CRIMINAL LAW OF THE EUROPEAN UNION 1 April 2015 THE LISBON TREATY AND CRIMINAL LAW Dr. sc. Zoran Burić Department of Criminal Procedural Law University of Zagreb – Faculty of Law

STRUCTURE OF THE PRESENTATION 1.INTEGRATION OF THE LEGAL ORDER OF THE EU 2.CHANGES RELEVANT FOR CRIMINAL PROCEDURAL LAW 3.CHANGES RELEVANT FOR SUBSTANTIVE CRIMINAL LAW 4.CHANGES RELEVANT FOR CRIMINAL LAW INSTITUTIONS OF THE EU 5.REFORM OF HUMAN RIGHTS PROTECTION IN THE EU

GENERALLY ABOUT THE LISBON TREATY  Treaty of Lisbon (OJ C 306, )  Signed on 13th December 2007, came into force 1st December 2009  Brings amendments to the Treaty on the European Union (Article 1) and to the Treaty Establishing the European Community (Article 2) Treaty on the Functioning of the European Union  Predecessor: the Constitutional Treaty (Treaty Establishing Constitution for Europe)  Main characteristic in the criminal law field: supranational competences for the EU

INTEGRATION OF THE LEGAL ORDER (1)  Article 2 (2) TEU: The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime  Abandonment of the pillar structure and integration of the legal order  Legal order is founded on the principles of the legal order of the European Community – supranational legal order  Unification of legal instruments  Title V TFEU: Area of Freedom, Security and Justice (police and judicial cooperation in criminal matters together with asylum, border controls, immigration, civil law cooperation)

INTEGRATION OF THE LEGAL ORDER (2)  Shared competences between the EU and the MS  Article 2 (2) TFEU: When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence  Principle of subsidiarity and proportionality: Article 5 (3) and (4) TEU “Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level” “Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties”

INTEGRATION OF THE LEGAL ORDER (3)  DECISION MAKING PROCESS (1): - before the Lisbon Treaty: unanimity in the Council, advisory function of the European Parliament - Lisbon Treaty: majority votes in the Council, codecision of the European Parliament (the ordinary legislative procedure) - Remains of unanimity? - broadening the scope of EU competences in the area of criminal law - establishment of the EPPO  Three MS do not participate in the AFSJ: UK, Ireland and Denmark (possibility of opt in into a single measure)

INTEGRATION OF THE LEGAL ORDER (4)  DECISION MAKING PROCESS (2): - ROLE OF THE MS: 1. LEGISLATIVE INITIATIVE (Community law – only Commission, Maastricht – only MS (single MS), Amsterdam – Commission and the MS (single MS) – ¼ of MS and the Commission 2. EMERGENCY BRAKE – when a draft Directive is contrary to the fundamental aspects of criminal legal system of a MS – reassessement of the draft in the Council: a) no consensus (within 4 months) – the draft failed, but the possibility for: enhanced cooperation (at least 9 MS)

CRIMINAL PROCEDURAL LAW OF THE EU (1)  EU competences in the area of criminal procedure: 1. judicial cooperation in criminal matters, 2. harmonization of national criminal procedural laws.  JUDICIAL COOPERATION IN CRIMINAL MATTERS: Article 82 (1) TFEU: Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions … The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures to: (a) lay down rules and procedures for ensuring recognition throughout the Union of all forms of judgments and judicial decisions; (b) prevent and settle conflicts of jurisdiction between Member States; (c) support the training of the judiciary and judicial staff; (d) facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions.

CRIMINAL PROCEDURAL LAW OF THE EU (2)  HARMONIZATION OF NATIONAL CRIMINAL PROCEDURAL LAWS: Article 82 (1) and (2) TFEU 1. Judicial cooperation in criminal matters in the Union … shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 … 2. To the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross- border dimension, the European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States. They shall concern: (a) mutual admissibility of evidence between Member States; (b) the rights of individuals in criminal procedure; (c) the rights of victims of crime; (d) any other specific aspects of criminal procedure which the Council has identified in advance by a decision; for the adoption of such a decision, the Council shall act unanimously after obtaining the consent of the European Parliament. Adoption of the minimum rules referred to in this paragraph shall not prevent Member States from maintaining or introducing a higher level of protection for individuals.

CRIMINAL LAW OF THE EU  HARMONIZATION OF NATIONAL CRIMINAL LAWS: Article 83 (1) and (2) TFEU: 1. The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum 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. These areas of crime are the following: 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. On the basis of developments in crime, the Council may adopt a decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament. 2. If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, directives may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned. Such directives shall be adopted by the same ordinary or special legislative procedure as was followed for the adoption of the harmonisation measures in question, without prejudice to Article 76.

CRIMINAL LAW INSTITUTIONS OF THE EU  SUPRANATIONAL COOPERATION INSTITUTIONS: 1. EUROPOLArt. 88 TFEU broadening of their competences 2. EUROJUSTArt. 85 TFEU  SUPRANATIONAL PROSECUTING AUTHORITY: 3. EPPOArt. 86 TFEUpossibility to establish it

HUMAN RIGHTS PROTECTION IN THE EU 1. FULL JURISDICTION OF THE ECJ - Preliminary ruling proceedings - Infraction proceedings 2. CHARTER OF FUNDAMENTAL RIGHTS OF THE EU - Soft law instrument – Legally binding instrument 3. ACCESSION OF THE EU TO THE ECHR

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