DROI-O-615

EU Criminal Law

Part I : Decisional process and other

institutional aspects
(Chronology, Sources of EU criminal law,
other legal orders, judicial control)
 Reminder of the previous lesson
1970’s

70’s-1993 1980’s

Schengen agreements

1993-1999 (the
third pillar of
Chronology Maastricht Treaty) An area of freedom,
The Treaty of security and justice
Amsterdam
Decision making
process + institutional Division of Maastrict
third pillar
aspects
1999-2009 Integration of Schengen
acquis into EU law
The Treaty of Nice

From 2009
onwards
 1st stage : 70’s - 1993
• The origins: cooperation in criminal matters of
a pure intergovernmental nature, developped
between EC MS (outside the EC institutional
framework)…
• 1980’s: further development of cooperation as
compensatory measures to the abolition of
check at internal borders = > Schengen
cooperation
2nd stage : 1993-1999: the third pillar of the
Maastricht Treaty
• TEU and its 3 pillars = Title VI of TEU devoted to JHA
cooperation in general

Þ important step! First time the treaty established a Union

competence in the field of Justice and Home Affairs (JHA)

Þ Involvement of EU institutions but clear intergovernmental

predominance…
- no right of initiative for the Commission
- Decision-making process still of an intergovernmental nature
- The legal tools to be used were of rather traditional nature
and not very effective
 3rd stage : from Amsterdam to Nice
(1999-2009)
• The Treaty of Amsterdam

- Introduced a new general and genuine objective : an area of freedom,

security and justice (AFSJ)

- Division of the Maastricht 3rd pillar into 2 parts => ‘communitarization’ of

the areas of immigration, asylum, borders and civil cooperation while
cooperation in criminal matters remains in the third pillar

- Integration of Schengen acquis into EU law

- => strengthening of the legal tools under the third pillar even if the
decision-making process remains intergovernmental + strengthening of
the role of EU institutions
 1970’s

70’s-1993 1980’s

Schengen agreements

1993-1999 (the
third pillar of
Chronology Maastricht Treaty) An area of freedom,
The Treaty of security and justice
Amsterdam
Decision making
process + institutional Division of Maastrict
third pillar
aspects
1999-2009 Integration of Schengen
acquis into EU law
The Treaty of Nice

From 2009
onwards
+ 1st multiannual programme of work:
Tampere conclusions

=> European Council of Tampere – Oct 1999

Þ First European Summit entirely devoted to JHA
cooperation!!
Þ Conclusions = JHA programme for 5 years
Þ Opened new prospects (« golden age of JHA
cooperation » - see essential role of A. Vitorino): in
criminal matters: principle of mutual recognition,
Eurojust…
 B. The Treaty of Nice
• No important change in criminal matters,
except:
– Explicit provision related to the establishment
of Eurojust (amended version of Art. 31 TEU)
– Amendment of provisions dealing with
enhanced cooperation (threshold of 8 MS
minimum).
+ 2nd multiannual programme of work: The
Hague Programme (2004)

=> « Follow up » to Tampere : new multiannual

programme of work for 5 years.
=> Main criticism concerning the balance between
freedom, security and justice… (strengthening of police
cooperation – see the availability principle) – See deep
impact of 9/11…
 Assessment of this 3rd phase
• As regards the quantity: Incredible increase of acts =>
Impossible to go through all adopted instruments: possible to
classify them into 3 groups:
q Improvement of mechanisms of cooperation : 2000 MLA
Convention and 2001 Protocol + 10 FD implementing the
principle of mutual recognition
q Approximation of criminal laws (particularly of substantive
penal law) : more than 10 FD (counterfeiting of money
(2001), money laundering (2001), cybercrime (2001),
terrorism (2002 + 2008), drug trafficking (2004), trafficking
of HB (2002), child pornography (2003), corruption (2003)…)
q Establishment/improvement of European actors : Eurojust
(2002 and 2008 decisions), 2008 EJN decision, new Europol
decision)
+ Development of the external dimension of the European
penal area (Art. 24/38 TUE agreements…)

.
• As regards the quality : compared to the previous
phases, real change: adoption of acts
representative of the concept of a “European
criminal justice area”:
- Principle of mutual recognition (launched at the
Cardiff Summit in 1998 and in the Tampere
Programme of 1999) and its first implementation,
i.e. the 2002 FD on the EAW
- Joint investigative teams (2000 MLA Convention +
Framework Decision of 13 June 2002 on Jits)
- Some “diversification” of goals (see prevention and
rights of victims…)
 However…
– resistance to the building of a real “European area for
criminal justice”: see difficult negotiations of some MS
initiatives, delays in adopting the necessary internal
transposing measures (including the 2002 FD on EAW)
– resistance to correct or reduce the general imbalance
between the sword and shield functions of European
criminal law (see especially, the difficulties encountered to
develop other concerns than fight against crime – for
example rejection of the proposal of FD on procedural
guarantees)
IV. Since 2009: the Treaty of Lisbon

A. The Treaty of Lisbon

B. 2 multiannual programmes of work:
o the Stockholm Programme
o and the « Post Stockholm Programme » (or
Strategic guidelines of the European Council
of June 2014)
 1970’s

70’s-1993 1980’s

Schengen agreements

1993-1999 (the
third pillar of
Chronology Maastricht Treaty) An area of freedom,
The Treaty of security and justice
Amsterdam
Decision making Division of Maastrict
process + third pillar
institutional aspects
1999-2009 Integration of Schengen
acquis into EU law
The Treaty of Nice

From 2009
onwards
 A. The Treaty of Lisbon

1) The difficult birth of the new Treaty

2) Significant institutional changes
3) Substantive changes
4) The price to pay = extension of variable
geometry
A. The difficult birth of the New Treaty :
– 2001 Laeken Declaration => Convention on the future
of the EU => Draft Treaty establishing a Constitution
for Europe presented in July 2003.
– IGC 2004 => Treaty establishing a Constitution for
Europe (adopted by the European Council on 17 and
18 June 2004 and signed on 29 Oct. 2004)
– Spring 2005 : negative referendums in France and in
the Netherlands
– Spring/Summer 2007 : under the German Presidency
and in the context of the celebrations of the 50th
anniversary of the Rome Treaty, the European Council
of 22 June 2007 agreed on a new IGC mandate
– IGC 2007 => Lisbon Treaty adopted by the European
Council of 18 Oct. 2007 and signed on 13 Dec. 2007
– 13 June 2008 : negative referendum in Ireland
– 2 October 2009 : positive referendum in Ireland
– 1st December 2009 : entry into force of the Lisbon
Treaty !!
B. Significant institutional changes
All JHA cooperation centralized in Title V of Part 3 of the
Treaty on the Functioning of the EU (TFEU = ex TEC) (Art.
67 to 89)
• Chapter 1: general provisions
• Chapter 2: policies on border checks, asylum and
immigration
• Chapter 3: judicial cooperation in civil matters
• Chapter 4: judicial cooperation in criminal matters
• Chapter 5: police cooperation
=> “Revolution”, i.e abolition of the 3rd pillar, which is an
enormous change for police cooperation and judicial
cooperation in criminal matters => Communitarisation
continues…
 => Extension of the EC method
• Decision taking:
- Extension of the ordinary legislative procedure => Co-decision
procedure:
• Co-decision with EP (Art 294 TFEU)
• QMV (qualifying majority voting)
But with few exceptions (for example EPPO/operational police
cooperation).
• Standardised, common instruments => Directives, regulations,
which are more effective than the legal tools of the ex-3rd pillar:
- directives (may have direct effect but under the conditions
provided for by the ECJ in its jurisprudence, namely being
clear, unconditional, sufficiently precise and limited to
vertical ascending direct effect, which means from the
individuals towards the MS)
- regulations (directly applicable).
• Extension of the ECJ competence (protocol on transitional provisions)
• EC basic principles (primacy, etc.)
 But exceptions
• Right of initiative: Commission still shares its right
of initiative with MS for chapters 4 and 5 (Art. 76
TFEU: ¼ of MS)
• Special legislative procedures:
– Chapter 4 : unanimity with EP consent (Art 82§2d; 83§1,3d indent; 86; + emergency
brake procedure”: Art. 82, § 3 and 83, § 3)
– Chapter 5 : unanimity with EP consent : Art. 87 § 3 (operational police cooperation)
and Art. 89
• Exception to the full competence of the ECJ see Art.
276 TFEU: “In exercising its powers regarding the provisions of
Chapters 4 and 5 of Title V of Part Three relating to the area of
freedom, security and justice, the Court of Justice of the European
Union shall have no jurisdiction to review the validity or
proportionality of operations carried out by the police or other law-
enforcement services of a Member State or (to rule on) the exercise
of the responsibilities incumbent upon Member States with regard to
the maintenance of law and order and the safeguarding of internal
security ».
 C. Substantive changes
In chapters 4 and 5: see especially:
- principle of mutual recognition (Art. 67 and 82
TFEU)
- Clearer and extended legal bases for
approximation of criminal laws, especially in the
field of procedures (see Art. 82, para 2 and Art. 83
TFEU)
- concerning EU judicial actors:
§ strengthening of Eurojust (Art. 85 TFEU =>
See poss. of conferring binding powers as
to initiation of criminal investigations
§ prospect of a European Public Prosecutor
(Art. 86 TFEU)
- regarding police cooperation: specific chapter 5,
with provisions on operational and non-operational
cooperation and also on Europol.
D. The price to pay = extension of
variable geometry
q Extension of the specific status of 3 MS:
üExtension of DK opt out: logical because of
extension of communautarization => is out of all
new texts, with very limited possibility to opt in,
except if Schengen related (Protocol 22)
üUK and IRL are out of all new texts, with much
broader possibility to opt in (Protocol 21).
üOpt out for UK for « old » instruments (Chapter 4
and 5 – protocol 36, art. 10)

! Since 1st January 2021 EU-UK law enforcement and

judicial cooperation in criminal matters is now governed
by the EU-UK Trade and Cooperation Agreement (TCA)
(see part III of the TCA)
 + Opt out for UK for « old » instruments
Art. 10 of Protocol 36 on transitional provisions, paras
4 and 5:
At the latest six months before the expiry of the transitional period (1st May 2014),
the UK may notify to the Council that it does not accept, with respect to the old
acts, the new powers of the institutions (especially of the CJEU). In case the UK
has made that notification, all old acts cease to apply to it as from the date of
expiry of the transitional period (as from 1st December 2014).
The UK may, at any time afterwards, notify the Council of its wish to participate in
old acts which have ceased to apply to it. In that case, the relevant provisions
of the Protocol on the Schengen acquis integrated into the framework of the
European Union or of the Protocol on the position of the United Kingdom and
Ireland in respect of the area of freedom, security and justice, as the case may
be, shall apply, which means that its new participation will be submitted to an
authorization by the Council. When acting under the relevant Protocols, the
Union institutions and the United Kingdom shall seek to re-establish the widest
possible measure of participation of the United Kingdom in the acquis of the
Union in the area of freedom, security and justice without seriously affecting
the practical operability of the various parts thereof, while respecting their
coherence.
Available here :
https://www.yumpu.co
m/en/document/read/3
754349/eu-cels-uk-opt-
out-crim-law
B. 2 multiannual programmes of work

qthe Stockholm Programme (2009)

qand the « Post Stockholm Programme » (or
Strategic guidelines of the European Council
of June 2014) => Incredible lack of
ambitions…
q new strategic guidelines adopted since
then…
- Strategic guidelines with a general scope (e.g. ‘EU
Security Union Strategy for the period 2020-2025’)
- Sectoral strategic guidelines (e.g. EU counter-terrorism
agenda, 2020)
 Assessment of the first 10 years
q Strengthening of cooperation: see 3 new texts of mutual
recognition (EPO and EIO and regulation on freezing and
confiscation)
q Approximation of criminal law: new “success story” of the EU
criminal justice area?
ü Approximation of procedural criminal law: 7 directives
(on procedural guarantees and victims’ rights)
ü Approximation of substantive criminal law: a lot of
new texts as well! (e.g. new proposal for a directive on
combating violence against women and domestic
violence)
q Concerning actors: new legal bases for Eurojust (Art. 85),
Europol (Art. 88) and Regulation on EPPO (Art. 86)
• Excellent developments for the balance
between shield and sword functions of EU
criminal law…

• BUT in spite of communautarization,

resistance still remain (see EPPO…)
 Brief conclusion
1/ From an institutional point of view
Þ evolution from pure intergovernmentalism towards
‘communitarization’

2/ Concerning the objectives

Þ Evolution : real goal = to develop an area of freedom security and
justice

3/ Concerning the substance of the achievements

Þ from classical cooperation towards deeper integration,
representative of the notion of « EU criminal justice area » and
some prospects opening the way for a genuine common « EU
territory in criminal matters» (?) : see EPPO – Art 86 TFEU
4 successive stages
70’s-1993: the origins: cooperation
developed among the EC MS
outside the EC institutional
framework
1993-1999: the third pillar of the
Maastricht Treaty (signed 7/02/92-
entered into force 01/11/93)
1999-2009: the Amsterdam Treaty
(signed 2/10/1997 - entered into
force 01/05/99) + the Nice Treaty
(signed 26/02/01 – entered into
force 01/02/03)
From 2009 onwards : the Treaty of
Lisbon (signed 13/12/2007 and
entered into force 1/12/2009)
Institutional/decisional Substance of the
process cooperation
Pure intergovernmentalism Very traditional, marked by
Þ Predominant role for national national sovereignty
administrations and JHA ministers
Þ Unanimity
Þ EC institutions absent
Clear intergovernmental predominance Still very traditional but some
Þ Decisional role of JHA Council more ambitious instruments
Þ Unanimity adopted
Þ Other EC institutions’ role but
much more limited than in EC law
- Crossing of Change => Establishment of a
borders/migrations/asylum/ real AREA!
judicial cooperation in the civil field Move towards a deeper legal
=> Communautarized integration….
- Cooperation in criminal matters,
still in the third pillar, with a clear
intergovernmental predominance
Complete communautarization – Confirmation of the move
Abolition of the third pillar!! towards a real AREA + New
prospects (e.g. EPPO)