Are criminal law measures strictly confined to the third pillar ? (latest developments in the ECJ jurisprudence) Anca Tamas Director European Affairs Department Ministry of Justice 1

Contents General approach Treaties Structure of the EU Legal instruments Principles Role of the ECJ Recent ECJ cases Pupino ( C-105/03) Commission v. Council (C – 176/03) Advocaten voor de Wereld (Case C-303/05) Conclusions 2

The treaties Treaty establishing the European Coal and Steel Community (ECSC) (1952 – 2002) Treaty of Rome establishing the European Economic Community (EEC) (1957) Treaty establishing the European Atomic Energy Community (Euratom) (1957) Treaty of Brussels, known as the " Merger Treaty " (1965) Single European Act (1986) 3

The treaties (continued) Treaty on European Union, known as the "Maastricht Treaty" (1992) Introduced the three pillar structure I pillar - Community pillar – the former Treaties (EC) II pillar – Common Foreign and Security Policy (CFSP) III pillar – Justice and Home Affairs (JHA) 4

The treaties (continued) Treaty of Amsterdam (1997) Maintained and developed the III pillars structure Incorporated some of the III pillar areas into the first pillar Visas Asylum Immigration Judicial cooperation in civil matters 5

The treaties (continued) Treaty of Nice (2001) Treaty establishing a Constitution for Europe Not in force Aimed to eliminate the pillar structure 6

The pillars structure I pillar - community pillar – concerns economic, social and environmental policies. All areas within the competences of the three Communities European Coal and Steel Community (ECSC) European Economic Community (EEC or EC) European Atomic Energy Community ( Euratom) II pillar – Common Foreign and Security policy (CFSP) - concerns foreign policy and military matters. III pillar – Police and Judicial Co-operation in Criminal Matters' (PJCC) – the former Justice and Home Affairs (JHA) Title VI TUE 7

I Pillar areas Customs Union and Single market – the 4 freedoms … Common Agricultural Policy EU competition law Economic and monetary union Consumer protection Healthcare Environmental law Social policy Asylum policy Immigration policy Judicial cooperation in civil matters 8

III Pillar areas Judicial cooperation in criminal matters Eurojust Europol Drug trafficking and weapons smuggling Terrorism Trafficking in human beings Organized crime Bribery and fraud 9

Supranational v. Governmental The first pillar – supranational – community method The third pillar – governmental – preponderance of the Council Unique institutional framework Different roles for various institutions Council – the main actor within the third pillar –acting unanimously Initiation of legislation : I pillar – the Commission III pillar – the Commission and the Member States 10

Main legal instruments First pillar (art 249 EC) Regulation General application Binding in its entirety Directly applicable Directive Binding as to the result to be achieved National authorities have the choice of form and method Decision Binding in its entirety Upon those to whom it is addressed 11

Main legal instruments Third pillar ( art 34 TUE) Common positions Defining the approach of the Union to a particular matter Framework decisions Purpose of approximation Binding as to the result to be achieved Leaves to the national authorities the choice of form and method Not entail direct effect Decisions Conventions 12

European Court of Justice General jurisdiction over interpretation of the first pillar instruments Art 234 EC The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of this Treaty; (b) the validity and interpretation of acts of the institutions of the Community…; (c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide. 13

European Court of Justice Limited jurisdiction within the III pillar Article 35 TEU 1. The Court of Justice of the European Communities shall have jurisdiction, subject to the conditions laid down in this article, to give preliminary rulings on the validity and interpretation of framework decisions and decisions ….. 2. By a declaration made at the time of signature of the Treaty of Amsterdam or at any time thereafter, any Member State shall be able to accept the jurisdiction of the Court of Justice to give preliminary rulings as specified in paragraph 1. 14

General principles I pillar – traditional approach Supremacy of EC Law: Case 14/64 Costa v ENEL [1964] ECR 585 ‘The integration into the laws of each Member State of provisions which derive from the Community, and more generally the terms and the spirit of the Treaty, make it impossible for the states, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity. Such a measure cannot therefore be inconsistent with that legal system. The executive force of community law cannot vary from one state to another in deference to subsequent domestic laws, without jeopardizing the attainment of the objectives of the Treaty…’ 15

General principles The direct effect Case 26/62 Van Gend en Loos [1963] ECR 1 ‘The objective of the EEC Treaty, which is to establish a common market, the functioning of which is of direct concern to interested parties in the Community, implies that this Treaty is more than an agreement which merely creates mutual obligations between the contracting states. This view is confirmed by the Preamble to the Treaty which refers not only to governments, but to peoples. It is also confirmed more specifically by the establishment of institutions endowed with sovereign rights, the exercise of which affects Member States and also their citizens. …. 16

Questions Do these principles apply to the III pillar situations? How deep is the gap between the two pillars? Is supremacy applicable within the third pillar ? 17

Pupino – C-105/03 reference for a preliminary ruling interpretation of Articles 2, 3 and 8 of Council Framework Decision (FD) 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings The reference has been made in the context of criminal proceedings against Mrs Pupino, a nursery school teacher charged with inflicting injuries on pupils aged less than five years 18

Pupino – C-105/03 The FD provides for rights of the victims – to have an appropriate role in the criminal system, to be heard, to be protected The Italian criminal procedure has ambiguous provisions on the matter Italian Court asks whether they should interpret the national criminal legislation in light of the FD 19

Pupino – C-105/03 Italian, British, Swedish and French Governments argue that FD cannot have direct effect National courts are not under an obligation to conform interpretation FD are different to directives. 20

Pupino – C-105/03 The Court : ‘ …. concludes that the principle of conforming interpretation is binding in relation to framework decisions adopted in the context of Title VI of the Treaty on European Union. When applying national law, the national court that is called upon to interpret it must do so as far as possible in the light of the wording and purpose of the framework decision ….’ 21

Further question Can criminal law measures be imposed through directives? 22

Commission v. Council (C – 176/03) Commission of the European Communities is seeking annulment of Council Framework Decision (FD) 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law FD lays down a number of environmental offenses – Member States are required to prescribe criminal penalties 23

Commission v. Council (C – 176/03) Commission proposed a Directive with similar provision, under the community pillar- 175 (1) EC Council considered it to be appropriate for a third pillar instrument (framework decision) 10 of the 11 Member States that have intervened in the case argued that such measures (criminal law) cannot be imposed through a directive 24

Commission v. Council (C – 176/03) The court : ‘ 47. As to the content of the framework decision, Article 2 establishes a list of particularly serious environmental offences, in respect of which the Member States must impose criminal penalties. Articles 2 to 7 of the decision do indeed entail partial harmonization of the criminal laws of the Member States …. As a general rule, neither criminal law nor the rules of criminal procedure fall within the Community’s competence. 25

Commission v. Council (C – 176/03) 48. However, the last-mentioned finding does not prevent the Community 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 which it lays down on environmental protection are fully effective.’

Commission v. Council (C – 440/05) A similar case – Commission v. Council (C- 440/05) - is pending Action for annulment of the Framework Decision 2005/667/JHA to strengthen the criminal law framework for the enforcement of the law against ship-source pollution. Opinion of Advocate General Mazak – consistent with the judgment in C 176/03 – proposes the annulment of the FD 27

And even more questions… Is the Framework Decision on the European Arrest Warrant (FD on EAW) in compliance with the fundamental rights? 28

Council Framework Decision 2002/584/JHA on the European arrest warrant and surrender procedures between member states First example of extensive judicial cooperation in criminal matters Has replaced the extradition procedure between Member States Is a purely judicial decision Procedure – simplified and expedited The dual criminality principle – abolished for 32 serious offences (participation in a criminal organization, terrorism, trafficking in human beings, sexual exploitation of children and child pornography, illicit trafficking in arms, ammunition and explosives, corruption, fraud including fraud pertaining to the financial interest of the European Union, money laundering and counterfeiting of money including the euro) EU countries can no longer refuse to surrender their own nationals 29

National concerns The Constitutional Courts in Poland, Germany and Cyprus found its implementation into the national law unconstitutional. Main concerns referred to: The extradition of their own nationals The observance of principle of legality for the list of 32 crimes for which the FD eliminates the request of verification of double criminality 30

Advocaten voor de Wereld VZD v Leden van de Ministerraad (3 May 2007) Case C-303/05 reference for a preliminary ruling, under art 35 TUE, by a Belgian court (Court D’Arbitrage) question referred the compatibility of elimination of double criminality requirement with the principle of legality in the criminal proceedings 31

Advocaten voor de Wereld VZD v Leden van de Ministerraad (3 May 2007) Case C-303/05 The Court: while Article 2(2) of the Framework Decision dispenses with verification of double criminality for the categories of offences mentioned therein, the definition of those offences and of the penalties applicable continue to be matters determined by the law of the issuing Member State, which, (...) 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. It follows that, in so far as it dispenses with verification of the requirement of double criminality in respect of the offences listed in that provision, Article 2(2) of the Framework Decision is not invalid on the ground that it infringes the principle of the legality of criminal offences and penalties. 32

Conclusions /Further questions important recent developments within the third pillar do these point towards a ‘ communitarisation ’ or ‘ constitutionalisation ’ of the third pillar issues? the failed Constitution aimed at : Eliminating the pillar structure Generalization of the ‘community method’ In the absence of a Constitution, could the ECJ reduce the distance between the pillars ? 33

Thank you! More info: Anca Tamas Director – European Affairs Department Ministry of Justice 34