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SECURITY VERSUS JUSTICE?

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Security versus Justice? Police and Judicial Cooperation in the European Union

Edited by ELSPETH GUILD Radboud University, The Netherlands and Kingsley Napley, UK and FLORIAN GEYER Centre for European Policy Studies, Belgium

© Elspeth Guild and Florian Geyer 2008 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. Elspeth Guild and Florian Geyer have asserted their right under the Copyright, Designs and Patents Act, 1988, to be identified as the editors of this work. Published by Ashgate Publishing Limited Gower House Croft Road Aldershot Hampshire GU11 3HR England

Ashgate Publishing Company Suite 420 101 Cherry Street Burlington, VT 05401-4405 USA

Ashgate website: http://www.ashgate.com British Library Cataloguing in Publication Data Security versus justice? : police and judicial cooperation in the European Union 1. Police - European Union countries 2. Criminal justice, Administration of - European Union countries 3. National security - European Union countries I. Guild, Elspeth II. Geyer, Florian 363.2'094 Library of Congress Cataloging-in-Publication Data Security versus justice? : police and judicial cooperation in the European Union / [edited by] Elspeth Guild and Florian Geyer. p. cm. Includes bibliographical references and index. ISBN 978-0-7546-7359-0 1. Judicial assistance--European Union countries. 2. Criminal justice, Administration of--European Union countries. 3. Law enforcement--Europe--International cooperation. I. Guild, Elspeth. II. Geyer, Florian. KJE3795.S43 2008 345.24'052--dc22 2008002527 ISBN 978-0-7546-7359-0

Printed and bound in Great Britain by TJ International Ltd, Padstow, Cornwall.

Contents List of Graphs and Tables Acknowledgements Notes on Contributors List of Abbreviations 1

Introduction: The Search for EU Criminal Law—Where is it Headed? Elspeth Guild and Florian Geyer

vii ix xi xv

1

ACTORS 2

Security, Freedom and Accountability: Europol and Frontex Sonja Puntscher Riekmann

3

Eurojust—A Cornerstone of the Federal Criminal Justice System in the EU? Jiĸí Vlastník

4

5

The Third Pillar and the Court of Justice: A “Praetorian Communitarization” of Police and Judicial Cooperation in Criminal Matters? Eulalia Sanfrutos Cano EU Member States’ Complicity in Extraordinary Renditions Judit Tóth

19

35

51

71

CONCEPTS AND INSTRUMENTS 6

7

8

EU Police Cooperation: National Sovereignty Framed by European Security? Didier Bigo

91

Too Different to Trust? First Experiences with the Application of the European Arrest Warrant Julia Sievers

109

Reflexive Governance and the EU Third Pillar: Analysis of Data Protection and Criminal Law Aspects Gloria González Fuster and Pieter Paepe

129

Security versus Justice?

vi

LAW AND POLICY 9

The Competence Question: The European Community and Criminal Law Valsamis Mitsilegas

10 The Proposal for a Council Framework Decision on Certain Procedural Rights in Criminal Proceedings throughout the European Union Mar Jimeno-Bulnes 11 The “Prüm Process:” The Way Forward for EU Police Cooperation and Data Exchange? Rocco Bellanova

153

171

203

PRACTICE—ACHIEVEMENTS AND OBSTACLES 12 Policing a European Border Region: The Case of the Meuse-Rhine Euroregion Toine Spapens

225

13 Uniforms without Uniformity: A Critical Look at European Standards in Policing Peter Hobbing

243

14 Third Pillar Developments from a Practitioner’s Perspective Richard Lang 15 The EU Counter-Terrorism Strategy and Human Rights in Central Asia: Do as I Say Not as I Do? Susie Alegre

265

279

A POSSIBLE FUTURE 16 The Reform Treaty and Justice and Home Affairs: Implications for the Common Area of Freedom, Security and Justice Sergio Carrera and Florian Geyer

289

Bibliography

309

Index

331

List of Graphs and Tables Graph 1.1

Number of new extradition requests for prosecuting a person issued in the respective year

122

Tables 1.1 1.2 7.1

Numbers of criminal cases dealt with by public prosecutors in 2004 Criminal cases in court 2004 EAWs received by the UK and persons surrendered from the UK on basis of an EAW 2004–2007

13 13 125


Acknowledgements The editors would like to express their sincere gratitude to Maricia Fischer-Souan whose invaluable help over the summer of 2007 has contributed immensely to the finalization of the manuscript. Many thanks as well to Sergio Carrera and Miriam Mir, our colleagues at the Justice and Home Affairs Section of CEPS, for their patience and incessant support throughout the entire project. Above all, of course, we are grateful to our authors for their careful work and countless efforts, for their ideas, their insights and perspectives. Finally, we would like to acknowledge the great support given to us by our editors, Kirstin Howgate and Margaret Younger at Ashgate. This book falls within CHALLENGE—The Changing Landscape of European Liberty and Security—a research project funded by the Sixth Framework Programme of the European Commission’s Directorate-General for Research (www.libertysecurity.org).


Notes on Contributors Susie Alegre is a barrister and independent legal consultant. She is an expert on counter-terrorism, EU Justice and Home Affairs, human rights and international criminal law. She has published extensively on EU criminal justice including coauthoring a book, Eurowarrant—A Solution Ahead of its Time?. She has worked for Amnesty International, JUSTICE and most recently was anti-terrorism adviser at the OSCE ODIHR. She is an associate tenant at Doughty Street Chambers in London. Rocco Bellanova holds a Research Masters in political science and international relations (IEP-Paris) and graduated in international relations (University of Bologna). He has been visiting student at the University of Montreal and at the IEP in Lyon. He has collaborated with the German Member of Parliament Alexander Alvaro, member of the LIBE Committee and is author and member of the editorial team of the journal of the CERI Program for Peace and Human Security, in Paris. Didier Bigo is professor of international relations at Sciences-Po, the Institut d’Etudes Politiques de Paris, researcher at CERI/FNSP and visiting professor at King’s College London, department of War studies. He is the director of the Center for Study of Conflict and the editor of the quarterly journal Cultures & Conflits published by L’Harmattan. Together with Rob Walker he is the co-editor of the new ISA journal International Political Sociology, published by Blackwell. He works on critical approaches to security in Europe and the relation between internal and external security, as well as on sociology of policing and surveillance. He analyses the relations and tensions between international relations, politics and sociology. Sergio Carrera is Head of Section and Research Fellow at the Justice and Home Affairs Section of the Centre for European Policy Studies (CEPS) in Brussels. He is a PhD candidate at the Faculty of Law of the University of Maastricht (The Netherlands). Carrera is an external expert on Justice and Home Affairs for the European Economic and Social Committee and the European Parliament. He is involved in the coordination and research in various trans-European projects such as CHALLENGE—The Changing Landscape of European Liberty and Security—a research project funded by the Sixth Framework Programme of DG Research (European Commission). His main areas of specialization are justice and home affairs, immigration, borders and security. Florian Geyer is a trained lawyer, PhD candidate and Research Fellow at the Centre for European Policy Studies (CEPS) in Brussels. He previously held the post of

xii


senior research assistant and lecturer at the Institute for European Constitutional Law at the University of Trier and worked in a law firm in Aachen, Germany. Together with Elspeth Guild he gave written and oral evidence to Committee inquiries of both Houses of the UK Parliament. For the European Parliament (Directorate-General Internal Policies) he provides external expertise on many issues related to the area of freedom, security and justice. Elspeth Guild is professor of European migration law at the Radboud University, Nijmegen the Netherlands. She is also Senior Research Fellow at the Centre for European Policy Studies in Brussels and a partner at the London law firm Kingsley Napley. She is a visiting professor at the LSE in London and teaches in the department of War Studies at Kings College London. She has recently acted as special adviser to the House of Lords inquiry into EU Economic Migration (the report was published in November 2005) and is a member of the European Commission’s expert group on the policy needs for data on crime and criminal justice. Gloria González Fuster is a researcher at the Institute for European Studies and at the Law, Science, Technology and Society Research Group of the Vrije Universiteit Brussel, Belgium. She has worked for the European Commission and the Education, Audiovisual and Culture Executive Agency, and specializes in data protection. Peter Hobbing is a CEPS Senior Associate Fellow in JHA matters. He obtained his PhD (Dr. iur.) at the University of Freiburg, Germany for a comparative thesis on European and Latin American drugs law. His professional experience includes (besides management posts at national and EU level) practical assignments as commander of a border surveillance unit in German customs as well as 20 years service in various border and criminal-law related departments of the European Commission (Customs and Indirect Taxation, Justice and Home Affairs). In recent years, his interest focused on the European concept of integrated border management as well as the specific challenges of EU-wide police cooperation. Mar Jimeno-Bulnes is Associate Professor of procedural law in the University of Burgos and holds a PhD in Law by the University of Valladolid. Her thesis, “Preliminary Rulings under art.177 TEC,” obtained a national distinction from the Spanish Royal PhD Academy and European funds by the Commission of the European Communities. She has also gained postgraduate qualification from the European Institute in Brussels. She has published widely in Spanish and international journals on matters of civil, criminal, social, constitutional and European processes. Currently she is also acting as temporary judge in the provincial court of Burgos, acting in the civil and criminal law sections. Richard Lang holds a BA (Hons) from the University of Manchester and an LL.M in European law from University College London; he is a solicitor of the Supreme Court of England and Wales. He has previously worked at the European

Notes on Contributors

xiii

Commission and the International Criminal Tribunal for the Former Yugoslavia in The Hague. He is currently Counsel to Crosby, Houben & Aps EU Law Firm in Brussels. Valsamis Mitsilegas is Reader in law at Queen Mary, University of London. From 2001 to 2005 he was legal adviser to the House of Lords European Union Committee. Mitsilegas is a regular consultant to parliaments, international organizations and NGOs. He is a member of an experts’ team drafting the annual Commission-funded report on the implementation of EU legislation on free movement of workers in the UK. He is also acting as expert adviser to the European Parliament LIBE Committee. His work explores the impact of national, EU and international measures justified as necessary to protect internal security on civil liberties and fundamental legal principles. Pieter Paepe is a part time researcher at the Institute for European Studies of the Vrije Universiteit Brussel, Belgium. His research interests are European constitutional and criminal law. He is also a lawyer at the Brussels bar, mainly practising European and commercial law. Sonja Puntscher Riekmann holds a chair at the Department of Political Science and Sociology for Political Theory and European Integration and is head of the Centre of European Union Studies at University of Salzburg. She has been professor for comparative politics at the Humboldt University of Berlin and lecturer at the Universities of Vienna and Innsbruck. She is a member of the Austrian Academy of Sciences, of the board of ECSA-Austria and of the Executive Committee of the CONNEX-Network of Excellence on European governance. A former MP, she is now member of the jury of the LupacFoundation for democracy of the Austrian Parliament. From 1998 to 2007 she has been the director of the Institute for European Integration Research (EIF) at the Austrian Academy of Sciences. Eulalia Sanfrutos Cano is teaching assistant at the Legal Studies Department of the College of Europe, Bruges. She holds an LL.M in EC Law, College of Europe, Bruges, a DEA Droit des Communautés européennes, Robert Schuman University, Strasbourg, a Certificat d’études politiques européennes, Institut d’études politiques, Strasbourg and the Licenciatura de Derecho, University of Seville. Julia Sievers is research associate and PhD candidate at the Jean Monnet Centre for European Studies (CEuS), University of Bremen, Germany. She studied political science at FU Berlin and Duke University, USA, and received her diploma in political science from FU Berlin. Toine Spapens is a Senior Research Fellow at the Department of Criminal Law at Tilburg University. He previously worked at an institute for policy research in the Netherlands. He specializes in empirical research on organized crime and transnational law enforcement cooperation. He is also involved in the research

xiv


program “Regulation of Gambling in Europe” at Tilburg University, focusing on the relationship between gambling and (organized) crime. His current research relates to trafficking in illicit firearms for criminal purposes in the European Union, and the role of organized crime groups in cannabis cultivation in the Netherlands. He wrote his PhD thesis on the interaction between organized crime and law enforcement, based on the case of XTC production and trafficking. Judit Tóth holds a PhD in law, is Associate Professor of constitutional law (Department of Constitutional law, Faculty of Law—Szeged University) and Senior Research Fellow at the Centre for Migration and Refugee Studies (1991–2000) and Minority Studies since 2000 (Hungarian Academy of Sciences). She has published widely on refugee law, migration policy of contemporary Hungary, EU enlargement as well as on diaspora in legal regulation and policy. She has worked in international research teams on migration and human rights issues since 1991, recently in the Sixth Framework Programme project CHALLENGE –—The Changing Landscape of European Liberty and Security. Tóth has been involved in legislative preparatory work as adviser since 1986 (Ministry of Environment, Ministry of Social Affairs, Ministry of the Interior, Parliamentary Committee on Constitutional Reform, Prime Minister’s Office, Ministry of Justice). She represented Hungary on CAHAR (Council of Europe) from 1990 to 1996. Jiĸí Vlastník graduated from the Police Academy of the Czech Republic (2000) and from the Law Faculty of the Charles University in Prague (2005), where he pursues his doctoral studies working on his dissertation thesis on the institutional framework of the cooperation in criminal matters in the EU. He participated in several international conferences concerning cooperation in criminal matters in the EU and published several articles on this topic. He is the author of the monograph “Television Violence and the Law” (2005). He is an Attorney Trainee in a Law office in Prague.

List of Abbreviations AFSJ API Art. 29 WP BES CCTV CEPEJ Cepol CFSP CIS CISA CT DG DNA DPO EAW EC ECHR ECJ ECR ECtHR EDPS EEC EMCDDA EP EPICC EPP EU EUCPN FRA FWD HVD Ibid. IBM ICC ICCPR IGC JHA

Area of freedom, security and justice Advance Passenger Information Article 29 Working Party Bureau voor Euroregionale Samenwerking Closed-circuit television European Commission for the Efficiency of Justice European Police College Common Foreign and Security Policy Customs Information System Convention implementing the Schengen Agreement Draft Treaty establishing a Constitution for Europe Directorate-General Deoxyribonucleic acid Data Protection Officer European arrest warrant European Community Convention for the Protection of Human Rights and Fundamental Freedoms European Court of Justice European Court Reports European Court of Human Rights European Data Protection Supervisor European Economic Community European Monitoring Centre for Drugs and Drug Addiction European Parliament Euroregionales Polizei-Informations-CooperationsCentrum European Public Prosecutor European Union European Crime Prevention Network Fundamental Rights Agency Framework decision High-value detainees Ibidem—in the same place Integrated Border Management International Criminal Court International Covenant on Civil and Political Rights Intergovernmental Conference Justice and Home Affairs

xvi

JHT JSA JSB LIBE Committee LSJ MEP NGO No. NSB OJ OLAF Op. cit. OSCE P. PACE Para. PNR Pp. RABIT SCIFA SCO SIS Sitcen SOFA SSR TEC TEU TFU TREVI

VAT Vol. XTC


Joint Hit Team Joint Supervisory Authorities Joint Supervisory Body EP Committee on Civil Liberties, Justice and Home Affairs Liberty, security, justice Member of the European Parliament Non-governmental organisation Number National Supervisory Body Official Journal of the European Union Office européen de lutte anti-fraude (European Anti-Fraud Office) Opus citatum—the work cited Organization for Security and Cooperation in Europe page Parliamentary Assembly of the Council of Europe Paragraph Passenger Name Record Pages Rapid Border Intervention Teams Strategic Committee for Immigration, Frontiers, Asylum Shanghai Cooperation Organisation Schengen Information System EU Situation Centre Status-of-Forces Agreement Security Sector Reform Treaty establishing the European Community Treaty on European Union Treaty on the Functioning of the Union Terrorisme, radicalisme, extrémisme et violence internationale (whether TREVI actually stands for this is disputed) Value-added tax Volume Ecstasy

Chapter 1

Introduction: The Search for EU Criminal Law— Where is it Headed? Elspeth Guild and Florian Geyer

One of the most dynamic fields of EU law since the great changes brought to the EU constitutional order by the Amsterdam Treaty in 1999 has been cooperation in the fields of policing and criminal justice. Irrespective of whether the Reform Treaty is ratified by the member states, these two areas will continue to be high on the political and legislative agenda. Both fields have already been the subject of substantial legislative effort in the EU and an increasing amount of judicial activity in the European Court of Justice (ECJ). The original three treaties— creating the economic community, atomic energy community and steel and coal community—did not expressly anticipate the inclusion of policing and criminal law. Similarly, the objective of economic integration while requiring a mechanism of enforcement did not foresee the use of criminal law and the concomitant police involvement as a central part of the structure. In 2007, the Reform Treaty planned wide ranging changes to both EU police cooperation and judicial cooperation in criminal matters. In the meantime, the ECJ has found the use of criminal law sanctions in pursuit of Community law objectives to be lawful.1 In order to understand these changes we must first review how we got to the Reform Treaty, what have been the key struggles in competence and how the Reform Treaty changes fit into the transformation of police and judicial cooperation in criminal matters in the EU. To seek for answers to these questions is one of the main objectives not only of this introductory chapter, but also of this entire volume. This book is in large parts the outcome of a doctoral training school that was held in April 2007 at the Centre for European Policy Studies in Brussels, organized within the framework of CHALLENGE—an integrated project funded by the Sixth Framework Programme for Research of the European Commission. Its task was to explore the question: “Police and judicial cooperation in criminal matters in the EU: Which future for the EU’s third pillar?” And in fact at the time of the Training School this future was rather bleak. Hardly anyone would have dared to take a bet that a couple of months later European heads of state and government would actually

1

C-440/05 Commission v. Council 23 October 2007.

2


be able to agree on a text that addresses some of the more notorious flaws in the institutional setting of the third pillar. The circumstances accompanying the production of this volume allow us to take a look at major third-pillar issues from a unique perspective: assessing and analysing their present form (as influenced by their past) while being able to take the changes into account expected to be brought about by the Reform Treaty. As stated above, it is this perspective that makes us understand the envisaged new setting. Furthermore the origin of this volume enabled us to bring together a unique combination of contributors from many different disciplines all across the EU: young researchers at doctoral level together with renowned experts, academics and practitioners alike. Hence the first part of the volume is dedicated to some of the major actors of police and judicial cooperation in criminal matters, notably the agencies and bodies set up at EU level to facilitate cooperation and coordination of national authorities, as well as the European Court of Justice (ECJ) and member states themselves. Accountability, transparency, democratic and judicial control, emerge to be the underlying themes of this first part, themes, however, that constantly reverberate throughout the subsequent chapters. The first part sets off with Sonja Puntscher Riekmann providing (in Chapter 2) a comparative analysis of provisions relating to accountability and transparency in the legal acts setting up Europol (third pillar) and Frontex (first pillar). Jiĸí Vlastník then adds to this by assessing the current and future setting of Eurojust, the European Judicial Cooperation Unit, posing the question whether this unit can be perceived as precursor of a federal style of European criminal justice (Chapter 3). Control exercised by the European Court of Justice in the third pillar is the topic of Eulalia Sanfrutos Cano’s contribution in Chapter 4. A contentious issue as the ECJ was originally intended to play only a minor role in this field. However, “by way of its cautious yet at the same time audacious jurisprudence, the Court has questioned the intrinsic characteristics of intergovernmental cooperation in criminal matters” as she observes. In contrast, the absence of control and the lack of transparency are the major issues of Judit Tóth’s contribution (Chapter 5) concluding this first part on the actors. Drawing from recent reports of the Council of Europe and the European Parliament she addresses EU member states’ complicity in CIA activities on European territory and assesses member states’ reactions to these reports. The second part of the book is dedicated to “Concepts and Instruments.” It commences with a critical assessment by Didier Bigo of the EU development in the area of freedom, security and justice and how this affects national sovereignty. Putting a question mark behind the axiom that we live in a world of unprecedented threats, he raises the question whether state sovereignty is merely an old-fashioned argument masking egoistic self interest or whether it is the ultimate argument against global security hegemony (Chapter 6). In the chapter that follows Bigo’s more conceptual assessment, Julia Sievers concentrates on the flagship instrument of EU-wide judicial cooperation: the framework decision on the European arrest warrant. Applying an empirical approach, she analyses first experiences with the

Introduction

3

application of this instrument, comparing Germany and the UK with regard to legislative implementation and everyday application by national courts. “Too different to trust?” is the provocative starting point of her contribution (Chapter 7). Returning to a more conceptual and theoretical approach Gloria González Fuster and Pieter Paepe scrutinize the contrasting cases of EU data protection and criminal law based on the reflexive governance theory. Their objective is to propose a reflexive assessment of these case studies that may benefit EU third pillar governance (Chapter 8). Under the headline “Law and Policy” Valsamis Mitsilegas, Mar Jimeno Bulnes and Rocco Bellanova in three separate chapters address some of the most contentious third pillar issues in recent years: the Community’s (first pillar!) competence to define legally binding criminal sanctions and penalties (Mitsilegas—Chapter 9); the adoption of common procedural safeguards for suspects in criminal proceedings throughout the EU (Jimeno Bulnes—Chapter 10); and the “Prüm experience” hailed by some as the way forward, criticized by others as a sign of contempt towards EU structures and procedures, lacking parliamentary oversight and involvement (Bellanova—Chapter 11). None of these three issues had been entirely settled at the time of preparation of this volume. And as it appears, not even the Reform Treaty will be able to solve all the questions and struggles that are inherent in them. The last part mainly concentrates on practical questions: “Practice— Achievements and Obstacles” starts off with a contribution by Toine Spapens providing a criminological assessment of trans-frontier criminality in the MeuseRhine Euroregion and how EU and bilateral police and judicial cooperation impacts on this “laboratory” (Chapter 12). In the subsequent chapter entitled “Uniforms without uniformity,” Peter Hobbing sticks to the practicalities of police work. He reports on his frustrating quest to find “common EU standards in policing,” a concept often referred to in EU political statements and legal texts but still far from being reality (Chapter 13). Turning away from policing and the professionals of security, Richard Lang hence shares insights and experience he has acquired as a solicitor in practical cases affected by EU law. In three concise case studies he illustrates different ways in which practitioners can encounter the third pillar (Chapter 14). In the final chapter of this part, Susie Alegre takes a wider perspective, leaving to a certain extent the third pillar behind and investigating the intended global impact of the language and position of human rights in the EU Counter-Terrorism Strategy 2005. She criticizes the absence of any clarity as to how the EU ensures respect for human rights while combating terrorism and states that this makes it difficult for the EU to act as a promoter of human rights in this context outside its borders (Chapter 15). Finally, in the concluding chapter of this volume Sergio Carrera and Florian Geyer assess the impact of the Reform Treaty on the common area of freedom, security and justice (Chapter 16). Having outlined the genesis and structure of this volume, let us return to our introductory chapter and the questions initially posed: how did we got to the Reform Treaty? What have been the key struggles in competence? How will the

4


Reform Treaty fit into the transformation of police and judicial cooperation in criminal matters in the EU?

The EU’s Engagement with Police and Judicial Cooperation in Criminal Matters An EU engagement with policing and criminal law began quite gradually— mainly as a response to the proposal to abolish intra member state border controls (Brouwer 2007). The Schengen Agreement of 1985, although outside the framework of the European Economic Community (EEC) as it then was, first brought to the legislative table the issue of policing. The inclusion in that treaty (which began with five of the then 12 member states) of provisions on police cooperation was the first visible manifestation of member states’ concerns regarding the abolition of intra member state border controls and the effects on policing. In the Single European Act, signed in 1986 to amend the EEC Treaty, the abolition of these border controls was agreed with a deadline of 31 December 1991 without any express reference to policing and criminal justice (Guild 2006). 1990 brought two key changes to the European legal landscape on policing and criminal justice—on the one hand the signing of the Schengen Implementing Agreement which specifically provided for police cooperation across borders complete with the principle of ne bis in idem (the legal principle that an individual cannot be the objective of a criminal trial twice for the same cause of action or double jeopardy); and secondly the signing of the first EUROPOL convention establishing an institution loosely connected with the EU which would provide the engine for EU wide police cooperation. The Rhodes Council of December 1988 tied progress on the abolition of border controls for the free movement of persons with progress on police cooperation and criminal law: “The European Council is aware that in the latter area, [free movement of persons], the achievement of the Community’s objectives, especially the area without internal frontiers, is linked to progress in intergovernmental cooperation to combat terrorism, international crime, drug trafficking and trafficking of all kinds.” To make progress on these issues the Council set up a Coordinators’ Group charged with presenting a report on the field. The result, the Palma Document, was presented to and approved by the Council in 1989, set out, both clearly the framework for police and judicial cooperation in the EU. It is worth going back to that document to examine the agenda which it set out and where we are now. The Coordinators suggest that “The achievement of an area without internal frontiers could involve as necessary, the approximation of national laws and their rules of application and scope, collaboration between national administration and a prior strengthening of checks at external frontiers.” They recommend two mechanisms—one entitled “ad intra” which are the measures needed within the EU to achieve the abolition of border controls. The other they called “ad extra” which relates to external border controls. Looking then, at the ad intra facet, the Coordinators call for three sets of measures which are central to the current area of freedom, security and justice:

Introduction

•

•

•

5

Combating terrorism, drug trafficking and other illicit trafficking: the creation of an area without internal frontiers, in accordance with the Treaty, will require checks at the external frontiers to be tightened up which will involve increased inter-governmental cooperation. Improved cooperation on law enforcement: this improvement will in particular involve closer cooperation between the member states’ law enforcement agencies, and an improved system for exchanging information. Judicial cooperation: judicial cooperation should be intensified, particularly in criminal matters, in order to combat terrorism, drug trafficking, crime and other illicit trafficking. In this context, the possibility of harmonizing certain provisions should be studied.

Just as the deadline for the abolition of intra member state border controls approached, the EU embarked on a new intergovernmental conference which finished in 1991 and resulted in the Maastricht Treaty which reframed very substantially the EU (indeed, the EU per se was only created as a result of the Maastricht Treaty). The famous pillar structure of the EU was created through a new treaty—the Treaty on European Union (TEU). The original three treaties were stuffed into the so called “first pillar,” the only one with legal personality; the common foreign and security policy inhabited the shadowy “second pillar” and the “third pillar” covered justice and home affairs, issues stretching from immigration and asylum to policing and drug trafficking. It is worth noting at this point, that the Coordinators recommended to the Council that terrorism and drug trafficking remain inter-governmental. Cooperation on law enforcement they considered in effect as a practical matter which required law enforcement agencies to speak to one another. Judicial cooperation in criminal matters was tied to combating terrorism and here the Coordinators envisaged the possibility of harmonization. At least it was a subject to be studied. In the event, in the 1991 Treaty, everything went into the third pillar which was definitely intergovernmental in form—run by the member states (primarily the justice and interior ministries)—sheltered from the inquisitive eye of the European Parliament which was entitled only to an annual report; and protected from judicial control by the ECJ. The result may have been satisfactory for some of the actors in the Union but was a source of great friction between and among the EU institutions whose competences were chopped up and divided and the EU institutions and many non-governmental organizations which demanded greater transparency, democratic and judicial accountability.

The 1999 Compromises The shape which the EU took once the Maastricht Treaty came into force in 1993 (the delay a result of a rejection by referendum in Denmark) did not actually last that long. By 1996 a new intergovernmental conference was opened the purpose of which was to achieve a greater degree of institutional and structural order in the EU. A number of fundamental flaws were appearing in the fabric of the

6


EU—judicial challenges among the institutions regarding their competence for policy areas split between the first and third pillars (see for instance ECJ case C-170/96 Commission v. Council 12 May 1998 on the correct legal basis for airport transit visas) and between the Parliament and just about everyone else over the right to participate in the law making process in the split first and third pillars (see for instance C-392/95 Parliament v. Council 10 June 1997 on the legislative procedure regarding the visa list) were cropping up regularly. The result being that the ECJ was ultimately responsible for determining the political structure of the EU. Another source of trouble was the development of the Schengen area and acquis. As the objective of the Schengen Implementing Agreement 1990, the lifting of intra party border controls on the movement of persons, was finally realized in March 1995, and ever more member states became parties to the Schengen system, in the end leaving only Ireland and the UK outside, the EU objective of lifting intra member state border controls on the movement of persons was realized outside the EU but among most of the member states (Brouwer 2007). This perverse situation was made possible through an ever increasing amount of secondary legislation drawn up in the Schengen Secretariat to enable the system to work. However, this mass of measures was a dreadful jumble of policy decisions, operational instructions and determinations of specific cases, just to name a few. The insertion of the whole body into the EU was increasingly seen as a highly desirable outcome. The result in the Amsterdam Treaty was quite dramatic. A new objective was inserted—the creation of an area of freedom, security and justice. First, immigration, asylum and border control was moved (almost entirely) out of the third Pillar into the first. Secondly, the third pillar (until then titled “Provisions on Cooperation in the Fields of Justice and Home Affairs”) was renamed “Provisions on Police and Judicial Cooperation in Criminal Matters.” The third pillar was made subject to the scrutiny of the European Parliament and judicial control by the ECJ—though by a rather peculiar ad hoc system whereby the member states had to opt in to judicial control by the ECJ. Thirdly, the Schengen acquis (that is everything that anyone was able to identify as belonging to the Schengen treaties and their implementing measures) was transferred into the EU either as part of the first pillar or if agreement was not reached that it had a legal basis in the first pillar then by default in the third pillar. One can well imagine just what an exact art it was to determine which bits belonged where. The Commission announced that as far as the first pillar measures were concerned it would be rapidly proposing proper EU legal measures—directives or regulations to replace the somewhat heterogeneous Schengen acquis. Finally, reference was made in the EU Treaty (third pillar) to EUROPOL and the relationship of the EU with the institution which was designed to facilitate police cooperation (article 30 (1) (c) TEU). Sadly, this reorganization of the deck chairs did not resolve the problems of creating the area of freedom, security and justice. The intergovernmental legacy was still too strong. The addition of the Schengen acquis exacerbated the intergovernmental problems which beset the area. Elsewhere we have identified these key problems as follows (Guild 2006):

Introduction

•

•

•

•

7

Operational data and transparency: complaints to the EU Ombudsman and decisions of the ECJ have resulted in new and wide rules on transparency regarding documents in the possession of the Council. The principle in favor of transparency means that to reserve a document there must be a decision on the basis of the facts of each case. This is time consuming; Operational action and legislative weakness: the lack of a firm legislative procedure with a mechanism to control what is on the agenda has resulted in a rather heterogeneous list of measures adopted on the initiative of the member states in response to national or local concerns in the Council’s Police Cooperation Working Party. Operational decisions first, legal bases later: where there is a need identified for a body to coordinate an activity, all too often one is created without regard to the available legal base; Operations, legislative and judicial supervision: when Schengen was inserted into the EU and police and judicial cooperation in criminal matters were divided between the first and third pillars, different rules of jurisdiction of the ECJ apply to the fields depending on where they are.

Until these problems would be addressed, there would be deep divisions among the member states about how to act in the field.

Mutual Recognition as the Organizing Principle The organizing principle which was adopted for police and judicial cooperation in criminal matters was mutual recognition rather than approximation or harmonization (Mitsilegas 2006). This principle was strongly supported by a number of member states though the Commission was less enthusiastic about it (Wasmeier and Thwaites 2004). The institutions have returned frequently to the issue of mutual trust—itself a manifestation in the field of police and judicial cooperation in criminal matters of inter-governmentality (Mitsilegas 2006a). The principle is that rather than harmonize an area of law, member states can retain their national rules. In order to make the national rules fit together after a fashion, they agree that they will accept as equivalent the decision, practice or measure of one member states for the purposes of its effects in another (Peers 2004). According to the Commission’s Communication on the mutual recognition of judicial decisions in criminal matters and the strengthening of mutual trust between member states2 “reinforcing mutual trust is the key to making mutual recognition operate smoothly.” The Commission suggests that mutual trust can be reinforced by legislative and flanking measures. Under legislative measures it suggests: a) improving guarantees in criminal proceedings—a reference to the stalled framework decision proposal; 2

COM (2005) 195 final, 19 May 2005.


8

b) presumption of innocence—a human right in article 6 ECHR—recognized as not being co-extensive across the Union; c) minimum standards on gathering evidence in criminal cases; d) decisions in absentia (where the defendant is not present at the trial); e) transparency in the choice of court—fundamentally linked to the ne bis in idem principle; f) further approximation of substantive criminal law. Under flanking measures it recommends: a) reinforcing evaluation mechanisms—this includes evaluating the specific practical needs of the justice system; b) identifying barriers before new instruments are adopted; c) specific practical conditions for implementation, in particular best practices; d) a general evaluation of conditions in which judgments are produced to ensure high quality; e) promoting networking among practitioners of justice and developing judicial training; f) support for the development of quality justice—to provide funding for contacts and exchanges between practitioners, strengthening judicial training and improving access to justice. Commissioner Frattini, in welcoming the Communication, stated: “the principle of mutual recognition of judicial decisions is the cornerstone of judicial cooperation, but mutual trust between member states is the necessary adjunct, the key to its success. Nobody can impose trust: it has to be built up bit by bit.”3 The list of things needing to be done is impressive. It is hard to imagine trying to get a system of mutual cooperation in criminal matters going without many of these issues being resolved, such as decisions in absentia. Condemning a person in a criminal trial where he or she is not present is high contentious in many member states. The rules around when this is permissible and when it is not differ substantially (Alegre 2003). Thus one might think it would be unwise to proceed with a system of mutual recognition of criminal decisions before this matter has been resolved. None the less it is exactly in this manner that the EU went forward in the field. The key measure adopted by the EU in judicial cooperation in criminal matters is the framework decision on the European arrest warrant (EAW).4 This measure, which sped through the legislative process aided by a political argument that it was needed for counter terrorism purposes, replaces the system of extradition among the member states (Wouters and Neart 2004). The EAW, on the basis of the principle of mutual trust, provides that where an individual is present in one member state but is sought in another member state to stand trial or to serve a 3 4

Press Release, IP/05/581, 20 May 2005. OJ L 190 18 July 2002.

Introduction

9

criminal sentence, the second member state authorities may issue an EAW for the individual to be handed over whereupon the authorities of the other member states must arrest and surrender the individual with limited procedural guarantees (Guild 2006). There is no approximation of rules about trials in absentia. There are three main ways in which the EAW system differs from classic extradition. First, for a list of 32 offences contained in the framework decision there is no need to check that the offence is also an offence in the second member state—the double criminality requirement. Secondly, member states are obliged to extradite their own nationals, something which was contrary to a number of member state constitutions; and thirdly, there is no political offence exception. All three key transformations of the extradition process are based on a presumption that the member states trust one another. They must trust that the definition of offences in one member state’s national law reflects that of another. They must be confident that their own nationals will receive a fair trial in the other member state and thus partially abandon their constitutional duty to protect the citizen (as that duty has been interpreted in some but not all member states). They must be confident that the criminal justice systems of all other member states are not tainted by political considerations which might prejudice the fairness of the charges or trial. This is a tall order for trust among states let alone individuals, particularly when the EAW was not accompanied by what many considered to be the necessary complimentary measure—a framework decision on the rights of suspects and defendants (Morgan 2003), let alone the resolution of all the issues set out by Commissioner Frattini above. In its first substantive judgment on judicial cooperation in criminal matters, the ECJ acknowledged the mutual trust principle as a foundation of the field.5 The specific situation related to the ne bis in idem provision of the Convention Implementing the Schengen Agreement 1990 (CISA). It held: In those circumstances, whether the ne bis in idem principle enshrined in Article 54 of the CISA is applied to procedures whereby further prosecution is barred (regardless of whether a court is involved) or to judicial decisions, there is a necessary implication that the Member States have mutual trust in their criminal justice systems and that each of them recognises the criminal law in force in the other Member States even when the outcome would be different if its own national law were applied. For the same reasons, the application by one Member State of the ne bis in idem principle, as set out in Article 54 of the CISA, to procedures whereby further prosecution is barred, which have taken place in another Member State without a court being involved, cannot be made subject to a condition that the first State’s legal system does not require such judicial involvement either.

The ECJ repeated its finding again in van Esbroeck 6 stating: There is a necessary implication in the ne bis in idem principle, enshrined in that article, that the Contracting States have mutual trust in their criminal justice systems and that 5 6

C-187/01 Gözütok and Brügge 11 February 2003. C-436/04 Van Esbroeck 9 March 2006.

10

Security versus Justice? each of them recognises the criminal law in force in the other Contracting States even when the outcome would be different if its own national law were applied.

The problem is that mutual trust is perhaps more evident in the declarations than the practices of the member states (Mitsilegas 2006a). Mutual trust finds a central place in the opinion of Advocate General Sharpston in Gasparini 7 again a case regarding the application of ne bis in idem. She considered the ECJ’s finding that the ne bis in idem principle implies the existence of mutual trust among the parties in respect of each other’s criminal justice systems. The legal consequence of mutual trust then is the fact that different legal classifications in the criminal justice systems of the member states should not be an obstacle to the application of the principle. She noted that while in Gözütok and van Esbroeck the ECJ treated the lack of harmonization of national criminal codes and procedures as no obstacle in applying ne bis in idem in other cases it has taken a different approach requiring a decision on the merits. She also noted a tension between ne bis in idem as requiring only unity of the legal interest protected and its construction as a fundamental principle of EC law requiring a threefold unity of identity of facts, unity of offender and unity of the legal interest protected. In her opinion, Sharpston argued for a limitation of the mutual trust principle which she considered would permit, at least in the field of ne bis in idem, criminal jurisdiction shopping for instance to find a non-time barred jurisdiction or the opposite.8 Advocate General Colomer, in his opinion in Advocaten voor de Wereld VZW 9 regarding the European arrest warrant also struggled with the concept of mutual trust in the area of freedom, security and justice, though when the ECJ handed down its judgment it was less concerned with this aspect. He considered that inspired by mutual trust cooperation, this field is based not on the coming together of separate interests but on the common provision—the EAW itself. He places mutual trust also in the framework of subsidiarity and proportionality in effect if there is mutual confidence and the reciprocal recognition of judicial decisions then a joint approach is justified notwithstanding the subsidiarity principle. One of the more telling statements in his opinion on the issue of mutual trust relates to mutual distrust—at para. 80 he stated, regarding the need for the ECJ to give interpretative authority to the EU Charter of Fundamental Rights: “in that way it might be possible to avoid repeating past misunderstandings with national courts which have been reticent about the capacity of the Community Institutions to protect fundamental rights.” When the judgments came out in Gasparini and van Straaten (both on the same issue and both published on 28 September 2006), the trust of the accused is 7 C-467/04 Gasparini 15 June 2006 (date of opinion). 8 On this basis Sharpston continued, variations in age of criminal responsibility should not be the subject of an application of mutual trust which would bar prosecution where the age limit is offended in one member state but not in another. 9 C-303/05 Advocaten voor de Wereld VZW 12 September 2006 (date of opinion).

Introduction

11

given a high level of respect by the ECJ. Most telling is the Court’s statement “[Ne bis in idem] ensures that persons, who, when prosecuted, have their cases finally disposed of are left undisturbed” (para. 27). The justification for the tranquillity of the individual is found in para. 30 of the judgment: There is a necessary implication in the ne bis in idem principle, enshrined in Article 54 of the CISA, that the Contracting States have mutual trust in their criminal justice systems and that each of them recognises the criminal law in force in the other Contracting States even when the outcome would be different if its own national law were applied.

The Court’s judgment in Advocaten voor de Wereld VZW presents a somewhat different picture of the debate. So far it is the only decision from the ECJ on the subject, though a number of national constitutional courts have considered the legality of the national measures which transpose the EAW framework decision, not always favorable for the member state (Guild 2006). The ECJ, however, considered that: The mutual recognition of the arrest warrants issued in the different Member States in accordance with the law of the issuing State concerned requires the approximation of the laws and regulations of the member states with regard to judicial cooperation in criminal matters and, more specifically, of the rules relating to the conditions, procedures and effects of surrender as between national authorities. (para 29)

Already one can see that the ECJ is concerned about the approximation of the effects of surrender. The use of the word approximation is politically charged as it is one of the alternative organizing principles to mutual recognition (Peers 2004). While approximation does not go as far as harmonization, it at least indicates that trust is based on legal elements which go beyond statements of officials of what may (or indeed may not be) equivalent for the purposes of mutual recognition. None the less, the ECJ did not consider inadequate the list of 32 offences in respect of which the requirement of double criminality no longer applies in the EAW. At the same time that the principle of mutual recognition in criminal matters began to raise serious issues, a small group of member states decided to push ahead with their own version of mutual recognition in the field of police cooperation— the Prüm Treaty 2005. Here five member states—Austria, France, Germany, the Netherlands and Spain entered into an agreement which provides for exchange of police information and data in a wide field (Balzacq et al. 2006). This treaty, parts of which are also now the subject of a proposed Council decision which, if adopted, would move them into the EU, avoids both the idea of approximation and harmonization. It is only concerned with mutual recognition and primarily concerned with improvement of police cooperation. It is, however, popular, quite a number of member states have expressed an interest in joining the treaty and the proposal for a Council decision has substantial support.

12


The Reform Treaty does not change substantially the emphasis on mutual recognition in this field but approximation has an enhanced position in relation to it. It will certainly be possible, depending on the political will of the member states and the political and judicial pressures which may arise in the area to move towards greater legal certainty in judicial cooperation in criminal matters. While this would undoubted be political sensitive and slow, in the longer term it would enjoy greater legitimacy. However, as examined in the next section, there are still major obstacles to a common understanding of the role of criminal law in the member states. These differences may make the attempt to create an area of freedom, security and justice in these fields particularly complicated.

A Common Area of Police Cooperation and Judicial Cooperation in Criminal Matters? The EU’s area of freedom, security and justice in the field of police and criminal matters depends on coherence in our understanding of what policing is and how criminal justice works. If the social understanding of the two are not sufficiently coherent then the area’s organizing principle of mutual recognition will prove also its Achilles heel (Wasmeier and Thwaites 2004). In order to examine a little further the extent of convergence in member states’ understanding of criminal justice it is useful to have regard to the way in which criminal justice is delivered in the member states. Here the Council of Europe’s report European Judicial Systems (edition 2006) of the European Commission for the Efficiency of Justice (CEPEJ) is invaluable. If one starts with the number of courts per 100,000 inhabitants competent for a robbery trial, it appears that in Austria the figure is 0.19 while in Bulgaria it is 1.87 and in Spain it is 3.45. Clearly there is a quite substantial difference in the perceived need for courts with this type of jurisdiction depending on which member state one considers. More striking is the comparison of numbers of criminal cases dealt with by public prosecutors in 2004. Taking the same criterion, the number per 100,000 inhabitants, a short table of only some member states reveals the picture shown in Table 1.1. Clearly, Denmark uses its criminal court system to a much greater extent than Latvia does. It would seem that the role of criminal justice in the regulation of disputes in these states is substantially different—thus the needs of criminal courts must vary substantially. The numbers of persons who find themselves engaged in criminal court cases will also be very different. For instance, in Denmark there is a 16 per cent chance of an individual being involved as a defendant in a criminal case each year while in Latvia it is 0.6 per cent. The relationship of the society with the criminal justice system is informed by the frequency with which the members of the society find themselves engaged with that system. Such a substantial difference indicates quite a different engagement. The relationship of convictions and acquittals is also interesting to note in different member states. These figures are not presented by reference to number of inhabitants but are interesting by comparison to one another (see Table 1.2).

Introduction

Table 1.1

13

Numbers of criminal cases dealt with by public prosecutors in 2004

Country

Number of first instance criminal cases received by the public prosecutor per 100,000 inhabitants (2004)

Austria

7,697

Czech Republic

1,093

Denmark

16,531

Estonia

2,522

Finland

1,680

Italy

5,454

Latvia

669

Luxembourg

10,630

Portugal

4,739

Spain

9,214

Sweden

2,055

Table 1.2

Criminal cases in court 2004

Member state

Convictions

Acquittals

Bulgaria

57,383

2,953

Denmark

131,298

–

Finland France Germany Latvia Netherlands UK

54,018

3,486

1,115,823

47,800

442,356

37,243

13,222

209

126,174

6,353

1,548,500

50,948

While in France there are more than twice as many convictions of individuals as in Germany, the number of acquittals is only 10,000 apart. Bulgaria and Finland have fairly similar numbers of convictions but the acquittal rates diverge. While Latvia may not bring many people before its criminal courts, it has a low acquittal rate. The UK has substantially more convictions even than France but its acquittal rate is only marginally higher. The relationship of acquittals and convictions may provide some indication of the relative importance which various member states place on achieving an EU measure on the rights of the defence. It is clear that different countries achieve quite different outcomes in respect of their criminal justice systems.

14


The number of public prosecutors per 100,000 inhabitants also gives some indication of the variations which exist among the member states. For example, in Austria there are 2.6 while in Cyprus there are 15.5. In Denmark one finds 10.4 while in Latvia there are 26.0. In the Netherlands there are only 3.7 while in Scotland there are 28.1. Clearly different member states and jurisdictions consider there are very different needs for prosecutors as a percentage of the population. It is surprising, though, when one compares Denmark and Latvia that one finds so many prosecutors in Latvia but few criminal cases and few convictions while in Denmark there are fewer prosecutors but many more criminal cases. Another interesting comparator examined in the Council of Europe study is the status of judges and prosecutors by reference to their levels of pay. In Ireland, for example, the gross annual salary of a first instance profession judge at the beginning of his or her career is €125,563 while that of a prosecutor is €57,630. In Sweden the comparable figure is €23,364 for a starting judge and €38,000 for a prosecutor. In Slovakia the figures are for a judge €17,632 and a prosecutor €12,750. In Poland and Germany however, both judges and prosecutors start at the same level, for Poland €11,633 and for Germany €38,829. In France there is only a small difference: judges start on €49,095 and prosecutors on €50,923. In Denmark, however, judges start on €83,000 and prosecutors on €40,191. Of course these figures are only meaningful in the context of the way in which the different services are organized. But it is important to note that the differences in salary levels between the two professions do not follow the traditional divisions regarding systems of law. Clearly, the duties and roles which prosecutors and judges perform in the member states vary substantially and are remunerated very differently. One must then ask the question whether a decision made by a prosecutor in Slovakia should be equivalent in legal force to that of one made in Sweden. On the basis of their comparative salaries, clearly the Swedish prosecutor is more highly valued in relation to the judge than in Slovakia where the judge is more highly valued in terms of pay. Clearly, it is not for the EU to seek to establish a hierarchical scale of pay for judges and prosecutors in the member states. However, it is incumbent on the EU to recognize that there are very fundamental differences in the importance of different actors in the criminal justice systems of the member states. The holy grail of trust among the member states will be hard to achieve if this difference which, one must suspect, is reflected in the relative authority of the different actors in the national system is not taken into account.

Conclusions After having outlined origin, purpose and structure of this book, we have reviewed in this chapter where the EU’s engagement with judicial cooperation in criminal matters has come from. We have plotted the gradual development of policy spheres then laws in the area over a period of 20 years. In doing so the importance of the abolition of border controls among the member states on the movement of persons has been central as a catalyst. Not least as a result of this starting place,

Introduction

15

the organizing principle of mutual recognition based on trust appears increasingly inadequate for the job. At the heart of the challenges which confront the EU in this field is the diversity which is inherent in it. We have highlighted this diversity through the very divergent figures on criminal systems in the member states. On account of this quite impressive diversity, it is clear that mutual recognition as the operative tool is not satisfactory. When the role performed by the criminal justice systems of the member states differs so dramatically, all efforts to reduce or abolish the effects of jurisdictional limits, the equivalent of border controls for the movement of persons, must be based on a sound understanding of the effect that any measure will have in each member state. This can only be possible on the basis of approximation, where the elements of the criminal justice system are painstakingly assessed and evaluated and only then are they given an equivalence dependent on their effects on the individual and within the community.

References Alegre, S. (2003), “Human Rights and the Future of Extradition in the European Union: Implications of Recent Case Law in the United Kingdom, France and Spain,” ERA Forum, vol. 4 no. 4, 63–69. Balzacq, T., Bigo, D., Carrera, S. and Guild, E. (2006), Security and the Two-Level Game: The Treaty of Prüm, the EU and the Management of Threats, Working Document no. 234 (Brussels: Centre for European Policy Studies). Brouwer, E. (2007), Digital Borders and Real Rights; Effective Remedies for Third Country Nationals in the Schengen Information System (Nijmegen: Wolf Legal Publishers). Fijnaut, C. (2004), “Police Cooperation and the Area of Freedom, Security and Justice,” in Walker, N. (ed.), Europe’s Area of Freedom, Security and Justice (Oxford: Oxford University Press), pp. 241–82. Guild, E. (2004a), “Crime and the EU’s Constitutional Future in an Area of Freedom, Security, and Justice,” European Law Journal, vol. 10 no. 2, 218–34. Guild, E. (2004b), “The Variable Subject of the EU Constitution, Civil Liberties and Human Rights,” European Journal of Migration and Law, vol. 6 no. 4, 381–94. Guild, E. (ed.) (2006), Constitutional Challenges to the European Arrest Warrant (Nijmegen: Wolf Legal Publishers). Mitsilegas, V. (2006a), “The Constitutional Implications of Mutual Recognition in Criminal Matters in the EU“, Common Market Law Review, vol. 43 no. 5, 1277–1311. Mitsilegas, V. (2006b), “Trust-building Measures in the European Judicial Area in Criminal Matters: Issues of Competence, Legitimacy and Inter-institutional Balance,” in Balzacq, T. and Carrera, S. (eds), Security versus Freedom? A Challenge for Europe’s Future (Aldershot: Ashgate, 2006), pp. 279–89. Morgan, C. (2003), “Proposal for a Framework Decision on Procedural Safeguards for Suspects and Defendants in Criminal Proceedings Throughout the European Union,” ERA Forum, vol. 4 no. 4, 91–99. Peers, S. (2004), “Mutual Recognition and Criminal Law in the European Union: Has the Council got it Wrong?,” Common Market Law Review, vol. 41 no. 5, 5–36. Wasmeier, M. and Thwaites, N. (2004), “The ‘Battle of the Pillars:’ Does the European Community Have the Power to Approximate National Criminal Laws?,” European Law Review, vol. 29 no. 5, 613–35.

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Weyembergh, A. (2005), “Approximation of Criminal Laws, the Constitutional Treaty and the Hague Programme,” Common Market Law Review, vol. 42 no. 6, 1567–97. Wouters, J. and Naert, F. (2004), “Of Extradition Warrants, Terrorist Offences and Extradition Deals: An Appraisal of the EU’s Main Criminal Law Measures against Terrorism after ‘11 September,’” Common Market Law Review, vol. 41 no. 4, 909–35.

Actors


Chapter 2

Security, Freedom and Accountability: Europol and Frontex Sonja Puntscher Riekmann

From time immemorial security issues have been driving forces for the integration of political communities and the centralization of political power. This holds true not only for external but as much as for internal security which is to be achieved by maintaining public order, combating crime, and border control. Modern states were mainly formed by warfare and by securing the life and the property of their subjects (Weber 1922; Tilly 1975; Tilly 1992). Hence, policing became a central feature of statehood and intelligence an instrument of utmost importance. However, in the course of the republican and democratic revolutions the powers of the Hobbesian Leviathan were balanced by institutions capable of ensuring civil liberties, political participation and the rule of law. Thus, the subjects became citizens enjoying the right to be protected by the state, but also against the state. This paradox can never be ultimately resolved, but has to be tackled by ever new compromises to be deliberated and negotiated in democratic institutions. The outcome will depend on the contingencies of historical developments, tending towards greater freedom in times of peace and stability as well as to the contrary in times of war and unrest. Since its inception, the state has defined internal and external security as core matters of sovereignty, in particular with regard to the question of who rules in the state of emergency. European integration has slowly but continuously changed this reality by gradually shifting security issues onto the European level in reaction to the rise of problems such as international organized crime, terrorism, and illegal immigration. The process has been steady and cumbersome, whereas member states have chosen different forms of cooperation within and outside European law and institutions, one important feature being the creation of (more or less) independent agencies in particular to carry out the tasks of data collection and exchange (McGinley and Parkes 2007). The institutional choice gives reasons to question its quality in terms of democratic control regarding the preservation of civil liberties or their constraints. Democratic control is first and foremost dependent on the modes of accountability governing the agencies in question. In the first decades of European Union history these aspects did hardly play a role, the TREVI cooperation on terrorism (1975) being the sole early experience in that respect. Being set up in the wake of the terrorist killings at 1972 Olympic Games in Munich and the rise of drug problems in Europe this rather loose form

20


of cooperation of justice and interior ministers, policy experts and police officers did however from the beginning raise the critique of legal experts and human rights groups because of its secrecy. But then, TREVI was strictly intergovernmental and its scope of cooperation quite limited. However, it may be asked whether subsequent developments followed the paths set by TREVI whose meetings are said to be used in order “to extend their autonomy de facto vis-à-vis other national actors” (McGinley and Parkes, 2007, 8; original emphasis) Security issues were forced onto the European agenda with a much broader scope only a decade later when the project of the single market was also conceived in terms of dismantling internal borders thereby facilitating the transnational mobility of (organized) crime. Whereas this logic was widely recognized, a European policy affecting national sovereignty has been much more difficult to achieve. As a matter of fact, intergovernmentalism as well as unanimous decision-making continues to prevail in many respects also today, although since 9/11 internal security matters have dramatically gained importance at the European level (Occhipinti 2003, ix). Since the Council of Tampere in 1999, no other policy field seems to be as dynamic as justice and home affairs (Monar 2002). Moreover, terrorist attacks in Madrid (2004) and London (2005), but also enlargement towards Central and Eastern Europe have fuelled public awareness and fear. Last, but not least illegal immigration is perceived by large majorities of European citizens as a threat to their security, whereby public discourse tends to link immigration to crime in general and terrorism in particular. Hence, EU citizens articulate great support for European security policies in relating opinion polls. Two special Eurobarometer surveys on “The Role of the European Union in Fighting against Organised Crime” (2006) and “The Role of the European Union in Justice, Freedom and Security Policy Areas” (2007) show that overwhelming majorities (albeit with some interesting national differences) are in favor of European cooperation and common action. On average 86 per cent support decision-making at the European level in the fight against organized crime and trafficking as well as against terrorism, 81 per cent support policies against drugs abuse, 78 per cent the exchange of police and judicial information between member states, 73 per cent the promoting and protecting of fundamental rights, 72 per cent the control of external borders and 65 per cent a European asylum and migration policy (Special Eurobarometer 266/Wave 65.4—TNS Opinion and Social, 2007, 3). If opinion polls are at all to be considered as a source of legitimization, European policy-makers appear to act on well-legitimized grounds in this area.1 As to the forms of cooperation citizens seem to prefer “enhanced cooperation or the extension of the Community method to these issues” (ibid., 4) However the usual caveats with regard to such polls apply here as well. Governments, though, have until now established cooperation in this field in terms of “intergovernmental supranationalism” rather than of communitarization. With regard to Schengen, Prüm or the European Gendarmerie the method of 1 Not surprisingly, decrease in support for European policies in the area of freedom, security and justice (AFSJ) correlates with general Euro-scepticism in member states such as UK, Austria and Finland.

Security, Freedom and Accountability: Europol and Frontex

21

enhanced cooperation has been chosen at least at the beginning. Whereas we know the history of Schengen, it remains to be seen whether Prüm or the European Gendarmerie will face the same development of being gradually extended to all or most member states and integrated into the EU legal framework. Thus, institutional choices appear hybrid, flexible and fragmented, but also fluid. Things hardly stay as they have been conceived in the first place. Whether integration works in a neo-functionalist manner as suggested by Occhipinti (2003, 232) or whether it is mainly driven by recurrent stability crises is to be assessed by more in-depth studies. However, after the Treaty of Amsterdam we witness the establishment of a new Directorate-General on Justice and Home Affairs in the Commission, whereas the Tampere Summit of 1999 paved the way for a number of Commission activities. Most importantly the Council charged the Commission with the task of monitoring progress in the AFSJ. Thus the Commission defined a JHA Scoreboard to secure that the goals and deadlines expressed in the Tampere Conclusions and the 2000 Action Plan on organized crime are met (ibid., 79–115). From the very beginning of cooperation in justice and home affairs preference was given to intergovernmental institutions eventually resulting in the third pillar structure of the Treaty of Maastricht, albeit institutional solutions are far from being consistent: Issues such as visa, asylum, immigration, external border control and judicial cooperation in civil matters have been communitarized under Title IV Treaty establishing the European Community (TEC), decision-making is dominated by unanimity in the Council and by the non-exclusive right of initiative exerted by the Commission, whereas the European Parliament (EP) as well as the European Court of Justice (ECJ) play a limited role (articles 67 and 68 TEC). On the other hand, police and judicial cooperation in criminal matters stipulated under Title VI Treaty on European Union (TEU) shows communitarized features such as a mandatory consultation of the European Parliament and the role of the Court of Justice (articles 35, 39, 40a (2), 41 (4) TEU; Monar 2002). Moreover, a high degree of flexibility is to be observed in terms of bi- and multilateral agreements, the Schengen Treaty being the most important case in point in the past and the Treaty of Prüm, the G6 cooperation and the European Gendarmerie in more recent times. However, similarly to Schengen parts of Prüm are to be incorporated in European law in the near future (Council of the European Union, JHA, document no. 6396/07, 12 March 2007, 4).2 The meandering of treaty provisions is as striking as the mushrooming of (independent) agencies in the area of freedom, security and justice. It is the guiding thesis of this chapter that terrorism and organized crime are a particularly fertile ground for agency building in this policy field in that agencies appear to meet efficiency criteria better than other institutional solutions. Interestingly though, the aspect of agencification is hardly mentioned even in papers most critical of the efficiency argument which is said to be detrimental to democracy (McGinley and Parkes 2007, 7). Whereas Europeanization of security issues is perceived “as a result of national bureaucratic activism,” that is “to realise policies 2 For the details see Bellanova, R., “The ‘Prüm Process:’ The Way Forward for EU Police Cooperation and Data Exchange?,” Chapter 11 of this volume.

22


through European cooperation which would have been impossible to achieve in a purely domestic setting” (ibid., 8), the possible relation between this goal and the institutional choice for agencies goes unquestioned. Drawing on the academic literature on agencies, this chapter postulates that agencification follows the logic of technocratic decision-making in relative remoteness as being most suitable to the highly sensitive justice and home affairs (there is no Eurobarometer survey on the citizens’ awareness of or trust in agencies comparable to other EU institutions). It does, however, also argue that remoteness and secrecy are challenged by other national and supranational institutions, in particular by the European Parliament, the European Court of Justice and the Commission as well as by national data supervisory boards. The hypothesis is that the efficiency argument has to reckon with arguments of democratic and judicial control with regard to freedom rights. Albeit the controversy is far from being resolved, agencies are scrutinized and forced to justify themselves in terms of better accountability, the establishment of data protection supervisory boards within the agencies themselves being an instance for it. However, it may be questioned whether such strategy serves the need for data protection in adequate terms, in particular in the eyes of citizens. AFSJ related agencies are the European Judicial Cooperation Unit (Eurojust), the European Police College (Cepol), and the European Police Office (Europol) in terms of police and judicial cooperation as well as the European Agency for the Management of Operational Cooperation at the External Borders (Frontex), the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) and the European Fundamental Rights Agency (FRA). In this chapter I will analyse just two of them, Europol and Frontex,3 giving special attention to the provisions relating to transparency and accountability inherent in the legal acts setting up these agencies. The following reasons have guided this choice: First, because they pertain to two different pillars and are thus supposed to be governed by two different regimes, Europol by supranational intergovernmentalism and Frontex by Community method. Second, because this set-up implies different modes of accountability. Third, it will allow for drawing at least preliminary conclusions with regard to democratic control. Fourth, the results of the study should prepare the ground for further systematic research on the role of agencies in the European Union in terms of efficiency as well as democratic organization of policy making in AFSJ. Two caveats have to be added: first, AFSJ being a very particular policy field due to its implications for national sovereignty, my analytical results may perhaps not be simply transposed onto other policy fields though they should serve as a yardstick for other agencies in AFSJ; second, as the evolution of AFSJ is far from complete, conclusions necessarily remain preliminary.

3 For details on Eurojust see Vlastník, J., “Eurojust—A Cornerstone of the Federal Criminal Justice System in the EU?,” Chapter 3 of this volume.


23

Conceptualization of Accountability Accountability has become “an icon for good governance” (Bovens 2006, 7), but the term is all too often and somewhat confusingly used as a synonym for responsibility, transparency, answerability, and responsiveness. It may however be reasonably argued that accountability is a prerequisite for legitimacy (see Arnull 2002). Without engaging in the theoretical and normative debate about this topic here (see Puntscher Riekmann 2007) I will draw on Bovens’ conceptual framework and advocate a narrow concept of accountability defined as “a relationship between an actor and a forum, in which the actor has an obligation to explain and to justify his or her conduct, the forum can pose questions and pass judgment, and the actor may face consequences” (Bovens 2006, 9). Bovens then draws up a multifaceted set of criteria by which to evaluate accountability procedures governing European institutions. With regard to the agencies discussed in this chapter the focus will be on legal, political, administrative, professional and social accountability, whereas other criteria will be left aside. Political accountability occurs through parliamentary supervision and debate, legal accountability refers to the scrutiny and judgment by courts (European and national), administrative accountability pertains to quasi-legal and quasiindependent institutions such as the European ombudsman or the European Anti-Fraud Office (OLAF), professional accountability to the review of actions by peers and social accountability to fora such as NGOs, interest groups or other stakeholders. Europol and Frontex show important differences in all forms of accountability due to their embededness in different pillars. However, while Europol is largely governed by intergovernmentalism and Frontex is communitarized, they nevertheless offer a picture of intriguing mixtures of decision-making and accountability procedures.

Europol: Intergovernmental Governance and Fragmented Accountability Europol may be regarded as the most important of the ASFJ agencies. Being built upon the European Drugs Unit (EDU) set up by a Ministerial Agreement in 1993, Europol was established in 1995 by a Convention which provided the agency with an enhanced scope of activities and which has been supplemented by various amendments. Europol’s main task is to improve the effectiveness of cooperation of law enforcement authorities in the member states, its mandate being extended incrementally after becoming fully operational in 1999. Currently, a Council decision which is to transfer Europol into the EU legal framework is still under negotiation. In the following I will sketch the picture of the various forms of accountability governing Europol. Political Accountability The Council of Ministers for Justice and Home Affairs is the institution to which Europol is first and foremost accountable. The Council is entitled to dismiss

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the Executive Director and thus able to sanction maladministration. Relevant judgment may be founded on the report of the Joint Audit Committee which is to ensure sound financial management. As Europol’s budget is provided directly by the member states and not by Community resources, the European Parliament as the complementary part of the budgetary authority in the first pillar has no competencies in this respect. The ministers of Justice and Home Affairs are in turn accountable to their national parliaments from which they derive their legitimacy as executives. The national parliaments are to exert control functions generally by overseeing the ministers’ actions as well as specifically in the course of ratifying the Europol Convention and subsequent amendments. However, it is evident that national parliamentary accountability remains weak in most cases since members of parliaments are largely dependent on information provided by the executive. As empirical evidence shows, such system of control can also easily be eluded by delaying essential information or simply by concealing critical issues (Lavranos 2003, 272) as well as by causing information overload. With regard to the ratification of conventions, it is doubtful whether this leads to intensive political deliberation in parliaments which are granted almost no room for modifications. Thus, their role is often minimized to giving formal approval. As to the European Parliament, the Treaty of Amsterdam significantly enhanced its general role in the third pillar due to article 39 (1) TEU which stipulates that there is an obligation for the Council to consult the EP before the adoption of legally binding measures, that is framework decisions, decisions and, as is the case of Europol, conventions (also Art. 34 (1) Europol Convention).4 In terms of informational rights the EP is entitled to receive Europol’s annual reports which is an edited version of those being forwarded to the Council. Whether this editing is only of slight (as the Commission claims) or of fundamental manner (as human rights groups argue) cannot be verified here.5 The Convention amendment of 2003, however, stipulated that the activity reports by the Joint Supervisory Body (JSB) as well as the general reports and the five-year financial plan of the Management Board shall also be forwarded to the EP. Additionally, general questions relating to Europol might be discussed within the Parliament with representatives of the incumbent Council Presidency, albeit taking “into account the obligations of discretion and confidentiality” when providing evidence (article 34 Europol Convention). Hence, the EP’s competencies are basically limited to informational and consultational rights which have been slightly extended in recent years.6 Still, the EP does not posses the right to start specific investigations of maladministration (as provided for in article 193 TEC) or to being petitioned 4 Furthermore, according to article 39 (2) and (3) the Council shall regularly inform the EP of discussions in the third Pillar with the EP being entitled to ask questions and make recommendations. 5 The EP has not issued any opinions on these reports. 6 OJ C 2, 6.1.2004, p. 1 “Council Act of 27 November 2003 drawing up, on the basis of Article 43(1) of the Convention on the Establishment of a European Police Office (Europol Convention), a Protocol amending that Convention.”


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by citizens with regard to matters that directly affect them (article 194 TEC).7 It is thus not surprising that the EP has repeatedly raised the question of democratic control by adopting several recommendations and reports over the years.8 Interestingly, the Council issued a document which reflected upon the democratic quality of Europol in relation to the EP (Council of the European Union 2001).9 In it the Council concluded that measures which do not require Treaty amendments (increasing consultational rights of the EP, transmission of JSB reports, hearing rights with regard to the directors) could easily be achieved “if only there is a political will to do so” (ibid.). However, shortly thereafter political will seemed to be lacking. In the wake of 9/11 the European Council adopted an EU “Action Plan on the Fight against Terrorism” stating the intention to conclude a cooperation agreement between Europol and the relevant US authorities. Although this agreement does not directly speak of data exchange, it envisaged further cooperation with insufficient parliamentary control (Anderson and Apap 2002, 9) and was approved in December 2001 without consulting the EP.10 In the AFSJ the Commission has to share its right of initiative with the member states. With regard to Europol the Commission is indeed invited to attend board meetings but enjoys no right to vote.11 Besides that, the Commission may offer mainly advise, for instance as part of the so called “Friends of the Presidency” groups which play an increasing role in the development of AFSJ as well as part of pertinent Council working groups (Hayes 2006). Moreover, by Council Conclusion 7 These provisions have to be seen in relation to article 195 TEC which entitles the European Ombudsman to receive complaints also in respect of third pillar agencies. Whilst this entitlement is covered by article 41 TEU the aforementioned provisions are not. 8 In April 1999 it adopted a recommendation to the Council on the extension of the powers of Europol and the reinforcement of parliamentary control over it, see European Parliament recommendation to the Council on Europol: reinforcing parliamentary controls and extending powers; A4-0064/1999 adopted on 13 April 1999. In October 2000 it adopted a Report on the Portuguese initiative to extend Europol’s competence to money laundering in general, see Report on the initiative from the Portuguese Republic with a view to the adoption of a Council Act on the drawing up on the basis of Article 43 (1) of the Europol Convention of a protocol amending Article 2 and the Annex to the Convention; A5-0312/2000 adopted on 14 November 2000. In October 2001 it adopted a report on the joint Belgian-Swedish initiative to extend Europol’s competence to all forms of crimes listed in the annex to the Europol Convention, see Report on the initiative of the Kingdom of Belgium and the Kingdom of Sweden with a view to adopting a Council decision extending Europol’s mandate to deal with the serious forms of international crime listed in the Annex to the Europol Convention; A5-0370/2001 Final of 24 October 2001 adopted on 13 November 2001. 9 This document does not provide a discussion in-depth about Europol’s democratic implications but concentrates solely on the role of the EP. 10 It was also approved of creating an anti-terrorism unit inside Europol which was to serve as the main contact point for US agencies. 11 Nevertheless, it should be noted that the Commission has started to play an active role in ASFJ by submitting a range of legislative proposals and communications in various policy fields. The set up of a respective Directorate-General adds to this (see Monar 2002).

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of 14/15 December 2001 the Commission was invited to prepare proposals for a new legal framework recasting Europol. This invitation yielded a Commission proposal aimed at replacing the current Europol Convention with a Council decision, in which, not surprisingly, the Commission chose a communitarized approach envisaging an enhanced role for itself in the Management Board, which will take decisions by a two-thirds majority. Legal Accountability Similarly to political accountability, scrutiny by judicial institutions is fragmented since the ECJ has partial responsibilities and shares judicial oversight with national courts. Europol is subject to ECJ jurisdiction in terms of contractual agreements and non-contractual issues (article 19 Europol Convention). Disputes between member states on the interpretation or application of the Europol Convention can be referred to the ECJ in case the disputing parties agree on doing so (article 40 Europol Convention).12 However, in terms of fundamental rights the ECJ has no competencies in this particular sphere and accountability thus is to be ensured through national jurisdiction. Since the main task of Europol is the handling of personal data, the fundamental right of citizens most affected by Europol’s work is the right of access to personal files.13 In this respect, each member state in accordance with its national law is liable for any damage caused to an individual as a result of erroneous data processing (article 38 Europol Convention). As a result, any citizen who is affected by such misuse cannot appeal to the ECJ due to the lack of legal competences. This situation is by some perceived as a fundamental problem (Kaiafa-Gbandi 2001). According to this interpretation, the capabilities of national courts for offering legal protection are rather limited due to the superiority of the Joint Supervisory Body (JSB) in this respect,14 to the inviolability of Europol archives as well as to the immunity of Europol officers.15 Interestingly though, the role of 12 In the course of the recent amendment in 2003 all member states except the UK decided to do so (see Europol Convention, Annex). 13 Hence, a coherent European data protection regime is of utmost importance for matching the processing of data beyond the nation state. Although member states have been struggling for setting up such a regime, no sufficient agreement has been achieved so far (see below). 14 On the procedures relating to the right of access see article 19 Europol Convention. 15 On privileges and immunities see article 41 Europol Convention. The right of immunity is not granted at participation in joint investigation teams, see OJ C 221 19.7.1997, p. 11 “Protocol drawn up, on the basis of Article K.3 of the Treaty on European Union and Article 41(3) of the Europol Convention, on the privileges and immunities of Europol, the members of its organs, the deputy directors and employees of Europol” and OJ C 312, 16.12.2002 C 312, p. 1 “Protocol—amending the Convention on the establishment of a European Police Office (Europol Convention) and the Protocol on the privileges and immunities of Europol, the members of its organs, the deputy directors and the employees of Europol.”


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national courts is laid down in the Declaration 7 on Article 30 TEU annexed to the Final Act of the Intergovernmental Conference of Amsterdam, which states that “action in the field of police cooperation under Article TEU, including activities of Europol, shall be subject to appropriate judicial review by the competent national authorities in accordance with rules applicable in each Member State.” Administrative Accountability Administrative accountability addresses those types of quasi-legal forums and independent supervisory authorities which exercise control between legal and parliamentary institutions. Given the fragmented accountability structure in legal terms, this form of accountability bears some importance especially with regard to data processing. The protection of personal data is entrusted to the National Supervisory Body (NSB) and the Joint Supervisory Body respectively (article 23 and article 24 Europol Convention).16 They are responsible for reviewing the activities of the Single National Units (SNUs) and Europol in order to ensure that individual rights of citizens are secured when processing personal data. As a result any issue related to the processing of personal data concerns both the supervisory bodies as well as the national courts having respective competencies for legal protection (Kaiafa-Gbandi 2001, 253). However, in case the JSB decides about the legality of the processed data, the national courts have no possibility of appeal in this respect (article 24 (7) Europol Convention). Thus, the gap in legal protection between supranational (ECJ) and national court is filled by a quasilegal body. This situation might easily be regarded as problematic since the JSB is not an independent body given that its duties also encompass administrative tasks (article 12 (2) and article 18(2) Europol Convention) (Ellermann 2006; KaiafaGbandi 2001). In addition to the NSB and JSB respectively, the European Data Protection Supervisor (EDPS) is entitled to monitor the activities of Europol with a similar aim as the JSB. However, its opinions are not legally binding. Professional Accountability Professional accountability is exercised formally or informally (codes of conduct) among professional peers. In this respect there is no clear evidence whether this kind contributes significantly to a sufficient level of accountability. Social Accountability Social accountability addresses mainly those fora which imply a direct relationship to citizens and to the civil society in general. Given the peculiar nature of the aforementioned forms of accountability, it is not surprising that various non-

16 The JSB is composed of two representatives of each of the national supervisory bodies, appointed on a five year term.

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governmental organizations are concerned with scrutinizing Europol.17 In particular, the agency is criticized for covertly gaining new competencies without sufficient public debate and parliamentary oversight (Hayes 2006). By way of excursus, I will briefly focus on the Council decision currently under discussion, as it may change Europol’s accountability structures quite significantly. In line with the will of member states the European Commission on 20 December 2006 presented a proposal for a Council decision establishing the European Police Office (COM 2006/817 final, 2006/0310 (CNS). In its explanatory memorandum the Commission stresses the need for improving Europol’s effectiveness in times of increasing threats of terrorism. The choice for a Council decision, which does not require ratification by the member states, would of course weaken parliamentary control at the national level. To compensate for that, the Commission envisages more parliamentary control at the European level. This is all the more important as the Council decision is to improve data sharing under the principle of availability, which is key to the Hague Programme. Moreover, the Commission proposes to finance Europol from the Community budget, thus putting the agency on an equal footing with the other two security agencies and hence increasing the role of the European Parliament in its control. This is in line with a related resolution adopted by the European Parliament.18 Europol shall be entitled to deal with the 32 crimes which are subject to “fast-tracking” under the European arrest warrant and shall become more “operational” by being part of joint investigation teams. Thus, the mandate of Europol will no longer be restricted to organized crime. As a matter of fact, according to the list of crimes spelled out in Annex I Europol’s mandate will cover almost all classical crimes. Moreover, the agency will be enabled to receive data from private bodies and to support a member state “in connection with a major international event with a public order policing impact.” The creation of new information processing tools is envisaged as much as increasing the efficiency of existing ones. The proposal gives particular attention to the interoperability of data processing systems of Europol and the member states as well as to the access to such systems. Moreover, the importance of the communication of personal data between Europol and national databases, including the access by Europol to those national databases, is an additional reason for the adoption of a Council framework decision on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters, offering an adequate level of protection.19

17 The most notable example for sure is Statewatch which provides access to related documents as well as critical analysis of all Europol developments. 18 Resolution of the European Parliament of 30 November 2006 on the progress made in the establishment of an area of freedom, security and justice, BG-0625/2006. 19 For more details on this proposal see González Fuster, G. and Paepe, P., “Reflexive Governance and the EU Third Pillar—Analysis of Data Protection and Criminal Law Aspects,” Chapter 8 of this volume.


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Frontex: Supranational Governance and Hybrid Procedures of Accountability The main rationale for setting up Frontex is to ensure “a uniform and high level of control” of the EU’s external border which in turn “is a necessary corollary to the free movement of persons within the European Union” (Frontex Regulation, recitals). Thus, the management of the external borders is a complementary measure given the fact that entering the European Union in principle enables persons to move freely between member states. The incidents of 9/11 pushed respective developments a step further and led to a “securitization” of migration policies by linking them to the issue of international terrorism. As a consequence, the Council and the Commission have been given a mandate to work out “arrangements for cooperation between services responsible for external border control and to examine the conditions in which a mechanism or common services to control external borders could be created” (ibid.). Hence, the Commission issued a communication outlining the principles of an Integrated Border Management (IBM) aiming at the elimination of the deficiencies of the Schengen system and the establishment of a coherent approach. Principles of mutual solidarity and burden-sharing are mentioned as being of utmost importance.20 In June 2002 the Council agreed on a “Plan for the management of the external borders of the member states” in which preference was given to a purely intergovernmental enterprise at the ministerial level. Hence, steering processes were put into effect by the Strategic Committee for Immigration, Frontiers and Asylum (SCIFA) formed by the directors-general of national ministries responsible for these issues. A series of joint operations and projects was conducted in the course of 2002/03 within the framework of the “External borders practitioner’s common unit,” a body emanating from SCIFA (Council of the European Union 2003a).21 These activities have de facto forestalled those of Frontex which, established in 2004, became fully operational in October 2005.22 Its central task being the coordination of the operational cooperation between member states, the agency’s competencies have been considerable extended by the Regulation on Rapid Border Intervention Teams (RABIT). The most interesting facet of Frontex though is its foundation on first pillar provisions, while the member states remain in the driver’s seat. 20 The financial burden of administrating the external border is increasingly unbalanced in geographic terms. Due to the processes of enlargement, the EU’s external border is moving further to the east thus imposing these costs on the least developed EU member states. 21 Apart from the main programmes, various ad hoc centres (Centre for Land Borders in Germany, Centre of Excellence in the UK) and pilot projects have been set up. 22 OJ L 349, 25.11.2004, p. 1 “Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the member states of the European Union” (Frontex Regulation). Frontex is based on Title IV (“visas, asylum, immigration and other policies related to free movement of persons”) articles 62 (2) a and 66 TEC. Since the Regulation has to be seen as development of the Schengen acquis, Iceland and Norway as Schengen countries participate in Frontex albeit with limited voting rights in the Management Board. In turn the UK, Denmark and Ireland do not take part in the adoption.

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Thus, with regard to accountability structures the system is necessarily hybrid. Given the entanglement of migration and security concerns in the IBM, respect of human rights is of utmost importance in the course of dealing with refugees. In this respect, doubts have been raised whether (and how) Frontex might be held accountable in case of any human rights violation (IAS 2007).23 Political Accountability Compared to Europol, the Council is in not in such a dominant position which is due to the different Treaty provisions on which both agencies are based. In this respect, Frontex is more in line with other Community agencies. Nevertheless, the Frontex Regulation (recitals) stipulates that the development of the policy on external border control remains a responsibility of the EU institutions, in particular the Council. Moreover, seconded officials as well as national representatives in the Management Board can be held accountable by the respective minister who in turn has to render account to the national parliament. On the other hand, while the Director’s accountability is split between Council and Board in the case of Europol, the head of Frontex is only accountable to the Management Board which is able to dismiss him or her by a two-thirds majority. Since the agency is basically funded by the Community budget, the Council and the EP acting as budgetary authority have a considerable say in this respect. Contrary to its budgetary power, though, the role of the European Parliament is limited as it does not receive the agency’s risk analyses which are presented to the Council and the Commission. It neither receives the results of research conducted with regard to technical developments. Similar to Europol no hearing takes place for the prospective Executive Director before taking office. The EP is merely entitled to invite the Director to report on the carrying out of assigned tasks (article 25 (2) Frontex Regulation). However, there is also virtually no role for national parliaments in this respect. Legal Accountability Most importantly, the ECJ enjoys jurisdiction and “shall review the legality of acts” in terms of “lack of competence, infringement of an essential procedural requirement … or misuse of power” (article 230 TEC). Thus, accountability in terms of sanctions is guaranteed by the ECJ.24 Since Frontex is a Community agency the relevant provisions as regards access to public documents also apply

23 The rationale of the argument is that Frontex operations hinder refugees to enter the European Union. By doing so Frontex violates the granted right of refugees to enter the territory in order to get access to a fair and efficient asylum procedure. 24 “The institution or institutions whose act has been declared void or whose failure to act has been declared contrary to this Treaty shall be required to take the necessary measures to comply with the judgment of the Court of Justice” (article 233 TEC).


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(article 28 Frontex Regulation).25 The ECJ has jurisdiction in contractual and non-contractual liability (article 19 Frontex Regulation) as well as in respect of disputes between member states on issues of liabilities in RABIT operations. However, with regard to RABIT jurisdiction is shared between the ECJ and national courts. Officers participating in such operations are subject to different legal systems, for instance to the law of host member states which is applicable to criminal actions occurring in the wake of pertinent operations. Administrative Accountability Since access to documents is regulated by legislative acts this form of accountability is of less importance compared with Europol where administrative accountability is ensured by supervisory authorities. Complaints may not only be filed at the ECJ, they may also be referred to the European Ombudsman (article 195 TEC). In terms of combating fraud, specific inter-institutional agreements enable OLAF to take all appropriate measures. However, so far neither the website of the European Ombudsman nor that of OLAF gives any indication of complaints or investigations. Financial control is exercised by the Court of Auditors (article 248 TEC). The provisional account for the previous year is forwarded to the Commission by the agency’s accounting officer and is then passed on to the Court of Auditors and the budgetary authority. After having received the Court’s observations the Executive Director shall draw up the final account and communicates it to the Management Board which is entitled to deliver an opinion. Thereafter, the final account and the opinion of the Management Board are sent to the Commission, the Court of Auditors, the budgetary authority as well as to all Schengen associated states. The European Parliament shall finally give a discharge to the Executive Director based on a recommendation of the Council. Professional Accountability As Frontex is assigned tasks related to common training, learning and research the formation of respective epistemic communities are to be expected in the future. Social Accountability Questions of Frontex’s social accountability are raised with regard to the issue of human rights which is perceived to be underrepresented in the agency’s mandate. However, so far NGOs experience difficulties in scrutinizing Frontex’s actions. This may change in the light of the growing responsibilities the agency has to face vis-à-vis refugees and asylum seekers. As a matter of fact, border control can not be limited to simply refusing third country nationals to enter EU territory, 25 See OJ L 145, 31.5.2001, p. 43 “Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents.”

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but has to tackle the question whether or not they have rights to do so and on what legal grounds.

Conclusions: Security, Freedom and Democracy The chapter is guided by the thesis that in terms of democracy and the rule of law all these forms of accountability are more appropriately to be established at the European level, in that accountability structures at the national level appear to be hampered by the logic of intergovernmentalism favoring the executives over the legislatives. The comparison of two agencies, Europol and Frontex, may support this thesis. Interestingly, the Council decision on Europol currently under discussion also points in that direction. Thus, I argue that due to the rapid progress in the area of freedom, security and justice supranationalization of AFSJ agencies, giving the European Parliament and the European Court of Justice full control of them, is the more appropriate way of assuring accountability. In that respect, empowering national parliaments to carry out tasks of scrutiny, is not being ruled out, but is judged as secondary. Europol is sometimes regarded as a “cyber cop” organization with no real operational capacities or coercive powers (Lavranos 2003, 273). This implies the equation of coercive and operational. Besides the fact, that such concepts are always contested, only empirical evidence can tell whether the equation holds true. For example, the self-perception of Frontex is labelled as being “intelligence driven” (Frontex 2005). In contrast, Monar argues that Frontex has been transferred substantial operational powers which go beyond those of Europol and Eurojust (Monar 2005, 136–7; see also articles 2, 8 and 16 of the regulation).26 Similar arguments are put forward by Lavranos (Lavranos 2003, 272–3). Hence, he advocates that the third pillar should be communitarized (Europol and Eurojust, with the subsequent creation of a European FBI) and thus subjected to accountability system of the first pillar, including a criminal prosecutor at the ECJ of which Eurojust can be interpreted as a forerunner. It is not surprising that the EP is arguing in the same vein and pressing for the extension of Europol’s competencies with subsequently enhanced parliamentary control.27 Thus in its proposal for a recommendation to the Council on developing a strategic concept on tackling organized crime the EP:

26 Although this differentiation is blurred, the current trend indicates a further movement into “operation” with the RABIT initiative, “the Frontex Joint Support Teams and the pooling of technical equipment from the Member States” (Frontex 2006). 27 For instance Recommendation to the Council “extension of the powers of Europol and the reinforcement of parliamentary control over it,” C 219 (1999); “Report on the Portuguese initiative to extend Europol’s competence to money laundering,” A5-0312/2000; Report on the Joint Belgian-Swedish initiative to extend Europol’s competence to all forms of crimes listed in the Annex to the Europol Convention in October 2001.


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… calls on the Council to give the necessary autonomy to Europol and Eurojust by granting them full powers of initiative within their respective fields of responsibility so that they can extend their role from coordinator to leader in the fight against organised crime on a Europe-wide scale; stresses that any such expansion of their responsibilities must be accompanied by the establishment of genuine parliamentary oversight, which, for reasons of legitimacy and effectiveness, only the European Parliament is capable of performing correctly. (Draft Report 27 November 2006)

However, some national actors, as for instance the House of Lords, also advocate the empowering the national parliaments together with the EP in a joint committee. Such an approach is legitimate given that the information provided remains mainly in the hands of national authorities. Yet, there are major efforts to increase the cooperation of EU agencies not only in the third pillar, but also with regard to intelligence units in the second pillar (for instance SitCen) (crosspillarization). Given this trend, EP scrutiny seems inevitable in the long run. Last but not least, the newly established Fundamental Rights Agency could provide for better accountability if armed with a comprehensive mandate.28 The discussion about supranational versus national scrutiny should not be discussed on an ideological ground, but consonant with real political developments. If for reasons of better policy-making and efficiency supranationalization of specific policy fields is deemed necessary, democratic control and accountability systems should be implemented at the same level.

References Anderson, M. and Apap, J. (2002), Changing Conceptions of Security and their Implications for EU Justice and Home Affairs Cooperation, CEPS Policy Brief no. 26 (Brussels: Centre for European Policy Studies). Arnull, A. (2002), “Introduction: The European Union’s Accountability and Legitimacy Deficit,” in Arnull, A. and Wincott, D. (eds), Accountability and Legitimacy in the European Union (Oxford: Oxford University Press), pp. 1–9. Bovens, M. (2006), Analysing and Assessing Public Accountability. A Conceptual Framework, EUROGOV No. C-06-01. Commission of the European Communities (2002), “Democratic Control over Europol,” Communication from the Commission to the European Parliament and the Council, COM(2002) 95 final, 26 February. Council of the European Union (2001), Democratic control over Europol, document no. 8677/01, Brussels, 14 May.

28 The establishment of this agency has again raised the question of what purpose such agencies are actually serving. As regards the Fundamental Rights Agency it will likely depend on the individual interpretation of the mandate whether the agency is able to sufficiently monitor human rights related policies. However, from a polity perspective the agency would be perfectly placed to monitor comprehensively those activities which have been put in place in AFSJ (given the fact that this process is dominated by interior ministries). Unfortunately, for the time being the agency has no such mandate.

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Ellermann, J.U. (2006), Europol und FBI. Probleme und Perspektiven (Baden-Baden: Nomos Verlagsgesellschaft). Eurobarometer (2006), “The Role of the European Union in Fighting against Organised Crime,” Special Eurobarometer 264/Wave 65.4, November 2006. Eurobarometer (2007), “The Role of the European Union in Justice, Freedom and Security Policy Areas,” Special Eurobarometer 266/Wave 65.4, February 2007. Frontex (2005), General Report of Frontex for 2005. Hayes, B. (2006), The Future of Europol—More Powers, Less Regulation, Precious Little Debate, Statewatch Analysis, August. Kaifa-Gbandi, M. (2001), “The Development towards Harmonization within Criminal Law in the European Union—A Citizens’ Perspective,” European Journal of Crime, Criminal Law and Criminal Justice vol. 9 no. 4, 239–63. Lavranos, N. (2003), “Europol and the Fight Against Terrorism,” European Foreign Affairs Review vol. 8 no. 2, 259–75. McGinley, M. and Parkes, R. (2007), Data Protection in the EU’s International Security Cooperation: Fundamental Rights vs. Effective Cooperation?, SWP Research Paper no. 5 (Berlin: Stiftung Wissenschaft und Politik). Monar, J. (2001), “The Dynamics of Justice and Home Affairs: Laboratories, Driving Factors and Costs,” Journal of Common Market Studies, vol. 39 no. 4, 747–64. Monar, J. (2002), “Decision-making in the Area of Freedom, Security and Justice,” in Arnull, A. and Wincott, D. (eds), Accountability and Legitimacy in the European Union (Oxford: Oxford University Press), pp. 64–80. Monar, J. (2005), “Justice and Home Affairs,” Journal of Common Market Studies, vol. 43 no. 1, 131–46. Occhipinti, J. (2003), The Politics of EU Police Cooperation: Towards a European FBI? (London: Lynne Rienner Publishers). Puntscher Riekmann, S. (2007), “In Search of Lost Norms: Is Accountability the Solution to the Legitimacy Problems of the European Union?,” Comparative European Politics, vol. 5 no. 1, 121–37. Tilly, C. (1975), The formation of National States in Western Europe (Princeton, NJ: Princeton University Press). Tilly, C. (1992), Coercion, Capital, and European States, A.D. 990–1990 (Oxford: Blackwell Publishing). Weber, M. (1922), Wirtschaft und Gesellschaft (Tübingen: J.C.B. Mohr).

Chapter 3

Eurojust—A Cornerstone of the Federal Criminal Justice System in the EU? Jiĸí Vlastník

In 2002 a new piece was added into the mosaic of European Union agencies, bodies and institutions. A piece that was the outcome of a long debate of conflicting views on the European criminal justice system. A piece that aimed at reconciling the intergovernmental method with desired efficiency and the sovereign execution of criminal justice with a European-wide fight against transnational organized crime. Eurojust joined the European institutional framework. Even if its history is short, some strong points and weaknesses of its unique construction have already appeared. What is the position of Eurojust in the EU criminal justice system? May it be perceived as a display or as a precursor of a federal style of European criminal justice? May Eurojust under its current legal framework fulfil its principal task efficiently—to bring an added value to the fight against organized crime? Could this added value be higher? These are some of the questions which this chapter tries to answer. Having very briefly summarized Eurojust’s historic background the chapter studies the current Eurojust legal framework distinguishing between two roles of Eurojust—Eurojust as a trust promoter and Eurojust as a prosecution facilitator. In its final part, the chapter examines Eurojust from the de lege ferenda1 perspective focusing on changes which shall appear in a Reform Treaty draft.

Eurojust’s Legal Background The founding treaties of European Communities did not contain any explicit provisions concerning cooperation in criminal matters (hereinafter referred to as criminal justice cooperation). However, both internal and external factors2 1 What the law should be (as opposed to what the law is). 2 Internal factors are inherent to developments within the EU (for example functional spillover, deepening of integration, enlargement of the EU, Schengen agreements, evolution of the EU crime scene etc.). External factors apply from territories behind the EU external borders (for instance globalization of crime, political instability and poverty, legal and a clandestine migration and so on).

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led to the establishment and gradual deepening of European criminal justice institutions. Thus the TREVI group was established in 1976 becoming a place of information exchange between representatives of governments, security experts and police officers, its remit being progressively extended as new internal and external threats appeared.3 Based on Article K.3 of the Treaty of Maastricht,4 which added the so-called third pillar (Justice and Home Affairs—JHA) to the EU construction, the Europol Convention was signed on 26 July 1995. Replacing the European Drugs Unit, Europol eventually started its full activities as of 1 July 1999. Judicial cooperation lagged far behind police cooperation, despite the fact that the police and judicial sectors are closely interrelated. In order to compensate for this deficit, several actions were taken. The basis for the exchange of liaison magistrates was laid in 1996 and in 1998 the European Judicial Network was created. The Treaty of Amsterdam5 then brought a new impetus for criminal justice cooperation. Whereas pursuant to the Treaty of Maastricht criminal justice cooperation was linked especially to the free movement of persons, the Treaty of Amsterdam introduced the new term of an area of freedom, security and justice (AFSJ), as an objective of the EU. Soon it became the key-term for all following third pillar action programs and legislation efforts. The objective of the AFSJ was clearly distinguished from mere economic objectives of the European Communities. In 1998 the Justice and Home Affairs Council adopted the so-called Vienna action plan on how to implement provisions of the Treaty of Amsterdam within the AFSJ.6 This plan was soon followed by a political program of further development of the AFSJ approved by the 1999 Tampere European Council.7 Even if not of a binding nature, these documents gave the necessary drift to further development of criminal justice cooperation. Paragraph 46 of the Tampere conclusions called for the establishment of a Eurojust unit composed of national prosecutors, magistrates, or police officers of equivalent competence, from each member state according to its legal system. The objective of Eurojust was to facilitate the cross border criminal justice cooperation mainly in the field of organized crime by coordinating national prosecuting authorities and supporting investigations. The Council was called upon to adopt the necessary legal instrument by the end of 2001. In 2000 Pro-Eurojust (Provisional Judicial

3 Decision of Ministers of Justice and Home Affairs in the framework of the European Political Cooperation. TREVI stands for “terrorisme, radicalisme, extrémisme et violence internationale.” For more details see Occhipinti 2003. 4 Signed on 7 February 1992, entered into force on 1 November 1993. 5 Signed on 2 October 1997, entered into force on 1 May 1999. 6 Text adopted by the Justice and Home Affairs Council of 3 December 1998, (1999/C 19/01). 7 These two programs set the priorities until 2004. They have hence been followed by The Hague Programme.

Eurojust – A Cornerstone of the Federal Criminal Justice System in the EU?

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Cooperation Unit) was created. It was soon replaced by Eurojust (European Judicial Cooperation Unit), established by Council decision of 28 February 2002 (hereinafter referred to as the Eurojust decision), whose adoption had been accelerated by the 11 September 2001 events. The Treaty of Nice8 centred Eurojust in a primary law framework in articles 29 and 31 of the Treaty on European Union (TEU) recognizing its role as one of the key players in the criminal justice cooperation field. The draft Treaty establishing a Constitution for Europe (CT) introduced some major changes concerning Eurojust’s concept, shifting it another step further towards a federal criminal justice concept. As these provisions remained intact by the June 2007 European Council conclusions setting a mandate for a 2007 Intergovernmental Conference,9 they form part of the Reform Treaty as adopted in December 2007.

The Current Legal Framework of Eurojust Criminal law has been traditionally perceived as being intrinsically linked with state sovereignty—states not willing to share the execution of criminal justice with others. On the other hand, internal an external factors pressed for the enhancement of efficiency of the criminal justice cooperation within the EU. It is precisely at this focal point of antagonistic interests where the unique character of Eurojust takes its source. Eurojust has a double nature. It consists of one national member from each member state. National members form part of their national criminal justice systems as judges, prosecutors or police officers of equivalent competence. They may be assisted by one or more persons.10 When carrying out their powers, national members and their assistants remain subjected to their national law.11 It is upon member states to decide who they will appoint for Eurojust, as well as from which national body these persons will come from,12 which powers they will keep within their home jurisdictions, and what their term of office will be.13 This constitutes the national feature of Eurojust. On the other hand, national members all together form the Eurojust College, a collective organ of European character deciding in principle by majority vote (qualified two-thirds majority or simple majority). This represents the European feature of the body, which is however weakened by the lack of real European

8 Signed on 26 February 2001, entered into force on 1 February 2003. 9 Presidency Conclusions, Brussels European Council 21/22 June 2007, Council doc. 11177/07, CONCL 2, 23.6.2007. 10 See article 2 paragraph 1 of the Eurojust decision (currently the majority of National Members are prosecutors). 11 See article 9 paragraph 1 of the Eurojust decision. 12 Currently the majority of national members are prosecutors, there are no police officers. 13 The length of term of national members varies from two years (Cyprus) to an undefined period (Malta, Netherlands, Poland).

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powers. The mixed character is emphasized by the fact that whereas national members are paid by their national governments, the Eurojust infrastructure is financed by the EU budget.14 Two principal Eurojust missions may be distinguished. The first, rather informal, but of crucial importance is the promotion of mutual trust in the domain of criminal justice cooperation. Promotion of mutual trust is then an indispensable condition for the effective implementation of the second Eurojust mission: the facilitation of prosecution. Both missions will be further addressed in the following. Eurojust as a Trust Promoter Trust and confidence are indispensable conditions for implementing the principle of mutual recognition and for an effective institutional cooperation. Consequently, the promotion of mutual trust and confidence has been at the centre of EU third pillar actions. Yet it is necessary to distinguish between trust and confidence. Some authors use these terms promiscue. However, the substance of each of them is different. Confidence being an accomplished state of mind, and trust or trusting describing rather a process of reaching this state, a way of building confidence (Walker 2002). From this perspective, trust precedes confidence.15 The active investment into trust is an indispensable condition for reaching the state of confidence. Confidence may not be attained but through the process of trusting. Confidence is then a conditio sine qua non of a smooth and effective institutional cooperation. In the commercial sphere, a lack of confidence is often an obstacle to the conclusion of a simple contract and pushes for a detailed and often superfluous regulation between the contracting parties, which in turn increases the transaction costs and delays the conclusion of a contract. Accordingly, in the criminal justice cooperation sphere, a lack of confidence results in hesitations over whether a request for mutual legal assistance should be lodged, whether documents should be handed over, or relevant information revealed to a foreign partner. It often presses for a detailed regulation of inter-institutional relations and for an introduction of special warrants which all complicate and delay an effective operation of a criminal justice system. As said above, trust means an active individual investment. But obstacles appear that hinder the investment into trust. These may be called the sources of mistrust and they may be various. Taken in the EU criminal justice cooperation context, the sources of mistrust blocking interinstitutional relations from their development and effective functioning may be divided into four sets (the division done for the purpose of this chapter being non-exhaustive): a lack of knowledge, different legal standards, bad experience and a traditional conservatism. 14 Therefore it may happen that, for example, a member of the Eurojust administrative personnel receives a higher salary than a Eurojust national member. 15 Even The Hague Programme seems to distinguish between these two terms in this sense—see its article 3.2, Brussels, 27 October 2004.


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Lack of knowledge A lack of knowledge of a foreign environment is always a source of mistrust. This is natural, as in an unexplored, unknown environment, one does not find supporting points one is familiar with and may rely on, leading to insecurity. The lack of knowledge as a source of mistrust covers especially: • • • •

a lack of knowledge of a legal regulation (substantive as well as procedural) in another member state; a lack of knowledge of institutions, their representatives, formal and informal practices in another member state; a lack of knowledge of foreign culture, customs and habits; a languague barrier.

What is the role of Eurojust in removing these sources of mistrust? It appears clear that the sources of mistrust falling into this category may be removed by educational means, by special courses, seminars, conferences, by personal contact of law enforcement personnel, by exchange programs, by interlinking the central and local law enforcement levels. From its very beginning, Eurojust has taken a very active part in these areas. As has been emphasized by many Eurojust national members, the principal added value of Eurojust, which is the first permanent EU judicial institution, is that it puts together 27 national members (not including two liaison prosecutors from Norway and the USA) seconded by each member state around one table, all of whom are in daily contact, meeting all together at least once a week as a College.16 The fact of being a permanent and centralized body distinguishes Eurojust from other bodies whose role in this area is similar, such as liaison magistrates and the European Judicial Network. The international and multicultural environment of Eurojust is a platform for a permanent dialogue helping to point out at and to rub down some points of friction between different national legal systems, thus gradually building confidence in member states’ respective legal systems. From its origins, Eurojust and its national members invested much effort into marketing Eurojust and its activities in member states. It should be noted here that Eurojust organizes thematically oriented seminars17 and conferences for experts to find solutions to some problems. Then, even if the Eurojust decision does not assign Eurojust any role to participate in a European legislative process, a legal department of Eurojust may (upon a request of the European Commission) give opinions and observations to legal proposals which may make these proposals respond to daily-routine problems that Eurojust experiences. This information process should definitely continue. 16 See article 8 of the Eurojust Rules of Procedure. 17 For example the seminar in November 2003 on which jurisdiction should prosecute resulting in a set of guidelines which should be taken into account when determining the relevant jurisdiction. Other seminars include, for example, a seminar on the European arrest warrant held in Prague in October 2004 and a Seminar on joint investigation teams held in The Hague in November 2005.

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Different legal standards Not only lack of knowledge of a foreign legal system, but a good knowledge of it as well may become a source of mistrust, provided that some of its legal standards are deemed insufficient. This is particularly true for the domain of the protection of basic human rights and freedoms, some of which are particularly relevant for criminal procedure, such as the right to fair trial, the principle nullum crimen sine lege,18 personal data protection etc. This shows well the interdependence of the three grounds of EU criminal justice cooperation—mutual recognition principle, institutional cooperation and harmonization of national laws. Bad experience Sources of mistrust falling into the third category apply only when a bad experience of investing into trust already exists, this experience of non-fulfilment of trusting expectations having a particularly devastating effect on mutual relations and future cooperation. It may have different backgrounds such as a negative experience of a lack of willingness to cooperate, lack of flexibility, police or judicial malpractice, corruption, information leakages, bureaucracy, or non-reciprocity. Eurojust has a double role here—(a) to be “a good” experience for national organs referring their cases to it and (b) to remove causes of bad experience on the national level. As for the “Eurojust level” the original idea and principal task of Eurojust has been to focus on complicated multilateral cases. However, in order to promote the trust in its services Eurojust tried from its creation to deal with all submitted cases.19 Nowadays, already well established, it may in some cases refer the requesting body to another institution that is more competent to deal with less complicated requests (for example liaison magistrate, contact point of European Judicial Network and so on). In any case, building an environment of mutual understanding and solidarity, and applying a relatively informal approach and maximum simplification of the conditions of a case referral to Eurojust (including a reduction of a paper work) seem to be the most important means to remove mistrust in this area. At the “national level” an important Eurojust task is to remove blockages of effective cooperation between authorities of different member states. The main advantages of using Eurojust as a channel of mutual legal assistance are personal contact and public pressures that Eurojust may exert upon foreign national authorities through the threat of a public critique in the Annual Report. To summarize, trust must not become the mother of deception and disappointment. The traditional conservatism of law enforcement authorities Criminal substantive as well as procedural law are perceived as being closely linked to the core of state sovereignty and at the heart of the social contract (de Hert 2004). This in turn 18 No punishment for an act which has not been previously and unambiguously declared criminal. 19 See declaration by Michael Kennedy, in House of Lords (2004), appendices, p. 44.


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often results in a so-called traditional conservatism—a lack of willingness to share criminal cases with foreign institutions and a tendency to lead a criminal case from first acts of criminal procedure until the court’s final judgement. This reticence appears not only at the EU level but in some federal states as well. In some cases it took many years before acceptable arrangements between state and federal organs have been found. The traditional conservatism may be to a large extent limited by removing the sources of mistrust falling into the three categories mentioned earlier. It implies as well a clear definition of common values and priorities of both the EU and member states—in other words, coordination between the European and national levels. Here again, Eurojust has an invaluable role. As already mentioned, Eurojust national members have a double nature. First, they form part of national criminal justice systems. This certainly promotes trust of other national organs, as their national member is “one of them,” whereas European bodies may be considered as rather strange, distant and incredible. Second, national members act as a College, a collective organ of a European character. This permits to approximate interests and priorities of member states and of the EU due to the daily dialogue between national members and due to Eurojust’s contact with other EU bodies, especially with the Commission and OLAF (the European Anti-Fraud Office). Last but not least, the Eurojust concept may help to approximate the European level of the criminal justice to the local one. The attainment of this objective implies the creation of institutions linking national members, their assistants and national correspondents with the very bottom level of a national criminal justice system. This seems to be one of the major tasks of a national legislator as these networks should have a firm institutional basis. To conclude this part of the chapter, we may state that in order to enhance the efficiency of EU criminal justice cooperation, sources of mistrust which constitute obstacles to the investment into trust as a means of attaining confidence must be removed. The knowledge, skills, integrity and motivation of the law enforcement personnel must be promoted. Eurojust is an important player in this field, being a component of the chain of the institutional underpinning of the trust promoting process which requires a comprehensive policy both on a European and on a national level. The investment into trust always implies making a leap of faith as it contains an inherent element of risk (Anderson 2002). The mentioned process of trust promotion should increase the probability of making this leap by solidifying the base for bouncing. It is not possible to bounce from the sand, a solid surface must be laid. If not concrete, then clay at least. Eurojust as a Prosecution Facilitator When analyzing the status of Eurojust, two sets of powers must be distinguished— (a) powers of national members within their home jurisdiction and (b) Eurojust powers. The principal criterion is the source of the power. Whereas powers of national members are of a national origin emanating from the national legal order, the Eurojust powers are of a European origin taking source in European law.

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Powers of Eurojust national members within their home jurisdictions The Eurojust decision stands on a very minimum definition of a common standard of national members’ powers. A Eurojust member must (1) have access to the information contained in the national criminal records or in any other register of his member state in the same way as stipulated by his national law in the case of a prosecutor, judge or police officer of equivalent competence and (2) must be competent to contact the competent authorities of his member state directly. It should be noted here that whereas in some member states special legislation was adopted in order to implement the Eurojust decision,20 in others there was no need to adopt it and Eurojust national members were appointed under existing legal frameworks.21 Consequently, powers of national members vary considerably reflecting differences between member states’ criminal justice systems. Whereas a majority of national members dispose of prosecutorial powers (even if these powers differ very much as well),22 others serve only as transmission channels for mutual legal assistance and their position thus resembles contact points of the European Judicial Network assembled in one building.23 The Commission’s complaint about this minimum standard is the fact that the very notion of a prosecutor is emptied of its substance. Definitely Eurojust should not substitute the operation of national bodies. It should complement it. However, in some cases it is necessary to take a binding decision within minutes and any further segment of a criminal justice chain entering the scene may delay the decision taking to an extent that it will not be necessary any more. This is particularly true for crimes taking place in the proximity of member states’ borders. A Swedish case may serve as an example of involvement in Eurojust balancing carefully between efficiency and legitimacy. Both the Swedish national member and his assistant are public prosecutors and have the competences which that appointment entails. Then they have been given nation-wide operative competence. Their main task is to assist national Swedish prosecutors when they need help with coordination or cooperation in criminal investigations which concern two or more member states. In addition, they may undertake investigation or prosecutions, even if normally they would not do so (Wersäll and Webber 2004). Eurojust powers Properly speaking, under the current rules there are not any Eurojust powers, but only special Eurojust tasks of a coordinating, recommending and supporting nature without any enforcement or sanction mechanisms. These tasks fall into two categories—(a) powers of Eurojust acting through national members and (b) powers of Eurojust acting as a College.24 The principal distinctive criterion of these tasks is not the content (the wording of articles 6 and 7 of 20 For example, Portugal, Spain, Germany. 21 For example, the Czech Republic. 22 For example all “new” member states, as well as Ireland, United Kingdom, Portugal, Sweden, Finland, Italy, Spain. 23 Cases of Belgium, Denmark, Germany, Austria, Luxembourg. 24 See articles 6, 7 of the Eurojust decision.


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the Eurojust decision being largely similar), but the form. Whereas when acting through national member the decision is taken by an individual, when acting as a College the decision is an emanation of a collective will expressed in principle by a majority vote (qualified two-thirds majority or a simple majority).25 The decision of the College has more weight. In case the national authorities refuse to comply with it, they are obliged to inform Eurojust about the reasons for this refusal. However, the only sanction is a publication in the Annual Report, the only Eurojust “coercive” tool being the potential shame which this publication entails. Due to the lack of real powers, we may conclude that currently, Eurojust is an intergovernmental, not a federal style body, as all powers which its national members exercise are of a national origin.

Eurojust Legal Framework de lege ferenda Strengthening the Eurojust Status When speaking of strengthening the Eurojust legal framework two scenarios may be envisaged—(1) increasing minimum standard of powers of Eurojust national members on a national level or (2) increasing Eurojust powers (either of Eurojust acting through its national members or of the College). Increasing standard of powers of national members Current primary law does not provide any legal basis for the transfer of a national criminal competence to a European body. Therefore without an amendment to the European founding treaties it is not possible to assign Eurojust investigative powers. On the other hand, article 31 of the Treaty on European Union could serve as a legal basis for increasing the standard of powers of national Eurojust members within their jurisdictions (as it was used as a basis for establishing Eurojust itself). Increasing the minimum standard of national members’ powers would strenghten the position of Eurojust without doing any harm to state sovereignty as these powers are not of a European, but of a national origin. No competence transfer would be realized. This model would not bring Eurojust any closer to a federal style prosecutorial body. However, it must be stressed that even the increase in the standard of national powers is perceived as a very controversial theme by some member states. As Mr Daniel Bernard, a Federal Prosecutor of Belgium, expressed during the Parisian Seminar on the role of Eurojust,26 it seemed superfluous to assign national members any further powers when these powers may be performed by their 25 See article 10 paragraph 3 of the Eurojust decision; article 9 paragraphs 3, 4 of the Eurojust Rules of Procedure. 26 Combating Terrorism and International Organised Crime in the EU, International Seminar for Experts, organized by the Cicero Foundation in Paris, 14–15 December 2006.

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national counterparts available 24 hours/day. It should be pointed out that in Belgium a Federal Prosecutor’s Office was established only recently, as it took a long time to persuade the Belgian Parliament to replace three national prosecutors coordinating 27 district prosecutors (Eurojust model at national level) by a Federal Prosecutor’s Office with investigative and operative powers on a federal level.27 Even the 2005 Eurojust Annual Report called for more competencies for national members, especially in case of emergency, to support control deliveries or undercover operations which would help to ensure a baseline of common consistency, allowing the national members to work together on an equal footing, and for them and their national counterparts to have equal expectations and hence the capacity to facilitate coordinated action and to support judicial cooperation with a level of certainty.28 In other words the fact of assigning national members effective investigation powers (on a national level) would promote the trust in Eurojust effectiveness and in a positive outcome of a request, as it guarantees to the requesting subject (national body, another Eurojust national member) that the competent national member has efficient legal tools of enforcing his request towards a competent national body in case that the informal request had not worked. Increasing Eurojust powers Within the European Union we may talk about national interests, common interests and Community (or Union) interests. The problem is that these categories do not (and will never) completely coincide. What makes a difference is a motivation of member states to protect an interest in question. An interest pertinent only to a territory of one member state may be called a national one (for example the protection of public order). It must be stressed that even when protecting purely national interests member states have a positive obligation to act if the abstention to action could harm the full effect of Community rules. Common interests of member states are those which most or all member states are motivated to protect. Finally Community interests are those which the European Union has a particular motivation to protect. Member states may not be necessarily equally motivated as this protection may in some cases be even an obstacle for achieving their own objectives (such as a protection of some industrial or agricultural sectors,29 concealing the cases of frauds against European financial resources,30 misusing European funds etc.). This results in the fact that sometimes member states are not willing to protect Community

27 See a declaration by M. Coninsx, in House of Lords (2004), 57. 28 See Eurojust 2005 Annual Report, 26. 29 See for example European Court of Justice (ECJ), case C-265/95, Commission of the European Communities v. French Republic [1997] ECR I-06959 (the case of so-called strawberry war). 30 See for example ECJ, case C-68/88, Commission of the European Communities v Hellenic Republic [1989] ECR 02965, (the case of “Yugoslav maize”).


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interests as vigorously as their own (thus breaching their obligation of loyalty31). This certainly has a negative impact on mutual trust between the Union and a member state and between member states themselves (as Community interests represent the joint interest of all member states). The question arises which institution should protect which interests. Definitely the most effective protection of interests may be attained if these interests are protected on a level which they affect—national interests by national organs, common interests by common organs, Union interests by Union organs. This distribution of powers corresponds to a system of multilevel governance— multilevel distribution of powers within the EU based on principles of subsidiarity and proportionality. The current Eurojust competence covers both interests common to all member states and Union interests.32 However, due to its intergovernmental character Eurojust has a vocation to protect mainly the common interests. This justifies calls for assigning Eurojust investigative powers or for the establishment of an independent European body responsible for the protection of the Union’s interests. In any case, either option would require a change of primary law. Eurojust in the Reform Treaty Eurojust mission It should be stated first, that all changes specifically concerning Eurojust that were contained in the draft Treaty establishing a Constitution for Europe (CT) remained intact by the mandate for the Intergovernmental Conference adopted by the European Council in June 2007.33 These changes do form part of the Reform Treaty text as agreed on 18 and 19 October 2007 and signed in December 2007. The CT proposal strengthened considerably the role of Eurojust making it a key Union institution in the area of judicial cooperation in criminal matters. It listed specific tasks of Eurojust’s mission going much further than the current Eurojust decision. The CT aimed to lay a legal basis for assigning Eurojust real powers to initiate criminal investigations and to resolve conflicts of jurisdictions. Compared to the current status quo this would be a qualitative change which would entail a transfer of a part of criminal law enforcement competence from member states to the Union. European Public Prosecutor and its relation to Eurojust The draft Constiutional Treaty as well as the agreed text of the Reform Treaty foresee the possibility of the establishment of a European Public Prosecutor’s Office (EPP) by a unanimous decision of the Council requiring the preliminary consent of the European Parliament. The EPP concept is inspired in part by the original Corpus Juris idea 31 Which seems to be one of the reasons of the ECJ for acknowledging an implicit Community criminal law competence—see ECJ, case C-176/03, Commission of the European Communities v Council of the European Union [2005] ECR I-7879. 32 See article 4 of the Eurojust decision. 33 Presidency Conclusions, Brussels European Council 21/22 June 2007, Council doc. 11177/07, CONCL 2, 23 June 2007.

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and by subsequent Commission proposals which called for the establishment of the EPP being supported by deputies in member states acting in national courts. According to the initial concept its scope of competence should have been strictly limited to the protection of Community financial interests. The establishment of the EPP should have been accompanied by unification of some substantive as well as of procedural rules and rules of judicial review of EPP actions.34 Whereas the Corpus Juris and the Commission’s original proposals envisaged the establishment of EPP as a new body, the CT stipulated that the EPP should be created from Eurojust. Thus, more scenarios may be envisaged such as the EPP being a transformed Eurojust, the EPP becoming a member of Eurojust, or the EPP being a supervisor of Eurojust (House of Lords 2004). In any case it means that the EPP should be rooted in the current institutional framework and act in close relation with Eurojust. This denies a conception of EPP developing from OLAF, which is the preferred one of some authors arguing that OLAF was designed from its establishment to protect Community interests (although only financial ones) and has already a developed infrastructure.35 As a starting point the task of the EPP should be to defend the Union’s financial interests. It should be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences against the Union’s financial interests. It shall exercise the functions of a prosecutor in the competent courts of the member states in relation to such offences.36

This means that the concept of the EPP is based on a single European jurisdiction, confirming the double role of national courts acting as national as well as European judicial organs. According to the text of the Reform Treaty there will be also the possibility to extend the EPP’s competencies covering other types of serious cross-border crimes.37 This would make the EPP a guardian of common interests of member states. In this particular case the European decision shall not be taken by the Council, but by the European Council acting unanimously after obtaining the consent of the European Parliament and after consulting the Commission. Differences between Eurojust and the EPP There are many important differences between Eurojust and the project of a EPP (Costa 2004). First, their tasks are not the same. Whereas Eurojust facilitates, the EPP should investigate. Eurojust is essentially an intergovernmental institution lacking any investigative powers, its 34 See Commission (2000), Communication from the Commission—Additional Commission contribution to the Intergovernmental Conference on institutional reforms. The criminal protection of the Community’s financial interests: a European Prosecutor, COM(2000)608 final. 35 See for example J. Vogel in his Memorandum to the House of Lords, in House of Lords (2004), appendices, 105–16. 36 See Article III-274 (2) of the Constitutional Treaty. 37 See Article III-274 (4) of the Constitutional Treaty.


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national members being subject to national laws. By contrast the EPP should be an independant body disposing of real investigative powers. In the context of a EPP it is not possible to speak of national members as these should be dependant neither on the EU nor on their states of origin. Whereas Eurojust executes its tasks in a multi-jurisdictional European Union, the EPP should exercise its powers within a single judicial area. The establishment of a EPP would certainly require further harmonization and unification of at least some procedural and substantive criminal rules and it would also imply further institutional arrangements. Accordingly, we may suppose that the establishment of a federal style judicial body would press for the establishment of a somewhat FBI style Europol as it is hardly imaginable to establish a judicial body carrying out criminal investigations without its strong links to police authorities which may be defined as its “eyes, ears and hands on the ground.” The competence of a EPP would be more restricted (at least at the outset) than that of Eurojust, whose scope of action has currently very vague limits which favours an extensive use of Eurojust assistance by national authorities. Therefore it is clear that even in case of establishment of a EPP, Eurojust would not lose its raison d’être either as a trust promoter or as a prosecution facilitator. It must be noted here that some member states are highly supportive of Eurojust simply because they see it as an alternative to a supranational EPP. According to these member states effective use of Eurojust removes the need for a EPP. Consequently, the establishment of a EPP is currently more of a potential possibility than a realistic plan.

Conclusion: What Future for Eurojust? When we look at the current EU third pillar institutional framework we can observe a multitude of agencies, bodies and institutions—such as Europol, Eurojust, liaison magistrates, European Judicial Network, CEPOL, Police Chiefs Task Force, OLAF—the common feature of their co-existence being the fact that their mutual relations are not governed by hard law, but by rather soft law institutional arrangements lacking transparency, flexibility and the desirable efficiency.38 In other words, the current third pillar experiences a fragmentation of regulation leading to a lack of coordination between different European criminal justice actors, which sometimes results in inefficiency, institutional overlap and duplications. The creation of stronger horizontal and vertical inter-institutional links seems to be an important task for the European legislator, which could be carried out even under the current legal framework. In our view, Eurojust could play a chief role in this institutional structure, its unique construction allowing it to

38 See for example Agreement between Eurojust and Europol of 9 June 2004, the Hague; Memorandum of Understanding signed between Eurojust and OLAF of 14 April 2003.

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keep criminal law powers on a national level and to profit from the cumulation of these national powers at one time and at one place—around the Hague table. Eurojust contributes and should continue to the promotion of trust between member states’ law enforcement authorities. This shall be done by a permanent dialogue between national members and national authorities of all levels from the very bottom to the top. It is up to national legislators to provide the necessary institutional underpinning for this transversal exchange of information. Formal channels must be complemented by informal ones and an environment of confidence should be gradually created. Then, Eurojust may be directly involved in concrete criminal cases via actualization of its European tasks and via the powers of national members. However, the status and effectiveness of Eurojust depends to a large extent on the standard of powers that national members dispose of within their home jurisdictions. In our view, this standard should be raised as it seems that a centralization of powers is necessary for an effective fight against some serious forms of crime. This fact is proved by the development in Belgium (recent establishment of a Board of Prosecutor’s General), Finland (creation of Prosecutor’s General Office) or the Netherlands. Centralization on one hand and regionalization on the other must go hand-in-hand. A network interlinking the very bottom criminal justice level with the very top one must be created. A Eurojust national member should dispose of such powers as to allow him to enforce his decision or request in case that it is not respected by his national counterparts, and to take binding decisions in case of emergency. Neither assigning Eurojust investigative powers nor the establishment of the EPP are à l’ordre du jour, both lacking currently a sufficient primary law basis and political support from member states. The creation of the EPP is justified if member states are not willing, are too lax or ineffective in protecting common and especially Community interests. It must be openly said that sometimes this has been the case. If member states do so in an effective way, the EPP would lack its raison d’être and a reinforced Eurojust could play this role. On the other hand, it is necessary to add that a traditional doctrine of a narrow link between the criminal law and a state sovereignty should be reconsidered as the globalization of crime challenges this doctrine. To be effective, preventive and repressive measures to fight international crime should be taken at the level corresponding to the teritorry that is affected by this international crime. Transfering a part of individual member states’ sovereignty to the European Union in order to participate in a collective sovereignty of a new quality may become the only way to respond effectively to new crime challenges. Cooperation in criminal matters must be based on a strong and transparent institutional framework which will be integrated horizontally and vertically, which will operate in an environment of confidence, which will respect human rights and freedoms and which will be subject to democratic control. Only such an institutional framework, of which a strong Eurojust can become a cornerstone, may assure that the performance of criminal justice functions leads to the desired goal—to an effective fight against transnational crime, to an effective protection


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of national, common and Community interests. As Abbé Sieyès once said: “The confidence must come from the bottom, the power from the top!”

References Anderson, M. (2002), “Trust and Police Cooperation,” in Anderson, M. and Apap, J. (eds), Police and Justice Cooperation and the New European Borders (The Hague: Kluwer Law International), pp. 35–46. Anderson, M. and Apap, J. (eds) (2002), Police and Justice Cooperation and the New European Borders (The Hague: Kluwer Law International). Commission of the European Communities (2000), Communication from the Commission— Additional Commission Contribution to the Intergovernmental Conference on Institutional Reforms. The Criminal Protection of the Community’S Financial Interests: A European Prosecutor, COM(2000)608 final, Brussels, 29 September 2000. Commission of the European Communities (2005), Action Plan “The Hague Programme: Ten Priorities for the Next Five Years: The Partnership for European Renewal in the field of Freedom, Security and Justice,” COM/2005/184 final, Brussels, 10 May 2005. Costa, J. (2004), “Eurojust vis-à-vis the European Public Prosecutor,” in Apap, J. (ed.), Justice and Home Affairs in the EU: Liberty and Security Issues after Enlargement (Cheltenham: Edward Elgar, 2004), pp. 141–50. De Hert, P. (2004), “Division of Competencies between National and European Levels with Regard to Justice and Home Affairs,” in Apap, J. (ed.), Justice and Home Affairs in the EU: Liberty and Security Issues after Enlargement (Cheltenham: Edward Elgar, 2004), pp. 55–99. House of Lords (2004), Judicial Cooperation in the EU: The Role of Eurojust, 23rd Report of Session 2003–2004 (London: The Stationery Office). Moore, A. (ed.) (2004), Police and Judicial Cooperation in the European Union, FIDE 2004 National Reports (Cambridge: Cambridge University Press). Occhipinti, J. (2003), The Politics of EU Police Cooperation: Towards a European FBI? (London: Lynne Rienner Publishers). Walker, N. (2002), “The Problem of Trust in an Enlarged Area of Freedom, Security and Justice: A Conceptual Analysis,” in Anderson, M. and Apap, J. (eds) (2002), Police and Justice Cooperation and the New European Borders (The Hague: Kluwer Law International), pp. 19–33. Wersäll, F. and Webber, A. (2004), “Swedish National Report,” in Moore, A. (ed.), Police and Judicial Cooperation in the European Union, FIDE 2004 National Reports (Cambridge: Cambridge University Press), pp. 330–34.


Chapter 4

The Third Pillar and the Court of Justice: A “Praetorian Communitarization” of Police and Judicial Cooperation in Criminal Matters? Eulalia Sanfrutos Cano1

The acquis communautaire […] colours the whole organisation. (De Witte 1998, 65)

The pillar structure of the Union, introduced by the Treaty of Maastricht in 1992, added two new fields of action to the Community legal order which are not subject to what had been known until then as the “méthode communautaire”; rather, they are subject to a sui generis intergovernmental logic. The essence of this structure is “the variation in the allocation of powers between institutions,” (ibid.) which highlights “the growing diversity in decision-making mechanisms as a global phenomenon within the EU” (ibid., 53) Moreover, the different roles played by the Court of Justice of the European Communities (Court of Justice, ECJ) in each “pillar” is one of the main distinctive elements advanced by scholars, who use the distinction between judicially controlled European law (EC law), and non-judicially-controlled European law (the second and third pillars) as a “summa division” (ibid.). But this “division” is being progressively nuanced. The Court of Justice has seen its jurisdiction over the “new law” progressively increased, particularly since the reforms operated by the Treaty of Amsterdam, and it has started to contribute to the configuration of the area of freedom, security and justice. Indeed, the principle of the jurisdiction of the Court of Justice over Title VI of the Treaty on European Union (TEU) is set up by article 46 TEU, nevertheless subject to the conditions laid down in article 35 TEU. On this basis, the Court has jurisdiction to give preliminary rulings on the validity and interpretation of framework decisions and decisions, the main legally binding instruments under the third pillar. Nevertheless, this jurisdiction must be explicitly accepted by member 1 The author would like to thank Orla Lynskey and Dominik Hanf for their valuable comments. The usual disclaimer applies.

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states. When a member state makes such a declaration, it must specify—according to article 35 (3) TEU—whether only national courts or tribunals against whose decisions there is no judicial remedy under national law may request a preliminary ruling (under article 35 (3) [a]) or whether any national court or tribunal may do so (under article 35 (3) [b]). The Court also has jurisdiction to review the legality of these instruments under article 35 (6) TEU. This power is similar to that which the Court exercises under article 230 Treaty on the establishment of the European Community (TEC) annulment actions, the main distinctions being that locus standi to bring such an action under article 35 (6) TEU is limited to member states and the Commission and this only on specified grounds.2 Operations carried out by the police or other law enforcement services of a member state or the exercise of responsibilities regarding the maintenance of law and order and the safeguard of internal security are however excluded from the jurisdiction of the Court by the “public order exception” contained in article 35 (5) TEU. This “variable geometry of the ECJ jurisdiction in the third pillar” (Guild and Carrera 2005, 4) can have non negligible perverse effects. Indeed, if the jurisdiction of the Court to give preliminary rulings has been for the most part recognized by EU-15 member states,3 national courts within the new member states do not always have such a possibility, which might in the long term affect the consistency and the uniformity of the system.4 Despite these limitations, it is undeniable that the available possibilities for jurisdictional control within the third pillar following the Treaty of Amsterdam compared favourably to those which existed in the immediate aftermath of the Treaty on European Union. The Court of Justice is no longer an absent player in police and judicial cooperation in criminal matters having ventured into this field in 2003, when it rendered its first judgment in the case of Gözütok and Brügge.5 The ephemeral character of the pillar structure and the new pillars’ vocation to be “communitarized,” either by external action6 or by “absorption” into the first pillar, was realized since its early stages (Isaac 2001). The Constitutional Treaty7 tried to bring together Community and Union law. It intended to merge the treaties and recognized the international legal personality of the European Union. Even if some differences remained, mainly concerning the Common Foreign and 2 Lack of competence, infringement of an essential procedural requirement, infringement of the EU Treaty or any rule relating to its application or misuse of powers. 3 With the exception of the UK, Ireland and Denmark. 4 As regards the new member states, only the Czech Republic, Hungary, Slovenia and Lithuania have opted in. See OJ L 327 of 14 December 2005, 19. Slovenia opted in later on and Lithuania has recently declared that all its courts are, since April 2007, also entitled to refer questions to the court regarding preliminary rulings based on article 35 TEU. 5 Judgment of 11 February 2003, Gözütok and Brügge, Case 187/01, ECR [2003], I-5689. 6 Article 42 TEU or reform of the Treaties. 7 The Treaty Establishing a Constitution for Europe, OJ C 310, 16 December 2004.

The Third Pillar and the Court of Justice

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Security Policy or second pillar, the harmonization of instruments and judicial remedies and the improvements in the protection of fundamental rights would have represented a considerable advance for Justice and Home Affairs within the EU (for further analysis, see Guild and Carrera 2005). Despite the political failure of the Constitutional Treaty, its developments concerning the pillars structure have been essentially retrieved by the June 2007 European Council mandate for the Intergovernmental Conference,8 which established the basic outline for the future Reform Treaty. The division between the first and communitarian pillar and the EU third pillar will be formally abolished, and the European Union will be recognized as a single legal personality. The current Title IV of the Treaty of the European Union will be included as the fifth chapter of a new title, “Area of Freedom, Security and Justice,” contained within the TEC, newly named Treaty on the Functioning of the Union. The “Community method” will apply to police and judicial cooperation in criminal matters (Carrera and Geyer 2007, 2), meaning in short the application of the codecision procedure, the homogenization of legal instruments and the full jurisdiction of the Court of Justice. These non negligible elements of the reform, together with the reinforcement of the protection of fundamental rights through the Charter of Fundamental Rights of the Union and the provision for the accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms, constitute a significant step towards a better democratic accountability, individual rights protection and efficacy of justice and home affairs matters within the EU. However, one could object that compared to the Constitutional Treaty, the compromise achieved in June 2007 gives a greater place to “exceptionalism” and “differentiation” (Carrera and Geyer 2007, 7–9). Indeed, derogations in the form of “emergency brakes,” “enhanced cooperation,” “opt-ins” and “opt-outs”9 raise doubts concerning a material—not only a formal—end to the “Era of the Pillars” (Carrera and Geyer 2007, 1–2). In the meantime, the Court of Justice’s movements in this area could compensate for the shortcomings of the ongoing reforms. By way of its cautious yet at the same time audacious jurisprudence, the Court has questioned the intrinsic characteristics of intergovernmental cooperation in criminal matters.

Blurred Boundaries: The “Battle of the Pillars”10 Being a core element of state sovereignty, criminal matters have for a long time remained outside the sphere of Community law and have been strictly confined to inter-governmental cooperation. By introducing a new pillar on Justice and Home Affairs, the Treaty of Maastricht constituted the first attempt to bring this subject under the Community institutional framework. The Treaty of Amsterdam 8 Presidency Conclusions, Brussels European Council 21/22 June 2007, Council doc. 11177/07, CONCL 2, 23 June 2007. 9 For a more detailed description of this “flexibility” mechanisms within the Reform Treaty see Carrera and Geyer 2007. 10 Wasmeier and Thwaites 2004.


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“rearranged” this third pillar, confining it to strict police and judicial cooperation in criminal matters and tempering its purely intergovernmental character. Yet despite these intergovernmental developments which took place outside the scope of Community law, criminal law has not been completely sheltered from its impact. This impact has been both negative, by requiring national criminal provisions contrary to Community law to be repealed,11 and positive, by requiring member states to adopt sanctions which are “effective, proportionate and dissuasive.”12 This being said, the Court had always accepted that Community law contains no express or implicit general power to impose criminal penalties.13 This panorama had led to the situation where each time that the effective implementation of Community law required the imposition of criminal sanctions, two legal instruments from different treaty pillars were needed (a first pillar directive or regulation and a third pillar framework decision). The uncertainty raised by this “complementary” method has been largely criticized both by scholars and institutional actors (Jacqué 2002). The Court’s judgment in Case C-176/03, Commission v. Council, Criminal sanctions against the environment14 constitutes a first step towards the elucidation of this legal basis dilemma faced by the Community institutions and its member states. But, for a full understanding of the far-reaching consequences of this judgment, a brief report of the facts and findings of the Courts on this vastly commented case (Tobler 2006; Apps 2006; White 2006) is necessary. Case C-176/03, Commission v. Council, Criminal Sanctions against the Environment On 27 January 2003 the Council adopted Framework Decision 2003/80/JHA on the protection of the environment through criminal law.15 By acting within the third pillar, using as legal basis for its action articles 29, 31 (e) and 34 (2) (b) TEU, the Council ignored the Commission proposal for a Community directive on the protection of the environment through criminal law, presented in 2001,16 based on article 175 TEC.17

11

Judgment of 2 February 1989, Cowan v. Trésor public, Case 186/87, ECR [1989]

195. 12 Judgment of 21 September 1989, Commission v. Greece, Case 68/88, ECR [1989] 2965. 13 Judgment of 11 November 1981, Criminal proceedings against Guerrino Casati, Case 203/80, ECR [1981] 2595. 14 Judgment of 13 September 2005, ECR [2005] I-7879. 15 OJ L 29, 5 February 2003, 55. 16 Proposal for a directive of the European Parliament and of the Council on the protection of the environment through criminal law, 15 March 2001, OJ C 180 E, 26 June 2001, 238. 17 This proposal was issued in accordance with the Commission’s conviction that the EC Treaty, and article 175 in particular, provides a sufficient legal basis to impose criminal penalties on persons committing environmental offences.


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The Commission, supported by the European Parliament, brought an action under article 35 TEU for the annulment of articles 1 to 7 of this framework decision.18 It is not questioned that these articles, as the Court pointed out in its judgment, “[…] entail partial harmonisation of the criminal laws of the member states.”19 The constitutional significance of the case was immediately realized both by institutions and member states, as the number of interventions in the proceedings illustrate. 20 Advocate General Ruiz-Jarabo Colomer’s opinion, delivered on 26 May 2005, pointed out the far-reaching consequences of choosing either of the positions over the other, and raised alarm by maintaining that the Community legislature had the power to establish the principle that resort could be had to criminal penalties against serious environmental offences. Not only did the Court endorse the Advocate General’s opinion, but it also went further in its reasoning. The core issue being discussed in this case was “the Council’s duty to refrain from adopting the contested provisions by virtue of the primacy of Community law, established in article 47 TEU,”21 a provision which stipulates that nothing in the Treaty on European Union is to affect the EC Treaty. Article 29 TEU reaffirms this stipulation, specifically with regard to Title VI of the Treaty on European Union. Despite its incomplete jurisdiction under the third pillar, the Court had already stated even prior to the Treaty of Amsterdam, in the Airport transit visas case22 that its task included ensuring that the activities within the new intergovernmental pillar do not encroach upon the powers conferred by the EC Treaty on the Community.23 The Court’s judgment in this environmental crimes case corroborates the supremacy of Community law over Union law thereby excluding any lex specialis consideration of the third pillar (in this sense Wasmeier and Thwaites 2004), and confirming that it is “not possible to argue that articles 29 and 31 TEU create a ‘derogation’ from any supposed EC competence” (Tobler 2006). With the existence of a competence under the EC treaty precluding recourse to third pillar instruments, the crucial question was therefore whether measures entailing harmonization of criminal law were possible within the Community pillar. Not only did the Court not overrule its often repeated statement according to which “as a general rule, neither criminal law nor the rules of criminal procedure fall within the Community’s competence,”24 on the contrary it reiterated it. Nevertheless, the following landmark statement was to follow it:

18 19 20 21 22 23 24

Action brought on 15 April 2003, OJ C 135, 7 June 2003, 21. Paragraph 47 of the judgment. Eleven states out of (at the time) the EU 15 submitted written observations. Paragraph 26 of the opinion. Judgment of 12 May 1998, case 170/96, ECR [1998] I-2763, paragraph 16. Paragraph 16 of the judgment. Case 203/80 Casati, op. cit.

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Security versus Justice? However, the last-mentioned finding does not prevent the Community legislature, when the application of effective, proportionate and dissuasive penalties by the competent national authorities is an essential measure for combating serious environmental offences, from taking measures which related to the criminal law of the member States which it considers necessary in order to ensure that the rules which it lays down on environmental protection are fully effective.25

The consequences of this seminal judgment remain uncertain. Not long afterwards, the Commission issued a Communication on the implications of the case (Commission 2005). There, the Commission makes clear that “in addition to environmental protection, the Court’s reasoning can therefore be applied to all Community policies and freedoms which involve binding legislation with which criminal penalties should be associated in order to ensure their effectiveness.”26 This use by the Community legislature of criminal law will be subject to the requirements of necessity and consistency with the Union’s system of criminal law. Finally, as an immediate consequence, the Commission enumerates, in an annex to its Communication, a list of texts affected by the judgment and thus adopted or proposed under the incorrect legal basis. Following this interpretation, the Commission has already acted in justice against texts it considers adopted under the wrong legal basis27 and has presented proposals providing for criminal penalties within the first pillar beyond the scope of environmental law.28 In the case Criminal Sanctions against the Environment, the Court used the Titanium Dioxide criteria for the first time “as a conduit for exercising its jurisdiction over the choice of pillar in cases where it would be possible to promulgate the measure under different treaty bases across different pillars” (Apps 2006). The legal boundary between the first and the third pillar would be determined according to the “centre of gravity” rule and according to general principles of Community law (Wasmeier and Thwaites 2004). But this new approach to inter-pillar litigation does not always operate in favour of the Community; it can also lead in the opposite direction, as the judgments in the PNR case illustrate. Cases C-317/04 and C-318/04, Parliament v. Council and Commission, Passenger Name Records (PNR) The measures at stake in this case were Council Decision 2004/496/EC of 17 May 2004 on the conclusion of an Agreement between the European Community and the United States of America on the processing and transfer of PNR data by air carriers to the United States Department of Homeland Security29 and the 25 Paragraph 48 of the judgment. 26 Paragraph 7 of the Communication of the Commission, op. cit. 27 Case C-440/05. 28 For instance, the proposal for a Council directive providing for sanctions against employers of illegally staying third country national, COM (2007) 249 final of 16 May 2007. 29 OJ L 183, 20 May 2005, p. 83, and corrigendum at OJ L 255, 30 September 2005, 168.


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Commission decision on the compliance of the PNR system with the requirements of directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. These norms were the Community answer to the troubles that carriers operating from the EU to the United States were experiencing as a consequence of the legislation passed by the latter following the terrorist attacks of 11 September 2001 and the possible conflict of this legislation with Community law. The key provision in the proceedings was article 3 (2) of the directive on data protection, which disposes that the directive shall not apply to the processing of personal data: […] in the course of an activity which falls outside the scope of Community law, such as those provided for by Titles V and VI of the Treaty on European Union and in any case to processing operations concerning public security, defence, state security (including the economic well-being of the State when the processing operation relates to State security matters) and the activities of the State in areas of criminal law.

The Commission had found that air carriers’ activities clearly fall within the scope of Community law and therefore of directive 95/46/EC. The Court was of a different opinion. Indeed, the Court concluded that these activities constituted processing operations concerning public security and the activities of the State in areas of criminal law,30 the fact that they were collected by private operators for commercial purposes did not constitute an obstacle to this assertion.31 Given that the activities related to criminal matters did not fall under Community law, decision 2004/496 relative to the conclusion of the agreement was also founded on an incorrect legal basis and therefore annulled.32 Although the European Parliament achieved its aim to have the Agreement annulled, it can hardly be content with this outcome. The legal basis for the newly adopted PNR Agreement,33 fell outside the Community pillar and considerably reduced its role in the decision-making process. Moreover, the situation is not much better with regard to the substance. The European Parliament argued that the decision on adequacy was in breach of the fundamental principles of the directive on data protection. However, as the Court’s ruling placed the Agreement outside the scope of Community law and therefore outside the scope of the directive, the transfer in question would simply not be subject to any European rule on data protection.34

30 Paragraph 56 of the judgment. 31 Paragraph 58 of the judgment. 32 See paragraphs 67 to 70 of the judgment. 33 Articles 24 and 38 TEU, see OJ L 551, 4.8.2007, 16. 34 To fill this gap of data protection within the third pillar the Commission made a Proposal for a Council framework decision on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters, COM/2005/0475 final of 4 October 2005.

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These two judgments illustrate that the demarcation of competences between the first and the third pillar is not clear-cut.35 The issue is of more burning concern now, however, as cross-pillar litigation is bound to increase over the coming years, at least until the Reform Treaty enters into force (provided it actually does so). As mentioned above, subsequent to the judgment of the Court in Criminal sanctions against the environment, the Commission brought an action on 8 December 2005 against the Council claiming that the Court should declare Council framework decision 2005/667/JHA of 12 July 2005, to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution, unlawful.36 Furthermore, following the ruling of the Court in the PNR case, Ireland brought an action on 6 July 2006 for the annulment of directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending directive 2002/58/EC on the grounds that it had not been adopted on an appropriate legal basis.37 But the problems underlying this debate on the correct legal basis arise from the substantial differences between both pillars; differences that the Court seems willing to temper.

Community “Spill Over”? Towards General Principles of EU Law Throughout 50 years of European integration, the European Court of Justice has been able to develop and consolidate a considerable acquis of principles applicable to Community law. The same may not be said for Union law as the Court had scarcely intervened in this sphere to date. The question therefore arose whether the Court, while dealing with third pillar law, would develop a separate legal reasoning or would rather extend the principles expounded within the first and communitarian pillar, “reading the EU Treaty through the lens of the established acquis communautaire” (Fletcher 2005).

35 Legal basis disputes are not limited to First/Third pillar relations. Case C-91/05 (still pending) illustrates equally the potential controversies between the Community Pillar and the Common Foreign and Security Policy, so called Second Pillar. 36 Case C-440/05, op. cit. Advocate General Mazák delivered his opinion on 28 June 2007. Contrary to the arguments supported by the Council and the 20 Member States intervening in the proceedings, claiming the Court’s reasoning in case C-176/03 to be restricted to the specific field of environmental policy, Advocate General Mazák shares the Commission view that “[…] there is indeed no sound basis for regarding the power to provide for criminal measures as being limited in that way.” The Court’s decision was eagerly anticipated and finally handed down on 23 October 2007. For more detail cf. Mitsilegas, V., “The Competence Question: The European Community and Criminal Law,” Chapter 9 of this volume. 37 Case C-301/06.


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Case C-160/03, Spain v. Eurojust Advocate General Maduro pioneered a comprehensive approach in Spain v. Eurojust.38 At the origin of the case was an action brought by Spain against calls for applications for the recruitment of temporary staff to work within Eurojust. In particular, Spain questioned the compatibility of this call with the language regime of the institutions and bodies of the European Union. Eurojust is an autonomous body not forming part of the institutional framework of the Union as established in article 7 TEC and article 5 TEU.39 Neither article 230 EC nor article 35 TEU allows an action to be brought against measures issued by Eurojust. While admitting that article 230 TEC was not applicable to measures which were not Community measures, Advocate General Maduro pleaded for the prevalence of the principles of legality and effective judicial review, upheld in the Community context, also in the context of the European Union, as a “logical implication of a Union based on the rule of law.”40 Yet, Advocate General Maduro’s progressive interpretation was maybe a little too avant-garde. In a brief judgment,41 the Court ruled on the inadmissibility of the action in light of article 230 TEC.42 Case C-105/03, Criminal Proceedings against Maria Pupino A step further was to be taken in the ruling of the Court in case C-105/03, Criminal proceedings against Maria Pupino. At the origin of the case was a reference for a preliminary ruling concerning the interpretation of articles 2, 3 and 8 of Council framework decision 2001/220 JHA of 15 March 2001 on the locus standi of victims in criminal proceedings.43 The question was referred by the criminal court of Florence in the proceedings against Ms Pupino, a nursery school teacher charged with injuring her under-aged pupils. The articles referred for interpretation provide for specific procedural protection that member states shall ensure for especially vulnerable victims, in particular the possibility not to give evidence in open court. The referring court questioned the compatibility of the Italian law with the articles of the framework decision, as the possibility of special hearings according to Italian law was reserved to sexual and other related offences and was not applicable to others proceedings involving especially vulnerable victims such as minors. As a preliminary remark, it must be remembered that article 34 (2) (b) TEU explicitly excludes any direct effect of framework decisions. This is its main 38 Opinion delivered on 16 December 2004. 39 For further details on Eurojust, see Vlastník, J., “Eurojust—a cornerstone of the federal criminal justice system in the EU?,” Chapter 3 of this volume. 40 Paragraph 17 of the opinion. 41 Judgment of the Court of 15 March 2005, Spain v. Eurojust, Case C-160/03, [2005] ECR I-2077. 42 See paragraphs 35 to 37 of the judgment. 43 OJ L 82, 22.3.2001, 1.

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distinguishing feature from Community directives deriving from the intergovernmental nature of cooperation between member states in the context of Title VI of the Treaty on European Union. The Court, however, overcame this obstacle, preferring to focus on the wording of the article which emphasizes the similarities with the Community instruments in article 249 EC. Therefore it found that, given the identical binding effect of both types of provisions and the need to ensure the useful effect (effet utile) of EU law, nothing prevents the Court from recognizing the duty on national authorities, and particularly national courts, to interpret national law in conformity with EU law,44 and the existence of a duty of loyal cooperation similar to that laid down in article 10 TEC within the Treaty on European Union.45 The constitutional dimension of the judgment has not gone unnoticed (Sarmiento 2005; Fletcher 2005). In its first preliminary ruling on a framework decision, the Court clarified the nature of their legal relationship with national law, “and in doing so has gone some way to bridging the constitutional divide between the Community and third pillar legal orders” (Fletcher 2005). But the significance of Pupino is not merely of an institutional nature, it also has considerable effects on both national courts and individuals. By extending the Von Colson46 and Marleasing47 principles to framework decisions, it radically changes the panorama of the enforcement of third pillar instruments, placing national courts at the core of the action (see in this sense Fletcher 2005). The Court will have to further detail the scope of this duty, as its recent developments within the Community pillar are not easily transposable to third pillar acts.48 A reference for a preliminary ruling made by the Tribunale di Milano has given the Court the first opportunity to develop its reasoning in Pupino.49 Case C-467/05,Criminal Proceedings against Giovanni Dell’Orto Criminal proceedings were brought before the Tribunale de Milano against Mr Giovanni Dell’ Orto and others for false accounting about companies. During the proceedings, two questions arose concerning the applicability of the principles set out in articles 2 and 9 of the framework decision 2001/220 on the standing of victims in criminal proceedings.50 The first question concerned the possibility of a wider interpretation of the concept of victim as to include not only natural persons but also legal persons, by reading the framework decision in the light of Council

44 See paragraphs 33 and 34 of the judgment. 45 Paragraph 42 of the judgment. 46 Case C-14/83, Von Colson and Kammann v. Land Nordrhein-Westfalen, (1984), ECR 1891. 47 Case C-106/89, Marleasing, (1990) ECR I-4135. 48 Judgment of 22 November 2005, Mangold v Helm, case C-144/04. 49 Judgment of 28 June 2007, Criminal Proceedings against Giovanni Dell’Orto, case C-467/05. 50 Op. cit.


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directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims.51 The second question referred to the possibility of applying articles 2 and 9 of the framework decision to criminal proceeding for enforcement following a judgment which resulted in a final criminal conviction, taking into consideration the Court’s judgment in joined cases C-187/01 and C-385/01 Gözütok and Brügge.52 In this first case concerning the interpretation in conformity of framework directives after the Court’s judgment in Pupino, the Court confirms “that the system under article 234 EC is capable of being applied to the Court’s jurisdiction to give preliminary rulings by virtue of article 35 EU, subject to the conditions laid down by that provision.”53 Consequently, and given that the reference for interpretation was in accordance to article 35 (1) TEU, the Court refuses to declare the inadmissibility of the reference on the sole basis that it had been presented by the national court on the basis of article 234 TEC and without any mention to article 35 (1) TEU. It does so by applying by analogy its traditional case-law concerning the absence of any formal requirement to present a reference under article 234 TEC.54 However, the very likely practical effect will actually be that national courts will be able to make references for preliminary rulings on third pillar law just by referring to article 234 TEC, provided the conditions of article 35 (1) TEU are met, and even at times when these conditions are not so clearly met.55 The Court is quite patently anticipating the Reform Treaty as regards the homogenization of the judicial remedies within both pillars. Not in vain, its judgment came out just a few days after the June 2007 European Council agreed on the mandate for the Intergovernmental Conference that will reform the current treaties.56 The decision in Pupino and its subsequent developments constitute a turning point in the Court’s approach to Union law; an unquestionable step towards its “communauritarization” or “constitutionalization” (Sarmiento 2005). But this “communautarization” calls for “compensatory measures.” The implementation measures of framework decisions within police and judicial cooperation in criminal matters should be subject to the principle of harmonious interpretation in the light of all Community law. Community law should be interpreted as including most notably fundamental rights,57 as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, and as they result from the constitutional traditions common to the member states, as general principles. The Court already points out in Pupino that this interpretation duty “is limited by general principles of law, particularly those of legal certainty and non-

51 OJ L 261, 6.8.2004, 15. 52 Op. cit. 53 Paragraphs 19 and 28 of Pupino, referred to in paragraph 34 of the judgment. 54 Case 13/61 De Geus (1962) ECR, 45–50. 55 See judgments of 27 February 2007, Gestoras Pro Amnistía and Others v. Council, case C-354/04 P and Segi and Others v. Council, case C-355/04 P. 56 Presidency Conclusions, Brussels European Council 21/22 June 2007, op. cit. 57 Ibid.

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retroactivity.”58 But it would have to develop this protection further to preserve EU law from national inquiries and to ensure its primacy and the uniformity of its application.

All about Primacy Warnings about the possible consequences of the deficiencies of judicial protection have been repeated within the doctrine, thereby increasing the pressure on the Court to find a remedy. Indeed, as Vervaele announced in 2005: “if the Court of Justice is unable or not able in time to outline the general principles of law, a decision along the lines of Solange in the field of Justice and Home affairs cannot be ruled out” (Vervaele 2005, 6). The implementation of the leading measure in the field of police and judicial cooperation in criminal matters, the European arrest warrant framework decision (“EAW Framework Decision”),59 triggered the “mutiny” of the national constitutional courts. The European Arrest Warrant Saga On 27 April 2005 the Polish Constitutional Tribunal annulled the national implementation of the EAW Framework Decision.60 In the view of the Tribunal, the national implementation measure was unconstitutional as it allowed the surrender of Polish nationals, prohibited by the Polish Constitution. Three months later, the German Constitutional Court was faced with the same conflict of laws and equally ruled in favour of national supremacy, annulling the German European arrest warrant act.61 Although the most frequently commented (Bem 2006; Geyer 2006; Hinarejos Parga 2006; Kowalik-Banczyk 2005), the Polish and German decisions are not the only ones.62 Furthermore, such cases are likely to arise again in the future. As luck would have it, the issue finally arrived to the ECJ by the way of a preliminary reference made by the Belgian Cour d’Arbitrage, asking the Court to rule on the validity of the EAW Framework Decision.63 The questions referred concern both the legal basis of the framework decision and the compatibility of the non appliance of the double criminality rule to an exhaustive list of offences with

58 Paragraph 44 of the judgment. 59 Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, 2002/584/JHA, OJ L 190, 18 July 2002, 1. 60 Judgment of 27 April 2005, P 1/05, available at www.trybunal.gov.pl. 61 Judgment of 18 July 2005, 2 BvR 2236/04, available at: www.bverfg.de. 62 See also the Greek Areios Pagos’ decision of 20 December 2005, 2483/2005, the judgment of the Supreme Court of Cyprus of 7 November 2005 and the judgment of the Czech Republic Ústavní soud (Constitutional Court) of 3 May 2006, Case 66/04. 63 Case C-303/05, Advocaten voor de Wereld VZW v. Leden van de Ministerraad.


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article 6 (2) TEU, and more specifically with the principle of equality and with the principle of legality in criminal proceedings. Advocate General Ruiz-Jarabo Colomer delivered his opinion on 12 September 2006. The Advocate General clearly describes the background to the case, placing it in the context of the judgment of the Court in Pupino and the decisions of the national constitutional courts on the EAW. He identifies the two core questions. First of all, the question concerning the choice of article 34 (2) TEU as the correct legal basis requires the Court to analyze the nature of framework decisions. Secondly, the doubts relating to the substance impose “a full examination of the role of fundamental rights in the sensitive sector of police and judicial cooperation in criminal matters, following the proclamation of the Charter of Fundamental Rights of the European Union.”64 The first question is read by the Advocate General in the light of the fresh ruling of the Court in Pupino. It had been argued that the type of instrument chosen, a framework decision, was not adequate appropriate, inter alia, because the EAW is not an approximation of pre-existing national laws but a newly created concept. Advocate General Ruiz-Jarabo Colomer accepts that the EAW is a new concept and that it can be likened to extradition only insofar as it pursues a similar aim. Extradition implies contact within two sovereign states leading to a decision to cooperate on a case-by-case basis. The Advocate General admits that the rationale of the EAW is radically different, and in so doing confirms the “vocation communautaire”65 of third pillar provisions: The nature of the situation changes when assistance is requested and provided in the context of a supranational, harmonised legal system where, by partially renouncing their sovereignty, States devolve power to independent authorities with law-making powers. That approximation, which falls within the scope of the first pillar of the Union, also operates in the third, intergovernmental, pillar—albeit with a clear Community objective, as was demonstrated in Pupino—by transferring to framework decisions certain aspects of the first pillar and a number of the parameters specific to directives.66

By referring to the Court’s judgments in Van Gend & Loos, Costa v. ENEL and Pupino in the same paragraph, Advocate General Ruiz-Jarabo Colomer promotes the latter to a constitutional status, and thus reveals the crux of the issue: the need to ensure the primacy of a branch of European law which will gradually shift from being intergovernmental to being part of the sui generis Community legal order. That this is the consequence that flows from the Pupino judgment is not so clear for some authors, who advocate that the indirect legal effects of EU frameworks decisions “remains independent and distinct from any concept of supremacy of

64 65 66

Paragraph 6 of the opinion. See French version of the judgment. Paragraph 43 of the opinion.

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“EU law” (Fletcher 2005). It is submitted however that it is only a matter of time before this stance will change. As was already stated in 1999: […] non Community EU law may not have supremacy and direct effect within the national legal orders- or rather: the ECJ has not been given the opportunity, so far, to decide whether or to what extent second and third pillars should have direct effect and supremacy. (De Witte, op. cit.)

The principle of primacy can be extended to all Union law, as article I-6 of the Constitution would have confirmed,67 as “the same reasons that led the Court in Costa v. ENEL to proclaim the primacy of EC law are easily transposed to the EU legal order” (Lenaerts and Corthaut 2006, 289). But the Advocate General is perfectly aware of the fact that, as it was the case of the Community pillar, supremacy of Union Law would only be possible if the distrust of national courts is overcome. And to achieve this, the Court must ensure an “equivalent level of protection.” while the protection of fundamental rights is an essential part of the Community pillar, it is equally indispensable in the context of the third pillar, which, owing to the nature of its subject-matter, is capable of affecting the very heart of individual freedom, the foundation of the other freedoms. In that way it might be possible to avoid repeating past misunderstandings with national courts which have been reticent about the capacity of the Community institutions to protect fundamental rights.68

To tackle this issue, the Advocate General advises that the Court “break its silence and recognize the authority of the Charter of Fundamental Rights as an interpretative tool at the forefront of the protection of the fundamental rights which are part of the heritage of the member states.”69 He recognizes that this would imply a three level protection—national, Council of Europe and European Union, but in his view this does not create any “insurmountable problems where there is confidence that all parties exercise their jurisdiction while fully guaranteeing the system of coexistence.” The key for this coexistence is for Advocate General Colomer “a dialogue between the constitutional courts of the European Union.”70

67 This article will not be reproduced in the TEU according to the mandate of the June 2007 European Council to the IGC. It is stated, however, that “the IGC will agree on the following Declaration: “The Conference recalls that, in accordance with well settled case-law of the EU Court of Justice, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case-law.” In addition, the opinion of the Legal Service of the Council (doc. 580/07) will be annexed to the Final Act of the Conference. See Presidency Conclusions, Brussels European Council 21/22 June 2007, Council doc. 11177/07, op. cit. 68 Paragraphs 79 and 80 of the opinion. 69 Paragraph 79 of the opinion. 70 Paragraph 81 of the opinion.


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The Advocate General’s opinion raised the expectations on the potential constitutional impact of the Court’s decision on this case. The Court (Grand Chamber) gave its judgment on 3 May 2007.71 The Court’s reasoning follows in essentially the way paved by the Advocate General (Sanfrutos Cano 2007). Concerning the first and more formalistic point—the adequacy of the chosen legal instrument- the Court refuses to follow the restrictive views concerning third pillar legal instruments, and continuing its proactive reasoning in Pupino, it interprets extensively the material scope of framework decisions in parallel to their Community homologues, the directives. But the innovation of the Court’s decision resides mainly on its approach to the second aspect related to the protection of human rights, as this time the Court refuses to take shelter in formal considerations and dares to undertake a substantive analysis of the issue raised. It examines therefore the controversial articles of the framework decision in light of the principle of equality before the law and the principle of legality of criminal offences, as recognized by articles 20 and 49 of the Charter of Fundamental Rights. It arrives to the same conclusion as Advocate General Colomer and states, to the disenchantment of the more fervent detractors of the European arrest warrant, that the framework decision does not infringe article 6 (2) TEU because it is consistent with the principle of equality and the principle of legality in criminal proceedings. The compliance with fundamental rights as general principles of law is especially important within an area such as criminal cooperation where rights of the most fundamental nature are at stake (Komárek 2007). It is hoped that this judgment will thus inaugurate a new age for judicial supervision of third pillar law, where the Court overcome its past reticence and finally assume its new role as “human rights judge” (Labayle 2006). Moreover, the right to effective judicial protection would play a core role in a field characterized by the limited jurisdiction of the Court of Justice. Cases C- 354/04 P, Gestoras Pro Amnistía v. Council and C-355/04, Segi v. Council By orders of 7 June 2004,72 the Court of First Instance dismissed the actions brought by the organizations Gestoras Pro Amnistía and Segi and their respective spokespersons against the Council of the European Union for compensation for damage allegedly suffered as a result of their inclusion on the list of persons,

71 Judgment of 3 May 2007, Advocaten voor de Wereld VZW v. Leden van de Ministerraad, case C-303/05. 72 Cases T-333/02, Gestoras Pro Amnistía and Others v. Council (not published in the ECR) and T-338/02, Segi and Others v. Council [2004] ECR II-1647.

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groups and entities to which Council common position 2001/931/CFSP of 27 December 2001 on the application of specific measures to terrorism applies.73 Common Position 2001/931, as far as its objectives are concerned, comes within the framework of the common foreign and security policy under Title V of the EU Treaty. It has, however, a double legal basis—articles 15 and 34 TEU—as some of its operational mechanisms come under the scope of the Title VI of the EU Treaty relating to police and judicial cooperation in criminal matters. In particular, the acts presumably having caused the damages to the applicants Gestoras Pro Amnistía and Segi are based on article 34 TEU and therefore fall under the scope of the Title VI of the EU Treaty. The Court of First Instance ruled that it lacked jurisdiction to hear the appellants’ actions for damages as no judicial remedy for compensation is available in this context. It admitted that this probably led to a situation where no effective judicial remedy was available to the applicants, but concluded that, as stated by the Court of Justice in Union de Pequeños Agricultores,74 “the absence of a judicial remedy cannot in itself give rise to Community jurisdiction in a legal system based on the principle of conferred power.”75 The applicants appealed the decision of the Court of First Instance. The Court76 however rejected that in the case at hand the appellants are deprived of effective judicial protection of their rights. But in contrast to the Advocate General’s proposal for “nationalization” of third pillar judicial control,77 it does so by reading the system of legal remedies under Title VI of the Treaty of the European Union in a progressive manner. It overlooks the fact that article 35 (1) TEU, defining the Court’s jurisdiction to give preliminary rulings within the third pillar, does not extend to commons positions, by applying its case law on the right to make a reference within the EC treaty by analogy:78 The right to make a reference to the Court of Justice for a preliminary ruling must therefore exist in respect of all measures adopted by the Council, whatever their nature or form, which are intended to have legal effects in relation to third parties […].79

The Court thus opens the way for preliminary references to a type of instrument, that is common positions, which were specifically excluded by the EU Treaty. Moreover, it goes even further, by suggesting that “the Court would also have jurisdiction to review the lawfulness of such acts when an action has been brought by a member state or the Commission under the conditions fixed 73 OJ L 344, 28 December 2001, 93, subsequently updated by common position 2002/340/CFSP of 2 May 2002, OJ L 116, 3 May 2002, 75 and common position 2002/462/ CFSP of 17 June 2002, OJ L 160, 18 June 2002, 32. 74 Judgment of 25 June 2002, case C-50/00, [2002] ECR I-6677. 75 Paragraph 38 of the order. 76 Judgments of 27 February 2007, Cases C-354/04 P and C-355/04 P, op. cit. 77 Advocate General Mengozzi’s opinion, delivered on the 26 October 2006, paragraph 99. 78 Case 22/70 Commission v. Council (ERTA) [1971] ECR 263, paragraph 38 to 42, and Case C-57/95 France v. Commission [1997] ECR I-1627, paragraphs 7 et seq. 79 Paragraph 53 of the judgment.


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by article 35 (6) TEU.”80 As it did in Pupino, when it recognized the duty of harmonious interpretation with regard to framework decisions in spite of the fact that direct effect of these instruments is explicitly excluded by the wording of the Treaty, the Court goes beyond the limitations set out in the EU Treaty by appealing to principles developed under the EC Treaty. The constitutional impact of this ruling on the judicial system under Title VI of the EU Treaty is more than evident. This being said, its practical consequences are not immediately obvious. The Court solved the problem of the lack of effective judicial protection by extending the scope of its preliminary references jurisdiction, but how the question could arise before a national court is not clear, given that national implementation measures will not always exist.81 A more direct remedy would have been possible if the Constitutional Treaty had been ratified, as the applicant would have been able to bring an action for annulment (article III-365) or for damages (article III-370 and the second paragraph of article III-431) before the Community court from then on, as was rightly pointed out by Advocate General Mengozzi in his opinion.82 The entry into force of the Reform Treaty, retrieving this harmonization of the Court’s jurisdiction between both pillars, will also provide a better scenario for judicial protection in criminal matters within the EU.

Conclusions The Constitutional Treaty would have partly resolved all problems described above, by putting an end to the pillar structure and ensuring a harmonized level of protection of fundamental rights. Therefore, it can hardly be considered coincidental that the rulings in Pupino and Commission v. Council, Criminal sanctions against the environment, came right after the negative referenda in France and the Netherlands. “Institutional changes of the Constitution through the back door” (Apps 2006), reform “with or without you …”( Hatzopoulos 2007), it has to be admitted that this “praetorian communautarization” has its limits. The Court cannot act as a substitute for the Community legislature and some authors have expressed arguments in favour of a “more conservative and constrained role for the court in exercising its powers of review and interpretation” within the third pillar (Fletcher 2007). In this context the relaunch of the reform process by the June 2007 European Council is more than welcome. Nevertheless, it is undeniable that after the 80 Paragraph 55 of the judgment. 81 Advocate General Mengozzi mentions this problem, underlining that a reference for a preliminary ruling, including one regarding validity, “is not a remedy in the true sense but a means of cooperation between national courts and the Community court in the context of an action that can be brought before national courts,” paragraph 95 of the opinion. 82 Paragraph 100 of the opinion.

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judgments in cases such as Commission v. Council, Criminal Sanctions against the environment, Pupino or Gestoras Pro Amnistía the legal system established under Title VI of the EU treaty has already been transformed, both with regard to its content and with regard to its instruments and remedies.

References Apps, K.M. (2006), “Case C-176/03, Commission v. Council: Pillars Askew: Criminal Law EC-style, Columbia Journal of European Law, vol. 12 no. 2, 625–37. Bem, K. (2006), “The European Arrest Warrant and the Polish Constitutional Court Decision of 27 April 2005,” in Guild, E. (ed.), Constitutional Challenges to the European Arrest Warrant (Nijmegen: Wolf Legal Publishers), pp. 125–36. Carrera, S. and Geyer, F. (2007), The Reform Treaty and Justice and Home Affairs. Implications for the common Area of Freedom, Security and Justice, CEPS Policy Brief no. 141 (Brussels: Centre for European Policy Studies). Commission of the European Communities (2005), Communication from the Commission to the European Parliament and the Council on the implications of the Court’s judgment of 13 September 2005 (Case C-176/03, Commission v. Council), COM (2005) 583 final, 24 November 2005. De Witte, B. (1998), “The Pillar Structure and the nature of the European Union: Greek temple or French Gothic Cathedral?,” in Heukels, T., Blokker, N. and Brus, M. (eds), The European Union after Amsterdam—A Legal Analysis (The Hague: Kluwer Law International), pp. 51–67. Geyer, F. (2006), “The European Arrest Warrant in Germany—Constitutional Mistrust towards the Concept of Mutual Trust,” in Guild, E. (ed.), Constitutional Challenges to the European Arrest Warrant (Nijmegen: Wolf Legal Publishers), pp. 101–23. Guild, E. and Carrera, S. (2005), No Constitutional Treaty? Implications for the Area of Freedom, Security and Justice, CEPS Working Document no. 231 (Brussels: Centre for European Policy Studies). Fletcher, M. (2005), “Extending ‘Indirect Effect’ to the Third Pillar: The Significance of Pupino,” European Law Review, vol. 30 no. 6, 862–77. Fletcher, M. (2007), “The European Court of Justice: Carving itself an influential role in the EU’s Third Pillar,” paper submitted for presentation at the EUSA Tenth Biennial International Conference, Montreal, 17–19 May 2007. Hatzopoulos, V. (forthcoming 2007), “With or Without You … Judging Politically in the Field of Area of Freedom, Security and Justice,” European Law Review. Hinarejos Parga, A. (2006), “Bundesverfassungsgericht (German Constitutional Court), Decision of 18 July 2005 (2 BvR 2236/04) on the German European Arrest Warrant Law,” Common Market Law Review, vol. 43 no. 2, 583–95. Isaac, G. (2001), “Le ‘pilier’ communautaire de l’Union européenne, un ‘pilier’ pas comme les autres,” Cahiers de Droit européen, vol. 37 no. 1–2, 45–91. Jacqué, J. P. (2002), “La question de la base juridique dans le cadre de la justice et des affaires intérieures,” in de Kerchove, G. and Weyembergh, A. (eds), L’espace pénal européen: enjeux et perspectives, (Brussels: Editions de l’Université de Bruxelles), pp. 249–56. Komárek, J. (2007), “European Constitutionalism and the European Arrest Warrant: in search of the Limits of ‘Contrapunctual Principles,’” Common Market Law Review, vol. 44 no. 1, 9–40.


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Kowalik-Banczyk, K. (2005), “Should We Polish It Up? The Polish Constitutional Tribunal and the Idea of Supremacy of EU Law,” German Law Journal, vol. 6 no. 10, 1355–66. Labayle, H. (2006), “Architecte ou spectatrice? La Cour de justice de l’Union dans l’Espace de liberté, sécurité et justice,” Revue Trimestrielle de Droit Européen, vol. 42 no. 1, 1–46. Lenaerts, K. and Corthaut, T. (2006), “Of Birds and Hedges: The Role of Primacy in Invoking Norms of EU Law,” European Law Review, vol. 31 no. 3, 287–315. Sarmiento, D. (2005), “Un paso más en la constitucionalización del tercer pilar de la Unión Europea. La sentencia Maria Pupino y el efecto directo de las decisiones marco,” Revista Electrónica de Estudios Internacionales avalaible at www.reei.org. Tobler, C. (2006), “Case C-176/03, Commission v. Council, judgment of the Grand chamber of 13 September 2005,” Common Market Law Review, vol. 43 no. 3, 835–54. Vervaele, J.A.E. (2005), European Criminal Law and General Principles of Union Law, College of Europe, European Legal Studies, Research Papers in Law 5/2005 (Bruges: College of Europe). Wasmeier, M. and Thwaites, N. (2004), “The ‘Battle of the Pillars:’ Does the European Community Have the Power to Approximate National Criminal Laws?,” European Law Review, vol. 29 no. 5, 613–34. White, S. (2006), “Harmonisation of Criminal Law under the First Pillar,” European Law Review, vol. 31 no.1, 81–92.


Chapter 5

EU Member States’ Complicity in Extraordinary Renditions Judit Tóth

The existence of secret CIA prisons in Europe was first reported by US newspapers in November 2005. Following these and other reports, the Parliamentary Assembly of the Council of Europe (PACE) appointed Senator Dick Marty, a Swiss former prosecutor, to conduct a parliamentary inquiry into “alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe member states.” Calling on all member governments along with the European Commission to cooperate fully with the newly appointed rapporteur, PACE president René van der Linden declared: “This issue goes to the very heart of the Council of Europe’s human rights mandate.”1 According to a report of the PACE Legal Affairs Committee adopted on 8 June 2007 so-called US “high-value detainees” (HVD) were held in secret CIA detention centres in Poland and Romania between 2002 and 2005.2 The report was based in part on cross-referenced testimonies of over 30 serving and former members of intelligence services in the US and Europe, and on a new analysis of computer “data strings” from the international flight planning system. It describes in detail the scope and functioning of the US’s “high-value detainees” programme, which it says was set up by the CIA “with the cooperation of official European partners belonging to Government services” and kept secret for many years thanks to strict observance of the rules of confidentiality laid down in the NATO framework. The programme “has given rise to repeated serious breaches of human rights,” the Committee declared, including the torture of detainees. The European Parliament (EP), as well, launched an investigation into the alleged secret prisons following information released in the press in December 2005. In his report3 the European Parliament’s rapporteur Claudio Fava came to similar conclusions as Dick Marty, stating that EU countries “turned a blind eye” 1 PACE, Press release, 17 November 2005. 2 Council of Europe, Parliamentary Assembly, Committee on Legal Affairs and Human Rights, Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report (Rapporteur: Dick Marty, Switzerland, ALDE), AS/Jur (2007) 36, 7 June 2007. 3 European Parliament, Report on the alleged use of the European countries by the CIA for the transportation and illegal detention of prisoners (2006/2200(INI)), Temporary Committee on the alleged use of the European countries by the CIA for the transportation

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to extraordinary renditions across their territory and airspace. The report, which deplores the passivity of some member states in the face of illegal CIA operations, as well as the lack of cooperation from the EU Council of Ministers, was approved with 382 votes in favor, 256 against and 74 abstentions. A later adopted interim report of Claudio Fava (15 June 2007)4 maintained prior suspicions urging the closure of the prisoners’ camp in Guantánamo Bay. In contrast to PACE, the EP report does not designate 14 responsible states, but instead, highlights concrete cases, mainly a kidnapping in Italy and the rendition and transport of a German citizen, both of which could not have happened without knowledge of territorial authorities. The EP’s report considers it less probable that “certain governments or secret services” could not be aware of actions going on in their own territory or airspace. Yet it is questionable whether these reporting systems—notwithstanding PACE’s and the EP’s strong commitments for fundamental rights and democratic control—actually did release all relevant information on the mechanisms of secret services, intelligence and anti-terrorist alliances of states that endanger rule of law, human rights and liberal democracy. In addition, there are numerous ramifications of these secret activities on domestic policy and transatlantic relations, on the capacity and action potential of the Council of Europe and the EU towards its own members as well as on the protection of human rights and legality of combating terrorism. This chapter intends to describe the mechanisms how—directly or indirectly—responsible states have and do explain instead of tackle this human rights crisis.

What is the Most Effective Weapon against Terrorism? US Defence Secretary Robert Gates spoke at the Munich Security Conference about the West’s defeat of totalitarianism in the twentieth century and the opposition to extremist ideologies now. He said: “Our most effective weapon then and now has been Europe’s and North America’s shared belief in political and economic freedom, religious toleration, human rights, representative government and the rule of law. Those values kept our side united.”5 This unity of values and principles has its own legal toolkit and contains among others the following elements:

and illegal detention of prisoners Rapporteur: Claudio Fava, (A6-0020/2007) final, 30 January 2007. 4 European Parliament, Interim Report on the alleged use of the European countries by the CIA for the transportation and illegal detention of prisoners (2006/2027(INI)), Temporary Committee on the alleged use of the European countries by the CIA for the transportation and illegal detention of prisoners Rapporteur: Claudio Fava, (A6-0213/200) final, 15 June 2007. 5 Cited by Sarah Ludford (MEP, UK) in the EP debate on alleged CIA renditions, Press Release, European Parliament, REF: 20070208IPR02898, 14 February 2007.

EU Member States’ Complicity in Extraordinary Renditions

•

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• •

•

•

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Inviolability of human dignity contains as ius cogens 6 the prohibition of torture, degrading or inhuman treatment or punishment (for instance, as enshrined in the United Nations Torture Convention, UNCAT, and the European Convention for the Protection of Human Rights and Fundamental Freedoms, ECHR). Right to life, liberty and security as enshrined in the UN International Covenant on Civil and Political Rights (ICCPR) as well as the ECHR. Right to protection against removal, expulsion or extradition, including the principle of non-refoulement and the right to access international legal protection (ICCPR, the 1951 Geneva Convention as well as the ECHR). Right to effective remedy and a fair trial including habeas corpus as enshrined in the ICCPR and the ECHR. In warfare and armed conflicts the Geneva Conventions on humanitarian law need to be respected. These define the right of imprisoned war combatant enemies to be visited by humanitarian organizations. Total isolation from external relations therefore amounts to a violation of international humanitarian law. Rules on international civil aviation are determined in the Chicago Convention on International Civil Aviation. It establishes the principle that party states have complete and exclusive sovereignty over the airspace above their territory, including responsibility for any violation of human rights by another state or authority. Furthermore it establishes, that the use of civil aviation for any other purpose is inconsistent with the aims of the Convention, such as covered military or police flights. Respect for bilateral agreements on mutual assistance in the fight against organized crime, legal aid in criminal matters (including extradition, surrender) as well as on military bases is necessary. This entails that a territorial state must be enabled to exercise sufficient powers to fulfil its human rights obligations, as the Venice Commission (European Commission for democracy through Law) recently underlined.7 Right to privacy and protection of personal data as part of the respect for human dignity is defined separately in the ICCPR and the ECHR. Exceptions from human rights obligations are limited and contained within a legal framework: in case of emergency or severe danger, limitations or derogations must be temporary, determined in mandatory law, necessary and proportional without racial, religious, gender, linguistic or social origin based discrimination. Furthermore, the most fundamental rights are not derogable or suspendable (such as right to life, religion, respect for human dignity in accordance with article 4 ICCPR and article 15 ECHR).

6 A peremptory, universal and non-derogable principle of international law. 7 Cf. European Commission for democracy through Law, Opinion on the international legal obligations of Council of Europe member states in respect of secret detention facilities and inter-state transport of prisoners, Opinion no. 363/2005, CDLAD(2006)009, 17 March 2006.

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In case of violation of human rights, the state has an obligation to launch investigations and ascertain the liability of officials in judicial proceedings; compensation of victims shall be provided. Civil and political scrutiny cannot operate without publicity and right to free press and obtaining information of public interest. Adequate democratic control on executive powers including security services is an essential requirement of constitutionalism and rule of law, which are common values in the EU. In addition articles 6 and 7 of the Treaty on European Union (TEU) require respect for fundamental rights and foresee sanctions for severe, mass violations committed by a member state.

This non-exhaustive list contains some elements of the common values and principles that are capable of overcoming totalitarian regimes, as referred to by US Defence Secretary Robert Gates. Yet, despite of it the practice of extraordinary renditions and secret detentions has taken place.

Is There an Alternative Toolkit? “The traditional systems of justice do not work,” summarized Condoleezza Rice, the US Secretary of State (cf. Bonner 2007). But what about the new approach? This new approach covers the extraction of information from (alleged) terrorists at whatsoever costs including torture, kidnapping or covert flights via third countries and even an “outsourced Guantánamo.”8 This “franchised illegal practice” entails that suspected persons are kept in detention without criminal charges and void of all criminal procedural guarantees as well as being subjected to torture and extraordinary rendition. It can be labelled a Cold-War heritage: aggressive, unilateral, and militant responses to incipient threats as the best way to avoid catastrophe (Scheppele 2004); or as preventive interrogations. Either way, it proves that executive powers experience expansion and in parallel, courts and international law denigration. Combating terrorism seems to be the axle of contemporary transatlantic relations that causes human rights crises. Speaking in a human rights language, does this constitute a clandestine implementation of illegal instruments? Or on the basis of a “Jesuit approach” is it an implementation of the exceptional power for national interests providing its effective protection? “Sovereign is who decides on exception”—wrote Carl Schmitt in 1922, but exception relates to the existence of a normal rationale and of a coherent legal system. As mentioned above, exceptions are allowed by the ICCPR and the ECHR, but they must remain within the legal framework and respect ius cogens obligations. In this respect, the following rights can never be subject to derogation: the right to life (with the exception of a lawful act of war), the prohibition of torture, inhuman or degrading treatment, the prohibition of slavery or servitude, and the prohibition 8 Sifton, J., researcher at Human Rights Watch referring to Ethiopia on Democracy Now, 5 April 2007.


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of retroactive criminal laws. In addition, the legality of a derogation under the ECHR by one state party is not a decision which is purely internal to the state: it must be communicated to the Secretariat of the Council of Europe and is subject to supranational scrutiny by the European Court of Human Rights (ECtHR) if challenged by another state or an individual (Guild 2007). Naturally, however, the legal conclusions of the Court must be based on established facts, which due to secrecy, uncontrolled security services and absence of formal criminal proceedings are almost impossible to obtain in the necessary extent. “Governing terror” does not merely refer to the massive global security effort that is now devoted to governing terror. It also covers how western security practices are themselves now also governed by a widespread fear of terror— therefore a biopolitical term is also appropriate (Dillon 2007, 7). The “war on terror”—in its excesses—has produced a serious and “dangerous erosion of human rights and fundamental freedoms”—which Kofi Annan expressed as a major concern.9 In September 2006 US President G.W. Bush publicly acknowledged that secret prisons existed. He said that vital information gained through extraordinary renditions and secret detention programmes led by the CIA outside the US since the 1990s had been shared with other countries. In January 2007 the UK admitted its prior knowledge of a CIA prison network. Spain conceded in September 2006 that CIA planes transporting detainees to secret prisons in Europe may have stopped over on its soil and earlier this month, Portugal opened a probe into allegations that CIA planes landed in Portugal en route to Guantánamo Bay, among other destinations. It was publicly available information that after 9/11 the conditional implementation of article 5 North Atlantic Treaty had been agreed upon (12 September 2001).10 Yet, in spite of publicly announced collective measures in the “war on terror,” unilateral secret actions have been undertaken in order to secure agreements with certain countries to host “black sites” for “high-value detainees,” HVDs. Reluctance of governments and leading personalities to cooperate with the EP Temporary Committee or to give answers to the questions of the Secretary General of the Council of Europe acting under article 52 ECHR11 may be considered an organic part of the secret game of the governments. 9 Cited after European Parliament resolution on the alleged use of the European countries by the CIA for the transportation and illegal detention of prisoners (2006/2200(INI)), P6_TA-PROV(2007)0032, para 2. 10 “If it is determined that this attack was directed from abroad against the United States, it shall be regarded as an action covered by Article 5 of the Washington Treaty.” The assessment of NATO allies on its determination was unanimous, NATO Press Release, 2 October 2001. 11 The questions are aimed at explaining the manner in which member states’ internal law ensures the effective implementation of any of the provisions of the ECHR. In the context of this subject matter they related to: (1) Adequate controls over acts of officials of foreign agencies within the State’s jurisdiction i) Police and judicial cooperation in criminal matters, ii) Security Services, iii) Military personnel, and iv) Flights allegedly used for rendition purposes. (2) Adequate safeguards to prevent unacknowledged deprivation of

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Nevertheless the fact-finding was supported by journalists and NGOs—and secret actions were partly disclosed. In this way the “dynamics of truth”12 obliged European states acknowledge at least part of the truth and to regroup in order to face the considerable challenges that need to be faced in the future.

How Extraordinary Renditions are Explained Passive or active complicity of European states in the US led “war on terror” cannot be explained merely by regulations; however the perspective of territorial states is a starting point. Naturally, the explanations (or rather legalistic evasions) enumerated below form various combinations and cumulative effects, many of which appear in official statements or policies. No Jurisdiction Involvement of third countries (flight stopovers, secret detention and places of interrogation) constitutes an illusion of extraterritorial effects of officials’ activities. This is not new: we know that cloning research is undertaken on board of ships on the high seas. Similarly Guantánamo Bay (as well as Bagram Airfield or the Abu Ghraib facility) is located beyond US territorial borders and it has been previously characterized by a number of US courts to be an area that is explicitly not US sovereign territory, in spite of the US having effective and sole control there. The unlawful practice in international transit zones constitutes a “toolkit of restrictions outside the ordinary structure of migration law.” Yet, transit zones cannot be considered as extraterritorial exceptions from human rights obligations. People residing in transit zones are subject to the jurisdiction of the territorial state, which remains bound by its international human rights obligations,13 however, they are treated in a distinctive way in comparison to the ordinary legal regime, at least in four aspects: (1) detention or limitation of liberty and free movement intends to prevent their irregular/unlawful entry to the territory; (2) less guarantees are available in accelerated procedures concerning the substantial evaluation of non-refoulement and asylum excluding their feeling of security and stability; (3) absence of publicity, for instance, access of civil organizations and journalists to transit zones is almost excluded; and (4) physical conditions of accommodation

liberty. (3) Adequate provisions to deal with alleged infringements of Convention rights. (4) Have any public officials been involved in the unacknowledged deprivation of liberty of any individual, or transport of any individual while so deprived of their liberty? Are there any official investigations completed or under way? 12 Council of Europe, Parliamentary Assembly, Committee on Legal Affairs and Human Rights: Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report (Rapporteur: Mr Dick Marty, Switzerland, ALDE), AS/Jur (2007) 36, 7 June 2007, 6. 13 See ECtHR, Amuur v. France, 19776/92, Reports of Judgement and Decisions, 1996-III, No. 11, 25 June 1996.


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are backward in transit zones, in general avoiding further “pull factor effects” (Tóth 2006). Naturally, people subject to extraordinary rendition are not rejected migrants, but they are also criminalized as refused foreigners without criminal procedure, legal guarantees, publicity. They are kept in unknown conditions at borders or in hidden parts of airbases. This analogy allows us to suppose that conditions of kidnapped, deported or tortured persons are bad in a physical sense, but also in a psychological sense. Furthermore, they do not officially enter the territory of the transit and/or destination state. How will the territorial state face the consequences for breaching human rights obligations, (for instance for denying the right to request international protection) if there is no sanction for the violation of the Geneva Convention? However, we have to add that refoulement and removal of a person seeking protection has a chance to be sanctioned, for instance, as seen against Sweden.14 In a modern bureaucracy, persons without official registration do not exist by law. If the entry of CIA flight staff and persons on board has never been documented, how can participation in interrogation or torture of apprehended persons be proven? Yet, the argument of missing jurisdiction can actually be valid on the basis of international treaties. In this respect, the USA has concluded bilateral agreements particularly with new democracies—referring to NATO membership and security cooperation—excluding by law or in discretional power the jurisdiction of the territorial state over crimes committed by US agents or military staff. Double Standard Exceptionalism and emergency measures in the “war on terror” may explain why alleged terrorists are treated in a different way compared to “ordinary people.” To begin with, they are frequently foreigners or third country nationals and are therefore granted a lower level of protection and set of rights. If they have citizenship, they are not necessarily born as citizens of the state in question, but naturalized nationals whose nationality and loyalty are questionable and subject to a possible withdrawal (for instance in the case of dual nationality or by formal procedure as a legal consequence of abuse).15 Moreover, alleged terrorists can be neither nationals, nor settled, long-term resident migrants, thus their legal standings are rather vulnerable. 14 UN Human Rights Committee’s and Committee for the Prevention of Torture (CPT) decisions against Sweden for asylum seeker’s expulsion would be an example. ICCPR underlines that “at a minimum, a State party is responsible for acts of foreign officials exercising acts of sovereign authority on its territory, if such acts are performed with the consent or acquiescence of the State party [of the Convention]” ICCPR Communication No. 1416/2005 (6 November 2006). 15 For instance, in Poland, dual citizenship is not tolerated by law although there is a formal withdrawal procedure. In Hungary, nationality may be withdrawn only if a person who has acquired nationality by naturalization has violated the law on nationality by misleading the authorities by submitting false data or omitting data or facts. Ten years after naturalization, Hungarian nationality may no longer be withdrawn (see Bauböck et al. 2007).

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Finally, third country nationals, stateless persons, or persons seeking protection at the EU external borders enjoy less rights and freedoms. In parallel, the Military Commissions Act 2006 clearly reflects “distinctions between United States citizens and non-citizens, strips away the time-honored right of detainees to challenge the basis for their detention (habeas corpus), and insulates US service personnel from prosecution for violations of common article 3 of the four Geneva Conventions. The process that lay ahead for captured terrorist suspects was thereby mapped out, whilst the Administration tried to cover the tracks that led them there” as requested by President G.W. Bush.16 The above mentioned differences in legal status are lawful; yet the principles equal treatment and tight human rights and diplomatic protection have failed in practice in the cases of the German citizens, the Turkish citizen living in Germany, the Spanish citizen, the Egyptians residing in Austria and the Turkish citizens all of which are detailed in the European Parliament Report. This double standard ethic and policy can be observed towards Muslims if they are alleged terrorists without criminal procedural guarantees and Gypsies in eastward enlargement process (Hoffmeister 2004; Vizi 2005). State Incapacity State incapacity is a generic term of legal avoidance and a pretext for rationalizing why state control on air traffic, for instance in Poland and Romania, has been so selective in favor of American flights at Kogalniceau airport or at Szymany airport. The “creeping cooperation” of the USA with Romania and Poland went beyond the multilateral NATO framework (for instance in the form of a supplementary agreement to the NATO—Status of Forces Agreement [SOFA]). But why in these states? Fragile democracy means weak parliamentary and public control, a strong affiliation to bilateralism, not being familiar with multilateral games and less knowledgeable of international law.17 The Polish government that showed reluctance in cooperating with the Council of Europe gathered fees of 2000 to 4000 € for excessive “secret flights” landings.18 The other states with securing agreements—such as Macedonia—for numerous reasons cannot share 16 Council of Europe, Parliamentary Assembly, Committee on Legal Affairs and Human Rights: Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report (Rapporteur: Mr Dick Marty, Switzerland, ALDE), AS/Jur (2007) 36, 7 June 2007, 10. 17 György Frunda said during the Plenary Debate of the Parliamentary Assembly of the Council of Europe: “We did not and do not know who [transported] persons are because, do not forget, the aircrafts are under the authority of the countries where they are registered. The countries in which the airports are located do not have legal instruments to see what happens on board,” 27 June 2006. 18 European Parliament, Report on the alleged use of the European countries by the CIA for the transportation and illegal detention of prisoners (2006/2200(INI)), Temporary Committee on the alleged use of the European countries by the CIA for the transportation and illegal detention of prisoners Rapporteur: Fava, G. C., (A6-0020/2007) final, 30 January 2007.


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the common values in fact yet only at rhetoric level. Thus, alliance may be based on breaking away from isolation or economic segregation, too. Only BosniaHerzegovina among the European governments accepted formal responsibility for illegal actions and participation in the extraordinary rendition of Algerians. In other terms, effective sovereignty covers airspace, international airports, air traffic and control in coordination with foreign intelligence services, not only in respect for human rights. Legal cases related to article 6 ECHR and the Inter-American Commission contains rich examples of this on both shores of the Atlantic Ocean. Uncontrolled Power Parliamentary or other scrutiny systems on executive power intended to monitor operations of security services were set up in many member states following the EP’s Temporary Committee’s initiative. In other states judicial proceedings on liability were not launched, such as in Romania, where an ad hoc inquiry committee in the senate operates but does not manage investigations, nor does it initiate judicial procedures. Civil control and public discourses cannot work without respected and developed institutions guaranteeing the right of obtaining data and information of public interest. However, security and intelligence services are not transparent and methodologies as well as legal instruments dealing with the control of foreign agencies and operations of international networks of security services are missing.

How to Avoid Complicity Under the umbrella of counter-terrorism, extraordinary renditions can happen with active and passive complicity of European states (EU, non-EU) and states that are farther away. This joint goal of public policy remains but its legality requires avoiding complicity with unlawful, degrading actions on the basis of dual ethics against alleged or genuine terrorists. Outlined lessons from the reports of the EP and PACE should be accompanied with studies on other relevant international documents, democratic control and public debates. At the universal level only three tracks shall be mentioned. The UN International Convention for the Protection of All Persons from Enforced Disappearance adopted on 20 December 2006 does not foresee the “exceptional circumstances” (war, threat of war, internal instability or public emergency) that may be invoked as justification for enforced disappearance of an individual regardless of his/her nationality and social status. Accordingly, involvement in enforced disappearance—as an actor or as a supporter in silence—constitutes

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a crime, and in certain circumstances in international law, a crime against humanity.19 Latin-American and Stalinist dictators carried out enforced disappearances instead of ordinary criminal trials. The efficiency of traditional justice systems can be upgraded with numerous lawful instruments provided that there is trust among states and the concerned judicial authorities. Kidnapping, secret renditions and detentions, clandestine stopovers, and covert flights cannot provide the mutual trust that is required for international cooperation. The PACE also adopted important texts on enforced disappearance and unlawful detention in close connection to uncontrolled security services.20 Ratification of the Convention on enforced disappearances is important for states with strong commitments to human rights and those states whose nationals are victimized.21 Until its ratification, the Council of Europe resolution on enforced disappearance lays down a number of points pertaining to the definition of enforced disappearance, safeguards against impunity, preventive measures, the victim’s right to reparation and the monitoring mechanism which it considers essential.22 Among the recommendations, it contains: (a) the recognition of close relatives as victims in their own right and to grant them a “right to the truth”; (b) effective measures against impunity; (c) appropriate preventive measures (e.g. appropriate training of law enforcement actors, for instance, on the Council of Europe “Guidelines on human rights and the fight against terrorism”23); (d) a comprehensive right to reparation including restitution, rehabilitation, satisfaction and compensation, and (e) a strong international monitoring mechanism, including an urgent intervention procedure. Another preventive measure is the recognition of jurisdiction of the International Criminal Court and practical cooperation with this tribunal, including the surrender of requested persons. The USA, however, is not the only country that is reluctant to recognize the Court; some partners in complicity 19 For the purposes of that Convention, “‘enforced disappearance’ is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of law,” article 2. 20 Report on enforced disappearances (2005), Report on the control of internal security services in Council of Europe member states (1999), Report on the lawfulness of detentions by the United States in Guantánamo Bay (2005). 21 Each State Party shall take the necessary measures to establish its competence to exercise jurisdiction over the offence of enforced disappearance: (a) when the offence is committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State; (b) when the alleged offender is one of its nationals; (c) when the disappeared person is one of its nationals and the State Party considers it appropriate. [Article 9 (1)] 22 Doc. 10679 (19 September 2005) Enforced disappearances. The Report of the Committee on Legal Affairs and Human Rights was drafted by the rapporteur Mr Christos Pourgourides (Cyprus, Group of the European People’s Party). 23 Adopted by the Committee of Ministers on 11 July 2002.


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perhaps follow suit. In contrast EU member states have strongly supported the ratification of the Rome Statute of the International Criminal Court. At EU level the list of preventive steps and political recommendations is long (Geyer 2007), including an upgraded EU-USA dialogue on security matters, a follow up procedure of the EP report and resolution on CIA activities, as well as trust and capacity building in the EU third pillar.

The Hungarian Case—Instead of Conclusions Hungarian public opinion and press has been silent on the CIA actions. Discourses are limited to harsh domestic political debates on governance, while transatlantic relations, security policy or counter-terrorism are neither issues of discussion nor targets of investigation reports, despite the constitutional right and statutory laws providing access to relevant public information, supervised by the Ombudsman for Data Protection and Public Information.24 On the other side, the term “state secret” or “service secret” and “security interest” constitute lawful and almost unimpeded legal restraints to access all relevant data on security services and clandestine operations of investigation organizations.25 Parliamentary control on civil and defence security services exists in a Committee composed of eleven members of parliament, while the government (through the Minister of Defence and Minister of Prime Minister’s Office) has directed those strongly hierarchical, militant organizations since 1990. Due to this isolation, public opinion is minimally interested in the regular operations, efficiency and public finance of these services, unless they provide information on terror threats in the country. In this sense, the EP report on CIA activities was only shortly echoed in the news, highlighting that “there is no real proof ” of secret detentions.26 While security services and investigating authorities (Police, Border Guard, Customs Office, Taxation Office, and Public Prosecutor’s Office) have gradually extended competencies against potential terrorists in recent years, democratic and legal controls have not followed suit (Szikinger and Tóth 2006; Szikinger 2006). Furthermore, the same entitlements or instruments of law do not form a coherent system combating serial killers, organized crime, war crimes or crimes against humanity. These organizations are not so active—at least according to the Wiesenthal Centre27—in the investigation of past war crimes. Moreover, not only is information on past events restricted but also the actual operations, rules or structures of security services are unavailable. 24 Article 59 (2) of the Constitution, and Act LXIII of 1992 on personal data protection and accession to public information, Act CII of 2005 on freedom to access electronic information, Act LIX of 1993 on Ombudsman. 25 Act LXXVI of 1995 on state and service secrets and Act CXXV of 1995 on National Security. 26 ’A CIA-jelentéssel egyetért az EP, de bizonyíték nincs” [EP agrees the report on CIA but there is no proof], Magyar Hírlap, 15 February 2007. 27 Népszabadság, 11 June 2007.

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The basic motivation for secrecy is naturally immanently given: the enemy must not know what we know. But to this, procedural secrecy is quickly added: the enemy must not know the illegal procedures undertaken in order to gain information. This in itself becomes a potential cause of conflict. And this problem doubles once more internally in democratic societies: the public must not know (too much) about the types of methods used because this may delegitimize democracy’s own laws and ideals. These constraints have led to a massive growth in the use of the three classic grades of secrecy: confidential, secret and top secret. Too much secrecy not only means that an organization may loose grasp of its own information; it may, furthermore, lead to the widespread misunderstanding that just because something is marked “Top Secret” it is eo ipso true. In fact, even today, after the fall of the party state, the files and the empirical data archives which are essential to analytical research are only accessible in part due to rules on state archives, security services’ interest and qualified documents (Révész 2007). In other terms, gradual development of democratic control follows the limited freedom of science on security services. By the way, accountability of intelligence and security services does not necessarily include access for academics.28 The Hungarian minister responsible for security services has not been too talkative in general but during the election campaign in 2006 he warned against the threat of terrorism three times following street demonstrations and political assemblies led by the biggest opposition party in September–October 2006. As a consequence of these warnings, he had to give answers, whether these announcements were a “dirty trick of the government” against political enemies or whether the threat did in fact exist. He said that right-wing extremists forming groups of 2,000 to 3,000 persons had prepared dangerous actions in public places, and their core of 200 persons were furnished with self-made weapons. Their arrest, investigation or control stopped them but serious mistakes were made by the security service staff. For this reason the director of the National Security Service urged a re-organization and reform—and finally resigned in May 2007. The government proposed a modification on structure, rationalization and more restrictive internal screening of officers, an amendment which requires consent in the Parliament.29 We can conclude of these developments that the major threats are internal and services have to face the classic task of protecting the state’s internal constitutional system—instead of international threats.

28 See speech by Commissioner Franco Frattini at the international symposium on Accountability of the Intelligence and Security Agencies and Human Rights (The Hague, 7 June 2007). He said: “In all our work we need to think carefully about how we protect and promote fundamental rights, not just in policy and legislation, but also in daily practice. The intelligence services’ activities, as well as their cooperation—a key factor in combating terrorism—must be conducted with full respect for fundamental rights and the principle of the rule of law.” 29 Titkosszolgálati tervek. Szilvásy György a botrányokról és a kijátszott terrorkártyáról [Plans on Security services—Interview with the Minister Szilvásy on scandals and terror] Népszabadság, 2 June 2007.


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Reporting on Fava’s second report of June 2007 and its approval could have inspired public discourse on the legality and implications of CIA activities. But instead internal political party rifts were deepening through this transatlantic and European issue, too. Member of Parliament Magda Kovács (SP) supported the firmness of the report considering it an appropriate basis for further work. The opinion of the People’s Party Member of Parliament Gyorgy Schöpflin, formulated during a press conference was that the hard tone of the previous PACE report strongly influenced the atmosphere of motions. He added that the conservative side would not have supported a harsh anti-American critic. Fava’s report, however, does not point to guilty, responsible states, and he added: “Torture, illegal flights are also condemned by the People’s Party but evidence is still weak.”30 This short dialogue between the right and left side of the Hungarian EP members may encapsulate at least two aspects of evaluation of the extraordinary renditions: what would be the legal and foreign affairs instruments of lawful, bilateral cooperation with the US? The existing legal instruments of cooperation with US providing a fast and regular exchange of information and judicial, investigating cooperation are the following: •

•

International Law Enforcement Academy (Budapest) founded, supported and led by the USA together with the Hungarian Ministry of the Interior provides professional training or analysis of cases.31 Agreement on mutual legal assistance on criminal matters32 ensures direct inter-ministerial contacts without dual incrimination (even oral requests are sufficient in urgent cases). It provides confidential personal data exchange not only in criminal proceedings but also for the “prevention of severe and direct threats on public security.” An entitlement to set up joint investigation teams, organize videoconferences and so on was inserted into the text in accordance with EU-US Treaty 200333 upgrading the speed of cooperation.

30 “Elfogadta jelentését az EP CIA-bizottsága” [CIA committee of the EP adopted own report], Origo nagyvilág, 6 December 2006. 31 165/1996. (XI. 20.) Korm. rendelet a Magyar Köztársaság Kormánya és az Amerikai Egyesült Államok Kormánya között a Nemzetközi Rendészeti Akadémia létesítésérĲl szóló, Budapesten, 1995. április hó 24. napján aláírt Megállapodás kihirdetésérĲl [Agreement on ILEA]. 32 1997. évi LX. Törvény a Magyar Köztársaság Kormánya és az Amerikai Egyesült Államok Kormánya között a kölcsönös bŐnügyi jogsegélyrĲl szóló, Budapesten, az 1994. év december hónap 1. napján aláírt szerzĲdés kihirdetésérĲl [Agreement on legal aid on criminal matters]. 33 2006. évi XL. törvény a Magyar Köztársaság Kormánya és az Amerikai Egyesült Államok Kormánya között a kiadatásról és a kölcsönös bŐnügyi jogsegélyrĲl szóló, Budapesten, 1994. december 1-jén aláírt szerzĲdések módosításáról szóló szerzĲdések kihirdetésérĲl [Modification of exrtadition and mutual legal aid in criminal matters agreements].

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•

• •

•


Agreement on extradition34 allows for the extradition of offenders in all kinds of organized, structured or conspiring groups even when the alleged crimes were committed in a third country. Upon inter-ministerial request, transfer of an offender from a third country can be permitted, and the transferred offender can be kept in detention. Air transfer without planned landing needs no permit. The agreement was also modified taking into account the EU-US Treaty (2003). Memorandum on prevention and suppression of organized crime35 ensures the exchange of data, cooperation in investigation and trans-border actions. Supplementary agreement to NATO SOFA36 covers the entry and residence of military forces. Military and civil staff is obliged to respect all American and Hungarian regulations. Exceptions of border, customs or alien policing control are applicable only on military and civil staff. Qualified data of defence are also protected.37 The air traffic agreement38 allows for the use of airports and airspace for designated, registered air companies that are obliged to respect all laws on entry and residence of Hungary regardless of the nationality of persons on board.

Finally, the anti-American sentiment can be read from the above mentioned discussion on the EP Report and its follow-up. This internal political game is played by the President of State. His major function (article 29 of the Constitution) is to represent the unity of the nation and to ensure the democratic operation of the state organs. Furthermore, he is the chief commander of defence which is part of shared competence on defence.39 The current president was elected in

34 1997. évi LXI. Törvény a Magyar Köztársaság Kormánya és az Amerikai Egyesült Államok Kormánya között a kiadatásról szóló, Budapesten, az 1994. év december hónap 1. napján aláírt szerzĲdés kihirdetésérĲl [Agreement on extradition]. 35 36/2000. (III. 17.) Korm. rendelet a Magyar Köztársaság és az Amerikai Egyesült Államok Kormánya között a szervezett bŐnözés megelĲzésére és visszaszorítására vonatkozó információk cseréjérĲl szóló, Budapesten, 2000. január 13-án aláírt Egyetértési Nyilatkozat kihirdetésérĲl [Memo of Undertsanding on organized crime]. 36 1997. évi XLIX. Törvény a Magyar Köztársaság Kormánya és az Egyesült Államok Kormánya közötti, az Egyesült Államok Fegyveres ErĲinek a Magyar Köztársaság területén történĲ tevékenységérĲl szóló Megállapodás, valamint az annak mellékletét képezĲ Végrehajtási Megállapodások megerĲsítésérĲl és kihirdetésérĲl. 37 1996. évi XXXIV. törvény a Magyar Köztársaság Kormánya és az Amerikai Egyesült Államok Kormánya között a minĲsített katonai információk védelme tárgyában Washingtonban, 1995. május 16-án aláírt Biztonsági Egyezmény megerĲsítésérĲl és kihirdetésérĲl [Agreement on qualified defence infromation]. 38 1973. évi 16. törvényerejŐ rendelet a Magyar Népköztársaság Kormánya és az Amerikai Egyesült Államok Kormánya között Washingtonban, az 1972. évi május hó 30. napján aláírt légügyi egyezmény kihirdetésérĲl. 39 S/he is nominated by MPs and elected by the Parliament for 5 years, and his/her competences are implemented upon countersignature of the Government/minister with exceptions related to the operation of the Parliament.


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August 2005.40 His self-definitions refer to becoming a symbolic and merit-based power: “The President shall be in possession of a moralistic power, and s/he can accomplish her/his own goals through symbolic gestures and different measures that may carry their own message.” He represents the actual government’s foreign policy on a wide manoeuvring room “where I may stress my own points, for instance, in case of my disagreement, I reject a visit or participation.” Moreover, “I stand for human rights and constitutional values as a civil rights fighter.” “Freedoms are guaranteeded by the Constitution. Respect for human rights is our common treasure that shall be guarded. We must not make a concession for a moment.” “I am a friend of Europe (…) supporting the deeper integration in the EU although the decision making in the EU is not democratic enough, thus we have to exploit democracy to a greater extent at home in order to express our opinion in Brussels. The parliamentary scrutiny must be more effective and civil organizations and pressure groups would express their own views on European issues in a stronger manner.” On the basis of his firm stand on human rights and democratic control he confronted biometrical identification in theory (because as a VIP he did not have to comply with it). “I do not travel to the USA—as an academic I have neither done—as long as I must give fingerprints.” This rejection represents the opinion of a broad part of society. “I have chosen this method of protest not for myself. The Hungarian government has made long lasting efforts for visa free entry. The security needs are not adequate reasons for visa requirements just for Hungarians. Perhaps my harsh and provocative statement would draw attention to this issue (…). I am looking forward to reactions. In case of visa facilitation or fingerprint giving, I can also give concession.” In the end, he travelled to the UN General Assembly with UN visa to New York (13 September 2005) and met with G. W. Bush, not in the USA but in Budapest (22 June 2006). He recalled: “experiences of democratic changes and the most effective instruments of liberty, democracy and protection of human rights.” He underlined “the necessity of respect for human rights even in combating terrorism and in circumstances of upgraded security threats.” He emphasized that visa requirements for Hungarian citizens were not reasonable yet due to contacts of alliance.” Also coming from the civil rights fighter’s attitude, he rejected the Act on Passenger Name Records (PNR). Parliament had passed the bill on the implementation of the Agreement between the EU and the USA on the processing and transfer of Passenger Name Record (PNR) data by air carriers to the US Department of Homeland Security (20 November 2006). The Hungarian President rejected its signature, and returned the act to Parliament for reconsideration (article 26 of the Constitution): “In my view, the Act does not include all the necessary and possible guarantees related to its subject” coming from the fundamental rights for personal data protection and the Act on the Protection of personal data (1992). Sensitive personal data (such as religion or health of 40 Citations from interviews made with the President, see Népszava, 19 August 2005; Magyar Televízió “Az Este,” 7 June 2006; FigyelĲ, 3 August 2006; Duna TV “Közbeszéd,” 1 December 2006; Info Rádió, 15 December 2006.

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the concerned person) required further guarantees (direct written consent of the concerned person and an adequate level of data protection in the third country). He proposed to amend the act in a way that allows for a balance in favor of the constitutional high level of personal data protection: “data transfer on the basis of the Agreement on the condition that the person concerned has explicitly consented to such transfer abroad.” Due to the President’s rejection and reconsideration, the implementing act modified the Act on Air Transport (1995) and entitled the Ombudsman of personal data protection and public information to control the implementation of the Agreement. As lessons from the secret actions we can learn that a strong commitment to human rights and constitutional principles taken by state leaders along with the implementation of lawful tools of cooperation with foreign services assist us to avoid similar human rights crises. “Each state shall protect against terrorism that would limit liberty. But each limitation and restriction shall be inevitable, necessary and really appropriate in the protection against terrorism. Human dignity must not be limited, derogated or suspended in emergencies, and, for instance, as a recently appeared conception saying that foreign terrorists or alleged terrorists could be tortured on a constitutional base, it shall be rejected. There is a need for a new balance between the self-protection of state and respect for fundamental rights. And if public opinion prefers security versus liberty—there are values and principles that must be represented even against public opinion.”

References Bauböck, R., Sievers, W. and Perchinig, B. (eds) (2007), Citizenship Policies in the New Europe (Amsterdam: Amsterdam University Press). Bigo, D. and Walker, R. (2007), “International, Political, Sociology—editorial,” International Political Sociology, vol. 1 no.1, 1–5. Bonner, R. (2007), “The CIA’s Secret Torture,” The New York Review of Books, 11 January. Dillon, M. (2007), “Governing Terror: The State of Emergency of Biopolitical Emergence,” International Political Sociology, vol.1 no. 1, 7–28. Geyer, F. (2007), Fruit of the Poisonous Tree—Member States’ Indirect Use of Extraordinary Rendition and the EU Counter-terrorism Strategy, CEPS Working Document no. 263 (Brussels: Centre for European Policy Studies). Guild, E. (2007), Security and European Human Rights: Protecting Individual Rights in Times of Exception and Military Action (Nijmegen: Wolf Legal Publishers). Hoffmeister, F. (2004), “Monitoring Minority Rights in the European Union,” in Tonnenburg, G. (ed.), Minority Protection and the Enlarged Union—The Way Forward (Budapest: Open Society Institute). Révész, B. (2007), “Secret as Politics—Research of Secret Services from the Point of View of Politology,” PhD dissertation, Szeged. Scheppele, K.L. (2004), Law in a Time of Emergency, University of Pennsylvania Law School, Scholarship at Penn Law Paper 55, (Philadelphia: University of Pennsylvania Law School), 1–77.


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Szikinger, I. (2006), “The Police Act and the National Security Act in Service of the Fight against Terrorism,” in Halmai, G. (ed.), Hungary: Human Rights in the Face of Terrorism (Lake Mary, FL: Vandeplas Publishing), pp. 59–69. Szikinger, I. and Tóth, J. (2006), “Efforts for Building Lawful Enforcement, Security and Balance in Public Law of Hungary,” Working paper 2006, available at www.challenge. mtaki.hu. Tóth, J. (2006), A Typology of Transit Zones, Briefing Paper, IP/C/LIBE/FWC/2005-22/ SC2 (Brussels: European Parliament, Directorate-General Internal Policies). Vizi, B. (2005), “The Unintended Legal Backlash of Enlargement? The Inclusion of Rights of Minorities in the EU Constitutional Treaty,” Regio, vol. 5 no. 1, 95–104.


Concepts and Instruments


Chapter 6

EU Police Cooperation: National Sovereignty Framed by European Security? Didier Bigo

In this chapter I examine the development of the European Union (EU) in the area of liberty, security and justice (LSJ) and how it affects national sovereignty. The new label LSJ is still unstable: with the exception of Jonathan Faull of the European Commission’s Directorate-General of that name, many civil servants continue to refer to this policy area as “Justice and Home Affairs” (JHA) which appears to indicate certain difficulties in introducing the notion of liberty into everyday language. The word “liberty” was renamed “freedom” by some English speakers, a seemingly normal move, but which contains a vision of individual freedom which entails competition between different freedoms and different bearers of freedoms, instead of the more collective and unified vision of the term liberty (Bigo 2006). For the civil servants of this area of freedom, security and justice, the EU level may be dealing with matters of policing, and prosecution, but not seriously with justice and freedom which belong to the national sovereign state. They accept and even promote police cooperation beyond the scope of traditional exchange of information, and want always larger and deeper cooperation, but they are not in the same state of mind concerning the right of defence lawyers or data protection concerning the individual.1 The effort to introduce civil liberties at the EU level as such, promoted after the Tampere summit in 1999, was slowed down immediately by concerns that the European Courts (the European Court of Justice [ECJ] and the European Court of Human Rights [ECtHR]) would become too powerful, and the emphasis was thus mainly put on justice, that is on facilitation of prosecution with the famous European arrest warrant proposal. After 11 September 2001, Madrid 11 March 2004, and London 7 and 21 July 2005, the tendency to see the development of LSJ only through the fight against terrorism has created both a reduction of the scope of the questions, and an acceleration of the discourses pleading for more

1 “Home affairs ministers back initiative to create a pan-European network of police databases for more effective crime control”; Press Release, German EU Presidency, 15 January 2007.

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police and intelligence collaboration between the member states of the European Union (EU). The Prüm initiative, signed in the form of a treaty by a group of member states on 27 May 2005, avoiding the EU enhanced cooperation process, has been the key element of this attitude (Balzacq et al. 2006).2 The overwhelming argument to balance freedom and security differently in order to cope with the new global danger of terrorism with weapons of mass destruction has been the leitmotiv of the past four years. It has boosted the arguments of those who want more cooperation, and less discretionary answers by the other member states in the name of national sovereignty. And national sovereignty has been stigmatized as egoism and inconsequent behavior when being confronted with an ever growing transnational threat that obliges cooperation in order to prevent a new form of Armageddon. The demand for collaboration has gone beyond the formal EU, extending to all European countries, and has reactivated or developed forums of policing and intelligence with the US and Australia as well as the other members of the G8 (Canada, Japan and Russia). Many of these forums have insisted that the resistance of member states to share their information with police and intelligence services in the name of sovereignty is out of date after the rise of global insecurity. The web of transnational police organizations has jumped on the boat of the necessity of collaborating against evil; evil defined not only as terrorism and serious crime, but also as petty crime and illegal migration. But how far can police collaboration and exchange of information stocked in electronic data bases go when we take into account the diversity and heterogeneity of mechanisms of justice procedures (Anglo-American or continental) as well as the different constitutional equilibria between security and liberty, resulting from each specific trajectory of the democratization of the state system? Is state sovereignty an old fashioned argument masking only egoist self-interest and the non-accountable practices of “raison d’Etat ”? Or is state sovereignty the ultimate argument against global security hegemony?3 After discussing this question in the first part, I wish to discuss in the second part of the chapter the status of state sovereignty in a world where all the Western governments are claiming that we live in a permanent state of emergency, obliging them to coordinate their efforts. In this context, what is the relevance of state sovereignty if its kingly (régalien in French) institutions are increasingly forming networks amongst themselves, and are less attached to the idea of national interest

2 For further details on Prüm, see Bellanova, R., “The ‘Prüm Process:’ The Way Forward for EU Police Cooperation and Data Exchange?,” Chapter 11 of this volume. 3 See the debate between the effects of 9/11 on policing; Mathieu Deflem’s assertion is that post 9/11, relative to public police autonomy of decision-making, policing has been somewhat reigned back-in by the state (Deflem 2002). However, Peter Gill with reference to security intelligence networks argues that the reverse has occurred (Gill 2006). Our own research is converging with Peter Gill’s analysis. We do not have a back-in, we have a reinforcement of the governmentalization of the EU third pillar where the Council general secretariat is more important than the EU Commission, and polling of sovereignty through agreements like the Prüm Treaty and their later integration in the EU framework.

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determined by the national government? Do we assist in the emergence of a Western or European form of governance through networks of professionals, undermining and fragmenting the coherence of national governments? If the agents in charge of the discourse claiming the importance of national security and sovereignty are now discarding it, will we have a disappearance of the notion, or once again a reactivation of the label with different interests at stake? Moreover, if the notions of borders and identity are shifting inside the European Union, if the notion of order is less clear than before, does the sovereignty of each of the member states have to cope with an emerging notion of European Union sovereignty, and how? Is state sovereignty now a label for negotiating advantages for a specific country in a larger forum, more than the capacity to have the last word and to stop any ongoing debate about the legitimacy of the decisions of the government? A fierce debate has polarized the professionals of security between a classical view, which insists on the necessity of the government to have control of its specific territory, to protect its own population and to control the exchange of data, and a modernist view, which claims that global insecurity supposes more coordination, more integration and more unification between police and intelligence services of the different member states including special relations with the US. Has global security won over sovereignty?

Policing in Networks, Policing at a Distance Security: A New Monotheism? The development of the European Union in the area of freedom, security and justice can be seen as a pilgrimage from one European city to another, with different “stations” in which devoted civil servants execute rituals in the name of a new god: security. They seek a form of monotheism, but they are obliged to contend with two other different divinities: liberty and justice, and to transform the older monotheism of sovereignty into a kind of “evil.” Like the first Christians, they are quite expansionist and reject the idea that a variety of compromises can be made between these three gods. They want a homogeneous definition of security, one which encompasses a maximum number of elements, covering both, defence as well as law and order, externally and internally. They still have to accept that different high priests (that is the ministers of interior) have to agree unanimously before any change can be made. But they consider that this is a remnant of the past, and in their theology, the future is theirs. The pope of security has yet to exist, and even the idea to have archbishops specialized in a specific area is not well accepted (the director of Europol and the anti-terrorist coordinator have not succeeded in creating a congregation of faith). The US has also managed its crusade for leadership on global security management badly and has created strong reactions against the new “mantra” that security is more important than sovereignty, freedom and justice; that security is the first and foremost fundamental human right.

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The religious metaphor in this question of transatlantic and European security is not a joke, it is important in understanding what is at stake. Questions about the structure of the international order, about the faith in the future and about the capacity of states to deal with violence from clandestine organizations are at the heart of the transformations; so is the role of information gathering, surveillance, policing and punishment, the right to kill and the best modalities to adequately manage the life of the population. These transformations have been induced by the modification of actions of political violence, by the development of crime, and especially cross-border crime, by the fear of transnational movements of people from poor countries to richer ones, and by the social and political constructions of the categories of threats and risks by the institutions dealing with them. They have been induced by the priorities of the “fight against” (terror, drug, crime, and so on) which have emerged as a result of the complex interactions between professionals of politics, security, media and the public sphere. A sort of key belief is then polarizing the trend towards more security: it exists ineluctably a path towards more and more “global insecurity.” The rise of a global insecurity whose manifestations are terrorism, crime (organized or not) and illegal movement of foreigners is seen in addition as a new era, a postSeptember 11, which obliges us to change our mindset, and any protest in the name of other higher values is seen as a “lack” of adaptation to the radically new world inaugurated by [the] Al Qaeda attacks dominated by the imminence of a possible Armageddon and the multiplicity of worst case scenarios in many areas. So, under this new world, sovereignty, freedom and justice have to survive (at least for a while), but only if they recognize the true god of security. But against this belief historical elements show that it has nothing to do with a fate, it has to do with politics, choices which have been taken, after, during and before September 11. Development of Police Cooperation, a Political Move From very secretive beginnings, in the 1960s and 1970s, with informal meetings and the creation of clubs (Berne club between the intelligence services, Vienna club about spying and migration, Pompidou club about drug trafficking, Quantico club about methods of law and order, TREVI club about exchange of information of terrorism), the activities of police cooperation in Europe have been publicized, recognized and advertised, but with reluctance to submit them to accountability, scrutiny and transparency. The institutionalization of the informal clubs ten years after their coming into being like TREVI (recognized in 1986 but created in 1975), the development of multilateral agreements coordinating previous multiple bilateral agreements like Schengen in the form of international treaties and not in the form of European law, characterized the mid-1980s. It was also the time of a real differentiation between the existing transatlantic networks, with the creation of specific European networks and bodies. The idea of a Europol instead of an “Interpol Europe Bureau” was an indicator of a will to be less dependent on the US’ capacity to gather, filter and organize the different police and intelligence data, at the time when the US tried to take control of the Interpol organization away


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from the French and British. The Europeanization of policing was not natural. It was not a move beyond each state’s sovereignty, because of a functional spill over induced by technical necessities; it was also a political move against the globalization of police at the world level led by the “benevolent” US hegemon. The “Palma” document of 1988 set up a complete list of the activities to be implemented for the next 20 years and gave a “road map” which was subject to variations in geographical terms and in political agreements, but not so much in the vision to have a security continuum linking terrorism, crime, illegal migration and surveillance of citizens of foreign origin in which the different police organizations at the European level would share their data (Bigo 1996). The European Commission followed all these activities but without any real capacity to intervene. The Maastricht Treaty then imposed the view of three pillars (temple for the pagan gods) differentiating the role and power of the Commission in each of them. In the first pillar, communitarization and majority rule, as well as initiative from the Commission were the main rules. But in the second pillar (Common Foreign and Security Policy) and the third pillar (Justice and Home Affairs), the role of the Commission was absent or limited, and the important player was the Council (and its General Secretariat), deciding by unanimity. With the Amsterdam Treaty, some important changes happened. Parts of the original third pillar dealing with asylum, migration and cross border activities were transferred to the first pillar, but in a specific title in which the rules were specific and the unanimity principle was largely preserved. The Schengen agreements and the TREVI groups were included into the EU framework, dispatched between the first and the newly framed third pillar. Europol commenced its activities, based on a specific convention, but still not clearly under European law. The Tampere summit marked the first backdrop of the security god and the emergence of a competing goddess with the role of justice, and the necessity to control more clearly the emergence of different European policing bodies like Europol, but also OLAF. Eurojust was put into motion. But the Seville and Thessalonica summits were under the influence of fear of migration from the south of Europe, and of Basque political violence, and later, the Goteborg and Genoa summits associated the European fear of violent transnational protests against globalization and fear of terrorism consecutive to the attacks of September 11, 2001. Security then came back, but transformed. It was as if security had stolen the clothes of freedom and presented itself as a fundamental right and even the most important one to strike and submit justice. Confusion arose between security and the right to life, and a lot of discourses acknowledge a new “balance” between security and liberty where liberty was, if uncontrolled, a danger, and security was the first freedom to be defended. The Hague programme endorsed definitely this vision and encouraged all the member states to “adapt” to the new situation seen as a permanent state of emergency against hyper terrorism, to “change” their legislations to give again more power to police and intelligence services, to push them to cooperate and to relax the legal and constitutional controls over policing. The influence of the US on this agenda towards more cooperation in the exchange of traveller data (Passenger Name Records), the introduction of “air

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marshals” in civil air planes (as later agreed in the Prüm Treaty) and of biometric identifiers for visas and passports, was clearly central. However, it was also the result of a push in a direction chosen earlier by the EU itself (at least the Council and the Commission in the JHA pillar), as proven by the early drafts of the Schengen Information System 2, the Visa Information System and the European arrest warrant, which all predate September 11. Many of the ideas had been already there: the use of biometric technology and data exchange between agencies as a solution against all forms of crime, terrorism and identity fraud; the tendency to develop a form of policing in networks and at a distance; the will to combine police and intelligence capacities, and to transform justice into an auxiliary of the police instead of the contrary. Merging of Internal and External Forces of Security: What is Policing Today? As we have seen, even though this trend has existed from the beginning of the 1960s, with some previous elements coming back to the nineteenth century, its full development has been linked with the de facto intermingling of a European Common Foreign and Security Policy (CFSP) and LSJ or JHA policies where the external dimension of JHA has colonized sectors of activities of CFSP, and where ministries of interior or of “integration” are now in charge of activities which were previously under the responsibility of ministries of foreign affairs and even defence. Even if the speed of this move is different from country to country, at least it has been a powerful accelerator of the “visibilization” of all the “intermediary” agencies (not only police and army, but also border guards, customs, gendarmeries, intelligence services, private security companies) and of their rediscovery as major players in this specific field by many governments, explaining why global policing and sometimes everyday policing are now at the forefront of the political spectacle. All these intermediary agencies and institutions argue that they were better prepared to deal with a transversal threat affecting both internal and external security than traditional policing or military actions, and they have played a key role to downplay the role of the different pillars at the EU level by multiplying transversal groups (Bigo 2001; Bigo et al. 2006). The project of the EU constitution, quite logically, insisted upon the disappearance of the three pillars and sought to fuse the second and third pillars, as well as the nomination of a European minister of foreign affairs, dealing with many questions of internal security at the European level. The creation of more and more transversal group and informal committee gathering personnel from the second and third pillars for a “common” expertise was introduced, but was reluctantly accepted by JLS and Europol when they knew that Sitcen (EU Joint Situation Centre) and the military would have the final word about the definition of the threat of terrorism. Policing has nevertheless been redefined as a military and intelligence task and not only a police (organization) task. Policing abroad and policing inside has been accompanied with the possibility for the police and the gendarmes to go abroad with the military for the reconstruction of “failed” states and peace consolidation processes. Moreover, it has become accepted (by the government more than by the public) that military


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and external intelligence services can carry out surveillance operations inside their own countries. To send police outside, to accept military activities inside, to develop courts and magistrates at the transnational level, are clear indicators that the configuration of the European Union differs slightly from the US “monopoly” of military in the “war on terror.” Though George Bush’s second mandate is now copying the EU by reframing the war on terror as a global policing task, nevertheless avoiding the judiciary. We can then speak about an archipelago of different professional networks in relation together through liaison officers and through exchange of electronic data. European Agencies in Networks In order to analyze the present situation, we need to go more in depth into the substance of European policing to avoid this pilgrimage from one city to another, repeating, even critically, the narratives of the struggle between the Commission and the member states, the integration versus the intergovernmental approach, the pro-atlantist and the more autonomist visions of EU identity. The US is certainly very good at trying to divide Europe into a new (obedient) Europe and an old (disobedient) Europe that refuses the hegemon on global security, all the while asking for more unity in EU policy. Each member state is also ready to give its public position, to differentiate its view from the others, to blame the EU for every thing going wrong and to praise itself for every thing going right. And it is certainly important to know all these elements, but it is easy to get information at this level of public policies. Our approach is to supplement this analysis of public policies by a more sociological approach of the different organizations which are engaged in policing activities, and to do so with an international relations viewpoint, insisting on the transnational activities of these so-called kingly bodies. It engages with the question of state sovereignty and insists on the creation of a transnational field of professionals of security at the Western level de-differentiating what is inside and what is outside, both for geographical and functional borders. As we have developed in our book and in many articles, following the works of Ericson concerning policing in risk societies, and Malcolm Anderson in European police collaboration, policing activities are formed of connections between different institutions, and operate in networks (Anderson and den Boer 1994; Anderson 1995; Bigo 1996; Ericson and Haggerty 1997). They include civil police organizations, but also customs, border guards, gendarmeries (civilian police with military status), immigration and asylum offices, private security companies, and often other institutions; private, like insurance companies, or public institutions, like social services which act as gatekeepers of the access to the welfare benefits. The activities of policing in Europe have become more extensive both in geographical (especially with the new enlargement) but also in a functional scope (beyond crime, policing is now related to the management of movement of persons, to the proactive search and prevention of disruptive activities and protection of vulnerabilities, to the assessment and management of risk and also to exporting the rule of law, peace and stability abroad).

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Policing at a distance is carried out using networks: networks of administrative bodies, in which customs officers, immigration offices, consulates and even private transport companies and private security companies join forces with the national police forces and gendarmes; networks of information technology, with the creation of national or European data files on wanted or missing people, on those who have been denied residence, expelled, turned back at the frontier or refused asylum (SIS, Eurodac, Interpol and Europol files); networks of liaison officers posted abroad and networks of semantics in which new doctrines and new concepts on conflict and political violence are developed. Several works have recently drawn our attention to the ways in which national police systems are structured in differentiated networks, and draw on international resources according to their respective professional specialities, including drug trafficking, terrorism, maintenance of order, and hooliganism. This differentiation of specialities means that the police does not form a single unique and homogenous network. We would be better served by thinking of an archipelago of policing, or a mosaic that holds together the national police, military police, customs, immigration, consulates, and even intelligence services and the military, in the way, for instance, that international police in the Balkans currently operate. These archipelagos are structured beyond their “common” activities, along lines of cultural identification (for instance French, British, German, or Northern and Southern European, and so on); profession (for example police, police with military status, customs agents); organization level (for example national, local, municipal); mission (for example intelligence, border control, criminal police); knowledge (perceptions of threats, and of a hierarchy of adversaries); and technological innovation (computer system, electronic surveillance, police liaison officers who are key in the management and exchange of information between agencies). It is the combination of all these factors that explains why X is in a network with Y, and not Z. And often the most important factor is not the national factor but the professional factor. We will come back to this element at the end of the chapter, as it has structured the real discussion about sovereignty and state sovereignty in relation to European policing after September 11. But we need first to describe and to explain what policing at the European Union level is today. Borders, Border Controls, Sovereignty, Cooperation For quite some time, the networks of security professionals have been structured through trans-national exchanges of information, and through the routinization of processes dealing with intelligence information. It would be naive to view this phenomenon as a simple effect of globalization. National police has been networked ever since it was created as an institution. As opposed to the judiciary and criminal police, the prerogative of the intelligence police has always been conducted irrespective of territorial boundaries, and has focused on people’s identities, whether real or fictional, regardless of their origin or place of dwelling. Since the end of the nineteenth century, police collaboration has been quite active against “subversives.” But Europeanization has worked in a specific manner,


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differently than any “federalization” of police (as in the US for example). The legal categories of border, sovereignty and policing have been compromised by five main transformations: 1) the distinction between the internal and external borders of the EU; 2) the creation of international detention zones in airports to immediately send back foreigners who do not have the right papers to enter the Schengen area; 3) the attempt to impose the term of “economic refugee” and to redefine who is a refugee, with the consequence of narrowing the door to people seeking the right to asylum; 4) the use of the term “immigrant” instead of the term “foreigner,” with the effect of including some national citizens in the scope of the suspected foreigners; and 5) the relativization of the term of “foreigner” as opposed to “national” in the interest of strengthening the distinction between EU citizen and non-EU national (third country national). The simplistic idea of differentiating between the internal borders of the EU where controls are suppressed or relaxed, and the external borders of the EU where they are reinforced, has not succeeded at all. It was not possible without a central federal state to enforce the homogeneity of “one” territory, and the multiplication of “exceptions.” Instead an incredibly complex situation has emerged which we studied in detail in our book on controlling frontiers (Bigo and Guild 2005a). So, due to the inability to entrench and maintain a common European external border as advocated by the rhetoric of security and sovereignty transplanted at the EU level, each organization, each country, individually or in collaboration with others, has tried in practice to displace the locus of control upstream to block the movement of foreigners, and to deter the will to travel to the country of origin, as well as to displace the burden of controlling movement and crime back onto another police (Bigo 1998). These changes linked with border controls, visa requirements, the right to stay during three months inside the EU, family reunification rights for thirds country nationals, the right to be a service provider and so on, have caused a profound disjunction between the discourse on European internal security (a “Fortress Europe” for some insisting on the lack of hospitality towards asylum seekers, a “Sieve Europe” for others insisting on the “invasion” of Europe by migrants and “bogus” refugees) and the practices actually being carried out. The external borders are indeed sometimes arbitrary places, but in no instance do they represent an effective electronic security barrier. NGOs criticizing the governments and the European Commission are in that sense believing in the same myth, that if we have the collective will, we can seal and control the borders. But land borders are very easily breached, and often the police allow candidates to enter, and proceed, as long as it is clear that they have no intention of remaining in the territory of the country conducting immigration control and want to leave into another one. So, in fact, neither are the internal border controls in Europe not actually dismantled as it was promised by the rhetoric of free movement and its checks and balances, nor are the external border controls really effective. So the rhetoric about border control, about sovereign decisions, about the capacity of the government to protect its own people, is far from effective. It is more a game for the media and the public sphere. In practice, policing continues to do things in a different way than it is said to, and continues in its role of “cleaning the garbage.” Only here the

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“garbage” includes all the people who do not look like good European citizens, and who are considered as “undesirable” and “unwelcome.” The different agencies at work (not only police but often air line companies and their private security companies, consulates and their personnel for visas) filter who will be accepted and who will not be accepted, with criteria which are not set up by law (national or European) because they are not recognized as such and as we are blinded by the rhetoric and do not look at the practices. Practices of Agencies in Networks In practice, we have witnessed a form of racial, religious and class profiling for people crossing the internal borders of the EU, reinforced after the events of 11 September 2001 and the Madrid 11 March 2004 bombings. This has been particularly apparent between France and Belgium and inside the Benelux countries, especially for train travelling. Moreover, internal flights within the EU are now more and more subject to passport control by private companies hired by airlines, even though the corridors at the airports are different and border police checks are not required. There has been a significant number of complaints against these checks and their lack of accuracy or legitimacy. Some of these complaints have been registered by the European Ombudsman and by some of the national mediators: Yet we must also take into account the number of harassed people who do not dare to complain. The geographic implementations of networks also deterritorialize police activities in terms of mission and institutions and now include the judiciary itself, with the implementation of Eurojust within Europol. “Policing” activities, in particular those devoted to surveillance and maintenance of public order, now also take place from a distance, beyond national borders as, for example, with detective experts on hooligans in international football matches, who go abroad to stop the supporters considered as dangerous before they embark on planes, trains or buses. We have also seen the same kind of behavior in the case of antiglobalization protests and demonstrations. This also occurs beyond traditional police activities and stretches out to foreign affairs. The bypassing of borders through the policing of internal security occurs through the dispatch of internal security advisors abroad, as in the consulates who issue Schengen visas. It affects airline companies, that are delegated the task of verifying passports and for this purpose hire private security guards and train their personnel, instead of the police. Control is thus privatized, delegated to the airline companies and the airports who, in turn, subcontract the jobs to private security companies (see Lahav 1998; Guiraudon 2001; Guiraudon 2002). The articulation of the Schengen Information System and visa allocation practices guide tactical decisions in the war on fraud concerning false documents, and influence the process of making unduplicable documents using technologies other than finger-printing, such as digital photography, facial or retinal scanning and other biometric techniques. These technologies, allowing the police to survey and punish beyond borders via the collaboration between security agencies, are multiplying; a tendency which polarizes the profession of policing.


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In general, two types of policing become apparent within the parameters of the national police institutions: the first form of policing utilizes personnel who are unqualified or minimally qualified but are present and visible at the local level as an auxiliary to the municipality, the prefecture, or other police. The second type of policing takes an opposite approach by employing a few people who are highly qualified and in close contact with other security agencies and agencies of social control, whose two chief characteristics are discretion and distance.4 In what they call an osmotic relationship between high-ranking spheres of government and private strategic actors, these individuals take it as their mission to prevent crime by acting upon conditions in a pro-active way, anticipating where crime might occur, and who might generate it. Their job then consists of making prospective analyses departing imaginatively from certain points, such that they become a reflecting point of the ensemble of societal transformations. These professionals believe they are more professional and competent than the others, and their ambition is to assemble cells of openly available information, social-scientific data, and the techniques of police intelligence operations. This dream of a common and consensual epistemic community haunts the imagination of these professionals who conduct societal transformations at a distance—a geographic and temporal distance piloted by the logic of anticipation. This perspective places them in a virtual space from which they may oversee everything, all the while being so discreet that they themselves are no longer seen (Monahan 2006). Policing at a distance means working to control the ingoing and outgoing movement of populations. It occurs through “lock,” and through mechanisms of exclusion such as visas, controls put in place by the airline companies, deportations and readmissions. It impacts not only freedom of movement, but it also creates prison spaces, though they may not normally be categorized as such (detention centres and international airport detention areas, called waiting zones in France and Greece).5 Because its de-localized policing function is transferred to the consulates located in the traveller’s country of origin, this mode of control is much less visible than police working on the front lines of border control. Refusal to issue a visa becomes the first weapon of the police, and as such it becomes the place of greatest arbitrariness in terms of decision-making. Police practice is directed at the surveillance of foreigners or poor ethnic minorities and extends its reach beyond its prior limits of criminal investigation, through proactive actions that enable the police to pinpoint groups “predisposed to criminality” according to sociological knowledge. The profile of the guilty changes: it no longer derives from supposed criminality, but supposed “undesirability.” Prisons that confine the guilty are less significant in this dispositif than the new carceral spaces such as holding areas that reproduce the same conditions of incarceration as prisons, but 4 I am indebted to Laurent Bonelli for drawing my attention to how these two types of control are polarized, which once we realize, effectively renders it impossible to see the national police as a unique, stand-alone metier, see Monjardet 1996. 5 See the special issue of Cultures et Conflits, “Circuler, enfermer, éloigner. Zones d’attente et centres de rétention des démocraties occidentales,” Cultures et Conflits, vol. 23, 1996 (Paris: L’Harmattan).

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without the legal judgment of guilt. The relaxation of surveillance on the majority of individuals seen as too heavy, too totalizing, benefits the global harvest of information and the targeting of the most mobile groups: the diasporas, migrants, and if the argument holds, tourists.6 The Inclusion of the Military Forces in Policing Operations Policing at a distance even transforms the role of the military in its peace consolidation and reconstruction tasks, as it is now also asked to oversee potential organized crime activities which could affect internal security, and finally it creates links with the intelligence agencies by sharing some of the same databases. All these activities participate in what professionals of security call the “debriefings of internal security abroad” where surveillance projects itself on spaces, states, and persons judged as a danger and a threat to national security and public order. Beyond the EU circle, the Carabinieri and the French gendarmerie feel that their history has prepared them for missions of “policing abroad” as, for example, Bosnia and Kosovo, claiming that they have an advantage over all the other agencies due to their role as “soldiers of the law,” to their use of military means but with the knowledge to deploy them in a civilian context, where it is important not to transform an opponent during a demonstration into an enemy to be eliminated. They are then, in their view, better trained for respecting law and basic human rights than military troops. They consider themselves well adapted to low intensity conflicts, whose extent exceeds the regular bounds of national police actions, but which do not justify the intervention of other armed forces. They say they are able to respond better than other institutions to the peace, crisis, war “continuum” and can deal with “prolonged crisis” and all the “Petersberg missions” set up in 1992. The Eurogend force is the success of a story which began officially in Feira but whose origins are older. This new reach of activities enables a new, more individualized logic of surveillance. Its new reach privileges the ministers of the interior and the ministers of justice, insofar as these ministers in particular have realized how to combine the new logics of surveillance at the level of European police collaboration through the form of a network of relations between functionaries that permits them to understand the situation beyond national borders. This enables a body of expertise on extra-territorial matters, permitting us to see ministers in charge of internal security internationalized. This reach happens in the same way as it does for customs and takes place to the detriment of the social ministers (minister of labor, and so on) or specialized ministers (European affairs, and so on). And this reach goes so far as to impinge upon the domains of the minister of the interior and the ministers oriented toward international affairs—foreign affairs and defence. The ministers of the interior then take on initiatives addressing foreign political matters insofar as they may say that it is to prevent repercussions on internal 6 When tourists are poor and coming from the “third world” they are often suspect to try to migrate illegally and do not get their visa or are blocked at the borders. See Bigo and Guild 2005b.


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security matters. The externalization of internal security has de facto reframed the way to think and to practice external security and has affected the behavior and organization of both the armed forces and the foreign affairs offices. A Politics of European Security Abroad Masked by the Argument of the Globalization of Insecurity These developments which are entrenched into the development of the EU itself show that we need to relativize the idea of a new world order after September 11. It cannot be considered an “unprecedented event” that radically changed the face of the modern world, even if it was a tragic moment. It did not mark the birth of a new age of terrorism, or hyper-terrorism, or mega-terrorism, or some other type of terrorism (Meddeb 1991; Garwin 2002; Heisbourg 2002). The transnationalization of political violence by clandestine organizations has been a long process, with roots that go back at least as far as the decolonization processes of the 1950s, the hijacking of the aircraft of third parties in the 1970s, the development of killing at a distance through technologies of remote bombing in the 1980s, the radicalization of conflicts in Lebanon and Palestine and the resurgence of suicide bombers against French and US armies. To the extent that novelties may be identified, they involve new combinations of traditional forms of action, and not, as so many official accounts have implied, some grand new force combining weapons of mass destruction with fanatical and irrational clandestine organizations. So, it is difficult to agree with the idea that we now have a global chaos, a global (in)security at the world level which explains all local events. We have perhaps a globalization of fears and unease, but we do not have a clear globalization of violence at the statistical level. What gives the impression of a global violence is first the possibility of a local bombing with NBC (nuclear, bacteriological, chemical) of having a global impact, but if this has been discussed for good reason after September 11, especially by Graham Allison and his researchers, it has been shown that to accept the worst case scenario as a certainty for the future is misleading. The questions are still why and how, not when (against the formula of John Ashcroft).7 The second element about globalization is different. It is not one event with global consequences but the idea of an interconnection of different forms of violence, as they come from mixed bodies emerging from some local convergences (guerrilla, clandestine organizations and some mafias working together and becoming one). A generalized discourse about these forms of violence, as well as a discourse that the same means can be used against all of them is now considered as a truth without challenge, but the discourse is more the common “doxa” of the actors of the field than the proper narrative to describe the transformation of political violence and social changes in the last decade. For example The Hague programme declares:

7 Allison and Kokoshin 2003; Snow and Cosby, “Interview with John Ashcroft,” Special Report with Brit Hume (Fox News).

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Security versus Justice? The security of the European Union and its Member States has acquired a new urgency, especially in the light of the terrorist attacks in the United States on 11 September 2001 and in Madrid on 11 March 2004. The citizens of Europe rightly expect the European Union, while guaranteeing respect for fundamental freedoms and rights, to take a more effective, joint approach to cross-border problems such as illegal immigration, trafficking and smuggling of human beings, terrorism and organised crime, as well as the prevention thereof.

The Commission proposes an enlarged co-operation between police and intelligence agencies where the latter may have access to large data bases, even if precaution against data mining has been supplemented, to establish profiles of future terrorists or criminals in order to “prevent them to act,” and the former (that is the police) will have some access to the “information” of the intelligence agencies in order to conduct their operations and to find elements which can be presented to a judge and accepted by him. Yet these arguments stand only when accepting the idea that we have a permanent state of emergency, we are all in danger, and we need to give up our freedom to be better protected. If we disagree, if we just ask for a more comprehensive framework which assesses in a better way what is potential and what is actual and “imminent,” then the ground for all these measures falls apart. More than the rhetoric on global insecurity, what is at stake is mainly the interests of the security professionals themselves and the role of some industries. Not that they are complicit in developing security and curtailing freedom for their own power, but because they genuinely agree with the idea that security is the first freedom, that they are paid to protect us and even to protect us against our will, because they know better than us what the real dangers are. They form a “field” where the struggles are intense, the competition for classification and hierarchy of threats, the competition for missions and money is very strong, where the fights between competing interests are very high, but they are also attracted as in a magnetic field towards the same stake, the same way of thinking, the same way to “technicize” the political questions of what is a threat and what is a risk or a fate (Bigo et al. 2006). This is so in particular when the professionals of politics speak about the technicalities of security and quite rarely about the goal of security, the relation with freedom and justice, the referent object which has to be secured and the possible contradictions between the security of one and that of the other. If I have to sacrifice the freedom of someone else to improve my own security, it is not the same dilemma than as if it were my own freedom, and there the questions of the difference between citizen and foreigner (or migrant) is clearly central. A Politics of European Security at the Global Level Masked by the Common Technology of Surveillance A technological fix then appears with the idea that gathering information, tracing people on the move, sharing information between agencies of different kinds and between different countries, and even of different regimes, is the solution


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against terrorism, crime and migration. Biometric identifiers, databases gathering information concerning terrorism, crime and foreigners (Interpol database, Europol database, Schengen Information System in its second version, Eurodac database, Visa Information System), transnational exchange of data between the agencies, technologies of surveillance, and all the practices of policing at a distance are considered as a way to cope better with all these threats than the old logic of protection behind a frontier as seen as a defence wall. In addition, the new measures aim at boosting operational cooperation between police and intelligence agencies, enhancing exchange of data and developing EU databases in relation to the US and the G8 members plus Australia. We have strong disputes between the actors concerning the speed of the move, the efficiency of the new techniques, their compatibility with the old ones, the capacity to do both at the same time, and the fact that they disregard the principle of purpose limitation in access and use of personal data, as well as they disregard the fact that these databases have different characteristics and different purposes. Many observers worry that it could create a situation where databases including different categories of data and established for different purposes will be “interoperable” and thus easily accessed by a wide range of authorities. But the debate itself on the technology, the data protection and the means of collaboration binds even more the idea that the threats of terrorism, crime and foreigners entering the territory are interconnected. This internal security field at the European level connects questions of terrorism with organized crime, and/or with serious cross border offences, with money laundering and drug trafficking, with mafia activities, with human trafficking, with illegal migration, with religious radicalization, with asylum seekers, with urban riots (see the Prüm Treaty, Council declarations on terrorism, and declarations of ministries of interior of some of the member states) without any clear evidences that these elements are interrelated. They just repeat it again and again as a new “faith” for a new “god.” But in practice, the believers do not really believe. The lack of trust between authorities in the various member states and the sense of ownership of information by police authorities have been central, and have blocked or slowed down the expectations of sharing information through exchange of electronic data or indices, without the possibility for the authorities to refuse access of data, or more precisely, to refuse it without good reason: Throughout the Union, a law enforcement officer in one member state who needs information in order to perform his duties can obtain this from another Member State and that the law enforcement agency in the other Member State which holds this information will make it available for the stated purpose, taking into account the requirement for ongoing investigations in that State.8

Labelled principle of availability of information, it has been proposed as the necessity that “information shall be provided to equivalent competent authorities of other Member States and Europol […] in so far as these authorities need this 8

The Hague Programme, point III.2.1.

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information to fulfil their lawful tasks for the prevention, detection or investigation of criminal offences.” And if we insist on this principle, it is because at present police authorities have been reluctant to share information, but with the principle of availability, they will be obliged to exchange data, almost automatically. It is then one of the key challenges to state sovereignty, because the availability of information therefore no longer depends on the “good will” of the law enforcement agency of the state receiving the request and because the principle of availability touches indirectly upon the relation of national services amongst themselves. It creates a global recomposition of the relations between law enforcement agencies, as much internally as on the European level by introducing on the European scale a requirement which is rarely realized on the national level but that states are obliged to fulfill internally if they want to respect their European obligations. The argument of global security is then taking over priority over the argument of sovereignty and ownership of information and reframe it—as we have seen with the Passenger Name Records (PNR) or the API (Advance Passenger Information). Sovereignty is now embedded in the details of derogations and fuzziness of the common texts permitting multiple interpretations (and in some “opt-outs”), but has been delegitimized concerning security.

Conclusions It is in all these “technical details” that, in practice, we have a transformation of state sovereignty and the transformation of its realm linked with a specific territory and a specific population. But sovereignty and territory are also the bed rock of democracy. Now that advocates of global security ask for exchange of information between the agencies and without interference of the professionals of politics and even of judges, and without serious accountability, what will happen? The “modern” professionals of security want, in the name of the speed of the “answer,” to prevent terrorism (before it can occur), to judge—at their level—who are the “would be” criminals and terrorists. They want to confuse suspect and guilty when it comes to global terrorism and global crime. It creates a climate of suspicion and exception generated by this will to monitor the future which is dialectically linked with the form of violence against civilians, and with the claim to live in a permanent state of emergency. But are we better protected from terror by this sharing of a large among of information coming from various sources? To which extent are these sources reliable and not subject to political manipulation or just difference of appreciation about the seriousness of the threat? And even more profoundly, can we invert the reasoning against the death penalty and say that it is better to have 100 innocent people in jail if police can find out one “real” terrorist among them, after long and “severe” interrogations (that is torture)? Is it a legitimate action or are we driven to illiberal practices in the name of a so-called genuine belief about the future and the will to protect people before something happens? The danger with the global security argument is that some politicians want to become “oracles” of the future and to speak


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in the name of their knowledge of a “perfect future” allegedly analyzed by the intelligence services.

References Allison, G. and Kokoshin, A. (2003), “The New Containment: An Alliance against Nuclear Terrorism,” National Interest, vol. 69, 35–43. Anderson, M. and den Boer, M. (eds) (1994), Policing across National Boundaries (London: Pinter). Anderson, M., den Boer, M., Cullen, P., Gilmore, W.C., Raab, C.D., and Walker, N. (1995), Policing the European Union (Oxford: Oxford University Press). Balzacq, T., Bigo, D., Carrera, S., and Guild, E. (2006), “The Treaty of Prüm and the EC Treaty: Two Competing Models for EU Internal Security,” in Balzacq, T. and Carrera, S. (eds), Security Versus Freedom? A Challenge for Europe’s Future (Aldershot: Ashgate), pp. 115–36. Bigo, D. (1996), Polices en Réseaux, l’expérience européenne (Paris: Presses de Sciences Po). Bigo, D. (1998), “Europe Passoire et Europe Forteresse, La Sécuritisation/Humanitarisation de l’immigration,” in Rea, A. (ed.), Immigration et Racisme en Europe (Brussels: Editions complexe), pp. 203–41. Bigo, D. (2001), “The Möbius Ribbon of Internal and External Security(ies),” in Albert, M., Jacobson, D., and Lapid, Y. (eds), Identities, Borders, Orders (Minneapolis: University of Minnesota Press), pp. 91–136. Bigo, D. (2006), “Liberty, Whose Liberty? The Hague Programme and the Conception of Freedom,” in Balzacq T. and Carrera, S. (eds), Security Versus Freedom? A Challenge for Europe’s Future (Aldershot: Ashgate), pp. 35–45. Bigo, D. and Guild, E. (eds) (2005a), Controlling Frontiers. Free Movement into and within Europe (Aldershot: Ashgate). Bigo, D. and Guild, E. (2005b), “Policing at a Distance: Schengen Visa Policies” in Bigo, D. and Guild, E. (eds), Controlling Frontiers. Free Movement into and within Europe (Aldershot: Ashgate), pp. 233–63. Bigo, D. and Tsoukala, A. (2006), Illiberal Practices of Liberal Regimes: The (In)Security Games (Paris: L’Harmattan). Deflem, M. (2002), Policing World Society: Historical Foundations of International Police Cooperation (Oxford: Clarendon Press). Ericson, R.V. and Haggerty, K.D. (1997), Policing the Risk Society (Toronto: University of Toronto Press). Garwin, R.L. (2002), “The Technology of Megaterror,” Technology Review, 64–9. Gill, P. (2006), “Not Just Joining the Dots but Crossing the Borders and Bridging the Voids: Constructing Security Networks after 11 September 2001,” Policing and Society, vol. 16 no. 1, 27–49. Guiraudon, V. (2001), “De-nationalizing Control: Analysing State Responses to constraints on Migration Control,” in Guiraudon, V. and Joppke, C. (eds), Controlling a New Migration World (London: Routledge), pp. 31–64. Guiraudon, V. (2002), “Les compagnies de transport dans le contrôle migratoire à distance,” in Bigo, D. and Guild, E. (eds), De Tampere à Seville, bilan de la sécurité européenne, Cultures et Conflits, no. 45, pp. 124–47. Heisbourg, F. (2002), L’Hyperterrorisme (Paris: Odile Jacob).

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Lahav, G. (1998), “Immigration and the State: The Devolution and Provision of Immigration Control in the EU,” Journal of Ethnic and Migration Studies, vol. 24 no. 4, 675–94. Meddeb, A. (1991), “Paysages apres la bataille du Golfe,” Esprit/Les Cahiers de Orient, no. 6, 80–86. Monahan, T. (ed.) (2006), Surveillance and Security: Technological Politics and power in Everyday Life (New York: Routledge). Monjardet, D. (1996), Ce que fait la police: Sociologie de la force publique (Paris: Editions la découverte).

Chapter 7

Too Different to Trust? First Experiences with the Application of the European Arrest Warrant Julia Sievers

The European arrest warrant (EAW) is expected to significantly enhance judicial cooperation between EU member states. Being faced with a perceived rise in threats such as cross-border crime and terrorism, the EU heads of state anticipated the EAW to boost the free movement of criminal investigations, prosecutions and sentences across EU borders (Peers 2004, 5). The specific feature of the EU framework decision on the European arrest warrant is that it is based on the principle of mutual recognition, an integration instrument borrowed from the Single Market. Given the positive experiences with mutual recognition in the Single Market, in Tampere 1999, the EU heads of state decided to make it the “cornerstone” of judicial cooperation in criminal matters. According to the Commission, the EAW is “the first and most symbolic” application of this new integration instrument in EU Justice and Home Affairs. Yet, many more measures such as the European evidence warrant are to follow. The aim of this chapter is to analyze first experiences with the EAW. Based on a comparative case study of the implementation and day-to-day application of the EAW in Germany and the UK, I argue that the level of trust, an important prerequisite of mutual recognition, is insufficient. Distrust is often caused by the view that national standards of penal and procedural law differ too much to be mutually recognized. National parliamentarians and judges tend to regard their own judicial system as superior in quality, and be sceptical of allowing foreign criminal law to apply on their territory. In addition, concerns of democratic legitimacy are expressed. As a result, two effects can be observed. National legislators introduce new grounds for refusal when implementing the framework decision on the European arrest warrant. Second, national judges become gatekeepers in the operation of the mutual recognition system and show uncooperative behaviour if they regard a request as not being in line with national standards. The chapter is structured as follows. In the first part, I introduce the European arrest warrant, present its characteristics and discuss questions of democratic accountability and heterogeneity between the different criminal law systems associated with it. In a second part, I conduct the empirical analysis based on a comparative case study of Germany and the UK. The first part of the empirical

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analysis focuses on the implementation of the European framework decision on the European arrest warrant into national law by parliamentarians. The second empirical part analyzes the operation of the actual mutual recognition system: The horizontal judge-to-judge cooperation in extradition matters. In the final part, I will discuss my findings.

The European Arrest Warrant To speed up European extradition procedures and enhance judicial cooperation, in 2002, the framework decision on the European arrest warrant was adopted and came into force on 1 January 2004. The EAW replaced the existing instruments on extradition between the member states including the 1957 Council of Europe Convention on extradition with its two protocols of 1975 and 1978 and several bilateral conventions. The previous conventions were based on the “request principle”: extradition requests had to be addressed to the national ministries which had a wide margin to deny these requests on political grounds. The request principle is based on the rule of national sovereignty and follows the idea that territory determines jurisdiction, as a result of which territory and jurisdiction are identical. The central feature of the EAW is that it is based on the principle of mutual recognition of judicial decisions, which breaks with the principle of territorial jurisdiction. Mutual recognition in its pure form is based on the thought of homecountry rule, meaning that the rules of the home country of a good or a judicial decision apply (Nicolaïdis 1997, 2). In case of the EAW, the country which receives the EAW has to recognize and give effect, in its jurisdiction, to the rules of the issuing country. As a result, territory and jurisdiction are no longer identical. Abolishing territorial jurisdiction in favor of mutual recognition indeed reflects “a genuine paradigm shift” in judicial cooperation between member states (Peers 2004, 5) or even “a revolution” (Wichmann 2006, 95). In addition, all diplomatic dimensions to extradition are abolished. Extradition is now declared a pure judicial procedure. In practice, every member state has to designate an executing judicial authority which is in charge of applying and enforcing incoming EAWs. The issuing state does not have to prove that that there is a case to answer. The merits of the request are taken on trust and there are only limited grounds for refusal, which is supposed to lead to a quasi-automatic recognition of European extradition requests. According to the EU framework decision, extradition requests can be issued for two purposes, first, for conducting a criminal prosecution, and second, for executing a criminal sentence. Different rules apply for each case: An EAW for the purpose of prosecution can only be issued if the offence on which it is based is punishable in the issuing state with at least one year imprisonment. If the EAW is issued for a national, the surrender of a person for criminal proceedings to another EU country may be subject to the condition that the person, after the proceedings come to an end, is returned to serve the custodial sentence in his home country. An EAW for the purpose of executing a criminal sentence can only be issued if

First Experiences with the Application of the European Arrest Warrant

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the offence leads to a minimum sentence of four months imprisonment. A list of 32 offences has been introduced for which the requirement of double criminality is removed if the respective offence is punishable in the issuing member state for at least three years. This means that it is no longer checked if the criminal act for which extradition is requested is punishable in both countries.1 This list includes, among others, murder, trafficking in human beings, terrorism, racism and xenophobia. It is also possible to issue an EAW for an offence not covered by this list. However, in this case double criminality is always checked. The procedure is as follows: An EAW, in a standard form, is sent directly from one judicial authority to another without the involvement of foreign ministries or any other diplomatic channel. The EAW can also be distributed via the Schengen Information System (SIS). In this case, the original EAW needs to be filed subsequently within given time frames. When a person is arrested on the basis of an EAW he will be kept in police custody until he is brought before a judge for an initial hearing. The relevant judge of the executing authority can decide either to set bail or remand the person in custody. The EAW is subject to appeal. After a person has been arrested, strict time limits for the execution of the EAW apply. The final decision has to be taken within 60 days after the arrest and can maximally be extended for another 30 days. Whenever this time expires, the person has to be set free and the executing judicial authority shall inform Eurojust, giving the reasons for the delay.2 To make a mutual recognition system work, the cooperation of two central actors is required: National legislators who implement the framework decision in national law, and the judges of the executing authorities in charge of day-today cooperation. As a result, both groups of actors have to support the general idea of mutual recognition of judicial decisions and the specific design of the framework decision. However, as will be discussed in the following paragraphs, both the general idea of mutual recognition of judicial decisions as well as the specific design of the framework decision is contested. The real challenge, therefore, is not agreeing on a mutual recognition system on the European level but putting it to work. In this chapter, it will be argued that there are two main issues which are repeatedly discussed concerning the EAW: First, the question of national sovereignty and parliamentary accountability regarding the EU’s right to introduce a measure which allows foreign criminal law to take effect on national territory. Second, the question of how much similarity between judicial systems in the EU is required to ensure a high fundamental rights standard and

1 To give an example: In Ireland, abortion falls under the legal definition of murder and therefore is a punishable offence. However, in Germany abortion—although punishable under certain circumstances—is not categorized as murder and will not be punished as murder. 2 Eurojust is an EU body established in 2002 to enhance the effectiveness of the competent authorities within member states when they are dealing with the investigation and prosecution of serious cross-border and organized crime. For further details on Eurojust, see Vlastník, J., “Eurojust—a Cornerstone of the Federal Criminal Justice System in the EU?,” Chapter 3 of this volume.

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if the other EU countries already possess high enough standards to be trusted. The following paragraph addresses these two issues, which affect the success of the EAW system, as I will elaborate on in the empirical part. Touching upon the Core Areas of Statehood: Sovereignty and Democratic Legitimacy The new EU extradition system as introduced by the EAW touches upon a core area of statehood, the national criminal justice system. Fritz Scharpf argues that policies that interfere significantly with life, liberty or property interests, or that violate deeply held normative preferences of the governed, need to be justified by stronger legitimating arguments (Scharpf 2003, 2). Regarding the EAW, it can clearly be said that questions of liberty are at stake since it touches upon the conditions under which a person can be rightfully deprived of liberty and be surrendered to another EU country. Moreover, the EAW may also interfere with normative preferences of the governed since, due to the principle of mutual recognition, the citizens of a member state may be subject to foreign criminal law on their own territory in the creation of which they had no say. A state that has to apply and enforce the rules of another state in its jurisdiction can be said to transfer, in part, some of the exercise of its sovereign powers to that other state (Maduro 2007, 819). In this context, Kalypso Nicolaïdis speaks of a horizontal transfer of sovereignty (Nicolaïdis 1993, 490–93). This raises the question of whether democratic legitimacy is still guaranteed if people in the territory of their own states are subject to foreign law in such sensitive areas such as criminal law. Normally, laws concerning individual freedoms are subject to parliamentary rule. Third pillar framework decisions as the framework decision on the European arrest warrant, however, have been negotiated by national governments on the European level. National parliaments are supposed to implement the negotiated agreements preferably unchanged. Against this background, Sandra Lavenex argues that mutual recognition in the area of justice and security is an instrument to reinforce the power of national governments over other branches of power within the states (Lavenex 2007, 765). In contrast to Sandra Lavenex, I argue that mutual recognition measures negotiated by governments come under close scrutiny by national institutions in the process of implementation and may face domestic resistance. When it comes to national implementation, legislature and judiciary are aware of the implications concerning national sovereignty, democratic legitimacy and accountability. Therefore, they demand to exercise their right of control and their duty to safeguard the liberty of the individual against the state. In short, it may either be the national parliament, as in the UK, or constitutional courts, as in Germany, which stress parliamentary accountability and advocate the adoption of changes on the terms of the framework decision. As a result, both Germany and the UK included in their implementing laws further grounds on which an arrest warrant may be refused to protect their citizens from allegedly inferior foreign law.


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We Are Many but Not One: Too Many Differences to Recognize Foreign Judicial Decisions? As explained before, the EAW is based on the principle of mutual recognition. Mutual recognition is often regarded as an alternative to harmonizing laws, being especially respectful of national diversity since it does not require changing national law. However, to work in practice, mutual recognition requires a minimum degree of similarity. National legal systems need to share some common standards, to be mutually accepted as equally legitimate. Therefore, states have to share the notion that a common goal such as efficient criminal prosecution and fundamental rights protection may be attained to a similar degree by the different policies of the foreign state. This requires the actors in charge of implementing and running the European arrest warrant system, legislators and judges, to accept that different policies are not necessarily inferior. In judicial cooperation, the entire legal system must be recognized as equivalent and affording the appropriate protective measures, notably in the area of fundamental rights. Moreover, when a state is supposed to cooperate in the enforcement of other states’ systems of law, trust and confidence in the correct application of rules and procedures are essential (Alegre and Leaf 2004; Gay 2006; Guild 2004; Impalà 2005; Jimeno-Bulnes 2004). Given that mutual recognition of judicial decisions touches upon citizens’ fundamental rights, the required degree of trust is notably higher than in the Single Market. The fact that all EU member states have subscribed to the European Convention on Human Rights shall ensure a minimal degree of trust. However, trust is easier to acquire if the system you are supposed to trust is similar to your own. The public debate on this point was quite critical, especially in the UK. Martin Jacombs argued in the Financial Times on 18 October 2006: “British participation in the scheme [of the EAW] was justified on the basis that other European Union members have equivalent standards to our own. To those with knowledge of criminal jurisdiction in some of our fellow EU states, this assertion is laughable. Bear in mind that next year Bulgaria and Romania will be part of this system.” To ensure the necessary similarity, mutual recognition is often linked to efforts of approximating national laws and introducing minimum harmonization. With regard to the EAW, such attempts are for example the draft framework decision on Procedural Rights which aims at setting common minimum standards concerning the rights of the accused.3 However, as Fritz Scharpf has convincingly shown, it is easier to agree on negative integration such as mutual recognition than on positive integration such as harmonization (Scharpf, 1999), since it is easier to accept each other’s rules, even to allow them to take effect on each other’s territory, than to abandon domestic rules in favor of common European ones. Concerning the framework decision on procedural rights, Scharpf has proven right: The Commission’s proposal presented in 2004 (COM (2004) 328 final) was highly contested and even a watered-down version presented by the German presidency in 3 See Jimeno-Bulnes, M. “The Proposal for a Council Framework Decision on Certain Procedural Rights in Criminal Proceedings throughout the EU,” Chapter 10 of this volume.

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2007 (Council 2007e) has not been adopted yet. The debate on common procedural rights shows how hard it is to agree on common minimum standards in the field of criminal law and criminal proceedings. More generally, it can be said that the EAW indeed faces a high degree of diversity between the different national criminal law systems and traditions, most notably between the common law system adopted by the UK and Ireland and the continental civil law system. The question here is to what extent the viability of mutual recognition depends on a certain degree of similarity between the different criminal law systems. In the next section, I will show that if the equivalence of different legal systems is contested, additional safeguards may be introduced, both during the implementation and the application phase of the EAW.

The Mutual Recognition System in Practice: The Implementation and Application of the European Arrest Warrant In a comparative case study of the implementation and operation of the EAW in Germany and the UK, it will be shown that despite general support for the new European extradition system, concerns among national parliamentarians and judges prevail. These concerns are on the one hand caused by worries regarding democratic legitimacy and national accountability and on the other hand by concerns regarding the heterogeneity of the European criminal justice systems. I chose the UK and Germany because both are large member states which issue and receive high numbers of extradition requests. The two countries represent the heterogeneity in the European criminal justice systems since the UK belongs to the common law system and Germany belongs to the continental civil law system. Since mutual recognition is an integration instrument which aims at managing this diversity, it is useful to compare the implementation and operation of the EAW system in two very different member states. Implementation and National Debate Germany Germany transposed the EAW twice. The first transposition was late already and came into force on 21 July 2004, six months after the implementation deadline had expired. After applying the EAW for one year, the German Constitutional Court declared the German transposition of the framework decision unconstitutional and thereby void (judgment of 18 July 2005, 2 BvR 2236/04). As a result, Germany dropped out of the European extradition system and reintroduced the old and cumbersome request principle. Following an intense debate, on 2 August 2006 the second version of the Act on the European arrest warrant (Europäisches Haftbefehlsgesetz—EuHbG) came into force and Germany rejoined the mutual recognition regime. Parliamentary debate The German government and its administration strongly support the principle of mutual recognition and with it the EAW. Therefore


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the implementing legislation which had been drafted by the Ministry of Justice aimed at transposing the European framework decision as closely as possible into national law. It could build on constitutional changes which had been introduced already in 2000 to allow Germany to join the Rome Statute on the International Criminal Court and which concerned the extradition of own nationals (article 16 (2) of the constitution). It is interesting to observe that during the first implementation round, the German parliament perceived itself as having no leeway in changing a bill based on a European framework decision. The speech of CDU opposition leader Siegfrid Kauder during the bill’s last reading in March 2004 is representative of this feeling: “We are in a difficult situation. The framework decision is valid law. […] The German Parliament can only grumblingly support what Brussels has put on the table. […] We will support this bill which transposes the framework decision into national law grudgingly and with tears in our eyes since we have no other opportunity as to do so.”4 As a result of the perceived lack of influence, very few parliamentarians gained expertise in the subject and there have hardly been any debates in parliament on the principle of mutual recognition and its consequences. 5 The main concern was whether mutual recognition would work in practice, given the heterogeneity of the European criminal justice systems. In July 2005 after one year of operation, the German Constitutional Court declared the EuHbG 2004 unconstitutional and thereby void. According to the Court, the German implementation encroaches upon the freedom from extradition as enshrined in the constitution in a disproportionate manner; to be in line with the German Basic Law, stronger safeguards for German nationals would be needed. Moreover, the Court directly addressed parliament and accused it of not having exhausted the margins afforded to it by the framework decision in such a way that the implementation of the framework decision shows the highest possible consideration of the fundamental right concerned (judgment of 18 July 2005, 2 BvR 2236/04). The judgment came as a shock to parliament, government, and administration and caused a debate on the differences between the European legal systems and the conditions under which German nationals could be extradited. When drafting the second bill, the government tried to fully comply with the Court’s ruling by literally including whole passages of the judgment. In addition, the attitude of parliament towards implementing European law changed with the ruling of the German Constitutional Court. Sabine Leutheusser-Schnarrenberger, MP and former Minister of Justice from the German liberal party FDP, stated: “The German parliament is traditionally very pro-European. We pay attention to complying with basic thoughts of European law when transposing European law into national law. However, I think it will become more difficult now. You can no longer anticipate the German parliament to transpose European laws quasi automatically as in an assembly line, quietly waving through one bill after the 4 Protocol of the Plenary Session of the German Bundestag, 11 March 2004, p. 8748. 5 Information obtained from interviews.

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other. These times are over.”6 Several parliamentarians shared her evaluation. The new bill was scrutinized more intensely. Thereby, several parliamentarians highlighted the different standards in European legal procedures and demanded minimum harmonization measures as a basis for mutual recognition.7 In the end, the parliamentarians followed the reasoning of the German Constitutional Court and introduced more rights of appeal, more complicated procedures to protect the accused person and new grounds for refusal, thereby especially strengthening the position of German nationals and “equated persons.”8 The following paragraph will give a more detailed overview on the content of the new law. Content of EuHbG 2006: More Complicated Procedures, New Grounds for Refusal To give the accused person more rights, the two-step procedure was replaced by a three-step procedure in which the accused person is now entitled to appeal against the decision of the Chief Public Prosecutor (Bewilligungsentscheidung).9 This procedure is not in full compliance with the framework decision and does not contribute to the framework decision’s goal of a simplified extradition procedure (Wasmeier 2006, 26). Moreover, new grounds for refusal were introduced: An EAW has to be refused invariably if the offence committed has taken place on German territory. In mixed cases in which the offence has taken place on German territory and the territory of other states, the judicial authorities have to determine the state on whose territory the most grievous violations took place. When central parts of an offence have been committed in Germany, an arrest warrant has to be refused. Moreover, a warrant has to be refused now if the official form was presented but the information given was incomplete. In addition, the list of required documents was expanded when a German national was involved: If a requesting state asks for a German national or an equated person to be extradited, it is now mandatory to provide a written certificate saying that the requesting state is willing to return the person in order to serve the custodial sentence in Germany. UK The UK is one of the few states which met the implementation deadline. Parliament passed the Extradition Act 2003 in November 2003 and it entered into

6 Interview 17 August 2006 in Berlin. 7 Information obtained by interviews and an analysis of the Protocol of the Plenary Session of the German Bundestag, 11 March 2004. 8 Equated persons are non-German nationals who are married to a German or lived in Germany for several years. 9 Hackner et al. 2006 criticize the new procedure, saying: “The result is a cumbersome procedure which is not in accordance with the framework decision’s aim of speeding up cooperation. The result may enhance the rights of the individual. However, this level of protection would have been more appropriate for extradition requests from non-EU states” (translation by author).


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force on 1 January 2004. As a result, the UK is among those countries which are running the new European extradition system for full four years now. Parliamentary debate In 1999 at the European Council in Tampere, it was the UK government which suggested introducing the principle of mutual recognition to the third pillar. According to the UK government, mutual recognition was a good alternative to harmonization, which it strongly opposed in judicial matters. The opposition to harmonization was strengthened by the fact that the UK, as one of the common law countries in the EU,10 feared being pressured into adopting more features of the continental inquisitorial criminal law systems. The principle of mutual recognition of judicial decisions was regarded as a measure which would allow for enhanced judicial cooperation by avoiding a “European judicial superstate.” Nevertheless, it was a difficult task for the government to persuade parliament to pass the bill on the EAW since the framework decision turned out to “attract the simultaneous opposition of the eurosceptic right and the libertarian left” (Spencer 2003/2004, 10). When analyzing the parliamentary debates during the second and third reading of the bill, three main objections can be identified.11 First, the assumption of a general inferior quality of criminal justice systems in continental Europe, second, the abolition of the dual criminality requirement with respect to the 32 offences as a gateway for continental law, and third, the deficiencies of parliamentary scrutiny in EU third pillar issues which directly touch upon citizens’ fundamental rights. The first major objection, the alleged inferiority of the legal systems of continental Europe, can be traced back to both a lack of knowledge and to major distrust. Oliver Letwin, Conservative MP and Shadow Secretary of State for Home Affairs, was among those who strongly emphasized the inferiority of the judicial systems of continental Europe. He said he was wondering why the European Court of Human Rights in Strasbourg held them in conformity with the presumption of innocence clause. Comparing the adversarial and the inquisitional systems,12 he stated that, as a matter of fact, the British system was

10 The others being Ireland and—to a certain extent—Cyprus and Malta. It most be noted however, that the UK is not in its entirety a pure common law country. Scottish law is based on the continental tradition with only certain common law elements. 11 Analyses based on the following three documents: House of Commons debates, Second Reading on the Extradition Bill, 9 December 2002, and Third Reading on the Extradition Bill, 25 March 2003. House of Lords debates, 6 May 2003 on the Extradition Bill. 12 The adversarial system (or adversary system) of law is the system of law, generally adopted in common law countries, that relies on the skill of the different advocates representing their party’s positions and not on some neutral party, usually the judge, trying to ascertain the truth of the case. The inquisitorial system that is usually found on the continent of Europe among civil law systems (i.e. those deriving from the Roman or Napoleonic Codes) has a judge or a group of judges who work together whose task is to investigate the case before them.

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clearly superior. His general criticism towards some continental jurisdictions was shared by many. The second major objection was the abolition of the dual criminality requirement. The list of 32 offences which were exempted from dual criminality was regarded as a gateway for inferior continental criminal law to apply on British territory. Several MPs were especially concerned with the offence of “xenophobia” which is not known as an offence in the UK. Introducing xenophobia into the list was regarded as a risk to the fundamental right of free speech. This, as Spencer (2003/2004, 15) put it, “gave rise to one of the most astonishing europhobic scarestories of all time”: Parliamentarians feared that British newspaper editors could be extradited for publishing an anti-European editorial. The EAW could be used, so was said, to prevent British newspapers from telling the truth about Europe. Spencer quotes a eurosceptic British MEP, who said that the EAW “would give the EU total power to deal with its critics.”13 In addition, fears were expressed that tabloid editors could be arrested and extradited for provocative remarks about “Frogs” and “Huns” on the day of a football match.14 The third major objection concerned parliament’s role in the implementation process of third pillar framework decisions. Several parliamentarians criticized the perceived deficiencies of parliamentary scrutiny in EU third pillar issues. According to them it is the responsibility of parliament to decide on issues which directly touch upon citizens’ fundamental rights. They declared that government was not in a position to let parliament off the hook in these questions. The Labour government reacted to these demands and presented the bill at a very early stage in the process. This gave both houses enough time to scrutinize the bill. Despite the British majoritarian system, the bill was not supported by all Labour parliamentarians. In the end, the Labour government managed to keep most characteristics of the original bill. However, as a result of parliamentary scrutiny, changes had to be made and some additional safeguards were introduced leading to safeguards “probably at a higher level than those of many other countries” (House of Commons 2007, 49). The following paragraph gives a short overview on the content of the UK Extradition Act 2003. UK Extradition Act 2003 In the UK, the central judicial authority is the National Criminal Intelligence Service and in Scotland the Scottish Crown Office. The decisions will be taken by District Judges. The UK was criticized by the Commission for not allowing direct transmission of an EAW when assigning these two institutions. The UK itself, however, argued that it was known to be useful to have a central authority to coordinate and advise local police forces that have no experience with EAW cases and need to be guided through the arrest process (Home Office 2006). The Home Office thereby referred to Article 7 (2) of the framework decision which allows for making a central authority responsible 13 Spencer (2003/2004: 15) quotes Jeremy Titford MEP (UKIP) who wrote an article in the Herts Mercury, 21 January 2003. 14 Lord Norman Lamand, member of the House of Lords, in an article in Daily Telegraph, 4 December 2001.


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for the administrative transmission and reception of EAWs. The distrust towards other member states is expressed by explicitly including human rights concerns (Section 21) and the arrest of a person due to religious and political opinions (Section 13) as grounds for refusal. Interesting is Section 64 which refers to the extra-territorial jurisdiction exercised by a member state in a non-EU country. In this section, the UK expresses its discomfort with a general extra-territorial jurisdiction in criminal matters, as some member states such as Belgium and Spain exercise. In these cases, the UK diverges from the principle of mutual recognition and declares its own law to be applicable: Only if the offence on which the EAW is based is punishable by more than 12 month according to British law, will the EAW be accepted. Result: Concerns of National Institutions As the two case studies on the national transposition in Germany and the UK have demonstrated, the original framework decision was challenged in both countries. It can be observed that national institutions demanded their right to ensure high fundamental rights standards on national territory. In both countries differences between national legal systems and the need for additional safeguards to protect their own citizens from allegedly inferior criminal law was emphasized. In Germany, the Constitutional Court declared the national implementation void and called upon parliament to include additional safeguards. In the UK, the national parliament wanted to ensure that foreign legal systems meet domestic standards. Operation of the European Arrest Warrant System As discussed above, the judges of the executing authorities are central actors in running the EAW system. They have some leeway in deciding whether all necessary information has been provided and the requirements for an EAW to be accepted are fulfilled. This leeway differs according to the national implementing legislation and its additional grounds for refusing an EAW. Surprisingly little is known about the day-to-day cooperation of member states’ judges in the implementation of the EAW system. The Council is currently conducting an in-depth study on the practical application of the EAW, which includes interviews and visits on the spot. The first evaluation reports on Denmark (Council 2007a), Belgium (Council 2007), Estonia (Council 2007b) and Spain (Council 2007c) have already been published, and the reports on the UK, Ireland, France and Portugal are to be finalized. Based on first evidence, the EAW has been “a success,” as the Commission points out in its second implementation report (Commission 2007, 2). The Commission highlights that the EAW is increasingly applied by national judges and the new extradition procedure is much faster than the older one. Statistics provided by the Commission allow first insights in the operation of the EAW system (Commission 2007, 3). The data show that the total number of requests exchanged between the member states has risen sharply. In 2005, 6900 EAWs were issued, which are twice as many as in 2004. The actual

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numbers will be even higher, because Germany and Belgium are excluded from the statistics since they did not send in figures for 2005. In over 1,770 cases, the person wanted was traced and arrested by the police. Of those arrested, 86 per cent (2004: 60 per cent) were actually surrendered to the issuing member state. The new extradition system did lead to a speeding up of extradition procedures. If a person consented it took on average two weeks from arrest to extradition in 2005. If a person did not consent, the average procedure took 43 days. Looking at the countries which are most active in issuing and receiving EAWs (Council 2005, 2006), it can be said that Germany was the country that issued most warrants in 2004, namely 1300. However, Germany did not report any figures for 2005. In 2005, France issued most warrants (1914), followed by Poland (1448) and Austria (975). The countries which received most extradition requests in 2005 were Spain (632), France (452) and the Netherlands (434). However, despite the general positive evaluation of the application of the EAW, its introduction started with a series of challenges before national courts and the European Court of Justice (Commission 2007, 5–6; Guild 2006). The highest courts in Germany, Poland and Cyprus declared the national implementing legislation in conflict with the national constitutions. As a result, all three countries had to change their implementing legislation, resulting in higher safeguards for surrendering nationals. Moreover, Poland and Cyprus even had to change their constitution in order to be able to apply the EAW (as had Germany, but in anticipatory obedience at a prior stage). On the other hand, the highest courts in the Czech Republic, Greece and Portugal upheld domestic provisions authorizing the surrender of nationals. In addition to challenges to the national implementing legislation, a Belgian non-profit organization lodged an appeal before the Belgian Court of Arbitration against the framework decision itself, challenging the EU’s competences to adopt such a law. The Belgian constitutional court referred the case to the European Court of Justice (ECJ) for a preliminary ruling which decided that the Framework decision was in line with the Treaty on European Union (Case C-303/05, judgment of 3.5.2007). The numerous court proceedings led to legal uncertainty and prevented full application of the EAW throughout the EU for a time in 2005 and 2006. However, according to the Commission, the difficulties with transposition deriving from constitutional requirements have now been overcome (Commission, 2007, 5). In addition to the constitutional problems, the Council discovered some obstacles in the day-to-day application. One of the problems was that some member states issued EAWs for minor offences such as for example the theft of two car tires, the possession of 0.45 grams of cannabis, or the theft of a piglet (Council 2007d, 3). This caused resentment in some member states, which were questioning whether in these cases it was appropriate to issue an EAW. In July 2007, the Council came to the conclusion that in some member states there is a need to set up mechanisms and rules at the national level allowing for a control of proportionality (Council 2007d, 3). Against this background, I will now turn to the application of the EAW in Germany and the UK, discussing the situation in these two countries in more details.


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Germany When analyzing the operation of the mutual recognition system in Germany, a lack of good data becomes evident. The Ministry of Justice publishes an annual extradition statistic, which allows for calculating the broad figures (BMJ 2004, 2005, 2006). However, the statistics do not differentiate between extradition procedures based on traditional bilateral agreements and EAWs, as a result of which the following data can only provide limited insights into the operation of the EAW system which Germany joined in July 2004. When looking at Germany as an issuing state, Germany is the country which in 2004 issued the most EAWs by a wide margin, approximately 1300 (Council 2005). It can be observed that the introduction of the mutual recognition system doubled the extradition requests issued. The number of incoming extradition requests increased as well, but not to such an extent (BMJ 2004, 2005, 2006). Graph 7.1 gives an overview on incoming extradition requests in the year preceding the EAW and in the first two years after the EAW was introduced. When comparing the total number of concluded procedures with the number of accepted requests, the share of accepted requests is quite high.15 In 2003, 88 per cent of all concluded procedures were approved; the number rose to 90 per cent in 2004, and decreased slightly to 85 per cent in 2005.16 The country whose requests were rejected the most was Italy, followed by Poland. However, no information is provided on the actual number of extraditions17 and the length of the procedure. Moreover, after the Constitutional Court’s Decision in July 2005, Germany no longer accepted EAWs. It did, however, continue to issue EAWs to other member states. This caused problems. Some states had abolished the old procedures and were not able to apply them any more. Moreover, Spain and Hungary considered that Germany was no longer applying the principle of mutual trust, and therefore decided to reciprocate and stopped extraditing to Germany until the new law was adopted in August 2006 (Commission 2007, 5). A member of the German Ministry of the Interior stated that the high approval rates do not adequately reflect the “situation on the ground” since surrender procedures would often be cumbersome and would take quite some time. This evaluation was confirmed by German judges in charge of running the mutual

15 Calculated by comparing the requests which were concluded (column 13 of table in original document of BMJ) with the number of requests authorized (addition of column 14 and 16 of table in original document of BMJ). 16 Calculated by comparing the requests which were concluded (column 13 of table in original document of BMJ) with the number of requests refused (column 17 of table in original document of BMJ). It is very likely that many of these procedures started before 2004 and were not based on an EAW. Unfortunately, Germany does not indicate which procedures were based on an EAW and which were based on traditional bilateral extradition agreements. The same might be true for the numbers for 2005. 17 The number of accepted requests and the number of extraditions are not identical, since several EAWs may be issued against a single person. Regardless of how many of these are accepted, the person can only be extradited once.

Graph 1.1 Number of new extradition requests for prosecuting a person issued in the respective year Source: BMJ (2004), BMJ (2005), BMJ (2006), data drawn from table A1, column 4, in the respective documents.


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recognition system.18 They acknowledged the advantages of the new extradition system but also pointed to problems caused by heterogeneity of judicial systems, cultural differences, and high transaction costs in judge-to-judge cooperation. With an ironical undertone, some stereotypes were expressed: The Spanish legal system still suffers from the Franco dictatorship, the Italian system is slow and corrupt, and the new member states do not yet meet western standards. Concerning day-to-day cooperation, some problems caused by heterogeneity were mentioned. Cases were reported in which the Polish authorities issued an EAW based on minor offences, which, according to German law would not qualify for an EAW. Issuing an EAW for such an offence was regarded as completely out of proportion and therefore rejected.19 Moreover, judges expressed their concern towards the trustworthiness of the Polish criminal system more generally and referred to the suggestion of Przemyslaw Gosiewski, Polish parliamentary leader of the government party PiS, to issue an EAW to prosecute a German editor who wrote a satire on the Polish president which raised concerns that Poland might misuse the EAW system.20 The UK was mentioned as a country with which cooperation in extradition matters was still especially cumbersome. It was pointed out that “the English Channel separates us—and it is deep.” UK Recently, the UK published its extradition statistics on Hansard (House of Commons 2007a, 2007b, 2008). According to the data, the UK issued 116 EAWs in 2004 which lead to 20 persons returned to the UK that year. In 2005, 150 EAWs were issued and 66 persons returned. In 2006, 157 EAWs were issued and 77 returned, and in 2007 154 EAWs were issued and 85 persons returned. It should be noted that a person is not always returned in the same year as the EAW was issued. The countries addressed most were Spain (193 EAWs, 88 returns) and Ireland (136 EAWs, 48 returns). In general, the judicial authority in charge, the National Crown Investigation Service (NCIS), evaluates the mutual recognition system as working well (House of Lords 2006, 10). The EAW would allow returning more people than before, among them the high profile case of Hussain Osama, a Portuguese who was returned to the UK after having fled to Italy. Hussain Osama was suspected of having been involved in the second failed London bombings. Nevertheless, it was said that there was still variation in the amount of time the procedure has taken and that not all cases had gone swiftly. Moreover, the constitutional problems which arose in Germany, Poland, Cyprus and Belgium were addressed and it

18 The following information is obtained by interviews with four German judges and a representative of the Ministry of the Interior. These interviews are not representative and can only provide for first anecdotal evidence as to how the mutual recognition system operates in practice in Germany. Anonymity was assured. 19 The Council addresses this problem in a note of 9 July 2007, 10975/07, calling for the introduction of the principle of proportionality. 20 In 2006, editor Peter Köhler wrote an article in the leftwing German Tageszeitung (taz) in which he satirized the Polish president by comparing him with a potato.

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was stated that these developments were regarded with concern since they raised legal uncertainty. Looking at the UK as an executing country (House of Commons 2007a), the data indicate that the length of the proceedings is quite long. Most procedures could not be concluded the same year they started. In 2004, the UK received 124 EAWs which lead to the surrender of 23 persons the same year. In 2005, the UK received 308 EAWs, surrendering 75 persons. In 2006, the UK received 262 EAWs and surrendered 152 persons, and in 2007 (until 15 November), the UK received 234 EAWs, surrendering 287 persons. During the whole period, 89 subjects were discharged by UK courts, most of them from Poland (18) and Germany (11). Comparing the numbers of EAWs received and the persons discharged and surrendered, it can be said that 302 EAW proceedings were still running by November 2007. Table 7.1 shows the number of EAWs received compared to the number of persons surrendered 2004–2007 differentiated by country. Based on the first four Council evaluation reports conducted in Belgium, Denmark, Estonia and Spain as well as on the latest report from the Commission (Commission 2007), it can be said that the UK and Ireland pose the most problems to the EAW system. The UK is mentioned in all evaluation reports as being a country with which cooperation is rather difficult. According to the Commission’s report, the UK and Ireland “seem to ask almost systematically for additional information or even to insist on the arrest warrant being re-issued—a requirement which poses problems for certain countries whose legislation does not allow this and which lengthens proceedings considerably” (Commission 2007, 9). As a result, the average extradition procedure in the UK and Ireland takes much longer than in other countries and may even exceed the time limits set in the framework decision (Commission 2007, 4). Interviews with Council officials and British judges suggest that UK judges were disappointed by the low quality of incoming EAWs issued by some countries. 21 They criticize the lack of information provided, and, similar to Germany, the fact that some EAWs were issued for very minor offences. In addition, Germany and Austria were cited as examples of countries which would allow the issuing of an EAW if the police have “a strong suspicion” that a person committed a crime. As a result, an EAW would be issued in the investigation stage of the process and lead to interviewing a suspected person instead of prosecuting an accused. This practice was highly criticized as a misuse of the EAW system. As a result, the UK has started doublechecking the quality of all incoming EAWs. Result: Concerns of National Judges Despite the Commission’s vision of the quasi-automatic mutual recognition of judicial decisions, national judges may act as gate-keepers of the national legal system and show uncooperative behavior, as can clearly be seen in the British 21 Information obtained from interviews of judges who participated in the conference “Mutual recognition and the role of the national judge,” organized by the Academy of European Law (ERA) in Trier, October 2006.


Table 7.1

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EAWs received by the UK and persons surrendered from the UK on basis of an EAW 2004–2007

Country

2004 EAWs

2005

surrend.

EAWs

2006

surrend.

EAWs

2007*

surrend.

EAWs

surrend.

Austria

3

–

2

–

2

2

–

–

Belgium

15

3

13

8

2

1

3

5

Bulgaria

–

–

–

–

–

–

–

–

Cyprus

–

–

4

–

–

–

–

–

Czech Republic

–

–

5

–

10

–

12

15

Denmark

4

–

1

3

3

–

–

2

Estonia

–

–

1

–

–

–

–

–

Finland

4

1

2

2

1

1

–

1

France

11

1

22

4

12

15

6

8

Germany

–

–

42

8

15

16

13

19

Gibraltar

–

–

–

–

–

–

–

–

Greece

–

–

3

–

1

2

2

–

–

–

2

–

6

3

–

1

14

4

24

11

22

20

14

23

Hungary Ireland Italy

–

–

11

–

10

5

8

9

Latvia

3

–

5

–

2

2

8

7

29

3

78

25

55

48

27

54

Luxembourg

–

–

–

–

–

–

–

–

Malta

–

–

–

–

1

–

1

1

The Netherlands

5

3

5

3

6

2

16

6

Poland

11

–

42

4

80

20

109

120

Portugal

11

5

6

3

4

2

2

3

Lithuania

Romania

–

–

–

–

1

–

2

2

Slovakia

–

–

9

–

2

4

5

4

Slovenia

–

–

3

–

–

–

–

–

11

1

26

3

3

4

6

6

3

2

2

1

4

4

–

1

124

23

308

75

262

152

234

287

Spain Sweden SUM *

Until 15 November 2007

Source: House of Commons (2007b).

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case. As the interviews have revealed, national judges sometimes distrust foreign legal systems and regard the national system as superior in quality. This can in part be traced back to a lack of knowledge in foreign legal systems. However, part of it can also be explained by the experiences made in the EAW system: EAWs issued for minor offences or in a too early stage of the proceedings are taken as evidence of the alleged inferior quality of foreign legal systems.

Conclusion In assessing the implementation and operation of the EAW, it can be observed that the framework decision on the European arrest warrant is contested in the national arena. In contrast to the argument of Sandra Lavenex (2007), I argue that the EAW does not necessarily lead to an empowerment of national governments over other branches. My argument is that national institutions, by referring to national sovereignty and parliamentary accountability in an area of fundamental rights concerns, demand their say in the implementation of the new extradition system. Moreover, if parliamentarians and judges of constitutional courts contest the assumption that the different European legal systems are sufficiently equal to ensure a high level of fundamental rights standards, they will challenge the outcome of the government’s negotiations on the European level and demand additional safeguards in the implementing legislation as the numerous constitutional challenges and additional ground for refusal in the implementing laws show. Moreover, after implementation, the EAW faces another challenge. National judges of the executing authorities may act as gatekeepers of the national legal system, using their leeway to reject an EAW if it diverges too much from well known national standards. As a result, judges may regularly double check incoming EAWs and seek for additional information in case they do not trust its quality which hampers the smooth functioning of the new extradition system. To conclude, national institutions demand their right of scrutiny in issues which touch upon citizens’ individual freedoms. Taking into consideration the enhanced role of national parliaments as planned in the conclusions of the Brussels European Council in 2007 (European Council 2007, 17), it can be expected that parliamentarians might more regularly intervene if they perceive citizens’ fundamental rights to be at stake.

References Alegre, S. and Leaf, M. (2004), “Mutual Recognition in European Judicial Cooperation: A Step Too Far Too Soon? Case Study—the European Arrest Warrant,” European Law Journal, vol. 10 no. 2, 200–17. Blekxtoon, R. and van Ballegooij, W. (2004), Handbook on the European Arrest Warrant (Cambridge: Cambridge University Press). Bundesministerium der Justiz (2004), Bekanntmachung der Auslieferungsstatistik für das Jahr 2003, Berlin.


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Bundesministerium der Justiz (2005), Bekanntmachung der Auslieferungsstatistik für das Jahr 2004, Berlin. Bundesministerium der Justiz (2006), Bekanntmachung der Auslieferungsstatistik für das Jahr 2005, Berlin. Commission (2004), Proposal for a Council Framework Decision on procedural rights in criminal proceedings throughout the European Union of 28 April 2004, COM (2004) 328 final. Commission (2007), Report from the Commission on the implementation since 2005 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedure between Member States of 11 July 2007, COM (2007) 407 final. Council of the European Union (2005), Information Note, Replies to Questionnaire on the practical operation of the European Arrest Warrant—Year 2004, 7155/05, COPEN 49, EJN 15, EUROJUST 15, Brussels, 9 March 2005. Council of the European Union (2006), Information Note, Replies to Questionnaire on the practical operation of the European Arrest Warrant—Year 2005, 9005/4/06, COPEN 52, EJN 12, EUROJUST 21, Brussels, 30 June 2006. Council of the European Union (2007), Evaluation report on the fourth round of mutual evaluations “the practical application of the European Arrest Warrant and corresponding surrender procedures between Member States” report on Belgium, 16454/1/06 REV1, 3 January 2007. Council of the European Union (2007a), Evaluation report on the fourth round of mutual evaluations “the practical application of the European Arrest Warrant and corresponding surrender procedures between Member States” report on Denmark, 13801/106, 12 January 2007. Council of the European Union (2007b), Evaluation report on the fourth round of mutual evaluations “the practical application of the European Arrest Warrant and corresponding surrender procedures between Member States” report on Estonia, 5301/01/07 REV1 COPEN 6, 20 February 2007. Council of the European Union (2007c), Evaluation report on the fourth round of mutual evaluations “the practical application of the European Arrest Warrant and corresponding surrender procedures between Member States” report on Spain, 5085/2/07, 6 June 2007. Council of the European Union (2007d), Note, Proposed subject for discussion at the experts’ meeting on the application of the Framework Decision on the European arrest warrant on 17 July 2007—the proportionality principle, 10975/07, COPEN 98, 9 July 2007. Council of the European Union (2007e), Proposal for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union Note, 10287/07, 5 June 2007. European Council (2007), Cover Note, Brussels European Council 21/22 June 2007, Presidency Conclusions, 11177/07, 23 June 2007. Gay, C. (2006), The European Arrest Warrant and its Application by the Member States, European Issues no. 16/2006 (Paris: Fondation Robert Schuman). Guild, E. (2004), “Crime and the EU’s Constitutional Future in an Area of Freedom, Security, and Justice,” European Law Journal, vol. 10 no. 2, 218–34. Guild, E. (ed.) (2006), Constitutional Challenges to the European Arrest Warrant (Nijmegen: Wolf Legal Publishers). Hackner, T., Schomburg, W., and Lagodny, O. (2006), “Das 2. Europäische Haftbefehlsgesetz,” Neue Zeitschrift für Strafrecht, vol. 26 no. 12, 663–9.

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Home Office (2006), Explanatory Memorandum submitted to the House of Lord’s Select Committee on the European Union (Sub-Committee E), 20 February 2006. House of Commons (2007), Justice and Home Affairs Issues at European Union Level, Third Report of Session 2006–07, Home Affairs Committee, London. House of Commons (2007a), “European Arrest Warrants Received,” Daily Hansard, Written Answers for 29 November 2007, column 656W, table 2, http://www.publications. parliament.uk/pa/cm200708/cmhansrd/cm071129/text/71129w0022.htm. House of Commons (2007b), “European Arrest Warrants Issued by the UK to each Member State, with Number of Subjects Returned to the UK,” Daily Hansard, Written Answers for 17 December 2007, column 958W, tables 2, 3 and 4, http://www.parliament. the-stationery-office.com/pa/cm200708/cmhansrd/cm071217/text/71217w0008.htm. House of Commons (2008), “European Arrest Warrant Statistics,” Daily Hansard, Written Answers for 4 February 2008, column 810W, table 2, http://www.publications. parliament.uk/pa/cm200708/cmhansrd/cm080204/text/80204w0015.htm. House of Lords (2006), European Arrest Warrant—Recent Developments. Report with Evidence. 30th Report of Session 2005–06, European Union Committee, London. Impalà, F. (2005), “The European Arrest Warrant in the Italian Legal System. Between Mutual Recognition and Mutual Fear within the European area of Freedom, Security and Justice,” Utrecht Law Review, vol. 1 no. 2, 56–78. Jimeno-Bulnes, M. (2004), “After September 11th: The Fight Against Terrorism in National and European Law. Substantive and Procedural Rules: Some Examples,” European Law Journal, vol. 10 no. 2, 235–53. Lavenex, S. (2007), “Mutual Recognition and the Monopoly of Force: Limits of the Single Market Analogy,” Journal of European Public Policy, vol. 14 no. 5, 762–79. Maduro, M.P. (2007), “So Close and Yet so Far: The Paradoxes of Mutual Recognition,” Journal of European Public Policy, vol. 14 no. 5, 814–25. Nicolaïdis, K. (1993), “Mutual Recognition among Nations: the European Community and Trade in Services,” PhD dissertation, Harvard, Cambridge, MA. Nicolaïdis, K. (1997), Mutual Recognition of Regulatory Regimes: Some Lessons and Prospects, Jean Monnet Paper Series (Cambridge, MA: Harvard Law School). Peers, S. (2004), “Mutual Recognition and Criminal Law in the European Union: Has the Council Got It Wrong?,” Common Market Law Review, vol. 41 no. 5, 5–36. Scharpf, F.W. (1999), Governing Europe: Effective and Democratic? (Oxford: Oxford University Press). Scharpf, F.W. (2003), Problem-Solving Effectiveness and Democratic Accountability in the EU, Working Paper 03/1 (Köln: Max Planck Institute of the Study of Societies). Spencer, J.R. (2003/2004), “The European Arrest Warrant,” The Cambridge Yearbook of European Law, vol. 6, 201–17. Quoted version retrieved from www.eurowarrant.net. Wasmeier, M. (2006), “Der Europäische Haftbefehl vor dem Bundesverfassungsgericht— Zur Verzahnung des nationalen und europäischen Strafrechts,” Zeitschrift für europarechtliche Studien, vol. 9 no. 1, 23–39. Wichmann, N. (2006), “The Participation of the Schengen Associates: Inside or Outside?,” European Foreign Affairs Review, vol. 11, no. 1, 87–107.

Chapter 8

Reflexive Governance and the EU Third Pillar: Analysis of Data Protection and Criminal Law Aspects Gloria González Fuster and Pieter Paepe1

The reflexive governance theory aims to contribute to the improvement of governance, notably in the European Union (EU) context. How could it benefit EU third pillar governance? The present chapter scrutinizes the contrasting cases of EU data protection and criminal law looking for an answer to this question. It firstly introduces the hypothesis of reflexive governance, taking particular care in highlighting its potential to contribute to the current debate on governance in the EU, as well as to stimulate pertinent case study research. Secondly, it explores EU data protection in two distinctive movements: with a description of the main specific actors of the field and via an illustration of its principal tensions and currently discussed proposals. Thirdly, it examines EU criminal law governance, especially through the issues of the pillar division and learning mechanisms. Finally, the study proposes a reflexive assessment of the two case studies, in the wide context of the general question of reflexive governance and the EU’s third pillar.

The Hypothesis of Reflexive Governance One of the major dilemmas currently being faced in the context of discussions on EU governance concerns the definition of “public interest.” It relates to the question of who should have the right to define the content of the notion of “public interest,” and how should it be done. Theories on governance are generally built upon an implicit notion on how and by whom is such “public interest” to be defined. Certain hypotheses rely on the idea that the content of the “public interest” concept can only be generated as some sort of “natural” result coming from the tensions between individual actors seeking to maximize their own specific interests. Other theories, on the contrary, assume that the definition of what is the “public interest” is preferably to be left in the hands of a specially

1 The authors are sincerely grateful to Monica den Boer for her extremely useful critical reading of the initial draft.

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qualified and empowered actor, deliberately designated to adopt and eventually impose such type of decisions. In the context of EU governance, the defence of the benefits of “interjurisdictional competition” can be globally framed in the first perspective, while support for “harmonization” efforts is typically rooted in an understanding closer to the second standpoint. Unfortunately, none of those perspectives can be considered fully satisfactory simultaneously from the point of view of legitimacy and efficiency, as the first one tends to favor legitimacy by jeopardizing efficiency, while the second almost inevitably sacrifices legitimacy in the name of efficiency. How to escape from such dilemma? The reflexive governance approach suggests that the best way to do so might be to look for modes of decisionmaking that actively involve the actors concerned by the rules and policies which will affect them, allowing them to determine the very content of the “public interest” notion.2 Such modes should not only reinforce the legitimacy of decision-making, and be perceived as absolutely legitimate by those in charge of implementing them, but also be more efficient, due to the positive input of fully informed actors. Reinforcing legitimacy and ensuring efficiency are two of the essential challenges acknowledged in the context of the general reflection on EU governance as crystallized in the European Commission’s White Paper on European Governance (Commission 2001b), which is none other than the precise context to which the reflexive governance theory aims to effectively and pragmatically contribute—even if it also bears, at another level, more theoretical ambitions (Lenoble and Maesschalck 2006). The main advantage of the reflexive governance point of view for the empirical exploration of EU laws and policies is, in our view, that it helps to focus research on innovative, “experimentalist” governance mechanisms that do not implicitly rely on any assumption on the benefits of institutional approaches such as “interjurisdictional competition” and “harmonization.” In the lines of the thinking generally referred to as “democratic experimentalism” (Sabel and Zeitlin 2007), the reflexive governance hypothesis calls for careful consideration to be given to mechanisms that contribute to overcome such institutional opposition, therefore stimulating study and debate on new and promising modes of governance. Just as the “democratic experimentalism” standpoint, but perhaps even more emphatically, the reflexive governance perspective invites us to take a close look at the transfer of learning in governance. Indeed, the active involvement of actors affected by laws and policies in governance matters cannot take for granted that all the concerned actors have the required knowledge to effectively contribute to decision-making and to the definition of “public interest.” It is in 2 The theoretical framework of this chapter is inspired by the research currently undertaken in the context of the Reflexive Governance in the Public Interest (REFGOV) project, a 6th European Community Framework Programme on Research and Development integrated project. The authors are both contributing to REFGOV’s Fundamental Rights sub-network, coordinated by the Centre de Philosophie du Droit of the Université Catholique de Louvain. More information on REFGOV can be found at http://refgov.cpdr.ucl.ac.be.

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this context that the idea of learning, and particularly of “collective learning,” becomes an essential element of the analysis: if we do not assume that all actors are naturally capable of participating in governance, we need to look for mechanisms that will encourage learning on governance amongst all the involved, and all the potentially involved, actors. In concrete terms, this means that in our research we shall be particularly attentive to the observation not only of innovative governance mechanisms, but most notably of those mechanisms contributing to the institutionalization of what can be termed as “collective internal learning processes.” The adjective “internal” refers here to the triggering of learning by the governance mechanisms themselves, as opposed as some “external” learning stimulated from outside sources. Those mechanisms should ideally enable the actors involved in governance to learn on governance from the decision-making process itself, and to use that very same learning to adapt the rules that are used for decision-making (Maesschalck and Dedeurwaerdere 2002). The abstract nature of those considerations will now give place to our two concrete case studies, on third pillar data protection and criminal law.

Eu Data Protection Governance Main Actors First pillar The EU data protection regime is profoundly marked by the pillar division structuring the EU. Directive 95/46/EC (European Parliament and Council 1995), known as “the Data Protection Directive,” exempted from its scope data processing occurring in the course of activities falling outside the scope of Community law, explicitly mentioning public security, defence, state security and criminal law.3 By doing so, it led the way for a divergent development of data protection in the first and the third pillars. Directive 95/46/EC was also responsible for establishing two of the main actors of EU data protection: national supervisory authorities and the Working Party on the Protection of Individuals with regard to the Processing of Personal Data, known as “the Art. 29 WP.” Supervisory authorities are independent monitoring bodies nowadays almost universally believed to play an unavoidable role in data protection. The Data Protection Directive unambiguously configured them as independent bodies, although failing to regulate their independence in concrete terms. It imposed on them the obligation to cooperate between them, and they had traditionally been very keen on cooperation. Actually, they have progressively formed a series of networks, such as the International Conference of Data Protection and Information Commissioners, and developed a sort of “community” sharing common values and a particular agenda. In the EU framework, the main forum where supervisory authorities cooperate is the Art. 29 WP, foreseen by the Data Protection Directive as an independent body with advisory status. 3

Art. 3 (2) of directive 95/46/EC.

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The Art. 29 WP is a first pillar body that can be described as “derivative,” in the sense that it is composed of representatives of other bodies, namely of the national supervisory authorities, of Community supervisory authorities and of the Commission.4 The particular composition and position of the Art. 29 WP justify its dual function: it concentrates expertise coming from the supervisory authorities for EC level consultancy—stimulating the transfer of knowledge from the national level to EU level—and it helps promoting the uniform implementation of European Community (EC) legislation at member state level, triggering the transfer of knowledge amongst the supervisory authorities, as well as from EC level to the national level.5 The Art. 29 WP has the right to make recommendations on “on all matters relating to the protection of persons with regard to the processing of personal data in the Community.”6 Its members have generously interpreted this right, almost as if no data protection in the EU could be considered absolutely unrelated to Community data protection. Although originally established by and as a first pillar instrument, the Art. 29 WP has tended to position itself as the watchdog of EU data protection in general7—especially until the establishment of the European Data Protection Supervisor (EDPS) in 2004. Interestingly, the Art. 29 WP has functioned as an instrument allowing the supervising authorities as a community to voice out and defend their own agenda on EU data protection in general at EC level. The Art. 29 WP’s views have been particularly relevant in the field of data transfers to third countries, as it has the responsibility to provide to the Commission its opinion8 on whether third countries offer or not an “adequate” level of data protection, a determinant factor to allow transfers. The Data Protection Directive was legislatively developed at EC level by Regulation (EC) No 45/2001 (European Parliament and Council 2001), which established the existence of the EDPS9 and of Data Protection Officers (DPOs). The EDPS’ main task is to monitor the application of data protection by Community institutions and bodies; under the scope of its monitoring duties fall all the activities that are at least partially under Community law. Additionally, it 4 Article 29 (2) of directive 95/46/EC. 5 Some researchers (Eberlein and Newman 2006) have concluded after analyzing the supervisory authorities’ role and of their function as shaped by the Art. 29 WP that governance in the field of EU data protection can be described as “incorporated transgovernmentalism” and that it may contribute to the overcoming of the duality between member state level regulation and EU level regulation. Their analysis, however, is based on the understanding that supervisory authorities enjoy regulatory powers, which is not always the case. Another misconception of the exact role of supervisory authorities affects an analogue analysis by Francesca Bignami (2005), in which supervisory authorities are qualified as “government regulators” (ibid., 809). 6 Article 30 (3) of directive 95/46/EC. 7 Hijmans has noted in this sense that the Art. 29 WP has come to see itself as “the independent EU Advisory Body on Data Protection and Privacy” (Hijmans 2006, 1322). 8 Article 30 (1) (b) of directive 95/46/EC. 9 Article 41 (1) of regulation (EC) No 45/2001.


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has advisory duties that enjoy a wider scope: they cover also third pillar legislative proposals, as confirmed by the European Court of Justice (ECJ).10 The EDPS is not a “derivative” body, in the sense that it is not composed of representatives of other bodies. Nevertheless, the Supervisor himself shall be chosen from persons “who are acknowledged as having the experience and skills required (…), for example because they belong or have belonged to the supervisory authorities referred to in Article 28 of Directive 95/46/EC.”11 The EDPS is therefore preferably selected amongst members of the community of supervisory authorities, and, in this sense, it can be called a “semi-derivative” body, capable of serving as an instrument to promote at EU level the values and agenda of national supervisory authorities. The current EDPS had previously been the chairman of both a national supervisory authority and of the Art. 29 WP. As he expressed concerning eventual contradictions between him and the Working Party, “a contradiction has not yet taken place and is not expected to take place, not only because the EDPS is a member of the Article 29 Working Party, but also because both bodies defend the same substantial interests” (EDPS 2006a, 57). Aware of the fact that his advisory tasks can overlap the advisory role of the Art. 29 WP, the EDPS has underlined that its views could have a more marked EU perspective, while the Art. 29 WP is supposed to be closer to the concerns directly emerging from national Supervisory authorities. Another feature differentiating the EDPS from the Art. 29 WP is his right to intervene in court cases.12 Moreover, the EDPS has a series of cooperation duties that confer him a privileged position in EU data protection, a position that could be qualified as “pivotal” and strategic for the transfer of learning: he has the obligation to cooperate with national supervisory authorities,13 but also with those set up in the third pillar, which have no formal contacts with the Art. 29 WP. A unique kind of cooperation between the EDPS and national supervisory authorities takes place in the context of the supervision of data protection for Eurodac,14 as the EDPS is responsible for the supervision of Eurodac’s central database and the transfers from it to the member states, while national supervisory authorities monitor the processing of data by the member states and the transfers to the central database. According to the EDPS, effective monitoring of Eurodac as a whole requires special attention to be given to cooperation between him and national supervisory authorities, ideally contributing to the development of general approaches that could be helpful in the design of other future similar cases of joint supervision in other EU large-scale information systems, such as the Schengen Information System (SIS) (EDPS 2006a, 53). The EDPS method consists therefore in using 10 In the PNR cases (Joined cases C-317-04 and C-318/04). 11 Article 42 (2) of regulation (EC) No 45/2001. 12 Notably before the Civil Service Tribunal, the Court of First Instance and the ECJ (EDPS 2006, 55). 13 Art. 46 (f) (i) of regulation (EC) No 45/2001. 14 In the context of the transfer of third pillar to the first pillar of several civil judicial matters, such as asylum and immigration, border controls and visa policy, by the Amsterdam Treaty.

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Eurodac as a way of testing and improving joint supervision modes, in the context of what could be interpreted as an “experimentalist” approach to data protection. The special position of EDPS in the EC data protection regime is also linked to its peculiar relation with EC Data Protection Officers (DPOs), whose role he has himself helped defining. The Data Protection Directive mentioned the possibility of regulating the existence of what were at the time called “data protection officials,” understood as officials working for the data controllers. Regulation (EC) No 45/2001 established that each Community institution and body shall appoint a Data Protection Officer (DPO),15 whose main function is to independently ensure the internal application of the Regulation. DPOs are inside the institution responsible for the processing of data, but they are independent from it. The officers have the legal obligation to cooperate with the EDPS, a cooperation that has developed notably via an informal network created by the officers themselves through regular meetings, organized in order to share experiences and discuss horizontal issues, and sometimes attended by the EDPS. Third pillar Third pillar data protection is structured around a series of separate sets of rules establishing a series of actors, each and everyone being responsible for the supervision of different data transfers according to different provisions. The main relevant actors are the Joint Supervisory Authorities (JSAs). The term “joint” designates here that these authorities are aggregations of representatives of other authorities. Even if they are “derivative” bodies, similarly to the Art. 29 WP, they do not have any coordinating or advisory role: their duties are of supervisory nature, very much like those of national supervisory authorities, although with more limited scopes, tasks and rights. The JSAs are the Schengen Joint Supervisory Authority (JSA), the Europol Joint Supervisory Body (JSB) and the Customs Information System (CIS) JSA. The Schengen JSA’s design, which served as a model for all of them, is tributary to the intergovernmental spirit of the Schengen convention and is based on the idea that federating national supervisory authorities is the best method to create a supranational supervisory authority (Brulin 2003, 139): they are all therefore composed of representatives of national supervisory authorities. The JSAs are in practice composed of almost exactly the same people,16 who actually tend to be the same people participating in the Art. 29 WP. The authority supervising data protection in Eurojust, the Eurojust Joint Supervisory Body (JSB) is a third pillar body with a special composition, as its members are requested to enjoy judicial authority (Brulin 2003, 149). The Schengen JSA, the Europol JSB and the CIS JSA share a common secretariat, which was established by the Council as a first step in the setting

15 The term used by regulation (EC) No 45/2001 is indeed “officer” instead of “official.” 16 “Indeed it is common for the same person to sit on all three JSAs under a different hat (applying different rules)” (House of Lords, European Union Committee 2005, 38).


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of a more consistent EU data protection regime for the third pillar17 and was, indeed, intended as such, although the global strategy in which it represented “a first step” has until now never been developed further. The JSAs view their separate existences as a major cause of the lack of efficiency of third pillar data protection, notably because they do not have the power to voice out their general concerns on EU data protection, and not even their concerns on data protection in the third pillar and or on their own lack of formal coordination. As members of the JSAs are also members of national supervisory authorities, their concerns are sometimes canalized through them to international networks, including the Art. 29 WP, which, as noted, positions itself as a body able to express general concerns on data protection at EU level. Since 2004, the European network of national supervisory authorities has launched its own plan for the set up of a “joint EU forum on data protection in police and judicial cooperation matters.”18 The JSAs as such have moreover punctually coordinated themselves outside the EU context to demand improvements for third pillar data protection. Instabilities and Foreseeable Developments Data protection is one of the fields in which the division between first and third pillar has been the most conflictive. The Passenger Name Record (PNR) case19 notoriously illustrated the problems that can arise from divergent interpretations of which processing falls under each pillar.20 The Data Retention case,21 which concerns Directive 2006/24/EC (European Parliament and Council, 2006), known as “the Data Retention Directive,” and saw the light in the context of the ECJ’s Advocate General recommendation on the PNR case (Léger 2005), can be considered another symptom of the same problem. Hence, it is not surprising that the majority of developments being supported and discussed in the field of EU data protection are attempts to solve inter-pillar tensions, either by overcoming the boundaries between pillars, either by ensuring uniformity or at least consistency between them. The approval of the draft Constitutional Treaty (Intergovernmental Conference 2004) would have induced two capital changes for EU data protection:22 first, the 17 See Recital 17 of regulation (EC) No 45/2001. 18 Indeed, a resolution calling for the creation of a joint EU forum on data protection in police and judicial cooperation matters had already been adopted in September 2004 by the European Data Protection Commissioners at a meeting held in Wroclaw, Poland (28th International Conference of Data Protection and Privacy Commissioners 2006). 19 Joined cases C-317/04 and C-318/04, Parliament v Council and Commission (2006) ECR I-4721. 20 In the same sense, some analysts believe that the current pillar division makes impossible to find a convenient solution from a legal point of view to data transfers such as those considered in the PNR case (Adam 2006, 422). 21 Case C-301-06, Ireland v. Council and Parliament, asking for annulment of directive 2006/24/EC on Data Protection. 22 Other aspects of the draft Constitutional treaty related to data protection could also be pointed out, such as the mention of data protection in Article I-51 in Title VI on the democratic life of the Union.

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strengthening of the data protection right as a fundamental autonomous right, through the binding force to be granted to the 2000 Charter of Fundamental Rights of the EU (Charter); second, the collapse of the EU pillar structure. The Reform Treaty envisaged for 2009 (Council 2007) is expected to have an equivalent impact, although some questions remain at this stage open. The Reform Treaty should in principle also provide the Charter with binding force, even though certain member states have stipulated some opt-outs with unclear consequences. The 2000 Charter represented actually a highly innovative contribution to EU data protection, as it recognized in its article 8 the right to data protection as an autonomous right, instead of a simple dimension of the right to privacy, and established as an essential feature of the data protection right the existence of independent supervisory authorities,23 indirectly placing governance issues at its very same core. The overcoming of the pillar division would represent a further contribution to facilitate the design of a consistent EU data protection regime, allowing, for instance, for the creation of a body with competence in all matters at EU level.24 The capital question regarding the end of the pillar division is the future applicability of the Data Protection Directive: for its regime to be generally applied, its explicit exemption of public security, defence, state security and criminal law would need to be repealed. This would be the best way forward according to the EDPS (EDPS 2007d). The Intergovernmental Conference preparing the Reform Treaty has in any case imposed the duty to consider the specific applicability of provisions related to data protection in police and judicial cooperation in criminal matters fields in certain member states and to elaborate a declaration on the subject (Council of the EU 2007, 20). In the meantime, a proposal for a Council framework decision on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters is precisely being discussed at Council level.25 It is not the first time that the Council examines a set of rules aiming to provide uniformity and consistency to data protection in the third pillar. The proposal initially seemed extraordinarily timely, as it was proposed as a key element of the development of the “principle of availability” (according to which the third pillar information that is available to certain authorities in a member state must also be provided to equivalent authorities in other member states) and implementing availability amongst divergent data protection provisions seemed to be an extremely complex challenge. Discussions on the “principle of availability” were however eventually set aside, while negotiations on the proposed framework decision on data protection went on, and on. The debate surrounding the text has confirmed that third pillar data protection is a question of paramount concern

23 See Art. 8 (3) of the Charter of Fundamental Rights of the European Union: “Compliance with these rules shall be subject to control by an independent authority.” 24 One of the possibilities identified is the EDPS taking over all the responsibility (House of Lords, European Union Committee 2005). 25 The Commission submitted the proposal in October 2005.


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for the supervisory authorities community: very exceptionally, the EDPS has published three opinions on the issue.26 The first version of the proposal foresaw the extension of the monitoring tasks of national supervisory authorities to third pillar matters, on the one hand, and the creation of a “derivative” Working Party, similar to the Art. 29 WP, with advisory functions for the third pillar, on the other hand. The draft would have reproduced the system in place in the first pillar, although not exactly. Indeed, as the proposal excluded from its scope data processing by Europol, Eurojust and CIS, it would have left the design of their JSAs untouched, multiplying the number of “derivative” bodies active in the third pillar. Later versions of the draft do cover data processing by Europol, Eurojust and CIS and envision the disappearance of current JSAs, which should be “combined” into a single EU third pillar supervisory authority that could, where appropriate, act in an advisory capacity. This innovation can be seen as a positive reaction to the demands for a joint forum for the third pillar voiced out by supervisory authorities, although it has been unexpectedly criticized by the EDPS, as he recognized that “the intention to set up such an authority may seem logical” but added that “at the moment there is no need for such a new supervisory body” (EDPS 2007). What could be the outcome of the discussions on the framework decision on the third pillar data protection? If approved, will it function as the third pillar equivalent of the Data Protection Directive, or will it play the role of lex specialis in the trans-pillar frame of the Reform Treaty? The management of those uncertainties ought to take into account still another contingency, related to the fact that some member states, while ignoring the “principle of availability,” choose to go on promoting third pillar exchanges of information through other, more institutionally innovative, means. The Prüm Treaty,27 signed in May 2005 by seven member states, provides indeed for a system of exchange of data such as DNA and fingerprints from national databases. Its transposition at EU level was encouraged by the German presidency with the idea that the Treaty includes a “comprehensive range of modern data protection regulations” (German 2007 EU Presidency 2007, 2), even if not everybody agreed. The EDPS manifested his discontent both with the process leading to the Prüm Treaty, in which he could not participate, and with its content. In his opinion on the initiative to integrate at EU level the “third pillar” provisions of the Prüm Treaty (EDPS 2007b), he stressed that the provisions adopted in Prüm should not be “transposed” at EU level without previous adoption of a consistent third pillar data protection. The European Data Protection Authorities have also issued a specific opinion on the 26 The first one in December 2005 (EDPS 2005); the second one in November 2006 (EDPS 2006c); the third one in April 2007 (EDPS 2007c). 27 Convention between the Kingdom of Belgium, the Federal Republic of Germany, the Kingdom of Spain, the French Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands and the Republic of Austria on the stepping up of crossborder cooperation, particularly in combating terrorism, cross-border crime and illegal immigration, Prüm, 27 May 2005 (generally referred to as “the Prüm Treaty” or “the Prüm Convention”).

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Prüm Treaty (European Data Protection Authorities 2006), where they eminently expressed their demands concerning the institutionalization of cooperation of supervisory authorities and the enhancement of their advisory role. We will now screen EU criminal law, where the boundaries between first and third pillar have also been the subject of much controversy.

Criminal Law Criminal Law Governance and the Pillar Division Institutional practice Since it was unclear whether measures containing criminal law aspects could be adopted on a first pillar legal basis, it had been common practice to simultaneously draft two parallel measures: a first measure adopted in the framework of the first pillar, and a “criminal law annex” adopted as a third pillar instrument. This practice can be illustrated in the domain of the fight against the aiding of illegal immigration and human trafficking. In 2002 a first pillar measure—a directive—has been issued containing certain rules aiming at combating the aiding of illegal immigration (Council 2002a). Directive 2002/90/ EC obliges the member states to impose “effective, proportionate and dissuasive sanctions” on certain actions/activities, but does not oblige the member states to impose criminal sanctions. In order to do so, the Council adopted framework decision 2002/946/JHA on the strengthening of the penal framework to prevent the facilitation of unauthorized entry, transit and residence (Council 2002b), which “supplements” directive 2002/90/EC. Case C-176/03 Case C-176/0328 concerns criminal law governance; it opposed the Commission to the Council on the question whether a measure containing obligations for member states to criminalize certain acts and to adopt fixed penalties should be adopted under the first or the third pillar. In 2001 the Commission proposed a directive on the protection of the environment through criminal law (Commission 2001a). However, the Council refused to adopt this proposal, arguing that Article 175 EC Treaty did not provide for such an EC competence and adopted instead framework decision 2003/80/JHA (Council 2003). In April 2003 the Commission introduced an action for annulment of framework decision 2003/80/JHA before the European Court of Justice.29 The Court’s reasoning, leading to the annulment of framework decision 2003/80/JHA, can be summarized as follows. Firstly, the Court reminds that according to Article 47 and 29 EU Treaty nothing in the EU Treaty is to affect the

28 Case C-176/03, Commission v Council (2005) ECR I-7879. 29 A similar case, the so called ship-source pollution case, Case C-440/05, has been decided by the ECJ on 23 October 2007. On 28 June 2007 Advocate General Mazák presented his opinion in this case.


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EC Treaty.30 Secondly, the Court examines the proper legal ground for framework decision 2003/80/JHA, applying its classic jurisprudence of the first pillar to a third pillar instrument. Having examined the aim and content of framework decision 2003/80/JHA, the Court concludes that its “main purpose” is “the protection of the environment.” Thirdly, the Court reckons that the relevant articles of framework decision 2003/80/JHA “do indeed entail partial harmonization of the criminal laws of the Member States.” However, after stating that “[a]s a general rule, neither criminal law nor the rules of criminal procedure fall within the Community’s competence,” the Court rules that this does not prevent the Community legislature, when the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences, from taking measures which relate to the criminal law of the Member States which it considers necessary in order to ensure that the rules which it lays down on environmental protection are fully effective.

The Court’s judgment has been labelled as revolutionary, although its exact conditions, scope and implications remain unclear.31 However, it is undeniable that since Case C-176/03 at least some measures containing member states obligations to criminalize certain acts and to adopt criminal sanctions can be taken under the first pillar, when two conditions are fulfilled: (i) the application of effective, proportionate and dissuasive criminal penalties is an essential measure and (ii) these measures are necessary to ensure that the EC rules are fully effective. When these conditions are fulfilled, the competence to take criminal law measures is no longer the exclusive privilege of the third pillar. It is the task of the EC legislator to judge the essential character of the need to impose measures concerning the member states’ criminal law and the necessity of these measures to ensure the full effectiveness of the rules adopted.32 From the perspective of the theory of reflexive governance, the learning mechanisms which assist the EC legislator to shape this judgment (ex ante) and, if appropriate,

30 It should be noted that the legal consequences flowing from Article 47 EU Treaty have been extensively examined by the Advocate General Mazák in his opinion on Case C-440/05 (points 45–62). According to the Advocate General, Article 47 EU Treaty “establishes the ‘primacy’ of Community law or, more particularly, the primacy of Community action under the EC Treaty over activities undertaken on the basis of Title V or Title VI of the EU Treaty, in that the Council and, as the case may be, the other institutions of the Union must act on the basis of the EC Treaty if and in so far as it provides an appropriate legal basis for the purposes of the action envisaged” (point 53). 31 In the aftermath of Case C-176/03 an interesting inter-institutional dialogue took place, the Council, the European Parliament and the Commission each issuing its interpretation of the Court’s judgment (European Commission 2005; European Council 2006a and 2006b; European Parliament 2006). 32 The conclusions of Advocate General Mazák in Case C-440/05 ascertains the imprecise nature of the criterion of necessity as a conceptual flaw of case C-176/03 (points 115-119).

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to revise this policy (ex post) must be explored. This question will be tackled by examining the new proposal for a directive on the protection of the environment through criminal law. Before entering this question, it should be accentuated, however, that Article III-271 (2) of the Constitutional Treaty explicitly wanted to set up a EU competence to issue minimum rules with regard to the definition of criminal offences and sanctions under the condition that “the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures” (Intergovernmental Conference 2004). This proposal for a EU competence has been maintained by the 2007 IGC Mandate for a EU Reform Treaty. If this EU competence should be adopted, it would be the constitutional embedment of Case C-176/03. A new proposal for a directive on the protection of the environment through criminal law In 2007 the Commission presented a new proposal for a directive on the protection of the environment through criminal law (Commission 2007), which only mentions that different interested parties in the field of environmental crime have been consulted. As to the collection and use of expertise, a number of workshops, conferences and expert meetings have been held. The impact assessment study (Commission 2007b) accompanying this proposal is more extensive on the consultation of the interested parties and the studies that have been conducted33 and in the way these studies have helped to shape the new proposal.34 Once the proposed directive being transposed by the member states, it is essential for the EC legislator to dispose of learning mechanisms in order to evaluate or monitor the national transposition and implementation measures. These mechanisms provide a possibility for the EC legislator to learn about the difficulties encountered by the member states and could eventually provide an impetus to revise its policy. The proposed directive’s impact assessment study reveals that in a first phase the Commission will assess whether transposition measures have been taken by the member states in order to comply with the proposed Directive.35 The member states’ obligation to inform the Commission about their transposition measures is in fact a tool to monitor the legal obligation

33 European Commission 2007b, 22–23. 34 For example, when the impact assessment study discusses the inefficient sanctions at member state level, it refers to two case studies (European Commission 2007b, 14–18). The Commission concludes that there are large differences in member states’ legislation as to which behaviors damaging the environment are considered criminal and large differences in the levels of sanctions. It is striking that, although the Commission wants to establish the insufficiency of the sanctions existing at the member state level, it only refers to the legal provisions providing for that fine, and not to the way these are applied in practice. It is also not clear how one can deduce from the fact that there are large differences between the levels of sanctions that these sanctions are therefore insufficient. 35 See article 9 (1) of the proposed directive.


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of the member states to transpose directives in the national legal orders. In a second step, member states have to submit every three years a report to the Commission on the implementation of the directive. Based upon this information, the Commission will produce regular reports “aiming to evaluate how the directive is being applied in the Member States and to identify possible problems of implementation or the need for amendments to the directive,” an obligation clearly intended to go further than a mere tool to monitor the member states’ obligation to transpose. Thirdly, the impact assessment study mentions equally that the Commission will work towards comparable and reliable statistics on environmental crimes in the member states. Finally, article 9 (2) obliges the member states to communicate the text of the main provisions of national law adopted in the field covered by the proposed directive. Even though it is unclear how “the field covered by the proposed Directive” should be circumscribed, it supposedly intends to impose on the member states an extensive reporting obligation, including not only the necessary national measures to comply with the proposed directive, but also those national measures adopted in the field covered by the proposed directive. These mechanisms—if properly executed—constitute important learning tools which could stimulate the EC legislator to revise its policy in light of the criteria established by the Court in Case C-176/03. Learning mechanisms in the third pillar criminal law governance Learning mechanisms in framework decisions Since the Amsterdam Treaty it has become a common practice to introduce in framework decisions some obligation for the member states to report national transposition measures. Although this reporting obligation is not designed for learning purposes,36 it has the potential to stimulate learning. An example is article 9 (2) of framework decision 2002/946/ JHA (Council 2002b), imposing a member states obligation to transmit to the Council and to the Commission the text of the national transposition measures. The same paragraph holds that the Council will “assess the extent to which the Member States have complied with the provisions of this Framework Decision.” In December 2006 the Commission published its report based on Article 9 (2) (Commission 2006a), hereby offering an overview of the “evaluation criteria.” This overview, based upon the Court’s case law concerning directives, is highly revealing: the Commission assesses whether the member states have taken timely clear, precise and binding transposition measures. These evaluation criteria are directed at assessing whether member states have fulfilled their legal obligation to transpose this particular framework decision, and do not allow the assessment of the difficulties encountered when applying the transposition measures, or whether the aim pursued by the framework decision is attained in practice. Moreover, the Commission indicates that the assessments are based on incomplete information. Based on incomplete information and limited to the assessment of 36 The reporting obligation is above all a mechanism or tool to control the member state’s transposition obligation, even though there is no infringement procedure in the framework of the third pillar (De Biolley 2005; De Biolley and Weyembergh 2006).

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the legal transposition measures, this mechanism is rather poor from a reflexive governance point of view. Learning by peer evaluation Certain areas of EU criminal law have seen the introduction of a mechanism of “peer evaluation,” where member states evaluate each other, providing an opportunity to learn from each other. In the area of the fight against organized crime, joint action 97/827/JHA (Council 1997)37 provides an example of a peer-to-peer evaluation mechanism “of the application and implementation at national level of Union and other international acts and instruments in criminal matters, of the resulting legislation and practices at national level and of international cooperation actions in the fight against organized crime in the Member States,” article 1 (1). The evaluation scope includes not only national legal rules but also “practices,” clearly going beyond the issue of member states compliance with transposition obligations. The evaluation mechanism38 results in reports, drawn up by the evaluation team, and submitted, finally, to the Council, which may address any recommendations to the member state concerned and may invite it to report back to the Council on the progress it has made. At the end of a complete evaluation exercise, the Council takes “the appropriate measures.” The reports drawn up are confidential, but the evaluated member state may publish the report on its own responsibility. The learning potentiality of this peer evaluation mechanism is seriously hampered by the secret or restricted nature of the reports. The reports being sent to the Council, the Council may however, if it should come to the conclusion that the evaluated national measures or policies necessitate an EU intervention, develop an EU policy, taking into account the results of the evaluation exercise (or, on the contrary, abstain to intervene). Learning by stakeholder participation: the example of the European Crime Prevention Network A 2001 Council decision (Council 2001b)39 founded a European Crime Prevention Network (EUCPN), consisting of national contact points and a contact point designated by the Commission. The EUCPN has a double goal: developing the various aspects of crime prevention at Union level and supporting crime prevention activities at local and national level. Council decision 2001/427/JHA describes in detail the EUCPN’s tasks, which include the organization of cooperation, contacts and exchanges of information and experience between member states, as well as between member states and the EU and other groups of experts and networks specializing in crime prevention matters; the collection and analysis of information on existing crime prevention

37 A similar example, in the area of the fight against terrorism, can be found in Council decision 2002/996/JHA (European Council 2002c). 38 See articles 2–9 of joint action 97/827/JHA for the details of the evaluation procedure. 39 See also http://www.eucpn.org/index.asp.


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activities, on best practices,40 and on data on criminality and on its development in the member states, in order to contribute to consideration of future national and European decisions, whereby the EUPCN shall assist the Council and the member states with questionnaires on crime and crime prevention; providing expertise to the Council and to the Commission in all matters concerning crime prevention. The EUCPN is therefore essentially designed to collect and evaluate experiences, existing activities, best practices and data on crime prevention. Those elements will not only be exchanged horizontally—between member states—but also vertically—between the EU and the member state level. Moreover, this horizontal and vertical mutual learning is explicitly intended to have a (possible) normative impact: the mutual learning is designed to give guidance to the Council and the Commission. Proposed learning mechanism The Constitutional Treaty introduced in its article III-260 the possibility for the Council to adopt on a proposal from the Commission, (…) European regulations or decisions laying down the arrangements whereby Member States, in collaboration with the Commission, conduct objective and impartial evaluation of the implementation of the Union policies referred to in this Chapter [IV, i.e. Area of freedom, security and justice] by Member States’ authorities, in particular in order to facilitate full application of the principle of mutual recognition. The European Parliament and national Parliaments shall be informed of the content and results of the evaluation. (Intergovernmental Conference 2004)

The 2007 IGC Mandate for a EU Reform Treaty preserves entirely this possibility, which clearly reveals the political desire and determination to institute into the body of EU primary law a mechanism enabling the objective and impartial evaluation of the Union policies in the area of freedom, security and justice. The European Council already stated in its Hague Programme that [e]valuation of the implementation as well as the effects of all measures is (…) essential to the effectiveness of Union action. […] Their goal should be to address the functioning of the measure and to suggest solutions for problems encountered in its implementation and/or application. The Commission should prepare a yearly evaluation report of measures to be submitted to the Council and to inform the European Parliament and the national parliaments. (European Council 2004)

In June 2006 the Commission presented its communication concerning the evaluation of EU policies on freedom, security and justice (Commission 2006b; Commission 2006c) and, summarizing the Hague’s concept of “evaluation,” it stressed that it aims among others at (i) further improving the way policies, 40 See the EUCPN’s document containing a methodology for assessing good practice projects and initiatives at http://www.eucpn.org/keydocs/Good%20practice%20 Methodology.pdf.

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programmes and instruments are set up by identifying problems and obstacles encountered when implementing them, (ii) favoring learning and exchanges of good practices and (iii) participating in developing an evaluation culture across the Union. According to the Commission, evaluation must include the monitoring of the implementation and the evaluation of the results of the policies,41 and it “should improve policy-making, by promoting systematic feedback of evaluation results into the decision-making process” (Commission 2006b, 3 no. 7). More concretely, the Commission proposes an evaluation mechanism consisting of three steps: an information gathering and sharing step,42 a reporting mechanism step,43 and an in-depth strategic evaluation step.44 By enhancing and disseminating the evaluation results, the Commission aspires “to foster actual use of the results at the decision-making level” (Commission 2006b, 7 no. 22).

Conclusion We shall first evaluate the elements highlighted in our analysis of EU data protection. It has been noted that data protection law as currently configured at EU level is extremely particular: it foresees the existence of a specific authority whose function is to ensure the right itself. By doing so, the fundamental right to data protection places supervision at its core and it ensures that constant attention is given to governance issues. Supervisory authorities have a clear perception of their need to reflect on the rules that determine their own existence and their own

41 The Commission makes a clear distinction between “monitoring implementation” and “evaluation of policies.” The former consists of reviewing the progress of the transposition/implementation of EU measures, the latter aims at judging the concrete results and impacts of policies. 42 The gathering and the sharing of information will be based on “fact sheets”—one per policy area—that have to be filled in by the member states’ competent authorities. Also, the relevant stakeholders and civil society will be consulted. The fact sheets indicate (i) the overall policy objective and (ii) the main instruments contributing to the attainment of this objective (legislative, non legislative and financial), in order to have a clear overview of the achievements. The fact sheets will give indicators for each policy, the indicators being linked with the overall objective of the policy area. 43 In this second step, the Commission will, on the basis of the fact sheets and the consultation by the stakeholders, draw an “evaluation report,” where the obtained information is analyzed and also containing “political recommendations.” 44 After further consultation, “in-depth strategic policy evaluation” can be conducted in selected policy areas, with the aim to produce “useful and timely information as inputs for political decisions in each policy area, as appropriate.” According to the Commission, such strategic evaluations provide an added value in (i) focusing on policies rather than individual instruments, (ii) analysing the coherence of different instruments within a given policy, (iii) investigating how a certain policy contributes to the overall objective of establishing an area of freedom, security and justice, (iv) determining the overall rate of achievement of that general objective, and (v) assessment of an overarching objective in the field of freedom, security and justice (Commission 2006b, 9 no. 33).


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working conditions. Even if the actual involvement of supervisory authorities in governance at member state level can vary greatly depending on national governmental practices,45 through their autonomous networks and through the EU institutionalized Art. 29 WP they have frequently expressed their multiple and increasingly intense EU governance concerns. The possibility of representatives from supervisory authorities influencing governance at an EU level can raise questions concerning the legitimacy of such power and, indeed, it already has.46 In this sense, the real independence of supervisory authorities is a key factor for the legitimacy of the whole EU data protection system, and the Commission’s acknowledgment of the importance of such independence (Commission 2007c, 5) is highly important. The Art. 29 WP has been a catalyst for directing national supervisory authorities’ interest on governance to EU level, although it is not the only mechanism promoting both horizontal and vertical learning in the field, as participation in the JSAs has also lead to the internalization in the supervisory authorities of EU-perspective concerns. Nor is it a perfectly functioning mechanism: it has revealed itself inefficient to tackle issues directly involving its own members, such as the mentioned key issue of the independence of supervisory authorities. If the Art. 29 WP is a unique mechanism in the EU governance landscape, the EDPS is no less innovative. Its “semi-derivative” composition, its “pivotal” nature and its “experimentalist” approach configure the EDPS as a privileged actor for the transfer of knowledge between actors and sectors, and even possibly to non-EU institutions.47 Its contribution to data protection supervision is expected to be especially useful for the development of SIS II and Visa Information System (VIS) databases, whose complex architectures require similarly elaborate supervision. Regarding the eventual set-up of any new data protection body, it appears particularly relevant to consider carefully the “derivative” or “non-derivative” dimension of any eventual new body and the consequences this choice could imply. Its institutional relations (of coordination, integration or cooperation) with the Art. 29 WP and the EDPS need unavoidably be re-examined and reflected upon beforehand, particularly in light of a long-awaited but not yet guaranteed collapse of the pillar division. In a wider perspective, it will be noted that the “external” supervision as provided by supervisory authorities is no longer the only established supervisory practice at EU level. “Internal” supervision, represented by the DPOs model, might be an interesting alternative or complement to explore, and it is indeed being

45 Notable differences between member states exist (House of Lords, European Union Committee 2007, 37). 46 “… the question whether the world’s commissioners can and should take a stand on public issues on the agendas of political and governmental forums has itself been contentious” (Bennet and Raab 2006, 145). 47 Interpol has a Commission for the Control of Interpol Files (CCF), currently chaired by Mr Hustinx, the European Data Protection Supervisor.

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imported to the third pillar, with the encouragement of the EDPS.48 Conceptually, it could contribute to overcoming the recurrent positioning of data protection as a right against which other policies are balanced and implemented. In practical terms, it can be highly instrumental in raising awareness of data protection concerns in the data controllers themselves.49 Real independence is nevertheless also a key factor both for their effectiveness and legitimacy of DPOs. Concerning criminal law, it must be recalled that the constitutional boundary for criminal law in the framework of the third pillar is determined by the EUTreaty itself. According to Art. 29 EU Treaty, it is one of the Union’s objectives “to provide citizens with a high level of safety within an area of freedom, security and justice” and this objective must be attained, amongst others, through “approximation, where necessary, of rules on criminal matters in the Member States.” The area of freedom, security and justice is nevertheless a very vague notion. Reflexive governance techniques should precisely contribute to the understanding and definition of this notion. As we have seen, mechanisms established to monitor the legal transposition of EU framework decision measures might be considered a poor learning technique. Peer evaluation mechanisms have a greater potential to contribute to the common understanding of the area of freedom, security and justice, but this potential is seriously hampered by the secret nature of the reports following from the evaluation exercises. The EUCPN model is perhaps the most promising mechanism to come to a common understanding of the area of freedom, security and justice, and of the role EU criminal law can (or cannot) play within this area: the network is not designed to measure member state compliance with predefined measures, but to have a possible normative impact, both at the EU and the member state level, based on an evaluation of experiences, existing crime prevention activities, best practices and data on crime prevention. It seems appropriate to conclude that the implementation of reflexive mechanisms in the third pillar might follow two main paths. Firstly, there can be a transfer of reflexive mechanisms from the first pillar, provided similar enabling conditions are met and that any partial problems are adequately addressed. An example of this possibility would be the creation of an enhanced data protection forum for the third pillar inspired in the Art. 29 WP model. Secondly, there is also the promising possibility of exploring the specificity of the third pillar to design new specific reflexive mechanisms: configuring new tools of evaluation or promoting the functioning of specific networks illustrate this trend. Identifying reflexive mechanisms able to cope with inter-pillar instabilities might be a more difficult challenge.

48 Europol has currently a non-officially recognized DPO, which should probably be recognized in the near future (EDPS 2007a). 49 In this sense, they respond to a similar aim as the privacy impact assessments (PIAs), compulsory in some third countries (Canada, for instance).


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Law and Policy


Chapter 9

The Competence Question: The European Community and Criminal Law Valsamis Mitsilegas

The question of the existence and extent of Community competence in criminal matters has been the subject of long-standing debate. The Treaty establishing the European Community, TEC, (from its first version in the 1950s to the present day) does not contain provisions expressly attributing to the Community competence in criminal matters—in particular competence to define criminal offences and set criminal sanctions. This silence has led to opposing views regarding the existence of Community competence on the field of criminal offences and sanctions. Those in favor of the existence of Community competence have been arguing that criminal law should not be distinguished from other fields of law and that the Community should have powers to impose criminal offences and sanctions in order to safeguard the integrity of the Community legal order. Those more sceptical argue that the criminal law is a special case, since it is inextricably linked with state sovereignty—any conferral of competence in criminal matters by member states to the Community must be express in the Treaties (see Mitsilegas 2006a; Wasmeier and Thwaites 2004). These views were reflected in the attitude of EU institutions when asked to adopt measures defining criminal offences and sanctions before, and in particular after, the introduction of the third pillar in the EU constitutional framework by the Maastricht Treaty. The European Commission has been making consistent efforts to establish Community criminal law competence in this context, by tabling first pillar proposals defining criminal offences and imposing criminal sanctions. However, until recently, none of these proposals survived Council negotiations, being met with the resistance by member states to accept express criminal law competence for the Community. The outcome of such clashes has been: first pillar instruments where conduct has been “prohibited” but not criminalized (see the first, pre-Maastricht money laundering directive of 1991, and the subsequent second and third money laundering directives); a combination, after Maastricht, of first pillar instruments defining certain conduct and parallel third pillar instruments criminalizing such conduct (see the directive and framework decision on facilitation of unauthorized entry and ship-source pollution); the adoption of third pillar instead of the (originally proposed by the Commission) first pillar


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instruments (see the framework decision on environmental crime); and the nonadoption by the Council of first pillar proposals by the Commission (see the 2001 proposal for a fraud directive) (see Mitsilegas 2006a; Vervaele 2006). Traditionally, the European Court of Justice (while accepting that Community law may have an impact on national criminal law) had not given any express indication regarding the Community competence to adopt criminal offences and sanctions. However, things changed significantly by the recent Court ruling in the so-called environmental crime case (involving the framework decision on environmental crime mentioned above), where the Court looked at the possibility of adopting criminal law on offences and sanctions in the first pillar. This chapter will focus on the impact of this judgment on the Community competence in criminal matters. The content of the judgment will be analysed, and the reactions of the institutions and member states will be highlighted. The analysis will also take into account recent judicial developments in the EU (on the ship-source pollution case which deals with a subject-matter very much similar to the environmental crime case) and explore the potential consequences of the Reform Treaty on the competence of the Community/Union in defining criminal offences and imposing criminal sanctions.

The Environmental Crime Case1 The European Commission decided to react to the Council’s choice to adopt criminal legislation in matters deemed to be related to the achievement of Community objectives by challenging the legality of the adoption of the relevant third pillar law. This has thus far led to the intervention by the Court of Justice in a landmark judgment regarding the adoption of the framework decision on environmental crime, Case C-176/03, Commission v. Council, 13 September 2005, a ruling with major implications for EU criminal and constitutional law (for case commentaries see inter alia Tobler 2006; White 2006; see also Labayle 2006). The parties and intervenants in the case rehearsed to a great extent the two diametrically opposed views on the existence of Community competence in criminal matters. The Commission (supported by the European Parliament), argued that the framework decision should be annulled: it should have been adopted under the first pillar, as the protection of the environment is a first pillar objective. The Commission argued that the Community has competence to prescribe criminal penalties for infringements of Community environmental protection legislation if it takes the view that that is a necessary means of ensuring that the legislation is effective—with the harmonization of national criminal law being designed to be an aid to the Community policy in question.2 The Commission also supported first pillar criminal law competence in this context on

1 2

This section is based on the relevant part of Mitsilegas 2006a, op. cit. Paragraph 19 of the judgment.

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the basis of member states’ duty of loyal cooperation and the general principles of effectiveness and equivalence.3 The Council, supported by no fewer than 11 member states,4 opposed this view. The Council and the vast majority of the member states5 argued that as the law currently stands, the Community does not have power to require member states to impose criminal penalties in respect of the conduct covered by the framework decision.6 Not only is there no express conferral of power in that regard, but, given the considerable significance of criminal law for the sovereignty of member states, there are no grounds for accepting that this power can have been implicitly transferred to the Community at the time where substantive competences, such as those exercised under article 175 TEC, were conferred on it.7 Moreover, articles 135 TEC and 280 TEC, which expressly reserve to the member states the application of national criminal law and the administration of justice, confirm that interpretation, which is also borne out by the fact that the Treaty on European Union (TEU) devotes a specific title to judicial cooperation in criminal matters, which expressly confers on the European Union competence in criminal matters.8 Finally, the Council argued, the Court has never obliged member states to adopt criminal penalties and legislative practice is in keeping with that interpretation.9 In a landmark ruling, the Court annulled the framework decision. The Court began its findings by an examination of the implications of article 47 TEU for the inter-pillar balance concerning the issue in question. It noted that article 47 TEU (and article 29 TEU) dictate that nothing in the TEU is to affect the EC Treaty,10 adding that it is the task of the Court to ensure that third pillar acts do not encroach upon the powers conferred by the EC Treaty on the Community.11 The Court then focused on the protection of the environment as a Community objective and noted that environmental protection constitutes one of the essential objectives of the Community.12 The Court reiterated its case-law according to which the choice of legal basis must rest on objective factors which are amenable to judicial review, including in particular the aim and the content of the measure

3 Paragraph 20. 4 Denmark, Germany, Greece, Spain, France, Ireland, the Netherlands, Portugal, Finland, Sweden and the United Kingdom. This demonstrates the sensitivity that member states (and indeed “old” member states in this case) have towards extending Community competence to criminal law. 5 With the exception of the Netherlands who supported the Council but via a different reasoning. 6 Paragraph 26. 7 Paragraph 27. 8 Paragraphs 28 and 29. 9 Paragraphs 31 and 32. 10 Paragraph 38. 11 Paragraph 39. 12 Paragraph 41.

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and stated that the aim is the protection of the environment and the content particularly serious environmental offences.13 The essential character of environmental protection as a Community objective is crucial for determining whether criminal law can be used to achieve this objective in the Community pillar. According to the Court, while as a general rule, neither criminal law nor the rules of criminal procedure fall within EC competence, this does not prevent the EC legislature, when the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences, from taking measures which relate to the criminal law of the member states which it considers necessary in order to ensure that the rules which it lays down on environmental protection are fully effective.14 The Court found that articles 1 to 7 of the framework decision (which relate to the environmental crime offences) have as their main purpose the protection of the environment and they could have been properly adopted on the basis of article 175 TEC.15 That finding is not called into question by the existence of articles 135 TEC and 280 (4) TEC.16 However, the Court added that although articles 1–7 of the framework decision determine that certain conduct which is particularly detrimental to the environment is to be criminal, they leave to the member states the choice of the criminal penalties to apply (although these must be effective, proportionate and dissuasive).17 This is a seminal ruling from the Court, which for the first time conferred expressly competence to the Community to adopt measures in the criminal law field. The emphasis of the Court to the effectiveness of Community law and the achievement of Community objectives is striking. Criminal law is viewed as a means to an end, rather as a special field of law where special rules must apply, and falls within Community competence, like any other field of law, if Community objectives are at stake (Mitsilegas 2006a, 307). Beyond establishing Community competence however, the judgment did not provide a precise delimitation of the scope of Community law competence in criminal matters, with a number of issues remaining unclear. As I have noted elsewhere, it is not clear whether the judgment has established in principle that the Community may, under certain circumstances, have competence in the field of criminal law in general, or that it is limited to environmental crime only. While the second case is highly unlikely, questions regarding the extent and scope of Community competence in criminal matters still remain. In particular, it is not clear whether Community 13 Paragraphs 45–47. 14 Paragraphs 47–48. 15 Paragraph 51. 16 Paragraph 52. The Court added that it is not possible to infer from those provisions that, for the purposes of the implementation of environmental policy, any harmonization of criminal law, even as limited as that resulting from the framework decision, must be ruled out even where it is necessary in order to ensure the effectiveness of Community law. 17 Paragraph 49.


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competence in criminal law is limited to the definition of criminal offenses or extends also to the imposition and precise definition of criminal sanctions. The Court mentions that, while the annulled framework decision criminalises conduct which is particularly detrimental to the environment, it leaves to the member states the choice of the criminal penalties to apply. It is not clear however if this means that the Community is granted powers to criminalise only or also to impose criminal sanctions, at least in the environmental crime field. It seems paradoxical however—and potentially incoherent— to confer competence to define criminal offenses and impose the criminalisation of certain types of conduct but leave the choice of the sanctions to member states, as sanctions would inevitably be criminal. Moreover, the imposition of a criminalisation requirement to member states in the first place (which, under the qualified majority voting arrangements of the first pillar may be outvoted in such a measure) arguably constitutes a greater challenge to State sovereignty and the exercise of power in the criminal law sphere than the dictation of the imposition of specific criminal sanctions. (Mitsilegas 2006a, 307–8)18

Reactions to the Court’s Judgment on Environmental Crime Shortly after the environmental crime judgment, the Commission published a communication arguing for a recasting of a number of existing EU measures and proposals, while also stating that it would apply the Court’s test in future legislative proposals it would table (Commission 2005). The Commission interpreted the Court’s ruling broadly, arguing that from the point of view of subject matter, in addition to environmental protection the Court’s reasoning can therefore be applied to all Community policies and freedoms which involve binding legislation with which criminal penalties should be associated in order to ensure their effectiveness. (Commission 2005, para. 8)

According to the Commission, the Court’s ruling clarified that criminal law provisions required for the effective implementation of Community law are a matter for the first pillar, bringing measures adopted under a dual legal basis in both first/third pillars to an end—with the Commission proposing a quick procedure of recasting existing texts it deems affected by the environmental crime judgment; third pillar legislation would only cover measures related to police and judicial cooperation in criminal matters more broadly (Commission 2005, para. 11). The instruments which according to the Commission were candidates for recasting can be found in the annex to the communication and include most categories of failed Commission first pillar action in criminal law referred to in the introduction: parallel first/third pillar instruments such as those on the facilitation of unauthorized entry, transit and residence; measures adopted in the third pillar (obviously the environmental crime instrument); and measures which had not

18 A further issue which is unclear is whether EC competence extends only to the achievement of essential Community objectives and if yes, what constitutes such an objective.

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been adopted (such as the fraud directive). However, the reaction by member states to the Commission communication has been rather sceptical, with the February 2006 Justice and Home Affairs Council adopting only a procedure for the examination of future Commission legislative proposals containing provisions on criminal law.19 The Commission sought to enhance further the Community’s competence in criminal matters by putting forward in 2006—and against the backdrop of the “freezing” of the ratification process of the Constitutional Treaty a proposal for moving third pillar matters to the first pillar by using the so-called “passerelle” provision of article 42 TEU.20 However, member states again appeared rather sceptical to the Commission’s initiative—by the end of 2006 the debate was deemed to be concluded against the use of article 42 TEU.21 Following its Communication reacting to the Court’s environmental crime ruling, and notwithstanding the cautious reaction by the Council and the passerelle setback, the Commission tabled three major first pillar proposals involving Community action on the definition of criminal offences and the imposition of criminal sanctions—all of which are currently under negotiation. These are: •

•

A directive on criminal measures aimed at the enforcement of intellectual property rights.22 The legal basis of the proposal is article 95 TEC (on the internal market) and contains not only detailed provisions on criminal sanctions, but also provisions on confiscation, joint investigation teams and the initiation of criminal proceedings23—something that constitutes a very broad interpretation of the scope of Community competence and which arguably falls outside Community criminal law competence as defined by the Court; a directive on the protection of the environment through criminal law.24 The proposal addresses specifically the Court’s ruling on environmental crime, with the Commission aiming at recasting the proposal in the light of its interpretation of the judgment. The legal basis of the proposal is article 175 (1) TEC on environmental protection. The proposal includes detailed definitions of offences and detailed provisions on criminal sanctions, both for natural

19 Doc. 6077/06 (Presse 38), 10. For a summary of reactions in the Council, see also Council doc. 13103/06, Brussels, 22 September 2006. 20 This states that “the Council, acting unanimously on the initiative of the Commission or a Member State, and after consulting the European Parliament, may decide that action in areas referred to in article 29 [the umbrella provision for the third pillar] shall fall under Title IV of the Treaty establishing the European Community, and at the same time determine the relevant voting conditions relating to it. It shall recommend the member states to adopt that decision in accordance with their respective constitutional requirements.” 21 See House of Lords European Union Committee, The Criminal Law Competence of the EC: Follow-up Report, 11th Report, session 2006–07, HL Paper 63. 22 COM (2006) 168 final, Brussels, 26 April 2006. 23 Articles 6–8 of the Commission proposal. 24 COM (2007) 51 final, Brussels 9 February 2007.


•

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and legal persons (but, unlike the intellectual property rights proposal, no provisions on criminal procedure); and a directive on sanctions against employers of illegally staying third-country nationals.25 The proposed legal basis is article 63 (3) (b) TEC (measures on illegal immigration and illegal residence). The main avenue of enforcement of employers’ duties under the directive appear to be administrative sanctions. However, the draft directive also provides for the criminalization of serious cases of non-compliance with its provisions and introduces criminal sanctions for such cases.26

In the light of the uncertainty as to the precise extent of Community criminal law competence following the Court’s judgment on the environmental crime case, it remains to be seen whether their final form and content will depart substantially from the Commission’s proposals. The debate has already been focusing on the content of some of these proposals, in particular the extent of criminalization and the levels of proposed criminal sanctions. It is also interesting to look at the legal bases of the proposals- the protection of the internal market and the environment, and action against illegal immigration- and link them with the relevant objectives of the Community in order to address the question on whether these objectives constitute “essential” objectives justifying the employment of Community criminal law for their achievement. These questions of competence, however, cannot be disassociated with questions of the necessity of criminalization and severity of the criminal sanction envisaged. On both the intellectual property rights27 and the employers’ sanctions proposals (see Carrera and Guild 2007), concerns have been raised regarding the suitability of the criminal law to regulate the matter. Criminalization may not always be necessary, but it may be used to strengthen the case—and create precedents—for a Community criminal law competence.

The Ship-Source Pollution Case Further clarification on the scope of Community criminal law competence has been expected from the Court of Justice on the ship-source pollution case. The case is very similar to the one on environmental crime, with the Commission challenging the validity of a framework decision on ship-source pollution, arguing that it should have been adopted under the first pillar. It is indicative of the constitutional significance of the case, and the strong views of member 25 COM (2007) 249 final, Brussels, 16 May 2007. 26 Ibid. articles 10–11. See also the specific provisions on the liability of legal persons in articles 12–13. 27 The Justice and Home Affairs Council of 5–6 October 2006 noted in this context that criminal law is considered as a means of last resort, and that further scrutiny is needed regarding the need for criminal measures on the EU level in order to protect intellectual property rights. Council doc. 13068/06 (Presse 258), 22.

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states in this context, that no fewer than 20 member states intervened against the Commission and in favor of the Council which argued that the third pillar legal basis was appropriate.28 The Opinion of the Advocate General The views of the parties can be found in the opinion of Advocate General Mazák.29 The Commission argued that articles 1 to 10 of the framework decision could have been adopted on the basis of article 80 (2) TEC relating to the Community common transport policy and that consequently, the entire framework decision (due to its indivisibility) infringes article 47 TEU.30 In a broad interpretation of the environmental crime judgment, the Commission is of the view that principles that the Court laid in its environmental crime judgment apply “in their entirety to other Community policies” such as the transport policy, arguing that the importance of environmental protection in the Community and its particular characteristics had in fact no decisive bearing on the environmental crime decision in principle.31 According to the Commission, the Community legislature may provide for criminal measures in so far as necessary to ensure the full effectiveness of Community rules and regulations. The Community is therefore according to the Commission competent to define the type and level of penalties if and in so far as it is established that this is necessary to ensure the full effectiveness of a Community policy.32 The Council on the other hand defended the choice of the third pillar instrument (supported by all intervening member states) and denied that criminal law measures should have been adopted in the first pillar under article 80 (2) TEC. The Council’s strategy was primarily to attempt to differentiate between the ship-source pollution and the environmental crime cases. According to the Council, it is undisputed article 80 (2) TEC (on transport) is the correct legal basis for the adoption of the first pillar directive, even if it also pursues objectives related to the environmental protection.33 The common transport policy lacks the specific characteristics and importance of environmental protection; moreover, the Community powers to act on transport matters depends on the decision of the Council.34 In the alternative, the Council argued that the provisions of the ship-source pollution framework decision differed from those of the third pillar measure on environmental crime in that they were more detailed in particular

28 Case C-440/05, Commission v. Council. 29 Opinion delivered on 28 June 2007. 30 Paragraph 27. A similar view was put forward by the European Parliament, which stressed the similarities with the environmental crime case and argued that the framework decision in question is also concerned with environmental protection (paragraphs 32–35). 31 Paragraph 28. 32 Ibid. 33 Paragraph 36. 34 Paragraph 38.


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with regard to the level and type of penalties to be imposed. These provisions could not have been adopted under the first pillar—if the environmental crime case were to be interpreted along the lines advocated by the Commission, Title VI of TEU would largely be deprived of practical effect.35 A similarly narrow interpretation of the environmental crime case was provided by the member states. In their view, the implied Community competence to legislate on criminal law matters is confined to measures which are “necessary” or (absolutely) “essential” for combating serious environmental offences—adding that such competence does not extend beyond the field of environmental protection to another common policy such as the transport policy at issue and in any event excludes harmonization of the type and level of penalties as laid down in the framework decision.36 Member states also put forward a number of arguments indicative of their broader concern of loss of sovereignty in criminal matters related to the principles of subsidiarity, attributed powers and proportionality; the particular nature and necessary coherence of criminal law; the margin of appreciation to be left for the member states; and the system set up by the Treaty on the European Union which would be undermined if the arguments of the Commission were upheld.37

Member states also argued that article 47 TEU is intended to lay down a clear delimitation of competences between the first and the third pillars but not to establish that the former has primacy over the latter.38 The Advocate General recommends that the ship-source pollution framework decision be annulled, as a number of its provisions (those pertaining to the criminalization of ship-source pollution but interestingly not those imposing specific penalties) could have been adopted in the first pillar under a transport legal basis.39 The reasoning behind this can broadly be divided into four broad themes: his interpretation of article 47 TEU in the context of the case; his interpretation of the contours of Community criminal law competence in the light of the debate post the environmental crime judgment of which objectives of the Community justify first pillar action in criminal matters; his interpretation of the precise scope of Community criminal law competence and in particular whether it includes the imposition of criminal sanctions; and his comments on the relationship between Community law and criminal law. The Advocate General started with a comment-response to member states’ views regarding the relationship between the first and the third pillar. He interpreted article 47 TEU in a manner affirming the importance of Community law, noting that article 47 TEU is not designed merely to ensure that nothing under the EU Treaty affects or runs counter to existing substantive provisions

35 36 37 38 39

Paragraph 39. Paragraph 41. Paragraph 42. Paragraph 43. Paragraphs 128–139.

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of Community law—it is intended rather also to preserve the powers conferred on the Community as such.40 The TEU “meant only to add” to the fields of Community activity.41 He categorically stated that Contrary to the view expressed by certain Governments, article 47 EU thus establishes the “primacy” of Community law or, more particularly, the primacy of Community action under the EC Treaty over activities undertaken on the basis of Title V or Title VI of the EU Treaty, in that the Council and, as the case may be, the other institutions of the Union must act on the basis of the EC Treaty if and in so far as it provides an appropriate legal basis for the purposes of the action envisaged.42

The Advocate General went on to examine specifically the relationship between criminal law and Community law. He noted that the Court’s ruling on environmental crime was qualitatively significant but not incomprehensible43— motivated fundamentally by the need to ensure the full effectiveness of Community law.44 The Advocate General then proceeded to examine the question of the nature of the Community objective whose attainment justifies Community action in criminal matters—in particular whether EC criminal law competence is limited to the protection of the environment. He interpreted Community competence broadly, starting from the premise that environmental protection is not the only essential objective or policy area of the Community and it is difficult to distinguish it on that account from the other Community objectives and activities referred to in articles 2 EC and 3 EC, such as the establishment of an internal market characterised by the fundamental freedoms, the common agricultural policy or the common rules on competition.45

According to the Advocate General, since criminal law is a barometer of the importance attached by a community to a legal good or value, to single out environmental protection in such a way would not do justice to the identity of the Community.46 Moreover, environmental protection is not the only “horizontal” Community matter—gender equality, non-discrimination or public health are further examples.47 Furthermore, the Advocate General held that it is not feasible to argue that competence should be limited to the area of the environment since it is a corollary of the effectiveness of Community law.48 To reserve competence in

40 Paragraph 50, emphasis added. According to the AG, that is confirmed by article 29(1) TEU which expressly provides that third pillar provisions are “without prejudice to the powers of the European Community” (paragraph 51). 41 Paragraph 55. 42 Paragraph 53. 43 Paragraph 77. 44 Paragraph 89. 45 Paragraph 94. 46 Paragraph 95. 47 Paragraph 96. 48 Paragraph 97.


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the field of environmental protection would thus be arbitrary; since Community competence in criminal matters is necessary to ensure the effectiveness of Community law, “it must in principle also exist in relation to any other Community policy area (such as transport), subject, of course, to the limits set by the Treaty provisions providing the substantive legal basis in question.”49 Using effectiveness, but also alluding to the special nature of criminal law, the Advocate General thus argues for the extension of Community criminal law competence not only to achieve any Community objective, but to ensure the effectiveness of all Community policy areas within the limits set out by the Treaty. He then went on to comment on the scope of Community criminal law competence, an issue that was also central in the environmental crime case. The Advocate General follows the Court’s approach in the latter case that while the Community is entitled to constrain member states to impose criminal penalties and to prescribe that they be effective, proportionate and dissuasive, but beyond that, it is not empowered to specify the penalties to be imposed.50 The Community does not have the power to impose criminal penalties itself, but rather the power to require member states to provide, within their respective penal systems, for certain forms of conduct to be classified as criminal offences as a means of upholding the Community legal order.51 The limits to the Community’s powers in this context are justified on the grounds of subsidiarity and preserving the coherence of the national penal systems.52 While having emphasized the foundation of Community criminal law competence on the need to ensure the effectiveness of Community law, the Advocate General concludes that part of his opinion with a discussion of the potential subordination of criminal law to the effectiveness of Community law.53 He accepts that effectiveness is an imprecise criterion on the basis of which to establish criminal law competence and does not encapsulate entirely the essence of criminal law.54 Having broadened Community competence in criminal matters by extending it potentially to any Community policy, he now tries to place some limits by stating that the necessity of Community criminal law does not stem only from the objective criterion of the existence of a legal basis in the EC Treaty, but also from a degree of judgment by the institutions involved.55 Moreover, the Advocate General accepts that it is not ideal for Community criminal law to be

49 Paragraph 99. However, the Advocate General further adds in a different part of the opinion that the Community has criminal law competence whenever criminal law measures are necessary to ensure the full effectiveness of Community law and essential to combat serious offences in a particular area, paragraph 112. 50 Paragraph 103. 51 Paragraph 104. 52 Paragraphs 108 and 106 respectively. 53 Paragraphs 114–121. On the issue of the subordination of criminal law to Community law see Mitsilegas 2008. 54 Paragraphs 105 and 108 respectively. 55 Paragraph 119.


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considered a mere accessory to the specific Community competences and only a single aspect of the policies involved.56 Advocate General Mazák was faced with the delicate task of balancing the fundamentally different views regarding the extent of Community criminal law competence. In this context, and in the light of the Court’s reasoning in the environmental crime judgment, he had to reconcile the demands of Community law with the special characteristics of criminal law, and to clarify the Court’s ruling in the light of the various competing interests, in particular the very strong reaction against the expansion of Community criminal law competence by an impressive number of member states. The result has been an opinion where, on many occasions, two separate and quite distinct narratives not only co-existed, but also merged: the narrative of the primacy and centrality of Community law and the need to ensure its effectiveness on the one hand; and the narrative of the special features of criminal law and its close link with national sovereignty and societal reality on the other. This symbiotic relationship has not always produced crystal-clear results. The opinion started with the unambiguous declaration of the primacy of the first over the third pillar in interpreting article 47 TEU, and continued in equally straightforward and bold fashion in accepting that the Community does have competence in criminal law—not only on environmental matters, as the Court ruled earlier, but on any Community policy within the limits set out by the Treaty. Effectiveness of Community law is used as a central justification for this view. However, the Community law reasoning is then coupled with argumentation based on the logic of (domestic) criminal law, in particular of the use of criminal law in order to protect “legal goods” or interests that a community merits being worthy of protection by the invasive criminal law mechanism. Applying this logic at Community level, it appears that such legal interests may include the effectiveness of any Community policy, which is deemed as an interest to be protected by criminal law at the national level equivalent to other protected interests (such as the protection of human life, property and so on. However, such an application may extend to an over-criminalization, with the expansion of Community criminal law competence leading potentially to the introduction of new, extended criminal offences and sanctions. The Advocate General tried to temper such expansion by stressing that along with the formal existence of competence there needs to be some level of political justification for such a choice. He also stressed, towards the end, the view that criminal law should not be viewed as subordinate to the various Community policies it seeks to enhance and that effectiveness does not always fit with criminal law. However, it is exactly the recourse to effectiveness which formed the background of his recommendation to annul the framework decision on ship-source pollution and to opt for a broad interpretation of the scope of Community criminal law competence.

56

Paragraph 120.


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The Court’s Ruling Like the Advocate General, the Court focused on article 47 TEU as a starting point affirming that it is its task to ensure that acts which, according to the Council, fall within the scope of Title VI do not encroach upon the powers conferred by the EC Treaty on the Community—the Court would thus have to look at whether the framework decision affected the Community’s competence on transport under article 80 (2) TEC.57 The Court noted first that the common transport policy is one of the foundations of the Community, with the latter having broad legislative powers under this article including powers in the field of maritime transport.58 The existence of the legislative competence conferred to the Community by article 80 (2) TEC is not dependent on a decision by the legislature to actually exercise this competence.59 Secondly, the Court linked Community transport policy with the objective of environmental protection. The latter is, according to the Court, one of the essential objectives of the Community which must, according to article 6 TEC “be integrated into the definition and implementation of […] Community policies and activities” including transport policy.60 The Court then examined the framework decision in this light, asserting that the latter’s provisions relate to conduct which “is likely to cause particularly serious environmental damage as a result, in this case, of the infringement of the Community rules on maritime safety.”61 According to the Court, it is also clear that the Council took the view that criminal penalties were necessary to ensure compliance with Community rules on maritime safety.62 In the light of these two considerations and the Court’s earlier ruling on the environmental crime case,63 the Court took the view that articles 2, 3 and 5 of the framework decision on ship-source pollution, which “are designed to ensure the efficacy of the rules adopted in the field of maritime safety, non-compliance with which may have serious environmental consequences, by requiring member states to apply criminal penalties to certain forms of conduct” are essentially aimed at improving maritime safety as well as environmental protection and could have been validly adopted on the basis of article 80 (2) TEC.64 However, the Court noted that Community competence in the field does not extend to the determination of the type and level of criminal penalties—therefore it does not extend to provisions such as articles 4 and 6 of the framework decision determining specific levels of

57 Judgment of 23 October 2007, paragraphs 53 and 54 respectively. 58 Paragraphs 55 and 58 respectively. 59 Paragraph 59. 60 Paragraph 60. 61 Paragraph 67. The Court also noted that the purpose of the framework decision, according to its preamble, was to enhance maritime safety and improve protection of the marine environment against ship-source pollution (paragraph 62). 62 Paragraph 68. 63 See also paragraph 66 of the judgment. 64 Paragraph 69.

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criminal sanctions.65 However, these sets of provisions being inextricably linked to each other, the Court annulled the framework decision as a whole. The Court’s ruling offers a degree of clarification regarding the delimitation of Community criminal law competence. For supporters of first pillar criminal law, the judgment will be seen as a further affirmation of the existence of Community competence in criminal matters and as an expansion of such competence in the field of ship-source pollution. However, the Court has by no means given carte blanche to the adoption of a wide range of first pillar criminal law measures. First of all, the relative vagueness of the environmental crime ruling on the extent of first pillar criminal law competence has been remedied to some extent in this case, with the Court stating that while criminalization in this case would fall within the first pillar, the imposition of precise sanctions (such as levels of custodial sentences) still falls within the third pillar. Moreover, the Court embarked on a delicate balancing act regarding the question of whether Community criminal law competence is limited to the achievement of “essential” Community objectives, or whether it extends to all Community objectives and/or policies. The Court certainly refrained from doing the latter. While it accepted that a first pillar measure with a transport legal basis may include criminal law provisions, this appears to be justified on the grounds of the strong link between the measure in question with the protection of the environment—an essential Community objective whose protection may necessitate criminal law. The extent of Community criminal law competence in this context remains thus still contested.

The Impact of the Reform Treaty The Reform Treaty, which would bring about the collapse of the pillars could lead to the view that the current debate over the extent of Community criminal law competence would be settled. However, there are a number of questions arising from the wording of the Reform Treaty when combined with the Court’s case-law on environmental crime. According to the Reform Treaty,66 the Union (succeeding the Community as a single pillar organization with legal personality) will have competence to establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis.67 According to the Treaty, these areas of crime are the following: Terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organized crime.68 The list of these offences 65 Paragraphs 70–71. Similarly, the Court noted that provisions on jurisdiction and information exchange are third pillar matters (paragraph 73). 66 Document CIG 1/1/07, REV 1, Brussels, 5 October 2007. 67 New article 69f (1) first indent. 68 Ibid., second indent.


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may be expanded “on the basis of developments in crime” by the Council acting unanimously after obtaining the consent of the European Parliament.69 It appears thus that the Reform Treaty—like the Constitutional Treaty— expands criminal law competence (for what is now the Community) in granting the Union powers to adopt (albeit minimum) rules on criminal sanctions (and not merely to require member states to adopt proportionate, effective and dissuasive penalties). However, the scope of competence regarding criminal offences and sanctions appears to be narrower than its interpretation by the Court in the environmental crime case, and the ship-source pollution cases. Rather than granting the Union criminal law competence in order to achieve effectiveness in Community objectives or policies, the Treaty delimits competence on the basis of an exhaustive list of offences, which must also fulfil a number of conditions set out in the first indent of new article 69f (1) (seriousness, cross-border dimensions, impact or the need to combat on a cross-border basis). The list of these areas of crime can only be extended by a unanimous decision by the Council. It is not clear how the wording of Article 69f(1) will co-exist with the Court’s case-law. If the Court’s case-law remains along the current lines (justifying Community criminal law action under non-criminal law legal bases in order to achieve Community objectives), the narrow framing of Community competence in substantive criminal law in article 69f(1) may be undermined by criminal law proposals justified on the basis to ensure the effectiveness of a Union objective or policy. This conclusion is reinforced by the insertion in the Reform Treaty of article 69f(2), which provides an express legal basis for EU substantive criminal law when approximation is essential to ensure the effective implementation of a Union policy.70 To take the example of environmental crime: if the Treaty provision on the protection of the environment is deemed an adequate legal basis for the adoption of defining criminal offences and imposing, in one form or other, criminal sanctions, even after the entry into force of the Reform Treaty, article 69f (1) will be undermined as Union criminal law competence will extend to offences other than those exhaustively enumerated therein. Article 69f(2) on the other hand may be read as allowing in fact the Court to expand Union criminal law competence when deciding that criminal law approximation is essential to ensure the effective implementation of any Union policy in an area where harmonization has taken place. A development that may imply that the Union’s criminal law competence may extend beyond the offences enumerated in article 69f is that the Reform Treaty also provides that the sentence in article 280 (4) TEC stating that measures to combat fraud and article 135 TEC on customs cooperation (areas which is not listed in article 69f) will not concern the application of national criminal law and the national administration of justice will be deleted.71 Without this sentence, the Union will have competence under article 280 (4) TEC to adopt “the necessary 69 Ibid., third indent. 70 Article 69f (2) in doc. CIG/1/1/07 REV 1 allows for such approximation if it “proves” essential to ensure effective implementation. 71 Point 279 and points 44 and 109.

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measures in the fields of the prevention and fight against fraud affecting the financial interests of the [Union] with a view to affording effective and equivalent protection in the member states,” and under article 135 TEC to “take measures in order to strengthen customs cooperation between member states and between the latter and the Commission.” It is not clear whether the exhaustive wording of article 69f in fact excludes the adoption of measures defining criminal offences and sanctions under articles 280 (4) and 135 TEC or whether the deletion of the current exception means that the road is open for such legislation.72 Finally, it must be reminded that the Reform Treaty also introduces significant changes with regard Union competence on criminal procedure. Currently, there is a controversy regarding the existence and extent of such competence in the third (and not the first) pillar, vividly demonstrated by the ongoing negotiations for a framework decision on the rights of the defendant in criminal proceedings. New article 69e (2) of the Reform Treaty expressly confers to the Union the competence to adopt, under the legislative procedure, minimum rules concerning mutual admissibility of evidence between member states, the rights of individuals in criminal procedure and the rights of the victims of crime—with further areas potentially added after a unanimous decision by the Council and the consent of the European Parliament. However, Union competence in the field of criminal procedure applies only to the extent necessary to facilitate mutual recognition of judgments and police and judicial cooperation in criminal matters. Criminal procedure measures—and the human rights implications which they may haveare thus subordinated to the efficiency logic of mutual recognition, which is according to the Reform Treaty, the basis for judicial cooperation in criminal matters in the EU.73

Conclusion: Criminal Law as a Means to an End? While the Court’s ruling in the environmental crime case put an end to the debate regarding the existence of Community competence to define criminal offences and require member states to impose criminal sanctions, the debate regarding the precise extent of such competence is on-going. The demands for effectiveness of Community law clash with the scepticism of member states regarding ceding sovereignty to the Community in the sensitive area of criminal law. The stance of the overwhelming majority of member states, as witnessed in their reactions to

72 It should also be noted here that in the case of fraud, the Reform Treaty provides for a separate legal basis for the determination of offences affecting the financial interests of the Union—new article 69i which envisages the future establishment of a European Public Prosecutor’s Office from Eurojust. Such Office will be established following unanimous decision by the Council and the consent of the European Parliament via a regulation, which will also determine the offences for which the EPP will have a mandate. It is not clear however whether the term “determine” will cover definition of criminal offences or merely enumerate offences on the basis of other Union instruments or national law. 73 Article 69e (1). For this argument Mitsilegas 2006b.


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the environmental crime judgment and their interventions ship-source pollution case, cannot be ignored, and will pose a significant challenge for the Court if it tries to accommodate it while at the same time ensuring the effectiveness of Community law. In its judgments on the ship-source pollution and environmental crime cases, the Court appeared reluctant to accept the specificity of criminal law in the big picture of Community law—however the Court appears to have tried to accommodate member states’ skepticism in setting limits to the first pillar criminal law competence in the ship-source pollution judgment. However, given the sensitivity of the issues concerned, the Court may have to look again at the relationship between Community law and criminal law and the view that criminal law is merely a means to an end towards the achievement of Community objectives. Guidance to these questions is immensely important, even if the Reform Treaty eventually comes into force. The abolition of the pillars does not solve immediately all the issues regarding the extent of (Union this time) competence in criminal matters. In the light of the (albeit somewhat diluted in comparison with the Constitutional Treaty) emergency brake provisions in the Reform Treaty, concerns by member states as regards the extent and quality of Union intervention in criminal matters have to be taken into account if a fragmented Union criminal justice policy is to be avoided.

References Carrera, S. and Guild, E. (2007), An EU Framework on Sanctions against Employers of Irregular Immigrants, CEPS Policy Brief no.140 (Brussels: Centre for European Policy Studies). Commission of the European Communities (2005), Communication from the Commission to the European Parliament and the Council on the implications of the Court’s judgment of 13 September 2005 (Case C-176/03, Commission v. Council), COM (2005) 583 final, 24 November 2005. House of Lords European Union Committee (2007), The Criminal Law Competence of the EC: Follow-up Report, 11th Report, session 2006–07, HL Paper 63 (London: The Stationery Office). Labayle, H. (2006), “L’Ouverture de la Jarre de Pandore, Réflexions sur la Compétence de la Communauté en Matière Pénale,” Cahiers de Droit Européen, vol. 42 nos 3–4, 379–428. Mitsilegas, V. (2006a), “Constitutional Principles of the European Community and European Criminal Law,” European Journal of Law Reform, vol. 8 no. 2/3, 301–24. Mitsilegas, V. (2006b), “Trust-building Measures in the European Judicial Area in Criminal Matters: Issues of Competence, Legitimacy and Inter-institutional Balance,” in Carrera, S. and Balzacq, T. (eds), Security versus Freedom? A Challenge for Europe’s Future (Aldershot: Ashgate), pp. 279–89. Mitsilegas, V. (forthcoming 2008), “The Transformation of Criminal Law in an Area of Freedom, Security and Justice,” Yearbook of European Law 2007. Tobler, C. (2006), “Case C-176/03, Commission v. Council, Judgment of the Grand Chamber of 13 September 2005,” Common Market Law Review, vol. 43 no. 3, 835–54. Vervaele, J.A.E. (2006), “The European Community and Harmonization of the Criminal Law Enforcement of Community Policy,” eucrim, nos 3–4, 2006, 87–93.

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Wasmeier, M. and Thwaites, N. (2004), “The ‘Battle of the Pillars:’ Does the European Community Have the Power to Approximate National Criminal Laws?,” European Law Review, vol. 29 no. 5, 613–34. White, S. (2006), “Harmonisation of Criminal Law under the First Pillar,” European Law Review, vol. 31 no.1, 81–92.

Chapter 10

The Proposal for a Council Framework Decision on Certain Procedural Rights in Criminal Proceedings throughout the European Union Mar Jimeno-Bulnes1

The proposal for a Council framework decision on certain procedural rights in criminal proceedings throughout the European Union (“FWD”) is the first EU text to provide a degree of procedural harmonization in criminal law.2 Its objective is to assure that common minimum standards are observed (and even improved upon, if possible) in member states. Nevertheless, especially due to the fact that this important aim has such relevant consequences, its negotiation between the different member states, as is well known, is proving painfully slow,3 bearing in mind the need for unanimity in the Council as stipulated in article 34 (2) Treaty on European Union (TEU). In fact, ever since the initial proposal made by the European Commission in 2004, the text has been the subject of ongoing negotiations throughout the Austrian, Finnish and German Presidencies of the European Council. A second text was

1 My special gratitude to Florian Geyer for his enlightening comments on this article and to Antony Ross Price for his revision of the English. Financial support provided by the Spanish Ministry of Science and FEDER is gratefully acknowledged (Research Project “The construction of a European Judicial Area: present and future in matters of civil and criminal procedure” (SEJ2006-02180/JURI)). The manuscript was completed in June 2007. 2 As opposed to the harmonization of criminal law and, especially, to the mutual recognition policy, which is regarded as a “softer” alternative to legal harmonization because of the tremendous difficulties associated with it (see Monar 2006, 507). As is well known, the principle of mutual recognition was established at the Tampere Summit (1999) as “the cornerstone of judicial cooperation in both civil and criminal matters within the Union” (Presidency Conclusion no. 33). It is also reinforced in The Hague Programme (2005) in order to reach “full employment” as is made clear in the specific indications relating to the aim of strengthening justice. Recent comments on both texts by Elsen 2007. 3 At the time of writing (June 2007) this version of the proposed FWD is still under discussion. Nothing new had happened on the subject at the time of proof correction (February 2008).

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drafted at the onset of the German Presidency called the “German text,”4 which is much less ambitious than the original Commission initiative, above all in relation to the number5 of rights it includes: the present text only contemplates three key rights, as opposed to the five fundamental guarantees initially put forward. Also, the new model seems to follow the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) more closely than before. A profound debate has been held within the EU institutions and member state governments between supporters and critics of both the initial proposal and the latest version, which is still underway. The debate revolves around the opinions of those who defend the need for binding procedural regulations at EU level on individual guarantees for suspects throughout criminal proceedings, and those that believe the ECHR to be a good enough legal instrument to ensure fundamental rights in criminal procedures.6 Furthermore, arguments are also advanced by many commentators on the absence of legal grounds in the provisions of article 31 (1) (c) TEU to undertake an initiative of this sort (amply discussed in Lööf 2006), or even that such an initiative should have taken place beforehand or should have accompanied previous texts based on the principle of mutual recognition, most importantly, the European arrest warrant, EAW (for instance, in Spain, Blanco Peñalver 2006, 808).7 4 For a brief comment on the development of such negotiations and texts see Peers 2007. 5 It remains to be seen whether the quality of such rights set out in the initial proposal will be preserved. 6 In terms of national governments, the first position is occupied by the majority of EU member states, while the second is supported by six states: Cyprus, Czech Republic, Ireland, Malta, Slovakia and UK. 7 As Blanco Peñalver (a public prosecutor in Spain) has pointed out, many of the practical problems that arise in the course of executing EAWs in member states are caused by the lack of any legal provisions at the level of the EU that relate to the basic rights of detainees and suspects. The need for common standards applying to procedural rights in EAW proceedings was anticipated by the present author, see Jimeno-Bulnes 2004 and Jimeno-Bulnes 2006, fn 116. This suggestion is even included in the Explanatory Statement of the Report on the FWD proposal drawn up by the EP Committee on Civil Liberties, Justice and Home Affairs (LIBE Committee), Session document 21 March 2005, A6-0064/2005, PE 350.239v03-00, Rapporteur: MEP Kathalijne Maria Buitenweg (Verts/ ALE), at 26. The same MEP had submitted a written question to the Commission following the enforcement of the FWD on the European arrest warrant on the lack of minimum procedural guarantees and possible human rights violations as a result of its application; the question was based on a previous report published by Amnesty International illustrating repeated inhuman treatment and torture perpetrated by government officials in Spain over the period 1995 to 2002 (Reference PS-QE (2002) 1310, document date: 5 July 2002). See also “European Parliament resolution on the situation as regards fundamental rights in the European Union” (2002) (2002/2013 (INI), document num. P5_TA (2003) 0376, para. 141, where the Council “takes the view that such a framework decision should come into force at the same time as the European arrest warrant.” The EP LIBE Committee defended the same argument in its “Draft Report with a proposal for a European Parliament recommendation to the Council on evaluation of the European arrest warrant,” rapporteur

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Lastly, it must be remembered that all of the procedural guarantees in a common definition of a fair trial are neither envisaged in the latest version, nor were they included in the original text. Some of the absent guarantees are subject to separate EU regulations, such as the presumption of innocence8 or the ne bis in idem principle.9 Nevertheless, others which were absent in the proposal for a FWD and which are set out in the ECHR (articles 5 and 6), have been added later on as result of negotiations between EU national delegations over the present instrument: such as the right to be informed of any previous accusation or arrest.10 The principal aim of this chapter is to present a comparative study of both texts as well as to verify what remains “in” and what is “lost” in the latest version of the document. We shall look at the legal background of the proposal for a Council FWD on certain procedural rights in criminal proceedings throughout the EU as well as its evolution through different versions, before closing with a number of succinct concluding remarks.

Legal Background No explicit reference to any pre-trial procedural rights of suspects in criminal proceedings is in fact made in the Tampere Presidency Conclusions (1999)11 beyond a general mention of the “judicial protection of individual rights,” as stated in conclusion number 33 alongside the common principle of mutual recognition. Fortunately, the review of the latter Tampere programme undertaken in the Hague Programme (2005)12—known for this reason as Tampere II—seeks “to improve the common capability of the Union and its Member States to guarantee

Adeline Hazan, 30 November 2005, document no. 2005/2175(INI), PE 365.111v01-00, which under recommendation a) urged the Parliament to “adopt, as soon as possible,” the present proposal as an essential measure “in order to ensure a similar standard of legal protection for all European citizens, and its guarantees will facilitate the surrender by a Member State of one of its nationals to another Member State,” 10. 8 Green Paper on the Presumption of Innocence, 26 April 2006, COM (2006) 174 final. 9 Green Paper on conflicts of jurisdiction and the principle of ne bis in idem in criminal proceedings, 23 December 2005, COM (2005) 696 final. 10 “Everyone charged with a criminal offence has the following minimum rights: a) to be informed promptly, in a language which he understands and in detail, of the nature and the cause of the accusation against him” (article 6 (3) ECHR). 11 “Towards a union of freedom, security and justice: the Tampere milestones,” 15 and 16 October 1999. In the literature at that time, for instance Elsen 1999. On the principle of mutual recognition applied to criminal law, see Peers 2004, 35 who draws comparisons between the principle and “free movement or prosecutions”; also generally De Kerchove and Weyembergh 2001. In Spain, de Hoyos Sancho 2005 and, more extensively, Ormazábal Sánchez 2006. 12 “The Hague Programme: Strengthening Freedom, Security and Justice in the European Union,” OJ C 53, 3 March 2005, 1–14. Specifically on this, see de Zwaan and Goudappel 2006; in Spain Gomis Catalá 2006.

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fundamental rights, minimum procedural safeguards and access to justice” as one of its objectives. It also recognizes that “the further realisation of mutual recognition as the cornerstone of judicial cooperation implies the development of equivalent standards for procedural rights in criminal proceedings, based on studies of the existing level of safeguards in Member States and with due respect for their legal traditions.”13 Such an explicit provision must be considered as a step forward inasmuch as procedural harmonization (or approximation as it is also known) is envisaged in the same programme, not only as an instrument of the mutual recognition principle, but also as part of the policy on judicial and police cooperation;14 nevertheless, it appears that neither the establishment of this catalogue of procedural safeguards is contemplated, nor its priorities, nor any of the concrete measures envisaged by the Hague action plan.15 With respect to the specific provisions that relate to this concern, the legislative initiative came about through the standard procedure employed by the European Commission, which is to say, through a consultation paper posted on the internet site of the Justice and Home Affairs Directorate-General (DG-JHA website) over the first two months of 2002.16 With respect to the summary of rights under consideration at that time, it has to be said that a good many of them were gathered under four items: firstly, information given to the suspect in the form of a “letter of rights” on arrival at the police station or place of questioning; secondly, the creation of a particularly high degree of protection for vulnerable groups of suspects and defendants such as foreign nationals, minors, and the mentally and physically handicapped (including, for example, deaf but not blind persons), single mothers or fathers, illiterate people or refugees; thirdly, a summary of a greater number of procedural rights to be considered such as the right to be presumed innocent until proven guilty, the right to inform someone of the detention, 13 The Hague Programme, loc. cit., at 1 and 12 respectively. The latter also envisages in the same paragraph, 3.3.1, the “end of 2005” as the deadline for the adoption of the FWD on certain procedural rights in criminal proceedings throughout the EU. 14 Textually, “the European Council recalls that the establishment of minimum rules concerning aspects of procedural law is envisaged by the treaties in order to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension” (para. 3.3.2.). See criticism by Weyembergh 2005, 1584. 15 “Communication from the Commission to the Council and the European Parliament. The Hague Programme: Ten priorities for the next five years. The Partnership for European renewal in the field of Freedom, Security and Justice,” 10 May 2005, COM (2005) 184 final. 16 Received in the author’s electronic mailbox on 26 March 2002. At the end of the consultation paper, there were nine specific questions, the answers to which were to be sent to the attention of Caroline Morgan before 15 April 2002 (DG Justice and Home Affairs–B3: Judicial Cooperation in Criminal Matters Unit). About 100 responses were received and a questionnaire was also sent to the ministries of justice of the member states, following which an expert’s meeting was held in October 2002. A brief comment on the enthusiasm for such an initiative at that time is made by Alegre 2002, 987 promoting “a sister framework decision for the rights of the individual in criminal proceedings involving international judicial cooperation.”


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the right to legal advice and assistance, the right to qualified interpretation or translation, the right to bail or provisional release when appropriate, the right to avoid self-incrimination, the right to consular assistance for foreigners, the right to fair evidence, the right of appeal, the right to specific guarantees (for instance time limits) regarding detention, the ne bis in idem guarantee; and fourthly, the regulation of in absentia proceedings according to common standards laid down in international texts such as article 14 (3) (d) of the International Covenant on Civil and Political Rights (ICCPR) signed on 16 December 1966.17 Account was taken of the latter in the drafting of the consultation paper as well as other international conventions, and above all the ECHR. The Commission’s reply came in the form of the subsequent “Green Paper on Procedural Safeguards for Suspects and Defendants in Criminal Proceedings throughout the European Union,”18 which reduced the procedural rights presented in the previous consultation paper. In fact, only five areas were identified as appropriate for immediate consideration which led to the Commission proposal: access to legal representation (both before the trial and at trial); access to interpretation and translation; the duty to notify suspects and defendants of their rights (the “Letter of Rights”); ensuring that vulnerable suspects and defendants in particular are properly protected; and, finally, the provision of consular assistance to foreign detainees. The Commission recognized in its explanatory memorandum that, although “all the rights that make up the concept of “fair trial rights” were important, some rights were so fundamental that they should be given priority at this stage,”19 giving the highest priority of all to the right to legal advice and assistance. These are termed the “basic rights” by the Commission, as opposed to other ones not covered by the Green Paper, as they will be object of separate EU regulation; which, as mentioned, is the case of the right of bail,20 fairness in obtaining and handling evidence,21

17 Textually, “in the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: d) to be tried in his presence.” As is well known, a significant difference between both international texts is the limitation of article 14 ICCPR to criminal proceedings; on the contrary, article 6 ECHR is applicable to all kind of proceedings (civil, social, administrative and so on). 18 Presented in Brussels on 19 March 2003, COM (2003) 75 final. See comments on this in the Spanish literature by Gallego-Casilda 2003. 19 Loc. cit., p. 15. 20 At present a Green Paper on mutual recognition of non-custodial pre-trial supervision measures, 17 August 2004, COM (2004) 562 final. 21 “Fairness in gathering and handling evidence in criminal proceedings” according to the discussion paper presented by the European Commission in the expert’s meeting held from 1–18 July 2006. In a previous The Hague Action Plan (Communication from the Commission to the Council and the European Parliament on The Hague Programme, loc. cit.) the Commission envisaged as concrete measures and timetables to draw up a Green Paper on handling evidence (2006) as well as a proposal on minimum standards relating to the taking of evidence (2007). But the lack of success of the respective experts’ meeting due to the positions of some member states means that a further initiative on this matter

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ne bis in idem,22 in absentia judgments,23 … in addition to other areas initially contemplated in the consultation paper but then not even mentioned.24 As recognized by the promoter of the initiative,25 the replies provided to these final questions26 that were proposed in relation to each of the rights discussed in the latter Green Paper notably influenced the drafting of the subsequent “Proposal for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union”,27 which is now the subject of attention. It should be noted that extensive documentation was, in addition, made available by different public and private institutions to both the Green Paper and the subsequent proposal as result of the consultative process. Observations were made by various public institutions, national parliaments, ministries of justice, professional associations, and universities and private institutions especially NGOs, such as, for example, the British organization JUSTICE and Amnesty International.28

by the Commission seems unlikely at present, according to the views of the (then) head of the Criminal Justice Unit (Ignacio de Lucas Martín). 22 Loc. cit. thanks to the Greek initiative as mentioned; see OJ C 100, 26 April, 2003, 24–27. 23 According to the previous The Hague Action Plan, a Green Paper on default (in absentia) judgments should have been elaborated in 2006 and a subsequent proposal in 2007. 24 The right to avoid self-incrimination or the right of appeal as well as specific guarantees covering detention contemplated in the latter consultation paper. 25 Caroline Morgan, Criminal Justice Unit, DROIPEN presentation 9 September 2004, as well as her paper presented at the Oslo Conference on interpreting quality and legal safeguards. This and subsequent documentation may also be found on the Aequitas project internet site: http://www.legalinttrans.info (last accessed 19 July, 2007). See also Morgan 2006. 26 See DG-JHA website at http://eur-lex.europa.eu/LexUriServ/site/en/com/2003/ com2003_0075en01.doc (last accessed 3 December 2007). There were also 40 oral presentations at the public hearing held on 16 June 2003, with over 100 people in attendance, including practising lawyers, academics, representatives of NGOs and delegates from government departments. 27 Presented by the Commission on 28 April 2004, COM (2004) 328 final. See various reactions in the literature such as, for example, Alegre 2004, 759 who welcomes the Commission proposal as a “first step towards improving the protection of procedural rights for suspects and defendants in criminal proceedings across the EU,” although, as she recognizes, such a “tentative step reflects the political reality of reluctance to allow EU level interference in national criminal law.” In Spain, Valbuena González 2006 and Valbuena González 2007. Also, for a general comment on the version of the FWD proposal put forward by the European Commission including the review of every right, see Arangüena Fanego 2007. 28 Amnesty International’s Response to the Green Paper from the European Commission on Procedural Safeguards for Suspects and Defendants in Criminal Proceedings throughout the European Union, presented in May 2003, available also online http://www.amnesty-eu.org (last accessed 3 December 2007).


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Furthermore, interesting studies29 exist, not only in relation to European prelegislation, but also to the specific protection of the five rights contemplated in the proposal in various member states. The results of these studies have been and are given special consideration by the European Commission, which in many cases also commissioned them. Thus, the original proposal for a FWD covered the same five rights previously mentioned in relation to the former Green Paper with some additions, which were referred to as the right to free legal advice (articles 2–5), the right to free and accurate interpretation and translation (articles 6–9), the right to specific attention (articles 10–11), the right to communicate with family and others as well as consular authorities (articles 12–13) and the right of the suspected person to be informed of his or her rights in writing and to be provided with a “Letter of Rights” (article 14), a model for which was included under Annex A. Besides, an evaluation and monitoring procedure in relation to the effectiveness of the FWD under the supervision of the European Commission was also contemplated. The necessary information for this procedure would be supplied by member states that would also have the duty of collecting the required data (article 15–16). Even more important is the non-regression clause established in article 17 that prevents the standards for the protection for such procedural guarantees from being lowered by member states in their domestic law. This possibility has been used by some member states as an argument against the adoption of the common minimum standards provided by the FWD. Finally, the date of 1 January 2006 was fixed as implementation deadline (article 18), which has obviously elapsed some time ago. For its part, the European Commission presented a working document on the same date as the FWD proposal that related to the impact evaluation and the consequences arising from this legislation for member states;30 in fact, a list of identifiable problems as well as specific objectives and potential impacts were annexed to the document. Moreover, the report on the FWD proposal drawn up by the Committee on Civil Liberties, Justice and Home Affairs of the European Parliament (“LIBE Committee”), which stresses the opinions of the EP Legal Affairs Committee in order to arrive at its subsequent proposals for amendments to the existing text, has been given special consideration in subsequent drafts.31 Also, a previous working document for the same report drawn up by the rapporteur 29 Especially, for example, the study undertaken by the Faculty of Law and Criminology of the University of Maastricht by T. Spronken and M. Attinger Procedural Rights in Criminal Proceedings: Existing Level of Safeguards in the European Union, published by the European Commission, DG Justice, Freedom and Security, Brussels 2005, also found on the aforementioned internet site: http://www.legalinttrans.info. 30 Commission Staff Working Paper, Proposal for a Framework decision on certain procedural rights in criminal proceedings throughout the European Union, Extended Impact Assessment, SEC (2004) 491. 31 Report on the proposal for a Council framework decision on certain procedural rights in criminal proceedings throughout the European Union, session document 21 March 2005, A6-0064/2005, PE 350.239v03-00, rapporteur: Kathalijne Maria Buitenweg. See also Draft Reports of 16 December 2004, PE 350.239v01 and of 11 January 2005, PE 350.239v02.

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expressed personal opinions and suggestions, and specifically mentioned ECHR and European Court of Human Rights (ECtHR) jurisprudence as a minimum framework to be respected in any interpretation of this new EU instrument.32 However, after the initial work carried out by the European Commission and the amendments proposed by the European Parliament, the time came for the Council to have its say. In the Council’s hands the fate of the proposal lies since then. As widely reported, arduous negotiations have taken place at the heart of the community institutions in order to move forward on the text proposed by the European Commission, quite unlike the events surrounding other legal instruments relating to judicial cooperation in criminal matters.33 A constant flow of documents and letters from public and private institutions have called for the revitalization of political negotiations between the member states within the framework and under the conditions that govern the third pillar (that is, unanimity).34 Thus, a large amount of documentation has been exchanged between the Working Party on Substantive Criminal Law (Council of EU), the Council Presidency of the EU and the delegations of some member states; notwithstanding which, the later versions hardly conserves more than a few lines of the original proposals made by the European Commission which concern us here. In effect, a first document containing the “counter-proposal” set out by the Working Party as the draft text which in the future (the near future it is hoped) will finally be confirmed as the framework decision on certain procedural rights in criminal proceedings throughout the European Union, was presented in July 2006.35 It refers solely to a set of minimum requirements. But, it still faced the opposition of certain member state delegations (specifically, the UK, the Czech Republic,

32 Explicitly, “the importance to interpret the EU minimum standards in the light of the evolving jurisprudence of the ECHR in order to ensure that those standards do not quickly become obsolete or undermine the level of rights protection afforded by ECHR” (5). After this reflection the suggestions are presented. 33 In particular, the EAW negotiations for which it hardly took three months at political level. 34 For example, British associations are particularly active, having drawn up the report jointly written by the Law Society of England and Wales and the European Criminal Bar Association (ECBA) on the one hand, and Amnesty International EU Office and JUSTICE on the other, dated 3 March 2007, and addressed to the president of the working group charged with the negotiations (Council Working Group on Substantive Criminal Law, DROIPEN) as well as that drawn up solely by the Amnesty International EU Office and JUSTICE dated 26 April, which was addressed to the president of the Justice and Home Affairs Council, presided over at the time by the Austrian Minister of Justice. See also letter addressed to German Presidency on January 2007 by the Council of Bars and Law Societies of Europe (CCBE). 35 Essentially, document no. 11583/06, 19 July 2006, DROIPEN 45, following which no. 13116/06, 27 September 2006, DROIPEN 60. At a meeting held on 1 June, 2006, the JHA Council concluded that the scope of the proposed Council FWD would be limited to three key rights: the right to information, the right to legal assistance and the right to interpretation and translation of procedural documents. See Council Press release no. 9409/06 (Presse 144).


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Ireland, Malta and Slovakia)36 as they consider that the protection of procedural rights laid down under articles 5 and 6 ECHR are enough. Negotiations have had to continue and as a result, at the moment, following two other texts presented by the German Presidency37 as well as counterproposals from dissenting member states delegations38 (all proposing ever-greater reductions in the legal framework initially envisaged), a new final version of the Council FWD proposal has been made public at the time of writing, which will be referred to in this present work.39 Negotiations within the EU Council nevertheless continue at present.40 Nevertheless, let us now turn our attention to the content of the initial proposal made by the European Commission and look at how it differs from the text now under discussion, which will reveal some quite substantial differences.

Content The proposal presented by the Council concerning the FWD on procedural rights in criminal proceedings throughout the EU is still under discussion. But it may be said that the draft now under consideration reduces the original text enormously in both its formal and its material content. In fact, the text advanced 36 Document no. 11788/06, 4 September 2006, DROIPEN 49, questioning the relationship between the EU proposal on procedural rights and the ECHR and suggesting that the Council of Europe be consulted over the matter. The Council of Europe Secretariat presented observations on 10 October 2006 in document no. 13759/06, DROIPEN 62, which agreed to participate with the EU over the common goal of ensuring procedural rights throughout Europe; dissenting member states (including Cyprus) answered immediately in document no. 1368/1/06, 16 October 2006, DROIPEN 63. 37 Document no. 16874/06, 22 December 2006, DROIPEN 76. There is a later version by the same German Presidency of 20 March 2007, DROIPEN 22, which, although requested by the author is at present a restricted document. 38 UK, Cyprus, the Czech Republic, Ireland, Malta and Slovakia, document no. 5119/07, 17 January 2007, DROIPEN 2, establishing the proposal of a sole Resolution on the matter instead of an FWD. The important difference is the non-binding nature of such a resolution as opposed to the binding nature of an FWD according to article 34 (2) (b) TEU; for this reason and the failure of earlier proposals for binding texts, JHA Ministers of such member states decided that the Working Group should consider binding and nonbinding approaches in parallel as is stated in the latter document. This resolution regards practical measures in order to promote fairness in criminal proceedings with particular reference to access to free legal aid and to an interpreter. 39 Proposal for a Council framework decision on certain procedural rights in criminal proceedings throughout the European Union, Note from Presidency to COREPER/Council, document no. 10287/07, 5 June 2007, DROIPEN 56; the document was “declassified” on 7 June 2007 by a Corrigendum to the previous note by the same Presidency. 40 Essential discussion now revolves around the options regarding the adoption by member states: several solutions are proposed by COREPER, such as the possibility of a temporary opt-out clause, an implementation solution, enhanced cooperation or cooperation outside the Treaty. See previous document no. 10287/07, loc. cit., at 4–6.

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by the Council of the EU covers a mere nine precepts41 as opposed to the original nineteen articles contemplated in the European Commission proposal. Before reviewing specific procedural rights now contemplated in the new document (or set of documents), the subject matter, scope and other general aspects of the text will firstly be presented. General Approach The subject matter and scope of the FWD are defined in article 1: the establishment if “rules defining certain42 rights of persons arrested in connection with or charged with a criminal offence in order to safeguard the fairness of criminal proceedings throughout the European Union.”43 The reference to criminal proceedings is therefore quite clear: those “which could lead to a criminal penalty ordered by a criminal court.” EAW executing proceedings are included as well as the interpretation of the terms “arrested” and “charged with a criminal offence” in accordance with articles 5 (1) (c) and 6 ECHR. ECtHR case-law, as is well known, has developed its own notions of criminal character, which can include some procedures that are regarded as merely administrative under domestic law.44 What is undoubtedly recognized is the wide-ranging nature of the present instrument insofar as it extends to any phase of the entire criminal proceedings (from police investigations and the pre-trial phase through to any appeals procedures) and of the status of the party in all of those proceedings (suspect, detainee, arrested person, accused, defendant and so on).45 The reference to ECHR and ECtHR case law is explicitly included in the Council’s drafts, although it was not mentioned in the European Commission’s

41 As said, according to the final draft proposed by the German Presidency on 5 June 2007. A previous draft provided by the aforementioned Working Party on Substantive Criminal Law contemplated 10 articles because the then article 4 provided for the “right to legal assistance free of charge,” which is now included under a new comprehensive article 3 on the right of defence. 42 And not all of them by any means; but at least the unfortunate mention of “minimum standards” as provided in previous texts (for instance draft of 22 December 2006, loc. cit.) has been abolished. 43 Article 1 (1) of 22 December 2006, refers to “persons charged with a criminal offence or arrested in connection with a criminal offence” in line with article 6 ECHR. It looks as though that later version on 20 March 2007, refers explicitly to the title of “criminal proceedings” which it defines as “proceedings which could lead to a criminal penalty by a criminal court,” the determination of the notion of “criminal penalty” and of “criminal court” being unclear to the Council of Europe; see observations by Council of Europe Secretariat on 2 April 2007, loc. cit. at 1. 44 The leading case in relation to the definition of “criminal” is Engel and others v. Netherlands, 8 June 1976, establishing three criteria in order to decide whether a charge is of a criminal nature or not: the domestic provisions defining the offence, the nature of the offence and the degree of severity of the penalty to be imposed. See also comments by Trechsel 2005, 14–31. 45 In this sense Valbuena González 2006, 3.


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proposal, which, nevertheless, referred to notions of a “criminal offence” or a “criminal charge”—thereafter, “criminal proceedings”—in the sense provided by the ECHR. As has been said, the size of the Council has increased significantly, to which an allusion is also made in previous recitals of the text and in the original text proposed by the European Commission. Nevertheless, it is also pointed out that the aims of the proposed FWD are to “reaffirm and carefully to expand the minimum standards described in the said Convention—as interpreted and refined in the case-law of the European Court of Human Rights.”46 On the contrary, the definition of procedural guarantees as “minimum standards,” which can hardly be described as an encouraging one,47 was not in the original text.48 Certainly such references to “minimum standards” must be interpreted in accordance with the non-regression clause, which persists under article 7 in a very similar form to the original draft, except for the explicit reference to the ECHR. It prohibits all member states from lowering the level of protection of the procedural guarantees included in the proposed FWD as provided for in the Convention and in their domestic law. The non-regression clause has generally been welcomed by national representatives and institutions49 as became evident during the consultation phase. Similarly welcomed has been the monitoring clause established in the new article 6 (and repeated in a new article, 8 (5), formerly 18 (5)) allowing for evaluation of the effectiveness of the proposed FWD. Unfortunately the possibility of making such reports50 public is no longer included in the EU 46 Recital 3 according to the text of 5 June 2007, loc. cit., at 7. 47 It could be seen as the possibility of respecting such procedural guarantees at a minimum level; as already mentioned, this argument has already been used by dissenting Member Status to oppose present regulation. 48 Although references to these guarantees as “minimum standards” (or “common minimum standards”) was already made by the European Commission and the European Parliament in previous documents. 49 See, for example, the “Report with evidence on procedural rights in criminal proceedings” drawn up by the House of Lords (European Union Committee), 1st Report of Session 2004–05, HL Paper 28, at 55–6 describing such a provision as well as the latter article16 as “key” to the success of the FWD; witnesses promoted independent monitoring in their evidence. Written and sometimes oral evidence was given by numerous individuals, public and private institutions and NGOs such as Amnesty International EU Office and JUSTICE, British governmental institutions such as the Crown Prosecution Service or Home Office, private ones as the European Criminal Bar Association (ECBA) and even European ones, such as Eurojust and the European Commission (DG-JHA), in addition to individual academics or professionals. 50 More specifically, the reports on the evaluation and monitoring exercise coordinated and supervised by the European Commission “may be published” (article 15 (2) original FWD). The European Commission suggested an evaluation and monitoring system carried out by the Network of Independent Experts on Fundamental Rights, which was set up in order to evaluate the situation of fundamental rights in the EU as recommended by the Resolution of the European Parliament on the situation as regards fundamental rights in the EU (2000)(2000/2231(INI)) on 5 July 2001, OJ C 65 E, 14 March 2002, 350–63 at para. 9. An amendment proposed by the European Parliament to that same article suggested the introduction of an obligation and not a mere possibility to this

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Council’s text and neither is the former extensive clause relating to the duty of member states to collect data and the inclusion of such information in official statistics.51 As a final general comment, a legal text presented in the annex for reference purposes was initially included at the end of the EU Council draft.52 It concerned the practical steps to be taken by member states in order to ensure compliance with the fundamental rights in criminal proceedings established not only in the proposed FWD but also in the ECHR. This so-called “practical action” stems from the proposal for a resolution introduced by the dissenting member states as Annex II to the previous draft of the FWD drawn up by the Working Party on Substantive Criminal Law.53 It was presented due to the failure of agreeing on earlier proposals for binding texts in the Council. Its biggest difference being its non-binding nature as opposed to the binding nature of a framework decision (cf. article 34 (2) (b) TEU). This practical action concerns the provision of general information to citizens and legal practitioners on existing procedural rights in criminal proceedings through specific actions such as the posting of ECtHR case-law relating to articles 5 and 6 ECHR (through the translation of whole judgments) on the official websites of the national police and judicial authorities and the organization of police and judicial training on these issues. Further practical actions referring to specific rights contained in the new text are still under discussion. Specific Procedural Rights In fact, in both the proposal presented by the Working Party and in the German text, only two of the original guarantees are included: the right to legal assistance or defence and the right to interpretation and to the translation of documents. Neither the right to specific attention nor the right to communicate, nor, even more concern: “the reports shall be published” instead of “the reports may be published.” See European Parliament Report, loc. cit., at 38, amendment no. 16. 51 According to the former article 16 of the European Commission proposal, statistics would have included the number of suspects assisted through free or partially free legal counsel; the number of persons assisted by interpreters or translator (in order to translate documents) during police questioning and pre-trial, trial and appeal phases presented also as nationalities; the number of persons assisted by consular authorities; the number of persons to whom specific attention was given due to age, mental or physical condition; and, finally, the number of Letters of Rights issued to suspects and their respective versions in different languages. 52 It appears in the first German text of 22 December 2006 but not in the most recent one of 5 June 2007. Nevertheless, these practical actions shall be now also considered as still being present in the text under negotiation. 53 Resolution on practical action to promote fairness in criminal proceedings with particular reference to access to free legal aid and to an interpreter proposed by the UK, the Czech Republic, Ireland, Malta, Cyprus and Slovakia, document no. 13116/06, loc. cit., 17–22, including a list of action points in relation to specific procedural guarantees provided in the Council text.


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importantly, the right to be provided with a Letter of Rights are contemplated, despite all of the latter having been developed in later amendments proposed by the European Parliament.54 On the contrary, some new procedural guarantees are now included; in particular, the right to information that is now the new title of article 2 of the FWD proposed by the German Presidency, and the right to request the attendance and examination of witnesses55 forming part of the more general right of defence, which is a redrafted version of what was formerly the right to legal assistance. As mentioned earlier, all specific procedural rights are contemplated throughout the pre-trial and trial phases (that is, throughout police custody) in accordance with the provisions of articles 5 and 6 ECHR; nevertheless, we shall begin our examination with the procedural period in relation to what are referred to as procedural rights. The right to information Provided in articles 2 and 2a of the proposed FWD in its here examined version extended to EAW proceedings.56 The general reference that is provided, in the first place, according to the present document, is the right of “any person charged with a criminal offence to be informed promptly, in a language which he or she understands and in detail, of the nature and cause of the accusation against him or her and of the relevant procedural rights that he or she may exercise at this stage of proceedings.”57 The wording of this provision reminds of the one set out in article 6 (3) (a) ECHR; in fact, it has virtually been repeated. Recommendations on this point pronounced by the Council of Europe have also been observed in order to “follow their wording (ECHR’s wording) as closely as possible, including, wherever appropriate, principles established in the

54 Report on the FWD proposal drawn up by LIBE Committee, loc. cit. 55 As recognized by the German Presidency on 22 December 2006, the topic is new but not original because it corresponds to article 6 (3) (d) ECHR. 56 “With regard to proceedings for the execution of an EAW, Member States shall ensure that the executing competent authority shall inform any person subject to such proceedings promptly after his presentation before this authority in a language which he or she understands of the EAW and its contents, and also of the relevant procedural rights he or she may exercise in accordance with articles 3a, 4a and 5a and of the possibility of consenting to surrender.” It would perhaps be better to maintain a general reference to such an extension of present procedural guarantees to international judicial cooperation proceedings such as the EAW, extradition or surrender to international courts (for instance, International Criminal Court, ICC) in the recitals as is done in the draft dated 22 December 2006. Besides, this right of information is also specifically contemplated under article 11 (1) FWD of 13 June 2002, on the European arrest warrant and the surrender procedures between Member Status, OJ L 190, 18 July 2002, 1–18. Also, the right to legal assistance as well as the right to legal counsel and interpreter—explicitly provided for in EAW executing procedures according to articles 3a and 4a of the present FWD proposal—are included in article 11 (2) EAW; only the right to translation provided in article 5a of the proposed FWD is absent but it is recognized as part of previous right of interpretation in accordance with ECtHR case-law. On the EAW and fundamental rights from a general perspective, see Lugato 2003. 57 Article 2 (2) previous document no. 10287/07, loc. cit.

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Court’s case-law.”58 For example ECtHR judgments, such as Brozicek v. Italy, Kamasinski v. Austria, Pélissier and Sassi v. France, Sipavicius v. Lithuania, and others should be considered.59 ECtHR jurisprudence has experienced problems regarding the interpretation of this right, and especially as regards the content of the information: a distinction (Trechsel 2005, 195) is usually drawn between elements of substance such as the “charge” or “accusation,” which must be described in detail, and elements of form such as the “nature” or “cause” of the latter. In reference to the first element, the biggest discussions have taken place in relation to a possible equivalence between “charge” and “accusation”; it looks as though that distinction is related to the investigative phase (charge) in the former case, and the trial phase (accusation) in the latter, but both of them involve the same content if we are to go by the answer given by ECtHR in the case of Lutz v. Germany.60 In reference to the nature and cause of such a charge or accusation, it is obvious that the information must be clear and correct, in detail as it is stated, and must also be presented in a language that the accused understands; which, if necessary, will require the assistance of an interpreter or translator, insofar as there is an evident connection between the present right and the instrumental right of interpretation and translation.61 Lastly, this information should include, not only facts but also legal qualifications as was declared in Pélissier v. Sassi,62 which probably represents the most relevant jurisprudence on the matter; on the contrary, no jurisprudential reference is 58 Observations by the Council of Europe Secretariat on the proposal for an EU Council framework decision on certain procedural rights in criminal proceedings throughout the European Union, document no. 13759/06, 10 October 2006, DROIPEN 62, at p. 4, clause 9. Submission to the Council of Europe for comments was made by the Finnish EU Presidency on 8 September 2006 and again on 22 March 2007, according to the new version of the draft FWD provided by the German Presidency on 20 March 2007: second observations by the Council of Europe Secretariat are included in document no. 8200/07, 2 April 2007, DROIPEN 31. Problems on relations between ECHR and the proposed FWD on procedural rights were also questioned by the delegations of dissenting member states such as UK, Cyprus, the Czech Republic, Ireland, Malta and Slovakia in document no. 13868/06 REV 1, 16 October 2006, DROIPEN 63. And, of course, the Bosphorus case further redefined the relationship between the ECHR and EU instruments; see Bosphorus Airlines v. Ireland, 30 June 2005; cf. on this Costello 2006. 59 Judgments of 19 February 1989, 19 December 1989, 25 March 1999, and 21 February 2002, respectively. In recent times, see Miraux v. France, 26 September 2006. 60 Judgment of 25 August 1987, where it was declared that “The Court proceeded on the basis that in using the terms “criminal charge” (accusation en matière pénale) and “charged with a criminal offence” (accusé, accusé d’une infraction) the three paragraphs of Article 6 referred to identical situations” (§52). 61 See the aforementioned Brozicek and Kamasinski cases; in the first, a written translation of the accusation was required, while in the second, oral information supplied by an interpreter was enough. 62 “Article 6 §3 (a) of the Convention affords the defendant the right to be informed not only of the cause of the accusation, that is to say, the acts he is alleged to have committed and on which the accusation is based, but also the legal characterisation of those acts. That information should, as the Commission rightly stated, be detailed” (§51).


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made to the accused’s access to the file during the preparatory phase, although it should be also observed as part as the most general right of defence (in this sense Chiavario 2005, 558). Precisely in the latter judgment it is also pointed out by the European Court of Human Rights that the right to information is part and parcel of the right to a “fair trial” protected as a whole in article 6 (1) ECHR,63 and is also connected with the right of the defendant to prepare his or her defence according to article 6 (3) (b) ECHR. Nevertheless, the same jurisprudence also indicates that the Convention “does not impose any special formal requirement as to the manner in which the accused is to be informed of the nature and cause of the accusation against him.”64 This open-ended statement on the form in which information is provided is repeated in recent case-law such as Miraux v. France of 26 September 2006, where the same connection between the present right and the right protected in article 6 (3) (b) ECHR (“the right to have adequate time and facilities for the preparation of the defence”) is established;65 in fact this right of defence must be also considered in order to interpret the requirement of “promptly” as expressed in article 6 (3) (a) ECHR as well as in what is now article 2 (2) of the proposed FWD, inasmuch as there must be sufficient time for the preparation of the defence brief. Moreover, this right to information is provided in article 2 (1) of the proposed FWD for the pre-trial phase and, more exactly, the pre-procedural phase (for instance police questioning), as well as the requirement for member states to inform any person arrested in connection with a criminal offence … promptly, in a language which he or she understands, of the reasons for his or her arrest, of any charge against

63 For this reason “The Court considers that in criminal matters the provision of full, detailed information concerning the charges against a defendant, and consequently the legal characterisation that the court might adopt in the matter, is an essential prerequisite for ensuring that the proceedings are fair” (§52). 64 §53. On the contrary, the reference to “written notice” had appeared in the Kamasinski judgment, where, although it was recognized that “this provision does not specify that the relevant information should be given in writing or translated in written form for a foreign defendant, it does point to the need for special attention to be paid to the notification of the “accusation” to the defendant, it was also stated that “an indictment plays a crucial role in the criminal process, in that it is from the moment of its service that the defendant is formally put on written notice of the factual and legal basis of the charges against him.” The importance of this case-law is especially related to the right of interpretation and/or translation as connected to the right of being informed of the accusation, insofar as a defendant that is not conversant with the court’s language may in fact be put at a disadvantage if not provided with a written translation of the indictment in an understandable language. 65 See §§31 and ff. Here the Court upheld the alleged violation of article 63 (a) ECHR because a “requalification” of the facts made by the national judge had not left he defendant with the opportunity to prepare his defense on time.

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Security versus Justice? him or her and of the relevant procedural rights that he or she may exercise at this stage of the proceedings

in accordance with article 5 (2) ECHR. As before, this information must be “promptly” provided and in an understandable language as far as the right to interpretation and/or translation is concerned. In all cases, at both the trial, pretrial phase and during police investigations, this information shall also include information on the existing procedural rights66 and, especially, the procedural rights laid down in the present FWD such as the right of defence and/or legal assistance (free of charge if necessary) as well as free interpretation and translation.67 In order to ensure compliance with this right of information, it is suggested as a specific practical action that a sort of Letter of Rights68 be drafted in all languages of the EU to be held at all police stations, which, were it to become compulsory in all member states, could come to substitute the duty described in article 14 of the original draft FWD proposed by the European Commission on the provision of a Letter of Rights to suspects at police stations.69 The right of defence Now provided for under the new article 3 of the proposed FWD—article 3a making it clear that its contents also apply to EAW proceedings70—summarizes the prior right (and obligation) to legal advice contained in articles 2 to 5 of the original draft. According to the latter, the right 66 In relation with the set of rights belonging to detainees see in Spain Barona Vilar 2004, 56 seq.. 67 Article 2 (3) FWD according to the German draft on 22 December 2006, loc. cit. 68 More precisely: “letter concerning rights” drafted in all the languages of the European Union, giving the essential rights of the person concerned”; see Annex to German draft of 22 December 2006, loc. cit., at 10. 69 “1. Member States shall ensure that all suspected persons are made aware of the procedural rights that are immediately relevant to them by written notification of them. This information shall include, but not be limited to, the rights set out in this framework decision. 2. Member States shall ensure that a standard translation exists of the written notification in all the official Community languages. The translation should be drawn up centrally and issued to the competent authorities so as to ensure that the same text is used throughout the Member States. 3. Member States shall ensure that police stations keep the text of the written notification in all the official Community languages so as to be able to offer an arrested person a copy in a language he understands. 4. Member States shall require that both the law enforcement officer and the suspect, if he is willing, sign the Letter of Rights, as evidence that it has been offered, given and accepted. The Letter of Rights should be produced in duplicate, with one (signed) copy being retained by the law enforcement officer and one (signed) copy being retained by the suspect. A note should be made in the record stating that the Letter of Rights was offered, and whether or not the suspect agreed to sign it.” 70 “With regard to proceedings for the execution of a European Arrest Warrant, the rights laid down in Article 3 (1) shall apply accordingly.” In Spain the right to exercise free will in appointing counsel also for EAW executing proceedings has been explicitly stressed by the Constitutional Court in judgments SSTC 339/2005, 20 December, and 81/2006, 13


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to legal advice was made available to every suspected person as soon as possible and, in any case, before answering questions in relation to the charge (article 2), and member states were obliged to ensure the availability of such legal advice in specific situations as indicated.71 The original draft also acknowledged the right of the suspect to refuse legal advice or self-representation (article 3); member states also had the duty to ensure the effectiveness of such legal advice through the assistance of qualified lawyers72 with the added possibility of having them substituted by another professional (article 4); lastly, the right of total or partial free legal advice was also contemplated (article 5). In the present text now under discussion and following an intermediate draft that contained two articles to cover what was formerly the right to legal assistance,73 there is now only one article that refers to a general right to defence, which is article 3 of the proposed FWD, besides the explicit reference to EAW proceedings in article 3a. Several provisions are contained in articles 3 (2) and 3 (1) of the newly drafted FWD, all of which always have a close parallel to articles 6 and 5 ECHR, respectively, among which count the following: a) The right to have “adequate time and opportunity to prepare his or her defence” in accordance with article 6 (3) (b) ECHR. The text itself mentions the purpose of such a right, which is the preparation of the defence brief in order to avoid “hasty trials,”74 to which end the aforementioned access to the file and to the same information as the prosecuting authority in order to respect the procedural principle of “equality of arms.”75 Besides, the present guarantee has an essential relative character of both a general and a specific

March, available at official website http://www.tribunalconstitucional.es/jurisprudencia/ Stc2005/STC2005–339.html (last accessed 3 December 2007). 71 These are: during the detention period, when a complex accusation or a severe punishment (especially more than a year’s imprisonment) is under discussion, when the person is requested due to an EAW, extradition or other surrender proceedings, when the person is a minor or when he or she is a person who would require specific attention in order to safeguard the fairness of the criminal proceeding according original article 10 (1) FWD (that is, “a suspected person who cannot understand the content or the meaning of the proceeding owing to his age, mental, physical or emotional condition”). 72 Reference is made to Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998, that exists to facilitate lawyers practising on a permanent basis in a member state other than that in which their qualifications were obtained, OJ L 77, 14 March 1998, 36–43. 73 Articles 3 and 4 FWD according to the text prepared by the Working Party on Substantive Criminal Law prepared on 20 July 2006, loc. cit. 74 As was expressed in the same text by the Commission of Human Rights; see case Knöcher and Möller v. Switzerland, decision of 9 July 1981, application no. 8463/78, §15, requiring the same access to the file for both the accused and the prosecutor. 75 On this subject, see Trechsel 2005, 216; also different kinds of access to the file according to continental and common law system as well as the modalities of discovery and access to the file are studied on 223–36.

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nature: general, because if the accused is acquitted, there shall be no violation76 and specific, because “the amount of time and the type of facilities required in order to ensure compatibility with article 6 (3) (b) ECHR will depend on the specific facts of each case” (Trechsel 2005, 213). This matter was also the object of some discussion by the ECtHR in the aforementioned case of Pélissier and Sassi v. France, where the Court concluded that “the applicants had not had adequate time and facilities for the preparation of their defence” insofar as alternative charges were proposed after the trial which the accused had been unable to contest.77 b) The right “to defend himself 78 in person or through legal assistance of his own choosing or, if he does not have sufficient means to pay for legal assistance, is given such assistance free of charge when the interests of justice so require” in accordance with article 6 (3) (c) ECHR; that is the provision of three different rights, in fact, which are the right to self-representation, the right to freely chosen legal assistance and the right to legal aid. The first of these rights must be equivalent to the right to “proceed pro se” (cf. Allen et al. 2005, 215) as comprehensive of the right to defend oneself in person, for which reason it includes the possibility to waive the right to legal assistance. The contentious possibility of the court appointing counsel against the will of an accused person has been discussed by the ECtHR, and it is allowed under the Convention if it is also permitted under domestic law.79 On the other hand, wherever domestic law provides for the compulsory appointment of defence counsel—except in criminal proceedings—it is also declared to be in accordance with the ECHR.80 Secondly, the right to such legal assistance must be interpreted as the right to a technical defence81 with a lawyer of one’s own choosing, which must certainly

76 That was the argument of the Commission in the case of S. v. UK, decision of 9 December 1987, application no. 12370/86, §3, on which basis the complaint was declared inadmissible. 77 Loc. cit., §48. 78 Or herself. This reference both in the feminine and the masculine provided by EU Council’s draft of 22 December 2006 is no longer used. 79 Case Foucher v. France, 18 March 1997: “Mr. Foucher chose to conduct his own case, which he was entitled to do both under the express terms of the Convention and under domestic law” (§35) because “according to the French Code of Criminal Procedure it is only compulsory for a defendant to be represented by a lawyer in the Assize Court (article 317)” (§17). 80 Case Lagerblom v. Sweden, 14 January 2003, declaring that “a legal requirement that an accused be assisted by counsel in criminal proceedings cannot be deemed incompatible with the Convention” (§50) and, furthermore, “when appointing defence counsel the courts must certainly have regard to the accused’s wishes but these can be overridden when there are relevant and sufficient grounds for holding that is necessary in the interests of justice” (§54). 81 The assistance of experts that are specialists in specific fields or disciplines working “side by side” with the defending lawyer is even possible in order to ensure a more effective defence (on this cf. the opinion of Chiavario 2005, 561). But sometimes limits have been placed on the number of defence lawyers, for example, in the case of Ensslin and


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be considered as “the best of the three alternatives offered by article 6 (3) (c) ECHR” (Trechsel 2005, 266).82 This, for example, includes confidentiality of conversations between the accused and counsel as was made clear in the case of Öcalan v. Turkey.83 The right commented on here is practically an absolute right in order to ensure the most general right of defence. Lastly, the right to free legal assistance is also contemplated with regard to a defendant’s economic situation according to leading cases on the matter such as Artico v. Italy84 and Pakelli v. Germany.85 c) Essentially, the right “to examine witness against him86 or have them examined,” and to be able to “obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him,” which is also expressed in accordance with article 6 (3) (c) ECHR, represents others v. Germany, decision of 8 July 1978, application no. 7572, where the Commission declared that the respective article “does not secure the right to an unlimited number of defence lawyers” (§19); here the limit imposed by German procedural law was to three lawyers freely chosen by the accused without prejudice to the ex officio addition of other defence counsel appointed by the Court as also provided for in domestic law. 82 In Spain, in relation to these three guarantees included in former article, see Arangüena Fanego 2005a; Gutiérrez-Alviz Conradí 2005 and, in relation with EAW proceedings Jiménez-Villarejo Fernández 2006, 334–38 in reference to ECtHR jurisprudence. 83 Judgment of 12 March 2003, where the Court declared that “an accused’s right to communicate with his legal representative out of hearing of a third person is part of the basic requirements of a fair trial in a democratic society and follows from article 6 §3 (c) of the Convention. If a lawyer were unable to confer with his client and receive confidential instructions from him without such surveillance, his assistance would lose much of its usefulness” (§146). In fact, the Court upheld the alleged violation article 6 (3) (c) ECHR because the defendant “was not assisted by his lawyers when questioned in police custody, was unable to communicate with them out of hearing of third parties and … furthermore, restrictions were imposed on the number and length of his lawyers’ visits and his lawyers were not given proper access to the case file until late in the day” (§169). 84 Judgment of 13 May 1980, in which the Court declared that “the right to an adequate defence either in person or through a lawyer” is also “reinforced by an obligation on the part of the State to provide free legal assistance in certain cases” (§33). The Court here declared Italy to be in breach of its obligations because there was merely a “nomination” of a legal aid lawyer who did not act at the trial, but no substitute lawyer was provided; as was argued, “mere nomination does not ensure effective assistance since the lawyer appointed for legal aid purposes may die, fall seriously ill, be prevented for a protracted period from acting or shirk his duties. If they are notified of the situation, the authorities must either replace him or cause him to fulfil his obligations” (§33). 85 Judgment of 25 April 1983, in which the Court concluded that “a person “charged with a criminal offence” who does not wish to defend himself in person must be able to have recourse to legal assistance of his own choosing; if he does not have sufficient means to pay such assistance, he is entitled under the Convention to be given it free when the interests of justice so require” (§31), after discussion of the linguistic differences between the English and French versions of article 6 (3) (c) ECHR. 86 Here, too, the reference in the feminine is removed in the latest version. On the contrary, it was maintained in the former article 3 (1) FWD proposal.

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a new addition to the original draft on FWD as has already been said. In fact, the right of the accused to test witness evidence at different stages of the proceedings (investigative period, trial and appeal) is also contemplated as part of the common principle of “equality of arms,” which is explicitly acknowledged here.87 Furthermore, this right must be interpreted under conditions and limitations developed by ECtHR jurisprudence such as, the recent case of Vaturi v. France,88 where it was accepted that it is not an absolute right as far as its violation can be only alleged if the restriction of any witness threatens to violate the defence rights of the suspect. Therefore, this right to confront adverse witnesses is today recognized as a fundamental right and for that reason is referred to as a “right to confrontation”89 making the questioning of anonymous witnesses possible, as accepted under certain domestic laws.90 d) Lastly, similar rights and, especially the right to legal advice, are also contemplated for detainees in the course of a police arrest; which also means the duty of national authorities to provide such assistance throughout police examination. Present rules according to article 3 (1) FWD represents an addition to ECHR, where no mention is made of it and it certainly constitutes one of the biggest differences between member states because not all national procedural legislations provide for the right to legal advice throughout police examination.91 Nevertheless, the present draft makes a terminological distinction between legal “representative” and legal “assistance,” which must be interpreted with some common sense in order to ensure the presence of a lawyer of “his or her choosing” as well as “free of charge” if necessary during police questioning and the possibility for the suspect to consult with him or her without the hearing of third persons or any kind of monitoring (for instance, recording), as is now explicitly recognized.92 One practical action suggested to 87 “Every person charged with a criminal offence is able to examine witnesses against him or her, or have them examined, and can obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her” (Article 3 (1) (c) FWD). 88 Judgment of 13 April 2006, especially §51. 89 On this subject, see Maffei 2006, 61–96 in relation to ECtHR jurisprudence. Also on the right to test witnesses” evidence see Trechsel 2005, 291–326 and in Spain Arangüena Fanego 2005b. 90 For example, Spain, inasmuch as the Organic Law 19/1994, 23 December, protecting witnesses and experts in criminal proceedings, allows the name, address, profession and other data as well as other measures at pre-trial and trial stages to be kept secret whenever the judge decides the respective witness or expert or his/her family would in some way be endangered. 91 See differences between criminal procedural systems for example on Delmas Marty and Spencer 2005, and in Spain Palomo del Arco 2002. 92 The wording of the new article 3 (1) (b) provides the right of every arrested person to have the “opportunity to consult with his or her legal representative out of hearing of third parties and without the content of this consultation being monitored by any other means.” Nevertheless one exception to it is added in the final version according


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member states is to make lists of lawyers available in police stations offering a prompt, initial defence as well as the establishment of 24-hour emergency legal services by local bars and law societies.93 The right of interpretation and/or translation Originally provided for under four articles is now contemplated under two articles in the June proposal of the EU Council: the right to interpretation (article 4) and the right to translation of documents (article 5), along with the addition of an explicit reference to the execution of EAW proceedings.94 In both cases the provision covers the procedural (trial and pre-trial) phases as well as police investigations in the course of a possible arrest as one of the guarantees referring to detainees, in the same way as the aforementioned right to legal assistance; in both cases, the possibility of linguistic assistance remaining free of charge is ensured in line with article 6 (3) (d) ECHR95 and ECtHR case-law. Linguistic assistance as a kind of “instrumental” right is also contemplated in other provisions in recognition of another fundamental right which is the aforementioned right to be informed of the nature of the accusation (article 6 (3) (a) ECHR) and the right to information on the reasons for the arrest and the charges against (article 5 (2) ECHR), information that in both cases must be provided in a language that is comprehensible to the accused and/or arrested person. to the document proposed on 5 June 2007, which is that “monitoring may in exceptional circumstances be justified, if and as far as the fight against serious and complex forms of crime, in particular terrorism, so requires and subject to the presence of adequate and sufficient safeguards.” Special provisions in relation with procedural rights for suspects of crimes of terrorism are already contemplated under some national legislations; that is the case in Spain, whose article 520 bis Criminal Procedural Law (Ley de Enjuiciamiento Criminal 1882) indicates special rules in terrorism cases, such as the extension of police custody to a maximum of five days as well as holding the respective suspect “incomunicado”; all of which under judicial supervision and with provision of the general right of defence. That implies, for example, the provision of legal counsel appointed ex officio and not of freely chosen during that period, which the Constitutional Court accepted as constitutional in STC 196/1987, 11 December, relying on the argument that more restrictions are placed on procedural rights in the case of arrested persons than in the case of the accused (even article 5 ECHR makes no mention of such a right of legal counsel for detainees). See comments by Barona Vilar 2005, 67–8. 93 For example in Spain all this information is provided on an official website on the terms and conditions for legal aid: http://www.justiciagratuita.es, accessed 3 December 2007. 94 Articles 4a and 5a of the proposed FWD in the version of 5 June 2007, loc. cit. The text of the former reproduces articles 3a as in the previous FWD proposal, while article 5a reflects the same contents and restrictions as article 5 of the previous FWD proposal. 95 Specifically, the right “to have the free assistance of an interpreter if he cannot understand or speak the language used in court.” On the contrary, the right to translation is not expressed but is undoubtedly recognized as it has been built up by relevant case law. On this, see Jimeno Bulnes 2007. Also, for its grounding in the European Convention, Trechsel 2005, 327–39.

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Unfortunately, a couple of rules included in the European Commission’s draft are no longer mentioned, which are the “accuracy of the translation and interpretation” and the compulsory “recording of the criminal proceedings” when these are conducted through an interpreter, set out in articles 8 and 9 of the original draft.96 It is a real pity that the painstaking efforts of the European Commission to promote a system that guarantees a high standard of interpretation and translation service as well as its possible monitoring along the lines described in preparatory documents97 have served for next to nothing. As was already pointed out in the European Commission Green Paper, the difficulty is not in establishing the existence of this right, but rather one of implementation; the professions of legal translator and interpreter are not as well established as other branches (such as conference interpreter), but they are becoming more and more organised, drawing up common standards of education, devising systems of registration or certification and drafting codes of conduct.98

96 According to article 8, “1. Member States shall ensure that the translators and interpreters employed are sufficiently qualified to provide accurate translation and interpretation. 2. Member States shall ensure that if the translation or interpretation is found not to be accurate, a mechanism exists to provide a replacement interpreter or translator”; according to article 9, “Member States shall ensure that, where proceedings are conducted through an interpreter, an audio or video recording is made in order to ensure quality control. A transcript of the recording shall be provided to any party in the event of a dispute. The transcript may only be used for the purposes of verifying the accuracy of the interpretation.” 97 For example, see the previous Green Paper on procedural safeguards and other texts; especially, the Aequitas project funded by EU institutions through two Grotius and one AGIS scholarships, the purpose of which was to carry forward a study of the situation for legal interpretation and translation in the different member states as well as to arrive at recommendations and a code of conduct of a general nature applicable to professionals working in this field across the EU. The results were published in three separate documents entitled Aequitas: Access to Justice across Language and Culture in the EU, Aequalitas: Equal Access to Justice across Language and Culture in the EU and Aequilibrium: Instruments for Lifting Language Barriers in Intercultural Legal Proceedings, all of which are available on the internet site http://www.legalinttrans.info accessed 3 December 2007. 98 Green Paper from the Commission on procedural safeguards for suspects and defendants on criminal proceedings throughout the European Union, loc. cit., p. 26. In the observations presented here and to the proposal for a FWD, the need to move on to a system of continuous training at a national level is stressed for those professionals as is the creation of national entities for their accreditation, certification and registration: see especially the observations presented by the British NGO JUSTICE, JUSTICE Response to the House of Lords Select Committee on the European Union, Sub-Committee E, Inquiry into the proposed Framework Decision on certain procedural rights in criminal proceedings throughout the European Union, October 2004, at section 49, available at http://www.legalinttrans.info accessed 3 December 2007.


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For this reason, practical actions such as the development of suitable and effective national standards for interpretation services and the organization of training courses for court interpreters (and translators) are suggested.99 The provisions of the German Presidency draft contemplate both the right to interpretation and translation, the contents of which, in line with ECHR and ECtHR case-law, may be presented as follows: a) The right to interpretation, that is, the provision of the “free assistance of an interpreter” if the accused or arrested person “does not understand or speak the language used in court” quite literally copies the contents of article 6 (3) (e) ECHR.100 In fact, such linguistic assistance forms part of the most general right of defence and is connected with the specific guarantee of “contradiction” (audiatur et altera pars) also established by the ECtHR in a strict interpretation insofar as article 6 ECHR “guarantees the right of an accused to participate effectively in criminal trial. In general, this includes, inter alia, not only the right to be present, but also to hear and follow the proceedings.”101 Besides, this linguistic assistance not only covers the inability to speak a language but also refers to acoustic abilities, as was pointed out at the time by the European Commission in its explanations to the original FWD proposal,102 considering that such a specific provision is applied to “deaf suspects or people with hearing or speech impairments,” for whom “qualified and experienced sign language interpreters” must be assigned in court proceedings and in police interviews. Leading cases in the interpretation of ECHR rules are also applied here, for instance, Luedicke, Belkacem and Koç v. Germany103 which exempted the suspect from interpretation costs, Brozicek v. Italy in relation with the right of the suspect

99 See German Presidency text, 22 December 2006, loc. cit., at 10, para. IV. The proposal to institute a programme of training, accreditation and registration of qualified interpreters and translators in the Member Status as well as the separation of both types of professional (thus the advisability of a dual register) derives from the Green Paper on procedural rights drawn up by the European Commission in accordance with the aforementioned Aequitas document; see specifically “Green paper from the Commission on procedural safeguards for suspects and defendants in criminal proceedings throughout the European Union,” loc. cit., at 29. 100 And also previous article 14 (3) (f) ICCPR, that is “the right to have the free assistance of an interpreter if he cannot understand or speak the language used in court.” 101 Standford v. UK, 23 February 1994, §26. While the case concerned acoustical problems, the same principle applies in relation to language as an indispensable instrument of communication. 102 Proposal for a Council FWD on certain procedural rights in criminal proceedings throughout the EU, loc. cit., at 14, §64. 103 Judgment of 28 November 1978, where the ECtHR came to the conclusion that the term “free/gratuitement” means a “once and for all exemption or exoneration” (§40). In fact, case-law is clear insofar as costs for the services of interpreters and translators in criminal proceedings may never be charged to the accused; another relevant case is, for example, Öztürk v. Germany, 21 February 1984, especially at §58.

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to be informed in an “understandable” language,104 Cuscani v. UK,105 in which the sentence imposed the obligation of verifying the need for an interpreter on the judicial authorities (as well as of ensuring the “fairness” of the proceedings106 in general terms) and Lagerblom v. Sweden,107 which extended the right to an interpreter beyond communications between the judicial authorities and the accused, allowing the appointment of an interpreter for communications between the accused and the defence counsel where necessary.108 b) The right to translation of documents: here a substantial change may be appreciated in the proposal of the Germany EU Council Presidency with regard to its previous version. Up until then,109 a general clause had been provided, which made provision for the translation of such documents deemed “necessary to ensure a fair trial if the person concerned does not understand the language in which those documents are drawn up” as well as the right of translation of “those documents which are essential in order to review the legality (of the arrest),” in both the judicial phase and in the course of police investigations. On the contrary, the Presidency version110 makes an explicit 104 In fact, the ECtHR places the burden of proof of the accused’s “understanding” of a language on the judicial authorities, provided the latter makes known his inability to understand the language; see previous Brozicek v. Italy case, loc. cit., at §41. 105 Judgment of 24 September 2002. 106 “However, in the Court’s opinion the verification of the applicant’s need for interpretation facilities was a matter for the judge to determine in consultation with the applicant, especially since he had been alerted to counsel’s own difficulties in communicating with the applicant” (§38), above all when, in the concrete circumstances of the case, the appellant had been declared guilty of serious charges and faced a severe prison sentence. It involved an Italian, whose English was “very poor” and the case concerned a financial crime (VAT evasion and fraud); despite the failure of the interpreter to appear during the trial, the defence lawyer decided that “I think that we shall have to make do and mend” requesting that the proceedings continue despite his client not being able to follow “the details” of the latter and only “the outline.” Adding greater weight to the Court’s opinion was the absolutely informal manner in which during the course of the trial the possible assistance of the applicant’s brother was sought a priori as an interpreter “if necessary,” without his participation being required in the end. 107 Judgment of 14 January 2003. 108 The appellant of Finnish nationality founded one of the reasons for his appeal before the ECtHR on the difficulty of communicating with his Swedish lawyer (a courtappointed lawyer, in addition), insofar as the latter did not speak Finnish. However, the ECtHR understood that, inasmuch as the interested party “described his proficiency as “street Swedish” and that he thus had a certain command of the language, the Court cannot find that he was so handicapped that he could not at all communicate with H. or understand him.” (§62). He had moreover been assisted by an interpreter on two visits to the judge of the first instance and the Appeals Tribunal, in which he even made oral declarations in Finnish, the language he was able to use in the written proceedings when presenting his allegations, which were translated and included in the summary by virtue of the Nordic Language Convention. 109 According to document no. 16874/06, 22 December 2006, loc. cit. 110 According to document no. 10287/07, 5 June 2007, loc. cit.


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enumeration of those documents to be translated, such as “the detention order, the indictment and the judgment, where those documents exist” of course; such an explicit enumeration has been suggested by various sectors in their comments to the original FWD proposal.111 Nevertheless an exceptional provision is also added, which is the restriction of the right to translation as a whole because in such exceptional cases (it is not specified which ones), just “an oral summary may suffice, provided that this does not affect the fairness of the criminal proceedings.”112 In reference to the right of translation both in the FWD proposal and in the text of the ECHR, even though it is not explicitly provided for in the latter text (unlike in the Inter-American Convention),113 it is undoubtedly recognized as it has been built up by relevant case law. The most relevant precedent is the case of Kamasinski v. Austria,114 in which the adequacy of the interpretation (or translation) provided was also questioned.115 This jurisprudence shows, first and foremost, that the difference between the right to translation and latter right to interpretation in the proposed text of the FWD is also maintained as presented. Unlike the latter right to interpretation, which has to be understood in absolute terms, more restrictions are placed on the right to translation; according to ECtHR case-law, it is not absolute but relative, and it is limited to the translation of those documents that allow the 111 In particular, the British NGO JUSTICE in its Response to the House of Lords Select Committee on the European Union, Sub-Committee E, Inquiry into the proposed framework decision on certain procedural rights in criminal proceedings throughout the European Union, loc. cit., section 48; an exemplary list of documents was proposed to be translated “the police statement, statements by the complainants and witnesses, statements by the suspect/defendant to the police and judicial authorities, an indictment by the public prosecutor or other prosecuting authorities and a judicial order imputing the crime to the defendant,” in any case, much more extensive than today’s provision. 112 The same exceptional provision is also included in article 5a FWD in relation with the right to translation in EAW proceedings. To the extent that, strictly speaking, only the right to interpretation is provided under article 11 (2) EAW, such a restriction would also be possible as no obligation to provide a written translation of the EAW to the requested person is explicitly contemplated. However, according to practical experience, the EAW issued by member states must be translated by issuing judicial authorities and in many countries, such as Spain, only the official language is accepted, thus a translation is provided to the defence lawyer and will also be available to the requested person. On Spanish judicial practice regarding the EAW see Jimeno-Bulnes 2006, 178. 113 Article 8 (2) (a) American Convention on Human Rights (ACHR), signed in San José de Costa Rica on 22 November 1969, contemplates as a minimum legal safeguard “the right of the accused to be assisted without charge by a translator or interpreter, if he does not understand or does not speak the language of the tribunal or court.” 114 Judgment of 19 December 1989. 115 “In view of the need for the right guaranteed by paragraph 3 (e) (article. 6 (3) (e)) to be practical and effective, the obligation of the competent authorities is not limited to the appointment of an interpreter but, if they are put on notice in the particular circumstances, may also extend to a degree of subsequent control over the adequacy of the interpretation provided” (§74).


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accused “to have knowledge of the case against him and to defend himself, notably by being able to put before the court his version of the events” and, in short, those which need to be understood “in order to have the benefit of a fair trial.”116 The same distinction has recently been made by the European Court in Hermi v. Italy, on 18 October 2006,117 which compiled previous precedents on the aforementioned subject.

Concluding Remarks Having examined the legal background and content of the June 2007 draft of the proposed FWD, all that remains is for some conclusions to be drawn on the future of this text and for a few thoughts to be added on what lies ahead. Nevertheless, it is very difficult at the present time to talk about any kind of predictable results when the definitive text of the FWD is still under discussion within the EU Council. At the same time the Treaty of Lisbon118 has since been signed. Obviously, the new text would contribute to empowering the provision of procedural safeguards in criminal proceedings insofar as article 69a (2) Lisbon Treaty explicitly contemplates the establishment of minimum rules in the area of the rights of individuals in criminal procedure, rendering the defensive argument founded on an inadequate legal basis untenable,119 which is at present put forward by certain national delegations. Besides, the enforcement of the Charter of Fundamental Rights will contribute by strengthening the procedural rights of suspects and accused persons with a constitutional value inasmuch as they are included in it.120

116 §74. For this reason the right in question “does not go so far as to require a written translation of all items of written evidence or official documents in the procedure.” 117 See especially §§68 and ff. Although arguments are advanced on the right of the person charged with a criminal offence to be informed of the accusation against him, differences between the right to be freely assisted by an interpreter during oral statements and the right of free translation of documentary material are also commented on here. 118 OJ C 306, 17 December 2007. See also Carrera, S. and Geyer, F., “The Reform Treaty and Justice and Home Affairs,” Chapter 16 of this volume; see also Presidency Conclusions 21/22 June 2007, conclusions no. 8–11. Conclusion no. 27 furthermore declares that “the European Council calls for work on procedural rights in criminal proceedings to be continued as soon as possible in order to contribute to increasing confidence in the legal systems of other Member States and thus to facilitate the mutual recognition of judicial decisions.” 119 Also Löof 2006, 430. On this topic, see Guild and Carrera 2006 in defence of the positive effects of the enforcement of the Treaty establishing a Constitution for Europe in this field. Also as indicative literature see De Kerchove and Weyembergh 2005, 349; as well as Meyer 2005, 802. In Spain, especially, Martín Diz 2006, 215 seq, talking about the origin of a criminal procedural system in the EU; also Jimeno Bulnes, “Origen y evolución de la cooperación judicial europea,” in Jimeno Bulnes forthcoming. 120 Articles 47-50 (OJ C 303, 14 December 2007, pp. 1–16) are related with the justice chapter and contemplate fundamental procedural safeguards such as the right to “due


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It is argued that one of the added values of the new EU Council “counterproposal” is the extension of such procedural guarantees to the execution of judicial cooperation and assistance for proceedings in criminal matters, which are now only to be found in the EAW, because previous references to extradition and surrender to international courts121 have been deleted in the proposal for a FWD presented on 5 June 2007. In fact, recital 4 of the FWD explanatory memorandum makes explicit mention of the new rule, which had up until then been absent in previous FWD drafts proposed by the European Commission and even the EU Council.122 Any extension would be welcomed:123 For that same reason, however, the suppression of the reference, for example, to arrest and surrender procedures to the International Criminal Court (ICC) is even more surprising, inasmuch as articles 89 seq.of the Rome Statute do not provide any sort of procedural rights—with the sole exception of ne bis in idem. This, unlike the EAW, which is the only existing FWD on mutual assistance in force and in which some of the procedural safeguards mentioned here are also explicitly contemplated, despite the criticism voiced by certain commentators.124 What it is certainly true is the need for equilibrium between judicial cooperation and procedural rights. Both represent two sides of the same coin which is

process of law” (article 47), the right to the presumption of innocence (article 48(1)), the right to defence (article 48(II), ne bis in idem (article 50) and so on. See Lagodny 2005, 791. A commentary on these procedural rights in Spain is provided by Martín Diz 2005, 290 et seq.; also previously Astola Madariaga 2002, 163 et seq. 121 That is the arrest and surrender to the International Criminal Court according article 89 Rome Statute signed on 17 July 1998. See for example Schabas 2004, 132–7; in Spain, Lirola Delgado and Martín Martinez 2004, 208–18 presenting a comparative view of such procedural guarantees in both surrender procedures provided in the Statute of Rome and the EAW. 122 Such a reference appears in the EU Council German Presidency text of 22 December 2006, loc. cit. 123 Even more in countries such as Spain, where the Constitutional Court has accepted the criteria expressed by the National High Court in order to qualify such extradition and EAW proceedings as strictly “international judicial cooperation” proceedings—instead of criminal proceedings—as far as they do not produce res judicata; see for instance case SSTC 83/2006, 13 March, and 293/2006, 10 October, available at http://www.tribunalconstitucional.es/jurisprudencia/jurisprudencia.html (last accessed 3 December 2007). 124 Specifically, the right to be assisted by legal counsel and by an interpreter according to article 11 (2) EAW. On the topic of EAW and fundamental rights from a critical perspective see Vennemann 2003; for this reason and due to concerns over a possible breach of fundamental rights in the course of EAW procedures, the DG Justice and Home Affairs of the European Commission made public a document on “the European arrest warrant and defendants” rights: an overview” in order to present the inherent safeguards of the EAW itself as well as making reference to the FWD proposal put forward at that time by the European Commission. On the contrary, other commentators stress some of the advantages of the new instrument from the point of view of fundamental rights, for example in relation to the right to be tried “in a reasonable time,” see Siracusano 2003.

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criminal justice in EU. As has been argued (Mitsilegas 2006),125 the adoption of “protective” measures on defence rights is necessary in order to balance the enforcement priorities of mutual recognition and the former come much slower than the latter. Also, European institutions such as the European Parliament126 have recognized that “mutual recognition and minimum harmonisation must go hand in hand” because a common legislative corpus is necessary in order to ensure mutual recognition and because the construction of a European judicial area cannot be solely based on mutual recognition. Finally, the regulation of procedural rights at EU level through the proposed FWD can ensure a more effective judicial protection of the “due process of law” in Europe in the line with ECHR, which shall be done by the European Court of Justice (ECJ)127 and which shall be added to that is promoted in Strasbourg. In fact, the contribution made by ECJ jurisprudence to the development and protection of fundamental rights—including procedural rights, many of which are also provided for in the European Convention—has already been demonstrated some time ago.128 Similarly the relation between both supranational courts in Luxembourg and Strasbourg need careful attention;129 The FWD draft only seeks to improve (and not to reduce) the protection of those procedural rights but does not pretend to “compete” with the European Court at Strasbourg.130 As is evident from ECtHR case law, numerous alleged violations of articles 5 and 6 125 Also, for example, Jimeno-Bulnes, “La orden de detención europea,” in JimenoBulnes 2007a, 338. 126 LIBE Committee “Working document on the impact of the European arrest warrant on fundamental rights; initial guidelines with a view to a recommendation to the Council,” rapporteur Adelina Hazan, 22 September 2005, PE 362.745v01-00, DT/580979EN.doc. 127 As is well known, according to article 35 TEU, the Court of Justice of the European Communities can resolve preliminary rulings from national courts although a declaration based on the third pillar in favour of its jurisdiction is still necessary; also, jurisdiction is provided in order to review the legality of framework decisions and decisions as well as to resolve disputes between member states according to the conditions established by articles 35 (6) and (7) TEU respectively. As it happens, five of the six dissenting member states (the exception is the Czech Republic) have not recognized the competence of the ECJ on preliminary rulings; see Peers 2007, 6. One good example is a recent ECJ judgment in the case of Advocaten voor de Wereld VZW v. Leden van de Ministerraad, 3 May 2007, C-303/05 solving the preliminary questions posed by the Belgian Constitutional Court in relation to the legal basis and validity of the FWD on the European arrest warrant. In the future, jurisdiction of the ECJ will become compulsory for all member states in relation to the area of freedom, security and justice. Yet, as it has been already said, the final outcome of the reform process including ratification in member states is open and we will have to see what happens with the judicial institutions in the future EU. 128 On this topic see recent studies by Barbier de la Serre 2006; De Cecco 2006; in Spain Ubeda Tarajano 2006; Ordoñez Solís 2007. 129 For a comparative approach on both jurisdictions, see Ahmed and de Jesús Butler 2006; Douglas-Scott 2006. 130 Such an argument was advanced by the promoter of the FWD proposal, see Morgan 2006, 101.


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ECHR continue to be brought before the court to this day, so regulation in this area at the level of the EU is still needed and only the future will tell whether or not European member states will be able to act together to ensure that justice is effectively administered throughout their respective territories.131

References Ahmed, T. and de Jesús Butler, I. (2006), “The European Union and Human Rights: An International Law Perspective,” European Journal of International Law, vol. 17 no. 4, 771–801. Alegre, S. (2002), “The Myth and the Reality of a Modern European Judicial Space,” New Law Journal, 986–7. Alegre, S. (2004), “EU Fair Trial Rights—Added Value or no Value?,” New Law Journal, 758–759. Allen, R.J., Hoffmann, J.L., Livingston, D., and Stuntz, W. (2005), Criminal Procedure: Investigation and Right to Counsel (New York: Aspen Publishers). Arangüena Fanego, C. (2005a), “Exigencias en relación con el derecho de la defensa: el derecho a la autodefensa, a la defensa técnica y a la asistencia jurídica gratuita,” in García Roca, J. and Santolaya, P. (eds), La Europa de los Derechos: el Convenio Europeo de Derechos Humanos (Madrid: Centro de Estudios Políticos y Constitucionales), pp. 389–405. Arangüena Fanego, C. (2005b), “Exigencias en relación con la prueba testifical contenidas en el artículo 6.3.D del CEDH,” in García Roca, J. and Santolaya, P. (eds), La Europa de los Derechos: el Convenio Europeo de Derechos Humanos (Madrid: Centro de Estudios Políticos y Constitucionales), pp. 407–28. Arangüena Fanego, C. (ed.) (2007), Garantías procesales de los sospechosos e imputados en los procesos penales de la Unión Europea, (Valladolid: Lex Nova, including an English version of each paper). Astola Madariaga, J. (2002), “La importancia de la paulatina codificación de los principios generales del derecho comunitario,” in Corchera Atienza, J. (ed.), La protección de los derechos fundamentales de la Unión Europea, Instituto Internacional de Sociología Jurídica de Oñate (Madrid: Dykinson), pp. 157–99. Barbier de la Serre, E. (2006), “Procedural justice in the European Community. Case-law Concerning the Rights of the Defence: Essentialist and Instrumental Trends,” European Public Law, vol. 12 no. 2, 225–50.

131 At present, the possibility of using the form of “enhanced cooperation” (article 43 TEU) between at least eight member states is being discussed as well as a possible optout clause according to options examined by COREPER and contained in mentioned Presidency’s FWD proposal of 5 June 2007. As European Commission Vice-President Franco Frattini stated, “if one or two member States will not accept a framework decision, whatever the content, and however hard others try to achieve a compromise, the only solution may be to go ahead without them” (press release: International symposium discusses binding legal guarantees in criminal proceedings to apply EU-wide, Era mailing list, [email protected], received on 22 February 2007). Although it would not be a new approach, if we remember the adoption of the Euro, it would certainly be sad for fundamental rights across the EU.

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Barona Vilar, S. (2005), “Garantías y derechos de los detenidos,” in Gutiérrez-Alviz Conradí, G. and López López, E. (eds), Derechos Procesales Fundamentales, Manuales de formación Continuada 22–2004 (Madrid: Consejo General del Poder Judicial), pp. 51–96. Blanco Peñalver, A. (2006), “El Estado actual de las garantías procesales penales en el ámbito de la Unión Europea,” in Díaz-Maroto y Villarejo, J. (ed.), Derecho y Justicia penal en el siglo XXI. Liber Amicorum en homenaje al profesor Antonio González-Cuellar García (Madrid: Colex), pp. 799–819. Chiavario, M. (2005), “Private Parties: The Right of the Defendant and the Victim,” in Delmas-Marty, M. and Spencer, J.R. (eds), European Criminal Procedures (Cambridge: Cambridge University Press), pp. 541–93. Costello, C. (2006), “The Bosphorus Ruling of the European Court of Human Rights: Fundamental Rights and Blurred Boundaries in Europe,” Human Rights Law Review, vol. 6 no. 1, 87–130. De Cecco, F. (2006), “Room to Move? Minimum Harmonization and Fundamental Rights,” Common Market Law Review, vol. 43 no. 1, 9–30. Delmas-Marty, M. and Spencer, J.R. (eds) (2005), European Criminal Procedures (Cambridge: Cambridge University Press). De Hoyos Sancho, M. (2005), “El principio de reconocimiento mutuo de resoluciones penales en la Unión Europea: ¿asimilación automática o corresponsabilidad?,” Revista de Derecho Comunitario Europeo, vol. 9 no. 22, 807–42. De Kerchove, G. and Weyembergh, A. (2001), La reconnaissance mutuelle des décisions judiciaires pénales dans l’Union Europénne (Brussels: Institut d’Études Europénnes). De Kerchove, G. and Weyembergh, A. (2005), “Quelle Europe pénale dans la Constitution,” in Donny, M. and Bribosia, M. (eds), Commentaire de la Constitution de l’Union européenne (Brussels: Editions de l’Université de Bruxelles), pp. 317–53. De Zwaan, J.W. and Goudappel, F.A.N.J. (eds) (2006), Freedom, Security and Justice in the European Union: Implementation of the Hague Programme (The Hague: T.M. C. Asser Press). Douglas-Scott, S. (2006), “A Tale of Two Courts: Luxembourg, Strasbourg and the Growing European Human Rights Acquis,” Common Market Law Review, vol. 43 no. 3, 629–65. Elsen, C. (1999), “L”esprit et les ambitions de Tampere: une ère nouvelle pour la coopération dans le domaine de la justice et des affaires intérieures?,” Revue du Marché commun et de l’Union européenne, no. 433, 659–63. Elsen, C. (2007), “From Maastricht to the Hague: The Politics of Judicial and Police Cooperation,” ERA Forum, vol. 8. no. 1, 13–26. Gallego-Casilda, Y. (2003), “El Libro Verde de la Comisión Europea sobre las garantías procesales para sospechosos e inculpados en procesos penales en la Unión Europea,” in Galgo Peco, A. (ed.), Derecho penal supranacional y cooperación jurídica internacional, Cuadernos de Derecho Judicial XIII-2003 (Madrid: Consejo General del Poder Judicial), pp. 235–56. Gomis Catalá, L. (2006), “Ejecución del programa de La Haya: el camino a seguir,” Unión Europea Aranzadi, vol. 33 no. 8, 21–4. Guild, E. and Carrera, S. (2006), “No Constitutional Treaty? Implications for the Area of Freedom, Security and Justice,” in Balzacq, T. and Carrera, S. (eds), Security versus Freedom? A Challenge for Europe’s Future (Aldershot: Ashgate), pp. 224–39. Gutiérrez-Alviz Conradí, F. (2005), “El derecho a la defensa y a la asistencia de letrado,” in Gutiérrez-Alviz Conradí, F. and López López, E. (eds), Derechos Procesales


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Fundamentales, Manuales de formación Continuada 22–2004 (Madrid: Consejo General del Poder Judicial), pp. 277–318. Jiménez-Villarejo Fernández, F. (2006), “El Derecho fundamental a a ser asistido por abogado e intérprete,” in Muñoz de Morales, M. (ed.), La orden de detención y entrega europea (Cuenca: Ediciones de Castilla-La Mancha), pp. 325–54. Jimeno-Bulnes, M. (2004), “La orden europea de detención y entrega: aspectos procesales,” Diario La Ley, 19 March, pp. 1–7. Jimeno-Bulnes, M. (2006), “Spain and the European Arrest Warrant—The View of a “Key User,” in Guild, E. (ed.), Constitutional Challenges to the European Arrest Warrant (Nijmegen: Wolf Legal Publishers), pp. 163–85. Jimeno-Bulnes, M. (2007), “El derecho a la interpretación y traducción gratuitas,” Diario La Ley, 14 March, 1–10. Jimeno-Bulnes, M. (ed.) (2007a), La cooperación judicial civil y penal en el ámbito de la Unión Europea: instrumentos procesales (Barcelona: Bosch). Lagodny, O. (2005), “Überlegungen zu einem menschengerechten transnationalen Straf- und Strafverfahrensrecht,” in Arnold, J., Koch, H.-G., and Perron, W. (eds), Menschengerechtes Strafrecht. Festschrift für Albin Eser zum 70. Geburtstag (München: Verlag C.H. Beck), pp. 777–95. Lirola Delgado, I. and Martín Martinez, M. (2004), “La cooperación penal internacional en la detención y entrega de personas: el Estatuto de Roma y la Orden Europea,” Anuario de Derecho Internacional, vol. 20, 173–240. Lööf, R. (2006), “Shooting from the Hip: Proposed Minimum Rights in Criminal Proceedings throughout the EU,” European Law Journal, vol. 12 no. 3, 422–30. Lugato, M. (2003),“La tutela dei diritti fondamentali rispetto al mandato d’arresto europeo,” Rivista di Diritto Internazionale, vol. 86 no. 1, 27–54. Maffei, S. (2006), The European Right to Confrontation in Criminal Proceedings (Absent, Anonymous and Vulnerable Witnesses) (Amsterdam: Europa Law Publishing). Martín Diz, F. (2004), “Bases para la construcción de un Derecho Procesal comunitario: garantías procesales fundamentales en la Unión Europea,” in Libro Homenaje a D. Eduardo Font Serra, I (Madrid: Ministerio de Justicia-Centro de Estudios Jurídicos) pp. 269–313. Martín Diz, F. (2006), “Constitución Europea: génesis de una justicia penal comunitaria,” in Martín Diz, F. (ed.), Constitución Europea: aspectos históricos, administrativos y procesales (Santiago de Compostela: Tórculo), pp. 197–267. Meyer, J. (2005), “Die künftige Europäische Verfassung und das Strafrecht,” in Arnold, J., Koch, H.-G., and Perron, W. (eds), Menschengerechtes Strafrecht. Festschrift für Albin Eser zum 70. Geburtstag (München: Verlag C.H. Beck), pp. 797–806. Mitsilegas, V. (2006), “Trust-building Measures in the European Judicial Area in Criminal Matters: Issues of Competence, Legitimacy and Inter-institutional Balance,” in Balzacq, T. and Carrera, S. (eds), Security versus freedom? A Challenge for Europe’s Future (Aldershot: Ashgate), pp. 279–289. Monar, J. (2006), “Cooperation in the Justice and Home Affairs domain: characteristics, constraints and progress,” Journal of European Integration, vol. 28 no. 5, 495–510. Morgan, C. (2006), “Proposal for a Framework Decision on Certain Procedural Rights Applying to Proceedings in Criminal Matters throughout the European Union,” in Leaf, M. (ed.), Cross-border Crime: Defence Rights in a New Era of International Judicial Cooperation (London: JUSTICE), pp. 93–102. Ordóñez Solís, D. (2007), “Como hacer cosas con casos. Derechos fundamentales, integración europea y jueces,” Unión Europea Aranzadi, vol. 34 no. 3, 25–40.

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Ormazábal Sánchez, G. (2006), Espacio penal europeo y mutuo reconocimiento (perspectivas alemán y española) (Madrid: Marcial Pons). Palomo del Arco, A. (ed.) (2002), Sistemas penales europeos, Cuadernos de Derecho Judicial IV-2002 (Madrid: Consejo General del Poder Judicial). Peers, S. (2004), “Mutual Recognition and Criminal Law in the European Union: Has the Council got it Wrong?,” Common Market Law Review, vol. 41 no. 5, 5–36. Peers, S. (2007), “Statewatch analysis. Rights for a Criminal Suspects and EU Law,” at http://www.statewatch.org/news/2007/apr/Statewatch-analysis-crim-proced.pdf, accessed 29 June 2007. Schabas, W.A. (2004), An Introduction to the International Criminal Court, 2nd edition (Cambridge: Cambridge University Press). Siracusano, F. (2003), “Mandato di arresto europeo e durata ragionevole del processo,” Rivista italiana di Diritto e Procedura Penale, vol. 46 no. 3, 888–929. Trechsel, S. (2005), Human Rights in Criminal Proceedings (Oxford: Oxford University Press). Ubeda Tarajano, F.E. (2006), “La labor del Tribunal de Justicia de la Unión Europea en orden a la protección de los Derechos Fundamentales,” Boletín de Información del Ministerio de Justicia, 15 October, no. 2023, 4251–91. Valbuena González, F. (2006), “La propuesta de Decisión Marco del Consejo relativa a determinados derechos procesales en los procesos penales celebrados en la Unión Europea,” Diario La Ley, 5 October, no. 6564, 1–5. Valbuena González, F. (2007), “Derechos procesales del imputado,” in Jimeno Bulnes, M. (ed.), La cooperación judicial civil y penal en el ámbito de la Unión Europea: instrumentos procesales (Barcelona: Bosch). Vennemann, N. (2003), “The European Arrest Warrant and its Human Rights Implications,” Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, vol. 63 no. 1, 103–21. Weyembergh, A. (2005), “Approximation of Criminal Laws, the Constitutional Treaty and The Hague Programme,” Common Market Law Review, vol. 42 no. 6, 1567–97.

Chapter 11

The “Prüm Process”: The Way Forward for EU Police Cooperation and Data Exchange? Rocco Bellanova

The Convention of Prüm, agreed between seven member states on May 2005, aims at “stepping up their cooperation, in order to combat terrorism, cross-border crime and illegal migration more effectively.”1 This cooperation is enhanced by a system of exchange of information (DNA, fingerprints and vehicle registration data), new forms of police cooperation and measures to combat “illegal migration.” This international treaty has been offered to the European Union as a Europeanwide tool to further police cooperation and data exchange. Furthermore, it has often been described by its supporters as a concrete step forward to improve European integration. Transposing the Prüm Convention into the EU framework was openly highlighted as a priority by the publication of the German Presidency Program in the first days of January 2007 (Bundesministerium des Innern 2006, 30), and by the launch of official EU discussions at the informal Ministers’ Meeting on 14–16 January 2007.2 The strategy of the German Presidency seems to have been quite successful. During the Justice and Home Affairs Council (JHA Council) of February 2007, “the Council agreed on the integration into the EU legal framework of parts of the Prüm Treaty” (Council 2007k). In June 2007, member states’ delegations reached a political consensus on the “Council Decision 2007/…/JHA of … on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime” (Council 2007e). This Council decision aims at transposing the “essential parts” of the Prüm Treaty into the EU legal framework, notably “provisions designed to improve the exchange of information,” DNA, fingerprints and vehicle registration data, and provisions on “closer cooperation between police authorities, by means of joint 1 Preamble of Council of the European Union (2005), Prüm Convention, doc. 10900/05 CRIMORG 65 ENFOPOL 85 (Brussels). Hereinafter: “Prüm” or “Convention.” 2 Informal Meeting of Justice and Home Affairs Ministers, Dresden, 14–16 January 2007. The topic of the plenary session on 15 January 2007 was “Stepping up cross-border cooperation by transposing the Prüm Treaty into the legal framework of the EU.”

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security operations and cross-border intervention in the event of an immediate danger to life or limb” (General Secretariat 2007b, 3–4). The Prüm Convention, and the related Council decision, is supposed to offer legal and technological instruments to fight terrorism and international crime more efficiently, compensating potential negative spill-overs of the Schengen era. Yet, its transposition into the EU framework raises several worries by way of procedure as well as content. The Prüm provisions directly concern citizens of the EU and third country nationals. Thus, transparency, legitimacy and fundamental rights implications of Prüm provisions need to be accurately evaluated. The aim of this chapter is to analyse the process of transposition of the Prüm Treaty into the EU framework as a national and European field of struggle. What are the main instruments at disposal of the main actors, national governments and parliaments, as well as of European institutions? What are the main issues at stake and what are the positions held by the main actors? Raising these questions and trying to answer them offers an opportunity to underline the main concerns linked to this process, particularly those concerning legitimacy, transparency and consequences on fundamental rights. Also, the transposition of article 25 Prüm on police cooperation, the exchange of sensitive data and the costs-sharing of the implementation, offers a case-study to better understand the complexity of this apparently pacific field of struggle.

The Main Actors and the Main Legal Instruments at their Disposal Main Instruments under the Prüm Regime of International Law and Position of the Actors The Prüm Convention as an international treaty is subject to the rules of international and national laws. The Convention must be signed and then ratified. 90 days after the deposition of the instruments of ratification it enters into force, articles 48 to 50 Prüm. Generally speaking, it is the governments that have the powers to negotiate and sign the Convention, which is followed by the national process of ratification. In this second process, national parliaments are supposed to be more involved, even if they cannot change the outcome of the previous negotiations. However, if according to national law national parliaments have to vote on the ratification, they have also the ultimate power to stop the procedure. This is a strong power; however, due to the generally large amount of legislative work, effective implementation of this power depends on the level of awareness of national parliaments with regard to the topics addressed by the Convention. The European Parliament and the European Commission have no official role or possibility of control, unless they decide to challenge the Convention before the European Court of Justice (ECJ) for an infringement of the so called principle of loyalty. This principle is set in article 10 Treaty establishing the European Community (TEC), which states that member states “shall abstain from any measure which could jeopardise the attainment of the objectives of this

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Treaty.” Despite the question of a possible infringement raised by several studies (Balzacq 2006a, 2–3; Apap and Vasiliu 2006, 4–5; Hijmans 2006, 36) as well as the European Data Protection Supervisor (EDPS) in his opinion on the “principle of availability” (EDPS 2006a), the European Commission and the European Parliament did not decide to bring the matter before the Court.3 Yet, both the EU Parliament and Commission organized a hearing on the topic. According to several interviews and to the available documentation, national data protection authorities were not formally involved in the negotiations of the Prüm Convention, and the European Data Protection Supervisor (EDPS) was almost excluded.4 Only the German data protection authority was more directly involved than others. Already in its annual report 2003/2004, the German federal commissioner for data protection spoke of a personal involvement in an ongoing German-Austrian-BENELUX project of data exchange (German Federal Commissioner for Data Protection 2005, 24). He was also invited to the “Experten Seminar” in Vienna of November 2006, where he discussed and defended the data protection provisions of the Prüm Treaty.5 Some of the data protection authorities of the Prüm contracting parties published internally or externally opinions predating the signing or ratification of the Prüm Treaty, according with their national laws and with the will of governments to involve them (AEPD 2005; CNIL 2006a; CNIL 2006b). Other national data protection authorities were not even properly informed about the “Prüm process,” as highlighted by Dr von Pommer Esche, Head of Unit of the German federal data protection office, in his oral evidence before the House of Lords on 1 December 2006.6 Main Instruments at Disposal under the EU Framework and Position of the Main Actors The roles and the main instruments at disposal of the main actors dealing with “Prüm” change partially during the discussions concerning the transposition of “parts of ” Prüm into the EU legal framework. The intention to transpose part of the Convention into the EU framework was taken at intergovernmental

3 The question of the possible infringement of article 10 TEC is also discussed in the Report of the House of Lords, see: House of Lords 2007b, 11–12. 4 Nevertheless, the EDPS advanced some remarks on the Prüm Treaty in occasion of the publication of his opinion on the principle of availability, EDPS 2006a. 5 However, even if the position of the German federal commissioner for data protection is quite positive on the data protection provisions of the Prüm Convention, he also stressed some points of critique on the purposes of use of such sensitive data (interview held in December 2006). 6 “I had the impression from some colleagues that they were not at all informed about the negotiations of such far-reaching project like the treaty of Prüm,” answering Q282, House of Lords (2006b), Corrected Oral Evidence given by Dr Wolfgang von Pommer Esche, Head of Unit, Police Intelligence Service, Federal Data Protection Office, Inquiry into the development of the second generation Schengen Information System (London).

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level, during the G6 in Heiligendamm on 22 and 23 March 2006.7 The idea to integrate parts of Prüm was further developed and discussed in at least two other intergovernmental meetings before its formal publication in the German Presidency agenda: the “Experten Seminar ” held in Vienna on 16 and 17 November 2006 and the informal meeting of eleven interior ministers on 5 December 2006, at the margins of the December JHA Council. However, since the presentation of the first draft Council decision at the meeting of the “Article 36 Committee”8 on 25–26 January 2007, one could say that the “core parts” of the Prüm Treaty open a new dimension of the struggle field, marked by the rules of the EU legal framework. Until the middle of January 2007 it was not so clear by which legal instrument the German Presidency aimed at transposing the Prüm Treaty into the EU legal order.9 According to several interviews,10 there were at least three possible scenarios of integration: the enhanced cooperation, the acquis via the ratification of all member states and the adoption of one or more framework decisions or Council decisions. Finally the third option was chosen, in the form of a Council decision. This is an instrument of Title VI of the Treaty on European Union (TEU) at the disposal of the Council in order to “take measures and promote cooperation (…) contributing to the pursuit of the objectives of the Union” as stipulated by article 34 (2) TEU. The initiative is open to “any Member States or (to) the Commission,” yet unanimity is required to adopt the measure. Article 34 (2) (c) TEU imposes also some purpose limitations to the adoption of Council decisions: it excludes “any approximation of the laws and regulations of the Member States” and the decisions “shall not entail direct effect.”11 The provision furthermore provides that the Council “shall adopt measures necessary to implement those decisions” at qualified majority, that means 18 member states and a minimum of 255 votes in favour of a proposal aiming at implementing such Council decisions.12

7 The Interior Ministers of France, Germany, Italy, Poland, Spain and the United Kingdom “stressed that the promising model offered by the Prüm Treaty, including online requests and hit/no hit access, should be considered at EU level as soon as possible.” Conclusions of the Heiligendamm Meeting, appendix 5 of House of Lords 2006a, 27. 8 A committee foreseen by article 36 TEU. It is made up of senior officials and its role is to coordinate the competent Council working groups in the field of police and judicial cooperation. 9 For example, because of the very limited availability of Council working documents, the Coordinators’ Meeting of the LIBE Committee held on 24 January 2007 agreed to ask an opinion on this matter to the European Parliament Legal Service. 10 Interviews with several high officials of member states’ ministries and permanent representations, held between November and December 2006. 11 Given the content of the draft Council decision, the European Parliament supported the idea of the need to adopt a framework decision instead of a Council decision, see European Parliament, Committee on Legal Affairs 2007. 12 Article 34 (3) TEU and article 205 (2) TEC.


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Given the choice of such an instrument, the member states have a major role to play, and a strong contractual force in the negotiations of the text, as showed by the discussions concerning the introduction of article 25 Prüm. Under this framework, the European Commission and the European Parliament are involved in the decision making, yet only in a rather marginal way in case the initiative comes from a member state. According to article 39 (1) TEU, the European Parliament is only consulted before the adoption of a Council decision, and it “shall deliver its opinion within a time limit which the Council may lay down, which shall not be less than three months.” However, as article 39 (2) TEU provides, the European Parliament maintains a right to be regularly informed on the discussions taking place in the areas covered by Title VI TEU, including discussions concerning Council decisions, The draft Council decision was transmitted to the European Parliament for consultation at the beginning of March 2007. According to the “lettre de saisine,” the Council “would appreciate it if the European Parliament could deliver its Opinion not later than 7 June 2007” (Council of the European Union 2007j, 4). As highlighted in the text of the report, the European Parliament had “to express its opinion as a matter of urgency, without adequate and appropriate time for Parliamentary review” (European Parliament, Committee on Civil Liberties, Justice and Home Affairs 2007c, 6). The report proposes 70 amendments to the German initiative, in order to reinforce data protection and making the exchange of data conditional to the requirements of proportionality and necessity. The report recommends also “an evaluation of the administrative, technical and financial application and implementation” of the Prüm initiative.13 However, the schedule imposed by the German Presidency did not leave enough time to negotiate in the Council the amendments proposed by the European Parliament. National parliaments still have a role in the process following the adoption of a Council decision, as they are responsible for the adoption of national transposition laws and for the national implementation of Council decisions. However, this role is generally downsized by almost automatic procedures of transposing European legislations. The national data protection authorities can play a role of consultation in the national implementation, and at the European level, via the “Article 29 Working Party”,14 but without the possibility to stop the procedure. The European Data Protection Supervisor has published an opinion on the topic covered by the Council decision, but this opinion is not legally binding and could be ignored at the moment of the adoption.15 13 European Parliament, Committee on Civil Liberties, Justice and Home Affairs (2007c), amendment 70 to Article 37a (new). 14 On this body see for more detail González Fuster, G. and Paepe, P., “Reflexive Governance and the EU Third Pillar—Analysis of Data Protection and Criminal Law Aspects,” Chapter 8 of this volume. 15 European Data Protection Supervisor 2007. It is also very interesting to observe that the German Presidency published a “response to the press release of the EDPS,” aiming at highlighting some positive comments on data protection and downsizing the main critics, see EU2007.DE 2007.

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This picture of the main instruments at disposal of the main actors dealing with the “Prüm process” underlines the importance of the “double framework” under which the actors can play. Moreover, it supports the hypothesis of Prüm as a field of struggle.

Article 25 of the Prüm Treaty: “Measures in the Event of Imminent Danger” Almost all the discussions and the critics concerning the content of the Prüm Treaty focused on the data exchange and on the presence of provisions covering first pillar issues such as “air marshals” (articles 17–19 Prüm) and immigration control (articles 20–23 and chapter 4 Prüm). As already said, the Prüm provisions relating to non third pillar issues did not enter the text of the draft Council decision and they will be enforceable under international law between the member states that already ratified or will ratify the Treaty. The introduction of article 25 Prüm, “Measures in the event of imminent danger,” has been at the centre of discussion in the Article 36 Committee and was one of the main point of dissonance during the February 2007 Justice and Home Affairs Council (JHA Council) meeting. Article 25 (1) Prüm allows “officers from one Contracting Party (…), without another Contracting Party’s prior consent, cross the border between the two so that (…) they can take any provisional measures necessary to avert imminent danger to the physical integrity of individuals.” The text of this provision was transposed without major changes in the first two drafts of the Council decision, and thus becoming the famous article 18.16 The press release of the February 2007 JHA Council states that the Council agreed on the integration into the EU legal framework of the parts of the Prüm Treaty relating to police and judicial cooperation in criminal matters, “with the exception of the provision relating to cross-border police intervention in the event of imminent danger (Article 18). This particular issue will be further examined by the Council” (Council of the European Union 2007k, 7). Following these discussions, the third version of the draft Council decision published on 27 February 2007 (Council of the European Union 2007c) already discarded the introduction of the measures in case of imminent danger. The discussions concerning this article are a very interesting topic, as they highlight some discrepancies between member states, and to a certain degree, the influences of national inter-ministerial debates. Given the fact that most of the discussions on this point occurred during meetings held in the Council or at ministerial level, official documents dealing with this topic are few. Moreover, the discussions are still going on at the moment of the drafting of this study, and part of the documentation is still not available. 16 Article 18 draft Council decision, General Secretariat of the Council (2007b) and article 18, draft Council decision, Council of the European Union (2007e). After the February 2007 JHA Council, several official referred to the discussions concerning article 18, other used as reference the text of Convention and so article 25. In order to avoid misunderstanding, the Prüm Treaty numeration will be adopted.


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“The measures in the event of imminent danger” are part of a package of police cooperation measures17 that includes the setting up of “Joint operations” (article 24 Prüm), “Assistance in connection with major events, disaster and serious accident” (article 26 Prüm) and “Cooperation upon request” (article 27 Prüm). Moreover, the measures ex-article 25 Prüm, together with the “Joint operations,” are defined more in depth in the Implementing Agreement and its annexes.18 However, this package of “other forms of cooperation” was already presented scattered at the beginning of the German Presidency. Article 27 Prüm, Cooperation upon request, was the object of the first draft Council decision presented by the Presidency as a working document on 18 January 2007 (General Secretariat of the Council 2007a). This initiative was suspended after the meeting of the Article 36 Committee of 25–27 January 2007, as this Schengen-relevant provision “would be of very limited practical use since its content is almost entirely covered by the Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the EU” (Council of the European Union 2007h, 2). Like article 27 Prüm, article 25 Prüm seems also to be a development of a previous provision of Schengen, notably article 41, even if it is said to represent a sort of quantum leap in the setting up of a common management of the borders.19 The provision enables police officials to cross border in a wide range of case, erasing most of the limitations set in case of hot pursuit by article 41 Schengen. However, not all the member states seem to share the need of the integration of such a provision into the EU legal order. Therefore, article 25 Prüm risks to be the second provision concerning other forms of police cooperation discarded during Council negotiations. During the February 2007 JHA Council, the United Kingdom and Ireland asked and provisionally obtained the elimination of the provision. On the other hand, France and Luxembourg expressed their strong interest in transposing it into the EU framework. According to some interviews with high officials of member states’ representations, the United Kingdom and Ireland opposed the measure because of their constitutions, which do not allow them to let police forces of other countries enter their territory. These constitutional reasons were not evoked during the oral evidence before the House of Lords by J. Ryan MP. The Parliamentary Under-Secretary of State stressed the parallelism with article 41 Schengen, recalling the “opt-out” of the United Kingdom concerning this provision.20 J. Ryan MP stated that “we do not want to be in the position where 17 Chapter 5 Prüm, “Other Forms of Cooperation.” 18 Articles 14 and 15 Implementing Agreement and Annex D.1 and D.2. 19 An interesting exposal of the main differences between article 25 Prüm and article 41 Schengen is provided by Gandini 2006. 20 MP J. Ryan, answering Q6, House of Lords (2007a), Minutes of Evidence taken before the Select Committee on the European Union (Sub-Committee F), The Prüm Convention, Wednesday 7 March 2007, Joan Ryan MP, Mr Tom Dodd, Mr Nick Fussell and Mr Peter Storr (London, Evidence heard in Public, Unrevised Proof Copy).


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we could not stop police officers from another country coming onto our soil and exercising their powers.”21 J. Ryan MP acknowledged that some member states could be more interested in this provision because of their “long land borders”,22 downsizing the interest for a country such the United Kingdom. During the discussions, Greece seemed to have joined the “Anglo-Saxon” group against article 25 Prüm. On the other side, France and Luxembourg (later joined by Spain and the Netherlands) were very determined to maintain the provision in the text of the draft Council decision. According to interviews held, the geographical context of the Benelux and the substantial difference with article 41 Schengen were considered the most important factors. The discussions were partially settled during the February 2007 JHA Council with the withdrawal of the measures in event of imminent danger. However, the negotiations re-started in the follow-up of the JHA Council, and they were still ongoing at the moment of the transmission of the initiative to the European Parliament at the end of February 2007. A solution to the problem was proposed by the Portuguese minister of interior and was officially welcomed also by the United Kingdom.23 The idea was to avoid the discussions by re-introducing the provision but at the same time leaving the implementation of this article to bilateral or multilateral agreements among interested member states. The proposal is similar to article 39 (5) Schengen, that leaves the possibility to member states to further cooperation via bilateral and multilateral agreements. This Portuguese proposal is interesting because it highlights the tendency to take Schengen as a model offering quick and effective solutions on cooperation issues. Finally, according to interviews, the German position on the topic evolved from the initial proposal to the decision to delete the article in order to secure unanimity on the draft Council decision. The member states that were more openly pro-article 25 Prüm are all Prüm contracting parties. However, it seems that Germany was strongly lobbying these countries to soften their position and to agree on the withdrawal of the provision. This “German flexibility” was confirmed during the oral evidence of J. Ryan MP and Mr Storr before the House of Lords.24 Mr Storr answered the direct question on that matter of the chairman of the House of Lord Committee saying that his view as a negotiator was that the German Presidency changed the text because of the reservations expressed by the United Kingdom.25 However, one could question if this “German flexibility” is not a symptom of the strong will of the Presidency to achieve a positive vote on this draft Council decision avoiding every kind of danger. In any case, from a politicalcommunication point of view, the draft Council decision is seen as a way to introduce the data exchange provisions rather than the other forms of police 21 22 23 24 25

Ibid. Ibid. Ibid. Ibid. Mr Storr answering Q7, House of Lords (2007a).


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cooperation contained in the Prüm Convention. Given the double legal framework and seen from a practical point of view, Germany did not loose anything in deleting article 25 Prüm from the initiative. In the mid term, this withdrawal will contribute to raise the added value of the Prüm Treaty and so obliging other member states to ratify the Convention.

The Data Exchange and the Data Protection Provisions The data exchange provisions are one of the main issues of the Treaty of Prüm in itself and of its integration into the EU legal framework. Member states have already officially agreed on the principle that sharing information and personal data is crucial. The adoption of the Hague Programme in November 2004 and the call for the implementation of the so called principle of availability26 by 1 January 2008 could be considered as fundamental steps of growing interest in data exchange as a mean to manage European security and achieve the goal of the establishment of an area of freedom, security and justice (Hijmans 2006). Technically speaking, the Prüm data exchange system of DNA and fingerprints is based on the concept of “keys interoperability,” that means that biometrics are used to univocally identify someone and access its information. However, “interoperability of keys” is not, per se, without risks of errors and of privacyunfriendly intrusion in the life of citizens (De Hert 2006, 7–10). Moreover, the provisions of the Treaty of Prüm enable the exchange of very sensitive data, as is the case with DNA and fingerprints. The effective implementation of data exchange provisions appears to face difficulties, generated by a lack of trust between authorities within the same or different member states (Hijmans 2006, 2–3) or the perception that data belong to the authorities that store them (Bigo 2007). A second problem is the need of unanimity in the Council to pass European legislation on third pillar matters. These two reasons were quoted informally by the partisans and sponsors of the Prüm Treaty, stating that the Convention was the better way to achieve what every member state agreed on, but was structurally not able to implement. De facto, the Prüm Treaty found an ex-post justification and a wide member states’ approval in the draft Council decision and especially in the wording of the considerandum 10, which states that the requirements of the need of data exchange are “satisfied by the Prüm Treaty (…).” Moreover, the considerandum states that “in order that the substantive requirements of the Hague Programme can be fulfilled for all Member States and that its targets in terms on time-scale can be achieved, the essential parts of the Prüm Treaty need to be made applicable to all the Member States.” According to the text of the draft Council decision, to public documents as well as several interviews held with high official of member states’ permanent 26 The definition of the “label” principle of availability varies widely according to the speaker, the context and the goals to achieve. For an interesting discussion on this topic see Bigo et al. 2007.

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representations and ministries, all the member states agree on the importance of the data exchange and on the adoption of the Prüm system. Moreover, according to some interviews with high officials of national data protection authorities, some governments are very interested in Prüm because the Treaty, as well as the draft Council decision, creates a sort of political-legal obligation to set up DNA databases and thus avoiding complex discussions at national level with public opinion and national parliaments.27 Given the domain of this issue, national data protection authorities and the EDPS are among the main actors. However, not all the data protection authorities have expressed their view on the matter, and not all of them share the same opinion. The national data protection authority that raised more concerns is the French CNIL (CNIL 2006b). The Spanish authority wrote only a legal opinion prior to the signature in May 2004 (AEPD 2005) and the Italian Garante per la Privacy discussed publicly the idea of DNA data exchange under Prüm in its annual relation 2005 (Garante della Privacy 2006). An informal meeting between several data protection authorities was held in Bonn on 27 July 2006, with the aim of discussing the data exchange and data protection provisions of the Prüm Treaty, in order to influence indirectly the works of the Prüm technical working groups dealing with the design of the implementing measures. As already said, the EDPS seized the opportunity of the drafting of his opinion of May 2006 on the principle of availability (EDPS 2006a) to discuss the Treaty of Prüm. This opinion is very interesting because it highlights the importance of the context. The EDPS expressed its disapproval on the procedure adopted by some member states to address the question of data exchange, but also had to underline some positive data protection elements, especially when comparing them to the system designed by the Commission in its proposal.28 In fact, the data exchange system provided by the Prüm provisions is quoted as being to be “quite perfect.” This idea was not only expressed by high officials of the German permanent representation and ministries; also the German federal commissioner for data protection approved the system during the Vienna’s “Experten Seminar.” The “technical security” of the “Prüm system,” especially if compared to the Commission proposal, appears to several data protection specialists, according to many interviews, as a more reliable and secure one. However, some concerns arise nevertheless, especially concerning DNA data management. Notwithstanding the difficult position of national data protection

27 For example, according to a Portuguese official interviewed in November 2006, the Portuguese government’s first proposal to establish a DNA database for civil and penal purposes encountered several points of criticism, and the government was obliged to water down the proposal. However, joining the Treaty of Prüm or the adoption of the draft Council decision could help the Portuguese government to speed up the process offering a “good pretext” to establish the DNA database. 28 In fact, the opinions of the EDPS and several interviews with officials of national data protection authorities between October and December 2006, seem to express the idea that the Commission proposal was more worrying than the Prüm system, and more difficult to control.


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authorities and the EDPS, it is possible to use their past opinions and information provided during direct interviews to underline the main problems. In his second opinion on the proposal for a Council framework decision on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters, the EDPS underlined the importance of “specific safeguards” to be put in place “with respect to the processing of certain specific categories of data, such as biometric data and DNA-profiles” (EDPS 2006b, §28). Given the importance of the use of such data for law enforcement authorities and the “specific risks for data subjects,”29 the EDPS emphasized the need for common rules. The data protection system of Prüm does not provide specific legal rules of safeguard for DNA or fingerprints. Article 26 (1)—Chapter 6—of the draft Council decision refers to an implementation at national level of standards equivalent to the Council of Europe Convention 108 of 28 January 1981 and its Additional Protocol of 8 November 2001 and Recommendation No R (87) 15 of 17 September 1987 of the Committee of Ministers of the Council of Europe. The Prüm system has, per se, a specific technical data protection system, notably based on a two step access to data, the hit/no hit system (articles 3 to 5 and 8 to 10 draft Council decision), and on double logging record (article 31 draft Council decision). However, one could argue whether this solution really offers the best guarantees to empower the control of data subjects on their own very sensitive and precious data, especially if data subjects have only an ex-post right of information. In fact, article 32 (1) of the draft Council decision states that information provided to the data subject on the processing of its own data shall be supplied “at request of the competent body under national law.” Thus, it seems that the exception, processing of sensitive data without data subjects knowledge, becomes the general rule.30 Moreover, the technical Prüm provisions fail to take into account the technological progress made daily in the field of DNA analysis.31 Due to the great scientific and economic interests surrounding DNA, it is foreseeable that in the mid-term what is now a “non-coding part” of DNA will become coding. To what extend is the European Commission supporting the Prüm Treaty? The European Commission advanced a proposal on the principle of availability in October 2005 (Commission 2005a) that competed with the Prüm Treaty. However, the European Commission was involved in the negotiations of the Implementing Agreement at least with observer status. It plays also a role in the effective implementation of the Prüm system, by providing the TESTA II communication network (see below for further details). On 18 December 2006, Vice-President and Commissioner Franco Frattini welcomed the German initiative to integrate parts of the Prüm Convention into the EU legal order (Frattini 2006). During this speech, Vice-President Frattini wished a future coherence between the data protection provisions of the 29 Idem. 30 For a larger analysis on data subjects’ rights see Apap and Vasiliu 2006. 31 This idea was expressed by the EDPS in EDPS 2006a, as well as in some interviews held between November and December 2006.

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Convention and the future European framework decision on data protection (Commission 2005b).32 On 20 March 2007, on the occasion of the presentation of the draft Council decision to the European Parliament, the delegate of the European Commission underlined the legal guarantees provided by the data protection provisions.33 Some members of the European Parliament have expressed their concerns on the question of DNA and data exchange. However, the consultation procedure limits enormously the powers of the European Parliament. Furthermore, regarding the agenda of the Parliament Committee responsible for the dossier (that is the LIBE Committee), the short deadline does not help, in theory, the European Parliament to enhance its role of public forum. Still, according to interventions done by MEPs in the six months preceding the presentation of the initiative, and according to some interviews, one could say that the Parliament is one of the actors more critic vis-à-vis the provisions on data exchange.34 There is a wide perception in several political groups that the data protection framework decision is continuously postponed in favour of the procedures dealing with the limitation of privacy. A final set of considerations on the impact of this draft Council decision on data protection could be useful to highlight a possible role for national parliaments. The draft Council decision seems to establish a legally binding obligation to create national DNA database in all the member states.35 Given the particular features of DNA, and the huge interests linked to it, the collection, storage and exchange of DNA are very sensitive issues. Not all the member states have a national DNA database: some have already initiated national legislative procedures to establish

32 “The data protection regime in the Prüm treaty is tailored to the exchange of specific categories of data considered in the Convention in itself. Indeed, it should be complemented by a coherent and complete data protection regime at the EU level and applicable across all third pillar issues,” Frattini 2006. 33 Notwithstanding this public support of the Prüm Initiative, merely one month before, the European Commission presented a new idea concerning fingerprint exchange for criminal purposes. In the Annual Policy Strategy for 2008, the Commission proposes the establishment of a centralized European fingerprint database, system that is, at least apparently, in contradiction with the Prüm decision to establish a network between national databases. No official solution has been presented to address the possible divergence. However, according to experts, the Prüm system risks to limit the capacity of exchange of fingerprints, and a hybrid solution of a partially centralized database could be technically helpful. See Commission 2007. 34 The amendments proposed by the Rapporteur Mr Fausto Correia MEP and by several MEPs seem to confirm this idea. The LIBE Committee has adopted a report that endorses the opinion of the EDPS and highlights the need to meet the criteria of proportionality and necessity in data exchange. See: European Parliament, Committee on Civil Liberties, Justice and Home Affairs 2007c, amendments 3, 6, 7, 10–12, 14, 16, 18, 20–23, 25, 26, 28–32, 34, 36, 38, 39, 41, 48–60, 64 and 70. 35 However, article 2 (1) of the draft Council decision states that “Member States shall open and keep national DNA analysis files for the investigation of criminal offences,” a definition that could risk to leave too much room to national interpretation.


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one or more databases, and some other member states have encountered some criticism and debates in doing so.36 Given the social importance of deciding on DNA, one could question if a Council decision is the best way to discuss and decide on such crucial topic. Even if the draft Council decision could assure a high level of data protection, at the same time, and not so indirectly, it “forces” member states to collect and store DNA analysis files without establishing clear rules of collection and storage. One may argue that a member state could use the Council decision as a legal basis to establish a DNA database, and then collect DNA files that include “coding parts” and not only the “non-coding parts” that will be exchanged under the Council decision rules. It is in this context that, given the limited powers of the European Parliament, national parliaments, as well as national data protection authorities could play an important role of democratic control.

The Economic Questions Surrounding Prüm The question of economic issues associated to the implementation of the Prüm provisions has been, surprisingly, one of the less discussed in public fora until the Informal Meeting of Justice and Home Affairs Ministers in Dresden on 14–16 January 2007. In fact, during this informal meeting, Poland, the Czech Republic, Ireland and the United Kingdom raised some concerns on the question of the costs (Agence Europe 2007). Article 46 Prüm states that “each Contracting Party shall bear the costs incurred by its authorities in implementing this Convention. In special cases, the Contracting Parties may agree on different arrangements” (Council 2005, 33). This provision has been transposed without substantial differences in the wording of article 35 of the draft Council decision. According to this provision, as a general rule member states shall bear “operational costs” in connection with the implementation, but they can still, “in special cases” (not further defined) agree on different arrangements. In fact, even if Prüm is an international treaty and not part of the EU legal order, the Implementing Agreement concerning the Prüm Treaty states that the electronic exchange of data (DNA, dactyloscopic related and vehicle registration data) will be done using the TESTA II communication network.37 TESTA II (Trans European Services for Telematics between Administrations) is “currently under the responsibility of the European Commission.”38 According to a Presidency note39 and several interviews with high officials of member states’

36 For example, this was the case of Portugal, where the first proposal of creation of a national DNA database encountered huge criticism of citizens. 37 Articles 5, 9 and 12 (1), Council 2007b. 38 Article 1, Annex A.5, Application, Security and Communication Architecture, Council 2007b. 39 6th sentence, §4, Council 2007i, 2.


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permanent representations,40 this Implementing Agreement will be integrated into the EU framework or at least will be used as the reference text of the future negotiations on the implementing measures of the draft Council decision. Thus, one could suppose that it is quite likely that the already existing European Commission TESTA II will be used as a communication network to light and optimize the costs-sharing of member states. However, the question of the costs generated by the Prüm data exchange system is still open, and deserves growing attention by member states’ governments and parliaments. Poland was one of the first countries that expressed some reservation on this issue, and according to an Italian diplomat, asked a Community financial help to afford the system. At the moment, it is not clear which will be the financial cost of the setting up of the Prüm data exchange system. According to Agence Europe, Mr Schäuble, the German Minister of Interior, declared that “the transposition of the Treaty in Germany (2006) had cost “less than a million Euros” (€930,000), which is “an order of magnitude that is affordable to each Member State” (Agence Europe 2007). This figure was also confirmed by J. Ryan MP during her oral evidence before the House of Lords. However, on the same occasion, Ms J. Ryan MP also stated that “this might be a reasonable figure under German costings but it might not be an accurate guide for the UK for a variety of reasons,”41 quoting as an example the structural differences in the organizational management of the British DNA database. One month after the oral evidence, Ms J. Ryan MP sent a second written evidence to the House of Lords, providing further information on the Prüm related cost. The UK Government “estimates the total start up cost for the UK to be in the region of £31 million pound for the exchange of fingerprint, DNA and vehicle registration data” (House of Lords 2007b, 70). These figures are relatively higher than expected, and, as highlighted by the same House of Lords Report, they do not take into account the running costs.42 The calculation of the costs could also differ widely from one to another member state. Given the fact that not all member states have already a DNA database, the costs of the setting up and the management of those systems should be taken into account. It is a cost to be added to the one of the interface needed in order to make readable the information exchanged and coming from DNA databases already different in size and type of index. Finally, even if the costs of implementation will not be excessive for member states, one could argue that they are important enough to stop, at least for the moment, the idea of setting up a different system of data exchange, for example the one designed in the Commission proposal on the principle of availability (Commission 2005a). Given these figures, one could question if the signing of the Implementing Agreement, as well as the future adoption of the draft Council decision, are not part of an “economic fait accomplis strategy” to impose on all member states an 40 41 42

Interviews held during the first half of March 2007. MP J. Ryan, answering Q13, House of Lords 2007a. Idem, pp. 23–24.


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already decided technical model of data exchange. In fact, one could say that the Prüm contracting parties are the only ones that had the opportunity to choose the best option since they created and first entered the “market” of DNA data exchange systems. The issue of the costs of Prüm therefore remains open, and one could imagine that it will be another field of struggle. However, what is very interesting to stress is that the questions surrounding the economic dimension of Prüm represent another dimension of this struggle field and opens the doors to a another type of actor: the private sector. This aspect has not been studied enough and it will deserve more attention in the near future.

Conclusion The Reform Treaty implies crucial institutional changes within the area of EU Justice and Home Affairs, and in particular a generalization of the use of codecision as well as stronger powers for national parliaments. However, the Reform Treaty does not dismiss the possibility of adopting the “Prüm Process” as a model of decision-making and policy-implementation for sensitive issues such as police cooperation and data exchange (Carrera and Geyer 2007, 5). Helen Nissenbaum pointed out: Many philosophical theories leave us in the lurch, so to speak, when we drill down to these real world conflicts, and what tends to fill the gap instead is a struggle among stakeholders—and a free-for-all of preferences—over policies that serve heir respective interests best. (Nissenbaum 2007, 19)

Therefore, discussing the “Prüm process” could offer the opportunity to give a first assessment of such political and institutional choice. In particular, analysing the “Prüm process” as a field of struggle highlighted the shortcomings of this specific decision-making process. Notwithstanding this first step of analysis, other major concerns have not yet been addressed. In order to achieve a more legitimate and efficient policy making, they should deserve more attention in future and more comprehensive studies. How to control the dominant position of actors that are able to impose rules on others? How to assess the proportionality of such privacy-unfriendly measures if the relevant actors are marginalized in the field of struggle? How to check the legality of such measures if the relevant actors are not aware of the on-going struggle? Could the legitimacy of these measures be based only on the potential benefit of their future application?

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Slovak Republic, the Italian Republic, the Republic of Finland, the Portuguese Republic, Romania and the Kingdom of Sweden, with a View to Adopting a Council Decision on the Stepping Up of Cross-border Cooperation, Particularly in Combating Terrorism and Cross-border Crime—Drafting Amendments, doc.7273/1/07 REV1 CRIMORG 50 ENFOPOL 41 (Brussels). Council of the European Union (2007h), Note from the Presidency to the Coreper/Council, Integration of (parts of) the Prüm Treaty into the Union Legal Order, doc.6003/07 CRIMORG 26 ENFOPOL 17 (Brussels). Council of the European Union (2007i), Note from the Presidency to the Council, Integration of the Prüm Treaty into the Union Legal Order, doc.6220/07 CRIMORG 29 ENFOPOL 19 (Brussels). Council of the European Union (2007j), “I” Item Note, doc.6571/07 CRIMORG 34 ENFOPOL 25 (Brussels). Council of the European Union (2007k), Press Release of the Justice and Home Affairs of February 2007, doc 5922/07 (Brussels). Deutscher Bundestag (2006), Kleine Anfrage (…) Prümer Vertrag und die europäische Integration, Drucksache 16/3871. Deutscher Bundestag (2007), Antwort der Bundesregierung auf die Kleine Anfrage der Abgeordneten Christian Ahrendt, Markus Löning, Michael Link (Heilbronn), weiterer Abgeordneter und der Fraktion der FDP, Drucksache 16/3994 (Berlin). European Data Protection Supervisor (2006a), Opinion of the European Data Protection Supervisor on the Proposal for a Council Framework Decision on the Exchange of Information under the Principle of Availability (COM (2005) 490 final) (Brussels). European Data Protection Supervisor (2006b), Second Opinion of 29 November 2006 on the Proposal for a Council Framework Decision on the Protection of Personal Data Processed in the Framework of Police and Judicial Co-Operation in Criminal Matter (Brussels). European Parliament, Committee on Civil Liberties, Justice and Home Affairs (2007a), Amendments 62-110, Draft Report on the Initiative by the Kingdom of Belgium, the Republic of Bulgaria, the Federal Republic of Germany, the Kingdom of Spain, the French Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Slovenia, the Slovak Republic, the Italian Republic, the Republic of Finland, the Portuguese Republic, Romania and the Kingdom of Sweden on the Stepping Up of Cross-border Cooperation, Particularly in Combating Terrorism and Cross-border Crime, doc. PE 388.484v01-00 (Brussels). European Parliament, Committee on Civil Liberties, Justice and Home Affairs (2007b), Draft Report on the initiative by the Kingdom of Belgium, the Republic of Bulgaria, the Federal Republic of Germany, the Kingdom of Spain, the French Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Slovenia, the Slovak Republic, the Italian Republic, the Republic of Finland, the Portuguese Republic, Romania and the Kingdom of Sweden on the Stepping Up of Cross-border Cooperation, Particularly in Combating Terrorism and Cross-border Crime, doc. 2007/0804(CNS) provisional (Brussels). European Parliament, Committee on Civil Liberties, Justice and Home Affairs (2007c), Report on the Initiative by the Kingdom of Belgium, the Republic of Bulgaria, the Federal Republic of Germany, the Kingdom of Spain, the French Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Slovenia, the Slovak Republic, the Italian Republic, the Republic of Finland, the Portuguese Republic, Romania and the Kingdom of Sweden on the Stepping Up of

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Cross-border Cooperation, Particularly in Combating Terrorism and Cross-border Crime, doc. A6-0207/2007 (Brussels). European Data Protection Supervisor (2007), Opinion of the European Data Protection Supervisor on the Initiative of the Kingdom of Belgium, the Republic of Bulgaria, the Federal Republic of Germany, the Kingdom of Spain, the French Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Slovenia, the Slovak Republic, the Italian Republic, the Republic of Finland, the Portuguese Republic, Romania and the Kingdom of Sweden, with a View to Adopting a Council Decision on the Stepping Up of Cross-border Cooperation, Particularly in Combating Terrorism and Cross-border Crime (Brussels). European Parliament, Committee on Legal Affairs (2007), Opinion on the legal basis of the initiative for a Council Decision on the Stepping Up of Cross-border Cooperation, Particularly in Combating Terrorism and Cross-border Crime (Brussels). Frattini, F. (2006), Speech by Vice-President Franco FRATTINI—LIBE Committee Hearing 18 December 2006 on Police Cooperation (Brussels). Garante della Privacy (2006), Relazione 2005, Discorso del Presidente Francesco Pizzetti (Roma). General Secretariat of the Council (2007a), Draft Council Decision 2007/…/JHA of … on Improving Cooperation on Request, working document (Brussels). General Secretariat of the Council (2007b), Draft Council Decision 2007/…/JHA of… on the Stepping Up of Cross-border Cooperation …, working document (Brussels). German Federal Commissioner for Data Protection (2005), Annual Report 2003/2004 of the Federal Commissioner for Data Protection (Bonn). German Presidency of the EU (2007), Stepping up Cross-border Police Cooperation by Transposing the Prüm Treaty into the Legal Framework of the EU, Informal Meeting of Justice and Home Affairs Ministers (Dresden). House of Lords (2006a), Behind Closed Doors: The Meeting of the G6 Interior Ministers at Heiligendamm (London). House of Lords (2006b), Corrected Oral Evidence Given by: Dr Wolfgang von Pommer Esche, Head of Unit, Police Intelligence Service, Federal Data Protection Office, Inquiry into the Development of the Second Generation Schengen Information System (London). House of Lords (2007a), Minutes of Evidence taken before the Select Committee on the European Union (Sub-Committee F), The Prüm Convention, Wednesday 7 March 2007, Joan Ryan MP, Mr Tom Dodd, Mr Nick Fussell and Mr Peter Storr (London, Evidence heard in Public, Unrevised Proof Copy). House of Lords (2007b), Prüm: An Effective Weapon against Terrorism and Crime? (London). Joint Declaration of The Kingdom of Belgium, The Federal Republic of Germany, The Kingdom of Spain, The French Republic, The Italian Republic, The Grand Duchy of Luxembourg, The Kingdom of the Netherlands, The Republic of Austria, The Portuguese Republic, The Republic of Slovenia, The Republic of Finland, on the occasion of the Meeting of Ministers on 5th December 2006 in Brussels, within the Framework of the Treaty between the Kingdom of Belgium, the Federal Republic of Germany, the Kingdom of Spain, the French Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands and the Republic of Austria on the Stepping Up of Cross-border Cooperation, Particularly in Combating Terrorism, Cross-border Crime and Illegal Migration (Treaty of Prüm), Brussels, 5 December 2006. Kormány határozatai (2007), A Kormány 1021/2007. (III. 31.) Korm. határozata a Prümi Szerzödéshez való magyar esatlakozás elökészítéséröl, Magyar Közlöny (Budapest).


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Repubblica Italiana (2006), Dichiarazione di intenzione di adesione al Trattato di Prüm, Berlino (Berlino).

Research Papers Apap, J. and Vasiliu, E. (2006), “Variable Geometry”: A Solution for Closer Cooperation in Criminal Matters in an Enlarged EU? The Implications of the Prüm Treaty in Relation to EU Developments (Brussels: European Parliament, Directorate-General Internal Policies). Balzacq, T. (2006a), The Treaty of Prüm and the Principle of Loyalty (Art.10 TEC) (Brussels: European Parliament, Directorate-General Internal Policies). Balzacq, T. (2006b), From a Prüm of 7 to a Prüm of 8+: What are the Implications? (Brussels: European Parliament, Directorate-General Internal Policies). Balzacq, T., Bigo, D., Carrera, S. and Guild, E. (2006), Security and the Two-Level Game: The Treaty of Prüm, the EU and the Management of Threats, Working Document no. 234 (Brussels: Centre for European Policy Studies). Bigo, D., Bruggeman, W., Burgess, P., and Mitsilegas, V. (2007), The Principle of Information Availability (Paris: CHALLENGE). Carrera, S. and Geyer, F. (2007), The Reform Treaty and Justice and Home Affairs— Implications for the Common Area of Freedom, Security and Justice, Policy Brief no. 141 (Brussels: Centre for European Policy Studies). Davoli, A. (2006), An Efficient and Accountable Police Cooperation in the EU—The Way Forward (Brussels: European Parliament, Directorate-General Internal Policies). De Hert, P. (2006), What are the Risks and What Guarantees Need to be Put in Place in View of Interoperability of Police Databases (Brussels: European Parliament, DirectorateGeneral Internal Policies). Dehousse, F. and Sifflet, D. (2006), Les nouvelles perspectives de la coopération de Schengen: le Traité de Prüm (Brussels: Institut Royal des Relations Internationales—Koninklijk Instituut Voor Internationale Betrekkingen, IRRI-KIIB). Dehousse, F., Coussens, W., and Grevi, G. (2004), Integrating Europe, Multiple Speeds—One Direction? (Brussels: European Policy Centre). Gandini, F. (2006), “Trattato di Prum: modello di cooperazione transfrontaliera,” Diritto e giustizia, 55, 37. Hijmans, H. (2006), “The Third Pillar in Practice: Coping with inadequacies—Information Sharing between Member States,” Discussion paper for the meeting of the Netherlands Association for European Law (Nederlandse Vereniging voor Europees Recht, NVER). Nissenbaum, H. (2007), “Privacy in Context,” in Stocker, G. and Schöpf, C. (eds), Goodbye Privacy (Ostfildern: Hatje Cantz).

Press Releases Agence Europe (2007), “(EU) EU/JHA/INFORMAL COUNCIL: Presidency announces ‘consensus’ between Member States to extend ‘Schengen III’ to whole EU—Four Member States enter reservations based on costs,” Dresden, 15 January 2007. EU2007.DE (2007), Presidency response to the press release of the European Data Protection Supervisor, Berlin, 11 April 2007.


Practice— Achievements and Obstacles


Chapter 12

Policing a European Border Region: The Case of the Meuse-Rhine Euroregion Toine Spapens

Police and legal cooperation within the European Union has long been high on the agenda. Over the past few years, new proposals to promote this cooperation have been appearing from “Brussels” at an ever higher rate. At the same time, new agreements and treaties have appeared as regards police and legal cooperation among the member states of the European Union. The discussion about police and criminal-law cooperation in dealing with transnational crime has been, from a scholarly point of view, largely dominated by jurists. This is understandable: there has been little empirical criminological research into transnational police and legal cooperation. However, this implies the risk that “solutions” are sought primarily in terms of new legal frameworks, which ignores the fact that organizational and policy factors are of great importance for police and legal cooperation, particularly in border areas. It is precisely in these respects that the cooperation, as a rule, is developing only by fits and starts. The Meuse-Rhine Euroregion is, within the European Union, one of the most urbanized border regions.1 Thus, it is not surprising that cross-border criminality and security problems are here the order of the day. Therefore, since three national borders run through it, this Euroregion constitutes an excellent “laboratory” for police and legal cooperation. Both jurists and criminologists have focused on this Euroregion over the years, and diverse scholarly studies have been conducted on the problem of criminality and transnational police and legal cooperation in the area (inter alia, Hofstede et al. 1993; NeBeDeAgPol 2002; den Boer and Spapens 2002; Farcy 2004; Spapens and Fijnaut 2005; Fijnaut et al. 2005; van Daele and van Geebergen 2007). In this chapter, the findings of recent empirical studies are central with the emphasis on Den Boer and Spapens (2002) and Spapens and Fijnaut (2005). Which trans-frontier criminality problems occur in the MeuseRhine Euroregion and how does the police and legal cooperation proceed in dealing with them? 1 The Meuse-Rhine Euroregion consists of the Provinces of Limburg and Liège, as well as the Deutsch Sprachige Gemeinschaft (Eupen—Malmedy) in Belgium, the German Aachen Region with the city of the same name as well as the Landkreise Aachen, Heinsberg, Düren, and Euskirchen, and the southern portion of the Dutch Province of Limburg.

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In this chapter, the developments in police and legal cooperation in the region are examined in detail on the basis of five types of security and crime problems. First, much legal assistance traffic in the Meuse-Rhine Euroregion is generated by relatively common criminality and security problems. Given the social and economic interwovenness in the area, this is not surprising. In dealing with forms of petty crime but also, for example, with traffic offences and accidents, regular legal assistance traffic is needed because one or more of the parties involved resides in a foreign country, generally within the Euroregion. This subject will be dealt with in the second section. The following section will describe law enforcement cooperation with regard to a second type of problem in the Euroregion: drugs tourism. Following this, there are “Euroregional” criminal groups, whose members live spread out over the border area. On the one hand these are groups whose members are occupied with forms of transnational robbery. On the other hand, these groups are involved in more complex criminal enterprises, for example producing synthetic drugs and cannabis or committing VAT fraud (VAT carrousels). Cooperation with regard to Euroregional criminal groups will be the subject of the subsequent section. This will be followed by a part that deals with perpetrator groups whose members come from Eastern and Southeastern Europe, committing serial property crimes. Finally, forms of organized crime can be distinguished, such as drug or human trafficking, where only a small portion of the logistic process is executed in the Meuse-Rhine Euroregion. Questions of law enforcement cooperation with regard to these groups will be dealt with in the subsequent section. The final section concludes this chapter.

Routine Transnational Police Work in the Meuse-Rhine Euroregion In the Meuse-Rhine Euroregion, police and legal cooperation occurs not only in the tracking of serious and organized crime but also in routine police work. First, when people who live elsewhere in the Euroregion are involved in routine incidents, regular legal assistance traffic is generated. Second, in situations where direct assistance must be provided or intervention has to occur, the immediate assistance of foreign police services may be required or even action on the other side of the national border may be necessary. When legal assistance traffic is needed to deal with an incident, which may in itself be minor, extra administrative work is required. A good example of this is the dealing with traffic offences that are committed in Belgium by Dutch nationals (Spapens and Fijnaut 2005; Fijnaut et al. 2005).2 In Belgium, traffic offences are matters of criminal law, which means that the driver has to be interrogated by the police.3 Before such an interrogation can be conducted, it first has to be established who the driver was on the date and at the time in question. With commercial or leased or rented vehicles, this is often not a simple matter. 2 The legal assistance traffic between Germany and Belgium has not been studied but one may assume that the picture is comparable. 3 In the Netherlands, traffic offences are dealt with under administrative law.

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Apart from traffic offences, all kinds of petty crime can also lead to legal assistance traffic. Thus, one of the legal assistance requests examined concerned a German who was suspected of shoplifting in the Netherlands. In such a case, for example, background information has to be requested by means of a legal assistance request. Another request concerned the break-in of a company in Maastricht, the owner of which lived in Lanaken in Belgium. Also, examples of border-crossing relational conflicts regularly occur. The legal assistance relationship between the Netherlands and Belgium is heavily burdened primarily by the many requests concerning traffic offences. The Dutch police services, who have to interrogate the violators, generally give them low priority so the response to such a request can sometimes be delayed for months. Understandably, Belgian magistrates are not happy with this and will express their discontent when, inversely, legal assistance requests from the Netherlands end up on their desks. The cross-border routine police assistance, however, is not only of an administrative nature. Situations also occur regularly in which the uniformed police have to intervene directly. One example was a case in which a 10-year-old was placed on a bus in Aachen by his parents to go and visit his grandfather. In one way or another, however, the boy missed the right bus stop. The final destination of the bus was Heerlen in the Netherlands, so it was possible that he had ended up across the border. Direct contact was made with the Dutch police, which sent a patrol to the place. In this case, the boy was not found. Later on, it appeared that he had already gotten off at the wrong stop in Aachen. It is obvious that in such situations the administrative infrastructure is unsuitable for the exchange of legal assistance traffic. Instead, the police services, via their own connections and incident rooms, have to be able to contact each other directly. In the Meuse-Rhine Euroregion, for many years already, organizational provisions have been made to connect the police incident rooms to each other in the area. Regular use is made of these communication facilities. The consequence, of course, is that these interventions often take place outside the normal channels of legal assistance traffic. Still, it rarely creates problems or gives rise to discussion in practice. However, that can be otherwise when, after the immediate intervention, a criminal-law procedure has to be commenced. The following example illustrates this. A few years ago, a knifing occurred in Aachen in which the victim was wounded. Because no bed was available at that moment in the intensive care department of the Aachen hospital, the victim was taken to the hospital in Maastricht. The German police, however, wanted the evidence, in the form of the bloodstained clothing of the victim, to be secured. Via the incident room, contact was made with the Netherlands after which a police patrol in Maastricht was instructed to drive to the hospital and to seize the clothing. In this case, however, the procedure was illegal. Since physical evidence was involved, the German police should first have contacted the competent Staatsanwalt (public prosecutor). The German Staatsanwalt would then have had to contact a Dutch Officer of Justice, who would have had to evaluate the request for seizure and

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only then could have instructed the police to perform the action. An additional problem was that the Dutch police patrol that had seized the clothing did not know what the evidence was needed for or who had requested the seizure, so they brought the box with the clothing to the investigation service, where, after a great deal of effort, it was possible to establish what had happened. In the meantime, however, a few weeks had gone by. To avoid these problems, the formal structures have been expanded in recent treaties between the Netherlands, Belgium, and Luxembourg, on the one hand, and between the Netherlands and Germany, on the other.4 On 8 June 2004, the “Treaty between the Kingdom of Belgium, the Kingdom of the Netherlands, and the Grand Duchy of Luxembourg concerning cross-border police intervention” was concluded (hereinafter the Benelux Police Cooperation Treaty). And on 2 March 2005, the “Convention between the Kingdom of the Netherlands and the Federal Republic of Germany on the cross-border police cooperation and the cooperation in criminal matters” (hereinafter the Treaty of Enschede) was signed. Both treaties have since become operative. In these two treaties, new formal structures have been created for cross-border cooperation in acute situations. To begin with, these treaties provide the possibility for the granting of assistance on request. Moreover, in urgent situations, officials authorized to do so can act on foreign territory on their own initiative. Further, measures have been taken to assure the rapid exchange of evidence and for direct communication between police and judicial authorities across the national borders. In the Treaty of Enschede, for example, it has been stipulated that police services in the Netherlands and Germany can make direct contact with the judicial authorities and vice versa. Also, pieces of evidence that have been properly seized in Germany or the Netherlands by the police or the judiciary can henceforth be transmitted directly to the other treaty partner (See Fijnaut et al. 2005, 146–7).5 Problems such as the one described in the example above should then, in principle, belong to the past. The Benelux Police Cooperation Treaty and the Treaty of Enschede also contain more new elements, such as the possibility of forming joint police patrols in the border areas in order to carry out checks. The importance of this is dealt with in the following section.

4 These frameworks have been also taken up in part in the Treaty of Prüm (2005), which was concluded between the Benelux countries, Germany, France, Austria, and Spain. 5 In the Netherlands, the judge in chambers at the court has to give permission for this transfer. In practice, because of the extensive opportunities for appeal, which are routinely exploited to the full by lawyers, this turned out to be an extremely time-consuming process. On the basis of the Treaty of Enschede, the required written request for legal assistance needs only to be sent later on, so administrative delaying tactics no longer make sense.


Joint Controls in the Border Area The Netherlands is an important marketplace for narcotics. In contrast to other European countries, the sale of soft drugs is tolerated in controlled “coffee shops,” where customers can buy a maximum of five grams of cannabis or hashish per person. Large numbers of “drug tourists” take advantage of this opportunity every day. In the Meuse-Rhine Euroregion, they are Belgians, Frenchmen, and Germans. In the Euroregion, however, an illegal infrastructure for the trade in narcotics has also developed (Spapens and Fijnaut 2005). In a wide variety of drugs houses, hard drugs can be purchased or larger amounts of soft drugs than the tolerated six grams. In practice, drug couriers travel daily to the Netherlands to pick up their (weekly) orders for dealers in Germany, Belgium, and France (Spapens and Fijnaut 2005; Paoli 2004; Spapens et al. 2007). These are relatively small amounts, a few kilos of soft drugs or a few hundred grams of hard drugs. Regularly, they involve a variety of narcotics—hashish, marijuana, cocaine, amphetamines, XTC, or heroin—depending on the potential market and the clientele of the dealer for whom the smuggler works (Spapens et al. 2007). The smuggling of narcotics from the Netherlands has been much criticized for years by the German and French authorities (Spapens 2006). Consequently, from the mid-nineteen nineties, the controls on the most common smuggling routes have been intensified. For a number of years now, these controls have also been conducted by multinational police teams. At the end of 2002, the first team was started with Dutch and French policemen working together (de Bie et al. 2004). Because the results were positive, the cooperation has been continued. At present, Belgian and Luxembourg police are also participating in the joint teams, which since 2005 have been called Joint Hit Teams (JHT). Two JHTs are currently active. The first focuses on the Rotterdam-Lille route and the second team works on the Maastricht–Liège axis. Permanent Dutch-German JHTs will soon be formed.6 The multinational composition of these teams offers several advantages in practice. The first important advantage of the presence of police personnel from different countries is that, when necessary, international information can be exchanged very rapidly. An example of this was a case in which a drug courier was arrested in the Netherlands. At precisely that moment, he was called on his mobile telephone whereby a Belgian telephone number appeared on the display. The Belgian policeman present was able to make direct contact with his colleagues in his own country in order to have the number identified. It turned out to be from a petrol station on the motorway further on in Belgium. Presumably, the call was being made by the intended receiver of the drugs. The Belgian police immediately sent a patrol car to the place to have a look. The caller had just left, but the personnel of the petrol station could identify him from the CCTV images recorded there on which both he and the license plate number of his vehicle were visible. This information could then be passed on to the French police who, after 6

These teams are not to be confused with the Joint Investigation Teams (JITs).

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a brief criminal investigation, were able to arrest several drug dealers in and around Lille. Another advantage of police personnel from different countries working together is that the drug couriers can be interviewed in their own language. In practice, many of them come from France. Although the people who operate in the JHTs are, in principle, bilingual, the nuances in statements of suspects can be picked up much easier by a native speaker. The presence of French policemen thus enables much more information to be gathered from the interrogation of the arrested couriers. This is particularly important because this can lead to the dealers or, in any event, to the locations they use. The first multinational team, which was started in 2002, was based on a covenant between the Netherlands and France. The same applied for the first JHT, which was started in 2005 and in which Belgium also participated. At that time, no legal framework had yet been established by treaty for such a team. For Belgium and Germany, in the meantime, this was created in the Benelux Police Cooperation Treaty and the Treaty of Enschede. With respect to France, it will be the case when the Prüm Treaty has become operative. In order to be able to have the JHTs function, therefore, solutions for juridical and organizational problems had to be sought in practice that have now been incorporated in these new treaties in part but certainly not in all respects. Around a multinational police team, many juridical questions arise. An example is the bearing of weapons and the wearing of uniforms. French policemen, for example, may still not carry their weapons on Dutch territory. They can only carry pepper spray—and even for this a separate arrangement had to be made. The legal questions always revolve around the same key point: when, in a multinational team, there is cooperation on the territory of one of the countries, all the members of the team have to be able to act as fully as possible as though they were operating on their own territory. This means, therefore, that uniforms have to be able to be worn and weapons carried, that a police officer who observes something on foreign territory has to be able to draw up an official report at the site that can serve as evidence, and so on. In the new treaties cited above, this is also by far not the case. Apart from the international treaties, many organizational matters also had to be resolved. Here, for example, there was the apparently routine problem of the arrangement of hotel accommodations for the French members of the team: under their own regulations, they received only a minimum daily allowance for this purpose. In order to be able to work together safely, moreover, procedures had to be harmonized. One example was the “automobile procedure,” which is followed when a vehicle has to be approached that is compelled to stop. Here a minor difference in the methods resulted in the Dutch and Belgian policemen, when they acted together, losing sight of each other while approaching a stopped automobile and so were not able to cover each other at that critical moment.


This meant that joint training exercises had to be organized so they could learn a uniform method.7 The police and legal cooperation is, of course, not restricted only to routine police work and joint controls for the smuggling of narcotics. Also in the tracking of serious and organized crime in the border area, there is very often an international dimension. The following section will begin with considering the “Euroregional” criminal groups.

Tracking Down Euroregional Criminal Groups In the Meuse-Rhine Euroregion, mainly two forms of “Euroregional” criminal groups can be distinguished. To begin with, there are those that commit series of robberies. The members of the criminal group live in one country and commit crimes on the other side or on both sides of the border. In addition, in recent years, a “Euroregional criminal network” has also developed. This phenomenon is in part due to several important criminals from the Dutch part of the Euroregion having moved to the Belgian part. The criminal partnerships that develop between the members of this network are thus more often distributed over various countries in the Euroregion. In the first two subsections a few salient cases will first be described with regard to these Euroregional criminal groups. Then, in the third subsection the specific requirements for police and legal cooperation in the tracking of this kind of criminal partnership will be further considered. Euroregional Bank Robbers In the Meuse-Rhine Euroregion in the middle of the 1990s, a group of Belgian bank robbers was active (Den Boer and Spapens 2002, 56–8). This group had the habit of smashing the glass partitions between the bank employees and the customers with sledgehammers in order to be able to get the cash. Such hold ups were first committed in Belgium, but then, when additional preventive measures were taken, the gang moved its field of operations to the Netherlands. The criminal investigation division of the Dutch police region of LimburgSouth then launched an extensive investigation. Information from the Belgian authorities indicated that it was a group of criminals from the circle of the grand banditisme, the members of which lived around Maasmechelen in Belgium. The most important suspects were Belgians of Moroccan origin. This created a problem. The primary suspect had Belgian nationality and so could not be extradited to the Netherlands if he were arrested in Belgium. Therefore, the objective of the investigation became to trap the band while they were committing a robbery abroad.

7 Cf. in this regard also Hobbing, P., “Uniforms without Uniformity: A Critical Look at EU Standards in Policing,” Chapter 13 of this volume.

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For this tactic to work, information exchange in real time was essential. For example, an observation camera had to be installed in Belgium, in order to keep the house of one of the primary suspects under surveillance. Then, also in Belgium, telephones had to be tapped, and dynamic surveillance conducted. In this case, these provisions were made on the basis of the “European Convention on Mutual Legal Assistance in Criminal Matters” of 20 April 1959 (hereinafter: European Legal Assistance Convention of 1959). However, matters were further complicated by the fact that the bank robbers had, in the meantime, shifted their working area to the German part of the Euroregion. Several attempts to catch the perpetrators in the act failed. In one case, arrest teams were even ready to capture the robbers but they didn’t appear. The Germans had even mobilized some 600 police officers who were transported with helicopters (“Wir hätten sie aus der Luft angegriffen, und die wären uns nie entkommen” [We would have approached them by air and they would have never escaped us]). On another occasion, the Dutch investigation team received information that an expensive automobile had been stolen by the bank robbers. This was a fixed element in the modus operandi of the group: the theft of the get-away car was always done a day before a robbery was committed. The vehicle was placed in a parking garage in Liège. The Dutch investigation authorities thereupon asked the local authorities for permission to “prepare” the vehicle by providing it with a locator. They also wanted to take measures to enable them to turn off the motor and to block the doors remotely. These operations had to be carried out very quickly since the robbers could come to pick up the vehicle at any moment. However, such a complex request, which was also under great time pressure, turned out to be too much of a good thing. The Liège authorities, moreover, were being confronted with it unexpectedly: the investigatory authorities had not had previous contact with each other about this specific case. Language problems also played a role. The intended operation thus did not go through. Ultimately, the attempts to arrest them in the act were cancelled because of practical problems. The primary suspect was arrested upon the first occasion that he crossed the Dutch border—he turned out to have a girlfriend in Maastricht. Because of the arrest in the Netherlands, the primary suspect could first be tried both for the case of manslaughter and for the bank robberies committed. Then he could be extradited to Germany to stand trial for the crimes committed in that country, and finally delivered to Belgium for the remaining crimes. Euroregional Producers of Synthetic Drugs In the Meuse-Rhine Euroregion, there are also criminal partnerships active that divide the “criminal enterprise processes” over several countries in the border area. In order to be able to deal successfully with these illegal activities, therefore, there must be more intensive cooperation than with the investigation of groups involved in robberies. One example of a case that illustrates this occurred at the end of the 1990s. It involved a Euroregional criminal partnership that was manufacturing XTC.


The members lived in the Netherlands and Belgium, and the production process was also distributed over both parts of the Euroregion. Further investigation revealed that this group worked closely with a Belgian criminal organization that also produced synthetic drugs. In Belgium, an investigation was already in progress. Close cooperation thus offered great advantages. Indeed, members of both criminal groups were constantly crossing the national borders during their illegal activities. From the outset, it was certain that the normal framework of legal assistance traffic would be inadequate for the intensive collaboration that was envisaged for it would have led to a torrent of legal assistance requests back and forth. Therefore, a framework contract was drawn up in which the exchange of information, the exchange of personnel, and border-crossing surveillance, including surveillance starting on a foreign territory were arranged for both investigations. This agreement was tested periodically by the public prosecutors in both countries and extended for periods of one or more months. This framework contract, too, was based on the European Legal Assistance Convention of 1959.

Cooperation in Tracking Down Euroregional Criminal Groups The cases described above show that issues arise at various levels in the police and legal cooperation regarding the tracking down of Euroregional criminal groups. First of all, questions arise on the juridical level. As the examples illustrate, they are generated not so much by the possibilities or the lack thereof offered by the frameworks created by the treaties. On the basis of the European Legal Assistance Convention of 1959, far-reaching agreements could already be made as regards the exchange of information, the acting of police officers on foreign territory, and so on. All this, however, was only possible because of very good personal relations between the police of Limburg South and the then Special Investigation Brigade of the Gendarmerie in Maaseik and between the public prosecutors. This was demonstrated a few years later when, as a result of the reorganization of the Belgian police, “new faces” appeared with whom these relations first had to be established. In the meantime, in the “Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union” of 29 May 2000, a number of matters have been formalized that are of importance for tracking down Euroregional criminal groups. To begin with, for example, telephone taps can be transferred directly to the petitioning country, when technically possible (articles 17 through 22). Another important point in this convention is the possibility to form Joint Investigation Teams. In the Dutch-Belgian border area, this has already been experimented with a few times. Thus, in an investigation on cargo thefts, Belgian policemen worked within a Dutch investigation team.

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However, there always remain questions that still have not been dealt with formally in the treaties. Thus, on the basis of the Schengen Implementation Agreement, border-crossing surveillance can be conducted. In the Benelux Police Cooperation Treaty and in the Treaty of Enschede, this possibility is also extended to surveillance from air and on waterways. In none of these agreements, however, is the possibility foreseen that such surveillance could start on foreign territory. In the Meuse-Rhine Euroregion, several major Dutch criminals have moved to Belgium, mostly to towns just over the Dutch border. For their illegal activities, however, they travel very regularly to the Netherlands. When the police want to follow and observe such a subject on such an occasion, they cannot do so formally starting at the Belgian residence. When, for example, it is known that he has an appointment in the Netherlands, a Belgian surveillance team has to be enlisted for the route from the residence to the border. However, it would be much more efficient if the Dutch team could also carry out the Belgian part of the surveillance. Now, the situation is that along the Belgian-Dutch border, this can be done in some judicial districts but not in others. The personal relations between the public prosecutors are determinative for this. Serious legal bottlenecks, however, also regularly emerge from liability questions. In the example of the Euroregional bank robbers, the public prosecutor in Liège formally refused the operation because, according to Belgian law, the authorities were liable for any damage that would occur to the vehicle. Indeed, it involved a stolen automobile that had been found undamaged and could thus also be returned to the owner in that state. In an investigation of XTC production—not the case described above—a liability question also arose. This concerned a proposed controlled delivery of chemicals from Germany to the Netherlands. The Dutch judicial officer, however, refused to give his permission. His argument was that the Dutch government would be financially liable for any environmental damage that could occur if these chemicals would leak out, for example, should the members of the criminal group handle them carelessly. In addition to legal questions, organizational questions also regularly turn out to play a role in police and legal cooperation. The investigations, by the nature and method of the Euroregional criminal groups, often lead to legal assistance requests for which the execution requires a considerable deployment of manpower and resources in the petitioned country. Obviously, a complete investigation team cannot usually be freed immediately for such a case. Complexity and time pressure can also interfere, as the example of the investigation of the Euroregional bank robbers illustrated. In the Meuse-Rhine Euroregion, in order to deal better with such organizational and other problems, the Office for Euroregional Cooperation (Bureau voor Euroregionale Samenwerking: BES) has been set up on the level of the public prosecutors. One of the tasks of the BES is the harmonization of border-crossing investigations. The BES tries, by means of regular consultation between the public prosecutors in the Euroregion, to keep the magistrates informed of the main lines of on-going investigations so that, in critical situations, the necessary background knowledge is already available. In the framework of the BES, large-scale legal


assistance requests can be announced in advance so that the requested party can free the necessary manpower and resources in time. Finally, policy questions also play an important role when Euroregional criminal groups are involved. Border regions like the Meuse-Rhine Euroregion can, in a certain sense, be considered “water beds.” When extra efforts are made in one country to combat a particular form of criminality, the chance is great that the problem will shift, in part, across the border. This was the case in the Netherlands a few years ago when it was decided on the national level that the illegal growing of cannabis had to be given a higher priority. The result is that a rising number of plantations are being found in Belgium, particularly in the border area in which Dutch people are often involved (Spapens et al. 2007). In Belgium, in recent years, for example, much attention has been given to home burglaries, which, for a good part, were the work of mobile Eastern and Southeastern European gangs so this problem has shifted in part to Germany and the Netherlands. The designation of specific investigation priorities, of course, is also translated into the allocation of manpower and resources for the investigation and in the choices of the public prosecutor regarding the deployment of available investigation capacity.8 In Belgium, robbery has been an important investigation priority for a number of years, which was not the case in the Netherlands. The result was that Belgian requests for legal assistance, for example, as regards automobile and motorcycle thefts, were not always responded to satisfactorily. This was because people and resources available for investigation were already being fully employed for crime categories that had been given priority in the Netherlands. In order better to prevent such problems, the harmonization of investigation priorities is important. However, this is complicated because these priorities are determined only in part on the regional level. Nevertheless, in the MeuseRhine Euroregion, in February 2006, a security conference was held for the first time in which representatives of the police and the public prosecutors from the three countries participated. This led to a declaration in which dealing with home burglaries, motorcycle theft, and cannabis growing was assigned common priorities. An important recommendation arising from research into police and legal cooperation in the Meuse-Rhine Euroregion is that, ultimately, a joint picture of the Euroregional criminal groups should be developed. On this basis, a “Euroregional investigation team” under the direction of a magistrate from the countries involved would be able to conduct a number of investigations each year.9 Moreover, this team could be equipped in such a way that it would be able to help with matters that may arise unexpectedly over the years. 8 In the Netherlands and Belgium, the public prosecutor, because of the principle of opportunity, has more options than in Germany, where the principle of legality applies. The latter involves the obligation of public prosecutor to investigate crimes they learn of; see, for example, van Daele and van Geebergen 2007. 9 The Euroregion, moreover, has an investigation unit called the Euroregional Investigation Team. However, this team consists only of Dutch police personnel and does not operate on Belgian or German territory.

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A Euroregional investigation team would thus be able to offer a solution for the organizational as well as the policy questions sketched above. The condition, of course, is that the officials that constitute it are able to act as fully as possible on each other’s territory. At present, consideration is being given in the Euroregion to the question of whether, and, if so, how, such a team, consisting of Dutch, Belgian, and German investigation officials could take form. Such an investigation team could also in part be assigned a role in dealing with the following form of transnational severe criminality that plays a role in the Euroregion: mobile gangsterism.

Investigation of Mobile Criminal Groups from Eastern and Southeastern Europe Mobile gangsterism by groups of criminals originating from Eastern or Southeastern Europe is of particular interest in Germany, Belgium, as well as in the Netherlands. Thus, for example, groups of Albanian and Romanian origin are active in the commission of serial home burglaries in rural areas and with theft from firms of cigarettes and cosmetics and the like. In addition, criminal groups from, for example, Lithuania, specialize in theft of automobiles and theft of automobile components, such as airbags. There are also criminal groups active from other countries, like Poland or Estonia. With regard to mobile gangsterism, two modalities in the main can be distinguished. To begin with, criminal groups from Eastern and Southeastern Europe establish themselves for short periods in the Meuse-Rhine Euroregion or its surroundings and commit a series of crimes from such a “base.” This residence may be sought, perhaps with coercion, among countrymen who have emigrated to Belgium, Germany, or the Netherlands. However, it is also possible that they will settle for a short time in camping grounds or a vacation park. In addition, there are criminal groups from Eastern and Southeastern Europe active who travel from their country of origin specifically to commit the crimes and then immediately return. One example involves an Albanian criminal group that had resided temporarily in the Belgian part of the Euroregion. Four members of the group were caught in March 2004 in the Dutch part of the Euroregion while they were breaking into a house. They also had an automobile that had been stolen previously in Belgium after they had obtained its keys during a home burglary. On the occasion of this arrest, an investigation team was formed by the South Limburg police that subjected all of the home burglaries to comparative analysis. Ultimately, some three hundred events could be associated with this criminal group. Another example concerns a group from Lithuania that was stealing automobiles. For this purpose, they had rented a shed in Eupen in Belgium where the members of the group also stayed. In a few weeks, some fifteen cars were stolen in the Belgian and the German portion of the Euroregion. These vehicles were stripped in the rented shed, and the parts were then shipped to Lithuania by truck. The bodies of the stolen cars were left behind in the shed.


Thus, both of these groups operated from a temporary residence in the Meuse-Rhine Euroregion, but travelling groups of criminals can also be found in the area. For example, a few robbers of a jewellery store were recently caught in the act in the Belgian portion of the Euroregion. It turned out that they were Estonians, who admitted that they had committed three robberies in one week in Switzerland, Spain, and Belgium. The locations were first carefully reconnoitred by scouts. Mobile groups of criminals from Eastern and Southeastern Europe, as the examples illustrate, make very effective use of national borders. Moreover, they commit relatively routine crimes, also committed by local criminals. Thus, it is not easy for the investigating authorities to identify the activities of the mobile groups of criminals. Often, therefore, the members of such groups are caught by chance in the act or during control campaigns on the motorways at night, so the question is how the effectiveness can be improved in the tracking of Eastern and Southeastern European criminal groups in the Euroregion. The rapid exchange and analysis of information have a crucial role in this. If the mobile gangs do not have a temporary residence in the area, they can be dealt with only to a limited extent by regional investigation authorities, for these groups, as a rule, operate over much larger geographical areas, as in the example of the robbers from Estonia. In order to spot these groups, therefore, information about comparable cases must be assembled and analyzed on a higher level, such as the national level or by Europol. Moreover, an effective approach requires close cooperation with the authorities in the countries of origin of these criminal groups for there they have their permanent base and there is where the loot disappears. An example of this is an investigation by the Dutch police of a Romanian group. The members were ultimately prosecuted and convicted in their own country, where the criminally acquired assets were also seized. Europol at present is only rarely called upon in the tracking of mobile gangsterism. The tracking of groups with temporary residences in a border region, is aided by the possibility of being able to make connections quickly between various incidents. When a series of robberies occurs, the objective is to assemble and analyze all of the information acquired—interviews, clues, DNA profiles, and so on—as quickly as possible at a central point. The intention would be to find indications that can lead to the temporary residence or residences of the criminal group or groups. In the Schengen Implementation Agreement, the Benelux Police Cooperation Treaty, and the Treaty of Enschede, a wide variety of conditions have been created in order to increase the speed of the information exchange in the border regions. When the Treaty of Prüm comes into effect, this will also apply for the exchange of clues and DNA profiles. These possibilities have also been translated organizationally over the years in the Meuse-Rhine Euroregion. Article 39 of the Schengen Implementation Agreement offers the possibility of exchanging information directly between police services in the border areas without the intervention of Interpol. In the Meuse-Rhine Euroregion in the mid1990s, the EMMI project was then started, which stands for the “Euroregional Multimedia Information System,” in which digital information is exchanged in

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the Euroregion between liaison offices of the police in Aachen, Maastricht, Liège, and Genk.10 In comparison with the speed of the Interpol channel, the EMMI marked a substantial improvement, since the response to a request for information was received already within a few hours. In addition, the Benelux Police Cooperation Treaty and the Treaty of Enschede regulate the formation of joint police offices. This led in 2006 to the opening of the Euroregionales Polizei-Informations-Cooperations-Centrum (EPICC) in the Meuse-Rhine Euroregion. This is a joint information centre in which Belgium, Germany, and the Netherlands participate. However, thought is also being given to the possibility of stationing crime analysts on the site, who would be able to analyze information from the three countries on the basis of which joint investigations could be launched.

Investigation of European or Worldwide Logistical Criminal Processes Finally, forms of organized criminality of which the “enterprise processes” extend throughout all of Europe or even worldwide can occur in part in the MeuseRhine Euroregion. The manufacture and trading of certain narcotics like heroin or cocaine, human smuggling and human trafficking, or cigarette smuggling are regularly associated with complex international logistical processes. As a rule, however, one single criminal group does not control the logistical process as a whole. Often, there is a kind of relay system where one group in Country A conducts a portion of the necessary “processing,” then sells the “intermediary product” to a group in Country B, which makes its own contribution to the process, and so on. This is repeated until the illegal product or the illegal service has arrived at the end user. An example of a worldwide criminal enterprise process was encountered in an investigation into human smuggling, which occurred in part in the Euroregion. This case involved Chinese who were smuggled to Europe via the airport in Prague. From there, they were transported overland to their final destination, particularly Great Britain and Canada, but also to other countries in the EU. Part of this route was managed by Albanians, who temporarily sheltered the smuggled people in houses in Liège and its vicinity while awaiting a favourable opportunity to send them farther. Also, human trafficking can be considered a salient example of a European criminal enterprise process. An investigation revealed that brothel keepers in the Dutch part of the Meuse-Rhine Euroregion made regular use of the services of women from Southeastern Europe, particularly from Romania. These women stayed illegally in the Netherlands after having been recruited under false pretences and placed in a position of financial dependence. The investigation showed that 10 There were plans to extend EMMI also to police liaison offices elsewhere in Belgium, Germany, and the Netherlands. However, in part because of the rapid developments in information and communication technology (e-mail), they were not implemented.


these women were moved regularly from one country to another. The Romanian women, for example, first were put to work in Italy. Then they came, via France, to a brothel in the Netherlands. After a while, the women left again, this time for Spain. The various links in this chain were relatively independent of each other: at least the investigation did not reveal one single organization that controlled these moves. The examples above all concern investigations conducted in the Meuse-Rhine Euroregion. It is striking that there is much more limited international cooperation in these cases than in the “Euroregional” investigations. For this, however, a number of logical explanations can be offered that are of an organizational nature. First of all, the nature of the criminal cooperation is a crucial factor. As already described above, the parts of the logistical process are often linked by criminal groups that operate relatively independently from each other in various countries. Therefore, the investigations as a rule are restricted to the link in the particular country. Second, practical considerations play a role in this choice. The contacts usually concern countries with which the cooperation is only incidental, so it is often unclear precisely which authorities have to be approached or what can be expected from them. In addition, one can be dealing with regimes with reliability that is not assured beforehand. And last but not least, negative experiences with specific countries are of importance. Thus, the police and legal cooperation is limited in investigations of this kind of criminal enterprise processes usually to more basic matters, such as the interviewing of suspects or witnesses, identification of people or telephone numbers, or the transfers of dossiers of concluded investigations. The cooperation is thus generally much less intensive than in Euroregional investigations.

Conclusion In this chapter, a picture is sketched of the police and legal operational cooperation in the Meuse-Rhine Euroregion with regard to various types of criminality problems. Here, I have gone into the questions that arise in this regard and the practical solutions that have been developed within the possibilities of the existing juridical, organizational, and policy constraints. Over the past decades, the structural developments in police and legal cooperation in border regions such as the Meuse-Rhine Euroregion and the European Union as a whole have constantly influenced each other. This will remain the same in the future. Indeed, the member states of the EU have the possibility, when the situation demands it, of taking bilaterally more far-reaching measures to improve police and legal cooperation than those established for the Union as a whole. From the Conclusions of the European Council that met on 21 and 22 June 2007 under the German Chairmanship to discuss the reform of the draft

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Treaty Establishing a Constitution for Europe, it appears that a European Union “with several speeds” will also be accepted in the future.11 The preceding description makes it clear that, on the level of routine police cooperation and as regards the joint operation of police patrols, new treaty-law frameworks have been created in recent years. In the combating of serious and organized crime, however, there are still necessary challenges. An analysis of the criminal network in the Meuse-Rhine Euroregion shows that this is becoming ever further integrated across the national borders. This also means that the investigation of serious and organized crime would benefit from further integration insofar as it is the field of activity of Euroregional criminal groups or of criminal gangs that reside temporarily in the border area. However, merely the creation of possibilities by means of treaty law is insufficient: measures must be taken also on the level of organization and policy. Some initiatives have already been taken to do this, such as in the form of the BES, the EPICC, and the first Euroregional security conference, at which joint investigation priorities were listed. Consideration is now being given to the formation of a permanent investigation capacity in the form of a Euroregional Investigation Team consisting of Belgian, German, and Dutch policemen. Before such a team actually comes into existence and can functional optimally, many problems will still have to be resolved. From where it overlaps with the discussion of police and legal cooperation in the European Union, therefore, it will be very interesting to continue to follow closely the developments in this Euroregion in the near future.

References De Bie, E. et al. (2004), “Op de grens,” Evaluatie van het A-team (Arnhem: Advies- en onderzoeksbureau Beke). Den Boer, M. and Spapens, T. (eds) (2002), Investigating Organised Crime in European Border Regions (Tilburg: Tilburg University/IVA). Farcy, F. (2004), Criminalité et collaboration policière et judiciaire dans l’Euroregio Meuse-Rhin: un exemple en Europe (Paris: Université de Pantheon-Assas (Paris II), Département de Recherche sur les Menaces Criminelles Contemporaines). Fijnaut C. et al. (2005), De strafrechtelijke rechtshulpverlening van Nederland aan de lidstaten van de Europese Unie, Politiewetenschap nr. 25 (Zeist: Uitgeverij Kerckebosch). Hofstede, G. et al. (1993), Grensoverschrijdende politiesamenwerking tussen België, Duitsland en Nederland met speciale aandacht voor de Euregio Maas-Rijn, (Maastricht: Universitaire pers). Meershoek, G. and Krommendijk, M. (2007), Veiligheid in de Nederlandse grensregio’s, deel 2: openbare orde en veiligheidsvraagstukken. The results of this research will be published at the end of 2007. NeBeDeAgPol (2002), Grenzüberschreitende Einbruchskriminalität in der Euroregion Maas-Rhein.

11 Council of the European Union, Presidency Conclusions, Brussels, 23 June 2007, CONCL 2, 28–9.

Policing a European Border Region: The Case of the Meuse-Rhine Euroregion 241 Paoli, L. (2004), “Märkte der Kriminalität,” in Oberwittler, D. and Karstedt, S. (eds), Soziologie der Kriminalität, Kölner Zeitschrift für Soziologie und Sozialpsychologie, 356–83. Spapens, T. (2006), Interactie tussen criminaliteit en opsporing, De gevolgen van opsporingsactiviteiten voor de organisatie en afscherming van XTC-productie en -handel in Nederland (Antwerp/Oxford: Intersentia). Spapens, T. (2008), Veiligheid in de Nederlandse grensregio’s, deel 1: Grensoverschrijdende zware en georganiseerde criminaliteit. The results of this study will be published in the summer of 2008. Spapens, T. and Fijnaut, C. (2005), Criminaliteit en rechtshandhaving in de Euregio MaasRijn Deel 1 (Antwerp/Oxford: Intersentia). Spapens, T., Bunt, H.G. van de, Rastovac, L., Miralles Suero, C. (medew.) (2007), “De wereld achter de wietteelt,” Erasmus Universiteit Rotterdam/Universiteit van Tilburg. Spoormans, C., Reichenbach, E.A., and Korsten, A.F.A. (eds) (1999), Grenzen over: aspecten van grensoverschrijdende samenwerking (Bussum: Coutinho). Van Daele, D. and van Geebergen, B. (2007), Criminaliteit en Rechtshandhaving in de Euregio Maas-Rijn, Part 2 (Antwerp/Oxford: Intersentia). Van der Heijden, A. (2001), Routine Activities and Drug Trafficking via the Netherlands. Presentation at the 2nd World Conference on the Investigation of Crime, Durban (South Africa), December 2001. Van der Heijden, A. (2006), De cannabismarkt in Nederland, Raming van aanvoer, productie, consumptie en uitvoer (Zoetermeer: Korps Landelijke Politiediensten). Van Ooyen-Houben, M. (2006), “Hoe werkt het Nederlandse drugsbeleid,” Justitiële Verkenningen, vol. 32 no. 1, 24–5.


Chapter 13

Uniforms without Uniformity: A Critical Look at European Standards in Policing Peter Hobbing

Despite numerous promising references in political statements and legal texts, police forces of European Union (EU) member states are far from applying common EU standards; neither do they even aspire to reach such concordance in the future. This disillusioning insight was gained, as a positive side effect, from an abandoned project on which the author had worked in 2006. The task had appeared simple, that is to compile, on behalf of the Geneva Centre for the Democratic Control of Armed Forces (DCAF)—a renowned international organization specialized on demilitarization and security sector reform (SSR)—a little compendium on the various features of “EU standards in policing.” As a provider of SSR training and assistance programs, DCAF was frequently confronted with these terms which serve as benchmarks in accession treaties, wider neighborhood and other instruments launched by the EU. During the implementation phase of this project originally assessed for not more than two to three months, it became gradually clear that we were running after a phantom; that the so called standards disappeared in the air as soon as one got closer, just like a mirage or fata morgana in the desert. This discovery was all the more disappointing, as it dashed not only DCAF’s and other service providers’ hope for the handy training guide they had requested, but also betrayed public trust into the existence of an element highly useful and instrumental to the EU area of freedom, security and justice. Common standards, in the absence of common legislation, would, if they existed, do a number of beneficial things in favor of European Justice and Home Affairs (JHA) integration, notably the following: •

ease off the sharp clash of non-compatible legal/administrative systems at the internal borders of the Union, including neutralization of the “pull effect”

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•

•


exercised by member states with more lenient law enforcement practices (the so-called “Delaware effect”1); substantively supplement the JHA acquis of the Union in view of more transparent accession criteria in future enlargement operations as well as joining the Schengen area; allow the EU to assume tasks at the international level in a more effective manner, be it in terms of assisting third countries (“wider neighborhood” and others) in the set-up of police and criminal justice systems, or in the framework of international peace-keeping/civil crisis management missions.

In light of this situation, the author considered it best to make a virtue of necessity and—instead of quitting the project altogether—at least determine the reasons for which the EU had not been ready to take advantage of such a helpful tool; and maybe identify means to overcome the blockage. The chapter will thus proceed in four steps: (1) illustrate the discrepancy between pretence and reality by having a close look at the various references to alleged European police standards; (2) show that the lack of uniformity is not accidental but fully in line with the current vision of national police services including their academies as “mentors of modern policing”; we will hence show that (3) the reticence against standardization (“uniformity”) at EU-level is based, besides a traditional role and state concept, on external restraints such as the close links to criminal justice; and finally (4) no change can be expected as long as criminal justice in practice and doctrine remain equally far off European mainstream trends; a striking breakthrough may in particular not be expected from the EU “Reform Treaty” as mandated by the June 2007 Summit.

Pretence and Reality: The Virtual Absence of EU Standards in the Law Policing, just like other matters under the sensitive header of law enforcement and criminal justice, has a very modest record in positive EU legislation. Due to notoriously complicated legislative procedures under the “third pillar” suffering in particular from the unanimity principle, numerous initiatives fail (often in an early stage), while relevant subjects are never tackled or left to less formal arrangements. This observation may already provide a certain foretaste of the fragmentary legislative coverage and lack of transparency prevailing in this field.

1 According to US experience, companies tend to choose their head office site according to the most favorable regulatory system available, including the aspect which state legislation/enforcement system is likely to impose the least in restrictions and penalties. For many years the most attractive choice has been the State of Delaware (cf. Kirchner et al. 2004).

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EU Acquis Positive law With just some 30 entries, the police section in the relevant chapter of the EU acquis (10/2007) is quite concise; one can easily establish that there is nothing like a general police statute2 which would contain a significant set of policing standards. Among mainly instruments of a less stringent character (“soft law”) or dealing with narrow specialities (for instance football hooliganism), the Convention on Mutual Assistance of 20003 represents the only instrument covering a sufficiently wide spectrum of policing rules. Nevertheless these provisions allow for many exceptions and general flexibility on how member states configure their relations with the neighbors, which means that there is not a clear statement in favor of one or other standard. And as article 33 Treaty on European Union (TEU)—as well as the future article 66 Treaty on the Functioning of the Union (TFU)—does not hesitate to recall: member states remain the true masters of all action and no Union action may affect their responsibilities in terms of “maintenance of law and order and the safeguarding of internal security.”4 Meta Acquis Besides the positive EU law, there is still the so-called “meta acquis” developed on the basis of the Copenhagen criteria of 19935 and especially their stable institutions/rule of law-elements. Copenhagen’s meta-acquis appears promising as it could provide some valuable guidance in the set-up and operational standards (“democratic policing”) of police authorities in the new EU members, especially those with a communist past.6 The problem, however, lies in the lack of clarity and precision. Although being applied in accession negotiations since the first screening rounds of 1999 and routinely referred to in the regular reports and other progress documents, the “meta-criteria” have never been laid down in writing, at least not in publicly accessible form: not only the results of these sensitive screening procedures but also the criteria are subject to enhanced secrecy.

2 As they exist in national legislation, e.g. Dutch Politiewet or German (Länder) Polizeiverwaltungsgesetz. 3 Convention on mutual assistance in criminal matters between the member states of the European Union, OJ C 197, 12 July 2000, 3. 4 The Draft Treaty on the Functioning of the Union as agreed by the Intergovernmental Conference only refers certain support issues (information handling, training, common investigative techniques) to the “ordinary legislative procedure” (that is qualified majority voting), while operational cooperation remains subject to the traditional intergovernmental method, cf. IGC 2007 article 69j TFU. 5 To ensure that formerly communist candidate countries would comply with western standards. 6 Cf. the references in EU instruments on accession partnerships, for instance Latvia: Council decision of 30 March 1998 on the principles, priorities, intermediate objectives and conditions contained in the accession partnership with the Republic of Latvia (98/263/EC), OJ L 121, 23 April 1998, 21.

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Given the central significance of the Copenhagen criteria and their practical function in conveying police standards to new members, the author asked the EU service competent for JHA evaluation (Commission Directorate-General Justice, Liberty, Security) for authentic advice on how this benchmark had to be practically implemented in the screening process. The answer given by DirectorGeneral Jonathan Faull7 was all the more significant as it definitely underlined the aura of secrecy, “tradition and mutual trust,” due to which evaluation reports could be “shared with Member States only.”8 Even the existence, or not, of pre-defined evaluation criteria against which to measure the performance of candidates remained in the dark: there was no indication whether this had to be understood as acknowledgment of the non-existence of common standards9 or rather as a reference to the use of intuitive ad-hoc methods in evaluating the candidate’s capacity.10 Alternative conclusions drawn from these statements would appear equally precarious: either the institutions together with member states keep agreed standards secret (but for what reason should they?) or the screening/evaluation procedures indeed take place on the basis of mere intuition and individual “experience,” as everyone shrinks from imposing any rules on member states in such a sensitive area. Internal Borders Also the situation at internal EU borders with its permanent side-by-side existence of member states has so far not produced any striking results in common standards. While the Joint Police and Customs Cooperation Centres (JPCs) complain about incompatible laws and practices on both sides of the border, legislative remedy attempts have failed to bring relief.11 The hope that informal or “low level” initiatives such as the identification of “best practices” would be able to circumvent the stumbling blocks of the third pillar,12 have been in vain: the so-called Schengen manuals seen as motors for innovation, in particular Catalogue No. 4 on Police Cooperation, mainly concentrate on technical details and for the rest, stress very clearly that they “do not create any new requirements” (Council 2003, Introduction 1).

7 Faull, J., letter of 5 April 2006 addressed to the author. 8 Ibid. 9 Ibid.: “difficult to go further than this (ie beyond the formal acquis) in the area of law enforcement and policing where Member States have different practices and systems.” 10 Ibid.: “There are, however, no general or standard check lists ….” 11 Cf. also Spapens, T., “Policing a European Border Region: The Case of the Meuse-Rhine Euroregion,” Chapter 12 of this volume. 12 Cf. the “Common corpus of legislation”: the Commission Communication on Integrated Border Management (Commission 2002, 14) intended to establish mandatory best practices and the recasting of Schengen manuals.


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Formal legislative projects such as the proposal on improved police cooperation along the internal borders (Commission 2005) encounter fierce resistance as member states oppose the standardization even of minor technical details such as the definition of the term “border region” in terms of kilometers. The project has literally been dismantled during discussions in the Police Cooperation Working Party13 before being sent to European Parliament (EP) in a strongly abridged version (Council 2006) so that Commission representatives wondered whether it was even worth to keep up the procedure in view of the reduced benefit which can be expected from such a low-level compromise. Wider European Neighborhood (CARDS, TACIS, BOMCA) Many of the programs initiated to help the wider neighbors establish closer ties with the EU (or even qualify for future membership) routinely employ the concept of EU standards as the benchmark to be attained. This also applies to twinning and other projects undertaken in the field of policing. Problems seem mainly caused by the following factors: •

•

Quantity and duration of long-term reform projects. Due to the quantity of individual events (for instance around 80 per year in the case of TAIEX14) and the duration of long-term reform projects (for instance several years for twinning programs), these can often not be handled by the same partner organization. Changes of instructors/training teams are thus quite frequent, events can only to a limited degree be run by experienced specialists from the relevant government services but often have to rely on trainers from private consulting companies.15 Lack of content-related guidance. As a direct consequence of the inability of the relevant fora to agree on manageable policing standards (see above), the EU coordination services AIDCO16 and TAIEX have nothing substantial at hand, besides the title, which they could pass on to the trainers of police-related events. As a consequence, the content of these projects is very much left to the initiative and—as regards the standards to be transmitted—to the intuition

13 A group of senior law enforcement officials from member states meeting within the Council. 14 TAIEX is the Technical Assistance and Information Exchange Instrument of the Institution Building unit of Directorate-General Enlargement of the European Commission. It aims to provide to new member states, acceding countries, candidate countries, and the administrations of the Western Balkans, short-term technical assistance, in line with the overall policy objectives of the European Commission, and in the field of approximation, application and enforcement of EU legislation, cf. http://taiex.ec.europa. eu. 15 Findings based on interviews held with Commission officials in March/April 2006. 16 EuropeAid Cooperation Office, a Directorate-General of the European Commission.

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of those who are in the first line of the events. Responsible officials at AIDCO and TAIEX have to rely on the assumption that the trainers chosen would on their own gather the necessary information and skills to represent European standards.17 Confusion at beneficiary level. The result consists in considerable confusion at various levels. Wherever the programs are run by member states officials—probably qualified enforcement staff detached by their services—they will no doubt be inspired by their own national (sometimes for example in the case of the German Bundesländer, even regional or local) standards. Where this involves recruitment of or via private companies, things become still more complicated: it would never be evident where the points of reference stem from in these cases.

The following cases may serve as examples: A seminar on “Police practices in relation to social incidents” destined to Turkish police is run by a representative of Hamburg State police (Germany) accompanied by colleagues from UK, France and the Netherlands, each presenting his national perspective, whereby the German presentation mainly relies on local Hamburg examples. Workshops on “Anticorruption policies” and “Police Reorganization” for Moldovan officials are based on “examples from Belgium, Germany, the Netherlands and Romania.”18 Above all, one cannot expect that the beneficiary audiences are in a position to draw any clear conclusions from the side-by-side of the various EU national approaches. Regarding long-term programs (mostly twinning), the problem lies in the inconsistency of approaches, mostly in the sense of a “halfway change of horses,” i.e. that partners with incompatible approaches follow each other in assisting the same beneficiary countries. A standard example cited is that of the reform of FYROM19 custody law, which was designed according to the Anglo-Saxon model by the first twinning partner, the UK (police officer as custody officer); whereas France subsequently turned the wheel back to the continental system (custodial judge). The experts involved underline the considerable costs occasioned by this uncoordinated change of horses. Further examples relate to the shift of responsibilities from police to private security companies and the permission for police officers to take over spare-time jobs. Inconsistencies may also occur by simultaneous reform projects in areas closely linked to each other if undertaken by different twinning partners, e.g. FYROM general police reform supported by the German land Brandenburg20 (risk of 17 Ibid. 18 Ibid. 19 Former Yugoslav Republic of Macedonia 20 Objectives and Priorities of the Police Reform Twinning Project under the ECCARDS National Programs, Speech by Ambassador Erwan Fouéré, European Union Special Representative, Head of the European Commission Delegation to FYROM, Debate Hall—Government building, 25 January 2006.


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collision with the above French/UK approaches), Czech community policing projects run in parallel by the UK, the Netherlands and Canada, Slovenian twinning projects in general police and Schengen matters run by Germany, Austria and Spain,21 and a Maltese border police project, run by the UK with Spanish input. As a contrast, two highly successful projects relate to border management in the Balkans and Central Asia: the CARDS “Guidelines for Integrated Border Management in the Western Balkans” (Commission 2005a) and the BOMCA “Handbook for implementation of the EU IBM concept in Central Asia” (Commission/ICMPD 2006), both take advantage of the comprehensive and clearly defined EU acquis (mainly first pillar) which facilitated the task of laying down the relevant standards. ESDP Police Missions ESDP police missions mainly represent a complement to military deployment to help “put failed states back on their feet”; they restore internal security after the end of military interventions rather than primarily carrying out reform work. Police standards in this context thus play a different role: they are first of all needed to ensure the smooth implementation of the crisis management mission. However, mission statements as such contain only implicit, if any, references to common standards, whereas the positive references to European standards22 or international best practices23 are found only in the context of long-term reform programs pursued. Interviews with mission participants and other sources confirm that rules of conduct for mission members are developed ad hoc, without reference to any previous arrangements, possibly with the exception of the relevant United Nations sources (1979 Code of Conduct for Law Enforcement Officials and 2000 General Guidelines for Peacekeeping Operations) which seem to represent the highest common denominator. In many cases, the nationality of the mission commander is decisive: “If the boss is German, the rules are German, if he’s Italian, they’re Italian.”24 National backgrounds combined with on-the-spot coordination also represent the decisive elements for implementing reform goals: “whatever is to be understood by European standards will be decided on the spot.”25 According to the Council Secretariat, there are also written arrangements at the EU level, but they are

21 Slovenian Ministry of the Interior, Fifteen Years of Slovenian State: Schengen Acquis, http://www.15years.gov.si/15-years/achievements/schengen/. 22 EUPM/Kosovo 2002, EUPOL PROXIMA/FYROM 2004, EUPAT/FYROM 2005. 23 EUPOL “Kinshasa”/Congo 2004, EUPOL COPPS/Palestine 2005. 24 Trevisan (Police Academy of Baden-Württemberg, Germany), phone interview on 6 July 2006. 25 Löser (Council Secretariat), phone interview on 1 March 2006.


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“strictly confidential” and are not disclosed to the public nor to any other EU service outside the ESDP structures. In any case, the again highly secretive surroundings in which these “regulatory” activities take place inspire little confidence that the rules concerned—if they exist—have a practical impact on the behavior of the police staff concerned. What is the use of standards that no one knows about and that no one may discuss in the public realm?

Innovative Tendencies: Do Police Academies Go for European Concepts? Despite the meager results obtained when scanning through existing legislation, it was expected that more future oriented concepts would be encountered, at least within the training institutions which prepare new generations of police staff for a mission in the European context of the twenty-first century. But again, this hope was in vain. The finding is based on interviews held with three out of the four colleges identified as the most representative in Europe (national police academies of Germany, UK as well as the European Police College, CEPOL) while the fourth institution (French national police) in view of the sensitive subject matter could not agree to offer an appointment.26 Besides the fact that European standards could represent an interesting feature to be envisaged sometime in the future (UK), none of the academies visited could see any advantages in introducing such standards already at present. The objections were numerous: Factual Discrepancies All interlocutors insisted that discrepancies between individual provisions and even legal systems of member states were so considerable that any attempt of formulating common standards were bound to fail. The following examples were mentioned: • •

opposite strategies regarding drug control (for instance Germany/France vs. the Netherlands); diverging organizational structures: police vs. gendarmerie;

26 The Ecole Nationale Supérieure de Police (ENSP) at St Cyr au Mont d’Or, motivated its negative decision by the fact that the research had not been launched/endorsed by the EU or by the French government while DCAF as a purely Swiss organization (“fondation de droit helvétique”) did not qualify for French information on such sensitive matter. ENSP did not accept the further explanation that DCAF operated with the active support of France as one of its main sponsors nor that the EU CEPOL Committee subsequently endorsed the validity of the present study. Cf. correspondence and phone conversations with ENSP during the period March–July 2006.


• • •

•

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different community orientation: the Netherlands/Germany/Scandinavia (community-oriented) vs. France (state-oriented); prosecution approaches: mandatory (Germany) vs. discretionary (UK; the Netherlands); approaches to police powers: bearing firearms (all member states but UK— and Norway, as regards Schengen members), use of water-cannons in riot control (all but UK), use of firearms: headshot (the Netherlands) vs. torso shot (UK); centralist (France) vs. decentralized (Germany) administrative structures.

A major obstacle to European solutions was seen in the subsidiarity principle (Germany, UK) as police standards could best be resolved at national level. According to them, diversity seemed to work fine, they were happy with the differences and open borders represented no problem (UK). If, however, it was determined that the Single Market could no longer cope with heterogeneous police systems and transnational crime was getting out of control, then one should review the principle of free movement and possibly reinstall national border controls rather than put pressure on police to change towards a more European approach (Germany). Cultural Issues It was underlined that police standards with their close links to criminal justice and civil liberties had to be seen as part of national culture, at least legal culture, and should therefore be exempt from mainstream harmonization trends. National forces could see affinities regarding police culture only with certain, but not all EU partners (UK). In principle, adoption of foreign standards was considered as out of the question (“unless the others accept our standards!”); if there was approximation of rules, this could only occur, at the most, on a bilateral or limited multilateral basis (Germany). In this light, the academies would see the CEPOL initiative for “harmonized EU curricula” as a mere attempt to illustrate the different national approaches adopted and mutually provide police staff with a better understanding of foreign systems (Germany, CEPOL).

Elements of Friction: Police between Traditions and Legal Restraints In view of the general EU tendency of reducing diversity, not only in the traditional economic but even formerly sacrosanct strongholds such as culture and education, it is astonishing to see how successfully policing escapes from this trend. And curiosity grows as to what is so special about policing.

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Police vs. Civil Society: A Special Role “Par Excellence” Before examining possible explanations from the legal point of view, especially constraints derived from the relationship to the criminal justice sector, it is worthwhile to have a look at the special status of police in society including its peculiar self-image often referred to in police literature (for instance Anderson 1995; Fehervary 2001). It is widely observed that police feel uneasy when subject to external supervision and accountability (Fehervary 2001, 77):27 no matter whether it is with regard to specific cooperation modes imposed by the Europol Convention (Mitsilegas 2007, para 10; Mounier 2007) or in implementing EU initiatives related to the area of freedom, security and justice at national level, home ministries as well as subordinated police forces tend to “neutralize” control attempts in order to continue with traditional national approaches (Guild and Carrera 2006, 1).28 This is not the place to enter into the deep causes of this situation: but the trend of evading general control from society may stem from periods when police, beyond all formal criteria, felt directly responsible for the state and its welfare (“police state,” “Polizeistaat” in their variable meanings from enlightened absolutism down to George Orwell). The role of home ministries/police authorities has most recently been highlighted in the discussion surrounding the Prüm/ Schengen III process, which was launched and completed “entirely outside the EU context” in order to avoid last but not least the involvement of the European Parliament. Even at national level, parliamentary control was minimal, due to skilful timing in the run-up to the 2006 FIFA World Championship in Germany (Guild and Geyer 2006; Balzacq et al. 2006, 17). The conservative police attitude is facilitated by two factors: •

The notorious lack of mainstream control in the third pillar area which, beyond the reduced role of the normal EU “players” concerns the absence of “peer control” at the EU level, that is that law enforcement agencies are among themselves in the relevant fora and not counterbalanced by their customary “watchdogs” such as departments responsible for constitutional protection

27 If police accountability already at the national level is considered “one of the thorniest conundrums of statecraft” (Reiner 1993, 1), its complexities multiply once regulatory mechanisms go beyond the domestic context: according to Anderson et. al (1995, 254, 267), society grants police authorities a “specialist knowledge mandate” with a tendency to exempt them from close scrutiny. While accountability to national fora is nowadays a widely accepted fact, the involvement of players from the EU level still meets with strong reticence, based on the concern that external regulation of police authorities represents a significant “erosion of national self-determination.” 28 Very striking examples of mistrust towards allegedly “corrupt, unreliable or uncooperative” member states were described by Mounier 2007, in his presentation on transgovernmental police cooperation networks: certain EU member states’ liaison offices in the Balkans would openly boycott regular reporting channels for instance via Europol in favor of cooperation with selected colleagues/services of their personal choice (“old boys network”).


•

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(Guild and Carrera 2006, 2). In December 2006, governments definitely rejected the “passerelle” shortcut to greater democratic legitimacy (article 42 TEU) and thus helped keeping the European Parliament and the European Court of Justice (ECJ) out of the scrutiny process. The successful exploitation of eurosceptical tendencies in domestic society, especially of those who consider European integration a threat to civil liberties and human rights.

It is well-known from opinion polls that Europeans—although they expect “Brussels” to tackle crime and drugs as a priority29—do not want to see the direct consequences of integration back home: as one can read in the British press, the “worst case scenario for any UK citizen is to undergo sentencing by a judge from Latvia or an arrest imposed by a policeman from Greece.”30 If, against this background, police remain suspicious towards any cooperation arrangements under the auspices of the European institutions, they are likely to get applause from citizens who see them as freedom-fighters and allies in defending civil liberties against threats from the EU big brother. Of course, careful observers have always raised their voices and warned the public that giving in to national police forces and their preference for informal arrangements and “ad hocery” would cause just the opposite, that is evade democratic control instead of respecting it, erode civil liberties instead of strengthening them. And that the only way out of the dilemma is to abolish the third pillar privileges and submit police cooperation and criminal justice to the EU mainstream method of the first pillar (Anderson et al. 1995, 263; Guild and Carrera 2006, 3.). But since the public seems at least in part unwilling to listen to these arguments and accept that “more Europe” may be the only way to protect civil liberties and human rights, it is quite likely that police will be able to continue its present strategy with some support. Policing and Criminal Justice: Their Mutual Links Beyond these socio-cultural elements, one should not ignore that police may also refer to some real world reasons in the sense of legal constraints which seriously restrict its scope in aligning standards. The close link to the judiciary and to criminal justice is real and so is the fact that police is subject to the rules valid in this framework. If, according to common understanding, the criminal justice scheme consists of four phases (entry, prosecution, adjudication/sentencing, corrections), police is involved in at least the first two, whereby it entirely controls phase one (crime reporting/observation, investigation, arrest) and is significantly involved in phase 29 Eurobarometer 2002: 83 per cent wished the EU to consider this a priority, and in 2006 this share even rose to 86 per cent. 30 Similarly for Germany: being arrested on German territory by a policeman from Estonia or Portugal; Schünemann 2004, 395.

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two, contributing to prosecution either in an assistant function to the public prosecutor (described as “Hilfsbeamte der Staatsanwaltschaft ” in Germany), under the supervision of the latter (“ministère public” in France) or via an independent body (Crown Prosecution Service in the UK). This confirms what has been often stated in police literature and also stressed in the interviews conducted: with its double-function as administrative and criminal justice authority, police is not fully self-determined in defining its working standards, but subject to rules designed in a framework out of its reach. In particular, the joint law enforcement centres (PCCCs)31 directly on the edge between national territories emphasize the limits imposed on police flexibility by the contradictory criminal law systems: whether arresting a person, using firearms, searching a house, exercising public authority, it is always the criminal justice which dictates the rules and the rules are very different.32 A “glance behind the curtain” should therefore clarify where we stand and to what extent criminal justice opposes the creation of common European standards.

Criminal Justice: The Factor Behind Due to its direct impact on civil liberties and human rights, criminal justice represents an area subject to still greater scrutiny than policing as regards the exercise of powers. Procedures are distinctly formalized and shaped by centuryold traditions which renders cross-border comparisons and approximation particularly difficult. Together with police cooperation, criminal justice remains the last stronghold of intergovernmentalism in the EU treaty framework, even under the envisaged 2007 Reform Treaty.33 European Legal Cultures One statement by criminal law experts is that systems are different from one country to the next; the next is that this is an expression of national cultures; and finally, that, although no systems are alike, there are at least “families” (Perron

31 Police and Customs Cooperation Centres. 32 Cf. statement by Bernd Belle, Head of the French-German PCCC in Kehl at an European Parliament hearing on 18 December 2006. 33 Both areas which currently form the “third pillar,” characterized by unanimity voting and weak roles attributed to Parliament and the Court of Justice (cf. Title VI TEU) will continue to play an isolated role under the future Treaty on the Functioning of the Union (TFU) which grants numerous opportunities to the member states to recur to “emergency brakes” and the so called “special legislative procedure” with unanimity voting in the Council and mere consultation of the Parliament. cf. Peers 2007, 11; Carrera and Geyer 2007b.


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1997, 287) which share certain basic features. One of the rare features common to all member states is the abolition of the death penalty.34 For Europe, one speaks of basically four groups: (1) Anglo-saxon common law (comprising UK, Ireland); (2) French civil law (France, Benelux, Spain); (3) German civil law (Germany, Austria, Switzerland, Greece, Portugal, Turkey); (4) Scandinavian civil law (Denmark, Norway, Sweden, Finland, Iceland). There are some mixed cases (Netherlands, Italy) and white spots on the map concerning the formerly socialist countries of Eastern Europe with no confirmed attribution yet. Major discrepancies concern the following (non-exhaustive) list of areas of criminal law/criminal procedure: •

• • •

• •

punishability of acts such as abortion, drugs abuse/trafficking and their periphery: ° abortion: strict laws (Ireland, Poland, Malta) vs. more liberal laws (most other member states);35 ° drugs: liberal laws (the Netherlands) vs. stricter laws (other member states);36 certain varieties of fraud, breach of trust and so on (Eser 2002, 2163); divergently structured elements of homicide and other crimes against life;37 applicability of penal law on acts committed abroad: extraterritorial application (continental systems) vs. principle of territoriality (Anglo-Saxon common law) (Eser 2002, 2159); mandatory prosecution (Germany) vs. discretionary prosecution (UK, the Netherlands) (Eser 2002, 2167); major structural discrepancies regarding the rules on evidence, defense, acquittance/conviction in the sense of the “ne bis in idem” rule (double jeopardy rule) (Gless 2004, 364).

Criminal Justice Academia and Europeanization The situation appears familiar. Just as police sector academia and criminal justice professors who wholeheartedly support concepts of europeanization, such as the Corpus Iuris Project38 for the penal protection of the financial interests of the 34 As based on the Council of Europe’s “European Convention for the Protection of Human Rights and Fundamental Freedoms,” in particular its Protocols no. 6 (abolition in peace time) and 13 (abolition also in war time). 35 “Europe’s terms for terminations,” BBC News, 2 June 2002, http://news.bbc. co.uk. 36 European Monitoring Centre for Drugs and Drug Addiction, European Legal Database on Drugs, http://eldd.emcdda.europa.eu/. 37 Perron, W. based on the results of a “General comparison of the structures of penal law,” conducted at the Max-Planck-Institute for Foreign and International Penal Law and Criminology, Freiburg, Germany, between 1996 and 2006. 38 Cf. Delmas-Marty 2000. It is to be noted that this study intends to elaborate a number of guiding principles (not a model criminal code or criminal procedure code) in relation to the protection of the financial interests of the Community.

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Community, are rare, reactions appear just as negative—although the professors are more explicit in providing explanations. Many of them seem disinterested in European matters (if one can judge by the scarce presence of European topics on the curricula of the law faculties) or expressly sceptical whenever the concrete impact of European legislation on national criminal law is at stake (for instance European arrest warrant, mutual recognition in general, TEU/TEC provisions relating to the alignment of national legislation, creation of minimum/maximum standards). I hereby base my statements on explicit discussions held in Germany in the framework of the possible adoption of the EU Constitutional Treaty in 2003/2004: for a more general assessment one would need to look into other national debates, but there are indications that the situation is not so different elsewhere. The first part of the debate—which, by the way, fills an entire volume of the prestigious criminal law review Zeitschrift für die gesamte Strafrechtswissenschaft (ZStW) founded in 1881—concerns factual and legal circumstances/disadvantages of Europeanization, notably the patchwork character that all individual EU interventions would have on the carefully balanced system of national legislation (Nestler 2004, 346). It would make no sense to “import” a specific provision from another system and leave all the rest untouched. For instance minimum/maximum penalties have to be seen in the context of procedural rules which allow or interdict to adapt penalties to the individual amount of mitigating/aggravating circumstances (Nestler 2004, 346). It is also criticized that the third pillar initiatives of the past ten years have unilaterally led to power gains by police and prosecution but not equally protected civil liberties, in particular, by failing to strengthen the rights of defense (Weigend 2004, 281; Nestler 2004, 340). Incidentally, the German debate here meets with the mainstream criticism of European aberrations in third pillar developments (cf. Balzacq et al. 2006, 2; Anderson and Apap 2002, 15)—before turning into yet another direction. Beyond this, one cannot resist the impression that the second part of the discourse relating to the “profound” differences between legal cultures is the decisive one: most panel members felt that any substantive alignment of national systems was out of question, given the “grown” character of each system (Perron 1997, 296), its intrinsic link to “linguistic traditions” (Eser 2002, 2166) and even the national prerogative of a “certain arbitrariness” (Deiters 2006, 472) in formulating criminal offences. This goes along with the assumption that other national systems represented in the European Convention of 1999-2003 have a “less responsible” relationship with repressive legislation: that they might not take it seriously enough to defend civil liberties against an excessive use of punitive legislation (Weigend 2004, 302; Schünemann 2004, 383). German academia opposes first of all the general codification of criminal law at EU level such as the “Corpus Iuris” (mainly on the grounds that it could


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never succeed in satisfying the traditions of all members39), but also the “lighter” versions of integration such as mutual recognition. What are the solutions proposed? Significantly enough, the most favored options are those implying the least changes to the current system. While some panellists could still accept the mutual recognition scheme to a certain extent,40 for most of them, even this solution is unacceptable as it implies “too much exposure” to foreign legal systems. Criticism is aimed at the “horror-vision of unleashed powers” (Nestler 2004, 350), when, via the European arrest warrant (EAW), prosecution authorities could arrest inland citizens according to a (foreign) legal order of their choice (“forum shopping”).41 The preferred choice seems to be the concept of “substitutional criminal justice”42 which leaves national systems entirely intact: even in the case of offences on foreign territory, citizens would be tried at home by a court of their country of origin—with the only peculiarity that the court has to apply foreign law (valid in the territory where the act took place!). This looks adventurous and almost like a desperate attempt to preserve national autonomy at any price. How can one seriously expect ordinary courts at local or regional level to switch from one legal system to the other just like changing a shirt, to resolve criminal cases in accordance with the law of 25, 27 or even more countries? Who would translate law books including relevant case law? Who would ensure that foreign dogmatic principles are correctly interpreted? Yet these difficulties seem to have no discouraging effect on the representatives of the substitutional theory and their wider—romantic—vision of criminal law and its relationship to general culture. According to Deiters and Eser, the future of EU criminal law should not solely be seen under the perspective of utility but also that of a plurality of cultures. Reducing this plurality would not only mean a “loss of regulatory inventiveness” (Deiters 2006, 479; Eser 2002, 2166), but also abandoning a precious “multicultural testing ground for experiments.” Penal diversity represents “not just a transitional phase of European integration but should be seen as an integral feature of the confederation strived for” (Deiters 39 Eser 2002, 2168 refers for instance to the Swedish rejection of the Corpus Iuris, because they could only find French and German elements but “no traces of Scandinavian law tradition.” 40 Cf Gless 2004, 353 who supports mutual recognition except for the collection of evidence (European evidence warrant): national rules being extremely complex, it is not possible to generally allow for the “EU-wide freedom of movement” of evidence obtained in one member state (at 366). 41 Cf. Schünemann 2004, 396: the “scandalous” element being that national citizens could be arrested/tried on the basis of foreign provisions they had no opportunity to influence during the course of their adoption. 42 Inspired by “substitutional execution of penalties,” article. 5 (3) EAW framework decision (OJ L 190, 18 July 2002, 1) according to which a person who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the executing member state, surrender may be subject to the condition that the person, after being heard, is returned to the executing member state in order to serve there the custodial sentence or detention order passed against him in the issuing member state.

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2006, 472: The non-functional approach is also underlined by the statement that the decision to incriminate or not certain acts is—except for the respect of constitutional rights—“left to the discretion of a state”). Third Pillar and National Culture: A Critical Examination Of course, one understands that departure from purely national systems built around longstanding traditions and based upon refined dogmatic constructs is a difficult matter—yet attachment to culture and tradition can in itself not be considered a valid reason to stop the wheel of reform. Objections to a purely national vision are numerous, whereby the focus here will be on three major aspects: (a) current role of national cultures as reform benchmark; (b) lessons from history; and (c) relevance of refusal strategies. National traditions—a definitive obstacle to reform? Considering the role of higher education as part of the core zone of cultural identity and the increasing European harmonization trends in this field, it would appear hardly justifiable for more functional areas such as law to be kept apart. The so-called Bologna process provides a striking example of how traditional national standards are being sacrificed in favor of more economy-based European orientations. In view of helping Europe to become the “most competitive and dynamic knowledgebased economy in the world” (Lisbon Strategy), EU Member States have agreed to create a European higher education area (EHEA) in which academic degree and quality assurance standards converge to be comparable and compatible (Bologna Declaration of 19 June 1999).43 In a “revolutionary move” away from traditional study courses and degrees handed down through history such as “Diplom/Staatsexamen” (Germany), “licence/maitrise” (France), “diplomatura/ licenciatura” (Spain), ministers of education have agreed to unilaterally opt for the Anglo-Saxon model of “Bachelor/Master” whereby this choice did not just imply formalities but also content of study and the wide-ranging use of the English language. A lesson from history History of law teaches us that earlier ages have reacted differently to similar situations and in a more flexible way. For two major member states (Italy and Germany) which have gone through profound integration processes in the 19th century, there was no question that national unification had to be accompanied by new criminal legislation (cf. Bacigalupo 2004, 327 referring to the Italian Codice Penale of 1889 and the German Strafgesetzbuch of 1871). In both cases, the new nation state was built upon a patchwork of formerly independent states,44 each with distinct economic and legal traditions,45 and in 43 Joint declaration of the European Ministers of Education convened in Bologna on the 19th of June 1999. 44 Italy: 15 states in 1859, cf. Stearns 2001; Germany: 300 states (1803), 60 (1806), 38 (1866), 15 (1870). 45 In pre-1870 Germany, there were 15 different criminal codes (Stenglein 1858).


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the case of Italy even with twelve different languages. Despite this unfavorable point of departure, both countries accomplished their respective criminal code within a relatively short time (Germany 1871, Italy 1889). Leading penologists of the time such as Franz von Liszt left no doubt that common criminal legislation was a basic requirement for any single market area such as the new Swiss Confederation and even a future economic space to be accomplished in central Europe after the First World War.46 We should take this as a reminder for two things: that (1) these “eternal” national traditions are not that old and deeply-rooted after all and (2) the challenges mastered by our forefathers in designing appropriate legislation for newly created territories should also be manageable in our times. As Enrique Bacigalupo, judge at the Spanish Supreme Court and highly reputed expert of various European systems, confirms, the Europeanization of penal law as proposed by the draft constitutional treaty represents a feasible project, all the more due to the century-old scientific cooperation -“national laws are part of a common penal culture, which should facilitate our task” (Bacigalupo 2004, 330). This positive appreciation is supported by the results of modern comparative law; even where criminal justice systems choose extremely different paths to determine the appropriate reaction, the outcomes are surprisingly similar. By means of a “structural comparison of legal systems,” the Freiburg MaxPlanck-Institute for Foreign and International Criminal Law identified a sort of “European common sense” which appeared to be very little influenced by concrete features of a given national system (Perron 1997; Eser 2002, 2165). This should be considered as good news for all those who fear that exposure to foreign concepts will automatically lead to unacceptable results. Helpfulness of refusal strategies Criminal justice experts who tend to be sceptical of European solutions often speculate about the right attitude to take (“cooperate or oppose?” (Weigend 2004, 301). As in the police sector, some assume that passive resistance by means of a “veto against further sovereignty transfer to Brussels” could resolve the issue, as long as it is combined with a domestic approach to cross-border cases such as the substitutional justice concept (Deiters 2006, 480). The majority, however, realizes that pure abstention will further deteriorate the situation, as too much transfer has already occurred and the less scrupulous representatives of prosecution and law enforcement take advantage of existing third pillar powers. Not only have the “security sector colleagues” successfully managed to defend and even extend their “acquis” (for instance Weigend 2004, 282), but this has also led to a dangerous imbalance between the respective powers of prosecution and defense; just as the entire Justice and Home Affairs area appears to be marked by an “emphatically punitive attitude (Schünemann 2004, 392; similar Nestler 2004, 334: “Verpolizeilichung des Strafverfahrens” [policialization of criminal procedure]). 46 Von Liszt 1918, 1 according to whom all “economically relevant” or “practically important” criminal acts need to be subject to “not just similar, but identical” legislation.


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In this respect, the more conservative eurosceptics in national capitals meet with the civil liberties activists at EU level who strive for the area of freedom, security and justice as a cornerstone of European integration while struggling for the submission of the third pillar matters to mainstream democratic scrutiny exercised by the European Parliament and the European Court of Justice. The continuing dangers of imbalanced Justice and Home Affairs integration make the headlines in an almost daily routine, currently with the transposition of the Prüm Treaty into EU law and the intended role of Eurojust to assist prosecution services in suggesting the national jurisdiction best placed to undertake investigation/ prosecution (“forum-shopping”) (Carrera and Geyer 2007a). And there is yet another good reason to join forces on the criminal justice side and get actively involved in developments in Brussels: besides the beforementioned “police and prosecution advance,” an entirely treaty based opening in favor of a European criminal law seems to occur on the basis of recent ECJ jurisdiction.47 If the Court, on the basis of articles 29 and 47 TEU concluded that Community law may establish requirements which national criminal justice systems must fulfill, including horizontal measures transcending specific policy areas, the door may now be wide open for the Commission to propose the harmonization of aspects of the general part of criminal law (Vervaele 2006, 87, 91). This means that the Europeanization of criminal law is making progress on several fronts (first and third pillar!), and its advance seems unlikely to be stopped at the national level. It is thus high time that those concerned about the imminent threat to established values of criminal procedure and civil liberties should thus not hesitate to actively influence the decision-making process.

Conclusions In times marked by increased emphasis on utility and cost efficiency, areas in which it is possible to resist pressure for alignment at EU level and justify the maintenance of national diversity are rare. As this chapter tried to point out, policing—and in its wake, criminal justice—are not in a position to invoke arguments in support of substantially different treatment than is given to other central areas of national identity currently at stake. In particular, culture and education are currently undergoing remarkable and profound changes in view of rendering Europe more competitive in the framework of the Bologna process. One should also learn from the lessons of the past showing that (a) criminal justice traditions are not that old after all and (b) our ancestors in the 19th century dealt quite differently with the criminal law traditions of their times: they replaced them when profound economic or other structural developments required it. Since all EU states adhere to the same basic values and systems—as comparative law studies show—reaching the same solutions via different methods, the risk is not all that great that it would cause fundamental injustice to citizens by creating 47

ECJ Case C-176/03, Commission v. Council, judgment of 13 September 2005.


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specific European criminal justice and policing standards. On the contrary, considerable disadvantages result from the currently non-aligned standards, notably in the framework of communicating EU rules to members, neighbors or other countries interested in adhering to EU regulatory systems. Furthermore, the current internal security situation, marked by non aligned standards and legislative procedures diverging from the EU mainstream, bears important risks for civil liberties: law-making processes without sufficient democratic safeguards have led to an unduly privileged position of the prosecution services which finds no counterbalance in the rights of the suspect and accused. It is therefore desirable that policing and—in view of their intrinsic links— criminal justice thoroughly review their attitude towards Europeanization in order to counter the above risks and disadvantages. Of course, in view of the existing differences in positive law and practices as combined with distinct traditions, abrupt changes cannot reasonably be expected. But the process of change must be boosted now, following inspiration from former periods of European history when nineteenth-century Germany and Italy took it as a priority to vest their newly created state structures with a redesigned criminal justice system. And for the time being, the inconveniences of not yet existing joint standards should at least be attenuated by pragmatic solutions, such as greater transparency when invoking EU standards in criminal justice or policing. Accession candidates and other target countries should be made aware of the diffuse content of the term. Existing affinities between certain national systems should be exploited by designing “sub-groups of EU standards” which could jointly assist third countries in legal reform.

References Anderson, M. and Apap, J. (2002), Changing Conceptions of Security and their Implications for EU Justice and Home Affairs Cooperation, CEPS Policy Brief no. 26 (Brussels: Centre for European Policy Studies). Anderson, M., den Boer, M., Cullen, P., Gilmore, W.C., Raab, C.D., and Walker, N. (1995), Policing the European Union (Oxford: Oxford University Press). Bacigalupo, E. (2004), “Bemerkungen zu strafrechtlichen Fragen des Verfassungsentwurfs,” Zeitschrift für die gesamte Strafrechtswissenschaft, vol. 116 no. 2, 326–31. Balzacq, T., Bigo, D., Carrera, S. and Guild, E. (2006), Security and the Two-Level Game: The Treaty of Prüm, the EU and the Management of Threats, Working Document no. 234 (Brussels: Centre for European Policy Studies). Carrera, S. and Geyer, F. (2007a), Terrorism, Borders and Migration: The Commission’s 2008 Policy Strategy in the Area of Freedom, Security and Justice, CEPS Policy Brief no. 31 (Brussels: Centre for European Policy Studies). Carrera, S. and Geyer, F. (2007b), The Reform Treaty and Justice and Home Affairs. Implications for the common Area of Freedom, Security and Justice, CEPS Policy Brief no. 141 (Brussels: Centre for European Policy Studies).

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Commission of the European Communities (2002), Communication, Towards integrated management of the external borders of the Member States of the European Union, COM(2002) 233 final, Brussels, 7 May 2002. Commission of the European Communities (2005), Proposal for a COUNCIL DECISION on the improvement of police cooperation between the Member States of the European Union, especially at the internal borders and amending the Convention implementing the Schengen Agreement, Brussels, COM(2005)317 final,18 July, Brussels Commission of the European Communities (2005a), Guidelines for Integrated Border Management in the Western Balkans, Brussels. Commission of the European Communities/ICMPD (2006), Handbook for Implementation of the EU IBM Concept in Central Asia. Council of the European Union (2003), EU Schengen Catalogue #4: PolCoop. Recommendations and Best Practices. Council of the European Union (2006), Document 6409/06, 15 February, Brussels. Deiters, M. (2006), “Das Prinzip stellvertretender Strafrechtspflege als Strukturelement einer föderativen Strafrechtsordnung in Europa,” Zeitschrift für Internationale Strafrechtsdogmatik, vol.1 no. 10, 472–80. Delmas-Marty, M. (2000), Penal Provisions for the Protection of European Finances—The Implementation of the Corpus Juris in the Member States (Antwerp: Intersentia). Eser, A. (2002), “Von der Konkurrenz zur Kongruenz nationaler Strafrechtsordnungen. Wege zur Rechtsannäherung in Europa,” Poinikos logos, no. 5, 2158–70. Fehérváry, J. (2001), “Europäisierung der Polizeiarbeit. Ein Resultat polizeilicher Kooperation,” in Fehérváry, J. and Stangl, W. (eds), Polizei zwischen Europa und den Regionen (Vienna: WUV Universitätsverlag), pp. 36–48. Gless, S. (2004), “Zum Prinzip der gegenseitigen Anerkennung,” Zeitschrift für die gesamte Strafrechtswissenschaft, vol. 116 no. 2, 353-–67. Guild, E. and Carrera, S. (2006), “The Hague Programme and the EU’s Agenda on Freedom, Security and Justice: Delivering Results for Europe’s Citizens?,” CEPS Commentary (Brussels: Centre for European Policy Studies). Guild, E. and Geyer, F. (2006), “Getting Local: Schengen, Prüm and the Dancing Procession of Echternach,” Journal of European Criminal Law, vol. 1 no. 3, 61–6. Kirchner, C. et al. (2004), “Regulatory Competition in EU Corporate Law After Inspire Art: Unbundling Delaware’s Product for Europe,” Law and Economics Working Papers no. 17 (Chicago: University of Illinois College of Law). Intergovernmental Conference/IGC (2007), Draft Treaty amending the Treaty on the European Union and the Treaty establishing the European Community, 23 July 2007. Mitsilegas, V. (2006), “Police Cooperation: What are the Main Obstacles to Police Cooperation in the EU?,” Briefing Paper, IP/C/LIBE/FWC/2005-24 (Brussels, European Parliament, Directorate-General Internal Policies). Mounier, G. (2007), “Fight against Organised Crime in the Balkans,” paper presented at the 4th CHALLENGE Training School, 13–14 April 2007, CEPS, Brussels. Nestler, C. (2004), “Europäisches Strafprozessrecht,” Zeitschrift für die gesamte Strafrechtswissenschaft, vol. 116 no. 2, 332-352. Peers, S. (2007), Statewatch analysis EU Reform Treaty analysis 1: JHA provisions, 23 July 2007, www.statewatch.org/news/index.html. Perron, W. (1997), “Sind die nationalen Grenzen des Strafrechts überwindbar?,” Zeitschrift für die gesamte Strafrechtswissenschaft, vol. 109 no. 2, 281–301.


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Reiner, R. (1993), “Police Accountability: Principles, Patterns and Practices,” in Robert, R. and Spencer, S. (eds), Accountable Policing—Effectiveness, Empowerment and Equity (London: Institute for Public Policy Research), p. 1. Schünemann, B. (2004), “Grundzüge eines Alternativ-Entwurfs zur europäischen Strafverfolgung,” Zeitschrift für die gesamte Strafrechtswissenschaft, vol. 116 no. 2, 376–99. Stearns, P.N. (ed.) (2001), The Encyclopedia of World History, 6th edition (New York: Houghton Mifflin). Stenglein, M. (ed.) (1858), Sammlung der deutschen Strafgesetzbücher (München: Kaiser 1858). Vervaele, J.A.E. (2006), “The European Community and Harmonization of the Criminal Law Enforcement of Community Policy,” eucrim, no. 3–4, p. 87–93. Von Liszt, Franz (1918), Zeitschrift für die gesamte Strafrechtswissenschaft, vol. 38 no. 1, 1. Weigend, T. (2004), “Der Entwurf einer Europäischen Verfassung und das Strafrecht,” Zeitschrift für die gesamte Strafrechtswissenschaft, vol. 116 no. 2, 275–303.


Chapter 14

Third Pillar Developments from a Practitioner’s Perspective Richard Lang1

I was very privileged to start my career in 1999 in the Commission’s Justice and Home Affairs Directorate-General. 1999 of course was the year the Amsterdam Treaty came into force, and a large number of subjects were moved from the third pillar into the first pillar. These were: • • • •

asylum policy; rules governing the crossing by persons of the external borders of the member states and the exercise of controls thereon; immigration policy and policy regarding nationals of third countries; judicial cooperation in civil matters.

These subjects now came under the control of the Commission for the first time. The Commission did not even have a dedicated Directorate-General for them—until 1999, Justice and Home Affairs had been a taskforce only. Nor did it have a building, and we were relocated several times until finally settling in Rue Luxembourg, where the Directorate-General—now renamed Justice, Freedom and Security—still has its home. It was an exciting time—late 1999 of course saw the Tampere Summit—and although all of the matters I was working on were necessarily first pillar, there was the sense that we were operating on the faultline, as it were, between the two pillars (first and third). This feeling of being at the interface of the two pillars continues to trouble me in private practice. One of the fields in which I most feel this sense of having one foot in each pillar is the field of immigration, which will therefore be the

1 As this is a written-up version of a paper originally given orally, it is hoped that use of the first person may be forgiven. Furthermore, there has been an interesting development since the paper was given, namely the convening of the Intergovernmental Conference (“IGC”) to prepare a new, “Reform” Treaty. Said Treaty, it is optimistically presumed, will rescind the pillar system altogether. This development is dealt with in a later section. However, with still some time for the Reform Treaty to enter into force (if at all), the terms “first pillar” and “third pillar” will continue to be used in this contribution.


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subject matter of the first of my three case studies to illustrate the different ways in which practitioners can encounter the third pillar.

Case Study A: Immigration Why should it be that the practitioner feels himself to be on the border of the first and third pillars when dealing with an immigration question, when, according to the list above, immigration policy is now a first pillar matter? Immigration policy is a first pillar matter, but only up to a point. To see why this is so, one needs to look at what is left in the third pillar: trafficking in persons, illicit drug trafficking and illicit arms trafficking, organized crime, terrorism, extradition. So the business of a person’s moving from one member state to another, or for that matter from a third country to a member state, does not fall clearly into one pillar or the other, especially where crime or the possibility of crime, past or future, is concerned. The recent spate of ne bis in idem2 cases demonstrates this, and I will discuss these in more detail in the section below. I once had a case concerning a third country national, a Serbo-Croatian to be precise, who was sentenced in Germany to ten years in prison. Five years later he was repatriated. While there was no insistence, on the part of the German authorities that he be incarcerated on his return, the ten years were still considered to be running. Furthermore, once the ten years had elapsed, the client was to have no entitlement of entering German territory for his entire life. I was asked a simple question: could he enter another member state of the Community? I was advised that he was quite fervently seeking Polish citizenship and was now “involved” with a Polish woman. So, an immigration case with a criminal dimension. Are we still in the first pillar? Had the client been a national of a member state, it would have been fairly clear that Germany’s behavior in excluding him was contrary to EU law: • •

“Measures taken on grounds of public policy or of public security shall … be based exclusively on the personal conduct of the individual concerned.” “Previous criminal convictions shall not in themselves constitute grounds for the taking of such measures.”3

In fact, to exclude the client, Germany would have had to have shown that he reached the famous “Bouchereau standard,”4 that is, that he was a “genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society.”

2 The right not to be charged twice for the same course of action. 3 Formerly directive 64/221/EEC, articles 3 (1) and 3 (2); now directive 2004/38, article 27 (2). 4 Named after Case 30/77 R v. Bouchereau [1977] ECR 1999.

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However, since he was not a national of a member state, Germany was within its rights. Now, what about the other member states? Since the client was a third country national, the other member states would ordinarily retain a sovereign right of who to admit or not. But ever since the advent of Schengen, it was possible for the Federal Republic to issue an alert for the purposes of refusing the client entry into the entire “Schengen area.” In other words, thanks to Schengen, a ban by one member state could take effect in other member states. (Poland has of course signed the Schengen agreement but has not yet implemented it—late December 2007 is foreseen as the date when the enlargement countries will become fully operational within Schengen.5) If ever there was an entity that existed on the very frontier of the first and third pillars, it is Schengen. The Schengen Information System is currently based on the third pillar but relates to issues now covered by the first pillar, as I explained above; the Schengen acquis has not evolved in line with the Treaties. The 2006 case of Commission v. Spain (C-503/03)6 states that, even in a Schengen situation, Bouchereau is still the standard to apply. The border guard, having found the migrant’s name on the computer, could not just expel him. But again that is where individuals covered by Community law are concerned, and the client did not yet have Polish citizenship. I offered the client a few options, one being to make use of Croatia’s Stabilization and Association Agreement of 2005. I also mentioned that, were he to marry the Polish woman in question, and provided that this was not a sham marriage, he might be able to acquire a right of entry through her, so long as certain other conditions were satisfied. I merely refer to this case as a little example of how, in practice, the third pillar casts its long shadow even over matters that one might have thought were safely rehoused in the first pillar eight years ago.

Case Study B: Data Protection and the Problem of Limited or Non-Existent Judicial Protection I think one of the main frustrations of the third pillar for practitioners is the astounding lack of judicial protection. Practitioners like courts, that is, courts before which they can take their clients’ problems. But with the third pillar, the door to court is often partially, or fully, closed. One is reminded of Laurence Gormley’s image of the pillars as the three doors of a Gothic Cathedral; to adapt the metaphor, it seems that the third door is perennially locked.7 I particularly 5 Press release of the German Presidency, 20 April 2007. 6 [2006] ECR I-1097. 7 When I talk of judicial protection, I mean judicial protection at the European level. In respect of Schengen, for example, there have been instances in which an “Article 96 alert” (that is, where the migrant was entered into the Schengen Information System as an “unwanted alien”) has been challenged in the domestic courts. Madeleine Colvin gives two examples from France, both involving Roma: Igelo v. France, Strasbourg Administrative

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became aware of this when asked to advise first an accession country, and later a candidate country, on data protection under the third pillar and judicial remedies for the protection of personal data rights. There is considerable doubt, where the surveillance instruments are concerned, as to the extent, or even the existence of, judicial review. To take the best example, the CIS (Customs Information System) appears to have a first pillar legal basis,8 but many of the highest experts, even within the Commission, believe it to be a third pillar instrument. That is shown by the text proposed by the Commission on 4 October 2005, “Proposal for a Council Framework Decision on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters.”9 I have been told by one expert that there are in fact two Custom Information Systems—one in the first pillar and one in the third pillar. Another expert said that it was a mixture of first and third pillars “within one database.” Imagine you are in the customs shed. If you open up the box and there are vegetables in it, you are in the first pillar. If you open up the box and there are guns in it, you are in the third pillar. Until you open up the box, you have no idea where you are. This sort of confusion leads to a lack of legal certainty, which is bad for border control personnel, bad for the individual, and, if he or she wishes to give good advice, bad for the practitioner. Another example is Europol. At least five of the leading academics describe this as a third pillar instrument (Monaco 1995; Adenas and Zleptnig 2003; Jay and Hamilton 2003), but another claims that it is “formally outside the EU Treaty” (Lavranos 2003, 261). I repeat: this is a lack of legal certainty. The individual does not know to what extent, or even if, he is protected by the European Court of Justice in the event of an improper usage of his personal data.

Court, April 3, 1995; Ciuciu v. France, Lyon, 5 April 1995; see Colvin 2001. Any judicial protection is of course better than none. But without a swift and trouble-free means by which the domestic judge can seek the opinion of the European Court of Justice, the danger is that these matters will remain at member state level, leaving us with 27 different interpretations of the relevant law. 8 See Council regulation (EC) No 515/97 of 13 March 1997 on mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs and agricultural matters, particularly article 23 (1), and Commission regulation (EC) No 696/98 of 27 March 1998 implementing Council regulation (EC) No 515/97 on mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs and agricultural matters. 9 COM(2005)475 final, making reference at footnote 18 to the Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the use of information technology for customs purposes, OJ C 316, 27 November 1995, 34. See Article 2 (1) of this Convention.


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Article 35 TEU and the ne bis in idem Cases One problem is the wording of article 35 TEU. This restricts the preliminary reference procedure for third pillar matters, firstly, by allowing member states to “opt in” or “opt out” of the Court’s jurisdiction, and secondly, by ejecting those cases concerning “the maintenance of law and order and the safeguarding of internal security.” Given the subject matters covered by the third pillar, that must be nearly all of them. That said, a trickle of references is starting to get through, starting with the groundbreaking Gözütok and Brügge.10 Very simply, Mr Gözütok, a Turkish national who lived and ran a “snack bar” in the Netherlands, was found by the Netherlands police to be in possession of hashish. He paid some money to the Public Prosecutor’s Office and “further prosecution was barred”—this is apparently a well-known procedure in the Netherlands called the “transactie.” However, he was then arrested in Germany and charged with dealing in narcotics in the Netherlands, in other words, the same offence. He was convicted and was sentenced to one year and five months, suspended. There were two appeals. At the first appeal, the Landgericht (district court) said that article 54 of the Convention Implementing the Schengen Agreement (ne bis in idem) applied and the prosecution had to be discontinued. The Oberlandesgericht (regional Court of Appeal) was less certain; it made a reference to the European Court of Justice. Mr Brügge’s case was very similar. He was a German national residing in Germany. He was charged by the Belgian prosecuting authorities with having assaulted a Mrs Leliaert in Oostduinkerke, Belgium. However, while Mrs Leliaert was claiming 20,000 Belgian Francs at the Rechtbank van eerste aanleg te Veurne (first instance court), Mr Brügge made an “out-of-court settlement” of 1,000 German Marks to the Public Prosecutor’s Office in Bonn. The settlement was made under the German Code of Criminal Procedure. The Rechtbank van eerste aanleg te Veurne (Belgium) made a reference to the European Court of Justice. The ECJ was undeterred by the fact that neither of the “first convictions” actually involved a court—ne bis in idem—Article 54 Schengen Convention still applied, and the “second” country had to accept that—even if it did things differently (see for instance: Vervaele 2004; Fletcher 2003; Thwaites 2003). This case is a legal victory in a number of ways. Firstly, it is a victory for Mr Gözütok and Mr Brügge personally. But secondly, it is a victory as regards judicial protection under the third pillar. Here we had two plaintiffs invoking an article of the Schengen acquis, still technically a third pillar instrument, before their national courts (and not even the national court of last instance), and having it referred up to the European Court of Justice, which then gladly gave a ruling which will now be binding throughout Europe. In other words, legal certainty. Gözütok and Brügge was followed by at least half a dozen ne bis in idem cases, each with a slightly different twist but nearly all confirming the original ruling. 10 Joined Cases C-187/01 and C-385/01 Criminal proceedings against Hüseyin Gözütok (C-187/01) and Klaus Brügge (C-385/01) [2003] ECR I-1345.

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Miraglia,11 Van Esbroeck,12 Van Straaten,13 and Gasparini14 might be called the “Import-Export” cases. Does an individual who illegally trafficks a substance between two countries commit two offences, or one? The Court repeatedly answered this question: “one.” As Advocate-General Ruiz-Jarabo Colomer put it in Van Esbroeck: “[I]t is ludicrous to refer to import and export in a territory governed by a legal system which, in essence, is designed to remove borders for both persons and goods.” Miraglia was the only case where ne bis in idem was found not to apply. Mr Miraglia was involved in the trafficking of heroin from the Netherlands to Italy. What we might call the “first court” in this case (the Higher Court of Amsterdam) merely stayed the case when it learnt that what we might call the “second court” (the Tribunale di Bologna) was hearing a prosecution on the same facts. A stay did not count as a disposal of the case, and so article 54 did not apply. To have held anything else would effectively have meant that Mr Miraglia would not have been prosecuted at all. In Van Esbroeck, the Court held that it did not matter if one of the countries in the smuggling operation was outside the EU. Ne bis in idem still applied. In Van Straaten, the Court held that it did not matter if the co-accused were not identical as regards the “first” and “second” cases. Ne bis in idem still applied. In Gasparini, the Court held that it did not matter if the “first court” acquitted the defendants subject to domestic limitation or prescription rules. Ne bis in idem still applied; an acquittal on the grounds of an action being “time-barred” was still a disposal of the case. Gasparini concerned the smuggling of olive oil, and so provides a nice real life example of how third pillar matters (smuggling) and first pillar matters (agriculture) can easily become juxtaposed within a single case, as described above. The ne bis in idem cases end with two interesting quandaries. In Kraaijenbrink,15 the question was whether acquiring sums of money, and exchanging money at exchange bureaux, were the same act. The Advocate General suggested a negative answer. The ECJ left it to the national court, but also strongly hinted at a negative answer. In Kretzinger,16 a cigarette smuggler was convicted in absentia in Italy, before being convicted again (this time in person) in Germany. The Bundesgerichtshof (Federal Court of Justice) wondered if this contravened article 54. The Advocate General appears to say that, since an in absentia judgment

11 Case C-469/03 Criminal proceedings against Filomeno Mario Miraglia [2005] ECR I-2009. 12 Case C-436/04 Criminal proceedings against Leopold Henri Van Esbroeck [2006] ECR I-2333. 13 Case C-150/05 Jean Leon Van Straaten v. Netherlands State and Italian Republic [2006] ECR I-9327. 14 Case C-467/04 Criminal proceedings against Giuseppe Francesco Gasparini, José Ma L.A. Gasparini, Giuseppe Costa Bozzo, Juan de Lucchi Calcagno, Francesco Mario Gasparini, José A. Hormiga Marrero and Sindicatura Quiebra [2006] ECR I-9199. 15 Case C-367/05 Norma Kraaijenbrink nyr. 16 Case C-288/05 Staatsanwaltschaft Augsburg v. Jürgen Kretzinger nyr.


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is in accordance with article 6 of the European Convention of Human Rights (ECHR), Article 54 is not affected. As long as the case has been finally disposed of, in the Gözütok and Brügge sense, then no further proceedings may be taken. However, we are told that the Italian authorities had no intention of issuing a European arrest warrant against Mr Kretzinger (Opinion, paragraph 78). Thus, it seems to this author, as long as Mr Kretzinger stays out of Italy, he escapes justice altogether. Regrettably, the Court seems to endorse the Advocate General. The “interpretation of the notion of ‘enforcement’” is not affected by the fact that one member state may have to surrender the guilty party to another member state (Judgment, Paragraph 63). Since, in this case, the penalty has been enforced (Judgment, Paragraph 44, taken in conjunction with Judgment, Paragraph 16), and since the “interpretation of the notion of ‘enforcement’” may not be affected by a need for surrender, it must be assumed that Mr Kretzinger does indeed avoid prosecution in Germany under the ne bis in idem rule. This section on article 35 TEU would not be complete without a quick mention of Pupino.17 Here, a nursery school teacher was charged with injuring children under five years of age. Crucially, there was no sexual element to the case; Italian law therefore afforded no special treatment to the witnesses (namely, the children). However, Council framework decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings imposed on member states the obligation to grant special treatment to all vulnerable witnesses in all circumstances. Rightly concerned that the Italian law might be in contravention with the framework decision, the Tribunale di Firenze made a reference. The Court confirmed the Tribunale’s suspicions. The Italian law was to be read in the light of the framework decision, and the children did not therefore have to give evidence at the trial. Finally, May 2007 saw the handing down of the judgment in Case C-303/05 Advocaten voor de Wereld VZW v. Leden van de Ministerraad.18 Advocaten voor de Wereld VZW sought annulment of the Belgian law implementing the Council framework decision on the European arrest warrant. The Arbitragehof (Court of Arbitration), Belgium, made a reference to the European Court of Justice. There were two questions. Firstly, should the measure have been a framework decision at all (as opposed to, say, a convention)? Secondly, is the fact that the framework decision sets aside the requirement of double criminality (that is, that the offence in question should be a crime in both the issuing and the requested state) for some offences (that is those mentioned in article 2 (2)) but not for others consistent with article 6 TEU? As regards the first question, the Court answered unequivocally that the measure should indeed have been a framework decision. The second question concerned the principle of the legality of criminal offences and penalties, that is nullum crimen, nulla poena sine lege. A would-be offender in the requested state was entitled to know what acts would make him criminally liable. The Court replied that, since the issuing state was also bound by Article 6 TEU, there could be no problem. As regards the principles of equality and non17 18

Case C-105/03 Criminal proceedings against Maria Pupino [2005] ECR I-5285. Not yet reported.

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discrimination, the Court felt that, where article 2 (2) of the framework decision was concerned, “on the basis of the principle of mutual recognition and in the light of the high degree of trust and solidarity between the member states,” there was no need for the verification of double criminality. As there was no breach of Article 6 TEU, the framework decision was valid. Article 35 TEU has thus produced some nine references in eight years, seven of them on the same provision of the same convention. This is remarkably poor compared to, say, article 234 TEC (some two references a week). While this single contribution would not presume to answer, by itself, the question posed in this seminar (“Which future for the EU’s third pillar?”), it is clear that if the third pillar is to have a future at all, it must overcome its considerable judicial deficit. Who could forget the ECJ’s boast in Pequeños Agricultores19 that “the [EC] Treaty has established a complete system of legal remedies”?20 The same claim cannot be made for the EU Treaty. Article 68 TEC However, the problem is not just article 35 TEU. Even those matters which have been moved from the third pillar to the first pillar, the matters which I listed at the beginning of this chapter, do not enjoy the full judicial protection normally associated with the “Community” pillar. Instead, they are subject to article 68 TEC. This provides that only courts of last instance may make references, and, again, ousts all cases concerning “the maintenance of law and order and the safeguarding of internal security.” Indeed, in a recent Communication, the Commission has called for the abolition of Article 68 TEC: COM (2006) 346 final.21 One interesting case referred to the ECJ on the basis of article 68 TEC is that of Nicolae Bot v. Préfet du Val-de-Marne.22 While a detailed description of the facts is not needed here, the case concerned a Romanian national (in the days before Romania joined the Union), who moved through several member states before finally being threatened with deportation by France. Romanians had not been subject to a visa requirement since 2001, and, according to article 20 (1) of the Convention Implementing the Schengen Agreement (CISA), aliens not subject to a visa requirement were free to move around the Community during the six months following the date of first entry. The Conseil d’Etat asked for clarification as to what was meant by “date of first entry,” which the ECJ duly gave. However, what is worthy of note is that Bot concerned article 20 (1) of CISA and was referred via the first pillar, while the ne bis in idem cases concerned article 54 of CISA but were referred via the third pillar. This author can see no 19 Case C-50/00P Unión de Pequeños Agricultores v. Council [2002] ECR I-6677. 20 Ibid., paragraph 40. 21 Approved by Parliament on 25 April 2007. The Commission takes the opportunity of the Communication to also pass judgment on the judicial protection provided by the third pillar, describing it as “completely insufficient.” 22 Case C-241/05 Nicolae Bot v. Préfet du Val-de-Marne [2006] ECR I-9627.


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good legal reason for this. It is almost as though even the member state judges are in a state of utter bafflement when it comes to the division between the first and third pillars.23 The “List Cases” Nor is there any judicial remedy allowing for an order for damages available under the third pillar. This has become an issue as an increasing number of people try to challenge their inclusion on various terrorist lists, inclusion which often entails the freezing of their assets. Chief among the “list cases” are Hassan24 and Ayadi.25 In May 2002, the Council passed regulation 881/2002 imposing restrictions against “certain persons and entities associated with Usama Bin Laden, the Al Quaeda network and the Taliban.” In November 2003, Faraj Hassan (a detainee at Brixton Prison, wanted in Italy), was added to the list via regulation 2049/2003. He challenged these regulations. He relied on a single plea based on infringement of rights and the principle of proportionality. The freezing of the whole of his funds “annihilate[d]” his private and family life, in breach of article 8 ECHR, and also infringed his peaceful enjoyment of property under article 1, protocol 1 ECHR. The Court held that the Charter of the UN prevailed, and regulation 881/2002 was adopted in the light of a UN common position. Furthermore, the applicant had made no effort to provide grounds for damages. Therefore the action was rejected in its entirety. The Ayadi judgment is in almost exactly the same terms. Of regulation 881/2002, Belgian Deputy Crown Prosecutor Yves Moiny has written that it “suffer[s] from a distinct lack of transparency” and fails to provide “open criteria as to what is required to be listed as a terrorist and as a result have [one’s] funds frozen.” He continues: [T]his lack of openness infringes case law of the European Court of Human Rights which required a detailed examination of the kind of information that may be recorded, the limits on the age of information held or the length of time for which it may be kept.

23 This applies to the legislators, too. In September 2005, the Court of Justice had to annul a third pillar framework decision on environmental crime, on the grounds that it should have been adopted under the first pillar. In May 2006, the exact opposite happened when a first pillar decision on Passenger Name Records (PNR) was annulled, on the grounds that it should have been adopted under the third pillar. The same fate may befall the data retention directive (directive 2006/24/EC), which is being challenged by Ireland: Case C-301/06 Ireland v. Council of the European Union and European Parliament (pending). 24 Case T-49/04 Faraj Hassan v. Council and Commission [2006] ECR II-52. On appeal, Case C-399/06 P Hassan / Council and Commission (pending). 25 Case T-253/02 Chafiq Ayadi v. Council [2006] ECR II-2139. On appeal, Case C-403/06 P Ayadi / Council (pending).

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He concludes that the regulation “seriously curtailed European human rights standards” (Moiny 2005). Hassan and Ayadi have been followed by several other “list cases,” at the rate of about one a month. Organisation des Modjahedines du peuple d’Iran26 and Öcalan27 are slightly more optimistic. In the former, the Court held that the case had nothing whatsoever to do with the UN, and furthermore that the Council had breached several procedural requirements. In the latter, the focus was on standing (that is, whether or not the applicants had competence to bring the case). The European Court of Justice held that the Court of First Instance had acted incorrectly in denying Mr Öcalan standing, although we await the outcome on the substance. Less hopeful are Minin28 and the two Basque cases.29 Mr Minin was accused of supporting a different terrorist, this time Charles Taylor of Liberia, but the result was identical to Hassan and Ayadi, with UN law prevailing over EU law. UN law also prevailed in the Basque cases (Gestoras and Segi). What was particularly disappointing about these cases was that the Council had made an express declaration about judicial redress, which the Court effectively ignored. Some optimism returns, though, with the Sison case.30 Professor Sison, who was accused of in fact being Armando Liwanag of the New People’s Army of the Philippines, unsuccessfully tried to use the access to documents rules to expose the falsity of his inclusion on the lists. However, he was more successful at his judicial review hearing, where he persuaded the Court of First Instance to annul the decision placing him on the terrorist list; the Court of First Instance in particular found breaches of the rights of the defence, and the requirement to state reasons. A Possible Answer, or Just New Questions? The solution to this problem would have been the coming into force of the European Constitution, which would have abolished the pillar system. If I may quote Margot Wallström in a speech from 22 November 2006, The Constitution completely recasts the provisions on the area of freedom, security and justice. The policies on border controls, visas, asylum and immigration, as well as judicial and police cooperation, are brought together under a single heading, and come—with very few exceptions—within the scope of the Community method, and 26 Case T-228/02 Organisation des Modjahedines du peuple d’Iran v. Council nyr. 27 Case C-229/05 P Osman Öcalan, on behalf of the Kurdistan Workers’ Party (PKK) and Serif Vanly, on behalf of the Kurdistan National Congress (KNK) v. Council nyr. 28 Case T-362/04 Leonid Minin v. Commission nyr. 29 Case C-354/04 P Gestoras Pro Amnistía, Juan Mari Olano Olano and Julen Zelarain Errasti v. Council nyr and Case C-355/04 P Segi, Araitz Zubimendi Izaga and Aritza Galarraga v. Council nyr. 30 Joined Cases T-110/03, T-150/03 and T-405/03 Jose Maria Sison v. Council [2005] ECR II-1429, on appeal Case C-266/05 P Jose Maria Sison/ Council nyr. Also Case T-47/03 José Maria Sison v. Council nyr.


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in particular the ordinary legislative procedure (co-decision) and qualified majority voting. This would substantially enhance the capacity of the Union to adopt common measures to manage migration flows, and to counter the risks of terrorism and organised crime. [My emphasis]31

One might add, a little insouciantly, that, in opposition to the third pillar, the practitioner and the Commission tend to find themselves, for once, on the same side! This “solution” seemed to materialize in early summer 2007, when the Heads of State and Government met in Brussels to thrash out the Constitution issue. In the early hours of Saturday 23 June, the European Council agreed to convene an Intergovernmental Conference (IGC) to prepare a new Treaty. While the notion of a Constitution was to be abandoned, and the new Treaty known simply as the “Reform Treaty,” many of the ideas from the Constitution would survive, and in particular the abolition of the “pillars” structure. One has to look very closely at the draft IGC Mandate (annexed to the European Council conclusions) to discern the fate of the third pillar. In fact, it is buried in a footnote: The content of Title VI on police and judicial cooperation in criminal matters will be put into the Title on the Area of freedom, security and justice in the Treaty on the Functioning of the European Union (TFEU).32

Nevertheless, the meaning is clear. Former “third pillar” matters will now move into the (renamed) EC Treaty, where they will be dealt with by qualified majority voting and co-decision. On the occasion of the publication of the Hague Programme “Scoreboard,” on 3 July 2007, Justice Commissioner Frattini, having complained about the blockages and delays in the area of police and judicial cooperation and prevention of organized crime, said: I am therefore glad that EU Leaders agreed qualified majority voting—and the codecision procedure—should apply to most Justice, Freedom and Security areas. This ends the artificial divide between different parts of EU work. These changes mean member states, the Parliament and Commission can work together to take quicker and more accountable decisions.33

But all is not rosy in the garden. Firstly, judicial protection concerns will still not be assuaged if, once in Title IV of the (old) EC Treaty, article 68 TEC is to apply to the new matters, as well as to the old, as opposed to article 234 TEC. The Mandate is silent on the question of preliminary references. Secondly, the UK has obtained a special regime, whereby it can “opt-out” of EU legislation on police and judicial cooperation and Ireland has followed suit. This will “not

31 SPEECH/06/731. 32 The Presidency Conclusions of the Brussels European Council (21/22 June 2007), Council document number 11177/07, Annex I, footnote 2. 33 IP/07/1005.

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do European integration any good.”34 To take as an example the recent proposal for a framework decision on harmonized minimum (criminal) procedural rights, adoption of this measure was considerably hampered by the protestations of a small number of member states, including the UK; of course, as a third pillar matter, unanimity was required. If the Reform Treaty goes ahead as planned and qualified majority voting takes over, then we will at least get a measure. That is the good news. But the bad news is that said measure would not apply in the UK. What use are harmonized minimum procedural rights if they do not apply across all twenty seven member states? An Italian held in a Spanish cell would be covered; an Italian held in a British cell would not. Difficulties in agreeing are removed, but the number of potential agreers is decreased. While welcoming the convening of the IGC, the European Parliament, on 11 July, expressed its concern at the fact that the mandate allows for an increasing number of derogations granted to certain Member States from the implementation of major provisions of the envisaged Treaties that could lead to a weakening of the cohesion of the Union. [My emphasis]35

Case Study C: Racism and Xenophobia—EU Criminal Law in the Making Finally, practitioners can sometimes have the opportunity, even if only at first or second remove, of participating in, or at least trying to participate in, the creation of third pillar legislation. I was recently asked by an NGO representing a certain religious minority to advise on the proposal for a Council framework decision on combating racism and xenophobia, from January of 2007. This is a controversial topic, first mooted at the beginning of the decade and since then the victim of several fruitless compromises. In its press release in January 2007, the German presidency said, The goal is to attain minimum harmonisation of provisions on criminal liability for disseminating racist and xenophobic statements. These include, for example, public incitement to violence and hatred or the denial or gross minimisation of genocide out of racist or xenophobic motives.

The Presidency further proposed maximum prison sentences of one to three years for the carrying out of these crimes. However, the Parliament, which of course only has consultation rights in this field, held a public hearing in March, at which the Greek Member of European Parliament Stavros Lambrinidis declared,

34 “Red Lines for Double Standards?,” European Voice, 28 June–4 July 2007, 13. 35 European Parliament resolution of 11 July 2007 on the convening of the Intergovernmental Conference (IGC): the European Parliament’s opinion (Article 48 of the EU Treaty), P6_TA-PROV(2007)0328, point 4.


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In democracy, freedom of speech should always be protected, in any circumstances. I come from a country which suffered a dictatorship and I consider it very dangerous to allow anybody to judge what can be said and what cannot.

And on 12 April 2007 the Civil Liberties Committee of the European Parliament issued a press release saying, “Criminal law … should always be the least and the last recourse within a culture based on rights and freedoms.” Political agreement was reached on the framework decision on 20 April 2007; the sentences proposed by the Presidency were maintained. One is reminded of the framework decision on environmental crimes, which was annulled by the Court of Justice in September 2005,36 and which is now in the process of being replaced by a first pillar directive. Now that it has been adopted by the Council (although it remains subject to a number of parliamentary reservations), could the framework decision on racism and xenophobia go the same way? All twenty seven member states can agree that the creation of an oil slick, or a cloud of radiation, affects all of us equally. Have the member states attained the same level of agreement as regards, say, condoning or denying genocide? Are they ready to give up their sovereignty on these issues?

Conclusion I hope that I have given you a snapshot of the third pillar as seen from the perspective of a practitioner. In particular, I hope that I have shown how, in practice, the boundaries between the first and third pillars easily become blurred, the worrying lack of judicial protection, the promise and potential pitfalls of the Reform Treaty, and the creeping harmonization of the criminal law which is slowly transforming the legal landscape in which we work.

References Adenas, M. and Zleptnig, S. (2003), “Surveillance and Data Protection: Regulatory Approaches in the EU and Member States,” European Business Law Review 2003, vol. 14 no. 6, 765–813. Colvin, M. (2001), “The Schengen Information System: A Human Rights Audit,” European Human Rights Law Review, no. 3, 271–9. Fletcher, M. (2003), “Some Developments in the ‘ne bis in idem’ Principle in the European Union: Criminal Proceedings against Hüseyin Gözütok and Klaus Brügge,” The Modern Law Review, vol. 66 no. 5, 769–80.

36 Case C-176/03 Commission v. Council [2005] ECR I-7879. Shortly after this judgment, while advising a well-known wildlife NGO as to the possibilities for an import ban on wild birds, I was asked if those who failed to comply could be penalized in some way. I was able to point out that, thanks to the September 2005 decision, any future legislation based on Article 175 TEC could include the possibility for criminal sanctions.

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Jay, R. and Hamilton, A. (2003), Data Protection: Law and Practice (London: Sweet and Maxwell). Lavranos, N. (2003), “Europol and the Fight against Terrorism,” European Foreign Affairs Review, vol. 8 no. 2, 259–75. Moiny, Y. (2005), Protection of Personal Data and Citizens’ Rights of Privacy in the Fight against the Financing of Terrorism, CEPS Policy Brief no. 67 (Brussels: Centre for European Policy Studies). Monaco, F.R. (1995), “Europol: The Culmination of the European Union’s International Police Cooperation Efforts,” Fordham International Law Journal, vol. 19 no. 1, 247–308. Thwaites, N. (2003), “Gözütok and Brügge: A First Step Towards Mutual Confidence and Recognition in Criminal Matters?,” EU Focus: Essential Developments in EU Law and Policy, no. 121, 2–5. Vervaele, J.A.E. (2004), “Note on Joined cases C-187/01 and C-385/01, Criminal Proceedings against Hüseyin Gözütok and Klaus Brügge,” Common Market Law Review, vol. 41 no. 3, 795–812.

Chapter 15

The EU Counter-Terrorism Strategy and Human Rights in Central Asia: Do as I Say Not as I Do? Susie Alegre

The European Union counter-terrorism strategy: prevent, protect, pursue, respond of 2005 (Council of the European Union 2005) (hereafter “EU Counter-Terrorism Strategy 2005”) contains a strategic commitment “to combat terrorism globally while respecting human rights, and make Europe safer, allowing its citizens to live in an area of freedom, security and justice.” This strategic commitment, however, falls short of giving the respect and promotion of human rights generally in the fight against terrorism an explicit place in the four pillars of the strategy—prevent, protect, pursue and respond. The impact of this gap is exacerbated by the fact that the strategy goes on to focus on human rights as an issue primarily for counterterrorism efforts outside of the EU itself while failing to give serious consideration to the problems arising in a number of member states and inherent in some of the EU’s own measures such as listing of terrorist individuals and entities. This chapter takes a close look at the impact of the language and position of human rights in the EU Counter-Terrorism Strategy 2005, in particular insofar as this is intended to have a global impact on counter-terrorism and then goes on to look at some of the EU counter-terrorism policies as they have developed since 2001 and the way in which these have impacted on counter-terrorism strategies in the wider world with a particular focus on the Shanghai Cooperation Organization (SCO)1 and the EU Central Asia Strategy.

1 The Shanghai Cooperation Organization is an intergovernmental organization comprising six members—the Russian Federation (also a member of the OSCE and the Council of Europe and signatory to the European Convention for the protection of human rights and fundamental freedoms—ECHR), Kazakhstan, Kyrgyzstan, Uzbekistan, Tajikistan (also members of the OSCE and have ratified the International Covenant on Civil and Political Rights—ICCPR), and China (signed but not ratified the ICCPR).

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Language and Implications for Human Rights Globally in the EU Counter-Terrorism Strategy 2005 The EU Counter-Terrorism Strategy 2005 is quite explicit in differentiating clearly between the situation of member states and non member states with regard to role of human rights in the prevention of terrorism: PREVENT 10. The propagation of a particular extremist worldview brings individuals to consider and justify violence. In the context of the most recent wave of terrorism, for example, the core of the issue is propaganda which distorts conflicts around the world as a supposed proof of a clash between the West and Islam. To address these issues, we need to ensure that voices of mainstream opinion prevail over those of extremism by engaging with civil society and faith groups that reject the ideas put forward by terrorists and extremists that incite violence. And we need to get our own message across more effectively, to change the perception of national and European policies. We must also ensure that our own policies do not exacerbate division. Developing a non-emotive lexicon for discussing the issues will support this. 11. There is a range of conditions in society which may create an environment in which individuals can become more easily radicalised. These conditions include poor or autocratic governance; rapid but unmanaged modernisation; lack of political or economic prospects and of educational opportunities. Within the Union these factors are not generally present but in individual segments of the population they may be. To counter this, outside the Union we must promote even more vigorously good governance, human rights, democracy as well as education and economic prosperity, and engage in conflict resolution. We must also target inequalities and discrimination where they exist and promote inter-cultural dialogue and long-term integration where appropriate.

The strategy does not seriously address the problems of EU national and European policies which do in fact have a negative impact on human rights and the rule of law both within the European Union and beyond but rather blames misperceptions of those policies. This failure to scrutinise the record of EU member states in protecting and promoting human rights while countering terrorism at home and abroad undermines the credibility of the EU’s strategic commitment to the protection of human rights. In terms of the objective to pursue terrorists, the EU strategy only has a passing reference to human rights: PURSUE 22. We will further strengthen and implement our commitments to disrupt terrorist activity and pursue terrorists across borders. Our objectives are to impede terrorists’ planning, disrupt their networks and the activities of recruiters to terrorism, cut off terrorists’ funding and access to attack materials, and bring them to justice, while continuing to respect human rights and international law.

The assumption apparent in the EU strategy that respecting human rights while bringing terrorists to justice is a simple matter which requires no further

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explanation is in stark contrast to the attempts by member states in the protracted negotiations around the draft framework decision on procedural safeguards for suspects and defendants in criminal proceedings to exclude proceedings related to terrorism from the application of the instrument on the grounds that allegedly different standards apply in terrorism cases.2 The absence of any clear indications as to how or in what context the strategic commitment to respecting human rights would be implemented is a major flaw in the EU strategy and demonstrates a tendency to deal with human rights as a political gloss on counter-terrorism strategy rather than a serious practical and legal issue to be addressed. This flaw makes it very hard for the EU to credibly address the issue of human rights in counter-terrorism in external relations.

EU Justice and Home Affairs policy since 2001 and its impact in Central Asia The EU’s self-congratulatory approach to the protection of human rights combined with the development of the doctrine of “mutual recognition based on mutual trust” that underlies judicial cooperation within the EU sets a standard that can be seen echoed in other regional contexts. The SCO provides a clear example in its “Concept for cooperation of member states of the Shanghai Cooperation Organization in the fight against terrorism, separatism and extremism”3 of how the EU discourse since 11 September 2001 can be taken and used to form the basis of a counter-terrorism strategy which poses a grave threat to the protection of human rights. “The EU and Central Asia: Strategy for a New Partnership” (Council of the European Union 2007) puts the promotion of human rights and the rule of law at the top of the agenda for EU partnerships in Central Asia and mentions security and international terrorism amongst the concerns shared by the two regions, but that push for human rights is unlikely to have much force if the EU is unable to demonstrate a willingness to address the human rights concerns related to counter-terrorism within its own borders. The EU and Central Asia strategy states that:

2 On 28 April 2004, the European Commission presented a proposal for a framework decision covering the rights of suspects and defendants in criminal proceedings throughout the European Union. It covers the issues of suspects’ and defendants’ access to legal advice, access to interpretation and translation for non-native defendants, protecting those who cannot understand or follow the proceedings, consular assistance to foreign detainees, the Letter of Rights, evaluation and monitoring. The aim is to achieve equivalence between the member states by defining common minimum standards, see http://ec.europa.eu/justice_home/fsj/criminal/procedural/fsj_criminal_procedural_en.htm for details (accessed 29 June 2007) and Jimeno-Bulnes, M., “The Proposal for a Council Framework Decision on Certain Procedural Rights in Criminal Proceedings throughout the EU,” Chapter 10 of this volume. See also Amnesty International (2005), esp. 19. 3 Adopted 5 July 2005 in Astana—this chapter is based on an unofficial translation of that document.


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The EU strongly believes that strengthening the commitment of Central Asian States to international law, the rule of law, human rights and democratic values, as well as to a market economy will promote security and stability in Central Asia, thus making the countries of the region reliable partners for the EU with shared common interests and goals. (Ibid., 5)

In the area of counter-terrorism, if this goal is to be achieved, the EU will need to lead by example and start to examine the human rights issues at home before it will be a convincing advocate abroad. Double Standards One of the issues that undermine the EU’s effective dialogue with countries outside of the EU in relation to human rights in the fight against terrorism is the accusation of “double standards.” On the specific issue of the fight against terrorism, it is quite clear that policies and practices of EU member states have had a negative impact on human rights, some of them going to the very core of the international human rights framework by opening up to discussion and undermining the absolute prohibition on torture, cruel, inhuman and degrading treatment. This fact is not recognized in the EU approach to non member states in the context of the EU counter-terrorism strategy. In the context of the OSCE, where EU member states now make up almost half of the membership alongside the United States of America and Canada, the accusation of double standards, with the West lecturing the East on its human rights record while failing to set its own house in order, is at its most credible in the context of human rights in the fight against terrorism. It is perhaps in response to this that the SCO sets out the “non-application of ‘double standards’ in international efforts in the fight against terrorism, separatism and extremism” as one of its basic principles. What this means is that, until the European Union faces up to the issue of human rights in the fight against terrorism within its own borders in a clear, direct and practical way, it will not be in a strong position to criticize the practices of other states or regional organizations. Mutual Trust The programme of the European Union in the field of judicial cooperation in criminal matters, including counter-terrorism is underpinned by the concept of “mutual recognition based on mutual trust” between member states. This idea of “mutual trust” is also set down by the SCO as one of the principles for cooperation to combat terrorism, separatism and extremism. Numerous commentators have criticized the principle of mutual recognition as being based on political blind faith rather than genuine mutual trust based on knowledge between judicial authorities. The case law of the European Court of Human Rights demonstrates that EU member states are not immune from violations of human rights ranging from the absolute prohibition on torture to the right to freedom of association and the prohibition on discrimination. Some


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member states have endemic problems relating to the right to a fair trial4 which are clearly demonstrated through a raft of cases before the European Court of Human Rights. The language of mutual trust in international cooperation poses a threat to the protection of human rights because it is premised on states having faith in each other’s systems based primarily on the diplomatic concerns of membership of a group of states rather than taking into account the specific circumstances of each case at any given time. The argument that all member states of the European Union are bound by the European Convention on Human Rights and Fundamental Freedoms and therefore may be trusted fails to take into account the fact of breaches of the ECHR by signatories or the fact that state obligations under the ECHR apply on a case by case basis and that the judiciary should be free to apply the ECHR as relevant to their national law in international cooperation cases irrelevant of diplomatic concerns. The idea of mutual trust within the EU based on common values, notably the ECHR, also raises the question—if ratification of the ECHR is enough to be sure that human rights are adequately protected across the board in a state, why does the EU not apply the principle of mutual trust and mutual recognition across the 47 member states of the Council of Europe? This differentiation, which can be seen as another example of double standards, gives an impression of exclusivity with regard to cooperation and this is mirrored again in the SCO declaration where “SCO States state that it is of priority importance for them to fight terrorism, extremism and separatism in the SCO area by themselves.” The declaration goes on to talk about the provision of mutual protection of secret information, which was obtained during the process of cooperation. The assertion of mutual trust in each others systems which gives rise to closer cooperation between states on counter-terrorism with minimal procedures and almost no transparency make challenges to practices and policy on human rights grounds extremely difficult to pursue. In the EU context, it is very hard to see how the EU can be an effective advocate of human rights in the fight against terrorism outside its member states while it maintains its exclusive position and refuses to address the human rights concerns present in its member states. Definition of Terrorism and Double Criminality The European Union framework decision on combating terrorism5 provides a basic agreed definition of “terrorism” which will apply across the European Union and so does the Shanghai Convention on the fight against terrorism, separatism and extremism6 (which predates the EU definition). While the breadth of both definitions and, in particular, the extension of the SCO Convention beyond 4 For instance Italy in relation to the right to a trial within a reasonable time. 5 Council framework decision of 13 June 2002 on combating terrorism (2002/475/ JHA), OJ L 164, 22 June 2002, 3. 6 Adopted on 15 June 2001. See for more information http://www.fmprc.gov.cn/ eng/topics/sco/t57970.htm (accessed 29 June 2007).

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“terrorism” to cover the vague notions of “separatism” and “extremism,” might raise concerns for the protection of human rights, what is of even more concern is the erosion of the principle of double criminality. The principle of double criminality in extradition and international mutual assistance in criminal matters means that states will normally only engage in international cooperation in relation to acts which are considered to be criminal in both the requesting and the requested state. This provides a degree of protection from the application of arbitrary laws across borders and ensures some level of legal certainty. The abolition of double criminality with regard to terrorism related offences in the European arrest warrant and with regard to “terrorism, separatism and extremism” in the SCO concept for cooperation is based on the principle of mutual trust described above. In this context, the principle of mutual trust is particularly misguided as can be seen from the notorious difficulties in coming to an internationally agreed definition of terrorism. One of the biggest problems in defining terrorism is how to create a definition that is sufficiently precise as to ensure legal certainty and avoid the possibility of abuse. The problem of definition is exacerbated when one begins to talk about the vague notions of “separatism” and “extremism” as legal concepts forming the basis of international judicial cooperation. Overly broad definitions of terrorism, separatism or extremism can be used to quash legitimate opposition and dissent within a country. The use of broadly drawn anti-extremism legislation and the impact of counter-terrorism related legislation on NGOs in SCO member states is an issue of major concern. By abolishing the requirement for double criminality, the SCO concept effectively ensures that such problematic legislation and practices may be applied across the entire SCO region without any judicial control on the appropriateness of cooperation based on such offences. Non-refoulement and Human Rights Concerns as a Ground for Non-cooperation The framework decision on the European arrest warrant (EAW) does not include a potential serious breach of human rights as an explicit ground for refusal to execute a warrant although the European Commission has accepted that the human rights clause in article 1(3) of the EAW framework decision would allow for such a ground for refusal in national legislation (Commission Staff Working Paper 2005, 5).7 This is another area where the EU, while accepting implicitly the application of international human rights law in the application of EU judicial cooperation instruments, is backward in explicitly setting down the requirements of international human rights law. While the EU accepts the application of international human rights law in this context, however, it is reluctant to accept the application of human rights standards established by the national constitutions of member states.8 This is in marked contrast to the approach taken by the SCO which places an emphasis 7 See also Sievers, J., “Too Different to Trust? First Experiences with the Application of the European Arrest Warrant,” Chapter 7 of this volume. 8 Ibid. re. Ireland’s transposition of the EAW framework decision.


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on the respect for historical traditions and the national customs, as well as the sovereign equality of all states with regard to human rights.9 The SCO concept also specifically makes provision for the denial of refuge to persons involved in terrorist, separatist and extremist activities without any reference to the principle of non-refoulement in either international human rights law or international refugee law. EU Agencies and Structures as Models of Counter-Terrorism The EU holds itself out as a model for enhanced cooperation in combating terrorism. Agencies such as Europol and Eurojust represent new models for interstate police and judicial cooperation. EU lists of terrorist individuals and entities, insofar as they go beyond the lists established at UN level to reflect regional concerns, set an example for regional listing mechanisms that may be copied in other regional contexts such as the SCO and which fail to address the serious concerns with regard to transparency and effective remedy which have been raised in relation to the UN lists. The absence of an explicit mandate to address relevant human rights concerns in police and judicial cooperation in an EU context sets a bad example for cooperation in counter-terrorism elsewhere.

Conclusion The absence of any clarity as to how the EU ensures respect for human rights while combating terrorism makes it difficult for the EU to act as an advocate for the promotion of human rights in this context outside its borders despite the good intentions expressed in the EU and Central Asia strategy. As one commentator has pointed out: Central Asian countries know that Western policy makers put business before politics when it deals with the energy-rich region […] The authoritarian regimes’ cool reaction to the political components of the EU’s strategy in Central Asia clearly shows that the political reform efforts the EU has undertaken in recent years […] have not produced palpable results. (Yermunakov 2007)

In addition to this, in the context of counter-terrorism in particular, the EU leaves itself open to accusations of double standards which undermine its credibility. The EU has not taken any serious steps to address human rights in the fight against terrorism, rather, terrorism has been used as a justification to attempt to water down proposals designed to protect human rights such as on procedural safeguards and data protection. While internally the EU continues purely to pay political lip service to the protection of human rights while pushing forward an agenda of closer cooperation in counter-terrorism based on mutual trust between like-minded neighbours, it will provide an unfortunate model for 9

As cited by Interfax-AVN.

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other regional groupings such as the SCO. The growing importance of the SCO in Central Asia is something that the EU cannot afford to ignore in its efforts to improve effective counter-terrorism globally (see Antonenko 2007) but in order to engage effectively with the SCO on the issue of respect for human rights, the EU will need to take an honest and open look at its own record in protecting human rights in the fight against terrorism in order to open a meaningful dialogue and lead by example.

References Amnesty International (EU Office) (2005), Human Rights Dissolving at the Borders? Counter-terrorism and EU Criminal Law, 19 May 2005. Antonenko, O. (2007), “The EU Should Not Ignore the Shanghai Cooperation Organization,” CER Policy Brief (London: Centre for European Reform). Commission Staff Working Paper (2005), Annex to the Report from the Commission based on Article 34 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and surrender procedures between Member States, SEC (2005) 267, 23 February 2005. Council of the European Union (2005), The European Union Counter-Terrorism Strategy: Prevent, Protect, Pursue, Respond—The European Union’s Strategic Commitment to Combat Terrorism Globally While Respecting Human Rights, and make Europe Safer, Allowing its citizens to live in an area of freedom, security and justice, Council doc. 14469/4/05, 30 November 2005 Council of the European Union (2007), The EU and Central Asia: Strategy for a New Partnership, Council doc. 10113/07, 31 May 2007. Yermunakov, M. (2007), “EU Overlooks Pitfalls of Central Asian Strategy,” Editorial, Caucaz Europenews, 8 April 2007.

A Possible Future


Chapter 16

The Reform Treaty and Justice and Home Affairs: Implications for the Common Area of Freedom, Security and Justice Sergio Carrera and Florian Geyer

Aspects related to the area of freedom, security and justice (AFSJ) will be among the policies most affected by the Reform Treaty.1 As amply highlighted in the previous chapters of this volume, this policy field has been notorious for its inability to respond to its specific challenges under the existing institutional framework. From many sides, substantial reform has long been considered urgent. By looking at the nature of the renewed institutional setting and the effects that the latter will have on the sustainability and crystallization of the area of freedom, security and justice, this chapter assesses the major innovations brought about by the Reform Treaty. As we will argue, one of the most relevant amendments compared to the present regime will be the formal scrapping of the pillar division (EC first pillar vs. EU third pillar) (Cf. Scandamis and Boskovits 2006). In doing so, the Reform Treaty will provide a necessary and positive (Gros and Micossi 2007a; Gros and Micossi 2007b; Kurpas and Micossi 2007) response to the deficiencies and vulnerabilities that characterize the current legal duality of pillars. At the same time, however, the new Treaty goes way beyond the “flexibility mechanisms”

1 Always provided, of course, that everything turns out as planned and the Treaty will in fact pass the process of ratification in all member states; something that in spite of all optimism is not yet entirely sure, cf. Hagemann 2007. The numeration of articles in this chapter is based on the Lisbon Treaty as published in the Official Journal of 17 December 2007, C 306, p. 1. Please note that the numbering will change once the Treaty enters into force, see Annex to the Lisbon Treaty, OJ C 306, p. 200. Following the mandate of the European Council (IGC Mandate) in June 2007 (Presidency Conclusions, Brussels European Council 21/22 June 2007, Council doc. 11177/07, CONCL 2, 23 June 2007; cf. Giuliani 2007), the Intergovernmental Conference (IGC 2007) drew up the final text. This text was approved by the Informal Council in Lisbon on 18/19 October 2007 and signed by member states in December 2007. For an overview on the major institutional innovations see the Joint Study conducted by the three Brussels-based think tanks CEPS, EGMONT and EPC (CEPS et al. 2007).

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previously foreseen in the failed Constitutional Treaty and further opens the door for a considerable number of derogations from general rules. While there are different positions on these flexibility mechanisms, we see a tangible risk of “exceptionalism” and “differentiation” that may have serious implications for the construction of a common area of freedom, security and justice.2 Equally, catchy and technocratic terms like “emergency brakes,” “flexibility,” “enhanced cooperation,” “opt-ins” and “opt-outs,” “two-speed Europe” are ever present characteristics of this new institutional setting. In essence these mechanisms entail that in sensitive policy areas individual member states will be enabled to suspend (or stay entirely clear of) legislative procedures, paving the way for small groups of member states to go “forward” without the fortified participation of others and the EU as a whole. This “exceptionalism” and “differentiation” gives rise to a number of key questions: Is the Reform Treaty truly going to “de-intergovernmentalize” all the policies falling within the scope of an AFSJ, and hence put a material—not only a formal—end to the “era of the pillars?” Is the much-praised “flexibility” not in fact likely to create many “areas” with possibly different and even competing degrees, notions and “speeds” of freedoms, securities and justices? To what extent is the mainly positive connotation of moving “ahead,” moving “forward” (as if European integration were a one way street) justified? How much moving “ahead” can the political project of an AFSJ bear before it moves “apart?” In short, and sticking to the Greek temple metaphor that has so far described the EU/EC construction: did we scrap the pillars only to construct a “mosaic” (a “patchwork”) of different areas of freedoms, securities and justices? This chapter is divided into three core sections: the first offers a concise overview of the most relevant innovations affecting the EU activities in Justice and Home Affairs. The second section assesses exceptions and derogations applicable to this renewed institutional architecture. The third section presents a critical analysis of the implications that may arise from the application of exceptions and differentiation in the building of this common area. Finally, we offer some conclusions and suggestions.

The Reform Treaty: Innovations for an Area of Freedom, Security and Justice The Reform Treaty will emerge from a combination of the amendments presented by the IGC Mandate of June 2007 and subsequent negotiations along with those provisions that will survive from the Treaty Establishing a Constitution for Europe

2 Similarly with regard to the cohesion of the Union as such, European Parliament, Resolution of 11 July 2007 on the convening of the Intergovernmental Conference (IGC): the European Parliament’s opinion (Article 48 of the EU Treaty), 11222/2007–C6 -0206/2007–2007/0808(CNS), para. 4.

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(the Constitutional Treaty, CT).3 The main innovations as regards the future area of freedom, security and justice are highlighted in the following. The End of the Pillars The Reform Treaty will generate two separate bodies of law: an amended version of the Treaty on European Union (TEU)4 and the Treaty on the Functioning of the Union (TFU). The TFU, which will be the new denomination5 of the current Treaty establishing the European Community (TEC), will contain the new title: “Area of Freedom, Security and Justice,” comprising five chapters and bringing together the currently dispersed6 JHA policies under one heading.7 As an outcome, the pillar division will be formally abolished. The direct consequence of this restructuring will be the expansion of what is—at present—called the “Community method” to police and judicial cooperation in criminal matters. The Procedural and Decision-making Mechanisms The Reform Treaty will in principle create an improved decision making procedure which will lead to a higher degree of efficiency, legal certainty, accountability and democratic control. First, as regards the decision making processes, the standard procedure in the AFSJ will be co-decision (present Art. 251 TEC) with a Commission right of initiative and qualified majority voting in the Council. In this way, the procedural amendments that had been proposed by the Constitutional Treaty will remain

3 Treaty Establishing a Constitution for Europe, as signed in Rome on 29 October 2004, OJ C 310, 16 December 2004. 4 Title I of the current Treaty on European Union (TEU) will be amended according to the arrangements that had been already agreed in the IGC of 2004 and will provide the following reference to the AFSJ: “2. The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.” This has changed in comparison with the previous article I-3(2) of the Constitutional Treaty according to which “The Union shall offer to its citizens an area of freedom, security and justice without internal frontiers, and an internal market where competition is free and undistorted.” 5 The entirely prosaic term “Functioning of the Union” had been used already in the Constitutional Treaty as headline of Part III: “The policies and functioning of the Union.” 6 For an analysis of the negative effects of the pillar division in Justice and Home Affairs see for instance Balzacq and Carrera 2005. 7 The chapters will be: Chapter 1 on general provisions, Chapter 2 on policies on border checks, asylum and immigration, Chapter 3 on judicial cooperation in civil matters, Chapter 4 on judicial cooperation in criminal matters and Chapter 5 on police cooperation.


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valid (article III-396 CT). Therefore, and in contrast to the current state of affairs, the co-decision procedure and qualified majority voting will apply to: • • •

police and judicial cooperation in criminal matters; legal migration and integration of third country nationals; measures dealing with those non EU nationals subject to visa requirements and rules on uniform format for visas.

Second, there will be a common nomenclature of legal instruments. However, instead of using the innovative terms coined in the Constitutional Treaty (that is European laws, European framework laws, European regulations, and so on8), the new structure will retain the traditional instruments of the EC first pillar (regulations, directives, decisions, etc.). The current EU third pillar instruments (framework decisions, common positions, conventions, and so on) will disappear. The heterogeneity in the types of legal acts—product of the institutional duality characterizing current EU JHA policies—and negative effects in terms of their genuine nature and legal effects will therefore come to an end. This will in turn foster transparency and comprehension of the legislative procedures. However, this heterogeneity will not come to an automatic end, once the Reform Treaty enters into force. Instead, the “old,” that is currently existing legal instruments under the pillar structure will remain in force until repealed, annulled or amended.9 In this regard, it will be worth observing the strategies that institutional actors will adhere to. As will be detailed out below, the right to propose new legislation and amendments in the fields of police and judicial cooperation criminal matters will be shared by the Commission and the member states. Transferring “old” third pillar legal acts into the new setting might be subject to conflicting interests and different to the usual Community method, it is not the Commission alone that has the monopoly on tabling legislative proposals. An Enhanced Role for the European Parliament and National Parliaments The general rule will be that all legislative acts falling within the AFSJ will be subject to the co-decision procedure as currently foreseen in article 251 TEC and as revised by article III-396 of the Constitutional Treaty (the so-called “ordinary legislative procedure”). At present, the European Parliament is still not sufficiently involved in the decision making processes covering EU third pillar policies, being restricted to a mere right of consultation and information (article 39 TEU). The Reform Treaty will—in principle—provide a single legislative procedure that guarantees democratic accountability. This will respond to the democratic shortcomings that have so far characterized European cooperation on police and judicial cooperation in criminal matters. From an inter-European Parliament perspective, this new setting will provide the LIBE Committee and its members 8 9

See article I-33 of the Constitutional Treaty. See article 9 of the Protocol on Transitional Provisions.


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with even more responsibility, importance and visibility as the Committee will have to deal with a high number of very sensitive co-decision dossiers. Furthermore, the Reform Treaty foresees a strengthened involvement of national parliaments. Under the new Title II of the TEU—to be called “Provisions on Democratic Principles”—national parliaments will take part in the evaluation mechanisms for the implementation of the Union’s AFSJ policies, see article 8c (c) new TEU. In this regard it is interesting to note that the new Treaty slightly alters the wording of the relevant provision in comparison to the 2004 Constitutional Treaty. While the latter provided in article I-42 (2 ) that “National Parliaments may, within the framework of the area of freedom, security and justice, participate in the evaluation mechanisms” and “shall be involved in the political monitoring of Europol and the evaluation of Eurojust’s activities” (emphasis added), the Reform Treaty states that “National parliaments shall contribute actively to the good functioning of the Union (…) by taking part, within the framework of the area of freedom, security and justice in the evaluation mechanisms (…) and through being involved in the political monitoring of Europol and the evaluation of Eurojust’s activities” (emphasis added). This new wording seems to intend to provide an even stronger role of national parliaments in the evaluation of the Union’s AFSJ policies than that foreseen in the Constitutional Treaty.10 In addition, the new setting goes beyond the 2004 Constitutional Treaty in relation to the national parliaments’ role in keeping watch over the principles of subsidiarity and proportionality by reinforcing the control mechanism. The details on this are laid out in article 61b TFU as well as articles 6 and 7 of the “Protocol on the Application of the Principles of Subsidiarity and Proportionality.” According to article 7 (2) of said protocol the initiator of a draft legislative act is legally obliged to revise this draft, in case it meets criticism based on the non-compliance of the subsidiarity principle by at least one third of all the votes allocated to national parliaments (two votes are allocated to each national parliament shared out on the basis of the national parliamentary system). This threshold is lowered (a quarter of the votes) if the draft act relates to police and judicial cooperation in criminal matters, highlighting that even under the new setting previous third pillar policies are not treated in the same way than other EU policies. While all this has already been foreseen under the Constitutional Treaty, novelties can be found in para. 3 of said article 7. Here it is stipulated that “under the ordinary legislative procedure, where reasoned opinions on the non-compliance of a proposal for a legislative act with the principle of subsidiarity represent at least a simple majority of the votes allocated to the national Parliaments […] the proposal must be reviewed.” If the Commission decides to maintain the draft act, a new specific procedure will be triggered that may eventually—depending on the Council’s and EP’s position on the matter—result in the dropping of the Commission’s draft act. 10 In so far as this stronger role appears to impose an obligation on national parliaments to contribute to the functioning of the Union, it already met with sharp criticism from the UK House of Commons, see House of Commons, European Scrutiny Committee, European Union Intergovernmental Conference, 35th Report of Session 2006–07, 23.

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Finally, the time period which national parliaments will have for the examination and delivery of opinions on the subsidiarity of draft legislative acts is extended from six weeks (Constitutional Treaty) to eight weeks (Reform Treaty). The Jurisdiction of the European Court of Justice (ECJ) Judicial control is critical for the protection and safeguarding of civil liberties, fundamental rights and the rule of law. This is particularly true in the context of transnational policies dealing with freedom, security and justice, as these entail many implications on the status of the individual that go beyond traditional “person-state” relations within a nationally confined legal system. At present, the ECJ has no full jurisdiction over the measures activated within the AFSJ. In particular, it does not hold a per se recognized competence to review and interpret measures on judicial cooperation in criminal matters and police cooperation. Article 35 TEU foresees a high number of exceptions and alterations, among which is a merely voluntary declaration by member states as to whether to accept the jurisdiction of the Court (see Carrera and Guild 2006), the absence of individual standing to bring suit against certain measures as well as the absence of infringements proceedings instigated by the Commission against member states. In addition, deviations also exist under the umbrella of Title IV TEC (Visas, Asylum, Immigration and other policies related to free movement of persons). According to article 68 TEC, for example only last instance courts under national law are entitled to ask the ECJ for a preliminary ruling. The new institutional framework that is going to be provided by the Reform Treaty will grant the ECJ—in principle—general jurisdiction to interpret and review the validity of the acts adopted within any field of the AFSJ. Overall this will ensure a higher level of judicial control and protection in the EU. However, as will be outlined below, the coming into force of this new role of the ECJ will be considerably delayed for the existing third pillar acquis. The Charter of Fundamental Rights The debate around the legal status of the Charter of Fundamental Rights of the Union11 will be—for the vast majority of member states—finally resolved. The new article 6 TEU will provide a cross-reference to the Charter on Fundamental Rights “as adapted at Strasbourg on 12 December 2007, which shall have the same legal value as the Treaties” agreed in the 2004 IGC. The Charter will thereby be directly legally binding for the European institutions, Union bodies, offices and agencies as well as member states when they implement Union law. This will put EU actors and member states under a clear legal obligation to ensure that in all their areas of activity—and in particular in the AFSJ— 11 2007.

Charter of Fundamental Rights of the Union, OJ C 303/1, 14 December


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fundamental rights are duly respected. It will also reinforce the onus upon them to respect fundamental rights when legislating, implementing and practising these policies. Finally, the altered nature of the Charter will strengthen the freedom dimension of the area of freedom, security and justice (Guild and Carrera 2006). An EU with a single legal personality As foreseen in the Constitutional Treaty, the Reform Treaty will recognize the European Union as a single legal personality. The new version of article 6 (2) TEU will additionally establish that the EU shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) of 1950. It will also contain the proviso that “Such accession shall not affect the Union’s competences as defined in the Treaties.” From an EU perspective, the eventual accession to the ECHR will require unanimity in the Council and ratification by member states. However, it must be kept in mind that accession by the EU to ECHR is not a unilateral act. In order to achieve this step, all 47 ECHR signatory states will have to agree and certain amendments to the Strasbourg texts will be required.12 Further, fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the member states, will continue to be considered as general principles of EU law. While accession to the ECHR would serve as an excellent reminder for member states of the obligations and commitments undertaken within the realm of the Council of Europe, careful attention will need to be paid as to the actual legal and judicial consequences of the changing relationship between the ECHR, the Charter of Fundamental Rights and the national constitutions (cf. de Schutter 2007). The European Public Prosecutor’s Office The possible establishment of a European Public Prosecutor’s Office from Eurojust was already foreseen in article III-274 of the Constitutional Treaty. This possibility has been maintained by the Reform Treaty. The European Public Prosecutor’s Office will be a judicial body with direct enforcement authority, responsible for investigating, prosecuting and bringing to judgment offences against the Union’s financial interests. In this respect it will exercise the functions of prosecutor directly in the competent courts of the member states. While the term “offences against the Union’s financial interests” is as such already quite wide and imprecise, there will also be the possibility to extend the powers of this body to include “serious crimes having a cross-border dimension” (article III-274 (4) CT; new article 69e (4) TFU). A fully fledged European Public 12 Cf. Steering Committee on Human Rights (CDDH) of the Committee of Ministers of the Council of Europe, Study of Technical and Legal Issues of a Possible EC/ EU Accession to the European Convention on Human Rights, DG-II(2002)006, 28 June 2002.

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Prosecutor’s Office responsible for investigating and bringing to trial serious cross-border crime throughout the EU would be a quite fundamentally new and powerful actor in the area of judicial cooperation in the EU; its development therefore deserves close attention.13 A Standing Committee on Internal Security Also in line with the Constitutional Treaty is the setting up of a standing committee within the Council “in order to ensure that operational cooperation on internal security is promoted and strengthened within the Union” (article III-261CT; new article 61d TFU). According to the Treaty, this standing committee—also known as COSI—will have the task of facilitating the coordination of the actions of member states’ competent authorities. Nevertheless, the composition, concrete tasks and competences of COSI remain as vague as they were three years ago, when the Constitutional Treaty was signed. That the EP and national parliaments “shall be kept informed of the proceedings” of COSI is only a minor remedy, as the obligation to mere information only highlights the fact that this potentially seminal committee will not be subject to genuine parliamentary control. In this respect, the Reform Treaty would have better addressed the concerns formulated by some observers (cf. Statewatch 2005). Further Aspects Related to Specific AFSJ Policies Finally it is worth pinpointing a number of modifications to the Constitutional Treaty that the Reform Treaty intends to introduce. 1) With regard to diplomatic and consular protection of EU citizens—one of the existing rights connected to the status of citizenship of the Union—it seems as if the new Reform Treaty will actually take a step back. The Constitutional Treaty gave competence to the Council to adopt a European law (comparable to the existing regulation) to establish the “measures necessary to facilitate” diplomatic and consular protection (article III-127 CT). The Reform Treaty, in contrast, provides for the “adoption of directives establishing coordination and cooperation measures”.14 In both, the legal instrument (directive instead of regulation) and the scope (coordination and cooperation instead of facilitation of protection), the new setting therefore waters down the innovation of the Constitutional Treaty. Yet, in comparison to the existing rules (see article 22 (2) TEC: ratification necessary), this watered down innovation is nevertheless a step forward. 2) The provision on financial sanctions—like the freezing of funds against entities or individuals suspected of having links with terrorism (known as 13 2007. 14

Cf. “Brussels Eyes Single European Public Prosecutor,” euobserver, 1 August Article 20 (2) TFU, para. 19 e) IGC Mandate.


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targeted sanctions, smart sanctions, “terror lists,” etc.)—newly shaped by the Constitutional Treaty (article III-160 CT) has been moved from the treaty section on “Capital and Payments” to the one on the AFSJ. The fact that a clear legal base for this counter-terrorism measure—that has already sparked many controversies in the ECJ—will be established, explicitly requesting the adoption of “legal safeguards”—is to be welcomed. Yet, the shifting of this provision into the AFSJ section gives rise to suspicion: in the end, the opt-outs of the UK, Ireland or Denmark might now also take hold of this measure which before had been secured in the clear cut treaty section on “Capitals and Payments.” 3) Finally another major innovation of the Constitutional Treaty affecting the AFSJ has been hampered under the new structures. While the first would have guaranteed a common standard and common legislative procedures related to data protection in all policy fields (I-51 CT), the Reform Treaty reintroduced (that is “maintain” compared to the status quo) different standards and procedures. Articles 16b (2) TFU in connection with article 25a new TEU data protection rules in the scope of the Common Foreign and Security Policy will be subject to a special regime (most likely a less scrupulous one due to “security” reasons and the “sensitivities of foreign policy”). And even as regards police and judicial cooperation in criminal matters, Heads of State and Government considered it necessary to keep a backdoor open in agreeing on a declaration no. 34 stating: The Conference acknowledges that specific rules on the protection of personal data and the free movement of such data in the fields of judicial cooperation in criminal matters and police cooperation based on Article 16b of the Treaty on the Functioning of the European Union may prove necessary because of the specific nature of these fields.

Exceptions and Derogations to the Renewed Institutional Regime on FSJ After having illustrated the main trends and general principles inherent in the new institutional setting, this second section will provide an overview of the high number of fundamental exceptions and derogative clauses that appear to become characteristics of the new area of freedom, security and justice. Among others: 1) Maintenance of law and order and the safeguarding of internal security will remain the sole responsibility of member states. In line with the current article 64 TEC as well as article III-262 of the Constitutional Treaty, article 61e TFU provides that supranational JHA policies “shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.” However, the Reform Treaty has introduced a new article 61f TFU stating that member states are free “to organize between themselves and under their responsibility forms of cooperation and coordination as they deem appropriate

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between the competent departments of their administrations responsible for safeguarding national security.” This new article reaffirms the exclusion of any EU involvement in the safeguarding of internal security, while explicitly allowing for intergovernmental cooperation and coordination. The old third pillar thinking becomes apparent and one wonders whether this provision is not in fact laying the ground for further extra-EU but trans-European exercises like the famous Prüm Treaty.15 One wonders, furthermore, whether the new article intentionally provides for a new legal term (national security as in article 61f instead of internal security as in article 61e TFU) and what further implications this choice of wording might have. It is striking finally, that this matter has been so important to the drafters of the new Treaty that they considered it necessary to repeat once more at the very beginning of the Treaty among the common provisions, that “national security remains the sole responsibility of each Member State,” article 3a (2) TFU. 2) At the same time administrative cooperation between the relevant departments of the member states in the areas covered by the Treaty title on the AFSJ will fall within an EU framework according to article 61g TFU. However, the European Parliament will be only consulted and the right of initiative will be shared between the member states and the European Commission. 3) Also as regards police and judicial cooperation in criminal matter there will be a shared right of initiative between the European Commission and a quarter of the member States, article 69l TFU. This is a partial exception to the rule that only the Commission shall be entitled to propose EU legislation. 4) Whereas in principle the “ordinary legislative procedure” shall be extended to nearly all third pillar issues, this procedure is very often subject to the mechanisms of “emergency brake” and/or “enhanced cooperation.” While the Constitutional Treaty already foresaw this possibility (see for instance articles III-270 and III-271 respectively), the Reform Treaty has extended the application of these mechanisms to further fields and introduced an important amendment in its implementation. Yet, what do these terms entail and what is the innovation introduced by the Reform Treaty? There will be the possibility of an “emergency brake” if one member state considers that a draft legislative act may affect fundamental aspects of its criminal justice system. In this case the member state may request the draft to be referred to the European Council and the ordinary legislative procedure 15 Convention between the Kingdom of Belgium, the Federal Republic of Germany, the Kingdom of Spain, the French Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands and the Republic of Austria on the stepping up of cross-border cooperation particularly in combating terrorism, cross-border crime and illegal migration, Prüm (Germany), 27 May 2005, Council Secretariat, Brussels, 7 July 2005, 10900/05; cf. Balzacq et al. 2006; Guild and Geyer 2006; for further details on the Prüm Treaty, see Bellanova, R., “The ‘Prüm Process:’ The Way Forward for EU Police Cooperation and Data Exchange?,” Chapter 11 of this volume.


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will be temporarily suspended. The Reform Treaty has modified this procedure in one crucial aspect: It abandoned the possibility for the European Council to request from the European Commission or the initiating group of member states the submittal of a new draft of the proposal. Once the “emergency brake” has been applied and the European Council is unable to find an agreement, a simple notification to the European Parliament, the Council and the European Commission will suffice to allow a group of nine member states to establish enhanced cooperation on the basis of the initial draft proposal that gave rise to the suspension of the ordinary legislative procedure. An imaginary scenario might help to highlight possible ramifications and the underlying ratio of the change of procedure brought about by the Reform Treaty in relation to the Constitutional Treaty: A group of seven member states (that is the necessary quarter, article 61l (b)) presents a proposal on minimum rules related to criminal law, which they know will never obtain the necessary majority in the Council. The European Commission may have been working on a similar or related issue, trying to find a more consensual position. Yet, because of the difficulties of reaching a consensus among member states and the requirement to draft an extensive impact assessment—something member states are not obliged to do when tabling a draft—the Commission has not been able to present its own draft ahead of the “avant-garde” group. The member states’ proposal reaches the Council and suffers—as expected—the “emergency brake” by at least one member state. The ordinary legislative procedure is suspended and the European Council is unable to find a solution within four months. Following the new mechanism, the European Council can no longer request the initiating party to come up with a new, more balanced proposal. This is what the seven had been waiting for. They have managed in the meantime to convince two more member states to join their proposal and the minimum number of nine member states for the enhanced cooperation mechanism is achieved. The only thing left for them to do is to notify the EP, the Council and the Commission about their wish to establish this enhanced cooperation among themselves. The required authorisation is hence “deemed to be granted,” cf. for instance article 69b (3) TFU. In this way, thanks to the new “emergency brake” and enhanced cooperation mechanisms, the seven member states have succeeded in putting through an initially hopeless and unbalanced proposal with only the obligation to notify the EU institutions.

Therefore, one of the more important consequences of the abandonment of the possibility for the European Council to request from the initiating party the submittal of a new draft will be the prevention of compromised solutions. It further enhances “enhanced cooperation” and might limit the Commission’s role in the whole legislative process. The way in which the principle of loyalty among member states and in relation to the EU might translate in this respect, will be open to consideration. 5) In the field of judicial cooperation in civil matters, an exception is provided for measures concerning family law with cross-border implications. Here the unanimity rule and consultation procedure will remain applicable as was previously stipulated by article III-269 of the Constitutional Treaty. However,

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it was already foreseen that the Council may move certain aspects of family law to the ordinary legislative procedure. The Reform Treaty has significantly impeded this possibility by making it subject to a notification of all national parliaments. If only one national parliament objects, the decision to move certain family law matters to the ordinary procedures shall not be adopted, article 65 (3) TFU. 6) Further, provisions concerning passports, identification documents, residence permits and other related identification documents will be subject to unanimity and mere consultation of the European Parliament. While this procedural aspect had already been foreseen in the Constitutional Treaty, the Reform Treaty established a systematically new positioning of these provisions within the Treaties. Following the request contained in para. 19 d) of the IGC Mandate they shall be placed in the Title on the AFSJ, in the chapter dealing with “border controls”—“for the purpose of facilitating the rights of every citizen of the Union to move and reside freely (…).” Accordingly it is now stipulated in article 62 (3) TFU: If action by the Union should prove necessary to facilitate the exercise of the right referred to in Article 17(2)(a), and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt provisions concerning passports, identity cards, residence permits or any other such document. The Council shall act unanimously after consulting the European Parliament.

The transfer of these areas to the Title on AFSJ of the TFU constitutes a substantial move from the current contextualization within the scope of Union citizenship. 7) Establishment and extension of the competences of the European Public Prosecutor’s Office will require unanimity in the Council and consent of the European Parliament. Whereas these exceptions to the ordinary procedures had been already stipulated in the Constitutional Treaty (article III-274), the Reform Treaty introduced yet another “enhanced cooperation mechanism” allowing one third of member states to cooperate with each other in case the necessary unanimity inside the Council cannot be established and the European Council cannot provide a solution. It is quite remarkable, however, that this possibility is only foreseen with regard to the establishment of the European Public Prosecutor’s Office and not for the extension of its competences. This raises a number of contentious questions. It will not only send a somewhat contradictory message that only a handful of member states cooperate to protect the EU’s entire financial interests by establishing the European Public Prosecutor’s Office, but these member states will henceforth not be able to extend the Office’s competences. 8) In the field of police cooperation, that is “cooperation between police, customs and other specialized law enforcement services in relation to the prevention, detection and investigation of criminal offences” (article III-275 CT, 69f TFU), unanimity in the Council and mere consultation of the European Parliament


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will be required when it comes to measures on operational cooperation between these authorities. It is furthermore with regard to this operational cooperation that the Reform Treaty once more introduces the possibility to establish enhanced cooperation in the case of no unanimity in the Council and after having submitted the matter to the European Council. Yet, at the same time another important “counter exception” has been foreseen in article 69f (3) which stipulates that any operational cooperation “which constitutes a development of the Schengen acquis” will not fall under this special enhanced cooperation scheme. Beyond this, the ordinary legislative procedure will apply as a general rule. However, as stated above, the right of initiative will be shared between the Commission and the member states. 9) The position of the UK and Poland as regards the Charter of Fundamental Rights quite possibly constitutes one of the most controversial exceptions. First and foremost they will have a major impact on the way in which freedom is going be guaranteed across the EU. Both countries have asked for a special positioning in respect of the applicability of the Charter to their national arenas. Poland presented a unilateral declaration according to which the Charter will not affect the right of the member states to enact legislation in the areas of public morality, family law, the protection of human dignity and the respect for human physical and moral integrity.16 Further, a special protocol is annexed to the Treaties on the position of Poland and the UK in respect of the Charter. According to article 1 (1) of this protocol: The Charter does not extend the ability of the Court of Justice, or any court or tribunal of Poland or the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.

Further in paragraph 2 of the same provision, it is stated that nothing in the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as they have provided for such rights in its national law. 10) As regards opt-outs it is furthermore necessary to mention that the UK and Ireland have broadened their non-participation in EU policies related to the area of freedom, security and justice. Under the Constitutional Treaty their opt-outs covered only policies in respect of border controls, asylum and immigration, judicial cooperation in civil matters and on police cooperation. This has now been extended to the entire policy area as laid down in the amended “Protocol on the Position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice.” The Danish opt-out, on the contrary, already under the Constitutional Treaty covered nearly all policies on the AFSJ.

16 Declaration No. 61 by the Republic of Poland on the Charter of Fundamental Rights of the European Union, annexed to the Final Act.

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However, as the UK and Ireland have been participating like any other member state under the existing third pillar setting in the creation of the third pillar legislation, this sudden pull-out does come with a certain hook attached to it. According to article 4a (2) of said Protocol, a certain amount of pressure can be exercised on these two countries to make them participate in the adoption and implementation of legislative acts that aim at amending already existing “old” third pillar measures (for instance a future amendment to the framework decision on the European arrest warrant). Refusal to participate in the amendment may ultimately lead to the situation that the “old” third pillar measure will cease to be binding and applicable in the UK and/or Ireland. On top, such refusal may lead to the obligation of these member states to bear the direct financial consequences that accrue out of this situation (for more detail see Peers 2007). 11) Finally, with regard to the judicial control exercised by the ECJ, there is an exception foreseen in article 240b TFU: The ECJ will not have jurisdiction to review the validity and proportionality of operations carried out by the police or other law-enforcement services of a member state or the exercise of the responsibilities incumbent upon member states with regard to the maintenance of law and order and the safeguarding of internal security. This however is an exception already maintained by the Constitutional Treaty (article III-377 CT) and not the result of the European Council deliberations of June 2007. More important for the mid-term future following the entry into force of the Reform Treaty is the temporary derogation of judicial control stipulated in article 10 of the “Protocol on Transitional Measures.” This article delays one of the major institutional innovations of the new setting for a period of up to five years. It drags the current (castrated) third pillar powers of the ECJ into the new era, depriving it of a general obligatory jurisdiction and preventing the Commission from initiating infringement procedures against member states that fail to implement EU provisions on policing and criminal law. However, this transitional period only applies with regard to measures that will have been adopted until the entry into force of the Reform Treaty, that means to the “old” third pillar acquis. Important here, that any amendment to this old acquis that will be adopted after the date of entry into force of the Reform Treaty will lead to the applicability of the new powers of the Court with regard to the amended act (cf. article 10 (2) Protocol on Transitional Measures). Similarly, after five years from the date of entry into force of the Reform Treaty this transitional measure expires. Yet again there is a special provision tailored for the UK (and the UK alone). It may continue to refuse to accept the ECJ’s jurisdiction even beyond the five years term. However, also this does not come without a price. As a consequence, the entire old third pillar acquis will cease to apply in the UK (article 10 (4) Protocol on Transitional Measures).


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The Impact of “Exceptionalism” and “Differentiation” in the Area of Freedom, Security and Justice What are the possible implications of these exceptions, differentiation and deviations for EU JHA policies? How might they influence the articulation between EU governance and national sovereignty and the building of a common area of freedom, security and justice and what is the impact on the individual affected by theses policies? In our opinion, the Reform Treaty will institutionalize a high degree of “exceptionalism” in the AFSJ. The exceptions that have been highlighted above in section two will mainly aim at constraining the European integrationist processes over fields considered to be traditionally attached to national sovereignty prerogatives. Certain fields such as the maintenance of law and order, internal security, cooperation and coordination among national security authorities, passports and other identification documents, family law will remain outside the institutional renewal. They will continue to be subject to the intergovernmental method of cooperation, characterized by unanimity voting or even being beyond the scope of the EU. In addition, the Reform Treaty fosters “differentiation” as regards European cooperation on policies related to an AFSJ. The “differentiation” will translate in an area where transnational cooperation over freedom, security and justice will be subject to a complex matrix of “speeds.” Some areas such as the harmonization of criminal law, operational cooperation of police forces or the establishment of the European Public Prosecutor’s Office will be subject to emergency brakes and/ or enhanced cooperation. In the field of data protection, the crucial innovation of the Constitutional Treaty will be reversed and the differentiation of data protection standards maintained, albeit in a less visible manner. Differentiation as a product of “enhanced cooperation” in all these areas may lead to the instauration of various areas of freedom(s), security(ies) and justice(s). It may put an end to the political project of having a sole and unique area where a common level of all its elements is guaranteed. Yet it is this common level that provides the justification for EU-specific supranational (as opposed to mere international) cooperation and provides the basis for the establishment of mutual trust, necessary, for instance for the application of the EU principle of mutual recognition. Under the new structures, there is a real danger of competing areas and dispersed levels of Europeanization and integration as regards the dimensions of freedom, security and justice. The perception that “enhanced cooperation” is one-dimensional; that a group of avant-garde member states goes “ahead” and the other more reluctant ones follow as soon as they perceive this “ahead” is the right way, might turn out to be illusory in the long-run. Who guarantees that “enhanced cooperation” might not lead to a situation in which a group of nine member states goes “ahead,” but another group of nine decides to take a bend in another direction, leaving another group of nine behind that finally decides to move “enhanced backwards?” Such scenarios might not only hamper the political project of achieving a common AFSJ; they might also impair the effectiveness of JHA policies. In

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the end, it is national officials, police forces, judges, prosecutors, and so on who must make use of the cooperation mechanism. Yet, already now, mutual legal assistance is a long way from being a top-priority in every day business at practical member state level. With multiple speeds, things will get considerably more difficult as national officials will—in every single case—have to assess which possible cooperation partner belongs to which flexible group of member states. In the end, ever changing “flexibility” can reach a degree of complexity that may paralyse the everyday cooperation of national authorities. While acknowledging that some of the “enhanced cooperation” elements were already been contained in the Constitutional Treaty, the Reform Treaty has considerably exacerbated the dangers inherent in “flexibility” and “multiple speeds.” Not only does it enhance “enhanced cooperation,” as exemplified above in the case scenario on criminal law, the most crucial difference between 2004 and 2007 is that differentiation and exception have now even been allowed for the Charter of Fundamental Rights and the powers of the European Court of Justice (the latter at least temporarily). An unrestrained application of the Charter—as foreseen in the Constitutional Treaty—would have constituted the only brace able to keep drifting “areas of freedoms, securities and justices” together. It would have been a most important mechanism for ensuring equal treatment of all inhabitants of the AFSJ throughout the EU in respect of JHA policies. Differing status of individuals depending on the location within the areas of freedoms, securities and justices, in fact gives rise to the most serious concerns. Which safeguards will apply, for instance, if Eurojust, together with an enhanced cooperation group of member states, investigates a cross-border case involving a British citizen arrested in Mallorca on holiday? Will this British suspect be treated differently because the UK decided not to join the enhanced cooperation group? And how will the opt-out of the Fundamental Rights Charter translate in such a case? With the Charter of Fundamental Rights limited and the risk of drifting in the areas of freedom, security and justice increased, it will now be for the European Commission and the European Parliament to play a seminal role in ensuring the coherence and sustainability of the project of creating an AFSJ in the EU. Furthermore, with the ECJ’s competencies increased, this institution will have to be even more instrumental in ensuring the solidity of a common EU approach in these fields and guaranteeing the rule of law. The Court will have to ensure that the principle of dispersion and differentiation will not undermine the building of a common space where freedom, security and justice are guaranteed equally across the entire EU. A task that has been hampered by the transitional restriction of its powers outlined above. Furthermore, in order to consolidate human rights protection throughout the AFSJ, also with regard to EU institutions, bodies and agencies, the ECHR will have to fill the gap opened up by some member states’ opt-out of the Fundamental Rights Charter. In this respect, the swift accession of the EU to the ECHR is crucial. Finally, thorough attention must been given to national parliaments. They should make cautious and wise use of their strengthened position as regards


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subsidiarity, proportionality, and use of the new family law “passarelle” in order to avoid increasing the risk of differentiation. In particular, they should refrain from weakening the role of the EP in the European integration processes; national parliaments should not conceive of themselves as a third EU chamber. While the engagement of national parliaments in the legislative machinery of instruments related to freedom, security and justice is crucial for a close involvement of the citizens of Europe, careful attention will need to be paid in order to guarantee efficiency and effectiveness in the decision making processes.

Conclusions and Suggestions This chapter has provided an overview of the major innovations that are to be expected from the new Reform Treaty for the EU area of freedom, security and justice and has assessed possible implications. We have argued that the Reform Treaty provides a mostly positive response to some of the main complaints that have often been put forward in respect of the institutional and decision making mechanisms. The institutional fragmentation will be over, along with a large number of its negative externalities. The abolition of the pillar duality over the area of freedom, security and justice will lead to increasing legal certainty, a set of uniform legal acts, stronger involvement of the European Parliament in the decision making process, as well as the widening of the ECJ’s jurisdiction to review and interpret these policies. This will facilitate the development of more comprehensive, legitimate, efficient, transparent and democratic responses to the dilemmas posed by the Europeanization processes and the creation of a common AFSJ. Nevertheless, the new Treaty also increases the possibilities of enhanced cooperation, grants opt-outs and brings about a limited scope for the Charter of Fundamental Rights. We have argued that this aspect of the “innovations” might actually undermine the construction of a common AFSJ and its sustainability as a plausible political project for an enlarged EU. Allowing the possibility of too many “speeds” going in too many different directions might have helped to end the pillarization but may create an area of freedom, security and justice prone to “differentiation” and “exceptionalism”; the exception might well become the norm. Too much “flexibility,” we have argued, might lead to too much complexity, paralysing the practical cooperation of national authorities at “ground level.” Differing areas of freedoms, securities and justices may furthermore endanger the status and legal safeguards of EU citizens that might find themselves caught up between the gaps and rifts of this patchwork. In spite of this, we welcome the fact that many of the aspects provided by the Constitutional Treaty have been retained. To lessen the perils inherent in the likely new structures, we conclude with the following considerations: 1) Notwithstanding the theoretical possibilities of “moving ahead,” member states should always aim to reach a common consensus among all member

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states. This should be and should remain their first obligation, preventing any abuse of the enhanced cooperation mechanisms (cf. Kurpas et al. 2006). 2) On the other hand, sceptical member states should refrain from abusing the “emergency brake.” A train in which someone constantly pulls the red lever will not only arrive late, it will suffer materially in the long-run. This is why the abuse of emergency facilities is a crime in many member states. 3) With their competencies strengthened, it will be mainly for the European Commission, Parliament and the ECJ to keep a careful eye on the common interest, refraining from everything that might stimulate the drifting apart of the common, the single area of freedom, security and justice. 4) The Charter of Fundamental Rights, together with the ECHR—once the EU has acceded—should be conceived as instruments that stabilize the position of the individual and guarantee equal treatment, thereby constituting a necessary brace for drifting areas.

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Index

Directorate-General Freedom, Security and Justice (Justice and Home Affairs) 21, 25, 91, 174, 246, 265 Eurojust 39, 41 European arrest warrant 109, 118–20, 124, 284 European Public Prosecutor’s Office 46 Europol 24–6, 28 Evaluation 143–4, 246 Frontex 29–31 monitoring implementation 52, 140–42, 294, 302 mutual recognition 7 police cooperation 247 procedural rights 171–2, 174–82, 184, 186, 192–3, 197, 199, 281 Prüm Treaty 204–7, 212–14, 216 right of initiative 21, 25, 95, 291–2, 298–9, 301 role in third pillar 92, 95, 97, 272, 275 Schengen acquis 6 common law system 114, 117, 187, 255 Constitutional Treaty 52, 67, 143, 256 Belgium 42–4, 48, 100, 119–20, 123–4, compared to Reform Treaty 53, 136, 140, 225–48, 269, 271 143, 167, 169, 196, 275, 290–305 Benelux Police Cooperation Treaty 228, criminal law 140, 158, 196, 259 230, 234, 237, 238 data protection 135 biometrics 85, 96, 100, 105, 211, 213 Eurojust 46 Bulgaria 12, 13, 113 Bureau voor Euroregionale Samenwerking control democratic 19, 22, 24–5, 28, 32–3, 48, 234, 240 72, 74, 78–9, 81–2, 85, 112, 215, 252–3, 296 Canada 92, 146, 238, 249, 282 judicial 2, 5, 6, 22, 32, 52, 66, 112, 272, CEPEJ 12 284, 291, 294, 302 Cepol 22, 47, 250–251 Convention for the Protection of Human CIA 2, 71, 72, 75, 77, 78, 81, 83 Rights and Fundamental Freedoms civil law system 114, 255 279 Commission of the European counter-terrorism 73–5, 79, 273, 283 Communities 21, 22, 66, 71, 99, 130, EU law 61 265, 272, 304, 306 mutual trust 113, 283 criminal law 54–6, 58, 138, 140, 153–4, procedural rights 8, 171–202, 271 157–61, 168, 260 Reform Treaty 53, 295, 304 data exchange and protection 57, 96, corruption 40, 166 104, 132, 145, 268 accountability 2, 19–34, 106, 252 agencies in AFSJ 19–34 democratic 5, 53, 109, 111–12, 114, 126, 291–2 intelligence services 82, 94 judicial 5 administrative cooperation 298 agencies in AFSJ 19–34, 47, 97–106, 285, 294, 304 Air Marshals 96, 208 Amsterdam Treaty 1, 6, 21, 24, 36, 51, 52, 53, 55, 95, 141, 265, 270 approximation of national laws 4, 7–12, 15, 63, 140, 146, 167, 174, 206, 251, 254 Article 29 Working Party see data protection Article 36 Committee 206, 208–209 Australia 92, 105 Austria 11–14, 20, 23, 78, 120, 124, 228, 249, 255

332

Security versus Justice

Council of Europe 2, 64, 279, 283, 295 data protection 213 extraordinary rendition 71–78, 80 judicial systems study 12–14 mutual legal assistance 110 procedural rights 179, 180, 183, 184 Council of the European Union 7, 206, 207, 211, 254, 291, 295, 299–301 criminal law 54, 58, 138–9, 143, 153–5, 158, 160, 165, 167–8, 277 data exchange and protection 96, 134, 136 Eurojust 36, 46 European arrest warrant 119, 120, 123–4 Europol 25 evaluation 142–143 extraordinary renditions 72 Frontex 29–30 General Secretariat 92, 95, 249 JHA Council 23, 36, 158–9, 178, 203, 206, 208–10 monitoring implementation 141–2 Police Cooperation Working Party 7, 247 presidency 24, 178, 194, 203 procedural rights 171, 178–82, 187, 191, 194, 196–7, 274 Prüm Treaty 203, 206–10 role in third pillar 21, 24, 95 Working Party on Substantive Criminal Law 178, 180, 182, 187 counterfeiting 166 counter-terrorism 8, 79, 81, 297 EU Counter-Terrorism Strategy 3, 280–86 Court of First Instance 133 Ayadi (T-253/02) 273–274 Gestoras Pro Amnistía (T-333/02) 65–66 Hassan (T-94/04) 273–274 Minin (T-362/04) 274 Organisation des Modjahedines du peuple d’Iran (T-228/02) 274 Segi (T-338/02) 65–6 Sison (Joined cases T-110/03, T-150/03 and T-405/03) 274 Court of Justice of the European Communities 1, 2, 5–7, 9, 21, 22, 26–7, 30–32, 51–69, 91, 133, 154, 198, 204, 253, 260, 265–76, 294, 297, 302, 304–6

Advocaten voor de Wereld (C-303/05) 10, 11, 62–5, 120, 198, 271 Environmental crime (C-176/03) 45, 54–6, 67–8, 138–41, 154–9, 167–9, 260, 277 Eurojust (C-160/03) 59 Gasparini (C-467/04) 10, 270 Gestoras Pro Amnistía (C-354/04 P) 55, 61, 65–8, 274 Giovanni Dell’Orto (C-467/05) 60–62 Gözütok and Brügge (C-187/01) 9, 10, 52, 61, 269, 271 Kraaijenbrink (C-367/05) 270 Kretzinger (C-288/05) 270–71 Miraglia (C- 469/03) 270 Öcalan (C-229/05 P) 274 PNR Agreement (C-317/04 and C-318/04) 56–8, 133, 135, 273 Pupino (C-105/03) 59–60, 61, 63, 65, 67–8, 271 Segi (C-355/04 P) 55, 61, 65–7, 274 Ship-source pollution (C-440/05) 58, 138–9, 159–66, 167–9 Van Esbroeck (C-436/04) 9, 10, 270 Van Straaten (C-150/05) 10, 270 Customs Information System 134, 268 Cyprus 14, 37, 117, 120, 123, 172, 179, 182, 184 Czech Republic 13, 42, 52, 120, 172, 178, 179, 182, 184, 198, 215 data exchange see exchange of information data protection 3, 22, 26, 73, 81, 85, 86, 91, 105, 129–50, 205, 207, 211, 213–15, 267–8, 285, 297, 303 Article 29 Working Party 131–5, 137, 145–6, 207 Directive 95/46/EC 57, 131–3 European Data Protection Supervisor 27, 40, 132–4, 136–7, 145–6, 205, 207, 212–14 Joint Supervisory Authorities 134–5, 137, 145 Joint Supervisory Body 24, 26–7, 31, 134 national data protection authorities 22, 131–8, 144–5, 212, 215 National Supervisory Body 27 privacy 73, 136, 211, 214, 217

Index

333

European Crime Prevention Network 142–3 European Data Protection Supervisor see data protection European gendarmerie 20–21 European Judicial Network 36, 39–40, 42, 47 European Parliament 5–6, 21–2, 24, 247, 253, 260 counter-terrorism 71 Eurojust 46 Europol 24–5, 28, 32–3 Frontex 30–31, 32–3 efficiency 21–2, 28, 33, 35, 37, 41, 42, 47, LIBE Committee 172, 177, 183, 198, 80–81, 105, 130, 135, 168, 260, 291, 206, 207, 214, 277, 292 305 PNR 57 emergency brake 169, 298–9, 306 procedural rights 172, 177–8, 181, 183, enhanced cooperation 20–21, 53, 92, 179, 198, 276 199, 206, 290, 298–301, 303–6 Prüm Treaty 204–7, 210, 214–15, 252 Enschede Treaty 228, 230, 234, 237, 238 Reform Treaty 292, 298–301, 304–5 Estonia 13, 119, 124, 236–7, 2353 European Public Prosecutor’s Office 45–8, Eurobarometer 20, 22 168, 295, 300, 303 Eurodac 98, 105, 133–4 Europol 36, 47, 93–6, 98, 100, 237, 285 Eurojust 22, 35–49, 59, 95, 100, 181, 285 accountability 23–8, ,30, 32–3 background 35–7 convention 4, 36, 252 data protection 134, 137, 168 data exchange and protection 105, 134, European arrest warrant 111 137, 268 future 43–9, 293, 295, 304 Reform Treaty 293 structure and powers 32–3, 37–43, 260 Euroregionales Polizei-InformationsEuropean arrest warrant 2, 91, 109–28 Cooperations-Centrum 238 application 119–24, 256–7 Eurowarrant see European arrest warrant counter-terrorism 8, 96, 284 evaluation 8, 143, 246, 293 democratic legitimacy 112, 114 EU JHA policies 141–4, 146, 172 difference to extradition procedure 9, 110 European arrest warrant 119–20, 124 ECJ See Court of Justice of the procedural rights proposal 177, 181, 281 European Communities Prüm 207 fundamental/human rights 10, 111, 113, exchange of information 36, 91, 94, 96, 98, 117–19, 182–3, 197–8, 284 105, 166, 232–3, 237 implementation 114–19 Eurojust 48 National courts 11, 62–3, 120, 186 principle of availability 28, 105–6, procedural rights 9, 172, 183, 186, 191, 136–7, 205, 211–13, 216 195, 197 Prüm Treaty 137, 203–21 procedure 111 sovereignty 92, 93, 106 European Council 4, 25, 36–7, 45–6, 53, third countries 25, 83–4, 105 61, 67, 126, 143, 174, 196, 239, 275, extradition 73, 84, 110, 114–26, 187, 197, 298–302 266, 284 Tampere 20–21, 36, 91, 95, 109, 117, difference to European arrest warrant 171, 173, 265 procedure 8–9, 63, 110–12 European Court of Human Rights 75, 92, extraordinary rendition 71–87 117, 178, 180–85, 188–95, 198, 273, 282, 283 Proposal for framework decision 28, 57, 136–7, 213–14, 268 purpose limitation 105, 206 database(s) 28, 102, 105, 133, 137, 145, 212–16, 268 Denmark 5, 12–14, 29, 42, 52, 119, 124, 155, 255, 297 Department of Homeland Security 56, 85 detention 71, 74–6, 78, 80, 84, 99, 101, 174–176, 187, 195, 257 DNA 137, 203, 211–17, 237

334


Finland 13, 20, 42, 48, 155, 255 Framework decision 54, 60, 146 combating terrorism 283 data protection in third pillar 28, 57, 136–7, 213–14, 268 environmental crime 54–5, 138–9, 154–7, 273, 277 European arrest warrant 8–11, 62–3, 65, 109–28, 257, 271–2, 284, 302 exchange of information 209 procedural rights 7, 9, 113–14, 171–202, 276, 281 racism and xenophobia 276–7 ship-source pollution 58, 159–68 standing of victims in criminal procedures 59–61, 271 unauthorized entry, transit and residence 138, 141, 153 France 11, 13–14, 67, 100–101, 119–20, 155, 206, 209–10, 228–30, 239, 248, 250–51, 254–5, 258, 267, 272 Frontex 19, 22–3, 29–32 fundamental rights 10, 20, 26, 53, 61–5, 72–4, 82, 85–6, 126, 172–4, 204, 294–5 see also human rights Charter of Fundamental Rights of the European Union 10, 53, 63–5, 136, 196, 294–5, 301, 304–6 European arrest warrant 10, 111, 113, 117–19, 182–3, 197–8, 284 Fundamental Rights Agency 22, 33 Network of Independent Experts on Fundamental Rights 181 G6 21, 206 G8 92, 105 Germany 11, 13–14, 42, 78, 109, 111–12, 114–16, 119–21, 123–4, 155, 194, 206, 210–11, 216, 226, 8–230, 232, 234–6, 238, 248–56, 258–9, 261, 266–7, 269–71 governance 23, 29, 45, 81, 93, 129–50, 280, 303 Greece 101, 120, 155, 210, 253, 255 Guantánamo Bay 72, 74–6, 80 harmonization of national laws 5, 7, 10, 11, 40, 47, 53, 55, 113, 116–17, 130, 139–40, 154, 156, 161, 171, 174, 198, 260, 276–77, 303

human rights 30–31, 102, 253, 304 EU police and judicial cooperation 40, 48, 65, 168, 172, 254 groups 20, 24 limitations 73 terrorism/counter-terrorism 71–80, 85–6, 274, 279–86 Hungary 52, 77, 84, 121 Iceland 29, 255 immigration 5–6, 19, 19–21, 29, 99, 104, 133, 138, 159, 208, 265–6, 274, 291, 294, 301 information exchange see exchange of information intelligence services 33, 71–2, 79, 82, 92–8, 102, 104–7 international cooperation 80, 142, 239, 283–4, 303 International Criminal Court 80–81, 115, 183, 197 interoperability of databases 28, 105, 211 Interpol 94, 98, 105, 145, 237–8 Ireland 6, 14, 29, 42, 52, 58, 111, 114, 117, 119, 124, 155, 172, 179, 182, 184, 209, 215, 255, 273, 275, 297, 301–2 Italy 13, 42, 72, 121, 123, 189, 206, 239, 255, 258–9, 261, 270–71, 273, 283 Japan 92 Joint Investigation Team 26, 28, 39, 83, 158, 229, 233 Joint law enforcement centres 254 Joint Supervisory Body see data protection Latvia 12–14, 245, 253 law enforcement authorities 5, 23, 41, 48, 52, 105–6, 209, 213, 252, 301–2 legal certainty 12, 61, 268–9, 284, 291, 305 Lisbon Treaty see Reform Treaty Lithuania 52, 236 Luxembourg 13, 42, 209–10, 228–9 Maastricht Treaty 5, 21, 36, 51, 53, 95, 153 Malta 37, 117, 172, 179, 182, 184, 255 money laundering 25, 32, 105, 153, 166 mutual legal assistance 38, 40, 42, 83, 232, 304 mutual recognition 7–8, 11–12, 15, 38, 40, 109–17, 119, 121, 123–4, 143, 168,

Index 171–5, 196, 198, 256, 257, 272, 281–3, 303 mutual trust 7–12, 14–15, 38, 45, 80, 109, 113, 121, 246, 272, 281, 282–5, 303 national parliaments 24, 30, 32–3, 112, 119, 126, 143, 176, 204, 207, 212, 214–15, 217, 292–4, 296, 300, 304–5 National Supervisory Body see data protection ne bis in idem 4, 8–11, 173, 175–6, 197, 255, 269–72 Netherlands, the 11, 13–14, 37, 48, 67, 120, 137, 155, 210, 226–39, 248–51, 255, 269–70 Norway 29, 39, 251, 255 nullum crimen sine lege 40 OLAF 23, 31, 41, 46–47 opt-out (opt-in) 6, 53, 106, 136, 179, 209, 269, 275, 290, 297, 301–2, 304–5 organized crime 19–21, 28, 32, 35–6, 73, 81, 102, 105, 142, 166, 226, 231, 240, 266, 275 OSCE 279, 282 Palma document 4, 95 Passenger Name Record Agreements 85, 106 pillar structure 5, 51–2, 67, 136, 290, 292 Poland 14, 37, 71, 77–8, 120–21, 123, 135, 206, 215–16, 236, 255, 267, 301 policing 4–5, 12, 19, 91–108, 302 at a distance 93–6, 97–8, 101–2, 105 in networks 93–6, 97–8 Police Chiefs Task Force 47 Police Cooperation Working Party 7, 247 practice 225–41 standards 243–63 Portugal 13, 42, 75, 119–120, 155, 215, 253, 255 prevention of crime 84, 97, 104, 106, 142–3, 146, 168, 275, 280, 291, 301 principle of availability see exchange of information principle of mutual recognition see mutual recognition Procedural rights 7, 9, 113–14, 171–202, 276, 281

335

proportionality 10, 45, 120, 123, 161, 207, 214, 217, 273, 293, 302, 305 Prüm Treaty 11, 203–21, 230, 237, 260 data protection 137–8, 211–15 enhanced cooperation 92 flexibility 21 intergovernmental supranationalism 20, 92, 252, 298 Reform Treaty 1–4, 12, 61, 67, 196, 217, 244, 277, 289–305 compared to Constitutional Treaty 53, 136, 140, 143, 167, 169, 196, 275, 290–305 criminal law 58, 140, 154, 166–9, 254 data protection 136–7, 297 Eurojust 37, 45–6, 295 Procedural rights 196, 276 Romania 71, 78–79, 113, 238, 248, 272 rule of law 19, 32, 59, 72, 74, 82, 97, 245, 280–82, 294, 304 Russia 92 Schengen agreements/acquis 4, 6–7, 9, 20–21, 29, 35, 94–5, 134, 204, 209, 234, 237, 244, 246, 249, 267, 269, 272, 301 Schengen Information System 98, 111, 133, 145 SCIFA 29 scoreboard 21, 275 securitization 29 security 83, 91–108, 281 as first freedom 93, 95, 104 continuum 95 external 19, 96–7, 103 field 105 internal 19–20, 52, 93, 96–7, 99–100, 102, 105, 245, 249, 269, 272, 297–8, 302 professionals 36, 98, 104 public 57, 83, 131, 136, threat 20, 226 security sector reform 243 Shanghai Cooperation Organization 279, 281–286 Sitcen 33, 96 Slovak Republic 14, 172, 179, 182, 184 Slovenia 52 sovereignty 2, 19–20, 22, 37, 41, 43, 48, 53, 63, 73, 79, 91–108, 110–12, 126, 155, 157, 161, 164, 168, 259, 277, 303

336


Spain 11–13, 42, 59, 75, 119–21, 124, 155, 172–3, 176, 186, 189–90, 195–8, 206, 210, 228, 237, 239, 249, 255, 258 subsidiarity 10, 45, 161, 163, 251, 293–4, 305 surrender 9, 11, 62, 73, 80, 110, 120–21, 173, 183, 187, 197, 257, 271 suspects’ rights see procedural rights Sweden 13–14, 42, 77, 155, 255 Switzerland 237, 255 Tampere Summit see European Council terrorism 4–5, 19–21, 28–9, 82, 92, 94–6, 98, 103, 105, 111, 166, 191, 266, 279–86 “fight against terrorism” 25, 91, 204, 281–3, 285 counter-terrorism see counter-terrorism definition 283–4 fear 95 human rights 71–80, 85–6, 274, 279–86 technologies 104–6, 204 terror lists/freezing of assets 65–6, 273–4, 297 threat 95, 105, 109, 275 The Hague Programme 28, 36, 38, 95, 103, 143, 171, 173–6, 211, 275 torture 71, 73–74, 77, 83, 106, 172, 282

trafficking 4–5 arms 166, 266 drugs 4–5, 20, 94, 98, 104–5, 166, 226, 255, 266, 270 human beings 105, 111, 138, 166, 226, 238, 266 transparency 2, 5, 7–8, 22–3, 47, 94, 204, 244, 261, 273, 283, 285, 292 Treaty establishing a Constitution for Europe see Constitutional Treaty Treaty of Amsterdam see Amsterdam Treaty Treaty of Maastricht see Maastricht Treaty Treaty of Prüm see Prüm Treaty TREVI 19, 20, 36, 94, 95 Turkey 255 United Kingdom 3, 6, 13, 20, 26, 29, 42, 52, 75, 112–20, 123–5, 155, 172, 178, 182, 184, 206, 209–10, 215–16, 248–55, 275–6, 293, 297, 301–2, 304 United Nations 73, 79, 85, 249, 273–4, 285 United States of America 39, 56, 77, 78, 80, 81, 83, 85, 105, 282 Visa Information System 96, 105, 145

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