General Introduction

Report
Standard training programme in judicial
cooperation in criminal matters
within the European Union
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Version: 3.0
Last updated: 20.12.2012
The European Judicial
Training Network
With the support of
the European Union
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(logo of the training organiser)
Training organised by
(name of training organiser)
on (date) at (place)
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Title (of the training/ module)
The European Judicial
Training Network
With the support of
the European Union
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Module 1
General introduction:
judicial cooperation in criminal matters
in the European area of freedom,
security and justice.
Version: 3.0
Last updated: 20.12.2012
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Contents
Introduction: 3 general preliminary comments
2. History and institutional framework
 The starting point: the silence of the Treaty of Rome
 The launch of judicial cooperation within the EU
 The Maastricht Treaty
 The Treaty of Amsterdam and the Treaty of Nice
 The Lisbon Treaty and the current system
3. The European criminal law-enforcement area and its components
4. A European criminal law-enforcement area founded on national criminal
procedure and criminal law
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1.
> Module 1: General introduction
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General preliminary comments
1. Diversity of geographical settings (global, regional, subregional)
2. Being part of a wider ‘Justice and Home Affairs’ field, and
part of the overall objective of the EU ‘area of freedom,
security and justice’ or ‘AFSJ’
3. The extremely sensitive nature of criminal matters:
• close connection with the nation-state and national
sovereignty
• complex relationship between criminal matters and
fundamental rights: the sword/shield function of
criminal law
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1. Introduction
2. History
2.1. The starting point
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Silence of the Treaty of Rome on criminal matters
=> Consequences regarding the competence of the European
Community in criminal matters (Commission v Council cases
9/09/05 and 23/10/07)
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2. History
2.2. The launch of cooperation in criminal matters within the
EU
 The 1970s: combating European terrorism
 The 1980s: compensatory measures accompanying the
abolition of checks at internal borders
 Schengen cooperation (laboratory of the EU)
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=> Cooperation outside the EC institutional framework of a purely
intergovernmental nature (unanimity, democratic deficit and
jurisdictional deficit)
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2. History
• Unanimity and type of instruments
• EU institutions: European Commission, European Parliament, Court of Justice
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2.3. The Maastricht Treaty
 The Treaty on European Union and the three pillars
 The third pillar, or Title VI of the Treaty on European Union
 Absorption of cooperation into the framework of the EU
(except Schengen cooperation)
 No major changes of objective
 Institutional changes: predominantly intergovernmental
cooperation with shades of the Community method
 Characteristics:
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2. History
> Module 1: General introduction: History
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2. History
2.4. The Treaty of Amsterdam and the Treaty of Nice
2.4.1. The Treaty of Amsterdam
2.4.1.1. New objective: establishment of an area of freedom, security
and justice
•
•
Concepts of area
Concepts of freedom, security and justice
2.4.1.2. Splitting of JHA matters
•
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•
Transfer to the 1st pillar (Title IV of the TEU) of asylum, immigration, border crossings
and judicial cooperation in civil matters
Police and judicial cooperation in criminal matters kept in the 3rd pillar
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2. History
2.4.1.3. Updating the 3rd pillar
 Maintaining the intergovernmental rationale (unanimity, predominant role
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of the Council, limited powers of the EP)
 But strengthening the role of the European Commission and Court of
Justice
 And strengthening the effectiveness of the legal instruments available
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2. History
 Legal instruments
• Non-binding: recommendations and conclusions
• Binding: framework decisions, judgments (with no direct effect,
but cf. Court of Justice v Maria Pupino case) and conventions
• External dimension: common positions and agreements (Articles 24
and 38 TEU)
> Module 1: General introduction: History
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 Decision-making procedure
• Right of initiative (Commission – Member States)
• Unanimity, save for measures implementing judgments and
applying conventions
• Consulting the European Parliament
• Negotiations within the Council
2. History
 The competence of the CJEU: Article 35 TEU, but conditions and
limitations
• Reference for a preliminary ruling but optional competence with
variable geometry ( Article 35 § 1-4 TEU)
• Other competences
– On the legality of framework decisions and judgments on lack of competence,
infringement of the Treaty, misuse of power (Article 35 § 6)
– On certain disputes between Member States and certain disputes between
Member States and the Commission (Article 35 § 7)
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• Not competent 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
responsibilities incumbent on Member States to maintain law and
order and safeguard internal security (Article 35 § 5)
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2. History
2.4.1.4. Integration of Schengen cooperation
• Why?
– Common objectives
– Ripple effect
– Prospect of enlargement
– Application of flexibility: the case of the UK and Ireland
– The definition of the acquis and its breakdown
– The case of certain third countries associated with the
Schengen convention (Norway, Iceland, Switzerland,
Liechtenstein)
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• How?
2. History
2.4.2. The Treaty of Nice
No major changes, but:
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•
Establishment of Eurojust
Changes to the terms of enhanced cooperation
2.4.3. Conclusions of Tampere (1999) and The Hague
Programme (2004)
 Conclusions of Tampere:
•
establishes the mutual recognition principle, among others
 The Hague Programme and Action Plan:
deepens the concept of area: principle of mutual recognition (judicial) and
principle of availability (police)
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•
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2. History
2.5. The Lisbon Treaty and the current system
5th stage marked:
o by the Lisbon Treaty, which came into force on 1st
December 2009
 Radical institutional changes (see below)
 Important substantive changes
o by the Stockholm Programme adopted by the European
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Council on 10 and 11 December 2012
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2. History
2.5.1. Main institutional changes
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2.5.1.1. Abolition of the 3rd pillar, the end of intergovernmentality and
the communitisation of criminal matters.
2.5.1.2. Maintaining qualifications to the Community method
2.5.1.3. Description of the decision-making procedure
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2. History
2.5.1.1. Abolition of the 3rd pillar, the end of intergovernmentality
and the communitisation of criminal matters.
Fundamental reforms: abolition of the 3rd pillar and
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integration of cooperation in criminal matters into Title V of
Part III of the TFEU
End of intergovernmentality and communitisation of
criminal matters
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2. History
=> Various consequences

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
Transition to the ordinary legislative procedure => Codecision
=> Qualified majority for voting within the Council and the role
of co-legislator for the EP
Availability of conventional Community instruments (such as
directives and regulations)
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2. History

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
Strengthening of judicial review in the European criminal lawenforcement area:
 External review: prospect of the EU’s accession to the
ECHR (Article 6 § 2 TEU)
 ‘Full’ review by the CJEU => competence for preliminary
rulings in common law, action for annulment, bankruptcy,
insolvency, damages
Application of the general principles of Community law to
cooperation in criminal matters (e.g. principle of primacy,
exclusion of reciprocity)
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2. History
2.5.1.2. Some qualifications to communitisation


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
Right of initiative: shared between the European Commission and
Member States (minimum of 7 Member States)
Exceptions to the ordinary legislative procedure
Exception to the competence of the CJEU: still not competent to
review the validity or proportionality of operations carried out by
police or other law enforcement services in a Member State, or to
rule on the exercise of responsibilities incumbent upon Member
States to maintain law and order and safeguard internal security
(Article 276 TFEU)
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2. History
2.5.1.3. Description of the current decision-making procedure
 Right of initiative (by the Commission or min. 7 MS)
 Involvement of the national parliaments
 Negotiations ending
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– After first reading
– After second reading
– Or under the terms of the conciliation proceedings
> Module 1: General introduction: History
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2. History
2.5.2. The price to pay: the variable geometry of the European
criminal law-enforcement area
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2.5.2.1. Opt-outs granted to Denmark, the United Kingdom and
Ireland by the Treaty of Lisbon
2.5.2.2. The complexity associated with Schengen cooperation
2.5.2.3. The general opt-out possibility granted to the UK by
Protocol No 36 on transitional provisions
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3. The European criminal law-enforcement area
and its components
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3.1. Deepening/relaxation of mechanisms of cooperation in
criminal matters
3.2. Establishment of European stakeholders
3.3. Approximation of laws
3.4. External dimension
> Module 1: General introduction: The components of the European criminal lawenforcement area
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3. The European criminal law-enforcement area
and its components
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3.1. Deepening/relaxation of mechanisms of cooperation in criminal
matters
 Judicial cooperation
 Police cooperation
3.2. Establishment of European stakeholders
 Main stakeholders of cooperation = police and judicial authorities of
the Member States.
 BUT establishment of European stakeholders to facilitate
cooperation: Eurojust, EJN, Liaison magistrates/Europol
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3. The components of the European criminal lawenforcement area
3.3. Approximation of laws
3.3.1. Substantive criminal law
Main instruments adopted since the entry into force of the
Maastricht Treaty.
 Conventions adopted under the 3rd pillar of the Maastricht Treaty
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(e.g. Convention on the protection of the EC’s financial interests
(1995), Convention against corruption involving officials (1997))
 A number of joint actions adopted under the 3rd pillar of the
Maastricht Treaty (e.g. Joint Action concerning action to combat
racism and xenophobia (1996), Joint Action on making it a criminal
offence to participate in a criminal organisation (1998))
> Module 1: General introduction: The components of the European criminal lawenforcement area
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3. The European criminal law-enforcement area
and its components
or Nice Treaty (e.g. FD protecting the euro against counterfeiting (2000),
FD on combating fraud and counterfeiting of non-cash means of
payment (2001), FD on money laundering, the identification, tracing,
freezing, seizing and confiscation of instrumentalities and the proceeds
of crime (2001), FDs on terrorism (2002 and 2008), FD combating
human trafficking (2002), FD on facilitation of unauthorised entry, transit
and residence (2002), FD on combating corruption in the private sector
(2003), FD on the sexual exploitation of children and child pornography
(2003), FD on criminal acts and penalties in the field of illicit drug
trafficking (2004), FD on attacks against information systems (2005), FD
on the fight against organised crime (2008), FD on combating certain
forms and expressions of racism and xenophobia by means of criminal
law (2008)...)
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 FDs adopted under the 3rd pillar, as amended by the Amsterdam Treaty
3. The European criminal law-enforcement area
and its components
 Directives adopted
• before the entry into force of the Lisbon Treaty (e.g. Directive on the protection
of the environment through criminal law (2008), Directive on ship-source
pollution (2009) and Directive providing for sanctions against employers of
illegally staying third-country nationals (2009).
• after the entry into force of the Lisbon Treaty (e.g. Directive on preventing and
combating trafficking in human beings and protecting its victims (2011), and
the Directive on combating the sexual abuse and sexual exploitation of
children and child pornography (2011)
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
More or less identical structure of these instruments
Limitations of the approximation achieved...
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3. The European criminal law-enforcement area
and its components


Before the entry into force of the Lisbon Treaty, few instruments were
adopted:
 FD on the standing of victims (2001)
 FD on confiscation of crime-related proceeds, instrumentalities and
property (2005)
+ Failure of other proposals, including proposed FD on procedural
safeguards
Since the entry into force of the Lisbon Treaty, initiatives have increased
 Directive on the rights of victims (2012)
 Directive on the right to interpretation and translation (2011)
 Letter of Rights Directive (2011) ...
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3.3.2. Procedural criminal law
3. The European criminal law-enforcement area
and its components
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The external dimension has developed since the entry into force of the
Amsterdam Treaty (cf. specific provisions to this effect: Arts 37 and 38
TEU)
Political instruments: declarations, action plans, programmes
Legal instruments
 Common positions
 Agreements concluded before the entry into force of the Lisbon
Treaty (Article 24 and 38 TEU)
 Agreements concluded since the entry into force of the Lisbon Treaty
(Article 216 et seq. TFEU)
 Agreements adopted by EU agencies (e.g. agreements concluded by
Europol and Eurojust)
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area
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3.4. External dimension development
4. A European criminal law-enforcement area founded
on national laws
4.1. Similarities
 Common values
 Membership of the Council of Europe, ECHR, Eur. Court HR
case-law
4.2. Differences
 Substantive criminal law
 Offences
 Penalties
Procedural criminal law
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
> Module 1: General introduction: founded on national laws
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4. A European criminal law-enforcement area founded
on national laws

Examples of differences in substantive criminal law
 Offences
• Classifications
• Principle of criminalisation
• Definitions of criminal offences (cf. differing interpretations of certain
fundamental freedoms)
• Rules on participation and attempted offences
• …
 Penalties
Types of penalties
New sentences
Systems applied to common traditional sentences
…
> Module 1: General introduction: founded on national laws
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•
•
•
•
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
Examples of differences in criminal procedure
 Conventional opposition
• Adversarial systems (Common Law)
• Continental procedure or inquisitorial systems
 Distribution of powers between the investigative and prosecution
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functions
 Determining the authority responsible for the investigations (balance
of powers between police/public prosecutor + investigating judge)
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
4. A European criminal law-enforcement area founded
on national laws
> Module 1: General introduction: founded on national laws
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