Monday 29 December 2014

Childhood’s End: EU criminal law in 2014


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. 



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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