Ebook Eu Criminal Law 2Nd Edition Valsamis Mitsilegas Online PDF All Chapter

EU Criminal Law 2nd Edition Valsamis
Mitsilegas
Visit to download the full and correct content document:
https://ebookmeta.com/product/eu-criminal-law-2nd-edition-valsamis-mitsilegas/
More products digital (pdf, epub, mobi) instant
download maybe you interests ...
Limits to EU Powers: A Case Study of EU Regulatory

Criminal Law (Hart Studies in European Criminal Law)
Jacob Öberg
https://ebookmeta.com/product/limits-to-eu-powers-a-case-study-
of-eu-regulatory-criminal-law-hart-studies-in-european-criminal-
law-jacob-oberg/
Surveillance And Privacy In The Digital Age: European,

Transatlantic And Global Perspectives 1st Edition
Valsamis Mitsilegas
https://ebookmeta.com/product/surveillance-and-privacy-in-the-
digital-age-european-transatlantic-and-global-perspectives-1st-
edition-valsamis-mitsilegas/
EU Procedural Law (Oxford European Union Law Library)

2nd Edition Koen Lenaerts
https://ebookmeta.com/product/eu-procedural-law-oxford-european-
union-law-library-2nd-edition-koen-lenaerts/
Criminal Law: The Basics, 2nd Edition Jonathan. Herring
https://ebookmeta.com/product/criminal-law-the-basics-2nd-
edition-jonathan-herring/
Criminal Law Paul Bergman
https://ebookmeta.com/product/criminal-law-paul-bergman/
EU Copyright Law: A Commentary 2nd Edition Irini

Stamatoudi And Paul Torremans
https://ebookmeta.com/product/eu-copyright-law-a-commentary-2nd-
edition-irini-stamatoudi-and-paul-torremans/
International Criminal Law in a Nutshell Nutshells 2nd

Edition David Stewart
https://ebookmeta.com/product/international-criminal-law-in-a-
nutshell-nutshells-2nd-edition-david-stewart/
EU Administrative Law 3rd Edition Paul Craig
https://ebookmeta.com/product/eu-administrative-law-3rd-edition-
paul-craig/
EU External Relations Law: Text, Cases and Materials

2nd Edition Ramses A Wessel
https://ebookmeta.com/product/eu-external-relations-law-text-
cases-and-materials-2nd-edition-ramses-a-wessel/
PREFACE
This book comes more than a decade after the publication of its first edition,
EU Criminal Law, in 2009. Since then, a lot has changed. The entry into force of the
Lisbon Treaty has led to the normalisation, or as I argue constitutionalisation, of EU
criminal law, moving from the pre-Lisbon intergovernmental institutional framework
to the ordinary constitutional framework of EU law. It can be said that EU criminal law
has since come of age. The EU has acted on a number of new and important areas of
competence – legislating on defence rights and the establishment of a European Public
Prosecutor’s Office (EPPO) are key examples in this regard. Moreover, the operation of
EU criminal law on the ground, most notably through the application of the principle
of mutual recognition in criminal matters and in particular through the emblematic
European Arrest Warrant system, has raised a number of questions on the relationship
between EU criminal law and the citizen, the protection of fundamental rights and the
rule of law, leading to a growing and important body of case law in the Court of Justice
of the European Union, and increasingly in the European Court of Human Rights and
in national courts. In this manner, EU criminal law questions become essentially consti-
tutional questions which necessitate answers in order to define the fundamental rights
and rule of law benchmarks in the European Union and its Member States. And of
course, Brexit has happened. This second edition takes full account of these develop-
ments. The number of chapters has doubled in size compared to the first edition (there
are 12 chapters in this edition). All chapters in the first edition have been substantially
revised and expanded. There are now three chapters devoted to external relations
(Chapters 10–12), including a chapter specifically devoted to Brexit. The chapter on
mutual recognition is now accompanied by three new chapters on defence rights, the
rights of victims, and EU criminal law and EU citizenship (Chapters 5–7). The chapter
on agencies now includes a detailed analysis of the establishment of the EPPO. And
there is now a specific chapter on ne bis in idem and conflicts of jurisdiction.
I would like to take this opportunity to thank a number of friends and colleagues for
their support and input in developing this second edition, and my ideas and arguments
on EU criminal law more broadly. Sinead Moloney and her colleagues at Hart Publish-
ing have shown unwavering support and patience during the completion of this volume.
I would also like to thank them for their stellar work and commitment towards the
development of the Hart Studies on European Criminal Law series, which has succeeded
in publishing cutting-edge scholarship in the field and, like the first edition of this book
and hopefully this edition, has contributed to defining EU criminal law as a distinct and
dynamic academic discipline. I would also like to thank Jon Lloyd for outstanding copy-
editing on this very demanding second edition – his care and attention to the clarity and
consistency of the manuscript have been exemplary.
vi Preface
This book further owes a lot to the work, ideas and commitment of academic,
scholarly and policy communities working in the field of EU criminal law. The European
Criminal Law Academic Network (ECLAN) is a prime example of such an academic
community. I have benefited enormously from my interactions with colleagues in
ECLAN and would like to thank my colleagues and friends on the Management
Committee, including Pedro Caeiro and my ECLAN fellow coordinators Katalin Ligeti
and Anne Weyembergh, for their generosity, spirit and unparalleled insights into the
field. Ideas and arguments in this volume have also developed through interactions and
dialogue with scholars and students in a number of institutions across Europe, which
have emerged as hubs for advanced and innovative thinking in the field of EU crimi-
nal law. I would like to take this opportunity to salute colleagues at the Universities of
Bologna, Catania, Coimbra, Ferrara, Luxembourg, Paris (Paris 1 Panthéon Sorbonne),
Thessaloniki, ULB, Uppsala and the European University Institute for their engagement
with EU criminal law, and I thank them for the opportunities given to me to present and
discuss ideas and arguments with outstanding colleagues and students. I have also bene-
fited from discussions with colleagues at the European Commission’s Expert Group on
EU Criminal Policy.
Last, but not least, I would like to pay tribute to the positive impact my interaction
with students and early career researchers has had on the development of this volume.
The time since the first edition of this volume saw the launch of the annual PhD confer-
ence of ECLAN, which gives scholars and research students the opportunity to discuss
cutting-edge issues in EU criminal law. I have benefited enormously from organising
and participating in these events and engaging with the ideas of early career researchers,
who are arguably the future of EU criminal law. I would also like to thank in particular
my Queen Mary LLM students on EU criminal law, discussions with whom always help
to focus the mind, and the outstanding cohort of Queen Mary PhD students working in
the field. Clementina Salvi provided excellent editorial support during the finalisation
of the manuscript. It is an honour for me that two of my former PhD students – now
alumni with outstanding career trajectories who have already established their own stel-
lar reputations in the field – have worked with me to develop parts of this volume:
Dr Fabio Giuffrida, now Policy Officer, Directorate-General for Justice and Consum-
ers at the European Commission, who co-authored the chapters on agencies and
ne bis in idem with me, and Dr Niovi Vavoula, now Lecturer in Migration and Security
at Queen Mary, who co-authored the chapter on databases with me and provided excel-
lent research assistance during earlier stages of the development of this volume. The
usual disclaimers, of course, apply. The volume takes into account developments up to
August 2021.
Valsamis Mitsilegas
London, August 2021
TABLE OF CASES
ECJ, CJEU
A v Staatsanwaltschaft Offenburg (Case C-9/16), ECLI:EU:C:2017:483,

21 June 2017 .................................................................................................................... 522
A and Others (Staatsanwaltschaft Wien) (Case C-584/19),
ECLI:EU:C:2020:1002, 8 December 2020 ................................................................... 251
Achughbabian v Prefet du Val-de-Marne (Case C-329/11),
[2011] ECR I-12695, ECLI:EU:C:2011:807, 6 December 2011 .................................. 92
Advocaten voor de Wereld VZW v Leden van de Ministerraad
(Case C-303/05) ECLI:EU:C:2006:552, A-G’s opinion,
12 September 2006 .................................................................................................204, 206
Advocaten voor de Wereld VZW v Leden van de Ministerraad
(Case C-303/05) [2007] ECR I-3633, ECLI:EU:C:2007:261,
3 May 2007 ................................................................................................ 11, 39, 201, 202,
203–6, 222, 321, 323
Afton Chemical Ltd v Secretary of State for Transport (Case C-343/09),
[2011] 1 CMLR 16, ECLI:EU:C:2010:419, 8 July 2010 .............................................. 564
AK and Others v Sąd Najwyższy, CP v Sąd Najwyższy and DO v
Sąd Najwyższy (Independence of the Disciplinary Chamber of
the Supreme Court) (Case C-585/18, C-624/18 and C-625/18)
ECLI:EU:C:2019:982, 19 November 2019................................................................... 237
Åklagaren v Hans Åkerberg Fransson (Case C-617/10)
ECLI:EU:C:2013:105, 26 February 2013 ....................................... 35, 36, 46, 47, 182–3,
185, 187, 193, 288, 318
Amsterdam Bulb BV v Produktschap voor Siergewassen
(Case 50/76) [1977] ECR 137, [1977] 2 CMLR 218,
ECLI:EU:C:1977:13, 2 February 1977 ........................................................................... 93
Aranyosi (Pál) and Căldăraru (Robert) v Generalstaatsanwaltschaft
Bremen (Joined Cases C-404/15 and C-659/15 PPU) [2016] QB 921,
[2016] 3 CMLR 13, 42 BHRC 551, ECLI:EU:C:2016:198
(Grand Chamber) 5 April 2016 ....................................... 17, 219, 223–5, 226, 227, 228,
230, 231, 234, 235, 236, 237, 238, 239,
240, 241, 242, 247, 251, 252, 284, 704
Ardic (Case C-571/17 PPU) ECLI:EU:C:2017:1026, 22 December 2017 ..................... 292
ASBL ‘Ligue des Droits Humains’ (Case C-817/19) (pending) ...................................... 592
Asociaţia ‘Forumul Judecătorilor din Romania’ et al (Joined Cases C-83/19,
C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19)
ECLI:EU:C:2021:393, 18 May 2021 ...........................................................................83–4
xii Table of Cases
Associacao Sindical dos Juizes Portugueses v Tribunal de Contas

(ASJP) (Case-64/16) [2018] 3 CMLR 16, [2018] CEC 1216,
ECLI:EU:C:2018:117, 27 February 2018 ............................................ 236, 238, 240, 247
AY (Case C-268/17) ECLI:EU:C:2018:602, 25 July 2018 ................................................ 160
Balaž (Case C-60/12) ECLI:EU:C:2013:733, 14 November 2013................................... 310
Berlusconi, Adelchi, Dell’Utri and Others (Joint Cases C-387/02,
C-391/02 and C-403/02) [2005] ECR I-3565, [2005] 2 CMLR 32,
ECLI:EU:C:2005:270 (Grand Chamber), 3 May 2005 ........................ 24, 31, 94–5, 122
Bickel and Franz (Case C-274/96) [1998] ECR I-7637, [1999]
1 CMLR 348, ECLI:EU:C:1998:563, 24 November 1998 ............................................ 92
Bob-Dogi (Case C-241/15) [2016] 1 WLR 4583, [2017] 3 CMLR 40,
ECLI:EU:C:2016:385, 1 June 2016 ................................................................ 17, 243, 248
Bonda (Case C-489/10) ECLI:EU:C:2011:845, A-G’s opinion,
15 December 2011.......................................................................................................... 182
Bonda (Case C-489/10) ECLI:EU:C:2012:319, 5 June 2012 ............................. 181–2, 183,
185, 193, 278
Bouchereau (Pierre Roger) (Case 30/77) [1978] QB 732, [1977] ECR 1999,
[1977] 2 CMLR 800, ECLI:EU:C:1977:172, 27 October 1977 .................................. 344
Bourquain (Case C-297/07) [2008] ECR I-9425, ECLI:EU:C:2008:708,
11 December 2008.............................................................................157, 158, 165–6, 170
Bundesrepublik Deutschland (Notice Rouge d’Interpol) (Case C-505/19),
[2021] 3 CMLR 26, ECLI:EU:C:2021:376, 12 May 2021 ...................................154, 158
Bundesrepublik Deutschland (Case C-222/20) (pending) ............................................. 592
Calfa (Case 48/96) [1999] ECR I-11, [1999] 2 CMLR 1138,
ECLI:EU:C:1996:6, 19 January 1999 .............................................................................. 91
Casati (Guerrino) (Case C-203/80) [1981] ECR 2595, ECLI:EU:C:1981:261,
11 November 1981 ............................................................................................ 91, 92, 298
Commission v Council (Case C-176/03) ECLI:EU:C:2005:311,
A-G’s opinion, 26 May 2005.......................................................................................... 102
Commission v Council (Case C-176/03) (Environmental Crime)
[2005] ECR I-7879, [2005] 3 CMLR 20, ECLI:EU:C:2005:542,
13 September 2005 ................................................................ 49, 100–102, 103, 104, 106,
111, 115, 117–8, 131
Commission v Council (Case C-91/05) [2008] ECR I-3651,
[2008] 3 CMLR 5, ECLI:EU:C:2008:288, 20 May 2008 ............................................. 111
Commission v Council (Case C-440/05) (Ship-Source Pollution)
ECLI:EU:C:2007:393, A-G’s opinion, 28 June 2007 .......................... 108, 110–112, 113
Commission v Council (Case C-440/05) (Ship-Source Pollution) [2007]
ECR I-9097, [2008] 1 CMLR 22, ECLI:EU:C:2007:625 (Grand Chamber),
23 October 2007 ............................................................................ 49, 108–109, 110–112,
113, 115, 117
Commission v Council (Titanium Dioxide) (Case C-300/89) [1991]
ECR I-2867, [1999] 3 CMLR 359, ECLI:EU:C:1991:244,
11 June 1991 ....................................................................................................... 57, 61, 308
Commission v Council (the Philippines case) (Case C-377/12),
ECLI:EU:C:2014:1903 (Grand Chamber), 11 June 2014 .......................................... 696
Table of Cases xiii
Commission v European Central Bank (Case C-11/00) [2003] ECR I-7417,

ECLI:EU:C:2003:395, 10 July 2003 .............................................................................. 420
Commission v European Investment Bank (Case C-15/00) [2003]
ECR I-7281, ECLI:EU:C:2003:396, 10 July 2003 ........................................................ 420
Commission v Greece (Case C-68/88) [1989] ECR 2965, [1991]
1 CMLR 31, ECLI:EU:C:1989:339, 21 September 1989 ................................. 93–4, 419
Commission v The Netherlands (Case C-50/06) [2007] ECR I-4383,
[2007] 3 CMLR 8, ECLI:EU:C:2007:325, 7 June 2007 ............................................... 343
Commission v Poland (Case C-791/19 R) ECLI:EU:C:2020:277,
order of 8 April 2020 ...................................................................................................... 237
Commission v SGL Carbon AG (Case C-301/04 P) [2006] ECR I-5915,
[2006] 5 CMLR 15, ECLI:EU:C:2006:432, (29 June 2006)........................................ 278
Commission v Violetti and Others (Case T-261/09 P) EU:T:2010:215,
20 May 2010 .................................................................................................................... 430
Commission and Parliament v Council (Case C-137/12)
ECLI:EU:C:2013:675, 22 October 2013....................................................................... 696
Covaci (Gavril), Criminal Proceedings against (Case C-216/14)
ECLI:EU:C:2015:305, A-G’s opinion, delivered on
7 May 2015 ............................................................................................. 261, 285, 286, 288
Cowan v Trésor Public (Case 186/87) [1989] ECR 195, [1990]
2 CMLR 613, ECLI:EU:C:1989:47, 2 February 1989 .................................. 91, 298, 299
Czech Republic v European Parliament and Council (Case C-482/17)
ECLI:EU:C:2019:1035 (Grand Chamber), 3 December 2019 ......................... 48–9, 63
Da Silva Jorge (Joao Pedro Lopes) (Case C-42/11) ECLI:EU:C:2012:151,
A-G’s opinion, 20 March 2012 ...................................................................................... 328
Da Silva Jorge (Joao Pedro Lopes) (Case C-42/11) ECLI:EU:C:2012:517
(Grand Chamber), 5 September 2012 ........................................................ 32, 33, 327–8
DB v Consob (Case C-481/19) ECLI:EU:C:2021:84, 2 February 2021 ......................... 121
Dell’Orto (Giovanni) (Case C-467/05) [2007] ECR I-5557, [2007]
3 CMLR 29, ECLI:EU:C:2007:395, 28 June 2007 ....................................................... 314
Deutsche Post and Germany v Commission (Joined Cases C-463/10 P
and C-475/10 P) [2011] ECR I-9639, ECLI:EU:C:2011:656,
13 October 2011 ............................................................................................................. 429
Di Puma and Zecca (Joined Cases C-596/16 and C-597/16)
ECLI:EU:C:2018:192, 20 March 2018................................................................... 189–90
Digital Rights Ltd v Minister for Communications, Marine and Natural
Resources and Others and Kärntner Landesregierung, Michael
Seitlinger, Christof Tschohl and Others (Joined Cases C-293/12
and C-594/12, UE:C:2013:845) A-G’s opinion, 12 December 2013 ........................ 563
Digital Rights Ltd v Minister for Communications, Marine and Natural
Resources and Others and Kärntner Landesregierung, Michael
Seitlinger, Christof Tschohl and Others (Joined Cases C-293/12
and C-594/12) [2015] QB 127, [2014] 3 CMLR 44, ECLI:EU:C:2014:238
(Grand Chamber), 8 April 2014 .................................... 390, 501, 509, 513, 562–8, 569,
570, 571, 572, 573, 574, 575,
578, 586, 608, 673, 687
xiv Table of Cases
DK (Case C-653/19) ECLI:EU:C:2019:1024, 28 November 2019 .................................. 279

Dorobantu (Case C-128/18) ECLI:EU:C:2019:857,
15 October 2019 ................................................................... 227, 229, 230, 232, 233, 235
Dworzecki (Case C-108/16 PPU) ECLI:EU:C:2016:346, 24 May 2016................... 17, 292
Dzivev (Petar) (Case C-310/16) ECLI:EU:C:2018:623, A-G’s opinion,
25 July 2018 ....................................................................................................................... 44
Dzivev (Petar) (Case C-310/16) ECLI:EU:C:2019:30, 17 January 2019 .................. 44, 289
‘EEA Case’. See United Kingdom v Council (Case C-431/11)
El-Dridi (alias Soufi) (Case C-61/11 PPU) [2011] ECR I-03015,
[2011] 3 CMLR 6, ECLI:EU:C:2011:268, 28 April 2011 ............................................. 92
Environmental Crime. See Commission v Council (Case C-176/03)
EP (Case C-467/18) ECLI:EU:C:2019:765, 19 September 2019 ..................................... 266
Eredics and Sapi (Case C-205/09) [2010] ECR I-10231,
ECLI:EU:C:2010:623, 21 October 2010....................................................................... 314
European Commission v European Parliament and Council (Case C-43/12)
ECLI:EU:C:2013:534, A-G’s opinion, 10 September 2013 .......................................... 51
European Commission v European Parliament and Council (Case C-43/12)
ECLI:EU:C:2014:298 (Grand Chamber), 6 May 2014 .................................. 50–52, 129
European Commission v Kadi (Joined Cases C-584/10 P,
C-593/10 P and C-595/10 P) ECLI:EU:C:2013:176, (Kadi II)
A-G’s opinion, 19 March 2013 ..................................................................................651–2
European Commission v Kadi (Joined Cases C-584/10 P, C-593/10 P
and C-595/10 P) [2014] 1 CMLR 24, [2014] All ER (EC) 123,
ECLI:EU:C:2013:518, (Kadi II) 18 July 2013 .................................. 452, 649–50, 652–5
European Parliament v Council and Commission (Cases C-317/04
and C-318/04) [2006] ECR I-4721, [2006] 3 CMLR 9,
ECLI:EU:C:2006:346, 30 May 2006 .....................................................................104, 660
European Parliament v Council (Case C-130/10) ECLI:EU:C:2012:472
(Grand Chamber), 19 July 2012 ...............................................................................54–61
European Parliament v Council (Case C-658/11) ECLI:EU:C:2014:2025,
24 June 2014 ..................................................................................................................63–7
European Parliament v Council (Joined Cases C-317/13 and C-679/13)
ECLI:EU:C:2015:223, 16 April 2015 ............................................................................ 258
16 April 2015................................................................................................................... 258
14 June 2016 ...................................................................................................................... 63
Facebook Ireland and Schrems (Case C-311/18) ECLI:EU:C:2019:1145
(Data Protection Commissioner v Facebook Ireland Ltd and
Maximillian Schrems; ‘Schrems II’), A-G’s opinion,
19 December 2019............................................................................................. 681–8, 689
Facebook Ireland and Schrems (Case C-311/18) [2021] 1 WLR 751,
[2021] 1 CMLR 14, ECLI:EU:C:2020:559 (Data Protection
Commissioner v Facebook Ireland Ltd and Maximillian Schrems;
‘Schrems II’), 16 July 2020 ...................................................................... 385, 681, 688–92
Table of Cases xv
Federal Republic of Germany v Telekom Deutschland GmbH

(Case C-794/19) (in progress) ...................................................................................... 585
Filev and Osmani (Case C-297/12) ECLI:EU:C:2013:569, 19 September 2013............. 92
Forster v Hoofddirectie van de Informatie Beheer Groep (Case C-158/07)
18 November 2008 ......................................................................................................... 326
Foto-Frost v Hauptzollamt Lubeck-Ost (Case 314/85) [1987] ECR 4199,
[1988] 3 CMLR 57, ECLI:EU:C:1987:452, 22 October 1987 .................................... 452
Franchet and Byk v Commission of the European Communities
(Case T-48/05) EU:T:2008:257, 8 July 2008 ............................................................430–1
Gambino and Hyka (Case C-38/18) ECLI:EU:C:2019:628, 29 July 2019 ..................... 304
Garlsson Real Estate and Others (Case C-537/16) ECLI:EU:C:2018:193,
20 March 2018 .................................................................................................. 188–9, 190,
191, 193, 194
Gasparini and Others (Case C-467/04) ECLI:EU:C:2006:406, A-G’s
opinion, 15 June 2006 ................................................................................... 155, 169, 170
Gasparini and Others (Case C-467/04) [2006] ECR I-9199, [2007]
1 CMLR 12, ECLI:EU:C:2006:610, 28 September 2006 ........................... 155, 161, 192
Gavanozov I (Case C-324/17) ECLI:EU:C:2019:312, A-G’s opinion
11 April 2019................................................................................................................... 251
Gavanozov I (Case C-324/17) ECLI:EU:C:2019:892, 24 October 2019 ........................ 251
Gavanozov II (Case C-852/19) ECLI:EU:C:2021:346, A-G’s opinion
29 April 2021................................................................................................................... 253
GD v Commissioner of the Garda Siochana, Minister for Communications,
Energy and Natural Resources, Attorney General (Case C-140/20)
(in progress) .................................................................................................................... 585
Generálna prokuratura Slovenskej republiky v XY (Case C-919/19)
ECLI:EU:C:2021:650, A-G’s opinion, 3 June 2021 ..................................................... 330
Generalstaatsanwaltschaft Berlin (Extradition vers l’Ukraine)
(Case C-398/19) ECLI:EU:C:2020:1032, 17 December 2020 ...........................335, 336
Gestoras Pro Ammnistia v Council (Case C-354/04 P) [2007]
ECR I-5179, ECLI:EU:C:2007:115, 27 February 2007................................................. 11
Gestoras Pro Amnistia v Council (Case T-333/02) (not published) ......................... 15, 16
Giovanardi (Case C-79/11) ECLI:EU:C:2012:448, 12 July 2012 .................................... 314
Google Spain and Google (Case C-131/12) [2014] QB 1022,
[2014] 3 CMLR 50, ECLI:EU:C:2014:317, 13 May 2014 ........................................... 683
Gözütok (Huseyn) and Brügge (Klaus), Criminal Proceedings againt
(Cases C-187/01, C-385/01) ECLI:EU:C:2002:516, A-G’s opinion,
19 September 2002 .................................................................................................170, 192
Gözütok (Huseyn) and Brügge (Klaus), Criminal Proceedings againt
(Cases C-187/01, C-385/01) [2003] ECR I-1345, ECLI:EU:C:2003:87,
11 February 2003 ..................................................................... 153–4, 155, 156, 158, 161,
164, 168, 169–170
Greek Maize Case. See Commission v Greece (Case C-68/88)
Grundza (Case 289/15) ECLI:EU:C:2017:4, 11 January 2017 ........................... 202, 206–7
xvi Table of Cases
Gueye and Sanchez (Joined Cases C-483/09 and C-1/10) [2011] ECR I-8263,
[2012] 1 WLR 2672, ECLI:EU:C:2011:583, 15 September 2011 ......................313, 314
HK v Prokuratuur (Case C-746/18) ECLI:EU:C:2020:18, A-G’s opinion,
21 January 2020 .............................................................................................................. 583
HK v Prokuratuur (Case C-746/18) ECLI:EU:C:2021:152, 2 March 2021 ................... 583
International Association of Independent Tanker Owners (Intertanko)
v Secretary of State for Transport (Case C-308/06) [2008] ECR I-4056,
[2008] 2 Lloyds Rep 260, [2008] 3 CMLR 9, ECLI:EU:C:2008:312,
3 June 2008 ..................................................................................................................... 205
International Management Group v Commission (Case T-110/15)
EU:T:2016:322 425, 26 May 2016 .............................................................................425–6
IR (Case C-649/19) ECLI:EU:C:2021:75, 28 January 2021 ............................................. 285
Ireland v European Parliament and Council of the European Union
(Case C-301/06) [2009] ECR I-593, [2009] 2 CMLR 37,
ECLI:EU:C:2009:68, 10 February 2009 ....................................................................... 562
Jeremy F (Case C-168/13 PPU) ECLI:EU:C:2013:358, 30 May 2013 ............. 17, 201, 215
JR and YC (Joined Cases C-566/19 PPU and C-626/19 PPU)
ECLI:EU:C:2019:1077, 12 December 2019 ................................................................. 248
Jyske Bank Gibraltar Ltd v Administración del Estado (Case C-212/11)
ECLI:EU:C:2012:607, A-G’s opinion ........................................................................... 551
JZ v Prokuratura Rejonowa Łodź –Środmieście (Case C-294/16 PPU)
ECLI:EU:C:2016:610, 28 July 2016 ........................................................................ 17, 201
Kadi (Yassin Abdullah) v Commission (Case T-85/09) [2010]
ECR II-5177, [2011] 1 CMLR 24, ECLI:EU:T:2010:418,
30 September 2010 ......................................................................................................... 650
Kadi (Yassin Abdullah) v Council and Commission (Case T-315/01)
[2005] ECR II-3649, ECLI:EU:T:2005:332, 21 September 2005 ........ 19, 20, 452, 645,
647, 650, 651
Kadi (Yassin Abdullah) and Al Barakaat International Foundation
v Council and Commission (Kadi I) (Joined Cases C-402/05 P
and C-415/05) [2008] ECR I-6351, [2008] 3 CMLR 41,
ECLI:EU:C:2008:461, 3 September 2008 ............................. 53–4, 59, 61, 62, 452, 643,
645–8, 649, 650, 654
Kadi II. See European Commission v Kadi (Joined Cases C-584/10 P,
C-593/10 P and C-595/10 P)
Katz (Győrgy) v Sós (István Roland) (Case C-404/07) [2008]
ECR I-7607, ECLI:EU:C:2008:553, 9 October 2008 ..................................... 314–5, 318
Kol v Land Berlin (Case C-285/95) [1997] ECR I-3069, [1997]
3 CMLR 1175, ECLI:EU:C:1997:280, 5 June 1997 ..................................................... 341
Kolev and Others (Case C-612/15) ECLI:EU:C:2018:392,
5 June 2018 ................................................................................................ 31–2, 43, 44, 46,
285, 288, 289
Kolpinghuis Nijmegen BV (Case 80/86) [1987] ECR 3969,
[1989] 2 CMLR 18, ECLI:EU:C:1987:431, 8 October 1987 ........................................ 95
Kossowski (Piotr) (Case C-486/14) ECLI:EU:C:2016:483 (Grand
Chamber), 29 June 2016 ....................................................................... 156, 158, 159, 170
Table of Cases xvii
Kovalkovas (Case C-477/16 PPU), ECLI:EU:C:2016:861,

10 November 2016 .......................................................................................... 17, 243, 245
Kozlowski (Case C-66/08) ECLI:EU:C:2008:253, A-G’s view,
28 April 2008................................................................................................................... 322
Kozlowski (Case C-66/08) [2008] ECR I-06041, [2008] 3 CMLR 26,
ECLI:EU:C:2008:437 (Grand Chamber), 17 July 2008...................... 17, 321, 322, 323,
324, 325, 326,
327, 328
Kraajenbrink (Case C-367/05) [2007] ECR I-6619,
ECLI:EU:C:2007:444, 18 July 2007 ..........................................................................161–2
Kreil v Bundesrepublik Deutschland (Case C-285/98) [2000]
ECR I-69, [2002] 1 CMLR 36, ECLI:EU:C:2002:2, 11 January 2000 ....................... 338
Kretzinger (Case C-288/05) [2007] ECR I-6441, [2007] 3 CMLR 43,
ECLI:EU:C:2007:441, 18 July 2007 .................................................162–3, 164, 165, 167
L and P (Openbaar Ministerie) (Indépendance de l’autorité judiciaire
d’émission) (Joined Cases C-354/20 PPU and C-412/20 PPU)
ECLI:EU:C:2020:925, A-G’s opinion, 12 November 2020 ................................240, 241
L and P (Openbaar Ministerie) (Indépendance de l’autorité judiciaire
d’émission) (Joined Cases C-354/20 PPU and C-412/20 PPU)
ECLI:EU:C:2020:1033, 17 December 2020 ........................................ 237, 238, 239, 240
Land Baden-Württemberg v Tsakouridis (Case C-145/09)
ECLI:EU:C:2010:322, A-G’s opinion, 8 June 2010 ...................................... 337–40, 341
La Quadrature du Net and Others v Premier Ministre and Others
(Joined Cases C-511/18, C-512/18 and C-520/18) [2021] 1 WLR 4457,
[2021] 1 CMLR 31, ECLI:EU:C:2020:791 (Grand Chamber),
6 October 2020 ................................................................... 564, 575–6, 577–82, 584, 720
Land Baden-Württemberg v Tsakouridis (Case C-145/09) [2010]
ECR I-11979, [2011] 2 CMLR 11, ECLI:EU:C:2010:708,
23 November 2010 ............................................................................336–7, 340, 342, 344
Lanigan (Case C-237/15 PPU) [2016] QB 252, [2016] 1 CMLR 16,
ECLI:EU:C:2015:474 (Grand Chamber), 16 July 2015.............................................. 215
Leifer and Others (Case C-83/94) [1995] ECR I-3231, ECLI:EU:C:1995:329,
17 October 1995 ............................................................................................................. 338
Leymann and Pustovarov (Case C-388/08 PPU) [2008] ECR I-8993,
ECLI:EU:C:2008:669, 1 December 2008 .............................................................210, 323
M (Case C-398/12) ECLI:EU:C:2014:1057, 5 June 2014........................ 156, 157, 158, 163
Mantello (Gaetano) (Case C-261/09) [2010] ECR I-11477,
ECLI:EU:C:2010:683, 16 November 2010.......................................... 156, 163, 200, 210
MAS and MB (Case C-42/17) ECLI:EU:C:2017:936 (Taricco II),
5 December 2017............................................................................................ 31, 39, 41–3,
44, 94, 288
Melki (Aziz) and Abdeli (Sélim) (Joined Cases C-188/10 and C-189/10)
[2010] ECR I-5667, [2011] 3 CMLR 45, [2010] ECLI:EU:C:2010:363
(Grand Chamber), 22 June 2010 .................................................................................. 522
Melloni v Ministerio Fiscal (Case C-399/11) ECLI:EU:C:2012:600,
A-G’s opinion, 2 October 2012 .............................................................................214, 215
xviii Table of Cases
Melloni v Ministerio Fiscal (Case C-399/11) [2013] QB 1067,

26 February 2013 .............................................................................. 35, 40, 46, 83, 212–3,
214, 215, 217, 218, 219,
220, 232, 233, 286
Menci (Case C-524/15) ECLI:EU:C:2017:667, A-G’s opinion,
12 September 2017 ......................................................................................................... 187
Menci (Case C-524/15) [2018] 3 CMLR 12, ECLI:EU:C:2018:197,
20 March 2018 .......................................................................................... 185–6, 187, 188,
189, 190, 191, 194
Miasto Łowicz and Prokurator Generalny (Cases C-558/18 and
C-563/18) ECLI:EU:C:2020:234, 26 March 2020....................................................... 238
Milev (Case C-310/18 PPU) ECLI:EU:C:2018:732, 19 September 2018 ...................... 284
Minister for Justice and Equality v LM (Defaillances du systeme judiciaire)
(Case-216/18 PPU) ECLI:EU:C:2018:586, 25 July 2018 ......................................235–6,
240, 241, 246, 247
Minister for Justice and Equality v RO (Case C-327/18 PPU)
ECLI:EU:C:2018:733, 19 September 2018 .................................................................. 719
Ministerio Fiscal (Case C-207/16) ECLI:EU:C:2018:300, A-G’s
opinion, 3 May 2018 ...................................................................................................... 575
Ministerio Fiscal (Case C-207/16) ECLI:EU:C:2018:788 (Grand Chamber),
2 October 2018 ..................................................................................574–5, 580, 581, 683
Miraglia (Case C-469/03) [2005] ECR I-2009, [2005] 2 CMLR 6,
ECLI:EU:C:2005:156, 10 March 2005................................ 154, 155, 156, 158, 159, 161
ML (Generalstaatsanwaltschaft, – Conditions of Dentention in
Hungary) (Case C-220/18 PPU) ECLI:EU:C:2018:589,
25 July 2018 ................................................................................................ 230–2, 233, 235
MM (Case C-414/20), ECLI:EU:C:2021:4, 13 January 2021 .......................................... 248
Möllendorf and Möllendorf-Niehuus (Case C-117/06) [2007] ECR I-8361,
[2008] 1 CMLR 11, ECLI:EU:C:2007:596, 11 October 2007 .................................... 648
Moro (Case C-646/17) ECLI:EU:C:2019:489, 13 June 2019 ........................................... 264
NJ (Case C-489/19 PPU) ECLI:EU:C:2019:849, 9 October 2019 .................................. 248
NS v Secretary of State for the Home Department and ME and Others
v Refugee Applications Commissioner and Minister for Justice, Equality
and Law Reform (Joined Cases C-411/10 and C-493/10) [2011]
ECR I-13905, ECLI:EU:C:2011:865 (Grand Chamber), 21 December 2011 ......... 207
Nunes de Matos (Case C-186/98) [1999] ECR I-4883, [1999] 2 CMLR 1403,
ECLI:EU:C:1999:376, 8 July 1999 .................................................................................. 94
Oesterreichischer Rundfunk (Case C-195/06) [2007] ECR I-8817,
ECLI:EU:C:2007:613, 18 October 2007....................................................................... 292
OG (Public Prosecutor’s Office of Lübeck) and PI (Public Prosecutor’s
Office of Zwickau) (Joined Cases C-508/18 C-82/19 PPU)
ECLI:EU:C:2019:337, A-G’s opinion, 30 April 2019..........................................245, 246
Table of Cases xix
OG (Public Prosecutor’s Office of Lübeck) and PI (Public Prosecutor’s

Office of Zwickau) (Joined Cases C-508/18, C-82/19 PPU)
ECLI:EU:C:2019:456 (Grand Chamber), 27 May 2019................... 211, 239, 240, 241,
244–5, 246, 247,
248–9, 595, 703
Ognyanov (Atanas) (Case C-554/14) [2017] QB 732, [2017]
2 WLR 1249, ECLI:EU:C:2016:835, 8 November 2016 .................................. 33–4, 201
Okrazhna prokuratura – Varna (Criminal Proceedings v DR
(Case C-845/19) and TS (Case C-863/19)), ECLI:EU:C:2021:229,
OMPI (Organisation des Modjahedines du peuple d’Iran v Council)
v Council (Case T-228/02) [2006] ECR II-4665,
ECLI:EU:T:2006:384, 12 December 2006 ...................................................... 16, 23, 650
Onuekwere v Secretary of State for the Home Department
(Case C-378/12) [2014] 1 WLR 2420, [2014] 2 CMLR 46,
ECLI:EU:C:2014:13, 16 January 2014.......................................................................... 347
Openbaar Ministerie, Criminal Proceedings against AZ (Case C-510/19)
[2021] 2 CMLR 6, [2021] CEC 1059, ECLI:EU:C:2020:953,
24 November 2020 ......................................................................................................... 251
Opinion 1/15 of the Court on the agreement between Canada and
the European Union on the transfer and processing of Passenger
Name Record data (PNR) ECLI:EU:C:2016:656, 8 September 2016...............385, 390
Opinion 1/15 on the EU–Canada PNR Agreement, ECLI:EU:C:2017:592,
26 July 2017 ........................................................................................... 543, 578, 586, 587,
590, 591, 599, 718
Ordre des Barreaux Francophones et Germanophone v Council
(Case C-305/05) [2007] ECR I-5305, [2007] 3 CMLR 28,
ECLI:EU:C:2007:383, 26 June 2007 ............................................................................. 584
Orsi and Baldetti (Joined Cases C-217/15 and C-350/15) ECLI:EU:C:2017:264,
5 April 2017 ..................................................................................................................... 160
Österreichischer Rundfunk (Joined Cases C-465/00, C-138/01 and
C-139/01) [2003] ECR I-4989, [2003] 3 CMLR 10, ECLI:EU:C:2003:294,
20 May 2003 .................................................................................................................... 687
Özcelik (Case C-453/16 PPU) ECLI:EU:C:2016:783, A-G’s opinion,
19 October 2016 ............................................................................................................. 244
Özcelik (Case C-453/16 PPU) ECLI:EU:C:2016:860,
10 November 2016 .......................................................................................... 17, 243, 244
Öztürk (Case C-373/02) [2004] ECR I-3605, ECLI:EU:C:2004:232,
28 April 2004................................................................................................................... 246
Parliament v Council (Case C-540/03) [2006] ECR I-5769, [2006]
3 CMLR 28, ECLI:EU:C:2006:429, 27 June 2006 ...............................................204, 205
People’s Mojahedin Organization of Iran v Council (PMOI II)
(Case T-256/07) [2008] ECR II-3019, [2009] All ER (EC) 1221,
ECLI:EU:T:2008:461, 23 October 2008 ....................................................................... 651
xx Table of Cases
Petruhhin, (Case C-182/15) [2017] QB 299, [2017] 1 CMLR 28,

ECLI:EU:C:2016:630, 6 September 2016 ............................................... 331–2, 333, 334
PF (Prosecutor General of Lithuania) (Case C-509/18) ECLI:EU:C:2019:457
(Grand Chamber) 27 May 2019 ................................................................................... 595
Pfeiffer et al v Deutsches Rotes Kreuz (Cases C-397/01 to C-403/01) [2004]
ECR I-8835, [2005] 1 CMLR 44, ECLI:EU:C:2004:584, 5 October 2004 ........... 22, 23
‘Philippines Case’. See Commission v Council (Case C-377/12)
PI (Case C-648/20 PPU) ECLI:EU:C:2021:187, 10 March 2021 .................................... 251
PI v Oberburgermeisterin der Stadt Remscheid (Case C-348/09)
ECLIE:EU:C:2012:123, A-G’s opinion, 6 March 2012 .................................. 336, 340–2
PI v Oberburgermeisterin der Stadt Remscheid (Case C-348/09)
22 May 2012 ...........................................................................................................115, 340,
342–6, 347, 348
Piotrowski (Case C-367/16) ECLI:EU:C:2018:27, 23 January 2018 .............................. 202
Pisciotti (C-191/16) ECLI:EU:C:2018:222, 10 April 2018 ..................... 331, 332, 333, 335
Placanica, Palazzse, and Sorricchio (Cases C-338/04, C-359/04
and C-360/04) [2007] ECR I-1891, [2007] 2 CMLR 25,
ECLI:EU:C:2007:133, 6 March 2007 .............................................................................. 91
Poltorak (Case C-452/16, PPU) ECLI:EU:C:2016:858, 10 November 2016 ........... 17, 243
Popławski (Daniel Adam) (Case C-579/15) ECLI:EU:C:2017:503,
29 June 2017 ....................................................................................................... 33–34, 202
Popławski II (Case C-573/17) ECLI:EU:C:2019:530, 24 June 2019 ......................... 34, 202
Powszechny Zakład Ubezpieczeń na Życie SA (Case C-617/17)
ECLI:EU:C:2018:976, A-G’s opinion, 29 November 2018 ........................................ 164
Powszechny Zakład Ubezpieczeń na Życie SA (Case C-617/17)
ECLI:EU:C:2019:283, 3 April 2019 .............................................................................. 164
Presidenza del Consiglio dei Ministri (Case C-129/19) ECLI:EU:C:2020:566,
16 July 2020 ..................................................................................................................... 299
‘Prestige Case’ (2013) 10 Eurojust News 14 ...................................................................... 173
Privacy International v Secretary of State for Foreign and Commonwealth
Affairs and Others (Case C-623/17) ECLI:EU:C:2020:5, AG’s opinion,
15 January 2020 .............................................................................................................. 576
Privacy International v Secretary of State for Foreign and Commonwealth
Affairs and Others (Case C-623/17) ECLI:EU:C:2020:790
(Grand Chamber), 6 October 2020......................................................... 576–7, 584, 720
Prosecutor General of Lithuania (Case C-509/18 PF)
ECLI:EU:C:2019:457, 27 May 2019 ............................................................................. 245
Pupino (Maria) (Case C-105/03) ECLI:EU:C:2004:712, A-G’s opinion,
11 November 2004 ........................................................................................................... 22
Pupino (Maria) (Case C-105/03) [2006] QB 83, [2005] ECR I-5285,
[2005] 2 CMLR 63, ECLI:EU:C:2005:386, 16 June 2005............. 11, 14, 19, 20–23, 24,
33, 39, 94, 312–3, 315, 318
Table of Cases xxi
Queen (on the Application of M and Others v Her Majesty’s Treasury

(Case C-340/08) [2010] ECR I-3913, ECLI:EU:C:2010:232,
29 April 2010................................................................................................................... 648
Radu (Ciprian Vasile) (Case C-396/11) ECLI:EU:C:2012:648, A-G’s
opinion, 18 October 2012 ................................................................................ 39, 207–11
Radu (Ciprian Vasile) (Case C-396/11) ECLI:EU:C:2013:39,
29 January 2013 ............................................................................................... 210–11, 213
Raugevicius (Case C-247/17) ECLI:EU:C:2018:898, 13 November 2018 ........ 331, 333–4
RH (Case C-8/19 PPU) ECLI:EU:C:2019:110, Order of the Court,
12 February 2019 ............................................................................................................ 279
Richardt and Les Accessoires Scientifiques SNC (Case C-367/89)
4 October 1991 ............................................................................................................... 338
Rothley v European Parliament (Case C-167/02P) [2004] ECR I-3149,
[2004] 2 CMLR 11, ECLI:EU:C:2004:193, 30 March 2004 ....................................... 427
Ruska Federacija (Case C-897/19 PPU) ECLI:EU:C:2020:262, 2 April 2020 ......... 77, 335
Rutili v Ministre de l’interieur (Case 36/75) [1975] ECR 1219, [1976]
1 CMLR 140, ECLI:EU:C:1975:137, 28 October 1975 .............................................. 343
Sagor (Case C-430/11) ECLI:EU:C:2012:777, 6 December 2012..................................... 92
Schrems (Maximilian) v Data Protection Commissioner
(Case C-362/14) [2016] QB 527, [2016] 2 CMLR 2, ECLI:EU:C:2015:650
(Schrems I), 6 October 2015 .......................................... 385, 390, 490, 564, 671–4, 681,
687, 688, 690, 692, 719, 720
Schrems II. See Facebook Ireland and Schrems (Case C-311/18)
Scialdone (Case C-574/15) ECLI:EU:C:2018:295, 2 May 2018 ........................................ 94
Segi v Council (Case C-355/04 P) [2007] ECR I-1657, ECLI:EU:C:2007:116,
27 February 2007 .............................................................................................................. 11
Segi v Council (Case T-338/02) [2004] ECR II-1647, [2007] 1 CMLR 8,
ECLI:EU:T:2004:171, 7 June 2004............................................................................ 15, 16
Ship-Source Pollution Case. See Commission v Council (Case C-440/05)
Sigma Orionis v Commission (Case T-48/16) EU:T:2018:245, 3 May 2018 ........427, 433
Siragusa v Regione Sicilia (Case C-206/13) ECLI:EU:C:2014:126................................... 47
Sison v Council (Case T-47/03) [2007] ECR I-1233, [2007] 2 CMLR 17,
ECLI:EU:C:2007:75, 1 February 2007 ........................................................ 15, 19, 20, 23
Skanavi and Chryssanthakopoulos (Case C-193/94) [1996] ECR I-929,
[1996] 2 CMLR 372, ECLI:EU:C:1996:70, 29 February 1996 ............................ 91, 299
Sleutjes (Case C-278/16), ECLI:EU:C:2017:757, 12 October 2017 ................................ 285
Spain v Eurojust (Case C-160/03) [2005] ECR I-2077, ECLI:EU:C:2005:168,
15 March 2005 .......................................................................................................... 15, 409
Spasic (Case C-129/14 PPU) ECLI:EU:C:2014:739, A-G’s view,
2 May 2014 ...................................................................................................................... 167
Spasic (Case C-129/14 PPU) ECLI:EU:C:2014:586, 27 May 2014 ............... 166, 167, 168,
169, 170, 186,
194, 332
xxii Table of Cases
Sut (Case C-514/17) ECLI:EU:C:2018:1016, 13 December 2018................................... 201

Taricco and Others (Case C-105/14) ECLI:EU:C:2015:293, A-G’s opinion,
30 April 2015..................................................................................................................... 38
Taricco and Others (Case C-105/14) ECLI:EU:C:2015:555,
8 September 2015 ................................................................................... 31, 35–42, 44, 47,
94, 288, 448
Taricco II. See MAS and MB (Case C-42/17)
Tele2 Sverige AB v Post-och telestyrelsen and Secretary of State for
the Home Department v Tom Watson, Peter Brice and Geoffrey
Lewis (Joined Cases C-203/15, C-698/15) ECLI:EU:C:2016:572,
A-G’s opinion, 19 July 2016...................................................................................571, 573
Tele2 Sverige AB v Post-och telestyrelsen and Secretary of State for the
Home Department v Tom Watson, Peter Brice and Geoffrey Lewis
(Joined Cases C-203/15, C-698/15) ECLI:EU:C:2016:970
(Grand Chamber), 21 December 2016 ............................... 501, 509, 513, 568–73, 574,
575, 576, 577, 578, 579,
580, 582, 586, 683, 720
TG, UF (Case C-603/19) ECLI:EU:C:2020:774, 1 October 2020 ................................... 303
Tillack v Commission of the European Communities
(Case T-193/04R) [2004] ECR II-3575, [2004] 3 CMLR 44,
ECLI:EU:T:2004:311, 15 October 2004 ...............................................................427, 428
Tillack v Commission of the European Communities (Case T-193/04)
[2006] ECR II-3995, [2007] 1 CMLR 5, ECLI:EU:T:2006:292,
4 October 2006 ..................................................................................... 279, 379, 425, 427,
428–30, 431, 454
Tillack v Commission of the European Communities
(Case C-521/04 P(R)) [2005] ECR I-3103, [2005] 2 CMLR 37,
ECLI:EU:C:2005:240, 19 April 2005 ....................................................................427, 428
Toshiba Corporation and Others (Case C-17/10) ECLI:EU:C:2011:552,
A-G’s opinion, 8 September 2011 ................................................................................. 164
Toshiba Corporation and Others (Case C-17/10), ECLI:EU:C:2012:72
(Grand Chamber), 14 February 2012 .......................................................................... 164
TR (Generalstaatsanwaltschaft Hamburg) (Case C-416/20 PPU),
ECLI:EU:C:2020:1042, 17 December 2020 ................................................................. 290
Tranca (Ianos), Reiter (Tanja), Opria (Ionel) (Joined Cases
Cases C-124/16, C-188/16, and C-213/16) ECLI:EU:C:2017:228,
22 March 2017 ........................................................................................................285, 292
Tupikas (Case C-270/17 PPU) ECLI:EU:C:2017:628, 10 August 2017 ......................... 292
Turansky (Case C-491/07) [2008] ECR I-11039, ECLI:EU:C:2008:768,
22 December 2008..................................................................................... 155–6, 158, 159
‘Turkey Case’. See United Kingdom v Council (Case C-81/13)
United Kingdom v Council (Case C-482/08) [2010] ECR I-10413,
ECLI:EU:C:2010:631, 26 October 2010....................................................................... 507
United Kingdom v Council (Case C-431/11) ECLI:EU:C:2013:589,
26 September 2013 (‘EEA Case’) .................................................................................. 696
Table of Cases xxiii
United Kingdom v Council (Case C-81/13) ECLI:EU:C:2014:2449,

18 December 2014 (‘Turkey Case’) .............................................................................. 696
UY v Staatsanwaltschaft Offenburg (Case C-615/18) ECLI:EU:C:2020:376,
14 May 2020 .................................................................................................................... 264
Van Esbroeck (Case C-436/04) ECLI:EU:C:2005:630, A-G’s opinion,
20 October 2005 ............................................................................................................. 161
Van Esbroeck (Case C-436/04) [2006] ECR I-2333, [2006] 3 CMLR 6,
ECLI:EU:C:2006:165, 9 March 2006 .............................................................. 151, 160–1,
162, 170, 171
Van Straaten v the Netherlands and Italy (Case C-150/05)
ECLI:EU:C:2006:381, A-G’s opinion, 8 June 2006 ..................................................... 154
Van Straaten v the Netherlands and Italy (Case C-150/05) [2006]
ECR I-9327, ECLI:EU:C:2006:614, 28 September 2006 ............................... 154–5, 161
Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen
(Joined Cases C-92/09 and C-93/09) [2010] ECR I-11063,
ECLI:EU:C:2010:662 (Grand Chamber), 9 November 2010 .................................... 564
Wolzenburg (Dominic),(Case C-123/08) ECLI:EU:C:2009:183,
Wolzenburg (Dominic) (Case C-123/08) [2009] ECR I-9621, [2010]
1 CMLR 33, ECLI:EU:C:2009:616, 6 October 2009 ............................ 322–4, 325, 326,
328, 333
X (Case C-60/02) [2004] ECR I-651, [2004] ETMR 37, ECLI:EU:C:2004:10,
7 January 2004 .................................................................................................................. 95
X (European arrest warrant – Double criminality) (Case C-717/18),
ECLI:EU:C:2020:142, 3 March 2020 ............................................................................ 206
X (Mandat d’arret europeen – Ne bis in idem) (Case C-665/20 PPU)
ECLI:EU:C:2021:339, 29 April 2021 ....................................................................163, 168
XD (Case C-625/19 PPU) ECLI:EU:C:2019:1078 ............................................................ 249
Yusuf (Ahmed Ali) and Al Barakaat International Foundation v Council
and Commission (Case T-306/01) [2005] ECR II-3533, [2005]
3 CMLR 49, ECLI:EU:T:2005:331, 21 September 2005 ...................................... 19, 645
ZB (Case C-627/19 PPU) ECLI:EU:C:2019:1079, 12 December 2019 .......................... 249
Zdziaszek (Case C-271/17 PPU) ECLI:EU:C:2017:629, 10 August 2017 ..................... 292
ECHR
A and B v Norway (App Nos 24130/11 and 29758/11) [2016] ECHR 987,
(2017) 65 EHRR 4, 19 ITL Rep 868, 15 November 2016 ............................ 184–5, 187,
189, 190, 191
Advisory opinion concerning the recognition in domestic law of a
legal parent-child relationship between a child born through a
gestational surrogacy arrangement abroad and the intended
mother – Requested by the French Court of Cassation
(Request no P16-2018-001), [2019] ECHR 281, 10 April 2019) .............................. 194
xxiv Table of Cases
AT v Luxembourg (App No 30460/13) [2015] ECHR 367, 9 April 2015 ..............265, 266
Avotiņš v Latvia (App No 17502/07) (2017) 64 EHRR 2, [2016]
ECHR 440, (Grand Chamber) 23 May 2016 ............................................. 219, 226, 228
Ben Faiza v France (App No 31446/12) [2018] ECHR 153, 8 February 2018 .............. 580
Big Brother Watch and Others v UK (App Nos 58170/13, 62322/14
and 24960/15) [2018] ECHR 722, (Grand Chamber) Judgment
of 13 September 2018 ............................................................................................577, 585
Bivolaru and Moldovan v France (App Nos 40324/16 and 12623/17)
judgment of 25 March 2021 .......................................................................................... 228
Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v Ireland
(App No 45036/98) (2005) 42 EHRR 1, [2005] ECHR 440
(Grand Chamber) 30 June 2005 ................................................................................... 226
Camilleri v Malta (App No 42931/10) (2013) 57 EHRR 32, [2013]
ECHR 281, 22 January 2013 ......................................................................................... 179
Centrum for Rattvisa v Sweden (App No 35252/08) [2021] ECHR 440,
(Grand Chamber) 25 May 2021 ................................................................................... 585
Chernov v Ukraine (App No 16432/10) [2020] ECHR 895, 10 December 2020 ......... 163
Coeme and Others v Belgium (App Nos 32492/96, 32547/96, 32548/96,
33209/96 and 33210/96) [2000] ECHR 250, ECHR 2000-VI..................................... 38
Dayanan v Turkey (App No 7377/03) [2009] ECHR 2278, 13 October 2009 .............. 263
El Haski v Belgium (App No 649/08) (2013) 56 EHRR 31, [2012] ECHR 2019,
25 September 2012 ......................................................................................................... 281
Engel and Others v the Netherlands (App Nos 5100/71, 5101/71, 5102/71,
5354/72, 5370/72) Series A no 22, (1979-80) 1 EHRR 647, [1976]
ECHR 3, 8 June 1976 ........................................................................... 181, 182, 183, 185,
188, 275, 278
Gäfgen v Germany (App No 22978/05) (2011) 52 EHRR 1, 28 BHRC 463,
[2010] Crim LR 865, [2010] ECHR 759, 1 June 2010................................................ 281
Glantz v Finland (App No 37394/11) [2014] STC 2263, [2014] ECHR 495,
20 May 2014 .................................................................................................................... 163
Grande Stevens v Italy (App No 18640/10) [2014] ECHR 230,
4 March 2014 ................................................................................................. 183, 185, 187
Haralampiev v Bulgaria (App No 29648/03), 24 April 2012........................................... 213
Kapetanios et al v Greece (App Nos 3453/12, 42941/12 and 9028/13)
[2015] ECHR 453, 30 April 2015 ................................................................................. 163
Khodorkovskiy v Russia (App No 5829/04) [2011] ECHR 841, 31 May 2011 ............. 279
Leander v Sweden (App No 9248/81) (A/116) (1987) 9 EHRR 433,
[1987] ECHR 4, 26 March 1987 ................................................................................... 563
McFarlane v Ireland (App No 31333/06) (2011) 52 EHRR 20, [2010]
ECHR 1272, (10 September 2010) ................................................................................. 46
Medenica v Switzerland (App No 20491/92) [2001] ECHR 395, 14 June 2001 ........... 213
Mihalache v Romania (App No 54012/10) [2019] ECHR 530, 8 July 2019 ..........153, 158
Murray v United Kingdom (App No 18731/91) (1996) 22 EHRR 29,
[1996] ECHR 3, (Grand Chamber) 8 February 1996 ........................................280, 281
Table of Cases xxv
Muršić v Croatia (App No 7334/13) (2017) 65 EHRR 1, 42 BHRC 439,

[2016] ECHR 927, (Grand Chamber) 20 October 2016 ........................................... 234
Nada v Switzerland (App No 10593/08) (2013) 56 EHRR 18, 33 BHRC 453,
[2012] ECHR 1691, 12 September 2012...................................................................... 654
Nykanen v Finland (App No 11828/11) [2014] ECHR 494, 20 May 2014 ................... 163
OAO Neftyanaya Kompaniya Yukos v Russia (App No 14902/04) (2012)
54 EHRR 19, 14 ITL Rep 229, [2011] ECHR 1342, 20 September 2011 ................... 38
Osterlund v Finland (App No 53197/13) [2015] ECHR 150, 10 February 2015 ......... 163
Pakelli v Germany (App No 8398/78) Series A No 64, (1984) 6 EHRR 1,
[1983] ECHR 6, 25 April 1983...................................................................................... 272
Pirozzi v Belgium (App No 21055/11) [2018] ECHR 337,
17 April 2018.................................................................................................. 226, 228, 242
Quaranta v Switzerland (App No 12744/87) [1991] ECHR 33, 24 May 1991 .............. 272
Ramishvili and Kokhreidze v Georgia (App No 1704/06) [2009]
ECHR 153, 27 January 2009 ......................................................................................... 279
Rinas v Finland (App No 17039/13) [2015] ECHR 88, 27 January 2015 ...................... 163
Romeo Castańo v Belgium (App No 8351/17) [2019] ECHR 542,
9 July 2019 ...................................................................................................... 227, 228, 230
Rotaru v Romania (App No 28341/95) (2000) 8 BHRC 43, [2000]
ECHR 192, 4 May 2000 ................................................................................................. 563
S and Marper v UK (App No 30562/04) (2009) 48 EHRR 50, 25 BHRC 557,
[2008] Po LR 403, [2008] ECHR 1581, 4 December 2008 ...............................495, 540,
564, 565
Salabiaku v France (App No 10519/83) (A/141-A), (1991) 13 EHRR 379,
[1988] ECHR 19, 7 October 1988 ................................................................................ 279
Salduz v Turkey (App No 36391/02) (2009) 49 EHRR 19, 26 BHRC 223,
[2010] Crim LR 419, [2008] ECHR 1542, 27 November 2008 .........................259, 267
Saunders v UK (App No 19187/91) (1997) 23 EHRR 313, 2 BHRC 358,
[1996] ECHR 65 (Grand Chamber) 17 December 1996........................................... 280
Scoppola v Italy (No 2) (App No 10249/03) (2010) 51 EHRR 12,
[2009] ECHR 1297, (Grand Chamber) 17 September 2009 ....................................... 38
Sejdovic v Italy (App No 56581/00) [2004] ECHR 620, (2004) 42 EHRR 360,
10 November 2004 ......................................................................................................... 213
Strategies et communications et Dumoulin v Belgium (App No 37370/97)
[2002] ECHR 598, 15 July 2002 ...................................................................................... 46
Svinarenko and Slyadnev v Russia (App Nos 32541/08 and 43441/08)
37 BHRC 628, [2014] ECHR 790 (Grand Chamber) 17 July 2014 .......................... 279
Szabó and Vissy v Hungary (App No 37138/14) (2016) 63 EHRR 3,
[2016] ECHR 579, 12 January 2016 ............................................................................. 572
Tarakhel v Switzerland (App No 29217/12) (2015) 60 EHRR 28, [2015]
Imm AR 282, [2014] ECHR 1435 (Grand Chamber) 4 November 2014................ 218
Tillack v Belgium (App No 20477/05) (2012) 55 EHRR 25, [2008]
ECHR 190127 November 2007 (final version 27 February 2008) ........................... 430
xxvi Table of Cases
Weber and Saravia v Germany (App No 54934/00) (2008) 46 EHRR SE5,

(2000) 8 BHRC 43, [2006] ECHR 1173, 29 June 2006 .............................................. 563
Zakharov v Russia (App No 47143/06) 39 BHRC 435, (2016) 63 EHRR 17,
[2015] ECHR 1065, (Grand Chamber) 4 December 2015................................509, 572
Zolotukhin (Sergey) v Russia (App No 14939/03) (2012) 54 EHRR 16,
26 BHRC 485, [2009] ECHR 252 (Grand Chamber)
10 February 2009 ........................................................................................... 163, 183, 185
BELGIUM
Court of Cassation of Belgium, No P.13.2082.N, Judgment of

1 December 2015 (Yahoo! case) ................................................................................... 593
Court of First Instance Antwerp (Belgium), ME20.F1.105151-12,
Judgment of 27 October 2016 (Skype case) ................................................................ 593
CZECH REPUBLIC
2011/03/22 Pl. ÚS 24/10, www.concourt.cz/clanek/pl-24-10,

Constitutional Court ..................................................................................................... 561
FRANCE
Bourquain (1961), Military Tribunal ................................................................ 157, 158, 165

Decision No 393099 Conseil d’État, Judgment of 21 April 2021 ................................... 583
GERMANY
Ausl 301 AR 95/18, Karlsruhe Higher Court, 17 February 2020 ................................... 241
Ausl 301 AR 104/19, Karlsruhe Higher Court, 27 November 2020 .............................. 241
Bundesverfassungsgericht – 1 BvR 1215/07, (anti-terrorism databases case)
judgment of 24 April 2013 .............................................................................................. 47
BVerfG, 2 BvE 2/08, Gauweiler, Die Linke v Act of Approval of the Lisbon
Treaty (‘Lisbon’), 30 June 2009 ..................................................................................... 118
BVerG, judgment of 1 December 2020–2 BvR 1845/18 – Rn 1-85,
www.bverfg.de/e/rs20201201_2bvr184518.html (EAW III Decision) ............229, 230
Decision 1 BvR 256/08, 1 BvR 263/08, 1BvR 586/08 (2 March 2010)
German Constitutional Court ...................................................................................... 560
Decision of 30 June 2009 (2 BvE 2/08, 5/08, 2 BvR 1010/08, 1022/08,
1259/08, 182/09) .................................................................................................. 69, 125–6
Table of Cases xxvii
Judgment of BVerG 2017 2, BvR 424/17 (EAW II Decision).......................................... 228

Kretzinger, Landgericht Augsburg; on appeal Bundesgerichtshof................................. 162
Order of the Second Senate of 15 December 2015–2 BvR 2735/14
(EAW I Decision), BverfG ........................................................................................220–3
Puigdemont case – Higher Regional Court of Schleswig-Holstein]
July 12, 2018, 1 Ausl (A) 18/18 (20/18), Neue Juristische Wochenschrift
93, 2019 (Ger), Judgment of July 12, 2018 .................................................................. 207
Solange II – Wünsche Handelsgesellschaft, Re (22 October 1986)
BVerfGE 73, 339 ............................................................................................................. 222
Solange III – BverfG 2 BvR 2735/14, 15 December 2015 ............................................... 222
GREECE
Areios Pagos, Case 1/2011, Supreme Ct ............................................................................ 167
IRELAND
Dwyer (Record No 2019/18), Supreme Court .................................................................. 585

Minister for Justice and Equality v Artur Celmer [2018] IEHC 119,
12 March 2018 ................................................................................................................ 235
Minister for Justice and Equality v Artur Celmer (No 5) [2018] IEHC 639,
19 November 2018 ......................................................................................................... 241
ITALY
Constitutional Court, Order No 24, 2017 ........................................................................... 39

Constitutional Court, ruling of 23 January 2019, No 20 ................................................... 43
Constitutional Court, ruling of 20 February 2019, No 63 ................................................ 43
Constitutional Court, ruling of 10 May 2019, No 112....................................................... 43
Constitutional Court, Order of 10 May 2019, No 117....................................................... 43
Kretzinger judgment of 25 January 2001, Tribunale di Ancona .................................... 162
Kretzinger judgment of 22 February 2001, Corte d’appello di Venezia
(Court of Appeal, Venice............................................................................................... 162
NETHERLANDS
RK 20/771 13 / 751021-20, Amsterdam District Court, 10 February 2021 .................. 241

RK 20/3065 and 13/751520-20, Amsterdam District Court, 27 January 2021 ............ 242
xxviii Table of Cases
POLAND
Bonda (Łukasz Marcin), Criminal Proceedings against, Sąd Najwyższy,

27 September 2010 ......................................................................................................... 181
Judgment of the Supreme Court, Chamber of Labour and Social Insurance
of 5 December 2019 ....................................................................................................... 237
ROMANIA
Decision No 1258 of 8 October 2009, Constitutional Court .......................................... 561
SPAIN
STC 13/2017 of 30 January 2017, Constitutional Court ................................................. 290
UNITED KINGDOM
Assange v Swedish Prosecution Authority [2012] UKSC 22, [2012]

2 AC 471, [2012] 3 WLR 1, [2012] 4 All ER 1249...................................................... 310
Bucnys v Ministry of Justice, Lithuania [2013] UKSC 71, [2014] AC 480,
[2013] 3 WLR 1485, [2014] 2 All ER 235 .................................................................... 310
Dabas v High Court Of Justice, Madrid [2007] UKHL 6, [2007] 2 AC 31,
[2007] 2 WLR 254, [2007] 2 All ER 641 ........................................................................ 14
1
History, Principles and Institutions
The Constitutionalisation of EU Criminal Law
I. Introduction
The evolution of the constitutional framework of EU criminal law has been a contested
and gradual process. Criminal law is inextricably linked with state sovereignty and the
exercise of state power, with states being reluctant to cede sovereignty and power to
a supranational organisation. Although inevitably Community law has had an impact
on national criminal justice systems, the European Union (EU) first acquired express
competence in the field of criminal law following the entry into force of the Maastricht
Treaty, which established an intergovernmental framework of action under the so-called
‘third pillar’. Criminal law has been largely normalised constitutionally following the
entry into force of the Lisbon Treaty, although, as will be seen below, a degree of resist-
ance to the ‘Lisbonisation’ of criminal law remains. This chapter will provide a detailed
analysis of the constitutional evolution of EU criminal law by focusing primarily on
history, principles and institutions, It will chart the evolution of the field from the early
days when the Community was not granted express competence in the field of crimi-
nal law, to the intergovernmental EU criminal law model introduced by the Maastricht
Treaty and in place until the entry into force of the Lisbon Treaty, which aimed to
normalise EU criminal law and align the field constitutionally with more traditional
areas of EU action. In addition to examining the evolution of the Treaty framework, the
chapter will examine in detail the contribution of the Court of Justice of the European
Union (CJEU) towards the constitutionalisation of EU criminal law and will highlight
the intersection of broader constitutional issues, such as upholding fundamental
rights and the rule of law, with the development of a legitimate and credible system of
EU criminal law.
II. Background: The Community and

Criminal Law before Maastricht
Over the years, there have been a number of factors influencing common action in
criminal matters among EU Member States. One of these factors has traditionally been
2 History, Principles and Institutions
the emergence of areas of criminality which were of common concern to Member States
and which were perceived as necessitating cooperation. Outside the EU framework,
such cooperation has been longstanding within the intergovernmental framework of
the Council of Europe.1 This has led to the adoption of a series of hard and soft law
instruments in the criminal justice field, a number of which are still influential in the
development of internal EU law.2 It was the preference for intergovernmental coopera-
tion within the Council of Europe that reportedly blocked French plans in the late 1970s
and early 1980s to establish an ambitiously named ‘European judicial area in crimi-
nal matters’ covering primarily judicial cooperation in criminal matters in the fields
of terrorism.3 However, the 1970s did witness Member States’ efforts to explore the
establishment of channels of cooperation between their law enforcement authorities in
areas of common concern such as terrorism. A prime example has been the establish-
ment of TREVI, a network of law enforcement officials meeting on an informal basis to
discuss action on counter-terrorism issues.4 The remit of TREVI (and its organisational
chart) – which, however, remained an informal structure with no clear legal frame-
work or standing under Community law – expanded in the 1980s, especially in the
light of the emergence of new areas of criminality such as drugs and organised crime
as areas of common interest for Member States.5 The focus on drug trafficking as a
threat in the 1980s also led to efforts for action within the Community law framework,
in particular in the field of external action, as demonstrated by the involvement of the
Community in the negotiation and signature of the 1988 United Nations (UN) Vienna
Convention.6
Another factor leading to the emergence of EU criminal law has been the develop-
ment of EU internal market law. Already in the 1980s, it had become evident in cases
brought before the Court in Luxembourg that the focus of the Community on economic
matters did not stop Community action having criminal law implications or being asso-
ciated with the criminal law choices in Member States.7 Moreover, calls for the abolition
of internal frontiers in the single market – a central objective of the Commission and
subsequently of the Community in the 1980s and early 1990s – and steps take to achieve
these objectives created a ‘spill-over effect’ of law and policy to broader issues to the
economy/market, including criminal law.8 A key to this spill-over process has been
the abolition of internal frontiers and the goal of free movement. The achievement of
free movement brought about the realisation of the need to look at the implications of
this freedom and of the abolition of borders for issues such as immigration and crime.
This link had already been made to some extent by the Commission in its 1985 White
1 See V Mitsilegas, J Monar and W Rees, The European Union and Internal Security (Palgrave, 2003) 19–22.
2 See in particular in the field of data protection; see ch 9. On the relationship between EU and Council of
Europe instruments covering similar topics, see ch 10.

3 ‘Espace Judiciaire Pénal Européen’: see A Weyembergh, L’Harmonisation des Législations: Condition de
l’Espace Pénal Européen et Révélateur de ses Tensions (Éditions de l’Université de Bruxelles, 2004) 13–15.
4 See Mitsilegas, Monar and Rees (n 1) 22–24. For more on TREVI, including bibliographical references,
see chapter 4.
5 ibid 25.
6 See V Mitsilegas, Money Laundering Counter-measures in the European Union: A New Paradigm of
Security Governance versus Fundamental Legal Principles (Kluwer Law International, 2003) 52–54.
7 For more on this, see ch 2.
8 See Mitsilegas, Monar and Rees (n 1) 27–31.
Background: The Community and Criminal Law before Maastricht 3
Paper on the completion of the internal market.9 It was put forward more forcefully
in the Palma Document,10 whose conclusions were endorsed by the Madrid European
Council in 1989.11 The Document asserted that the achievement of an area without
internal frontiers could involve, when necessary, the approximation of laws, adding that
the abolition of internal borders affects a whole range of matters, including combat-
ing terrorism, drug trafficking and other illicit trafficking; improved law enforcement
cooperation; and judicial cooperation. In the latter context, it was noted that judicial
cooperation in criminal matters should be intensified in order to combat terrorism,
drug trafficking, crime and other illicit trafficking, and that the harmonisation of certain
provisions should be studied.12
Another significant development involving the abolition of borders in the 1980s,
this time outside the Community legal framework, was the 1985 Schengen Agreement
between the Benelux countries, France and Germany, leading to the adoption of the 1990
Schengen Implementing Convention, which included a wide range of provisions on
immigration, asylum, border controls and police cooperation, including the establish-
ment of the Schengen Information System.13 Schengen can be viewed as a compensation
for freedom: the abolition of internal frontiers (including physical frontiers) among the
participating states would be combined with further integration between these states
in the fields of immigration and criminal law, thus leading to a strong external border
compensating for the lack of internal borders. This model of closer integration between
a number of Member States outside the Community framework was a pioneering step at
the time and resulted in a momentum towards extending such closer integration within
the EU. As will be seen below, the Schengen acquis is integrated into EU law, which is
indicative of the influence of the Schengen logic on the development of the EU as an
‘Area of Freedom, Security and Justice’ (AFSJ). The influence of the Schengen logic is
dominant in the development of EU immigration and borders law, but it is also visible
in the development of EU criminal law principles, in particular by the Court of Justice:
when interpreting the operation of EU criminal law, the Court has repeatedly examined
criminal law in conjunction with free movement within the framework of an ‘area’ of
freedom, security and justice.14
Calls for further integration in relation to criminal matters were also linked with
political events external to the Community at the end of the 1980s, namely the fall
of the Berlin Wall. The collapse of the Soviet Bloc led to a number of concerns in
9 ‘Completing the Internal Market: White Paper from the Commission to the European Council’ COM
(1985) 310, 14 June. The Commission considered that matters such as the coordination of rules concerning
extradition were essential for the removal of internal frontier controls; see PA Weber-Panariello, The Integra-
tion of Matters of Justice and Home Affairs into Title VI of the Treaty on European Union: A Step Towards More
Democracy?, EUI Working Paper RSC No 95/32, European University Institute, Florence, 5.
10 The Palma Document was prepared by a Coordinators’ Group set up by the European Council and
composed of 12 high-ranking officials, a chairman and the vice-president of the Commission to coordinate
Member States’ actions with regard to free movement. See Weber-Panariello (n 9) 8–9.
11 Council Doc 89/1, 27 June 1989, http://europa.eu/rapid/pressReleasesAction.do?reference=DOC/89/1&
format=HTML.
12 The Palma document is reproduced in E Guild and J Niessen, The Developing Immigration and Asylum
Policies in the EU (Nijhoff, 1996) 443–48.

13 On the Schengen Information System, see ch 9.
14 This is particularly the case with regard to the Court’s case law on the European Arrest Warrant and
ne bis in idem; see chs 3 and 4.

Western Europe. These were linked most notably to fears that political instability in
Eastern Europe and the lack of a stable legal and constitutional framework in countries
in transition would lead to the increase of criminogenic factors therein and the export
of criminality from the East to the West. These concerns resulted in calls – in particu-
lar by Member States such as Germany fearing that they would be the most affected
by these developments – towards greater EU cooperation and integration in criminal
matters. In this context, countries like Germany attempted to render domestic concerns
into EU issues,15 at the same time creating considerable impetus towards the devel-
opment of European integration in the field. Lack of trust towards Eastern European
countries – which subsequently became candidate countries with now many of them
progressing to become full EU Member States – continued in the 1990s and the 2000s,
during the enlargement process and led to the Schengen logic increasing in political
capital in accession negotiations and beyond, with compliance with the Schengen acquis
becoming a central requirement for accession to the EU.16
The end of the Cold War also had broader implications for the reconfiguration of
security threats globally. The shift from the emphasis on military threats to the securiti-
sation of broader phenomena was well documented early on by international relations
scholars.17 In the EU and beyond, one element of this securitisation shift has been the
elevation of forms of criminality as threats which require urgent and concerted response
by governments.18 Security threats in this context have assumed a chameleon nature
over the years, from drug trafficking in the 1980s to organised crime in the 1990s and
terrorism in the 2000s.19 At the EU level, such securitisation of crime has largely acted
as a factor justifying further EU integration in criminal matters and has led to the adop-
tion of a plethora of legal and policy initiatives. In this context, particular focus has
been placed on the transnational elements of the perceived threats, which are deemed
to require a common EU approach, with Member States not being able to address these
challenges solely at the national level.20 The securitisation of crime and the focus on
the transnational are also increasingly acting as a motor for the emergence of the EU
as a global security actor speaking with ‘one voice’ and influencing the development of
global standards in the field.21 In this process, as will be seen in a number of instances
in this book, the emergence of both internal and external EU criminal law is marked by
a strong emphasis on security objectives.
15 On Germany’s influence on developing police cooperation (and immigration and asylum law cooperation)
as a response to developments in Eastern Europe, see J Monar, ‘Justice and Home Affairs: Europeanization as a
Government-Controlled Process’ (2003) 119 Proceedings of the British Academy 309, 320–22.
16 See section VIII.D below.
17 See in particular B Buzan, People, States and Fear: An Agenda for International Security Studies in the Post-
Cold War Era (Harvester Wheatsheaf, 1991); B Buzan, ‘New Patterns of Global Security in the Twenty-First
Century’ (1999) 67 International Affairs, 431. In the context of securitisation and crime, see D Bigo, Polices en
Réseaux. L’Experiénce Européenne (Presses de Sciences Po, 1996).
18 On the securitisation process, see B Buzan, O Waever and J de Wilde, Security: A New Framework for
Analysis (Lynne Rienner, 1998); and O Waever, ‘Securitization and De-securitization’ in RD Lipschutz (ed),
On Security (Columbia University Press, 1995) 46–86.
19 On this changing focus in the context of the development of money laundering counter-measures, see
V Mitsilegas, ‘Countering the Chameleon Threat of Dirty Money: “Hard” and “Soft” Law in the Emergence
of a Global Regime against Money Laundering and Terrorist Finance’ in A Edwards and P Gill (eds),
Transnational Organised Crime: Perspectives on Global Security (Routledge, 2003) 195–211.
20 On the concept and role of transnational crime, see Mitsilegas (n 6) 19–21.
21 See ch 10.
The Third Pillar: The Institutional Framework 5
III. The Third Pillar: The Institutional Framework

The above factors became increasingly relevant in negotiations to amend the EC Treaty
as a follow-up to the Single European Act. In these negotiations, the issue of whether
the Community competence should extend to criminal law – and Justice and Home
Affairs more generally – proved to be extremely contested. The final compromise came
with the adoption of the Maastricht Treaty, which introduced a three-pillar structure for
the EU. The primary function of this structure was, on the one hand, to include within
the EU’s remit controversial areas such as foreign and security policy and Justice and
Home Affairs, but, on the other hand, to ensure that EU action in these sovereignty
sensitive fields would not be under the supranational elements of the first pillar, but
would be subject to a more intergovernmental legal framework.22 This pillar structure
was retained until the entry into force of the Lisbon Treaty, with EU action in criminal
matters largely confined (but increasingly not limited to) the third pillar. This section
will provide with an overview and analysis of the evolution of the third pillar from
Maastricht to Amsterdam and Lisbon. The specificities of the former third pillar and the
current Lisbonised framework will be examined from three perspectives: institutions,
instruments and principles.
A. The Maastricht Treaty

In the Maastricht Treaty, provisions relating to EU criminal law were included in Title
VI of the EU Treaty entitled ‘Provisions on cooperation in the fields of Justice and Home
Affairs’ (or, as it is better known, the former third pillar).23 For the first time, the Treaty
established EU competence in the field of Justice and Home Affairs, including judi-
cial cooperation in criminal matters, customs cooperation and police cooperation for
the purposes of preventing and combating terrorism, unlawful drug trafficking and
other serious forms of international crime, including the establishment of a European
Police Office (Europol).24 Moreover, the Treaty contained a legal basis for establish-
ing a Co-ordinating Committee consisting of senior officials and contributing to the
preparation of the Council’s ‘discussions’, as well as giving opinions for the attention
of the Council.25 It has been argued that in this manner, the Maastricht third pillar
22 For a critique of the Maastricht Treaty, see, inter alia, D Curtin, ‘ The Constitutional Structure of the
Union: A Europe of Bits and Pieces’ (1993) 30 CML Rev 17; see also R Dehousse, ‘From Community to Union’
in R Dehousse (ed), Europe after Maastricht: An Ever Closer Union? (Law Books in Europe, 1994) 5–15.
23 For an overview of the Maastricht third pillar, see: P-C Müller-Graff, ‘ The Legal Bases of the Third Pillar
and its Position in the Framework of the Union Treaty’ (1994) 31 CML Rev 493; D O’Keeffe, ‘Recasting the
Third Pillar’ (1995) 32 CML Rev 893; G Barrett, ‘Cooperation in Justice and Home Affairs in the European
Union: An Overview and a Critique’ in G. Barrett (ed), Justice Cooperation in the European Union (Institute of
European Affairs, Dublin, 1997) 3–48; M Anderson, M den Boer, P Cullen, W Gilmore, C Raab and N Walker,
Policing the European Union (Clarendon Press, Oxford, 1995), in particular 200–17; and the contributions in
J Monar and R Morgan (eds), The Third Pillar of the European Union: Cooperation in the Fields of Justice and
Home Affairs (European Interuniversity Press, 1994).
24 Article K.1, in particular paras (7)–(9).
25 Article K.4.
consolidated and formalised earlier law enforcement initiatives.26 These initiatives,

along with extra-EU mechanisms of cooperation such as the Council of Europe and
Schengen, have thus been accurately characterised as ‘laboratories’ of European integra-
tion in the field of Justice and Home Affairs.27
However, the provisions on the form of EU action in criminal matters remained
extremely weak. The opening provision of the Maastricht third pillar, Article K, referred
to ‘cooperation in the fields of Justice and Home Affairs’, and not to a common policy on
Justice and Home Affairs (as has been the case with both first pillar policies, such as the
Common Agricultural Policy) and second pillar initiatives (see the Common Foreign
and Security Policy (CFSP)). As has been noted, this approach and contrast ‘suggested
the much less ambitious objective of cooperation in making effective national policies
which would remain unchanged’.28 Moreover, Article K.1 merely declared that Member
States must regard a number of areas in Justice and Home Affairs as ‘matters of common
interest’. The emphasis here was not on integration, but on ‘matters of common interest’.
Moreover, the emphasis was on Member States, with no explicit reference to the EU as
an actor in the third pillar.29 Further, the extent to which the EU could take legally bind-
ing action in these areas of ‘common interest’ was both limited and unclear. The main
legally binding instrument provided for by the Maastricht third pillar was the instrument
of Conventions which clearly mirrored intergovernmental cooperation under interna-
tional law fora such as the United Nations and the Council of Europe.30 The Council
could also adopt the seemingly non-legally binding ‘joint positions’ and ‘Joint Actions’,
the legally binding character of which is unclear and has been contested.31 Thus, while
in principle the Maastricht third pillar established a degree of competence for the EU in
the field of Justice and Home Affairs, including criminal matters, the powers given to the
EU to exercise such competence remained significantly limited and unclear.
The reluctance of – at least certain – Member States to communitarise Justice and
Home Affairs was also reflected in the extremely limited role given to EU institutions
in the third pillar, most notably in the area of criminal law. The Commission was not
granted a right of initiative with regard to measures on the main areas relating to crimi-
nal matters, with the initiative only being granted to Member States.32 The European
Parliament was also granted an extremely limited role: it was to be ‘regularly informed
of discussions’ in third pillar areas; the Presidency would merely ‘consult’ the Parliament
‘on the principal aspects of activities’ in the third pillar; and it could ‘ask questions or
make recommendations’.33 The only provision on the European Court of Justice (ECJ)
26 M den Boer, ‘Europe and the Art of International Police Co-operation: Free Fall or Measured Scenario?’
in D O’Keeffe and Twomey (eds), Legal Issues of the Maastricht Treaty (Wiley Chancery, 1994) 279–294, at 281.
27 See J Monar, ‘ The Dynamics of Justice and Home Affairs: Laboratories, Driving Factors and Costs’ (2001)
39 Journal of Common Market Studies 747.

28 E Denza, The Intergovernmental Pillars of the European Union (Oxford University Press, 2004) 194. Note
also art K.2(2), which stated that Title VI would 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.
29 See in this context the observation of Müller-Graf ((n 23) 507), who noted that the provisions of the third
pillar do not even mention the EU as a separately acting agent in the relevant fields of policy.
30 Article K.3(2)(c).
31 For the view that Joint Actions are not legally binding, see Müller-Graf (n 23) 509; for the contrary view
under certain circumstances, see O’Keeffe (n 23) 914.

32 These are the areas referred to in arts K.1(7)–(9) and K.3(2).
33 Article K.6.
did not grant jurisdiction via the Treaty, but mentioned that third pillar conventions
adopted under the third pillar might provide for such jurisdiction to interpret their
provisions and to rule on any disputes regarding their application.34 Unsurprisingly,
given the extent of the limits to the Community method, decision-making in the Coun-
cil would – with limited exceptions – take place by unanimity.35
B. The Amsterdam Treaty
i. Background
The operation of the former third pillar demonstrated the weaknesses and limits of
the compromise reached in Maastricht. Legislative production was not abundant and
mainly took the form of conventions, which proved to be extremely cumbersome to
ratify.36 A number of Joint Actions were adopted, some of them providing definitions
of key concepts for EU criminal law such as organised crime, but their legal status was
unclear and their implementation prospects were questionable.37 Enforcement and
judicial control of third pillar law were minimal following the very limited Treaty provi-
sions. The same applied to democratic control and transparency, with the European
Parliament being essentially marginalised. An assessment of the Maastricht third pillar
in 1995 pointed out the inactivity in the field and noted that:
Many of the reasons for this inactivity or lack of concrete progress are to be found in the
structure of the Third Pillar itself. Other failures to achieve consensus seem to derive from an
unwillingness to change the patterns of inter-governmental cooperation existing prior to the
entry into force of the Third Pillar. A further disturbing trend is that the Third Pillar structure
seems to have in no way assisted in making intergovernmental cooperation in this area more
transparent, precisely at a time when transparency has become one of the major concerns at
Union and Community level.38
The deficiencies of the Maastricht third pillar were discussed in the intergovernmental
conference leading to the adoption of the Amsterdam Treaty.39 Central to the debate were
again issues of competence, the institutional framework and the question of whether to
34 Article K.3(2)(c).
35 Article K.4(3).
36 See, for example, the Europol Convention, which was signed in 1995 and entered into force in 1999;
see ch 4.
37 For an analysis of the Joint Action on organised crime, see V Mitsilegas, ‘Defining Organised Crime in the
European Union: The Limits of European Criminal Law in an Area of Freedom, Security and Justice’ (2001)
56 European Law Review 565.
38 O’Keeffe (n 23) 894.
39 For a diplomat’s view of the Treaty of Amsterdam negotiations, including the provisions on Justice and
Home Affairs, see B McDonagh, Original Sin in a Brave New World: An Account of the Negotiation of the
Treaty of Amsterdam (Institute of European Affairs, 1998); for a similar account of the UK position, see
S Wall, A Stranger in Europe: Britain and the EU from Thatcher to Blair (Oxford University Press, 2008). On
the Amsterdam Intergovernmental Conference and Justice and Home Affairs, see H Labayle, ‘La Coopération
Européenne en Matière de Justice et d’Affairs Intérieures et la Conférence Intergouvernmentale’ (1997) 33
Revue Trimestrielle du Droit Européen 1; on the Intergovernmental Conference (IGC), see further J. Grünhage,
‘The 1996/97 Intergovernmental Conference: A Survey of the Process’ in J Monar and W Wessels (eds),
The European Union After the Treaty of Amsterdam (Continuum, London and New York, 2001).9–30.
transfer matters falling under the third pillar to the Community pillar.40 The different
national approaches on these matters did not stop the adoption of significant changes
to the third pillar in Amsterdam: Maastricht third pillar areas of immigration, asylum,
borders and civil law were ‘communitarised’, forming part of Title IV of the EC Treaty;41
and the third pillar itself, now entitled ‘Provisions on police and judicial cooperation in
criminal matters’, was revamped and strengthened.42 The Amsterdam provisions were
subject to some limited amendments by the Nice Treaty, in particular regarding the
role of the European Union Agency for Criminal Justice Cooperation (Eurojust) and
enhanced cooperation, formed the basis of the institutional framework until 2009. The
latter included detailed provisions on competence and the types of common action in
the fields of police cooperation, judicial cooperation in criminal matters, and crimi-
nal law approximation.43 Significantly, these forms of common action were required to
achieve a general EU objective ‘to provide citizens with a high level of safety within an
area of freedom, security and justice by developing common action among the Member
States in the fields of police and judicial cooperation in criminal matters and by prevent-
ing and combating racism and xenophobia’.44
ii. The AFSJ and the Incorporation of the Schengen Acquis

The institutional developments in the third pillar brought about in Amsterdam must be
viewed in the context of the express reference to the development of the EU as an ‘Area
of Freedom, Security and Justice’, which was elevated to the status of a EU objective.
According to Article 2 TEU, the EU’s objectives included ‘to maintain and develop the
Union as an area of freedom, security and justice, in which the free movement of persons
is assured in conjunction with appropriate measures with respect to external border
controls, asylum, immigration and the prevention and combating of crime’ (emphasis
added). The inclusion of this objective, which was also visible in both Title IV of the EC
Treaty (the ‘communitarised’ Maastricht third pillar)45 and Title VI TEU (the remain-
ing third pillar dealing with criminal matters)46 was significant, in that it formed the
framework within which EU action on Justice and Home Affairs, including criminal law,
would be interpreted. While the concept of the ‘area’ is not clear, and the relationship
40 See in this context the Progress Report on the IGC of June 1996, Doc CONF 360/1/96 REV 1, Brussels,
17 June 1996, www.consilium.europa.eu/uedocs/cms_data/docs/cig1996/03860-r1en6.pdf.

41 And customs cooperation moving to a separate EC Treaty provision: art 135. On art 135 and criminal law,
see ch 2.
42 On the evolution of Justice and Home Affairs matters in the Amsterdam Treaty, see Denza (n 28);
J Monar, ‘Justice and Home Affairs in the Treaty of Amsterdam: Reform at the Price of Fragmentation’ (1998)
23 European Law Review 320; H Labayle, ‘Un Espace de Liberté, de Sécurité et de Justice’ (1998) 34 Revue
Trimestrielle du Droit Européen 813; J Kuijper, ‘The Evolution of the Third Pillar from Maastricht to the Euro-
pean Constitution: Institutional Aspects’ (2004) 41 CML Rev 609; D Kostakopoulou, ‘The Area of Freedom,
Security and Justice and the European Union’s Constitutional Dialogue’ in C Barnard (ed), The Fundamentals
of EU Law Revisited. Assessing the Impact of the Constitutional Debate (Oxford University Press, 2007) 153–92;
and M den Boer, ‘An Area of Freedom, Security and Justice: Bogged Down by Compromise’ in D O’Keeffe
and P Twomey (eds), Legal Issues of the Amsterdam Treaty (Hart Publishing, 1999) 303–22. For a historical
overview of the evolution of EU Justice and Home Affairs, see W de Lobkowicz, L’Europe et la Sécurité
Intérieure. Une Élaboration par Étapes (La Documentation Francaise, 2002).
43 Articles 29–31 TEU.
44 Article 29(1) TEU. On specific areas of criminal law competence under art 29, see ch 2.
45 Article 61 EC.
46 Article 29 TEU.
between the three elements of ‘freedom, security and justice’ is contested,47 it is impor-
tant to note that the conception of the EU as an ‘area’ (or espace in French) is reminiscent
of earlier initiatives, in particular the Schengen Area (espace Schengen).48 In this context,
it is noteworthy that the introduction of the development of the EU as an ‘Area of Free-
dom, Security and Justice’ was accompanied in Amsterdam by the incorporation of
the Schengen acquis into Community/Union law.49 The latter was a complex process
generating a raft of issues, such as what constitutes the acquis, how to allocate this and
subsequent Schengen-building measures between pillars, and of course issues relating
to variable geometry, ie, non-participating Member States and participating non-EU
Member States.50 However, it also signified the affirmation of the Schengen logic within
the EU framework.51 Linked to the Schengen logic, the EU as an ‘area’ of freedom, secu-
rity and justice was based on the objective of free movement in an area without internal
frontiers, thus entailing a reconfiguration of territoriality at both the national and the
EU level. While this reconfiguration of territoriality was particularly relevant in the field
of EU immigration and borders law, most notably with regard to practices of inclusion
and exclusion,52 it will be seen that it also had implications for the development of EU
criminal law, both by the legislator and by the Court of Justice – in particular when the
latter has had to approach the relationship between national legal orders under mutual
recognition in criminal matters, and Schengen-related matters such as ne bis in idem.53
iii. The Institutional Framework

a. Decision-Making
Intergovernmental elements in the third pillar remained in Amsterdam, although the
role of the EU institutions was in general enhanced in comparison with Maastricht.54
47 On different takes on the concept of the ‘Area of Freedom, Security and Justice’, see H Lindahl, ‘Finding a
Place for Freedom, Security and Justice: The European Union’s Claim to Territorial Unity’ (2004) 29 European
Law Review 461; and P Twomey, ‘Constructing a Secure Space: The Area of Freedom, Security and Justice’ in
O’Keeffe and Twomey (n 42) 351–74.
48 See Labayle (n 42) 824. See also the discussion in Mitsilegas, Monar and Rees (n 1) 84–86.
49 See the Protocol Integrating the Schengen Acquis into the Framework of the European Union; for the
subsequent definition of the Schengen acquis, see the Decision 1999/435 (OJ L176, 10 July 1999, 1) corrected
by Decision 2000/645 [2001] OJ L9, 13 January, 24.
50 On the incorporation of Schengen into EC/EU law, see S Peers, ‘Caveat Emptor? Integrating the Schengen
Acquis into the European Union Legal Order’ (1999) 2 Cambridge Yearbook of European Legal Studies 87;
M den Boer, ‘The Incorporation of Schengen into the TEU: A Bridge Too Far?’ in Monar and Wessels (n 39)
296–320; and D Thym, ‘The Schengen Law: A Challenge for Legal Accountability in the European Union’
(2002) 8 European Law Journal 218.
51 Unsurprisingly, the incorporation of the Schengen acquis into the EC/EU framework was strongly
supported by the Benelux countries; see Benelux Memorandum on the Intergovernmental Confer-
ence, Doc CONF 3844/96, Brussels, 5 May 1996, 10, www.consilium.europa.eu/uedocs/cms_data/docs/
cig1996/03844en6.pdf.
52 In this context, see E Guild, ‘Moving the Borders of Europe’, Inaugural Lecture, University of Nijmegen,
http:/cmr.jur.ru.nl/cmr/docs/oratie.eg_pdf; C Groenendijk, E Guild and P Minderhoud (eds), In Search of

Europe’s Borders (Brill, 2003); D Bigo and E Guild (eds), Controlling Frontiers: Free Movement into and within
Europe (Ashgate, 2005); D Kostakopoulou, ‘Is There an Alternative to “Schengenland”?’ (1998) 46(5) Political
Studies 886.
53 For an analysis of this case law, see ch 3.
54 For a comparison of a number of institutional aspects, see A Dashwood, ‘Issues of Decision-Making in
the European Union after Nice’ in A Arnull and D Wincott (eds), Accountability and Legitimacy in the Euro-
pean Union (Oxford University Press, 2002) 13–40.
As far as decision-making is concerned, unanimity in the Council remained for the vast
majority of third pillar law.55 The European Parliament, while in an enhanced posi-
tion in comparison to the situation under Maastricht, continued to have an extremely
limited role: it was merely consulted in the adoption of Framework Decisions, decisions
and conventions.56 Thus, law-making in the third pillar remained firmly with Member
States, which obtained a further reassurance on checking the EU’s reach in criminal
matters by retaining the Maastricht provision that the third pillar would ‘not affect the
exercise of responsibilities incumbent upon Member States with regard to the main-
tenance of law and order and the safeguarding of internal security’.57 However, as an
opening to Member States which supported further integration in criminal matters,
the Treaty – as amended in Nice – included provisions expressly allowing enhanced
cooperation in the third pillar.58 Moreover, Amsterdam also included a passerelle provi-
sion,59 which was reformulated to state that the Council may decide unanimously after
consulting the European Parliament to transfer action in areas mentioned in Article 29
TEU to Title IV of the EC Treaty.60 The Commission – which also embarked on a series
of Court challenges contesting the legality of the choice of third pillar legal bases for EU
criminal law harmonisation instruments61 – proposed the use of this provision after the
rejection of the Constitutional Treaty (which largely ‘communitarised’ decision-making
in criminal matters by abolishing the third pillar), but the proposal was not taken on
board by Member States.62
b. Instruments
Although the decision-making arrangements remained in essence intergovernmental,
the Amsterdam Treaty strengthened significantly the legal instruments under the third
pillar. Conventions, which were introduced by Maastricht, remained in the Treaty,63
although their use post-Amsterdam was minimal. Amsterdam introduced a series
of new instruments for the third pillar. A new instrument was the Common Position
‘defining the approach of the Union to a particular matter’.64 Common positions were
55 Article 34(2) TEU. The exception is measures necessary to implement third pillar Decisions which are
adopted by qualified majority (art 34(2)(c)).

56 Article 39(1) TEU. Parliament also must be regularly informed of discussions on the third pillar by the
Presidency and the Commission, and may ask questions of the Council and make recommendations (art 39(2)
and (3)). The role of the European Parliament is even more limited in the negotiation and conclusion of third
pillar international agreements under arts 24 and 38 TEU; for details, see ch 6.
57 Article 33. See also art 64(1) EC in Title IV. See art K.2(2) of the Maastricht Treaty.
58 Articles 40, 40a and 40b TEU.
59 See the passerelle in Article K.9 of the Maastricht Treaty, which, however, did not apply to judicial
cooperation in criminal matters, customs and police cooperation.

60 Article 42 TEU. Member States will adopt that decision in accordance with their constitutional
requirements.
61 See ch 2.
62 On the Commission passerelle proposals and the evolution of Member States’ reactions, see House of
Commons Home Affairs Committee, Justice and Home Affairs Issues at European Union Level, 3rd Report,
session 2006–07, HC 76-I, paras 328–33; and V Mitsilegas, ‘Constitutional Principles of the European
Community and European Criminal Law’ (2006) 8 European Journal of Law Reform 301, 308–09.
63 Article 34(2)(d).
64 Article 34(2)(a).
particularly relevant in the context of EU external action, with the Treaty stating that
Member States must defend them within international organisations and at interna-
tional conferences.65 The Court of Justice has applied the duty of loyal cooperation to
Common Positions, holding this to mean in particular that ‘Member States are to take
all appropriate measures, whether general or particular, to ensure fulfilment of their
obligations under European Union law’.66 The Court has not excluded the possibility for
Common Positions to have legal effects vis-a-vis third parties.67
Third pillar measures which the Treaty introduced expressly as legally binding
were Decisions, which exclude legal approximation and do not entail direct effect,68
and Framework Decisions for the purposes of legal approximation.69 The introduction
of Framework Decisions, which constituted the main form of third pillar law-making
post-Amsterdam, considerably strengthened third pillar law. Framework Decisions
were very similar to first pillar Directives – according to the Treaty, they were bind-
ing upon the Member States as to the result to be achieved, but left the choice of form
and methods to the national authorities.70 The main difference with Directives was
that Framework Decisions did not entail direct effect.71 However, as will be seen below,
this did not stop the Court from stressing the legally binding character of third pillar
law and boosting efforts to implement it in Member States.72 Moreover, the Court has
confirmed the discretion of the Council to choose which third pillar legal instrument
to adopt: in a case involving the Framework Decision on the European Arrest Warrant,
the Court upheld the legislative choice of a Framework Decision as a form of third pillar
law-making against arguments that this was the wrong choice of instrument and that
the Council should have adopted a convention.73
The strengthening of the third pillar legal instruments was also confirmed by the
elements of Maastricht which were not included in the Treaty, namely joint posi-
tions and, in particular, Joint Actions. The disappearance of Joint Actions from the
Treaty resulted in a number of complex questions, especially regarding the status of
Joint Actions adopted under the Maastricht procedures post-Amsterdam, their effects
and their judicial scrutiny by the ECJ.74 While a number of proposals to replace Joint
Actions by Framework Decisions were tabled by the Commission, these proposals –
covering important aspects of criminal law harmonisation such as organised crime and
65 Article 37 TEU.
66 Case C-354/04 P, Gestoras Pro Amnistia et al v Council [2007] ECR I-5179, paragraph 52; and
Case C-355/04 P, Segi et al v Council, ECR [2007] I-6157, para 52. Here the Court applied its earlier Pupino
ruling (see below).
67 Gestoras and Segi; see the analysis below.
68 Article 34(2)(c).
69 Article 34(2)(b).
70 ibid.
71 ibid.
72 See the analysis on the Pupino judgment below.
73 Case C-303/05, Advocaten voor de Wereld VZW v Leden van de Ministerraad [2007] ECR I-3633. For an
analysis of this, see ch 3.

74 On the uncertainty as to whether a measure of secondary law survives the repeal of its legal basis, see
N Fennelly, ‘The Area of “Freedom, Security and Justice” and the European Court of Justice: A Personal View’
(2000) 49 International and Comparative Law Quarterly 10, at 12.
racism and xenophobia – have not yet been formally adopted.75 This exacerbates legal
uncertainly, especially in the light of the unclear legal status of Joint Actions.
c. Initiative
Intergovernmental elements were also retained in the Amsterdam Treaty with regard
to the right of initiative. While the Commission was granted a right of initiative in the
third pillar, this right was shared with Member States, with any Member State having the
right to table a proposal for a third pillar instrument.76 While the majority of third pillar
proposals post-Amsterdam were tabled by the Commission, initiatives by Member
States did not cease to exist. One form of Member State initiatives involved a number of
Member States (at times consecutive EU presidencies) acting together to table proposals
on matters perceived quite close to state sovereignty and thus rather ‘intergovernmen-
tal’ – examples in this context include a series of Member States’ sole or joint initiatives
promoting mutual recognition in criminal matters,77 as well as initiatives that can be
seen at times as a response to or pre-emption of more integrationist proposals by the
Commission.78 Another form of intervention involved initiatives by one Member State,
usually at the time of its holding of the EU Presidency. From an EU law and policy
perspective, Member States initiatives presented a number of challenges: being prepared
at times by civil servants in domestic interior or justice ministries whose job was to table
draft domestic law, their structure and drafting left much to be desired in comparison
to proposals prepared by expert EU law staff in the Commission; there was minimal
consultation; their tabling could clash with the Commission’s timetable as outlined in
its annual work programmes; and they could reflect a very narrow agenda or attempts to
export a matter of purely domestic interest at the EU level.79 On some of these grounds,
a number of Member State initiatives over the years failed to be adopted.80
75 For details on this, see ch 2.

76 Article 34(2).
77 These include proposals for the adopted Framework Decisions on the mutual recognition of: financial
penalties (France, Sweden and the UK, Council Doc 19710/01, Brussels, 12 July 2001, and accompanying
Explanatory Memorandum (EM) ADD 1, Brussels, 16 July 2001); confiscation orders (Denmark, Council
Doc 9955/02, Brussels, 14 June 2002, and EM in ADD 1, Brussels, 2 July 2002); and freezing orders (France,
Sweden and Belgium, Council Doc 13986/00, Brussels, 30 November 200 and EM in ADD 1, Brussels,
22 December 2000). They also include more recent proposals such as the proposal on the recognition and
supervision of suspended sentences and alternative sanctions (Germany and France, Council Doc 5325/07,
Brussels, 15 January 2007 and EM in ADD 1, Brussels, 1 February 2007); and the proposal on a common
approach on judgments in absentia for mutual recognition purposes (Slovenia, France, the Czech Republic,
Sweden, Slovakia, the UK and Germany, Council Doc 5213/08, Brussels, 14 January 2008 and EM in ADD 1,
Brussels, 30 January 2008). On mutual recognition, see ch 3.
78 The example of the evolution of Eurojust is characteristic in this context; see ch 4.
79 On this point, see H Nilsson, Decision-Making in EU Justice and Home Affairs: Current Shortcomings and
Reform Possibilities, Sussex European Institute Working Paper No 57, November 2002, 4.
80 Examples of aborted presidency initiatives include a Spanish initiative for a Convention on the suppres-
sion by customs administrations of illicit drug trafficking on the high seas (Council Doc 5382/02, Brussels,
4 February 2002); a Greek initiative for a Framework Decision on the prevention and control of trafficking
in human organs (Council Doc 6290/03, Brussels, 13 February 2003); and, more controversially, a Greek
initiative for a Framework Decision on the application of the ne bis in idem principle (Council Doc 6356/03,
d. The Role of the CJEU
The Treaty Framework

Another significant limitation to the Commission’s powers under the third pillar was
that it did not have a right to institute infringement proceedings against Member
States, which was particularly relevant in cases of the misimplementation or non-
implementation of third pillar law. This limitation on the Commission’s role as ‘guardian
of the Treaties’ presented considerable challenges in ensuring the timely and appro-
priate implementation of third pillar instruments by Member States, with Member
States’ implementation records in the third pillar being consistently criticised by the
Commission.81 The absence of infringement proceedings was not the only limit to judi-
cial control in the third pillar.82 The role of the CJEU was strengthened in comparison
with the situation under Amsterdam, but remained subject to significant limitations. The
Court’s third pillar jurisdiction was delineated by (then) Articles 46(b) and 35 TEU.83
The Court did have jurisdiction to give preliminary rulings on the validity and inter-
pretation of Framework Decisions and decisions, on the interpretation of conventions,
and on the validity and interpretation of the measures implementing them.84 However,
such jurisdiction was subject to acceptance by Member States85 – and not all Member
States declared acceptance.86 This limitation of the preliminary ruling jurisdiction –
introduced largely at the insistence of the UK, which, unsurprisingly, did not accept
such jurisdiction thus far87 – was extremely detrimental, in that it limited the avenues of
cooperation between Luxembourg and national courts, and deprived national courts of
Brussels, 13 February 2003; on the issues resulting from the non-harmonisation of ne bis in idem across the
EU, see ch 3). An example of a ‘watered-down’ proposal is the Spanish initiative on the setting up of a network
of contact points of national authorities responsible for private security (Council Doc 5135/02, Brussels,
29 January 2002), which ended up as a Council Recommendation (OJ C153, 27 June 2002, 1).
81 For criticism of Member States’ implementation of third pillar measures, see European Commission,
‘Report on Implementation of The Hague Programme for 2007’, COM (2008) 373 final, Brussels, 2 July 2008;
and for more details, see the accompanying Commission Staff Working Document SEC (2008) 2048, Brussels,
2 July 2008.
82 On the role of the ECJ in the third pillar, see A Arnull, ‘ Taming the Beast? The Treaty of Amsterdam and
the Court of Justice’ in O’Keeffe and Twomey (n 42) 109–22; Dashwood (n 54); S Peers, ‘Salvation outside the
Church: Judicial Protection in the Third Pillar after the Pupino and Segi Judgments’ (2007) 44 CML Rev 883;
Denza (n 28); Fennelly (n 74); A Albors-Llorens, ‘Changes in the Jurisdiction of the European Court of Justice
under the Treaty of Amsterdam’ (1998) 35 CML Rev 1273.
83 See also art 2(1) of the Protocol on the Schengen acquis. For further details, see Peers (n 82).
84 Article 35(1). Note the strengthening of the provision with regard to the pre-existing instrument of
Conventions in comparison to Maastricht, which left the determination of ECJ jurisdiction to the specific
Conventions and did not include a general Treaty provision establishing such jurisdiction.
85 Via a declaration: art 35(2). Even if they accept jurisdiction, Member States can allow references only by
courts and tribunals against whose decisions there is no judicial remedy under national law. This is similar to
the limitation of the Court’s jurisdiction in Title IV; see art 68 EC.
86 Not all Member States made a Declaration under Article 35(2) TEU, including Denmark, Ireland and
the UK. According to the Court of Justice, no official information was available in March 2008 with regard to
Declarations by Bulgaria, Cyprus, Estonia, Malta, Poland, Romania and Slovakia. The remaining 17 Member
States have made such Declarations with varying content. For details (including the relevant OJ references),
see note by the ECJ Research and Documentation Service, ‘Jurisdiction of the Court of Justice to Give Prelimi-
nary Rulings on Police and Judicial Cooperation in Criminal Matters’, March 2008, http://curia.europa/eu/en/
instit/txtdocfr/txtsenvigueur/art35.pdf.
87 On UK resistance, see Denza (n 28) 317.
the ability to influence the development of EU law by sending to Luxembourg questions

that were shaped in their domestic legal systems.88 There may also have been an impact
on the consistency of the interpretation of EU law by national courts, although, as has
been demonstrated by the interpretation of the European Arrest Warrant by the House
of Lords, denying the right to send references to Luxembourg did not stop domestic
courts from taking into account Luxembourg interpretation of third pillar law and
applying it in their domestic context.89
The Court also established jurisdiction to review the legality of Framework
Decisions and decisions on the grounds of lack of competence, infringement of an
essential procedural requirement, infringement of the Treaty or of any rule of law relat-
ing to its application, or misuse of powers; however, standing was limited to Member
States and the Commission, and was not extended to individuals.90 The Court also had
jurisdiction to rule under certain conditions on any dispute between Member States
regarding the interpretation or application of third pillar instruments, and on similar
disputes between Member States and the Commission regarding the interpretation of
conventions only.91 However, mirroring Member States’ willingness to keep domestic
operational action in criminal matters out of bounds, the Court did not have jurisdic-
tion ‘to review the validity or 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’.92 This represented a considerable limitation of
judicial control on operational action under the third pillar.93
Judicial Protection
The limits to the Court’s jurisdiction raised a number of concerns regarding the capacity
of the third pillar framework to provide effective judicial protection for affected indi-
viduals. The issue of judicial protection arose most prominently in the context of EU
counter-terrorism measures: along with their significant human rights implications,
these measures present considerable legal complexity as they may transcend one pillar
and represent cross-pillar initiatives, while also representing a merging of internal with
external EU criminal law, and involve the incorporation of international commitments
into EU law. In this context, a distinction can be made between two categories of situ-
ations: instances where the EU legislator did not have any discretion in implementing
88 On this point, see also Arnull (n 82) 118.
89 See in particular the case of Dabas v High Court of Justice, Madrid [2007] UKHL 6, where the House
of Lords referred to Pupino to interpret the domestic Extradition Act 2003 in the light of the Framework
Decision on the European Arrest Warrant. For details, see V Mitsilegas, ‘Drafting to Implement EU Law:
The European Arrest Warrant in the United Kingdom’ in H Xanthaki (ed), Legislative Drafting: A Modern
Approach. Essays in Honour of Sir William Dale (Routledge, 2008) 199–212. For accurate predictions on the
effect of ECJ third pillar preliminary rulings on UK courts, see Denza (n 28) 317; and Arnull (n 82) 118.
On the erga omnes effects of preliminary rulings, see K Lenaerts, ‘The Rule of Law and the Coherence of the
Judicial System of the European Union’ (2007) 44 CML Rev 1625, 1641–45.
90 Article 35(6). Arnull has criticised the failure to grant to individuals standing with regard Decision:
Arnull (n 82) 119.

91 Article 35(7).
92 Article 35(5).
93 It has been argued that the practical effect of Article 35(5) may be limited as the provision is concerned
with national, and not EU, measures. See A Arnull, The European Union and its Court of Justice, 2nd edn
(Oxford University Press, 2006) 134.
UN measures; and instances where the EU legislator had some degree of discretion in
implementation by specifying individually the persons, groups and entities affected.94
The first category of cases will be examined in Chapter 10.95 In the second category, two
important cases concerning judicial protection arose involving the adoption of a cross-
pillar Common Position which implemented Resolution 1373(2001) of the UN Security
Council (UNSC) on terrorist finance.96 Individuals and organisations affected by this
Common Position sought recourse to the Court of First Instance97 and, on appeal, to
the Court of Justice.98 Central to these cases was the question of effective judicial protec-
tion and remedies to challenge the inclusion of those concerned within the scope of EU
restrictive measures.
The Court of Justice upheld the Court of First Instance’s ruling with regard to the
applicant’s action for damages: based on then Articles 46 and 35 TEU (with the Court
stating that the latter ‘confers no jurisdiction on the Court of Justice to entertain any
action for damages whatsoever’),99 as well as then Article 41(1) TEU (on compensa-
tion for damages caused by EU institutions),100 the Court confirmed that no action for
damages is provided for in the third pillar. However, it did go one step further when
examining the issue of effective judicial protection in the context of preliminary rulings.
In a striking judgment, it applied its first pillar case law on the right to make a reference
for a preliminary ruling to the third pillar,101 stating that this right exists ‘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’.102 On the basis of this substantive test,
and notwithstanding the fact that Article 35 did not confer ECJ jurisdiction in this
regard, the Court held that ‘it has to be possible to make subject to review by the Court a
Common Position which, because of its content, has a scope going beyond that assigned
by the EU Treaty to that kind of act’.103 The Court would have jurisdiction to find ‘that
the Common Position is intended to produce legal effects in relation to third parties, to
accord it its true classification and to give it a preliminary ruling’.104 It would also have
jurisdiction to review the lawfulness of Common Positions under the conditions set out
in then Article 35(6) TEU.105
94 On this distinction, see Court of First Instance, Case T–47/03, Sison v Council [2007] ECR I-1233,
paras 147–50.
95 For an analysis of the issues raised by the relationship between international law and EU law for judicial
protection, see ch 8.
96 Council Common Position 2001/931 adopted under Articles 15 and 34 TEU ‘on the application of specific
measures to combat terrorism’ [2001] OJ L344, 28 December, 93. This Common Position has been amended
a number of times since to update the lists of individuals and organisations affected by it; for the latest version
at the time of writing, see Council Decision (CFSP) 2018/475 of 21 March 2018 updating the list of persons,
groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of
specific measures to combat terrorism, and repealing Decision (CFSP) 2017/1426 [2019] OJ L79, 22 March, 26.
97 Cases T-338/02 ECR [2004] II–1647 (Segi) and T-333/02 (Gestoras).
98 ibid.
99 ibid para 46.
100 ibid para 47. The Court referred to its judgment in the case Spain v Eurojust; see ch 4.
101 The Court has also applied on a number of occasions the admissibility rules of Article 234 EC to
third pillar cases; see Peers (n 82) 887–88.

102 Segi and Gestoras (n 97) para 53.
103 ibid para 54.
104 ibid.
105 ibid para 55.
The Court’s judgments in Gestoras Pro Amnistia and Segi represented a clear effort
to address the criticism that it was reluctant to go beyond the Treaty constraints and
provide effective judicial protection to individuals affected by far-reaching restrictive
measures, such as their inclusion on terrorist lists,106 which were adopted with little
scrutiny.107 The substantive test adopted could address the practice of Member States
in the Council choosing to adopt restrictive measures with human rights implications
by choosing a form of instrument, such as Common Positions, whose legal status was
unclear and which were subject to minimal judicial scrutiny on the basis of the letter of
the EU Treaty – this may also be the case in particular in cases of a combined second
and third pillar legal basis.108 The Court indicated its willingness to look behind the
formal classification of a measure and to provide a mechanism for review for measures
affecting the rights of individuals irrespective of such classification, albeit in a decentral-
ised manner, via the preliminary rulings route.109 According to the Court, this avenue
constituted a remedy, and ironically for the applicants, their claim that there was no
effective judicial protection at the EU level was rejected.110
Another source of judicial protection concerns proved to be not the letter of Title VI
(and Title IV for that matter), but the implementation of these provisions in practice.
It was thought that the conduct of preliminary ruling proceedings in Luxembourg, in
particular their lengthy duration, was not appropriate for cases involving Justice and
Home Affairs matters, which involve situations such as individuals in custody and
require speedy resolution.111 The President of the Court subsequently presented to
the Council a request by the Court to amend its Statute with a view to instituting an
106 For a critical overview of the development of EU terrorist lists, see E Guild, ‘ The Uses and Abuses of
Counter-terrorism Policies in Europe: The Case of the “Terrorist Lists”’ (2008) 46(1) Journal of Common
Market Studies 173.
107 A degree of willingness to provide some avenues for judicial review had been demonstrated a few months
earlier by the Court of First Instance in Case T-228/02 OMPI v Council [2006] ECR II-4665. The Court
dismissed the applicant organisation’s action for annulment of the Common Position as inadmissible, ruling
that neither the second nor the third pillar contains provisions for action for annulment (paras 45–54, with the
Court stressing in para 54 that these pillars provide a ‘limited system of judicial review’). However, the Court
did accept jurisdiction to hear an action for annulment directed against a Common Position adopted on the
basis of arts 15 and 34 TEU ‘only strictly to the extent that, in support of such an action, the applicant alleges
an infringement of the Community’s competences’ (para 56). In this context, the Court found the application
to be unfounded. It then went on to examine issues of judicial protection with regard to first pillar measures
implementing the Common Position. For commentaries on OMPI, see Guild (n 106); and C Eckes, ‘Case Note’
(2007) 44 CML Rev 1117.
108 The impact of the judgment on Member States’ discretion to choose the form of legislative action in the
third pillar remains to be seen. It must be recalled in this context that the Court has accepted a wide range of
discretion in the European Arrest Warrant case. However, there is a significant difference as that case involved
the choice between two legally binding measures (a Convention and a Framework Decision). The solution
may be different if the legal classification of a measure has a substantial impact on judicial protection.
109 On this point, see also Peers (n 82) 898.
110 Segi and Gestoras (n 97) para 57. Commentators called the Court’s rulings a ‘Pyrrhic victory’ for the
applicants; see A Johnston, ‘The European Union, the Ongoing Search for Terrorists’ Assets and a Satisfactory
Legal Framework: Getting Warmer or Colder?’ (2007) 66 Cambridge Law Journal 523, 523–25.
111 This issue was highlighted inter alia in a discussion paper presented by the Court in 2006 where it was
noted that the average duration of preliminary ruling procedures has been reduced from 25.5 months in 2003
to 20.4 months in 2005. See V Skouris, President of the Court of Justice, ‘Treatment of questions referred
for a preliminary ruling concerning the area of freedom, security and justice’, Council Doc 13272/06, Brussels,
28 September 2006, 2.
The Third Pillar and the Constitutional Principles of the Community 17
emergency preliminary ruling procedure.112 Negotiations resulted in a Council Decision

amending the Protocol on the Statute of the Court of Justice,113 followed by amend-
ments to the Court’s Rules of Procedure.114 The new framework allowed in particular
with regard preliminary rulings in Justice and Home Affairs matters an urgent proce-
dure at the request of the national court or, exceptionally, following the Court’s own
motion.115 Rulings were to be given by a designated court chamber, after hearing the
Advocate General.116 According to an Information Note published by the Court, the
urgent procedure must be requested ‘only when it is absolutely necessary for the Court
to give its ruling on the reference as quickly as possible’, including cases where a person
is detained or deprived of their liberty and where the answer to the question raised is
decisive as to the assessment of the person’s legal situation.117 This new procedure thus
contributed significantly towards expediting procedures and achieving legal certainty in
cases having a significant impact on fundamental rights.118
IV. The Third Pillar and the Constitutional Principles

of the Community: The Contribution
of the Court of Justice
The beginning of the 2000s witnessed the proliferation of judgments from Luxembourg
relating to the third pillar. These judgments – which must be viewed in conjunction
with case law by national courts, including constitutional courts – have played a major
role in the development of the principles of EU criminal law. A central feature in this
context has been the interpretation of the reach of the third pillar provisions (which, as
explained above, form a more limited, less supranational framework than the Commu-
nity law first pillar), and the determination of the applicability of first pillar Community
law principles to the third pillar.119 The influence of the Court of Justice120 and, where
appropriate, national courts in the development of legal principles for the third pillar
112 Justice and Home Affairs Council Conclusions of 18 September 2007, 15 (Council Doc 12604/07,
Presse 194).
113 [2008] OJ L24, 29 January, 42.
114 ibid 39.
115 For details see Rules of Procedure, new Article 104b inserted by the 2008 amendments.
116 Article 104b(5). In cases of extreme urgency, the Chamber may decide to omit the written part of the
procedure altogether. See art 104b(4).

117 ‘Information Note on References from National Courts for a Preliminary Ruling. Supplement Following
the Implementation of the Urgent Preliminary Ruling Procedure Applicable to References Concerning the
Area of Freedom, Security and Justice’, http://curia.europa.eu/instit/txtdocfr/txtsenvigueur/noteppu.pdf.
118 The Court has already applied the expedited procedure in a case involving the European Arrest Warrant.
See the judgment of 17 July 2008 in Case C-66/08, Kozlowski [2008] ECR I-06041. For cases decided post-
Lisbon, see Case C-168/13 PPU Jeremy F, ECLI:EU:C:2013:358; Joined Cases C-404/15 and C-659/15 PPU,
Aranyosi and Căldăraru, ECLI:EU:C:2016:198; Case C-108/16 PPU Dworzecki, ECLI:EU:C:2016:346;
Case C-241/15, Bob-Dogi, ECLI:EU:C:2016:385; Case C-294/16 PPU, JZ, ECLI:EU:C:2016:610; Case C-452/16,
PPU Poltorak, ECLI:EU:C:2016:858; Case C-453/16 PPU, Özçelik, ECLI:EU:C:2016:860; Case C-477/16 PPU,
Kovalkovas, ECLI:EU:C:2016:861.
119 For details, see Mitsilegas (n 62).
120 The term ‘CJEU’ will be used primarily to refer to the Court, although there will inevitably be references
to the Court as ‘ECJ’, given the usage and evolution of the term.
and EU criminal law more broadly will be examined in the relevant sections throughout
this book. This section aims to provide a general overview of the development by the
Court of such principles by focusing in particular on the application of constitutional
principles of (first pillar) Community law to the third pillar.121 In this context, the devel-
opment of the relationship between both the first and third pillars, but also between EU
law and national law, is becoming increasingly significant.
A. Primacy
A question that would inevitably emerge in the context of the evolution of third pillar
law is whether the latter has primacy over national law, in particular national consti-
tutional law. This issue is especially thorny in the light of the nature of the matters
covered by the third pillar, which is at the heart of state sovereignty and has consider-
able implications for both fundamental rights and national constitutional principles.
Not surprisingly, it was national constitutional and supreme courts that had to deal
with primacy implications when examining the implementation of a flagship third pillar
measure, the European Arrest Warrant Framework Decision, in their domestic legal
orders. Different courts gave different solutions in the light of the domestic constitu-
tional and legal framework, but no firm views on primacy have been offered. These
courts began to varying degrees a constitutional dialogue with the Court of Justice with
regard to the development of EU criminal law. The Court was proactive in ruling on the
issue of primacy of first pillar law over third pillar law. In a number of cases, dealing
primarily with competence issues and legal basis disputes, it confirmed the primacy of
the first pillar based on Article 47 TEU.122
B. Conferral in the Light of Effectiveness

The Court has had to rule in a number of high-profile cases on issues of conferral of
competence in criminal matters. With the choice of pillars having significant repercus-
sions on the powers of EU institutions, unsurprisingly these cases were prompted by
efforts by EU institutions to boost their institutional prerogatives. In all these cases,
the Court used first pillar principles and methods in order to allocate the appropriate
legal basis. One line of case law concerned challenges by the Commission with regard
to the choice of a third pillar legal basis for the adoption of legislation on the definition
of criminal offences and the imposition of criminal sanctions, with the Court confirm-
ing first pillar competence in certain criminal matters twice: the environmental crime
and the ship-source pollution cases.123 In both cases, effectiveness was central in the
121 The term ‘constitutional principles of EC law’ is understood to include ‘systemic principles which under-
lie the constitutional structure of the Community and define the Community legal edifice’; see T Tridimas,
The General Principles of EU Law, 2nd edn (Oxford University Press, 2006) 4. Tridimas referred to these
principles as a subcategory of the general principles of Community law.
122 For more details on this, see ch 2.
123 For more details on this, see ch 2.
Court’s reasoning. Rather than treating criminal law as a special case confined to the
third pillar, the Court viewed it in the same way as any other field of law – as a means
to an end towards the effectiveness of Community law.124 Another case concerned an
intervention by the European Parliament challenging the legal basis of an international
agreement on passenger name records (PNRs) concluded between the Community and
the US under the first pillar. In this case, the Court applied the first pillar criteria in
looking at the appropriate legal basis of an instrument, noted the counter-terrorism
focus of the agreement and went the opposite way to the previous cases, ruling that the
agreement should have been concluded under a third pillar legal basis.125 These cases
have had considerable implications for subsequent legislative action in criminal matters.
C. Fundamental Rights
Third pillar law is inextricably linked with issues relating to the protection of funda-
mental rights. Such issues have arisen explicitly or implicitly in all cases involving EU
criminal law. As seen above, one category of cases involves issues of fundamental rights,
including judicial protection at the EU level, concerning in particular access to the
Luxembourg Court and remedies. The Court has increasingly been trying to broaden
avenues of judicial protection, with the issue of effective judicial protection becoming
increasingly central. Another line of cases involves the implications of third pillar law
on the rights of the defendant at the national level. Thus, major cases have involved
the application of the European Arrest Warrant,126 the rights of the defendant against
the rights of the victim127 and the rights of the defendant in cases involving double
jeopardy.128 Two main – and not entirely consistent – trends can be discerned in this
context. The first is the Court’s assertions of the centrality of fundamental rights in EU
law, including third pillar law (with the Court referring repeatedly to the European
Convention on Human Rights (ECHR), but also explicitly to the Charter of Funda-
mental Rights of the European Union in the European Arrest Warrant case) and the
obligations of national courts to take into account and uphold such rights. However, the
second tendency of the Court is paradoxically to limit the applicability of these rights
by ruling that aspects of third pillar law do not involve substantive criminal law, but
procedure; therefore, the special human rights safeguards reserved for criminal law do
not apply.129 This is a worrying trend, as it transforms criminal law into a field where
124 For further details, see ch 2. Effectiveness also played a part in the Court’s application of the first pillar
principle of indirect effect to the third pillar. As will be seen below, in Pupino the Court linked effectiveness
with the duty of loyal cooperation enshrined in Article 10 EC and justified the application of loyal cooperation
in the third pillar – and subsequently indirect effect – on the grounds of the effective achievement of this time
an EU objective: an ever closer Union as enshrined in Article 1 TEU.
125 On PNRs, see ch 9.
126 See ch 4.
127 See in particular Pupino, below.
128 See chs 5 and 6.
129 Note also the case law of the Court of First Instance regarding freezing orders: the Court has
repeatedly held that as a precautionary measure, these measures do not constitute criminal sanctions and do
not imply any accusation of a criminal nature (Sison (n 94) para 101; see also Case T–315/01, Kadi v Council
[2005] ECR II-3649, para 248; and Case T-306/01, Yusuf and Al Barakaat International Foundation v Council
maximum EU-led enforcement capacity is matched with a shrinking field of applicabil-

ity of human rights safeguards.130
D. Loyal Cooperation and (In)Direct Effect:

The Impact of Pupino
As noted above, one of the fundamental differences between first and third pillar law
is that, as is stated explicitly in the TEU, Framework Decisions – the main legislative
instrument in the third pillar and in general mirroring the design of Directives – do
not have direct effect.131 This limitation reflects Member States’ sensitivity with regard
to the potential effects of third pillar law. The limitation is significant as it considerably
restricts the potential for enforcement of third pillar law by blocking avenues for indi-
viduals to challenge their legal position as resulting from EU criminal law before the
domestic courts. With the Treaty referring only to direct effect and excluding it in the
context of Framework Decisions, however, the question arises as to whether other prin-
ciples of Community law ensuring the enforcement of EC law in national courts – such
as indirect effect – apply to the third pillar.
The Luxembourg Court dealt with this issue in the Pupino judgment.132 This case
arose after a reference by an Italian court asking to what extent the Italian Code of
Criminal Procedure could be interpreted, in the light of a Framework Decision on the
standing of victims in criminal proceedings,133 as allowing children allegedly having
suffered a number of forms of abuse by their teacher to testify under a special procedure,
and not in normal court proceedings, against the teacher. The Italian Code of Crimi-
nal Procedure allowed for this possibility for children under 16 only in cases involving
sexual offences or offences with a sexual background. The Luxembourg Court was thus
asked to decide whether, and in which context, Framework Decisions entail indirect
effect.
[2005] ECR II-3533 para 299, in which the Court distinguished between asset freezing and confiscation).
However, the Court has referred to the criminal procedure standards developed by the Strasbourg Court
as a standard by which to interpret the extent of the obligation for a fair hearing in freezing decisions.
See Sison (n 94) para 182. On the Kadi litigation, see ch 10.
130 On this point, see V Mitsilegas, ‘ The Transformation of Criminal Law in the “Area of Freedom, Security
and Justice”’ (2007) 26 Yearbook of European Law 1.

131 Article 34(2)(b) TEU. It is interesting to note while the judge-made principle of direct effect makes its
appearance in the TEU in this ‘negative’ manner.

132 Case C-105/03, Maria Pupino [2005] ECR I-5285. For commentaries on the case, see, inter alia: S Prechal,
‘Direct Effect, Indirect Effect, Supremacy and the Evolving Constitution of the European Union’ in Barnard
(n 42) 35–70; Peers (n 82); JR Spencer, ‘Child Witnesses in the European Union’ (2005) 64(3) Cambridge Law
Journal 569; M Fletcher, ‘Extending “Indirect Effect” to the Third Pillar: The Significance of Pupino?’ (2005)
30 European Law Review 862; Editorial, ‘The Court of Justice and the Third Pillar’ (2005) 30 European Law
Review 773; C Hillgruber, Anmerkung, Juristenzeitung, no.17, 2005, 841–844; D Sarmiento, ‘Un paso más en
la constitucionalización del tercer pilar de la Union europea. La sentencia Maria Pupino y el efecto directo de
las decisiones marco’ (2005) 10 Revista Electronica de Estudios Internacionales; and, more generally, H Labayle,
‘Architecte ou Spectatrice? La Cour de Justice de l’Union dans l’Espace de Liberté, Sécurité et Justice’ (2006) 42
Revue Trimestrielle du Droit Européen 1.
133 [2001] OJ L82, 22 March, 1.
After asserting jurisdiction,134 the Court accepted that the ‘interpretative obliga-
tion’ of national courts under Community law also extended to third pillar Framework
Decisions. The Court based its approach to a large extent on the binding character of
Framework Decisions. It stressed that the wording of Article 34(2)(b) TEU on Frame-
work Decisions is very closely inspired by that of the third paragraph of Article 249
EC on Directives, with Article 34(2)(b) EU conferring a binding character on Frame-
work Decisions in the sense that they ‘bind’ the Member States ‘as to the result to be
achieved but shall leave to the national authorities the choice of form and methods’.135
The Court then asserted that ‘the binding character of Framework Decisions, formu-
lated in terms identical to those of the third paragraph of Article 249 EC, places on
national authorities, and particularly national courts, an obligation to interpret national
law in conformity’.136 The limits placed on the jurisdiction of the Court do nothing to
invalidate that conclusion.137
The Court backed up its conclusion with a further line of argumentation focusing on
the need to achieve the objectives of the EU effectively, which is linked to the principle
of loyal cooperation. According to the Court, irrespective of the degree of integration
envisaged by the Amsterdam Treaty, it is perfectly comprehensible that the authors of
the TEU should have considered it useful to make provision, in the context of Title VI
of that Treaty, for recourse to legal instruments with effects similar to those provided for
by the EC Treaty, in order to contribute effectively to the EU’s objectives.138 As with its case
law on ne bis in idem, the Court seems to have adopted a rather ahistorical approach
to European integration, effectively arguing that the degree of integration envisaged by
Member States when signing the Amsterdam Treaty is irrelevant.139 In this context, the
Court stated that it would be difficult for the EU to carry out the task of creating an ever
closer Union (enshrined in Article 1 TEU) effectively if the principle of loyal coopera-
tion – which is enshrined in Article 10 of the EC Treaty – were not also binding in the
area of police and judicial cooperation in criminal matters.140 On the basis of these
arguments, the Court asserted that the principle of conforming interpretation is binding
in relation to Framework Decisions.141
Having applied the Community law principle of interpretative obligation to the third
pillar, the Court referred to first pillar case law to set out, in a manner similar to the first
pillar, the limits and contours of indirect effect.142 The Court reiterated that the inter-
pretative obligation of national courts is limited by general principles of law, such as
legal certainty and non-retroactivity, adding that, in particular, those principles prevent
that obligation from leading to the criminal liability of persons who contravene the
134 See Pupino (n 132) paras 19–30 of the judgment, in particular on the applicability of art 234 EC to the
third pillar.
135 ibid para 33.
136 ibid para 34.
137 ibid para 35.
138 ibid para 36.
139 On the ne bis in idem case law, see ch 3.
140 Pupino (n 132) paras 41 and 42.
141 ibid para 43.
142 For an analysis, see, inter alia, G Betlem, ‘ The Doctrine of Consistent Interpretation: Managing Legal
Uncertainty’ (2002) 22 Oxford Journal of Legal Studies 397.

provisions of a Framework Decision from being determined or aggravated on the basis

of such decision alone, independently of an implementing law.143 However, the Court,
following the Opinion of AG Kokott,144 noted that the present case did not concern the
extent of criminal liability of the person concerned, but the conduct of the proceedings and
the means of taking evidence.145 Further on in the judgment, the Court stated that the
principle of conforming interpretation cannot serve as the basis for an interpretation of
national law contra legem. However, following its recent judgment in Pfeiffer,146 the
Court qualified this limitation by adding that indirect effect does require that, where
necessary, the national court consider the whole of national law in order to assess how far
it can be applied in such a way as to not produce a result contrary to that envisaged by
the Framework Decision.147
Having established the principle and its limits, the Court went on to examine the
specific case.148 It confirmed that the achievement of the aims of the Framework Deci-
sion on the rights of victims in criminal proceedings require that a national court should
be able, in respect of particularly vulnerable victims, to use a special procedure, such as
the one provided for already in Italian law.149 However, in the light of the concerns
raised regarding the potential impact of such interpretation on the rights of the defend-
ant, the Court added two caveats: that, in the light of the Framework Decision, the
adopted conditions for giving evidence must be compatible with the basic legal princi-
ples of the Member State;150 and that the national court must ensure that the application
of those measures is not likely to ‘make the criminal proceedings against Mrs Pupino,
considered as a whole, unfair within the meaning of Article 6 of the [ECHR], as inter-
preted by the European Court of Human Rights’.151
Pupino was a landmark ruling. The Court did not hesitate to transplant Community
law to the third pillar by stating that Framework Decisions entail indirect effect. This
is notwithstanding the fact that the third pillar itself excluded the application of direct
effect – the basic Community law principle whose limits are inextricably linked to the
development of the indirect effect concept by the ECJ. It is also irrespective of the degree
of integration the states signatory to the Amsterdam Treaty wished to achieve in crimi-
nal matters – the Court disassociated the envisaged degree of integration in Amsterdam
from the need to ensure the effective achievement of EU objectives. The reasoning of
the Court is noteworthy, especially the emphasis on the principle of loyal cooperation.
At that time, the principle was enshrined in Article 10 of the EC Treaty,152 but not in the
third pillar – the Court seems to apply loyal cooperation by analogy to the third pillar,
143 Pupino (n 132) paras 44 and 45, including references to the Court’s case law.
144 Opinion delivered on 11 November 2005: [2005] ECR I-5285, para 42.
145 ibid para 46.
146 Cases C-397/01–C-403/01, Pfeiffer et al v Deutsches Rotes Kreuz [2004] ECR I-8835, in particular
para 115. For a commentary, see Sacha Prechal, ‘Case Note’ [2005] 42 CML Rev 1445.
147 ibid para 47. See also Fletcher (n 132) 873.
148 Pupino (n 132) paras 50–61.
149 ibid para 56.
150 ibid para 57. The Court referred to art 8(4) of the Framework Decision.
151 Pupino (n 132) para 60. In the preceding paras, the Court stressed the fact that according to art 6(2),
TEU, the EU respects fundamental rights and that the Framework Decision must be interpreted in a way that
fundamental rights are respected (paras 58 and 59).
152 Under the current rules, the principle of sincere cooperation is enshrined in art 4(3) TEU.
based not on the specific objective of developing the EU as an ‘Area of Freedom,

Security and Justice’, but rather on the very general provision of Article 1 TEU calling
for the establishment of an ‘ever closer Union’.153 By focusing on the principle of loyal
cooperation, the Court not only emphasised the importance of the effective achievement
of Treaty objectives (only this time these involve the EU and not the Community);154
similarly to the Pfeiffer ruling,155 the Court also avoided linking indirect effect with the
primacy of EU law over national law.156 The Court’s silence in this regard may indicate
that, as with the issue of the application of state liability in the third pillar,157 the primacy
issue remained open.158
The impact of the application of the interpretative obligation of the national judge in
this case is striking. The Luxembourg Court in reality rewrote the Italian Code of Crim-
inal Procedure. Following the Court’s guidance, the domestic judge had little choice
but to allow minors in this case to take advantage of the Code’s protective provisions,
although they were not covered by the legislation. This led to the criticism that in fact
the Court conferred not indirect but direct effect to the Framework Decision, in stark
breach of the wording of Article 34 TEU.159 The Court seemed to overcome potential
obstacles caused by the argument that adding a category of privileged witnesses to the
Italian Code of Criminal Procedure in the face of the silence of the Code in this regard
would in fact be contra legem by using the Pfeiffer formula that the national judge must
consider national law ‘as a whole’. However, at that time, this raised important questions
regarding the impact of such consideration on the internal coherence of national crimi-
nal justice systems, whose balance may be disturbed by piecemeal attempts of national
153 See K Lenaerts and T Corthaut, ‘Of Birds and Hedges: The Role of Primacy in Invoking Norms of EU
Law’ (2006) 31 European Law Review 287. This reasoning has been heavily criticised by the European Law
Review editorial (Editorial (n 132)), where it is stated that art 1 TEU is not subject to the Court’s jurisdiction
(art 46 TEU). Fletcher ((n 132) 71) also criticises the emphasis on loyal cooperation by arguing that the third
pillar covers cooperation between Member States. However, this seems to be an extremely ‘intergovernmental’
view of the third pillar, whose system indeed shares a number of common features with the first pillar, and
laws stemming from it represent a further degree of integration from international law instruments.
154 For an interesting use of the duty of loyal cooperation in the context of first pillar measures with a crimi-
nal law dimension, see inter alia the judgments of the Court of First Instance in OMPI (n 107) paras 122 et seq
and Sison (n 94) paras 170 et seq. Referring to Pupino, the Court held that on the basis of loyal cooperation,
it is in principle for the national courts to ensure the observance of fair hearing rights in the context of EU
counter-terrorism listing measures; however, Luxembourg will be involved in cases where the Council bases
its initial decision or a subsequent decision to freeze funds on information or evidence communicated to it by
representatives of the Member States without it having been assessed by the competent national authority.
155 See Prechal (n 146).
156 See Labayle (n 132) 31. See also Lenaerts and Corthaut ((n 153) 293), who argue that ‘the Court could
have avoided this frantic search for a ground for an equivalent provision, if it had recognised that the duty of
consistent interpretation is inherent in any hierarchy of norms and thus a simple corollary of the principle of
primacy in that it is the easiest way to ensure that no inconsistent national laws are applied over EU law’.
157 Prechal takes the view that the application of loyalty can form the basis of state liability; see Barnard
(n 42) 61.
158 Peers ((n 82) 920) argues that primacy or the connected obligation to set aside national law in order to
apply Community law does not apply to the third pillar. He makes the valid point that if these principles (and
direct effect) applied to the third pillar, the essential distinctions between the first and third pillars would be
lost and the intentions of the Treaty authors would clearly be ignored. A diametrically opposite view with
regard to supremacy is put forward by Prechal, who also seems to be in favour of disapplication unless funda-
mental rights or general principles oppose such a disapplication or where the solution of the case would
require the application of a Framework Decision – and not national law – to the facts of the case; see Barnard
(n 42) 62–63.
159 Sarmiento (n 132).
judges to accommodate EU law demands in specific cases. Judges themselves could be

faced with difficult balancing exercises, especially in cases where EU law itself – as in the
case of the Framework Decision in question – is drafted in broad terms, having to take
into account all complex parameters and interests involved in a criminal trial.
In this balancing of competing interests, Pupino raised a number of questions
regarding safeguarding the rights of the defendant in the development of the EU as an
‘Area of Freedom, Security and Justice’. In Pupino, it appeared that the interpretation
emphasised the rights of the alleged victims at the expense of the rights of the defend-
ant. This approach raised concerns as to whether the position of the defendant could
become even worse if the legislative output of the third pillar focused predominantly on
enforcement/security aspects rather than instruments protective of rights.160
These concerns were accentuated by the limits posed by the Court in existing case
law safeguards regarding indirect effect and criminal law. In Pupino, the Court seemed
to transpose all the first pillar safeguards limiting indirect effect in criminal law cases,
but then substantially qualified its position by stating that the present case does not
involve criminal law per se, but the gathering of evidence, ie, criminal procedure.161 This
narrow framing of protection in the criminal justice process raised particular concerns,
not only due to the difficulty in disassociating aspects of criminal law from criminal
procedure, but, more importantly, because it is questionable to exclude the applica-
tion of principles such as legal certainty, non-retroactivity and aggravation of a person’s
criminal liability from the criminal process and limit them, as the Court did, to ‘the
extent of the criminal liability of the person concerned’ in the light of the significant
consequences that the criminal process may have for the individual.
V. The Politics of the Third Pillar: Member States’

Security Ambitions versus Institutional
Checks and Limits
The gradual and contested institutional developments in EU criminal law as reflected
in the evolution of the third pillar were combined with increasing activity at the level of
politics and strategy by Member State governments. This activity was prominent both
within and outside the EU framework. Within the EU framework, governments were
proactive in defining strategy and policy targets within the framework of the European
Council, which determined the two major political blueprints for the development of
160 In this context, it is noteworthy that in the post-Lisbon era, a series of legislative instruments strength-
ening individual rights, including the rights to a lawyer, a translator and an interpreter, and the right to the
presumption of innocence, have been adopted. See ch 5; V Mitsilegas, ‘Trust-Building Measures in the Euro-
pean Judicial Area in Criminal Matters: Issues of Competence, Legitimacy and Inter-institutional Balance’ in
S Carrera and T Balzacq, Security versus Freedom? A Challenge for Europe’s Future (Ashgate, 2006) 287–88.
161 The question arises here of how the Court’s approach in the first pillar cases setting limits to indirect
effect to protect the individual, in particular Berlusconi (Cases C-387/02, C-391/02 and C-403/02 [2005] ECR
I-3565) will apply to first pillar criminal law after the environmental crime case (for an analysis, see ch 2).
Lenaerts and Corthaut ((n 153) 312) are of the view that the limits posed by the Court will be applicable in
these cases, assuming that first pillar criminal law will be limited to the determination of criminal liability.
The Politics of the Third Pillar 25
EU Justice and Home Affairs, the five-year plans of action adopted in Tampere in 1999
and The Hague in 2004. Moreover, governments developed a number of Action Plans as
a response to events such as 9/11 and the need to provide an imminent reaction to them.
Outside the EU framework, the Schengen example was followed by similar concerted
action by a number of Member States in the field of police cooperation. Moreover, large
Member States met regularly outside the EU framework and discussed priorities in the
field. This section will focus on the impact of government initiatives both within and
outside the EU legal framework, and will examine the implications of such action in the
light of the EU institutional framework in criminal matters prior to the entry into force
of the Lisbon Treaty.
A. Action within the EU Framework

A major actor influencing the direction of legislation and policy in EU Justice and Home
Affairs in general and EU criminal law in particular was the European Council.162
Central to the development of EU action in the field of Justice and Home Affairs was
the adoption by the European Council of two detailed, five-year legislative and policy
programmes outlined in the Tampere European Council Conclusions in 1999163 and
in the successor to Tampere, The Hague Programme of 2004.164 The strategy adopted
by the European Council was thus to provide political impetus for the development of
the objective to develop the EU as an ‘Area of Freedom, Security and Justice’ via the
adoption of target-setting mechanisms outlining long-term, detailed directives for law
and policy development.165 The agenda put forward in Tampere, but also to a lesser
extent in The Hague, was markedly ambitious, with the programmes calling for the
adoption of a plethora of EU legislative measures. However, this ambitious agenda did
not sit comfortably with the considerable institutional limitations described earlier in
this chapter. What the Member State governments proclaimed in the European Coun-
cil did not necessarily coincide with the powers they were prepared to grant to the
162 On the role of the European Council in EU Justice and Home Affairs, see J Monar, ‘Decision-Making in
the Area of Freedom, Security and Justice’ in Arnull and Wincott (n 54) 63–80.
163 For the text of the Conclusions, see www.europarl.europa.eu/summits/tam_en.htm. On the background,
see House of Lords European Union Committee (then Select Committee on the European Communities),
Prospects for the Tampere Special European Council, 19th Report, session 1998–99, HL Paper 101; see also
Mitsilegas, Monar and Rees (n 1) 91–95.
164 [2005] OJ C53, 3 March, 1. For details, see House of Lords European Union Committee, The Hague
Programme: A Five Year Agenda for EU Justice and Home Affairs, 10th Report, session 2004–05, HL Paper 84.
On different aspects of The Hague Programme, see also JW de Zwaan and FAN Goudappel (eds), Freedom,
Security and Justice in the European Union (TCM Asser Press, 2006); T Balzacq and S Carrera, ‘The Hague
Programme: The Long Road to Freedom, Security and Justice’ in Balzacq and Carrera (n 160) 1–34; D Bigo,
‘Liberty, Whose Liberty? The Hague Programme and the Conception of Freedom’ in Balzacq and Carrera
(n 160) 35–44; and V Mitsilegas, ‘Operational Co-operation and Counter-terrorism in the EU’ in F Pastore
(ed)., Supranational Counter-terrorism: A Test under Duress for EU Principles and Institutions, Centro Studi di
Political Internazionale (CeSPI), Rome, Working Paper 22/2005, 10–20.
165 On the target-setting function of Action Plans and Programmes in EU Justice and Home Affairs, see
J Monar, Specific Factors, Typology and Development Trends of Modes of Governance in the EU Justice and
Home Affairs Domain, NEWGOV Deliverable 01/17, May 2006, www.eu-newgov.org/database/DELIV/
D01D17_Emergence_NMG_in_JHA.pdf.
Another random document with
no related content on Scribd:
There were now also great consultations as to what sort of hats, coats,
and boots, should be worn in crossing the Isthmus. Wondrous accounts
constantly appeared in the New York papers of the dangers and difficulties
of these few miles of land-and-river travel, and most of the passengers,
before leaving New York, had been humbugged into buying all manner of
absurd and useless articles, many of them made of india-rubber, which they
had been assured, and consequently believed, were absolutely necessary.
But how to carry them all, or even how to use them, was the main difficulty,
and would indeed have puzzled much cleverer men.
Some were equipped with pots, pans, kettles, drinking-cups, knives and
forks, spoons, pocket-filters (for they had been told that the water on the
Isthmus was very dirty), india-rubber contrivances, which an ingenious
man, with a powerful imagination and strong lungs, could blow up and
convert into a bed, a boat, or a tent—bottles of “cholera preventive,” boxes
of pills for curing every disease to which human nature is liable; and some
men, in addition to all this, determined to be prepared to combat danger in
every shape, bade defiance to the waters of the Chagres river by buckling
on india-rubber life-preservers.
Others of the party, who were older travelers, and who held all such
accoutrements in utter contempt, had merely a small valise with a few
necessary articles of clothing, an oil-skin coat, and, very probably, a pistol
stowed away on some part of their person, which would be pretty sure to go
off when occasion required, but not before.
At last, after twenty days’ passage from New York, we made Chagres,
and got up to the anchorage towards evening. The scenery was very
beautiful. We lay about three-quarters of a mile from shore, in a small bay
enclosed by high bluffs, completely covered with dense foliage of every
shade of green.
We had but little time, however, to enjoy the scenery that evening, as we
had scarcely anchored when the rain began to come down in true tropical
style; every drop was a bucketful. The thunder and lightning were terrific,
and in good keeping with the rain, which is one of the things for which
Chagres is celebrated. Its character as a sickly wretched place was so well
known that none of us went ashore that night; we all preferred sleeping
aboard ship.
It was very amusing to watch the change which had been coming over
some of the men on board. They seemed to shrink within themselves, and to
wish to avoid being included in any of the small parties which were being
formed to make the passage up the river. They were those who had
provided themselves with innumerable contrivances for the protection of
their precious persons against sun, wind, and rain, also with extraordinary
assortments of very untempting-looking provisions, and who were
completely equipped with pistols, knives, and other warlike implements.
They were like so many Robinson Crusoes, ready to be put ashore on a
desert island; and they seemed to imagine themselves to be in just such a
predicament, fearful, at the same time, that companionship with any one not
provided with the same amount of rubbish as themselves, might involve
their losing the exclusive benefit of what they supposed so absolutely
necessary. I actually heard one of them refuse another man a chew of
tobacco, saying he guessed he had no more than what he could use himself.
The men of this sort, of whom I am happy to say there were not many,
offered a striking contrast to the rest in another respect. On arriving at
Chagres they became quite dejected and sulky, and seemed to be oppressed
with anxiety, while the others were in a wild state of delight at having
finished a tedious passage, and in anticipation of the novelty and excitement
of crossing the Isthmus.
In the morning several shore-boats, all pulled by Americans, came off to
take us ashore. The landing here is rather dangerous. There is generally a
very heavy swell, causing vessels to roll so much that getting into a small
boat alongside is a matter of considerable difficulty; and at the mouth of the
river is a bar, on which are immense rollers, requiring good management to
get over them in safety.
We went ashore in torrents of rain, and when landed with our baggage on
the muddy bank of the Chagres river, all as wet as if we had swum ashore,
we were immediately beset by crowds of boatmen, Americans, natives, and
Jamaica niggers, all endeavoring to make a bargain with us for the passage
up the river to Cruces.
The town of Chagres is built on each side of the river, and consists of a
few miserable cane-and-mud huts, with one or two equally wretched-
looking wooden houses, which were hotels kept by Americans. On the top
of the bluff, on the south side of the river, are the ruins of an old Spanish
castle, which look very picturesque, almost concealed by the luxurious
growth of trees and creepers around them.
The natives seemed to be a miserable set of people, and the few
Americans in the town were most sickly, washed-out-looking objects, with
the appearance of having been steeped for a length of time in water.
After breakfasting on ham and beans at one of the hotels, we selected a
boat to convey us up the river; and as the owner had no crew engaged, we
got him to take two sailors who had run away from our vessel, and were
bound for California like the rest of us.
There was a great variety of boats employed on the river—whale-boats,
ships’ boats, skiffs, and canoes of all sizes, some of them capable of
carrying fifteen or twenty people. It was still raining heavily when we
started, but shortly afterwards the weather cleared up, and we felt in better
humor to enjoy the magnificent scenery. The river was from seventy-five to
a hundred yards wide, and the banks were completely hidden by the dense
mass of vegetation overhanging the water. There was a vast variety of
beautiful foliage, and many of the trees were draped in creepers, covered
with large flowers of most brilliant colors. One of our party, who was a
Scotch gardener, was in ecstasies at such a splendid natural flowershow, and
gave us long Latin names for all the different specimens. The rest of my
fellow-passengers were a big fat man from Buffalo, two young Southerners
from South Carolina, three New Yorkers, and a Swede. The boat was rather
heavily laden, but for some hours we got along very well, as there was but
little current. Towards the afternoon, however, our two sailors, who had
been pulling all the time, began to flag, and at last said they could go no
further without a rest. We were still many miles from the place where we
were to pass the night, and as the banks of the river presented such a
formidable barricade of jungle as to prevent a landing, we had the prospect
of passing the night in the boat, unless we made the most of our time; so the
gardener and I volunteered to take a spell at the oars. But as we ascended
the river the current became much stronger, and darkness overtook us some
distance from our intended stopping-place.
It became so very dark that we could not see six feet ahead of us, and
were constantly bumping against other boats coming up the river. There
were also many boats coming down with the current at such a rate, that if
one had happened to run into us, we should have had but a poor chance, and
we were obliged to keep shouting all the time to let our whereabouts be
known.
We were several times nearly capsized on snags, and, as we really could
not see whether we were making any way or not, we came to the
determination of making fast to a tree till the moon should rise. It was now
raining again as heavily as ever, and having fully expected to make the
station that evening, we had taken no provisions with us. We were all very
wet, very hungry, and more or less inclined to be in a bad humor.
Consequently, the question of stopping or going ahead was not determined
without a great deal of wrangling and discussion. However, our two sailors
declared they would not pull another stroke—the gardener and myself were
in favor of stopping—and as none of the rest of our number were at all
inclined to exert themselves, the question was thus settled for them,
although they continued to discuss it for their own satisfaction for some
time afterwards.
It was about eight o’clock, when, catching hold of a bough of a tree
twelve or fifteen feet from the shore, we made fast. We could not attempt to
land, as the shore was so guarded by bushes and sunken branches as to
render the nearer approach of the boat impossible.
So here we were, thirteen of us, with a proportionate pile of baggage,
cramped up in a small boat, in which we had spent the day, and were now
doomed to pass the night, our miseries aggravated by torrents of rain,
nothing to eat, and, worse than that, nothing to drink, but, worse than all,
without even a dry match wherewith to light a pipe. If ever it is excusable to
chew tobacco, it surely is on such an occasion as this. I had worked a good
deal at the oar, and from the frequent alterations we had experienced of
scorching heat and drenching rain, I felt as if I could enjoy a nap,
notwithstanding the disagreeableness of our position; but, fearing the
consequences of sleeping under such circumstances in that climate, I kept
myself awake the best way I could.
We managed to get through the night somehow, and about three o’clock
in the morning, as the moon began to give sufficient light to let us see
where we were, we got under way again, and after a couple of hours’ hard
pulling, we arrived at the place we had expected to reach the evening
before.
It was a very beautiful little spot—a small natural clearing on the top of
a high bank, on which were one or two native huts, and a canvas
establishment which had been set up by a Yankee, and was called a “Hotel.”
We went to this hotel, and found some twenty or thirty fellow-travelers,
who had there enjoyed a night’s rest, and were now just sitting down to
breakfast at a long rough table which occupied the greater part of the house.
The kitchen consisted of a cooking-stove in one corner, and opposite to it
was the bar, which was supplied with a few bottles of bad brandy, while a
number of canvas shelves, ranged all round, constituted the dormitory.
We made up for the loss of our supper by eating a hearty breakfast of
ham, beans, and eggs, and started again in company with our more fortunate
fellow-travelers. The weather was once more bright and clear, and confined
as we were between the densely wooded and steaming banks of the river,
we found the heat most oppressive.
We saw numbers of parrots of brilliant plumage, and a great many
monkeys and alligators, at which there was a constant discharge of pistols
and rifles, our passage being further enlivened by an occasional race with
some of the other boats.
The river still continued to become more rapid, and our progress was
consequently very slow. The two sailors were quite unable to work all day
at the oars; the owner of the boat was a useless encumbrance; he could not
even steer; so the gardener and myself were again obliged occasionally to
exert ourselves. The fact is, the boat was overloaded; two men were not a
sufficient crew; and if we had not worked ourselves, we should never have
got to Cruces. I wanted the other passengers to do their share of work for
the common good, but some protested they did not know how to pull, others
pleaded bad health, and the rest very coolly said, that having paid their
money to be taken to Cruces, they expected to be taken there, and would
not pull a stroke; they did not care how long they might be on the river.
It was evident that we had made a bad bargain, and if these other fellows
would not lend a hand, it was only the more necessary that some one else
should. It was rather provoking to see them sitting doggedly under their
umbrellas, but we could not well pitch them overboard, or put them ashore,
and I comforted myself with the idea that their turn would certainly come,
notwithstanding their obstinacy.
After a tedious day, during which we had, as before, deluges of rain,
with intervals of scorching sunshine, we arrived about six o’clock at a
native settlement, where we were to spend the night.
It was a small clearing, with merely two or three huts, inhabited by eight
or ten miserable-looking natives, mostly women. Their lazy listless way of
doing things did not suit the humor we were in at all. The invariable reply to
all demands for something to eat and drink was poco tiempo (by-and-by),
said in that sort of tone one would use to a troublesome child. They knew
very well we were at their mercy—we could not go anywhere else for our
supper—and they took it easy accordingly. We succeeded at last in getting
supper in instalments—now a mouthful of ham, now an egg or a few beans,
and then a cup of coffee, just as they would make up their minds to the
violent exertion of getting these articles ready for us.
About half-a-dozen other boat-loads of passengers were also stopping
here, some fifty or sixty of us altogether, and three small shanties were the
only shelter to be had. The native population crowded into one of them,
and, in consideration of sundry dollars, allowed us the exclusive enjoyment
of the other two. They were mere sheds about fifteen feet square, open all
round; but as the rain was again pouring down, we thought of the night
before, and were thankful for small mercies.
I secured a location with three or four others in the upper story of one of
these places—a sort of loft made of bamboos about eight feet from the
ground, to which we climbed by means of a pole with notches cut in it.
The next day we found the river more rapid than ever. Oars were now
useless—we had to pole the boat up the stream; and at last the patience of
the rest of the party was exhausted, and they reluctantly took their turn at
the work. We hardly made twelve miles, and halted in the evening at a place
called Dos Hermanos where were two native houses.
Here we found already about fifty fellow-travelers, and several parties
arrived after us. On the native landlord we were all dependent for supper;
but we, at least, were a little too late, as there was nothing to be had but
boiled rice and coffee—not even beans. There were a few live chickens
about, which we would soon have disposed of, but cooking was out of the
question. It was raining furiously, and there were sixty or seventy of us, all
huddled into two small places of fifteen feet square, together with a number
of natives and Jamaica negroes, the crews of some of the boats. Several of
the passengers were in different stages of drunkenness, generally
developing itself in a desire to fight, and more particularly to pitch into the
natives and niggers. There seemed a prospect of a general set-to between
black and white, which would have been a bloody one, as all the passengers
had either a revolver or a bowie-knife—most of them had both—and the
natives were provided with their machetes—half knife, half cutlass—which
they always carry, and know how to use. Many of the Americans, however,
were of the better class, and used their influence to quiet the more unruly of
their countrymen. One man made a most touching appeal to their honor not
to “kick up a muss,” as there was a lady “of their own color” in the next
room, who was in a state of great agitation. The two rooms opened into
each other, and were so full of men that one could hardly turn round, and
the lady of our own color was of course a myth. However, the more violent
of the crowd quieted down a little, and affairs looked more pacific.
We passed a most miserable night. We lay down as best we could, and
were packed like sardines in a box. All wanted to sleep; but if one man
moved, he woke half-a-dozen others, who again in waking roused all the
rest; so sleep was, like our supper, only to be enjoyed in imagination, and
all we could do was to wait intently for daylight. As soon as we could see,
we all left the wretched place, none of us much improved in temper, or in
general condition. It was still raining, and we had the pleasure of knowing
that we should not get any breakfast for two or three hours.
We had another severe day on the river—hot sun, heavy rains, and hard
work; and in the afternoon we arrived at Gorgona, a small village, where a
great many passengers leave the river and take the road to Panama.
Cruces is about seven miles farther up the river, and from there the road
to Panama is said to be much better, especially in wet weather, when the
Gorgona road is almost impassable.
The village of Gorgona consisted of a number of native shanties, built, in
the usual style, of thin canes, between any two of which you might put your
finger, and fastened together, in basket fashion, with the long woody
tendrils with which the woods abound. The roof is of palm leaves, slanting
up to a great height, so as to shed the heavy rains. Some of these houses
have only three sides, others have only two, while some have none at all,
being open all round; and in all of them might be seen one or more natives
swinging in a hammock, calmly and patiently waiting for time to roll on, or,
it may be, deriving intense enjoyment from the mere consciousness of
existence.
There was a large canvas house, on which was painted “Gorgona Hotel.”
It was kept by an American, the most unwholesome-looking individual I
had yet seen; he was the very personification of fever. We had here a very
luxurious dinner, having plantains and eggs in addition to the usual fare of
ham and beans. The upper story of the hotel was a large loft, so low in the
roof that one could not stand straight up in it. In this there were sixty or
seventy beds, so close together that there was just room to pass between
them; and as those at one end became tenanted, the passages leading to
them were filled up with more beds, in such a manner that, when all were
put up, not an inch of the floor could be seen.
After our fatigues on the river, and the miserable way in which we had
passed the night before, such sleeping accommodation as this appeared very
inviting; and immediately after dinner I appropriated one of the beds, and
slept even on till daylight. We met here several men who were returning
from Panama, on their way home again. They had been waiting there for
some months for a steamer, by which they had tickets for San Francisco,
and which was coming round the Horn. She was long overdue, however,
and having lost patience, they were going home, in the vain hope of getting
damages out of the owner of the steamer. If they had been very anxious to
go to California, they might have sold their tickets, and taken the
opportunity of a sailing-vessel from Panama; but from the way in which
they spoke of their grievances, it was evident that they were home-sick, and
glad of any excuse to turn tail and go back again.
We had frequently, on our way up the river, seen different parties of our
fellow-passengers. At Gorgona we mustered strong; and we found that,
notwithstanding the disadvantage we had been under of having an
overloaded boat, we had made as good time as any of them.
A great many here took the road for Panama, but we determined to go on
by the river to Cruces, for the sake of the better road from that place. All
our difficulties hitherto were nothing to what we encountered in these last
few miles. It was one continual rapid all the way, and in many places some
of us were obliged to get out and tow the boat, while the rest used the poles.
We were all heartily disgusted with the river, and were satisfied, when
we arrived at Cruces, that we had got over the worst of the Isthmus; for
however bad the road might be, it could not be harder traveling than we had
already experienced.
Cruces was just such a village as Gorgona, with a similar canvas hotel,
kept by equally cadaverous-looking Americans.
In establishing their hotels at different points on the Chagres river, the
Americans encountered great opposition from the natives, who wished to
reap all the benefit of the travel themselves; but they were too many
centuries behind the age to have any chance in fair competition; and so they
resorted to personal threats and violence, till the persuasive eloquence of
Colt’s revolvers, and the overwhelming numbers of American travelers,
convinced them that they were wrong, and that they had better submit to
their fate.
One branch of business which the natives had all to themselves was
mule-driving, and carrying baggage over the road from Cruces to Panama,
and at this they had no competition to fear from any one. The luggage was
either packed on mules, or carried on men’s backs, being lashed into a sort
of wicker-work contrivance, somewhat similar to those used by French
porters, and so adjusted with straps that the weight bore directly down on
the shoulders. It was astonishing to see what loads these men could carry
over such a road; and it really seemed inconsistent with their indolent
character, that they should perform, so actively, such prodigious feats of
labor. Two hundred and fifty pounds weight was an average load for a man
to walk off with, doing the twenty-five miles to Panama in a day and a half,
and some men carried as much as three hundred pounds. They were well
made, and muscular though not large men, and were apparently more of the
Negro than the Indian.
The journey to Panama was generally performed on mules, but
frequently on foot; and as the rest of our party intended to walk, I
determined also to forego the luxury of a mule; so, having engaged men to
carry our baggage, we set out about two o’clock in the afternoon.
The weather was fine, and for a short distance out of Cruces the road
was easy enough, and we were beginning to think we should have a
pleasant journey; but we were very soon undeceived, for it commenced to
rain in the usual style, and the road became most dreadful. It was a
continual climb over the rocky beds of precipitous gullies, the gully itself
perhaps ten or twelve feet deep, and the dense wood on each side meeting
overhead, so that no fresh air relieved one in toiling along. We could
generally see rocks sticking up out of the water, on which to put our feet,
but we were occasionally, for a considerable distance, up to the knees in
water and mud.
The steep banks on each side of us were so close together, that in many
places two packed mules could not pass each other; sometimes, indeed,
even a single mule got jammed by the trunk projecting on either side of
him. It was a most fatiguing walk. When it did not rain, the heat was
suffocating; and when it rained, it poured.
There was a place called the “Half-way House,” to which we looked
forward anxiously as the end of our day’s journey; and as it was kept by an
American, we expected to find it a comparatively comfortable place. But
our disappointment was great, when about dark, we arrived at this half-way
house, and found it to be a miserable little tent, not much more than twelve
feet square.
On entering we found some eight or ten travelers in the same plight as
ourselves, tired, hungry, wet through, and with aching limbs. The only
furniture in the tent consisted of a rough table three feet long, and three
cots. The ground was all wet and sloppy, and the rain kept dropping through
the canvas overhead. There were only two plates, and two knives and forks
in the establishment, so we had to pitch into the salt pork and beans two at a
time, while the rest of the crowd stood round and looked at us; for the cots
were the only seats in the place, and they were so rickety that not more than
two men could sit on them at a time.
More travelers continued to arrive; and as the prospect of a night in such
a place was so exceedingly dismal, I persuaded our party to return about
half a mile to a native hut which we had passed on the road, to take our
chance of what accommodation we could get there. We soon arranged with
the woman, who seemed to be the only inhabitant of the house, to allow us
to sleep in it; and as we were all thoroughly soaked, every sort of
waterproof coat having proved equally useless after the few days’ severe
trial we had given them, we looked out anxiously for any of the natives
coming along with our trunks.
In the meantime I borrowed a towel from the old woman of the shanty;
and as it was now fair, I went into the bush, and got one of our two sailors,
who had stuck by us, to rub me down as hard as he could. This entirely
removed all pain and stiffness; and though I had to put on my wet clothes
again, I felt completely refreshed.
Not long afterwards a native made his appearance, carrying the trunk of
one of the party, who very generously supplied us all from it with dry
clothes, when we betook ourselves to our couches. They were not
luxurious, being a number of dried hides laid on the floor, as hard as so
many sheets of iron, and full of bumps and hollows; but they were dry,
which was all we cared about, for we thought of the poor devils sleeping in
the mud in the half-way house.
The next morning, as we proceeded on our journey, the road gradually
improved as the country became more open. We were much refreshed by a
light breeze off the sea, which we found a very agreeable change from the
damp and suffocating heat of the forest; and about mid-day, after a pleasant
forenoon’s walk, we strolled into the city of Panama.
CHAPTER II
ACROSS THE ISTHMUS
O N our arrival we found the population busily employed in celebrating

one of their innumerable dias de fiesta. The streets presented a very
gay appearance. The natives, all in their gala-dresses, were going the
rounds of the numerous gaudily-ornamented altars which had been erected
throughout the town; and mingled with the crowd were numbers of
Americans in every variety of California emigrant costume. The scene was
further enlivened by the music, or rather the noise, of fifes, drums, and
fiddles, with singing and chanting inside the churches, together with squibs
and crackers, the firing of cannon, and the continual ringing of bells.
The town is built on a small promontory, and is protected, on the two
sides facing the sea, by batteries, and, on the land side, by a high wall and a
moat. A large portion of the town, however, lies on the outside of this.
Most of the houses are built of wood, two stories high, painted with
bright colors, and with a corridor and veranda on the upper story; but the
best houses are of stone, or sun-dried bricks plastered over and painted.
The churches are all of the same style of architecture which prevails
throughout Spanish America. They appeared to be in a very neglected state,
bushes, and even trees, growing out of the crevices of the stones. The
towers and pinnacles are ornamented with a profusion of pearl-oyster shells,
which, shining brightly in the sun, produce a very curious effect.
On the altars is a great display of gold and silver ornaments and images;
but the interiors, in other respects, are quite in keeping with the dilapidated
uncared-for appearance of the outside of the buildings.
The natives are white, black, and every intermediate shade of color,
being a mixture of Spanish, Negro, and Indian blood. Many of the women
are very handsome, and on Sundays and holidays they dress very showily,
mostly in white dresses, with bright-colored ribbons, red or yellow slippers
without stockings, flowers in their hair, and round their necks, gold chains,
frequently composed of coins of various sizes linked together. They have a
fashion of making their hair useful as well as ornamental, and it is not
unusual to see the ends of three or four half-smoked cigars sticking out
from the folds of their hair at the back of the head; for though they smoke a
great deal, they never seem to finish a cigar at one smoking. It is amusing to
watch the old women going to church. They come up smoking vigorously,
with a cigar in full blast, but, when they get near the door, they reverse it,
putting the lighted end into their mouth, and in this way they take half-a-
dozen stiff pulls at it, which seems to have the effect of putting it out. They
then stow away the stump in some of the recesses of their “back hair,” to be
smoked out on a future occasion.
The native population of Panama is about eight thousand, but at this time
there was also a floating population of Americans, varying from two to
three thousand, all on their way to California; some being detained for two
or three months waiting for a steamer to come round the Horn, some
waiting for sailing vessels, while others, more fortunate, found the steamer,
for which they had tickets, ready for them on their arrival. Passengers
returning from San Francisco did not remain any time in Panama, but went
right on across the Isthmus to Chagres.
The Americans, though so greatly inferior in numbers to the natives,
displayed so much more life and activity, even in doing nothing, that they
formed by far the more prominent portion of the population. The main
street of the town was densely crowded, day and night, with Americans in
bright red flannel shirts, with the universal revolver and bowie-knife
conspicuously displayed at their backs.
Most of the principal houses in the town had been converted into hotels,
which were kept by Americans, and bore, upon large signs, the favorite
hotel names of the United States. There were also numbers of large
American stores or shops, of various descriptions, equally obtruding upon
the attention of the public by the extent of their English signs, while, by a
few lines of bad Spanish scrawled on a piece of paper at the side of the
door, the poor natives were informed, as mere matter of courtesy, that they
also might enter in and buy, if they had the wherewithal to pay. Here and
there, indeed, some native, with more enterprise than his neighbors,
intimated to the public—that is to say, to the Americans—in a very modest
sign, and in very bad English, that he had something or other to sell; but his
energy was all theoretical, for on going into his store you would find him
half asleep in his hammock, out of which he would not rouse himself if he
could possibly avoid it. You were welcome to buy as much as you pleased;
but he seemed to think it very hard that you could not do so without giving
him at the same time the trouble of selling.
Although all foreigners were spoken of as los Americanos by the natives,
there were among them men from every country in Europe. The Frenchmen
were the most numerous, some of whom kept stores and very good
restaurants. There were also several large gambling saloons, which were
always crowded, especially on Sundays, with natives and Americans
gambling at the Spanish game of monte; and, of course, specimens were not
wanting of that great American institution, the drinking saloon, at the bars
of which a brisk business was done in brandy-smashes, whisky-skins, and
all the other refreshing compounds for which the Americans are so justly
celebrated.
Living in Panama was pretty hard. The hotels were all crammed full; the
accommodation they afforded was somewhat in the same style as at
Gorgona, and they were consequently not very inviting places. Those who
did not live in hotels had sleeping-quarters in private houses, and resorted to
the restaurants for their meals, which was a much more comfortable mode
of life.
Ham, beans, chicken, eggs, and rice, were the principal articles of food.
The beef was dreadfully tough, stringy, and tasteless, and was hardly ever
eaten by the Americans, as it was generally found to be very unwholesome.
There was here at this time a great deal of sickness, and absolute misery,
among the Americans. Diarrhœa and fever were the prevalent diseases. The
deaths were very numerous, but were frequently either the result of the
imprudence of the patient himself, or of the total indifference as to his fate
on the part of his neighbors, and the consequent want of any care or
attendance whatever. The heartless selfishness one saw and heard of was
truly disgusting. The principle of “every man for himself” was most strictly
followed out, and a sick man seemed to be looked upon as a thing to be
avoided, as a hindrance to one’s own individual progress.
There was a hospital attended by American physicians, and supported to
a great extent by Californian generosity; but it was quite incapable of
accommodating all the sick; and many a poor fellow, having exhausted his
funds during his long detention here, found, when he fell sick, that in
parting with his money he had lost the only friend he had, and was allowed
to die, as little cared for as if he had been a dog.
An American characteristic is a weakness for quack medicines and
specifics, and numbers of men here fell victims to the national mania,
chiefly Yankees and Western men. Persons coming from a northern climate
to such a place as Panama, are naturally apt at first to experience some
slight derangement of their general health, which, with proper treatment, is
easily rectified; but these fellows were all provided with cholera preventive,
fever preventive, and boxes of pills for the prevention and the cure of every
known disease. The moment they imagined that there was anything wrong
with them, they became alarmed, and dosed themselves with all the
medicines they could get hold of, so that when they really were taken ill,
they were already half poisoned with the stuff they had been swallowing.
Many killed themselves by excessive drinking of the wretched liquor which
was sold under the name of brandy, and others, by eating ravenously of
fruit, green or ripe, at all hours of the day, or by living, for the sake of
economy, on gingerbread and spruce-beer, which are also American
weaknesses, and of which there were several enterprising Yankee
manufacturers.
The sickness was no doubt much increased by the outrageously filthy
state of the town. There seemed to be absolutely no arrangement for
cleanliness whatever, and the heavy rains which fell, and washed down the
streets, were all that saved the town from being swallowed up in the
accumulation of its own corruption.
Among the Americans en route for California were men of all classes—
professional men, merchants, laborers, sailors, farmers, mechanics, and
numbers of long gaunt Western men, with rifles as long as themselves. The
hotels were too crowded to allow of any distinction of persons, and they
were accordingly conducted on ultra-democratic principles. Some faint idea
of the style of thing might be formed from a notice which was posted up in
the bar-room of the most fashionable hotel. It ran as follows: “Gentlemen
are requested to wear their coats at table, if they have them handy.” This
intimation, of course, in effect amounted to nothing at all, but at the same
time there was a great deal in it. It showed that the landlord, being above
vulgar prejudices himself, saw the necessity, in order to please all his
guests, of overcoming the mutual prejudices existing between broadcloth
and fine linen, and red flannel with no linen,—sanctioning the wearing of
coats at table on the part of the former, by making a public request that they
would do so, while, of the shirt-sleeve gentlemen, those who had coats, and
refused to wear them, could still glory in the knowledge that they were
defying all interference with their individual rights; and in behalf of the
really coatless, those who could not call a coat their own, the idea was
kindly suggested that that garment was only absent, because it was not
“handy.”
As may be supposed, such a large and motley population of foreigners,
confined in such a place as Panama, without any occupation, were not
remarkably quiet or orderly. Gambling, drinking, and cockfighting were the
principal amusements; and drunken rows and fights, in which pistols and
knives were freely used, were of frequent occurrence.
The 4th of July was celebrated by the Americans in great style. The
proceedings were conducted as is customary on such occasions in the
United States. A procession was formed, which, headed by a number of
fiddles, drums, bugles, and other instruments, all playing “Yankee Doodle”
in a very free and independent manner, marched to the place of celebration,
a circular canvas structure, where a circus company had been giving
performances. When all were assembled, the Declaration of Independence
was read, and the orator of the day made a flaming speech on the subject of
George III. and the Universal Yankee nation. A gentleman then got up, and,
speaking in Spanish, explained to the native portion of the assembly what
all the row was about; after which the meeting dispersed, and the further
celebration of the day was continued at the bars of the different hotels.
I met with an accident here which laid me up for several weeks. I
suffered a good deal, and passed a most weary time. All the books I could
get hold of did not last me more than a few days, and I had then no other
pastime than to watch the humming-birds buzzing about the flowers which
grew around my window.
As soon as I was able to walk, I took passage in a barque about to sail
for San Francisco. She carried about forty passengers; and as she had ample
cabin accommodation, we were so far comfortable enough. The company
was, as might be expected, very miscellaneous. Some were respectable
men, and others were precious vagabonds. When we had been out but a few
days, a fever broke out on board, which was not, however, of a very serious
character. I got a touch of it, and could have cured myself very easily, but
there was a man on board who passed for a doctor, having shipped as such:
he had been physicking the others, and I reluctantly consented to allow him
to doctor me also. He began by giving me some horrible emetic, which,
however, had no effect; so he continued to repeat it, dose after dose, each
dose half a tumblerful, with still no effect, till, at last, he had given me so
much of it, that he began to be alarmed for the consequences. I was a little
alarmed myself, and putting my finger down my throat, I very soon relieved
myself of all his villainous compounds. I think I fainted after it. I know I
felt as if I were going to faint, and shortly afterwards was sensible of a lapse
of time which I could not account for; but on inquiring of some of my
fellow-passengers, I could find no one who had so far interested himself on
my account as to be able to give me any information on the subject.
I took my own case in hand after that, and very soon got rid of the fever,
although the emetic treatment had so used me up that for a fortnight I was
hardly able to stand. We afterwards discovered that this man was only now
making his début as a physician. He had graduated, however, as a
shoemaker, a farmer, and I don’t know what else besides; latterly he had
practised as a horse-dealer, and I have no doubt it was some horse-medicine
which he administered to me so freely.
We had only two deaths on board, and in justice to the doctor, I must say
he was not considered to have been the cause of either of them. One case
was that of a young man, who, while the doctor was treating him for fever,
was at the same time privately treating himself to large doses, taken
frequently, of bad brandy, of which he had an ample stock stowed away
under his bed. About a day and a half settled him. The other was a much
more melancholy case. He was a young Swede—such a delicate, effeminate
fellow that he seemed quite out of place among the rough and noisy
characters who formed the rest of the party. A few days before we left
Panama, a steamer had arrived from San Francisco with a great many cases
of cholera on board. Numerous deaths had occurred in Panama, and
considerable alarm prevailed there in consequence. The Swede was
attacked with fever like the rest of us, but he had no force in him, either
mental or bodily, to bear up against sickness under such circumstances; and
the fear of cholera had taken such possession of him, that he insisted upon it
that he had cholera, and that he would die of it that night. His lamentations
were most piteous, but all attempts to reassure him were in vain. He very
soon became delirious, and died raving before morning. None of us were
doctors enough to know exactly what he died of, but the general belief was
that he frightened himself to death. The church-service was read over him
by the supercargo, many of the passengers merely leaving their cards to be
present at the ceremony, and as soon as he was launched over the side,
resuming their game where they had been interrupted; and this, moreover,
was on a Sunday morning. In future the captain prohibited all card-playing
on Sundays, but throughout the voyage nearly one-half of the passengers
spent the whole day, and half the night, in playing the favorite game of
poker, which is something like brag, and at which they cheated each other
in the most barefaced manner, so causing perpetual quarrels, which,
however, never ended in a fight—for the reason, as it seemed to me, that as
every one wore his bowie-knife, the prospect of getting his opponent’s knife
between his ribs deterred each man from drawing his own, or offering any
violence whatever.
The poor Swede had no friends on board; nobody knew who he was,
where he came from, or anything at all about him; and so his effects were, a
few days after his death, sold at auction by order of the captain, one of the
passengers, who had been an auctioneer in the States, officiating on the
occasion.
Great rascalities were frequently practised at this time by those engaged
in conveying passengers, in sailing vessels, from Panama to San Francisco.
There were such numbers of men waiting anxiously in Panama to take the
first opportunity that offered of reaching California, that there was no
difficulty in filling any old tub of a ship with passengers; and, when once
men arrived in San Francisco, they were generally too much occupied in
making dollars, to give any trouble on account of the treatment they had
received on the voyage.
Many vessels were consequently despatched with a load of passengers,
most shamefully ill supplied with provisions, even what they had being of
the most inferior quality; and it often happened that they had to touch in
distress at the intermediate ports for the ordinary necessaries of life.
We very soon found that our ship was no exception. For the first few
days we fared pretty well, but, by degrees, one article after another became
used up; and by the time we had been out a fortnight, we had absolutely
nothing to eat and drink, but salt pork, musty flour, and bad coffee—no
mustard, vinegar, sugar, pepper, or anything of the sort, to render such food
at all palatable. It may be imagined how delightful it was, in recovering
from fever, when one naturally has a craving for something good to eat, to
have no greater delicacy in the way of nourishment than gruel made of
musty flour, au naturel.
There was great indignation among the passengers. A lot of California
emigrants are not a crowd to be trifled with, and the idea of pitching the
supercargo overboard was quite seriously entertained; but, fortunately for
himself, he was a very plausible man, and succeeded in talking them into
the belief that he was not to blame.
We would have gone into some port for supplies but, of such grub as we
had, there was no scarcity on board, and we preferred making the most of it
to incurring delay by going in on the coast, where calms and light winds are
so prevalent.
We killed a porpoise occasionally, and ate him. The liver is the best part,
and the only part generally eaten, being something like pig’s liver, and by
no means bad. I had frequently tasted the meat at sea before; it is
exceedingly hard, tough, and stringy, like the very worst beefsteak that can
possibly be imagined; and I used to think it barely eatable, when thoroughly
disguised in sauce and spices, but now, after being so long under a severe
salt-pork treatment, I thought porpoise steak a very delicious dish, even
without any condiment to heighten its intrinsic excellence.
We had been out about six weeks, when we sighted a ship, many miles
off, going the same way as ourselves, and the captain determined to board
her, and endeavor to get some of the articles of which we were so much in
need. There was great excitement among the passengers; all wanted to
accompany the captain in his boat, but, to avoid making invidious
distinctions, he refused to take any one unless he would pull an oar. I was
one of four who volunteered to do so, and we left the ship amid clamorous
injunctions not to forget sugar, beef, molasses, vinegar, and so on—
whatever each man most longed for. We had four or five Frenchmen on
board, who earnestly entreated me to get them even one bottle of oil.
We had a long pull, as the stranger was in no hurry to heave-to for us;
and on coming up to her, we found her to be a Scotch barque, bound also
for San Francisco, without passengers, but very nearly as badly off as
ourselves. She could not spare us anything at all, but the captain gave us an
invitation to dinner, which we accepted with the greatest pleasure. It was
Sunday, and so the dinner was of course the best they could get up. It only
consisted of fresh pork (the remains of their last pig), and duff; but with
mustard to the pork, and sugar to the duff, it seemed to us a most sumptuous
banquet; and, not having the immediate prospect of such another for some
time to come, we made the most of the present opportunity. In fact, we
cleared the table. I don’t know what the Scotch skipper thought of us, but if
he really could have spared us anything, the ravenous way in which we
demolished his dinner would surely have softened his heart.
On arriving again alongside our own ship, with the boat empty as when
we left her, we were greeted by a row of very long faces looking down on
us over the side; not a word was said, because they had watched us with the
glass leaving the other vessel, and had seen that nothing was handed into
the boat; and when we described the splendid dinner we had just eaten, the
faces lengthened so much, and assumed such a very wistful expression, that
it seemed a wanton piece of cruelty to have mentioned the circumstance at
all.
But, after all, our hard fare did not cause us much distress: we got used
to it, and besides, a passage to California was not like a passage to any other
place. Every one was so confident of acquiring an immense fortune there in
an incredibly short time, that he was already making his plans for the future
enjoyment of it, and present difficulties and hardships were not sufficiently
appreciated.
The time passed pleasantly enough; all were disposed to be cheerful, and
amongst so many men there are always some who afford amusement for the
rest. Many found constant occupation in trading off their coats, hats, boots,
trunks, or anything they possessed. I think scarcely any one went ashore in
San Francisco with a single article of clothing which he possessed in
Panama; and there was hardly an article of any man’s wardrobe, which, by
the time our voyage was over, had not at one time been the property of
every other man on board the ship.
We had one cantankerous old Englishman on board, who used to roll out,
most volubly, good round English oaths, greatly to the amusement of some
of the American passengers, for the English style of cursing and swearing is
very different from that which prevails in the States. This old fellow was
made a butt for all manner of practical jokes. He had a way of going to
sleep during the day in all sorts of places; and when the dinner-bell rang, he
would find himself tied hand and foot. They sewed up the sleeves of his
coat, and then bet him long odds he could not put it on, and take it off again,

Ebook Eu Criminal Law 2Nd Edition Valsamis Mitsilegas Online PDF All Chapter

Uploaded by

Copyright:

Available Formats

You might also like

Ebook Eu Criminal Law 2Nd Edition Valsamis Mitsilegas Online PDF All Chapter

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Ebook Eu Criminal Law 2Nd Edition Valsamis Mitsilegas Online PDF All Chapter

Uploaded by

Copyright:

Available Formats

EU Criminal Law 2nd Edition Valsamis

Limits to EU Powers: A Case Study of EU Regulatory

Surveillance And Privacy In The Digital Age: European,

EU Procedural Law (Oxford European Union Law Library)

Criminal Law: The Basics, 2nd Edition Jonathan. Herring

EU Copyright Law: A Commentary 2nd Edition Irini

International Criminal Law in a Nutshell Nutshells 2nd

EU Administrative Law 3rd Edition Paul Craig

EU External Relations Law: Text, Cases and Materials

A v Staatsanwaltschaft Offenburg (Case C-9/16), ECLI:EU:C:2017:483,

Associacao Sindical dos Juizes Portugueses v Tribunal de Contas

Commission v European Central Bank (Case C-11/00) [2003] ECR I-7417,

DK (Case C-653/19) ECLI:EU:C:2019:1024, 28 November 2019 .................................. 279

Federal Republic of Germany v Telekom Deutschland GmbH

Kovalkovas (Case C-477/16 PPU), ECLI:EU:C:2016:861,

Melloni v Ministerio Fiscal (Case C-399/11) [2013] QB 1067,

OG (Public Prosecutor’s Office of Lübeck) and PI (Public Prosecutor’s

Petruhhin, (Case C-182/15) [2017] QB 299, [2017] 1 CMLR 28,

Queen (on the Application of M and Others v Her Majesty’s Treasury

Sut (Case C-514/17) ECLI:EU:C:2018:1016, 13 December 2018................................... 201

United Kingdom v Council (Case C-81/13) ECLI:EU:C:2014:2449,

Muršić v Croatia (App No 7334/13) (2017) 65 EHRR 1, 42 BHRC 439,

Weber and Saravia v Germany (App No 54934/00) (2008) 46 EHRR SE5,

Court of Cassation of Belgium, No P.13.2082.N, Judgment of

2011/03/22 Pl. ÚS 24/10, www.concourt.cz/clanek/pl-24-10,

Bourquain (1961), Military Tribunal ................................................................ 157, 158, 165

Judgment of BVerG 2017 2, BvR 424/17 (EAW II Decision).......................................... 228

Areios Pagos, Case 1/2011, Supreme Ct ............................................................................ 167

Dwyer (Record No 2019/18), Supreme Court .................................................................. 585

Constitutional Court, Order No 24, 2017 ........................................................................... 39

RK 20/771 13 / 751021-20, Amsterdam District Court, 10 February 2021 .................. 241

Bonda (Łukasz Marcin), Criminal Proceedings against, Sąd Najwyższy,

Decision No 1258 of 8 October 2009, Constitutional Court .......................................... 561

STC 13/2017 of 30 January 2017, Constitutional Court ................................................. 290

Assange v Swedish Prosecution Authority [2012] UKSC 22, [2012]

II. Background: The Community and

Europe instruments covering similar topics, see ch 10.

Policies in the EU (Nijhoff, 1996) 443–48.

ne bis in idem; see chs 3 and 4.

III. The Third Pillar: The Institutional Framework

A. The Maastricht Treaty

consolidated and formalised earlier law enforcement initiatives.26 These initiatives,

39 Journal of Common Market Studies 747.

under certain circumstances, see O’Keeffe (n 23) 914.

B. The Amsterdam Treaty

ii. The AFSJ and the Incorporation of the Schengen Acquis

17 June 1996, www.consilium.europa.eu/uedocs/cms_data/docs/cig1996/03860-r1en6.pdf.

iii. The Institutional Framework

http:/cmr.jur.ru.nl/cmr/docs/oratie.eg_pdf; C Groenendijk, E Guild and P Minderhoud (eds), In Search of

adopted by qualified majority (art 34(2)(c)).

cooperation in criminal matters, customs and police cooperation.

analysis of this, see ch 3.

75 For details on this, see ch 2.

d. The Role of the CJEU

The Treaty Framework

the ability to influence the development of EU law by sending to Luxembourg questions

Arnull (n 82) 119.

third pillar cases; see Peers (n 82) 887–88.