Slide 1/30 © copyright Standard training programme in judicial cooperation in criminal matters within the European Union Version: 3.0 Last updated: The European Judicial Training Network With the support of the European Union

Slide 2/30 © copyright Training organised by (name of training organiser) on (date) at (place) Title (of the training) Version: 3.0 Last updated: Logo of the training organiser The European Judicial Training Network With the support of the European Union

Slide 3/30 © copyright Module 3 The Court of Justice of the European Union : Version: 3.0 Last updated:

Slide 4/30 © copyright Contents 1. Introduction 2. Overview of the current competences of the CJEU 3. Reference for a preliminary ruling 4. The case-law of the CJEU > Module 3: The CJEU: Competences and case-law in criminal matters

Slide 5/30 © copyright 1. Introduction Evolution of the competences of the CJEU:  Initially: total absence of the CJEU  Maastricht Treaty: initial lack of competence, with exceptions  Amsterdam/Nice Treaty: limited competence, governed by Article 35 TEU  Lisbon Treaty: full competence (with one exception) > Module 3: The CJEU: Competences and case-law in criminal matters

Slide 6/30 © copyright Currently, and until 1 December 2014, competences of the CJEU subject to a mixed system (cf. Article 10 of the protocol on transitional provisions): Article 35 TEU for former acts (concluded before the entry into force of the Lisbon Treaty, i.e. 1 December 2009) Provisions of the TFEU for: New acts (adopted since 1 December 2009) Former acts amended by a new act From 1 December 2014, all acts (old and new) are subject to the provisions of the TFEU. > Module 3: The CJEU: Competences and case-law in criminal matters 2. Overview of current competences

Slide 7/30 © copyright 2.1. Competences as laid down by Article 35 TEU 2.2. Competences as governed by the provisions of the TFEU > Module 3: The CJEU: Competences and case-law in criminal matters 2. Overview of current competences

Slide 8/30 © copyright 2.1. Competences as laid down by Article 35 TEU => 3 areas of jurisdiction jurisdiction to give a preliminary ruling under the 3 rd pillar (Article 35, paragraphs 1-4 TEU) jurisdiction to hear action for annulment (Article 35(6) TEU) jurisdiction to rule on disputes between Member States or between a Member State and the Commission (Article 35(7) TEU) > Module 3: The CJEU: Competences and case-law in criminal matters 2. Overview of current competences

Slide 9/30 © copyright 2. Overview of current competences  There is no action for failure to fulfil an obligation comparable with that of Community law.  There is no action for failure to act as in Community law, in the event of the institutions’ inaction  There is no action for damages. + No jurisdiction to review the validity or proportionality of operations carried out by the police or other law enforcement services in a Member State, or to rule on the exercise of the responsibilities incumbent upon Member States to maintain law and order and safeguard internal security (Article 35(5) TEU) > Module 3: The CJEU: Competences and case-law in criminal matters

Slide 10/30 © copyright 2. Overview of current competences 2.2. Competences as governed by the provisions of the TFEU The Lisbon Treaty abolishes the third pillar and the ‘communitisation’ of criminal matters, or rather their transfer to Title V of Part 3 of the TFEU concerning the area of freedom, security and justice.  Standardisation of the competences of the CJEU  Abolition of restrictions on the exercise of the competences of the CJEU, while maintaining one exception (see below) > Module 3: The CJEU: Competences and case-law in criminal matters

Slide 11/30 © copyright 2. Overview of current competences  Submission of the reference for preliminary ruling procedure to common law (Article 267 TFEU) (see below)  Submission of action for annulment to common law: extension of the acts that may be the subject of an action for annulment and a broadening of the possible applicants (Article 263 TFEU). > Module 3: The CJEU: Competences and case-law in criminal matters

Slide 12/30 © copyright 2. Overview of current competences  Extension to the criminal sector of three actions ignored in the 3 rd pillar TEU, namely: action for failure to act (Article 265 TFEU) action for damages (Articles 268 and 340 TFEU) action for failure to fulfil an obligation (Articles TFEU) But maintained lack of jurisdiction to review the validity or proportionality of operations carried out by the police or other law enforcement services in a Member State, or to rule on the exercise of the responsibilities incumbent upon Member States to maintain law and order and safeguard internal security (Article 276 TFEU). > Module 3: The CJEU: Competences and case-law in criminal matters

Slide 13/30 © copyright 3.1. Significance of the reference for a preliminary ruling 3.2. Scope of jurisdiction to give preliminary rulings 3.3. Initiating a reference for a preliminary ruling 3.4. The urgent preliminary ruling procedure or PPU 3.5. The impact of the CJEU’s preliminary rulings on national case-law 3. Reference for a preliminary ruling > Module 3: The CJEU: Competences and case-law in criminal matters

Slide 14/30 © copyright 3.1. Significance of the reference for a preliminary ruling  Fundamental mechanism of European Union law that aims to give national courts the means to ensure uniform interpretation and application of EU law in all the Member States  Key mechanism for practitioners: allows them to obtain clarification on the validity or scope and interpretation of European law on a particular issue  Relies on collaboration between national courts and the CJEU. Primary means for establishing dialogue between them > Module 3: The CJEU: Competences and case-law in criminal matters 3. Reference for a preliminary ruling

Slide 15/30 © copyright 3. Reference for a preliminary ruling 3.2. Scope of jurisdiction to give preliminary rulings in criminal matters Restricted jurisdiction to give preliminary rulings under Article 35 TEU A (quasi) common law jurisdiction to give preliminary rulings under the TFEU > Module 3: The CJEU: Competences and case-law in criminal matters

Slide 16/30 © copyright 3. Reference for a preliminary ruling Restricted jurisdiction to give preliminary rulings under Article 35 TEU Compared with EC law, the jurisdiction of the CJEU to give a preliminary ruling in the criminal sector is more limited: optional jurisdiction, subject to a declaration of acceptance of its jurisdiction by each Member State (opt-in system) > Module 3: The CJEU: Competences and case-law in criminal matters

Slide 17/30 © copyright Member States making a declaration that they accept this jurisdiction must specify in their declaration which national courts are authorised to submit questions for a preliminary ruling: this can either be any of their courts (Article 35(3) b) TEU) or those against whose decisions there is no judicial remedy under national law (Article 35(3)(a) TEU) Second declaration possible to reserve their right to approve national legislation requiring reference for a preliminary ruling by the courts of final instance > Module 3: The CJEU: Competences and case-law in criminal matters 3. Reference for a preliminary ruling

Slide 18/30 © copyright 3. Reference for a preliminary ruling The reference for a preliminary ruling concerns the interpretation and validity of framework decisions and decisions, the interpretation of conventions, and the interpretation and validity of their implementing measures. It therefore does not relate to: a reference for preliminary ruling regarding the validity of conventions a reference for preliminary ruling regarding common positions ( but CJEU Segi and Gestoras Pro Amnistía cases) Article 35(5): the CJEU has no jurisdiction to review the validity or proportionality of operations carried out by the police or other law enforcement services in a Member State, or to rule on the exercise of the responsibilities incumbent upon Member States to maintain law and order and safeguard internal security. > Module 3: The CJEU: Competences and case-law in criminal matters

Slide 19/30 © copyright 3. Reference for a preliminary ruling A (quasi) common law jurisdiction to give preliminary rulings under the TFEU Consequence of the transfer to Title V on the AFSJ: End of variable geometry: jurisdiction to give preliminary rulings binding on all MS, subject to the same arrangements everywhere (Article 267 TFEU) => option for national courts to refer a question concerning the validity or interpretation of acts obligation of the courts of final instance to refer to the CJEU The jurisdiction to give preliminary rulings affects all instruments under Title V on the AFSJ, including acts of the institutions, bodies and agencies of the EU. But revival of the restriction under Article 35(5) TEU (Article 276 TFEU). > Module 3: The CJEU: Competences and case-law in criminal matters

Slide 20/30 © copyright 3. Reference for a preliminary ruling 3.3. Initiating a reference for a preliminary ruling Subject-matter of a preliminary ruling Submitting the request (time and form) Consequence of initiating a reference and duration of the proceedings before the Court of Justice > Module 3: The CJEU: Competences and case-law in criminal matters

Slide 21/30 © copyright 3. Reference for a preliminary ruling Subject-matter of a preliminary ruling The role of the CJEU is to provide an interpretation of EU law or to decide on its validity. It is not responsible for: -ruling on questions of fact raised in the main proceedings or applying EU law to this factual situation -resolving differences of opinion on the interpretation or application of rules of national law It is the referring court’s responsibility to draw conclusions from these, where necessary declining to apply the national rule in question. > Module 3: The CJEU: Competences and case-law in criminal matters

Slide 22/30 © copyright 3. Reference for a preliminary ruling Submitting the request Time: to be determined by the referring court but the Court should be able to obtain all the necessary information in order to verify, where appropriate, that European law is indeed applicable to the main proceedings and provide a pertinent response to the national court Form: follow the recommendations made by the CJEU itself, including: set out the individual question(s) for preliminary ruling clearly and precisely include a brief statement of the subject-matter of the proceedings, and the relevant facts reproduce the applicable national provisions and identify case-law identify the relevant provisions of European Union law as precisely as possible explain the reasons for the questions relating to the provisions of European Union law, and the link it establishes between those provisions and the national provisions include a summary of the primary pertinent arguments of the parties to the main proceedings. > Module 3: The CJEU: Competences and case-law in criminal matters

Slide 23/30 © copyright 3. Reference for a preliminary ruling Consequence of initiating a reference and duration of the proceedings before the Court of Justice Effect of the reference: suspension of the national proceedings until the Court of Justice has given its ruling (does not affect the competence of the national court to take any precautionary measures) Average duration of the reference for a preliminary ruling procedure before the CJEU = over 20 months. BUT: expedited procedure for processing cases as laid down by Article 105 of the rules of procedure of the Court of Justice urgent preliminary ruling procedure or PPU (Article 107 et seq. of the Rules of Procedure of the Court of Justice) > Module 3: The CJEU: Competences and case-law in criminal matters

Slide 24/30 © copyright 3. Reference for a preliminary ruling 3.4. The urgent preliminary ruling procedure or PPU  Specific procedure for fields included in the area of freedom, security and justice  Applicable since 1 March 2008 on an exceptional basis, of its own motion at the express and reasoned request of the national court > Module 3: The CJEU: Competences and case-law in criminal matters

Slide 25/30 © copyright 3. Reference for a preliminary ruling 3.5. The impact of the CJEU’s preliminary rulings on national case-law  Res judicata force of the preliminary rulings of the Court of Justice. Binding on the judicial authorities of the Member States that submitted the questions for a preliminary ruling.  But must also be taken account of by the other judicial authorities of the Member States. For former acts of the EU, i.e. adopted before the entry into force of the Lisbon Treaty, these must be taken account of: by the other judicial authorities of the Member States that declared acceptance of the jurisdiction of the CJEU but also by the courts of the Member States that have not made a declaration accepting the jurisdiction of the Court (see examples) > Module 3: The CJEU: Competences and case-law in criminal matters

Slide 26/30 © copyright 4. Case-law 4.1. Overview of judgments handed down 4.2.The Pupino judgment of 16 June 2005, Case C-105/ The 5 other judgments interpreting FD 2001 on the standing of victims in criminal proceedings > Module 3: The CJEU: Competences and case-law in criminal matters

Slide 27/30 © copyright 4. Case-law 4.1. Overview of judgments handed down  2 judgments handed down concerning actions for annulment brought for infringement of the rules on distribution of powers between the 1 st and 3 rd pillars: 13 September 2005, Commission v Council, Case C-176/03 23 October 2007, Commission v Council, Case C-440/05  Majority of judgments handed down concerning references for a preliminary ruling => can be classified into 3 main groups: Judgments concerning the interpretation of Article 54 CISA on the ne bis in idem principle: see Module 9. Judgments concerning the validity or interpretation of the FD of 2002 on the European Arrest Warrant: see Module 8 Judgments interpreting the FD 2001 on the standing of victims in criminal proceedings > Module 3: The CJEU: Competences and case-law in criminal matters

Slide 28/30 © copyright 4. Case-law 4.2.The Pupino judgment of 16 June 2005, Case C-105/03  Legal facts and background: having doubts as to the compatibility of Italian national law with Framework Decision of 2001 March 2001 on the standing of victims in criminal proceedings, the judge in charge of the preliminary investigation at the Tribunale di Firenze asked the Court of Justice to rule on the scope of the aforesaid Articles of the FD. The precise question referred to the Court of Justice to answer was whether, in accordance with the Framework Decision, in criminal proceedings for offences against children aged less than five years, the latter could be heard as witnesses outside the public trial as part of a procedure for gathering evidence early, even though this is not provided for by Italian criminal procedure for this type of offence > Module 3: The CJEU: Competences and case-law in criminal matters

Slide 29/30 © copyright 4. Case-law  Judgment of the Court As to the admissibility of the application: extension of the scope of the principle of conforming interpretation to the 3 rd pillar on the basis of 2 main arguments: Comparable nature of directives and framework decisions Principle of loyal cooperation laid down by Article 10 of the EC Treaty also extends to the 3 rd pillar. Answer to the question for preliminary ruling referred by the national court > Module 3: The CJEU: Competences and case-law in criminal matters

Slide 30/30 © copyright 4. Case-law  Impact of the Pupino Judgment Decisions concluding on the constitutionality of national transposing legislation or the execution of the European Arrest Warrant Decisions concluding on the unconstitutionality of national transposing legislation or refusal to execute the European Arrest Warrant 4.3. The 5 other judgments interpreting FD 2001 on the standing of victims in criminal proceedings > Module 3: The CJEU: Competences and case-law in criminal matters The contents and opinions expressed herein are solely that of the EJTN, and the European Commission cannot be held responsible for any use that may be made of these contents and opinions.