EU Criminal Law

Valsamis Mitsilegas

• Publisher: Hart Publishing
• Year: 2009
• Print ISBN: 9781841135854
• eBook ISBN: 9781847317261
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

EU Criminal Law is perhaps the fastest-growing area of EU law. It is also one of the most contested fields of EU action, covering measures which have a significant impact on the protection of fundamental rights and the relationship between the individual and the State, while at the same time presenting a challenge to State sovereignty in the field and potentially reconfiguring significantly the relationship between Member States and the EU. The book will examine in detail the main aspects of EU criminal law, in the light of these constitutional challenges. These include: the history and institutions of EU criminal law (including the evolution of the third pillar and its relationship with EC law); harmonisation in criminal law and procedure (with emphasis on competence questions); mutual recognition in criminal matters (including the operation of the European Arrest Warrant) and accompanying measures; action by EU bodies facilitating police and judicial co-operation in criminal matters (such as Europol, Eurojust and OLAF); the collection and exchange of personal data, in particular via EU databases and co-operation between law enforcement authorities; and the external dimension of EU action in criminal matters, including EU-US counter-terrorism co-operation. The analysis is forward-looking, taking into account the potential impact of the Lisbon Treaty on EU criminal law.

1

History, Principles and Institutions

I. INTRODUCTION

THE EVOLUTION OF the institutional framework of EU criminal law has been a gradual process. Although the majority of legislative developments in the field have occurred largely in the last decade and ECJ case law has began to proliferate even more recently, steps for enhancing co-operation between Member States in criminal matters outside the EU framework have appeared as early as the 1970s. The fact that it took so long to achieve a phase of sustained legislative action in the field within the EU is indicative of the contested nature of EU criminal law, a field which has significant consequences for State sovereignty. Another indication of the contested nature of EU criminal law is the fact that it is still, at the time of writing, a field of Union law largely confined to a separate pillar of the EU Treaty (the so-called ‘third pillar’), which distinguishes it from Community law and the first pillar ‘Community’ method and renders applicable more ‘intergovernmental’ methods of law-making and scrutiny and a more limited involvement of EU institutions in the field. Focusing on the third pillar, this chapter will examine this gradual, contested evolution of EU criminal law by looking at: the history and context of the development of EU action in the field; the institutional framework governing action in the field as it has evolved from the Maastricht Treaty to the Amsterdam Treaty and beyond; the extent to which Community law principles apply to the third pillar; and the significant changes that would be brought about should the Lisbon Treaty enters into force. In all these steps, the focal point will be the extent to which competence is transferred from the Member States to the Union level.

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 the emergence of areas of criminality which were of common concern to Member States and which were perceived to necessitate co-operation. Outside the EU framework, such co-operation 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 co-operation within the Council of Europe that has reportedly blocked French plans in the late 1970s–early 1980s to establish an ambitiously named ‘European judicial area in criminal matters’ covering primarily judicial co-operation in criminal matters in the fields of terrorism.³ However, the 1970s did witness efforts by Member States to explore the establishment of channels of co-operation 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 of 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 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 taken to achieve these objectives created a ‘spillover effect’ of law and policy to broader issues to the economy/market, including criminal law.⁸ A key to this process of spill-over 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 was already made to some extent by the Commission in its 1985 White 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 1989¹¹: the document asserted that the achievement of an area without internal frontiers could involve, as 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 co-operation; and judicial co-operation. In the latter context it was noted that judicial co-operation in criminal matters should be intensified in order to combat terrorism, drug trafficking, crime and other illicit trafficking and that 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, has been 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 co-operation, 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, leading thus 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 at the time has been a pioneering step at the time and resulted into a momentum towards extending such closer integration into the EU. As will be seen below, the Schengen acquis has now been integrated into Community/Union law, a fact indicative of the influence of the Schengen logic on the development of the European Union as an ‘area of freedom, security and justice’. 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 criminal matters were also linked with political events external to the Community at the close of the 1980s, namely the fall of the Berlin Wall. The collapse of the Soviet Bloc led to a number of concerns in 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 they would be most affected by these developments—towards greater EU co-operation and integration in criminal matters. In this context, countries like Germany attempted to render domestic concerns into EU issues¹⁵—creating at the same time considerable impetus towards the development of European integration in the field. Lack of trust towards Eastern European countries—which subsequently became candidate countries and now many of them full EU Member States—continued in the 1990s and the 2000s during the enlargement process and has 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 EU entry.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 has been 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 ‘80s to organised crime in the 1990s and terrorism in the 2000s.¹⁹ At EU level, such securitisation of crime—has largely acted as a factor justifying further EU integration in criminal matters and led to the adoption of a plethora of legal and policy initiatives at EU level. 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 Union 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.

III. THE THIRD PILLAR—THE INSTITUTIONAL FRAMEWORK

The factors discusses above 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 extremely contested. The final compromise came with the adoption of the Maastricht Treaty, which introduced a three pillar structure for the European Union. The primary function of this structure was on the one hand to include within the Union’s remit controversial areas such as foreign and security policy and justice and home affairs, but to ensure on the other that Union action in these sovereignty sensitive fields would not be under the supranational elements of the first pi...

Table of contents

• Cover Page
• Title Page
• Copyright
• Table of Contents
• Foreword
• Preface and Acknowledgements
• Table of Cases
• Introduction
• 1 History, Principles and Institutions
• 2 Harmonisation and Competence
• 3 Mutual Recognition: Prosecution, Jurisdiction and Trust in an ‘Area’ of Freedom, Security and Justice
• 4 Bodies, Offices and Agencies
• 5 Databases: Reconfiguring the Relationship between Security and Privacy
• 6 The External Dimension
• Conclusion: Is Criminal Law a Special Case in the EU Legal Order?
• Bibliography
• Index