Opening of the European Cybercrime Centre at Europol
Specific objective: the creation of an area of freedom, security, and justice (FSJ)
The Schengen acquis (II)
Co-operation between the judicial authorities of the Member States in criminal matters
The Tampere European Council (October 1999) endorsed the principle of the mutual recognition of judicial decisions as the foundation of judicial co-operation in both civil and criminal matters.
The principle involves a great amount of trust on the part of one MemberState in the judicial system of another. Under this principle, courts/relevant authorities in one MemberState will recognize a judgment or other similar decision delivered in another MemberState in conformity with the legislation of that other MemberState.
The difference between mutual recognition and harmonization is that:
Mutual recognition is a regulatory technique aimed at achieving an objective sought at EU level without the need to harmonize Member States’ legislation, and thus national law and its peculiarities are maintained. It entails that a MemberState will recognize a judgment, or other similar instrument delivered by the relevant authorities of another MemberState, in accordance with the laws and regulations of that MemberState;
Harmonization occurs when the same laws are adopted in all Member States. EU harmonizing measures are regulations, directives, and decisions. With regard to a regulation, it becomes part of national law at the date specified in that regulation. Consequently preexisting national legislation which is incompatible with the regulation must be repealed. As to a directive, a MemberState is required to achieve the objective it seeks to achieve within the time limit specified in the directive. If this objective has already been achieved, there is no need to legislate; otherwise a MemberState must take all necessary measures, for example, it must enact national legislation, to comply with the relevant directive. In respect of criminal law, taking account of the differences between the legal traditions and systems of the Member States, they are prepared to accept harmonizing measures consisting of establishing common minimum standards. Thus, they do not wish to harmonize substantive/procedural criminal law beyond the degree required for successful mutual recognition of judgments and decisions delivered by the relevant authorities of other Member States. Article 82 TFEU reflects this reality. It deals with harmonization of procedural criminal law. It states that any harmonizing measure will be adapted “to the extent necessary to facilitate mutual recognition of judgments and judicial decisions and judicial co-operation in criminal matters having a cross border dimension” and must take account of differences between legal traditions and criminal justice systems of the Member States.
Such measures are to be adopted in accordance with the ordinary legislative procedure in respect of the following aspects of criminal procedure:
Mutual admissibility of evidence;
The rights of individuals in criminal procedure;
The rights of victims of crime;
Other aspects of criminal procedure which the Council may identify by a decision adopted by unanimity after obtaining consent from the EP.
An emergency brake procedure is provided in Article 82(3) TFEU in that if a MemberState considers that a draft measure would affect fundamental aspects of its criminal justice system it may request that the draft measure be referred to the European Council. The ordinary legislative procedure is suspended and the European Council, within four months of this suspension, acting by consensus, may either refer the draft back to the Council, in which case the suspension is terminated and the Council may proceed with the adoption of the measure, or do nothing, or refer the draft back to the Commission, in which cases the draft is deemed not to be adopted.
When a draft proposal is referred to the European Council, other States than the State that applied the brake, at least nine of them, may establish enhanced co-operation on the basis of then draft directive concerned during the suspension period or subsequently if the draft measure was not adopted by the Council. They may proceed after notifying the EP, the Council and the Commission. It is important to note that Article 82(2) TFEU states that the adoption of the minimum rules should not prevent Member States from maintaining or introducing a higher level of protection for individuals than that provided by the minimum rules.
VALUES AND OBJECTIVES OF THE EU INCLUDING CREATION OF AN AREA OF FSJ
At the time of writing the principle of mutual recognition of decisions in criminal matters has been implemented, inter alia, through:
The adoption of a Framework Decision on the European Arrest Warrant and the Surrender Procedures between Member States96 aimed at shortening extradition procedures;
The adoption of a Framework Decision on the Execution in the European Union of Orders Freezing Property or Evidence; 97
The adoption of Framework Decision 2008/978/JHA98 on the European evidence warrant for the purpose of obtaining objects, documents, and data for use in proceedings in criminal matters. The warrant allows prosecutors in EU Member States to collect and transfer evidence in cross-border cases.
Article 83 TFEU concerns harmonization of substantive criminal law. Article 83(1) TFEU provides that the EP 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 the sanctions to be imposed for such offences. Only the most serious crimes with a cross-border dimension will be subject to EU legislation.
These are listed in Article 83 TFEU as follows:
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;
Organized crime.
The Council may, on the basis of a decision adopted by unanimity after obtaining consent from the EP, add to the list of crimes in the light of developments in crime. Article 83(2) TFEU specifies an alternative basis for the adoption of harmonizing measures which define criminal offences and sanctions where this is necessary to “ensure the effective implementation of Union policy in an area which has been subject to harmonizing measures”. The procedure to be used will be the same as that used for the adoption of the harmonizing measure in question, i.e. if a harmonizing measure was adopted under the ordinary legislative procedure, then a measure adopted under Article 83(2) TFEU, i.e. defining a criminal offence and sanctions, must also be adopted in accordance with the ordinary legislative procedure. Article 83(2) raises a question whether it constitutes the lex specialis on the basis of which the EU will be allowed to establish minimum rules relating to criminal offences in areas outside Title IV or whether that article applies only to Title IV. This matter is important for Member States which have secured for themselves opt-out possibilities from measures relating to the area of FSJ. So far the EU has established its competence to adopt rules relating to criminal offences in respect of environmental matters.99
An emergency brake is provided for in Article 83(3) TFEU in respect of measures to be adopted under Article 82(1) and 82(2) TFEU. However, when a Member State operates the emergency brake the remaining Member States, at least nine of them, may establish enhanced co-operation in respect of that measure under the same conditions as those specified in Article 82(3) TFEU.
Prior to the entry into force of the ToL the Council adopted a number of framework decisions, joint actions and directives in order to approximate the definitions of certain serious offences such as terrorism, drug trafficking, counterfeiting the euro, money laundering, human trafficking, sexual exploitation of children and corruption in the private sector.
The European Prosecutors Co-operation (Eurojust)
This is a permanent body created in 2002 in order to reinforce the fight against serious crime. Eurojust is made up of 27 members (one from each MemberState) who are experienced prosecutors, judges, or police officers (The College of Eurojust).
The objective of Eurojust is to facilitate the optimal co-ordination of actions for investigations and prosecutions regarding serious cross border and organized crime, in particular by facilitating the execution of international mutual assistance requests and the implementation of extradition requests. Eurojust organizes meetings between investigators and prosecutors from different Member States dealing with a particular crime, or with a specific type of criminality. It may also ask a MemberState to start investigation or prosecution in respect of specific events. Eurojust actively co-operates with Europol and the European Judicial Network. Article 85 TFEU strengthens the role of Eurojust and assigns to it specific tasks such as:
“(a) the initiation of criminal investigations, as well as proposing the initiation of prosecutions conducted by competent national authorities, particularly those relating to offences against the financial interests of the Union;
(b) The coordination of investigations and prosecutions referred to in point (a);
(c) The strengthening of judicial cooperation, including by resolution of conflicts of jurisdiction and by close cooperation with the European Judicial Network”.
However, Eurojust has no power to carry out acts of judicial procedure when it initiates criminal investigations. Article 85(2) specifies that those acts should be carried out by the competent national officials.
The European Public Prosecutor’s Office (EPP)
Article 86 TFEU provides for the possibility for the establishment of a European Public Prosecutor’s Office responsible for investigating and prosecuting perpetrators of and accomplices in offences against the financial interests of the EU. It remains to be seen whether the Council will consider it necessary to establish the EPP.
The Standing Committee on Internal Security (COSI)
Article 71 TFEU provides for the establishment of a standing committee on internal security. The abbreviation chosen for this new committee is COSI. COSI will be made up of representatives of the Member States which will decide whether to have one representative for all aspects of work of COSI or different representatives dealing with specific areas of the work of COSI. Its main task will be to facilitate, promote, and strengthen the co-ordination of operational actions between Member States concerning internal security. It will regularly report to the Council which will, in turn, inform the EP and national parliaments of its activities. It will evaluate the efficiency of operational co-operation in order to identify any shortcomings and adopt recommendations to deal with them. If appropriate, COSI may involve other agencies and bodies, e.g. Eurojust, Europol, Frontex, in its work. Together with the Political and Security Committee (PSC), it will assist the Council in the implementation of the “solidarity clause” contained in Article 222 TFEU, i.e. to provide help and assistance if a MemberState is the object of a terrorist attack or a victim of natural or man-made disaster.
The European Judicial Network (EJN)
This network was created in 1998 to improve judicial assistance, in particular in respect of serious crime. It is a decentralized network of contact points that advises and assists judicial authorities in criminal matters. The network comprises:
The central authorities in each MemberState responsible for international judicial co-operation; and
One or more contact points, that is, persons appointed by the central authorities to facilitate judicial co-operation between Member States. The contact points are intermediaries providing legal and practical information, first to central authorities in their own Member State, second, to contact points in other Member States and third, to the local judicial authorities to help them to prepare a request for judicial co-operation in respect of serious crime or in respect of improving co-operation in general. The Commission is also a contact point for areas within its competence.
Police co-operation
Article 87 TFEU provides that common action in the field of police co-operation should include operational co-operation between police, customs and other specialized law enforcement authorities of the Member States to prevent, detect and investigate criminal offences, and to provide for exchange of information, joint training of police forces, and so on. Police co-operation may take place between national police authorities and through the European Police Office (Europol), which was established in 1992 to deal with Europe-wide criminal investigations. It became fully operational on 1 July 1999. Europol has its headquarters in The Hague and its staff includes representatives of national law enforcement agencies (police, customs, immigration services, and so on). It has no executive powers and thus its officials are not entitled to conduct investigations or to arrest suspects. On 1 January 2010 Europol became an agency of the EU. As a result Article 88(2) TFEU became obsolete. Under this article the EP and the Council, acting in accordance with the ordinary legislative procedure, are empowered to determine the structure, operation and functioning of Europol. Decision 2009/371/JHA of 6 April 2009100 which entered into force on 1 January 2010 deals comprehensively with the constitution and functions of Europol.
Europol is in charge of improving and developing co-operation between police forces in the following ways:
By facilitating the exchange of information between national police forces;
By providing expertise and technical support for investigations and operations carried out
within the EU;
By preparing intelligence analysis on the basis of information and intelligence provided by the Member States.
Europol’s priorities are to co-ordinate Member States’ actions against international money laundering, drug smuggling, illegal imports of nuclear materials, imports of stolen vehicles, illegal immigration networks, trafficking of human beings, sexual exploitation of children, money counterfeiting, and terrorism. Europol’s computer system (TECS) facilitates exchanges of information on persons suspected of criminal activities.
Article 89 TFEU provides for the possibility of police forces of one MemberState operating in the territory of another MemberState. Under Article 89 TFEU the conditions and limitation of the exercise of this possibility will be established by the Council, acting by unanimity after consulting the EP.
In the context of police co-operation the European Police College (CEPOL) must be mentioned. It is a police academy training senior and middle-rank police officers from the Member States. The emphasis is on the fight against cross-border and organized crime. CEPOL was set up in 2001 and is based at Bramshill, United Kingdom.
In respect of illegal drugs the European Monitoring Centre for Drugs and Drug Addiction
(EMCDDA) was set up in February 1993. It collects, examines and compares data in this area and co-operates with European and international bodies. It has its own computer network, the European Information Network on Drugs and Drug Addiction (REITOX).
Specific objective: the creation of the internal market
Article 3(3) TEU states that the Union shall establish the internal market. It appears that under the ToL the emphasis is no longer merely on the establishment of the internal market but upon the observance of guidelines as to how that market should develop. These guidelines, being at the same time constraints, require that the internal market should ensure sustainable development of the EU, should not erode the European social model and while ensuring the existence of a highly competitive market economy should respond to environmental challenges by ensuring a high level of protection and improvement of the quality of the environment and should promote scientific and technological advances. Non-economic objectives are to be pursued within the framework of the internal market such as:
Promotion of scientific and technological advance;
Combating of social exclusion and discrimination;
Promotion of social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child;
Promotion of economic, social, and territorial cohesion, and solidarity among Member States;
The respecting of the cultural and linguistic diversity of Europe and the safeguarding and developing of Europe’s cultural heritage.
It is to be noted that although the objective to ensure “free and undisturbed competition” in the internal market has ceased to be an objective of the EU, this has no impact on EU competition policy. First, the importance of maintaining fair and undisturbed competition has been confirmed in Protocol 27 on the Internal Market and Competition attached to the Treaties and, second, the removal of this objective has been explained on the ground that free and fair competition is not an objective in itself but constitutes a means to an end, that is, the creation of the internal market.
Specific objective: the establishment of Economic and Monetary Union (EMU)
Article 3(4) TEU provides that the EU shall establish “an economic and monetary union whose currency is the Euro.” One of the most controversial issues of European integration is certainly the creation of an economic and monetary union. The Treaty of Maastricht introduced Title VI containing provisions on the economic and monetary policy of the Union. Further a number of Protocols were attached to it introducing detailed provisions, including special arrangements (the so-called “opt outs”) for the UK and Denmark regarding their participation or not in the final stage of EMU, i.e. the adoption of the euro as a national currency. Neither the ToA nor the ToN nor the ToL make any significant changes in respect of EMU. The ToL confirms the general principles under which EMU is required to operate but reinforces the power of EU institutions, in particular the Commission, in respect of economic policies of the Member States.
The application of Treaty provisions relating to EMU depends on:
Whether a MemberState is classified as being a Member State with derogation (i.e. derogation from EMU).
There are two categories of Member States with derogation:
Those which have not yet satisfied the necessary conditions for the adoption of the euro;
Those which have secured for themselves opt-out possibilities from EMU, i.e. the UK and Denmark.
To them various provisions on economic and monetary policy do not apply: e.g. certain parts of the Council’s broad guidelines on economic policies; coercive measures applicable to a MemberState which runs an excessive budgetary deficit; objectives and tasks relating to the ESCB, rules concerning the euro and other matters mentioned in Article 139(2) TFEU.
Whether a Member State has adopted the Euro. If so, the Treaties provisions on EMU are fully applicable to it. Sweden is in a special situation as it has satisfied the convergence criteria and thus can join the Euro zone but as a result of a negative referendum decided not to adopt the euro as its currency.
Sweden is required to comply with the EMU provisions in the Treaties unless they are specifically addressed to the Member States which have adopted the Euro. At the time of writing, 16 Member States have adopted the euro as their national currency.
Those Member States are no longer able to control important aspects of their economic policy, especially by setting interest rates or devaluing their currency. This is the main disadvantage of EMU. However, this must be considered in the light of the growing interdependence and internationalization of national economies. Does any country actually have any real economic sovereignty left to exercise? On the one hand, interest rates depend on market forces; on the other, devaluation of a national currency is a temporary measure which “backlashes” by creating inflationary consequences which lead to pressure for higher wages and so undermines the competitiveness of national products.
Specific objective: the affirmation and promotion of the EU’s values worldwide and the protection of EU citizens outside the EU
Article 3(5) TEU defines the objectives of the EU with regard to the wider world. The EU will, throughout the world, promote the values upon which it is based and reinforce the protection of EU citizens while they are outside the EU. The ToL expressly confirms the commitment of the EU to the eradication of world poverty and the protection of human rights worldwide, in particular the rights of the child. The international action of the EU is to be carried out in accordance with international law, including the principles contained in the UN Charter.
84. Regulation 44/2001 [2001] OJ L12/1.
85. Regulation 2201/2003 [2003] OJ L338/1.
86. [2004] OJ L143/15–39.
87. [2000] OJ L160/1.
88. [2001] OJ L174/1–24.
89. [2003] OJ L26/41–47.
90. [2004] OJ L261/15.
91. [2001] OJ L82/1.
92. [2001] OJ L82/1.
93. [2004] OJ L261/15.
94. [2001] OJ L174/25–31.
95. [2009] OJ L168/35–40.
96. [2002] OJ L190/1.
97. [2003] OJ L196/45.
98. [2008] L350/72–92. The Decision will enter into force on 19 January 2011.
99. See Case C-176/03 Commission v Council [2005] ECR I-7879 and Case C-440/05 Commission v Council [2007] ECR I-9097.
100. [2009] OJ L121/37.
AIDE-AIDE-MÉMOIRE
Values on which the EU is founded:
Respect for human dignity;
Freedom;
Democracy;
Equality;
The rule of law;
Respect for human rights, including the rights of persons belonging to minorities.
Under Article 7 TEU any breach or a risk of breach of EU values by a MemberState may entail a warning for the offending State or a suspension of rights deriving from EU membership.
Further, the adherence to EU values is a necessary condition for admission of new States to the EU. Objectives of the EU
Objectives of the EU are listed in Article 3 TEU as follows:
The overreaching objectives of the EU are the promotion of peace, the EU’s values and of the well-being of its people.
Specific objectives:
A. The creation of the area of FSJ;
B. The establishment of the internal market which is to pursue the following goals:
Achieving sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment;
The promotion of scientific and technological advance;
The combating of social exclusion and discrimination;
The promotion of social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child;
The promotion of economic, social and territorial cohesion, and solidarity among Member States;
The respecting of the cultural and linguistic diversity of Europe and the safeguarding and developing of Europe’s cultural heritage;
C. The establishment of EMU. At the time of writing 16 Member States have adopted the euro as their national currency;
D. Confirmation and promotion of EU values and interests worldwide and contribution to the protection of EU citizens outside the EU.
RECOMMENDED READING
Books
Berglund, M., Cross Border Enforcement of Claims in the EU: History, Present Time and Future, 2009, London: KLI
Williams, A., The Ethos of Europe, 2010, Cambridge: CUP
Articles
Bantekas, I., “The Principle of Mutual Recognition in EU Criminal Law”, (2007) 32/2 ELRev, p 365 Chia, J., “Immigration and its Imperatives”, (2009) 15 ELJ, p 683 Dawes, A. and Lynskey, O., “The Ever-longer Arm of EC law: The Extension of Community Competence into the Field of Criminal Law” (2008) 45 CMLRev, p 131
Iglesias Sánchez, S., “Free Movement of Third Country Nationals in the European Union? Main Features, Deficiencies and Challenges of the new Mobility Rights in the Area of Freedom, Security and Justice” (2009) 15 ELJ, p 791
Murphy, C., “Fundamental Rights and Security: The Difficult Position of the European Judiciary” (2010) 16 EPL, p 289
Tulibacka, M., “Europeanization of Civil Procedures: In Search of a Coherent Approach” (2009) 46 CMLRev, p 1527
Von Bogdandy, A., “Founding Principles of EU Law: A Theoretical and Doctrinal Sketch” (2010) 16 ELJ, p 95
