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In the wake of Pupino: Advocaten voor der Wereld and Dell'Orto

Published online by Cambridge University Press:  06 March 2019

Abstract

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This paper argues that the third pillar, despite the ECJ's landmark ruling of Pupino (which extended communautaire reasoning to the third pillar terrain) is and remains different from the supranational sphere. In so doing, the paper asks whether a consistent approach to EU law can be derived from the orthodoxy of EC law by focussing on the recent judgments of Advocaten voor der Wereld and Dell'Orto.

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Copyright © 2007 by German Law Journal GbR 

References

1 See however the Action committee for European democracy, available via http://www.eui.eu/RSCAS/e-texts/ACED2007_NewTreatyMemorandum-04_06.pdf, Proposal for a new Treaty and supplementary protocols. See also the Berlin declaration available via http://www.eu2007.de/de/News/download_docs/Maerz/0324-RAA/English.pdf Google Scholar

2 See German presidency conclusions agreed on 22-23 June 2007, Brussels, available via http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/ec/94932.pdf Google Scholar

4 Case 105/03, Criminal proceedings against Maria Pupino [2005] ECR I-5285, discussed below.Google Scholar

5 C-176/03, Commission v. Council, [2005] ECR I-7879 and the first follow-up to this case C-440/05 Ship-source pollution, delivered on 23 October 2007 nyr. See also Case T-306/01, Yusuf and Al Barakaat International Foundation v. Council and Commission, Case T-315/01, Kadi v. Council and Commission, T-306/01, [2005] ECR II-3533. Now pending before the European Court of Justice, Case C–415/05.Google Scholar

6 COM(2006) 331 final. Implementing the Hague Programme: the way forward' Google Scholar

7 Outvoted during informal discussions in the European Council Tampere, 27 September 2006 see http://www.eu2006/fi/news. Discussed further in Ester Herlin-Karnell, Recent Developments in the Area of European Criminal Law, 14 Maastricht J. Eur. & Comp. L. 15 (2007)Google Scholar

8 See comments provided by Steve Peers, Statewatch, the German presidency conclusions, available at: http://www.statewatch.org/news/2007/jul/eu-reform-treaty-teu-annotated.pdf. And for an analysis of the informal European Council Lisbon, see comments by Steve Peers available at http://www.statewatch.org/news/2007/oct/eu-reform-treaty-revised-teu-2-1-3.pdf. See also Sebastian Kurpas et al, The Treaty of Lisbon: Implementing the Institutional Innovations (15 November 2007), available at http://shop.ceps.eu/BookDetail.php?item_id=1554; Sergio Carrero & Florian Geyer The Reform Treaty and Justice and Home Affairs (17 August 2007), available at http://www.libertysecurity.org/IMG/pdf_The_Reform_Treaty_Justice_and_Home_Affairs.pdf).Google Scholar

9 C-303/05, Advocaten voor de Wereld. Judgment of 3 May 2007 not yet reported (available via http://eur-lex.europa.eu/JURISIndex.do?ihmlang=en)Google Scholar

10 C-467/05 Giovanni Dell'Orto, Judgment of 28 June 2007 not yet reported (available via http://eur-lex.europa.eu/JURISIndex.do?ihmlang=en)Google Scholar

11 C-105/03, Criminal proceedings against Maria Pupino [2005] ECR I-5285Google Scholar

12 C-105/03, Criminal proceedings against Maria Pupino [2005] ECR I-5285Google Scholar

13 Art 10 EC states that the Member States shall take all appropriate measures to ensure the fulfilment of the obligation arising out of the Treaty and facilitate the achievement of the Community's tasks. They shall also abstain from any measure which could jeopardise the attainment of the objectives of the Treaty.Google Scholar

14 See however the proposed framework decision on procedural rights, yet this proposal might not live up to ECHR standards. http://www.statewatch.org/news/2007/jun/eu-suspects-rights-draft-directive-jun-07.pdf Google Scholar

15 See Steve Peers, Eu Justice And Home Affairs Ch 9 (2006).Google Scholar

16 Compare the discussions in id. See also Valsamis Mitsilegas, The Constitutional Implications of Mutual Recognition, Common Market Law Review 43 (2006), 1277, and) Security V Freedom – A Challenge To Europe's Future (Therry Balzacq & Sergio Carrera eds., 2006).Google Scholar

17 The third pillar and the concept of European criminal law is currently a highly dynamic domain. One such development is the Prüm Treaty and the question of ‘two speed Europe’. This treaty will be incorporated into the New Treaty. For an overview in general, PEERS (note 15)Google Scholar

18 On The history of the third pillar see e.g. Sandra Lavenex and William Wallace, Justice and Home Affairs, POLICY-MAKING IN THE EUROPEAN UNION (Helen Wallace et al, eds, 2005) 457 and Dora Kostakopuolou The Area of Freedom, Security and Justice and the European Union's Constitutional Dialogue in The Fundamentals Of Eu Law Revised 153 (Catherine Barnard, ed 2007)Google Scholar

19 And when the Court has such jurisdiction, it is only the highest national Court who can ask for a preliminary ruling (at the present time) which in practice means that very few cases are referred. See current developments in this area editorial comments CML Rev 44 (2007) 1 and 2006 COM(2006) 346 final, Art 68 EC.Google Scholar

20 Monica Claes, European Constitution and the Role of National Constitutional Courts, in The European Constitution And National Constitutions: Ratification And Beyond 235 (Anneli Albi & Jacques Ziller, eds, 2007), at 240Google Scholar

21 E.g. Jean Claude Piris, The Constitution For Europe (2006)Google Scholar

22 For comments on this case see, e.g. Fletcher, Maria, Extending “indirect effect” to the third pillar: the significance of Pupino, 30 European Law Review (2005) 862, Peers (note 15), John Spencer, Child witnesses in the European Union Cambridge Law Journal 64 (2005) 569, Valsamis Mitselegas Constitutional principles of the European Community and European Criminal Law, European Journal Of Law Reform (EJLR) 303 (2007) and my own contribution Ester Herlin-Karnell, Recent Developments in the Area of European Criminal Law 14 Maastricht J. Eur. & Comp. L. 15 (2007) and also Carl Lebeck, Sliding Towards Supranationalism? The Constitutional Status of EU Framework Decisions after Pupino, 8 German Law Journal 501 (2007)Google Scholar

23 European Council, Tampere 1999Google Scholar

24 Except for the competences set out in Art 29-31 EU, in the area of, especially, crime prevention, terrorism, organised crime and illicit drug trafficking.Google Scholar

25 Compare the discussions in Guild, Elspeth, Crime and the EU's Constitutional Future in an Area of Freedom, Security and Justice, European Law Journal 10 (2004) 218 and the special issue on EU criminal law in 12 Maastricht J. Eur. & Comp. L. 115 (2005)Google Scholar

26 2002/584/JHA; OJ 2002 L190Google Scholar

27 Case 303/05, Advocaten voor de Wereld. Judgment of 3 May 2007. Opinion of AG Colomer delivered on 12 September 2006. For a comment see e.g. Peers, Steve, Salvation outside the Church: Judicial Protection in the Third Pillar after the Pupino and Segi Judgments, 44 Cml Rev 883 (2007)Google Scholar

28 For case comments see e.g. Valsamis Mitsilegas, The Constitutional Implications of Mutual Recognition, CML Rev 43 1277 (2006), Komárek, Jan, European constitutionalism and the European arrest warrant: In search of the limits of ‘contrapunctual principles, 44 Cml Rev 9 (2007). On the Polish ruling, e.g. Dorota Leczykiewicz in 43 CML Rev. 1181 (2006), Krystyna Kowalik- Baρczyk, Should we polish it up? The Polish Constitutional Tribunal and the idea of supremacy of EU law, 6 GLJ 1355 (2005), and the German Constitutional Court, e.g. Alicia Hinarejos Parga in 43 CML Rev. 583 (2006), Mölders, Simone, European arrest warrant act is void – the decision of the German Federal Constitutional Court of 18 July 2005, GLJ (2006), 45. and on the Cyprus ruling, Alexandros Tsadiras, in 44 CML Rev 1515 (2007)Google Scholar

29 See CONSTITUTIONAL CHALLENGES TO THE EAW (Elspeth Guild ed., 2006)Google Scholar

30 The other questions asked was whether the EAW should have been adopted as a convention rather than a framework decision and whether the EWA breached the principle of equality and non-discrimination.Google Scholar

31 Nial Fenelly, The European Arrest Warrant: Recent Developments, paper presented at the ERA conference EU Court in the Area of Freedom, Security and Justice: Recent Developments, Trier on 14 June 2007Google Scholar

32 Or more adequately to firstly establish its jurisdiction.Google Scholar

33 As it had previously done, and thereby started this novel trend, in C-540/03, Family Reunification judgment of 27 June 2006, not yet reported (available via http://eur-lex.europa.eu/JURISIndex.do?ihmlang=en)Google Scholar

34 Case C-354/04 and C-355/04, Gestoras Pro Amnistía, and others v. Council, et al delivered on 27 February 2007 Not yet reported (available via http://eur-lex.europa.eu/JURISIndex.do?ihmlang=en)Google Scholar

35 See e.g. the classical joined cases C-187/01 and C-385/01 Gözütok and Brugge ECR [2003] I-1354 and the more recent Gaspardini C-467/04 judgment of 28 September 2006 not yet reported (available via http://eur-lex.europa.eu/JURISIndex.do?ihmlang=en)Google Scholar

36 Compare Art 6 and Art 7 ECHR.Google Scholar

37 An often stated argument against this is that ECHR provides a sufficient standard. But as is so well known all the Member States have – and will probably continue to have – cases pending before the ECtHR.Google Scholar

38 Petter Asp et al, Double Criminality and Transnational Measures in EU Criminal Proceedings, Zeitschrift Für Internationale Strafrechtdogmatik (ZIS) 512 (2006).Google Scholar

39 In the present context see Carl Lebeck, National constitutional control and the limits of European integration, Public Law 23 (2007) who in contrast to most comments on the German Constitutional Court's approach to the EAW, recently argued that the German Constitutional Court added an additional legitimacy aspect to European law by insisting on scrutinizing EU law standards.Google Scholar

40 One could read between the lines here that it is a fear that further approximation will result in an increased repression within the Union, which is especially problematic for, e.g., the Nordic countries. P Asp et al, Double Criminality and Transnational Measures in EU Criminal Proceedings, ZIS 512 (2006)Google Scholar

41 Compare Valsamis Mitselegas, Constitutional principles of the European Community and European Criminal Law, European Journal Of Law Reform 303 (2007)Google Scholar

42 Elspeth Guild & Florian Geyer, Justice And Home Affairs Issues At The European Union Level written evidence to Select Committee on Home Affairs, (November 2006)available at Centre for European Policy Studies, http://www.ceps.eu/index3.php Google Scholar

43 See in the context of Pupino, Valsamis Mitselegas ‘Constitutional principles of the European Community and European Criminal Law’, ELJR (2007) 303 and also my own attempt, Recent Developments in the Area of European Criminal Law, 14 Maastricht J. Eur. & Comp. L. 15 (2007)Google Scholar

44 C-467/05 Giovanni Dell'Orto, opinion of AG Julianne Kokott delivered on 8 March 2007 and judgment of 28 June 2007.Google Scholar

45 Directive 2004/80 OJ 2004 L 261/15CrossRefGoogle Scholar

46 See the discussion in Peers, (note 15) at 451Google Scholar

47 C-467/05 Giovanni Dell'Orto, Judgment of 28 June 2007 not yet reported (available via http://eur-lex.europa.eu/JURISIndex.do?ihmlang=en)Google Scholar

48 Opinion of AG Kokott delivered on 11 November 2004, in Case 105/03, Criminal proceedings against Maria [2005] ECR I-5285. For a comment on §§ 48-52 of the AG's opinion in Pupino, see eg, Hiejke Hijmans, ‘The third pillar in practice: coping with inadequacies Information sharing between Member States’ paper distributed at the ERA conference EU Court in the Area of Freedom, Security and Justice: Recent Developments, Trier 14-15 June 2007.Google Scholar

49 §§ 48-52 Opinion of AG Kokott delivered on 11 November 2004, in Case 105/03, Criminal proceedings against Maria [2005] ECR I-5285Google Scholar

50 Another question is that it is far from crystal clear that the victim should be a legal actor in the criminal law process at all. In fact, in many EU legal systems this issue is a civil law dispute separate from the criminal law proceedings (which only involves the defendant and the prosecutor as the parties in the process). It appears the EU has made a clear theoretical choice here.Google Scholar

51 See e.g. Andrew Ashworth, General Principles Of Criminal Law (2006)Google Scholar

52 Other EU criminal law examples, see e.g. Maria Kaiafa Gbandi, The development towards Harmonization within Criminal Law in the European Union – A Citzen's Perspective, European Journal Of Criminal Law And Criminal Justice, 239 (2001)Google Scholar

53 C-176/03, Commission v. Council, [2005] ECR I-7879Google Scholar

54 C-440/05 Commission v Council, Opinion of AG Mazak on 28 June 2007. See also C-91/05, and the opinion of AG Mengozzi delivered on 19 September 2007. Thanks to Steve Weatherill for pointing it out.Google Scholar

55 C-440/05 Commission v Council Judgment of 23 October 2007 not yet reported (available via http://eur-lex.europa.eu/JURISIndex.do?ihmlang=en)Google Scholar

, concerning Art 80 (2) EC. As is well known the earlier C-176/03 Commission v Council concerned Art 175 EC.Google Scholar

56 For a recent special issue on the challenges of mutual recognition in general the recent special issue in JEPP, e.g. the summarizing paper by Miguel Maduro So close and yet so far: the paradoxes of mutual recognition, 14 Journal of European Public Policy 814 (2007) and especially Sandra Lavenex, Mutual recognition and the monopoly of force: limits of the single market analogy, 14 JEEP 762 (2007)Google Scholar

57 T 228/02, Organisation des Modjahedines du peuple d'Iran v. Council, delivered on 12 December 2006 nyr. § 123 of the judgment states: ‘The Court notes that, under Article 10 EC, relations between the Member States and the Community institutions are governed by reciprocal duties to cooperate in good faith (see Case C-339/00 Ireland v Commission [2003] ECR I-11757, §§ 71 and 72, and case-law cited). That principle is of general application and is especially binding in the area of JHA governed by Title VI of the EU Treaty, which is moreover entirely based on cooperation between the Member States and the institutions (Case C-105/03 Pupino [2005] ECR I-5285, § 42).’Google Scholar

58 Case C-354/04 and C-355/04, Gestoras Pro Amnistía, and others v. Council, and Segi delivered on 27 February 2007 not yet reported (available via http://eur-lex.europa.eu/JURISIndex.do?ihmlang=en Google Scholar

59 See e.g. Terry Balzacq & Sergio Carrera, The Hague Programme: The Long Road to Freedom, Security and Justice, Security V Freedom – A Challenge To Europe's Future, 1 (Therry Balzacq & Sergio Carrera, eds, 2006),Google Scholar

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