So long, and thanks for all the fish: the CJEU clarifies international law and institutional issues applying to fisheries

 

Steve Peers

The EU’s fisheries policy is controversial both within the EU and outside it, due to its impact on both fish stocks and the livelihoods of fishing communities. Until the Treaty of Lisbon, its application was essentially the sole preserve of the Council. The European Parliament (EP) tried to obtain joint control of some of the external aspects of the policy by claiming that its consent was needed for international fisheries treaties that impacted the EU budget significantly, but the CJEU rejected this challenge.

Following the Treaty of Lisbon, however, the EP has joint decision-making power internally over agriculture and fisheries policies, since Article 43(2) TFEU states that the ordinary legislative procedure now applies to the adoption of legislation in this field. However, certain aspects are still reserved to the Council, with the European Parliament only consulted, namely ‘measures on fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities’ (Article 43(3)).

As regards fishing, this provision is used each year just before Christmas, to determine the annual allocation of fish between Member States. It’s safe to say that the tone of these usually bitter negotiations never induces fisheries ministers to kiss each other under the mistletoe.  

What exactly is the dividing line between the areas where the EP shares power with the Council, and where fisheries ministers are left to hold acrimonious discussions among themselves? There are pending cases on the dividing line as regards internal EU measures. But today the CJEU ruled on the division of powers externally, in a case which also raised interesting issues of international law.

The judgment

Today’s judgment concerned a Council Decision which awarded Venezuelan fishermen the possibility to fish in the waters of French Guiana (which is a constituent part of French territory). This confirmed what those fishermen had been doing for some time before. The EU had felt it was necessary to put this practice on a more formal footing, but the rather left-wing Venezuelan government did not want to sign a treaty with such dastardly agents of global capitalism.

So the EU adopted an apparently unilateral Decision on this issue. The Council believed that it fell within the scope of Article 43(3), so the EP only had to be consulted, while the EP and the Commission argued that it fell within the scope of Article 43(2), so that the EP had the power of consent. The rules on the EP’s role in the approval of international treaties to which the EU becomes a party are set out in Article 218 TFEU. Basically the EP has the power of consent whenever a treaty concerns an issue regulated by the ordinary legislative procedure (ie fisheries law generally), but is only consulted when a treaty falls within the scope of other decision-making rules internally (ie the non-legislative procedure that applies when the EU fixes and allocates fishing opportunities). (In fact, the rules on the EP’s role in approving international treaties are slightly more complicated, but only this basic distinction is relevant to today’s judgment).

But was the Council Decision an international agreement in the first place? The Advocate-General’s opinion argued that it was not. Rather, it was a unilaterally binding declaration, an interesting form of international law. In fact such legal creatures are so rare that international law had not yet clarified whether international organisations like the EU could adopt them. In the Advocate-General’s view, they could. But that left the awkward question of how exactly the EU could adopt one as a matter of its internal law, since Article 218 clearly only refers to agreements concluded by the EU (or on behalf of the EU by its Member States). She considered various options, but ultimately argued that the relevant provisions of Article 218, including the powers of the EP to give its consent and receive information on negotiations, as well as the special jurisdiction of the CJEU, applied by analogy.

In the Court’s view, however, the Decision did constitute an international agreement. It based itself on the relevant rules of the UN Convention on the law of the sea, to which the EU and its Member States (but not Venezuela) are parties, and confirmed its position in the recent ruling on the Hague Convention on child abduction (discussed here), that treaties could be concluded in two steps. In this case, the EU had extended an offer, which Venezuela was free to accept, reject or suggest changes to. It had chosen to accept.  

As for the internal division of powers, both the Advocate-General and the Court reached the same conclusion: the Parliament’s argument was correct. In the Court’s view, the main powers relating to agriculture and fisheries set out in Article 43(2) concerned ‘policy decision[s] that must be reserved to the EU legislature’. In contrast, Article 43(3) provided for ‘measures of a primarily technical nature’ to implement the legislation adopted in the field. Applying that distinction to this case, the ‘treaty’ with Venezuela set out only a general framework, which had then been implemented by further measures based on Article 43(3). So that ‘treaty’ could not itself be based on Article 43(3); rather it was subject to the consent of the European Parliament, as it was based on Article 43(2).

Comments

On the international law issue, the Advocate-General’s analysis is more convincing than the Court’s, given the clear unwillingness of Venezuela to engage in any formal negotiations along its failure to ratify the UN Convention on the law of the sea, which the CJEU relied on so heavily. Nor is the Court’s use of the language of contract law very convincing. True, Venezuela’s application for fisheries authorisations might be described as the acceptance of an offer, but what is the consideration? Why should Venezuela’s actions be characterised in light of a treaty it had not ratified? Possibly the relevant rules reflect customary international law on the law of the sea which apply to Venezuela, but the Court does not make that argument.

Nor is its analysis of the text of the Law of the Sea Convention very convincing. The relevant clause refers to making ‘agreements or other arrangements’ regarding surplus fish. Could not a unilateral binding declaration constitute a form of ‘other arrangement’? Possibly that interpretation has been rejected by the Law of the Sea tribunal or by experts in that field of law (I confess that I’m not one), in accordance with the sources of international law as defined in the UN Charter. But if that is the case, the Court needs to bolster its interpretation by citing such evidence.

The distinction between the forms of international obligation matters mainly as regards the EU’s internal law. If the Decision was a unilateral binding declaration, the CJEU would have the awkward job of deciding whether the EU can adopt such measures, and if so how. Since the Court didn’t have to address these issues today, they must be considered open. But if it is every necessary to consider them in future, there is much to recommend the Advocate-General’s very thorough analysis of both of these points.

As for the internal decision-making rules, the judgment is more convincing, particularly in light of the Advocate-General’s arguments that Article 43(3) cannot apply to everything concerning fishing opportunities, since that would render the main legislative powers set out in Article 43(2) superfluous.

The broader implications of this judgment remain to be seen. But it’s an early indication that the Court is inclined to tilt in favour of a broad interpretation of the scope of the EP’s legislative and treaty approval powers over agriculture and fisheries following the entry into force of the Treaty of Lisbon.

 

Barnard & Peers: chapter 5

What just happened? The House of Commons ‘vote’ on the European Arrest Warrant

Steve Peers

Last night, the UK House of Commons voted in favour of the UK opting back in to 35 EU policing and criminal law measures, including the European Arrest Warrant (EAW). Or rather, it didn’t: it voted in favour of the UK opting back to 11 such measures, not including the EAW. Amid scenes of parliamentary confusion and chaos, it wasn’t quite clear what was going on. This blog post explains exactly what the vote was about.

Background

I wrote a detailed analysis for Statewatch of the UK’s opt back in to EU policing and criminal law measures earlier this year, and I will write an update for this blog in the start of December once all of the final steps in the process are in place. But for now, here is a brief recap, to put last night’s vote in context.

The Treaty of Lisbon sets out a five-year transitional period for EU policing and criminal law measures adopted before that Treaty’s entry into force (1 December 2009). At the end of that period, those measures become subject to the full jurisdiction of the Court of Justice of the European Union, including both references from national courts and the Commission’s power to sue Member States for non-application, or incorrect application, of such measures. The majority of Member States (but not including the UK) had already opted in to the former jurisdiction, but the latter jurisdiction is entirely new.

From the same date, the UK can decide to opt out of all the pre-Lisbon policing and criminal law measures (except for those which have been amended since that Treaty entered into force, which the UK could decide to opt in to or out of individually as each of the amended versions was adopted).  If it exercises this block opt-out, the UK can then choose to opt back in to some of these pre-Lisbon measures individually. The decision on its application will be taken by the Commission or the Council, depending on the type of measure (the Council decides where the measure is linked to the ‘Schengen’ treaty on border controls; the Commission decides on all other matters, including the EAW).

The UK has indeed exercised the block opt-out, and has applied to opt back in to 35 measures, as described above. Last night’s vote was the crucial point at which the House of Commons got to vote on the government’s intentions (the House of Lords will vote shortly). The formal decisions on the opt-in will now be taken by the Commission and Council, probably on December 1.

While EU law sets out the overall procedure relating to the opt-out and opt-in, it doesn’t govern the details of parliamentary scrutiny of the government’s decisions within the UK. That’s a matter for  UK law only. So what exactly happened in the House of Commons last night?

The House of Commons vote

The UK government had long promised that Parliament would get to vote on the decision to opt back in to all of the 35 measures. In the event, the Home Secretary declared that last night’s vote, was in effect politically binding as regards all of these measures. But according to a ruling of the Speaker of the House of Commons, the vote was only legally binding as regards 11 of them.

What did the vote concern exactly? It was on a resolution to approve delegated legislation, ie an individual measure which the UK executive can adopt because a previous Act of Parliament gives it powers to adopt that measure, subject to parliamentary scrutiny. Last night’s vote was the key point in that parliamentary scrutiny, as far as the House of Commons was concerned.

The Act of Parliament which gave the government those powers was the European Communities Act, which is the main Act governing the status of EU law in the UK’s national legal order. In particular, section 2(2) of this Act gives the government power to adopt delegated legislation to implement EU obligations, subject to certain limits. That section is very frequently used in practice.

However, it’s never been used before to adopt delegated legislation to implement EU obligations regarding pre-Lisbon policing and criminal law. That’s because it couldn’t be, before December 1 2014. This is due to a limitation in the Act itself. Because policing and criminal law issues were ‘intergovernmental’ (ie essentially decided upon by governments, not the EU institutions) before the Treaty of Lisbon entered into force, they took a different form, and had a different legal status, than ordinary EU law. To take account of this, the European Communities Act never applied to them until now (when the transitional period ends).  

The exclusion of these measures from the Act is implicit in the definition of EU law in section 1(2) of the Act. In particular, that definition excludes Title VI of the original Treaty on European Union (the Maastricht Treaty) and Art. 1 of both the Treaty of Amsterdam and the Treaty of Nice from its scope. Incidentally, the Act still continues to exclude EU foreign policy measures from its scope.

So what does the delegated act which MPs were voting on do? It takes the form of (UK) Regulations, and is further explained in an explanatory memorandum. It makes changes to UK law which the government deemed were still necessary to ensure that 11 of the 35 Acts which the UK is opting back in to are fully and correctly applied in our domestic law.

Six of those measures concern the UK’s mutual recognition of criminal law decisions adopted by other Member States (and vice versa), as regards: confiscation of assets obtained by crime; freezing of such assets provisionally during an investigation and trial; financial penalties (fines) imposed by courts as a result of a criminal conviction; the transfer of foreign prisoners serving a custodial sentence; general rules on in absentia trials as regards mutual recognition; and the European Supervision order, which permits foreigners to be freed pending trial, provided that their home State agrees to supervise them until they face trial in the country concerned.

Three more measures concern police cooperation. Two of them concern ECRIS, a system for the exchange of criminal records between Member States. The third concerns the so-called ‘Swedish initiative’, which governs requests for other forms of information in individual cases between  national police forces.

The final two measures concern joint investigation teams (groups of police officers from multiple Member States, as well as Europol, the EU police intelligence agency) examining cross-border crimes, and data protection rules applying to cross-border exchange of police information (this is distinct from the EU’s data protection Directive).

The political context

As noted above, the Commons vote applied to all 35 measures in a political sense only, not in a legal sense. Legally speaking, the government did not need parliamentary scrutiny of the opt in to the remaining measures, since there was no need to change UK law in order to apply them. However, the UK had promised such scrutiny nonetheless, leading to the confusion and disappointment of many MPs.

It was clearly right in principle to promise full parliamentary scrutiny of the opt in decision, given the public concern and interest in the issue. So it was wrong not to give full effect to that promise, which could have been implemented (for instance) by holding a vote also on a resolution explicitly concerning the opt in to all 35 measures.

The government may have decided not to do this because it wanted to avoid critics of the EAW trying to amend the resolution to force a vote on the EAW separately. But if there is enough concern in Parliament about the opt in to this particular measure (or any others on the list), then MPs should get the chance to vote on it individually.

One of the consistent problems with EU law in the UK (and to some extent in other Member States as well) is its perceived lack of democratic legitimacy. Often that’s the fault of the EU itself, due to a lack of transparency for instance. But in this case, since only UK law governs the process of parliamentary scrutiny relating to the opt in, it’s entirely the fault of the UK government. The likely result of the decision to limit the scope of parliamentary scrutiny will be to damage the legitimacy of the EU further – and to increase, not reduce, the number of Conservative MPs who are very critical of the EU.

Barnard & Peers: chapter 25

The European Arrest Warrant: the case for the UK to stay in

Maria Fletcher, Senior Lecturer in Law, University of Glasgow, and Steve Peers, Professor of Law, University of Essex

The UK government is currently making its final decision on which EU laws on criminal law and policing adopted before December 2009 that it wishes to opt back in to, as from 1 December 2014. The most controversial decision it has to make is whether to opt back in to the European Arrest Warrant (EAW). In this blog post, we set out the case for opting back in to this law.

Background

As part of the Treaty of Lisbon, the Labour Government of the day secured a rather unique legal opt-out for the UK in relation to EU crime and policing matters, which takes effect on 1 December 2014 and which is known as the ‘Protocol 36 opt-out’. This was to be on top of the already secured position whereby the UK (and Ireland), by default, does not participate in the EU police and criminal justice (or asylum and immigration) agenda unless it chooses to opt in to individual measures on a case by case basis, either during the proposal stage or after their adoption.

The Protocol 36 opt-out, completely unprecedented in terms of scope and only available to the UK, entitles the UK to withdraw en masse from EU measures concerning police and criminal justice adopted prior to the Lisbon Treaty (1 December 2009 to be precise). In principle it is an all or nothing opt out in the sense that the UK must opt out of all of these pre-Lisbon measures, or none at all. But, in the event of its exercise, the UK also has the right, within limits, to opt back in to individual measures selectively.

The UK Government officially invoked the opt-out (of 130 measures) in July 2013 and simultaneously produced a list of 35 Pre-Lisbon measures it considered to be in the ‘national interest’ to rejoin. The Government then began negotiations with the European Commission and the Council to seek to rejoin that list of 35 measures – the terms of the Protocol requiring approval from one or other of those institutions depending on the precise nature of the measures. For measures linked to the EU’s ‘Schengen’ rules, such as the Schengen Information System database, the UK needs the consent of all Schengen States to opt back in. For other measures (the majority, including the EAW), the UK needs only the consent of the Commission.

According to the Protocol, the UK and the EU institutions must ‘seek to re-establish the widest possible measure of participation of the United Kingdom in the acquis of the Union in the area of freedom, security and justice without seriously affecting the practical operability of the various parts thereof, while respecting their coherence.’ The UK is therefore likely to be able to insist on opting back in to its chosen measures unless it is opting back in to only part of a package of measures that are deemed to be inextricably linked  (the coherence requirement) or it would be impossible or very difficult in practice for technical reasons to opt back in to one measure but not another (the operability requirement).

At the domestic level, scrutiny procedures by Parliament have been thorough, if fraught, due to the Government’s lack of timely information. The relevant committees of both the House of Lords and the House of Commons have conducted inquiries and produced numerous reports on this matter and both Houses have been promised votes on the overall package of measures to rejoin following the conclusion of negotiations with the Commission and the Council and on the basis of Impact Assessments. But time is running out, especially if the Houses are to be given enough time to reflect upon this important matter.

Although the timetable relating to the Protocol 36 opt-out is entirely out of the hands of the current government, the plain reality is that the timing could not have been worse. With Ukip on the rise and ostensibly gaining ground amongst the traditional Tory vote and now just months away from a general election, the government and in particular, the Conservative party, is seemingly running scared on the topic of Europe.

And one criminal justice measure in particular seems to be fuelling particular panic.

The European Arrest Warrant

The EAW has operated in the UK for a decade, and has made it onto the list of 35 that the Government wishes to rejoin as of 1 December 2014. It is without doubt the most high-profile and controversial of the EU’s criminal justice measures. In essence it provides a simple and speedy procedure designed to surrender people between EU states for the purpose of conducting a criminal prosecution or executing a custodial sentence or spell in detention.  It works on the basis of mutual recognition, such that the authorities in the Member State in receipt of a warrant execute it (arrest and surrender the wanted individual) more or less automatically.

This way of cooperating amongst states – which is based on trusting the integrity of another state’s criminal justice system – was chosen, and indeed advocated, by the UK government of the time, precisely because it entailed the least intrusion by EU law into domestic systems. Rather, decisions or rulings by a criminal court in the UK must be accepted and enforced in any another Member State and vice versa.

It is widely recognised that the EAW has created a more efficient, simpler, quicker, cheaper, more reliable and less political system of extradition in Europe compared to its predecessor 1957 European Convention on Extradition (see the House of Lords committee analysis). Since 1 January 2004, when the EAW scheme came into force, the average time taken to extradite a suspect in cases with consent is just 17 days and in non-consensual cases it is has fallen from around a year to 48 days. The number of wanted persons surrendered to the UK in 2013 was 127, compared to 19 in 2004; and surrendered from the UK upon the request of all other EU Member States was 1126 in 2013 compared to 24 in 2004. Speaking on 9 July 2013 the Home Secretary said ‘[s]ince 2009 alone, the arrest warrant has been used to extradite from the UK 57 suspects for child sex offences, 86 for rape and 105 for murder. In the same period, 63 suspects for child sex offences, 27 for rape and 44 for murder were extradited back to Britain to face charges. A number of these suspects would probably have not been extradited back to Britain without the arrest warrant.

The success of the EAW might be illustrated by the extradition from Italy, in less than eight weeks, of Hussain Osman, who was wanted in connection with the attempted July 2005 London bombings; he was subsequently sentenced to a minimum term of imprisonment of 40 years. More recently, Jeremy Forrest, the teacher who was sentenced in June 2013 for absconding to France with one of his pupils, was extradited back to the UK less than three weeks after his arrest.

 

Notwithstanding these positives, the EAW is not beyond criticism and the most serious two concerns are considered here. It is worth noting however that other criticisms of the EAW appearing in the public debate are, frankly, contrived to fuel anti-EU sentiment and fear. For instance, outrage that the EAW can be used by foreign courts to extradite Britons and in unacceptably large numbers is misplaced on two counts. First, the EAW does indeed require all Member States to surrender nationals, but unlike some other Member States, the UK had never treated nationality as a bar to extradition anyway. The UK had also removed the obligation of the requested State to show a prima facie case in respect of extradition requests coming from Europe, far in advance of the EAW abolishing the same.

And second, the UK may be being required to surrender increasing numbers of individuals to face prosecution under the EAW, but the overwhelming majority (96%) of those are not British nationals – and presumably, on that basis alone, there would not be much appetite to keep them here!

 

Turning then to the two particularly serious criticisms of the EAW.  First, it has resulted in a number of British suspects being surrendered to countries where they then face excessive periods in prison before trial – bail being notoriously difficult to attain as a foreign suspect. Any such instance is unhappy and unacceptable and it certainly fuels the critics who push for the UK’s withdrawal. But alternative options to improve the situation do exist and we would submit that they are preferable to opting-out. For one, the EAW legal instrument could be amended to permit the requested state to postpone the execution of the warrant until the issuing state is ready to proceed with trial, and the UK could push for this. Along these lines, recent amendments to UK law (see further below) mean that a suspect will not be handed over on the basis of an EAW unless he or she has been charged by another Member State.

Another route is to implement an EU measure which specifically tackles this problem - the so called ‘European Supervision Order’. Adopted in 2009, the ESO enables a suspect or defendant who has been granted a pre-trial non custodial supervision order (bail) in another Member State to be supervised in their home MS until such time as their trial takes place. This instrument would allow foreign suspects to be transferred home while awaiting trial and equally, UK nationals to return home while they are on bail. For sensible reasons therefore, this measure is among the 35 instruments which the current government is seeking to opt-back in to.

Finally, a longer term way of addressing the EAW problem is to address its root causes – namely to force those Member States whose criminal justice systems are deficient in these respects to improve the way they treat suspects and defendants. The UK government appears willing to participate partly in this agenda to ensure minimum standards of procedural safeguards to those who find themselves caught up in the criminal justice system (including victims) across the whole EU. To be sure, agreement on these issues across Europe is not easy, but it is a measure of the level of commitment to ensuring fairness and justice that efforts are made to secure appropriate safeguards and standards of protection in addition to securing speedy and effective prosecutions.

In any event, anyone who objects to the EAW on the grounds that it sometimes results in miscarriages of justice should hardly be among those calling for repeal of the Human Rights Act and the UK’s withdrawal from the ECHR, given that one of the main aims of both these measures is precisely to avoid miscarriages of justice. But in fact, the critics of the EAW are often also critics of the ECHR.

The second serious criticism of the EAW is its excessive scope, which enables it to be used in some cases that are trivial, or stale, or both. This causes a headache for UK law enforcement authorities, who must expend significant resource following up all warrants, including those for minor offences. This instrument was designed with serious crimes and organized criminality in mind and the absence of a proportionality requirement undermines this – although in practice a permissible ‘human rights’ requirement, which has been enshrined in UK legislation implementing the EAW, does mitigate the disproportionate impact.  It also worries those who speak for the interests of suspects and defendants.

This problem could be solved at EU level by amending the EAW legislation to include a proportionality requirement (which could be similar to the rules in the recently-adopted European Investigation Order). The European Parliament has also suggested that the EAW rules should incorporate such a rule (along with many other reforms). This issue could also be addressed by creating a workable system specifically for dealing with minor or so-called ‘disorganised’ criminality committed across borders.

Acknowledging that reform is needed, the Home Secretary has already acted upon her promise to pursue changes at the national level by amending the UK legislation implementing the EAW, the Extradition Act 2003, in order (among other things) to introduce rules on proportionality, to provide that a person will not be surrendered if he or she has not been charged, and to refuse to surrender persons if there are charges pending against them in the UK.

So, why then has the UK Government chosen to opt-back in to this measure? To put it simply, as a tool for law enforcement, the relevant UK authorities are convinced that it is, on balance, a good thing. The Association of Police Chief Officers has said that the EAW ‘gives us a stronger, more effective means of arresting dangerous criminals across borders and thus keeping our communities safe at home – it is not an instrument we can afford to lose.’ In fact the evidence amassed during the Protocol 36 parliamentary enquiries overwhelmingly supports retaining the EAW.

It is unlikely that the UK could continue to extradite suspects and criminals in the same way even if it opts-out of the EAW. Certainly it cannot be taken for granted that other Member States would be able to continue to send EAWs to the UK, or execute EAWs coming from the UK, as a matter of law – indeed their implementing legislation would preclude this if it refers only to the EU ‘mother’ legislation, and this would arguably be illegal as a matter of EU law. And any political will to change their arrangements might be stretched by the UK’s unilateral rejection of a previously unanimously agreed instrument, which, after all is supposed to be based on mutual trust.

In this event, extradition between the UK and other EU Member States would essentially fall back on traditional procedures agreed in 1957 under the auspices of the Council of Europe (a non-EU international organization that is most well known for the European Convention on Human Rights). Such procedures are discretion-based, follow a ‘request model’ and are subject to the ultimate control of the executive (making it a political rather than a legal matter). As compared to the EAW (as summarized above), these features combine to make it slow, costly and uncertain, potentially undermining public safety – an almost unthinkable backward step in the cross border pursuit of criminal justice.

It has sometimes been suggested that the UK could replace the EAW with an extradition deal with the entire EU, or with bilateral deals with individual Member States (see the suggestions on the Conservative Home website). While the EU has negotiated an extradition treaty with Norway and Iceland, this took years to negotiate and has not yet entered into force eight years after its signature. Furthermore, this treaty is nearly identical to the European Arrest Warrant. So this process is not efficient and would not free the UK from compliance with most of the EAW’s rules (which the critics of the EAW system dislike so much).

In any event, there is no time before the absolute deadline of 1 December for the UK to opt back in to the EAW to develop an alternative system. There is now little time even to draw up transitional rules which would govern the situation if the UK failed to opt back in on that date. In the absence of such transitional rules, there will be a doubtful legal basis for continuing to arrest, detain or surrender people who are sought by the UK in other Member States or vice versa as of that date.

More generally, having less stringent extradition laws in the UK than the rest of the EU would risk turning the UK into a sort of ‘Costa del Crime’, since criminals might be attracted to come here in light of the relative ease of not being extradited. Conversely, the rest of the EU would become a more attractive bolt-hole for anyone committing crimes in the UK, in particular those who flee to the state of their nationality and argue that they should no longer be extradited from that State (this was the common practice of continental Member States before the EAW was adopted).

It is certainly true that alarmist press coverage has fuelled a widely held belief that ‘Brussels’ is planning to impose on Europe a single, common uniform system of criminal justice. This quite simply is not the case in and furthermore, it cannot be the case under the existing legal framework – there is simply not the political appetite for this amongst the other 27 member state governments, who collectively and for the most part constitute ‘Brussels.’  Even the most potentially ‘intrusive’ EU criminal law measure – the creation of a European Public Prosecutor  - which is still at proposal stage, would only be able to investigate, prosecute and bring to justice those involved in offences against the Union’s own financial interests. The UK has opted out of this proposal, and any extension of its scope would be limited to ‘serious crime having a cross-border dimension’ and require the unanimous approval of all participating Member States and the European Parliament. 

Concluding remarks

The ‘in/out’ option that has emerged in domestic politics is crude and dangerous. The promise of a referendum along those lines by 2017 has seemingly set in train a period of frenzied, mis-leading and alarmist commentary. This intervention seeks to explain some of the basic legal facts and fiction around the UK’s position in relation to EU criminal law.

The Article 36 opt-out does not and cannot rid the UK of the entire EU criminal law agenda, even in the event that the UK Government chose not to exercise its right to seek to rejoin certain measures.  It cannot simply ‘walk away’ from EU criminal law. Any pre-Lisbon measures amended since 1 December 2009 and any new measures adopted since that date are not subject to the Protocol 36 opt-out. And the UK has already committed itself to many of these. This legal reality appears to have been misunderstood or ignored in much of the debate amongst those pushing for the exercise of the opt-out. The fact is that the Protocol 36 opt-out is less about repatriating powers from Brussels than about degrees of future participation in a system already in place. The UK is in a very privileged position in this sense and its ongoing willingness to engage in this agenda is to be welcomed in the interests of safety, security and justice for UK nationals, if nothing else.

The EAW is by no means perfect and reflection, review and reform should never be off the agenda. On balance we believe it to be a positive force and as such it is preferable to be ‘in’ it – with a chance to shape it – than ‘out’ of it. Much the same goes for the European Union itself.

Europe's leaders have recently reiterated their general commitment to accommodating different national positions on integration in the EU: ‘Our diversity is an asset, our unity brings strength. In our Union, different degrees of cooperation and integration exist.’ It would seem that there is a real future for even a typically skeptical United Kingdom in this very modern club of nations whose aims are to promote peace, the well-being of its peoples and its values of respect for human dignity, freedom, democracy, equality, respect for human rights and the rule of law.

Barnard & Peers: chapter 2, chapter 25

Metamorphosis of the third pillar: The end of the transition period for EU criminal and policing law

by Emilio De Capitani

On 1st December 2014, after five years of “legal gestation”, the previous “third pillar” of EU law will finally transform itself from an intergovernmental larva into a supranational butterfly. But will this really ensure a coherent policy, correctly applied by Member States and in full compliance with human rights?

More precisely, in compliance with Article 10 of Protocol 36 to the Treaties, added by the Lisbon Treaty, all the EU measures dealing with police and judicial cooperation in criminal matters adopted before the entry into force of the Lisbon Treaty will be treated like all the other EU legislative measures as far as the jurisdiction of the CJEU is concerned. Their transposition should be verified on the ground and, in case of problems, the Commission will be entitled to bring the Member States to the CJEU, which will also have the power to interpret these measures following references for a preliminary ruling from all national courts (only some national courts can send questions at present).

Moreover, with the end of the last transitional period for the Area of Freedom Security and Justice (AFSJ) it will be possible on the basis of real and transparent data to decide if dozens of measures (such as the European arrest warrant or the PRUM decision) which have been negotiated in a different political and legal context should be revised to comply with the new EU constitutional framework.

Quite surprisingly the aforementioned deadline – which will inevitably have a profound impact on the Member States’ policies and on the rights of the EU citizens – is approaching without any sort of public debate by the civil society, the national parliaments or the academia.

Even at EU level during the last Justice and Home affairs Council where the point was on the agenda no delegations took the floor nor the recent European Council referred to it in the Guidelines framing the future of the freedom security and justice area.

UK opt-in, opt-out and re-opt-in…

Why this silence? It is more than likely that such a “diplomatic” reserve and understatement are due to the fact that the UK is currently negotiating with the Council and the Commission which will be its final position on the former EU third pillar measures. (see here) It is was indeed to comply with the UK’s “red lines” that in October 2007 in the final phase of the Lisbon Treaty negotiations, a five year period freezing the Commission and CJEU enforcement powers was inserted in Protocol 36 (transitional measures).

At that time the UK government’s aim was (and probably still is) to protect its common law systems, and its police and judicial processes from the risk of the CJEU’s “judicial activism”. According to a House of Lords report, the UK Government asked it because the “vast majority” of pre-Lisbon police and judicial cooperation (PCJ) measures were not drafted with CJEU jurisdiction in mind and had often been agreed at the “lowest common denominator” in order to secure unanimity. As a result, much of the drafting was “not of a high standard and may be open to expansive interpretation by the ECJ” (see point 91 of House Of Lords Report “EU police and criminal justice measures: The UK’s 2014 opt-out decision” HL Paper 159).

Very skilfully the UK also obtained in the same Protocol the right to opt out from all the former third pillar measures before May 2014 as well as the possibility of a second thought, after December 1st 2014 of agreeing with the Council (for Schengen related measures) and with the Commission a new opt-in on some (or all) the former third pillar measures. However, according to Protocol 26 the UK re-opt-in could be granted only “without seriously affecting the practical operability” of the third pillar measures and by “respecting their coherence”.

Last year the UK Government submitted to the Council its Opt-Out decision and is now informally negotiating the possible re-opt-in for around 35/37 third pillar measures (see here)

It is too early to know which will be the result of the EU-UK negotiations. However if the Council and the Commission will accept the UK re-opt-in request (which for some measures can be delayed after the end of 2015) the situation will not be extremely different from the one existing before the block opt-out – except that the UK will now be subject to the Commission and CJEU enforcement powers.

The difficult quest of the former third pillar acquis ….

The UK’s (and Denmark’s) peculiar situation aside, the definition of the pre-Lisbon acquis for police and judicial cooperation in criminal matters will be extremely important also for the other EU member States and, quite probably for the European Parliament (EP) and for the national parliaments. The EP is, since the end of 2009, a co-legislator also for police and judicial cooperation in criminal matters but will not be associated with the implementation of Protocol 36. As for national parliaments, they will now share with the EP wide scrutiny powers (Articles 70, 71 85 and 88 TFEU) on these policies, and will at last have the opportunity to check what happened in the EU outside their national borders and even more inside their national territory. Maybe the December 1st deadline could then be an occasion at least for some of them to verify if these EU measures have been correctly transposed and, if they have to be amended (as it still possible for measures such as Europol and Eurojust which are currently renegotiated at EU level).

A revised list of the former third pillar measures has been recently established by the Commission in cooperation of MS representatives. The 123 measures currently covered by Protocol 36 are very diverse: some of them are of quasi legislative nature (such as the Framework Decisions) some others (such as the international agreements or Conventions, and the Council Decision) even if not legislative, are binding, and some others are of uncertain nature as it is the case for the “Joint Actions” adopted under the Maastricht Treaty regime.

As far as the content is concerned these measures deal with:

- mutual recognition of national decisions (such as the European Arrest Warrant (EAW) the European Supervision Order, the mutual recognition of freezing orders; fines; confiscation orders, probation orders; and of prison sentences…);
- harmonization of the definitions of certain criminal offenses and minimum penalties;
- criminal procedures;
- cross-border cooperation, in particular between police and law enforcement agencies, including the exchange of information and the investigation of crime;
- EU agencies (Europol, Eurojust and the European Police College (CEPOL));
- agreements with third countries on information sharing, mutual legal assistance and extradition

The Commission’s list is not final because between now and December 1st some of the measures could still be replaced by texts currently under negotiation. Moreover the Commission has also announced that some of them – which can be considered obsolete – will be repealed.

…the problem of their transposition and operability …

To assess the “operability” of these measures the European Commission has to verify if they have been correctly transposed by the Member States. The Commission is already collecting the relevant information even if it is not yet entitled to open infringement procedures in case of non compliance by the Member States.

It is worth recalling that in some cases (such as for the European Arrest Warrant) the Commission has already submitted several implementing reports. For other cases, the Commission has only recently adressed to the Member States some pre-alert communications which should be taken in account to avoid judicial proceedings after December 1st 2014.

The first pre-alert Commission report deals with the Framework Decisions 2008/909/JHA, 2008/947/JHA and 2009/829/JHA on the mutual recognition of judicial decisions on custodial sentences or measures involving deprivation of liberty, on probation decisions and alternative sanctions and on supervision measures as an alternative to provisional detention. These Framework Decisions (FD) have to be seen as a package of coherent and complementary legislation that addresses the issue of detention of EU citizens in other Member States and has the potential to lead to a reduction in pre-trial detention or to facilitate social rehabilitation of prisoners in a cross border context. 

The first FD (transfer of Prisoners) allows a Member State to execute a prison sentence issued by another Member State against a person who remains in the first Member State. On the other hand, it establishes a system for transferring convicted prisoners back to their Member State of nationality or habitual residence (or to another Member State with which they have close ties) to serve their prison sentence. Article 25 of the Transfer of Prisoners FD in conjunction with Article 4(6) and 5(3) of the European arrest warrant, allows a Member State to refuse to surrender its nationals or residents or persons staying in the latter if the other Member State undertakes to enforce the prison sentence in accordance with the same FD.

The second FD (Probation and Alternative Sanctions) applies to many alternatives to custody and to measures facilitating early release (e.g. an obligation not to enter certain localities, to carry out community service or instructions relating to residence or training or professional activities). The probation decision or other alternative sanction can be executed in another Member State, as long as the person concerned consents.

The third FD (European Supervision ) concerns provisional release in the pretrial stage. It will enable a non-custodial supervision (e.g. an obligation to remain at a specified place or an obligation to report at specified times to a specific authority) to be transferred from the Member State where the non resident is suspected of having committed an offense to the Member State where he normally resides. This will allow a suspected person to be subjected to a supervision measure in his home Member State until the trial takes place in another Member State, instead of being placed into pre-trial detention.

It is worth recalling that at the time of the Commission Communication, well after the relevant deadlines, respectively 10, 14 and 16 Member States have not yet transposed the Framework Decisions.

Another pre-alert Commission report deals with the implementation of the Framework Decision 2008/675/JHA of 24 July 2008 on taking into account of convictions in the Member States of the European Union in the course of new criminal proceedings. This Framework Decision aims to ensure that similar legal effects are given to domestic convictions and convictions from other Member States. Its article 3 is based on the principle of simple assimilation of convictions and imposes as a matter of principle that the legal effects of foreign convictions must be equivalent to the legal effect of domestic convictions. More than 3 years after the implementation date, 6 Member States have yet to notify the measures transposing the obligations of this Framework Decision: BE, ES, IT, LT, MT and PT.

A third pre-alert Commission report deals with the Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of jurisdiction in criminal proceedings. This FD addresses the situations where potentially several Member States are competent to conduct criminal investigations in respect of the crime and proceedings against the alleged perpetrators. This poses challenges not only in terms of coordination and effectiveness of criminal prosecutions, but also with regard to respect for the fundamental principle of criminal law, also enshrined in the Charter of Fundamental Rights of the European Union (“the Charter”), that a person may not be prosecuted and convicted twice for the same offense (Ne bis in idem). More than 1 year after the implementation date, 13 Member States yet to notify the measures transposing the obligations of this Framework Decision: BG, DK, EE, EL, ES, FR, IE, IT, LT, LU, MT, SE and the UK. Seven Member States informed the Commission of the process of preparing relevant transposition measures at national level (BG, EL, ES, FR, LT, MT and SE). However, none of these Member States adopted the measures or notified the Commission at least before April 2014.

In all these pre-alert Communications the Commission has abundantly made clear that the non-implementation of the Framework Decisions by some Member States is problematic since those Member States who have properly implemented the Framework Decisions cannot benefit from their co-operation provisions in their relations with those Member States who did not implement them in time. As a consequence, when cooperating with a Member State who did not implement in time, even those Member States who did so will have to rely on the random and often lengthy practice of traditional mutual legal assistance in criminal matters without a reliable guarantee of a timely detection of bis in idem cases, which should already take place at early stages of criminal proceedings. Such a practice increases significantly a risk of double jeopardy.

…and the problem of their “coherence” and compliance with the EU Charter.

But the priority for the EU legislator in the coming months should be to verify if the former third pillar measures which were negotiated without taking in account the now binding Fundamental rights Charter are consistent with the new EU institutional and legal framework.

Even if some scholars and politicians try to sell the idea that there is a substantial continuity between the pre Lisbon and Post Lisbon era this is certainly not the case for the AFSJ, where the entry into force of the Charter has marked a clear change of perspective. A proof of this has been recently offered by the recent CJEU jurisprudence in the asylum domain where the presumption of compliance with fundamental rights by another Member State has been considered rebuttable in circumstances where fundamental rights are under threat (CJEU Judgment in NS) or to recall the data retention judgment, where the EU data retention  Directive was annulled for violation of the principle of proportionality and of the Charter. If this is the position of the CJEU how many of the 123 measures in the Commission list will require a substantial revision to be considered “coherent” with the new post – Lisbon legal and constitutional framework?

Please don’t throw out real rights for fake security…

Pre-Lisbon measures should also be subject to the parliamentary scrutiny at European and national level as it is required since five years by Article 70 of the TFEU. They should also be effective as they can affect EU citizens’ security and fundamental rights. However it is difficult to ascertain if the interference with EU citizens’ rights has been proportionnate and effective. As the post-Snowden saga has now abundantly showed, “intelligence led policing” and “operational cooperation” cover practices which can be extremely intrusive without offering clear results to the European and/or to the national parliaments. Moreover what is even more worrying is that parliamentarians do not examine whether their country is playing any role in the so called EU “Internal security strategy” or in the “policy cycle” which are less transparent than the “joint actions” negotiated under the Maastricht regime… Are these “soft law” initiatives still justified forty years after the first TREVI cooperation was launched in these domains?  Or, after Lisbon, can the EU citizens expect from the EU and its Member States a legislative framework which can at the same time deliver effective security and protect fundamental rights?

This was announced by the new treaties and by the Charter five years ago and what EU citizens are deemed to obtain; it is then the duty of the incoming Commission and of the newly elected European Parliament to do what the European Council didn’t dare to propose.