Denmark and EU Justice and Home Affairs Law: Details of the planned referendum

 

 

Steve Peers

Danish participation in cross-border criminal law measures is symbolised by 'The Bridge', the 'Nordic Noir' series about cross-border cooperation in criminal matters between Denmark and Sweden. But due to the changes in EU law in this field, that cooperation might soon be jeopardised. As a result, in the near future, Denmark will in principle be voting on whether to replace the current nearly complete opt-out on EU Justice and Home Affairs (JHA) law with a partial, selective opt-out. I have previously blogged on the implications of this plan in general terms, but it’s now clear exactly what this vote will be about.

First of all, a short recap of the overall framework (for more detail, see that previous blog post). Back in 1992, Denmark obtained an opt-out from the single currency, defence and aspects of JHA law (it’s widely believed that it also obtained an opt-out from EU citizenship, but this is a ‘Euromyth’). These opt-outs were formalised in the form of a Protocol attached to the EU Treaties as part of the Treaty of Amsterdam. The JHA opt-out was then amended by the Treaty of Lisbon.

At present, Denmark participates in: the EU policing and criminal law measures adopted before the entry into force of the Treaty of Lisbon; measures relating to the Schengen border control system (as  matter of international law, not EU law); the EU rules on visa lists (as a matter of EU law); and the EU’s Dublin rules on allocation of asylum applications, ‘Brussels’ rules on civil jurisdiction and legislation on service of documents (in the form of treaties with the EU). In contrast, Denmark does not – and cannot– participate in other EU rules on immigration and asylum law or cross-border civil law, or policing and criminal law rules adopted since the entry into force of the Treaty of Lisbon.

The Protocol on Denmark’s legal position either allows it to repeal its JHA opt-out entirely, or selectively. If it chooses to repeal the opt-out selectively, it would then be able to opt in to JHA measures on a case-by-case basis, like the UK and Ireland, although (unlike those states) it would remain fully bound by the Schengen rules. Indeed, those rules will then apply as a matter of EU law in Denmark, not as a matter of international law.

In practice, while Danish governments have promised for a while to hold a referendum on the JHA opt-out, the concrete plans to hold one in the near future were triggered in light of the planned EU legislation to replace the current rules establishing Europol, the EU police agency, with new legislation (on that proposal, see here).  This led to an agreement between the government parties and several opposition parties (excluding the far-right Danish Peoples’ Party) known as the ‘Agreement on Denmark in Europol’ (for the text, see here). This agreement states that the referendum will take place after the next general election (which must be held by September 2015), and no later than 31 March 2016. The ‘main reason’ for the referendum is to allow Denmark to opt in to the new Europol rules, but the parties also agreed to study whether Denmark should opt in to other EU civil, criminal and policing laws which currently don’t apply. However, the parties agreed that Denmark should not opt in to any EU immigration or asylum law (besides Schengen, which already applies).

This analysis has now been completed (see the text in Danish here), and the parties have agreed that Denmark would apply to opt in to 22 EU laws if the referendum is successful. Conversely, they have agreed not to opt in to 10 other EU laws.

As regards civil cooperation, the parties have agreed to opt in to large majority of EU measures, as regards: insolvency; payment orders; small claims; the European enforcement order; mediation; the Rome Regulation (on conflicts of law concerning contract); the Rome II Regulation (on conflicts of law concerning non-contractual liability); external relations; protection orders; inheritance; maintenance proceedings; parental responsibility; and account preservation orders. It should be noted that changes to the insolvency proceedings regulation are about to be formally adopted, and changes to the small claims rules will likely be agreed later this year; presumably the agreement also entails opt-ins to the existing legislation as amended.

In contrast, the parties agreed not to opt in to legislation on legal aid in cross-border proceedings, or to the Rome III Regulation on conflicts of law in divorce cases. Nor have they agreed yet on whether to opt in to the pending proposals relating to jurisdiction and choice of law over marital property, and the property of civil partnerships, in the event of relationship breakdown. In general, the recent agreement states that decisions to opt in to measures which have not yet been adopted depend on a future consensus of the relevant parties, or endorsement in a general election.

As for policing and criminal law, the parties agree to opt in to all measures concerning substantive criminal law and most measures concerning EU agencies and mutual recognition. In particular, they agree to opt into seven Directives, regarding: the European Investigation Order; protection orders; trafficking in persons; sexual abuse of children; cyber-crime; market abuse; and counterfeiting the euro. Conversely, they rule out opting in to the legislation on crime victims’ rights, the three Directives on suspects’ rights (concerning interpretation and translation, access to a lawyer and the right to information) and the rules on confiscation of criminal assets. They also rule out opting in to the legislation on EU funding in JHA matters.

They have partly agreed on future measures in this field, agreeing to opt in to the Regulations now under discussion on Europol and Eurojust (the EU prosecutors’ agency) and the Directive on passenger name records, but to opt out of the legislation establishing the European Public Prosecutor. The Commission has also proposed legislation on the European Police College, fraud against EU funds and drug trafficking, along with three more suspects’ rights measures (concerning childrens’ rights, the presumption of innocence and legal aid). Decisions on those measures will again depend upon on a future consensus of the relevant parties, or endorsement in a general election.

The parties’ clarification of their intentions provides useful certainty for the Danish public when it has the opportunity to vote on these issues. In general, in criminal matters Denmark would be participating in the EU measures assisting the prosecution, without any counterbalance by means of recent legislation regarding the rights of victims or suspects. Similarly it would still be participating in the Schengen rules on external border controls and the abolition of internal border checks, without any of the accompanying harmonisation of immigration and asylum law that applies to other Schengen States which are EU members. On the whole, Denmark would also be participating in more JHA legislation than the UK and Ireland – not just as regards full participation in Schengen (as is already the case), but also as regards the EU legislation on inheritance, account preservation, investigation orders, market abuse, currency counterfeiting and Eurojust, all of which one or both of the UK and Ireland have opted out of. On the other hand, the UK and Ireland have opted in to the EU legislation on crime victims’ rights, some of the legislation on suspects’ rights and the first phase of EU asylum law. Given that Ireland participates in the single currency, a Danish 'yes' to selective participation in JHA law would cement the UK's position as the chief non-participant in EU laws which bind most other Member States.

 

Barnard & Peers: chapter 26

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Denmark and EU Justice and Home Affairs Law: Really Opting Back In?

Steve Peers

Yesterday, the Danish Prime Minister made an announcement that Denmark would hold another referendum on EU matters in 2015. This was widely reported as a vote on whether Denmark would opt back in to EU Justice and Home Affairs (JHA) law. In fact, the government’s intention is to hold a vote on whether to replace a complete opt out with a selective opt-out. This blog post explains the detail of the issue, including a complete list of the measures which Denmark might opt back into if the Danish public approves the referendum proposal.

The Danish opt-out effectively dates back to the Danish referendum on the Maastricht Treaty in 1992. Following the initial Danish ‘no’ vote to that treaty, the EU’s Heads of State of Government adopted a Decision, which states that Denmark fully participates in EU JHA law. This was accompanied by a declaration stating that any transfer of powers to the European Community (as it then was) would be subject to a referendum in Denmark. This is generally regarded as the basis for Denmark’s opt-out on JHA matters.

This Decision is also often described as an opt-out on EU citizenship, although it is no such thing: it simply clarifies the relationship between Danish and EU citizenship. In fact, despite a widespread belief to the contrary, Denmark has no opt-out on EU citizenship at all.

The JHA opt-out was formalised as a Protocol to the Treaties at the time of the Treaty of Amsterdam (in force 1999), and was then revised at the time of the Treaty of Lisbon (in force 2009). It currently appears as Protocol 22 to the Treaties.

In a nutshell, the legal position is as follows.

First of all, Denmark is bound by the ‘Schengen’ rules abolishing border controls between most Member States, and measures building upon them, such as the Schengen Borders Code, the EU’s visa code, the Schengen Information System and the EU’s border control agency, Frontex. However, it is bound by these measures only as a matter of international law, not EU law. It could choose to opt out of new measures in this area, but there would be some unspecified retaliation if it did. It hasn’t done so in practice.

Secondly, Denmark is not bound by any other EU measures on immigration and asylum law, or civil cooperation, except for the measures on a standardised list of countries whose nationals do and don’t need visas to enter the EU. However,  for a few of these measures,  Denmark is bound instead by means of a treaty with the EU: the Dublin rules on asylum applications; the Brussels Regulation on civil and commercial jurisdiction; and the Regulation on service of documents. It’s also bound by the initial Rome Convention on conflicts of law in contract, but not by the Regulation replacing it.

Thirdly, Denmark is bound by EU measures on policing and criminal law adopted before the entry into force of the Treaty of Lisbon. This includes (as matters stand) the EU measures establishing Europol (the EU police agency), Eurojust (the EU prosecutors’ agency) and the European Arrest Warrant.

Fourthly, Denmark is conversely not bound by EU measures on policing and criminal law adopted after the entry into force of the Treaty of Lisbon. This includes particularly EU legislation on suspects’ rights, victims’ rights, and the European Investigation Order. In the near future, it will also not be bound by legislation re-establishing Europol, which will soon be the subject of final negotiations between the European Parliament and the Council (on the details of that negotiation, see the previous blog post). According to the Prime Minister, this is a particular reason for considering whether to exercise the opt-out.

The assumption behind her argument is that the pre-Lisbon measure establishing Europol will not be applicable to Denmark any longer once a new measure is adopted. In fact, Article 2 of Protocol 22 says as follows:

…acts of the Union in the field of police cooperation and judicial cooperation in criminal matters adopted before the entry into force of the Treaty of Lisbon which are amended shall continue to be binding upon and applicable to Denmark unchanged.

However, in the specific case of EU agencies, it is hard to see in practice how Denmark could continue to be part of Europol as it was set up subject to a pre-Lisbon measure, while all of the other Member States (presuming that the UK and Ireland opt-in) are part of Europol as it was set up afresh by a post-Lisbon Regulation.

In fact, the same issue is likely to arise as regards Eurojust (the EU prosecutors’ agency) in the next year or so, since there is also a proposal to replace the pre-Lisbon Decision setting up that body with a post-Lisbon Regulation.

What are the consequences of the opt-in? Denmark has the power to denounce ‘all or part’ of the Protocol, which also includes an opt-out relating to EU defence policy, without a need for a Treaty amendment. (Note that Denmark’s opt-out from the obligation to adopt the EU’s single currency is set out in a separate Protocol).

However, Denmark also has another option available to it: to replace the current complete opt-out for post-Lisbon JHA measures not linked to the Schengen acquis with a selective opt-out, ie the power to opt in to JHA measures on a case-by-case basis. According to press reports, this is what the Prime Minister proposes. In light of this, it simply isn’t accurate to say that Denmark would be voting to ‘give up its JHA opt-out’.

If the public vote in favour, Denmark would have the same power that the UK and Ireland have to opt in to JHA measures on a case-by-case basis, either within three months after those measures are proposed or at any time after they are finally adopted. However, unlike the UK and Ireland, Denmark will continue to be fully bound by EU measures on visa lists (ie with no-opt-out possibility), and will also continue to participate in the Schengen rules (although those rules would then have the force of EU law, not international law, in Denmark).

It would be up to the Danish government and parliament to determine what arrangements apply to opting in, as a matter of national law. If national law permits, it is open to Denmark to provide, if it wishes, that its national parliament must approve every opt-in decision, possibly by a higher majority in some or all cases. The Danish government could also announce in advance which measures it would (and would not) seek to opt in to.

To clarify the potential impact of the decision, the Annex to this post contains a complete list of all current measures or proposals which Denmark could opt to participate in if the public chose to vote for a selective JHA opt-out in place of the current complete opt-out. Again, though, Denmark could choose to participate in only a small number of these measures if it wished.

While it is sometimes claimed that EU opt-outs are not really genuine, because Member States will face undue pressure to opt-in to EU measures regardless, the evidence of the last 15 years clearly refutes this assertion. In practice, Denmark and the UK have not been forced to adopt the single currency, and the UK and Ireland have opted out of a growing number of JHA measures.

Barnard & Peers: chapter 2, chapter 25, chapter 26

Annex

JHA measures which Denmark couldopt in to after adopting a selective opt-out

1) Adopted measures

Asylum

1. Directive 2001/55 on temporary protection (OJ 2001 L 212/12)

2. Regulation 439/2010 establishing a European Asylum Support Office (OJ 2010 L 132/11)

3. Recast Directive 2011/95 on qualification and content of international protection (OJ 2011 L 337/9)

4. Directive 2013/33 on reception conditions for asylum-seekers (OJ 2013 L 180/96)

5. Regulation 604/2013 on responsibility for asylum applications (OJ 2013 L 180/31) – nb applies to Denmark by means of treaty already

6. Directive 2013/32 on international protection procedures (OJ 2013 L 180/60)

7. Regulation 603/2013 on Eurodac (OJ 2013 L 180/1) – nb applies to Denmark by means of treaty already

8. Regulation establishing the asylum and migration Fund (OJ 2014 L 150/168)

9. Regulation laying down general provisions on the Asylum and Migration Fund and on the instrument for financial support for police cooperation, preventing and combating crime, and crisis management ((OJ 2014 L 150/112)

Irregular migration

1.Directive 2004/82 on transmitting passenger information by carriers (OJ 2004 L 261/24)

2.Decision on joint expulsion flights (OJ 2004 L 261/28)

3. Directive 2004/81 on residence permits for victims of trafficking or facilitation of irregular migration (OJ 2004 L 261/19)

4.Decision on an information and coordination network for Member States’ migration management services (OJ 2005 L 83/48)

5. Directive 2008/115 on common rules for expulsion – Returns Directive (OJ 2008 L 348/98) – nb applies to Denmark in part already

6. Directive 2009/52 on sanctions for employers of irregular migrants (OJ 2009 L 168/24)

Legal Migration

1. Directive 2003/86 on family reunion (OJ 2003 L 251/12)

2. Directive 2003/109 on the status of long-term resident third-country nationals (OJ 2004 L 16/44)

3. Directive 2004/114 on entry and residence of students, volunteers and others (OJ 2004 L 375/12)

4. Directive 2005/71 on admission of researchers (OJ 2005 L 289/15)

5. Decision on exchange of asylum and immigration information (OJ 2006 L 283/40)

6. Decision establishing Migration Network (OJ 2008 L 131/7)

7. Directive 2009/50 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (‘Blue Card Directive’) (OJ 2009 L 155/17)

8. Regulation 1231/2010 extending Regulation 883/2004 on social security for EU citizens to third-country nationals who move within the EU (OJ 2010 L 344/1)

9. Directive 2011/51 applying long-term residents’ Directive to refugees and beneficiaries of subsidiary protection (OJ 2011 L 132/1)

10. Directive 2011/98 (single permit Directive) (OJ 2011 L 343/1)

11. Directive 2014/36 on admission of seasonal workers (OJ 2014 L 94/375)

12. Directive 2014/66 on admission of intra-corporate transferees (OJ 2014 L 157/1)

Civil Cooperation

1. Regulation 1346/2000 on jurisdiction over and enforcement of insolvency proceedings (OJ 2000 L 160/1)

2. Regulation 1347/2000 on jurisdiction over and enforcement of matrimonial and custody judgments (OJ 2000 L 160/19)

3. Regulation 1206/2001 on cross-border taking of evidence in civil and commercial matters (OJ 2001 L 174/1)

4. Decision 2001/470 on European Judicial Network on civil and commercial matters (OJ 2001 L 174/25)

5.  Directive 2003/8 on legal aid (OJ 2003 L 26/41)

6. Regulation 2201/2003 on parental responsibility (OJ 2003 L 338/1)

7. Regulation 805/2004 on European enforcement order (OJ 2004 L 143/15)

8. Regulation 1896/2006 creating a European order for payment procedure (OJ 2006 L 399/1)

9. Regulation 861/2007 establishing a European small claims procedure (OJ 2007 L 199/1)

10. Regulation 864/2007 on the law applicable to non-contractual obligations ('Rome II') (OJ 2007 L 199/40)

11. Directive 2008/52 on mediation (OJ 2008 L 136/3)

12. Regulation 593/2008 on 'Rome I' (choice of law for contractual obligations) (OJ 2008 L 177/6)

13. Decision amending Decision on judicial network (OJ 2009 L 168/35)

14. Regulation 662/2009 on Member States’ negotiation and conclusion of external treaties relating to maintenance, divorce and parental responsibility (OJ 2009 L 200/25)

15. Regulation 664/2009 on Member States’ negotiation and conclusion of external treaties relating to conflict of laws as regards contractual and non-contractual obligations (OJ 2009 L 200/46)

16. ‘Rome III’ Regulation 1259/2010 on choice of law in divorce proceedings (OJ 2010 L 343/10)

17. Regulation 650/2012 on choice of law and jurisdiction in succession proceedings (OJ 2012 L 201/107)

18. Regulation 1215/2012 on civil and commercial jurisdiction (OJ 2012 L 351/1) - – nb applies to Denmark by means of treaty already

19. Regulation 606/2013 on civil law enforcement of protection orders (OJ 2013 L 181/4)

20. Regulation 542/1014 amending civil jurisdiction Regulation (OJ 2014 L 163/1) – nb applies to Denmark by means of treaty already

21. Regulation on European account preservation orders

Criminal law and policing

Directives

1. Directive 2010/64 on the right to interpretation and translation in the framework of criminal proceedings (OJ 2010 L 280/1)

2. Directive 2011/36 on trafficking in persons (OJ 2011 L 101/1)

3. Directive 2011/82 on exchange of information on traffic offences (OJ 2011 L 288/1)

4. Directive 2011/92 on sexual exploitation of children (OJ 2011 L 335/1)

5. Directive 2011/99 on European protection order (OJ 2011 L 338/2)

6. Directive 2012/13 on the right to information on criminal proceedings (OJ 2012 L 142/1)

7. Directive 2012/29 on crime victims’ rights (OJ 2012 L 315/57)

8. Directive 2013/40 on attacks on information systems (OJ 2013 L 218/8)

9. Directive 2013/48 on access to lawyer and communication rights (OJ 2013 L 294/1)

10. Directive 2014/41 on European investigation order (OJ 2014 L 130/1)

11. Directive 2014/42 on freezing and confiscation of criminal proceeds (OJ 2014 L 127/39)

12. Directive 2014/57 on criminal sanctions against market abuse

13. Directive 2014/62 on counterfeiting currency (OJ 2014 L 151/1)

Regulations

1. Regulation establishing a Justice Programme (OJ 2013 L 354/73)

2. Regulation on the instrument for financial support for police cooperation, preventing and combating crime, and crisis management (OJ 2014 L 150/93)

3. Regulation 543/2014 amending Decision on European Police College (OJ 2014 L 163/5)

2) Proposals

Immigration and asylum

1. Directive on admission of students, researchers and others (COM (2013) 151, 25 March 2013)

2. Regulation amending the Dublin III Regulation regarding unaccompanied minors (COM (2014) 382, 26 June 2014)

Civil cooperation

1. Commission invitation to Council to apply ‘co-decision’ procedure to the issue of maintenance obligations (COM (2005) 648, 15 Dec. 2005)

2. Commission proposal for Regulation on choice of law and jurisdiction on matrimonial property (COM (2011) 126, 16 Mar. 2011)

3. Commission proposal for Regulation on choice of law and jurisdiction on registered partnerships (COM (2011) 127, 16 Mar. 2011)

4. Commission proposal for Regulation amending insolvency Regulation (COM (2012) 744, 12 Dec. 2012)

5. Proposal for Regulation amending prior legislation regarding implementing measures (COM (2013) 452, 27 June 2013)

6. Proposal for Regulation amending small claims and order for payment Regulations (COM (2013) 794, 19 Nov. 2013)

Criminal law

1. Proposal for Directive on the right to interpretation and translation in the framework of criminal proceedings (COM (2010) 82, 9 March 2010)

2. Proposal for Directive on passenger name records (COM (2011) 32, 2 Feb. 2011)

3. Proposal for Directive on protection of EU financial interests (COM (2012) 363, 11 July 2012)

4. Proposal to amend Framework Decision on drug trafficking (COM (2013) 618, 17 Sep. 2013)

5. Proposal on presumption of innocence (COM (2013) 821, 27 Nov. 2013)

6. Proposal on childrens’ rights as suspects (COM (2013) 822, 27 Nov. 2013)

7. Proposal on provisional legal aid (COM (2013) 824, 27 Nov. 2013)

8. Regulation on Europol (COM (2013) 173, 27 March 2013)

9. Regulation on European Public Prosecutor’s Office (COM (2013) 534, 17 July 2013)

10. Regulation on Eurojust (COM (2013) 535, 17 July 2013)

Note: this list does not include measures which have expired or been replaced (or which will be replaced as of July 2015). It also does not include international treaties with third States, since at least in some cases, Denmark has parallel arrangements in place with the countries concerned. The most important treaties in question concern readmission, visa facilitation, the Hague Convention on maintenance and treaties on mutual assistance, extradition and exchange of police information.

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Questions for the would-be home affairs and justice Commissioners

Steve Peers, Emilio de Capitani and Henri Labayle

The would-be Commissioners for immigration and home affairs and Justice will shortly be questioned by Members of the European Parliament (MEPs) in hearings, to determine whether the EP should vote to confirm them in office. MEPs have already asked some written questions and the would-be Commissioners have replied. Since most of the written questions were not very searching (except for a couple of questions on data protection issues), the Commissioners did not reply in much detail.

However, the hearings are an opportunity for MEPs to ascertain the Commissioners’ plans, and to secure important political commitments, in these fields. To that end, we have therefore suggested a number of oral questions which MEPs should ask in the hearings. 

Immigration and asylum

The Commission consider that migration policy should be framed by the (non binding) objectives of the global approach to migration (GAMM) and relations with third countries should be dealt with by “Mobility Partnership” which are more diplomatic declarations than binding acts. Would you propose a binding legal basis for treaties with the countries concerned, grounded on Articles 77, 78 and 79 of the TFEU?

What actions will the Commission take to ensure that EU legislation in this field is fully and correctly implemented by the Member States?

Will the Commission propose an immediate amendment to the EU visa code, to confirm that Member States are obliged to give humanitarian visas to those who need them and who apply at Member States' consulates in third countries?

When will the Commission propose EU legislation to guarantee mutual recognition of Member States' decisions regarding international protection, including the transfer of protection?

When will the Commission make proposals for a framework for sharing responsibility for asylum-seekers and persons who have been granted international protection, starting with those who have applied outside the territory of the Member States?

Will the Commission propose an immigration code, and what will its main contents be?

The Court of Justice has recognised that search and rescue obligations are interlinked with external borders surveillance (Case C-355/10). The EU adopted rules in this field which governing only border control coordinated by Frontex. Do you intend to propose that such rules should apply to all Member States’ border controls as a general rule, by formally amending the Schengen Borders Code ?

What immediate and longer-term steps will the Commission take to address the death toll of migrants crossing the Mediterranean?

Will the Commission propose to amend the EU legislation on facilitation of unauthorised entry to confirm that anyone who saves migrants from death or injury during a border crossing, or who otherwise acts from humanitarian motives, is exempt from prosecution?

Internal Security and Police cooperation

Measures against terrorism and transnational crime were until now mainly taken under the vague framework of “operational cooperation”. Will the Commission propose a clear legal basis for the Internal Security Strategy and transforming the so called “Policy Cycle” in a transparent and legally binding framework where European and national interventions are clearly framed? Will you propose relevant amendments to the Europol legislative proposal which make reference to the policy cycle without framing it? Which initiatives will you take  to implement the principle of subsidiarity and proportionality as foreseen by the Treaty, and to ensure that the Charter must be taken in account also for police cooperation so that the European and national parliaments as well as the Court of Justice could verify that these principles have been complied with ?

According to Protocol 36 (the transitional protocol attached to the Treaty of Lisbon), all measures dealing with police cooperation adopted before the entry into force of that Treaty will fall under the jurisdiction of the Commission and of the Court from 1 December 2014. Some of them are outdated and should be repealed or substantially modified to take in account the post-Lisbon legal and institutional framework (role of the Charter, co-responsibility of the EP, role of the national Parliaments). In several cases where EU measures limit dramatically fundamental rights sunset clauses should be inserted in the basic acts. However nothing about this is written in your statement nor in the previous Commission’s REFIT exercise. Could it be a priority or do you believe that Lisbon Treaty did not change the situation in your domain of competence?

Will your legislative programme also be grounded on the Treaty legal basis of judicial cooperation in criminal matters ? If so, how will you frame the relations with the Commissioner in charge of these aspects ?

Schengen cooperation has been until now the most successful case of cooperation between the Member States and has been recently upgraded by launching SIS II and EUROSUR. The notion of integrated border management in Article 77 TFEU is progressively taking shape but no substantial improvement happens in the role of the European and National parliament. Other similar initiatives like PRUM and Swedish initiatives have been developed following the principle of availability. Do you plan further initiatives here?

For instance, in light of the recent UK case where a convicted murderer moved from one Member State to another, do you intend to propose the exchange of criminal records concerning the most serious crimes by a Member State’s nationals (murder, rape, grievous bodily harm) if those nationals are no longer imprisoned?

Will the Commission propose a police code that recasts EU legislation in this field?

When does the Commission intend to submit a legislative proposal implementing Article 75 of the TFEU dealing with freezing assets of terrorists ?

Justice Commissioner

According to CJEU (Melloni, Radu judgments) the principle of primacy of EU law covers also sensitive domains such as judicial cooperation in criminal matters. It is then important that the EU legislation is set at the highest possible standards of protection of fundamental rights so that by implementing the EU legislation the current level of protection at national level will not be lowered. Do you agree that all future EU legislative proposals on criminal law should make also reference to the possible impact on national law and always permit the possibility of higher national standards as referred to by art. 53 of the Charter ?

Will the Commission commit to propose to amend the Framework Decision on the European Arrest Warrant and other pre-Lisbon measures on mutual recognition in criminal matters, to ensure that there is the same level of protection of fundamental rights as guaranteed in the recent Directive on the European Investigation Order?

When will the Commission propose a measure to ensure adequate protection for suspects as regards pre-trial detention in criminal proceedings in the Member States?

Will the Commission submit further legislative measures to improve the suspect's procedural guarantees?

Fundamental rights protection is meaningless without effective ways to obtain a judicial redress at national or EU level. Will you submit a legislative proposal upgrading the 2013 Commission Recommendation on collective redress mechanisms so that citizens and companies can enforce the rights granted to them under EU law where these have been infringed?

How will the Commission act to ensure that Member States fully and correctly apply EU legislation on the protection of victims' and suspects' rights in criminal proceedings?

OLAF, EUROJUST and EPPO will deal under different perspectives with the problem of protection of EU financial interests. Has the time come to simplify the institutional machinery, for instance by merging OLAF with EPPO ?

Several EU measures such as the Framework decision on terrorism restrict individual freedoms. In these cases should the EU legislation (as well as delegated and implementing acts) should not embody sunset clauses, as it the case for the US legislation (see the Patriot Act)?

Will the Commission commit to propose to the Council that any EU treaty on sharing personal data with third countries will be suspended if, in the view of the European Parliament following an independent review, in practice there is no adequate level of protection of the relevant personal data in that third country?

According to the current and envisaged legislation it will be a Commission’s role to assess the adequacy of data protection in third countries. Do you agree that such evaluation should be done as delegated act as it requires a high level of discretion on the Commission side ?

DIGITAL AGENDA (together with Commissioner Oettinger and VP Ansip)

You will work with Candidate Commissioner Oettinger on the digital agenda who made reference to an ambitious legislative programme soon to be adopted to implement the European Digital Agenda. The EU Treaties offer several legal bases to accomplish such an objective even if the EU is still lacking a comprehensive and consistent legislative strategy which could give specific expression to fundamental rights as defined by the Charter of fundamental rights.

For this reason the Court of Justice has recently annulled the Directive on data retention. However the same fate could occur to other EU legislative measures planned or in negotiation which do not meet the high standards required by the Charter and to avoid challenges from national Courts.

To avoid these risks will you be available to design and implement with your other colleagues in the future Commission (Oettinger Timmermans, and Ansip) a legislative strategy which could become an European "Marco Civil" as the one recently adopted by Brazil ?

The Court of Justice has defined in its data retention ruling very strict criteria to be followed when collecting personal data for security purposes. Even the Council legal service seems to consider that the current EU-US agreements on TFTP and PNR do not fit with these criteria. What do you intend to do at the next Transatlantic summit? Will you notify the US authorities that the agreements should be profoundly revised?

When will the Commission respond to the CJEU ruling on the invalidity of the data retention Directive? Will it propose a new EU Directive which is compliant with the judgment? Does the Commission believe that the Directive still allows for mass surveillance? Will the Commission pursue infringement action against Member States whose legislation is not in compliance with the criteria set out in the judgment?

Barnard & Peers: chapter 25, chapter 26

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The European Investigation Order: A new approach to mutual recognition in criminal matters

Emilio De Capitani and Steve Peers

  

The adoption of Directive 2014/41/EU on the European Investigation Order (EIO) is a milestone for judicial cooperation in criminal matters in the European Union notably after the entry into force of the Lisbon Treaty and of the EU Charter of Fundamental Rights. This post focusses in turn on the broader legal context of the new Directive, its territorial scope in light of various opt-outs, and its important provisions on the relationship between human rights and mutual recognition.

A comprehensive single instrument

As from 22 May 2017, this Directive replaces most of the existing laws in a key area of judicial cooperation – the transfer of evidence between Member States in criminal cases – by a single new instrument which will make cross-border investigations faster and more efficient.

That current patchwork of rules comprises:

-          the Council of Europe Convention on Mutual Assistance in Criminal Matters of 20 April 1959 (and its two additional protocols);

-          parts of the Schengen Convention;

-          the 2000 EU Convention on Mutual assistance in criminal matters (and its Protocol);

-          the 2008 Framework Decision on the European evidence warrant; and

-          the 2003 Framework Decision on the execution in the European Union of orders freezing property or evidence (as regards freezing of evidence).

Unlike the European Evidence Warrant, which most Member States thought was useless and have not bothered to implement, the new Directive will cover almost all investigative measures  such as interviewing witnesses, obtaining of information or evidence already in the possession of the executing authority, and (with additional safeguards) interception of telecommunications, and information on and monitoring of bank accounts. The Directive will not apply to Schengen cross-border surveillance by police officers under the Schengen Convention, or to the setting up of a joint investigation team and the gathering of evidence within such a team which. According to the legislator, these issues “require specific rules which are better dealt with separately”.

A small part of the previous Conventions will remain in force because they regulate issues outside the scope of investigations, such as compensation for wrongful conviction. A handbook for practitioners will clarify this issue in future.

Territorial scope

The Directive will apply to all the EU Member States with the exception of Denmark (because of the general exclusion of this country from Justice and Home Affairs measures– see Protocol 22 attached to the Treaties) and of Ireland which, until now, has not “opted in” as it has the faculty to do according to Protocol 21 attached to the Treaties. Surprisingly the UK “opted in” and so took part in the vote even if by …abstaining. (Note: by so doing it also avoided national parliamentary scrutiny).

Due to the position of Ireland and Denmark, the former Framework Decision on the European Evidence Warrant has not been repealed, so will “survive”, but only for the relations between Ireland and Denmark and the other EU Member States. Probably the legislator wanted to still the door open to Ireland for a late “opt-in” (still possible any time after the adoption of an EU JHA act – see Article 4 of Protocol 21).

This tricky (and hopefully transitional) legal situation has obliged the legislator to use in Article 34 of the Directive a generic and flexible reference to “…the Member States bound by this Directive” (a formula already used for the “Human Trafficking” Directive, as well as other measures such as EU asylum legislation).

These are legal acrobatics which do not strengthen legal certainty and have already triggered some public statements by several Member States which very politely urge the Commission and the Presidency to …”consider possibilities to ensure legal clarity on the repealing of the Framework Decision [on the European Evidence Warrant] for all Member States.”  

From legal assistance to mutual recognition

The huge advance of the new text is that it makes the transition from the mutual legal assistance mechanisms, where the requested State has a wide discretion to comply with the request of another State, with a mutual recognition mechanism where each State must in principle recognise and execute a request coming from another Member State. By choosing the word “order” and by referring to “issuing” and “executing” States, in place of “requesting” and “requested” States, the legislator clearly indicates how the system has changed.

In the same perspective the execution of an EIO should not be refused on grounds other than those stated in Article 11 of the Directive (such as human rights, territoriality, national security and double jeopardy), although the executing authority will be entitled to opt for a less intrusive investigative measure than the one indicated in an EIO if it it is still possible to achieve similar results. Article 12 of the Directive set also mandatory deadlines for carrying out the investigative measures and requires that the recognition or execution should be carried out with the same priority and speed as for a similar domestic case.

Building on Mutual (but not blind) trust…

The mutual recognition regime been so incisive for the national systems of criminal law it is not surprising that several civil society organizations, academia and even ...Eurojust raised several reservations on the introduction of a too ambitious EIO.

The main message was to take better into account the specificity of the national systems as well as the need to protect fundamental rights and the proportionality principle - all concerns already raised as regards the implementation of the European Arrest Warrant (EAW), which is at the same time the most successful but also controversial mutual recognition EU measure.

This time, all these aspects have been thoroughly negotiated by the European Parliament which engaged a strong four year dialogue with the member states representatives (from the presentation of the proposal in April 2010 until February 2014) before reaching, after twelve trialogues and several technical meetings, a “first reading agreement” on the text.

Fundamental rights and mutual recognition: resolving the conflict?

 

The EP’s role can best be seen in recital 19 in the preamble to the Directive, which states:

“The creation of an area of freedom, security and justice within the Union is based on mutual confidence and a presumption of compliance by other Member States with Union law and, in particular, with fundamental rights. However, that presumption is rebuttable. Consequently, if there are substantial grounds for believing that the execution of an investigative measure indicated in the EIO would result in a breach of a fundamental right of the person concerned and that the executing State would disregard its obligations concerning the protection of fundamental rights recognised in the Charter, the execution of the EIO should be refused.”(emphasis added)

This principle is reflected in Article 11(1)(f) of the Directive, which permits a refusal to execute an EIO on human rights grounds. To qualify as “rebuttable” in a legislative text the presumption of compliance by another Member State with EU law and fundamental rights is an important progress in an European Union which since the Tampere programme has considered mutual recognition to be the cornerstone of the judicial cooperation in criminal matters and which until now has usually made only generic reference to protection of fundamental rights in mutual recognition instruments (one exception is the Framework Decision on the mutual recognition of financial penalties).

However by suggesting this wording the EP extended to criminal matters the principle expressed by the CJEU in EU asylum policy with the N.S.ruling, which states:“

The Member States, including the national courts, may not transfer an asylum seeker to the Member State indicated as responsible where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union. The Court considers that the Member States have a number of sufficient instruments at their disposal enabling them to assess compliance with fundamental rights and, therefore, the real risks to which an asylum seeker would be exposed were he to be transferred to the Member State responsible”       

By analogy with the NS case, the refusal to execute an EIO on human rights grounds must logically be mandatory, even though the legislation suggests that such a refusal is optional. But it should be noted that the wording of the Directive suggests that a defect in another Member State should be judged in individualcases, whereas the NS ruling referred rather to “systemic deficiencies”.

Primacy of EU law and protection of national constitution’s principles

But the EP was also concerned for the respect of the protection of the fundamental principles of the national criminal law systems. These principles can be protected by the Member States during the negotiation of an EU measure by using the so called “emergency brake” foreseen by Articles 82 and 83 TFEU. The point remain how to take in due account these same fundamental aspects also after the adoption of an EU measure.  The EP considered that the CJEU jurisprudence on Radu and Melloni (dealing with the implementation of the EAW) and giving priority to EU law also against constitutional principles in the Member States was going too far, so it insisted upon making explicit reference to the Member States’ constitutions.

The result of this pressure is mirrored in the first part of recital 39 in the preamble, which states :

“This Directive respects the fundamental rights and observes the principles recognised by Article 6 of the TEU and in the Charter, notably Title VI thereof, by international law and international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and in Member States' constitutions in their respective fields of application..”.

The final words of this recital echo Article 53 of the Charter of Fundamental Rights, which deals with the relationship between the Charter and (inter alia) national constitutions. While the CJEU found in Mellonithat Article 53 justified setting a ceiling on national constitutional protection in that case, that judgment concerned an issue which had been extensively regulated by EU law (in absentiatrials as a ground for refusal), whereas there are no equivalent provisions in the EIO Directive.

Will this text be sufficiently clear to push the CJEU to recognise a wider “margin of appreciation interpretation” of national authorities as regards JHA, as suggested by the former Advocate General Francis Jacobs some time ago?  We may have still to wait for years before knowing the right answer. However, it could be arguable that in the meantime, the CJEU should take the rules in this Directive regarding the relationship between human rights and mutual recognition into account when interpreting other EU mutual recognition measures, such as the EAW.

Conclusion

These are only some general observations on a Directive which requires a deeper analysis. However it is worth noting that the Directive makes already explicit reference to the first three post-Lisbon measures dealing with procedural guarantees for criminal suspects, namely:

-          Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings;

-          Directive 2012/13/EU on the right to information in criminal proceedings; and .

-          Directive 2013/48/EU on the right of access to a lawyer and the right to communicate when deprived of liberty.

Even though these are still only among the first EU criminal law texts adopted following the entry into force of the Treaty of Lisbon, all the pieces of the mosaic are progressively falling into place.

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