EU TFEU: Judicial cooperation in criminal matters

Mutual recognition of judgments, approximation (harmonisation) of laws and minimum procedural rules in cross-border criminal cases form the nucleus of EU judicial cooperation in criminal matters according to the Treaty of Lisbon.

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Article 82 of the Treaty on the Functioning of the European Union (TFEU) marks the beginning of a new Chapter 4 on judicial cooperation in criminal matters. The Article is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), then renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 104–105), with the location of the provision added from the table of equivalences (page 460 to 463):

Part Three ‘Policies and internal actions of the Union’

Title V TFEU ‘Area of freedom, security and justice’

Chapter 4 ‘Judicial cooperation in criminal matters’

Article 82 TFEU
(ex Article 31 TEU)

1. Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article 83.

The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures to:

(a) lay down rules and procedures for ensuring recognition throughout the Union of all forms of judgments and judicial decisions;

(b) prevent and settle conflicts of jurisdiction between Member States;

(c) support the training of the judiciary and judicial staff;

(d) facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions.

2. To the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, the European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States.

They shall concern:

(a) mutual admissibility of evidence between Member States;

(b) the rights of individuals in criminal procedure;

(c) the rights of victims of crime;

(d) any other specific aspects of criminal procedure which the Council has identified in advance by a decision; for the adoption of such a decision, the Council shall act unanimously after obtaining the consent of the European Parliament.

Adoption of the minimum rules referred to in this paragraph shall not prevent Member States from maintaining or introducing a higher level of protection for individuals.

3. Where a member of the Council considers that a draft directive as referred to in paragraph 2 would affect fundamental aspects of its criminal justice system, it may request that the draft directive be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure.

Within the same timeframe, in case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft directive concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in Article 20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.

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In Article 2, point 67, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/62):

“67) Article 66 shall be replaced by Article 61 G, as set out in point 64 above, and Articles 67 to 69 shall be repealed. The following Chapter 4 and Articles 69 A to 69 E shall be inserted. Articles 69 A, 69 B and 69 D shall replace the current Article 31 of the Treaty on European Union, as set out above in point 51 of Article 1 of this Treaty: …”

It then went on to present the agreed chapter heading and wording (as above, save for the referrals later renumbered) of Article 69a TFEU (ToL), which became Article 82 TFEU after renumbering in the consolidated version of the treaty. Cf. TFEU table of equivalences, OJ 17.12.2007 C 306/210.

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Article 31 of the current Treaty on European Union (TEU), to be replaced partly by Article 82 TFEU, is found in TEU Title VI ‘Provisions on police and judicial cooperation in criminal matters’, in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/25):

Article 31 TEU

1. Common action on judicial cooperation in criminal matters shall include:

(a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States, including, where appropriate, cooperation through Eurojust, in relation to proceedings and the enforcement of decisions;

(b) facilitating extradition between Member States;

(c) ensuring compatibility in rules applicable in the Member States, as may be necessary to improve such cooperation;

(d) preventing conflicts of jurisdiction between Member States;

(e) progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking.

2. The Council shall encourage cooperation through Eurojust by:

(a) enabling Eurojust to facilitate proper coordination between Member States' national prosecuting authorities;

(b) promoting support by Eurojust for criminal investigations in cases of serious cross-border crime, particularly in the case of organised crime, taking account, in particular, of analyses carried out by Europol;

(c) facilitating close cooperation between Eurojust and the European Judicial Network, particularly, in order to facilitate the execution of letters rogatory and the implementation of extradition requests.

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We look at the previous stages of the treaty reform process.

The European Convention proposed the following Article III-171 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/60):

Section 4
Judicial cooperation in criminal matters

Article III-171 Draft Constitution

1. Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article III-172.

European laws or framework laws shall establish measures to:

(a) establish rules and procedures to ensure the recognition throughout the Union of all forms of judgments and judicial decisions;

(b) prevent and settle conflicts of jurisdiction between Member States;

(c) encourage the training of the judiciary and judicial staff;

(d) facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions.

2. In order to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, European framework laws may establish minimum rules concerning:

(a) mutual admissibility of evidence between Member States;

(b) the rights of individuals in criminal procedure;

(c) the rights of victims of crime;

(d) any other specific aspects of criminal procedure which the Council of Ministers has identified in advance by a European decision. The Council of Ministers shall act unanimously after obtaining the consent of the European Parliament.

Adoption of such minimum rules shall not prevent Member States from maintaining or introducing a higher level of protection for the rights of individuals in criminal procedure.

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The IGC 2004 took over, with modifications, the draft text in the first and second paragraph of Article III-270 of the Treaty establishing a Constitution for Europe, but the IGC 2004 added a third and fourth paragraph (OJ 16.12.2004 C 310/118–119):

Section 4
Judicial cooperation in criminal matters

Article III-270 Constitution

1. Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article III-271.

European laws or framework laws shall establish measures to:

(a) lay down rules and procedures for ensuring recognition throughout the Union of all forms of judgments and judicial decisions;

(b) prevent and settle conflicts of jurisdiction between Member States;

(c) support the training of the judiciary and judicial staff;

(d) facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions.

2. To the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross‑border dimension, European framework laws may establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States.

They shall concern:

(a) mutual admissibility of evidence between Member States;

(b) the rights of individuals in criminal procedure;

(c) the rights of victims of crime;

(d) any other specific aspects of criminal procedure which the Council has identified in advance by a European decision; for the adoption of such a decision, the Council shall act unanimously after obtaining the consent of the European Parliament.

Adoption of the minimum rules referred to in this paragraph shall not prevent Member States from maintaining or introducing a higher level of protection for individuals.

3. Where a member of the Council considers that a draft European framework law as referred to in paragraph 2 would affect fundamental aspects of its criminal justice system, it may request that the draft framework law be referred to the European Council. In that case, the procedure referred to in Article III-396 shall be suspended. After discussion, the European Council shall, within four months of this suspension, either:

(a) refer the draft back to the Council, which shall terminate the suspension of the procedure referred to in Article III-396, or

(b) request the Commission or the group of Member States from which the draft originates to submit a new draft; in that case, the act originally proposed shall be deemed not to have been adopted.

4. If, by the end of the period referred to in paragraph 3, either no action has been taken by the European Council or if, within 12 months from the submission of a new draft under paragraph 3(b), the European framework law has not been adopted, and at least one third of the Member States wish to establish enhanced cooperation on the basis of the draft framework law concerned, they shall notify the European Parliament, the Council and the Commission accordingly.

In such a case, the authorisation to proceed with enhanced cooperation referred to in Articles I-44(2) and III-419(1) shall be deemed to be granted and the provisions on enhanced cooperation shall apply.

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The current Article 31 TEU is part of Title VI ‘Provisions on police and judicial cooperation in criminal matters’, which is based on intergovernmental cooperation and constitutes the so called third pillar.

The objective of the European Convention was to form a more unified area of freedom, security and justice, by abolishing the pillar structure and moving the remaining third pillar matters under the same heading with those justice and home affairs questions, where Community or first pillar procedures applied already.

The draft Constitution re-wrote the main provision on judicial cooperation in criminal matters by clearly endorsing the principle of mutual recognition and the practice of approximation (harmonisation) of laws.

When the governments met in the IGC 2004, they accepted the general approach of the European Convention, but added certain limitations. In the second paragraph, minimum rules were to be established only ‘to the extent necessary’ and these rules were to ‘take into account the differences between the legal traditions and systems of the Member States’.

The new third paragraph instituted the so called emergency brake for each member state which considered that a draft framework law (directive) would affect fundamental aspects of its criminal justice system, but on the other hand, if the proposed act came to nothing, a group of member states could establish enhanced cooperation on the basis of the proposed draft law, as stated in paragraph 4.

The Treaty of Lisbon used its own terminology, and it streamlined paragraphs 3 and 4 on the emergency brake and enhanced cooperation, but essentially it adopted the text agreed by the IGC 2004.

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In addition to opting out, watering down proposals made by the European Convention was described as a victory for the United Kingdom government. The Foreign and Commonwealth Office (FCO) offered the following summary in the ‘White Paper on the Treaty establishing a Constitution for Europe’ (Command Paper 6309, September 2004; page 11):

“The UK’s negotiating success at the IGC

At the European Council on 18 June, amendments to the Convention’s draft EU Constitution were set out in two documents, CIG 81/04 and CIG 85/04.These two documents superseded all other proposals for amendments made by either Presidency during the IGC. In total, these documents cover amendments on 80 different areas in the Treaty.

The UK advocated the amendments in 39 of the 80 areas covered (see chart at Annex 2). Examples range from criminal law, tax and social security to the provisions on animal welfare and the solidarity clause. These amendments were either initiated by the UK, initiated jointly with other Member States, or pushed by other Member States and supported by the UK.

The UK remained neutral on 38 areas where others had pushed for amendments which were of no substantive concern to the UK.

In the remaining three areas, the UK originally opposed the amendments, but we secured changes at the European Council which made them acceptable (e.g. provisions for the Union’s accession to the European Convention on Human Rights).

In short, nearly half the final changes to the Treaty were secured at UK instigation: a measure of the influence the UK had on its final form.”

Against this background followed the description of the negotiations on justice and home affairs from the British government’s point of view (page 31):

“Justice and Home Affairs

67. The Maastricht Treaty (1992) introduced co-operation on Justice and Home Affairs issues as the third pillar in the EU’s pillar structure with its own separate intergovernmental arrangements. The Constitution introduces qualified majority voting as the norm for JHA issues – a welcome consequence of abolishing the pillar structure (as the Government made clear at paragraph 82 of the September 2003 White Paper).

68. This means that no single Member State will be able to block action on issues like cross-border crime, drug trafficking, illegal immigration and terrorism. These are international issues where it is in our interest to work within the EU. But because of the differences in Member States’ legal traditions and systems, the Government, in its September 2003 White Paper, said that QMV would not be the most appropriate way of proceeding where significant harmonisation of criminal procedural law was concerned (paragraph 83). This commitment has been delivered upon. The Convention’s proposals for blanket QMV in criminal law were replaced by an emergency brake mechanism. This means that a Member State which cannot accept a criminal procedural law proposal can ‘pull the brake’. This stops the discussion in the Council and automatically refers it to the European Council where decisions are made by consensus. If it is still impossible to agree, then the enhanced co-operation provisions can be applied, without all the preliminary procedures needing to be applied. This means that if a third of Member States want to, they can go ahead by themselves. This enhanced flexibility is one of the benefits of the new Treaty.”

The Command Paper 6309 is available at:

http://www.fco.gov.uk/resources/en/pdf/pdf15/fco_beu_euct_whitepaper_sept04

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About three years later, the UK government reported in the same vein on the IGC 2007 in ‘The Reform Treaty: the British approach to the European Union intergovernmental conference, July 2007’ (Command Paper 7174, published 23 July 2007; page 10):

“The Mandate agreed at the June European Council stipulates that, as part of the IGC process, the UK's right not to participate in new measures in the JHA area can be made to apply even where those measures build upon earlier agreements.

The new Treaty will also enable certain proposals for laws in criminal matters to be referred to the European Council for decision if they would affect fundamental aspects of a Member State's legal system. This is the so-called ‘emergency brake’. If all the members of the European Council do not unanimously agree the proposal will fall, or will go ahead only in the Member States that want it – and then only if at least one third choose to go forward in that way. This additional safeguard will be available even where the UK had previously chosen to opt-in to a proposal in these areas.”

The FCO view is available at:

http://www.official-documents.gov.uk/document/cm71/7174/7174.pdf

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Having looked at some historic positions concerning the “emergency brake”, we move on to a few more British views on matters relating to EU judicial cooperation in criminal matters, now with the Treaty of Lisbon in hand.

The FCO presents a short version of the Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), offering the following summary of the results with regard to Article 82 TFEU, formerly Article 69a TFEU (ToL):

“Draws on Article 31(1) TEU. Mutual recognition, as well as approximation of laws, is to be the basis for criminal judicial co-operation. Lists the areas in which minimum rules on criminal procedural law may be adopted. Decision-making moves to co-decision. A new passerelle enables the Council, by unanimity and with EP consent, to extend the scope of minimum rules that may be adopted. The adoption of minimum rules on criminal procedure is also subject to a new emergency brake procedure.”

The FCO comparative table is available at:

http://www.official-documents.gov.uk/document/cm73/7311/7311.asp

The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community (published 6 December 2007; pages 38–39) commented on criminal procedures:

“On criminal procedures, Article 69A goes much further than the existing Article 31(1)(c) TEU, which merely includes in the list of common actions “ensuring compatibility in rules applicable in Member States as may be necessary to improve [judicial] cooperation”. --- This is a new and potentially controversial provision. It would permit the EU to establish minimum rules relating specifically to mutual admissibility of evidence, the rights of individuals in criminal procedure, and the rights of victims of crime.”


The Research Paper 07/86, with the discussion of judicial cooperation in criminal matters continuing to page 48, is available at:

http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf

Steve Peers commented in the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007) on what was to become Article 69a TFEU (ToL), Article 82 TFEU. He remarked on the changes agreed in the IGC 2007 Mandate and remarked (page 15):

“These changes clarify the prospect of applying an ‘emergency brake’ and the possibility of a
group of Member States applying a ‘flexibility’ procedure afterward. This is distinct from the
UK, Irish and Danish power to opt out of proposals at the outset. Note that the ‘emergency
brake’ does not apply to paragraph 1.

The voting procedure otherwise is QMV and co-decision, a change from the present unanimity
and consultation.”

The JHA analysis and other Statewatch analyses are available through:

http://www.statewatch.org/euconstitution.htm

The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discusses ‘Police and judicial cooperation in criminal matters’ at length, with the pages 139 to 143 dedicated to mutual recognition, harmonisation and criminal procedure. Here are the conclusions of the Committee:

“6.152. The new Article 82(1) confers a more specifically defined power to adopt measures of judicial cooperation in criminal matters in a more extensive but exhaustive list of areas. In particular, the new Article makes specific reference for the first time to measures to settle as well as prevent conflicts of jurisdiction and to measures to support the training of national judiciaries and their staff. The new Article replaces an existing power under Article 31(1)(a) to (d) which is of uncertain and controversial width, not least because the list of areas of potential action given is both vague and non-exclusive. Overall, the clarification and definition of power in this field by the Lisbon Treaty is unlikely to involve any significant expansion of jurisdiction, although it may encourage a more active role for the EU in the listed areas.”

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“6.160. The extent of the Union’s existing competence in the area of criminal procedure under the existing Article 31 with its nonexhaustive list of areas of potential action is one of the matters of uncertainty and controversy already mentioned. The new Article 82(2) contains a specific and exhaustive list of three areas of potential action (concerning evidence, procedure and victims’ rights). Other areas can only be added by unanimous Council decision after obtaining the European Parliament’s consent.

6.161. Action in any of these areas is for the first time expressly limited to the extent necessary to facilitate mutual recognition of judgments and decisions and police cooperation in criminal matters “having a crossborder dimension”. The three specific areas listed are all areas where in practice the Union has been seeking in recent years to promote measures.”

The report is accessible at:

http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf



Ralf Grahn