(45) The EU Charter of Fundamental Rights

An area of freedom, security and justice: general aspects

Charter45

The Area of Freedom, Security and Justice Before and After the Lisbon Treaty

Sources of Law and Primacy

Judicial Review

The fall of the pillar structure attributes general jurisdiction to the Court of Justice and most notably removes the limitations concerning preliminary rulings in the Area of Freedom, Security and Justice. It will be remembered that in the field of visas, asylum, immigration and judicial cooperation in civil matters, only higher national courts were entitled to refer cases to the ECJ pursuant to Art. 68 TEC, 29 which undoubtedly compromised the uniform application of EC law. Moreover, the different standard afforded to EU and foreign citizens was hard to combine with the need to guarantee the  protection of fundamental rights within the EC legal order. Finally, it should not be forgotten that, unlike the Member States, the Council and the Commission, the European Parliament was prevented from asking the ECJ to rule on the interpretation of measures adopted on the basis of Title IV of the EC Treaty.

On the other hand, pursuant to Art. 35 EU each Member State was free to accept the jurisdiction of the Court of Justice by making a declaration in which it would specify whether the latter applied to all domestic courts, or to last instance tribunals only. This situation was in contrast with the principle of equality, the uniform interpretation of the Law and ultimately fundamental rights. Furthermore, Art. 35 TEU did not grant the European Parliament and individuals standing in annulment actions against Third Pillar acts. Lastly, the provision lacked any reference to the infringement procedure and actions for failure to act.

Under the Lisbon Treaty, these specificities disappear with positive repercussions on the right to an effective judicial remedy and to a fair trial, enshrined in Art. 47 CFR. In this sense, the restrictive conditions set out in Art. 230 (4) TEC have been partially compensated by the new wording of Art. 263 (4) TFEU, which provides that natural and legal persons may bring proceedings against a regulatory act if they are directly affected by it and if it does not entail implementing measures without needing to demonstrate “individual concern”.

As anticipated, this full jurisdiction of the Court will become operative only in 2014.30 In addition it should not go unnoticed that the limitations provided in Art. 68 (2) TEC and Art. 35 (5) EU, are confirmed in Art. 276 TFEU, according to which: In exercising its powers regarding the provisions of Chapters 4 and 5 of Title V of Part Three relating to the area of freedom, security and justice, the Court of Justice of the European Union shall have no jurisdiction to review the validity or proportionality of operations carried out by the police or other law-enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.

 

 Fundamental Rights Protection in Police and Judicial Cooperation in Criminal Matters: Legal Framework

 

The fall of the pillar structure and the binding character of the Charter favors a more appropriate balance between the different founding elements of the AFSJ with respect to what occurred in the past. Before the Lisbon Treaty the limited competences of the Court of Justice and the intergovernmental method used to pass legislation were capable of seriously impinging on the liberty of citizens.31 The main measures adopted in the Third Pillar aimed at enhancing cooperation between police and judicial authorities in combating serious crimes,32 the so-called security aspect of the AFSJ, but this was not accompanied by a higher degree of protection of the rights of defense of individuals.33 Most probably, the European Commission and the Member States felt that national legislations would have been sufficient in this regard (!).

The majority of the acts adopted in this area is the expression of the principle of mutual recognition between Member States34; a principle created by the Court of Justice in the First Pillar and extended to the Third Pillar also thanks to the European Council of Tampere. On this occasion the Heads of State and Government considered it as the cornerstone of judicial cooperation in both civil and criminal matters, together with the

harmonization of the procedural rights and access of justice. As a consequence, the Commission and the Council were invited to act consequently ensuring an adequate level of legal aid in cross-border cases throughout the Union. In the period following the Tampere Summit, however, the focus was on ‘repression’ rather than on procedural guarantees. European criminal law must be understood as a law used not only against persons, but also to protect persons. The protection of fundamental rights is an unfailing necessity in all areas of EU action and not only as a limit to optimal cooperation in criminal matters. The subordinate position that rights have instead assumed in recent years certainly does not match the ‘constitutionalization’ of the Charter of Fundamental Rights.

Judicial cooperation mainly depends on mutual trust between the Member States concerning their criminal systems; the harmonization of procedural rights thus becomes a priority. In order to facilitate the implementation of the principle of mutual recognition, action should be taken to guarantee common minimum standards. This explains why, on the one side, the European Commission submitted a proposal for a Framework Decision on five basic procedural rights in criminal proceedings.35 On the other hand, in spite of wide academic support, this proposal remained stalled in the Council for more than 5 years. And this independently of the fact that its contents have been substantially diluted in the quest for unanimous consent. Moreover, the Multiannual Hague Programme on the strengthening of the Area of Freedom, Security and Justice has underlined that “the realization of mutual recognition implies the development of equivalent standards for procedural rights in criminal proceedings”. The adoption of the proposal was obstructed by those States fearing a duplication of the ECHR content, with possible repercussions on the consistency between the case law of the Strasbourg and Luxembourg Courts, as well as on legal certainty for EU citizens and Member States.36

Although all Member States are parties to the Convention, experience shows that this in itself does not always provide a sufficient degree of trust in the criminal justice systems of other Member States. To enhance mutual trust within the European Union, it is important to establish EU standards for the protection of procedural rights. In 2009, probably because of the imminent entry into force of the Lisbon Treaty, the need to balance security and justice became a priority for all European Institutions. The strengthening of rights is seen as the essential element not only to develop confidence between national criminal authorities, but also to increase the confidence of European citizens in the European Union.

The Council decided to use a step-by-step approach, focusing its attention on each individual measure. In a resolution on a roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings it included a non exhaustive list of measures to be adopted.37 It is important to note that the Council specified that any new EU legislative acts in this field should be consistent with the minimum standards set out in the ECHR, as interpreted by the European Court of Human Rights. In accordance with this roadmap, the Commission presented a proposal for a Framework Decision on the right to interpretation and to translation in criminal proceedings that constituted the right which appeared to be the least controversial in the preceding discussions.

With the entry into force of the Lisbon Treaty this proposal needs to be transformed into a Directive which will be adopted pursuant to the ordinary legislative procedure and will be subject to full judicial scrutiny by the EUCJ. It seems that a number of Member States want to take initiative in this regard; but it cannot be excluded that the Commission will advance its own autonomous proposal. If that were the case, the responsible committee within the European Parliament will have to deal with both draft bills, but, according to Art. 44 of the Rules of Procedure, it will draft a single report indicating “to which text it has proposed amendments and it shall refer to all other texts in the legislative resolution”. This act would be the first to be adopted by the Council acting by a qualified majority together with the European Parliament. Certainly, for the first time in this area the European Parliament can play a key role and can therefore promote fundamental rights protection in the European Union.

Following the Tampere European Council of 1999, the Lisbon Treaty explicitly underlines the importance of fundamental rights in the Area of Freedom, Security and Justice.38 A compromise had to be found between mutual recognition of judicial decisions and the harmonization of criminal law and the Lisbon Treaty appears to have acknowledged the complementary nature of these objectives.39 Moreover, unlike the previous Art. 29 TEU, Art. 67 (3) TFEU provides that the approximation of criminal law.

 

Some Criticalities: Due Process, Judicial Review and Data Protection

 

As previously seen, the limited role played by the Court in the Third Pillar was due to the intergovernmental character of judicial cooperation in criminal matter. In Segi, the Court acknowledged these limits, affirming that “there is no complete system of actions and procedures designed to ensure the legality of the acts of the institutions in the context of Title VI”.41 Nevertheless, it argued that the appellants had not been “deprived of all judicial protection”.42 In reaching the same conclusion, AG Mengozzi claimed that in the Third Pillar the right to judicial protection was ensured because “the judicial system of the Union [. . .] does not consist solely of actions that can be brought before the Court of Justice but also of those that can be brought before national courts”. In other words, in a multilevel system of protection of fundamental rights, the possibility to obtain justice at a national level is regarded as capable of compensating the signaled deficiencies of the Third Pillar.

This approach was followed by the Court of First Instance in Ayadi,43 concerning the freezing of funds of persons/entities included in a black list. But in the subsequent Kadi case44 the Court of Justice required the Council and the Commission to take the appropriate measures in order to guarantee the protection of fundamental rights and in particular of the right to a fair trial.45 It is beyond doubt that the Lisbon Treaty offers a concrete answer to this need: the extension of the competencies of the EUCJ and  the legal force attributed to the Charter will lead the former to assume the role of a constitutional court having the last word on the compatibility of EU legislation with the procedural rights enshrined in the latter.46 Moreover, the fall of the pillar structure eliminates one of the main problems that the Legislator was called to handle in adopting acts within the Area of Freedom, Security and Justice; i.e. the choice of the correct legal basis. The Court of Justice ruled on this issue many times in fact. In some cases it demanded the adoption of the act under the First Pillar, in others under the third. In the celebrated PNR judgment, the Court annulled both the Council decisions on the conclusion of an Agreement between the European Community and the United States of America on the processing and transfer of Passenger Name Records (PNR) data and the Commission Decision on the adequate protection of personal data contained in the PNR given that their objective was not to develop functioning of the internal market, but to prevent and to fight against terrorism.47

In this instance, the Court did not consider all pleas presented by the European Parliament, namely those concerning the respect of the right to data protection, but tackled the problems connected to the division between pillars, and to the exchange of personal data, essential for the development of the European Area of Freedom, Security and Justice (AFSJ).48

It is also worth mentioning that the Court49 ruled on the on the correct choice of the legal base of Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks.50 Unlike the previous PNR case, the action brought by Ireland relates solely to the choice of the legal basis and not to any possible infringement of fundamental rights arising from interference with the exercise of the right to privacy contained in Directive 2006/24.

Moreover, unlike the decision on the processing and transfer of PNR, which concerned a transfer of personal data within a framework instituted by the public authorities in order to ensure public security, Directive 2006/24 covers the activities of service providers in the internal market and it does not contain any rule governing the activities of public authorities for law-enforcement purposes. The Court therefore affirmed that the provisions of this Directive are essentially limited to the activities of service providers and do not govern access to data or the use thereof by the police or judicial authorities of the Member States. Furthermore, the measures provided for by Directive 2006/24 do not, in themselves, involve intervention by the police or law-enforcement authorities of the Member States. In fact, the service providers are to retain only data that is generated or processed in the course of communication services and is closely linked to the exercise of the commercial activity of the service providers. For these reasons, the Court dismissed the action concluding that Directive 2006/24/EC was directed essentially at the activities of service providers in the relevant sector of the internal market.

With the Lisbon Treaty and the collapse of the pillar structure, the issue of the incorrect legal base becomes less dramatic. The two judgments mentioned above regarded the collection and the exchange of personal data, an aspect that has assumed progressive importance in the AFSJ. Preliminary to any further consideration on the matter is the difference between data protection and privacy, although both are fundamental rights. Art. 7 and Art. 8 of the Charter represent this distinction well. Art. 7, concerning privacy, reflects an updated version of the content of Art. 8 ECHR;  Art. 8 instead is based on the European Convention No. 108/1981 and the following Directive 95/46/EC on data protection. It is important to underline that the scope of application of Art. 8 is wider than that of the Directive, which is limited to internal market situations only.

The system of data protection within the AFSJ is a patchwork of provisions, comprising an ever increasing number of instruments: international conventions,51 bilateral agreements,52 community instruments,53 ad hoc provisions.54 The proliferation of crime and non crime data bases as well as the promotion of their interoperability;55 the importance of delivering quick responses; the absence of a comprehensive regulation due to the difficulty to legislate under the unanimity voting rule; the exchange of sensitive data between national law enforcement authorities under the principle of availability; the broader use of biometric data; the involvement of the private sector in the collection of personal data and the exchange with third countries – all of these factors show how the exchange of information has become progressively an inescapable need.56 The reason for this can be traced to the fact that the development of data bases (e.g. VIS and Eurodac), and their interoperability, is no longer solely linked to the development of community policies (in particular for immigration purposes), but is used for enforcement purposes alike. 57 It is precisely this condition that raises doubts about the respect of the principle of limited purposes, which constitutes one of the fundamental principles of data protection contained not only in the European Convention No 108/1981, 58 but also in the Directive 95/46/EC.

Stronger needs to fight against terrorism and organized crime pressed the Community legislator to adopt measures of surveillance of movements and communications of European citizens and foreigners which reveal the particular importance that the European Union, greatly influenced by the US,59 attributes to the security aspect of the AFSJ. Such measures were not accompanied by the adoption of a specific act for the protection of data in the Third Pillar.

Only recently, after many years of discussion within the Council, a “partial” change in the balance between security and freedom/justice is represented by the adoption of the framework decision of the data protection in the Third Pillar.60 Indeed, although this act tries to offer a comprehensive framework of data protection in the field of police and judicial cooperation, it ultimately amounts to a race to the lowest common denominator and has raised some criticism.61 Its scope is limited: first, it does not cover internal situations and processing operations by Europol and Eurojust; second, the use of personal data is subject to a special regime. So, even if the EU legislator adopted a specific act concerning data protection in the Third Pillar, the legal framework continues to be a patchwork. The most important step towards the balance between security and freedom/justice is made by the Lisbon Treaty with the introduction in primary law of a general provision on data protection, Art. 16 of the TFEU62. The data protection provision will be applicable to all areas of EU law, including the area of police and judicial cooperation. It is important to note that Art. 16 (1) TFEU, by reflecting the content of Art. 8 of the Charter, gives additional value to fundamental rights.63 Moreover, the use of the ordinary legislative procedure in laying down rules on data protection, prescribed in Art. 16 (2), entails that the European Parliament can strongly influence the adoption of acts that have implications for data protection. Moreover, the European Parliament could trigger the adoption of security measures: according to Art. 87 (2)(a) and Art. 88 (2)(b) TFEU, it establishes, together with the Council, measures concerning the collection, storage, processing, analysis and exchange of relevant information in police cooperation and include them among tasks of Europol.

The limitations that characterized the Third Pillar and marginalized the role of the European Parliament were overcome by the Treaty of Lisbon. The ordinary legislative procedure reflects the need to obtain the European Parliament’s consent for the conclusion of international agreements, as will be the case with the new agreement on PNR between the EU and the US and the new SWIFT agreement. Having a final say in the conclusion of international treaties covering data protection and data access for security purposes, the European Parliament acquires an important power in the context of the internationalization of data access.

But the mere entry into force of the Lisbon Treaty does not in itself change the state of affairs since it will be necessary to specify the right to data protection amending or modifying Directive 95/46/EC and Framework-Decision 2008/977/JHA. In fact, Art. 9 of Protocol No 36 provides that the legal effects of the acts adopted prior to the entry into force of the Treaty of Lisbon shall be preserved until those acts are repealed, annulled or amended in implementation of the Treaties.

Moreover, Declaration No 21 of the Lisbon Treaty notes that specific rules on the protection of personal data and the free circulation of such data in the area of judicial and police cooperation in criminal matters may prove necessary because of the specificities of this particular field of law. In addition, it should not be forgotten that the scope of Art. 16 TFEU considering the particular position of the United Kingdom and Ireland. According

to Art. 6a of Protocol No 21 annexed to the Treaty, these States shall not be bound by the rules adopted pursuant to that provision where they are not bound by the relevant rules governing the forms of judicial and police cooperation in criminal matters or police cooperation.

Moreover, even if Art. 16 TFEU covers all areas of EU law, a particular situation concerns the Common Foreign and Security Policy (CFSP). Art. 39 TEU now states that: In accordance with Article 16 of the Treaty on the Functioning of the European Union and by way of derogation from paragraph 2 thereof, the Council shall adopt a decision laying down the rules relating to the protection of individuals with regard to the processing of personal data by the Member States when carrying out activities which fall within the scope of this Chapter, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.

This means that even if the pillar structure has been repealed, a specific procedure (not the ordinary one) will apply to Member States while implementing measures falling within the scope of the Common Foreign and Security Policy. In spite of these remaining elements of the pillar structure, the Treaty of Lisbon marked the inclusion of data protection in the filed of CFSP. In fact, the Second Pillar lacked a legal regime concerning data protection. This vacuum was particularly important considering that the “blacklists” of persons suspected of terrorism are created collecting data and they are publicized in order to subject them to freezing measures. In this regard, it is interesting to note that in the judgments by the Court of First Istance (hereafter CFI or GC) CFI and the ECJ concerning these “blacklists”, no reference was made to data protection, probably because it was not invoked by the applicants. Only in the Hassan case64 did the CFI recognize the right to privacy (not specifically the right to data protection) as a part of jus cogens. In this particular case, however, it considered that there had clearly been no such interference with the applicant’s exercise of the right to respect for private life. In spite of the lack of any express reference to the respect of data protection by the Court of Justice, the elements of data protection (the right of access to personal data, the right to be informed, the right to receive compensation for damage suffered, the data quality, the right to a judicial remedy) are used to ensure the right to defence and judicial protection.65

To conclude, the Stockolm programme on the AFSJ (2010–2014) and the provisions of the Treaty of Lisbon seem to urge the European Union to develop not only the exchange of data to improve police and judicial cooperation in criminal matters, but also to give prominence to the data protection of individuals. But this intention must translate itself  into legislative activity in this direction and it is still too early to express a conclusive assessment in this regard.

 

The Effects of a Binding EU Charter of Fundamental Rights in the Area of Freedom, Security and Justice After Lisbon

 

The Lisbon Treaty places fundamental rights at the core of the realization of an Area of Freedom, Security and Justice. According to Art. 67 TFEU: “[T]he Union shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters”.66 Although security continues to represent an essential feature, the focus on individual liberties derives from the newly binding nature attributed to the Charter. In the Preamble of the latter, in fact, it is clearly stated that “the Union places the individual at the heart of its activities by creating an area of freedom, security and justice”.

The innovations described in the previous section compensate the many gaps which characterized the protection of fundamental rights in the former Third Pillar. For example, the Data Protection Framework Decision fails to meet the criteria laid down in Art. 8 CFR and Art. 16 TFEU and will thus need to be substituted by a directive. However, it may be wiser to adopt a more general legislative measure on data protection (i.e. not limited to the ASFJ), for example by amending Directive 95/46/EC. The prescriptions which can be found in Title VI of the Charter must be observed and call for the adoption of specific rules under the new legislative mechanism foreseen for the harmonization of procedural guarantees.

The EU action in the field of substantive and procedural criminal law has raised doubts regarding the respect of the principle of legality, one of the cornerstones of modern criminal law. In this regard, the Framework Decision on combating terrorism67 and the Framework Decision on European ArrestWarrant are particularly noteworthy. As to the former, legal commentators have indicated that the definition of the constitutive elements of the crime of terrorism are too vague and general.68

This seems difficult to combine with the aforementioned principle insofar as it fails to offer a sufficient degree of legal certainty. In relation to the Framework Decision on the European Arrest Warrant, it may be recalled that the Belgian Constitutional Court submitted a preliminary ruling on its validity in which it considered that the offences indicated therein (Art. 2(2)) were vague inasmuch as they were not accompanied by any legal definition.69

The Court of Justice, having asserted that the Union is founded on the principle of the rule of law, affirmed that the principle nullum crimen, nulla poena sine lege, one of the general legal principles common to the constitutional traditions of the Member States, enshrined in various international treaties (including the European Convention on Human Rights) and in Art. 49 CFR, was not infringed because the Framework Decision did not seek to harmonize the criminal offences in relation to their constituent elements or the penalties which they attract. The definition of those offences and of the applicable penalties are left to national law.

On the other hand, the democratic deficit characterizing the decision making process applicable to Third Pillar acts cannot be ignored. As indicated, the possible infringement of formal aspects of the principle of legality is partially remedied following the entry into force of the Lisbon Treaty, which provides for the ordinary legislative procedure involving the Council of Ministers and the Parliament alike.

In the future, the need to comply with the principle of legality is even more important. First, the latter is expressly mentioned in Art. 49 CFR, which shall be observed in light of its newly binding force. Second, the extended competence of the Court of Justice will ensure adequate judicial control over possible violations thereof. Third, it should be noted that directives defining criminal offences and sanctions in areas of particularly serious crime with a cross-border dimension, if clear, precise and unconditioned, will have direct effect.70

In adopting new legal measures, the Institutions have to systematically assess the compatibility of EU legislation with fundamental rights. The same holds true for Member States when adopting the relevant implementing measures. Citizens are provided with a system of redress against acts of misadministration or the abuse of power across the whole range of EU activity. After a 5 year transitional period, the Court of Justice will have full competences in the AFSJ and, similarly to what happens with national Constitutional Courts, may be called upon to balance conflicting interests and rights. In doing so it will not be forced to outsource, being able to rely directly on a binding Charter of Fundamental Rights, which finally has the status of primary law.

The binding nature of the Charter will also allow the development of a more coherent Human Rights policy, promoting a common standard of fundamental rights protection independently of the internal or external projection of the specific policy under consideration.71 In particular, the binding nature of the Charter implies that the external action in police and judicial cooperation in criminal matters is fully subject to fundamental rights. Most notably, the external volet of the AFSJ will be confronted with the right to life and the prohibition of the death penalty, the integrity of the person and the prohibition of torture and inhuman or degrading treatments, all of which are explicitly protected by the Charter.

In spite of the growing importance of the external dimension of the AFSJ, the Lisbon Treaty took it into consideration only in two provisions: Art. 78(2)(g) TFEU declares that special attention should be paid to cooperation with third countries for the purpose of managing inflows of people applying for asylum or subsidiary or temporary protection; Art. 70(3) TFEU states that the EU may conclude agreements with third countries for the readmission of illegal immigrants into their country of origin or provenance. But the significant changes introduced by the Lisbon Treaty concerning the nature of the Charter, the abolition of the pillar structure and the application of the ordinary legislative procedure, may have a highly positive impact on the external dimension of the AFSJ.

Nevertheless, a number of factors are likely to compromise the Union’s ability to act consistently and to speak with one voice on the international scene: the position of Ireland, Denmark and the United Kingdom; the “emergency brake” mechanism which can be invoked to prevent the application of the ordinary legislative procedure72 and the admissibility of enhanced cooperation between at least nine Member States.73 But the most dangerous attack on “the political project of having a sole and unique area where a common level of all its elements is guaranteed”74 is represented by the United Kingdom and Polish Protocol on the Charter. The risk of creating different standards of fundamental rights protection, however, is mitigated by the fact that the Charter merely codifies rights and principles which are common to the constitutional traditions of the Member States, included in the ECHR, and that constitute general principles of the Union.75

This situation may affect the external dimension of the AFSJ. Correctly, the European Parliament in a resolution on the Stockholm Programme,76 speaking on the need to promote the respect and the protection of human rights and fundamental freedoms, stated that in order to acquire and retain the necessary external credibility, it would be necessary to assure an adequate and consistent internal human rights policy.

In such a context, to ensure coherence and the sustainability of the AFSJ it will be necessary that Commission, European Parliament and Court use the powers that the Lisbon Treaty has attributed them most effectively. Having become legally binding, the Charter demands that individual rights are adequately balanced against the interest of the Union, which undoubtedly strengthens the freedom and judicial dimensions of the AFSJ.

 

29. According to certain authors higher courts could (i.e. were not under an obbligation) request a preliminary ruling to the Court of Justice (H. Labayle, ‘Un espace de liberté, de sécurité et de justice’, (1997) Revue trimestrielle de Droit européen 863, P. Wachsmann, ‘Les droits de l’homme’, (1997) Revue trimestrielle de Droit européen 890; K. Leanaerts„ E. De Smijter, ‘Le Traité d’Amsterdam’, (1998) J. Trib. Droit européen 30 and B. Nascimbene, ‘L’incorporazione degli Accordi di Schengen nel quadro dell’Unione europea e il futuro ruolo del Comitato parlamentare di controllo’, (1999) Rivista Italiana di Diritto Pubblico Comunitario 738). Other commentators opine that higher national judges were required to submit a preliminary ruling to the Court of Justice (L.S. Rossi, ‘Verso una parziale “comunitarizzazione” del terzo pilastro’, (1997) Il Diritto dell’Unione euopea 249; C. Curti Gialdino, ‘Schengen et le troisième pilier: le contrôle juridictionel organisé par le traité d’Amsterdam’, (1998) Revue du Marché de l’Union européenne 105 and H. Bribosia, ‘Liberté, sécurité et justice: l’imbroglio d’un nouvel espace’, (1998) Revue du Marché de l’Union européenne 34.

30. Art. 10 of Protocol No 36 on transitional provisions. It is provided that, as a transitional measure, the powers of the Court of Justice are to remain the same with respect to acts in the field of police cooperation and judicial cooperation in criminal matters which have been adopted before the entry into force of the Treaty of Lisbon. This transitional measure is to cease to have effect 5 years after the date of entry into force of the Treaty of Lisbon.

31. E. Baker, C. Harding, n. 12 above, at 40.

32. See the European Arrest Warrant and the surrender procedures, Council Framework Decision 2002/584/JHA of 13 June 2002, [2002] OJ L 190/1, that has replaced the extradition procedures; see the European Evidence Warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters, Council Framework Decision 2008/978/JHA of 18 December 2008, [2008] OJ L 350/72. See also Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence; Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings, [2008] OJ L 220/32; Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgements in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union, [2008] OJ L 327/27; Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions, [2008] OJ L 337/102.

33. According to E. Baker, C. Harding, “in a context where the Union’s legal regime to protect fundamental rights is widely regarded as inadequate, its deficiencies with respect to the Third Pillar are particularly acute”, n. 12 above, at 45.

34. Among these acts the most important is the European Arrest Warrant

35. European Commission, Proposal for a Council Framework Decision on certain Procedural Rights in Criminal Proceedings throughout the European Union, COM (2004)328, 24 April 2004. The five rights mentioned in the proposal of Framework Decision were: right to legal advice, right to interpretation and translation for non-native defendants, right to specific attention for persons who cannot understand or follow the proceedings, right to communication and/or consular assistance, the way in which the suspect/defendant is notified of his rights.

36. There are the same fears that accompanied the elaboration and adoption of the Charter.

37. Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings,[2009] OJ C 295/1. The measures included into the roadmap are: translation and interpretation, information in Rights and Information about the Charges, Legal Advice and Legal Aid, Communication with Relatives Employers and Consular Authorities, Special Safeguards for Suspected or Accused Persons who are Vulnerable, and finally a Green Paper on Pre-Trial Detention.

38. Art. 61 TFEU.

39. C. Ladenburger, ‘Police and criminal law in the Treaty of Lisbon. A new dimension for the community method’, n. 13 above, at 35.

40. C. Sotis, ‘Il Trattato di Lisbona e le competenze penali dell’Unione europea’, (2009) La Magistratura 27.

41. Case C-105/03 Pupino, n. 14 above, para 35.

42. Case C-355/04 P Segi, n. 18 above, para 51.

43. Case T-253/02 Ayadi [2006] ECR II-2139.

44.Joined cases C-402/05 P and C-415/05 P Kadi and Al Barakaat [2008] ECR I-6351.

45. See further in this volume L. Paladini, Chapter 14.

46. On the external supervision carried out by the Strasbourg Court upon accession to the European Convention on Human Rights, see in this volume G. Di Federico, ‘Chapter 2’. It is important to note that some limitations continue to characterise the right to an effective remedy within the EU judicial system, due to the restrictions resulting from Art. 263 (4) TFEU.

47. Joined cases C-317/04 and C-318/04 European Parliament v. Council and Commission [2006] ECR I-4721.

48. The different understanding of data protection and privacy further complicate the issue, since the US approach to privacy protection relies on industry-specific legislation, regulation and self-regulation, whereas the European Union relies on a comprehensive privacy legislation. In particular, the judicial system of the United States does not provide effective remedy because it only provides for administrative redress.

49. Case C-301/06 Ireland v. Parliament and Council [2009] ECR I-593.

50. Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC, [2006] OJ L 105/54.

51. European Convention of Fundamental Rights, European Convention No 108/1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data.

52. Agreement between the EU and the USA on PNR, Agreement between the EU and the USA on SWIFT; Agreement between the EC and Australia on PNR, Agreement between the EC and Canada on PNR; Agreement between Europol and third countries (Europol-USA, Canada, Iceland, Switzerland), and Treaty of Prüm.

53. Directive 95/46/EC on the protection of individuals with regard to the protection of personal data and on the movement of such data, [2005] OJ L 281/31; Directive 97/66/EC concerning the processing of personal data and the protection of privacy in the telecommunication sector, [1998] OJ L 24/1; Directive 2002/58/EC on privacy and electronic communications, [2002] OJ L 201/37.

54. Eurodac, Schengen Information System (SIS), System of Information of Europol, System of Information of Eurojust Visa Information System (VIS).

55. According to the Communication of the Commission, COM (2005)597, interoperability is the ability of IT systems and of the business processes they support to exchange data and to enable the sharing of information and knowledge.

56. V. Mitsilegas, ‘The third wave of Third Pillar law. Which direction for EU criminal justice?’, (2009) 34 European Law Review 557.

57. An example is Council Decision 2008/633/JHA concerning access for consultation of the VIS by designated national authorities and Europol for the purposes of the prevention, detection and investigation of terrorism and other serious criminal offences.

58. For many years this convention represented the text of reference for EU instruments in the Third Pillar, providing the minimum standard of data protection.

59. P. Pawlak, ‘Made in the USA? The influence of the US on the EU‘s data protection regime’, accessible at http://www.ceps.be. The author affirms that “while the EU is convinced of the supremacy of ist data protection system, many aspects oft he US approach to data protection could be beneficial to EU citizens”, at 21.

60. Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters, [2008] OJ L 350/60.

61. The European Data Protection Supervisor adopted three opinions in 2005, 2006, 2007.

62. Art. 16 TFEU states: “everyone has the right to the protection of personal data concerning them”.

63. H. Hijmans, A. Scirocco, ‘Shortcoming in EU data protection in the third and second pillars: Can the Lisbon Treaty be expected to help?’, (2009) 46 Common Market Law Review 1485, at 1517.

64. Case T-49/04, Hassan [2006] ECR II-52.

65. Case C-266/05 P Sison [2007] ECR I-1233; Case T-284/08, Organisation des Modjahedines du people d’Iran [2008] ECR II-3487; H. Hijmans, A. Scirocco, ‘Shortcoming in EU data protection in the third and second pillars: Can the Lisbon Treaty be expected to help?’, n. 63 above, 1509.

66. Art. 29 TEU (Nice Treaty) stated that: “Without prejudice to the powers of the European Community, the Union’s objective shall be to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action among the Member States in the fields of police and judicial cooperation in criminal matters and by preventing and combating racism and xenophobia”.

67. Council Framework Decision on combating terrorrism, 13 June 2002, 2002/475/JHA, [2002] OJ L 164/3.

68. A. Weyembergh, V. Santamaria, ‘Lutte contre le torrorisme et droits fondamentaux dans le cadre du trosième pilier. La décision-cadre du 13 juin 2002 relative à la lutte contre le terrorisme et le principe de la légalité’, in J. Rideau, (ed.), Les droits fondamentaux dans l’Union européenne. Dans le village de la Constitution européenne (Bruylant, 2009) 200; see M.L. Cesoni, ‘La mise en oeuvre ne droit européen des dispositions internationals de lutte contre le terrorisme’, (2004) Revue Générale de Droit

Public International 475.

69. Case C-303/05 Advocaten voor de Wereld [ 2007] ECR I-03633.

70. On the criminal competences of the EU, see C. Sotis, ‘Il Trattato di Lisbona e le competenze penali dell’Unione europea’, n. 40 above, at 20.

71. See also L. Ficchi, ‘EU Member States and candidate countries facing a binding Charter of Fundamental Rights: What’s new?’.

72. According to Art.s 82(3) and 83(3) TFEU, where a member of the Council “considers that a draft directive (. . .) would affect fundamental aspects of its criminal justice system, it may request that the draft directive be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, and in case of a consensus, the European Council shall, within 4 months of this suspension, refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure”.

73. See Art. 82(3), 83(3) and 87(3) TFEU.

74. S. Carrera, F. Geyer, ‘The Reform Treaty and Justice and Home Affairs: Implications for the Common Area of Freedom, Security and Justice’, in E. Guild, F. Geyer, (eds.), Security versus Justice? Police and Judicial Cooperationin the European Union (Ashgate, 2008) 303.

75. L.S. Rossi, ‘How fundamental are fundamental principles?’, in G. Venturini, S. Bariatti (eds.), Individual rights and international justice – Liber Fausto Pocar (Giuffré, 2009) 801.

76. European Parliament, resolution 25 November 2009 on Multi-annual programme 2010–2014 regarding the area of freedom, security and justice (Stockholm programme), P7_TA-PROV(2009)0090.

 

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