Scholarly article on topic 'The Court of Justice of the eu and the “New” Lisbon Treaty Environment Five Years On'

The Court of Justice of the eu and the “New” Lisbon Treaty Environment Five Years On Academic research paper on "Law"

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Academic research paper on topic "The Court of Justice of the eu and the “New” Lisbon Treaty Environment Five Years On"




The Court of Justice of the eu and the "New" Lisbon Treaty Environment Five Years On

Estella Baker

Faculty of Business and Law, Leicester De Montfort Law School, The Gateway, De Montfort University, Leicester lei 9BH, uk

1 Introduction

At the time of writing an important milestone in the implementation of the Treaty of Lisbon has just been passed. On 1 December 2014, five years after the Treaty entered into force, the Court of Justice of the European Union (cjeu) assumed its full jurisdiction over what remains of the so-called "third pillar" acquis. The acquis consists of the 133 measures that remain in force and which were adopted on the basis of Title VI of the pre-Lisbon Treaty on European Union (teu) that conferred competence upon the Union in the field of "police and judicial cooperation in criminal matters". Rather than taking the Court into wholly uncharted territory, the reform constitutes an incremental change. This is because the Court already had some jurisdiction over the third pillar and it enjoys its full jurisdiction over criminal law measures that have been adopted under the post-Lisbon treaty settlement automatically. Nevertheless, the latest extension to its remit provides an opportune moment at which to examine some of the implications of the Court's expanded criminal justice role. In order to do so, it is helpful to begin briefly by recapping the Lisbon reforms in so far as they are relevant.

© KONINKLIJKE BRILL NV, LEIDEN, 2015 | DOI 10.1163/15718174-23012057

2 Criminal Justice, the cjeu and the Lisbon Reforms

Under the treaties as they stood before the Treaty of Lisbon entered into force the Union's criminal law competence was split awkwardly between two regulatory environments. Under the third pillar competence was explicit, but it was fundamentally of intergovernmental character, meaning that its exercise remained substantially under the control of the Member States. Additionally, though, the Union enjoyed some implied competence under the "first pillar". Limited in scope1 and governed by the European Community Treaty (ect), this was supranational in character. Measures based in the ect were thus supreme over the internal laws of the Member States and capable of having direct effect. Accordingly, first pillar competence entailed a more intense pooling of sovereignty than was the case under the third pillar.

Reflecting the distinction, the Union institutions had lesser involvement in third pillar affairs than those falling under the ect. As far as actions before the cjeu were concerned, the principal differences were as follows:

• Judicial review: Compared with the position under the first pillar, the right of judicial review under the third pillar was significantly restricted, both in terms of the range of instruments to which it applied and the class of applicants that was eligible to bring an action.

• Infringement proceedings: Under the first pillar the European Commission (and Member States) could bring infringement proceedings against Member States for their alleged failures to implement Community law. No such jurisdiction existed under the third pillar.

• Preliminary rulings: Under the first pillar all courts and tribunals in Member States had the right, and in some cases the duty, to make references to the cjeu for preliminary rulings on the correct interpretation of Community law. Under the third pillar access to the Court was available only to the courts of Member States that explicitly opted in to the Court's preliminary rulings jurisdiction, and not all of them did.

A primary goal of the Lisbon reforms is to dissolve the boundary between the former first and third pillars, so that the subject matter of the third pillar becomes absorbed into the supranational core of the Union. To that end, when

1 Case C-176/03 Commission of the European Communities v Council of Ministers of the European Union ("Environmental Offences") [2005] ecr I-7879; Case C-440/05 Commission of the European Communities v Council of Ministers of the European Union ("Ship Source") [2007] ecr I-9097.

the Treaty entered into force in 2009, Title VI of the pre-Lisbon teu was replaced by revised provisions that form part of the Area of Freedom, Security and Justice (afsj) Title of the Treaty on the Functioning of the European Union (tfeu). This meant that the third pillar became redundant as a basis for fresh legislative activity. Instead, criminal law measures that have been adopted since 1 December 2009 are based in the afsj Title. It confers supranational powers upon the Union and full jurisdiction over resulting instruments upon the cjeu.

In the light of these changes an obvious question arose as to the fate of the third pillar acquis. The most straightforward option might have been simply to confer it with supranational character at the point that the Treaty of Lisbon entered into force. Rather than doing so, however, it became the subject of relatively complex transitional arrangements that are set out in Protocol 36 to the Treaties. The Protocol provides, in Article 9, that all measures that are based in Title VI of the pre-Lisbon teu retain their original legal character until they are "repealed, annulled or amended in implementation of the Treaties". In other words, in principle at least, only through deliberate legislative action can their intergovernmental quality be disturbed.2 Notwithstanding that relative caution however, Article 10 of the Protocol then provides for the assumption by the cjeu and the Commission of their full powers with respect to the remaining body of third pillar law. The latter change, though, was not to take effect immediately, but only at the end of a five year transitional period. This explains why 1 December 2014 was a significant date.

In an effort to make Articles 9 and 10 cohere, Declaration 50 to the treaties recorded the aspiration that as much as possible of the third pillar acquis should be replaced during the transitional period with supranational measures based in the afsj Title of the tfeu.3 Crucially though, no deadline was prescribed for completing the process and, in practice, progress was modest.4

2 But see Case C-399/11 Stefan Melloni v Ministerio Fiscal, not yet reported, judgment of 26 February 2013, paragraphs 58-59, where the cjeu applied the principle of primacy to the framework decision that establishes the eaw.

3 oj 2010 C 83/354.

4 Examples of replacement instruments include: Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims (oj 2011 L 101/01); Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography (oj 2011 L 335/1); Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime (oj 2012 L 315/57).

Furthermore, this is a state of affairs that is unlikely to change radically in the foreseeable future. One reason is simply the volume of measures that remain to be updated. The current total is 133, a far larger number than has been tackled so far. Bearing in mind the complexity of the Union's legislative process5 and that the programme to "Lisbonise" these older measures must be managed alongside fresh initiatives, it is inevitable that it will take time to complete the former task. But this is not the only factor at work.

Replacement entails the need for renegotiation and some of the surviving instruments are liable to prove troublesome in that regard. The outstanding example is the framework decision that established the European arrest warrant (eaw).6 Arguably, the eaw constitutes the Union's flagship achievement in the criminal justice field. Yet it hardly needs pointing out that, ten years on, its existence and operation remain hotly contentious in many quarters. Consequently, there is a risk that opponents would seek to use the opportunity afforded by renegotiation to dilute its effectiveness, or undo it altogether. The upshot would be a new instrument with greater normative strength, but at the expense of a content that was materially watered down. Notwithstanding its imperfections, the eaw system is working on the basis of its existing legal footing and there is no absolute legal or political need to tamper with the framework decision. Pragmatism dictates, therefore, that it should be left alone. Likewise, any other third pillar instruments that raise similar difficulties.

In view of these considerations the suggestion that 1 December 2014 should be regarded as a milestone can be understood more fully. It is not simply that the Court finally acquired the deferred extension to its jurisdiction on that date, but that the vestiges of the third pillar acquis are likely to endure for an indeterminate period. What consequences can be expected to result from the newly established state of affairs?

3 The Caseload of the cjeu

It is predictable that demands upon the cjeu will increase as a result of its extended jurisdiction over the third pillar. One potential cause though can be eliminated immediately. Where actions for judicial review of the legality of a third pillar measure are concerned, the reality is that nothing has changed at

5 The ordinary legislative procedure, which involves co-decision by the European Parliament and Council of Ministers, applies to relevant post-Lisbon measures: Article 294 tfeu.

6 Council framework decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (oj 2002 L190/01).


all. This is because of the specification in the treaties that such actions must be instituted within two months of a measure's publication. Plainly, that time limit long since expired for all of the remaining third pillar instruments. It follows that the projected increase in the Court's business will occur as a result of infringement proceedings and requests for preliminary rulings.

Regarding the former, the Commission has been unable to initiate such proceedings with respect to third pillar law up until now. This was much to its chagrin. Member States' track records in implementing third pillar measures have been notoriously poor, notwithstanding that their adoption had required the unanimous decision of the Council of Ministers. Bad for the rule of law and detrimental to any prospect of putting a tangible afsj in place, it is a good thing that this enforcement deficit has been rectified. Moreover, even before the transitional period came to an end, the Commission reported that the prospective threat of proceedings was providing an incentive to Member States belatedly to comply with their obligations.7 That being so, it may be that only a numerically small number of relevant cases materialise before the Court in due course. There are other factors too that would tend towards that outcome. One is that the infringement procedure includes a period of negotiation between the Commission and the Member State prior to a matter being put before the Court.8 This encourages settlement without resort to litigation. Another is that at least some of the third pillar legislation may be drafted in terms that calls its justiciability into doubt. More will be said on this subject below.

Turning to preliminary rulings, the updated position does not look quite so dramatically different from the former one at first sight. This is because 17 of the Member States had already opted in to the Court's jurisdiction prior to the Lisbon Treaty's entry into force.9 Even though that was already more than half of them, there is good reason to expect that it is the need to deal with requests for preliminary rulings that will constitute the lion's share of the anticipated increase in third pillar business before the Court.

There are a variety of contributory reasons. Surely the most fundamental is the growth in the number of courts and tribunals that can now make

7 Presentation by the Commission to its Expert Group on eu Criminal Policy, Brussels, 12th March 2014.

8 Article 258 tfeu.

9 Information concerning the declarations by the Republic of Hungary, the Republic of Latvia, the Republic of Lithuania and the Republic of Slovenia on their acceptance of the jurisdiction of the Court of Justice to give preliminary rulings on the acts referred to in Article 35 of the Treaty on European Union (oj 2008 C 69/01).

references. This is not merely a matter of adding in more Member States, but of their identity as well. The newcomers to the Court's jurisdiction include Poland and the UK, two of the largest Member States. Added to that, although Spain, a third of the large Member States, had previously opted in, it had only done so partially. That is to say, it was only those of its courts and tribunals against whose decision there was no domestic judicial remedy that had been empowered to make references. That restriction has now been removed. The number of references from the uK will be constrained by the fact that it is bound only by 35 of the remaining third pillar measures.10 Nevertheless, purely by dint of their size, the full participation of these three Member States is likely to generate a disproportionate boost in workload for the Court.

The second reason to expect an increase in the Court's case load relates back to what has been said about implementation. A Member State's failure to implement a (potentially) relevant provision of Union law does not render a national court incapable of making a reference with respect to it. Indeed, it may supply the reason for doing so, a proposition which the Court's controversial ruling in Pupinou demonstrates holds good for third pillar law. Equally, the purported implementation of a measure does not necessarily negate the need for national courts to make references to the cjeu. In fact, a greater number of references may occur once relevant domestic measures are in place than if they are absent. This is a point that appears to be substantiated by experience with the eaw for instance, in relation to which the Court has been asked to provide a significant number of preliminary rulings. It would appear to follow, therefore, that a consequence of Member States' greater adherence to the third pillar acquis, and its consequent transformation into "law in action", will be to act as a second catalyst for an increased flow of references to the cjeu.

Compounding both of the effects that have just been noted is a third material factor, in the form of the Charter of Fundamental Rights. When the Lisbon Treaty entered into force, the Charter became justiciable.12 Even before access

10 This is a consequence of the "Protocol 36 opt out" (discussed in the E. Baker, 'Editorial: The United Kingdom and its Protocol 36 Opt-Out: Is Police and Judicial Cooperation in Criminal Matters within the eu Losing Momentum?' 21 European Journal of Crime, Criminal Law and Criminal Justice (2013) pp. 237-245). Having exercised it, the uk Government has been successful in its negotiations to "opt back in" to 35 of the surviving measures that comprise the third pillar acquis.

11 Case C-105/03 Criminal proceedings against Maria Pupino [2005] ecr I-5285.

12 Article 6(1) teu.

to the Court's preliminary rulings jurisdiction was extended, this appeared to be stimulating a fresh wave of references in which national courts asked about the impact of Charter provisions upon the application of third pillar law.13 Such cases are only likely to grow in number now.

Finally, account must be taken of the expedited "ppu" procedure. It applies where a reference is made "in a case pending before a court or tribunal of a Member State with regard to a person in custody".i4 In such instances the Court goes into "emergency mode", enabling it to provide a ruling in under three months. This is commendably fast in comparison with the more usual 22 months or so that it takes to deliver an "ordinary" preliminary ruling. But it is strikingly so when compared with the span of years that it can take to extract a judgment from the European Court of Human Rights in Strasbourg. The provisions of the Charter, as well as the general doctrine of fundamental rights protection under Union law, are strongly rooted in the guarantees that are afforded by the echr. If the availability of the ppu procedure is considered in that context, it will be seen that it is liable to act as a magnet in attracting business to the cjeu in qualifying cases (those that fall within the scope of the eu treaties and which relate to a person in custody) where an alleged breach of fundamental rights has occurred.

4 Other Consequences

Leaving aside the impact on the Court's workload, the extension to its jurisdiction will have other important consequences, and in fact is already doing so. It is not possible to do more than provide a flavour of them here.

Returning first to the matter of infringement proceedings, of at least as much fascination as the reaction of the Member States to the Court's acquisition of jurisdiction is that of the Commission. During the transitional phase it has initiated a series of studies of the implementation of third pillar instruments by the Member States and also of particular aspects of their criminal justice systems. These would appear to have twin motivations. The first is simply to enable the Commission to develop expertise and understanding which can be deployed when drawing up proposals for fresh legislation. The second is to gather intelligence that may be of use in due course in guiding decisions to initiate infringement proceedings.

13 See, for example, Case C-129/14 ppu Zoran Spasic, judgment of 27 May 2014, not yet reported, in the context of Article 54 ciSA.

14 Article 267 tfeu.

One of the issues that this brings to the fore is the relationship between legislative drafting and questions of justiciability. At the time that the third pillar instruments were negotiated it was not a concern that the Commission might one day need to be able to rely upon their terms in order to establish an infringement by a Member State. Now, of course, the Commission is contemplating that very prospect and must also prepare for it, as far as it is able, where the new directives based in the afsj Title are concerned. This state of affairs raises what in the criminal justice context is a novel practical problem.

For it to be possible to establish that a Member State has infringed its obligations, it must also be possible to establish that those obligations are defined in terms that are sufficiently clear and certain for the Court to be able fairly to identify their content and scope. It is by no means obvious that the provisions of third pillar legislation always satisfy this requirement, including some that adopt what have become standard templates in drafting. To give one example, it is commonplace for instruments to state that Member States must establish "effective, proportionate and dissuasive" sanctions for violations of Union-law inspired criminal offences. Quite what an "effective, proportionate and dissuasive" sanction is, however, and/or how its existence might be proved or disproved before the Court, is a moot point. If enforcement is ever to graduate beyond the crude matter of whether a given Member State provides for any relevant sanctions at all then these questions require a convincing answer. Alternatively, the time may be ripe for the Commission to develop a fresh approach to the way in which it drafts the sanction requirements in its proposals for new legislation. Regarded in this light, the reforms that have been made to the Court's jurisdiction are liable to prove generally beneficial in terms of their impact on legality.

Turning to preliminary rulings, the Court already has experience in handling these kinds of cases, as a result of which a significant body of relevant case law has built up. Nevertheless, there is reason to expect the new regime to herald important changes. Most obviously, the Court's rulings to date are heavily concentrated in a relatively small number of areas, which include interpretation of the ne bis in idem provisions of the Schengen Convention;15 interpretation of the eaw; and the rights of victims under the now replaced framework decision.16 The third pillar acquis though is more varied in its

15 Articles 54-58 cisa.

16 Council framework decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings (oj 2001 L 82/01).


subject matter than this list betrays. With its more comprehensive implementation by the Member States it can be expected that its variety will come to be reflected in the Court's rulings.

A more challenging question is whether the complexion of the Court's case law is liable to change in any material respect now that the bar on references being sent from certain Member States has been lifted. In particular, where matters of criminal law and justice are concerned, there is a major fault line between the Member States. Whereas the majority adopt the inquisitorial model of criminal proceedings, a small minority of common law countries; namely Cyprus, Ireland, Malta and the uk, operate the adversarial model instead. None of the latter group was represented among the 17 Member States that elected to opt in to the Court's preliminary rulings jurisdiction at the earlier stage. Necessarily, therefore, all of the references that the Court has been asked to rule on so far have arisen from civil law jurisdictions. It has become a familiar feature of the legislative process that the common law Member States allege that instruments are drafted with the inquisitorial system in mind, overlooking important tenets of the adversarial system. If any such friction has been incorporated into the surviving third pillar instruments, might its manifestation be detected in due course in references that are sent to the Court?

5 Conclusion

In the available space it has been possible to do little more than touch the surface of the many interesting issues that are bound to arise now that the cjeu has greater jurisdiction over matters of criminal law and justice. The focus here has been the recent extension to its role with respect to the third pillar. Consequently, broader issues that relate to the developing substance of the Union's criminal law, and to its evolving relationship with the institution of Union citizenship and the project to construct the Union as an afsj, have been left unexplored.

Thanks to the Lisbon reforms, the Court has been placed in its strongest position yet to affect these important matters and to influence the development and practice of criminal justice more generally. Moreover, it should be borne in mind that part of the third pillar acquis is rooted in the Schengen Conventions, and that the Schengen zone extends to four countries that are not members of the eu. Therefore, that influence extends, not just across the Union's territories, but beyond them. While it is true that the Court's reach is simultaneously tempered by virtue of the opt in and opt out arrangements that

have been negotiated by a small minority of Member States,17 the exceptions that they create to the normal application of its rulings will make relatively minor inroads into their overall impact. Accordingly, if there had been any remaining scepticism about the importance of the Court to criminal justice in Europe, there certainly should not be now.

17 Namely, Denmark, Ireland and the uk. These arrangements have not been discussed here, other than incidentally.

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