EU Criminal Law after Lisbon

Rights, Trust and the Transformation of Justice in Europe

Valsamis Mitsilegas

• Publisher: Hart Publishing
• Year: 2016
• ISBN:
  9781782259886
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

This monograph is the first comprehensive analysis of the impact of the entry into force of the Treaty of Lisbon on EU criminal law. By focusing on key areas of criminal law and procedure, the book assesses the extent to which the entry into force of the Lisbon Treaty has transformed European criminal justice and evaluates the impact of post-Lisbon legislation on national criminal justice systems. The monograph examines the constitutionalisation of EU criminal law after Lisbon, by focusing on the impact of institutional and constitutional developments in the field including the influence of the EU Charter of Fundamental Rights on EU criminal law. The analysis covers aspects of criminal justice ranging from criminalisation to judicial co-operation to prosecution to the enforcement of sanctions. The book contains a detailed analysis and evaluation of the powers of the Union to harmonise substantive criminal law and the influence of European Union law on national substantive criminal law; of the evolution of the Europeanisation of prosecution from horizontal co-operation between national criminal justice to forms of vertical integration in the field of prosecution as embodied in the evolution of Eurojust and the establishment of a European Public Prosecutor's Office; of the operation of the principle of mutual recognition (by focusing in particular on the European Arrest Warrant System) and its impact on the relationship between mutual trust and fundamental rights; of EU legislation in the field on criminal procedure, including legislation on the rights of the defendant and the victim; of the relationship between EU criminal law and citizenship of the Union; and of the evolution of an EU model of preventive justice, as exemplified by the proliferation of measures on terrorist sanctions. Throughout the book, the questions of the UK participation in Europe's area of criminal justice and the feasibility of a Europe à-la-carte in EU criminal law are examined. The book concludes by highlighting the possibilities that the Lisbon Treaty opens for the development of a new paradigm of European criminal justice, which places the individual (and not the state), and the protection of fundamental rights (and not security) at its core.

1

Introduction

The entry into force of the Treaty of Lisbon has had a transformative effect on the evolution of European Union criminal law. Not only has the Treaty introduced fundamental institutional and constitutional changes underpinning the development of European Union law in the field, but it has also empowered the European Union to legislate in new areas of criminal law and justice. The aim of this book is to analyse and evaluate the impact of the entry into force of the Lisbon Treaty on the reconfiguration of the legal landscape in Europe’s area of criminal justice. The book is not a second edition of my monograph on EU Criminal Law published by Hart in 2009. The manuscript of EU Criminal Law was completed in 2008, more than a year before the entry into force of the Lisbon Treaty. While EU Criminal Law was forward looking in opening up the discussion on the potential impact of the Lisbon Treaty on European Union criminal law, it did not aim to—and could not in the light of its timing—provide a detailed, ex post, analysis of the actual impact of the entry into force of the Lisbon Treaty on criminal justice. The monograph you have in your hands is the culmination of seven years of research on the evolution of European Union criminal law in relation to the entry into force of the Lisbon Treaty. Both its content and focus are different from EU Criminal Law. Rather than attempting to systematise European Union criminal law as a distinct academic and policy field, as was the case with EU Criminal Law, the present monograph moves on the research agenda to take into account new developments resulting in a growing maturity of EU criminal law as an academic and policy field. By containing exclusively new text, the present book focuses expressly on the impact of post-Lisbon European Union law on the criminal justice process, conceived as including the stages of criminalisation, investigation, prosecution, trial and enforcement of sentences. The examination of the transformative impact of the Lisbon Treaty on criminal justice will be viewed from two primary perspectives: from the perspective of the impact of EU criminal law on the Member States, including state sovereignty and national legal diversity; and from the perspective of the impact of Europeanisation on the relationship between the individual and the state, evaluated in the light of its conformity with upholding the rule of law and protecting fundamental rights. Based on these parameters, this monograph will aim to cast light on the impact of the entry into force of the Lisbon Treaty on the reconfiguration of criminal justice at the national level, while at the same time assessing the effect of this development on the transformation of justice in Europe more broadly.

The monograph will begin by evaluating the impact of the constitutionalisation of European Union criminal law after Lisbon. Chapter two will thus analyse the main contours of such constitutionalisation, focusing in particular on institutional and competence developments as well as on the constitutionalisation of the EU Charter of Fundamental Rights and its impact on EU criminal law. The chapter will also focus on remaining areas of controversy regarding the constitutionalisation of EU criminal law, exploring in particular the tension between supranationalism on the one hand and state sovereignty and national-level diversity on the other. Having set out the constitutional parameters, the book will continue by examining the impact of the entry into force of the Lisbon Treaty on distinct areas of criminal justice. Chapter three will examine the impact of the Lisbon Treaty on criminalisation, by focusing in particular on the impact of Article 83 TFEU on the powers of the Union to harmonise substantive criminal law and on the influence of European Union law on domestic criminal justice systems. Chapter four will focus on prosecution. It will examine the trajectory leading from a system of horizontal co-operation between national criminal justice systems (in particular in cases of conflicts of jurisdiction and the application of ne bis in idem) to forms of vertical integration in the field of prosecution as embodied in the evolution of Eurojust and the establishment of a European Public Prosecutor’s Office. Chapter five will examine the interaction between national criminal justice systems under the application of the principle of mutual recognition, and will focus in particular on the evolving relationship between mutual trust and fundamental rights after Lisbon. Chapters six and seven will focus on the new possibilities granted by Article 82(2) TFEU for the European Union to harmonise national legislation in the field of criminal procedure. Chapter six will focus on the first major paradigm of Union secondary legislation on human rights in criminal justice, namely the adoption of a series of Directives on the rights of suspects and accused persons in criminal proceedings. Chapter seven will focus on EU legislation on the rights of victims. The impact of the adoption of these measures on the internal balance of power in criminal justice systems will be evaluated, and the transformative effect of EU defence rights legislation will be highlighted. Chapters eight and nine will highlight further areas where EU criminal law after Lisbon has reconfigured concepts of justice. Chapter eight will examine what this book calls the uneasy relationship between EU criminal law and citizenship of the Union, casting light on the misuses of EU criminal law and their detrimental effect on EU citizenship rights. By focusing on terrorist sanctions, Chapter nine examines the growing trend for the European Union to adopt and impose a paradigm of preventive justice, where the focus is not on punishing existing crime, but on preventing future crime.

The impact of EU law as analysed in all these chapters on criminal justice—and on shaping answers to the fundamental questions of ‘what kind of justice?’ and ‘whose justice?’—will be crystallised in the Conclusion. It will be demonstrated that the entry into force of the Treaty of Lisbon has had mixed results in addressing the adverse consequences of the uncritical securitisation which marked the evolution of EU criminal law before the entry into force of the Lisbon Treaty in the old ‘third-pillar’ days, with considerable deference to Member State security choices and the uncritical acceptance of the existence and importance of mutual trust between EU Member States remaining features of EU criminal law in the post-Lisbon era. However, the conclusion will also highlight the fundamental change that Lisbon has brought about, which is what this book calls ‘the promise of rights’. The entry into force of the Lisbon Treaty enables the realisation of a paradigm of European Union criminal justice which places the individual (and not the state) at the heart of its construction. This is achieved in particular by the empowering of the Union by the Lisbon Treaty to legislate for human rights, by adopting in particular secondary EU law on defence rights, and by the transformative potential of the constitutionalisation of the Charter of Fundamental Rights, which has already had a significant impact on the development of EU criminal law after Lisbon. By focusing increasingly and prominently on the impact of EU criminal law on the individual, the Treaty of Lisbon will have a transformative effect on justice in the European Union by changing fundamentally the way in which European Union and national authorities perceive the development of criminal law.

2

The Constitutionalisation of EU Criminal Law After Lisbon

I. Introduction

The entry into force of the Lisbon Treaty has introduced fundamental constitutional changes in the field of EU criminal law. It signified the end of the Treaty three pillar structure and the abolition of the third pillar. In principle, but with some exceptions, this meant the supranationalisation—or ‘communautarisation’—of EU criminal law, an area of EU law whose development has been fraught with controversy in the light of the perceived adverse impact of European integration in the field on national sovereignty and on the diversity of national criminal justice systems. The aim of this chapter is to analyse in detail the extent and impact of these constitutional changes. It will be argued that the impact of the entry into force of the Lisbon Treaty is not limited to the normalisation of EU criminal law from an institutional perspective, but has rather led to the constitutionalisation of EU criminal law, which is now located firmly within the EU constitutional framework and principles. The chapter will begin by analysing in detail this constitutionalisation, highlighting in particular the application of EU constitutional principles, including fundamental rights, to EU criminal law and emphasising the importance of implementation and interdependence in the evolution of such constitutionalisation. The chapter will then continue by casting light on potential controversies and limits to constitutionalisation. It will look at how concerns related to national diversity interact with the development of European integration in the field of criminal justice. It will then examine in detail from a variety of angles the ongoing debate over the existence, extent and exercise of EU competence in criminal matters, which remain contested. The chapter will further examine the impact of subsidiarity on the evolution of EU criminal law after Lisbon and continue by analysing the relationship between constitutionalisation based on interdependence, on the one hand, and differentiation based on enhanced cooperation, on the other. The chapter will conclude by highlighting the main features of constitutionalisation which are prominent today and which underpin the content and evolution of EU criminal law post-Lisbon.

II. The Constitutionalisation of EU Criminal Law

It is submitted that the entry into force of the Lisbon Treaty constitutes a major step towards the constitutionalisation of EU criminal law. The term ‘constitutionalisation’ is understood here within the meaning put forward by Loughlin as the attempt to subject all governmental action within a designated field to the structures, processes, principles and values of a ‘constitution’.¹ In the field of European Union law, the constitutionalisation of EU criminal law must be viewed from a number of different perspectives which will be outlined below: from the perspective of the institutional normalisation of decision-making which the post-Lisbon abolition of the third pillar entails; from the perspective of the full application in the field of EU criminal law of the constitutional principles of EU law; and from the perspective of underpinning EU criminal law with a constitutional framework of fundamental rights protection, most notably via the constitutionalisation of the EU Charter of Fundamental Rights in the Lisbon Treaty. The examination of the constitutionalisation of EU criminal law from these perspectives will be accompanied by an analysis of two factors embedding further EU action in the field within the broader EU constitutional framework: the growing emphasis on the correct implementation of EU criminal law by Member States and the enhanced mechanisms for scrutiny and monitoring such implementation at EU level; and the increased interdependence of various areas of criminal law leading to the emergence of a coherent legal framework on EU criminal justice. As will be seen below, such interdependence appears at the level of interconnection between various EU strands of action, but also—and importantly—at the level of the relationship between European Union law and national law, including national constitutional law.

A.Constitutionalisation at EU Level: Institutions, Principles, Rights

The legacy of the third pillar has been the adoption of EU criminal law under a largely intergovernmental method (via unanimity in the Council and the mere consultation of the European Parliament), with limited scrutiny powers entrusted to supranational institutions such as the Court of Justice and the European Commission, and resulting in the adoption of weaker instruments compared to the supranational first pillar (the main EU criminal law instrument post-Amsterdam has been the Framework Decision, which, while similar to a Directive, does not entail direct effect).² The entry into force of the Lisbon Treaty has changed radically the institutional framework underpinning EU criminal law by granting—with few exceptions—EU institutions their full powers in the field and moving to a system of supranational decision-making. The full powers of EU institutions apply from the entry into force of the Lisbon Treaty vis-à-vis legislation adopted after Lisbon, and from 1 December 2014 (the end of the transitional period provided in the Treaty Protocol on Transitional Provisions)³ for pre-Lisbon third pillar law remaining in force. The first major institutional change involves decision-making, which, for the vast majority of Title V measures will take place under the ‘ordinary’ legislative procedure,⁴ ie, co-decision between the Council (which will decide by majority voting) and the European Parliament.⁵ This change is accompanied by a normalisation of the legal instruments of EU criminal law post-Lisbon, which take the form now of Regulations, Directives, and Decisions.⁶ The second major institutional change involves the role of the Court of Justice, and the ‘communautarisation’ of judicial control. The Court has now full jurisdiction to rule on infringement proceedings in criminal matters.⁷ The full jurisdiction of the Court in the field of preliminary rulings now applies.⁸ The Court also assumes full jurisdiction to hear actions for compensation for damages⁹ and the review of legality;¹⁰ to review the compliance of legislative acts with the principle of subsidiarity;¹¹ and review the legality of acts of the European Council and bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties.¹² The third major change involves the role of the European Commission, which emerges having stronger powers of initiative (albeit st...

Table of contents

• Cover
• Title Page
• Acknowledgements
• Contents
• Table of Cases
• Table of Legislation
• 1. Introduction
• 2. The Constitutionalisation of EU Criminal Law After Lisbon
• 3. Defining EU Competence in Substantive Criminal Law: From Securitised to Functional Criminalisation
• 4. The Rocky Road to European Prosecution: Caught Between Co-ordination and Centralisation
• 5. Mutual Recognition and Mutual Trust in Europe’s Area of Criminal Justice: The Centrality of Fundamental Rights
• 6. Legislating for Human Rights: The EU Legal Framework on the Rights of Individuals in Criminal Proceedings
• 7. The Place of the Victim in Europe’s Area of Criminal Justice
• 8. The Uneasy Relationship Between EU Criminal Law and Citizenship of the Union
• 9. The European Union and Preventive Justice. The Case of Terrorist Sanctions
• 10. Conclusion. Placing the Individual at the Heart of European Criminal Justice
• Bibliography
• Index
• Copyright Page