Tiptoeing towards a Common Criminal Law? Reflections on the EU Constitution

Speakers: Gilles de Kerchove, Director-General, DG JHA, Council of the European Union;

Jonathan Faull, Director-General, DG JHA, European Commission

Chair: Peter Cullen, Academy of European Law (ERA)
 
Date: 25 June 2004
 
Mr Peter Cullen opened the panel by welcoming all the participants as well as the two key speakers of the event. He expressed that it is a pleasure for the Academy of European Law (ERA) and the Centre for European Policy Studies (CEPS) to co-organize this event at this precise point in time which marks such a historical moment as the draft Constitutional Treaty has just been politically adopted at the Intergovernmental Conference (IGC) on the 17th and 18th June. Mr Cullen pointed out that a major task still remains however before the Constitution will effectively enter into force in the EU-25. Indeed it will be subject to the different interpretations and ratification procedures in all the Member States of an enlarged EU, and this will be not an easy task. The Chapter IV of the agreed text, dealing with an Area of Freedom, Security and Justice, represents a key element that deserves to be studied more in depth. He finally underlined the recently published book entitled ‘Justice and Home Affairs in the EU: Liberty and Security Issues after Enlargement’, edited by Dr. Joanna Apap, which was based on a conference on the same subject co-organised and co-sponsored by the Academy of European Law (ERA), the University of Trento and CEPS at the 4–6 July in Trier.
 
Mr Gilles de Kerchove first welcomed the fact that we have now a politically agreed Constitution for the EU-25. It is indeed a very good news that it has finally happened at the latest IGC. The agreed text may be qualified as very positive indeed, especially in the field of Justice and Home Affairs (JHA). In his view the Constitution provides the right answer to the four main problems that JHA cooperation faces at present:
 

•   Effectiveness;
•   Efficiency;
•   Complexity; and
•   Lack of legitimacy.

 
There is a worrying lack of effectiveness looking at the national implementation of these policies. Ratification and implementation procedures by the Member States so far has been slow. Most of the legal instruments dealing with JHA enter into force too late, and consequently their policy goals are not effectively fulfilled. As it was stated in the Spring European Council (25-26 March 2004) and the Declaration on Combating Terrorism, the Member States are at present not using correctly the already existing security tools and agencies that have been envisaged in the EU to fight effectively terrorism and organized crime. Moreover, Mr de Kerchove said that in an EU-25 it is not possible to efficiently work along with a decision making based on the unanimity rule. There is also a worrying level of complexity inherent to these policy areas due to the current pillar structure. This narrow structure (first and third pillar) creates conflicts on the legal basis to be used as well as serious difficulties to reach integrated polices in JHA. Fourthly, on the issue of (lack of) legitimacy, he added that the European Parliament is not involved enough in the decision making of some of these sensitive policies, as for example international agreements dealing with extradition procedures between the USA and the EU. The role of the European Court of Justice (ECJ) to review these instruments is equally very much limited indeed.
Then Mr de Kerchove looked at these four main challenges to assess whether they have been sufficiently addressed by the draft Constitutional treaty. In his view the draft Constitution does provide very convincing answers to solve the problems that JHA cooperation is suffering. The Constitution foresees in Article III-161 an objective and impartial evaluation mechanism to monitor how the Member States implement at national level these European policies. This evaluation will look at how they are using these laws at practical level as well as to the quality of justice. These brand new elements foreseen in the Constitution along with the new position of Europol, Eurojust and the new standing committee will guarantee more effectiveness for the whole system. Yet, in his opinion the articles dealing with Europol and Eurojust are not as positive as it could be first expected because they do not truly confer to those agencies more effective powers. It appears however that Articles III-174 and III-177 respectively have been drafted in rather broad terms, which will certainly allow for a significant room to interpret them more broadly by the Council of Ministers using qualified majority voting (QMV). In particular, the new standing committee provided by Article III-162 will prepare, launch and assess law enforcement cooperation of agencies in the EU (such as police, intelligence services, etc). Additionally, Mr de Kerchove stressed the existence of a set of measures that have been positively introduced into the Constitution, such as a more direct implication of the Council in JHA’s decision making by defining strategy guidelines, assessing the threats to security and using QMV in the list of crimes provided by Article III-172 (i.e. terrorism, human trafficking and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, etc). Also there will be no longer any doubt about the legal personality of the EU thanks to the new Constitution’s approach on the EU external front (Common Foreign and Security Policy). The provisions dealing with enhanced cooperation have been also improved within the text. Following Article 43 the Member States may decide to use QMV even for those policies that the Constitution foresees unanimity to be applied. Finally, he mentioned Article III-165 which provides that those acts dealing with judicial cooperation in criminal matters and police shall be adopted on a proposal from the Commission or on the initiative of a quarter of the Member States.
Mr de Kerchove highlighted that the complexity inherent to the current JHA pillar scenario will be also solved by the Constitutional treaty. The pillars will finally disappear. This fundamental challenge will facilitate enormously the development of integrated policies.
 
 
Regarding legitimacy, he welcomed the fact the European Parliament will be more directly involved in the decision making process thanks to the application of the co-decision procedure to JHA policies as provided in Article III-302. Furthermore, Article III-160 also foresees that Member States’ national parliaments will ensure the compliance with the principles of subsidiarity and proportionality of the legislative initiatives dealing with judicial cooperation with criminal matters and police. They will also participate in the political monitoring of Europol, and the evaluation of Eurojust’s activities.
An additional new feature is that the ECJ has been positively conferred full competence to review and interpret JHA’s legal instruments, including those dealing with judicial cooperation in criminal matters and police. Also, the judicial procedures will be quicker and easier for those individuals willing to present a case for annulment before the ECJ. Nevertheless, Mr de Kerchove stressed that looking at Article III-283 of the Constitution the ECJ shall have however no jurisdiction to review the validity or proportionality of operations carried out by the police or other law-enforcement services 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. Finally, the integration of the European Charter of Fundamental Rights and Freedoms in the Constitutional treaty represents a major positive development by making possible the presentation of preliminary rulings before the Court based in Luxembourg.
In the final part of his presentation, Mr de Kerchove assessed what have been the key challenges introduced and politically agreed by the latest IGC. In his opinion some of these modifications are indeed regrettable in comparison with the text first agreed on 18th July 2003. At the IGC of 17th and 18th June 2004 there have been very long discussions based on the controversial issue of QMV to be applied to some of these policy areas. Among other brand new elements, as regards judicial cooperation in criminal matters the IGC has foreseen a new mechanism in Article III-171.3 whereby should a member of the Council consider that a draft European framework law would affect fundamental aspects of its criminal justice system, it may request it to be referred to the European Council, and the co-decision procedure will be then suspended. A whole procedure will hence start for the particular European framework law to be fully adopted.
Another significant change deals with Eurojust. The new version of Article III-174.2 states that European laws shall determine Eurojust’s tasks such as the initiation of criminal investigations and the proposition to initiate prosecution. However, in the opinion of Mr de Kerchove the competence to initiate criminal investigations is a not Eurojust’s, but instead it should be carried out by Europol. He was surprised that both concepts (initiation of criminal investigations and the proposition to initiate prosecution) have been negatively mixed up, and thus Europol has not been given the competence to initiate criminal investigations.
Article III-175 has also further complicated the status of the European Public Prosecutor (EPP) office. The EPP will now be competent not only to combat crimes affecting the financial interests of the European Union, but also other serious crimes having cross-border dimension.
Mr de Kerchove equally underlined the Protocol on the position of the United Kingdom and Ireland on polices of border controls asylum and immigration, judicial cooperation in civil matters and on police cooperation, on the basis of which both countries will not take part specifically in the exchange of relevant information between police forces. He explained however, that according to the Amended Protocol No 5, Denmark will remain fully outside the Constitutional provisions on JHA (except those Schengen related measures), until it decides by referendum to do otherwise.
Concerning the definition of the competences of the Union in criminal law, in his opinion, in the Constitutional Treaty these are too broad and too narrow at the very same time: On the one hand, when there is an integrated policy (as for instance transport, environment, agriculture, etc) the Constitution provides for the possibility to adopt legal measures foreseeing criminal sanctions to be applied to the former. This may lead, following Mr de Kerchove’s opinion, to an over-criminalization in the EU. On the other hand, the Council and the European Parliament will approximate criminal law only regarding a specific list of ten crimes which have been qualified as the more serious ones inside Article III-172. Yet, he questioned the reasons why the principle of mutual recognition in criminal matters cannot additionally apply to other sort of crimes. It would be instead necessary to approximate legislation not only in relation to these 10 crimes, but also towards a broader category of crimes, such as for example xenophobia.
 
 
Mr de Kerchove concluded that the Constitution is an excellent policy development in the European Union. With the exception of some particular aspects, the Constitution will make JHA cooperation more effective and efficient, less complicated as well as more legitimate.
 
Mr Jonathan Faull started his presentation by highlighting the enormous importance that JHA policies have gained over the last few years in the European Union. After having politically agreed on the draft Constitution, he expressed the view that politicians at national level need now to explain to their respective electorate the fundamental importance of JHA cooperation as well as the ratification of a Constitution for Europe. They should inform the public about the need to act together through the European institutions in order to better face and solve our common problems and ‘threats’. The key aim is to make JHA cooperation more effective, by improving the way it may operate at transnational level. The Constitution represents a step towards achieving this goal.
Mr Faull then addressed the title of the discussion panel, ‘Tiptoeing towards a common criminal law? Reflections on the EU Constitution’, and stressed that in his opinion we will certainly not have a common criminal law in the European Union. Instead we need to improve the current system for the different judicial criminal systems of the Member States to work together more efficiently. We also need more trust and mutual understanding about the existing rules and procedures of each of the Member States’ legal and judicial systems. The European Union may function perfectly well while maintaining the existence of the different legal systems on criminal matters. It is not necessary to have a fully harmonized common set of criminal rules. The EU is instead in the making of a new approach in which the different legal systems will work more easily together and will be able to face more efficiently transnational terrorism, organized crime, etc. These new European threats have greatly justified the quick adoption of a set of policy measures dealing with security.
Mr Faull reconfirmed the idea that if the electorate at national level is well-informed by their representatives the ratification procedure of the Constitutional Treaty should go smoothly and without any complications.
He underlined the fact that looking at the current state of JHA cooperation there is no doubt that elements such as the use of the unanimity rule, the limitation of the European Parliament and the European Court of Justice’s accountability within the third pillar, etc have created a system that is not as democratic as it should be. The introduction of very positive innovative elements by the Constitution such as the use of QMV and a broader role of the European Parliament and the ECJ will guarantee a better quality and quantity of the legislation adopted in an EU-25.
Mr Faull finished his presentation by saying that the outcome of the IGC is rather satisfactory with regard to the creation of an Area of Freedom, Security and Justice. He also said that in the advent of a new Tampere scoreboard or the so-called ‘Tampere II’, which will appear in the next few months, new basis for further cooperation will be (re)settled in order to further develop these crucial policy areas.
 
            During the public debate, the followings issues were particularly raised by the audience: Some questions were posed regarding how the legislative transition is going to take place? What will happen with the old legislative tools used in JHA policies such as Decisions, Framework Decisions, Conventions, etc? Will the ECJ have jurisdiction to review and interpret these new set of measures? Mr de Kerchove highlighted that as soon as the Constitution will enter into force the new set of legislative instruments will substitute the old ones. A question was also put as on to what extent will the review carried out to the Member States be effective. Mr Faull answered by saying that Article III-161 of the Constitution is not the only answer to the current problem of the implementation of the Union policies at national level. In his view it is highly necessary to build public trust. For example, the people need to feel sure that they will get a fair trial throughout the European Union.
The negotiation and conclusion of International Agreements by member states relating to the Area of Freedom, Security and Justice was also a subject for discussion. It was said that the possibility conferred to the Member States to conclude agreements with third counties or international organizations on judicial cooperation in civil and criminal matters and police cooperation may potentially lead to similar practical difficulties and uncertainties that the so-called ‘Mixed Agreements’ have suffered until now.
The political character of the sharing between the European Commission and the Member States of the right of initiative concerning judicial cooperation in criminal matters and police was equally a topic for discussion.
Moreover, the impact that the introduction of the Charter of Fundamental Rights and Freedoms will have for the ECJ’s jurisdiction was also under debate. Mr de Kerchove said that this key aspect will represent a decisive positive development because it will allow for the very first time to check and review whether all the EU legislation respects a precise set of human rights and fundamental freedoms.
Finally, Mr Faull briefly mentioned the new multi-annual programme or a so-called Tampere II. He highlighted the importance of those polices focusing on the achievement of a high level of security in the European Union. Among other policies, one finds the development of the Schengen Information System II, the principle of solidarity and burden sharing , as well as the issue of biometrics technologies to be included in documents issued to third country nationals and EU citizens. JHA polices have been given a fundamental role within the overall community budget (1.5%) and will certainly continue to be a priority inside the European agenda.