POMFR: EU Criminal Law after Lisbon

By Joost Huysmans

EU Criminal Law after Lisbon. Rights, Trust and the Transformation of Justice in Europe, by Valsamis Mitsilegas, Oxford and Portland, Oregon, 2016, 295 p.

This monograph examines the impact of the entry into force of the Treaty of Lisbon on EU criminal law. By focussing 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.

After a very short first introductory chapter presenting the objective and the scope of the monograph, the second chapter – which is in effect the first substantive chapter – sketches the general changes the Lisbon treaty has brought about for the competence of the EU in the field of criminal law, which it characterises as the ‘constitutionalisation of EU criminal law’. The chapter however also discusses the few remaining reminiscences to the former third pillar and argues that these can be traced back to fears of some member states during the Lisbon Treaty discussions of a loss of legal diversity of their criminal justice systems. The chapter also focusses on the post-Lisbon legal basis debate in the field of criminal law, by critically analysing the Kadi II (C‑584/10 P, C‑593/10 P and C‑595/10 P) case-law of the ECJ. It discusses the principle of subsidiarity in the context of EU criminal law and analyses the specific positions of the United Kingdom, Ireland and Denmark as well as the problems these specific positions entail for the effective application and coherence of EU criminal law.

The third chapter contains a more profound analysis of the post-Lisbon EU competence in the field of substantive criminal law. It argues that EU competence in this field can be justified in a twofold manner. On the one hand, EU intervention in substantive criminal law can be justified to address (perceived) security treats with a transnational dimension (securitised criminalisation). On the other hand, it can also be justified to ensure the effectiveness of legislation in other fields of EU law (functional criminalisation). It discusses the distinct genesis of these two axes of justification of EU competence in the field of substantive criminal law, which is reflected in the two separate treaty bases in the Lisbon treaty: Article 83(1) TFEU for securitised criminalisation and Article 83(2) TFEU for functional criminalisation. The chapter also studies the relationship between these specific treaty bases regarding EU substantive criminal law and other treaty bases which – at least at first glance – confer on the EU the competence to force member states to impose sanctions, such as e.g. Article 325(4) TFEU that allows the EU to take measures in the field of the prevention of and fight against fraud affecting the financial interests of the Union. In this respect, the interplay between criminal and administrative law in cases where EU measures are being put forward which envisage the adoption of both criminal and (non-criminal) administrative sanction is also briefly addressed. The chapter furthermore also analyses the impact that EU substantive criminal law can have on national criminal law. It demonstrates that, although formally speaking, EU-competence in the field of substantive criminal law is limited to minimal harmonisation of the constitutive elements of a crime, of definitions and of the so-called minimal maximum penalties for a crime, EU substantive criminal law has a profound impact on national criminal law. It indeed persuasively argues – on the basis of a thorough analysis of the case-law of the ECJ, including especially its seminal judgment Taricco (C‑105/14) – that EU substantive criminal law can lead to a duty to ‘over criminalize’ as well as a duty to ‘decriminalize’ at the national level.

The fourth chapter treats a well-known issue of criminal procedure regarding transnational crimes, namely that of (positive and negative) conflicts of jurisdiction between the involved states and the related risk of forum shopping. It argues that in this respect, the recent post-Lisbon tendencies in the policy of the EU-institutions and the case-law of the ECJ can be analysed as a balancing act between the importance of efficient criminal prosecution of transnational crimes on the one hand, and fears of deterioration of national sovereignty and legal diversity between the member states on the other hand. The classical locus of this issue, the ne bis in idem principle (Article 54 CISA; Article 50 EU Charter of Fundamental Rights), can of course not be absent in this analysis. The chapter therefore discusses the recent case-law of the ECJ on the ne bis in idem principle, and argues that the ECJ in recent years has put some limitations on the scope of this principle taking into account the certain level of mistrust that still prevails between the EU member states. It furthermore also discusses the option to address the issue of conflicts of jurisdiction and the risk of forum shopping with non-binding guidelines, it treats Eurojust and its historic development and it analyses the at that time proposal of the European Commission for the establishment of a European Public Prosecution Office (the current EPPO Regulation (Regulation 2017/1939)).

The fifth chapter discusses the principle of mutual recognition as the core principle of legal cooperation between the member states in EU criminal law and points out the paradox that is inherently present in this principle. The principle of mutual recognition was carved out as the cornerstone principle of legal cooperation in criminal matters in order to preserve the legal diversity between the criminal justice systems of the different member states. However mutual recognition can only function well when sufficient mutual trust exists in the criminal justice systems of other member states, which puts pressure on the legal systems of the member states to adhere to certain European minimum standards on the respect of human rights, the proportionality of criminal sanctions, and the rule of law including the independence and impartiality of the criminal justice system and hence a certain loss of national autonomy and legal diversity. The chapter also makes a critical in-depth analysis of the case-law of the ECJ in this respect and it argues that the Court sometimes perceives the principle of mutual trust as a mere presumption in order to facilitate mutual recognition, by accepting too often that only the judicial authorities of the issuing member state perform the control of respect for human rights.

The sixth chapter analyses the post-Lisbon EU-competence to impose minimum harmonisation of procedural criminal law. It discusses the historic evolution of this competence and the EU policy decision to opt for an incremental harmonisation of the different procedural rights of the defence. It analyses the different Directives already in force at that moment (the Directive on the right to interpretation and translation in criminal proceedings (Directive 2010/64/EU); the Directive on the right to information in criminal proceedings (Directive 2012/13/EU); and the Directive on the right to access to a lawyer in criminal proceedings (Directive 2013/48/EU)), and it argues that such harmonisation has added value compared to the mere applicability of the ECHR as interpreted by the ECtHR because of the sometimes higher level of human rights protection the Directives offer and especially because of the EU enforcement machinery (e.g., the principle of direct effect of EU law, and the role of the European Commission as guardian of the treaty) enabling the EU to effectively force member states to safeguard those procedural rights. The chapter moreover treats the issues of the autonomous interpretation of concepts figuring in the Directives on procedural rights of the defence and the coupled applicability of the EU Charter on human rights. The chapter also critically analyses (the pre-Brexit question of) the tenability of the UK decision to opt-out of these Directives given their importance to ensure mutual trust between the member states which is indispensable for a smooth functioning of the principle of mutual recognition.

The seventh chapter examines the place of the victim in the EU area of criminal justice. It critically discusses the three separate ways in which EU law can have an impact on victim’s rights. Firstly, the ECJ has been willing to interfere with national legislation on victim’s rights in order to preserve free movement rights. Secondly, the EU has used the principle of mutual recognition to extend the territorial scope of measures protecting victims to other member states with the Directive establishing a European protection order (Directive 2011/99/EU). Thirdly, the EU has used its legislative competence to establish a minimum harmonisation of victim’s rights (Article 82(2) TFEU) to adopt a Directive on the rights of victims to a crime (Directive 2012/29/EU). The chapter analyses the impact of these axes have on the member states and underscores the tension between perceived need to create a level playing-field as regards the rights of victims in order to enhance mutual trust between member states which facilitates the smooth functioning of the principle of mutual recognition on the one hand, and the need to maintain a degree of flexibility and breathing space for national systems in the light of the considerable differences in national criminal laws on victims on the other hand. It also rightly points out the well-known – but nonetheless pressing – problem that the in itself legitimate demands of victims of a crime for a place in the criminal proceedings are used to fuel reforms of the criminal procedure that are detrimental to the procedural rights of the defence.

The eight chapter analyses what it calls the ‘uneasy relationship’ between EU criminal law and citizenship of the European Union. It starts from het observation that, whereas the EU criminal law and the law of EU citizenship have traditionally evolved in parallel but separate ways, recent years have witnessed growing interconnections between these two fields of EU law. On the one hand, aspects of EU citizenship law have emerged in the adoption of EU legal instruments on criminal law. In this respect the chapter discusses the Framework Decision of the European Arrest Warrant and the Framework Decision of the Transfer of Sentenced Persons. On the other hand, aspects of EU criminal law have become increasingly relevant in the evolution of EU citizenship law. This evolution is the clearest in the case-law of the ECJ determining the scope of exceptions to citizenship rights of EU citizens. The chapter concludes that, paradoxically, EU criminal law treaty competences and legislation are used by the EU legislator as well as the ECJ to partly reverse the rule in the EU Citizenship Directive (Directive 2004/38/EC) that a criminal conviction in principle does not lead to a loss of the right to residence in another EU member state (article 33.1 EU Citizenship Directive).

The ninth chapter discusses the criminal policy strategy of preventive justice that is specifically deployed in the field of the fight against terrorism. Preventive justice is defined as the exercise of state power in order to prevent future acts which are deemed to constitute security threats and that in that fashion introduces a system of justice grounded on the creation of suspect individuals on the basis of an on-going risk assessment. In this respect, the chapter firstly critically analyses the policy of the UN Security Council to target terrorist organisations and suspects of terrorism with the freezing of their assets on the basis of standards, which could be described as ‘global administrative law’. I.e. formally non-binding – but nonetheless in practice far-reaching – standards put forward by a limited number of states without the need for consensus and with a minimum of transparency. Secondly, the chapter treats the reception of these freezing measures targeting the assets of terrorists and terrorist organisations in the European Union legal order, which resulted into the Kadi case-law of the ECJ. It concludes that on the one hand, the ECJ has rightly asserted the autonomy of the EU legal order in external relations and the importance of human rights protection, but on the other hand, the ECJ – more dubiously – also has limited its scope of review to issues of procedural justice at the expense of the protection of the substantive right to property. Thirdly, the chapter also critically discusses the at that time proposals for a new type of preventive justice strategy in the field of the fight against terrorism, imposing travelling bans on suspected foreign terrorist fighters.

The tenth concluding chapter finally argues that the recent developments in EU criminal law, discussed in the previous chapters, can be centred on two important theorems. The first theorem states that in recent years, cooperation in criminal matters is no longer limited to mutual recognition, but is increasingly also a matter of harmonisation and interdependence. The second theorem states that following the Lisbon Treaty, the aspect ‘Security’ in the area of ‘Freedom, Security and Justice’ no longer is the predominant objective of cooperation in criminal matters. Also the principle of the rule of law and the protection of human rights have become important objectives of EU criminal law, although some challenges remain. Therefore, the chapter concludes, EU criminal law is evolving into the direction of no longer considering the EU member state but the individual EU citizen as the centre of EU criminal law.

This monograph is not a handbook on EU Criminal Law or EU Constitutional Criminal Law in the traditional sense. This is also not the objective of the monograph. Who is (merely) looking for a comprehensive technical overview of the current EU criminal law, the EU treaty provisions, Framework Decisions and/or Directives applicable to a certain situation (e.g., the extradition of suspects) and the case-law of the ECJ interpreting those provisions will not really find his/her liking in the book. That knowledge is indeed to a large extent postulated. As a result, the structure as well as the selection of the treated case-law of the ECJ and provisions of EU criminal legislation are more targeted at uncovering the general principles and criminal policies underpinning current EU criminal law than at giving such a comprehensive overview.

However, precisely that unconventional structure and selection of case-law and provisions of criminal law makes this monograph all the more interesting for scholars and lawyers specialised in EU criminal law and EU criminal law policy makers. By comprehensively merging provisions from different EU criminal law instruments and the case-law of the ECJ interpreting these instruments, the book indeed uncovers and subsequently critically discusses the principles, tendencies and policies that would risk to have remained hidden when a more traditional structure of discussing every instrument of EU criminal law separately would have been chosen. The monograph therefore succeeds in deepening the knowledge of this field of EU criminal law with some original insights. While on a few occasions – from a comfortable hindsight point of view – the findings of the monograph could be nuanced a bit in the light of the subsequent case-law of the ECJ, for many other findings the monograph has in the meantime proven to have even predictive value for future case-law of the Court. The monograph thus really is a must read for EU criminal law academic scholars and policy makers wanting to get more insight in the principles and policies underpinning EU criminal law and for lawyers specialised in EU criminal law looking for inspiration for new innovative legal arguments.