980s took its reasoning a step further in a landmark judgment concerning the possibility of imposition of national criminal sanctions for the protection of the financial interests of the Community. In Commission v Greece,19 the Court stated that: [W]here Community legislation does not specifically provide any penalty for an infringement or refers for that purpose to national laws, regulations and administrative provisions, Article 5 of the Treaty requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law. For that purpose, whilst the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalised under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive. Moreover, the national authorities must proceed, with respect to infringements of Community law, with the same diligence as that which they bring to bear in implementing corresponding national laws.20

Based on effectiveness, the Court thus introduced the principle of assimilation: Community law must be ‘assimilated’ into national legal systems, and infringements of Community law must be treated in a manner analogous to the manner that breaches of similar domestic law are treated. In the present case (also referred to as the Greek Maize

17 Case 50/76, Amsterdam Bulb [1977] ECR 137, para 32. The Court continued by stating that in the absence of any provision in the Community rules providing for specific sanctions to be imposed on individuals for a failure to observe those rules, the Member States are competent to adopt such sanctions as appear to them to be appropriate (para 33). 18 See also the Commission’s submission in the case, stating that: ‘It is clear that, as regards Community law, the validity of a national provision imposing penal sanctions depends on that of the provisions whose observance it is intended to ensure. A provision which imposes penal sanctions is compatible with Community law to the extent to which the rule of substance in relation to which it was adopted is itself compatible with that law. As regards rules of substance which are compatible with Community law, it is certain that Member States are not only empowered but also, with Art 5 of the EEC Treaty, obliged to take all appropriate measures, whether general or particular, to ensure the proper implementation of Community rules’ (ibid para 144, emphasis added). 19 Case C-68/88, Commission v Greece [1989] ECR 2965. 20 ibid paras 23–25.

94  Substantive Criminal Law case), this would effectively mean that the Greek authorities would have to treat fraud against the Community budget in an analogous way to the treatment of fraud against the national budget – if the latter is punishable by criminal sanctions at the national level, the former must be punishable by criminal sanctions too. The assimilation principle has been developed further by the Court, which stated that effective national measures ‘may include criminal penalties even where the community legislation only provides for civil sanctions’.21 The principle of assimilation is reflected post-Lisbon in Article 325 TFEU, a provision which has given rise to extensive litigation in national courts and before the CJEU.22

C.  The Impact of National Criminal Law on Community Law: Criminal Law Principles as General Principles of Community Law The potential impact of Community law on national criminal law (especially when this results in an increase of criminalisation) has brought to the fore a number of issues relating to the need to accommodate, by both the Community and the national legal systems, safeguards for the individual in the application of criminal law – in particular safeguards relating to the principles of legal certainty and non-retroactivity in criminal proceedings. To address this issue, the Court has developed extensive case law, confirmed by the Pupino judgment,23 on the limits imposed to the obligation of national courts to interpret national law to the extent possible in conformity with EU law in order to take into account the particular position of the individual in the criminal process.24 However, along with the limits to indirect effect, considerations relating to the potential severe consequences of criminal law to the individual and the need to protect fundamental rights in the context of the criminal justice process have also led to the export of national law safeguards relating to legal certainty and non-retroactivity to the Community legal order. A prime example of such exported norm is the principle of the retroactive application of the more lenient penalty, which, according to the Court in Berlusconi,25 forms part of the constitutional traditions common to the Member States and thus must be regarded as forming part of the general principles of Community law that the courts must respect when applying national legislation implementing Community law.26 The Court appears to use this principle as a counterweight to the assimilation principle which it reiterates earlier in the judgment.27 It also places the application of the principle in the present case in the particular context of the fact that the Community legislation 21 Case C-186/98, Nunes de Matos [1999] ECR I-4883, para 14. 22 See in particular the Taricco litigation (see ch 1). For a recent post-Lisbon iteration of the assimilation principle on the basis of art 325 TFEU, see Case C-574/15, Scialdone ECLI:EU:C:2018:295. 23 Case C-105/03, Maria Pupino [2005] ECR I-5285. 24 For further analysis, see ch 1. 25 Joint Cases C-387/02, C-391/02 and C-403/02, Berlusconi, Adelchi, Dell’Utri and Others [2005] ECR I-3565, ECLI:EU:C:2005:270. See also the comments by H van der Wilt, ‘Case Note’ (2006) 2 European Constitutional Law Review 303; and A Biondi and R Mastroianni, ‘Case Note’ (2006) 43 CML Rev 553. 26 Berlusconi (n 25) 68 and 69. 27 ibid para 65.

The Constitutional Politics of Criminalisation before Lisbon  95 in question was a Directive – the Court reiterated its earlier case law that a Directive cannot, of itself and independently of a national law for its implementation, have the effect of determining or aggravating the liability in criminal law of persons who act in contravention of the provisions of that Directive.28 Given the focus of the judgment on the form of the legal instrument concerned, the question arises as to whether this general principle of Community law would also apply if the requirement to impose penalties was included in a Regulation (and not in a Directive). It has been suggested that the national court might be under an obligation to set aside national law in such cases.29 As was seen in Chapter 1, post-Lisbon EU criminal law primarily takes the form of Directives.30 However, this may not necessarily be the case with measures on criminal law measures adopted on a legal basis outside the AFSJ title.31

III.  The Constitutional Politics of Criminalisation before Lisbon: The Competence Question Notwithstanding its extensive case law affirming the interaction between Community law and national criminal law, the Court of Justice was initially reluctant to explicitly confer upon the Community the competence to define criminal offences and impose criminal sanctions.32 This stance, coupled with the silence of the EC Treaty on the matter (and thus the lack of express provisions therein attributing to the Community competence to define criminal offences and impose criminal sanctions), fuelled the debate on the existence and extent of Community competence in the field. As I have noted elsewhere, in extremis this silence could lead to two diametrically opposed views regarding Community competence in the field, views which were affected by the attitude that one has towards criminal law – in particular, whether one considers that criminal law is a special case and should be treated differently from economic law. Those in favour of Community competence to define criminal offences and impose criminal sanctions argued that criminal law should not be distinguished from other fields of law and that the Community should have powers to interfere in one way or another in Member States’ decisions in criminal matters in order to safeguard the integrity of the Community legal order. Those who were more sceptical argued that the criminal law is a special case. It is inextricably linked with state sovereignty and deals with sensitive areas such as the relationship between the individual and the state. They argued that any

28 ibid para 74, referring to Case 80/86, Kolpinghuis Nijmegen [1987] ECR 3969 and Case C-60/02, X [2004] [2004] ECR I-651. 29 Tridimas (n 6) 264–65. 30 See in particular art 82(2) TFEU on measures on criminal procedure and art 83(1) and (2) TFEU with regard to substantive criminal law. 31 See section VI below. 32 This is to distinguish criminal offences and sanctions (the object of this analysis) from Community administrative offences or sanctions (which may, as it has been argued, in fact be criminal sanctions on occasions). The latter will not be examined here. For commentary on administrative offences and sanctions and their potential relationship with EC/EU criminal law, see, inter alia, Harding (n 2); P-A Albrecht and S Braum, ‘Deficiencies in the Development of European Criminal Law (1999) 5 European Law Journal 293.

96  Substantive Criminal Law conferral of competence in criminal matters by Member States to the Community must be express in the Treaties and that intervention in criminal matters does not sit well with the character of the Community as a primarily economic space.33

A.  Competence Disputes The debate regarding the existence and extent of Community competence in the field of criminal offences and sanctions took the form of inter-institutional battles in the proposal and negotiation of Community legislation touching upon criminal law, with the European Commission arguing on a number of occasions that the Community does have competence in the field in order to ensure the effective application of Community law. A prime example of such stance before the entry into force of the Maastricht Treaty (which via the third pillar introduced an express Union – but not a Community – competence to adopt legislation in criminal matters) has been the negotiation of the first Money Laundering Directive, which was eventually adopted in 1991.34 The Community institutions, bound by commitments undertaken under the 1988 UN Convention on drug trafficking and the 1990 Financial Action Task Force (FATF) Recommendations, initiated a process of negotiation of a Community instrument aimed at fighting money laundering – an instrument which should involve, in accordance with the preceding international standards, some degree of criminalisation of money laundering. Given both its aim to fight crime and the need to criminalise money laundering, the proposal for an EC Directive in the field raised the twofold issue of whether the EC Treaty contained an appropriate legal basis for such an instrument, and whether, even if such legal basis was found (in the event, internal market and free movement legal bases were used),35 the Community had competence to criminalise money laundering and impose criminal sanctions for such offence(s).36 In its original proposal, the Commission proposed the criminalisation of money laundering, arguing that the use of criminal law would ensure the effectiveness of Community law.37 The Council, however, was not ready for

33 See V Mitsilegas, ‘Constitutional Principles of the European Community and European Criminal Law’ (2006) 8 European Journal of Law Reform 301, 302; see also Wasmeier and Thwaites (n 2), who argue that in this context, criminal law should not be viewed as a separate Community policy (like the internal market, the environment etc), but as a field of law which can horizontally advance the Community objectives. 34 Council Directive 91/308/EEC of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering [1991] OJ L166/77. 35 Money laundering has been an example where the need for custodial penalties was accepted by the Commission in order to ensure the smooth functioning of the internal market. On this aspect and the broader debate on the use of penalties in the internal market context, see European Commission, ‘Communication on the Role of Penalties in Implementing Community Internal Market Legislation’ COM (1995) 162 final, Brussels, 3 May 1995. 36 For a detailed discussion of both aspects, see V Mitsilegas, Money Laundering Counter-measures in the European Union (Kluwer Law International, 2003) ch 3. 37 [1990] OJ C106, 28 April, 6. According to the Preamble of the proposal, ‘making money laundering a criminal offence in the Member States, although it goes beyond the scope of the financial system, constitutes a necessary condition for any action to combat this phenomenon and in particular to permit cooperation between financial institutions or banking supervisors and judicial authorities’ (recital 10). In evidence to the House of Lords (then) Select Committee on the European Communities, the Commission justified the choice for criminalisation, stating that ‘the Community was competent to impose obligations on Member States to carry out

The Constitutional Politics of Criminalisation before Lisbon  97 the conferral of such competence to the Community and the compromise reached in the final text was that money laundering would be ‘prohibited’ in Member States. This wording – which was repeated in the second and third Money Laundering Directives adopted in 2001 and 2005 respectively, long after the third pillar was introduced (which would have allowed the adoption of EU legislation criminalising money laundering) – has led to a de facto criminalisation of money laundering in all EU Member States.38 The introduction of an EU competence in criminal matters in Maastricht in the third pillar did not change the legal framework regarding criminal law and Community law, with the EC Treaty remaining silent regarding action in criminal matters. If anything, the introduction of the third pillar could strengthen the argument that the Community has no competence to define criminal offences and impose criminal sanctions, as such competence is expressly attributed (and thus limited to) the EU in the third pillar. However, the European Commission continued to press for the adoption of first pillar criminal law measures, which it deemed necessary to achieve the effectiveness of Community law. A key focus of the Commission’s effort has been the fight against fraud relating to the Community budget, which was perceived as a quintessential ‘Community’ interest necessitating criminal law harmonisation in the first pillar. In the second half of the 1990s, the Commission funded an academic study which proposed a so-called corpus juris to fight fraud against the Community financial interests. The corpus juris was essentially a mini criminal code, including definitions of a series of criminal offences (for instance, fraud, corruption and money laundering), as well as provisions on criminal procedure (including the controversial proposal for the establishment of a European Public Prosecutor).39 It could thus be seen as an attempt to ‘unify’ rather than harmonise Community criminal law on the subject.40 The idea was floated to adopt part or all of the corpus juris under a first pillar legal basis – in particular, Article 280(4) EC, which envisages the adoption of Community measures to prevent and fight fraud, and notwithstanding the fact that according to the same

penal action, if it deemed that this was necessary to obtain the full effect of the measures which it adopted’. House of Lords Select Committee on the European Communities, Money Laundering, session 1990–91, HL Paper 6, 29. For further analysis, see Mitsilegas (n 36) 58–63. 38 The Directive definitions were eventually linked with provisions contained in parallel EU third pillar measures on confiscation – see the 2001 Framework Decision on money laundering and confiscation (2001/500/JHA OJ L182, 5 July 2001, 1). On the situation after the adoption of the third Money Laundering Directive, see V Mitsilegas and B Gilmore, ‘The EU Legislative Framework against Money Laundering and Terrorist Finance: A Critical Analysis in the Light of Evolving Global Standards’ (2007) 56 International and Comparative Law Quarterly 119. 39 On the corpus juris, see inter alia: M Delmas-Marty and J Vervaele, The Implementation of the Corpus Juris in the Member States, vol 1 (Intersentia, 2000); M Delmas-Marty, ‘Guest Editorial: Combating Fraud – Necessity, Legitimacy and Feasibility of the Corpus Juris’ (2000) 37 Common Market Law Review 247; M Delmas-Marty, ‘Towards an Integrated European Criminal Law’ (2004–05) 7 Cambridge Yearbook of European Legal Studies 17; J R Spencer, ‘The Corpus Juris Project and the Fight against Budgetary Fraud’ (1998) 1 Cambridge Yearbook of European Legal Studies 77; JR Spencer, ‘The Corpus Juris Project: Has it a Future?’ (1999) 2 Cambridge Yearbook of European Legal Studies 87. For a critical commentary, see M Kaiafa-Gbandi, ‘Das Corpus Juris und die Typiesierung des Strafphänomens im Bereich der Europäischen Union’(1999) 82 KritV 162; and I Manoledakis, ‘Das Corpus Juris als falsche Grundlage eines gesamteuropäischen Strafjustizsystems’ (1999) 82 KritV 181. 40 On the unification of criminal law in Europe in the context of fraud, see Delmas-Marty, ‘Guest Editorial’ (n 40).

98  Substantive Criminal Law provision, these measures ‘shall not concern the application of national criminal law or the national administration of justice’.41 The corpus juris was not integrated as such in the Community legal order, although some harmonisation of substantive criminal law has taken place in the third (and in the case of money laundering, as stated above, in the first) pillar and the idea for the establishment of a European Public Prosecutor is still alive and was included in the Lisbon Treaty.42 Criminal law measures on fraud were adopted in the form of a third pillar Convention and subsequent Protocols.43 This did not stop the Commission from putting forward a proposal for first pillar legislation aimed at harmonising Member States’ criminal law in order to tackle fraud against the Community’s financial interests in 2001.44 According to the Commission, the third pillar anti-fraud legislation in place had not achieved satisfactory criminal law harmonisation, not least because it was in the form of a Convention, which results in delays in ratification. According to the Commission, Community law would help achieve appropriate harmonisation, and the EC Treaty contained a suitable legal basis for aligning substantive criminal law in the Member States as regards the definition of fraud, corruption and money laundering affecting Community financial interests as well as the applicable criminal penalties (Article 280 EC). The Commission brushed aside the exceptions in Article 280(4) EC by stating that: [T]he exception does not refer to the whole of criminal law in general but specifically to two aspects of it, namely ‘the application of national criminal law’ and ‘the national administration of justice’. Since, in principle, Article 280(4) covers all measures in the area of preventing and curbing fraud, it is in this context that the second sentence specifies exceptions to this, so given the general purpose of the article, the second sentence can but be interpreted narrowly. The wording and the legal context of the article do not preclude the adoption of measures setting certain harmonisation objectives of a criminal type, provided that they do not ‘concern the application of national criminal law or the national administration of justice’.45

This reasoning, which attempted somewhat artificially to distinguish between ‘national’ and ‘Community’ criminal law,46 did not convince Member States and the Directive 41 A similar exception can be found in art 135 EC concerning customs cooperation. Members of the Group drafting the Corpus Juris held a variety of different views on whether the Community had competence to adopt the instrument via an art 280(4) legal basis; for an overview, see Delmas-Marty and Vervaele (n 39) 369–94. 42 See ch 8. 43 See the 1995 Fraud Convention [1995] OJ C316/49) and its Protocols of 1996 (First Protocol [1997] OJ C151/1) and 1997 (Second Protocol [1997] OJ C221, 19 July 1997/12). For an analysis, see S White, Protection of the Financial Interests of the European Communities: The Fight against Fraud and Corruption (Kluwer Law International, 1998). 44 ‘Proposal for a Directive of the European Parliament and of the Council on the criminal-law protection of the Community’s financial interests’ COM (2001) 272 final, Brussels 23 May 2001. 45 ibid 5–6. See the analysis in GJM Corstens, ‘Criminal Law in the First Pillar?’ (2005) 11 European Journal of Crime, Criminal Law and Criminal Justice 131. 46 In this sense, the Commission seems to reflect the view of K Tiedemann that art 280(4) guarantees the application of national criminal law ‘without excluding a complementary Community criminal competence going further than the legislation of a Member State’ (in Delmas-Marty and Vervaele (n 39) 386; see also on this point the comments of a number of other contributors, in particular Delmas-Marty, Grasso and Spencer – the latter two are particularly sceptical of the appropriateness of art 280 to act as a legal basis for the Corpus Juris).

The Constitutional Politics of Criminalisation before Lisbon  99 proposal was not taken forward by the Council.47 A similar (but not identical) feat awaited another proposal put forward by the Commission in 2001 aiming at harmonising criminal law by a first pillar measure – a Directive on the protection of the environment through criminal law.48 The Commission justified the adoption of criminal law via the first pillar as necessary to provide for sufficiently dissuasive and effective penalties ensuring the full compliance of Member States with Community law protecting the environment.49 Criminal law was thus used in order to ensure the effectiveness of Community law, with the Community having competence to legislate since the objective was environmental protection – with the proposed legal basis being Article 175 EC on environmental protection. As in the draft Fraud Directive, Member States did not take up the proposal for a first pillar criminal law measure in the Council. However, unlike the fraud case (where some form of criminalisation existed in the third pillar), Member States in this case opted to legislate on environmental crime, but in the third (and not the first) pillar – two years later, the Council adopted a Framework Decision on environmental crime.50 Thus far, we have examined three different outcomes to Commission proposals for Community law harmonising criminal law: cases where criminal law harmonisation was dictated by Community law de facto but not de jure (with Community law referring to prohibition and not expressly to criminalisation (the Money Laundering Directives); cases where the Commission proposal failed to be adopted by the Council (the draft Fraud Directive); and cases where the Council opted to legislate in the third – and not the first – pillar (the Environmental Crime Framework Decision). In a fourth scenario, first pillar legislation has been combined with parallel third pillar legislation, with the criminal law aspects moved to the third pillar, but defined by reference to the first pillar. The situation has arisen in particular post-Amsterdam, when asylum and immigration matters were transferred from the third to the first pillar, and the issue of the correct legal basis and the existence of competence in criminal matters has arisen in the context of negotiations of measures in the field of irregular migration. A legal basis for the adoption of such measures could be found in the first pillar (in Title IV), but it was unclear whether such first pillar law could include criminal offences and sanctions.51 The compromise reached in this instance (concerning legislative action on human smuggling), in the light of Member States’ reluctance to confer to the Community competence in criminal matters, was to adopt two parallel and interlinked measures: a first pillar Directive describing the regulated conduct, and a third pillar Framework Decision stipulating that the conduct described in the first pillar would be

47 Although the European Parliament commented on the proposal at first reading, leading to an amended Commission proposal – COM (2002) 577 final, Brussels, 16 October 2002. 48 COM (2001) 139 final, Brussels 13 November 2001. 49 ibid 1. For a detailed analysis of the proposal, see Corstens (n 45) 137–39. 50 [2003] OJ L29/55. 51 The umbrella provision of Title IV, art 61, states that the Council shall adopt, inter alia, ‘measures in the field of police and judicial co-operation in criminal matters aimed at a high level of security by preventing and combating crime within the Union in accordance with the provisions of the Treaty on European Union’. Moreover, as Peers points out, art 63(3)(b) does not contain an exception along the lines of the wording in arts 280(4) and 135 EC.

100  Substantive Criminal Law treated as a criminal offence and determining criminal sanctions.52 This strategy53 was repeated subsequently in legislation relating to other first pillar policies: a Directive and accompanying Framework Decision were adopted regarding the criminalisation of ship-source pollution.54 However, the legality of the adoption of third pillar legislation in both the ship-source pollution and the environmental crime cases was challenged by the Commission, leading to the Court of Justice to intervene in two cases with substantial constitutional implications.

B.  The Environmental Crime Case The European Commission decided to react to the Council’s choice to adopt criminal legislation in matters deemed to be relating to the achievement of Community objectives by challenging the legality of the adoption of the relevant third pillar law. This led initially to the intervention by the Court of Justice, which was called upon to rule on the legality of the adoption of the Framework Decision on environmental crime and gave a ruling with major implications for EU criminal and constitutional law.55 The Commission, supported by the European Parliament, instituted an action for annulment of the Framework Decision, arguing that the third pillar measure was adopted on the wrong legal basis. It should have been adopted according to the Commission under the first pillar, as the protection of the environment is a first pillar objective. The Commission argued that while the Community did not have a general competence in criminal matters, it had competence to prescribe criminal penalties for infringements of Community environmental protection legislation if it took the view that that is a necessary means of ensuring that the legislation is effective – adding that the harmonisation of national criminal law was designed to be an aid to the Community policy in question.56 Along with this argument – based on the view that criminal law is merely an auxiliary, ‘horizontal’ means of achieving Community objectives – the Commission evoked Member States’ duty of loyal cooperation and the general principles of effectiveness and equivalence constantly present in the Court’s case law.57 52 Council Directive 2002/90/EC of 8 November 2002 defining the facilitation of unauthorised entry, transit and residence [2002] OJ L328, 5 December, 4, and the corresponding Framework Decision, at 1. For an analysis, see V Mitsilegas, J Monar and W Rees, The European Union and Internal Security,(Palgrave Macmillan, 2003) ch 4. 53 Vervaele calls this a ‘cohabitation forcée’ – see ‘The European Community and Harmonization of the Criminal Law Enforcement of Community Policy’ (2006) 3–4 European Criminal Law Associations’ Forum 88. Vervaele also refers to the ‘warding off ’ of Commission first pillar legislative proposals by Member States, and ‘hijacking’ of proposals such as the environmental crime Directive by Member States and their adoption in the third pillar. 54 [2005] OJ L255/11 and 164. 55 Case C-176/03, Commission v Council [2005] ECR I-7879. For case commentaries, see C Tobler, ‘Case Note’ (2006) 43 CML Rev 835; S White, ‘Harmonisation of Criminal Law under the First Pillar’ (2006) 31 European Law Review 92; M Böse, ‘Die Zustaendigkeit der Europäischen Gemeinschaft fuer das Strafrecht Zugleich Besprechung von EuGH, Urteil vom 13.9.2005’ (2006) Goldtammer’s Archiv 211; and E HerlinKarnell, ‘Commission v Council: Some Reflections on Criminal Law in the First Pillar’ (2007) 13 European Public Law 69. See also Labayle (n 2) 379–428. 56 Commission v Council (n 55) para 19. 57 ibid para 20. A similar argument was advanced in 2003 by the European Parliament Legal Affairs Committee in its Report on legal bases and compliance with Community law (A5–0180/2003, 22 May 2003,

The Constitutional Politics of Criminalisation before Lisbon  101 The Council, supported by no fewer than 11 Member States,58 opposed this view. The Council and the vast majority of the Member States59 argued that as the law currently stood, the Community does not have power to require Member States to impose criminal penalties in respect of the conduct covered by the Framework Decision.60 Not only was there no express conferral of power in that regard, but, given the considerable significance of criminal law for the sovereignty of Member States, there were also no grounds for accepting that this power can have been implicitly transferred to the Community at the time where substantive competences, such as those exercised under Article 175 EC, were conferred on it.61 Moreover, Articles 135 and 280 EC, which expressly reserved States the application of national criminal law and the administration of justice to the Member, confirmed that interpretation. It was also borne out by the fact that the TEU devotes a specific title to judicial cooperation in criminal matters, which expressly confers competence in criminal matters on the EU.62 Finally, the Council argued, the Court never obliged Member States to adopt criminal penalties and legislative practice was in keeping with that interpretation.63 The Court found for the Commission and annulled the Framework Decision. It used Articles 47 and 29 TEU, according to which nothing in the TEU is to affect the EC Treaty.64 The Court then focused on the environment as a Community objective. It confirmed that the environment constitutes one of the essential objectives of the Community; it highlighted that, according to settled case law, the choice of legal basis must rest on objective factors that are amenable to judicial review, including in particular the aim and the content of the measure, and stated that the aim of the instrument was the protection of the environment and that the Framework Decision established a list of particularly serious environmental offences.65 The essential character of environmental protection as a Community objective is crucial for determining whether criminal law can be used to achieve this objective in the Community pillar. According to the Court, while as a general rule, neither criminal law nor the rules of criminal procedure fall within EC competence, this does not prevent the EC legislature, when the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences, from taking measures which relate to the criminal law of the Member States which it considers necessary in order to ensure that the rules that it lays down on environmental protection are fully effective.66 The Court found that Articles 1–7 of the Framework Decision (which relate Rapporteur: I Koukiadis). The Committee used art 10 EC on loyal cooperation to argue in favour of the ­existence of EC competence in criminal matters in certain circumstances. However, it took a seemingly more limited view compared to that of the Commission, arguing that EC competence to require the Member States to make provision for criminal penalties must be limited to cases in which the Community legislator considers that compliance with Community law can only be safeguarded by such means (point 5). 58 Denmark, Germany, Greece, Spain, France, Ireland, the Netherlands, Portugal, Finland, Sweden and the UK. 59 With the exception of the Netherlands, which supported the Council but via a different reasoning. 60 Commission v Council (n 55) para 26. 61 ibid para 27. 62 ibid paras 28 and 29. 63 ibid paras 31 and 32. 64 ibid para 38. 65 ibid paras 41 and 45–47. 66 ibid paras 47–48.

102  Substantive Criminal Law to the environmental crime offences) have as their main purpose the protection of the environment and they could have been properly adopted on the basis of Article 175 EC.67 This finding was not called into question by the existence of Articles 135 and 280(4) EC.68 However, the Court added that although Articles 1–7 of the Framework Decision determine that certain conduct which is particularly detrimental to the environment is to be criminal, they leave to the Member States the choice of the criminal penalties to apply (although these must be effective, proportionate and dissuasive).69 This was a seminal ruling, reminiscent of the Court’s landmark judgments in the 1960s on primacy and direct effect. In the face of a significant number of Member States, and the wording of the Treaties which confer express powers to the EU to act on criminal matters, while being silent on the role of the Community, the Court decided to interpret the Treaties creatively in order to expressly establish a Community competence to act in criminal matters. The timing of the judgment is noteworthy, as it came at a time when the Constitutional Treaty – which would put an end to the pillar structure and in effect would (with some exceptions) fully ‘communitarise’ the third pillar – was ‘frozen’, having been rejected by France and the Netherlands. This would effectively mean that criminal law harmonisation – if confined to the third pillar only – would necessitate unanimity of the then 25 (and, from 1 January 2007, 27) Member States and would require mere consultation of the European Parliament, thus potentially leading to legislative paralysis and the exacerbation of the democratic deficit in criminal matters. In the light of this timing, a further parallel could be drawn here with the 1960s, where the Court pushed European integration in the face of legislative stagnation. The starting point in the Court’s reasoning in ascertaining the conferral of criminal law competence to the Community was the focus on the effect of Articles 29 and 47 TEU, which state respectively that third pillar action must be without prejudice to the powers of the European Community and that nothing in the TEU will affect the Treaties establishing the European Communities. The Court used these provisions to strengthen the Community pillar and to address its centrality and primacy over the intergovernmental pillars. It thus sent a strong signal that third pillar action must not jeopardise Community action.70 Having asserted the primacy of and the need to ensure the integrity of the Community pillar, the Court did not take up the Commission’s reference to the principle of loyal cooperation and did not take up the Advocate General’s extensive analysis of the specific need for high-level protection of the environment.71 Instead, it chose to focus specifically and extensively on an analysis justifying the conferral to the 67 ibid para 51. 68 ibid para 52. The Court added that it is not possible to infer from those provisions that, for the purposes of the implementation of environmental policy, any harmonisation of criminal law, even as limited as that resulting from the Framework Decision, must be ruled out even where it is necessary in order to ensure the effectiveness of Community law. 69 ibid para 49. In this context, the Court seems to follow the distinction made between criminalisation and the choice of the appropriate penalty in the Opinion of AG Ruiz-Jarabo Colomer, who stated that ‘it seems clear that the response to conduct which seriously harms the environment must be a criminal one but, in terms of punishment, the choice of the penalty to admonish that conduct and to ensure the effectiveness of Community law is the province of the Member States’ ((2005) ECR I-7879, para 84). 70 Manacorda has called this a censure by the Court of ‘prohibited intergovernmentalisation’ (intergouverementalisation prohibée): S Manacorda, ‘Judicial Activism dans le cadre de l’espace de liberté, de justice et de sécurité de l’Union européenne’ [2005] Revue de science criminelle et du droit pénal comparé 956. 71 On this point, see H Labayle, ‘Architecte ou spectatrice? La Cour de justice de l’Union dans l’espace de liberté, sécurité et justice’ (2006) 42 Revue trimestrielle du droit européen 1, 10–11.

The Constitutional Politics of Criminalisation before Lisbon  103 Community of a criminal law competence on the basis of the need to ensure the effective achievement of Community objectives. In this respect, the fact that the case involved the protection of the environment – an ‘essential’ Community objective according to the Court – may have been of particular relevance, notwithstanding the fact that the Court did not focus on environmental protection to such a great extent as had the Advocate General.72 What is significant in this context is that the Court did not hesitate to apply its reasoning on the effective achievement of Community objectives in the field of criminal law, viewing criminal law as a means to an end rather as a special field of law where special rules must apply. Criminal law will fall within Community competence, like any other field of law, if Community objectives are at stake. This conclusion may appear striking bearing in mind the express exclusion of the application of national criminal law in matters relating to customs cooperation and fraud by the EC Treaty (Articles 135 and 280(4)) and the express conferral of competence in criminal matters on the EU (and not the Community).73 However, it was not clear whether the judgment has established in principle that the Community may, under certain circumstances, have competence in the field of criminal law in general or that it is limited to environmental crime only.74 Questions regarding the extent and scope of Community competence in criminal matters still remained.75 The Court did not specify whether Community competence in criminal law is limited to the definition of criminal offences or also extends to the imposition and precise definition of criminal sanctions.76 The Court mentions that while the annulled Framework Decision criminalised conduct that is particularly detrimental to the environment, it left the choice of the criminal penalties to apply to the Member States.77 However, it was not clear if this meant that the Community was granted powers to criminalise only or also to impose criminal sanctions, at least in the environmental crime field.78 It seems paradoxical – and potentially incoherent – to confer competence to define criminal offences 72 On the significance of environmental protection in the development of the Court’s case law, see F Jacobs, ‘The Role of the European Court of Justice in the Protection of the Environment’ (2006) 18 Journal of Environmental Law 185. 73 For a critical view, see the evidence of Richard Plender to the House of Lords European Union Committee. Plender, who was counsel for the UK in the case, wondered whether the conferral of an implied Community power in criminal law was legitimate in the face of the absence of a subjective intention by Member States to confer such power and the existence of an express EU power in the third pillar. See House of Lords European Union Committee, The Criminal Law Competence of the European Community, 42nd Report, session 2005–06, HL Paper 227, Q1. For the opposite view, see Tobler ((n 55) 851), who argues that the Council seems to forget that the EC Treaty does not confer a catalogue of negative competences. For a view advocating Community action in criminal matters – very much along the lines put forward by the Court – see also Wasmeier and Thwaites (n 2). 74 A very narrow view in this context has been put forward by ECJ Judge Puissochet, who stated before the French Senate that the Court has only said in this case that the Community has competence to oblige Member States to impose criminal sanctions to protect the environment. It has not recognised a Community competence to harmonise criminal law. Sénat, Réunion de la délégation pour l’Union européenne du mercredi 22 février 2006. 75 See also Labayle (n 71) 14 and evidence by Steve Peers to the House of Lords European Union Committee (n 73) Q52. 76 Some authors seem to suggest that Community competence is limited to criminalisation only. See C Haguenau-Moizard, ‘Vers une harmonisation communautaire du droit pénal?’ (2006) 42 Revue trimestrielle du droit européen 377, 384. 77 Commission v Council (n 55) para 49. 78 Wasmeier and Thwaites ((n 2) 634) argue that if a measure specifically aims at a concrete Community objective, particularly at the enforcement of related Community provisions through dissuasive (criminal) sanctions, it may fall within Community competence; however, detailed rules on the type and scale of sanctions would go beyond such an ‘implied power’. In the event of such a situation, one could still have a cross-pillar split.

104  Substantive Criminal Law and impose the criminalisation of certain types of conduct, but to leave the choice of the sanctions to Member States. Moreover, the imposition of a criminalisation requirement to Member States in the first place (which, under the qualified majority voting arrangements of the first pillar, may be outvoted in relation to such a measure) arguably constitutes at least as great a challenge to state sovereignty and the exercise of power in the criminal law sphere as the dictation of the imposition of specific criminal sanctions. A relating issue involved the objectives for the achievement of which the Community has criminal law competence.79 The case involved environmental crime, which, according to the Court, is one of the ‘essential’ objectives of the Community.80 However, it is not clear whether Community competence in criminal matters concerning environmental protection played a part in the Court’s ruling and therefore the Court’s approach regarding the delimitation of EC competence in criminal matters in the future.81 Is the environment a special case? Is Community competence in criminal matters limited when necessary to achieve an ‘essential’ Community objective and, if so, what constitutes such an objective?82 Or, at the other extreme, does EC competence in criminal matters extend to the achievement of any Community objective? Does Community competence extend beyond the effective achievement of Community objectives to the effective achievement of Community policies? Varied interpretations have been put forward by EU institutions in their reactions to the judgment.

C.  Reactions to the Court’s Environmental Crime Judgment Shortly after the Environmental Crime judgment, the Commission published a Communication arguing for a recasting of a number of existing EU measures and proposals, while also stating that it would apply the Court’s test in any future legislative proposals it would table.83 The Commission interpreted the Court’s ruling broadly, arguing that: [F]rom the point of view of subject matter, in addition to environmental protection the Court’s reasoning can therefore be applied to all Community policies and freedoms which involve binding legislation with which criminal penalties should be associated in order to ensure their effectiveness.84 79 And of course whether EC competence in criminal matters could be viewed outside the framework of the achievement of Community objectives. 80 Commission v Council (n 55) para 41. 81 The Court did not hesitate to annul the ‘PNR’ international agreement between the EC and the US on the grounds that the main objective of the agreement (to fight terrorism) was really a third pillar issue: Cases C-317/04 and C-318/04, European Parliament v Council and Commission, ECLI:EU:C:2006:346. For an analysis, see ch 9. 82 The latter question has been posed by Plender (n 73) Q10; and Labayle (n 71) 14. In its Report on the judgment, the French Assembly seems to understand the judgment as limited to the achievement of ‘essential’ objectives. In their view, it is not enough that an objective is listed as such in the EC Treaty, but it must be essential and transversal. See Assemblée Nationale, Rapport d’information sur les consequences de l’arret de la Cour de Justice du 13 Septembre 2005, 25 January 2006, Rapport No 2829, 10. 83 ‘Communication on the implications of the Court’s judgment of 13 September 2005’ COM (2005) 583 final/2, Brussels, 24 November 2005. The European Parliament supported the Commission’s view that a number of EU instruments needed to be recast in the light of the Court’s judgment, but called for a review on a case-by-case basis and urged the Commission not to automatically extend the conclusions of the Court to every other field falling within the scope of the first pillar – Resolution on the consequences of the judgment of the Court of 13 September 2005 (C-176/03 Commission v Council) (2006/2007(INI)), 14 June 2006. 84 ‘Communication on the implications of the Court’s judgment of 13 September 2005’ (n 83) para 8.

The Constitutional Politics of Criminalisation before Lisbon  105 According to the Commission, the Court’s ruling clarified that criminal law provisions required for the effective implementation of Community law are a matter for the first pillar, bringing measures adopted under a dual legal basis in both first/third pillars to an end, with the Commission proposing a quick procedure of recasting existing texts it deems affected by the environmental crime judgment;85 third pillar legislation would only cover measures relating to police and judicial cooperation in criminal matters more broadly.86 However, the reaction by Member States to the Commission Communication was rather lukewarm, with a number of governments taking the view that future Commission proposals should be considered on a case-by-case basis.87 This cautious approach was confirmed at the February 2006 Justice and Home Affairs Council, which agreed merely on a procedure for the examination of future Commission legislative proposals containing provisions on criminal law.88 The Commission sought to further enhance the Community’s competence in criminal matters by putting forward in 2006 – and against the backdrop of the ‘freezing’ of the ratification process of the Constitutional Treaty (which would abolish the pillars) – a proposal for moving third pillar matters to the first pillar by using the so-called ‘passerelle’ provision of Article 42 TEU.89 The Commission called for the use of Article 42 TEU (and the move towards the ‘Community method’ of decision-making in Title IV) on both democracy and efficiency grounds. It stated that: Action and accountability in some areas of policy making are hindered by the current decision making arrangements which lead to deadlock and lack of proper democratic scrutiny. Existing Treaty provisions (Articles 42 of the Treaty on the European Union and 67(2) of the Treaty establishing the European Community) allow for changes to these arrangements, which would improve decision taking in the Council and allow proper democratic scrutiny by the European Parliament; and the enhancement of the role of the Court of Justice.90

85 For a list of measures needing to be recast, see the annex to the Communication. These include dual instruments such as those on the facilitation of unauthorised entry, transit and residence mentioned above, but also the adoption in the first pillar of measures thus far adopted under the third pillar (such as the Framework Decision on corruption in the private sector – OJ L192, 31 July 2003 54), and the adoption in the first pillar of proposals which had failed in the Council (such as the Proposal for a Directive on the criminal law protection of the Community’s financial interests, also mentioned at n 36 above). 86 ‘Communication on the implications of the Court’s judgment of 13 September 2005’ (n 83) para 11. 87 See, eg, the reaction of the UK government: in the Explanatory Memorandum to the Westminster ­European Union Committees regarding the Commission Communication, it was noted that the Commission’s proposal to simply repeal the offending third pillar provision and re-enact it in new first pillar instruments was not favoured by the government ‘because we consider that any new provisions relating to the criminal law introduced under the First Pillar should be considered on a case by case basis’. Explanatory Memorandum by Ms Fiona MacTaggart (then Parliamentary Under Secretary of State, Home Office) of 16 January 2006, para 17. 88 According to the Council conclusions, in these cases, the presidency will draw the attention of COREPER II and, following the latter’s guidance, will refer the proposal to an ‘appropriate’ working party for examination, taking into account all the relevant factors, such as its content, aim and required expertise. The opportunity for Justice and Home Affairs experts to given input into the negotiations of criminal law proposals should be ensured. Doc 6077/06 (Presse 38), 10. 89 This states that ‘the Council, acting unanimously on the initiative of the Commission or a Member State, and after consulting the European Parliament, may decide that action in areas referred to in Art 29 [the umbrella provision for the third pillar] shall fall under Title IV of the Treaty establishing the European Community, and at the same time determine the relevant voting conditions relating to it. It shall recommend the Member States to adopt that decision in accordance with their respective constitutional requirements’. 90 Communication from the Commission to the European Council, ‘A Citizens’ Agenda: Delivering Results for Europe’ COM (2006) 211 final, Brussels, 10 May 2006, 6.

106  Substantive Criminal Law The use of the passerelle provision of the TEU was also strongly backed by Commission President Barroso, who placed greater emphasis on security, which he stated ‘is increasingly becoming a concern of people in Europe’ and that ‘the most effective response in the field of security is a European response’, ‘with or without a Constitution’.91 However, Member States again appeared rather sceptical of the Commission’s initiative. In the Tampere Council of September 2006, no fewer than 14 Member States rejected the proposals to use the ‘passerelle’ provision92 and by the end of 2006, the debate was deemed to be concluded against the use of Article 42 TEU.93 Following its Communication reacting to the Court’s environmental crime ruling, and notwithstanding the cautious reaction by the Council and the passerelle setback, the Commission tabled three major first pillar proposals involving Community action on the definition of criminal offences and the imposition of criminal sanctions – all of which are currently under negotiation. The first Commission initiative of this kind was a proposal for a Directive on criminal measures aimed at the enforcement of intellectual property rights.94 The proposal replaced earlier Commission proposals following the ‘dual’ model of a first pillar Directive and a parallel third pillar Framework Decision on the enforcement of intellectual property rights, both of which were tabled prior to the Court’s ruling.95 The legal basis of the proposal was Article 95 EC (on the internal market) – the draft contained not only detailed provisions on criminal sanctions, but also provisions on confiscation, joint investigation teams and the initiation of criminal proceedings96 – something that constituted a very broad interpretation of the scope of Community competence and that arguably fell outside Community criminal law competence as defined by the Court. Subsequently, the Directive was not adopted. The second proposal, as expected, was a proposal for a Directive on the protection of the environment through criminal law.97 The proposal addressed specifically the Court’s ruling on environmental crime, with the Commission aiming at recasting the proposal in the light of its interpretation of the judgment. The legal basis of the proposal is Article 175(1) on environmental protection. The proposal included detailed definitions of offences and detailed provisions on criminal sanctions, both for natural and legal persons (but, unlike the intellectual property rights proposal, no provisions on criminal procedure). In negotiations, the Justice and Home Affairs Council accepted that the Directive ‘will probably be one of the first sets of legal instruments by means of which criminal law arrangements can be made in the context of the first pillar, and as such will to some extent serve as an example’.98 The Council noted that fundamental issues need 91 JM Barroso, ‘Strengthening a Citizens’ Europe’, speech, Bélem Cultural Centre, 8 May 2006 (speech/06/283), www.europa.eu. 92 ‘EU Plan to Fight Terror in Tatters’ Financial Times (23–24 September 2006). 93 See House of Lords European Union Committee, The Criminal Law Competence of the EC: Follow-up Report, 11th Report, session 2006–07, HL Paper 63. See also ch 1. According to Geoff Hoon, the then UK Minister for Europe, the situation with regard to the use of art 42 was ‘a matter of intellectual inquiry only’ (para 4). 94 COM (2006) 168 final, Brussels, 26 April 2006. 95 COM (2005) 276 final. The recasting of the proposals was mentioned in the Commission’s post-Environmental Crime case Communication. 96 Articles 6–8 of the Commission Proposal. 97 COM (2007) 51 final, Brussels 9 February 2007. 98 Conclusions of the Justice and Home Affairs Council of 12–13 June 2007, Council Doc 10267/07 (Presse 125) 41.

The Constitutional Politics of Criminalisation before Lisbon  107 to be clarified regarding both the scope of the criminal offences and the rule on criminal sanctions, with discussions on the latter postponed until the Court had ruled on the second major case concerning the extent of Community criminal law competence on ship-source pollution.99 In the meantime, concerns have been expressed that the broad list of proposed criminal offences exceeded the scope of Community competence after the environmental crime case.100 Similar concerns have been expressed regarding the provisions criminalising participation in the offences set out in the draft Directive and setting penalty levels.101 In the end, negotiations resulted in the adoption of a first pillar Directive on environmental crime in 2008.102 Another first pillar proposal containing criminal law provisions was the Directive on sanctions against employers of illegally staying third-country nationals.103 The proposed legal basis was Article 63(3)(b) EC (measures on illegal immigration and illegal residence). The main avenue of enforcement of employers’ duties under the Directive was administrative sanctions. However, the Directive also provided for the criminalisation of serious cases of non-compliance with its provisions and introduces criminal sanctions for such cases.104 The introduction of criminal offences and sanctions (which, unlike the earlier examples, is not the sole focus of the Commission proposal) was justified by the Commission on the grounds that administrative fines may not have a sufficiently dissuasive effect in certain cases.105 The Directive was eventually adopted before the entry into force of the Lisbon Treaty in the first half of 2009.106 Given the uncertainty as to the precise extent of Community criminal law competence following the Court’s judgment on the environmental crime case, all three proposals mentioned above have been subject to rigorous scrutiny. The debate focused on the content of some of these proposals, in particular the extent of criminalisation and the levels of proposed criminal sanctions. It is also interesting to look at the legal bases of the proposals – the protection of the internal market and the environment, and action against illegal immigration – and link them with the relevant objectives of the Community in order to address the question of whether these objectives constitute ‘essential’ objectives justifying the employment of Community criminal law for their achievement. However, these questions of competence cannot be disassociated from questions of the necessity of criminalisation and severity of the criminal sanction envisaged. On both the intellectual property rights107 and the employers’

99 ibid 42. 100 See House of Commons European Scrutiny Committee, 14th Report, session 2006–07, 20–21. 101 European Parliament Committee on Legal Affairs, ‘Working Document on Protection of the ­Environment through Criminal Law’, Rapporteur: H Nassauer, 12 June 2007, PE 390.607v02–00. 102 Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law [2008] OJ L328/28. 103 COM (2007) 249 final, Brussels, 16 May 2007. 104 ibid arts 10–11. See also the specific provisions on the liability of legal persons in arts 12–13. 105 ibid 10. 106 Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals [2009] OJ L168/24. 107 See the comments by the Law Society of England and Wales in August 2006, where concern was expressed that the introduction of broad criminal sanctions may upset the balance that exists between the use of civil and criminal proceedings (para 19). The Justice and Home Affairs Council of 5–6 October 2006 noted in this

108  Substantive Criminal Law sanctions proposals,108 concerns were raised regarding the suitability of the criminal law to regulate the matter. Concerns relating to both legality and overcriminalisation have led to difficulties in the negotiations of both the irregular employment and intellectual property proposals.109

D. The Ship-Source Pollution Case110 Further clarification on the scope of Community criminal law competence has been expected from the Court of Justice on the ship-source pollution case. The subject matter of this case is very similar to the environmental crime case. The Commission challenged the legality of the adoption of a Framework Decision on ship-source pollution, arguing that parts of the measure should have been adopted under the first pillar.111 In this case, the Framework Decision was accompanied by a parallel first pillar Directive defining the conduct that was criminalised by the Framework Decision. Given the timing and constitutional significance of the case, no fewer than 20 Member States intervened in support of the Council and against the Commission’s challenge. The main arguments of the parties were described in detail in the Opinion of Advocate General Mazák.112 The Commission argued that Articles 1–10 of the Framework Decision could have been adopted on the basis of Article 80(2) EC relating to the Community common transport policy and that, consequently, the entire Framework Decision (due to its indivisibility) infringes Article 47 TEU.113 In a broad interpretation of the environmental crime judgment and again stressing the need to ensure the effectiveness of Community law, the Commission was of the view that principles that the Court laid down in its environmental crime judgment apply ‘in their entirety to other Community policies’ such as the transport policy, arguing that the importance of environmental protection in the Community and its particular characteristics (such as its ‘transversal’ nature) had in fact no decisive bearing on the environmental crime

context that criminal law is considered as a means of last resort and that further scrutiny is needed regarding the need for criminal measures on the EU level in order to protect intellectual property rights. Council Doc 13068/06 (Presse 258) 22. 108 See S Carrera and E Guild, An EU Framework on Sanctions against Employers of Irregular Immigrants, CEPS Policy Brief No 140, Brussels, CEPS, August 2007, https://www.ceps.eu/ceps-publications/ eu-framework-sanctions-against-employers-irregular-immigrants-some-reflections-scope. 109 See, inter alia, J Brunsden, ‘Member States Split over Commission Powers’, European Voice (28 February 2008); J Brunsden, ‘France Seeks Quick Deal to Penalise Employment of Illegal Immigrants’, European Voice (17 July 2008); and R Goldirova, ‘EU States Clash over Penalties for Hiring Illegal Immigrants’, EU Observer, 24 July 2008. See also the rather generally worded conclusions of the July 2008 Justice and Home Affairs Council: Council Doc 11653/08 (Presse 205) 13. 110 For an earlier version, focusing on the Opinion of the Advocate General, see V Mitsilegas, ‘The Competence Question: The European Community and Criminal Law’ in E Guild and F Geyer (eds), Security versus Justice. Police and Judicial Co-operation in the European Union (Ashgate, 2008) 153–70. 111 Case C-440/05, Commission v Council [2007] ECR I-9097. For a commentary, see S Peers, ‘The European Community’s Criminal Law Competence: The Plot Thickens’ (2008) 33(3) European Law Review 399. 112 AG Opinion delivered on 28 June 2007. 113 Commission v Council (n 111) para 27. A similar view was put forward by the European Parliament, which stressed the similarities with the environmental crime case and argued that the Framework Decision in question is also concerned with environmental protection (paras 32–35).

The Constitutional Politics of Criminalisation before Lisbon  109 decision in principle.114 According to the Commission, the Community legislature may provide for criminal measures so far as is necessary to ensure the full effectiveness of Community rules and regulations. Such action may be based only on implied Community powers which are determined by the need to guarantee compliance with Community measures, but are not confined to criminal law measures in a certain area of law or of a certain nature.115 Therefore, according to the Commission, the Community was competent to define the type and level of penalties if and insofar as it is established that this is necessary to ensure the full effectiveness of a Community policy.116 The Council on the other hand defended the choice of the third pillar instrument (supported by all intervening Member States) and denied that criminal law measures should have been adopted in the first pillar under Article 80(2) EC. The Council’s strategy was primarily to attempt to differentiate between the ship-source pollution and the environmental crime cases. According to the Council, it is undisputed Article 80(2) EC (on transport) is the correct legal basis for the adoption of the first pillar Directive, even if it also pursues objectives relating to the environmental protection.117 The common transport policy lacks the specific characteristics and importance of environmental protection; moreover, the Community powers to act on transport matters depend on the decision of the Council.118 In the alternative, the Council argued that the provisions of the Ship-Source Pollution Framework Decision differed from those of the third pillar measure on environmental crime in that they were more detailed, particularly with regard to the level and type of penalties to be imposed. Given the leeway provided by the environmental crime judgment to Member States regarding the imposition of criminal sanctions when the first pillar is involved, the Council argued that a number of provisions in the present Framework Decision could not have been adopted under the first pillar, adding that if the environmental crime case were to be interpreted along the lines advocated by the Commission, Title VI of the TEU would largely be deprived of practical effect.119 According to the Council, it could not be concluded from the adoption of the Ship-Source Pollution Framework Decision that the criminal law measures provided for must be regarded as ‘necessary’ within the meaning of the environmental crime case.120 A similarly narrow interpretation of the environmental crime case was provided by the Member States which intervened in favour of the Council. In their view, the implied Community competence to legislate on criminal law matters is confined to measures which are ‘necessary’ or (absolutely) ‘essential’ for combating serious environmental offences; they added that such competence does not extend beyond the field of environmental protection to another common policy such as the transport policy at issue, and in any event excludes harmonisation of the type and level of penalties as laid down in the Framework Decision.121 In support of this minimalist interpretation, Member

114 ibid 115 ibid

116 ibid. 117 ibid

para 28. para 29.

para 36. para 38. 119 ibid para 39. 120 ibid para 40. 121 ibid para 41. 118 ibid

110  Substantive Criminal Law States put forward a number of arguments linked with their broader concern of loss of sovereignty in criminal matters, relating to: [T]he principles of subsidiarity, attributed powers and proportionality; the particular nature and necessary coherence of criminal law; the margin of appreciation to be left for the Member States; and the system set up by the Treaty on the European Union which would be undermined if the arguments of the Commission were upheld.122

Member States also argued that Article 47 TEU is intended to lay down a clear delimitation of competences between the first and the third pillars, but not to establish that the former has primacy over the latter.123 It is with the interpretation of Article 47 TEU that the Advocate General (AG) began his Opinion.124 The AG interpreted the provision broadly, stating that Article 47 TEU is not designed merely to ensure that nothing under the TEU affected or ran counter to existing substantive provisions of Community law – instead, it was intended to preserve the powers conferred on the Community as such.125 In order to determine whether Article 47 TEU has been infringed, the question to be asked is whether the provisions in question could have potentially been adopted on the basis of the EC Treaty.126 The Opinion of the AG differs substantially from the submissions of Member States in this context. He categorically stated that: Contrary to the view expressed by certain Governments, Article 47 EU thus establishes the ‘primacy’ of Community law or, more particularly, the primacy of Community action under the EC Treaty over activities undertaken on the basis of Title V or Title VI of the EU Treaty, in that the Council and, as the case may be, the other institutions of the Union must act on the basis of the EC Treaty if and in so far as it provides an appropriate legal basis for the purposes of the action envisaged.127

The AG thus established in a clear-cut manner a hierarchy between the pillars, granting ‘primacy’ to the first pillar and a presumption for Community action. This approach was also based on a Community-friendly reading of Article 1 TEU, whereby the supplementary character of the EU provisions to the foundational Community pillar is stressed.128 On the basis of this reasoning, the AG went on to look at whether the Community pillar contains a legal basis which would mean that the adoption of criminal law legislation on ship-source pollution in the third pillar would infringe the horizontal distribution of competence described above. According to the AG, a first pillar legal basis could include – but is not limited to – Article 80(2) EC on transport; in principle, if it were found that the provisions of the Framework Decision could have been adopted using a legal basis provided for elsewhere in the EC Treaty (such as in the part on the environment), this

122 ibid para 42. 123 ibid para 43. 124 Article 47 TEU states that ‘nothing in this Treaty [the TEU] shall affect the Treaties establishing the European Communities or the subsequent Treaties and Acts modifying or supplementing them’. 125 Commission v Council (n 111) para 50. According to the AG, that is confirmed by art 29(1) TEU which expressly provides that third pillar provisions are ‘without prejudice to the powers of the European Community’ (para 51). 126 ibid para 52. 127 ibid para 53. 128 ibid para 54.

The Constitutional Politics of Criminalisation before Lisbon  111 would mean that the Framework Decision infringed Article 47 TEU.129 He took the view that Article 80(2) EC could provide the correct legal basis for ship-source pollution measures, even if these measures also pursued the aim of environmental protection.130 What did fall within the first pillar – and could have been adopted under Article 80(2) EC – are the Framework Decision provisions on the constituent elements of criminal offences, as well as the requirement that these are punishable by effective, proportionate and dissuasive penalties.131 Since this was the case and the Framework Decision is to be regarded as indivisible, the AG recommended that the entire Framework Decision be annulled as it was adopted in breach of Article 47 TEU.132 Like the AG, and similarly to the environmental crime judgment, the Court used Article 47 TEU as a starting point in affirming that it was its task to ensure that acts which, according to the Council, fall within the scope of Title VI do not encroach upon the powers conferred by the EC Treaty on the Community.133 The Court would thus have to look at whether the Framework Decision affected the Community’s competence on transport under Article 80(2) EC.134 In doing so, it adopted a twofold approach: it examined the nature of Community competence on transport in the general Treaty framework; and it linked Community transport policy to the objective of environmental protection. It noted first that the common transport policy is one of the foundations of the Community, with the latter having broad legislative powers under Article 80(2) EC, including powers in the field of maritime transport.135 The existence of the legislative competence conferred to the Community by Article 80(2) EC was not dependent on a decision by the legislature to actually exercise this competence.136 Second, the Court linked Community transport policy to the objective of environmental protection. The latter was, according to the Court, one of the essential objectives of the Community which must, according to Article 6 EC, ‘be integrated into the definition and implementation of … Community policies and activities’, including transport policy.137 Having highlighted the environmental dimension of the legislation in question, the Court reiterated its findings in the environmental crime case, namely that although as a general rule neither criminal law nor the rules of criminal procedure fall within the Community’s competence, the fact remained that when the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences, the Community

129 ibid para 65. The AG noted that the need for a prior Council decision for the Community to act on transport was not a decisive factor with regard to the application of art 47 TEU (para 62). 130 Commission v Council (n 111) paras 128 and 130. 131 ibid paras 132 and 138. 132 ibid para 139. 133 The Court used the same approach and referred expressly to both the Environmental Crime and the Ship-Source Pollution judgments in the ‘small arms’ case, where it determined, on the basis of art 47 TEU, the relationship between the first and the second pillars – see Case C-91/05, Commission v Council [2008] ECR I-03651 (delivered on 20 May 2008). For a critical comment, see P Koutrakos, ‘Development and Foreign Policy: Where to Draw the Line between the Pillars’ (2008) 33(3) European Law Review 289 (editorial). 134 Judgment of 23 October 2007, paras 53 and 54 respectively. 135 ibid paras 55 and 58 respectively. 136 ibid para 59. 137 ibid para 60.

112  Substantive Criminal Law legislature may require the Member States to introduce such penalties in order to ensure that the rules which it lays down in that field are fully effective.138 The Court then examined the Framework Decision in this light, asserting that the latter’s provisions relate to conduct which ‘is likely to cause particularly serious environmental damage as a result, in this case, of the infringement of the Community rules on maritime safety’.139 According to the Court, it was also clear that the Council took the view that criminal penalties were necessary to ensure compliance with Community rules on maritime safety.140 In the light of these two considerations and the Court’s earlier ruling on the environmental crime case,141 the Court took the view that Articles 2, 3 and 5 of the Framework Decision on ship-source pollution, which ‘are designed to ensure the efficacy of the rules adopted in the field of maritime safety, noncompliance with which may have serious environmental consequences, by requiring Member States to apply criminal penalties to certain forms of conduct’, were essentially aimed at improving maritime safety as well as environmental protection and could have been validly adopted on the basis of Article 80(2) EC.142 However, the Court noted that Community competence in the field does not extend to the determination of the type and level of criminal penalties; therefore, it did not extend to provisions such as Articles 4 and 6 of the Framework Decision determining specific levels of criminal sanctions.143 However, as these sets of provisions were inextricably linked to each other, the Court annulled the Framework Decision as a whole. The Court’s ruling offered a degree of clarification regarding the delimitation of Community criminal law competence. For supporters of first pillar criminal law, the judgment was seen as a further affirmation of the existence of Community competence in criminal matters and as an expansion of such competence in the field of ship-source pollution. Moreover, the Court reiterated its emphasis on effectiveness, reaffirming the view of criminal law as a means to an end.144 However, it had by no means given carte blanche to the adoption of a wide range of first pillar criminal law measures. First of all, the relative vagueness of the environmental crime ruling on the extent of first 138 ibid para 66. 139 ibid para 67. The Court also noted that the purpose of the Framework Decision, according to its Preamble, was to enhance maritime safety and improve protection of the marine environment against ship-source pollution (para 62). 140 ibid para 68. 141 See also ibid para 66. 142 ibid para 69. 143 ibid paras 70–71. Similarly, the Court noted that provisions on jurisdiction and information exchange are third pillar matters (para 73). 144 Note that the AG devoted a substantial part of his Opinion to discussing the special nature of criminal law and the relationship between criminal law and Community law, and the potential subordination of criminal law to the effectiveness of Community law. The AG accepted that effectiveness is an imprecise criterion on the basis of which to establish criminal law competence and does not encapsulate entirely the essence of criminal law. Having broadened Community competence in criminal matters by extending it potentially to any Community policy, he now tried to place some limits on this by stating that the necessity of Community criminal law does not stem only from the objective criterion of the existence of a legal basis in the EC Treaty, but also from a degree of judgment by the institutions involved. Moreover, the AG accepted that it is not ideal for Community criminal law to be considered a mere accessory to the specific Community competences and only a single aspect of the policies involved. Finally, the AG hinted at the necessity of a uniform Community legislative procedure to accommodate Community criminal law (Opinion of Advocate General Mazák delivered on 28 June 2007, ECLI:EU:C:2007:393, paras 114–21).

The Constitutional Politics of Criminalisation before Lisbon  113 pillar criminal law competence has been remedied to some extent in this case, with the Court stating that while criminalisation in this case would fall within the first pillar, the imposition of precise sanctions (such as levels of custodial sentences) would still fall within the third pillar.145 This approach was followed in the eventually adopted (prior to the entry into force of the Lisbon Treaty) of Directive 2009/123/EC on ship-source pollution and on the introduction of penalties for infringements (hereinafter the ‘ShipSource Pollution Directive’).146 Moreover, the Court embarked on a delicate balancing act regarding the question of whether Community criminal law competence is limited to the achievement of ‘essential’ Community objectives or whether it extends to all Community objectives and/or policies. The Court certainly refrained from doing the latter.147 While it accepted that a first pillar measure with a transport legal basis may include criminal law provisions, this appeared to be justified on the grounds of the strong link between the measure in question with the protection of the environment – an essential Community objective whose protection may necessitate criminal law. The extent of Community criminal law competence in this context thus remained contested; however, it appears that the Court has left the door open to Member States sceptical to further ‘communitarisation’ of criminal law at this stage (before the Treaty of Lisbon entered into force) to argue that such ‘communitarisation’ does not extend beyond measures having an environmental protection objective.

E.  Substantive Criminal Law Competence in the Convention on the Future of Europe The debate over the extent of EU competence to criminalise was further reflected in the work of the Convention on the Future of Europe, which was entrusted with providing recommendations for the drafting of the Constitutional Treaty. The Final Report of Working Group X on ‘Freedom, Security and Justice’ produced a number of recommendations on the basis of the constitutional state of play of criminalisation under the third pillar and its members’ perceived needs for EU legislative intervention in the field.148 The Report called for clearer identification of the scope of EU legislation in the field, recognising that Articles 30 and 31 TEU, which constituted the applicable legal bases for criminal law, were ‘too vague in many respects, and too narrow in some other aspects’.149 The Working Group made specific recommendations, a great number of which found 145 These issues may well arise in the negotiations of the recent ‘Commission Proposal for an amendment to the Ship-Source Pollution Directive including penalties for infringements’ COM (2008) 134 final, Brussels, 11 March 2008. Negotiations on the proposal are under way (see Conclusions of the Justice and Home Affairs Council of 5–6 June 2008, Council Doc 9956/08 (Presse 146) 18). The Council and the European Parliament have already reached a first reading agreement on the environmental crime Directive; ibid 16. 146 Directive 2009/123/EC of the European Parliament and of the Council of 21 October 2009 amending Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements [2009] OJ L280/52. See Recital No 2 on the need for this Directive to ‘fill the legal vacuum following the judgment’ of the Court of Justice in the Ship-Source Pollution case (n 111). 147 See the significantly broader approach of the AG – see in particular ibid paras 94–97 of the Opinion. 148 CONV 426/02, Brussels, 2 December 2002, WG X 14. 149 ibid 8.

114  Substantive Criminal Law their way into the text of the Lisbon Treaty. It recommended the inclusion of a legal basis in the new Treaty permitting the adoption of minimum rules on constituent elements of criminal acts and of penalties in certain fields of crime where the crime in question is both of a particularly serious nature and has a cross-border dimension, and where the crime is directed against a shared European interest which is already itself the subject of a common policy of the EU (for example, counterfeiting of the euro and the protection of EU financial interests).150 The Working Group thus advocated the constitutional recognition of both securitised and functional criminalisation.151 The majority of the Working Group supported enumeration of those types of crime considered to have a transnational dimension and advocated – if this enumeration were to be exhaustive – that the Council, acting by unanimity, and after the assent of the European Parliament (or, for a few members, consultation) may amend this list if the need arises in order for the EU to respond adequately to changing patterns of crime. According to a widespread view in the Working Party, the Treaty could provide that approximation of substantive criminal laws, although this should be carried out in the form of Directives only. As will be seen below, both these recommendations have been incorporated into the Lisbon Treaty.

IV.  EU Competence to Criminalise after Lisbon: Securitised and Functional Criminalisation The drafters of the Lisbon Treaty attempted to define detailed parameters delimiting the EU’s competence in substantive criminal law. The main provision, Article 83 TFEU, puts forward a dual model of securitised and functional criminalisation. The first paragraph of Article 83 confers upon the EU competence to establish, by means of Directives: [M]inimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis. (Emphasis added)

These areas of crime are enumerated exhaustively in Article 83(1). The list includes ‘terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime’. As per the recommendation of the Convention on Justice and Home Affairs Working Party, the list may be expanded ‘on the basis of developments in crime’ by the Council acting unanimously after obtaining the consent of the European Parliament. Article 83(1) thus affirms the acceptance of the added value of criminalisation at the EU level in

150 ibid 10. According to the Working Group, approximation of substantive criminal law should be part of the toolbox of measures for the pursuit of that policy whenever non-criminal rules do not suffice. 151 The Working Group also called for further consideration to be given to the possible inclusion of a third criterion, which was proposed, namely ‘when approximation is required to generate sufficient mutual confidence to enable the full application of mutual recognition of judicial decisions or to guarantee the effectiveness of common tools for police and judicial cooperation created by the Union’. However, this criterion has not been explicitly included in the criminalisation legal basis of the Lisbon Treaty (ibid).

EU Competence to Criminalise after Lisbon  115 order to address perceived serious security threats. The second paragraph of Article 83 constitutes an attempt to translate the Court’s functionalist interpretation of the extent of Community (and now Union) criminal law competence in Environmental Crime and Ship-Source Pollution. Article 83(2) TFEU thus grants the EU with the competence to approximate national criminal laws and regulations if such approximation ‘proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures’. For that purpose, ‘directives may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned’.

A.  Securitised Criminalisation: Article 83(1) TFEU Article 83(1) TFEU reflects the securitised criminalisation approach in determining EU competence in substantive criminal law. EU competence to criminalise is justified as necessary to combat specified areas of criminality, the majority of which have been elevated after the Cold War by the international community and the EU as global security threats.152 The objective of Article 83(1) TFEU to address security threats is also confirmed by the requirement for harmonisation to apply only to particularly serious crimes.153 The securitised view of Article 83(1) TFEU has recently been confirmed by the Court of Justice, according to which the very enumeration of an area of criminality under Article 83(1) suffices for criminality to be considered serious enough to justify the limitation of citizenship rights and the expulsion of EU citizens on public security grounds, although arguably the offences themselves did not necessarily represent a threat to the wider public as such.154 In this manner, Article 83(1) TFEU – whose purpose is to define the extent of EU competence in substantive criminal law – has been used for a very different purpose, namely to interpret exceptions to freedom 152 V Mitsilegas, ‘Countering the Chameleon Threat of Dirty Money: “Hard” and “Soft” Law in the Emergence of a Global Regime against Money Laundering and Terrorist Finance’ in A Edwards and P Gill (eds), Transnational Organised Crime: Perspectives on Global Security (Routledge, 2003) 195–211. 153 The legal basis of art 83(1) has been primarily used to modernise pre-Lisbon substantive criminal law. The entry into force of the Lisbon Treaty has resulted in the separation of the criminal law provisions from the preventive EU anti-money laundering Directives and in the adoption in 2018 of a separate criminal law Directive under an art 83(1) TFEU legal basis: Directive 2018/1673 on combating money laundering by criminal law [2018] OJ L284/12. Other key instruments of securitised criminalisation adopted post-Lisbon include Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA [2011] OJ L101/1; Directive 2011/93/EU on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA [2011] OJ L335/1; Directive 2013/40/EU on attacks against information systems and replacing Council Framework Decision 2005/222/JHA [2014] OJ L218/8; and Directive (EU) 2017/541 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA [2017] OJ L 88/6. 154 Case C-348/09 PI v Oberbürgermeisterin der Stadt Remscheid [2012] 3 CMLR 662. According to the Court, art 28(3)(a) of the Citizens’ Rights Directive must be interpreted as meaning that it is open to the Member States to regard criminal offences such as those referred to in the second subparagraph of art 83(1) TFEU as constituting a particularly serious threat to one of the fundamental interests of society, which might pose a direct threat to the calm and physical security of the population and thus be covered by the concept of ‘imperative grounds of public security’, capable of justifying an expulsion measure under art 28(3) as long as the manner in which such offences were committed discloses particularly serious characteristics, which is a matter for the referring court to determine on the basis of an individual examination of the specific case before it.

116  Substantive Criminal Law of movement. By confirming the seriousness of the areas of crime enumerated in Article 83(1) in abstracto, the Court has transformed securitised criminal law into symbolic criminal law. In an attempt to circumscribe EU competence in the field further, Article 83(1) TFEU contains an express enumeration of these areas of serious crime and specifies that these areas must have a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis. This requirement has led commentators to argue that the justification for EU criminal law under Article 83(1) resides in its value-added function, drawing on a common capability to address the scale and nature of threats posed by transnational criminality.155 While the wording of Article 83(1) can indeed be seen as an attempt to establish the added value of criminalisation at the EU level, this added value is not limited to transnational criminality. The applicability of Article 83(1) to areas of serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis must be read as conferring on the EU competence to define criminal offences and adopt criminal sanctions in areas of crime which have a cross-border dimension, but which do not involve cross-border or transnational criminality as such.156 Examples of areas of crime with a cross-border dimension resulting from their nature or impact or need to combat on a common basis – but which may involve criminality conducted purely at the national level – include terrorism and corruption. In this way, the scope of Article 83(1) TFEU is broader than it appears at first sight. This broad scope is confirmed by the fact that EU competence is defined on the basis of areas of crime rather than on the basis of specific criminal offences. These areas of crime may actually correspond to a wide range of criminal offences or sanctions. A clear example of the potential to overstretch EU criminal law competence under Article 83(1) involves the use of the concept of organised crime. Not only is the definition of the concept vague and amorphous at the EU level,157 but it can also be used as a legal basis for harmonisation of a wide range of specific criminal offences and sanctions linked to the activities of a criminal organisation. Such a broad approach may serve to address some gaps in the Lisbon legal bases for criminal law, whose wording may be narrower than the third pillar legal bases and can thus be seen to exclude prima facie EU action in areas where the EU has legislated extensively under the third pillar. A prime example in this context is constituted by the recent Commission proposal for a directive on confiscation,158 where the Commission has used Article 83(1) TFEU as a broad legal basis to 155 C Harding and JB Banach-Gutierrez, ‘The Emergent EU Criminal Policy: Identifying the Species’ (2012) 37 EL Rev 758. 156 See also AG Pikamäe, according to whom the ‘cross-border dimension’ condition is dependent merely on the fact that the criminal offence under consideration falls within one of the areas of crime amenable to harmonisation under the second subparagraph of art 83(1) TFEU and that it comes within the scope of the secondary legislation adopted on the basis of art 83(1) TFEU and governing such an area: Opinion in Joined Cases C-845/19 and C-863/19, Okrazhna prokuratura – Varna (Criminal Proceedings v DR (C-845/19) and TS (C-863/19)), Opinion delivered on 24 March 2021, ECLI:EU:C:2021:229, para 40. 157 V Mitsilegas, ‘Defining Organised Crime in the European Union: The Limits of European Criminal Law in an Area of Freedom, Security and Justice’ (2001) 26 EL Rev 565; V Mitsilegas, EU Criminal Law (Hart Publishing, 2009) ch 2. 158 COM (2012) 85 final, 12 March 2012.

EU Competence to Criminalise after Lisbon  117 justify EU action on confiscation and enable confiscation of the proceeds of crime to include all offences committed within the framework of organised crime. Limits to EU confiscation law appear to have been the side effects of EU efforts to clarify EU competence in criminal matters after Lisbon. If confiscation measures are to be considered measures of criminal procedure to facilitate mutual recognition, then their adoption is not possible under Article 82(2) TFEU as confiscation is not an area of criminal procedure expressly enumerated therein. If confiscation is to be considered a sanction, it can no longer apply on a catch-all basis to all offences in the light of the limits placed on EU competence by Article 83(1) TFEU. The broad interpretation of Article 83(1) TFEU by the Commission seeks to address this lacuna, and constitutes the first example of a measure adopted under Article 83(1) TFEU focusing specifically and horizontally on sanctions and not on the definition of criminal offences. The use of Article 83(1) TFEU in this manner may constitute a precedent for the adoption of EU instruments introducing a general framework of sanctions for the areas of crime enumerated therein. The solution eventually reached by the institutions in the adoption of the confiscation Directive has been to use the dual legal basis of Articles 82(2) and 83(1) TFEU.159 This choice of legal basis may have served to evade the answer to the question of whether confiscation is a sanction or a judicial cooperation mechanism, but it has also led to the narrowing of the scope of confiscation measures at the EU level. The use of Article 83(1) TFEU has meant that the harmonised confiscation regime applies only to criminal offences falling within the specifically enumerated fields in Article 83(1) TFEU and not across the board.160

B.  Functional Criminalisation: Article 83(2) TFEU The introduction of Article 83(2) TFEU in the Treaty of Lisbon confirms a functionalist view of criminal law. Rather than assuming the status of a self-standing EU policy, criminal law is thus perceived as a means to an end, the end being the effective implementation of other EU policies.161 Criminal law is thus used as a tool to achieve the effectiveness of EU law.162 Article 83(2) TFEU flows naturally from the Court’s interpretation of the EU’s (then the Community’s) criminalisation competence under the first pillar in the Environmental Crime and Ship Source Pollution rulings. As the Court of Justice confirmed in its environmental crime ruling, while: As a general rule, neither criminal law nor the rules of criminal procedure fall within [EC] competence … [this] does not prevent the [EC] legislature, when the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an 159 Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union [2014] OJ L127, 29 April, 39. 160 See ibid art 3. 161 V Mitsilegas, ‘The Transformation of Criminal Law in the Area of Freedom, Security and Justice’ (2007) 26 Yearbook of European Law 1. 162 For a critical view, see M Kaiafa, ‘The Importance of Core Principles of Substantive Criminal Law for a European Criminal Policy Respecting Fundamental Rights and the Rule of Law’ (2011) 1 European Criminal Law Review 7, 19, arguing that the unique identity of criminal law cannot allow it to be reduced to a mere tool for the implementation of any policy.

118  Substantive Criminal Law essential measure for combating serious environmental offences, from taking measures which relate to the criminal law of the Member States which it considers necessary in order to ensure that the rules which it lays down on environmental protection are fully effective. (Emphasis added)163

The Lisbon Treaty constitutionalises the Court’s case law on competence in the field of substantive criminal law, providing an express legal basis for functional criminalisation. This legal basis is not confined to the adoption of substantive criminal law in the field of environmental crime (which was viewed by the Court as an essential objective of the European Community),164 but extends to any EU policy in an area which has been subject to harmonisation measures. This expansive constitutionalisation of the Court’s functional criminalisation approach in Article 83(2) TFEU has raised concerns with regard to the extent of criminalisation powers conferred upon the EU by the Lisbon Treaty. The Treaty attempts to address concerns with regard to the extensive use of Article 83(2) by introducing two central requirements for the use of EU competence in the field: the requirement that measures are essential to achieve effectiveness; and the requirement that measures are ‘essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures’ (emphasis added). By using the term ‘essential’, the Treaty has adopted a high threshold for EU intervention in the area of functional criminalisation, but it is unclear what kind of action meets this threshold.165 Demonstrating the ‘essential’ character of EU intervention under Article 83(2) is prone to litigation in Luxembourg.166 The interpretation of the second requirement of Article 83(2) TFEU – that measures are essential to ensure the effective implementation of an EU policy in an area that has been subject to harmonisation measures – may also prove to be contested. On the one hand, it is noteworthy that effectiveness is relating broadly to the implementation of EU policies and not of EU objectives.167 On the other hand, the requirement that effectiveness must be in an area that has been subject to harmonisation measures may serve to limit the scope of EU competence under Article 83(2) TFEU. A lively academic discussion on the detail of this requirement (in particular on the temporal aspect of Article 83(2) and whether criminalisation can occur in cases where no previous harmonisation has taken place, as well as on the level of detail of harmonisation to be required) has ensued.168 163 Commission v Council (n 55) paras 47–48. 164 ibid paras 41 and 45–47. 165 For example, it has been suggested that the requirement of action under art 83(2) is essential includes a strict proportionality requirement – J Öberg, ‘Union Regulatory Criminal Law Competence after the Lisbon Treaty’ (2011) 19 European Journal of Crime, Criminal Law and Criminal Justice 289, 290. 166 The German Constitutional Court has already adopted a narrow view of the EU’s criminalisation competence under art 83(2) TFEU. In its Lisbon ruling, the Court found that such competence exists ‘only if it is demonstrably established that a serious deficit concerning enforcement actually exists and that it can only be remedied by the threat of a sanction, this exceptional constituent element exists and the annex competence for legislation in criminal law may be deemed conferred’ (para 362). See BVerfG, 2 BvE 2/08, Gauweiler, Die Linke v Act of Approval of the Lisbon Treaty (‘Lisbon’), 30 June 2009. 167 P Craig, The Lisbon Treaty: Law, Politics, and Treaty Reform (Oxford University Press, 2010) 365. 168 For a narrow interpretation, see Öberg (n 165) 314–16. For broader interpretations, see P Asp, The Substantive Criminal Law Competence of the EU (Skrifter Utgivna av Juridiska Fakulteten vid Stockholms Universitet Nr 79, 2013) 134; and S Peers, EU Justice and Home Affairs Law, 3rd edn (Oxford University Press, 2011) 775–76.

EU Competence to Criminalise after Lisbon  119 In this context, Peers argues that while it could not be said that there is an EU policy that needs implementing effectively in the absence of harmonisation in specific areas of law, there is nothing in the current legal framework of the Lisbon Treaty that requires full harmonisation as a precondition.169 Indeed, in interpreting the scope of Article 83(2), the key focus must be whether EU action is essential to ensure the effectiveness of EU law in a policy area that has been subject to a degree of harmonisation.

C.  The Extent of EU Competence to Criminalise: Minimum Rules The articulation of EU competence to define criminal offences and impose criminal sanctions in the Lisbon Treaty may result in actually limiting the criminalisation powers of Member States. The limited conferral on the EU of competence in substantive criminal law only via the adoption of minimum rules can be potentially decisive in limiting Member States’ criminalisation competence. Hans Nilsson has set out the limits that the minimum rules requirement may pose for national sovereignty in substantive criminal law: One may argue that the term ‘minimum rules’ should be seen from the point of view of the Member State, so that the Member States may adopt the constituent elements of the offence as set out in the Framework Decision or Directive, but they are free to have less constituent elements, and thus criminalise more acts than the minimum ones. This is however hardly defendable, both for reasons of logic, legal certainty and respect for the principle of the unity of the common market (in this case the criminal law part of it), as well as for the uniform application of Community/Union law, as laid down in the AETR case law. It would therefore appear to me that the ‘minimum rules’ in all substantive criminal law Framework Decisions would not only be minimum, but also maximum rules and that they would in principle be not only ‘harmonising’ but also ‘unifying’ instruments in the real sense of the word.170

Notwithstanding the uncertainty as to what constitutes a ‘minimum rule’ under Article 83,171 Nilsson is right in arguing that the requirement of the EU to legislate via minimum rules under Article 83 TFEU places barriers to Member States overcriminalising and adopting more extensive substantive criminal law provisions than those which have been selected by the European legislator. This view is reinforced by the protective character of minimum harmonisation, which has traditionally been used in the context of the internal market as a means of addressing social concerns.172 Similar concerns are 169 Peers (n 168) 775. 170 H Nilsson, ‘How to Combine Minimum Rules with Maximum Legal Certainty?’ (2011) Europaraettslig Tidskrift 665. Nilsson refers to the analysis in the first edition of A Klip’s European Criminal Law (Intersentia, 2009), where the author argued that it is necessary to look at the spirit of the instrument when one examines the impact of minimum rules (at 154). In the book’s second edition, Klip mentions Nilsson’s argument, but continues to argue that the starting point is the objective of the legal instrument in question: A Klip, European Criminal Law, 2nd edn (Intersentia, 2012) 167. 171 There is also a debate on whether the minimum rules requirement allows the EU to adopt minimum maximum penalties as per the pre-Lisbon practice, or also minimum penalties as such: see Asp (n 168) 126. Asp argues that rules requiring a specific minimum penalty are not minimum rules, as to require a certain minimum level would amount to full harmonisation in relation to the minimum penalties. The post-Lisbon trend is for substantive criminal law measures to retain the ‘minimum maximum’ formula. 172 M Dougan, ‘Minimum Harmonization and the Internal Market’ (2000) 37 CML Rev 53.

120  Substantive Criminal Law addressed by the treatment of minimum harmonisation in the context of EU measures in the field of criminal procedure under Article 82(2) TFEU. The last indent of this Article states expressly that ‘adoption of the minimum rules referred to in this paragraph’ (which involve the adoption of largely protective standards, including measures on the rights of the defendant in criminal proceedings) ‘will not prevent Member States from maintaining or introducing a higher level of protection for individuals’. As Nilsson notes, Member States can go beyond minimum rules as expressly stated in Article 82(2) TFEU to protect individuals, but not so in Article 83 TFEU, as this is not expressly granted in the Treaty and would have the opposite effect.

V.  The Relationship between Criminal and Administrative Law A key question following the entry into force of the Lisbon Treaty concerns the interplay between criminal and administrative law after Lisbon in cases where EU measures are being put forward which envisage the adoption of both criminal and non-criminal (administrative) sanctions. This dual approach to sanctions has been adopted by the European Commission in its recent proposals for revised post-Lisbon legislation, introducing sanctions for insider dealing and market manipulation.173 Unlike the case of its recent proposal on criminal law on fraud, the European Commission here has used Article 83(2) TFEU for the adoption of criminal law provisions, with an internal market legal basis being used for the regulation. This dual approach was ultimately confirmed by the Council and the Parliament in the adoption of two parallel instruments.174 Two issues arise in this context in terms of criminalisation powers: the first, as mentioned above, is whether Member States are constrained by the adoption of criminal offences and sanctions under Article 83(2) TFEU in terms of their criminalisation choices at the national level; the second, and related point, is whether Member States are similarly constrained by their choices of what to treat as an administrative infraction under the Regulation adopted under a separate legal basis. The requirement to ensure the effectiveness of EU law militates in favour of limiting national powers to criminalise in both cases. In the case of the interplay between EU administrative law and national criminal law, the choice by the EU legislator to address harmful behaviour (in this case market abuse) via merely administrative – and not criminal – sanctions would mean that the effectiveness of the EU policy and measure in question would be jeopardised if Member States adopted a harsher, criminal law approach. National criminalisation would also be contrary to the principle of proportionality, as enshrined in Article 49(3) of the Charter. In this manner, the adoption of EU law may actually limit criminalisation and lead to 173 Commission, ‘Draft directive on criminal sanctions for insider dealing and market manipulation’ COM (2011), 654 final, 20 October 2011 accompanying a ‘Proposal for a regulation under Art 114 TFEU’ COM (2011) 651 final, 20 October 2011. 174 Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (Market Abuse Regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC [2014] OJ L173, 12 June, 1; and Directive 2014/57/EU of the European Parliament and of the Council of 16 April 2014 on criminal sanctions for market abuse (Market Abuse Directive) [2014] OJ L173, 12 June, 179.

Extending EU Competence to Criminalise Elsewhere in the Treaty  121 decriminalisation at the national level. The adoption of the Market Abuse Regulation and the Market Abuse Directive throw up a number of challenges in this regard. On the one hand, the Directive adopts a restrictive criminalisation approach, limiting criminalisation as a minimum measure to serious cases – although the Directive’s reference to including ‘at least’ serious cases raises issues of legal certainty.175 On the other hand, administrative sanctions imposed by the Regulation are ‘without prejudice to any criminal sanctions’.176 It is submitted that this approach undermines the effectiveness of the market abuse legal framework put forward by the combination of the Regulation and the Directive, as the relationship between the two instruments and their objectives becomes blurred and the added value of distinguishing between criminal and administrative law becomes unclear. The wording of the Regulation may result in cases where market abuse is punishable with administrative sanctions in one Member State and by criminal sanctions in another. This approach raises serious issues of legal certainty vis-a-vis affected individuals and legal persons in Europe’s area of criminal justice, highlighting the quest for certainty in terms of the protection of fundamental rights177 and rendering the prospect of double punishment (administrative and criminal) in cross-border cases a reality. It also raises a number of questions on the scope and applicability of the ne bis in idem principle in parallel criminal/‘administrative’ proceedings.178

VI.  Extending EU Competence to Criminalise Elsewhere in the Treaty The attempt by the drafters of the Lisbon Treaty to determine more clearly the extent of EU competence in substantive criminal law under Article 83 TFEU may be undermined not only by the inherent flexibility in the competence requirements of Article 83(1) and 83(2) TFEU, but also by the question of whether these provisions are the sole legal bases for EU action in the field. It is contested in particular whether Article 83(2) is the only legal basis for the adoption of functionalist EU criminal law or whether criminal law can be adopted by the EU by using a different, policy-specific legal basis elsewhere in the Treaty. Using a legal basis other than Article 83(1) and 83(2) TFEU has significant constitutional consequences: it may enable the adoption of EU substantive criminal law measures in the form of regulations; it deprives Member States of the option of using the emergency brake introduced under Article 83(3) TFEU; and it forces the participation of Denmark and Ireland (and the UK when it was a Member State) in EU criminal law if the legal basis for EU criminalisation is located in a part of the Treaty from which

175 See arts 3(1), 4(1) and 5(1) of the Market Abuse Directive (n 174). 176 Article 30(1) of the Market Abuse Regulation (n 174). 177 The CJEU has held that Member States must ensure, in the context of the implementation of obligations stemming from Directive 2003/6 or Regulation No 596/2014, that, in accordance with the right to silence guaranteed by arts 47 and 48 of the Charter, the competent authority cannot impose penalties on natural persons for refusing to provide that authority with answers which might establish their liability for an offence that is punishable by administrative sanctions of a criminal nature, or their criminal liability: Case C-481/19, DB (Consob), ECLI:EU:C:2021:84. 178 For a detailed analysis, see ch 3.

122  Substantive Criminal Law these states have not negotiated an opt-out. EU substantive criminal law rules adopted under a legal basis other than Article 83 TFEU may not necessarily be minimum rules. The adoption of regulations in the field of substantive criminal law challenges Treaty requirements to respect national diversity as outlined in Title V of the TFEU on the AFSJ.179 It also – at least in theory – raises the prospect for EU measures defining criminal offences and imposing criminal sanctions to have direct effect, thus reversing the protective function of the principle in domestic legal orders. While the Court of Justice has excluded the direct effect of Directives in this context,180 direct effect is not excluded in the case of regulations that do not require further implementing measures by Member States.181 However, it is difficult to see how in practice a Regulation defining criminal offences and imposing criminal sanctions would be clear and unconditional enough not to require a degree of implementation in order to secure an adjustment to the specificities of national criminal justice systems. The first potential legal basis for substantive criminal law outside Article 83 TFEU is Article 325 TFEU on the fight against fraud affecting the EU’s financial interests. Article 325(4) confers upon the EU competence to adopt: [T]he necessary measures in the fields of the prevention of and fight against fraud affecting the financial interests of the Union with a view to affording effective and equivalent protection in the Member States and in all the Union’s institutions, bodies, offices and agencies.

A comparative analysis of Article 325(4) TFEU with its pre-Lisbon version182 reveals that the last sentence of Article 280(4) has been deleted in the Lisbon text. This sentence stated that measures to combat fraud (an area which is not expressly listed in Article 83(1) TFEU but may be included in Article 83(2)) will not concern the application of national criminal law and the national administration of justice.183 The fact that the adoption of criminal law measures is not excluded by Article 325(4) TFEU, in addition to the general wording of the provision, can be seen to militate in favour of the conferral on the EU of competence to define criminal offences and impose criminal sanctions in the field not under Article 83(2) TFEU, but solely under Article 325 TFEU. It has been noted that such competence is justified by the fact that Article 325(4) TFEU contains a stronger obligation to legislate in comparison with Article 83 (by the use of the verb ‘shall’ instead of ‘may’) as well as by the fact that Article 325(4) calls for the adoption of ‘necessary measures’, instead of the more minimalistic requirement of Article 83 TFEU for the EU to adopt ‘minimum rules’.184 It should also be noted in this context that Article 325 TFEU is a legal basis for the adoption of measures in a specific criminal justice field (fraud). In terms of policy areas, Article 325(4) can thus be considered as lex specialis in relation to Article 83(2). It is noteworthy in this context that the Commission has opted in favour of using exclusively Article 325 TFEU as a legal 179 See art 67 TFEU. 180 Berlusconi (n 25). 181 For details, see V Mitsilegas, ‘Article 49 (the Principles of Legality and Proportionality of ­Criminal Offences and Penalties)’ in S Peers et al (eds), The EU Charter of Fundamental Rights: A Commentary (Hart Publishing/CH Beck, 2014) 1351–73. 182 Article 280(4) EC. 183 A similar clause was deleted from art 135 EC concerning customs cooperation (now art 33 TFEU). 184 R Sicurella, ‘Some Reflections on the Need for a General Theory of the Competence of the European Union in Criminal Law’ in A Klip (ed), Substantive Criminal Law of the European Union (Maklu, 2011) 233–50, at 236–37.

Extending EU Competence to Criminalise Elsewhere in the Treaty  123 basis for its recent proposal for a Directive on fraud.185 However, in negotiations in the Council, Member States have opted for the use of Article 83(2) TFEU as the sole legal basis for the Directive,186 with the Directive eventually being adopted under an Article 83(2) TFEU legal basis.187 The discussion on the use of Article 325 TFEU as a legal basis for the adoption of EU substantive criminal law is of relevance to the parallel debate on whether the harmonisation of substantive criminal law on fraud offences (seen as attacking a ‘European’ interest par excellence) should take place in the form of a Regulation (seen to provide a higher level of uniformity) or a Directive (allowing Member States leeway in implementation).188 The discussion is inextricably linked to the question of legal certainty in the operation of the EPPO, whose mandate is based primarily on the offences established in the anti-fraud (PIF) Directive.189 The impact of the determination of the material competence of the EPPO via a reference to the PIF Directive on legality, legal certainty and foreseeability must be seen from the broader perspective of legal certainty in the context of the harmonisation of substantive criminal law at the EU level. EU legislative intervention before (via Framework Decisions) and after (via Directives) Lisbon in the field is designed to allow Member States a degree of leeway in implementation in order to adjust EU law objectives to the specificity of their domestic criminal justice systems. In addition to sovereignty concerns, this choice reflects the considerable diversity in national criminal justice systems and their internal coherence. Legality, legal certainty and foreseeability must thus be assessed primarily from the perspective of the implementation of EU law in domestic legal orders – a point which is made clearly throughout Article 22 of the EPPO Regulation, which enumerates the offences forming its material competence ‘as implemented by national law’. Sceptics of this approach point out that it may lead to divergences in the mandate of the EPPO depending on the different implementation routes of the PIF Directive in different Member States, hence hindering legal certainty and foreseeability in terms of EPPO action across the board,190 especially in cases of defective transposition of the Directive by Member States.191 Two arguments can be put forward to address this concern.192 First, even if EU criminal law on PIF offences had taken the form of a Regulation, it is highly likely that 185 COM (2012) 363 final, Brussels, 11 July 2012; art 325(4) TFEU. 186 See Council Document 8604/15, Brussels, 7 May 2015, www.statewatch.org/news/2015/may/eu-councilfraud-dir-trilogue-8604-15.pdf. 187 Directive (EU) 2017/1371 on the fight against fraud to the Union’s financial interests by means of criminal law [2017] OJ L198/29. 188 It has been noted that despite the fact that the financial interests of the EU are the same irrespective of the country where the offences are committed, investigated, prosecuted and tried, the substantive legal framework regarding prosecution will differ from one Member State to another; see P Caeiro and J Amaral Rodrigues, ‘A European Contraption: The Relationship between the Competence of the EPPO and the Scope of Member States’ Jurisdiction over Criminal Matters’ in K Ligeti, MJ Antunes and F Giuffrida (eds), The European Public Prosecutor’s Office at Launch (Wolters Kluwer-Cedam, 2020) 57–84, at 61. 189 See ch 8. 190 For a critique on the potential lack of harmonisation leading to diversity in terms of applicable law, see R Sicurella, ‘A Blunt Weapon for the EPPO? Taking the Edge off the Proposed PIF Directive’ in W Geelhoed, LH Erkelens and AWH Meij (eds), Shifting Perspectives on the European Public Prosecutor’s Office (Asser Press and Springer, 2018) 99–128 at 102. 191 See Caeiro and Rodrigues (n 188) 64. 192 V Mitsilegas, ‘European Prosecution between Cooperation and Integration: The European Public ­Prosecutor’s Office and the Rule of Law’ (2021) 28 Maastricht Journal of European and Comparative Law 245.

124  Substantive Criminal Law Member States, as in the case of the EPPO Regulation itself, would still have to adopt implementing legislation to adjust the requirements of EU law within their domestic legal orders. It is hard to see how an EU text in criminal law would in all cases provide a one-size-fits all solution applicable in all Member States bound by the instrument without the need for further national adjustment. Second, one should not underestimate the potentially high harmonising effect of Directives. While there may be differences in implementation in Member States, the post-Lisbon constitutional armoury in EU criminal law grants extensive powers of scrutiny of national implementation to the Commission and jurisdiction to the CJEU to clarify any grey areas which may arise. The argument that ‘European’ offences such as fraud which affects a ‘European’ interest distinct from national interests require a uniform European substantive criminal law does not add much to the above discussion, and in fact would pose additional challenges to legal certainty. In view of the extension of the EPPO mandate to relating offences and of proposals to extend the EPPO’s material competence to cover offences such as terrorism in the future,193 it is not clear how one can meaningfully distinguish between offences affecting the EU financial interests on the one hand (as ‘true’ European offences requiring uniform criminal law) and other areas of crime triggering EU competence under the TFEU legal bases on securitised and functional criminalisation set out in Article 83(1) and (2) TFEU on the other hand.194 In addition to the potential use of Article 325 TFEU as a legal basis, attention should also be given to two further alternative legal bases for the adoption of EU substantive criminal law, one located within and the other outside the Treaty title on the AFSJ (Title V). Within Title V, the relevant provision is Article 86 TFEU, which enables the establishment of the EPPO. According to Article 86(2) TFEU, the EPPO will be ‘responsible for investigating, prosecuting and bringing to judgment the perpetrators of, and accomplices in, offences against the Union’s financial interests’, as determined by the Regulation establishing the Office provided for in Article 86(1). According to Article 86(4) TFEU, the powers of the EPPO may be subsequently extended by a decision of the European Council ‘to include serious crime having a cross-border dimension and amending accordingly [Article 86(2)] as regards the perpetrators of, and accomplices in, serious crimes affecting more than one Member State’. The question thus arises as to whether legislation defining criminal offences and imposing criminal sanctions for the purposes of the operation of the EPPO can be adopted not under Article 83, but under Article 86(2) and 86(4) TFEU, which would lead to the adoption of substantive criminal law under different legislative procedures, by different institutions (note the reference to the European Council in Article 86(4)) and by different instruments. The wording of Article 86(2), which calls for fraud offences to be ‘determined’ by a Regulation under Article 86(1), is open enough not to exclude the adoption of substantive EU criminal law on fraud. However, the function of any criminalisation based on Article 86(2) TFEU would be limited to the operation of the EPPO and would not exclude the adoption of 193 For a discussion of the potential extension of the material competence of the EPPO, see A Juszszak and E Sason, ‘Fighting Terrorism through the European Public Prosecutor’s Office (EPPO)?’ (2019) 1 Eucrim 66. 194 On a taxonomy of EU competence in the field of substantive criminal law in art 83 TFEU under these terms, see V Mitsilegas, ‘EU Criminal Law Competence after Lisbon: From Securitised to Functional Criminalisation’ in D Acosta and C Murphy (eds), EU Security and Justice Law (Hart Publishing, 2014) 110–29.

Contesting EU Competence in Substantive Criminal Law  125 parallel EU measures under Article 83(2) or Article 325(4) TFEU – with the risk of proliferation and fragmentation of the criminal law on fraud being visible. On the other hand, Article 86(4) TFEU, which refers to the inclusion of further areas of crime, should be read as mandating not a criminalisation process, but merely the listing of offences already defined elsewhere.195 Another alternative criminalisation legal basis discussed by commentators is the catch-all provision of Article 352(1) TFEU, which confers competence on the EU if action by the EU should prove necessary, within the framework of the policies defined in the treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers.196 It has been pointed out that Article 352(1) TFEU could lead to the adoption of EU substantive criminal law in cases where the requirement of Article 83(2) TFEU for harmonisation in the underlying policy area has not been met, and it has been argued that Article 352 should not apply in the light of this requirement197 and in the light of the existence of the specific provisions in Title V TFEU.198 However, this analysis cannot mask the paradox inherent in the constitutionalisation of functional criminalisation in the Lisbon Treaty. If substantive criminal law is, under Article 83(2) TFEU, merely a means to the end of achieving effectiveness of EU law based on the specific EU policies outlined in the Treaties, it is difficult to see in principle why the Treaty legal bases relating to these policies and located elsewhere in the treaties – in particular outside the Treaty Title on the AFSJ – cannot be used as additional, or alternative, legal bases for the adoption of EU substantive criminal law. This is especially the case where the conditions of Article 83(2) TFEU are not met, in particular where an area has not been subject to harmonisation measures and there is an urgent need to address a social problem relating to the implementation of an EU policy or objective.

VII.  Contesting EU Competence in Substantive Criminal Law: The Lissabon-Urteil The care taken by the drafters of the Lisbon Treaty to circumscribe the extent of EU competence in the field of criminal law has not addressed fully national concerns regarding the potential overreach of the EU in the field. These concerns have been most vividly reflected in the judgment of the German Constitutional Court on the Lisbon Treaty.199 Throughout the judgment, the German Court advocated a restrictive interpretation of the EU’s competence in criminal matters.200 Underlying this approach is the attempted link that the Bundesverfassungsgericht has made between criminal law, democracy,

195 But see here the analysis of Sicurella (n 184), who argues that art 86(2) TFEU also implies a listing function. 196 See E Herlin-Karnell, The Constitutional Dimension of European Criminal Law (Hart Publishing, 2012) ch 4. 197 Asp (n 168) 138. 198 Herlin-Karnell (n 196) 87. 199 Decision of 30 June 2009 (2 BvE 2/08, 5/08, 2 BvR 1010/08, 1022/08, 1259/08, 182/09). 200 See in particular ibid paras 358 and 363.

126  Substantive Criminal Law community and identity at the national level, and safeguarding of what the Court has deemed ‘democratic self-determination’. The Court has emphasised the fact that criminalisation stems essentially from national values and moral choices, and only partially from European values.201 Criminal law harmonisation must extend only to specific cross-border situations on restrictive conditions; in principle, substantial freedom of action must remain reserved for the Member States.202 The Court applied this reasoning in particular with regard to the EU’s criminalisation competence under Article 83(1) TFEU. According to the Court, democratic self-determination is affected in a particularly sensitive manner where a legal community is prevented from deciding on the punishability of conduct, or even the imposition of prison sentences, according to their own values. This applies all the more the closer these values are connected to historical experience, traditions of faith and other factors essential to the self-esteem of the people and their society.203 The main reference point for the democratic legitimacy of criminal law for the German Constitutional Court thus seems to remain the nation state. Common values, public perception of these values and public opinion are shaped at the national level and not at the EU level.204 This emphasis on democratic legitimacy based on national communities can be seen as addressing the perceived problem of ‘moral distance’, which is defined as the frequent remoteness or separation of law’s normative expectations from many of those current and familiar in the fields of social interaction that it purports to regulate.205 Yet the exclusive focus by the Bundesverfassungsgericht on the state as the sole source of democratic legitimacy – which permeates the judgment – has rightly been criticised as unduly German-centric.206 In the field of criminal law, the ruling appears to disregard the constitutionalisation of EU criminal law outlined above, the prominent role played by democratic institutions such as the European Parliament in this context and the thorough attempts by the drafters of the Lisbon Treaty to clarify as far as possible the extent of EU competence in the field and the balance of powers between the EU and its Member States.207 Further, the ruling does not take into account the safeguards built into the Lisbon Treaty with regard to the exercise of EU competence in criminal matters, and in particular the use of Directives (which leave leeway as regards the means of implementation to Member States) as the exclusive instrument of EU lawmaking under Articles 82 and 83 TFEU. While the German Constitutional Court has not declared the Treaty unconstitutional (but rather placed emphasis on national control of the operation of a series of Lisbon safeguards, such as the emergency brake), its approach leaves the possibility open for further constitutional tension between the national and EU levels on the EU’s powers in the field of criminal law. 201 ibid para 253. 202 ibid. 203 ibid para 363. 204 See also A Steinbach, ‘The Lisbon Judgment of the German Federal Constitutional Court: New Guidance on the Limits of European Integration?’ (2010) 11 German Law Journal 367, in particular 377–79. 205 R Cotterrell, Law’s Community: Legal Theory in Sociological Perspective (Clarendon Press, 1995) 304–05. 206 For a persuasive critique see D Halberstam and C Möllers, ‘The German Constitutional Court says “Ja zu Deutschland!”’ (2009) 10 German Law Journal 1241–57. 207 For a critique of the Court’s arguments on the lack of the EU’s democratic legitimacy, see D Grimm, ‘Comments on the German Constitutional Court’s Decision on the Lisbon Treaty: Defending Sovereign Statehood against Transforming the European Union into a State’ (2009) 5 European Constitutional Law Review 353, 367–68.

Policy Responses to the EU Competence to Criminalise after Lisbon  127

VIII.  Policy Responses to the EU Competence to Criminalise after Lisbon The redefinition of the EU’s competence to criminalise by the Lisbon Treaty has led to an extensive inter-institutional policy debate over the extent and use of such competence. The European Council’s intentions were revealed in the Stockholm Programme,208 which includes a special section on criminal law.209 The Stockholm Programme confirms in this context that criminal behaviour in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis should become the object of common definitions of criminal offences and common minimum levels of maximum sanctions, and that these are the serious criminal offences referred to in Article 83(1) TFEU. Priority should be given to terrorism, trafficking in human beings, illicit drug trafficking, sexual exploitation of women and children, and child pornography and computer crime. The European Council invited the Commission in particular to examine whether the level of approximation is sufficient in relation to the adopted Framework Decisions and to report on the need to establish common definitions and sanctions, and to consider submitting new legislative proposals where further approximation is needed, adding that the relationship between the approximation of criminal offences or their definition and the double criminality rule within the framework of mutual recognition should be further explored. Particular emphasis has been placed upon the justification and limits or conditions for the adoption of EU substantive criminal law. According to the Stockholm Programme, criminal law provisions should be introduced when they are considered essential in order for the interests to be protected and, as a rule, should only be used as a last resort. Minimum rules with regard to the definition of criminal offences and sanctions may also be established when the approximation of criminal laws and regulations of the Member States proves essential to ensuring the effective implementation of an EU policy which has been subject to harmonisation measures. The Stockholm Programme was preceded by the adoption of Conclusions by the Council shortly before the entry into force of the Lisbon Treaty.210 The Council’s intervention can be seen as an attempt to set out a marker on what Member States consider to be the extent and limits of EU competence to criminalise after Lisbon. The Council predicted that the Lisbon Treaty was likely to have the effect that criminal law provisions would be discussed within the Council to an even greater extent than previously, and that this might result in incoherent and inconsistent criminal provisions in EU legislation. In order to address this, the Council put forward a series of detailed Guidelines for EU substantive criminal law. It emphasised in particular the requirement to assess the need for criminal provisions and stressed the application of principles including

208 The Stockholm Programme – An Open and Secure Europe Serving and Protecting Citizens [2010] OJ C115/01. 209 ibid s 3.3.1. 210 Draft Council conclusions on model provisions, guiding the Council’s criminal law deliberations Council Doc 16542/1/09 25 November 2009. See also Council Doc 16798/09, 27 November 2009 – endorsed by the JHA Council of 30 November – 1 December 2009, Doc 16883/1/09 REV 1 (Presse 355) 31.

128  Substantive Criminal Law necessity and ultima ratio (namely that criminal law provisions should be introduced when they are considered essential in order for the interests to be protected and, as a rule, should be used only as a last resort), proportionality and subsidiarity. The Guidelines also emphasised the need to address clearly defined and delimited conduct, which cannot be addressed effectively by less severe measures, and added that when there seems to be a need to adopt new criminal provisions, the following factors should be further considered: added value or effectiveness of criminal provisions compared to other measures; how serious and/or widespread and frequent the harmful conduct is both regionally and locally within the EU; and the possible impact of existing criminal provisions on EU law and on different legal systems. The Council Guidelines demonstrate a degree of ambiguity with regard to the impact of EU substantive criminal law on the domestic systems of penalties. It is stated that when it has been established that criminal penalties for natural persons should be included, it may in some cases be sufficient to provide for ‘effective, proportionate and dissuasive’ criminal penalties and to leave it to each Member State to determine the actual level of the penalties, but that in other cases, there may be a need to go further in the approximation of the levels of the penalties. The European Commission reacted to the entry into force of the Lisbon Treaty by publishing a Communication on European Criminal Policy.211 The Commission focused on what it considered to be the ‘added value’ of the harmonisation of substantive criminal law. This ‘added value’ was perceived to be fourfold: harmonisation of criminal law fosters the confidence of citizens in using their right to free movement and to buy goods or services from providers from other Member States through a more effective fight against crime; it prevents ‘forum shopping’ by criminals; it strengthens mutual trust among the judiciaries and law enforcement authorities of the Member States, facilitating mutual recognition and judicial cooperation in criminal matters; and it helps to prevent and sanction serious offences against EU law in important policy areas, such as the protection of the environment or illegal employment. This is a rather mixed bag of assertions whose credibility is difficult to ascertain – this was the case in particular when the Commission emphasised the subjective elements of EU criminal law as enhancing the confidence of citizens in exercising their EU law rights and as leading to greater mutual trust among national authorities.212 Aware that such a vague approach might lead to fears that the Commission would be unduly activist in the field of substantive criminal law after Lisbon, the Commission proceeded to outline the principles that should guide EU criminal law.213 These principles included subsidiarity and respect for fundamental rights. The Commission then called for a two-step approach in criminal law legislation: step one concerned the decision on whether to adopt criminal law measures at all, where it was stated that necessity and proportionality must be respected and that criminal law

211 Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘Towards an EU Criminal Policy: ensuring the effective implementation of EU policies through criminal law’ (Communication) COM (2011) final, 20 September 2011. 212 V Mitsilegas, ‘The Limits of Mutual Trust in Europe’s Area of Freedom, Security and Justice: From Automatic Inter-state Cooperation to the Slow Emergence of the Individual’ (2012) 31 Yearbook of European Law 319. 213 Commission to the European Parliament (n 211) 6–9.

Policy Responses to the EU Competence to Criminalise after Lisbon  129 is a means of last resort (ultima ratio); and step two concerned the principles guiding the decision on what kind of criminal law measures to adopt – these included the adoption of minimum rules, necessity and proportionality, the existence of clear factual evidence about the nature and effects of the crime in question as well as about a diverging legal situation in all Member States which could jeopardise the effective enforcement of an EU policy subject to harmonisation, and tailoring the sanctions to the crime. However, these principles should not be read as a sign of the Commission’s limited ambition as regards the adoption of further substantive criminal law at the EU level. The last part of the Communication revealed the primary purpose of the document, which was to set out the Commission’s vision as to the areas where further EU standards on criminal offences and sanctions would be developed on the basis of Article 83(2) TFEU.214 The list of such policies provided in the Communication is far-reaching. The Commission claimed that it had been established that criminal law measures were necessary in order to protect the financial sector, to fight against fraud and to protect the euro against counterfeiting, and that it would further reflect on the use of criminal law to tackle the illegal economy and financial crime, and on the use of criminal law in areas as diverse as road transport, data protection, customs rules, environmental protection, fisheries policy and internal market policies. Rather than following the principles set out earlier in the Communication, this list confirmed an expansive approach treating criminal law merely as a ‘means to an end’.215 The European Parliament responded by the adoption of a resolution on an EU approach to criminal law.216 The resolution focused on the principles that should govern EU action in the field of substantive criminal law. The European Parliament stressed the need for EU substantive criminal law to respect the principles of subsidiarity and proportionality and fundamental rights. It was also noted that, in the adoption of EU substantive criminal law, it is not sufficient to refer to abstract notions or to symbolic effect, but that the necessity of new substantive criminal law provisions must be demonstrated by the necessary factual evidence making it clear that damage has occurred; there are no less intrusive measures which can be adopted; that the crime in question is of a particularly serious nature or is having a direct negative impact on the effective implementation of an EU policy which has been subject to harmonisation measures; that there is a need to combat on a common basis; and that EU action is in conformity with Article 49(3) of the Charter and in particular that the severity of the proposed sanctions is not disproportionate to the criminal offence. The European Parliament also

214 ibid 9–11. 215 This expansionist tendency is also reflected in the willingness of the Commission to maintain legal basis litigation concerning criminal law. The latest example is a case before the ECJ in which the Commission obtained the annulment of a road traffic directive adopted under art 87(2) TFEU (Directive 2011/82/ EU facilitating the cross-border exchange of information on road safety related traffic offences [2011] OJ L288/1, 5 November 2011), with the Commission successfully arguing in favour of the more supranational legal basis of art 91(1) TFEU (Case C-43/12, European Commission v European Parliament and Council, judgment of 6 May 2014, EU:C:2014:298). Although the case did not involve the adoption of substantive criminal law, it is a clear indication that the Commission will not hesitate to defend its choices or prerogatives in cases involving the use of art 83(2) TFEU. 216 Based on ‘Report on an EU approach on criminal law’ A7-0144/2012, 24 April 2012, Rapporteur: Cornelis de Jong.

130  Substantive Criminal Law recognised the importance of the other general principles governing criminal law (such as the principle of non-retroactivity of criminal sanctions) and welcomed the recognition by the Commission that the first step in criminal law legislation should always be to decide whether to adopt substantive criminal law measures at all. The differences in the policy approaches of EU institutions towards substantive criminal law are noteworthy. In the Stockholm Programme, the European Council placed emphasis on the continuation of the adoption by the EU of securitised criminal law. Member States in the Council aimed at pre-empting the supranationalisation brought forward by the entry into force of the Lisbon Treaty, and emphasised conditions and limits to the exercise of EU competence under Article 83 post-Lisbon. The Commission attempted to demonstrate the added value of criminalisation at the EU level and focused primarily on functional criminalisation. The European Parliament emphasised the need for EU substantive criminal law to comply with fundamental rights. A common theme in these institutional approaches has been the call to respect either fundamental principles of domestic criminal law (such as ultima ratio) or constitutional principles of EU law, including effectiveness, subsidiarity and proportionality. Institutional practice after the entry into force of the Lisbon Treaty in terms of the production of secondary substantive criminal law has not revealed a major change to the pre-Lisbon practice as regards post-Lisbon initiatives proposed by the Commission. Those who expected a renewed momentum towards EU harmonisation in the field of substantive criminal law by the post-Stockholm five-year plan will have been disappointed by the European Council conclusions of June 2014 which contained minimal – if any – references to criminal law harmonisation.217 EU law constitutional principles – and in particular the principles of legality and proportionality as enshrined in Article 49 of the Charter – that must be taken into account in the further development of EU substantive criminal law. In addition to addressing the issue of EU competence, a key and distinct question which must be addressed is ‘why criminalise?’,218 with the adoption of EU measures with the effect of decriminalising certain conduct also being considered.

IX.  EU Criminalisation Challenges and Prospects for Law Reform As has been seen earlier in this chapter, the EU legislators have used the powers conferred upon them by Article 83 TFEU to adopt legislation on substantive criminal law in a number of areas of securitised and functional criminalisation. However, there remain areas where EU criminalisation efforts face considerable challenges in terms of the degree of harmonisation achieved, clarity in terms of the existence of EU competence to criminalise, and the degree of criminalisation at the EU level, including concerns

217 European Council Conclusions of 26–27 June 2014, EUCO Doc 79/14, Brussels, 27 June 2014. 218 For a call to take normative and criminological justifications seriously in the development of EU legislation, see N Persak, ‘EU Criminalisation, its Normative Justifications, and Criminological Considerations for EU Criminal Policy and Justice’ in J Ouwerkerk, J Altena, J Öberg and S Miettinen (eds), The Future of EU Criminal Justice Policy and Practice: Legal and Criminological Perspectives (Brill, 2019) 15–36.

EU Criminalisation Challenges and Prospects for Law Reform  131 regarding overcriminalisation. Challenges arise in particular in areas of crime where the EU had legislated before the entry into force of the Lisbon Treaty, but where legislation has not been revised since. This section will focus on four key areas of crime in order to address the multi-dimensional challenges of substantive criminal law reform at the EU level. The analysis will focus on: the criminalisation of organised crime as a prime example of securitised criminalisation; the criminalisation of racism and xenophobia as a competence used under the third pillar but not expressly envisaged under the Lisbon Treaty; in terms of functional criminalisation, the adoption of substantive criminal law on the protection of the environment, following the translation into the EU legal framework of the CJEU Environmental Crime ruling; and the case for decriminalisation in the case of facilitation of unauthorised entry, transit and residence.

A.  Securitised Criminalisation: Reconceptualising Organised Crime The adoption of substantive criminal law to tackle organised crime constitutes a prime example of securitised criminalisation. The need to fight organised crime has been one of the main motors for the advancement of European integration in the field of criminal law. It justified to a great extent the expansion of EU competence in criminal matters in Maastricht and beyond, and was elevated to becoming a top EU priority by a number of political declarations in the 1990s, including (with eastward enlargement looming) two Action Plans to combat organised crime in 1997 and 2000.219 Yet, as in the case of anti-corruption law,220 EU substantive criminal law on organised crime remains out of date, with the acquis dating back to before the entry into force of the Lisbon Treaty.221 With organised crime forming a central part of EU action in the third pillar and being included in the mandate of Europol, calls surfaced in the 1990s regarding the need for a harmonised definition of the term across the EU.222 These calls resulted in the adoption in 1998, under a Maastricht legal basis, of a Joint Action making it a criminal offence to participate in a criminal organisation in the EU Member States.223 A central term to be agreed in this context has been the concept of a ‘criminal organisation’. This has by no means been an easy task, given the lack of clarity as to the required degree of organisation and the differences in views within the criminological and law enforcement community (is organised crime understood as involving hierarchically structured criminal groups or are we talking about more loosely constructed networks?) and the different national priorities and paradigms in fighting organised 219 For the background, see Mitsilegas, Monar and Rees (n 52) ch 1. 220 On the gaps in EU substantive criminal law on corruption, see V Mitsilegas ‘The Aims and Limits of EU Anti-corruption Law’ in J Horder and P Alldridge (eds), Modern Bribery Law: Comparative Perspectives (Cambridge University Press, 2013) 160–95. For a call for the reform of EU substantive law on organised crime and corruption, see P Caeiro, L Foffani and V Mitsilegas, ‘Strengthening the Fight against Economic and Financial Crime within the EU’ (2020) 3 Eucrim 248. 221 As in the case of anti-corruption, the EU has emerged as a key actor in the development of global measures in the field; see ch 10. 222 See Mitsilegas (n 157) 565–68. 223 98/733/JHA, L351, 29 December 1998, 1.

132  Substantive Criminal Law crime (for instance, is the Mafia model applicable across Europe?).224 The solution reached in the Joint Action has been to define a criminal organisation as: [A] structured association, established over a period of time, of more than two persons, acting in concert with a view to committing offences which are punishable by deprivation of liberty or a detention order of a maximum of at least four years or a more serious penalty, whether such offences are an end in themselves or a means of obtaining material benefits and, where appropriate, of improperly influencing the operation of public authorities.225

This definition is far from clear, as terms such as ‘structured association’ and a ‘period of time’ remain unspecified.226 However, it proved to be influential in terms of the development of a definition of organised crime in the subsequent UN Convention on Transnational Organised Crime signed in Palermo in 2000.227 The definition of an organised criminal group therein is very similar to the one in the Joint Action,228 with the Convention in addition containing a definition of what constitutes a ‘structured group’.229 The latter definition is also far from clear and seems at odds with the very requirement of ‘structure’ in an organised crime group. A further issue of complexity in the negotiations of the Joint Action was the criminalisation and legal definition of participation in an organised crime group. The latter conduct had been a criminal offence only in a number of EU Member States, and even in those cases there had been significant differences with regard to the concepts used in domestic law.230 Moreover, in countries such as the UK, participation in organised crime was a concept used by law enforcement agencies, but was not a legal term, with the law criminalising conspiracy more broadly.231 In the light of these different legal approaches, the compromise reached in the Joint Action has been to offer Member States a choice between two options of criminalisation: Member States are called upon to punish by ‘effective, proportionate and dissuasive penalties’ one or both of the following types of conduct: (a) conduct by any person who, with intent and with knowledge of either the aim and general criminal activity of the organisation or the intention of the organisation to commit the offences in question, actively takes part in: ––

the organisation’s criminal activities falling within Article 1, even where that person does not take part in the actual execution of the offences concerned and, subject

224 For an analysis, see V Mitsilegas, ‘From National to Global, from Empirical to Legal: The Ambivalent Concept of Transnational Organised Crime’ in M Beare (ed), Critical Reflections on Transnational Organized Crime, Money Laundering and Corruption (University of Toronto Press, 2003) 55–87. 225 Art 1, sub-para 1. These offences include those mentioned in Art 2 of the Europol Convention and its Annex and carrying an equivalent sentence to that mentioned above (Art 1 sub-para 2). 226 See Mitsilegas (n 157). 227 For a commentary see D McClean, Transnational Organized Crime: A Commentary on the UN Convention and its Protocols (Oxford University Press, 2007). On the EU role in negotiating the Palermo Convention, see ch 10. 228 Article 2(a) of the UN Convention on Transnational Crime defines an organised crime group as ‘a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit’. 229 Article 2(c) defines a structured group as ‘a group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure’. 230 For a comparison between Italy and Germany, see Mitsilegas (n 224). For an overview of national approaches to organised crime in Europe, see C Fijnaut and L Paoli (eds), Organised Crime in Europe: Concepts, Patterns and Control Policies in the European Union and Beyond (Springer, 2004) 231 Mitsilegas (n 224).

EU Criminalisation Challenges and Prospects for Law Reform  133

––

to the general principles of the criminal law of the Member State concerned, even where the offences concerned are not committed, the organisation’s other activities in the further knowledge that his participation will contribute to the achievement of the organisation’s criminal activities falling within Article 1;

(b) conduct by any person consisting in an agreement with one or more persons that an activity should be pursued which, if carried out, would amount to the commission of offences falling within Article 1, even if that person does not take part in the actual execution of the activity.232

This result effectively meant that common law jurisdictions would not have to change their law to create a specific offence on participation in a criminal organisation, but would continue to prosecute on the basis of conspiracy, elements of which are clearly reflected in the second option cited above. For those seeking a harmonised legal definition of participation in a criminal organisation, the result may be far from satisfactory as the two options used do not converge on the central element of participation.233 However, this ‘dual’ model has also been adopted by the Palermo Convention, presumably to take into account specificities in common law jurisdictions.234 The wording of the options used in the Palermo Convention is similar to the wording of the Joint Action,235 with the Convention adding the criminalisation of ‘organising, directing, aiding, abetting, facilitating or counselling the commission of serious crime involving an organised crime group’.236 In 2005, the Commission tabled a proposal for a Framework Decision ‘on the fight against organised crime’ aiming at replacing the 1998 Joint Action.237 According to the Commission, the new proposal took into account developments since 1998, including the introduction of Framework Decisions as a form of third pillar law in Amsterdam and the need to take into account legislative developments such as the Palermo Convention and the EU Framework Decision on terrorism.238 The Commission proposal further harmonised the crime of participation in a criminal organisation (by deleting the conspiracy variant),239 aligned EU law with the Palermo Convention by the criminalisation of directing a criminal organisation240 and the definition of an organised crime group (including what constitutes a ‘structured’ group),241 added provisions on mitigating circumstances242 as well as specific provisions on penalty levels,243 and

232 98/733/JHA, L351, article 2(1). 233 For a discussion, see Mitsilegas (n 157) 571–72. 234 See also McClean (n 227) 67. Commenting on the implementation of art 5, he notes that ‘the statute books of the common law countries which have ratified the Convention will be searched in vain for crimes defined as set out in this Article. As has been clear from the beginning, the offences of conspiracy, soliciting, and other forms of participation in criminal conduct more than adequately cover the field described in the text of the Article’. 235 Art 5(1)(a). 236 ibid art 5(1)(b). 237 COM (2005) final, Brussels, 19 January 2005. 238 ibid 3, 4. 239 Art 2 of the proposal. 240 ibid art 2(b). 241 ibid art 1. 242 ibid art 4. 243 ibid art 3.

134  Substantive Criminal Law introduced specific provisions on the position of victims, along the lines of the Framework Decision on terrorism.244 Following complex negotiations, in April 2006 the Justice and Home Affairs Council reached a ‘consensus’ on the Framework Decision,245 which was eventually adopted in 2008.246 The agreed text retains the Commission’s draft as regards the definition of a criminal organisation.247 It introduces a series of penalty levels on the basis of the ‘minimum maximum’ model described above,248 as well as granting Member States the discretion to introduce certain aggravating circumstances into their domestic law.249 Provisions on mitigating circumstances and (albeit slightly watered down) the position of victims have also been introduced.250 However, there have also been major changes to the Commission’s proposal: the criminalisation of directing an organised crime group has been deleted from the text; and, strikingly, the Framework Decision re-introduces the approach adopted by the Joint Action of offering Member States the option of criminalising either participation in a criminal organisation or conspiracy.251 The re-introduction of options to allow Member States to choose between the criminalisation of participation in a criminal organisation and conspiracy caused the reaction of the Commission, which issued (joined by France and Italy) a strongly worded statement that is annexed to the Framework Decision. It states that: The Commission considers that the Framework Decision on the fight against organised crime fails to achieve the objective sought by the Commission in relation to Joint Action 98/733/ JHA on making it a criminal offence to participate in a criminal organisation in the Member States of the European Union, and in relation to the United Nations Convention Against Transnational Organised Crime … to which the Community has been a party since 29 April 2004. The Framework Decision does not achieve the minimum degree of approximation of acts of directing and participating in a criminal organisation on the basis of a single concept of such an organisation, as proposed by the Commission and as already adopted in Framework Decision 2002/475/JHA on the fight against terrorism. Furthermore, the Framework Decision enables Member States not to introduce the concept of criminal organisation but to continue to apply existing national criminal law by having recourse to general rules on participation in and preparation of specific offences. The Commission is therefore obliged to note that the Framework Decision does not achieve the objective of approximation of legislation on the fight against organised crime as provided for in the Hague Programme. (Emphasis added)

244 ibid art 8. 245 Justice and Home Affairs Council of 27–28 April 2006, Doc 8402/06 (Presse 106). 246 Council Framework Decision 2008/41/JHA on the fight against organized crime [2008] OJ L300/11. 247 ibid art 1. 248 ibid art 3(1) – minimum maximum penalty of two to five years. For the common law variant, the punishment may be the same maximum term of imprisonment as the offence at which the agreement is aimed. On the background regarding the penalty for the ‘common law’ variant, see Council Doc 5468/2/06, Brussels, 20 March 2006. 249 ibid art 3(2). The insertion of aggravating circumstances in the text has not been uncontroversial, in the light of the very different approaches on aggravating circumstances between Member States. A number of Member States objected to mandatory aggravating circumstances, arguing that this should be left to the judiciary – see Council Doc 5468/2/06. 250 ibid arts 4 and 8 respectively – the provision for assistance to victims’ families has been deleted. 251 ibid art 2.

EU Criminalisation Challenges and Prospects for Law Reform  135 EU substantive criminal law on organised crime has been criticised as being unduly vague and as not resulting in a high degree of harmonisation.252 The Commission reiterated its concerns in its 2016 evaluation, noting that it is of the opinion that the Framework Decision does not achieve the necessary minimum degree of approximation as regards directing or participating in a criminal organisation on the basis of a single concept of such an organisation and that it considers that the Framework Decision enables the Member States not to introduce the concept of criminal organisation, but to continue to apply existing national criminal law by having recourse to general rules on participation in and preparation of specific offences, creating additional divergences in the Framework Decision’s practical implementation.253 A renewed post-Lisbon, post-Brexit254 effort to revise the text of the 2008 Framework Decision may serve to focus on enhancing legal certainty in the criminalization of participation in a criminal organisation, contributing at the same time to a better understanding of what constitutes ‘organised crime’ for the purposes of European criminal law. Such a common understanding is essential in view of the fact that organised crime has a substantial transnational dimension and forms the basis not only of national investigations and prosecutions but also of cooperation between national judicial and police authorities across the EU. As with the other areas of crime analysed in this section, participation in a criminal organisation falls within the list of conduct for which the existence of dual criminality is no longer verified for judicial cooperation under the principle of mutual recognition.255 The fight against organised crime further justifies to a great extent the existence – and is central to the mandate – of EU criminal justice bodies such as Europol and Eurojust. Both forms of EU stimulated action may be seen as requiring harmonisation.256 Similar considerations apply with regard to the operation of the EPPO, whose mandate is defined inter alia by reference to the 2008 Framework Decision.257

B.  From Racism and Xenophobia to Criminalising Hate Speech EU criminal law harmonisation in the field of racism and xenophobia has been a matter of great controversy, notwithstanding the fact that combating racism and xenophobia is 252 See also V Militello, ‘The Notion of Organised Crime in EU Law’ in S Carnevale, S Forlati and O Giolo (eds), Redefining Organised Crime: A Challenge for the European Union? (Hart Publishing, 2017) 191–224. 253 European Commission, ‘Report based on Article 10 of Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime’ COM (2016) 448 final, 7 July 2016. The European Parliament has also called for further harmonisation: https://www.europarl.europa.eu/doceo/document/ TA-9-2020-0378_EN.html. 254 It is noteworthy that the UK legislator introduced a specific offence of participation in the activities of an organised crime group in s 45 of the Serious Crime Act 2015: see P Jarvis and R Earis, ‘Participating in the Activities of an Organised Crime Group: The New Offence’ [2015] Criminal Law Review 766. The participation offence co-exists with conspiracy in the domestic legal order. 255 See ch 4. 256 On the necessity of harmonisation (or ‘approximation’) in order to ensure the proper functioning of the relevant EU organs, see Weyembergh (n 1) 166–71. Weyembergh has developed a typology of approximation functions of criminal law in the EU; see more specifically A Weyembergh, ‘The Functions of Approximation of Penal Legislation within the European Union’ (2005) 12 Maastricht Journal of European and Comparative Law 149; see also A Weyembergh, ‘Approximation of Criminal Laws, the Constitutional Treaty and the Hague Programme’ (2005) 42 CML Rev 1567. 257 See ch 8. See also Mitsilegas (n 192).

136  Substantive Criminal Law expressly mentioned within the mandate of the EU action in the third pillar. Attempts to reach a harmonised approach in criminalising racist and xenophobic conduct have stumbled upon the great divergence in national attitudes to the extent to which such conduct should be criminalised. The first step towards using EU criminal law in the field occurred in the Maastricht era, with Member States adopting in 1996 a Joint Action ‘concerning action to combat racism and xenophobia’.258 The Joint Action defined racism and xenophobia as: (a) public incitement to discrimination, violence or racial hatred in respect of a group of persons or a member of such a group defined by reference to colour, race, religion or national or ethnic origin; (b) public condoning, for racist or xenophobic purposes, of crimes against humanity and human rights violations; (c) public denial of the crimes defined in Article 6 of the Charter of the International Military Tribunal appended to the London Agreement of 8 April 1945 insofar as it includes behaviour which is contemptuous of, or degrading to, a group of persons defined by reference to colour, race, religion or national or ethnic origin; (d) public dissemination or distribution of tracts, pictures or other material containing expressions of racism and xenophobia; (e) participation in the activities of groups, organisations or associations, which involve discrimination, violence, or racial, ethnic or religious hatred.259

The Joint Action required Member States to ensure ‘effective judicial cooperation’ with regard to offences based on the above types of behaviour. Effective judicial cooperation would be achieved either by criminalising such behaviour or, failing that and pending the adoption of any necessary provisions, by derogating from the principle of dual criminality for such behaviour.260 Thus, the Joint Action did not introduce a strong obligation for Member States to criminalise racism and xenophobia as defined therein. However, this relative ‘weakness’ of the text (along with the weakness of its form, it being merely a Joint Action) did not stop Member States concerned with the potential impact of the measure on their domestic criminal justice systems from inserting declarations aiming at preserving the domestic status quo. Hence, the UK stated that it would only apply the above obligations ‘where the relevant behaviour is threatening, abusive or insulting and is carried out with the intention of stirring up racial hatred or is likely to do so’,261 a wording which reflected UK domestic law in the field. Post-Amsterdam, in 2001, the Commission tabled a proposal for a Framework Decision aimed at replacing the 1996 Joint Action.262 The purpose of the Commission proposal was to ensure that the same racist and xenophobic conduct would be punishable in all Member States under a common criminal law approach and would thus achieve effective judicial cooperation. The list of offences in the 1996 Joint Action was thus expanded, and common definitions and penalties were introduced. The proposal

258 96/443/JHA, OJ L185, 24 July 1996, 5. 259 Title I(A). 260 ibid. 261 See Annex, Declaration 3. See also the Danish Declaration (Declaration 4), indicating that Denmark would apply the above obligations only where the relevant behaviour is threatening, abusive or insulting. 262 COM (2001) 664 final, Brussels, 28 November 2001.

EU Criminalisation Challenges and Prospects for Law Reform  137 caused concern in a number of Member States and was subject to lengthy negotiations, reflecting the differences in approaches in the various Member States.263 In the UK, one of the main concerns was that domestic law would have to be amended to include the criminalisation of incitement to religious hatred – an issue which has been controversial in recent years.264 However, inciting religious hatred eventually entered the criminal law statute book in the UK, before the adoption of the Framework Decision.265 Criminalisation in similar terms in the EU instrument would thus seem to be acceptable to the UK, but again only if the EU instrument would reflect domestic law – or at least if it did not require a change in the domestic law. In April 2007, the Council reached a ‘general approach’ on the text of the Framework Decision,266 which was eventually adopted in 2008.267 The Framework Decision does criminalise, inter alia, incitement to religious hatred, as well as, under certain conditions, ‘publicly condoning, denying or grossly trivialising’ crimes of, among others, genocide, war crimes and the Holocaust.268 However, there are exceptions aiming at addressing national sensitivities. With regard to criminalisation at the national level, a UK-inspired exception states that Member States may choose to punish only conduct which is either carried out in a manner likely to disturb public order or which is threatening, abusive or insulting.269 Moreover, the reference to religion is intended to cover at least ‘conduct which is a pretext for directing acts against a group of persons or a member of such a group defined by reference to race, colour, descent, or national or ethnic origin’.270 These provisions are aimed at ensuring that Member States would not have to change their – controversial and subject to lengthy negotiations – domestic criminal law.271 This is not the only limitation to the EU-wide criminalisation of racism and xenophobia. Member States’ concerns regarding the impact of such criminalisation on their domestic constitutions and fundamental rights, in particular freedom of expression, have led to the introduction in the body of the Framework Decision of a provision stating that the latter will not have the effect of modifying the obligation to respect fundamental rights, constitutional rules and fundamental principles, including freedom of expression and association.272 The provision becomes more specific by stating that the Framework Decision: [S]hall not have the effect of requiring Member States to take measures in contradiction to fundamental principles relating to freedom of association and freedom of expression, in

263 See M Bell, Race, Equality and the European Union (Oxford University Press, 2009) 264 See the UK government’s Explanatory Memorandum accompanying the Commission’s original proposal (para 13), reproduced in House of Lords European Union Committee, Combating Racism and Xenophobia – Defining Criminal Offences in the EU, 29th Report, session 2001–02, HL Paper 162. 265 Via the Racial and Religious Hatred Act 2006; for an analysis, see K Goodall, ‘Incitement to Religious Hatred: All Talk and No Substance?’ (2007) 70 Modern Law Review 89. 266 Doc 8665/07 (Presse 84). 267 Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law [2008] OJ L328/55. 268 ibid art 1(1). 269 ibid art 1(2). 270 ibid art 1 (3). 271 See the Explanatory Memorandum of the UK government accompanying an earlier draft of the Framework Decision, Doc 5118/07 (14 February 2007, para 20). 272 Council Framework Decision 2008/913/JHA (n 267) art 7(1).

138  Substantive Criminal Law particular freedom of the press and the freedom of expression in other media as they result from constitutional traditions or rules governing the rights and responsibilities of, and the procedural guarantees for, the press or other media where these rules relate to the determination or limitation of liability.273

The wording of the Framework Decision leaves much to be desired in terms of harmonisation. It may lead to quite divergent implementing laws as it may be seen as an invitation for Member States not to obstruct the balance between free speech and the criminalisation of racism which already exists in their domestic legal and constitutional systems. However, from a harmonisation point of view, this may not lead to optimal solutions, in particular for those hoping that the Framework Decision would create a level of legal certainty and common understanding regarding racism and xenophobia.274 According to the Commission, the clause may even be interpreted as giving precedence to national law in relation to EU law.275 However, this compromise clause has perhaps proven to be crucial in reaching (unanimous) agreement in such a controversial proposal where the need to send a strong EU message against racism and xenophobia eventually clashed with concerns regarding overcriminalisation and breach of fundamental rights. A view of the glass as ‘half-full’ may also indicate that this is a Framework Decision (repealing the weaker earlier Joint Action and expanding its content) containing some degree of criminal law harmonisation in the field of both offences and sanctions.276 From a substantive criminal law point of view, it is noteworthy that the export of domestic criminalisation approaches (for instance, on Holocaust denial) have led to calls for an even greater criminalisation of denial of other historical events or periods such as totalitarianism in Europe or of offences committed by totalitarian regimes. While this has not happened so far,277 this is an example of the potential of national diversity when exported across the EU. The deficit in the implementation of the Framework Decision has been confirmed by the Implementation Report published by the Commission in 2014, where the Commission noted, inter alia, that a number of Member States have fully and/or correctly not transposed all the provisions of the Framework Decision, namely in relation to the offences of denying, condoning and grossly trivialising certain crimes, and that while the majority of Member States have provisions on incitement to racist and xenophobic violence and hatred, these do not always seem to fully transpose the offences covered by the Framework Decision.278 In view of the complexity of implementation – and

273 ibid art 7(2). 274 This is especially in the light of the fact that racism and xenophobia is one of the offences for which the dual criminality requirement had been abolished in the European Arrest Warrant. However, art 3 of the Framework Decision introduces minimum maximum sanctions of at least one to three years of imprisonment – this may mean in practice that in the implementation of the Framework Decision, the three-year threshold required for the abolition of dual criminality in the Warrant may not be met. See also Bell (n 263). 275 See the attached declaration by the Commission to the Framework Decision. The Commission also refers to primacy of ‘Union’ law. 276 In this context, it is noteworthy that the Framework Decision contains a general provision on racist and xenophobic motivation as an aggravating factor for any offence other than those criminalised therein (art 4). 277 See the Council Declaration attached to the Framework Decision. 278 Commission Report on the implementation of Council Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law COM (2014) 27 final, 27 January 2014.

EU Criminalisation Challenges and Prospects for Law Reform  139 the need to view criminalisation within the broader context of the fundamental rights which may be affected – a Guidance Note on the application of the Framework Decision has been issued by the EU High Level Group on combating racism, xenophobia and other forms of intolerance in 2018.279 While the complexity in criminalisation remains, a further complexity has arisen from the fact that racism and xenophobia is not enumerated in the areas of crime for which EU securitised criminalisation if granted under Article 83(1) TFEU, which renders the revision of the Framework Decision constitutionally challenging. The Commission has published a Roadmap indicating its intention to adopt a Communication by the end of 2021 on expanding the list of areas of crime in Article 83(1) TFEU to include hate speech and hate crime in order to enable future adoption of substantive criminal law in the field.280 The Commission thus envisages making use of the constitutional potential of the last indent of Article 83(1) TFEU, according to which the competence of the EU in substantive criminal law may be expanded if, on the basis of developments in crime, the Council adopts unanimously and after consulting the European Parliament a decision identifying other areas of crime to those listed under the securitised criminalisation introduced in the second indent of Article 83(1). These areas of crime must meet the criteria stated in Article 83(1). It is submitted that hate crime and hate speech meet the criteria for securitised criminalisation stated therein: these are areas of particularly serious crime with a cross-border dimension resulting both from their nature and impact and from a special need to combat them on a common basis. The condition of the existence of developments in crime – in particular, online hate speech – is also met. It is for the Commission to substantiate on the basis of evidence that these criteria are met. It is hoped that the unanimity hurdle for the expansion of EU competence will be overcome. Negotiations for new legislation on hate crime and hate speech will provide the opportunity to develop a European response, and at the same time to discuss in detail and justify the parameters and limits of criminalisation in this field.

C.  Functional Criminalisation: Rethinking Environmental Crime A prime example of functional criminalisation preceding the entry into force of the Lisbon Treaty has been the adoption of EU substantive law in the field of environmental crime. The evolution of EU criminal law in the field has been analysed earlier in this chapter, with the CJEU ruling on environmental crime – since translated in the Lisbon Treaty largely into the functional criminalisation legal basis of Article 83(2) TFEU – also leading to the adoption of a new Environmental Crime Directive.281 The Directive 279 EU High Level Group on combating racism, xenophobia and other forms of intolerance, Guidance Note on the Practical Application of Council Framework Decision 2008/913/JHA, November 2018. The Guidance aims, inter alia, at a better understanding of the scope of the Framework Decision offences to enable more coherent and effective criminal justice responses. 280 https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12872-Hate-speech-&hate-crime-inclusion-on-list-of-EU-crimes_en. 281 Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law [2008] OJ L328/28.

140  Substantive Criminal Law introduced a complex legal framework against environmental crime.282 Article 3 of the Environmental Crime Directive obliges Member States to ensure that nine categories of forms of conduct constitute criminal offences, provided that two conditions are met: they have to be unlawful and committed intentionally, or at least with serious negligence.283 While ‘unlawfulness’ does not imply that conduct shall necessarily be active, since the ‘failure to comply with a legal duty to act can have the same effect as active behaviour’,284 it means that conduct is criminalised when it infringes either the legislation adopted pursuant to the European Treaties to be found in Annexes A or B to the Directive, or a national piece of legislation, a national regulation or a decision taken by a national authority giving effect to the legislation adopted pursuant to the Treaties.285 The obligation for Member States to criminalise forms of conduct that are ‘unlawful’ confirms the accessory nature of environmental criminal law. Criminalisation by reference to other environmental regulation measures does not contribute to a high degree of harmonisation or to legal certainty in criminal law.286 The Annexes to the Directive list more than 70 legal instruments adopted by the EU, so that in many instances, it is not immediately clear if and when a given conduct is criminal, nor it is easy to prove the intentional subjective element of the illegal conduct. This challenge is exacerbated considering that a large part of the list is currently out of date. The nine categories of individual conduct287 that Member States shall criminalise can be classified according to the legislative technique used to define them. Four of these forms of conduct have to be punished when they cause, or are likely to cause: i) death or serious injury to any person; or ii) ‘substantial damage’ to the quality of air, soil, water, or to animals or plants. In more detail, these four categories are: –– the discharge, emission or introduction of materials or ionising radiation into air, soil or water (Article 3(a)); –– the collection, transport, recovery or disposal of waste, including the supervision of such operations and the aftercare of disposal sites, and including action taken as a dealer or a broker (waste management) (Article 3(b)); –– the operation of a plant in which a dangerous activity is carried out or in which dangerous substances or preparations are stored or used (Article 3(d));288 and –– the production, processing, handling, use, holding, storage, transport, import, export or disposal of nuclear materials or other hazardous radioactive substances (Article 3(e)). 282 For a detailed analysis, see V Mitsilegas, E Fasoli, F Giuffrida and M Fitzmaurice, The Legal Regulation of Environmental Crime (Brill, forthcoming, 2022). 283 Article 3 of the Environmental Crime Directive. 284 Recital No 6 of the Environmental Crime Directive. As a consequence, failures to comply with a legal duty to act should also be subject to criminal penalties, if they meet the other requirements laid down in the Directive (ibid). 285 Article 2(a) of the Environmental Crime Directive. 286 V Mitsilegas, ‘The Third Wave of Third Pillar Law: Which Direction for EU Criminal Justice?’ (2009) 34 European Law Review 523. 287 The following section deals with the liability of legal persons. 288 In this case, the Directive requires that the operation of the plant causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants ‘outside the plant’ (art 3(d) of the Environmental Crime Directive).

EU Criminalisation Challenges and Prospects for Law Reform  141 Further complications arise since the Directive relies on unclear benchmarks against which criminalisation should follow at the national level, such as ‘serious’ injury to any person and ‘substantial’ damage to the quality of air, soil, water, or to animals or plants. It has indeed been noted that the notion of ‘substantial damage’ is ‘too vague and not clear enough’ and that ‘criteria, guidelines or instructions to define [this and other notions] are absent or insufficient’289 at the national level. Some authors have however pointed out that more detailed rules would have been difficult to agree on the political level and would have limited the leeway of Member States to accommodate the Directive in their legal systems.290 The overview of the criminal offences established in the Environmental Crime Directive lends support to the well-known argument according to which the boundaries of the notion of ‘environmental crime’ are unclear. Alike to that of environment itself, ‘environmental crime’ is a broad and ambiguous concept encompassing very different areas of conduct,291 and not all of them are included in Article 3 of the Directive. For instance, the Directive does not regulate crimes concerning food safety or animal welfare,292 as well as illegal, unreported and unregulated fishing and trade in hazardous chemicals.293 Moreover, a number of terms underpinning criminal conduct – such as substantial damage’, ‘negligible quantity’ or ‘significant deterioration’ have bene left undefined in the Directive.294 In its evaluation Report on the implementation of the Directive, the Commission has noted that there are diverging approaches among Member States in terms of the definition of criminal offences, the liability of legal persons (liability can be either criminal, administrative or both) and sanction levels applicable to both natural and legal persons – with the Commission recognising the existence of differences in the definition of criminal offences in practice between Member States and differences in the understanding of which conduct falls or does not fall under a particular environmental crime category which can impact legal certainty and cross-border cooperation.295 The lack of legal certainty and the varied implementation are both key issues to be addressed in the current revision of EU criminal law in the field of the protection of the environment. There is currently considerable political momentum towards the reform 289 ‘Final report on the 8th round of mutual evaluations on “The practical implementation and operation of the European polices on preventing and combating Environmental Crime”’ Council Doc 14852/19, 5 December 2019, 56. 290 GM Vagliasindi, ‘The eu Environmental Crime Directive’ in A Farmer, M Faure and G M Vagliasindi (eds) Environmental Crime in Europe (Oxford and Portland Oregon, Hart, 2017) 291 For different views on this topic, see, for instance, P Cleary Yeager and SS Simpson, ‘Environmental Crime’ in M Tonry (ed), The Oxford Handbook of Crime and Public Policy (Oxford University Press, 2009) 325; S Chin, W Veening and C Gerstetter, ‘EFFACE Policy Brief 1: Limitations and Challenges of the Criminal Justice System in Addressing Environmental Crime’ (2014) 4–5; A Farmer, AR Germani and R Sollund, ‘Conclusions of the EFFACE Case Studies’ (2015) 7–10; EnviCrimeNet, ‘Report on Environmental Crime’ (2016) 4, www.envicrimenet.eu/images/docs/envicrimenet%20report%20on%20environmental%20crime. pdf. 292 EnviCrimeNet and Europol, ‘Intelligence Project on Environmental Crime. Report on Environmental Crime in Europe’ (2015) 11, http://www.envicrimenet.eu/reports. 293 R Pereira, Environmental Criminal Liability and Enforcement in European and International Law (Brill, 2015) 255–61. 294 Commission Staff Working Document Evaluation of the Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law (Environmental Crime Directive), SWD(2020) 259 final, Part 1/2, SWD(2020) 259 final, 28 October 2020. 295 ibid 35–36.

142  Substantive Criminal Law of the EU acquis in the field. Only a few days after her appointment, the Commission presided by Ursula von der Leyen tabled a Communication on the ‘European Green Deal’296 which included a reference to environmental crime relating initiatives, stating that the Commission ‘will promote action by the EU, its Member States and the international community to step up efforts against environmental crime’.297 In 2019, the Commission conducted an assessment of the Environmental Crime Directive, focusing on waste and wildlife crime.298 The Finnish Presidency of the Council (second half of 2019) issued a report in October 2019 on the state of environmental criminal law in the European Union.299 At the time of writing, the Commission is developing a proposal for a new Directive on environmental crime. A new initiative will provide the opportunity to re-think the parameters of functional criminalisation in the field of the protection of the environment. Ten years after the entry into force of the Lisbon Treaty, the time has come to disassociate criminal law on the protection of the environment from the debate on competence which has led to the CJE environmental crime ruling and the ensuing Directive which is currently in force. A new text will provide the opportunity to link expressly aspects of environmental crime with their organised and financial crime dimensions.300 It will also provide an opportunity to achieve a greater degree of legal certainty in terms of criminalisation, by focusing the debate on what kind of conduct the EU should be criminalising in the first place. In doing so, the time may have come to stop treating criminal law on the environment as ancillary to administrative law, and to define the elements of self-standing, autonomous offences against the environment at the EU level.

D.  The Case for Decriminalisation: Facilitation of Unauthorised Entry, Transit and Stay While the discussion on the drafting and implementation of existing EU substantive criminal law instruments focuses largely on issues of scope, legal certainty and the 296 Commission, ‘The European Green Deal’ COM (2019) 640 final, 11 December 2019. 297 ibid 23. 298 Commission, ‘Evaluation Roadmap. Evaluation of the Environmental Crime Directive’ (2019), https:// ec.europa.eu/environment/legal/crime/legis_en.htm. Already in 2015, highlighting the significant risks connected with environmental crime, the Commission claimed it would ‘consider the need to strengthening compliance monitoring and enforcement, for instance by increasing training for enforcement staff, support for relevant networks of professionals, and by further approximating criminal sanctions throughout the EU’ (Commission, ‘The European Agenda on Security’ COM (2015) 185 final, 28 April 2015, 18). 299 Council Presidency, ‘EU environmental criminal law – Presidency report’, Council Doc 12801/19, 4 October 2019. In further previous documents, the Council had called attention to environmental crime and the need to tackle it effectively at the EU level. See, for instance, ‘Council Conclusions on countering environmental crime – Council conclusions (8 December 2016)’, Council Doc 15412/16, 12 December 2016; ‘Council conclusions on setting the EU’s priorities for the fight against organised and serious international crime between 2018 and 2021’, https://data.consilium.europa.eu/doc/document/ST-8654-2017-INIT/en/pdf. 300 On the need to take the links between environmental crime and organised crime and money laundering seriously, see C Gerstetter, M Faure, V Mitsilegas et al, Environmental Crime and the EU: Synthesis of the Research Project ‘European Union Action to Fight Environmental Crime’ (EFFACE) (Ecologic Institute, 2016); and V Mitsilegas, ‘Contribution to Conclusions and Recommendations on Environmental Crime: Harmonisation of Substantive Environmental Criminal Law at EU Level’, EFFACE project, January 2016, https://www. ecologic.eu/sites/default/files/publication/2016/efface_conclusions_recommendations_harmonisation.pdf.

EU Criminalisation Challenges and Prospects for Law Reform  143 impact on harmonisation, the express question of whether EU intervention in the field of substantive criminal law has the potential to lead to decriminalisation is raised less frequently.301 Nowhere does the case for decriminalisation arise more prominently than in the case of the criminalisation of human smuggling. The relevant EU legal framework is set out by a Directive defining what is called in EU law the ‘facilitation of unauthorised entry, transit and residence’302 accompanied – in the light of the first pillar competence limits regarding criminalisation at the time303 – by a third pillar Framework Decision confirming that the conduct defined as facilitation in the Directive will be treated as a criminal offence.304 Both instruments of what is rather ‘old’ law by EU standards predate by far the entry into force of the Lisbon Treaty and, having being proposed not by the Commission but by a Member State (the French government), they have been negotiated and adopted with minimal scrutiny and debate.305 The EU Facilitation Directive goes further than international law – the UN Palermo Convention Smuggling Protocol306 – in that it dispenses with the condition of obtaining a financial or other material benefit for the smuggling offence to be established.307 The Directive calls upon Member States to adopt criminal sanctions for ‘any person who intentionally assists a person who is not a national of a Member State to enter, or transit across, the territory of a Member State in breach of the laws of the State concerned on the entry or transit of aliens’.308 Instigation, complicity and attempt are also criminalised.309 The Facilitation Framework Decision contains a general obligation for Member States to criminalise such conduct310 includes a general provision on sanctions,311 which may be accompanied by parallel sanctions including confiscation,312 and imposes specific high levels of sanctions only when certain aggravating circumstances occur.313

301 For an exception, see V Mitsilegas, ‘Decriminalisation in the Law of the European Union’ in Ouwerkerk et al (n 218) 106–21. 302 Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence [2002] OJ L328/4 (hereinafter ‘Facilitation Directive’). 303 For an overview, see Mitsilegas, EU Criminal Law (n 157) ch 2. 304 Council Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence [2002] OJ L328/1 (hereinafter ‘Facilitation Framework Decision’). 305 For the background on this, see V Mitsilegas, J Monar and W Rees, The European Union and Internal Security (Palgrave/Macmillan, 2003) 106–08. 306 On the role of the EU in negotiating the Protocol, see ch 10. 307 Article 1(1)(a) of the Facilitation Directive. 308 ibid. 309 ibid art 2. 310 According to art 1(1) of the Framework Decision, each Member State shall take the measures necessary to ensure that the infringements defined in Articles 1 and 2 of the Directive are punishable by effective, proportionate and dissuasive criminal penalties which may entail extradition (Article 1(3)). Article 1(6) of the Facilitation Framework Decision further states that, if imperative to preserve the coherence of the national penalty system, the actions defined in paragraph 3 shall be punishable by custodial sentences with a maximum sentence of not less than six years, provided that it is among the most severe maximum sentences available for crimes of comparable gravity. 311 Article 1(1) of the Framework Decision: infringements shall be punishable by effective, proportionate and dissuasive penalties which entail extradition. 312 Article 1(2) of the Framework Decision. 313 According to art 1(3) of the Facilitation Framework Decision, Member States must ensure that, when committed for financial gain, the infringements defined in art 1(1)(a) and, to the relevant extent, art 2(a) of Directive 2002/90/EC are punishable by custodial sentences with a maximum sentence of not less than

144  Substantive Criminal Law Notwithstanding the lack of specificity as regards the level of criminal sanctions to be imposed by Member States, it is clear that the scope of criminalisation at the EU level is very broad, as it can cover any form of assistance to enter or transit the territory of an EU Member State in breach of what is essentially administrative law (such as cases where the migrant is traveling without travel documents).314 It is clear that the EU approach aims at preventing entry into EU territory and targets not only the smugglers but also the smuggled. Alessandro Spena makes an insightful point in legal semiotics by drawing our attention to the terminological differences between international law, which defines smuggling as procuring irregular entry, and EU law, which focuses on assistance. Spena notes that ‘while assisting denotes an ancillary action, which entails that the principal action is performed by the person who is assisted, “procuring” denotes instead a stand-alone action, with a meaning of its own’.315 The negative impact of the EU approach towards criminalisation on third-country nationals wishing to apply for asylum is evident. The Directive does attempt to address this issue by granting Member States the discretion not to impose sanctions for human smuggling and instead to apply their national law and practice for cases where the aim of the behaviour is to provide humanitarian assistance to the person concerned.316 However, this provision is discretionary and its value in redressing the balance set out by the broad definition and criminalisation of human smuggling under EU law is questionable. According to a recent Commission Report, only seven Member States specifically include an exemption from punishment for facilitation for humanitarian assistance in their domestic law.317 By using the threat of criminal sanctions, the EU measures on human smuggling essentially aim at deterring individuals and organisations from coming into contact and assisting any third-country national wishing to enter the territory of EU Member States. In spite of these shortcomings, the Commission has pointedly declined to initiate the process of tabling a new text post-Lisbon to revise the existing ‘Facilitators Package’. A missed opportunity to decriminalise in this context has been the recent Commission evaluation of the EU criminal law framework on migrant smuggling.318 The Commission evaluation of the EU criminal law framework on human smuggling provided an opportunity for law reform in order to align the EU framework more closely with the approach adopted by the UN Convention on Transnational Organised Crime and to eight years where they are committed in any of the following circumstances: the offence was committed as an activity of a criminal organisation; and the offence was committed while endangering the lives of the persons who are the subject of the offence. 314 For a critical analysis, see V Mitsilegas, ‘The Normative Foundations of the Criminalisation of Human Smuggling. Exploring the Fault Lines between European and International Law’ (2019) 10 New Journal of European Criminal Law 68; see also V Mitsilegas, ‘The Criminalisation of Migration in the Law of the European Union. Challenging the Preventive Paradigm’ in G-L Gatta, V Mitsilegas and S Zirulia (eds), Controlling Immigration through Criminal Law. European and Comparative Perspectives on ‘Crimmigration’ (Hart Publishing, 2021) 25–45. 315 A Spena, ‘Human Smuggling and Irregular Immigration in the EU: From Complicity to Exploitation?’ in S Carrera and E Guild (eds), Irregular Migration, Trafficking and Smuggling of Human Beings (CEPS, 2016) 37. 316 Article 1(2) of the Facilitation Directive. 317 Commission, ‘Staff Working Document – REFIT Evaluation of the EU legal framework against facilitation of unauthorised entry, transit and residence’ SWD (2017) 117 final, Brussels, 22 March 2017, 14. 318 Facilitation Framework Decision, read in conjunction with the Facilitation Directive. For the background to this, see V Mitsilegas, ‘The Criminalisation of Migration in the Law of the European Union: Challenging the Preventive Paradigm’ in G-L Gatta, V Mitsilegas and S Zirulia (eds), Controlling Immigration through Criminal Law. European and Comparative Perspectives on ‘Crimmigration (Hart Publishing, 2021) 25–45.

EU Criminalisation Challenges and Prospects for Law Reform  145 address the human rights concerns arising from the overcriminalisation of the facilitation of unauthorised entry, transit and residence. Yet, the opportunity for law reform along these lines has been markedly and spectacularly missed: in its evaluation, the Commission has come up defending resolutely the status quo.319 The Commission declined to put forward proposals for law reform to expressly include a requirement for financial gain in the scope of the EU criminal offences on human smuggling. It claimed that at that point there was still limited intelligence available on the nature and extent of illicit financial flows associated to migrant smuggling and noted that: [T]he cash intensive nature of the payment methods linked to smuggling makes it difficult to trace illicit financial flows and in turn to conduct investigations on the financial nature of the crime … since the time of the adoption of the Facilitators Package and still today, the risks that such difficulties in tracing financial flows connected to migrant smuggling would disproportionately hamper the investigation and prosecution of this crime, affecting states’ legitimate interest to control borders and regulate migration flows, have been raised as a reason to avoid including a constituent financial gain element in the offence of facilitating irregular border crossing.320

The Commission added that it is difficult to disentangle the effects of the legal framework from the wider array of policy tools and enhanced operational cooperation to counter migrant smuggling, which have been triggered by the crisis321 and therefore that ‘there is no sufficient evidence to draw firm conclusions about the need for a revision of the Facilitators package at this point in time’.322 The Commission’s evaluation of the EU anti-smuggling framework further states generally and unconvincingly that there is limited evidence that social workers, family members or citizens acting out of compassion have been prosecuted for human smuggling.323 However, this assertion is blatantly contradicted by multiple attempts across the EU to criminalise – if not demonise – the humanitarian work of civil society and to create a ‘hostile environment’ against humanitarian action.324 The Commission’s reasoning for inaction is weak and lopsided. Rather than critically examining the legality and effectiveness of the current EU substantive criminal law framework on human smuggling, it justifies choices in criminalisation on the grounds of boosting investigatory and prosecutorial interests. In this manner, substantive criminal law becomes a mere tool for prosecutorial efficiency rather than reflecting normative or societal choices for criminalisation. By declining to adjust EU law, the Commission has missed three opportunities: to align EU law with international law on the criminalisation of human smuggling; to modernise (or ‘Lisbonise’) – as in the case of the ‘parallel’ offences of human t­rafficking325 – the EU legal framework on human smuggling by taking more fully into account the 319 Commission (n 317). 320 ibid 9. 321 ibid 34. 322 ibid 35. 323 Commission (n 317) 21. 324 For a detailed analysis of targeting NGOs on the ground, see, S Carrera, V Mitsilegas, J Allsopp and L Viosiliute, Policing Humanitarianism (Hart Publishing, 2019). 325 V Mitsilegas and N Vavoula, ‘Criminal Law: Institutional Rebalancing and Judicialization as Drivers of Policy Change’ in F Trauner and A Ripoll Servent (eds), Policy Change in the Area of Freedom, Security and Justice: How Institutions Matter (Routledge, 2015) 133.

146  Substantive Criminal Law human rights obligations of the EU enhanced after the entry into force of the Lisbon Treaty and the constitutionalisation of the EU Charter;326 and, fundamentally, an opportunity for decriminalisation in the field of EU criminal law.327 Notwithstanding the serious human rights consequences that overcriminalisation in this field entails, the Commission declined in its latest intervention on the EU Pact on Migration and Asylum to introduce new legislation in this field – it merely produced non-legally binding guidance on the implementation of the EU framework.328 This intervention does not go far enough and continues to leave a large margin of discretion to Member States to overcriminalise, including to use criminal law to target humanitarian action by civil society, citizens and migrants themselves. In the absence of legislative intervention, it will increasingly be for the courts to address the serious fundamental rights and rule of law shortcomings of the current EU substantive criminal law framework and its implementation.329

X. Conclusion The debate over the extent of EU competence to criminalise and introduce criminal sanctions before and after the entry into force of the Lisbon Treaty is inextricably linked to the broader discussion of the substance of the EU criminalisation policy. In the preLisbon third pillar world, the focus by EU institutions has been largely to determine the constitutional parameters of EU competence in the field, without considering the potential overcriminalisation impact that this framing of the issue may have.330 The entry into force of the Lisbon Treaty has not brought an end to the competence debate, but can still serve to refocus the mind on the impact of the exercise of EU competence in substantive criminal law upon the EU’s criminalisation policy. A key question in this context is whether, irrespective of the existence of EU competence to legislate, criminal law is the most effective way to address security threats or achieve the effective implementation of EU policies. This question is central in the light of the constitutional

326 See ch 1. 327 For a broader analysis on decriminalisation in EU criminal law, see V Mitsilegas, ‘From Overcriminalisation to Decriminalisation: The Many Faces of Effectiveness in European Criminal Law’ (2014) 5 New Journal of European Criminal Law 415. 328 Communication from the Commission Guidance on the implementation of EU rules on definition and prevention of the facilitation of unauthorised entry, transit and residence [2020] OJ C 323/1. The Guidance states that Article 1 of the Facilitation Directive must be interpreted as follows: ‘i) humanitarian assistance that is mandated by law cannot and must not be criminalised; ii) in particular, the criminalisation of NGOs or any other non-state actors that carry out search and rescue operations at sea, while complying with the relevant legal framework, amounts to a breach of international law, and therefore is not permitted by EU law; iii) where applicable, assessment of whether an act falls within the concept of ‘humanitarian assistance’ in Article 1(2) of the Directive – a concept that cannot be construed in a manner that would allow an act mandated by law to be criminalised – should be carried out on a case-by-case basis, taking into account all the relevant circumstances’. 329 For an overview of the emerging case law in Italy, see S Zirulia, ‘Is That a Smuggler? The Blurring Line between Facilitating Illegal Immigration and Providing Humanitarian Assistance at the European Borders’ in Gatta, Mitsilegas and Zirulia (n 314) 235–66. 330 V Mitsilegas, ‘The Third Wave of Third Pillar Law: Which Direction for EU Criminal Justice?’ (2009) 34 EL Rev 523.

Conclusion  147 affirmation by the Lisbon Treaty of the EU’s functional criminalisation competence. The use of the Lisbon legal bases on substantive criminal law will test this assumption. PostLisbon practice thus far has shown a rather measured use of the possibilities offered by the Lisbon Treaty and has highlighted a number of areas of remaining uncertainty and controversy with regard to the extent of the EU’s powers to criminalise. What this chapter has attempted to demonstrate is that the development of EU substantive criminal law in conformity with constitutional principles of EU law, and in full respect of the Charter, should lead to a more measured and focused use of criminal law and a reflection not only on the question of whether the EU has competence to criminalise, but also on the fundamental question of whether the EU should criminalise. In this context, it should not be forgotten that supranational criminal law after Lisbon has the potential to lead not to overcriminalisation, but to a process of decriminalisation.

3 Ne Bis in Idem and Conflicts of Jurisdiction VALMASIS MITSILEGAS AND FABIO GIUFFRIDA*

I. Introduction The right not to be tried or punished twice (bis) for an offence that has already been finally judged (idem) – expressed as the prohibition of double jeopardy in common law jurisdictions – is a fundamental principle in many, if not all, EU Member States.1 This principle is also recognised in several criminal justice systems all over the world and enshrined in various international and supranational legal instruments, such as the International Covenant on Civil and Political Rights, Protocol No 7 to the ECHR and the EU Charter of Fundamental Rights.2 At the national level, the determination of the parameters of the ne bis in idem principle reflects the balance between state demands for delivering effective criminal justice on the one hand and the need to ensure legal certainty and the finality of judicial decisions on the other.3 In this manner, ne bis in idem has both a rule of law and a human rights function.4 The rule of law function arises from the need to achieve legal certainty and finality with regard to state action in the field of criminal law. The human rights function – which is linked inextricably to the rule of law function – arises from the need to protect the rights of affected ­individuals and address * The opinions expressed in this chapter by Fabio Giuffrida are the personal opinions of the author and do not reflect those of the European Commission. 1 V Mitsilegas and F Giuffrida, ‘Ne Bis in Idem’ in R Sicurella et al (eds), General Principles for a Common Criminal Law Framework in the EU: A Guide for Legal Practitioners (Giuffrè, 2017) 209–42, at 209, from which this chapter partly draws. 2 For an overview, see JL de Lacuesta, ‘Concurrent National and International Criminal Jurisdiction and the Principle “Ne Bis in Idem”. General Report’ (2002) 73 Revue Internationale de Droit Pénal 707; B van Bockel, The Ne Bis in Idem Principle in EU Law (Kluwer Law International, 2010) 13ff; J Tomkin, ‘Article 50’ in S Peers et al (eds), The EU Charter of Fundamental Rights: A Commentary (CH Beck/Hart Publishing/Nomos, 2014) 1373–412, at 1379–84. 3 On various aspects of legal certainty in this context, see C van den Wyngaert and G Stessens, ‘The International Non Bis in Idem Principle: Resolving Some of the Unanswered Questions’ (1999) 48(4) International and Comparative Law Quarterly 779. See also van Bockel (n 2) ch 2. 4 See, eg, van Bockel (n 2) 25–30. For an historical overview of the evolution of this principle, see J Lelieur, ‘“Transnationalising” Ne Bis in Idem: How the Rule of Ne Bis in Idem Reveals the Principle of Personal Legal Certainty’ (2013) 9(4) Utrecht Law Journal 198, 199–202.

Introduction  149 the imbalance between individual rights and state power: the state should not be able to threaten individuals perennially with prosecution when criminal proceedings for the same conduct have been finalised once. The contrary would lead to a constant state of uncertainty and transform citizens into perennial suspects, eroding the relationship of trust between the individual and the state. On the other hand, limitations to the ne bis in idem principle have been advocated as necessary in order to enhance trust in the state as a security provider effectively delivering broader criminal justice objectives. Thus, questions of the delimitation of the ne bis in idem principle have to address fundamental choices of justice and of the relationship between the individual and the state in a system based upon the rule of law. These questions are central in the determination of the parameters of the ne bis in idem principle in a domestic context, but are equally valid in the context of interstate cooperation in criminal matters necessitating the development of a cross-border, or transnational, ne bis in idem principle.5 In the context of EU criminal law, ne bis in idem has traditionally been related to the challenge of providing clear and legitimate answers to the question of how to achieve justice in cases of cross-border prosecutions. In Europe’s AFSJ, transnational ne bis in idem was first introduced in Article 54 of the Convention Implementing the Schengen Agreement (CISA),6 which forbids prosecution – in any Member State – of a person who has already been judged in any other Member State. It is also enshrined, with a slightly different wording,7 in Article 50 of the EU Charter of Fundamental Rights. The inclusion of the ne bis in idem principle in the Schengen Convention, and subsequently in EU law as a consequence both of its inclusion in the Charter and of the incorporation of the Schengen acquis into the EU legal order by the Amsterdam Treaty,8 is inextricably linked to rethinking territoriality in the EU, in particular as regards the Schengen area. A person who is exercising free movement rights in a borderless area may not be penalised doubly by being subject to multiple prosecutions for the same acts as a result of them crossing borders. EU Member States must respect the outcome of proceedings in other Member States in this context under the conditions set out by the Schengen Convention. This represents another side of mutual recognition in criminal matters: the recognition of decisions finally disposing trials. This form of mutual recognition differs from the European Arrest Warrant and the other measures described in the previous chapter, as it does not require the active enforcement of an order in the executing Member State by coercive means, but rather action stopping prosecution. In addition to being a selfstanding fundamental right under the Charter, ne bis in idem is indeed also a ground 5 R Roth, ‘Non Bis in Idem Transnational: Vers de Nouveaux Paradigmes?’ in S Braum and A Weyembergh (eds), Le Contrôle Juridictionnel dans l’Espace Pénal Européen (Editions de l’Université de Bruxelles, 2009) 121–41; J AE Vervaele, ‘Ne Bis in Idem: Towards a Transnational Constitutional Principle in the EU?’ (2013) 9(4) Utrecht Law Review 211. 6 Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders [2000] OJ L239, 22 September, 19. 7 See section II below. 8 Protocol annexed to the Treaty on European Union and to the Treaty establishing the European Community – Protocol integrating the Schengen acquis into the framework of the European Union [1997] OJ C340, 10 November, 93. A similar Protocol is annexed to the Treaty of Lisbon (Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union [2012] OJ C326, 26 October, 290).

150  Ne Bis in Idem and Conflicts of Jurisdiction for refusal to execute mutual recognition instruments.9 In this manner, it constitutes a safeguard for the individual concerned and may have protective rather than enforcement consequences. As will be discussed below, the protective dimension of ne bis in idem has been further enhanced by the Court of Justice’s decisions ruling that the same person cannot be punished twice for the same acts, which is a broader notion than the ‘same offence’ and thus extends the applicability of the ne bis in idem principle. Notwithstanding the inclusion of the ne bis in idem principle in primary and secondary EU legislation, there has been no further elaboration or clarification of the principle by EU legislation.10 A number of questions have thus arisen regarding the precise definition of the elements of ne bis in idem, such as the definition of idem11 and the definition of bis – what is essentially meant by a trial being ‘finally disposed of ’.12 In the light of this uncertainty regarding the reach of ne bis in idem in EU law, it has not always been easy for national courts to grapple with the principle and define its parameters. This has led to a series of references by national courts to Luxembourg for preliminary rulings, which have resulted in the development of a quite substantial case law on ne bis in idem by the Court of Justice. After an overview of the main European legal texts in which the prohibition of double jeopardy is included, this chapter will first look at the development of ne bis in idem – in its cross-border dimension – as a fundamental principle of EU law and then at the mechanisms to manage state sovereignty on the issue of which Member State should prosecute in the case of concurrent jurisdictions. Section V will examine a recent trend in the case law of European and national courts concerning ne bis in idem, namely the application of this principle – at the national level – to cases of administrative and criminal proceedings concerning the same fact.

II.  Legislation on Ne Bis in Idem at the European Level In addition to mutual recognition instruments, where ne bis in idem features as a ground for non-execution,13 ne bis in idem is most notably provided for, in its

9 See, eg, art 3(2) of the Framework Decision on the European Arrest Warrant; art 11(1)(d) of the Directive on the European Investigation Order; and art 8(1)(a) of the Regulation on the mutual recognition of freezing orders and confiscation orders. On mutual recognition, see ch 2. 10 During its 2003 EU presidency, the Greek government tabled a proposal for third pillar legislation harmonising the definition of ne bis in idem: see ‘Initiative of the Hellenic Republic for the adoption of a Framework Decision of the Council on the application of the “ne bis in idem” principle’, Council Doc 6356/03, Brussels, 13 February 2003. Negotiations on the proposal were however suspended in 2004 (see Conclusions of Justice and Home Affairs Council of 19 December 2004, Council Doc 11161/04, 15). The Commission has since tabled a Green Paper on conflicts of jurisdiction and ne bis in idem attempting to take the issue further (COM (2005) 696 final, Brussels, 23 December 2005 and SEC (2005) 1767). See more in section IV below. 11 Whether the principle applies to the ‘same acts’ or to the ‘same offences’, and what constitutes a ‘same’ act or offence. 12 Whether the application of the principle is limited to judicial decisions determining a person’s guilt or innocence, or whether it has a broader application to include cases where a prosecution is terminated on procedural grounds (eg, if dropped by a public prosecutor in cases closed by plea bargaining or due to the application of the statute of limitation). 13 See n 9 above.

Legislation on Ne Bis in Idem at the European Level  151 transnational dimension, by the Schengen Convention and the Charter, and by Protocol No 7 to the ECHR in its national version.14 Article 54 of the Schengen Convention sets out the principle as follows: A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party. (Emphasis added)

Article 54 of the Convention applies in all EU Member States and in four non-EU countries that are parties to the Schengen acquis (Iceland, Norway, Switzerland and Liechtenstein).15 As far as the applicability ratione temporis is concerned, the Court of Justice examined whether Article 54 CISA applies in cases where the Convention, at the time of the first proceedings, was not yet in force in the state which ruled on the case. Since ne bis in idem comes into play when investigations or prosecutions on the same facts are initiated a second time, the Court submitted that it is only necessary to assess whether the Convention was in force – at the time of the second proceedings – in the second state.16 As for the Charter of Fundamental Rights, Article 50 reads as follows: ‘No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.’ The Charter resembles the text of the Schengen Convention, for it provides for the transnational version of ne bis in idem (‘within the Union’), although it refers to the same ‘offence’ rather than ‘same acts’ and does not replicate the ‘enforcement condition’ of Article 54 CISA (‘where he is sentenced, the sentence has been served or is currently being served or can no longer be carried out’). The issue of the enduring validity of this clause is discussed below.17 Finally, as far as the Council of Europe is concerned, the prohibition of double jeopardy is enshrined in Article 4 of Protocol No 7 to the ECHR. Germany and the Netherlands have not yet ratified the Protocol, while the UK has not even signed it.18 The Protocol is instead in force in all the other EU Member States, as well as in the 19 States Parties to the Council of Europe which are not EU countries. Article 4 of Protocol No 7 deals only with the national dimension of ne bis in idem: a final judgment issued by an authority of the same state where the second criminal proceedings are launched bars further prosecution or punishment of the same person in that state, while nothing is said

14 The ne bis in idem principle has also been developed in the context of EU competition law; see, inter alia, W Wils, ‘The Principle of “Ne Bis in Idem” in EC Antitrust Enforcement: A Legal and Economic Analysis’ (2003) 26(2) World Competition 131; Tomkin (n 2) 1399–403; R Nazzini, ‘Parallel Proceedings in EU Competition Law: Ne Bis in Idem as a Limiting Principle’ in B van Bockel (ed), Ne Bis in Idem in EU Law (Cambridge University Press, 2016) 131–66. 15 Articles 55–58 CISA lay down some limitations of, and further rules on, transnational ne bis in idem. For some remarks on these provisions, see PP Paulesu, ‘Ne Bis in Idem and Conflicts of Jurisdiction’ in R Kostoris (ed), Handbook of European Criminal Procedure (Springer, 2018) 393–421, at 402–04. 16 Case C-436/04, Van Esbroeck, judgment of 9 March 2006, EU:C:2006:165, paras 18–24. 17 See section III.C below. 18 Information on the ratification status of the Protocol is available on the Council of Europe website at https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/117/signatures?p_auth=hd0cAZD6.

152  Ne Bis in Idem and Conflicts of Jurisdiction with respect to investigations and prosecutions on the same facts in other countries.19 In spite of its limited applicability, the right to ne bis in idem is of utter importance in the Council of Europe context, since it falls among those fundamental rights that cannot be derogated even in times of emergency.20 As will be discussed below, the Council of Europe provision on ne bis in idem and its interpretation by the European Court of Human Rights (ECtHR) have played a central role in the development of the CJEU case law on concurring criminal and administrative penalties.21

III. Transnational Ne Bis in Idem: Scope and Content The AFSJ is founded primarily upon the interaction of national criminal justice systems which have largely not been harmonised. Here, rather than addressing the question of whether the state can enforce criminal law over an individual more than once for the same conduct, the question is rather whether another state can enforce its criminal law over the same individual for the same conduct or whether it is precluded from doing so in order to safeguard legal certainty and fundamental rights in an area without internal frontiers. Underpinning this question is the need to address the relationship between, on the one hand, fundamental rights and fundamental EU law principles such as free movement, and, on the other, fundamental criminal policy choices of justice at the national level, arising from the expectation of national constituencies for justice to be delivered by their state authorities. The extent to which national authorities will forfeit their right to prosecute or enforce sentences on the basis of mutual trust and the respect of the prior undertaking of similar proceedings against the same individual in another state – thus precluding them from delivering criminal justice in their own jurisdiction – remains unsurprisingly contested.22 The sensitivity of the matter shines through the Court of Justice’s case law on Article 54 CISA and Article 50 of the Charter, and the reactions to this. In accordance with both provisions, the ne bis in idem principle applies when some conditions are met: (i) a first set of criminal proceedings is finally closed and a second one is initiated (‘bis’); and (ii) both sets of proceedings concern the same facts and the same person (‘idem’). Unlike Article 50 of the Charter, Article 54 CISA also requires that the sentence that has been issued at the end of the first proceedings has already been served, is in the process of being served or can no longer be carried out (the ‘enforcement condition’).23 The Court of Justice has so far delivered several judgments concerning these components of ne bis in idem. 19 ‘No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State’ (art 4(1) of Protocol No 7 to the ECHR, emphasis added). 20 ibid art 4(3). 21 See section V below. 22 See in this context the critical view of Caeiro, who notes that in the absence of a mechanism to allocate jurisdiction, the rule of ne bis in idem in art 54 CISA creates an awkward situation, where the first final decision pre-empts possible decisions from other jurisdictions: P Caeiro, ‘Jurisdiction in Criminal Matters in the EU: Negative and Positive Conflicts, and Beyond’ (2010) 93(4) Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft 366, 376. See more in section IV below. 23 It follows that this condition does not come into consideration when the first set of proceedings ends with an acquittal of the defendant.

Transnational Ne Bis in Idem: Scope and Content  153

A.  The ‘Bis’ Element The first decision of the Court of Justice on Article 54 CISA, Gözütok and Brügge,24 dates back to 2003 and deals with the concept of ‘finally judged’.25 The cases involved the termination of prosecutions by the public prosecutor (in the Netherlands and Germany respectively) following out-of-court settlements with the defendants, with the Luxembourg Court being asked to determine whether such termination was capable to trigger the application of the Schengen ne bis in idem principle. The Court answered in the affirmative to apply the principle in such cases, which involve the discontinuation of prosecution by a public prosecutor – without the involvement of a court – once the accused has fulfilled certain obligations. The Court noted that the non-participation of national courts in procedures such as the out-of-court settlements at stake did not preclude the application of Article 54 CISA. It is true that, in some countries, the settlements between public prosecutors and defendants have to be validated by a court, yet Article 54 CISA does not assume the harmonisation or approximation of national criminal justice systems;26 on the contrary, this provision builds on the presumption of mutual trust among Member States.27 Furthermore, the need to achieve Community/Union objectives and facilitate the exercise of rights under Community/Union law was central to the Court’s approach, which examined the purpose of the integration of the Schengen acquis into the EU legal order. The Court noted that such integration ‘is aimed at enhancing European integration and, in particular, at enabling the Union to become more rapidly the area of freedom, security and justice which is its objective to maintain and develop’.28 Specifically examining Article 54 of the Schengen Convention, the Court emphasised its objective to ensure that no one is prosecuted on the same facts in several Member States on account of his or her having exercised the right to freedom of movement – Article 54

24 Joined Cases C-187/01 and C-385/01, Gözütok and Brügge, judgment of 11 February 2003, EU:C:2003:87. For comments on the case, see, inter alia, JAE Vervaele, ‘Case Note’ (2004) 41(3) CML Rev 795; M Fletcher, ‘Some Developments to the Ne Bis in Idem Principle in the European Union: Criminal Proceedings against Hüseyn Gözütok and Klaus Brügge’ (2003) 66 Modern Law Review 769; A Weyembergh, ‘Comment on CJEU, 11 February 2003, Joined Cases C-187/01 and C-385/01 Criminal Proceedings v Hüseyn Gözütok and Klaus Brügge’ and E Symeonidou-Kastanidou and Y Naziris, ‘The Impact of Case C-187/01 [Gözütok/Brügge] at the National Level: Inadvertent Legacy’ in V Mitsilegas, A di Martino and L Mancano (eds), The Court of Justice and European Criminal Law: Leading Cases in a Contextual Analysis (Hart Publishing, 2019) 199–211 and 212–25 respectively. 25 For an overview of the Court of Justice’s case law on the ‘bis’ element, as well as on the ‘idem’ element and the enforcement condition, see A Weyembergh and I Armada, ‘The Principle of Ne Bis in Idem in Europe’s Area of Freedom, Security and Justice’ in V Mitsilegas, M Bergström and T Konstadinides (eds), Research Handbook on EU Criminal Law (Edward Elgar, 2016) 189–209. 26 Gözütok and Brügge (n 24) paras 31–32. 27 ibid para 33. The ECtHR has taken a similar approach in the recent Mihalache case, where it expressly ruled as follows: ‘What matters in any given case is that the decision in question has been given by an authority participating in the administration of justice in the national legal system concerned, and that that authority is competent under domestic law to establish and, as appropriate, punish the unlawful behaviour of which the person has been accused. The fact that the decision does not take the form of a judgment cannot call into question the person’s acquittal or conviction, since such a procedural and formal aspect cannot have a bearing on the effects of the decision’ (ECtHR, Mihalache v Romania, App No 54012/10, judgment of 8 July 2019, para 95). Gözütok and Brügge (n 24) para 31. 28 ibid para 37.

154  Ne Bis in Idem and Conflicts of Jurisdiction cannot play a useful role in bringing about the full attainment of that objective unless it applies to the decisions under examination in this case.29 The purposive interpretation of the Court and its emphasis on the attainment of EU objectives is backed by an ‘ahistorical’ approach to European integration, with the Court rejecting Member States’ arguments that the intentions of the Schengen Contracting Parties were not to adopt such a broad definition of Article 54, as, in particular, documents demonstrating such intentions ‘pre-date’ the integration of the Schengen acquis into the EU framework.30 In Gözütok and Brügge, the Court interpreted criminal law principles in the light of the need to achieve EU objectives and uphold fundamental principles of EC/EU law such as freedom of movement. This approach has led in this case to a broad interpretation of ne bis in idem as a protective criminal law principle. The Court followed this reasoning in a number of subsequent cases, which led to the adoption of a similarly protective approach to ne bis in idem by defining the scope of both bis and idem in a broad manner. The second decision of the Court on Article 54 CISA, Miraglia, also concerns the bis element, yet in this case the Court ruled that a decision of the public prosecutor to discontinue the prosecution ‘on the sole ground that criminal proceedings have been started in another Member State against the same defendant and for the same acts, without any determination whatsoever as to the merits of the case’ (emphasis added)31 does not trigger the application of Article 54 CISA. In similar circumstances of ‘preventive’ application of ne bis in idem,32 the decision to discontinue the prosecution could not fall within the concept of ‘final judgement’ of Article 54 CISA, since this decision contained ‘no assessment whatsoever of the unlawful conduct with which the defendant was charged’.33 Miraglia therefore clarified that ne bis in idem applies only when the first authorities have assessed the merits of the case. If they have done so, the outcome of the first set of criminal proceedings is irrelevant, since an acquittal for lack of evidence also prohibits further prosecution against the same person for the same facts. The Court spelled out this principle in Van Straaten,34 where it argued that not applying Article 54 to such cases would have the effect of jeopardising the exercise of the right of freedom of movement.35 Following AG Jarabo Colomer’s strong emphasis on the rationale behind ne bis in idem,36 the Court noted that in such a case – where the decision is based on the determination of the merits of the case37 – the bringing of criminal proceedings in

29 See ibid paras 35–38. 30 ibid para 46. In Case C-505/19, Bundesrepublik Deutschland (Notice Rouge d’Interpol), judgment of 12 May 2021, EU:C:2021:376, the Court confirmed that ne bis in idem also applies to procedures whereby public prosecutors decide to discontinue the prosecution without the involvement of courts, provided that that decision is based on a determination as to the merits of the case (paras 73–74). As for the relevance of such an assessment of the merits of the case for the application of the ne bis in idem principle, see immediately below in the text. 31 Case C-469/03, Miraglia, judgment of 10 March 2005, EU:C:2005:156, para 35. 32 ibid para 23. 33 ibid para 34. cf Bundesrepublik Deutschland (Notice rouge d’Interpol) (n 30) para 73. 34 Case C-150/05, Van Straaten, judgment of 28 September 2006, EU:C:2006:614. 35 ibid para 58. 36 ibid, Opinion of AG Jarabo Colomer, delivered on 8 June 2006, EU:C:2006:381, para 56. However, the Court did not go as far as the AG in using a fundamental rights vocabulary in the context of ne bis in idem. 37 ibid para 60.

Transnational Ne Bis in Idem: Scope and Content  155 another Contracting State for the same acts would undermine the principles of legal certainty and legitimate expectations.38 On the same day as the Van Straaten judgment, the Court handed down its judgment in Gasparini.39 This was a more challenging case for the Court, as it involved the question of whether time-barred prosecutions are final judgments for the purposes of Article 54 CISA. The Court had to deal with the Opinion of AG Sharpston, which in many aspects departed from the approach of AG Colomer and the Court’s earlier case law. AG Sharpston took the view that time-barred prosecutions should not merit the protection of Article 54 CISA, as they do not involve an examination of the merits of a case. The AG based her conclusion mainly on the arguments that a time-barred prosecution does not settle society’s account with the individual,40 that there must be a ‘balance’ between free movement and fighting crime41 (as free movement ‘is not an absolute principle and must not be distorted out of proportion’)42 and that a broad interpretation of bis would lead to ‘criminal jurisdiction shopping’.43 This ‘securitised’ approach to the limits of protection in criminal law reflects to a great extent the ‘war on terror’ discourse justifying exceptional measures in the UK,44 and the approach to free movement is a striking departure from the Court’s case law. The Court, however, did not change its approach on ne bis in idem. It included time-barred prosecutions within the scope of Article 54 CISA and reiterated the earlier case law and the importance of ensuring the exercise of the right of free movement. Not to apply Article 54 CISA when a court has finally acquitted the accused because prosecution of the offence is time-barred ‘would undermine the implementation of that objective’.45 While in Van Straaten and Miraglia the Court argued that the final decision that bars further prosecution has to deal with the merits of the case, in Gasparini it also held that a final decision by which the accused is acquitted because prosecution of the offence is time-barred – and thus without any possibility for the competent court to delve into the merits of the case – has the same effect for the purposes of Article 54 CISA. In Gasparini, therefore, the focus seems to shift from the ‘merits’ of the case to the ‘final status’ of national proceedings, with the Court suggesting that in order to assess whether a decision is apt to trigger Article 54 CISA, it is essential to look at the ‘final’ nature of such decision from a national perspective. If a Member State has had its opportunity to adjudicate a case, the definitive closure of the trial in that state according to its law does not allow the initiation of new investigations and prosecutions on the same facts in other EU countries. The Court explicitly adopted this interpretation of Article 54 CISA in Turanský.46 The case concerned the applicability of Article 54 CISA to a decision by which ‘a police authority, after examining the merits of the case brought before it, makes an order, at

38 ibid

para 59. On legal certainty, see also Gözütok and Brügge (n 24) para 119. C-467/04, Gasparini and Others, judgment of 28 September 2006, EU:C:2006:610. 40 ibid, Opinion of AG Sharpston delivered on 15 June 2006, ECLI:EU:C:2006:406, paras 74–76. 41 ibid para 81. 42 ibid para 84. 43 ibid para 104. 44 In particular, the standard discourse on ‘balancing’ different interests. 45 Gasparini and Others (n 39) para 28. 46 Case C-491/07, Turanský, judgment of 22 December 2008, EU:C:2008:768. 39 Case

156  Ne Bis in Idem and Conflicts of Jurisdiction a stage before the charging of a person suspected of a crime, suspending the criminal proceedings which had been instituted’;47 in that case, which concerned the Slovak legal system, such a decision did not bar further prosecution within the same state. Recalling Gözütok and Brügge, the Court noted that the concept of ‘finally disposed of ’ – to be found in Article 54 CISA – refers to those circumstances where ‘further prosecution is definitely barred’.48 In this decision, the Court underscored in particular the point that: [I]n order to assess whether a decision is ‘final’ for the purposes of Article 54 of the CISA, it is necessary first of all to ascertain … that the decision in question is considered under the law of the Contracting State which adopted it to be final and binding, and to verify that it leads, in that State, to the protection granted by the ne bis in idem principle. (Emphasis added)49

Other judgments have confirmed the principles laid down in Turanský. In Mantello,50 the Court did not deal with Article 54 CISA, but rather with Article 3(2) of the Framework Decision on the European Arrest Warrant, which lists ne bis in idem as a ground for mandatory non-execution of European Arrest Warrants. The Court argued that the two provisions share the same objective to prevent a person from being prosecuted or punished twice for the same acts.51 It thus confirmed the Turanský principles, namely that the assessment of the ‘final’ nature of the first judgment must be done in accordance with the law of the state where the judgment was delivered.52 The approach adopted in Turanský was subsequently confirmed in M and Kossowski.53 In the criminal proceedings against M, the Belgian authorities had issued an order of ‘non-lieu’ since they found that there was no ground to bring the suspect to judgment. In Belgium, this decision precludes new proceedings against the same person for the same facts, unless new facts and/or evidence come to light. In that case, the order of ‘non-lieu’ had been confirmed by the Court of Cassation. The question arose as to whether this final decision of the Belgian authorities should prevent the Italian authorities from investigating and prosecuting M for the same facts. The Court’s positive answer – that is, ne bis in idem also applies in these circumstances – relied on the previous judgments in Miraglia and Turanský, since the Court noted that Article 54 CISA applies when a decision concerns the merits of the case (Miraglia)54 and when that decision is regarded as ‘final’ in the state where it was issued (Turanský).55 However, the decisive factor for the applicability of ne bis in idem seems to be the latter, ie, the final nature of the decision according to the law of the first Member State. In M, the order making a finding of ‘non-lieu’ had become final and also concerned the merits of the case: it was a ‘definitive decision on the inadequacy of … evidence and exclude[d] any possibility that the case might be reopened on the basis

47 ibid para 30. 48 ibid para 32. 49 ibid para 35. 50 Case C-261/09, Mantello, judgment of 16 November 2010, EU:C:2010:683. 51 ibid para 40. 52 ibid para 46. 53 Case C-398/12, M, judgment of 5 June 2014, EU:C:2014:1057; and Case C-486/14, Kossowski, judgment of 29 June 2016, EU:C:2016:483. 54 Miraglia (n 31) 28 and 30. 55 Turanský (n 46) 31–32.

Transnational Ne Bis in Idem: Scope and Content  157 of the same body of evidence’.56 The defendant could not be judged again in Belgium for the same facts and on the basis of the same evidence. By interpreting Article 54 CISA in light of Article 50 of the Charter and Article 4 of Protocol No 7 to the ECHR, the Court concluded that Article 54 CISA applies with regard to the Belgian order of non-lieu, which ‘must be considered to be a final judgment, for the purposes of that article’ (emphasis added).57 This ruling therefore reaffirmed the priority of the requirement of legal certainty for the affected individual in Europe’s area of criminal justice.58 Nevertheless, the Court seemed to be aware that a ‘non-lieu’ decision might not sit easily with the concept of ‘final’ judgment. Recalling Bourquain, a previous decision, it clarified that ‘the sole fact that that criminal procedure would, under national law, have necessitated the reopening of the proceedings does not, in itself, mean that the judgment cannot be regarded as “final” for the purposes of Article 54 of the CISA’ (emphasis added).59 In Bourquain, the Court had to rule on a decision issued in absentia by a French military tribunal in Algeria in 1961, which was subsequently made void by an amnesty granted in 1968. The problems arose since French law imposed an obligation to hold a new trial if the person convicted in absentia reappeared before the date on which the enforcement of the sentence had become time-barred (20 years from the date on which the decision became definitive); in this case, the enforcement of the sentence would have become time-barred in 1981, but already in 1968 the defendant benefited from the amnesty. Hence, had Mr Bourquain reappeared in France between 1961 (the year of the judgment) and 1968 (the year of the amnesty), the penalty could have not been enforced because a new trial would have been necessary, this time in his presence. Before affirming the compatibility of this scenario with the enforcement clause of Article 54 CISA,60 the Court clarified that ne bis in idem also applies to decisions in absentia. Similar decisions can constitute a ‘procedural bar to the opening of new proceedings’61 not only because there is no evidence to the contrary in the text of Article 54 CISA,62 but also because the necessity to protect the freedom of movement of individuals requires not to prosecute again a defendant who is in a situation such as that of Mr Bourquain.63 Against this backdrop, the Court stated – as in M – that: [T]he sole fact that the proceedings in absentia would, under French law, have necessitated the reopening of the proceedings if Mr Bourquain had been arrested while time was running in the limitation period applicable to the penalty, and before he benefited from the amnesty … does not, in itself, mean that the conviction in absentia cannot be regarded as a final decision within the meaning of Article 54 of the CISA.64

56 ibid para 30. On the – somehow elusive – concept of ‘merits of the case’ and how it could be defined, see S Peers, EU Justice and Home Affairs Law. Vol 2: EU Criminal Law, Policing, and Civil Law, 4th edn (Oxford University Press, 2016) 244–45. 57 M (n 53) para 41. 58 V Mitsilegas, EU Criminal Law after Lisbon: Rights, Trust and the Transformation of Justice in Europe (Hart Publishing, 2016) 87. 59 M (n 53) para 34. As mentioned above in the text, according to Belgian law, cases closed with a non-lieu order can be reopened if new facts and/or evidence against the defendant are subsequently discovered. 60 See more in section III.C below. 61 Case C-297/07, Bourquain, judgment of 11 December 2008, EU:C:2008:708, para 34. 62 ibid para 35. 63 ibid para 41. 64 ibid para 40. cf M (n 53) para 34.

158  Ne Bis in Idem and Conflicts of Jurisdiction In other words, even if national law allows the reopening of closed cases under certain circumstances – such as the discovery of new facts or evidence (M) or the physical presence in the state of a person who had been convicted in absentia (Bourquain) – this is not sufficient as such to deny the ‘final’ nature of the decision adopted at the end of the first proceedings. Finally, in Kossowski, the applicability of Article 54 CISA to cases where public prosecutors terminate the criminal proceedings without any detailed investigation on the facts was discussed. The issue resembled that faced in Miraglia and the ruling of the Court is unsurprisingly similar: this decision of the prosecuting authorities does not fall within the scope of Article 54 CISA. In Kossowski, the Court pointed out a two-step procedure that national authorities should apply to assess whether the European right to ne bis in idem comes into play. First, national authorities must evaluate whether a decision is final in the state where it has been issued. In the event of a positive answer, the other question to address is whether that decision concerns the merits of the case; if not – as in Kossowski – Article 54 CISA cannot apply.65 The Court’s reasoning connects the dots of the previous decisions on the ‘bis’ element. As in M, which was quoted, the Court stated that Article 54 CISA must be read in light of Article 50 of the Charter.66 However, this clarification is more an assumption than the introduction of an analysis of the relationship between the two provisions, since the Court did not linger further on the matter. The Court did not mention the ECHR or the case law of the ECtHR either, but instead introduced the above-mentioned two-step procedure. Dealing with the first assessment – the final nature of the first judgment – the Court recalled the Turanský principle67 and confirmed that Article 54 CISA also applies to those decisions that have been adopted without the involvement of a court (as in Gözütok and Brügge).68 As far as the second step is concerned – whether the final judgment has dealt with the merits of the case – the Court suggested interpreting Article 54 CISA by taking into account the objective and the context of this rule.69 The Court stuck to the traditional finding that Article 54 CISA aims to protect the freedom of movement and ensure

65 Kossowski (n 53) paras 34 and 42. For a commentary, see K Ambos, ‘Judgment (Grand Chamber) C-486/14 Piotr Kossowski, 29 June 2016’ and C Nowak, ‘Impact of the Case C-486/14 – Kossowski at National Level’ in Mitsilegas, di Martino and Mancano (n 24) 227–33 and 234–43 respectively. In Mihalache v Romania (n 26), the ECtHR endorsed the criterion concerning the merits of the case to determine whether a judicial decision amounts to a ‘conviction’ or an ‘acquittal’ for the purposes of art 4 of Protocol No 7 to the ECHR (paras 97–98). On this noteworthy example of judicial dialogue between the two European Courts, see C Serneels, ‘“Unionisation” of the European Court of Human Rights’ Ne Bis in Idem Jurisprudence: The Case of Mihalache v Romania’ (2020) 11(2) New Journal of European Criminal Law 227. 66 ibid para 31. 67 ibid para 35: ‘A decision which does not, under the law of the Contracting State which instituted criminal proceedings against a person, definitively bar further prosecution at national level cannot, in principle, constitute a procedural obstacle to the opening or continuation of criminal proceedings in respect of the same acts against that person in another Contracting State’ (emphasis added). 68 ibid para 39. 69 ibid para 43. The Court of Justice confirmed the same two-step approach in Bundesrepublik Deutschland (Notice rouge d’Interpol) (n 30) paras 79–81. In the same judgment, the Court clarified that the provisional arrest, by the authorities of a State Party to the Schengen Agreement or a Member State, of a person in respect of whom Interpol has published a red notice, at the request of a third State, does not infringe art 54 CISA or art 21(1) TFEU, read in the light of art 50 of the Charter, until it has been established that the ne bis in idem principle applies.

Transnational Ne Bis in Idem: Scope and Content  159 legal certainty.70 Yet, as it did in Miraglia and Turanský, the CJEU underlined that the protective goal of Article 54 CISA must be coupled with the need to prevent and combat crime.71 In light of this further objective of Article 54 CISA, a decision such as the one at stake in the criminal proceedings against Kossowski – by which the public prosecutor dropped the case without any investigation on the merits – cannot be regarded as ‘final’. More precisely, in those circumstances, there was: [A] decision terminating criminal proceedings … adopted in a situation in which the prosecuting authority, without a more detailed investigation having been undertaken for the purpose of gathering and examining evidence, did not proceed with the prosecution solely because the accused had refused to give a statement and the victim and a hearsay witness were living in Germany, so that it had not been possible to interview them in the course of the investigation and had therefore not been possible to verify statements made by the victim. (Emphasis added)72

Should this decision bar further prosecution in other Member States, the aim to prevent and combat crime within the AFSJ would be seriously undermined. In sum, the Court’s case law on the bis element swings between decisions where the Court emphasises the final nature of the first judgment according to national law, even when this judgment does not deal with the merits of the case, and decisions where the key element is precisely such an assessment of the merits of the case. The first approach is more protective towards the defendants’ fundamental rights and the principle of legal certainty, while the second pays more heed to the need of ensuring security and avoiding impunity in the EU. The Grand Chamber’s ruling in Kossowski shows a preference for this second approach: the final nature of the first decision according to national law is a necessary condition for the application of ne bis in idem, yet it is not sufficient, since an assessment of the merits of the case should also have been carried out at the time of the first criminal proceedings. Kossowski departs from the strong free movement rationale of the initial case law of the CJEU on transnational ne bis in idem – as it has been noted, the Court: [S]eems to accept the mistrust from the second to the first state and accept one of the two state’s (and arguably the more draconian) approach on the conduct of criminal investigations … a European approach limiting the fight against impunity on the grounds of truly European considerations of legal certainty and free movement within Europe’s borderless AFSJ, give way to the precedence of unilateral perceptions of effective enforcement by individual Member States which have the potential to render important protective principles toothless and devoid of a common meaning reflecting a common sense of justice within the EU.73

B.  The ‘Idem’ Element The Court of Justice has dealt with the idem aspect of the ne bis in idem principle in different judgments, where it has consistently endorsed the same interpretation: the second criminal proceedings shall concern the same ‘set of facts which are inextricably 70 Kossowski (n 53) para 44. 71 ibid paras 46–47. See Miraglia (n 31) para 34; Turanský (n 46) para 43. 72 Kossowski (n 53) 48. 73 V Mitsilegas, ‘Conceptualising Impunity in the Law of the European Union’ in S Montaldo and L Marin (eds), The Fight against Impunity in EU Law (Hart Publishing, 2020) 13–45.

160  Ne Bis in Idem and Conflicts of Jurisdiction linked together, irrespective of the legal classification given to them or the legal ­interest protected’.74 Only the national authorities are competent to evaluate whether given forms of conduct fall within the notion of inextricably linked set of facts.75 It goes without saying that, for the purposes of ne bis in idem, the person against whom new criminal proceedings are initiated must be the same person who was subject to the first set of proceedings. In Orsi and Baldetti, which concerned a case of domestic legislation that combined administrative and criminal penalties for non-payment of VAT, the Court noted that ne bis in idem could not be invoked since the administrative penalty was issued against a company, whereas the criminal proceedings had been launched against natural persons (the legal representatives of the company).76 Article 50 of the Charter, as well as Article 54 CISA, can only apply when the person involved in the two proceedings is the same. In AY, which concerned ne bis in idem as a ground for refusal to execute a European Arrest Warrant, the Court of Justice ruled that the principle does not apply when, with regard to the same facts, the same person is prosecuted in a set of proceedings and, in another set of proceedings in a different Member State, he or she is only interviewed as a witness.77 The leading case on the ‘idem’ element is Van Esbroeck, where the issue was examined for the first time. This judgment concerned a case of illegal drug trafficking, which represents the typical example of the problems that arise in the interpretation of ‘idem’. When the crime of drug trafficking is transnational, the defendants could be charged for the ‘export’ of drugs in the countries from which the drug is moved, whereas in those where the substances are received, they could be prosecuted for the ‘import’ of drugs. The answer to the question of whether similar forms of conduct constitute ‘same acts’ for the purposes of Article 54 CISA depends on the criterion that national courts apply in their assessment.78 If one looks at the legal classification of the forms of conduct, the ne bis in idem principle could never apply in similar circumstances, since the ‘export’ and ‘import’ of drugs are two different offences. The same is true if the evaluation focuses on the legal interests protected by the law. Assuming that drug trafficking affects, inter alia, the right to health and the public security of a given population, the legal interests at stake would be more than one: in the case of transnational trafficking, the right to health and the public security of (at least) two different populations – those of the importing country and of the exporting country – are affected. The only criterion that allows Article 54 CISA and Article 50 of the Charter to come into play in similar circumstances is that of the same historical fact: through the lens of the ‘idem factum’, importing and exporting drugs do not represent two different facts, but are two sides of the same coin. The Court of Justice endorsed this view in Van Esbroeck, in which it rejected an approach defining idem on the basis of its legal 74 Van Esbroeck (n 16) para 42. 75 ibid para 38. 76 Joined Cases C-217/15 and C-350/15, Orsi and Baldetti, judgment of 5 April 2017, EU:C:2017:264. 77 Case C-268/17, AY, judgment of 25 July 2018, EU:C:2018:602. In that case, AY, a Hungarian national, was investigated and prosecuted by the Croatian authorities. The Hungarian authorities refused to execute the Croatian European Arrest Warrant as AY had already been interviewed as a witness in the framework of an investigation opened in Hungary against an unknown person. 78 As noted in section II above, the wording of art 54 CISA and art 50 of the Charter is different in that respect, with the former referring to ‘same acts’ and the latter to the same ‘offence’, which is also the phrasing of art 4 of Protocol No 7 to the ECHR.

Transnational Ne Bis in Idem: Scope and Content  161 classification by viewing the issue from the perspective of achieving free movement – given that there is no harmonisation of national laws, a criterion based on the legal classification or the legal interest protected at the national level ‘might create as many barriers to freedom of movement within Schengen as there are legal systems’.79 The Court reiterated its case law in Gözütok and Brügge and Miraglia, stating that the objective of Article 54 CISA is that no one is prosecuted for the same acts on account of his or her having exercised the right to freedom of movement.80 Making express reference to the Opinion of AG Jarabo Colomer, the Court further noted that the right of free movement is guaranteed: [O]nly if the perpetrator of an act knows that, once he has been found guilty and served his sentence, or, where applicable, been acquitted by a final judgment, he may travel within the Schengen territory without fear of prosecution in another Member State.81

Six months after Van Esbroeck, the Court delivered two judgments, Van Straaten and Gasparini,82 in which it confirmed this interpretation of ‘same acts’ for the purposes of Article 54 CISA. In Van Straaten, the Court – looking again at the issue of the movement of drugs between two Schengen countries – reiterated the Van Esbroeck reasoning, adding that exporting and importing are in principle the same acts.83 It also upheld the line of reasoning of Van Esbroeck and Van Straaten in Kraaijenbrink.84 This case concerned the transnational crime par excellence, ie, money laundering. It involved money laundering-related convictions in Belgium and the Netherlands – while different acts giving rise to these convictions constituted ‘the successive and continuous implementation of the same criminal intention’,85 it was not clear whether they involved the same sums of money. In this context, the Court reiterated the earlier case law and stressed that the acts in question must make up ‘an inseparable whole’, but it noted that if the acts do not make up an inseparable whole, the fact that they were committed with the same criminal intention does not suffice to meet the test of what constitutes ‘same acts’ under Article 54 of the Schengen Convention.86 In other words, it is not sufficient that the facts are linked by the same criminal intention, since an objective link is also necessary. The Court also found that in cases where it has not been clearly established that the financial gain in question in the two Member States is identical, in principle the conduct involved can be covered by the notion of the ‘same acts’ if an objective link is established.87

79 Van Esbroeck (n 16) para 35. See also the Opinion of AG Ruiz-Jarabo Colomer, delivered on 20 October 2005, EU:C:2005:630, who rejected the legal classification criterion as inconsistent with the right to freedom of movement. He noted that in a drug-trafficking case, it is ironic to speak of ‘import’ and ‘export’ (between different Schengen countries) in a territory which is subject to one legal order that has exactly as its aim by its nature the abolition of borders for goods and persons (at para 52). 80 Van Esbroeck (n 16) para 33. 81 ibid para 34. 82 Gasparini (n 39) para 54. 83 As mentioned above, the assessment is for the national courts to make. The quantities of the drugs involved are not required to be identical; ibid para 53. 84 Case C-367/05, Kraaijenbrink, judgment of 18 July 2007, EU:C:2007:444, para 31. 85 ibid para 18. 86 ibid para 29. 87 ibid para 31.

162  Ne Bis in Idem and Conflicts of Jurisdiction On the same day as the Kraaijenbrink judgment, the Court also delivered the Kretzinger judgment.88 The case involved the transportation (without declaring this to any customs authority) by Mr Kretzinger of cigarettes from countries that were not members of the EU, which had previously been smuggled into Greece by third parties, by lorry through Italy and Germany, bound for the UK. The Venice Court of Appeal imposed upon Mr Kretzinger in absentia a suspended custodial sentence of one year and eight months, finding him guilty of offences of tobacco smuggling and failing to pay customs duty. The Tribunal of Ancona subsequently imposed again in absentia and under the same provisions a two-year custodial sentence (not suspended) for a second consignment of tobacco. Both sentences had become final. However, awareness of the Italian final judgments had not stopped a court in another Member State, Germany (the Landesgericht Augsburg), from sentencing Mr Kretzinger to one year and 10 months’ imprisonment in relation to the first consignment and one year imprisonment in relation to the second, finding the defendant guilty of evasion of the customs duties which had arisen on the importation of the smuggled goods into Greece in accordance with the German Tax Code. According to the Landesgericht Augsburg, Article 54 of the Schengen Implementing Convention did not apply in this case. On appeal, the Bundesgerichtshof decided to send a reference for a preliminary ruling to Luxembourg, asking in particular whether the case in question would involve the ‘same acts’ under Article 54 and whether in essence the Italian handling of the case would constitute ‘enforcement’ of a sentence under the same provision.89 The case is significant as it was generated by an attempt by a lower national court to apply and enforce its domestic law notwithstanding the EU rules on ne bis in idem. The key question underlying this case concerns the concept of the territory and its link with jurisdiction. Here, it seems that the national court attempted to circumvent EU law requirements by applying the domestic law whose reach extended beyond its national border and covered the EU external border (in Greece) – following this logic, tobacco smuggling on the EU external border is not the ‘same act’ as tobacco smuggling from Italy to Germany. On the question of what constitutes the ‘same act’, the Court followed and expanded upon its earlier case law. It reiterated the Van Esbroeck test that the only relevant criterion is identity of the material acts, understood as the existence of a set of facts which are inextricably linked together, adding that this criterion applies irrespective of the legal classification given to those acts or the legal interest protected.90 The Court rejected the position put forward by the German and Spanish governments that the national court must also take into account the legal interest protected when assessing a set of concrete circumstances. It reiterated that legal interest considerations are not to be deemed relevant and repeated Van Esbroeck in stating that ‘because there is no harmonisation of national criminal law, considerations based on the legal interest protected might create as many barriers to freedom of movement within the Schengen area as there are penal systems in the Contracting States’.91 According to the Court, while the final assessment is for the national courts to make, the transportation of

88 Case

C-288/05, Kretzinger, judgment of 18 July 2007, EU:C:2007:441. the background on this and the questions of the national court, see ibid paras 14–26. 90 ibid para 29. 91 ibid para 33. 89 For

Transnational Ne Bis in Idem: Scope and Content  163 contraband cigarettes involving successive crossings of internal Schengen area borders is capable of constituting a set of facts covered by the notion of the ‘same acts’.92 It thus remained focused on ensuring freedom of movement, and reinforced the centrality and broad definition of the concept of ‘same acts’ in the interpretation of ne bis in idem by clarifying in this context that successive border crossings within the Schengen area may not change the fact that the ‘same acts’ apply.93 In Mantello, finally, the Court extended its interpretation of the ‘idem’ element to the European Arrest Warrant Framework Decision, underlining that such a notion ‘must be given an autonomous and uniform interpretation throughout the European Union’.94 This autonomous concept of EU law has also crossed the EU borders, since it has been endorsed by the ECtHR. Even though in Article 4 of Protocol No 7 to the ECHR, the term ‘offence’ rather than ‘facts’ is used, in Zolotukhin v Russia the ECtHR’s Grand Chamber ruled that the right to ne bis in idem applies when the second proceedings concern the ‘same set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space’.95 Zolotukhin has reframed the Strasbourg Court’s interpretation of ne bis in idem and has strikingly offered a coherent interpretation of ECHR domestic and EU transnational ne bis in idem. It has been influential and a key reference point for subsequent Strasbourg96 and Luxembourg97 case law. The alignment of two European Courts with respect to the interpretation of the idem element98 strengthens legal certainty vis-a-vis the application of the right to ne bis in idem; in addition, the interpretation of ‘idem’ as ‘idem factum’ enhances freedom of movement in the EU.99 However, within the EU legal framework itself, there are some inconsistencies among different policy areas: in the context of competition 92 ibid para 36. 93 This is a logical conclusion of the establishment of a single area with no internal frontiers and a common external border under Schengen. However, this approach would seem to imply that the position of the Court might be different in cases involving Member States not fully participating in Schengen, such as the UK – although the latter did apply the criminal law part of Schengen before leaving the EU. Should Mr Kretzinger have managed to smuggle tobacco into the UK, the final destination of the journey, would the UK courts have been shielded from applying the EU ne bis in idem principle by virtue of the external crossing of the goods? This seemed to follow from the emphasis of the Court on Schengen free movement. 94 Mantello (n 50) para 38. In Mantello, the Court examined ne bis in idem as a ground for mandatory non-execution of a European Arrest Warrant as provided for by art 3(2) of the European Arrest Warrant Framework Decision. In C-665/20 PPU, X (Mandat d’arrêt européen – Ne bis in idem), judgment of 29 April 2021, EU:C:2021:339, paras 68–83, the Court further clarified that art 3(2) (grounds for mandatory non-execution) and art 4(5) (grounds for optional non-execution) of the European Arrest Warrant Framework Decision must be interpreted as meaning that the concept of ‘same acts’, contained in both provisions, must be interpreted uniformly. 95 ECtHR, Zolotukhin v Russia, App No 14939/03, judgment of 10 February 2009, para 84. 96 See, eg, ECtHR, Glantz v Finland, App No 37394/11, judgment of 20 May 2014; ECtHR, Nykänen v Finland, App No 11828/11, judgment of 20 May 2014; ECtHR, Rinas v Finland, App No 17039/13, judgment of 27 January 2015; ECtHR, Österlund v Finland, App No 53197/13, judgment of 10 February 2015; ECtHR, Kapetanios et al v Greece, App Nos 3453/12, 42941/12 and 9028/13, judgment of 30 April 2015; ECtHR, Chernov v Ukraine, App No 16432/10, judgment of 10 December 2020. 97 See M (n 53) para 39. 98 For some differences in the approach of the two Courts with regard to other aspects of ne bis in idem, see section V below. 99 See, inter alia, Lelieur (n 4), 205; Weyembergh and Armada (n 25) 196–97; K Ligeti, ‘Fundamental Rights Protection between Strasbourg and Luxembourg: Extending Transnational Ne Bis in Idem across Administrative and Criminal Procedures’ in European Law Institute, K Ligeti and G Robinson (eds), Preventing and Resolving Conflicts of Jurisdiction in EU Criminal Law (Oxford University Press, 2018) 160–81 at 167–70.

164  Ne Bis in Idem and Conflicts of Jurisdiction law, for instance, the Court of Justice still refers to the criterion of the legal interests when dealing with ne bis in idem issues. The Court has ruled in several occasions that the application of this principle in competition law is subject to the threefold condition that ‘in the two cases the facts must be the same, the offender the same and the legal interest protected the same’.100 Some AGs and several authors therefore call for a unitary definition of ne bis in idem in EU law,101 especially bearing in mind that competition ‘falls somewhere in the grey area between criminal and administrative law’102 and that a fundamental right cannot have a different scope according to the policy area concerned.

C.  The Enforcement Condition in Article 54 CISA and its Relations with Article 50 of the Charter Article 54 CISA provides that if a person has been convicted, ne bis in idem applies only if the penalty has been enforced, is in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party. The Court of Justice has so far interpreted this enforcement clause in four main cases. In Gözütok and Brügge, it only stated that when a defendant has complied with the obligations descending from an out-of-court settlement, namely paying a certain amount of money, the penalty can be regarded as ‘having been enforced’ for the purposes of Article 54 CISA.103 In Kretzinger, the facts of which have been summarised in the previous section, the Court was called upon to decide whether the enforcement condition could be considered to have been fulfilled in cases of suspended custodial sentence. Beyond that, the Court was in essence required to address a more fundamental question of trust: throughout the description of the facts and in the German Court’s questions themselves, implicit but clear is the lack of trust towards the Italian authorities and the manner in which they have handled the Kretzinger cases post-conviction. What the German Court is asking effectively is the extent to which ne bis in idem rules are bent or limited when another Member State is deemed as not taking its enforcement obligations seriously: do final decisions in another Member State, if they are not properly enforced, bind the hands of activist courts in other Member States under the ne bis in idem principle?

100 See, for instance, Case C-17/10, Toshiba Corporation and Others, judgment of 14 February 2012, EU:C:2012:72, para 97. 101 See Case C-17/10, Toshiba Corporation and Others, Opinion of AG Kokott delivered on 8 September 2011, EU:C:2011:552, paras 120–22; Case C-617/17, Powszechny Zakład Ubezpieczeń na Życie SA, Opinion of AG Wahl delivered on 29 November 2018, EU:C:2018:976, paras 46–49. The judgment issued in the latter case (Case C-617/17, judgment of 3 April 2019, EU:C:2019:283) has been interpreted as a first step towards the abandonment of two different notions of ‘idem’ in EU law (see G Lasagni, ‘La Corte di Giustizia e la Definizione di Idem nel Diritto della Concorrenza: Verso la Creazione di una Nozione Uniforme?’ (2020) 47(1) Giurisprudenza Commerciale 5). On the contentious differences between EU competition and criminal law in the interpretation of ne bis in idem, see, eg, B van Bockel, ‘The “European” Ne Bis in Idem Principle: Substance, Source, and Scope’ in van Bockel (n 14) 13–57 at 34–39; A Rosanò, ‘Ne Bis Interpretatio in Idem: The Two Faces of the Ne Bis in Idem Principle in the Case Law of the European Court of Justice’ (2017) 18(1) German Law Journal 39, 44ff; M Luchtman, ‘The ECJ’s Recent Case Law on Ne Bis in Idem: Implications for Law Enforcement in a Shared Legal Order’ (2018) 55(6) CML Rev 1717, 1724–25. 102 Powszechny Zakład Ubezpieczeń na Życie SA (n 101) Opinion of AG Wahl, para 19. 103 Gözütok and Brügge (n 24) para 30.

Transnational Ne Bis in Idem: Scope and Content  165 From the outset, the Court clarified that suspended custodial sentences constitute penalties within the meaning of Article 54 of the Schengen Convention insofar as they penalise the unlawful conduct of a convicted person – with the penalty regarded as ‘actually in the process of being enforced’ as soon as the sentence has become enforceable and during the probation period.104 However, the Court found that periods spent in police custody and/or remand pending trial must not be regarded automatically as the enforcement of a penalty for the purposes of Article 54 CISA.105 Moreover, the Court rejected Mr Kretzinger’s argument that the fact that it was legally possible under the Framework Decision on the European Arrest Warrant for the sentencing state to issue a warrant in order to enforce a judgment which had become final and binding meant that the enforcement condition must be regarded as satisfied (and the German courts could no longer prosecute him).106 The Court found that this factor could not affect the interpretation of the notion of ‘enforcement’ under Article 54 of the Schengen Convention as the latter required not only a conviction, but also the satisfaction of the enforcement condition.107 The Court is thus prepared to extend ne bis in idem in cases of suspended sentences, implicitly accepting that this is a legitimate choice of penal enforcement by Member States which, if adopted at the domestic level, must be recognised as enforcement across the Schengen area for the purposes of Article 54 CISA. However, it is noteworthy that the Court is not prepared to link ne bis in idem enforcement with the European Arrest Warrant, or rather with the possibility for a Member State to issue a European Arrest Warrant on a specific case. The Court seems to recognise that this would place an undue burden upon domestic criminal justice systems, as well as an inroad to prosecutorial or judicial discretion: if Mr Kretzinger’s argument were accepted, the decision not to issue an EAW would effectively shield defendants from prosecutions as it would in essence constitute an act equivalent to a decision triggering the ne bis in idem principle. The third relevant case on the enforcement condition is Bourquain. As mentioned above, Mr Bourquain had been convicted in absentia by the French military tribunal in 1961 and then benefited from the amnesty in 1968. However, the penalty issued in 1961 could have never been enforced: according to French law, had the defendant reappeared in France, a new trial would have been necessary in his presence.108 In such circumstances, the question was whether the enforcement condition was fulfilled and, consequently, whether Mr Bourquain would have enjoyed the right to ne bis in idem if his case had been reopened in another Member State. The Court replied in the affirmative, arguing that the clause of Article 54 CISA also encompasses cases where the penalty ‘can no longer be enforced’. Therefore, when the second proceedings begin, it is not relevant whether the penalty imposed with the first decision could have not been executed on the date when it was imposed – it is only necessary to assess whether,

104 Kretzinger (n 88) para 42. 105 ibid paras 48ff. 106 ibid para 57. 107 ibid paras 59 and 63. The Court also based this conclusion on the fact that Member States bound by the Framework Decision on the European Arrest Warrant are not all bound by the Schengen Convention and linking the two in this manner would create ‘legal uncertainty’ (at para 62). 108 See section III.A above.

166  Ne Bis in Idem and Conflicts of Jurisdiction at the time of the second proceedings, that penalty has been, or is in the process of being, enforced, or can no longer be enforced. The latter was precisely the case for Mr Bourquain, who was again prosecuted in 2002 for the same facts for which he had been convicted in 1961; that penalty became void with the amnesty of 1968 and, even without such an amnesty, according to French law, it could have not been served after 20 years from the decision – that is, as of 1981. As a consequence, there is no doubt that the enforcement condition in similar cases is satisfied as the sentence against Mr Bourquain could no longer be enforced when the second proceedings began. Any other conclusion would have impaired Mr Bourquain’s freedom of movement, since he could have been tried or punished again because his penalty – due to some specific features of the French system – was not enforceable at the time of the first proceedings.109 Finally, the Court’s fourth case on the enforcement condition, Spasic,110 is rather problematic. This decision dealt with two questions. The less sensitive concerned the application of the enforcement clause when a person, who is sentenced to both a custodial sentence and a financial penalty, has only paid the latter. The Court submitted that should ne bis in idem apply in similar circumstances, the aims of Article 54 CISA would be seriously jeopardised. In this judgment, however, the Court mentioned among the objectives of Article 54 CISA only the need not to grant impunity to the individuals and the need to ensure legal certainty, whereas freedom of movement was neglected.111 It follows that from this perspective, allowing a person to rely on ne bis in idem when the sentence has been only partially executed would be unacceptable. Article 54 CISA, which provides for the singular form ‘penalty’, also covers the cases where a financial penalty and a custodial sentence have been imposed.112 The other issue dealt with by Spasic is much more contentious. The Court was asked whether the enforcement condition of Article 54 CISA is compatible with the right to ne bis in idem as enshrined in Article 50 of the Charter, which does not make any reference to such a clause. The striking positive answer was based on the premise that Article 54 CISA is recalled in the explanations to Article 50; the explanations also provide that the limited exceptions to the right at stake, to be found in Articles 54–58 CISA, are covered by the horizontal clause of Article 52(1) of the Charter.113 The latter provision regulates how the Charter rights can be limited. Similar limitations must: (i) be provided for by law; (ii) respect the essence of those rights; and (iii) be subject to the principle of proportionality, and be necessary and genuinely meet the objectives of general interest recognised by the EU or the need to protect the rights and freedoms of others. Assuming that the enforcement clause is a limitation of the right to ne bis in idem, the Court assessed whether the three conditions provided for by Article 52(1) of the Charter were met. First, the enforcement condition is provided by the law, namely Article 54 CISA.114 Second, the Court accepted the argument put forward by the German and French governments that the condition laid down in Article 54 CISA does not call into

109 Bourquain

(n 61) paras 45–52. C-129/14 PPU, Spasic, judgment of 27 May 2014, EU:C:2014:586. 111 ibid para 77. 112 ibid paras 80–81. 113 Explanations relating to the Charter of Fundamental Rights [2007] OJ C303, 14 December, 17–35, at 31. 114 Spasic (n 110) para 57. 110 Case

Transnational Ne Bis in Idem: Scope and Content  167 question the ne bis in idem principle as such, but is intended, inter alia, to avoid a situation in which a person definitively convicted and sentenced in one Contracting State can no longer be prosecuted for the same acts in another Contracting State and therefore ultimately remains unpunished if the first state did not execute the sentence imposed.115 The analysis then shifts to the proportionality of the enforcement clause. The Court’s positive assessment is based on the claimed objective of Article 54 CISA, ie, the general interest to prevent the impunity of persons convicted and sentenced in an EU Member State.116 According to the Court, by allowing, in cases of non-execution of the sentence imposed, the authorities of one Contracting State to prosecute a person definitively convicted and sentenced by another Contracting State on the basis of the same acts, the risk that the person concerned would enjoy impunity by virtue of his or her leaving the territory of the state in which he or she was sentenced is avoided.117 The Court was not convinced by the Commission’s argument that EU secondary law instruments providing for consultations between national authorities (including the Framework Decision on conflicts of jurisdiction)118 addressed this objective. The Court noted that these instruments do not lay down an execution condition similar to that of Article 54 CISA and, accordingly, are not capable of fully achieving the objective pursued.119 According to the Court, the options made available to that Member State by those Framework Decisions cannot ensure that, in the AFSJ, persons definitively convicted and sentenced in the EU will not enjoy impunity if the state which imposed the first sentence does not execute the penalties imposed.120 The Court therefore ruled out any incompatibility between the enforcement condition of Article 54 CISA and the right to ne bis in idem as enshrined in Article 50 of the Charter. The Court only adds that, in concreto, when national authorities must assess whether the enforcement clause is met, they can ‘contact each other and initiate consultations in order to verify whether the Member State which imposed the first sentence really intends to execute the penalties imposed’,121 in light of the principle of sincere cooperation enshrined in Article 4(3) TEU. The Court’s approach in Spasic is striking. It is a marked departure from the view of AG Jääskinen, who found that the generalised application of the execution condition in Article 54 CISA does not satisfy the proportionality criterion and cannot be regarded as a justified interference with the right not to be tried or punished twice in criminal proceedings within the meaning of Article 52 of the Charter.122 The ruling is also at odds not only with the Court’s case law on bis and idem, but also with national trends towards extending the protective scope of Article 54 CISA in the light of Article 50 of the Charter,123 with the earlier emphasis on the presumption of mutual trust being 115 ibid para 58; see also Kretzinger (n 88) para 51; Mitsilegas (n 58) 89. 116 Spasic (n 110) paras 61–63. 117 ibid paras 63 and 64 respectively. 118 See more in section IV below. 119 Spasic (n 110) para 68. 120 ibid para 69. 121 ibid para 73. 122 Spasic (n 110) View of AG Jääskinen delivered on 2 May 2014, EU:C:2014:739, paras 91–103. 123 The Greek Supreme Court has found that Member States’ reservations under art 55 CISA have ceased to exist since art 50 of the Charter does not provide for optional exceptions to the ne bis in idem principle similar to those enshrined in art 55 CISA – Areios Pagos, Case 1/2011.

168  Ne Bis in Idem and Conflicts of Jurisdiction transformed in Spasic to an institutionalisation of mutual distrust. The Court seems to have little time for the deliberative and consultative mechanisms introduced by EU law and aiming to facilitate interstate cooperation in cases of conflicts of jurisdiction. The Court found these mechanisms to be weak, but this weakness is explained by Member States’ reluctance to harmonise standards further in the field. This lack of harmonisation is allowed here to foment distrust and allow multiple interventions by national enforcement authorities for the same acts. In Spasic, the Court effectively introduced a security rationale within a fundamental right. However, not only does this rationale (and the emphasis on the need to avoid impunity) not fall within the scope of ne bis in idem, but the Court’s interpretation also opens the door towards divergent interpretations and levels of protection between domestic ne bis in idem cases involving the implementation of EU law (interpreted in conformity with Article 50 of the Charter) and transnational ne bis in idem cases under Article 54 CISA.124 The Court’s approach in Spasic also does very little for the achievement of legal certainty in Europe’s area of criminal justice and raises the spectre of serious impediments to the enjoyment of free movement. It also poses a significant challenge to the essence of the ne bis in idem right as enshrined in Article 50 of the Charter.125

D.  Conceptualising Transnational Ne Bis in Idem The ne bis in idem case law is another example of the subordination of criminal law to EU law. Especially in the Court’s first judgments, the principle has been interpreted in the light of the need to ensure that the fundamental rights of the EU legal order, in the form of free movement, are exercised effectively.126 The emphasis on free movement is inextricably linked to a specific view of territoriality in the Schengen area. With the logic of Schengen resulting in the abolition of borders, the Schengen area is viewed as 124 See further M Wasmeier, ‘Ne Bis in Idem and the Enforcement Condition: Balancing Freedom, Security and Justice?’ (2014) 5(4) New Journal of European Criminal Law 534. 125 Mitsilegas (n 58) 89–90. See also JAE Vervaele, ‘Schengen and Charter-Related Ne Bis in Idem Protection in the Area of Freedom, Security and Justice: M and Zoran Spasic’ (2015) 52(5) CML Rev 1339, 1352ff. The Court of Justice upheld the approach in Spasic in a judgment concerning ne bis in idem as provided for by art 4(5) of the European Arrest Warrant Framework Decision (optional ground for non-execution of a European Arrest Warrant), where the enforcement condition is expressly mentioned. In X (Mandat d’arrêt européen – Ne bis in idem) ((n 94) para 98), the Court ruled that, in view of establishing an AFSJ, such a condition ‘is of particular importance’ since, if it is not met, it prevents the application of the ne bis in idem principle. In the same judgment, the Court clarified that the enforcement condition – as envisaged by art 4(5) of the European Arrest Warrant Framework Decision – is satisfied where ‘the requested person has been finally sentenced, for the same acts, to a term of imprisonment, of which part has been served in the third State in which the sentence was handed down, whilst the remainder of that sentence has been remitted by a non-judicial authority of that State, as part of a general leniency measure that also applies to persons convicted of serious acts and is not based on objective criminal policy considerations’ (at para 104). In that case, the remainder of the sentence for grievous bodily harm and attempted murders – which was issued in Iran – had been remitted as part of a general leniency measure proclaimed by the Supreme Leader of Iran to mark the fortieth anniversary of the Islamic revolution (at paras 19–20). 126 On the Court of Justice’s ‘teleological and functional approach’, see C Janssens, The Principle of Mutual Recognition in EU Law (Oxford University Press, 2013) 145–47. Symeonidou-Kastanidou and Naziris claim that the line of reasoning inaugurated in Gözütok and Brügge connecting free movement with ne bis in idem elevated the latter to ‘a European citizen’s right within an ever-integrating Europe’ (Gözütok and Brügge (n 24) 223).

Transnational Ne Bis in Idem: Scope and Content  169 a borderless area, and thus effectively as one territory in which free movement must be ensured and enjoyed. Differences between national criminal justice systems should not pose an obstacle to free movement. However, one must not disregard that freedom in the context of the protective provisions of ne bis in idem within the framework of the Schengen Convention has been included as a safeguard to the substantial security ‘compensatory’ measures introduced by the Schengen Implementing Convention in order to enhance border and police cooperation. Similarly, in the AFSJ – the establishment of which has been one of the EU’s objectives since the Amsterdam Treaty – the high level of security to be guaranteed to EU citizens must go hand in hand with respect for fundamental rights. It is therefore telling that in the most recent judgments on ne bis in idem, the Court of Justice has emphasised that the protection of the freedom of movement should be balanced with the need to combat and prevent crime, and in any case cannot lead to the impunity of persons who have committed crimes. In Spasic, the Court of Justice even overlooked freedom of movement, with a reasoning that strikingly introduces a security rationale within the fundamental right not to be tried or punished twice for the same facts. The following judgments have partly departed from the Spasic approach, yet the emphasis on the ‘security’ rather than the ‘freedom’ dimension of the AFSJ and the Schengen area – and therefore of the ne bis in idem principle – is now more prominent than in the early rulings of the Court. The transposition of the ne bis in idem principle from the national to the EU level has considerable implications for sovereignty and legitimacy of the criminal law at the national level. The application of the ne bis in idem principle in the Schengen context, and then in the AFSJ, effectively prohibits a Member State from prosecuting conduct that could constitute a criminal offence in a wide range of cases. This constitutes a considerable limitation in the capacity of the state to administer criminal justice and may have considerable implications for citizens’ acceptance of such action. The tensions surrounding this issue are evident from the examination of ne bis in idem in Luxembourg, where cases have revealed that national courts are agonising over the extent to which they can define the principle, and the Court of Justice and AGs have to grapple with what constitutes the examination of the merits of a case and with what conditions will prevent a prosecution in EU Member States.127 Tensions are also evident in the fact that there is no common understanding by Member States of what should constitute ne bis in idem at the EU level, as efforts to adopt legal instruments introducing a common EU definition of the principle have failed.128 However, at the same time, absence of harmonisation of ne bis in idem across the EU has not been an obstacle for the Court in developing the principle further. As mentioned above, in Gözütok and Brügge, the Court stated that nowhere in the TEU or the S­ chengen Convention ‘is the application of Article 54 of the Convention made conditional upon harmonisation, or at least approximation, of the criminal laws of the Member States relating to procedures whereby further prosecution is barred’.129 The Court added that in those circumstances, ‘there is a necessary implication that the 127 The tension between ne bis in idem and the administration of justice is clearly demonstrated in AG Sharpston’s Opinion in Gasparini. 128 See ‘Initiative of the Hellenic Republic’ (n 10). 129 Gözütok and Brügge (n 24) para 32.

170  Ne Bis in Idem and Conflicts of Jurisdiction Member States have mutual trust in their criminal justice systems and that each of them recognises the criminal law in force in the other Member States even when the outcome would be different if its own national law were applied’ (emphasis added).130 The Court reiterated this statement in Van Esbroeck,131 where it added that because of the existence of mutual trust, the possibility of divergent legal classifications of the same acts in two different states or varying criteria protecting legal interests across Member States cannot stop the application of Article 54 of the Schengen Convention.132 Further references to mutual trust can also be found in more recent judgments such as Bourquain and Kossowski.133 Therefore, the Court seems to have disregarded concerns voiced in the context of the application of the principle of mutual recognition in criminal matters in view of the absence of mutual trust among Member States. In the ne bis in idem cases – with some exceptions such as Spasic – the Court assumes the existence of such trust, most notably of a ‘high level’ of trust between Member States. Whether such level of trust actually exists is an open question.134 What is noteworthy is that, in assuming trust and not viewing harmonisation as a necessary condition for interpreting the ne bis in idem in a broad manner, the ne bis in idem principle (which involves the movement of final national criminal law judgments in the Schengen area) is viewed in a manner analogous with the operation of the mutual recognition principle (where national judgments/orders also move across the EU). While the maximum mutual recognition of coercive measures such as the European Arrest Warrant leads to concerns regarding the extension of the state’s punitive sphere, a broad application of ne bis in idem (viewed as a facilitator of free movement) has thus far led to the opposite result, that is, an overall extension of the protective sphere for the individual in the AFSJ. In the absence of ever-elusive EU legislative harmonisation in the field, and the close link of ne bis in idem to the legitimacy of domestic criminal justice systems, standards developed by the Court of Justice may lead to challenges to the formulation and acceptance of these standards in Member States. At present, national definitions of ne bis in idem do not always chime with the definition adopted by the Court. Differences between the EU concept of ne bis in idem and national definitions may lead to double standards – and perhaps reverse discrimination – between those exercising free movement rights and those subject to a purely domestic legal framework. Court-made standards may also encounter resistance in a national context and have a significant impact on national legal systems and cultures – for example, in cases where the Court’s approach in Gözütok and Gasparini-type cases clashes with national rules requiring a substantive determination of innocence or guilt for a case to be ‘finally disposed of ’. Moreover, they may prove inadequate to address the fact that a 130 ibid para 33. See also the Opinion of AG Ruiz-Jarabo Colomer, delivered on 19 September 2002, EU:C:2002:516, paras 119–24, and para 55, where the AG stated that the construction of a Europe without borders, with its corollary of the approximation of the various national legal systems, including the criminal justice systems, presupposes that the states involved will be guided by the same values. 131 Van Esbroeck (n 16) para 30. 132 ibid paras 31 and 32. 133 Bourquain (n 61) para 37 and Kossowski (n 53) paras 50–53 respectively. 134 The assumption that a high level of trust in criminal justice systems across the EU exists would weaken the justification of proposals tabled by the European Commission in order to enhance trust in Member States’ criminal justice systems (most notably the defence rights proposal).

Concurrent Jurisdiction  171 fundamental principle of EU law135 – and EU criminal law – such as ne bis in idem has a strong ‘variable geometry’ dimension, linked primarily with the full Schengen members. With or without harmonisation, the Court will continue to face important questions on the interpretation of ne bis in idem. However, relaunching the effort to harmonise ne bis in idem at the EU level (with binding legislation incorporating the elements of the Luxembourg case law) will be challenging, but may be the only way for these concerns to be addressed.

IV.  Concurrent Jurisdiction A question that has been linked with, but is broader than, the definition of the ne bis in idem principle in a borderless AFSJ concerns the extent to which Member States should coordinate prior to initiating prosecutions for offences with a transnational element – thus extending cooperation at the stage prior to the initiation of criminal prosecutions and/or investigations. It has been argued that it is not coherent to allow the extraterritorial reach of national judicial decisions in criminal matters across the EU, without in parallel limiting the number of jurisdictions which can prosecute and can do so effectively.136 Some form of coordination on jurisdiction might complement the operation of mutual recognition and the determination of the fate of prosecutions in accordance with the ne bis in idem principle. In the absence of a uniform criminal law and procedure across the EU, the question arises as to whether any such coordination will result in the worsening of the position of the defendant by aiming at allocating jurisdiction to investigate and prosecute to the Member State where it is easiest to obtain a conviction, and whether ‘effectiveness’ in this context is synonymous with the maximum information gathering possible and maximum convictions. Another issue relates to legitimacy and to the extent to which it is acceptable for a Member State to be prevented from prosecuting an alleged offence where jurisdiction can be established solely on the grounds of ‘effectiveness’. Section IV.A below provides an overview of the EU’s approach to conflicts of jurisdiction in criminal matters, while section IV.B focuses on conflicts of jurisdiction in the field of the protection of the EU’s financial interests (PIF),137 where the issue has become very sensitive in the aftermath of the establishment of the EPPO.

A.  Conflicts of Jurisdiction in the EU Conflicts of jurisdiction are usually classified as: (i) ‘positive’, when two or more Member States wish to (or should) prosecute a given case or are already dealing with 135 In Van Esbroeck (n 16), the Court expressly stated that ne bis in idem is a fundamental principle of Community law (para 40). On ne bis in idem as a general principle of EU law, see D Sarmiento, ‘Ne Bis in Idem in the Case Law of the European Court of Justice’ in van Bockel (n 14) 103–30 at 108–12. 136 See D Flore and S de Biolley, ‘Des Organes Jurisdictionnels en Matière Pénale pour l’Union Européenne’ (2003) 5 Cahiers de droit européen 597, 610. 137 PIF stands for ‘protection des intérêts financiers’.

172  Ne Bis in Idem and Conflicts of Jurisdiction it; and (ii) ‘negative’, which occurs when no Member State is willing to investigate or prosecute a crime, although two or more of them would have jurisdiction on it.138 Positive conflicts of jurisdiction tend to flourish in proportion to the growth of cross-border criminality and to the number of national legislations providing for extraterritorial jurisdiction.139 However, currently there is no centralised binding mechanism of jurisdiction allocation in criminal matters in the EU,140 with the exception of the rules of the EPPO Regulation on the choice of forum.141 The only ‘instrument’ that currently regulates conflicts of jurisdiction is the transnational ne bis in idem principle, although this only applies when the proceedings in one Member State have become final.142 Since it is not coupled with a set of rules on jurisdiction, ne bis in idem implies that the first Member State to adjudicate a case, as the ‘sheriff who is quickest on the draw’,143 prevents others from doing the same, ‘even if someone was better placed to fire the shot’.144 A possible way to solve positive conflicts of jurisdiction is the transfer of proceedings, which allows national competent authorities to divest themselves of a case and transfer it to the authorities of another Member State that are better placed to deal with it.145 However, at the EU level, there is no legal instrument that regulates the transfer of proceedings, which therefore takes place mostly in accordance with non-EU rules.146 A proposal for a Council Framework Decision on the matter was tabled in 2009, but was not followed up.147 The (non-binding) powers of the European Union Agency for Criminal Justice Cooperation (Eurojust) with respect to conflicts of jurisdiction should also be mentioned.148 The Eurojust Regulation states that the Agency may ask the competent authorities of 138 See more in, inter alia, Caeiro (n 22) 369ff; ‘Explanatory Note’ in European Law Institute, Ligeti and Robinson (n 99) 15–76 at 16. 139 See, eg, M Böse, ‘Choice of Forum and Jurisdiction’ in M Luchtman (ed), Choice of Forum in C ­ ooperation against EU Financial Crime: Freedom, Security and Justice and the Protection of Specific EU Interests (Eleven International Publishing, 2013) 73–87 at 74. 140 See also A Klip, European Criminal Law: An Integrative Approach, 3rd edn (Intersentia, 2016) 455–56. 141 See more on this in ch 8. Recently, some proposals to fill this gap have been elaborated in the literature: see European Law Institute, Ligeti and Robinson (eds), n 99 above, especially pp 42–76. 142 M Luchtman, ‘Choice of Forum and the Prosecution of Cross-Border Crime in the European Union – What Role for the Legality Principle?’ in Luchtman (ed), n 139 above 3–60 at 38–41; M Wasmeier, ‘The Choice of Forum by the European Public Prosecutor’ in LH Erkelens, AWH Meij and M Pawlik (eds), The European Public Prosecutor’s Office. An Extended Arm or a Two-Headed Dragon?, The Hague, TMC Asser Press & Springer, 2015 139–161 at 145–146. 143 JR Spencer, ‘Mutual Recognition and Choice of Forum’ in Luchtman (n 139) 61–72 at 71. 144 ibid. See also Caeiro (n 22) 376; European Criminal Policy Initiative, ‘A Manifesto on European Criminal Procedure Law. European Criminal Policy Initiative’ (2013) 11 Zeitschrift für Internationale Strafrechtsdogmatik 430, 432. 145 See, eg, ‘Transfer of Proceedings’ (2016) 14 Eurojust News 7–8; A Marletta, ‘Report on the Field Research at Eurojust, February 2015’ in European Law Institute, Ligeti and Robinson (n 99) 86–99 at 95–96. 146 Some EU Member States have ratified the 1972 European Convention on the Transfer of Proceedings in Criminal Matters, Strasbourg, ETS No 73. In addition to this instrument, other non-EU legal bases that are relied upon to transfer criminal proceedings are reportedly art 21 of the 1959 European Convention on Mutual Assistance in Criminal Matters, Strasbourg, ETS No 30, and the 2000 United Nations Convention against Transnational Organized Crime (‘Transfer of Proceedings’ (n 145) 7–8). 147 [2009] OJ C219, 12 September, 7. In the first half of 2019, the Romanian presidency relaunched the debate by publishing and circulating a paper on conflicts of jurisdiction and the application of ne bis in idem (Council Doc 9197/19, Brussels, 15 May 2019), but no further initiative followed. 148 On Eurojust and conflicts of jurisdictions, see C Deboyser, ‘Eurojust’s Role in the Matter of Choice of Forum’ in Luchtman (n 139) 101–08; Marletta (n 145).

Concurrent Jurisdiction  173 Member States to coordinate149 and may also ask these authorities ‘to accept that one of them may be in a better position to undertake an investigation or to prosecute specific acts’.150 Respectful of the wish of Member States to maintain sovereignty in the initiation of investigations and prosecutions, Eurojust may (as in the cases of investigating or prosecuting) only ask – but not oblige – national authorities to consider these issues. Eurojust has been conducting a number of coordination meetings with national officials and, in 2003, adopted a series of (non-binding) Guidelines on ‘which jurisdiction should prosecute’.151 The Guidelines, which were revised in 2016,152 call for a ‘preliminary presumption’153 that a prosecution should take place in the jurisdiction where the majority of criminality occurred or where the majority of the loss was sustained – in reaching the decision, prosecutors ‘should balance carefully and fairly all the factors both for and against commencing a prosecution in each jurisdiction’.154 The Guidelines contain a series of criteria to be taken into account, including the location of the accused, the capacity to extradite or surrender, centralising prosecutions of many suspects in one jurisdiction, and the attendance and protection of witnesses and victims. According to the Guidelines, the relative sentencing powers of the courts must not be a ‘primary’ factor in deciding where to prosecute, but availability and use of evidence is a relevant factor.155 Mechanisms and criteria of allocating jurisdiction do exist in further sectoral EU criminal law instruments. For instance, the 2017 Directive on combating terrorism156 stipulates that when an offence falls within the jurisdiction of more than one Member State and when any of the states concerned can validly prosecute on the basis of the same facts, the Member States concerned must cooperate in order to decide where to prosecute, with the aim if possible of centralising proceedings in one Member State. Member States ‘may have recourse to Eurojust in order to facilitate cooperation between their judicial authorities and the coordination of their action’,157 and, in allocating jurisdiction, account must be taken of the following criteria: the territory of the commission of the acts; the nationality or residence of the perpetrator; the ‘country of origin’ of the victims; and the place where the perpetrator ‘was found’.158 The same list can be found 149 Article 4(2)(c) of Regulation (EU) 2018/1727 of the European Parliament and of the Council of 14 November 2018 on the European Union Agency for Criminal Justice Cooperation (Eurojust), and replacing and repealing Council Decision 2002/187/JHA, OJ L295, 21 November 2018, 138 (hereinafter the ‘Eurojust Regulation’). For further details on Eurojust, see ch 8. 150 Article 4(2)(b) of the Eurojust Regulation. 151 See the Annex to Eurojust Annual Report 2003, 60ff. On these guidelines, see A Marletta, ‘Forum Choice in the Area of Freedom, Security and Justice’ in European Law Institute, Ligeti and Robinson (n 99) 140–59 at 150–53. 152 Originally included in the Eurojust Annual Report 2016, the ‘Guidelines’ are now a stand-alone document available on Eurojust’s website (www.eurojust.europa.eu/practitioners/operational/pages/guidelineson-jurisdiction.aspx). 153 ibid 3. 154 ibid 2. 155 Eurojust conducted a jurisdiction allocation exercise in the known case concerning the shipwreck of the Prestige tanker in 2002. The College decided that Spain was better placed to prosecute than France on the grounds that a larger amount of evidence was gathered in Spain, and the number of injured parties was also much higher in Spain – see ‘The Prestige Case’ (2013) 10 Eurojust News 14–15. 156 [2017] OJ L88, 31 March, 6. 157 ibid art 19(3). 158 ibid.

174  Ne Bis in Idem and Conflicts of Jurisdiction in the 2008 Framework Decision on the fight against organised crime.159 It is interesting to note that these criteria do not necessarily coincide with the Guidelines developed by Eurojust, with the former being more objective compared to Eurojust’s more subjective, case-by-case approach. Back in 2005, the Commission had launched the debate on whether there should be common rules on conflicts of jurisdiction by linking the issue with the question of the development of an EU definition of ne bis in idem. The Commission Green Paper on conflicts of jurisdiction, published in December 2005,160 was the next step after the freezing of negotiations on the proposal by the Greek presidency for a Framework Decision on ne bis in idem, which encountered substantial difficulties in the Council.161 In the background to the Green Paper, the Commission linked the operation of the ne bis in idem to concurrent jurisdiction: [W]ithout a system for allocating cases to an appropriate jurisdiction while proceedings are ongoing, ne bis in idem can lead to accidental or even arbitrary results: by giving preference to whichever jurisdiction can first take a final decision, its effects amount to a ‘first come first served’ principle. The choice of jurisdiction is currently left to chance, and this seems to be the reason why the principle of ne bis in idem is subject to several exceptions.162

Following the use of this – rather critical – language, the Commission floated the idea of creating an EU mechanism for the choice of jurisdiction, which, if applied, would do away with the exceptions to the ne bis in idem principle. It called for criteria on jurisdiction allocation to be listed in a future EU instrument. It referred to criteria such as territoriality, criteria relating to the suspect or defendant, victims’ interests, criteria relating to the state interests and ‘certain other criteria related to the efficiency and rapidity of the proceedings’.163 It also asserted that: [S]ince new findings can often change the picture of what at first might seem the ‘best place’ to prosecute, it may not be wise to force the competent authorities to make a definitive choice of jurisdiction at an early stage.164

The need to give as much flexibility as possible to prosecutors was also reflected in the response of Eurojust to the Green Paper, where it was noted that immediate centralisation of proceedings in a single Member State ‘is not always the best solution’ and that in complex cases, it might be more appropriate ‘to carry on well coordinated investigations and prosecutions in two or more jurisdictions instead of centralising them in a single Member State’.165 Where does all this leave us? The Commission appears to be advocating centralisation and EU binding legislation in determining jurisdiction allocation criteria. From the tone and the content of the Green Paper – ranging from the criteria of allocating jurisdiction to the dismissive tone regarding the application of the protective ne bis in idem principle – concerns were raised that such criteria would prioritise the goal of

159 [2008]

OJ L300, 11 November, 42, art 7(2). See more in Peers (n 56) ch 6. (2005) 696 final, Brussels, 23 December 2005. section I above. 162 COM (2005) 696 final, 3. 163 ibid 8. 164 ibid 7. 165 ibid 3. Interestingly, Eurojust also placed emphasis on ‘negative’ conflicts of jurisdiction. 160 COM 161 See

Concurrent Jurisdiction  175 prosecutorial efficiency.166 Eurojust’s comments appeared in the same spirit, with the organisation calling for the maximum prosecution possible until a very late stage – in a sense thus defeating the very purpose of centralising prosecutions at an early stage and creating legal certainty (which could then lead to the abolition of ne bis in idem exceptions). Concerns relating to the proliferation of prosecutorial power at the expense of the defendant are coupled with issues of legitimacy. Should Member States be ordered not to prosecute behaviour which may lead to a criminal conviction in their jurisdiction? It is one thing for Member States to be bound by an EU body/instrument to initiate prosecutions, but quite another for these states to be prevented or prohibited from initiating prosecutions for conduct that may be a serious criminal offence under their law. However, the Commission’s Green Paper did not lead to any relevant change in the status quo, and the situation was not remedied by the adoption in 2009 of a Framework Decision on prevention and settlement of conflicts of jurisdiction,167 which merely establishes channels of information exchange and consultation between national authorities.168 The Framework Decision provides a role for Eurojust where it has not been possible to reach a consensus,169 but Member States do not appear to have made wide use of this provision.170 The entry into force of the Treaty of Lisbon may have provided new impetus towards the adoption of EU rules on conflicts of jurisdiction. Article 82(1)(b) TFEU calls on the EU legislators to adopt measures to prevent and settle conflicts of jurisdiction between Member States, while Article 85(1)(c) TFEU states that the tasks of Eurojust following the adoption of post-Lisbon secondary law may include the resolution of such conflicts.171 However, little, if any, progress has been made thus far on the ground. At the time of writing, no use of Article 82(1)(b) has been made, while, as mentioned above, the post-Lisbon Eurojust Regulation does not contain any major change in relation to the latter’s role in the resolution of conflicts of jurisdiction. The 2013 Commission’s proposal for a Regulation on Eurojust had suggested enhancing Eurojust’s powers by providing that the competent national authorities could decide not to follow Eurojust’s opinions on conflicts of jurisdiction only if the reasons for this are justified,172 but such an obligation to give reasons in the case of refusal to follow Eurojust’s opinions was eventually removed from the text.173 These developments reflect the reluctance of Member States to introduce EU-level binding rules which would limit their capacity to prosecute and their real and perceived 166 Note the Commission’s reference to ‘certain other criteria related to the efficiency and rapidity of the proceedings’ when citing criteria of allocation of prosecution. 167 Council Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings [2009] OJ L328, 15 December, 42. 168 Articles 5–9 and 10–13 of Council Framework Decision 2009/948/JHA respectively. See inter alia Marletta (n 151) 145–48. 169 Article 12(2) of Council Framework Decision 2009/948/JHA. 170 European Commission, ‘Report on the implementation by the Member States of Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings’ COM (2014) 313 final, Brussels, 2 June 2014, 4–5. 171 For an in-depth analysis of these two provisions, see M Wasmeier, ‘The Legal Basis for Preventing and Resolving Conflicts of Criminal Jurisdiction in the TFEU’ in European Law Institute, Ligeti and Robinson (n 99) 100–18 at 102ff. 172 COM (2013) 535 final, Brussels, 17 July 2013, arts 4(4) and 23. 173 cf art 4(6) of the Eurojust Regulation. In addition, Recital 14 of the Eurojust Regulation clarifies that the ‘written opinions of Eurojust are not binding on Member States’.

176  Ne Bis in Idem and Conflicts of Jurisdiction power to deliver justice in criminal matters for their citizens. Indeed, binding EU powers in the field would considerably limit the powers of Member States: in cases of positive conflicts of jurisdiction, a binding EU decision excluding one Member State from prosecuting would raise serious questions on its capacity to deliver justice domestically (as seen above, similar questions have been raised in the context of ne bis in idem cases). In cases of negative conflicts of jurisdiction, a binding EU decision would have the effect of obliging a Member State to prosecute a case which it would not normally have prosecuted, something that would raise a number of legitimacy and efficiency concerns (similar concerns have been raised in the context of the debate on the application of proportionality in the operation of the European Arrest Warrant).174 In all these cases, concerns relating to the delivery of justice are exacerbated in the absence of detailed and clear remedies for affected individuals.

B.  Protection of the EU’s Financial Interests and Conflicts of Jurisdiction The above-mentioned concerns on legitimacy and effectiveness of the criminal justice response to crime, as well as on the protection of individuals’ fundamental rights, arose in particular in the context of the negotiations on the Regulation establishing a European Public Prosecutor’s Office (hereinafter the ‘EPPO Regulation’).175 The EPPO Regulation includes some provisions on the choice of forum in relation to vertical investigations and prosecutions. The EPPO is the EU Office that is competent to investigate and prosecute crimes affecting the EU’s financial interests (so-called ‘PIF crimes’). Within the limits set out in the Regulation, which for instance provides for some thresholds for minor cases, the EPPO will in principle be able to deal with both national and crossborder PIF crimes. As for the latter, the negotiators had to decide on some criteria to allocate jurisdiction in cases where more than one Member State participating in the EPPO176 would be competent to investigate and prosecute the same crime. The establishment of the EPPO therefore poses new challenges in the field of EU criminal justice with respect to the allocation of jurisdiction. So far, decisions on choice of forum have been taken by competent national authorities, sometimes with the support of Eurojust. With the EPPO, the power to adopt these decisions – when they concern PIF crimes that fall within the EPPO mandate – will instead lie with an EU body. After heated debates, negotiators agreed that, in principle, the EPPO should begin investigations in the Member State where the focus of the criminal activity is or, if several connected offences within the competence of the EPPO have been committed, the Member State where the bulk of the offences has been committed.177 However, deviations from this rule are possible, since investigations can be moved to another Member State, taking into account the following criteria ‘in order of priority’:178 (a) the place of 174 See ch 4. 175 [2017] OJ L283, 31 October, 1 (hereinafter the ‘EPPO Regulation’). 176 The EPPO was established by means of enhanced cooperation. At the time of writing, Ireland, Denmark, Poland, Hungary and Sweden do not participate in the Office. 177 Article 26(4) of the EPPO Regulation. 178 ibid.

Concurrent Jurisdiction  177 the suspect or accused person’s habitual residence; (b) the suspect or accused person’s nationality; and (c) the place where the main financial damage has occurred.179 The same rules apply to the choice of the Member State where the case should be brought to judgment.180 The Regulation relies on broad notions such as ‘focus of the criminal activity’ and the ‘bulk of the offences’ that may require further clarification in the future,181 and allows the EPPO – within certain limits – to ‘“switch” between different legal orders’182 during the investigation or at the stage of prosecution. Bearing in mind that EPPO activities will largely be regulated by the national law of the Member State where they will take place,183 the suspect might never be sure that investigations will continue, and that the trial will take place, in a given Member State. Consequently, he or she may be confronted with different substantive and procedural criminal legislation during the investigations and up to the prosecution phase.184 The investigations and prosecutions of the EPPO should be guided by the principle of ‘fairness towards the suspect or accused person’,185 yet the change of jurisdiction in the course of its activities may prevent accused persons from organising an effective defence strategy.186 The issue is further complicated by the lack of judicial review at the EU level on the EPPO’s decision on choice of forum. This decision can only be reviewed by national courts,187 although these can lodge requests for preliminary rulings to the CJEU.188 As some authors argue, the national judiciary would be in a better position to take a swift decision on the matter compared to the CJEU, would have access to the case file

179 ibid. 180 See art 36(3) of the EPPO Regulation. 181 See M Luchtman, ‘Forum Choice and Judicial Review under the EPPO’s Legislative Framework’ in W Geelhoed, AWH Meij and L Erkelens (eds), Shifting Perspectives on the European Public Prosecutor’s Office 9TMC Asser Press/Springer, 2018) 155–70 at 157–58, who raises the following doubts: ‘How is the “focus” or “bulk” determined? Do we only count the number of offences? Or do we also take into account such factors as the legal interests involved, the nature and degree of the offences and/or the penalties? Is the focus or bulk of the offences also determined by the status of the alleged offenders (perpetrator, accomplice, etc.)? Do attempt and the separate criminalization of preparatory acts play a role?’ 182 F Zimmermann, ‘Choice of Forum and Choice of Law under the Future Regulation on the Establishment of a European Public Prosecutor’s Office’ in P Asp (ed), The European Public Prosecutor’s Office: Legal and Criminal Policy Perspectives (Stiftelsen Skrifter utgivna av Juridiska fakulteten vid Stockholms universitet, 2015) 156–77 at 167. 183 See more in ch 8. 184 See also JAE Vervaele, ‘Judicial and Political Accountability for Criminal Investigations and Prosecutions by a European Public Prosecutor’s Office: The Dissymmetry of Shared Enforcement’ in M Scholten and M Luchtman (eds), Law Enforcement by EU Authorities. Implications for Political and Judicial Accountability (Edward Elgar, 2017) 247–71 at 256–57. 185 Recital 65 of the EPPO Regulation. 186 See S Ruggeri, ‘Criminal Investigations, Interference with Fundamental Rights and Fair Trial Safeguards in the Proceedings of the European Public Prosecutor’s Office: A Human Rights Law Perspective’ in L Bachmaier Winter (ed), The European Public Prosecutor’s Office: The Challenges Ahead (Springer, 2018) 201–33 at 209–15 and 227. 187 Almost all EPPO acts and decisions will be subject to judicial review by national courts, although one would expect that the nature of the EPPO as an EU body requires judicial review by the CJEU (see more in ch 8). As for the judicial review of the choice of forum, Recital 87 of the EPPO Regulation reads as follows: ‘Procedural acts that relate to the choice of the Member State whose courts will be competent to hear the prosecution, which is to be determined on the basis of the criteria laid down in [the] Regulation … should … be subject to judicial review by national courts, at the latest at the trial stage’ (emphasis added). 188 Article 42(2) of the EPPO Regulation.

178  Ne Bis in Idem and Conflicts of Jurisdiction and could in any case resort to the Court of Justice pursuant to Article 267 TFEU.189 Nonetheless, a number of equally valid arguments can be marshalled for the opposite conclusion of bestowing the judicial review of the EPPO’s choice of forum upon the Court of Justice. The decision on the choice of forum follows criteria set out by EU rules (the EPPO Regulation)190 and should not raise concerns in terms of confidentiality, since the investigations are over. True, a quick decision on the conflict of jurisdiction is necessary, especially if suspects are being deprived of their liberty, but the Rules of Procedure of the CJEU already lay down some provisions concerning expedited procedures.191 Furthermore, as the Commission pointed out back in 2001, if control over the choice of forum is left to national courts, ‘there could be a few cases of declined jurisdiction and possibly even of negative conflicts of jurisdiction’.192 If investigations are initiated in State A and later moved to State B, and the case is finally brought to prosecution in State C, the suspect can challenge the jurisdiction of State C before the courts of this Member State. Assuming that the courts of State C reject their jurisdiction, the EPPO could lodge an appeal against the decision if national law so provides. If the appeal fails or if the EPPO considers it more appropriate to initiate the prosecution in another Member State, say State B, the case can be brought before courts in State B. Here again, the courts could refuse their jurisdiction: assuming they decline their jurisdiction as well, a negative conflict of jurisdiction would arise, as foreseen by the Commission’s Green Paper. As things stand, this conflict could not be settled at the European level by a European court. The only way to avoid a stalemate would be for national authorities to find an agreement pursuant to the 2009 Framework Decision on conflicts of jurisdiction and/or involving Eurojust.193 The provision in the EPPO Regulation on the judicial review of choice of forum may therefore amount to negating an effective remedy against acts which may have significant consequences for the protection of fundamental rights, including respect of the principles of legality (including foreseeability)194 and equality before the law.195 Lack of legal certainty with regard to choice of forum decisions at the national level was found 189 F Falletti, ‘The European Public Prosecutor’s Office and the Principle of Equality’ (2017) 1 Eucrim 25, 26. See also H-H Herrnfeld, ‘Choice of Forum and Case Allocation in the EPPO Regulation’ in European Law Institute, Ligeti and Robinson (n 99) 305–22 at 315–18. 190 The Preamble to the EPPO Regulation makes it clear that the Member State where the trial following the EPPO investigations will take place ‘is to be determined on the basis of the criteria laid down in [the] Regulation’ (Recital 87). 191 On the expedited procedures before the Luxembourg Court, see M Wathelet, ‘Accelerated Procedures before the European Court of Justice’ in K Bradley, N Travers and A Whelan (eds), Of Courts and Constitutions: Liber Amicorum in Honour of Nial Fennelly (Hart Publishing, 2014) 33–46. 192 Commission, ‘Criminal-law protection of the financial interests of the Community and the establishment of a European Public Prosecutor’ (Green Paper), COM (2001) 715 final, Brussels, 11 December 2001, 56. 193 F Giuffrida, ‘Cross-border Crimes and the European Public Prosecutor’s Office’ (2017) 3 Eucrim 149, 153–54. 194 V Mitsilegas, ‘The European Public Prosecutor before the Court of Justice: The Challenge of Effective Judicial Protection’ in G Giudicelli-Delage, S Manacorda and J Tricot (eds), Le Contrôle Judiciaire du Parquet Européen. Nécessité, Modèles, Enjeux (Collection de l’UMR de Droit Comparé de Paris (Université Paris 1), Société de Législation Comparée, vol 37, 2015) 84. On the principle of legality as foreseeability in this context, see Zimmermann (n 182); M Panzavolta, ‘Choice of Forum and the Lawful Judge Concept’ in Luchtman (n 139) 143–66. 195 Mitsilegas (n 194) 84. See also in this context Fundamental Rights Agency, Opinion on a Proposal to Establish a European Public Prosecutor’s Office, FRA Opinion 1/2014, Vienna, 4 February 2014.

Concurrent Jurisdiction  179 to be in violation of Article 7 ECHR by the ECtHR. In the case of Camilleri v Malta,196 the Court found that national law providing for two different possible punishments depending on the procedure chosen by the Attorney General failed to satisfy the foreseeability requirement and provide effective safeguards against arbitrary punishment as provided in Article 7. The Court noted in this context that: It would therefore appear that the applicant would not have been able to know the punishment applicable to him even if he had obtained legal advice on the matter, as the decision was solely dependent on the prosecutor’s discretion to determine the trial court. While it may be true that the Attorney General gave weight to a number of criteria before taking his decision, it is also true that any such criteria were not specified in any legislative text or made the subject of judicial clarification over the years. The law did not provide for any guidance on what would amount to a more serious offences or a less serious one … An insoluble problem was posed by fixing different minimum penalties … The decision was inevitably subjective and left room for arbitrariness, particularly given the lack of procedural safeguards.197

It is clear that this reasoning is likely to apply to transnational choice of forum decisions, including decisions by the EPPO, something which necessitates not only a clear procedure involving the defendant leading to the decision on the choice of forum, but also effective remedies at the EU level against choice and transfer of forum decisions by the EPPO.198 Finally, the establishment of the EPPO poses two further challenges. First, conflicts in the allocation of jurisdiction will also have a ‘vertical’ – rather than purely ‘horizontal’ – dimension. In other words, the rules on the choice of forum that have been discussed so far aim to identify the Member State in which the EPPO will carry out its activities among the different Member States where the EPPO could in principle exercise its powers. Therefore, from a ‘horizontal’ perspective, these provisions intend to avoid that the same facts are investigated and prosecuted in more than one country by the same EU body. However, once the competent Member State has been identified, it will also be necessary to prevent the EPPO and national public prosecutors from investigating and prosecuting the same PIF offence at the same time. This issue of the ‘vertical’ allocation of jurisdiction (or, more correctly, competence) between national and EU authorities comes to the fore for the first time in EU criminal law, as the EPPO is the first EU body that can investigate and prosecute individuals. The overarching principle is that if the EPPO decides to exercise its competence, ‘the competent national authorities shall not exercise their own competence in respect of the same criminal conduct’.199 Second, conflicts of competence may also arise at the EU level between two EU bodies with similar missions. As discussed in Chapter 8, the European Anti-Fraud Office (OLAF) is competent to conduct investigations on fraud and other illegal activities affecting the EU’s financial interests. However, unlike the EPPO, OLAF can carry out administrative investigations, but cannot conduct criminal prosecutions; it can only share the outcome of its investigations with national authorities, which will then decide

196 ECtHR,

Camilleri v Malta, App No 42931/10, judgment of 22 January 2013. paras 42–43. 198 Mitsilegas (n 194) 84. 199 Article 25(1) of the EPPO Regulation. 197 ibid

180  Ne Bis in Idem and Conflicts of Jurisdiction whether or not to indict the person(s) on whose allegedly illegal activities OLAF investigated. Even though the two bodies have different powers, their mandate is very similar, that is, protecting the EU budget against fraud and other illegal activities. OLAF investigations may at times be as intrusive as criminal investigations, and the 2013 Regulation on OLAF indeed provides for some procedural safeguards that are similar to those in criminal proceedings.200 It is therefore to be welcomed that the EU legislator tries to reduce duplication of investigations at the EU level requiring that where the EPPO conducts a criminal investigation, ‘OLAF shall not open any parallel administrative investigation into the same facts’.201 This prohibition of parallel investigation, in spite of the differences between OLAF administrative and EPPO criminal investigations, is in line with the recent case law of the CJEU and the ECtHR on the debated issue, which is addressed in the section below, of whether the same person can be subject to administrative and criminal penalties for the same conduct.

V.  Application of Ne Bis in Idem to Criminal and Administrative Proceedings Concerning the Same Facts The Court of Justice and the ECtHR have recently decided an increasing number of cases concerning the applicability of ne bis in idem to concurring administrative and criminal proceedings. The key question in this context is whether the same person can be subject to both administrative and criminal penalties for the same facts.202 This is a new dimension of ne bis in idem: it has national scope, as criminal and administrative penalties are issued within the same Member State, but goes beyond criminal law stricto sensu. There are several fields where criminal and administrative law go hand in hand, notably when it comes to the regulation of economic activities, and the same conduct could thus be subject, according to some criteria laid down by national legislators, to criminal and administrative sanctions (so-called ‘twin-track’ or ‘double-track’ systems). At the EU level, the combination of criminal and administrative law is common in the regulation of areas such as the protection of the EU’s financial interests and market abuse. The recent Directive on the fight against fraud by means of ­criminal law (­hereinafter the ‘PIF Directive’) obliges Member States to introduce criminal ­penalties for fraud and other illegal conducts affecting the EU budget, including money 200 See art 9 of Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 [2013] OJ L248, 18 September, 1, as amended by Regulation (EU, Euratom) 2020/2223 of the European Parliament and of the Council of 23 December 2020 amending Regulation (EU, Euratom) No 883/2013, as regards cooperation with the European Public Prosecutor’s Office and the effectiveness of the European Anti-Fraud Office investigations [2020] OJ L437, 28 December, 49. 201 Article 101(2) of the EPPO Regulation. See also art 12d of Regulation (EU, Euratom) 883/2013, as amended by Regulation (EU, Euratom) 2020/2223. For some remarks on those limited cases where OLAF is allowed to conduct its administrative investigations upon request of the EPPO and in the framework of the latter’s investigations, see section V.B.vi.c in ch 8. 202 See Tomkin (n 2) 1405–07.

Application of Ne Bis in Idem to Criminal  181 l­aundering or misappropriation.203 At the same time, there are several further illegal forms of conduct that do not amount to crime, but still affect the EU’s financial interests; they are referred to as ‘irregularities’ and are punished with administrative sanctions.204 Similarly, in accordance with the Market Abuse Directive,205 Member States should penalise serious forms of conduct such as insider dealing or market manipulation, while administrative sanctions are provided for the violations of a number of provisions laid down in the Market Abuse Regulation.206 The European Courts have addressed the issue of concurring criminal and administrative proceedings and penalties in a way that has changed over time. As the following sections illustrate, two phases in their case law can be identified: the CJEU and the ECtHR were first inclined to rule out the compatibility of double-track systems with the ne bis in idem principle; however, after some years, they partially modified and softened their approach.207

A.  The ‘First Phase’: Incompatibility between Double-Track Systems and Ne Bis in Idem In Bonda,208 the Court of Justice dealt with the case of a Polish national who received an administrative penalty for some violations of Regulation (EC) 1973/2004 on EU agriculture subsidies.209 He had declared he owned much more land than that he actually had and was therefore excluded from the subsidy for the subsequent year, pursuant to Article 138(1) of the Regulation. After the administrative penalty had been issued, the public prosecutor then opened an investigation for fraud: Mr Bonda was convicted in the first instance and acquitted in the second, whereas the Polish Supreme Court asked the Court of Justice to decide on the legal nature of the penalty provided for in Article 138(1) of Regulation (EC) 1973/2004. If such a penalty had been of a criminal nature, the Polish legislation on ne bis in idem would have applied and Mr Bonda should have been acquitted in the criminal proceedings. Confirming its previous case law on the common agricultural policy, the Court denied the criminal nature of penalties issued within the framework of this policy area. It referred to the Engel criteria used by the ECtHR to ascertain whether a given sanction can be considered of a criminal nature, and namely legal classification of the offence

203 [2017] OJ L198, 28 July, 29. 204 In accordance with art 1(2) of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests [1995] OJ L312, 23 December, 1, irregularity ‘shall mean any infringement of a provision of Community law resulting from an act or omission by an economic operator, which has, or would have, the effect of prejudicing the general budget of the Communities or budgets managed by them, either by reducing or losing revenue accruing from own resources collected directly on behalf of the Communities, or by an unjustified item of expenditure’. The notion of ‘fraud’ in the PIF Directive instead covers only intentional acts or omissions (art 3(1) of the PIF Directive). 205 [2014] OJ L173, 12 June, 179. 206 ibid 1. 207 For an analysis of the recent case law of the European Courts on the matter, see Ligeti (n 99) 160–81. 208 Case C-489/10, Bonda, judgment of 5 June 2012, EU:C:2012:319. 209 OJ L345, 20 November 2004, 1.

182  Ne Bis in Idem and Conflicts of Jurisdiction under national law, the very nature of the offence, and the nature and degree of s­ everity of the penalty.210 The application of these criteria led it to conclude that the refusal to pay a farmer the year after the presentation of the false statement was not a criminal penalty: it is not classified as such in Regulation (EC) 1973/2004, is not punitive as it only intends to ‘protect the management of European Union funds by temporarily excluding a recipient who has made incorrect statements in his application for aid’,211 and, finally, is not a severe measure, since it only deprives the farmer of the prospect of obtaining financial aid.212 Even though this decision shows a positive convergence between the case law of the Court of Justice and that of the ECtHR in relation to the qualification of penalties, it is surprising that the CJEU – unlike AG Kokott – has not referred to Article 50 of the Charter, which is now the key provision in EU law setting out the ne bis in idem principle. It is not clear whether this silence is justified by the special position of Poland vis-a-vis the Charter. In accordance with Protocol No 30 to the Treaties: ‘The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland … to find that the laws, regulations or administrative provisions, practices or action of Poland … are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.’213 However, as AG Kokott noted, this provision, which ‘does not distinguish itself by great clarity’,214 does not equate to an opt-out by Poland from the Charter.215 By contrast, ne bis in idem was looked at from the perspective of Article 50 in ­Fransson,216 where the Court assessed whether the Charter precludes a Member State – Sweden in that case – from imposing both a tax (formally non-criminal) penalty and a criminal sanction on the same person.217 The Court argued that Article 50 of the Charter only applies if the two sets of proceedings concerning the same facts are of a criminal nature. As in Bonda, it noted that the evaluation of whether a given penalty is ‘criminal’, and therefore apt to trigger the ne bis in idem principle, has to be done in accordance with the Engel criteria. However, in Bonda, the rules on one of the two penalties – the administrative one – were to be found in EU legislation. Arguably because all the relevant provisions in Fransson were national, the Court did not itself proceed to the application of the Engel criteria to Swedish legislation, but simply clarified that it is for the national 210 Bonda (n 208) para 37. 211 ibid para 40. 212 ibid paras 37–45. 213 Article 1(1) of Protocol (No 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom [2016] OJ C202, 7 June 2016, 312. 214 Bonda (n 208) Opinion of AG Kokott delivered on 15 December 2011, EU:C:2011:845, para 23. 215 ibid. Therefore, since ‘the prohibition of double penalties laid down in Article 50 of the Charter had … already been recognised as a general European Union law principle, and according to the previous case-law such a principle would also have been applicable to the case at issue … an extension of the ability of the Court of Justice within the meaning of the protocol cannot come into question’ (ibid). 216 Case C-617/10, Åkerberg Fransson, 26 February 2013, EU:C:2013:105. For some commentaries, see T Lock, ‘Fishing for Better Rights Protection: The Court of Justice on the Application of the Charter in the Member States and the Reach of Ne Bis in Idem’ and M Bergström, ‘The Impact of Case C-617/10: Åkerberg Fransson at National Level – The Swedish Example’ in Mitsilegas, di Martino and Mancano (n 24) 245–58 and 259–70 respectively. 217 For the legal background on the case and its effects on the Swedish system, see the analysis in X Groussot and A Ericsson, ‘Ne Bis in Idem in the EU and ECHR Legal Orders’ in van Bockel (n 14) 53–102 at 90–102.

Application of Ne Bis in Idem to Criminal  183 competent authorities to assess the possible criminal nature of tax penalties.218 When, as in the case of Fransson, the condition laid down in Article 51 of the Charter is met – ‘The provisions of [the] Charter are addressed to … the Member States only when they are implementing Union law’219 – domestic authorities are therefore obliged to disapply national legislation that is incompatible with the EU fundamental right to ne bis in idem.220 In other words, in Fransson the Court of Justice clearly ruled out the idea that a person could be subject to criminal and formally administrative – but in reality criminal – sanctions for the same tax violation: ‘if the tax penalty is criminal in nature for the purposes of Article 50 of the Charter and has become final … that provision precludes criminal proceedings in respect of the same acts from being brought against the same person’.221 This conclusion was partially revised in some decisions handed down by the Grand Chamber of the Court of Justice in March 2018. The partial revirement of the CJEU was in turn triggered by some developments in the case law of the ECtHR. The ECtHR had dealt with the possible violation of ne bis in idem in the case of concurring administrative and criminal sanctions in a seminal judgment delivered in 2014: Grande Stevens v Italy.222 In that case, the applicants had been punished by the Italian National Companies and Stock Exchange Commission (CONSOB) and were subsequently prosecuted for the same facts. Applying the Engel criteria, the ECtHR found that the proceedings before the CONSOB did involve a ‘criminal charge’ for the purposes of Article 6 ECHR; therefore, Article 4 of Protocol No 7 to the ECHR on ne bis in idem applied.223 Since national authorities were called to adjudicate the same facts already punished by the CONSOB and did not stop the proceedings, the Court concluded that there had been a violation of the ne bis in idem principle. The reasoning of the ECtHR draws significantly upon the above-mentioned Zolotukhin case, which laid down the – now established – interpretation of the ‘idem’ element as a set of facts inextricably linked together in time and space.224 The ECtHR also mentioned the Fransson case, yet only to clarify that it is true that the CJEU ‘allowed’ the issuing of tax penalties and criminal sanctions against

218 Fransson (n 216) paras 32–37. For further possible explanations of the differences in the Court’s approach in Bonda and Fransson, see PJ Wattel, ‘Ne Bis in Idem and Tax Offences in EU Law and ECHR Law’ in van Bockel (n 14) 167–217 at 183–85. 219 Article 51(1) of the Charter. In that respect, the CJEU argued that: ‘Given that the European Union’s own resources include … revenue from application of a uniform rate to the harmonised VAT assessment bases determined according to European Union rules, there is thus a direct link between the collection of VAT revenue in compliance with the European Union law applicable and the availability to the European Union budget of the corresponding VAT resources, since any lacuna in the collection of the first potentially causes a reduction in the second. It follows that tax penalties and criminal proceedings for tax evasion, such as those to which the defendant in the main proceedings has been or is subject because the information concerning VAT that was provided was false, constitute implementation of Articles 2, 250(1) and 273 of Directive 2006/112 … and of Article 325 TFEU and, therefore, of European Union law, for the purposes of Article 51(1)’ (Fransson (n 216) paras 26–27, emphasis added). For further remarks on the relevance of the Fransson ruling in clarifying the circumstances in which the Charter applies, see ch 1. 220 ibid para 45. 221 ibid para 34. 222 ECtHR, Grande Stevens v Italy, App No 18640/10, judgment of 4 March 2014. 223 ibid paras 94–101 and 222. 224 See section III.B above.

184  Ne Bis in Idem and Conflicts of Jurisdiction the same person for the same facts, but this was admissible only when the tax penalties are not criminal in nature.225 However, about two and a half years later, the Strasbourg Court delivered a judgment where it partially modified its approach, and, as anticipated, this led to some changes in the CJEU case law as well.

B.  The ‘Second Phase’: (Partial) Compatibility between Double-Track Systems and Ne Bis in Idem In A and B v Norway,226 concerning the field of tax offences, the ECtHR ruled that, under some conditions, twin-track systems do not violate the ne bis in idem principle: States should be able legitimately to choose complementary legal responses to socially offensive conduct (such as … non-payment/evasion of taxes) through different procedures forming a coherent whole so as to address different aspects of the social problem involved, provided that the accumulated legal responses do not represent an excessive burden for the individual concerned.227

Therefore, a violation of Article 4 of Protocol No 7 does not occur in the case of ‘an integrated system enabling different aspects of the wrongdoing to be addressed in a foreseeable and proportionate manner forming a coherent whole, so that the individual concerned is not thereby subjected to injustice’ (emphasis added).228 Between the different procedures concerning the same person, there should be ‘sufficiently close connection … in substance and in time’ (emphasis added),229 and the Court then listed some factors to assess whether there was such sufficiently close connection in substance.230 As for the connection in time, the Court argued that this connection must be ‘sufficiently close to protect the individual from being subjected to uncertainty and delay and from proceedings becoming protracted over time’,231 but did not give any further detail that might guide national authorities in the evaluation of whether administrative and criminal proceedings are truly close in time.232

225 ibid

para 229. A and B v Norway, App Nos 24130/11 and 29758/11, judgment of 15 November 2016. 227 ibid para 121. 228 ibid para 122. 229 ibid para 125. 230 They include: 226 ECtHR,

– whether the different proceedings pursue complementary purposes and thus address, not only in abstracto but also in concreto, different aspects of the social misconduct involved; – whether the duality of proceedings concerned is a foreseeable consequence, both in law and in practice, of the same impugned conduct (idem); – whether the relevant sets of proceedings are conducted in such a manner as to avoid as far as possible any duplication in the collection as well as the assessment of the evidence, notably through adequate interaction between the various competent authorities to bring about that the establishment of facts in one set is also used in the other set; – and, above all, whether the sanction imposed in the proceedings which become final first is taken into account in those which become final last, so as to prevent that the individual concerned is in the end made to bear an excessive burden … (para 132; emphasis added). 231 ibid para 135. 232 See also S Mirandola and G Lasagni, ‘The European Ne Bis in Idem at the Crossroads of Administrative and Criminal Law’ (2019) 2 Eucrim 126, 128.

Application of Ne Bis in Idem to Criminal  185 The A and B judgment runs counter to the previous case law of the ECtHR (and of the CJEU), as demonstrated by the vehemently critical dissenting opinion by Judge Pinto de Albuquerque, who concluded his opinion by stating that: The combination of criminal penalties and administrative penalties with a criminal nature was specifically rejected by the Court in Grande Stevens and Others, as well as by the Luxembourg Court in Hans Åkerberg Fransson. After the delivery of its death certificate in that Italian case, such an approach is now being resuscitated … The progressive and mutual collaboration between the two European courts will evidently once again be deeply disturbed, Strasbourg going the wrong way and Luxembourg going the right way. The Grand Chamber examining the Sergey Zolotukhin case would not have agreed to downgrade the inalienable individual right to ne bis in idem to such a fluid, narrowly construed, in one word illusory, right.233

These words of the dissenting opinion capture three main problems connected with the A and B judgment: its contentious rejection of the principles laid down in Grande Stevens; the vagueness of the criteria endorsed (the close connection in substance and time);234 and the consequences for the consistency between the case law of the ECtHR and the CJEU. After A and B, the Court of Justice was required to rule again on the issue of ne bis in idem in the case of administrative and criminal proceedings on the same facts and to clarify whether it would accept the new stance of the ECtHR or whether it would stick to the more protective Fransson approach. With some exceptions and without spelling it out, the CJEU seems to have taken the first path. In Menci, it dealt with a case of a proprietor of a sole trading business who had been subject to a final administrative penalty for his failure to pay VAT within the time limit stipulated by law.235 Criminal proceedings were subsequently initiated for the same facts. Had the Fransson principles applied, the case should have been dismissed by the criminal law authorities upon verification of the criminal law nature of the administrative penalty. However, endorsing to a certain extent the ECtHR case law, the Court reached a different conclusion through the following steps. First, along the lines of Fransson, the CJEU clarified that the matter fell within the scope of EU law, as the provisions on VAT collection constitute, for the purposes of Article 51(1) of the Charter, implementation of Article 325 TFEU236 and of the VAT Directive.237 Article 50 of the Charter therefore applies in this context.238 Second, relying on the Engel criteria, which it had expressly endorsed in Bonda, the Court suggested that the administrative penalty issued against Menci was of a criminal nature, in the 233 A and B (n 226) Dissenting Opinion of Judge Pinto de Albuquerque, para 80. 234 See Luchtman (n 101) 1728; Mirandola and Lasagni (n 232) 128–29, who also note that the ECtHR’s case law following A and B has not dispelled the several interpretative doubts that have been raised by the vague criteria laid down in A and B. 235 Case C-524/15, Menci, judgment of 20 March 2018, EU:C:2018:197. 236 Article 325 TFEU lays down the EU’s and Member States’ obligation to protect the EU’s financial interests by requiring them to counter fraud and any other illegal activities affecting the EU budget through effective and dissuasive measures (art 325(1)). 237 Directive 2006/112/EC on the common system of value added tax [2006] OJ L347, 11 December, 1. A similar conclusion had already been taken in Fransson (see n 219). See G Lo Schiavo, ‘The Principle of Ne Bis in Idem and the Application of Criminal Sanctions: Of Scope and Restrictions’ (2018) 14(3) European Constitutional Law Review 644, 649–50. 238 Menci (n 235) paras 17–25.

186  Ne Bis in Idem and Conflicts of Jurisdiction light of its punitive purpose and its high degree of severity (a fine of 30 per cent of the VAT due, which was added to the payment of that tax).239 Third, it acknowledged that the facts that led to the imposition of the administrative penalty and those under prosecution were the same so that, in principle, an issue of ne bis in idem arose.240 Had the Court stuck to the Fransson approach, the above findings would have been sufficient to conclude that the criminal case against Menci, which was opened after the conclusion of formally administrative (but in essence criminal) proceedings, had to be dropped. Instead, the Court stated that the duplication of proceedings and penalties constituted a limitation of the fundamental right protected by Article 50 of the Charter,241 and it could therefore be legitimate as long as it complied with the conditions set out in Article 52(1) of the Charter. It has already been mentioned that, pursuant to Article 52(1), any limitation on the exercise of the rights and freedoms recognised by the Charter must:242 (i) be provided for by law; (ii) respect the essence of those rights; and (iii) be subject to the principle of proportionality, be necessary and genuinely meet objectives of general interest recognised by the EU or the need to protect the rights and freedoms of others. The CJEU cursorily addressed the first and second requirements, as well as that concerning the objectives of general interest. First, the criterion under (i) did not raise any problems in this case, as the duplication was provided for by Italian law.243 Second, the Court did not pay too much attention to the criterion under (ii) either, since it simply acknowledged that the essence of the right to ne bis in idem was not jeopardised because national law allows the duplication of proceedings and penalties under exhaustive and precise conditions.244 This statement is rather contentious, since the CJEU did not really engage with the issue of whether the essence of the ne bis in idem is safeguarded in circumstances such as those in the case. By contrast, it contented itself with repeating, as it did in the assessment of criterion (i) (limitation provided for by law), that the duplication of proceedings and penalties is provided for by national law without any further explanation of the reason why this does not affect the essence of the right protected by Article 50.245 Third, the CJEU accepted that the collection of the due VAT was an objective of general interest that may justify limitations to ne bis in idem.246 It then moved on to the assessment of the proportionality of such limitation and laid down further criteria to apply. More precisely, the respect of the proportionality principle requires that national legislation must: (i) provide for ‘clear and precise rules allowing individuals to predict which acts or omissions are liable to be subject to … a duplication of proceedings 239 ibid paras 26–33. However, the Court clarified that it is for the referring court to determine whether that administrative penalty has a criminal nature (para 33). 240 ibid paras 34–39. 241 ibid para 39. 242 See the analysis of the Spasic case in section III.C above. 243 Menci (n 235) para 42. 244 ibid para 43. 245 Luchtman (n 101) 1730–31; Mirandola and Lasagni (n 232) 130. Also in Spasic, where the CJEU had already accepted some limitations to the ne bis in idem principle, albeit different from those discussed in Menci, the Court had overlooked a detailed examination of whether such limitations affect the essence of ne bis in idem (see van Bockel (n 101),28). 246 Menci (n 235) paras 44–45.

Application of Ne Bis in Idem to Criminal  187 and penalties’,247 which, once again, was not contentious in the Menci case;248 and (ii) ensure that the disadvantages for the persons concerned following on from such a duplication ‘are limited to what is strictly necessary in order to achieve’249 the objective of general interest that underlies that legislation (namely, in the Menci case, the collection of VAT). In turn, this second criterion calls for two further assessments. First, there should be rules that ensure coordination between administrative and criminal proceedings in order to ‘reduce to what is strictly necessary the additional disadvantage associated with [the] duplication for the persons concerned’.250 Second, there should also be rules to ensure that ‘the severity of all penalties imposed corresponds with the seriousness of the offence concerned’.251 While the Court delved into, and positively evaluated, the provisions of Italian law that allow the competent authorities to limit the severity of the penalties imposed on persons in the same situation as Menci,252 its assessment of the rules on the coordination between proceedings was not very convincing. In that respect, it merely stated that Italian law provides for duplication of penalties and proceedings with respect to offences that are particularly serious (unpaid VAT amounting to more than €50,000), but did not consider whether there was any real coordination between proceedings. In the light of this multi-step approach, the Court concluded its reasoning by noting that it would eventually be for the referring court to ‘assess the proportionality of the practical application of [national] legislation … by balancing, on the one hand, the seriousness of the tax offence at issue and, on the other hand, the actual disadvantage resulting for the person concerned from the duplication of proceedings and penalties’.253 Finally, it acknowledged that the level of protection guaranteed to the ne bis in idem principle, as interpreted by the Court itself, should not conflict with that ensured by the ECtHR, which in the A and B judgment did not rule out a duplication of administrative and criminal proceedings as long as they have a sufficiently close connection in substance and time.254 In Menci, the CJEU decided to partially follow the steps of the Strasbourg Court by overruling the Fransson decision – in the same way that the ECtHR had overruled Grande Stevens – and lowering the standards relating to the ne bis in idem principle. While the AG had suggested the opposite path, notably not to align with the ECtHR case law and stick to the more protective Fransson principle,255 the Court backtracked. 247 ibid para 49. 248 ibid paras 50–51. 249 ibid para 52. 250 ibid para 53. 251 ibid para 55. 252 The Court underlined that, on the one hand, the enforcement of administrative penalties of a criminal nature is suspended during criminal proceedings and definitely excluded if the person concerned is sentenced by criminal law authorities, and, on the other hand, the voluntary payment of the tax debt constitutes a special mitigating factor that criminal courts must take into account when deciding on the conviction of the person concerned (ibid para 56). 253 ibid para 59. 254 ibid paras 60–62. 255 Menci (n 235) Opinion of AG Campos Sánchez-Bordona delivered on 12 September 2017, EU:C:2017:667, paras 57ff. The AG noted that while art 52(3) of the Charter calls for interpreting the Charter rights that correspond to rights guaranteed by the ECHR as having the same meaning and scope of those rights, it also explicitly allows EU law to provide for more extensive protection.

188  Ne Bis in Idem and Conflicts of Jurisdiction As long as the conditions laid down in Menci are respected – and especially objectives of general interest pursued by the legislation on double-track systems, rules on coordination, and proportionality of the sanctions – a duplication of criminal and administrative proceedings and penalties does not violate Article 50 of the Charter. On the same day as the Menci judgment. the CJEU also delivered the judgment in Garlsson,256 which seems to suggest that it holds a more protective approach than the ECtHR. In Garlsson, the CJEU dealt with the same problem of Menci, but in the opposite scenario: the criminal conviction – concerning facts of market manipulation – had become final first and the competent national authorities were therefore uncertain as to whether an administrative penalty could be issued for the same facts. The CJEU approached the matter with the same reasoning of Menci, but reached a different conclusion. The decision began with the acknowledgement that Article 50 of the Charter applies in the main proceedings, as the relevant national provisions on market manipulation constitute implementation of EU law for the purposes of Article 51(1) of the Charter.257 Likewise, the Court claimed that, in accordance with the Engel-Bonda criteria, the administrative penalty that can be imposed on the defendants was of a criminal nature due to its punitive purpose and its severity258 – an administrative fine that can be up to 10 times greater than the profit obtained from market manipulation.259 After clarifying that the existence of the same offence for the purposes of Article 50 of the Charter was not contentious in this case either,260 the Court embarked upon the multi-step assessment of whether the duplication of proceedings and penalties – which is a limitation of ne bis in idem – complied with the above-mentioned requirements of Article 52(1) of the Charter. As in Menci, this limitation is provided for by Italian law,261 respects the essence of the right not to be tried or punished twice for the same facts,262 and meets objectives of general interest, which in this context are the ‘integrity of the financial markets of the European Union and public confidence in financial instruments’.263 However, the difference in Menci lies in the assessment of the proportionality of such limitation. In particular, while Italian law meritoriously provides for some coordination between the administrative and criminal proceedings,264 the Court held that the bringing of the proceedings relating to an administrative fine of a criminal nature after a criminal

256 Case C-537/16, Garlsson Real Estate and Others, judgment of 20 March 2018, EU:C:2018:193. 257 ibid paras 21–27. The Court in particular referred to some provisions of Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse) [2003] OJ L96, 12 April, 16 (see Garlsson (n 256) paras 22–23). 258 ibid paras 28–35. However, the Court clarified that the power to qualify an administrative penalty as having a criminal nature lies with the referring court. 259 ibid paras 34–35. 260 ibid paras 36–41. 261 ibid para 44. 262 ibid para 45. Along the lines of Menci, the CJEU did not give any consideration to the respect of the essence of ne bis in idem, except to remark that the duplication of penalties and proceedings is allowed ‘under certain conditions which are exhaustively defined’ (ibid). 263 ibid para 46. 264 See ibid para 57.

Application of Ne Bis in Idem to Criminal  189 conviction for the same facts ‘exceeds what is strictly necessary’265 in order to achieve the objective of protecting the integrity of the financial markets and the public confidence in financial instruments. And so it is even in those cases where, as in the main proceedings, the criminal penalty is extinguished as a result of a pardon.266 With a reasoning that is not easy to combine with that of Menci, the Court therefore appears to assume that if criminal proceedings become final first, there is a sort of presumption that – arguably for the inherent higher severity of criminal sanctions – issuing administrative penalties for the same facts is excessive and would therefore violate the right to ne bis in idem. In the opposite scenario, which was addressed in Menci, the Court seems instead to suggest that administrative proceedings and sanctions do not prevent ensuing criminal proceedings and penalties for the same facts. That the time issue – in other words, what set of proceedings ends first – can play such a prominent role in the limitation of a fundamental right is contentious, as it is a random criterion that depends entirely on the specificities of each concrete case.267 This can also create further inconsistencies between the approaches of the two European Courts, as the ECtHR ruled that ‘the order in which the proceedings are conducted cannot be decisive of whether dual or multiple processing is permissible’.268 No further clarity can be gleaned from the third judgment issued by the Court of Justice on the same day of Menci and Garlsson. Di Puma and Zecca originated from a request for a preliminary ruling lodged by the Italian courts, which inquired in essence as to whether the final acquittal of the defendants in criminal proceedings would prevent administrative penalties for the same facts from being imposed on them.269 The Italian Code of Criminal Procedure (CCP) includes a provision – Article 654 – pursuant to which final judgments in criminal proceedings, be them acquittals or convictions, have the force of res judicata in administrative proceedings. As a consequence, since the defendants had been acquitted on the ground that the acts constituting the offence of insider dealing were not established, they could not be subject to any administrative penalty for the same facts. Nonetheless, the Italian courts doubted that such provision respected the obligation resting upon the Italian Republic to punish insider dealing with effective, proportionate and dissuasive administrative penalties,270 and at the same time wondered how to reconcile this obligation with the ne bis in idem principle. The Court of Justice argued that Article 654 CCP did not violate either EU law or Article 50 of the Charter. However, the Court’s reasoning was centred on the principle of res judicata, while ne bis in idem played a secondary role. The Court recalled its established case law on the importance of the principle of res judicata at the EU and the national levels, according to which ‘EU law does not preclude the application of national procedural rules conferring res judicata effects on a judicial decision’.271

265 ibid para 59. Again, the Court ruled that it is for national courts to finally ascertain that the duplication at hand does not comply with art 52 of the Charter, and therefore violates art 50 on ne bis in idem (para 61). 266 ibid para 62. 267 See also Luchtman (n 101) 1736. 268 A and B v Norway (n 226) para 128. 269 Joined Cases C-596/16 and C-597/16, Di Puma and Zecca, judgment of 20 March 2018, EU:C:2018:192. 270 Article 14(1) of Directive 2003/6/EC. 271 Di Puma and Zecca (n 269) para 31.

190  Ne Bis in Idem and Conflicts of Jurisdiction In the Di Puma and Zecca case, there were no particular circumstances that justified a different approach. In particular, the Court noted that the Italian competent administrative authority was free to participate in criminal proceedings concerning insider dealing and was required to share with judicial authorities the documents collected during the exercise of its supervision. In criminal proceedings, judicial authorities are therefore in a position to take a decision that takes into account all the evidence at the disposal of both the criminal and administrative authorities.272 It follows that a provision such as Article 654 CPP, which provides for res judicata effects of an acquittal in administrative proceedings, does not violate the obligation of Member States to ensure effective, dissuasive and proportionate administrative sanctions for insider dealing.273 It was at this point of the judgment that the Court referred to ne bis in idem, claiming that its above reasoning was ‘confirmed’ by Article 50 of the Charter.274 As mentioned above, in Di Puma and Zecca, the ne bis in idem perspective came after – and as a mere support to – the arguments on the res judicata effects. The Court unsurprisingly stated that the duplication of penalties and proceedings is a limitation to the right enshrined in Article 50 and, as in Garlsson, claimed that the bringing of proceedings for an administrative fine of a criminal nature after an acquittal in criminal proceedings ‘clearly exceeds what is necessary to achieve’275 the objectives of national and EU legislation on insider dealing. The Court’s conclusion in Di Puma and Zecca seems to confirm the (contentious) relevance of the time issue in double-track systems: as long as criminal proceedings come to an end first – independently of their outcome (acquittal or conviction) – the bringing of administrative proceedings of a criminal nature for the same facts is likely to violate the ne bis in idem principle. Conversely, where administrative proceedings terminate before criminal ones, there seems to be more margin of appreciation for the national authorities to allow both administrative and criminal penalties for the same facts. The case law of the European Courts on ne bis in idem in double-track systems is therefore complex and multi-faceted. The CJEU and the ECtHR have progressively abandoned their initial approach, which was very protective towards individuals, in favour of an interpretation of the ne bis in idem principle that tries not to turn national legal orders that build on the double-track punitive system upside down. This has led both Courts to flesh out a number of criteria that national authorities should follow to assess whether ne bis in idem is violated. Some of these criteria are rather vague, such as those laid down by the ECtHR in A and B v Norway. In addition, the European Courts themselves have at times applied those criteria in an unclear way, as was the case with the CJEU’s assessment of whether the duplication of penalties and proceedings respects the essence of the ne bis in idem principle.276 Likewise, while the Court of Justice states that duplication of penalties must not be excessive, it does not really explain how such an evaluation should be conducted.277 272 ibid paras 31–36. 273 For some critical remarks on such an importance attached to the res judicata principle, see Lo Schiavo (n 237) 662–63. 274 Di Puma and Zecca (n 269) para 37. 275 ibid para 44. 276 cf Menci (n 235) para 43 and Garlsson (n 256) para 45. 277 Lo Schiavo (n 237) 660; Luchtman (n 101) 1732.

Conclusion  191 Although the conclusions they reach are similar, the two European Courts take an approach that is different in several aspects;278 this does not bode well for legal certainty and puts national authorities in a situation where they are confronted with different standards that are both relevant for their decisions. While the ECtHR has adopted the criterion of the close connection in substance and time, the CJEU, which overall seems to ensure more protection to the ne bis in idem principle than the Strasbourg Court,279 prefers to focus on the proportionality of double-track systems, especially with respect to the overall severity of penalties.280 While there is some correspondence between the proportionality assessment and that on the close connection in substance,281 the extent to which the CJEU values the connection in time for the purposes of Article 50 of the Charter is instead unclear.282

VI. Conclusion The application of ne bis in idem in criminal matters, including the surrounding grey area of ‘administrative law of a criminal nature’, has represented one of the most debated issues in the development of the EU AFSJ over the last years. The frequent – albeit not always consistent – interpretation of this principle by the Court of Justice has given partial answers to questions that the EU legislator has not yet addressed, such as those on the settlement of conflicts of jurisdiction at the European level. Concerns of prosecutorial forum shopping lurk behind such conflicts. When more than one Member State is competent to try a given case, the risk is that the choice will fall on the system that yields more chances of conviction, while other relevant interests at stake, such as those of the defendants or the victims, are neglected.283 The settlement of conflicts of jurisdiction is not only a pressing need from the perspective of the individuals concerned, but is also a matter of efficient administration of justice. It would be unreasonable for the authorities of different Member States to exercise their jurisdiction with regard to the same facts, especially if they act in an AFSJ that is (or at least should be) founded on 278 See also Luchtman (n 101) 1732. 279 ibid 1730 (‘the ECJ does establish a higher ne bis in idem threshold than the ECtHR, although the ECJ itself makes no mention of that difference, nor does it refer to the … final sentence of Article 52(3) CFR’; the final sentence of art 52(3) of the Charter clarifies that the required consistency between the CJEU’s and the ECtHR’s case law ‘shall not prevent Union law providing more extensive protection’). 280 Lo Schiavo (n 237) 657–60. 281 When the CJEU examined the proportionality principle, it mentioned the importance of rules that provide for the coordination of different proceedings and of those that ensure the proportionality of the severity of all penalties (cf Menci (n 235) paras 53–57 and Garlsson (n 256) para paras 55–58). In a somewhat similar vein, the ECtHR argued that, in the assessment of the close connection in substance, national courts should evaluate whether ‘the relevant sets of proceedings are conducted in such a manner as to avoid as far as possible any duplication in the collection as well as the assessment of the evidence, notably through adequate interaction between the various competent authorities to bring about that the establishment of facts in one set is also used in the other set’ and whether ‘the sanction imposed in the proceedings which become final first is taken into account in those which become final last, so as to prevent that the individual concerned is in the end made to bear an excessive burden’ (A and B v Norway (n 226) para 132, emphasis added). 282 Luchtman (n 101) 1732–33; Mirandola and Lasagni (n 232) 131. 283 Böse (n 139) 74–75; Wasmeier (n 142) 144. As far as victims’ role in this context is concerned, see M Simonato, ‘What Role for Crime Victims in the Forum Choice?’ in European Law Institute, Ligeti and Robinson (n 99) 283–304.

192  Ne Bis in Idem and Conflicts of Jurisdiction mutual trust. In the silence of EU legislation, national courts have requested the Court of Justice to interpret the general wording of Article 54 of the Schengen Implementing Convention (and then Article 50 of the Charter) on ne bis in idem, which is one of the two EU ‘instruments’ that currently provide for some binding rules in case of conflicts of jurisdiction – the other being the EPPO Regulation with respect to conflicts of jurisdiction among Member States that participate in the EPPO. In accordance with Article 54 CISA and Article 50 of the Charter, once a Member State has had the opportunity to rule on a case and its authorities have thus adopted a final decision dealing with the merits of it, other EU Member States cannot investigate or punish the same conduct again. As is the case with mutual recognition instruments, the case law on ne bis in idem has prompted a rethinking of territoriality within the EU. The CJEU had initially interpreted the ne bis in idem principle broadly, focusing on the need to achieve a high degree of legal certainty in order to ensure free movement in a borderless AFSJ. This broad interpretation is underpinned by the existence of mutual trust in an area where national criminal procedural laws have not been harmonised. The need to achieve the effective enjoyment of free movement takes precedence over national priorities with regard to the delivery of criminal justice. The Court’s approach presumes mutual trust in the absence of harmonisation of criminal justice systems. However, unlike its use in the European Arrest Warrant system, this presumption of trust here serves to enhance, and not to challenge, the protection of fundamental rights in Europe’s AFSJ. This teleological approach is evident in the Court’s interpretation of the concepts of idem and bis. As for the former, the criterion of the identity of facts ensures a broad application of the ne bis in idem principle. Allowing Member States to prosecute the same offences simply because of their different legal classifications or the different legal interests protected would unreasonably limit the scope of the right not to be tried or punished twice and, as a consequence, the freedom of movement within the EU. As far as the concept of ‘bis’ is concerned, the Court had originally also included in it cases the outcome of which was settled without involving a substantive examination of their merits, such as cases of settlement (‘transaction’) between the defendant and the public prosecutor terminating the prosecution (Gözütok and Brügge) or of time-barred prosecutions (Gasparini). However, further litigation on ne bis in idem has demonstrated the limits of mutual trust, as it appears that the Court is in the process of rebalancing its case law by taking into account national mistrust to a greater extent, at the expense of the protection of fundamental rights and the achievement of legal certainty and free movement. Recent judgments have clarified that the application of transnational ne bis in idem requires not only a decision to be final according to the law of the Member State where it was issued, but also that that decision deals with the merits of the case. As the Court notably argued in Spasic, the protection of legal certainty and individuals’ fundamental rights cannot lead to impunity, which they would enjoy if no Member State authority examines the merits of their case. While the Lisbon Treaty could have prompted the adoption of new legal instruments concerning jurisdiction issues within the EU,284 there was no political will for this.

284 See

arts 82(1)(b) and 85(1)(c) TFEU.

Conclusion  193 The Lisbon Treaty has nonetheless ‘emancipated’ the ne bis in idem principle by elevating it to a fundamental right in the Charter, and this may serve to limit demands for restrictions to the protective scope of the transnational ne bis in idem principle. The constitutionalisation of the ne bis in idem principle in this manner is also important in underpinning a mechanism of managing interstate cooperation on prosecution with fundamental rights principles. In terms of the evolution of horizontal coordination mechanisms at the EU level more broadly, the constitutionalisation of ne bis in idem serves to remind us of the necessity to underpin any EU law or practice on choice of forum and conflicts of jurisdiction with clear and effective safeguards for affected individuals. Further European integration in the field should not lead to prosecutorial forum shopping. In addition, the inclusion of ne bis in idem in the Charter, which has now the same legal value as the Treaties,285 can justify the disapplication of national legislation that violates Article 50. As the CJEU clarifies in Garlsson, the right to ne bis in idem enshrined in Article 50 of the Charter ‘is not subject, according to the very wording of that provision, to any conditions and is therefore directly applicable in the context of the dispute in the main proceedings’.286 As the Court had already stated in Fransson, national courts, as long as the matter under their scrutiny falls within the implementation of EU law, shall therefore disapply national law that violates the right provided for by Article 50 of the Charter, as interpreted by the Court itself.287 In sum, the case law on ne bis in idem unveils a sensitive balancing exercise. On the one hand, in the name of mutual trust, the Court tries to enhance freedom of movement and the protection of fundamental rights and legal certainty. On the other hand, in the name of the fight against impunity, the Court cannot ignore that the AFSJ is not a coherent system of rules and procedures, but rather is an ‘area’ indeed, which is composed of several national criminal justice systems. This imposes some limitations on the blind trust that each Member State can have in other Member States’ judgments, with the consequence that, for instance, it would not be acceptable for a Member State to give up on its jurisdiction simply because the authorities of another EU Member State have dismissed the case without any evaluation whatsoever of the merits of it. A similar balancing act underpins the case law of the CJEU and the ECtHR on the compatibility of double-track systems with the right to ne bis in idem. The two supranational Courts have been asked to find a difficult compromise that pays due attention to the well-established twin-track systems of several (EU) countries, which cope with some forms of criminality by means a combined criminal-administrative approach, while at the same trying not to downplay the fundamental right to ne bis in idem. The outcome of this exercise has generated some solutions that are not entirely convincing and, above all, not easily applicable by national authorities. It remains to be seen how the two Courts will deal with the matter in upcoming cases and to what extent they will take into account each other’s case law. It is noteworthy that, unlike Bonda and ­Fransson, where the case law of the ECtHR was followed very closely, the more recent CJEU



285 Article

6(1) TEU. (n 256) para 66. para 67. See also Fransson (n 216) para 45. In the literature, see Tomkin (n 2) 1410.

286 Garlsson 287 ibid

194  Ne Bis in Idem and Conflicts of Jurisdiction decisions in Menci and Garlsson stress the autonomy of EU law.288 In its first judgments on double-track systems, the CJEU thus aimed to ensure a high degree of consistency between its case law and that of the ECtHR, while in the following ones it seems to claim some room for manoeuvre. As noted in the literature,289 it will also be interesting to assess whether the status quo will change due to some recent developments in the EU and the Council of Europe’s legal frameworks. On the one hand, the ECtHR is now empowered to give some sort of (non-binding) ‘preliminary rulings’ upon the request of national courts;290 on the other hand, the CJEU will be increasingly called upon to decide ex post – rather than only ex ante via the preliminary reference procedure – on the validity of administrative decisions of a criminal nature that will be issued by EU entities such as the European Central Bank and the European Securities and Markets Authority.291 In addition to these issues of ‘external’ consistency (CJEU/ECtHR), at least four issues of ‘internal’ consistency within the EU itself will also have to be addressed in the future. First, it is scarcely tenable to attach different meanings to the same fundamental right according to the policy area where the issue of ne bis in idem arises (eg, criminal law or competition law). One may therefore wonder whether and when the notion of ‘idem’ will eventually be interpreted in a consistent way by the Court of Justice. Second, it is still an open question whether the enforcement condition laid down in Article 54 CISA should survive the constitutionalisation of the right to ne bis in idem in the aftermath of Lisbon. The Court’s solution in Spasic is striking and should be revised. Third, it can be expected that the Court of Justice will sooner or later be called upon to decide whether its interpretation of ne bis in idem with respect to double-track systems can have a transnational application, namely whether criminal law judgments in one Member State may impact on the (possibility to adopt) decisions on administrative penalties of a criminal nature in other Member States, and vice versa.292 Fourth, the sections above have pointed out that the field of the protection of the EU’s financial interests represents a limited exception when it comes to (multi-)jurisdiction issues in the EU. The PIF sector has traditionally been a sort of ‘laboratoire juridique’293 for the development of EU criminal law, and it is in this area that the first EU body with direct criminal law powers vis-a-vis individuals (the EPPO) has been set up. The establishment of the EPPO enriches the ne bis in idem principle with new dimensions, both at the vertical level (EPPO/national authorities) and at the EU horizontal level (EPPO/OLAF). The EPPO Regulation is also the first EU legal instrument that provides 288 Lo Schiavo (n 237) 656. cf Menci (n 235) para 23 and Garlsson (n 256) para 25. 289 Mirandola and Lasagni (n 232) 132–33. 290 Pursuant to Protocol No 16 to the ECHR, which entered into force in August 2018, the highest courts of States Parties to the ECHR may request the ECtHR to give ‘advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto’ (art 1 of the Protocol). However, such opinions are not binding (art 5 of the Protocol). The first advisory opinion was handed down in April 2019 (ECtHR, Advisory opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother – Requested by the French Court of Cassation (Request no P16-2018-001), 10 April 2019). 291 Mirandola and Lasagni (n 232) 133. 292 Luchtman (n 101) 1741–47. 293 L Salazar, ‘La Protection des Intérêts Financiers de l’UE: Un Grand Avenir derrière Elle …’ (2008) 3–4 Eucrim 115, at 115.

Conclusion  195 for a set of binding rules that national authorities should follow in the allocation of jurisdiction among the Member States that participate in the EPPO. Now that the EPPO has started to investigate and prosecute PIF offences (on 1 June 2021), it will be soon necessary to examine whether this mechanism works and whether it can be used as a blueprint for a set of binding rules that apply beyond the boundaries of the PIF sector. However, for the time being, one cannot help but notice that while the EPPO Regulation’s rules on the choice of forum can ensure some legal certainty, at the same time they overlook the need to subject such a choice to judicial review at the European level. This raises some concerns both for the EPPO’s expected effectiveness and for the protection of the fundamental rights of individuals who will be involved in EPPO activities.

4 Mutual Recognition and Mutual Trust I. Introduction Mutual recognition has been the motor of European integration in criminal matters. Its application in the field of criminal law was premised upon the uncritical acceptance of presumed mutual trust between – and in – the legal systems of EU Member States. The EU legislator has established a comprehensive system whereby national judicial decisions in criminal matters are recognised and executed across the EU quasiautomatically, with a minimum of formality and with the aim of speedy execution. This model of mutual recognition – and its application in the sensitive sphere of criminal law – has raised fundamental questions on the relationship between national legal systems in the EU, as well as questions on the feasibility of putting forward automaticity of mutual recognition in a system which may have significant negative consequences for the protection of the rights of affected individuals. These questions have become urgent after the entry into force of the Lisbon Treaty and the constitutionalisation of the protection of fundamental rights that it entails. By focusing primarily on the operation of the European Arrest Warrant (EAW) system, this chapter will examine the evolution of the application of the principle of mutual recognition in criminal matters and will critically evaluate the parameters of mutual trust and the relationship between the effectiveness of EU law in achieving law enforcement objectives with the constitutional requirement of protection of fundamental rights and safeguarding the rule of law. It will also track the evolution of mutual recognition and mutual trust through their contested and ongoing development in courts, including through direct and indirect judicial dialogue at the national and EU levels.

II.  Mutual Recognition and Mutual Trust: Origins and Legal Architecture Proposals to introduce the principle of mutual recognition in EU criminal law can be seen as a balancing act between, on the one hand, the need to address concerns with regard to the slow pace of improvement of judicial cooperation in criminal matters in the EU post-Maastricht, and, on the other hand, the need to reassure Member States sceptical of further EU harmonisation in criminal matters, in particular at a time (the late 1990s) when ambitious proposals for criminal law uniformity in the EU such as

Mutual Recognition and Mutual Trust: Origins and Legal Architecture  197 the corpus juris had emerged.1 In this light, during its EU presidency in 1998, the UK government put forward the idea of applying the mutual recognition principle in the field of criminal law, leading to the recognition by the European Council at Cardiff of ‘the need to enhance the ability of national legal systems to work closely together’ and a request to the Council ‘to identify the scope for greater mutual recognition of decisions of each other’s courts’.2 The emphasis on mutual recognition was justified by the UK on the grounds that the differences between Member States’ legal systems limit the progress which is possible by other means and render harmonisation of criminal law time-consuming, difficult to negotiate and (if full-scale) unrealistic.3 According to Jack Straw, the then UK Home Secretary, one could be inspired from the way in which the internal market was ‘unblocked’ in the 1980s4 and, instead of opting for total harmonisation, conceive of a situation ‘where each Member State recognises the validity of decisions of courts from other Member States in criminal matters with a minimum of procedure and formality’.5 The momentum for enhancing cooperation in criminal matters in the EU via mutual recognition was maintained in the following years.6 In its 1999 Tampere Conclusions, setting up a five-year agenda for EU Justice and Home Affairs, the European Council endorsed the principle of mutual recognition, which in its view ‘should become the cornerstone of judicial cooperation’ in criminal matters.7 This led in 2001 to the adoption by Member States of a very detailed Programme of measures to implement the principle of mutual recognition of decisions in criminal matters, which called on the Council to adopt no fewer than 24 measures in the field.8 The previous year, the Commission published a Communication presenting the institution’s thoughts on mutual recognition.9 The Commission expressed the view that the traditional system of cooperation is slow, cumbersome and uncertain, and provided its own understanding of how mutual recognition might work: Thus, borrowing from concepts that have worked very well in the creation of the Single Market, the idea was born that judicial co-operation might also benefit from the concept of 1 On the background to EU legislative production in criminal matters post-Maastricht and the corpus juris proposals, see ch 2. 2 Doc SN 150/1/98 REV 1, para 39. 3 See the document submitted by the UK delegation to the (then) K.4 Committee: Doc 7090/99, Brussels, 29 March 1999, paras 7 and 8. 4 For further discussion on the links with the internal market, see V Mitsilegas, EU Criminal Law (Hart Publishing, 2009) ch 3. 5 In Ministère de la Justice, L’espace judiciaire européen. Actes du Colloque d’Avignon (La documentation française, 1999) 89 (my translation). 6 For a detailed look at negotiations at the time, see H Nilsson, ‘Mutual Trust or Mutual Mistrust?’ in G de Kerchove and A Weyembergh (eds), La confiance mutuelle dans l’espace pénal européen (Éditions de l’Université de Bruxelles, 2005) 29–33. For an overview of the development of the internal market ­principle in criminal matters, see also S Peers, ‘Mutual Recognition and Criminal Law in the European Union: Has the Council Got it Wrong?’ (2004) 41 CML Rev 5; and S Lavenex, ‘Mutual Recognition and the Monopoly of Force: Limits of the Single Market Analogy’ (2007) 14(5) Journal of European Public Policy 762. 7 Tampere Conclusions, https://www.europarl.europa.eu/summits/tam_en.htm, para 33. The reference to mutual recognition as the ‘cornerstone’ of judicial co-operation in criminal matters in the EU was reiterated five years later, in the Hague Programme extending the EU JHA agenda to 2009 – para 3.3.1. 8 [2001] OJ C12, 15 January, 10. 9 Communication from the Commission to the Council and the European Parliament, Mutual Recognition of Final Decisions in Criminal Matters, COM (2000) 495 final, Brussels, 26 July 2000.

198  Mutual Recognition and Mutual Trust mutual recognition which, simply stated, means that once a certain measure, such as a decision taken by a judge in exercising his or her official powers in one Member State, has been taken, that measure – in so far as it has extranational implications – would automatically be accepted in all other Member States, and have the same or at least similar effects there. (Emphasis added)10

Thus, the turn of the century saw a consensus on the desirability of the application of the mutual recognition principle in the criminal law sphere in the EU. For those opposing harmonisation in criminal matters, mutual recognition came in handy as it can provide results for judges and prosecutors when cooperating across borders, while prima facie Member States do not have to change their domestic criminal law to implement EU standards. For supporters of integration, on the other hand, mutual recognition was also welcome. It helps avoid EU legislative stagnation in criminal matters by pushing forward a detailed legislative agenda to achieve mutual recognition and promoting cooperation. On the other hand, as evidenced in the Commission’s 2000 Communication,11 supporters of integration also view mutual recognition as a motor for harmonisation, as – like in the internal market – the smooth functioning of mutual recognition would require minimum harmonisation of standards among Member States and thus lead to a ‘spill-over’ of further measures in the field.12 The application of the principle of mutual recognition in the field of criminal law along these lines was based on the presumption of a high level of mutual trust between EU Member States and the authorities operating the system. In order to understand the relationship between mutual recognition and mutual trust in Europe’s area of criminal justice, it is necessary to cast light on the very design of the AFSJ as such. While a key feature of the development of such an Area is the abolition of internal borders between Member States and thus the creation of a single European area where freedom of movement is secured, this single area of movement is not accompanied by a single area of law. The law remains territorial, with Member States retaining their sovereignty to a great extent, especially in the field of law enforcement. A key challenge for European integration in the field has therefore been how to make national legal systems interact in the borderless AFSJ. Member States have thus far declined unification of law in Europe’s criminal justice area. The focus has largely been on the development of systems of cooperation between Member State authorities, with the aim of extending national enforcement capacity throughout the AFSJ in order to compensate for the abolition of internal border controls. The simplification of movement that the abolition of internal border controls entails has led, under this compensatory logic, to calls for a similar simplification in interstate cooperation via automaticity and speed. Following this logic, the construction of the AFSJ as an area without internal frontiers intensifies and justifies automaticity in interstate cooperation.13 10 ibid 2. 11 ibid 4. 12 See V Mitsilegas, ‘Trust-Building Measures in the European Judicial Area in Criminal Matters: Issues of Competence, Legitimacy and Inter-institutional Balance’ in S Carrera and T Balzacq (eds), Security versus Freedom: A Challenge for Europe’s Future (Ashgate, 2006) 279–90. 13 V Mitsilegas, ‘The Limits of Mutual Trust in Europe’s Area of Freedom, Security and Justice: From Automatic Inter-state Cooperation to the Slow Emergence of the Individual’ (2012) 31 Yearbook of European Law 319.

Mutual Recognition and Mutual Trust: Origins and Legal Architecture  199 Automaticity in interstate cooperation means that a national decision will be enforced beyond the territory of the issuing Member State by authorities in other EU Member States across the AFSJ without many questions being asked and with the requested authority having at its disposal extremely limited – if any at all – grounds to refuse the request for cooperation. The method chosen to secure such automaticity has been the application of the principle of mutual recognition in the fields of judicial cooperation in criminal matters. Mutual recognition is attractive to Member States resisting further harmonisation or unification in European criminal law, as mutual recognition is thought to enhance interstate cooperation in criminal matters without, as seen above, Member States having to change their national laws to comply with EU harmonisation requirements.14 Mutual recognition creates extraterritoriality:15 in a borderless AFSJ, the will of an authority in one Member State can be enforced beyond its territorial legal borders and across this area. The acceptance of such extraterritoriality requires a high level of mutual trust between the authorities which take part in the system and is premised upon the acceptance that membership of the EU means that all EU Member States are fully compliant with fundamental rights norms. It is the acceptance of the high level of integration among EU Member States which has justified automaticity in interstate cooperation and has led to the adoption of a series of EU instruments that in this context go beyond pre-existing, traditional forms of cooperation set out under public international law, which have previously afforded a greater degree of scrutiny of requests for cooperation. Membership of the EU presumes the full respect of fundamental rights by all Member States, which creates mutual trust, and this in turn forms the basis of automaticity in interstate cooperation in Europe’s area of criminal justice. Framed in this manner, mutual recognition has emerged as the motor of ­European integration in criminal matters under the third pillar. The adoption in 2001 by the Council of a detailed programme of measures to implement the principle of mutual recognition of decisions in criminal matters16 has been followed by the adoption of a wide range of Framework Decisions putting forward a comprehensive system of mutual recognition in the field of criminal justice. These Framework Decisions have been adopted essentially in three stages, one shortly post-9/11, an intermediary stage consisting of the adoption of the Framework Decision on the European Evidence Warrant (now superseded by the post-Lisbon Directive on the European Investigation Order) and another in the years leading up to the adoption of the Lisbon Treaty.17 Their ambit covers all stages of the criminal process extending from the pre-trial (recognition of arrest warrants,18 evidence warrants,19 14 V Mitsilegas, ‘The Constitutional Implications of Mutual Recognition in Criminal Matters in the EU’ (2006) 43 CML Rev 1277. 15 K Nicolaidis and G Shaffer, ‘Transnational Mutual Recognition Regimes: Governance without Global Government’ (2005) 68 Law and Contemporary Problems 263; K Nicolaidis, ‘Trusting the Poles? Constructing Europe through Mutual Recognition’ (2007) 14 Journal of European Public Policy 682. 16 [2001] OJ C12, 15 January, 10. 17 V Mitsilegas, ‘The Third Wave of Third Pillar Law: Which Direction for EU Criminal Justice?’ (2009) 34 European Law Review 523. 18 Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant [2002] OJ L190/1. 19 Framework Decision 2008/978/JHA of 18 December 2008 on the European Evidence Warrant [2008] OJ L350/72. Post-Lisbon, this was replaced by the Directive on the European Investigation Order – see n 28 below.

200  Mutual Recognition and Mutual Trust freezing orders20 and decisions on bail)21 to the post-trial stage (recognition of confiscation orders,22 decisions on financial penalties,23 probation orders24 and decisions on the transfer of sentenced persons).25 The system of mutual recognition was completed pre-Lisbon by a Framework Decision on judgments in absentia, which amended a number of the preceding Framework Decisions to specify cases when recognition of a judgment could or could not be refused in such cases.26 PostLisbon, mutual recognition measures included a European Protection Order27 and two important instruments amending or repealing pre-Lisbon mutual recognition acquis: the Directive on the European Investigation Order (EIO),28 and, for the first time, a Regulation on the mutual recognition of confiscation orders.29 The main features of the application of the principle of mutual recognition in criminal matters, premised upon the judicialisation of cooperation, are automaticity, speed and the execution of judicial decisions with a minimum of formality. Based on mutual trust, the system includes very limited grounds to refuse the recognition and execution of a judicial decision or to raise questions regarding the legal system of the Member State of the issuing authority. Automaticity has presented a number of challenges, most notably with regard to the protection of the fundamental rights of affected individuals. These challenges have arisen in particular in the context of the European Arrest Warrant Framework Decision (EAW FD), which is emblematic of the application of the principle of mutual recognition in the field of criminal law. Automaticity in the operation of interstate cooperation under the EAW FD has been introduced at three levels.30 First, cooperation must take place within a limited timeframe, under strict deadlines and on the basis of a pro-forma document annexed to the Framework Decision – this means that in practice, few questions can be asked by the executing authority beyond what has been included in the form.31 Second, the executing authority is not allowed to verify the 20 Framework Decision 2003/577/JHA of 22 July 2003 on the mutual recognition of orders freezing property or evidence [2003] OJ L196/45. 21 Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention [2009] OJ L294/20. 22 Framework Decision 2006/783/JHA of 6 October 2006 on the mutual recognition of confiscation orders [2006] OJ L328/59. 23 Framework Decision 2005/214/JHA of 24 February 2005 on the mutual recognition of judgments imposing financial penalties [2005] OJ L76/16. 24 Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions [2008] OJ L337/102. 25 Framework Decision 2008/909/JHA of 27 November 2008 on the transfer of custodial sentences (sentenced persons) [2008] OJ L327/27. 26 Framework Decision 2009/299/JHA of 26 February 2009 [2009] OJ L81/24. 27 Directive 2011/99/EU of the European Parliament and of the Council of 13 December 2011 on the European protection order OJ [2011] L338/2. See ch 6. 28 Directive 2014/41 regarding the European Investigation Order in criminal matters [2014] OJ L130/1. 29 Regulation 2018/1805 on the mutual recognition of freezing orders and confiscation orders [2018] OJ L303/1. For an analysis, see F Meyer, ‘Recognising the Unknown: The New Confiscation Regulation’ (2020) 10 European Criminal Law Review 140. 30 The EAW FD introduced a number of surrender-specific innovations, including the bar on surrender of own nationals and the narrowing of the scope of the political offence exception; see Mitsilegas (n 14). 31 See Articles 15, 17 and 23 of the EAW FD. The Court confirmed the limited role of the executing authority in examining the content of the EAW in its ruling in Case C-261/09, Gaetano Mantello [2010] ECR I-11477.

Mutual Recognition and Mutual Trust: Origins and Legal Architecture  201 existence of dual criminality in respect of a list of 32 categories of offence listed in the Framework Decision32 – this means that the executing state is asked to deploy its law enforcement mechanism, and to arrest and surrender an individual for conduct which is not an offence under its domestic law.33 The third level of automaticity arises from the inclusion of limited grounds of refusal to recognise and execute an EAW under the Framework Decision. The Framework Decision includes only three, in their majority procedural, mandatory grounds for refusal34 which are complemented by a series of optional grounds for refusal35 and provisions on guarantees underpinning the surrender process.36 However, non-compliance with fundamental rights is not included as a ground to refuse to execute an EAW.37 This legislative choice reflects the view that cooperation can take place on the basis of a high level of mutual trust in the criminal justice systems of Member States, premised upon the presumption that fundamental rights are in principle respected fully across the EU. Mutual recognition in criminal matters has thus been premised on the objective of giving priority to the enforcement interests of the issuing Member State. The CJEU has viewed the effectiveness of the system as almost synonymous with achieving the enforcement objectives of the issuing state rather than a European vision of enforcement. The interests of the issuing state are dominant in the case law of the CJEU on the operation of mutual recognition. The executing state can introduce a series of criminal procedural safeguards in the execution of the EAW, but only if these do not undermine the execution deadlines set out by the EAW FD;38 the concept of detention will not include periods of curfew if this is not permitted by the law of the issuing state, even if this is allowed by the law of the executing state.39 Periods of deduction of the sentence possible under the law of the executing state will not apply if not provided by the law of the issuing state;40 the executing state is not permitted to enforce a sentence via the imposition of a fine, even though this is the only option permissible under its national law for this kind of case, if enforcement in the issuing state take place under a custodial sentence;41 and the executing authority is not allowed to substitute its own assessment of the criminal responsibility of the minor in cases of differences between the issuing

32 EAW FD, art 2(2). 33 See the Court’s ruling in Case C-303/05, Advocaten voor de Wereld VZW v Leden van de Ministerraad [2007] ECR I-3633. 34 EAW FD, art 3. 35 ibid art 4. 36 ibid arts 5, 27 and 28. 37 The general provision of art 1(3) includes the general statement that ‘this Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the TEU’. References to fundamental rights are also included under a general wording in the Preamble to the Framework Decision (Recital 12). 38 Case C-168/13 PPU, Jeremy F, judgment of 30 May 2013, ECLI:EU:C:2013:358. 39 Case C-294/16 PPU, JZ v Prokuratura Rejonowa Łódź –Śródmieście, ECLI:EU:C:2016:610. 40 Case C-554/14, Ognyanov, ECLI:EU:C:2016:835. For more on this, see S Montaldo, ‘Offenders’ Rehabilitation and the Cross-border Transfer of Prisoners and Persons Subject to Probation Measures and Alternative Sanctions: A Stress Test for EU Judicial Cooperation in Criminal Matters’ (2019) 5 Revista Brasilera de Direito Processual Penal 925, 953–54. 41 Case C-514/17, Sut, ECLI:EU:C:2018:1016. Paragraph 47 requires the sentence to ‘actually be enforced, in order to ensure that the custodial sentence imposed is enforced and thereby to avoid any risk of that person going unpunished’.

202  Mutual Recognition and Mutual Trust and the executing states on the delimitation of the age of criminal responsibility.42 In addition, the executing state must ensure that a custodial sentence is actually enforced on its territory if it applies the grounds for refusal under Article 4(6) of the EAW FD, even if its national law provides otherwise.43 All these rulings demonstrate a failure of imagination in developing a European concept of enforcement which takes into account the legal systems of all Member States involved and, importantly, the fundamental rights and interests of the individuals subject to these enforcement measures.44 However, in the evolution of the operation of the principle of mutual recognition in criminal matters – and of the FD EAW in particular – the question of whether the system should always entail the prioritisation of the interests and standards of the issuing state became increasingly contested. A key issue of controversy has been the extent to which mutual trust should be taken for granted – whether trust should be ‘blind’. National authorities operating the system, national courts and increasingly the CJEU and the ECtHR have been facing questions lying at the heart of the legitimacy and credibility of the EU mutual recognition system: to what extent can cooperation based on mutual trust disregard adverse fundamental rights and rule of law consequences of the execution of a judicial decision? To what extent does a system based on a high level of mutual trust allow for effective scrutiny of such consequences by the executing authorities? And what, if any, are the parameters of mutual trust and the EU benchmarks of fundamental rights and rule of law protection in the operation of mutual recognition in criminal matters? The chapter will address these issues in detail by focusing primarily on the evolution of the CJEU case law in the field. As will be seen below, changing the parameters of mutual trust and developing a more fundamental rights-friendly approach has not been a straightforward task for the Court. It involved important interventions by national constitutional courts and the ECtHR, as well as ongoing questions by national courts under the preliminary rulings mechanism. This chapter will map the evolution of case law from the initial stages, where the CJEU adopted an approach privileging law enforcement at the expense of taking rights seriously on the basis of an uncritical acceptance of a high level of mutual trust, to a more nuanced approach recognising that trust is not blind, that the fundamental rights impact of execution must be scrutinised and that recognition should ultimately not take place if there are breaches of fundamental rights. The precise parameters of these answers are constantly evolving.

III.  Mutual Trust, Legality and Dual Criminality: From Advocaten voor de Wereld to Grundza A major constitutional and fundamental rights concern arising after the adoption of the EAW FD has centred on the abolition of the requirement by the executing a­ uthority

42 Case C-367/16, Piotrowski, ECLI:EU:C:2018:27. 43 Case C-579/15, Poplawski I, ECLI:EU:C:2017:503; Case C-573/17, Poplawski II, ECLI:EU:C:2019:530. See the remarks on the creation of a risk of impunity in para 86 of Poplawski II. 44 V Mitsilegas, ‘Conceptualising Impunity in the Law of the European Union’ in S Montaldo and L Marin (eds), The Fight against Impunity in EU Law (Hart Publishing, 2020) 13–45.

Mutual Trust, Legality and Dual Criminality  203 to verify the existence of dual criminality – whether conduct outlined in the EAW also constitutes a criminal offence in the executing state. Dispensing with the requirement to verify dual criminality, which underpins the system of mutual recognition in criminal matters, was seen to constitute a breach of the legality principle. It was noted that the abolition of dual criminality is contrary to the – constitutionally enshrined in a number of Member States – principle of legality (or nullum crimen sine lege). It was noted that constitutionally, it is not acceptable to execute an enforcement decision relating to an act that is not an offence under the law of the executing state.45 The executing state should not be asked to employ its criminal enforcement mechanism to help prosecuting/punishing behaviour which is not a criminal offence in its national legal order. Concerns in this context particularly involve offences such as murder which have not been harmonised at the EU level, although harmonisation does not always provide the answer.46 Issues arising from the abolition of the requirement to verify the existence of dual criminality formed the basis of the first landmark case where the Court of Justice was called upon to rule upon the EAW FD constituted a reference from a preliminary ruling from the Belgian Arbitragehof.47 The reference involved the assessment of the validity of the EAW and was submitted during the course of an action brought before the national court seeking the annulment of the Belgian implementing law of the relevant Framework Decision.48 Annulment was sought on three grounds: that EU third pillar legislation on the EAW ought to have been adopted by way of a Convention and not a Framework Decision since, under Article 34(2)(b) TEU, Framework Decisions may be adopted only for the purpose of approximation of national laws; that the domestic provisions implementing Article 2(2) of the Framework Decision which abolishes dual criminality for a number of offences infringes the principle of equality and non-discrimination as they differentiate without objective and reasonable justification between offences for which dual criminality is abolished and offences for which dual criminality is retained; and that the implementing legislation fails to satisfy the conditions of the principle of legality in criminal matters as it lists vague categories of undesirable behaviour rather than offences having a sufficiently clear and precise legal content. This leads to a disparate application of the legislation and thus also infringes the principle of equality and non-discrimination.49

45 See in particular M. Kaiafa-Gbandi, To poiniko dikaio stin Europaiki Enossi [Criminal Law in the European Union] (Sakkoulas, 2003) 328 (in Greek, my translation). 46 For instance, offences such as participation in a criminal organisation, although ‘harmonised’, still leave great discretion to Member States in relation to implementation, which may lead to considerable discrepancies in the treatment of the offence in national criminal laws. See V Mitsilegas, ‘Defining Organised Crime in the European Union: The Limits of European Criminal Law in an Area of Freedom, Security and Justice’ (2001) 26 European Law Review 565. See also ch 2. 47 Advocaten voor de Wereld VZW (n 33). 48 For comments on the case, see D Sarmiento, ‘European Union: The European Arrest Warrant and the Quest for Constitutional Coherence’ (2008) 6(1) International Journal of Constitutional Law 171; F Geyer, ‘Case Note: European Arrest Warrant. Court of Justice of the European Communities’ (2008) 4 European Constitutional Law Review 149; A Hinarejos, ‘Recent Human Rights Developments in the EU Courts: The Charter of Fundamental Rights, the European Arrest Warrant and Terror Lists’ (2007) 7(4) Human Rights Law Review 793. 49 See Advocaten voor de Wereld VZW (n 33) paras 11–13.

204  Mutual Recognition and Mutual Trust The Court dismissed all three arguments in a relatively short judgment. On the choice of legal instrument (a Framework Decision instead of a Convention), the Court stressed the discretion of the Council as to the adopted form of legal instrument and held that it is within this discretion to give preference to a Framework Decision if the conditions for the adoption of such a measure are satisfied.50 In this context, the Court rejected the argument that the adoption of Framework Decisions under Article 34(2)(b) TEU must relate only to areas mentioned in Article 31(1)(e) TEU, which provides a legal basis for criminal law approximation (and which do not include the EAW).51 More generally, the Court confirmed that there is no distinction in the third pillar as to the type of measures which may be adopted on the basis of the subject matter to which EU action relates52 and that Article 34(2) TEU does not establish any order of priority between the different instruments included therein.53 It also dismissed the argument that the EAW should have been adopted by a Convention since it replaces earlier EU Conventions on extradition; it used effectiveness in this context, stating that any other interpretation to the one give in this case ‘would risk depriving of its essential effectiveness the Council’s recognised power to adopt framework decisions in fields previously governed by international conventions’.54 On the questions involving the substance of the implementing law and the Framework Decision, the Court began by stressing that the EU is founded on the principle of the rule of law and respects fundamental rights as general principles of Community law.55 Referring explicitly to the Charter of Fundamental Rights, the Court added that it is ‘common ground’ that these general principles include both the principle of legality and the principle of equality and non-discrimination.56 If the reference to the Charter is noteworthy (in that it is one of the first times the Court of Justice has done so, all more importantly on a subject matter with fundamental human rights implications),57 it is also noteworthy that the Court exports the review of EU institutions on the basis of the general principles of Community law (including the protection of fundamental rights) to review of action under Union law, in the third pillar. This is yet another example of the Court treating third pillar law as subject to the same constitutional principles applying to the first pillar. The Court summarily dismissed the argument that the Framework Decision infringes the principle of equality and non-discrimination. It held first that the Council 50 ibid para 41. On discretion, see also Sarmiento (n 48) 178–180. 51 Para 38. 52 ibid para 36. 53 ibid para 37. 54 ibid para 42. The judgment here reflects to some extent the emphasis of AG Ruiz-Jarabo Colomer on effectiveness. In his Opinion, delivered on 12 September 2006, the AG stated that Member States (and the institutions) are required to achieve the objectives of art 2 TEU (which include the establishment of an ‘area of freedom, security and justice’) and are obliged to use the most appropriate tools to meet that requirement; Member States and the institutions are bound to ensure the effectiveness of Community law in general and of EU law in particular. It follows from this that the Council was ‘not only entitled but, moreover, obliged, to establish a mechanism for the European Arrest Warrant’ in a Framework Decision (at para 67, emphasis added). 55 ibid para 45. 56 ibid para 46. 57 The Court has invoked the charter for the first time in a case concerning the Family Reunification Directive: Case C-540/03, Parliament v Council [2006] ECR I-5769, para 38.

Mutual Trust, Legality and Dual Criminality  205 was able to form the view that the 32 categories of offences for which the verification of dual criminality has been abolished under Article 2(2) of the Framework Decision are serious enough in terms of adversely affecting public order and public safety for such abolition to be justified (thus implying that these offences are not comparable with the offences for which verification of dual criminality remains).58 The Court added that even if one were to assume that the situation of persons suspected of having committed or convicted of having committed Article 2(2) offences is comparable to the situation of persons similarly relating to other offences, ‘the distinction is, in any event, objectively justified’ (emphasis added).59 It also dismissed the argument that the lack of precision in the definition of the categories of offences in question leads to discrimination: employing a reasoning similar to the one applied in earlier ne bis in idem cases,60 the Court held that the objective of the Framework Decision is not to harmonise the substantive criminal law of Member States and nothing in the third pillar makes the application of the EAW conditional on criminal law harmonisation.61 In examining the compatibility of the EAW with the principle of legality, the Court stressed the link between this principle and the protection of fundamental rights. It confirmed that the legality principle is one of the general legal principles underlying the constitutional traditions common to the Member States, and also referred to the ECHR.62 It further defined the principle by reference to the Strasbourg case law.63 However, it dismissed the argument that the Framework Decision infringes the legality principle on the ground that the principle is ensured by the fact that legislation is defined in the issuing Member State. It noted that the Framework Decision does not seek to harmonise the criminal offences set out in Article 2(2) and that even if Member States reproduce word for word the list of categories included in Article 2(2) for the purposes of implementation, the actual definition of those offences and the penalties applicable are those which follow from the law of the issuing Member State.64 The definition of Article 2(2) offences and the applicable penalties continue to be matters determined by the law of the issuing Member State: [W]hich, as is, moreover, stated in Article 1(3) of the Framework Decision, must respect fundamental rights and fundamental legal principles as enshrined in Article 6 EU, and consequently, the principle of the legality of criminal offences and penalties.65

The approach of the Court with regard to the assessment of the compatibility of the EAW FD with fundamental rights (in particular the principle of legality in the light of

58 ibid para 57. 59 ibid para 58. 60 See section IV below and ch 3. 61 Parliament v Council (n 57) para 59. 62 ibid para 49. 63 ‘This principle implies that legislation must define clearly offences and the penalties which they attract. That condition is met in the case where the individual concerned is in a position, on the basis of the wording of the relevant provision and with the help of the interpretative assistance given by the courts, to know which acts or omissions will make him criminally liable’ (ibid para 50). The Court also referred to the definition of legality in Advocaten in its recent judgment on the interpretation of the Ship-Source Pollution Directive – see Case C-308/06, Intertanko, judgment delivered on 3 June 2008, paras 70–71. 64 Parliament v Council (n 57) para 52. 65 ibid para 53.

206  Mutual Recognition and Mutual Trust the abolition of dual criminality) is noteworthy, especially when compared with the approach of AG Ruiz-Jarabo Colomer and the case law of national constitutional courts. The Court did not follow the ‘procedural’ approach of the Advocate General, who argued that the enhanced safeguards of criminal law do not apply in this context as the EAW is not ‘punitive in nature’, but merely a mechanism facilitating judicial cooperation in criminal matters in the EU.66 Moreover, the Court – while taking care to address national concerns in proclaiming that the EU (including in activities under the third pillar which contained the legal basis for the Framework Decision) does respect fundamental rights and the rule of law – did not follow or address the emphasis that a number of national constitutional courts have placed in the special bond between citizen and state.67 Rather, the Court chose to follow an approach based on the logic and structure of mutual recognition: on the basis of this approach, it held that the legality requirement is met by the existence of legislation in the issuing Member State. In addressing potential concerns emanating from lack of trust among Member States in this context, the Court added a second layer of human rights protection (along with protection at the EU level): using the very broad human rights clause in the Framework Decision itself, it stated that the issuing Member State must respect fundamental rights and consequently the legality principle. The wording is significant, as it implies that the performance of national authorities when applying the Framework Decision is subject to a fundamental rights review by Luxembourg.68 The CJEU was called upon to give guidance on how national authorities should assess the occurrence of dual criminality in cases not falling within the list of Article 2(2) of the EAW FD. In the case of Grundza,69 concerning the application of FD 2008/909/JHA, the CJEU noted that Article 7(3) of the Framework Decision authority of the executing state to verify whether the acts in question ‘also constitute an offence’ under the national law of that state, ‘whatever its constituent elements or however it is described’.70 The necessary and sufficient condition for the purpose of assessing dual criminality resides in the fact that the acts giving rise to the sentence imposed in the issuing state also constitute an offence in the executing state – the offences do not need to be ­identical in

66 According to the AG, the legality principle ‘comes into play during the exercise of the State’s right to punish and during the application of acts which may be strictly construed as imposing a penalty’. Conversely, the Framework Decision ‘does not provide for any punishments or even seek to harmonise the criminal laws of the Member States’; instead, it creates a mechanism of assistance between the courts of Member States (ibid para 103, emphasis added). In this light, the arrest and surrender procedure entailed in the execution of an EAW ‘is not punitive in nature’ (para 105). For an analysis of the implications of this reasoning for the protection of fundamental rights in EU criminal law, see V Mitsilegas, ‘The Transformation of Criminal Law in the ‘Area of Freedom, Security and Justice’ (2007) 26 Yearbook of European Law 1. 67 See Mitsilegas (n 14). 68 In a more recent case, the CJEU set limits to the possible abuse of the EAW system at the issuing stage. The Court held that the issuing authorities cannot rely on an ex post change in national law in order to bypass the dual criminality penalty thresholds. According to the Court, art 2(2) of the EAW FD must be interpreted as meaning that in order to ascertain whether the offence for which an EAW has been issued is punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years, as it is defined in the law of the issuing Member State, the executing judicial authority must take into account the law of the issuing Member State in the version applicable to the facts giving rise to the case in which the European arrest warrant was issued; Case C-717/18, X, ECLI:EU:C:2020:142. 69 Case 289/15, Grundza, ECLI:EU:C:2017:4. 70 ibid para 33.

Mutual Trust, Fundamental Rights and Proportionality: Radu  207 the two Member States concerned.71 There does not have to be an exact match between the constituent elements of the offence, as defined in the law of the issuing state and the executing state, respectively, or between the name given to or the classification of the offence under the national law of the respective states.72 A flexible approach in the assessment of the condition of dual criminality is required.73 The condition of dual criminality must be considered to be met in a situation where the factual elements underlying the offence, as reflected in the judgment handed down by the competent authority of the issuing state, would also per se be subject to a criminal sanction in the territory of the executing state if they were present in that state.74 The CJEU again here embraces a recognition-friendly approach, focusing on substance rather than formality. While the approach towards the assessment of the existence of dual criminality is clearly articulated, national authorities will inevitably employ a margin of discretion as to how they assess the occurrence of dual criminality, in particular as regards their perception of the occurrence of the factual elements underlying the offence.75

IV.  Mutual Trust, Fundamental Rights and Proportionality: Radu The entry into force of the Lisbon Treaty and the enhanced protection of fundamental rights via the constitutionalisation of the Charter has raised expectations regarding the reconfiguration of the relationship between enforcement-focused, uncritical mutual trust and the protection of fundamental rights in Europe’s area of criminal justice. A key question in this context was whether the Court would apply its newly developed approach on fundamental rights scrutiny in EU asylum law, consisting of the recognition of legal avenues to refuse to cooperate in the system of mutual recognition established by the Dublin system.76 In the field of asylum law, the Court held that a conclusive presumption of compliance with fundamental rights could itself be regarded as undermining the safeguards which are intended to ensure compliance with fundamental rights by the EU and its Member States77 and that such a presumption is rebuttable,78 leading to calls for the application of this approach to the field of mutual

71 ibid para 34. 72 ibid para 35. 73 ibid para 36. 74 ibid para 54. 75 For an analysis applying the Grundza test to the Puigdemont case, see M Muñoz de Morales Romero, ‘Dual Criminality under Review: On the Puigdemont Case’ (2018) 8 European Criminal Law Review 167. For critical views of the approach of the German judiciary in the Puigdemont case, see L Bachmaier, ‘European Arrest Warrant, Double Criminality and Mutual Recognition: A Much Debated Case’ (2018) 8 European Criminal Law Review 152; and A Nieto Martín, ‘The Foundations of Mutual Recognition and the Meaning of Dual Criminality’ (2018) 8 European Criminal Law Review 160. 76 Joined Cases C-411/10 and C-493/10, NS (C-411/10) v Secretary of State for the Home Department and ME and Others (C-493/10) v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform, ECLI:EU:C:2011:865 (Grand Chamber). 77 ibid para 100. 78 ibid para 104.

208  Mutual Recognition and Mutual Trust recognition in criminal matters.79 The question of the extent to which the executing authority can refuse to execute an EAW when there are concerns that execution and surrender will have adverse fundamental rights consequences arose in the case of Radu. The case involved prosecution warrants issued by German authorities and addressed to their Romanian counterparts. Following challenges to the execution of these warrants in the issuing state, the Constanta Court of Appeal decided to stay the proceedings and refer a number of questions to the CJEU for a preliminary ruling. These included in particular questions on the legal status and force of fundamental rights provisions of the ECHR and the Charter under EU primary law; whether the execution of an EAW entailing deprivation of liberty and forcible surrender without the consent of the requested person constituted interference with these rights; whether such interference satisfied the requirements of necessity in a democratic society and of proportionality in relation to the objective pursued; and, crucially, whether the executing authority could refuse to execute an EAW on the grounds of fundamental rights while being in compliance with EU law. A number of detailed answers to these questions were provided by AG Sharpston in her Opinion.80 The AG addressed the fundamental rights questions at three levels: on the status of fundamental rights under EU law; on the place of fundamental rights in the system of mutual recognition in criminal matters; and on whether execution of an EAW could be refused on fundamental rights grounds. The AG held that Charter rights form part of the primary law of the EU and that ECHR rights constitute general principles of EU law.81 She noted that while the obligations imposed on the Member States by the EAW FD relate to matters that are essentially procedural, this does not mean that the legislature failed to take fundamental and human rights into account when enacting the Framework Decision.82 The EAW FD incorporated express references to fundamental rights in the FD in the Preamble and in Article 1(3)83 and specific provisions on the rights pf the requested persons,84 while also intending to protect victims.85 Moreover, the high level of mutual trust underpinning the operation of the FD is predicated on the observance by each of the Member States of the rights enshrined in the ECHR and the Charter, and of the rights which form part of the constitutional traditions common to the Member States.86 AG Sharpston thus elevated the protection of fundamental rights as an element underpinning the system of mutual recognition based on mutual trust, while (following NS) affirming that the presumption of Member States’ compliance with fundamental rights is rebuttable.87

79 V Mitsilegas, ‘The Limits of Mutual Trust in Europe’s Area of Freedom, Security and Justice: From Automatic Inter-state Cooperation to the Slow Emergence of the Individual’ (2012) 31 Yearbook of European Law 319. 80 Case C-396/11, Radu, ECLI:EU:C:2012:648, Opinion of AG Sharpston delivered on 18 October 2012. 81 ibid para 52. 82 ibid para 36. 83 ibid para 37. 84 ibid para 39. 85 ibid para 40. 86 ibid para 38. 87 ibid para 41. The AG acknowledged that the record of the Member States in terms of complying with their human rights obligations is ‘not pristine’.

Mutual Trust, Fundamental Rights and Proportionality: Radu  209 This approach to mutual recognition and mutual trust led to the acknowledgement by the AG that it is possible for an authority to refuse to execute an EAW on fundamental rights grounds. The AG did not confine herself into a narrow textual interpretation of the EAW FD, which, as seen above, does not contain an express ground of refusal to execute on fundamental rights grounds. Such a narrow approach which would exclude human rights considerations altogether is not supported by the wording of the EAW FD or by the case law.88 The AG went on to essentially construct a ground for refusal to execute on fundamental rights grounds implicitly from Article 1(3) of the EAW FD, although this provision was specifically included in a part of the EAW FD other than the specific provisions on grounds for refusal.89 She also drew support from other AG Opinions on EAW cases,90 notwithstanding the fact that the part of these Opinions had not been endorsed expressly by the CJEU itself, which insisted in favour of a law enforcement-heavy, blind trust approach on the EAW. AG Sharpston held that it is clear that the judicial authorities of an executing Member State are bound to have regard to the fundamental rights set out in the Convention and the Charter when considering whether to execute an EAW,91 and went on to assess when must executing authorities refuse to execute and what factors they should take into account. The AG started by referring to Strasbourg case law92 and to the CJEU ruling in NS,93 but went on to differentiate the fundamental rights test employed by executing authorities under EU law from the test developed by the Strasbourg Court, in particular as regards ‘flagrant denial’.94 AG Sharpston then proceeded to give concrete answers as to the criterion to be employed by the executing authority – that the deficiency or deficiencies in the trial process should be such as to fundamentally destroy its fairness95 – and on the standard and burden of proof.96 Importantly, the AG also extended the fundamental rights ground to refuse to execute an EAW if it is proved that there has been a breach of a fundamental procedural requirement as to the issuing of the warrant.97 The AG also addressed in detail questions relating to, but also distinct from, the broader issue of fundamental rights grounds for refusal, namely questions relating to the parameters of the principle of proportionality in the operation of the EAW. AG Sharpston addressed two different aspects of proportionality: proportionality in detention and proportionality in the issuing of an EAW. In terms of proportionality of detention, the AG held that in order to avoid being arbitrary, such detention must be carried out in good faith; it must be closely connected to the ground of detention relied on by the executing judicial authority; the place and conditions of detention should be appropriate; and the length of the detention should not exceed that reasonably required for the purpose pursued (thus satisfying the proportionality test). Article 6 of the Charter falls to be construed in the same way as Article 5(1) of the Convention 88 ibid para 69. 89 According to the AG, art 1(3) permeates the Framework Decision; it is implicit that fundamental rights may be taken into account in founding a decision not to execute a warrant (ibid para 70). 90 ibid paras 71–72. 91 ibid para 73. 92 ibid paras 74–75. 93 ibid para 76. 94 ibid paras 79–83. 95 ibid para 83. 96 ibid paras 84–89. 97 ibid para 95.

210  Mutual Recognition and Mutual Trust in this context.98 The AG also addressed proportionality concerns with regard to the decision to issue an EAW. These concerns were prominent at the time in Member States such as the UK, where executing authorities were of the view that EAWs were issued for offences which would be considered minor or not be prosecuted under the system of the executing Member State, yet which would fall within the broad scope of the EAW FD.99 Calls for the introduction of a proportionality check in the operation of the EAW system have been put forward in order to ensure that pressure on the criminal justice systems of executing Member States and disproportionate results for the requested individuals are avoided.100 This concern regarding the proportionality of issuing EAWs was also raised by AG Sharpston101 from the perspective of its compliance with Article 49 of the Charter. The AG stated eloquently, as an obiter, that: I would add one thing. At the hearing, counsel for Germany used the example of a stolen goose. If that Member State were asked to execute a European arrest warrant in respect of that crime where the sentence passed in the issuing Member State was one of six years, she thought that execution of the warrant would be refused. She considered that such a refusal would be justifiable on the basis of the doctrine of proportionality and referred the Court to Article 49(3) of the Charter, according to which ‘the severity of penalties must not be disproportionate to the criminal offence’. This Court has yet to rule on the interpretation of that article. In the context of the Convention, the Court of Human Rights has held that while, in principle, matters of appropriate sentencing largely fall outside the scope of the Convention, a sentence which is ‘grossly disproportionate’ could amount to ill-treatment contrary to Article 3 but that it is only on ‘rare and unique occasions’ that the test will be met. It would be interesting to speculate as to the interpretation to be given to Article 49(3) of the Charter having regard to the interpretation given by the Court of Human Rights of the provisions of Article 3 of the Convention.102

In its ruling in Radu,103 the Court did not follow the AG’s Opinion. It answered the question on whether mutual recognition could be refused on fundamental rights grounds in the negative.104 It also reaffirmed the adoption of a teleological interpretation reiterating the purpose of establishing a simplified and more effective system of surrender based on mutual recognition.105 Such a system will contribute to the EU’s objective of becoming an Area of Freedom, Security and Justice by basing itself on the high degree of confidence which should exist between the Member States.106 Refusal to execute can only take place on the basis of the mandatory and optional grounds for refusal set out in the Framework Decision.107 On the basis of this presumption of mutual trust, the

98 ibid para 62. 99 For an overview of the debate, see T Ostropolski, ‘The Principle of Proportionality under the European Arrest Warrant – with an Excursus on Poland’ (2014) 5 New Journal of European Criminal Law 167. 100 For a discussion, see Joint Committee on Human Rights, The Human Rights Implications of UK Extradition Policy, Fifteenth Report, session 2010–12, 40–43; Sir S Baker, A Review of the United Kingdom’s Extradition Arrangements, presented to the Home Secretary on 30 September 2011, paras 5.120–5.155. 101 Radu (n 80) para 60. 102 ibid para103. 103 Case C-396/11, Radu, EU:C:2013:39. 104 The CJEU did not engage with the question of proportionality in the issuing of an EAW. 105 EAW FD, paras 33 and 34. 106 ibid para 34. 107 ibid para 36. See also earlier case law: Case C-388/08 PPU, Leymann and Pustovarov [2008] ECR I-8993, para 51; and Case C-261/09, Mantello [2010] ECR I-11477, para 37.

Mutual Trust, Fundamental Rights and Proportionality: Radu  211 Court found that the observance of Articles 47 and 48 of the Charter does not require that a judicial authority of a Member State should be able to refuse to execute an EAW issued for the purposes of conducting a criminal prosecution on the ground that the requested person was not heard by the issuing judicial authorities before that warrant was issued.108 Once again, the Court placed effectiveness considerations at the forefront of its reasoning. It pointed out that such an obligation would inevitably lead to the failure of the very system of surrender109 and added that in any event, the right to be heard will be observed in the executing Member State in such a way as not to compromise the effectiveness of the EAW system.110 Radu thus follows the Court’s earlier case law in two respects: it confirms that it is satisfied with the provision of fundamental rights protection in one of the two states which take part in the cooperative mutual recognition system (here, it is the executing state which is under the duty to uphold the right to be heard); and it places the protection of fundamental rights within a clear framework of effectiveness of the enforcement cooperation system which is established by the EAW FD. If the level of protection of fundamental rights (in both the issuing and the executing state) were to be too extensive, it would undermine the effectiveness of law enforcement cooperation in this context. The reluctance of the CJEU to recognise the existence of fundamental rights grounds for refusal to execute an EAW came as a disappointment to many, with the ruling being deemed a missed opportunity to engage seriously with fundamental rights in the context of the operation of mutual recognition in criminal matters.111 As will be seen in the following section, the CJEU further entrenched its position in favour of almost blind trust in immediately subsequent litigation, but the issues raised in the proceedings in Radu and by the AG did not go away. The proceedings in Radu are also of importance in raising the question of proportionality in the operation of the EAW system. The Opinion of AG Sharpston in Radu highlighted two important aspects of proportionality in this context, with the insights provided in the Opinion continuing to be relevant for addressing and interpreting proportionality today. The first aspect involves the emphasis on procedural aspects of proportionality in the issuing of an EAW, an issue which is inextricably linked with the protection of fundamental rights of the requested person and the acknowledgement that triggering the EAW mechanism will result in deprivation of liberty. As will be seen below, the importance of ensuring effective scrutiny of proportionality in the issuing of the EAW has been reflected clearly in the case law of the CJEU on defining the concept of ‘judicial authority’ for the purposes of issuing an EAW as an autonomous concept of EU law – the CJEU has held that a key constituent element of this concept is the availability of an effective remedy against the decision to issue an EAW, including the proportionality of such decision.112 108 EAW FD, para 39. 109 ibid para 40. 110 ibid para 41. 111 R Raffaelli, ‘Judgment pf the Court of Justice of the European Union, 29 January 2013, Radu’ in V Mitsilegas, A di Martino and L Mancano (eds), The Court of Justice and European Criminal Law: Leading Cases in a Contextual Analysis, (Hart Publishing, 2019) 363–79. 112 Joined Cases C-508/18 OG, Public Prosecutor’s Office of Lübeck, and C-82/19 PPU PI, Public Prosecutor’s Office of Zwickau, ECLI:EU:C:2019:456. According to para 75 of the judgment, the decision to issue and, inter alia, the proportionality of such a decision must be capable of being the subject in the issuing state of court proceedings which meet the requirements inherent in effective judicial protection in full.

212  Mutual Recognition and Mutual Trust The second aspect of proportionality involves the question of issuing an EAW for minor offences. There has been recognition by EU institutions that proportionality must be taken into account in the operation of mutual recognition in criminal matters, but that this should occur at the stage of issuing a judicial decision. The requirement to introduce a proportionality check in the issuing state has also been introduced at the EU level in the Directive on the EIO, which states that the issuing authority may only issue an EIO where the issuing of the latter is necessary and proportionate, and where the investigative measures indicated in the EIO could have been ordered under the same conditions in a similar domestic case.113 Although such a clause is absent from the EAW FD, the Commission Guidance on how to issue and execute an EAW includes a proportionality check in the issuing Member State.114 A more prominent role for proportionality is envisaged, as will be seen later in the volume in the post-Brexit legal landscape under the EU-UK Trade and Cooperation Agreement, which introduced a higher degree of scrutiny of proportionality compared with internal EU law.115

V.  Mutual Trust and the Primacy and Autonomy of EU Law: From Melloni to Opinion 2/13 The CJEU continued to prioritise enforcement on the basis of automaticity and mutual trust at the expense of extensive scrutiny of fundamental rights considerations in two landmark cases, where mutual trust has been linked to broader objectives of ensuring the primacy and autonomy of EU law. In the first case, Melloni, an EAW-relating case, the CJEU ruled essentially on the primacy of EU secondary law over national constitutional law. Complementing this internal dimension, the second ruling, Opinion 2/13, evoked a vision of a high level of presumed mutual trust in order to cement at the external level the autonomy of EU law vis-a-vis ‘third’ legal orders, and in this case the legal order of the ECHR. In both cases, the Court subsumed fundamental rights considerations within the priority of securing adherence to other constitutional objectives of EU law. As will be seen below, this approach – including the Court’s insistence on a version of almost blind trust – caused a backlash and eventually resulted in a change of approach.

A.  Mutual Trust, Primacy and Fundamental Rights: Melloni The focus on the effective operation of mutual recognition was reiterated by the Court of Justice in the case of Melloni.116 In Melloni, the Court effectively confirmed the primacy 113 EIO Directive, art 6(1)(a) and (b) respectively. 114 Commission Notice – Handbook on how to issue and execute a European arrest warrant [2017] OJ C335/1, 6 October, para 2.4. The Commission provided detailed guidance on factors to be taken into account by the issuing authority in this context including: ‘(a) the seriousness of the offence (for example, the harm or danger it has caused); (b) the likely penalty imposed if the person is found guilty of the alleged offence (for example, whether it would be a custodial sentence); (c) the likelihood of detention of the person in the issuing Member State after surrender; (d) the interests of the victims of the offence.’Furthermore, judicial authorities should consider whether other judicial cooperation measures could be used instead of issuing an EAW. 115 See ch 12. 116 Case C-399/11, Melloni v Ministerio Fiscal, EU:C:2013:107.

Mutual Trust and the Primacy and Autonomy of EU Law  213 of third pillar law (the EAW FD as amended by the Framework Decision on judgments in absentia, interpreted in the light of the Charter) has primacy over national constitutional law providing a higher level of fundamental rights protection. In order to arrive at this far-reaching conclusion, the Court followed a three-step approach. The first step for the Court was to demarcate the scope of the EAW FD as amended by the Framework Decision on judgments in absentia (and in particular Article 4a(1) thereof) in order to establish the extent of the limits of mutual recognition in such cases. The Court reiterated its reasoning in Radu in adopting a teleological interpretation of the EAW FD and stressing that under the latter Member States are in principle obliged to act upon an EAW.117 In the light of these findings, the Court adopted a literal interpretation of Article 4a(1), confirming that that provision restricts the opportunities for refusing to execute an EAW.118 That interpretation is confirmed by the mutual recognition objectives of EU law.119 The second step was to examine the compatibility of the above system with fundamental rights and in particular the right to an effective judicial remedy and the right to fair trial set out in Articles 47 and 48(2) of the Charter. By reference to the case law of the ECtHR,120 the Court of Justice found that the right of an accused person to appear in person at their trial is not absolute and can be waived.121 It further stated that the objective of the Framework Decision on judgments in absentia was to enhance procedural rights whilst improving mutual recognition of judicial decisions between Member States,122 and found Article 4a(1) to be compatible with the Charter. Having asserted the compatibility of the relevant provision with the Charter, the third step for the Court was to rule on the relationship between the secondary EU law in question with national constitutional law, which provided a higher level of protection. The Court rejected an interpretation of Article 53 of the Charter as giving general authorisation to a Member State to apply the standard of protection of fundamental rights guaranteed by its own constitution when that standard is higher than that deriving from the Charter and, where necessary, to give it priority over the application of provisions of EU law:123 That interpretation of Article 53 would undermine the principle of the primacy of EU law inasmuch as it would allow a Member State to disapply EU legal rules which are fully in compliance with the Charter where they infringe the fundamental rights guaranteed by that State’s constitution. (Emphasis added)124

Article 53 of the Charter provides freedom to national authorities to apply national human rights standards ‘provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised’ (emphasis added).125 In the present case, ‘Article 4a(1) of 117 ibid paras 36–38. 118 ibid para 41. 119 ibid para 43. 120 Medenica v Switzerland, App No 20491/92 (ECtHR); Sejdovic v Italy, App No 56581/00 (ECtHR); Haralampiev v Bulgaria, App No 29648/03 (ECtHR). 121 Melloni (n 116) 49. 122 ibid para 51. 123 ibid paras 56–57. 124 ibid para 58. 125 ibid para 60.

214  Mutual Recognition and Mutual Trust Framework Decision 2002/584 does not allow Member States to refuse to execute a European arrest warrant when the person concerned is in one of the situations provided for therein’.126 The Framework Decision on judgments in absentia ‘is intended to remedy the difficulties associated with the mutual recognition of decisions rendered in the absence of the person concerned at his trial arising from the differences as among the Member States in the protection of fundamental rights’ and ‘reflects the consensus reached by all the Member States regarding the scope to be given under EU law to the procedural rights enjoyed by persons convicted in absentia who are the subject of a European arrest warrant’:127 Consequently, allowing a Member State to avail itself of Article 53 of the Charter to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the issuing Member State … in order to avoid an adverse effect on the right to a fair trial and the rights of the defence guaranteed by the constitution of the executing Member State, by casting doubt on the uniformity of the standard of protection of fundamental rights as defined in that framework decision, would undermine the principles of mutual trust and recognition which that decision purports to uphold and would, therefore, compromise the efficacy of that framework decision. (Emphasis added)128

In Melloni, the Court once again gave priority to the effectiveness of mutual recognition based on presumed mutual trust. Secondary pre-Lisbon third pillar law whose primary aim is to facilitate mutual recognition has primacy over national constitutional law which provides a high level of protection of fundamental rights. In reaching this conclusion, the Court interpreted fundamental rights in a restrictive manner. It emphasised the importance of the Framework Decision on judgments in absentia for the effective operation of mutual recognition, a Framework Decision which, as the Court admitted, restricts the opportunities for refusing to execute an EAW.129 This aim sits uneasily with the Court’s assertion that the Framework Decision on judgments in absentia also aims to protect the procedural rights of the individual. By privileging the teleology of mutual recognition and upholding the text of the Framework Decision on judgments in absentia and the subsequently amended EAW FD – via the adoption of a literal interpretation – over the protection of fundamental rights, the Court has shown a great (and arguably undue) degree of deference to the European legislator.130 The Court’s reasoning also seems to deprive national executing authorities of any discretion to examine the compatibility of the execution of an EAW with fundamental rights in a wide range of cases involving in absentia rulings.131 This deferential approach may be explained by

126 ibid para 61. 127 ibid para 62. 128 ibid para 63. 129 For critical analysis of the harmonisation capacity of the Framework Decision on judgments in absentia, see ch 5. 130 LFM Besselink, ‘The Parameters of Constitutional Conflict after Melloni’ (2014) 39 European Law Review 531, 542; A Torres Pérez, ‘Melloni in Three Acts: From Dialogue to Monologue’ (2014) 10 European Constitutional Law Review 308, 317–18. 131 See also the Opinion of AG Bot, who linked national discretion to refuse surrender with the perceived danger of forum shopping by the defendant – Melloni (n 116) Opinion of AG Bot, delivered on 2 October 2012, para 103.

Mutual Trust and the Primacy and Autonomy of EU Law  215 the fact that the Court was asked to examine the human rights implications of measures which have been subject to harmonisation at the EU level, with the Court arguing that the Framework Decision reflects a consensus among EU Member States with regard to the protection of the individual in cases of in absentia rulings within the broader system of mutual recognition.132 It has been argued that national constitutional standards will be more readily applicable in cases where EU law has not been harmonised.133 The Court’s ruling in the case of Jeremy F134 has been cited as an example of this approach.135 In Jeremy F, the Court found that the EAW FD as amended by the Framework Decision on judgments in absentia did not preclude Member States from providing for appeals with suspensive effect, provided that such appeals comply with the time-limits set out in the EAW FD.136 The Court noted that the absence of an express provision on the possibility of bringing an appeal with suspensive effect against a decision to execute an EAW does not mean that the Framework Decision prevents the Member States from providing for such an appeal or requires them to do so.137 However, Jeremy F must be distinguished from Melloni: while Melloni concerned the possibility of refusing the execution of a mutual recognition request on fundamental rights grounds, Jeremy F did not question the essence of the mutual recognition system so fundamentally. Rather, the question in Jeremy F was a meta-question, concerning the specific procedural rules which apply in the process of the execution of a warrant. Even in this case, the discretion left to Member States to protect fundamental rights is limited and circumscribed by the deadlines set out in the mutual recognition instruments aiming at achieving the desired speed linked to the perceived efficiency of the system.138 The Court’s deferential approach gives undue weight to what are essentially intergovernmental choices (the choices of Member States adopting a third pillar measure without the involvement of the European Parliament), which sit alongside each other even more uneasily in the post-Lisbon, post-Charter era. The emphasis of the Court on the need to uphold the validity of harmonised EU secondary law over primary constitutional law on human

132 See also the Opinion of AG Bot, according to whom the Court cannot rely on the constitutional traditions common to the Member States in order to apply a higher level of protection (ibid para 84) and that the consensus between Member States leaves no room for the application of divergent national levels of protection (para 126). 133 See K Lenaerts and J Gutiérrez-Fons, ‘The European Court of Justice and Fundamental Rights in the Field of Criminal Law’ in V Mitsilegas, M Bergström and T Konstadinides (eds), Research Handbook of European Criminal Law (Edward Elgar, forthcoming); B de Witte, ‘Article 53’ in S Peers, T Hervey, J Kenner and A Ward (eds), The EU Charter of Fundamental Rights: A Commentary (Hart Publishing, 2014); Melloni (n 116) Opinion of AG Bot, para 124. According to the AG, it is necessary to differentiate between situations in which there is a definition at the EU level of the degree of protection which must be afforded to a fundamental right in the implementation of an action by the EU and those in which that level of protection has not been the subject of a common definition. 134 Jeremy F (n 38). 135 Lenaerts and Gutiérrez-Fons (n 133). 136 Jeremy F (n 38). 137 ibid para 38. 138 See also the restrictive approach adopted by the Court in the more recent case of Lanigan, where it found that art 12 of the Framework Decision read in conjunction with art 17 thereof and in the light of art 6 of the Charter must be interpreted as not precluding the holding of the requested person in custody, even if the total duration for which that person has been held in custody exceeds the time limits provided for in the EAW FD – Case C-237/15 PPU, Lanigan, ECLI:EU:C:2015:474 para 58.

216  Mutual Recognition and Mutual Trust rights (at both the national and the EU level) constitutes a challenge for human rights protection.139 It further reveals, in the context of EU criminal law, a strong focus by the Court on the need to uphold the validity of a system of quasi-automatic mutual recognition in criminal matters which will enhance interstate cooperation and law enforcement effectiveness across the EU.

B.  Mutual Trust, Fundamental Rights and the Autonomy of the EU Legal Order: Opinion 2/13 The emphasis of the Court of Justice on the centrality of mutual trust as a factor privileging the achievement of law enforcement objectives via mutual recognition over the protection of fundamental rights has been reiterated beyond EU criminal law in the broader context of the accession of the EU to the ECHR. The Court’s Opinion 2/13140 included a specific part dealing with mutual trust in EU law. The Court distilled its current thinking on mutual trust into the following two key paragraphs: [I]t should be noted that the principle of mutual trust between the Member States is of fundamental importance in EU law, given that it allows an area without internal borders to be created and maintained. That principle requires, particularly with regard to the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law. Thus, when implementing EU law, the Member States may, under EU law, be required to presume that fundamental rights have been observed by the other Member States, so that not only may they not demand a higher level of national protection of fundamental rights from another Member State than that provided by EU law, but, save in exceptional cases, they may not check whether that other Member State has actually, in a specific case, observed the fundamental rights guaranteed by the EU. (Emphasis added)141

From the perspective of the relationship between EU criminal law and fundamental rights, this passage is striking. It follows a series of comments on the role of Article 53 of the Charter in preserving the autonomy of EU law, with the Court citing the Melloni requirement for upholding the primacy, unity and effectiveness of EU law.142 The Court then put forward a rather extreme view of presumed mutual trust leading to automatic mutual recognition. It thus represents a significant challenge to our understanding of the EU constitutional order as a legal order underpinned by the protection of fundamental rights. The Court deified mutual trust and endorsed a system whereby the protection of fundamental rights must be subsumed by the abstract requirements of upholding mutual trust, instead of endorsing a model of a EU whereby cooperation on the basis

139 According to Besselink ((n 130) 542), attaching this importance to secondary legislation as ‘harmonisation of EU fundamental rights’ risks erasing the difference between the primary law nature of fundamental rights and secondary law as the subject of these rights. 140 Opinion 2/13, delivered on 18 December 2014. 141 ibid paras 191–92. 142 ibid para 188.

Mutual Trust and the Primacy and Autonomy of EU Law  217 of mutual trust must be underpinned by the effective protection of fundamental rights. The Court boldly asserted that mutual trust is not only a principle, but also a principle of fundamental importance in EU law. However, this assertion seems to disregard the inherently subjective nature of trust and the difficulties in providing an objective definition which meets the requirements of legal certainty. It is also clear that although mutual trust is viewed by the Court as inextricably linked with the establishment of an area without internal borders (at the heart of which is the free movement principle and the rights of EU citizens), the Court perceives mutual trust as limited to trust ‘between the Member States’ – the citizen or individual affected by the exercise of state enforcement power under mutual recognition is markedly absent from the Court’s reasoning. This approach leads to the uncritical acceptance of presumed trust across the EU: not only are Member States not allowed to demand a higher national level of protection of fundamental rights than the one provided by EU law (thus echoing Melloni), but also, and remarkably, Member States are not allowed to check (save in exceptional circumstances) whether fundamental rights have been observed in other Member States in specific cases. This finding is striking as it disregards a number of developments in secondary EU criminal law aiming to grant executing authorities the opportunity to check whether the execution of a judicial decision by the authorities of another Member State would comply with fundamental rights. It also represents a fundamental philosophical and substantive difference in the protection of fundamental rights between the Luxembourg and Strasbourg Courts. The Luxembourg Court’s approach in Opinion 2/13 is strikingly at odds with the approach of the Strasbourg Court. The willingness of the Court of Justice to sacrifice an individualised case-by-case assessment of the human rights implications of the execution of a mutual recognition order in the name of uncritical presumed mutual trust is a clear challenge for the effective protection of fundamental rights in the EU and runs the risk of resulting in a lower level of protection of fundamental rights in systems of interstate cooperation within the EU compared to that provided by the Strasbourg Court in ECHR cases. This difference in approaches raises the real prospect of a conflict between the ECHR and EU law, especially in cases of interstate cooperation between EU Member States under the principle of mutual recognition. Eeckhout has commented that Opinion 2/13 confirms a radical pluralist conception of the relationship between EU law and the ECHR.143 In the case of mutual recognition, this ‘outward-looking’, external pluralist approach, which can be seen as an attempt to preserve the autonomy of EU law, is combined with the parallel strengthening of an internal, intra-EU pluralist approach that stresses the importance of mutual trust, which is elevated by the Court to the status of a fundamental principle of EU law. Both internal and external pluralist approaches undermine the position of the individual in Europe’s area of criminal justice by limiting the judicial avenues of examination of the fundamental rights implications of quasi-automatic mutual recognition on a case-by-case basis.

143 P Eeckhout, Opinion 2/13 on EU Accession to the ECHR and Judicial Dialogue – Autonomy or Autarchy?, Jean Monnet Working Paper 01/15 36.

218  Mutual Recognition and Mutual Trust

VI.  Mutual Trust as a Challenge to Fundamental Rights and Constitutional Identity: The Response from the ECtHR and National Constitutional Courts The CJEU’s approach in Melloni and Opinion 2/13 has been perceived as a challenge to fundamental rights review by both the ECtHR and national constitutional courts. The two questions of who has the final say in interpreting and upholding rights and what constitutes the appropriate human rights benchmark in an EU consisting of diverse national legal orders are inextricably linked in this context. Questions on the protection of fundamental rights in EU law are inextricably linked with national constitutional identity concerns.144 Reactions by national constitutional courts and by the Strasbourg Court, along with questions submitted by national courts in the form of references for preliminary ruling, have led to the considerable evolution of the CJEU approach towards mutual trust in the system of mutual recognition in criminal matters and the parameters of accommodating fundamental rights benchmarks in the cooperative process of recognition.145

A.  The European Court of Human Rights The first signs of concern in Strasbourg regarding the ‘blind’ trust approach of the CJEU towards mutual recognition appeared in the case of Tarakhel,146 which involved transfers under the Dublin mutual recognition system. Rather than requiring a general finding of systemic deficiency in order to examine the compatibility of state action with fundamental rights, the Strasbourg Court stated that the presumption of compliance with fundamental rights was rebuttable147 and that effective protection of fundamental rights always requires an assessment of the impact of a decision on the rights of the specific individual in the specific case before the Court.148 In Tarakhel, this reasoning has resulted in a finding of a breach of the Convention with regard to specific individuals even in a case where generalised systemic deficiencies in the receiving state had not been ascertained.149 The Strasbourg Court built upon this approach shortly after the 144 For a view of constitutional identity understood as the product of an interactive process creating or interpreting constitutional sources, see G van der Schyff, ‘Member States of the European Union, Constitutions, and Identity: A Comparative Perspective’ in C Callies and G van der Schyff (eds), Constitutional Identity in a Europe of Multilevel Constitutionalism (Cambridge University Press 2020), 305–47, at 328. 145 See also V Mitsilegas, ‘Judicial Dialogue, Legal Pluralism and Mutual Trust in Europe’s Area of Criminal Justice’ (2021) 46 European Law Review 579, upon which sections VI–X build. 146 Tarakhel v Switzerland, App No 29217/12, judgment of 4 November 2014. It should be noted that in the following discussion, the term ‘CJEU’ will be used throughout to refer to the Court of Justice in all time contexts. 147 ibid para 103. 148 Halberstam sees Tarakhel as a strong warning signal to Luxembourg that the CJEU’s standard should accord either in words or in practice with what Strasbourg demands; otherwise, the Dublin system violates the Convention. See D Halberstam, ‘‘It’s the Autonomy, Stupid!’ A Modest Defense of Opinion 2/13 on EU Accession to the ECHR, and the Way Forward’, Michigan Law School, Public Law and Legal Theory Research Paper Series, Paper No 432, February 2015, 27. 149 Tarakhel (n 146) 115.

Mutual Trust as a Challenge to Fundamental Rights and Constitutional Identity  219 change in the CJEU approach in Aranyosi150 in the case of Avotiņš,151 which involved the assessment of the compatibility with the Convention of acts implementing the EU system of mutual recognition of decisions in civil matters. While the outcome of the judgment appeared conciliatory to the EU legal order,152 in its reasoning the Strasbourg Court, it questioned the CJEU approach in Opinion 2/13, noting that the fundamental rights scrutiny threshold therein ‘could in practice, run counter to the requirement imposed by the Convention according to which the court in the State addressed must at least be empowered to conduct a review commensurate with the gravity of any serious allegation of a violation of fundamental rights in the State of origin, in order to ensure that the protection of those rights is not manifestly deficient’.153 As to who has ultimate authority to scrutinise fundamental rights compliance, the Court reserved this power for itself, stating that ‘it must verify that the principle of mutual recognition is not applied automatically and mechanically to the detriment of fundamental rights’.154 National courts also have duties to review fundamental rights compliance of automatic mutual recognition. This duty arises ‘if a serious and substantiated complaint is raised before them to the effect that the protection of a Convention right has been manifestly deficient and that this situation cannot be remedied by European Union law’. In such situations, according to the Strasbourg Court, national courts cannot refrain from examining that complaint on the sole ground that they are applying EU law.155

B.  National Constitutional Courts In terms of the outcome of judicial dialogue between the CJEU and the Spanish Constitutional Court in Melloni, the receiving national court was willing to accommodate the substance of the CJEU ruling in terms of the extent of fundamental rights protection in executing the EAW in these cases and to revisit Spanish domestic law in this light156 by modifying its previous interpretation of the Constitution in order to avoid conflict with EU law.157 However, the Spanish Constitutional Court did so without at the same time fully accepting the primacy of EU law; it stated that the Charter is only one of the sources of interpretation of the right to fair trial, along with the ECHR, and that both sources have mere interpretative value. Hence, as Torres Pérez has noted, the Spanish 150 See section VII below. 151 Avotiņš v Latvia, App No 17502/07, judgment of 23 May 2016. 152 P Gragl, ‘An Olive Branch from Strasbourg? Interpreting the ECtHR’s Resurrection of Bosphorus and Reaction to Opinion 2/13 in the Avotins Case: ECtHR 23 May 2016, Case No 17502/07, Avotiņš v Latvia’ (2017) 13 European Constitutional Law Review 551; J Snell, ‘Is Opinion 2/13 Obsolescent?’ (2017) 4 EL Rev 449. 153 Avotiņš (n 151), para 114. 154 ibid para 116. See also L Glas and J Krommendijk, ‘From Opinion 2/13 to Avotiņš: Recent Developments in the Relationship between the Luxembourg and Strasbourg Courts’ (2017) 17 Human Rights Law Review 567; D Düsterhaus, ‘The ECtHR, the CJEU and the AFSJ: A Matter of Mutual Trust’ (2017) 42 EL Rev 396. 155 Avotiņš (n 151) 116. 156 STC 26/2014, 13 February 2014. For an analysis, see L Bachmeier Winter, ‘Bypassing or Intensifying the Dialogue between Courts? The Impact of Melloni at the National Level’ in Mitsilegas, di Martino and Mancano (n 111) 404–20. 157 G van der Schyff, ‘Member States of the European Union, Constitutions, and Identity: A Comparative Perspective’ in Callies and van der Schyff (n 144) 358.

220  Mutual Recognition and Mutual Trust Constitutional Court portrayed the outcome of the case as if it has been autonomously reached and sent a clear message that it retains the last word in the event of a clash between the Spanish Constitution and EU law.158 A similar approach in reaction to Melloni, emphasising the final say by national constitutional courts that also set out the benchmark for fundamental rights scrutiny, was adopted by the German Constitutional Court (hereinafter ‘BVerG’).159 Unlike Melloni, this case did not involve a reference to Luxembourg – the BVerG declined to refer invoking the acte clair doctrine.160 It framed the issue, which involved the compatibility of the execution of an EAW with fundamental rights, as one of constitutional identity: it introduced the requirement of identity review of measures implementing the EAW when the principle of human dignity is at stake, using the principle of individual guilt to establish a direct link between the execution of an EAW and human dignity as an absolute right protected by the German Constitution. According to the BVerG, the constitutional identity review was a matter for itself and not for the CJEU. In this identity review, it is the national constitution and not EU law which provides the appropriate benchmark to assess compatibility with core rights.161 The ruling of the BVerG (hereinafter ‘the BVerG “EAW” Decision’) is also significant regarding its approach to the relationship between the protection of fundamental rights and mutual trust. The BVerG found that mutual trust has its limits and ‘can be shaken’162 if there are indications based on facts that the requirements indispensable for the protection of human dignity would not be complied with in the case of an EAW. While the BVerG ultimately found that the system established by EU law was not unconstitutional, it put forward a detailed mechanism of scrutiny of fundamental rights concerns by the executing authority on an individualised basis.163 The BVerG established for German authorities or courts when executing an EAW the constitutional obligation to ensure that the principles of Article 1, section 1 of the German Basic Law (the GrundGesetz) – as a manifestation of the principle of individual guilt – are complied with in the context of extraditions on the basis of an EAW. In particular, this obligation involves ensuring that the minimum guarantees of the rights of the accused will also be observed in the requesting Member State. Otherwise and where this is possible, extradition must not take place. The principle of mutual trust is limited by human dignity guaranteed under Article 1, section 1 GG.164 According to the BVerG, the fact that mutual trust is not applicable without limits even pursuant to EU law signifies that the national judicial authorities, when relevant indications exist, are authorised and obliged under EU law to review whether the rule of law requirements have been complied, even if the requirements of the EAW Framework Decision are formally met.165 The requirements

158 A Torres Pérez, ‘Melloni in Three Acts: From Dialogue to Monologue’ (2014) 10 European Constitutional Law Review 320. 159 BVerfG, Order of the Second Senate of 15 December 2015–2 BvR 2735/14 (the EAW I Decision). 160 ibid para 125. 161 See in this context G Anagnostaras, ‘Solange III? Fundamental Rights put under the National Identity Review’ (2017) 42 EL Rev 234. 162 EAW I Decision (n 159) para 67. 163 See ibid paras 63–72. 164 ibid para 83. 165 ibid para 105.

Mutual Trust as a Challenge to Fundamental Rights and Constitutional Identity  221 under EU law are not lower than the minimum guarantees prescribed under German law.166 The BVerG found that the German Act implementing the EAW FD did not raise concerns regarding the principle of individual guilt,167 but that it was the interpretation by the Higher Regional Court which was deficient in this case.168 Having ascertained that the obligation by national authorities to undertake a fundamental rights review was also a duty stemming from EU law,169 the BVerG developed detailed parameters for this review. There have to be reasonable grounds to believe that there is a risk of treatment contrary to human rights. As a rule, the obligation to produce specific factual prima facie evidence can only be dispensed with if there is a continuous practice of gross, obvious or systematic violations of human rights in the requesting state. Extradition to states that have a continuous practice of widespread and systematic violations of human rights will usually result in a violation of fundamental principles of the German constitutional order being probable.170 As a rule, an assurance that is given in extradition proceedings and that is binding under public international law is suitable to overcome potential concerns with regard to the permissibility of the extradition, unless it is to be expected that the assurance will not be complied with in the individual case.171 In terms of the basis of the review, the BVerG distinguished between two types of evidence: specific factual prima facie evidence and evidence that there is a continuous practice of gross, obvious or systematic violations of human rights in the requesting state, with the former only dispensed if the latter exists. The Court went on to grant wide leeway to courts in the evidence they may use, which can be ‘any means that, according to the rules of logic, to general or to scientific knowledge, are, or might be, suitable to convince themselves that facts that are essential for the decision exist and that the assessment or evaluation of facts is correct’.172 The BVerG established that the national court deciding on an extradition is obliged to proceed on a case-by-case examination by investigating the facts of the case, including the treatment that the requested person must expect in the requesting State.173 This applied irrespective of the existence of mutual trust within Europe.174 It is not possible to determine the content and the extent of the procedural obligation to investigate in judicial extradition proceedings in an abstract and general manner, as these are dependent upon the circumstances of the individual case.175 This investigation includes the legal situation and legal practice of the requesting Member State if the requested person has invoked sufficient indications that such an examination is warranted. If it is established that the requesting state does not comply with the minimum standards of human dignity, extradition must be declared impermissible.176 Thus, the BVerG here rejected the framing of mutual recognition in criminal matters on the basis of automaticity and

166 ibid

para 107. para 108. para 109. 169 ibid para 105. 170 ibid para 71. 171 ibid para 70. 172 ibid. 173 ibid paras 63–65. 174 Ibid. 175 ibid para 64. 176 ibid para 110. 167 ibid 168 ibid

222  Mutual Recognition and Mutual Trust almost blind trust, as promoted by the text of the EAW FD and by the case law of the CJEU. It put forward a system of a case-by-case examination of fundamental rights compliance by the executing authority on the basis of the acceptance that the presumption of mutual trust, stemming from the uncritical acceptance that fundamental rights are always respected in all EU Member States in the operation of the EAW system, is rebuttable. The approach of the BVerG on maintaining its prerogative to ultimately scrutinise compliance of EU law and its implementation on the basis of the Basic Law is reminiscent of its approach in the development of the Solange litigation.177 The BVerG EAW ruling has been criticised in evoking the identity review mechanism without the latter really fitting the facts of the case, as EU secondary law was found to be compliant with the German Constitution.178 According to Meyer, the BVerG artificially created a conflict in order to render the identity reservation applicable, claiming an unfettered and self-standing power of review.179 In doing so, the BVerG put down a marker regarding its ultimate authority to review the operation of mutual trust under EU law and the primacy of the German Constitution as a review benchmark. This emphasis on national authority is also demonstrated by the fact that the BVerG declined from embarking on a direct dialogue with Luxembourg by questionably declaring that the issue in question constituted ‘acte clair’. Limits to constitutional accommodation are clearly discerned here in terms of the BVerG statement of who is ultimately responsible to rule on the compatibility of mutual recognition with fundamental rights. In order to ascertain its authority, the BVerG also adopted a legally questionable approach from the perspective of EU law as regards the trigger of the identity review, as it extended the principle of guilt to cover the operation of the EAW and linked the guilt principle to the absolute right of human dignity.180 Linking the principle of guilt with the operation of the EAW further appears to be in contrast with the CJEU interpretation of the principle of legality in its first landmark ruling on the operation of the EAW, Advocaten voor de Wereld, where it found that the EAW is a matter of procedural law, involving cooperation between national authorities and not the substantive determination of guilt or innocence which will be determined under the law of the issuing Member State.181 In spite of these shortcomings, the ruling by the BVerG is of great significance for the evolution of the operation of mutual trust in Europe’s area of criminal justice. The BVerG rejected the evolution of the CJEU approach viewing mutual recognition in criminal 177 These similarities have prompted commentators to use the term ‘Solange III’ by referring to this ruling. See Anagnostaras (n 161); M Honig, ‘Human Dignity, Identity Review of the European Arrest Warrant and the Court of Justice as a Listener in the Dialogue of Courts: Solange III and Aranyosi’ (2016) 12 European Constitutional Law Review 549. 178 F Meyer, ‘“From Solange II to Forever I”: The German Federal Constitutional Court and the European Arrest Warrant (and How the CJEU Responded)’ (2016) 7 New Journal of European Criminal Law 283. Meyer eloquently distils his concerns by arguing that ‘the principle of individual guilt forms a congenial alliance with the identity reservation and, as a result, even minor procedural shortcomings may be tantamount to violations of human dignity. It is not difficult to see what a formidable tool such a bloated substantive principle could be in the hands of a court eager to regain jurisdictional primacy’ (at 281). 179 ibid. 180 J Nowag, ‘EU Law, Constitutional Identity, and Human Dignity: A Toxic Mix? Bundesverfassungsgericht: Mr R’ (2016) 53 CML Rev 1447. Nowag talks about human dignity as a ‘super human right’. For a discussion on human dignity as an absolute right, see Honig (n 177). 181 Advocaten voor de Wereld VZW (n 33).

A Paradigm Change by the Court of Justice  223 matters as operating on the basis of automaticity and blind trust with constitutional and fundamental rights concerns located at the periphery of the CJEU reasoning – and thus, as has been noted, contesting the actual capacity of the CJEU to guarantee a constitutionally acceptable level of fundamental rights protection.182 The BVerG elevated fundamental rights concerns arising from the operation of the EAW into constitutional concerns, rejected the operation of mutual recognition under blind trust or always presumed trust, and put forward detailed criteria for the scrutiny of fundamental rights compliance in the operation of the EAW system. It placed national courts under a duty to ensure that fundamental rights are complied with and provided detailed guidance on how such compatibility will be assessed. Although it declined to engage in a direct judicial dialogue with Luxembourg, the BVerG indirectly but clearly sent a clear signal that, while for now the compatibility of EU mutual recognition law with the German Constitution is accepted, fundamental rights concerns must be taken seriously in order for the EU system to maintain its legality.

VII.  A Paradigm Change by the Court of Justice: The Dialogical and Interactive Model of Scrutinising Mutual Trust in Aranyosi The Court of Justice had the opportunity to directly examine the relationship between fundamental rights, mutual recognition and mutual trust – and arguably to respond indirectly to the BVerG – in the joined cases of Aranyosi and Căldăraru (hereinafter Aranyosi)183 both of which were referred to the CJEU for a preliminary ruling by a German court, the Higher Regional Court of Bremen. The reference was another opportunity for the CJEU to directly address the question of whether the execution of an EAW could be refused on the grounds of concerns over the violation of fundamental rights. The cases involved both prosecution and conviction warrants issued by authorities in states (Romania and Hungary) where concerns on serious violations of fundamental rights had emerged. The concerns of the German authorities centred on the impact of execution on Article 4 of the Charter in view of the existence of pilot judgments by the ECtHR confirming breaches of Article 3 ECHR on the grounds of the unacceptable state in prison conditions in both countries.184 The German Court raised two broad questions at the heart of the discussion on defining the parameters of mutual trust: the extent to which serious fundamental rights concerns could lead to the inadmissibility of an EAW; and the legal framework and content relating to the provision of assurances by the issuing authorities asserting compliance with fundamental rights. In a departure from earlier judgments, the CJEU crucially moved on to provide detailed guidelines to the executing authorities on how they must proceed when assessing the existence of a risk of inhuman or degrading treatment arising from the execution 182 Anagnostaras (n 161). 183 Joined Cases C-404/15 and C-659/15 PPU, Pál Aranyosi and Robert Căldăraru v Generalstaatsanwaltschaft Bremen, ECLI:EU:C:2016:198. 184 ibid paras 43–44 and 60–61.

224  Mutual Recognition and Mutual Trust of an EAW. The CJEU put forward a two-step approach. First, a general assessment of the risk must take place. Where the judicial authority of the executing Member State is in possession of evidence of a real risk of inhuman or degrading treatment of individuals detained in the issuing Member State, it is bound to assess the existence of that risk when it is called upon to decide on the surrender to the authorities of the issuing Member State of the individual sought by an EAW.185 To that end, the national court may rely on information that is objective, reliable, specific and properly updated on the detention conditions prevailing in the issuing Member State and that demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention. Sources may include judgments of international courts, such as judgments of the ECtHR and judgments of courts of the issuing Member State, and also decisions, reports and other documents produced by bodies of the Council of Europe or under the aegis of the UN.186 National authorities are under a positive obligation to ensure that any prisoner is detained in conditions which guarantee respect for their human dignity, that the way in which detention is enforced does not cause the individual concerned distress or hardship of an intensity exceeding the unavoidable level of suffering that is inherent in detention, and that, having regard to the practical requirements of imprisonment, the health and wellbeing of the prisoner are adequately protected.187 However, a finding by the executing judicial authority that there is a real risk of inhuman or degrading treatment by virtue of general conditions of detention in the issuing Member State does not automatically signify that the execution of the EAW must be refused.188 Therefore, in addition to a general assessment of the risk, it will also be necessary for the executing judicial authority as a second step to proceed to a further specific and precise assessment of whether there are substantial grounds to believe that the individual concerned will be exposed to that risk because of the conditions for their detention envisaged in the issuing Member State.189 The executing authority is bound to determine whether, in the particular circumstances of the case, there are substantial grounds to believe that, following the surrender of that person to the issuing Member State, they will run a real risk of being subject in that Member State to inhuman or degrading treatment.190 Central to the assessment of risk at this stage is the establishment of a cooperative mechanism of interaction between the executing and the issuing authorities, in accordance with Article 15(2) of the EAW FD. A request must be made as a matter of urgency regarding all necessary supplementary information on the conditions in which it is envisaged that the individual concerned will be detained in that Member State.191 Such a request may also relate to the existence, in the issuing Member 185 ibid para 88. 186 ibid para 89. 187 ibid para 90. 188 ibid para 91. 189 ibid para 92. According to the CJEU, this is because the mere existence of evidence that there are deficiencies, which may be systemic or generalised, which may affect certain groups of people or which may affect certain places of detention with respect to detention conditions in the issuing Member State does not necessarily mean that, in a specific case, the individual concerned will be subject to inhuman or degrading treatment in the event that they are surrendered to the authorities of that Member State (at para 93). 190 ibid para 94. 191 ibid para 95.

A Paradigm Change by the Court of Justice  225 State, of any national or international procedures and mechanisms for monitoring detention conditions, linked, for example, to visits to prisons, which make it possible to assess the current state of detention conditions in those prisons.192 A time limit for the receipt of the supplementary information may be fixed, which must be adjusted to the particularities of each case and must equally respect time limits set in Article 17 of that Framework Decision.193 The issuing judicial authority is obliged to provide that information to the executing judicial authority.194 If on the basis of the information provided the executing judicial authority finds that there exists a real risk of inhuman or degrading treatment for the individual in respect of whom the EAW was issued, then the execution is postponed, but it cannot be abandoned.195 Until the point of obtaining supplementing information that would discount the existence of a risk of inhuman or degrading treatment, a decision on the surrender must be postponed, but if the existence of that risk cannot be discounted within a reasonable time, the executing judicial authority must decide whether the surrender procedure should be brought to an end.196 Aranyosi is a landmark judgment and a turning point in the Court’s approach on mutual trust. It confirms a shift from automatic mutual recognition based on uncritical mutual trust (or, as the CJEU President Koen Lenaerts has put it, ‘blind trust’)197 to earned trust on the basis of an individualised assessment of the fundamental rights consequences of surrender on the ground.198 Aranyosi is significant here in two respects: in confirming the requirement for the executing authority to examine the impact of the surrender on an individual basis; and in emphasising the need for an assessment not only of the law, but also of the practice of fundamental rights protection as regards the individual concerned.199 From a pluralist perspective, Aranyosi is significant in establishing a dialogical model of interaction between the authorities operating mutual recognition and in launching a cooperative relationship between national authorities responsible for operating the EAW, with the Court providing reasonably detailed guidance on the dialogue between national authorities under Article 15 of the EAW FD. In this context, the CJEU appears to have been inspired by the fundamental rights review approach adopted by the BVerG,200 Although Aranyosi is not the outcome of a direct dialogue between the CJEU on the one hand and the BVerG on the other, its reasoning and outcome can be seen as a recognition by the CJEU of the approach taken by the BVerG regarding mutual trust.201 In taking on board the approach of the BVerG, the CJEU in Aranyosi also avoided, from a vertical perspective, a constitutional clash 192 ibid para 96. 193 ibid para 97. 194 ibid para 97. 195 ibid para 98. 196 ibid para 104. 197 K Lenaerts, ‘La Vie Après L’Avis: Exploring the Principle of Mutual (Yet Not Blind) Trust’ (2017) 54 CML Rev 806. According to President Lenaerts, mutual trust is not to be confused with blind trust. 198 Writing on the need for earned trust before Aranyosi, see Mitsilegas, (n 4) ch 5. 199 V Mitsilegas, ‘Re-setting the Parameters of Mutual Trust: From Aranyosi to LM’ in Mitsilegas, di Martino and Mancano (n 111) 421–36. 200 See also G Anagnostaras, ‘Mutual Confidence is Not Blind Trust! Fundamental Rights Protection and the Execution of the European Arrest Warrant: Aranyosi and Caldararu’ (2016) 53 CML Rev 1702. 201 Lanearts (n 197) 807. According to President Lenaerts, the contours of principle are not set in stone, but will take concrete shape by means of a constructive dialogue between the CJEU, the ECtHR and national courts.

226  Mutual Recognition and Mutual Trust with the German court and recognised implicitly but clearly national constitutional concerns. While a number of questions regarding the mode and substance of fundamental rights scrutiny and the extent of dialogue between national authorities remain open, Aranyosi has been a game-changer in terms of both the vertical and the horizontal relations of courts in Europe.

VIII.  Aranyosi as a Catalyst for Calm in the Battle for Authority and Primacy The ruling in Aranyosi has signified a step-change in its relations with the ECtHR and the BVerG. The post-Aranyosi era has led, at least in the short term, to a more open approach by both the Strasbourg Court and the BVerG to Luxembourg’s new approach on mutual recognition. Both courts made steps to accommodate the method of fundamental rights scrutiny via judicial dialogue and interaction introduced in Aranyosi, and both framed the protection of fundamental rights within the broader objectives of cooperation underpinning the intra-EU system of mutual recognition in criminal matters, while at the same time maintaining their own prerogatives for fundamental rights scrutiny.

A.  The European Court of Human Rights The ECtHR case law has evolved significantly in this context. The ECtHR confirmed the applicability of its ruling in Avotiņš (which involved the scrutiny of an EU mechanism of mutual recognition in civil matters based on a Regulation) to the system of mutual recognition set up by the EAW FD and developed its approach further, taking into account developments in Luxembourg.202 In the case of Pirozzi,203 the ECtHR reiterated its recognition of the importance of mutual recognition mechanisms for the construction of the AFSJ and of the mutual trust they necessitate and of the legitimacy of the AFSJ, but stressed that its construction must not breach fundamental rights.204 It reiterated the applicability of the Bosphorus presumption205 in cases where there was no margin of appreciation, but again confirmed that this presumption is rebuttable. Following Avotiņš,206 the Court must verify that the principle of mutual recognition is not applied in an automatic and mechanical manner/fashion to the detriment of fundamental rights.207 The Strasbourg Court confirmed that if there are concerns regarding the manifest inadequacy in the protection of Convention rights in an EU Member State and EU law cannot remedy this inadequacy, states cannot renounce their obligation 202 On Avotiņš see section 3 above. 203 Pirozzi v Belgium, App No 21055/11, judgment of 17 April 2018. 204 ibid paras 59–61. 205 Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v Ireland, App No 45036/98, judgment of 30 June 2005. 206 Avotiņš v Latvia (n 151). 207 Pirozzi (n 203) para 62.

Aranyosi as a Catalyst for Calm in the Battle for Authority and Primacy  227 to examine the complaint on the sole ground that they are applying EU law – they must apply EU law in conformity with the ECHR.208 For the Strasbourg Court, it is thus the ECHR (and not the Charter or EU law) which is the ultimate benchmark for the scrutiny of respect for fundamental rights in the EU system of mutual recognition. And it is the Strasbourg Court which retains the authority to review the compatibility of the operation of mutual recognition with the Convention. The ECtHR fine-tuned its approach in the more recent judgment in Romeo Castańo.209 It accepted the approach of the CJEU regarding the scrutiny of the fundamental rights consequences of the execution of the EAW, requiring a concrete and substantiated examination of the situation and the identification of a real and individualised risk of human rights violations in the issuing state.210 It found the executing authorities in breach of their obligations for failing to conduct such an individualised and complete examination.211 It is noteworthy that the Court based its reasoning on the violation of the duty of cooperation emanating from Article 2 ECHR,212 this entailing a duty for states to act jointly and to cooperate in order to protect human rights, which also means that states must in good faith exhaust possibilities for cooperation.213 Evoking the duty of cooperation could be seen as mirroring the use by the CJEU of the EU law principle of loyal cooperation as the foundation of a dialogical model of fundamental rights scrutiny in the operation of mutual recognition. In this manner, the Strasbourg Court translates the cooperative and dialogical model of interaction between national authorities in the context of the operation of mutual recognition in criminal matters in EU law to a similar cooperative model as regards upholding ECHR rights, with national authorities placed under such duties under the ECHR. The ruling in Romeo Castańo is remarkable in highlighting (in a similar way, as will be seen below, with the BVerG) the importance of not too readily refusing to execute an EAW: the ECtHR found an EU Member State to be in violation of the Convention for refusing to execute an EAW on fundamental rights grounds too readily and for failing to engage seriously with the second stage of human rights scrutiny put forward by the CJEU in Aranyosi.214 In turn, this finding by the ECtHR was subsequently quoted by the CJEU in the case of Dorobantu215 to further back up the requirement by national authorities to carry out an up-to-date and detailed examination of the situation in the issuing state.216 While there appears to be convergence between Strasbourg and Luxembourg as regards the parameters of fundamental rights scrutiny by national authorities, the

208 ibid para 64. 209 Romeo Castańo v Belgium, App No 8351/17, judgment of 9 July 2019. 210 ibid para 86. The national court did not proceed towards a substantiated examination of the situation prevailing in 2016 and did not seek to identify a real and individualised risk of violation of Convention rights or structural deficiencies in detention conditions. 211 ibid paras 86–90. 212 ibid para 91. 213 ibid para 81. 214 The judgment contains express references to the CJEU rulings in Aranyosi and ML: Aranyosi (n 183) para 24. 215 See section IX below. 216 Case C-128/18, Dorobantu, EU:C:2019:857. In Dorobantu, the CJEU referred to Castańo on the requirement to carry out an up-to-date and detailed examination of the situation as it stood at the time of its decision (at para 57). For further analysis of Dorobantu, see section IX below.

228  Mutual Recognition and Mutual Trust situation remains unresolved in terms of ultimate authority – who has the final say on fundamental rights review and under which benchmarks. In Romeo Castańo, the Strasbourg Court did not hesitate to conduct scrutiny itself of the operation of the EU law system of mutual recognition, thus reserving its prerogative to rule on human rights violations in the operation of this system (arguably exactly the situation which the CJEU wished to avoid with Opinion 2/13). In this context, the Strasbourg Court has reiterated – even after Aranyosi – the non-automaticity of mutual recognition and the fact that national jurisdictions cannot refrain from the examination of fundamental rights violations complaints on the sole ground that they apply EU law; these jurisdictions must apply EU law in conformity with the Convention.217 According to the Strasbourg Court, the ECHR remains a benchmark for human rights scrutiny of EU law, and national courts (and the Strasbourg Court) are under a duty to uphold the compliance of EU law with the Convention.218

B.  The Bundesverfassungsgericht The post-Aranyosi era has further marked the beginning of a more open and synergetic approach by the BVerG towards the CJEU. The BVerG now encourages national courts to engage with the CJEU on questions of the interpretation of fundamental rights scrutiny of the EAW and to embrace the dialogical model put forward by the Court (and, as seen above, influenced by the case law of the BVerG). In contrast to its earlier ‘acte clair’ acceptance, the BVerG has criticised post-Aranyosi lower German courts which have declined to send preliminary references to Luxembourg for interpretation of questions concerning the parameters of mutual trust in the EAW system.219 Linked to the more cooperative approach by the BVerG is its alignment with the CJEU in terms of the substantive need to avoid impunity in Europe’s area of criminal justice: national courts should not readily refuse to execute EAWs on fundamental rights concerns grounds if they have not made full use of the preliminary reference procedure on matters which have not been already subject to interpretation.220 Once the CJEU has accepted its approach on scrutinising fundamental rights, the BVerG is now content with the former providing guidance on the extent of judicial dialogue between national authorities, and on the EU benchmarks for fundamental rights protection forming the basis for mutual

217 Pirozzi (n 203) para 64, referring to Avotiņš (n 151) para 116. 218 See also the ECtHR judgment of 25 March 2021 in Bivolaru and Moldovan v France, App Nos 40324/16 and 12623/17, where the Strasbourg Court scrutinised a decision by a national authority to execute an EAW and found that in one of the cases, the decision to execute, deferring to the statements of the issuing state on fundamental rights protection, was in breach of art 3 of the Convention. The Court found that in this case, the protection of fundamental rights had therefore been manifestly deficient, such that the presumption of equivalent protection was rebutted. 219 See the judgment of BVerG 2017 2, BvR 424/17 (the EAW II Decision). According to the BVerG, in the event that doubts arise regarding the application or interpretation of EU law, regular courts must, first of all, refer the relevant questions to the CJEU – failure to comply infringes the right to one’s lawful judge guaranteed to the person seeking legal protection in the initial proceedings (para 36). The BVerG has granted a broad remit to the CJEU intervention, noting that the issue at hand has not yet been fully resolved by the CJEU (para 48). 220 IBVerG (EAW II Decision) at para 57.

Aranyosi as a Catalyst for Calm in the Battle for Authority and Primacy  229 trust, with sustained references by German courts generating significant CJEU case law in the field.221 The ultimate review by the BVerG in the event that it is not satisfied with the CJEU responses on the respect of fundamental rights always remains in the background. The openness of the BVerG towards Luxembourg can be explained by another factor: the transfer to the CJEU of the challenging task to develop concrete standards to be followed by national courts in their determination on whether to surrender or not an individual when fundamental rights concerns regarding their surrender have arisen. It has been argued that it is the CJEU which is required to develop precise standards in this context to give guidance to national courts.222 Following the emergence of this judicial dialogue, a further step in reconfiguring the relationship between national constitutional identity and the primacy of EU law in EAW cases was taken by the BVerG in a judgment delivered in December 2020 (the EAW III Decision).223 In this important judgment, the BVerG ruled that it is the fundamental rights of the EU, rather than the German Constitution, which are fundamentally decisive on legal questions that are completely determined by EU law, with the fundamental rights enshrined in the Basic Law not being used as a direct benchmark on these questions.224 A limitation of the primacy of the application of EU law in the context of identity checks on the basis of Article 79(3) of the German Constitution in conjunction with Article 1(1) is not justified in the present case in view of the protection of fundamental rights guaranteed by Article 4 of the Charter.225 However, this move towards accepting the primacy of EU law and the Charter as a benchmark for the assessment of fundamental rights compliance is not absolute. According to the BVerG, in interpreting the Charter, both the ECHR and national constitutional benchmarks must be used,226 with the ECHR being of primary importance in the present case: an interpretation that is ‘friendly’ to EU and international law is essential for mutual trust and requires the indispensable minimum requirements for detention conditions to be determined in accordance with the standards set out by the ECtHR and adopted by the CJEU.227 Moreover, the final say on such an assessment ultimately remains not with Luxembourg, but with the BVerG – identity review remains a limitation to the primacy of EU law.228 It is noteworthy that in the present ruling, the BVerG reverted back to its approach in its earlier EAW ruling and declined to refer itself the question of the compatibility of the execution of the EAW in question with fundamental rights to the CJEU by ruling that this was a case of acte clair.229 It thus appears that the BVerG is content with direct judicial dialogue to be triggered between lower German courts and the CJEU, but not between itself and the CJEU. Referring to case law by the CJEU case law on the basis of

221 See below. 222 S Röß, ‘The Conflict between European Law and National Constitutional Law Using the Example of the European Arrest warrant’ (2019) 25 European Public Law 25. 223 BVerG, judgment of 1 December 2020–2 BvR 1845/18 – Rn 1-85, www.bverfg.de/e/rs20201201_2bvr184518. html (the EAW III Decision). 224 ibid para 36. 225 ibid para 7. 226 ibid para 2. 227 ibid para 63. 228 ibid para 58. 229 ibid para 81 – note the references to Dorobantu.

230  Mutual Recognition and Mutual Trust rulings triggered by preliminary references by German courts (in particular Dorobantu) and by the ECtHR230 (in particular Romeo Castańo),231 the BVerG developed itself the interpretation of fundamental rights compatibility of the execution of the EAW, ruling that the CJEU approach is compatible with fundamental rights,232 and applying its case law to reverse decisions of lower courts and ruling that surrender would be in breach of fundamental rights.233 The BVerG thus triggered the elaboration of fundamental rights benchmarks by the CJEU by requiring lower courts to send preliminary reference requests to Luxembourg, and then used the ensuing CJEU case law by offering its own interpretation to apply to domestic cases. This approach can be seen as another veiled sign to influence Luxembourg as to its interpretation of future cases involving fundamental rights concerns on the EAW.234 The BVerG declined to refer to the CJEU a question that could be seen as a natural candidate for a preliminary reference and to which it is likely that the CJEU would have given a different, more EAW-friendly answer.

IX.  Contesting the Parameters of Mutual Trust after Aranyosi: Fundamental Rights The CJEU’s ruling in Aranyosi has resulted in ongoing dialogue between national courts in order to establish the parameters of mutual trust in cases where fundamental rights concerns have arisen regarding the execution of an EAW. A number of further questions have arisen in the course of this dialogue regarding the extent to which the executing authority can examine the compatibility of execution with fundamental rights and, relating to this matter, the extent to and manner in which the executing authority can scrutinise the legal system of the issuing Member State to ensure that fundamental rights will be upheld. The absence of clear answers to these questions has led to a second level of judicial dialogue between national courts and the CJEU. This dialogue takes the form of the submission of preliminary references, where the Luxembourg Court is asked to develop benchmarks underpinning the operation of mutual trust in Europe’s area of criminal justice. This dialogue is also ongoing, and in the field of fundamental rights protection has been driven primarily thus far by German courts, following the BVerG opening up to Luxembourg post-Aranyosi. The first major case in determining the parameters and limits of horizontal judicial dialogue was ML,235 which concerned the determination of fundamental rights compliance of detention conditions in the issuing state. This was another reference by the High Court in Bremen, which posed the CJEU with a number of questions about the extent 230 ibid paras 43–55. 231 See this section above. 232 The BVerG endorsed in principle the CJEU’s approach in Aranyosi as developed in Dorobantu (EAW III Decision (n 223) paras 45–56). For a commentary, see M Wendel, ‘Grundrechtswende zur Jahreswende’ Verfassungsblog (1 January 2021), https://verfassungsblog.de/grundrechtswende-zur-jahreswende. 233 EAW III Decision (n 223) para 70. 234 On the role of preliminary references by German courts, see also W Michl, ‘Brott statt Böller’ Verfassungsblog (30 December 2020), https://verfassungsblog.de/brot-statt-boller. 235 Case C-220/18 PPU, ML (Generalstaatsanwaltschaft,- Conditions of Dentention in Hungary), EU:C: 2018:589.

Contesting the Parameters of Mutual Trust after Aranyosi: Fundamental Rights  231 of the obligation of assessment by the executing authority of detention conditions in the state of the issuing authority. The Court found that requesting information about all the prisons located in the issuing state leading to an obligation on the part of the executing judicial authorities to assess the conditions of detention in all the prisons in which the individual concerned might be detained was clearly excessive and runs counter to the effectiveness of the EAW surrender system on the basis of facilitating and accelerating surrenders within the strict time limits set out in the Framework Decision.236 The Court linked the existence of mutual trust between Member States with the model of speedy cooperation established under the tight deadlines for execution set out in the EAW FD to assert that executing authorities are solely required to assess the conditions of detention in the prisons in which, according to the information available to them, it is actually intended that the person concerned will be detained, including on a temporary or transitional basis. According to the CJEU, the compatibility with the fundamental rights of the conditions of detention in the other prisons in which that person may possibly be held at a later stage is a matter that falls exclusively within the jurisdiction of the courts of the issuing Member State.237 This narrow interpretation of the remit of assessment by the executing authority was linked with a broader attempt by the Court not to strengthen distrust in the operation of the dialogue mechanism established by Article 15 of the EAW FD and the Aranyosi ruling. In ML, the Court noted that the executing authority (the Bremen Public Prosecutor’s Office) had sent no fewer than 78 questions to its Hungarian counterparts.238 The Court noted that those questions, because of their number, scope and content, in practice made it impossible for the authorities of the issuing Member State to provide a useful answer, given, in particular, the short time limits laid down in Article 17 of the EAW FD.239 A request of that nature, which according to the CJEU results in the operation of the EAW being brought to a standstill, is not compatible with the duty of sincere cooperation under Article 4(3) TEU, which must inform the dialogue between the executing and issuing judicial authorities when, inter alia, information is provided pursuant to Article 15(2) and (3) of the EAW FD.240 The Court applied the duty of loyal cooperation ‘in full mutual respect’ not only to the requests of information by the issuing authority but also to the provision of assurances by the executing authority concerning the actual and precise conditions in which the person concerned will be detained in the issuing Member State.241 According to the Court, in view of the mutual trust which must exist between the judicial authorities of the Member States and on which the EAW system is based, the executing authority must rely on the assurance given by the issuing authority, at least in the absence of any specific indications that the detention conditions in a particular detention centre are in breach of Article 4 of

236 ibid paras 81–84. The Court also justified this view on the basis of the need to avoid impunity of the requested persons, and in particular in this case where it was deemed that the requirements of art 4(6) of the EAW FD were not met (at paras 85–86). 237 ibid para 87. 238 ibid para 107. 239 ibid para 103. 240 ibid para 104. 241 ibid paras 109 and 110.

232  Mutual Recognition and Mutual Trust the Charter.242 A failure to give effect to such an assurance, insofar as it may bind the entity that has given it, may be relied on as against that entity before the courts of the issuing Member State.243 A key follow-up to ML was the case of Dorobantu,244 where the Higher Regional Court of Hamburg, which had been criticised (as seen above) by the BVerG for failing to refer to Luxembourg,245 effectively asked the CJEU to provide it with a precise, harmonised minimum size of prison cells which would be considered compatible with the Charter.246 In its response, the Court again attempted to balance the requirement for an effective fundamental rights scrutiny with effectiveness in the operation of the system of mutual recognition in criminal matters. In terms of the extent and scope of review by the issuing authority, the Court followed ML to find that an obligation on the part of the executing authorities to assess the conditions of detention in all the prisons in which the individual concerned might be detained in the issuing Member State would be clearly excessive and that it would be impossible to fulfil such an obligation within the periods prescribed in Article 17 of the Framework Decision.247 The Court went on to place considerable weight on the provision of assurances by the executing authority. When the assurance that the person concerned will not suffer inhuman or degrading treatment on account of the actual and precise conditions of their detention, irrespective of the prison in which they are detained in the issuing Member State, has been given or at least endorsed by the issuing judicial authority, the executing judicial authority must rely on that assurance, at least in the absence of any specific indications that the detention conditions in a particular detention centre are in breach of Article 4 of the Charter.248 It is only in exceptional circumstances, and on the basis of precise information, that the executing authority can find that, notwithstanding such an assurance, there is a real risk of the person being subject to inhuman or degrading treatment.249 In its attempt to ensure the effectiveness of the EAW FD when fundamental rights are being scrutinised by national authorities, the Court of Justice went further than its ruling in ML by bringing back Melloni with a vengeance and stating that the executing authority may make surrender subject only to compliance with the requirements of Article 4 of the Charter and Article 3 ECHR, and not with those resulting from its own national law, even if the standards of the latter are higher.250 On the other hand, the Court reiterated the absolute character of Article 4 of the Charter,251 stating expressly that the finding of a real risk

242 ibid para 112. 243 ibid para 111. 244 Dorobantu (n 216). 245 See section VIII.B above. 246 In support of detailed guidance by the CJEU, see S Röß, ‘The Conflict between European Law and National Constitutional Law Using the Example of the European Arrest Warrant’ (2019) 25 European Public Law 25. 247 Dorobantu (n 216) para 64. 248 ibid para 68. 249 ibid para 69. 250 ibid para 79, with a direct reference to Melloni (n 116) para 63. The Court noted that by casting doubt on the uniformity of the standard of protection of fundamental rights as defined by EU law, the opposite solution would undermine the principles of mutual trust and recognition and would therefore compromise the efficacy of the Framework Decision. 251 Dorobantu (n 216) para 82.

Contesting the Parameters of Mutual Trust after Aranyosi: Fundamental Rights  233 of a breach cannot be weighed, for the purposes of deciding on that surrender, against considerations relating to the efficacy of judicial cooperation in criminal matters and to the principles of mutual trust and recognition.252 ML and Dorobantu demonstrate that key aspects of the parameters of establishing mutual trust via judicial dialogue between national authorities remain contested. They also demonstrate that the Court, in its position as interlocutor with national courts at the second level of judicial dialogue under the preliminary reference procedure, is facing the challenge of developing credible and concrete guidance principles for the interaction between national courts, while at the same time being in the delicate position of balancing the respect of fundamental rights requested by national courts with the maintenance of a degree of mutual trust which will not undermine the effectiveness of the enforcement objectives of mutual recognition in criminal matters. The case law thus far has not always got the balance right, most notably regarding the degree of mutual accommodation it has allowed in the system and regarding the effectiveness of fundamental rights scrutiny its rulings will allow. There are two principal shortcomings in the Court’s case law thus far: the limits it places on judicial dialogue in terms of the scrutiny of fundamental rights by the issuing authority; and, linked to that, the uncritical faith in the concept and provision of assurances. Both of these elements may end up bringing back automaticity and blind trust through the back door. In terms of limits to judicial dialogue by strictly circumscribing the parameters of fundamental rights scrutiny by the issuing authority, the Court has admittedly attempted to strike a balance in the face of cases showing a substantial level of mistrust towards the executing state. It evoked the principle of loyal cooperation to introduce in essence a proportionality test regarding the use of the cooperative mechanism under Article 15 EAW FD by the executing authorities – the questions they raise must not be excessive. However, the Court’s insistence on the focus on scrutiny of individual instances of fundamental rights protection in the executing state is limiting. In a number of cases, it may be difficult to reconcile this approach with the existence of real concerns of the executing authority with regard to the fundamental rights risks for the individual after the execution of the EAW, as the criminal justice process proceeds in the executing state. The limits of the Court’s approach are further demonstrated in the resurgence of the Melloni doctrine in Dorobantu. This can be seen as another attempt to promote an uncritically accepted concept of mutual trust by reiterating the primacy and autonomy of EU law over national constitutional benchmarks. While the BVerG has gradually moved from mistrust to trust, the opposite trend can be discerned here. Yet the applicability of Melloni in this case can be questioned. In Melloni, the Court based its ruling on the perceived (but questionable)253 harmonisation of national law on the basis of the existence of secondary EU law on judgments in absentia. Yet, as the Court accepted in Dorobantu, no such harmonisation exists currently with respect to detentio