Steve Peers
With the elections to the
European Parliament, the installation of a new European Commission, and a
number of important legislative and case-law developments, 2014 was an important
year for the European Union. This is the first in a series of blog posts
reviewing the year in selected fields of EU law.
The most significant change to EU
criminal law came on December 1, when the five-year transitional
period relating to EU criminal law measures adopted before the entry into force
of the Lisbon Treaty (‘pre-Lisbon EU criminal law measures’, also known in
practice as the ‘third pillar’) came to an end. From this date on, pre-Lisbon
EU criminal law measures are subject to the normal rules of EU law (except that
they maintain their previous limited legal effect, in particular the lack of
direct effect). More specifically, this change (discussed generally here)
has three main impacts.
Firstly, the UK was entitled to opt
out of all pre-Lisbon EU criminal law measures, and then apply to opt back in
to some of them again. The UK indeed exercised these possibilities, opting back
in to 35 such measures as of 1 December 2014 (see discussion of the details here),
following an unnecessarily convoluted process in the House of Commons
(discussed here). In a nutshell, since the UK has opted back into a
large majority of the pre-Lisbon measures which have any significant importance,
the whole process has had barely reduced the UK’s actual degree of
participation in EU criminal law.
Secondly, the end of the
transitional period means that the EU Commission can now bring infringement
actions against Member States that failed to correctly implement pre-Lisbon EU criminal
law measures - or that failed to implement such measures at all. The relevance
of this is obvious in light of the Commission reports issued this year,
regarding: legislation on the transfer of prisoners, probation and parole and
supervision orders (discussed here); hate crime and Holocaust denial (discussed here);
and conflicts of jurisdiction and the recognition of prior convictions (discussed
here).
Thirdly, all courts in all Member
States can now send references to the CJEU on the interpretation pre-Lisbon EU
criminal law. For the EU as a whole, the impact of this change will probably be
limited in practice, because (a) two-thirds of Member States allowed such references
anyway, and (b) there were no such limits regarding EU criminal law adopted after the entry into force of the Lisbon
Treaty. On the former point, the CJEU decided two cases this spring on the EU’s
double jeopardy rules (discussed here), in which it finally developed
the relationship between those rules and the double jeopardy provisions of the
ECHR and the EU Charter of Fundamental Rights. A final reference to the CJEU on
the basis of the old rules, sent just a month before the end of the
transitional period (Kossowski),
now asks the Court to clarify whether Member States’ derogations from the
Schengen rules violate the EU Charter.
On the second point, the first
reference from national courts on post-Lisbon
EU criminal law was referred this year: the Covaci
case, on the Directive on interpretation and translation in criminal law
proceedings and the Directive on the ‘letter of rights’. So far, there is no sign of the predicted avalanche of cases on EU
suspects’ rights legislation (the deadline to apply the letter of rights Directive passed in June). Of course, there
could still be an increase of such cases in future, perhaps after the 2016 deadline
to apply the third suspects’ rights Directive (on access to a lawyer).
And in the meantime, Member States must apply the victims’ rights Directive
towards the end of 2015. Hopefully the CJEU’s case law on that measure will be
more convincing than its ruling earlier this year (criticised here) on
the scope of the Directive on compensation for crime victims.
Another important CJEU judgment
in the criminal law field this year (discussed here) ruled that policing
information measure actually fell within the scope of EU transport law. The
immediate impact of this judgment was a rush to adopt replacement legislation
(the text of which is already agreed), which will apply to all Member
States (the UK, Ireland and Denmark had opted out of the prior measure). More
broadly, the judgment shows that the CJEU is not inclined to interpret the EU’s
criminal law powers broadly – at least as compared to the EU’s other powers.
The end of the transitional period
did not lead to a general review of pre-Lisbon EU criminal law measures, with
the Commission proposing only a very limited repeal of some obsolete measures
(I’ll blog on these proposals in the new year). In particular, the new Justice
Commissioner appears to have no significant agenda to suggest criminal law proposals,
whether to amend prior measures or to adopt new ones (for an argument as to
what the Commission should do, see here).
However, some of the pre-Lisbon criminal
law measures have been amended or replaced, or will be amended or replaced by
proposed legislation now under discussion. In particular, during 2014, the EU
adopted legislation concerning: the European Investigation Order (discussed here);
the counterfeiting of the euro (discussed here); the confiscation
of criminal assets; and the European Police College (moving its seat
from the UK to Hungary). The EU also adopted legislation on criminal sanctions
for market abuse (discussed here).
There are also proposals under
discussion to replace pre-Lisbon EU criminal law measures concerning: fraud
against the EU (see the state of play here); the police agency, Europol
(see discussion of negotiations here); the prosecutors’ agency, Eurojust
(there was a partial agreement on this proposal); and data protection in
criminal law cases (see the state of play here). The latter issue is
increasingly important, as indicated by the related CJEU judgment invalidating
the data retention directive (discussed here), which gave rise to
questions as to whether Member States could adopt or retain their own data
retention laws (on this point, see generally here, and here as
regards the UK in particular).
In fact, the CJEU will soon be
ruling on data protection and criminal law issues as such, since the European
Parliament has asked it to rule on the validity of the EU/Canada draft treaty
on passenger name records (see discussion here). The pending Europe v Facebook case (discussed here)
raises questions about the impact of the Snowden revelations upon the EU and US
arrangements on data protection. In the meantime, the proposed Directive
on passenger name records still remains on ice (having been put there by the
European Parliament), with EU leaders’ attempt to set a deadline to adopt this
proposal by the end of 2014 proving futile.
Other proposals are also under
discussion: a more general overhaul of the European Police College; the
creation of a European Public Prosecutors’ Office (see the state of play here); and the adoption of three more suspects’ rights measures, concerning
child suspects (agreed by the Council), presumption of innocence (also agreed
by the Council) and legal aid (see the state of play here). However, the
Commission’s proposal for new rules relating to the EU’s anti-fraud
body, OLAF, soon melted in the heat of Council opposition.
Conclusion
Taken as a whole, the year 2014
showed how the European Parliament, the CJEU and the Commission are already
playing a significant role in the development of EU criminal law. Following the
final demise of the third pillar, the year 2015 is likely to see further
important developments in this area, which will make the pre-Lisbon measures even
less important: the adoption of new legislation on Europol, the European Police
College and possibly Eurojust, as well as revised legislation on fraud against
the EU budget. There will likely be two or three further Directives on suspects’
rights and the victims’ rights Directive will begin to apply. The rules on the
new European Public Prosecutors’ Office might also be agreed, and there could
be significant developments in the area of data protection. Overall, the longer-term
trends toward greater parliamentary and judicial control and greater focus on
individual rights in this area accelerated significantly in 2014 and could well
do so again next year.
Barnard & Peers: chapter 25
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