In its forty-second report the Select Committee on the European Union refers to the criminal law as possessing an important role in ‘protecting the physical and economic well-being of society and the individual.’ Both the importance of criminal law and the idea advocated by Corstons (2003) of its weight as a ‘symbol of state sovereignty’ and reflection of ‘national culture’ were not overlooked by the British press in the wake of case C-176/03. Described by the independent as an ‘angry row between Europhiles and defenders of national sovereignty’ the issues raised by this case were widely portrayed in these terms. The Commission was depicted as the villain of the piece for seeking according to the Financial Times (7/2/07) to ‘stealthily advance EU powers’ and it was widely perceived as reported by BBC News (27/2/07) that this was at the ‘expense of national governments.’ It is plausible that this view would be echoed by Lőőf (2006) who has referred to a ‘cavalier attitude’ on the part of the commission as to its ‘limits of competence’ in the field of criminal law. In order to comment upon the controversy inspired by the actions of the commission in relation to this case it would be useful to first consider the grounds of the objection to the commission’s assumption of competence in this area.
Perhaps the most significant objection can be made on the grounds that Member States did not regard the commission to possess competence in this area. Lőőf (2006) refers to ‘years if not decades, during which it was assumed that criminal law was off limits to the EC.’ Harding (2000) points to the ‘customarily stated reservation of criminal law matters to the sphere of national sovereignty (which) appeared to rule out the possibility of EC rule making in that context.’ Grandi (2004) highlights ‘the lack in the Treaties of any provision explicitly providing the community with competence in criminal law.’ He also mentions ‘the political will of certain member states to uphold national monopoly over criminal law’ as an obstacle to the acquisition of criminal law competence by the commission. In view of these points in addition to the knowledge that all 15 Member States intervened in case C-176/03 in favour of the Council it is difficult to understand how the case came to be decided in favour of the Commission. How can it be legitimate for the Commission to acquire competence in an area that was not foreseen nor desired by all 15 Member States? The weight of this question is not in any way diminished by the fact that the Commission’s criminal law competence is restricted to specific First Pillar issues. Even if entirely detached from the emotive aspects of sovereignty it is in some way alarming that the will of the Commission was upheld by the European Court of Justice at the expense of the political will of Member States. The judgement in case C-176/03 has given rise to the review of Framework Decisions relating to matters from ship source pollution to measures against counterfeiting the Euro. Whilst this approach will undoubtedly improve the timely adoption of criminal sanctions in support of the essential objectives of the Commission, the fact that this efficiency was achieved as a result of an interpretation of the EC Treaty that was unforeseen and unsupported by Member States continues to be of concern. The circumstances surrounding this decision could be perhaps viewed as a return to the ‘expansive logic of integration’ leading to ‘spill-over’ that was predicted by Haas (1958, p16). It is certainly evident that this case involves a transferral of power from a national to a supranational level in pursuit of ‘supranational solutions’ (Jordan, 2001, p197) to problems that were previously administered nationally. What is less apparent however is any evidence to suggest that this logic of integration is ‘driven by (the) self interest’ of nation states (Jordan, 2001, p197).
The reluctance of Member States towards a transferral of the competence to prescribe sanctions from the ‘Justice and Home Affairs Pillar’ to the EC Pillar of the EU has also manifested itself in the lack of progress made regarding the so called ‘passerelle’ provision contained in Article 42 of the TEU. Whilst is must be noted here that opposition to this provision is confined to specific Member States the fact that the ‘passerelle’ is according to Geoff Hoon (Minister for Europe) ‘less than 50 percent’ likely to be next due for discussion in the Council of Ministers within the measureable future (HL 11 Session 2006/2007) is perhaps testament if not to its unpopularity then certainly to its political sensitivity. Corstens (2003) refers to the existence of the ‘passerelle’ in itself as:
‘(An) indication that the Member States evidently believe that the EC has no power to approximate national criminal law or, I would add, to introduce a mandatory provision that national criminal law must be introduced to enforce community laws.’
In view of case C-176/03 this comment and indeed perhaps the ‘passerelle’ provision itself is superfluous. However, it must be noted that as in case C-176/03 objections to the provision are not concentrated solely on the loss of national sovereignty that such a move from the ‘Third’ to the ‘First Pillar’ has been held to entail. Concerns raised by countries such as Germany and Ireland who though in favour of the Constitutional Treaty fear that the adoption of the ‘passerelle’ would constitute ‘cherry-picking’ have been seized upon by those who fear the implementation of the Treaty ‘by the back door (HL 227 Session 2005/2006.)’ As mentioned previously in reference to the judgement in case C-176/03, a transferral of competence from the ‘Third’ to the ‘First Pillar’ would be largely desirable if one were to limit consideration to the potential enhancement of efficiency in achieving the key objectives of the Union. EU watchdog JUSTICE pointed to the increase in annulment actions before the court as distinctions between the two pillars become increasingly blurred. Despite evidence provided by the Commission as to its reticence in using the additional competence awarded to it by the court it is logical in light of Case 176/03 that the tide of annulment actions will for a limited amount of time increase. This will further compromise efficiency in the Third Pillar as time is taken for cases to be decided on a case by case basis. Perhaps it could be argued that the decision of the ECJ in Case 176/03 permitted cherry-picking from the sidelined ‘passerelle’ and by extension the implementation of selected elements ‘by the back door.’ However, it is this ‘part by part... field by field’ approach that is favoured by the Justice and Home Affairs Commissioner, Mr Franco Frattini who is sensitive to the ‘political sensitivity’ surrounding the ‘passerelle.’ He states:
‘I am not talking about the entire space of criminal justice and police cooperation. It seems to me more appropriate to move step by step... If you have problems envisaging the entire space under my responsibility, I will be ready to co-operate on the basis of field by field.’
In view of case C-176/03 it is perhaps fortunate that Mr Frattini feels this way about the situation. However the full incorporation of the ‘passerelle’ is favoured not only by JUSTICE but also by the law society who believe a full incorporation is the most effective way of balancing the ‘rights and freedoms of the individual’ with the ‘security concerns of Member States (HL 227 Session 2005/2006.)
It would appear that the current standoff regarding the ‘passerelle’ could be seen to be symbolic of the tensions surrounding the criminal law competence of the European Union. The Commission’s wish to move further into the sphere of criminal law in order to realise the opportunity to improve the attainment of the objectives agreed to by Member States as signatories to the Treaties under discussion is frustrated by reluctance on the behalf of certain Member States to confer authority in this area. In this respect case C-176/03 could be seen to be an effective way of avoiding the deadlock that has afflicted other areas of integration and that has the potential to be particularly paralysing in the politically sensitive sphere of Justice and Home Affairs. Despite the significant benefits to this functional approach it is clear that there is a need to exercise caution in order to ensure that the Commission is acting within the limits of the competence afforded to it by the Treaties. In doing so it will avoid a situation in which its actions are called into question on the grounds of legitimacy.
As Lőőf (2006) points out, the area of Freedom, security and justice established in the post Amsterdam EC Treaty ‘is not (yet?) an autonomous system of criminal justice.’ Instead he describes it as a system of ‘cooperation between such autonomous systems of criminal justice.’ In the absence of common legislation the Presidency Conclusion from the Tampere European Council (15/16 October 1999) identifies ‘mutual recognition’ as the ‘cornerstone’ of cooperation in the area of Freedom, security and justice.’ As Lőőf (2006) identifies, this implies a need for Member States to trust each others criminal justice systems identifying the existence of ‘divergent practices’ as a potential obstacle to this mutual trust. In a text entitled ‘The Protection of the Euro against Counterfeiting’ Ciro Grandi (2004) describes an event which he presents as a contributing factor to the instigation of the Geneva Convention:
‘In 1925 France became the victim of a large scale falsification of its own currency in Hungary; as a result of the following investigation, the perpetrators were arrested in the Netherlands and prosecuted in Hungary, where they were eventually treated with surprising leniency. Due to the exceptional scale of the crime, the deplorable behaviour of the Hungarian authorities and the political weight of the country affected, it was clear that the time had come to deal with counterfeiting at an international level.’
This is an example of perhaps the worst case scenario that ‘divergent practices’ (Lőőf 2006) could produce. In order for the advocated practice of ‘mutual recognition’ to succeed it is necessary for Member States to feel entirely confident that crimes will not be treated with anything approaching ‘surprising leniency’ in a third Member State. This has particular relevance when applied to the highly controversial Framework Decision necessitating the incorporation of the European Arrest Warrant which seeks to ‘simplify the extradition of individuals accused or convicted of certain types of criminal acts within the EU’ (Deen-Racsmány, 2006.) The Framework Decision is based upon the idea of citizenship of the Union. It is therefore logical that ‘the exception provided for a countries’ nationals, which existed under traditional extradition arrangements should does not apply’ (Deen-Racsmány, 2006.) Whilst the European Arrest Warrant applies reformed terminology in order to mark its distinction from the traditional extradition procedure what it necessities in effect is the agreement of a Member State to extradite its own nationals to a requesting Member State. There are two points to make here. The first is relevant to the concept of EU citizenship. It is important to note that the extradition of nationals is significant enough to warrant mention in the constitutions of in excess of four Member States which offer to protect to its citizens from such an event. The German Constitution provides surety to nationals against their removal to a situation in which they could be condemned ‘in a legal system alien to him, under extraneous conditions, which are little transparent to him (Deen-Racsmány, 2006.) Deen-Racsmány mentions ‘linguistic difficulties, cultural differences and other disadvantages’ in this context which are not as yet removed from the equation. Whilst the concept of EU citizenship is alive in the Treaties and is undoubtedly a necessary component in achieving the objectives of an area of freedom, security and justice the reality is that it has not yet reached a stage at which citizens would not feel disadvantaged by trial in a Member State in which they did not reside. The increasing harmonisation of the criminal law of autonomous legal systems and of procedural rights in criminal proceedings would go some way to ease concerns in this area. However having spent considerable time living in France it is possible to state unequivocally that linguistic and cultural differences cannot be overlooked and that irrespective of procedural harmonisation these factors would continue to disadvantage the ‘surrendered’ national in criminal proceedings. This would be exacerbated by a harmonisation of legal systems or procedural rights that was only partial as is currently the case.
The reluctance of Member States to endorse the European Arrest Warrant is not restricted solely to concern that justice would not be effectively served to their extradited or ‘surrendered’ nationals. The second point referred to previously relates to the controversy arising from the constitutional implications of a change in extradition procedure for Member States who formerly offered their nationals constitutional protection. Here the reluctance of Member States to confer power to a supranational level is once again revealed. As Deen-Racsmány (2006) identifies, the first challenge in relation to the constitutional compatibility of surrendering nationals under a European Arrest Warrant was heard by the Polish Constitutional Tribunal in 2005. The tribunal noted that the implementation of the Framework Decision and the subsequent obligation to extradite Polish nationals would constitute ‘a severe limitation of Polish sovereignty (Deen-Racsmány, 2006.)’ The tribunal considered the nature of a Framework Decision which does not have direct effect must be implemented by Member States as was confirmed in the Pupino case. The Polish Constitutional Tribunal found that they were obliged to implement the European Arrest Warrant on account of their obligations as a Member state and also because according to Article 9 of the Polish Constitution the republic is compelled to ‘respect international law binding upon it (Deen-Racsmány, 2006.)’ It was found that the departure in terminology from that which was ordinarily applied to extradition procedure was not sufficient to allow an alteration of the Polish Constitution to be avoided. It is significant here that the decision to potentially amend the constitution in order to adopt the Framework Decision was made in recognition of the ‘importance of Polish compliance with international obligations binding on it.’ The decision can thus be regarded as an example of a Member State balancing the desire to protect their sovereignty in retaining control on an issue considered to be of significant constitutional importance with the significant benefits derived from EU membership and the creation of an area of freedom security and justice. This could be seen to be symbolic of the prevailing attitude of Member States as regards the criminal law competence of the European Union.
In conclusion it must be noted that the transferral of criminal law competence from the national to the supranational level does not sit easily with the Member States of the European Union. Case C-176/03 came as a surprise as in affording unforeseen competence to a supranational institution. The desire that this case should not have far reaching implications is replicated in the cautious approach adopted by Member States in relation to the ‘passerelle.’ Reservations expressed concerning ‘mutual recognition’ in respect of the European Arrest Warrant reveal that Member States do not perhaps as yet have full confidence in each other’s legal systems. Neither do they have full confidence in the appropriateness of ‘surrendering’ nationals to a ‘requesting’ Member State revealing the current limitations to the concept of European citizenship. To a certain extent this could be viewed as something of a catch twenty-two situation. Further harmonisation of legislation and the adoption of common procedures would lead to greater legal certainty and would therefore ease the concerns of Member States regarding each others legal systems. The reluctance to confer competence to the Commission which is perhaps best placed to facilitate the effective implementation of measures aimed at harmonisation is without a doubt obstructing this process. It would appear therefore that as signatories to the EU Treaty establishing an area for freedom, security and justice Member States should perhaps be more open to conferring authority where it would aid the achievement of this objective.
Surprised by the outcome of case C-176/03 the French National Assembly issued a report recommending the use of Article 42 TEU as a means of removing that resistance to the decision created.
BIBLIOGRAPHY
G.Corstens, ‘Criminal Law in the First Pillar ?’ European Journal of Crime ,Criminal Law and Criminal Justice 11 (1) 2003
Z.Deen-Racsmány, ‘The EAW and the surrender of nationals revisited’, European Journal of Crime, Criminal Law and Criminal Justice,14(3), 2006
C.Grandi, ‘Protecting the Euro from counterfeiting’, European Journal of Crime, Criminal Law and Criminal Justice, 12(2) 2004, pp89-131
C.Harding ‘Explaining the intersection betwen European Law and national criminal law.’
European Law Review 25(4) 2000
W.Hetzer, ‘The fight against fraud and protection of fundamental rights in the EU’, European Journal of Crime, Criminal Law and Criminal Justice,14(1), 2006
A.Jordan, ‘The European Union: An evolving system of multi-level governance… or government? (London) 2001
R.Lőőf, ‘Shooting from the Hip: Proposed Minimum Rights in Criminal Proceedings throughout the EU’, European Law Journal, 12(3), 2006V
HL 227 ‘The Criminal Law Competence of the EU’ Session 2005/2006
HL 11 ‘The Criminal Law Competence of the EC: Follow- up Report’ Session 2006/2007.
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