POMFR: European Police and Criminal Co-Operation

By Claudio Matera

Maria Bergström and Anna Jonsson Cornell (eds.), European Police and Criminal Co-Operation, Swedish Studies In European Law, Volume 5, Hart Publishing 2014, 198 pages, ISBN: 978-1-84946-350-8

The fields of police and criminal law cooperation within the European Union have been significantly transformed and widened with the entry into force of the Lisbon Treaty in 2009; yet, they remain contested on a number of grounds. Maria Bergström and Annna Jonsson Cornell, the editors of the book under current review, argue that there are two main reasons for this. Firstly, they consider that this is because the two policies have a significant impact on the rights of individuals and on the relationship between the individual and the State; secondly, they consider that this is because policing and criminal law remain anchored to State sovereignty and the monopole of enforcement exercised by the States in these domains. Against this background, the different contributions of the book take stock of post-Lisbon developments in order to assess the extent to which the reform of 2009 and recent legislative initiatives relate to the two main controversial aspects identified by the editors. With legislative proposals such as the new Europol Regulation and the establishment of the European Public Prosecutor pending in Brussels, the book comes out at a time in which the powers of the EU in the fields are in the spotlight.

Bergström and Jonsson Cornell’s book takes its cue from the constitutional changes introduced by the Lisbon Treaty to EU police cooperation and criminal law to analyse the impact that the new provisions have on a number of constitutional questions; namely decision-making procedures, EU and Member State competences and the thorny relationship between EU criminal law and policing with fundamental rights. Moreover, the constitutional perspective adopted by the book encompasses the relationship between national constitutions and the EU as well as the relationship between the European Convention on Human Rights and the EU in the fields of policing, criminal law and data protection. Furthermore the book’s discussion of various aspects regarding EU police cooperation and criminal law from the perspective of, and in relation to, the legal orders of Sweden and Nordic countries merits some praise: not only because, for instance, the Nordic Arrest Warrant has inspired the adoption and the functioning of the European one, but also because it introduces the reader to authors and perspectives coming from a specific regional context within the EU.

The book is divided into four sections. The first section deals with EU criminal law, and more precisely it analyses three aspects pertaining to its development. In her essay, Ester Herlin-Karnell uses the Commission communication ‘Towards an EU Criminal Policy’ of 2011 to analyse whether the objective to develop a more consistent criminal law policy for the EU has, in concreto, been achieved. In doing so, the author looks at a number of substantive and procedural issues such as rules on market abuse, insider dealing and procedural rights in criminal law to conclude that while initiatives at the procedural level seem to effectively promote a fair system of criminal law within the EU, initiatives at the substantive level still raise issues of legitimacy and compatibility with national legal principles and rules. Anna Wetter’s contribution takes as an example the decision-making process that has led to the adoption of Directive 2009/52/EC on minimum standards on sanctions and measures against the employers of illegal migrants in order to assess a number of legal questions that characterise the development of EU criminal law. In her contribution, the author argues that while the EU obsession on the choice of the proper legal basis is far from being a thing of the past, the legislative process in criminal law at EU level needs improvements in other key aspects, namely the application of the ultima ratio and proportionality principles when discussing new legislative proposals. Lastly, Petter Asp argues in his essay that in spite of the improved legal framework provided by the Lisbon Treaty in relation to EU competences in criminal law, the EU still lacks a criminal law policy. He contends convincingly that the consolidation of the Union’s role in criminal law only makes the “need for an all-out criminal law policy…more acute than before”(page 59) and highlights six fundamental principles that the EU needs to address in order to clarify and legitimise further its action in the field; among the six, the call to pay attention to the principle of ultima ratio, coherence, subsidiarity and the requirement of a legitimate purpose seem particularly pertinent also in regard to the current debate concerning the establishment of the European Public Prosecutor. Indeed, taking into consideration that EU criminal law cooperation has been criticised for being one-sided and mainly focused on increased repression, the EU still has to demonstrate that this policy serves the interests of citizens and States alike and that its competences are triggered only where independent action of Member States has proved not to be sufficient.

Section two addresses the relationship between the development of EU criminal law and fundamental rights. Firstly, Theodore Konstadinides tackles the relationship between the Data Retention Directive and the right to privacy and to the protection of personal data. Whilst the contribution of Konstadinides pre-dates the annulment decision of the CJEU, his analysis of the main challenges that the Directive posed to fundamental rights provides a thoughtful analysis not only in relation to human rights, but also with regards to national standards of privacy protection compared to those of the EU. The second essay in this section by Alexandros-Ioannis Kargopoulos looks at the evolution of the jurisprudence of the CJEU pertaining to the ne bis in idem principle. This comprehensive analysis discusses the challenges when applying such a principle in the EU context and concludes that the CJEU has positively contributed to transforming ne bis in idem from a traditional principle of procedure to a fundamental right with the result of influencing the case law of the European Court of Human Rights. However, the author also emphasises that the lack of substantive harmonisation in the criminal systems of the Member States will continue to require clarifications by the CJEU in order to bring consistency to the system. The last essay by Per Ole Träskman in this section discusses the application of the mutual recognition principle in the context of the European Arrest Warrant (EAW) so as to evaluate its impact on judicial cooperation in criminal matters, and more specifically, on the adoption of the Nordic Arrest Warrant convention. In this essay Träskman, argues that the introduction of mutual trust and mutual recognition in the EU within the context of the EAW, has negatively affected the quality of legislation regulating cooperation amongst the Nordic states so as to actually bring an end to the “Golden Age of Nordic Cooperation”. This last aspect is of particular interest since it brings to the attention of the reader a unique phenomenon, i.e. the negative influence that the EU integration process in criminal matters may have for the quality of national and regional legislation.

The first essay by Anna Jonsson Cornell on EU Police Cooperation after Lisbon opens the third section of the book with a view to analysing the impact that the Lisbon Treaty has had on police cooperation. In her essay the author highlights and analyses the complexities affecting the development of EU police cooperation: while the EU is more and more competent to legislate and regulate operational cooperation, the main operational responsibility for upholding law and order still rests with the Member States. She surmises that whilst the division of tasks between the EU and Member States in policing may seem clear at first, the evolving regulatory framework of the EU and the incremental sharing of data among Member States via Europol, COSI and other databases makes it increasingly difficult to disassociate EU influences from Member States’ independent action. In the second essay dedicated to police cooperation, Iain Cameron deepens the analysis pertaining to the storing and sharing of police data from a human rights perspective. In his essay, Cameron argues that while the Council of Europe standards in this domain may be too vague to provide meaningful safeguards, given the number of actors operating within a fragmented and often out-dated regulatory framework, stemming from the Council of Europe and the EU, the instruments adopted by the Council of Europe and the case law of the European Court of Human Rights still play a fundamental role in this domain.

The fourth and last section of the book comprises of two essays by Bo Wennström and Maria Bergström. In the first essay Wennstroöm makes the reader take a step back from the substantive aspects discussed in the other essays and puts forward ideas to revise the way in which we conceive, study and interpret policing and the maintenance of public order. Indeed, he affirms that the maintenance of security and order as well as the works of the organs responsible for carrying out these tasks has shifted from a national and vertical paradigm to a layered, modular system composed of legal orders, organs and procedures. According to the author, this shift requires the reader to rethink issues such as the allocation of responsibility and accountability. At the same time, Wennström also argues that changes in the field of policing pose afresh the question pertaining to the relationship between citizens and the maintenance of public order in an internationalised context. With the closing contribution, Maria Bengström illustrates the way in which EU criminal law competences have evolved in the context of numerous Treaty amendments and an increasing call to externalise criminal law initiatives. Indeed, by using the examples of the anti-money laundering regulatory regime, the use of non-criminal legal bases to adopt criminal law rules and the adoption of economic sanctions in the fight against terrorism, Bergström aims to convince the reader that the express conferral of greater powers to the EU in the field of substantive criminal law has not necessarily restricted EU criminal law to Chapter 4 of Title V of the TFEU.

As correctly emphasised by the editors of the book, “it was only with the entry into force of the Lisbon Treaty on 1 December 2009, that it was possible to speak about EU Criminal Law and EU police co-operation as a policy area of its own. For the first time, the EU was provided with a criminal law competence to legislate, not only as a form of compensation when other policy areas were being developed […], but as a policy area in its own right”(page 9).From this perspective the book tackles the challenges that developing policies in EU criminal law and policing entail and provides a number of proposals on how to address these challenges in the future. While some of the legislative instruments and aspects considered by the various contributions of this book have been repealed or affected by recent decisions of the Court of Justice, the book maintains its scientific value thanks to the constitutional approach chosen by the editors. From this last perspective, the book provides a collection of interesting and original essays that can stimulate future research and contribute to analyse the challenges relating to the legislative initiatives currently in the agendas of the institutions in Brussels.