Course: European Criminal Law SS 2009 Hubert Hinterhofer

Competences in Criminal Law In Principle: Criminal Law as part of the Third Pillar (Title VI TEU) – Judicial Cooperation in criminal matters – No use of the so called “Passerelle Clause” (Art 42 TEU) – Competence to harmonize the criminal law of the MS

Competences in Criminal Law Main Goal: EU as an area of freedom, security and justice by preventing serious crimes Closer Cooperation between police forces (Europol) Closer Cooperation between judicial authorities (Eurojust) Harmonization of the criminal law of the MS

Competences in Criminal Law 1999: European Council in Tampere – Principle of Mutual Recognition – Improvement of Judicial Cooperation: EJN Schengen Framework – Covers also Police and Judicial Cooperation – Incorporated into the EU by the Treaty of Amsterdam (1997) – Part of the Third Pillar

Competences in Criminal Law Legal Instruments within the Third Pillar – Framework Decisions (FWD) Aim: Harmonization of Laws of the MS Binding on the MS regarding the result to be achieved Leave the choice of form and methods to the authorities of the MS Not directly applicable Need for transformation into national law (no formal ratification proceeding)

Competences in Criminal Law Legal Instruments within the Third Pillar – Decisions Other purposes than harmonization of the laws Binding on the MS Not directly applicable Need for transformation into national law – Conventions Multilateral Treaties Need for ratification of all MS: often time-consuming Recently not very important regarding Criminal Law

Competences in Criminal Law Law Making Procedures in the Third Pillar – Council Key law-making body Has to act with one voice – Commission Right to issue proposals for new laws No exclusive right of initiative – MS Right to initiate new law through proposals – European Parliament Has to be consulted (opinions and proposals) No decision making-power No right to set out an initiative

Competences in Criminal Law Role of the ECJ in the Third Pillar – Preliminary Rulings Art 35 sec 1 to 3 TEU National Courts are asking ECJ for advice Concerning interpretation or validity of FWD, Decisions, Conventions or the Schengen Agreement – Plea for annulment Art35 sec 6 TEU Review the lawfulness of FWD or Decisions MS or Commission – No contract violation procedure (different to the First Pillar)

Competences in Criminal Law Recent Examples of judgments of the ECJ – Art 54 Schengen Agreement Gözütok and Brügge Van Esbroeck – FWD Pupino – Anti-Trust-Law Tokai Carbon

Competences in Criminal Law Exception: Criminal Law as Part of European Community Law (First Pillar) – No unique supranational European Criminal Law No competence of the EC Criminal Law as a central part of the sovereignty of a MS – ECJ Limited competence of the EC to harmonize the criminal law of the MS Judgement C-176/03 (2005)

Competences in Criminal Law Analysis of the Judgment C-176/03 – C-176/03: Application Number – Subject: Plea for annulment of the FWD on the Protection of the Environment through Criminal Law – Formal Aspects Court: Grand Chamber (13 judges including a Rapporteur) Applicant: Commission of the EC Supported by the European Parliament as intervener Defendant: Council of the EU Supported by 11 MS as interveners Advocate General Written and oral procedures

Competences in Criminal Law Analysis of the Judgment C-176/03 – Substantial Aspects Arguments of the Commission (and Parliament) – Challenges the legal basis: FWD as the wrong legal instrument – Directive would have been correct: If a Community Policy is concerned and a Criminal Law Provision is needed to ensure the effectiveness of the Community Policy – Consequence: Plea for annulment of the FWD

Competences in Criminal Law Analysis of the Judgment C-176/03 – Substantial Aspects Arguments of the Council and the MS – EC has no power to require the MS to impose criminal penalties – Exclusive right of the MS represented in the Council – Application of criminal law is reserved to the MS – FWD is the correct legal instrument to protect the environment through criminal law

Competences in Criminal Law Analysis of the Judgment C-176/03 – Substantial Aspects Findings of the Court – Follows the Commission – Where a criminal law provision is needed to ensure the effectiveness of Community law (Community Policy), it has to be adopted under the first pillar only – Concerning the Protection of the Environment: Directive instead of FWD – Consequence: Annulment of the FWD