DROI-O-615

EU Criminal Law

Part I : Decisional process and other institutional aspects

(judicial control)

Julia Burchett
Outline of the course
Part I : Decisional process and other institutional
aspects
1. Chronological introduction
2. Sources of EU criminal law
3. EU criminal law and the other legal orders
4. Judicial control
 3. EU criminal law and the
other legal orders
A. EU criminal law and the national legal orders
B. EU criminal law and the international legal
order
1. The EU and international law
2. The EU and the Council of Europe
C. Cross-fertilisation
B. EU criminal law and the
international legal order
1. The EU and international law

• International law is a source of EU criminal law

• But the EU legal order has shown its autonomy:

• Exclusion of some traditional principles on international law
such as the reciprocity principle or exceptio non adempleti
contractus (Art. 60 of the Vienna Convention) because they do
not correspond to the specificities of the EU legal order.
• See for instance CJEU, 3 Sept. 2008, joined cases C-402/05 P
and C-415/05, Kadi and Al Barakaat International
Foundation cases
Relationship between the international
and EU legal orders – the Kadi saga
• Blacklisting => elaboration of list of individuals or entities suspected
of association with terrorist organisations with the purpose of
freezing their funds and other financial assets.

• EU Black lists implementing Resolutions of the UN Security Council =

• Common positions adopted under CFSP concerning restrictive measures
• Regulation 881/2002, providing for the freezing of the funds and other
economic resources of those individuals and entities
• An annex to the Regulation including a list regularly updated on the basis of
successive UN resolutions.

• Mr. Kadi, and the Al Barakaat International Foundation, brought

actions for annulment before the Court of First Instance, claiming
especially that the Regulation breached several of their fundamental
rights, in particular the rights of the defence.
Kadi Saga, Episode 1 – CFI, judgments of 21 Sept.
2005, Case T-306/01 Yusuf and Al Barakaat
Foundation v Council and Case T-315/01, Kadi v
Council and Commission

• Applicants names were included in the list annexed to EC

regulation 881/2002 = > they decided to challenge this
regulation
• The Court of First Instance dismissed these actions:
• MSs are required to comply with the UN Security Council
Resolutions under the terms of the UN Charter, an
international Treaty which prevails over Community law.
• The CJEU may review the legality of the regulation only in
the light of higher-ranking rules of general international law
(jus cogens) which were not infringed in this case…
• Mr Kadi and Al Barakaat then lodged appeals against
those judgments before the Court.
Kadi Saga, Episode 2 – CJEU, 3 Sept. 2008, C-
402/05 P and C-415/05 Kadi and Al Barakaat
International Foundation
• CJEU annuled Regulation 881/2002 to the extent that it
concerns Mr Kadi and Al Barakaat

• First step – Principle : the CJEU must exercise a full

review of the Regulation
• The full review by the Community judicature of the
validity of any act subject to its jurisdiction in the light of
fundamental rights is the expression of a constitutional
guarantee stemming from the EC Treaty.
• The fact that the Community judicature may have to
review the legality of a Community act which seeks to
implement a resolution of the UN Security Council does
not permit derogation from that constitutional guarantee.
 Kadi Saga, Episode 2 – continued

• Second step – CJEU reviewed the compliance of the Regulation

with the rights of the defence

• The effectiveness of judicial review means that the Community

authority is bound to communicate to the person concerned the
grounds on which the measure adversely affecting him/her is based
in order to enable him/her to exercise his/her right to bring an action
• Although the EU authorities were not required to provide a
statement of grounds or hold a hearing of the persons concerned
prior to the inclusion of their names in the list (see need for
surprise), they should nevertheless have done so within a reasonable
period after those measures were enacted
• The appellants’ rights of defence, in particular their right to be heard
were not respected. This breach also resulted in an infringement of
the right to judicial review, since the appellants were likewise unable
to defend their rights in satisfactory conditions before the
Community judicature.
 • Measures taken by Member States and the COM
•
- Request publication of summary of reasons to the UNSC
- On the basis of this document, COM decides to maintain the
listing of Mr. Kadi, but invites him to comment on the
grounds included in the summary of reasons
- The Council adopts a new regulation ordering the freezing of
Mr. Kadi’s funds

• New action for annulment brought by Mr. Kadi

General Court, 30 Sept. 2010, T-85/09

Its task is to ensure a full and rigorous review of the lawfulness
of the regulation.
GC finds that Mr. Kadi’s rights of defence have been observed
only in the most formal and superficial sense and he did not get
access to the evidence against him.

Annul the Regulation in so far as it concerns Mr. Kadi

Grounds for annulment = breach of rights of defence, breach of

right to effective judicial review and unjustified restriction of his
right of property.
 • December 2010

• Appeals brought by the Commission, the Council

and the United Kingdom

Court of Justice (GC), 18 July 2013,

Joined cases C-584/10 P, C-593/10 P
and C-595/10P
The Court dismisses the appeals against the
judgement of the General Court

The EU may not impose restrictive measures on

Mr. Kadi, without evidence to substantiate his
involvement in terrorist activities

• All for nothing ? Mr. Kadi removed from the UN list in 2012.

• Illustration of the interactions between the EU legal order and international law,
as well as the dialogue between the EU institutions and the Court of Justice

• Key judgments for the protection of fundamental rights of persons suspected to

be associated with terrorist groups (important consequences beyond the
individual case of Mr. Kadi).
 2. The EU and the Council of
Europe
• Very particular relationship between them
• Two European regional organisations with some common MS
(all 27 EU MSs are also MS of the CoE)
• Both intervening in the field of criminal law, especially in the
field of judicial cooperation and approximation of legislation,
but without sharing the same philosophy or same principles:
• The CoE is intergovernmental and adopts instruments that are
rather traditional in nature
• The EU is a sui generis organisation, evolving towards more
supranationality and reaching a higher level of legal integration
à specific instruments
• Complementarity between them and interactions, but also
tensions and competition
• Also perceptible in the protection of fundamental rights (ECHR
vs. the EU Charter, case law of the ECtHR and the CJEU).
 C. Cross-fertilisation
• EU Criminal Law not elaborated in isolation from instruments
adopted in other legal orders => mutual influences
• Between EU criminal law and national criminal laws
• Example of trafficking in human beings: new purposes of exploitation
(forced begging and exploitation of forced criminality) inspired from
Belgian and French laws
• Between EU criminal law and international law
• Example of organised crime: UN Convention against Transnational
Organised Crime, and its Protocols: his content is reflected in EU
instruments
• Between EU criminal law and CoE instruments adopted in the
field of criminal law
• Example of Mutual Legal Assistance: CoE 1959 Convention on the
issue and its additional protocols // EU 2000 Convention on mutual
assistance and adoption of EU instruments based on the principle of
mutual recognition
Outline of the course
Part I : Decisional process and other institutional
aspects
1. Chronological introduction
2. Sources of EU criminal law
3. EU criminal law and the other legal orders
4. Judicial control
4. Judicial control
A. “Internal” EU judicial control through the
CJEU
1. Evolution of the CJEU’s competence
2. Brief overview of its case law

B. Judicial control exercised by the national

courts

C. “External” judicial control through the

European Court of Human Rights
 A. “Internal” EU judicial control through
the CJEU

1. Evolution of the CJEU’s Competence

2. Quick overview of the CJEU case-law
• CJEU, 8 April 2014, C-293/12 and C-594/12, Digital
Rights Ireland
• CJEU, 21 Dec. 2016, Tele2 Sverige AB (C-203/15) and
Secretary of State for the Home Department (C-698/15)
• CJEU, 6 October 2020, Joined Cases C-511/18, C-
512/18, C-520/18, La Quadrature du Net
1. Evolution of the CJEU competence

Evolution of the competence of the CJEU to review

EU criminal law => Four stages:

• Before the Treaty of Maastricht: CJ totally

absent/incompetent
• Treaty of Maastricht : CJEU incompetent (but 2
exceptions)
• Treaty of Amsterdam and Nice : CJEU competent but with
important restrictions
• Treaty of Lisbon : full competence but with one exception
Treaty of Maastricht – exceptional CJEU
competence under the 3rd pillar
• Principle = incompetence of the Court (Art L TEU)

• Two exceptions
• Possibility to include limited CJ competence for the
interpretation of the conventions adopted in the 3rd pillar and
for solving any dispute concerning their application (Art. K 3, 2 c)
TEU). => Decision of MSs to include provisions granting CJ
competence used for instance regarding the 1995 Europol
Convention and its Protocols
• Jurisdiction to guarantee the respect of the European
Community competences when affected by an instrument
adopted under the 3rd pillar (Art. M and L TEU).
Treaty of Amsterdam and Nice – extended
CJEU competence under the 3rd pillar
• Principle : competence (Art. 35 TEU)

• But when compared with its competence under EC law,

CJEU competence remains limited
• different types of « reviews » or « actions » were missing,
namely infringement procedure and the action for
compensation, and the action for failure to act. + limited
power to rule on action for annulment
• Jurisdiction to rule on any dispute between MSs regarding
the interpretation or the application of 3rd pillar instruments
and conventions (Art. 35 (7) TEU) submitted to limitations
(Art. 35(5) TEU).
• Optional jurisdiction to give preliminary rulings on the
validity and interpretation of framework decisions, decisions
and the measures implementing them (Art. 35(1-4) TEU)
Limited competence for preliminary rulings à Art. 35 para 1
to 4 TEU
1. The Court of Justice of the European Communities shall have jurisdiction,
subject to the conditions laid down in this article, to give preliminary rulings on
the validity and interpretation of framework decisions and decisions, on the
interpretation of conventions established under this title and on the validity and
interpretation of the measures implementing them.
2. By a declaration made at the time of signature of the Treaty of Amsterdam or
at any time thereafter, any Member State shall be able to accept the jurisdiction
of the Court of Justice to give preliminary rulings as specified in paragraph 1
(Bulgaria, Denmark, Estonia, Ireland, Malta, Poland, Slovakia, and the UK didn’t
accepted the jurisdiction of the Court)
3. A Member State making a declaration pursuant to paragraph 2 shall specify
that either:
(a) any court or tribunal of that State against whose decisions there is no
judicial remedy under national law may request the Court of Justice to give a
preliminary ruling on a question raised in a case pending before it and
concerning the validity or interpretation of an act referred to in paragraph 1
if that court or tribunal considers that a decision on the question is necessary
to enable it to give judgment; or
(b) any court or tribunal of that State may request the Court of Justice to give
a preliminary ruling on a question raised in a case pending before it and
concerning the validity or interpretation of an act referred to in paragraph 1
if that court or tribunal considers that a decision on the question is necessary
to enable it to give judgment.
4. Any Member State, whether or not it has made a declaration pursuant to
paragraph 2, shall be entitled to submit statements of case or written
observations to the Court in cases which arise under paragraph 1.
Important innovation = Urgent preliminary ruling
procedure (procédure préjudicielle d’urgence – PPU)

• Average length of a preliminary ruling procedure = 20 months

• Incompatible with the specificities of the AFSJ (for example when a
person is detained)

• On 20 Dec 2007, adoption of a Council Decision amending the

Statute of the CJ and the rules of procedure of the CJ => new
procedure the PPU applicable from 1st March 2008.
• Applicable either at the request of the referring national court or
tribunal, or exceptionally on the Court’s own motion

• Effect : clear acceleration of the procedure => Few weeks

• Example Melving West case (C-192/12 PPU): request received on
24 April 2012 and judgment given on 28 June 2012.
Treaty of Lisbon - Full CJEU competence in
criminal matters
• Communautarization of the jurisdiction of the CJEU : end of specific
rules in criminal matters & application of “normal” jurisdiction
organised by the TFEU.
=> Considerable extension of the CJ jurisdiction in criminal
matters.

• Changes introduced with the TFEU:

• New procedures applicable: infringement procedure (Art. 258-260 TFEU),
the action for compensation (Art. 268 and 340 TFEU), and the action for
failure to act (Art. 265 TFEU)
• Preliminary rulings governed by Art. 267 TFEU:
• No need for an acceptation/declaration by the MSs & same modalities
throughout the EU territory
• “normal” rules regarding the option/obligation of national courts to make a
request for a preliminary ruling.
• Applicable for all acts adopted on the basis of Title V of Part III of TFEU,
including to acts of the institutions, bodies, offices or agencies of the Union.
• Action for annulment (Art. 263 TFEU):
• Extended to all legislative acts and acts of institutions and bodies of the EU
intended to produce legal effects vis-à-vis third parties.
• Increased number of potential applicants (MSs, European Parliament,
Council, Commission; ECB, Committee of the Regions; individuals with locus
standi)
Temporal application of the full CJEU competence

• Mixed regime applicable between the entry into force of the

Lisbon Treaty (1 Dec. 2009) and the end of the transitional
period (1 Dec. 2014) à Art. 10 Protocol No 36 on transitional
provisions
• For « old acts », namely for those adopted before the entry into
force of the Lisbon Treaty, the jurisdiction of CJEU was still
organised by Art. 35 of the ex-TEU à still a restricted
competence
• For new acts and « old acts » amended by new ones:
jurisdiction of the CJEU organised by the TFEU à no restriction

• Since the end of the transitional period, the jurisdiction

system of the CJ is organised by the TFEU only.
• Complete CJ jurisdiction applies, including to « old acts »
• Key changes such as the availability of infringement actions to
sanction Member States, which did not transpose or did not
transpose correctly the old acts, such as the various mutual
recognition framework decisions => a fresh impetus to the
implementation of these instruments.
Remaining limit of the CJEU competence…

• Art. 276 TFEU is a quasi copy of Art. 35, para 5

• The CJEU has still no jurisdiction to review the validity or

proportionality of operations carried out by the police or
other law enforcement services of a MS or the exercise of
the responsibilities incumbent upon MS with regard to the
maintenance of law and order and the safeguarding of
internal security.
2. Brief overview of CJEU case-law

• A few annulments (especially relating to conflicts of legal

bases) or invalidation decisions by the CJEU

• CJEU judgments interpreting procedural law (victims’

rights and suspects’ rights)

• CJEU judgments in the field of mutual recognition in

criminal matters (especially European arrest warrant but
not only)

• CJEU judgments interpreting the ne bis in idem principle

Annulment decisions

• Annulment proceedings concerning mostly conflicts of

legal basis (discussed earlier)

• Before Lisbon: conflicts of legal bases between 1st and

3rd pillars.

• Since Lisbon ? New types of conflicts of legal bases

Preliminary rulings leading to invalidation
decisions
• Requests for preliminary rulings concerning the validity of
EU law instruments, especially regarding their compliance
with the protection of certain fundamental rights.

• Two examples of requests leading to the invalidation of certain

instruments for violating the right to privacy.

• Illustration of the dialogue between national courts and the CJEU,

and most importantly the importance of granting the right to
make request for preliminary ruling to all national jurisdictions !
CJEU, 8 April 2014, C-293/12 and C-594/12, Digital Rights
Ireland

• Preliminary ruling in validity concerning the Directive

2006/24/EC of 15 March 2006 on data retention
• Questions raised concerning its compatibility with Art. 7
(privacy), 8 (data protection) and 11 (freedom of
expression) of the EU Charter of Fundamental Rights
• CJEU declares the invalidity of the Directive ab initio.
Reasoning in 2 stages :
• Important interference in privacy
• Examination of proportionality of this interference…
• 1st stage

The Directive interferes in a particularly serious manner with

the fundamental rights to respect privacy and the protection
of personal data.

• The data collected may allow “very precise conclusions to be

drawn concerning the private lives of the persons whose
data has been retained, such as the habits of everyday life,
permanent or temporary places of residence, daily or other
movements, the activities carried out, the social
relationships of those persons and the social environments
frequented by them” (para. 27).
• The effects of the interference are “multiplied by the
importance acquired in modern societies by electronic
means of communication (…) and their massive and
intensive use by a very significant proportion of European
citizens in all areas of their private or professional life” (para.
56).
• 2nd stage – The Court examines if the interference
is justified and proportionate

• Satisfies an objective of general interest (fight against serious

crime and public security)
• But the Directive has exceeded the limits imposed by
compliance with the principle of proportionality:
• No clear and precise rules governing its scope and application
nor impose minimum safeguards to guarantee the protection of
personal data against the risk of abuse or any unlawful access
and use of that data (paras. 54 – 69).
• The text covers all subscribers and registered users (para. 56),
without the persons being even indirectly in a situation which
is liable to give rise to criminal prosecutions (para. 58).
• It fails to lay down objective criteria determining the limits of
the access of the competent national authorities to the data and
their subsequent use (para. 60), or limiting the number of
persons authorised to access and use the data (para. 62).
• Finally the data retention period (6 months, that can be
extended to 24 months) does not make distinction between the
categories of data (para. 63), and its determination seems not
based on objective criteria (para. 64).
CJEU, 21 Dec. 2016, Tele2 Sverige AB (C-203/15) and
Secretary of State for the Home Department (C-698/15)

• Sweden and the United Kingdom maintained their national legislation

implementing the Data Retention Directive, previously annulled by the
ECJ, and they allowed generalized and indiscriminate surveillance
• SW and UK courts made requests to the CJEU asking whether these
laws are compatible with EU law and can remain in force
• Relevant EU law – another Directive (Directive 2002/58/EC on the
processing of personal data and the protection of privacy in the electronic
communications sector) which allows a derogation from these norms for
national security interests.

• CJEU answered that this exception must be read in any case in light of
Articles 7 and 8 of the Charter (right to private life and to data
protection) as interpreted in the case Digital Rights Ireland, and that
therefore generalized surveillance is never allowed.
• + Important clarification ! The Court opened the door to a targeted data
retention regime compatible with EU law

https://eutopialaw.com/2017/01/13/case-comment-cases-c-20315-tele2-sverige-ab-v-post-och-
telestyrelsen-and-c-69815-secretary-of-state-for-the-home-department-v-tom-watson-and-others/
 The continuation of the data retention
saga…
CJEU, 6 October 2020, La Quadrature du Net (C-511/18),
French Data Network (C-512/18), OBFG (C-520/18)
• New procedure were brought before the Conseil d’État (Council of State, France)
(La Quadrature du Net and Others, Joined Cases C-511/18 and C-512/18) and
the Cour constitutionnelle (Constitutional Court, Belgium) (Ordre des barreaux
francophones et germanophone and Others, C-520/18)
• concerning the lawfulness of legislation adopted by certain Member States,
• laying down an obligation for providers of electronic
communications services to forward users' traffic data and location
data to a public authority
• or to retain such data in a general or indiscriminate way
• https://curia.europa.eu/jcms/upload/docs/application/pdf/
2020-10/cp200123en.pdf
B. Judicial control performed by
national judges
• Key role of national courts, which are since the early
stages of European integration the common judge for EU
law (“juge communautaire de droit commun”)

• What is their role vis-à-vis EU criminal law ? A clear

evolution
• Before the Lisbon Treaty
• After the Lisbon Treaty
Before Lisbon
• Impact of the specificities of the 3rd pillar => lesser role for the
national Judges/Courts than their role vis-à-vis Community law,
• No direct effect and reduced possibility to refer preliminary questions to
the CJEU

• However step-by-step recognition of a more important role for the

national Judges/Courts in the 3rd pillar
• CJEU, Pupino, 16 June 2005 – Obligation to interpret national law in
conformity with EU law
• Denied by some national Judges/Courts (German Constitutional Court,
decision of 18 July 2005, Mamoun Darkanzali) and applied by others
(Italian Court of cass., 30 January 2007, Ramoci or by the House of
Lords, 28 Febr. 2007, Dabas)
After Lisbon
• Thanks to the communitarisation of the ex-3rd pillar, the role of
national judges/courts has been clearly strengthened

• No more doubts about direct effect, primacy of EU law, and

expanded possibility to refer preliminary questions to the CJEU
- Increased number of references for all types of EU criminal law
instruments
- Key questions addressed by the Court of Justice, such as the impact
of Brexit (Case C-327/18 PPU, 19 September 2018, Minister for Justice
and Equality v RO) or the rule of law crisis (Case C-216/18 PPU, 25 July
2018, Minister for Justice and Equality v LM; C.J.U.E., Gde Ch., arrêt L.
et P., 17 décembre 2020, C-354/20 PPU et C-412/20 PPU) on the
implementation of EU instruments
 C. External judicial control by the
European Court of Human Rights
(ECtHR)
• MSs are also parties to the European Convention on Human
Rights, and are thus subject to the jurisdiction of the ECtHR
• Quid of their liability for human rights violations caused by their
implementation of EU law?

• Before the Treaty of Lisbon:

• Indirect control over EU acts (not direct claims against EU law, but claims
against MS acts which implemented EU Law)
• ECtHR, 18 Feb. 1999, Matthews vs UK: MS liability for violation of FR can be
engaged after the transfer of a national competence to an international
organization.
• ECtHR, 30 June 2005, Bosphorus vs Ireland: MS liability for violation of FR can
be engaged even if MS are implementing EU secondary law and have some
discretion in implementing EU law obligations (= distinction EU acts granting
discretion/no discretion).
• The rationale is that there is a rebuttable presumption that the EU (and the EU
instruments implemented) respects Fundamental Rights
! This presumption was recently rebutted in the case ECtHR, 25 March 2021,
Bivolaru and Moldovan v. France ! (in the context of EAWs)
• After the Lisbon Treaty
• Obligation for the EU to accede to the ECHR (Art. 6, para 2 TEU)
Accession would have had several consequences => external
control:
• Indirect actions – Directed against acts of the MSs on the basis of
the fact that they implemented problematic EU law provisions
• Direct actions – individual actions against EU acts themselves.
• Negotiations leading to a draft agreement on the EU accession to
the ECHR => CJEU, 18 Dec. 2014, Opinion 2/13: the specific
characteristics of the EU legal order must be taken into account
& the draft agreement incompatible with the EU treaties
• Particular attention paid to the principle of mutual trust between
MSs (§§ 190 – 194): requiring that MS check if the others respect
FR would upset the underlying balance of the EU and undermine
the autonomy of EU law.
• Follow-up à ECtHR, 23 May 2016, Avotiņš vs Latvia
• When applying EU law, and especially mutual recognition
instruments, MSs are subject to the EU supervisory mechanism
affording a level of protection equivalent to the one afforded by
the Convention (§109) à the Bosphorus presumption applies, and
if there is no manifest deficiency, MSs cannot be held responsible
for violation of FR in executing states.
Conclusions
• Important evolution over time:

• EU criminal law: initially developed under the 3rd pillar

à move towards a more « normal » regime
• Decisional process: specific instruments and specific
procedure à normal EU instruments and ordinary legislative
procedure (with some exceptions)
• Judicial control: limited competence of the CJEU to full
jurisdiction
• EU criminal law not developed in isolation from other
sources of criminal law à relations with international,
regional and national sources and cross-fertilisation.