The third wave of third pillar law: which direction for EU criminal justice?

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1 The third wave of third pillar law: which direction for EU criminal justice? Valsamis Mitsilegas Criminal law; EC law; Eurojust; Europol; Harmonisation; Mutual recognition principle After a period of relative stagnation, the past few months witnessed the adoption of a plethora of legislative instruments under the third pillar. These instruments can be seen as the third wave of third-pillar law, following the first wave of measures adopted post-maastricht and the second wave of measures adopted post-amsterdam and Tampere. The third wave of third-pillar law extends to most major areas of European integration in criminal law. New legislation involves the harmonisation of substantive criminal law (including the fields of terrorism, organised crime and racism and xenophobia), mutual recognition (with measures such as the European Evidence Warrant and legislation on the recognition of probation decisions and the transfer of sentenced persons), the work of EU criminal justice bodies such as Europol and Eurojust, and the development of standards to regulate the proliferation of third pillar mechanisms to collect, analyse and exchange personal data. By analysing the background and content of these instruments, this article will assess their impact on the future development of EU criminal law and justice. Introduction After a period of relative stagnation, the past few months witnessed the adoption of a plethora of legislative instruments under the third pillar. These instruments can be seen as the third wave of third-pillar law. They come after the first wave, namely measures such as Conventions and Joint Actions adopted under the Maastricht third pillar, and the second wave, consisting of a wide range of measures (primarily Framework Decisions) adopted in the early years of this decade following the momentum of the revamped Amsterdam third pillar and the subsequent Tampere European Council conclusions in the field. The third wave of third-pillar law extends to most forms of European integration in criminal matters. Measures involve the harmonisation of substantive criminal law, mutual recognition, the work of EU criminal justice bodies such as Europol and Eurojust, and the development of standards to regulate the proliferation of third pillar mechanisms to collect, analyse and exchange personal data. What most of these instruments have in common is that a long period has passed between their original proposal and eventual adoption. In some cases, this can be explained by the complexity in negotiations and the difficulty in reaching agreement under unanimity in the Council. At the same time, in these and other cases, progress towards eventual adoption has stalled in anticipation of * Professor of European Criminal Law, Queen Mary, University of London. 523

2 524 The third wave of third pillar law the entry into force of the Reform, and subsequently the Lisbon, Treaty which would change drastically the EU constitutional landscape as regards criminal law. The decision to proceed with the adoption of a series of third pillar instruments signifies a degree of realism (if not resignation) with regard to the possibility of a swift entry into force of the Lisbon Treaty, especially after the Irish No. The result has been an attempt to further European integration in criminal matters by yet more third-pillar law. By analysing the background and content of the newly adopted instruments, this article will assess their impact on the future development of EU criminal law and justice. Harmonisation of substantive criminal law The entry into force of the Amsterdam Treaty was followed by sustained EU action with regard to the harmonisation of substantive criminal law. By the mid-2000s, third pillar Framework Decisions aimed at harmonising domestic substantive criminal law covered a wide range of offences, including trafficking in drugs and human beings, human smuggling, environmental crime and, post-9/11, terrorism. A degree of criminal law harmonisation had also existed before Amsterdam, with the adoption of Maastricht Joint Actions on organised crime and racism and xenophobia. 1 The wide reach of EU harmonising measures in the field of substantive criminal law (at least in terms of their addressing all major areas of transnational and/or serious crime) has not, however, stopped EU action, with the late 2000s witnessing the adoption of a series of new legislation in the field. The reasons for this renewed emphasis on the harmonisation of substantive criminal law are threefold. The first reason has to do with efforts to amend and expand existing Framework Decisions taking into account subsequent international developments in the field. The second reason relates to a similar amendment process, but this time linked also with efforts to constitutionally refresh the form of legal instrument used for third-pillar harmonisation (namely to replace the vague Maastricht Joint Actions by the expressly legally binding Amsterdam Framework Decisions). The third reason for new legislation also relates to EU constitutional developments, and consists of the need to address ECJ case law and harmonise criminal law under the first pillar. Legislation amending existing Framework Decisions the new Framework Decision on terrorism New legislation aiming to amend existing third-pillar law taking into account international developments has been adopted in the field of terrorism. Framework Decision 2008/919/JHA has amended the 2002 Framework Decision on combating terrorism. 2 The amending Framework Decision expands the scope of the 2002 instrument to introduce in the EU legal order offences related to the prevention of terrorism. The basis for the elaboration of these offences has been the 2005 Council of Europe Convention on the Prevention of Terrorism. 3 According to the EU Justice and Home Affairs Ministers, the inclusion of the Convention offences in the Framework Decision is important, 1 For an overview, see V. Mitsilegas, EU Criminal Law (Oxford: Hart, 2009), Ch.2. 2 Framework Decision 2008/919/JHA amending the 2002 Framework Decision on combating terrorism [2008] OJ L330/21. 3 Council of Europe Convention on the Prevention of Terrorism CETS No.196.

3 Valsamis Mitsilegas 525 because it provides the advantages of the more integrated institutional framework of the EU and also because the legal regime of the Framework Decision in respect of the type and level of criminal penalties and compulsory rules on jurisdiction will be applicable to these offences. 4 The specificity of the EU institutional framework had already been stressed at the time of the adoption of the Council of Europe Convention by the insertion in the Convention of a so-called disconnection clause. 5 The integration of the Convention standards in the Union legal order has also been justified on the ground that the Framework Decision would trigger the implementation of co-operation mechanisms under Union law, in particular as regards the exchange of information on terrorist offences between Member States and the transfer of such information to Europol and Eurojust. 6 The 2008 legislation does not repeal, but rather amends the 2002 Framework Decision on combating terrorism. 7 The two Framework Decisions should thus be read together. This is also clear from the wording of new Art.3(1), which introduces a series of offences linked to terrorist activities all these offences are defined by reference to Arts 1 and 2 of the 2002 Framework Decision. The 2008 instrument introduces three new offences: public provocation to commit a terrorist offence 8 ; recruitment for terrorism 9 ; and training for terrorism. 10 These acts (along with the three terrorist related offences in the 2002 Framework Decision, namely aggravated theft, extortion and drawing up false administrative documents with a view to committing terrorist acts) are treated as offences linked to terrorist acts when intentional. 11 However, for any of these acts to be punishable it is not necessary that a terrorist offence is actually committed. 12 This clause, which has been copied verbatim from the Council of Europe Convention, 13 did not exist 4 Justice and Home Affairs Council Conclusions of December 6 7, 2007, Council doc.15966/07, Presse 275, p Convention on the Prevention of Terrorism Art.26(3) stating that parties which are members of the European Union shall, in their mutual relations, apply Community and European Union rules in so far as there are Community or European Union rules governing the particular subject concerned and applicable to the specific case. See also the Declaration formulated by the Community and Member States upon the adoption of the Convention, where it is stated that the objective of the insertion of a disconnection clause is to take into account the institutional structure of the Union when acceding to international Conventions. 6 See comment by Tony McNulty, then a Home Office Minister, to the House of Commons European Scrutiny Committee, 26th Report (session ), para Framework Decision 2002/475/JHA on combating terrorism [2002] OJ L164/3 (the 2002 Framework Decision). 8 Framework Decision 2008/919/JHA Art.3(1)(a). Public provocation is defined as the distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of one of the offences listed in Art.1(1)(a) (h) (of the 2002 Framework Decision), where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed. 9 Framework Decision Art.3(1)(b). Recruitment for terrorism is defined as soliciting another person to commit one of the offences listed in Art.1(1)(a) (h) or in Art.2(2) (of the 2002 Framework Decision). 10 Framework Decision Art.3(1)(c). Training for terrorism is defined as providing instruction in the making or use of explosives, firearms or other weapons or noxious or hazardous substances, or in other specific methods or techniques, for the purpose of committing one of the offences listed in Art.1(1)(a) (h), knowing that the skills provided are intended to be used for this purpose. 11 Framework Decision Art.3(2). Moreover, new Art.4(1) of the Framework Decision makes aiding and abetting anyone of the three new offences a criminal offence. 12 Framework Decision Art.3(3). 13 See Art.8 of the Convention on the Prevention of Terrorism.

4 526 The third wave of third pillar law in the 2002 instrument (thus broadening the scope of the three 2002 offences linked to terrorism). This disassociation of criminalisation from the actual commission of a terrorist act, along with the wide scope of the new offences, has led to the Framework Decision being strongly criticised for compromising freedom of expression (and academic freedom in particular), and for cementing a criminal law of prevention, where the focus is not on the actual commission of acts, but on the control of individuals who are perceived as a threat at a temporal stage far removed from the commission of crime. 14 Indeed, the shift to prevention in the new offences is evident, as is the attempt to extend the criminal law sphere to certain profiles of individuals and subjective elements whose link with the actual commission of terrorist offences is more and more tenuous. A wide range of conduct could potentially be included within the criminalisation scope of the Framework Decision, 15 while, on the other hand, the safeguards included in the instrument are drafted in rather general terms and their effect in the implementation process in Member States is unclear. 16 However, it must be noted that criminalisation in the Framework Decision has its limits. Incitement of the three new offences is not punishable, 17 and the criminalisation of attempt is left at the discretion of Member States. 18 Moreover, the link of the text to Art.1 of the 2002 Framework Decision means that, for conduct to be treated as a criminal offence, a terrorist motivation must exist. 19 This condition, which does not exist in the body of the Council of Europe Convention, 20 may serve to limit criminalisation when the Framework Decision is implemented. However, it must be noted that the wording of the 14 See in particular M. Kaiafa-Gbandi, The Prevention of Terrorism and the Criminal Law of Pre- Preventive Enforcement: New Criminal Acts for the Fight against Terrorism in the European Union (in Greek) (2009) Poinika Chronika 385. Kaiafa notes in this context that, unlike the Council of Europe Convention, criminalisation in the 2008 Framework Decision is not conditional upon conduct having been committed unlawfully. 15 See in this context the reception of the Council of Europe Convention standards in the United Kingdom via the Terrorism Act 2006, and the ensuing debate on the glorification of terrorism. For a discussion of the UK approach, see House of Lords and House of Commons, Joint Committee on Human Rights, The Council of Europe Convention on the Prevention of Terrorism, 1st Report (session ); and E. Barendt, Incitement to, and Glorification of, Terrorism in I. Hare and J. Weinstein (eds), Extreme Speech and Democracy (Oxford University Press, 2009), pp In a manner reminiscent of the inclusion of fundamental rights safeguards in the European Arrest Warrant Framework Decision, a number of fundamental rights provisions have been introduced in the new Framework Decision on terrorism. Framework Decision 2008/919/JHA Art.2 states that the latter will not have the effect of requiring Member States to take measures in contradiction of fundamental principles relating to freedom of expression, in particular freedom of the press and the freedom of expression in other media as they result from constitutional traditions or rules governing the rights and responsibilities of, and the procedural guarantees for, the press or other media where these rules relate to the determination or limitation of liability. See also recitals of the Preamble, where there are references to the respect of fundamental rights, safeguarding academic, reporting and scientific freedom and freedom of expression, and proportionality. 17 Framework Decision Art.4(2). 18 Framework Decision Art.4(4). 19 Framework Decision 2002/475/JHA Art.1(1) criminalises as terrorist offences which given their nature or context, may seriously damage a country or an international organisation where committed with the aim of: seriously intimidating a population, or unduly compelling a government or international organisation to perform or abstain from performing any act, or seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation. 20 There is only a reference in its Preamble, along the lines of Framework Decision 2002/475/JHA. For a discussion, see A. Hunt, The Council of Europe Convention on the Prevention of Terrorism (2006) 12 European Public Law 613.

5 Valsamis Mitsilegas Framework Decision on terrorist motivation leaves much to be desired in terms of legal certainty, as it is drafted in terms which are both broad and subjective. 21 Legislation replacing existing Joint Actions the Framework Decisions on organised crime and racism and xenophobia The second category of measures adopted in recent months consists of instruments aimed at repealing existing Joint Actions and replacing them by Framework Decisions. The adoption of these instruments (on organised crime and racism and xenophobia respectively) can be justified on both constitutional and substantive criminal policy grounds. The constitutional argument is centred on the effectiveness of Framework Decisions as a binding Union law instrument in comparison to Joint Actions, whose legal force has been a matter of controversy and which in any case were not included in the list of third pillar instruments in the EU Treaty as amended in Amsterdam. The policy argument on the other hand focused on the perceived need to update the substance of the instruments. Moreover, as with terrorism, in the case of organised crime, new legislation has been linked to the need to take into account international developments in the field. Unlike the new Framework Decision on terrorism, which has been negotiated and agreed relatively swiftly, negotiation and adoption of these instruments has proven to be lengthier and more cumbersome. The length in negotiations can be explained (in particular in the case of racism) by the different views among Member States with regard to the extent of criminalisation. On top of this, considerable time has passed between political agreement to the text of the proposals in the Council and their eventual publication in the Official Journal. 22 This delay can be explained by a number of factors. These include outstanding scrutiny reserves by national parliaments, but also and perhaps more significantly the freezing of progress in EU institutions in anticipation of the entry into force of the Lisbon Treaty. 23 The entry into force of the latter would change the form of the legal instrument to be adopted, with Framework Decisions effectively giving way to Directives. Organised crime In the field of organised crime, EU legislation aimed at harmonising substantive criminal law first appeared in 1998 in the form of a third pillar Joint Action on making it a criminal offence to participate in a criminal organisation in the European Union. 24 The Joint Action provided an ambitious attempt to define organised crime groups, taking into account law enforcement perceptions, and criminalised active participation in such 21 For an assessment see A. Weyembergh and V. Santamaria, Lutte contre le Terrorisme et Droits Fondamentaux dans le Cadre du Troisième Pillier La Décision-Cadre du 13 Juin 2002 relative à la Lutte contre le Terrorisme et le Principle de Légalité in J. Rideau (ed.), Les Droits Fondamentaux dans l Union Européenne. Dans le Sillage de la Constitution Européenne (Brussels: Bruylant), forthcoming. 22 See in particular, Framework Decision 2008/841/JHA on the fight against organised crime [2008] OJ L300/42: following complex negotiations, the Justice and Home Affairs Council reached in April 2006 a consensus on the Framework Decision. (Conclusions of Council of April 27 28, 2006, doc.8402/06, Presse 106. However, the text was only published in the Official Journal in November 2008.) 23 See also the analysis in S. de Biolley, Chronique de Droit Pénal de l Union Européenne (2009) 158 Journal de Droit Européen forthcoming. 24 Joint Action 98/733/JHA on making it a criminal offence to participate in a criminal organisation in the Member States of the European Union [1998] OJ L351/1.

6 528 The third wave of third pillar law an organisation, or, alternatively, conspiracy to commit any of the offences stated in the instrument. The use of these two very different alternative approaches to criminalisation is striking in an instrument which attempts to harmonise criminal law, but can be explained as necessary to achieve compromise and unanimous agreement in the Council in the light of very different national legal approaches to organised crime (with the conspiracy alternative satisfying in particular the English legal tradition). 25 In 2005, the Commission tabled a proposal for a Framework Decision on the fight against organised crime aiming at replacing the 1998 Joint Action. 26 According to the Commission, the new proposal took into account developments since 1998, including the introduction of Framework Decisions as a form of third-pillar law in Amsterdam and the need to take into account of subsequent legislative developments such as the 2000 United Nations Convention on Transnational Organised Crime (the Palermo Convention) and the EU Framework Decision on terrorism. 27 The Commission proposal harmonised further the crime of participation in a criminal organisation (by deleting the conspiracy variant), 28 aligned EU law with the Palermo Convention by the criminalisation of directing a criminal organisation 29 and the definition of an organised crime group (including what constitutes a structured group), 30 added provisions on mitigating circumstances 31 as well as specific provisions on penalty levels 32 and introduced specific provisions on the position of victims, along the lines of the Framework Decision on terrorism. 33 Negotiations have resulted in the recent adoption of a third pillar Framework Decision on the fight against organised crime. 34 The Framework Decision builds upon the Palermo Convention 35 and repeals the 1998 Joint Action. 36 It defines a criminal organisation as a structured association, established over a period of time, of more than two persons acting in concert with a view to committing offences which are punishable by deprivation of liberty or a detention order of a maximum of at least four years or a more serious penalty, to obtain, directly or indirectly, a financial or other material benefit ; and a structured association as an association that is not randomly formed for the immediate commission of an offence, nor does it need to have formally defined roles for its members, continuity of its membership, or a developed structure. 37 Organised crime thus remains defined in inevitably broad and flexible terms (in particular as regard the concept of a structured association and the degree of structure required) which necessarily bode well with legal certainty. Moreover, it is noteworthy that in contrast to the Commission original proposal the Council maintained the Joint Action and Palermo model of giving Member 25 For an analysis of the Joint Action, see V. Mitsilegas, Defining Organised Crime in the European Union: the Limits of European Criminal Law in an Area of Freedom, Security and Justice (2001) 26 E.L. Rev COM(2005) 6, Proposal for a Framework Decision on the fight against organised crime. 27 COM(2005) 6, pp.3, COM(2005) 6 Art COM(2005) 6 Art.2(b). 30 COM(2005) 6 Art COM(2005) 6 Art COM(2005) 6 Art COM(2005) 6 Art Framework Decision 2008/841/JHA on the fight against organised crime [2008] OJ L300/ Palermo Convention Preamble recital Joint Action 98/733/JHA Art Framework Decision 2008/841/JHA Art.1.

7 Valsamis Mitsilegas 529 States the choice of criminalising either participation in an organised criminal group or conspiracy, and (in another attempt to avoid clashing with domestic legal traditions) refrained from criminalising the direction of an organised criminal group 38 this has led to a strong reaction by the Commission. 39 The Framework Decision now includes detailed provisions on penalties (minimum/maximum of two five years, and the commission of an offence within the framework of a criminal organisation is to be treated as an aggravating circumstance), 40 as well as standard provisions on liability of legal persons 41 and jurisdiction. 42 As with the provision on aggravating circumstances, provisions which may have a substantial impact on domestic criminal justice systems especially in the light of the ECJ judgment in Pupino 43 are the provisions establishing mitigating circumstances 44 and relating to the absence of a requirement of a report or accusation by victims to conduct investigations or prosecutions into organised crime. 45 The Commission has a point in criticising the maintenance in a harmonisation measure of two alternative options of criminalisation of organised crime. This does not help towards legal certainty and creates a potentially very extensive scope of criminalisation of organised crime across the European Union. This is linked to the fact that both alternative offences are drafted in very broad terms the concept of a criminal organisation is very broad and vague and conspiracy does not have to involve the actual execution of a criminal activity. This approach may further lead to considerable diversity in implementation, at a time where participation in a criminal organisation is an offence for which dual criminality has been abolished under the EU mutual recognition instruments. 46 This approach strengthens the view that the real added value of the addition of organised crime in the EU criminal law vocabulary is not so much to promote harmonisation in the criminalisation of organised crime in Member States, but rather to trigger judicial co-operation in criminal matters between Member States on the one hand (especially via mutual recognition), and between Member States and EU criminal law bodies such as Europol and Eurojust on the other. However, in the light of the recent move to broaden the mandate of Europol and Eurojust from organised to serious crime, 47 the relevance of the concept of organised crime (and its subsequent criminalisation) appears to be diminishing Framework Decision Art The Commission, joined by France and Germany, issued a statement attached in the text arguing that Framework Decision 2008/841/JHA does not achieve minimum harmonisation of acts of directing or participating in a criminal organisation on the basis of a single concept of such organisation and enables Member States not to introduce the concept of a criminal organisation but to continue to apply existing criminal law see Council doc.9067/ Framework Decision 2008/841/JHA Art Framework Decision Arts 5 and Framework Decision Art Criminal Proceedings against Pupino (C-105/03) [2005] E.C.R. I-5285; [2005] 2 C.M.L.R. 63. For an analysis of the judgment see Mitsilegas, EU Criminal Law, 2009, Ch.2 and references therein. 44 Framework Decision 2008/841/JHA Art Framework Decision Art See for instance Art.2(2) of Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States [2002] OJ L190/1 ( the European Arrest Warrant Framework Decision ). 47 See the part on EU bodies below. 48 See also N. Dorn, The End of Organised Crime in the European Union (2009) 51 Crime, Law and Social Change 283.

8 530 The third wave of third pillar law Racism and xenophobia The first step towards using EU criminal law in the field occurred in the Maastricht era, with Member States adopting in 1996 a Joint Action concerning action to combat racism and xenophobia. 49 While the Joint Action contained a detailed definition of racism and xenophobia, it did not introduce a strong obligation for Member States to criminalise racism and xenophobia as defined therein. 50 However, this relative weakness of the text (along with the weakness of its form, it being merely a Joint Action), did not stop Member States concerned with the potential impact of the measure on their domestic criminal justice systems from inserting declarations aiming at preserving the domestic status quo. Hence, the United Kingdom stated that it would only apply the above obligations, where the relevant behaviour is threatening, abusive or insulting and is carried out with the intention of stirring up racial hatred or is likely to do so, 51 a wording which reflected UK domestic law in the field. Post-Amsterdam, in 2001, the Commission tabled a proposal for a Framework Decision aiming at replacing the 1996 Joint Action. 52 The purpose of the Commission proposal was to ensure that the same racist and xenophobic conduct would be punishable in all Member States under a common criminal law approach and thus achieve effective judicial co-operation. The list of offences in the 1996 Joint Action was thus expanded, and common definitions and penalties were introduced. The proposal was subject to lengthy negotiations, reflecting differences between various Member States with regard to the extent of criminalisation of racism. 53 The resulting Framework Decision was eventually published in the Official Journal in December The Framework Decision calls upon Member States to criminalise a wide range of conduct, which includes now incitement to religious hatred, 55 as well as, under certain conditions publicly condoning, denying or grossly trivialising crimes of, inter alia, genocide, war crimes and, more controversially, the holocaust. 56 However, there are a number of provisions in the Framework Decision aiming at addressing national sensitivities. Although in the third pillar, the Framework Decision provides with a very minimal harmonisation of penalty 49 Joint Action 96/443/JHA concerning action to combat racism and xenophobia [1996] OJ L185/5. 50 See Joint Action title I(A). The Joint Action required Member States to ensure, effective judicial cooperation with regard to offences based on the above types of behaviour. Effective judicial co-operation would be achieved either by criminalising such behaviour, or, failing that, and pending the adoption of any necessary provisions, by derogating from the principle of dual criminality for such behaviour. 51 See Joint Action Annex Declaration 3. See also the Danish Declaration (Declaration 4), indicating that Denmark would apply the above obligations only where the relevant behaviour is threatening, abusive or insulting. 52 COM(2001) 664, Proposal for a Framework Decision. 53 For an overview of negotiations, see M. Bell, Race, Equality and the European Union (Oxford University Press, 2009), Ch Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law [2008] OJ L328/ Framework Decision Art.1(1)(a) criminalises publicly inciting to violence or hatred directed against a group or persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin. According to Art.1(1)(b), the commission of one of the above acts by public dissemination or distribution of tracts, pictures or other material is also criminalised. 56 Framework Decision Art.1(1)(c) and (d). The trivialisation element did not exist in the 1996 Joint Action and reflects German legislation see Bell, Race, Equality and the European Union, 2009, p.166.

9 Valsamis Mitsilegas 531 levels, leaving considerable discretion to Member States. 57 Moreover, with regard to criminalisation at national level, a UK-inspired exception states that Member States, may choose to punish only conduct which is either carried out in a manner likely to disturb public order or which is threatening, abusive or insulting, as well as that the reference to religion is intended to cover at least, conduct which is a pretext for directing acts against a group of persons or a member of such a group defined by reference to race, colour, descent, or national or ethnic origin. 58 This is not the only limitation to the EU-wide criminalisation of racism and xenophobia. Member States concerns regarding the impact of such criminalisation on their domestic constitutions and fundamental rights, in particular freedom of expression, have led to the introduction in the body of the Framework Decision of a provision stating that the latter will not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles, including freedom of expression and association. 59 The provision becomes more specific by stating that the Framework Decision, shall not have the effect of requiring Member States to take measures in contradiction to fundamental principles relating to freedom of association and freedom of expression, in particular freedom of the press and the freedom of expression in other media as they result from constitutional traditions or rules governing the rights and responsibilities of, and the procedural guarantees for, the press or other media where these rules relate to the determination or limitation of liability. 60 The impact of this clause on the implementation of the Framework Decision remains to be seen. It may lead to quite divergent implementing laws as it may be seen as an invitation for Member States not to obstruct the balance between free speech and the criminalisation of racism which already exists in their domestic legal and constitutional systems. From a harmonisation point of view, however, this may not lead to optimal solutions, in particular for those hoping that the Framework Decision would create a level of legal certainty and common understanding regarding racism and xenophobia. It is indicative of the concerns raised in this respect that, while racism and xenophobia has been one of the 32 offences for which dual criminality has been abolished for the purposes of mutual recognition instruments (including the European Arrest Warrant), Framework Decision Art.3(1) contains a general obligation to Member States to punish conduct defined in the Framework Decision by effective, proportionate and dissuasive criminal penalties, while the next paragraph specifies that conduct referred to in Art.1 is punishable by criminal penalties of a maximum of at least between one and three years. For a criticism of this approach, see F. Zimmermann, Tendenzen der Strafrechtsangleichung in der EU- dargestellt anhand der Bestrebungen zur Bekämpfung von Terrorismus, Rassismus und illegaler Beschäftigung (2009) Zeitschrift für Internationale Strafrechtdogmatik 1, Framework Decision Art.1(2) and (3) respectively. 59 Framework Decision Art.7(1). 60 Framework Decision Art.7(2). 61 However, Framework Decision Art.3 on penalty levels may mean in practice that in the implementation of the Framework Decision the three-year threshold required for the abolition of dual criminality in the mutual recognition instruments may not be met by all Member States. See also Bell, Race, Equality and the European Union, 2009.

10 532 The third wave of third pillar law an exception has been introduced with regard to the abolition of dual criminality in the European Evidence Warrant. 62 However, this compromise clause has perhaps proven to be crucial in reaching (unanimous) agreement in such a controversial proposal where the need to send a strong EU message against racism and xenophobia eventually clashed with concerns regarding over-criminalisation and breach of fundamental rights. 63 A view of the glass as half-full may also focus on the form of EU legislative intervention (by a Framework Decision repealing the weaker earlier Joint Action) and the stronger obligation of criminalisation in the new instrument which may lead to a greater degree of criminal law harmonisation in the field of both offences and sanctions in the field. 64 First pillar criminal law the relationship with the third pillar The third category of recent instruments aiming to harmonise substantive criminal law has followed constitutional litigation before the ECJ with regard to whether, and the extent to which, competence to define criminal offences and impose criminal sanctions extends beyond the third pillar to the first (Community) pillar. Admittedly, the production of substantive criminal law at EU level has not been totally unrelated to the first pillar. As early as 1991, before the pillars entered the Union constitutional vocabulary, the (then first) money laundering Directive defined conduct as money laundering however, taking into account competence concerns of Member States such conduct was not expressly criminalised, but merely prohibited in the final text. 65 The entry into force of the Amsterdam Treaty, saw the adoption of dual criminal law related instruments in fields deemed to fall under Community competence: a first-pillar Directive would define the elements of conduct which would then be criminalised by a third pillar Framework Decision (instruments on human smuggling and ship-source pollution followed that pattern). However, no first pillar measure had until recently contained provisions introducing expressly criminal offences and imposing criminal sanctions with Member States blocking a number of Commission proposals to that effect. 66 This has led to litigation initiated by the Commission and resulting into two ECJ judgments of great 62 See the part on mutual recognition below. 63 From a substantive criminal law point of view, it is noteworthy that the export of domestic criminalisation approaches (for instance on Holocaust denial) have led to calls for an even greater criminalisation of denial of other historical events or periods. A number of new EU Member States from Eastern Europe pressed, unsuccessfully, for the inclusion in the scope of the Framework Decision of offences related to the denial of communist crimes. See Tobias Buck, Holocaust law leaves many dissatisfied in Financial Times, April 20, 2007, p In this context, it is noteworthy that the Framework Decision contains a general provision on racist and xenophobic motivation as aggravating factor for any offence other than those criminalised therein (Framework Decision 2008/913/JHA Art.4). 65 See V. Mitsilegas, Money Laundering Counter-Measures in the European Union: A New Paradigm of Security Governance versus Fundamental Legal Principles (Kluwer Law International, 2003), Ch.3. This practice continued in the second and third money laundering Directives, adopted after the introduction of the third pillar in the Union legal framework. However, criminalisation of money laundering took place post-amsterdam via a combination of the first pillar Directives and third pillar legislation on confiscation (which was drafted by reference to the relevant Council of Europe Convention) for an up-to-date analysis of money laundering criminalisation at EU level, see V. Mitsilegas and B. Gilmore, The EU legislative framework against money laundering and terrorist finance: A critical analysis in the light of evolving global standards (2007) 56 International and Comparative Law Quarterly For details, see Mitsilegas, EU Criminal Law, 2009, Ch.2.

11 Valsamis Mitsilegas 533 constitutional significance: in the environmental crime judgment, 67 and its follow-up judgment on ship-source pollution, 68 the Court confirmed the existence of Community competence to define criminal offences and impose criminal sanctions. 69 In response to these judgments, a number of first-pillar Directives entailing the harmonisation of substantive criminal law have been or are in the course of being adopted by the Council and the European Parliament. The first such Directive to be adopted involves the protection of the environment through criminal law. 70 It is a response to the ECJ annulment of the Framework Decision of the same topic in its Environmental Crime judgment. Agreement was reached at first reading, under co-decision between the Council and the Parliament. 71 However, negotiating the instrument has not been a straightforward task, in the light of the uncertainty regarding the precise extent of Community competence to legislate in criminal matters after the Environmental Crime ruling. Agreement on the Directive was reached only after the ECJ had given its second ruling in the field, relating to the ship-source pollution instruments. 72 The ship-source pollution judgment is reflected in the environmental crime Directive provision on penalties: the Directive calls upon Member States to take necessary measures to ensure that the environmental crimes defined therein are punishable by effective, proportionate and dissuasive criminal penalties 73 however, the penalty levels are not specified. In the Ship-source Pollution judgment, the ECJ found that penalty levels are not a matter for Community law. However, no thirdpillar instrument specifying penalty levels in the context of environmental crime has been adopted yet and the previously adopted Framework Decision on environmental crime has been annulled as a whole by the ECJ. If no specific legislation on penalty levels is adopted however, the added value of the Directive in terms of harmonising criminal law in the field and hence contributing to the effective protection of the environment will be limited: while the criminalisation of conduct detrimental to the environment by Member States has been agreed under the first pillar, the lack of specifics with regard to levels of sanctions may lead to considerable discrepancies in Member State implementation. Another noteworthy point with regard to the environmental crime Directive is the definition of criminal offences, both in terms of technique and in terms of terminology. A wide range of conduct is criminalised, when unlawful. 74 Unlawfulness is in turn defined by reference to the infringement of a wide range of Community instruments, listed in 67 Commission v Council (Environmental Crime) (C-176/03) [2005] E.C.R. I-7879; [2005] 3 C.M.L.R. 20. For commentaries, see inter alia S. White, Harmonisation of Criminal Law under the First Pillar (2006) 31 E.L. Rev. 81; and H. Labayle, L Ouverture de la Jarre de Pandore: Réflexions sur la Compétence de la Communauté en Matière Pénale (2006) Cahiers de Droit Européen Commission v Council (Ship-source Pollution) (C-440/05) [2007] E.C.R. I-9097; [2008] 1 C.M.L.R. 22. For a commentary see S. Peers, The European Community s Criminal Law Competence: The Plot Thickens (2008) 33 E.L. Rev However, the precise extent of such competence remains unclear. For an analysis of both judgments see Mitsilegas, EU Criminal Law, 2009, Ch Directive 2008/99 on the protection of the environment through criminal law (the environmental crime Directive) [2008] OJ L328/ Justice and Home Affairs Council of October 24, 2008, Council doc.14667/08, Presse 299, p See House of Commons European Scrutiny Committee, 24th Report (session ), para Directive 2008/99 Art Directive Art.3.

12 534 The third wave of third pillar law two annexes to the Directive. 75 This drafting technique poses serious challenges for legal certainty, in particular in the light of the fact that infringement constitutes a criminal offence. 76 Moreover, conduct as defined in Arts 2, 3 and the annexes to the Directive is a criminal offence when committed intentionally, or with a least serious negligence. 77 Not only does the extension of mens rea to negligence (in combination with the long list of Community law instruments whose infringement constitutes a criminal offence) extend the scope of criminalisation, but it also adds to the concerns with regard to respect for legal certainty in Community criminal law. The issue has been the subject of litigation before the ECJ in the context of the ship-source pollution Directive. 78 Answeringtoa preliminary reference submitted by the High Court of England and Wales, 79 the Court of Justice in its Intertanko judgment 80 found that the use of serious negligence in the Directive without the concept being further defined therein does not infringe the principle of legal certainty which the Court confirmed is a fundamental principle of Community law. 81 The Court made express reference to the principle of legality of criminal offences and penalties as a specific expression of legal certainty. 82 It is in this context that the Court examined the principle of serious negligence. It first referred to the use of the principle in the legal systems of Member States, but then went further to actually define the concept of the serious negligence for the purposes of the ship-source pollution Directive. 83 Although the Court emphasised subsequently in the judgment that the actual definition of the infringements stated in the Directive will result from the transposition of the Directive in Member States, 84 its foray into defining fundamental concepts and principles of criminal law is striking and goes further than the mere confirmation that such principles constitute general principles of Union (and in this case Community) law Directive Art.2(a). The definition of key terms to the Directive (such as protected fauna and flora species and habitat within a protected site ) are also defined by reference to Community Directives see Art.2(b) and (c). 76 See also in this context the analysis of Zimmermann, who notes that no less than 72 legal instruments are listed in the annexes to the Directive: F. Zimmermann, Wann ist der Einsatz von Strafrecht auf europäischer Ebene sinnvoll? (2009) Zeitschrift für Rechtspolitik 74, Directive 2008/99 Art Directive 2005/35 on ship-source pollution and on the introduction of penalties for infringements [2005] OJ L255/ The reference followed proceedings brought in the English court by a group of organisations within the maritime shipping industry. 80 International Association of Independent Tanker Owners (Intertanko) v Secretary of State for Transport (C-308/06), [2008] 3 C.M.L.R. 9. For a commentary, see E. Denza, A Note on Intertanko (2008) 33 E.L. Rev Intertanko (C-308/06) at [69] [80]. 82 Intertanko (C-308/06) at [70]. It is noteworthy that the Court used as authority its Advocaten voor de Wereld judgment ((C-303/05) E.C.R. [2007] I-3633) on the Union Framework Decision on the European Arrest Warrant (2002/584/JHA [2002] OJ L190/1) to establish here legality as a component of legal certainty under Community law. 83 Serious negligence in this context, must be understood as entailing an unintentional act or omission by which the person responsible commits a patent breach of the duty of care which he should have and could have complied with in view of his attributes, knowledge, abilities and individual situation (Intertanko (C-308/06) at [77]). 84 Intertanko (C-308/06) at [78]. 85 Criminalisation on the basis of serious negligence persists in the new draft Directive on ship-source pollution, which is currently being negotiated following the ECJ judgment annulling the ship-source pollution Framework Decision which accompanied the original Directive whose content was litigated in Intertanko (C-308/06) see Council doc.2291/08 (Brussels, July 30, 2008) Art.4. As with the environmental crime Directive, this draft of the ship-source pollution Directive contains a general reference to punishing the

13 Valsamis Mitsilegas 535 Along with the issues of legal certainty and over criminalisation, a central issue arising from the harmonisation of criminal law in the first pillar remains the issue of competence. Competence matters: as the interventions and arguments in the two ECJ cases on environmental crime and ship-source pollution have demonstrated, the determination of whether the Community has competence to define criminal offences and impose criminal offences is an issue of paramount political importance for Member States and EU institutions alike. The impact of the move to the first pillar on state sovereignty and the ability of Member States to dictate domestic criminal justice policy has been made crystal-clear in the case of ship-source pollution. Three EU Member States, Greece, Cyprus and Malta, all have major shipping interests and have lobbied against tough criminal sanctions on ship-source pollution. 86 Under the Community decision-making process, these Member States can effectively be outvoted in the Council if no support is gathered from other Member States. They can maintain a veto however in the third pillar. While this veto might have influenced negotiations also on the original first-pillar Directive (negotiated in parallel with the third-pillar Framework Decision 87 ), this is no longer the case after the ECJ judgment, which has triggered negotiations for a firstpillar criminal law Directive. 88 These concerns are by no means limited to ship-source pollution: the recent political agreement on a Directive on sanctions against employers of illegally staying third country nationals (which includes criminalisation provisions), 89 has been met with scepticism by a number of Member States, with Sweden eventually voting against the Directive and Finland abstaining. 90 It is noteworthy that this is the first piece of legislation on Community criminal law which is not related to the protection of the environment. Concerns are related to the existence of competence by the Community to legislate in criminal matters, but also to the closely linked issue of the necessity of criminal law to protect Community objectives when other forms of intervention can be used instead. 91 This issue, which has also been raised in the context of the negotiations prescribed ship-source pollution offences, by effective, proportionate and dissuasive criminal penalties, without specifying the level of penalties to be imposed (Art.8). 86 The Governments of all three Member States intervened in the Intertanko ECJ litigation to argue in favour of a narrow interpretation of the ship-source pollution Directive 2005/ For the objections of Greece, Cyprus and Malta in the negotiations of the Framework Decision, see inter alia the conclusions of the Justice and Home Affairs Council of December 2, 2004, Council doc.14894/04, Presse 332, p However, it must be noted that the ECJ seems to have listened to sceptical Member States by specifying in the ship-source pollution judgment that Community competence does not extend to the determination of the level of criminal penalties. 89 Doc.PE-CONS 3612/09 (Brussels, April 29, 2009). The Directive was eventually published in June 2009 (Directive 2009/52 [2009] OJ L168/24). See Art.9 on the criminal offence (which comes into play only when infringements to the prohibition of illegal work are aggravated by a variety of factors) and Art.10 on criminal sanctions. As with the environmental crime and ship-source pollution texts, the latter article contains a general provision on punishing infringements by, effective, proportionate and dissuasive criminal penalties (Art.10(1)). 90 Council docs 8917/09 and 8917 COR 1 (Brussels, May 11, 2009). This was another first reading agreement between the Council and the European Parliament. 91 See the statements by a number of Member States in Council doc.8917/09 ADD 1 (Brussels, May 8, 2009), with regard to the Directive on illegal work (Directive of the European Parliament and of the Council providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals). See in particular the statement by Poland on the use of criminal law, and the joint statement by Finland, Hungary, Poland and Sweden, according to which the competence criteria set out by the two ECJ judgments have not been established in this Directive and therefore the competence of the European Community to adopt criminal law provisions in the field of illegal immigration and illegal residence remains unclear.

14 536 The third wave of third pillar law of the draft Directive on criminal measures to enforce intellectual property rights, is central to the development of EU substantive criminal law. 92 There is a danger that the uncritical use of criminal law for institutional/political purposes, namely to establish Community law precedents for criminalisation in a wide range of Community policies, may overshadow the examination of whether criminal law is actually the most appropriate form of intervention at Community level. What kind of substantive criminal law for the European Union? The third wave of EU substantive criminal law demonstrates an effort by the European Union to develop and improve the existing legal framework. The main goal in this context has been to keep abreast of international developments aimed at responding to perceived global security threats such as terrorism and organised crime, while at the same time attempting to send a clear message with regard to European values by taking a strong enforcement stance against racism and xenophobia. In the field of both terrorism and organised crime, the relationship between the Union and international fora is noteworthy: EU legislation largely takes on board and integrates into the Union legal framework internationally agreed standards, which in their turn have been modelled upon or strongly influenced by Union action. 93 This strategy has led, however, to the introduction in the Union legal order of an approach focusing on extensive criminalisation, based on subjective elements, and aiming primarily at prevention. All newly adopted third pillar instruments aiming at harmonisation of substantive criminal law present challenges to the principle of legal certainty. A persistent feature in attempts to harmonise substantive criminal law at Union (and now Community) level has been the ongoing tension between criminalisation at EC/EU level and state sovereignty in criminal matters. This tension has expressed itself at two levels. The first level concerns the constitutional fight between a number Member States on the one hand and EU institutions on the other with regard to the extent to which competence in criminal matters has been transferred from the third to the first pillar. Resistance of Member States to communitarisation appears to have been taken into account by the ECJ in its judgment on ship-source pollution, where the Court conceded that provisions on the type and level of penalties are not for the Community to adopt. This judgment can be seen as strengthening state sovereignty in criminal matters, but has in practice led to a low level of harmonisation of penalties in Community criminal law instruments. Competence and the institutional framework for the production of substantive criminal law are also linked with the second level of tension in the field: between the quest for meaningful harmonisation, on the one hand, and the respect for state sovereignty and national diversity, on the other. This tension has been expressed primarily in the third pillar, where unanimity persists. The revamping of older instruments in topics of 92 Negotiations on this proposal have been suspended. It is indicative that the Justice and Home Affairs Council has acknowledged that in the light of the principle of subsidiarity and the fact that criminal law is considered as a means of last resort, further scrutiny is needed regarding the need for criminal measures at EU level in order to protect intellectual property rights Council Conclusions of October 5 6, 2006, p.23. The emphasis on criminal law as ultima ratio is noteworthy here. 93 See in this context also the recent COM(2009) 136, Proposal for legislation amending the existing Framework Decision on trafficking in human beings.

15 Valsamis Mitsilegas 537 a high political significance, such as organised crime and racism and xenophobia, has not necessarily led to a high level of harmonisation with a number of Member States playing the unanimity card in order not to have to change their law. However, the increasing rapprochement between the pillars, and the inevitable scrutiny of substantive criminal law by the ECJ may in practice contribute towards harmonisation. Called to rule on concepts such as serious negligence, the Court did not hesitate to embark in its own interpretation of fundamental principles of criminal law. 94 The question which remains, and appears even stronger following recent developments, is why European substantive criminal law. Attempts to harmonise seem to aim at a variety of quite disparate objectives. In the ECJ judgments on criminal law competence, the adoption of criminal law has been viewed as a means to an end: criminal law is not a special field of law, but can be used in order to ensure the effective achievement of Community objectives. 95 However, the subsequent tabling of proposals for first-pillar criminal law in a wide range of areas of EU action in order to consolidate a constitutional point of competence, poses the danger of marginalising the examination of whether criminal law is actually the most appropriate form of addressing the issues at stake. On the other hand, harmonisation may be useful to facilitate the smooth functioning of judicial co-operation in criminal matters (in particular mutual recognition) and the work of EU criminal law bodies such as Europol and Eurojust. However, it is questionable whether these goals are met with instruments introducing a low degree of harmonisation or legal certainty. Mutual recognition The application of the principle of mutual recognition in the third pillar has been the motor of European integration in criminal matters in the recent past. The endorsement of mutual recognition as a key method of European integration in criminal matters in Tampere in 1999 was followed by the adoption in 2001 of a detailed programme of measures to implement the principle across the European Union. 96 The following years saw the adoption of four key measures in the field: starting with the Framework Decision on the European Arrest Warrant, swiftly adopted post-9/11 as a counter-terrorism measure, Member States subsequently agreed Framework Decisions on the mutual recognition of orders freezing of property or evidence, 97 judgments imposing financial penalties, 98 and 94 The Court has increasingly been called upon to interpret such principles and how Union law interacts with domestic criminal justice systems in the field. Other examples include the examination of the principle of legality in the context of the European Arrest Warrant Framework Decision and the examination of the meaning of what constitutes a fair trial in the context of the potential impact of the Framework Decision on the rights of victims on domestic criminal proceedings (see in particular the recent judgment in Katz (C-404/07), not yet reported, October 9, 2008). 95 For the development of this argument see V. Mitsilegas, Constitutional Principles of the European Community and European Criminal Law (2006) 8 European Journal of Law Reform Programme of measures to implement the principle of mutual recognition of decisions in criminal matters [2001] OJ C12/ Framework Decision 2003/577/JHA on the execution in the European Union of orders freezing property or evidence [2003] OJ L196/ Framework Decision 2005/214/JHA on the application of the principle of mutual recognition to financial penalties [2005] OJ L76/16.

16 538 The third wave of third pillar law confiscation orders. 99 All these measures aim at speeding up judicial co-operation, and were designed to operate on the basis of quasi-automaticity, a minimum of formality and mutual trust. 100 Of these measures, the Framework Decision on the European Arrest Warrant has been largely implemented by Member States. Its implementation has raised a number of constitutional concerns, increasingly addressed by courts in Member States and by the ECJ. These concerns are related to issues such as the relationship between the abolition of the principle of dual criminality for a list of offences and the principle of legality, the surrender of own nationals and the relationship between citizen and state, the degree of automaticity and the extent to which the execution of a Warrant may be refused, and the impact of mutual recognition in the field on fundamental rights. 101 On the other hand, the implementation of the other three Framework Decisions leaves much to be desired. Although the deadlines for their implementation have passed (for the freezing orders and financial penalties instruments this has happened quite some time ago), not all Member States have implemented them. 102 In cases where they have been implemented, mutual recognition has been watered down by the addition of further requirements for and limits to recognition, including in particular further grounds for refusal. Member States and practitioners appear to have had difficulties with implementing these instruments in the light of their perceived complexity and the challenges they pose to domestic criminal justice systems and fundamental rights. 103 The European Evidence Warrant Following the four initial instruments mentioned above, the next step towards the advancement of the EU mutual recognition programme has been the Framework Decision on the European Evidence Warrant. 104 The proposal, tabled by the Commission already in 2003, 105 was subject to lengthy negotiations in the Council, which reached a general approach only in Another long period passed between agreement in the Council and the eventual publication of the instrument in the Official Journal at the end of The European Evidence Warrant has been conceived as the first step towards achieving the, free movement of evidence across the European Union, on the basis of the quasi-automatic recognition and execution of evidence warrants. Given the central place of the gathering and use of evidence in any national criminal justice system, and 99 Framework Decision 2006/783/JHA on the application of the principle of mutual recognition to confiscation orders [2006] OJ L328/ See V. Mitsilegas, The Constitutional Implications of Mutual Recognition in Criminal Matters in the EU (2006) 43 C.M.L. Rev For an analysis of these issues, see Mitsilegas, EU Criminal Law, 2009, Ch See the recent Commission reports: COM(2008) 885, Report on the implementation of the Framework Decision on freezing orders and COM(2008) 888, Report on the Framework Decision on financial penalties. 103 For some of these issues, see the Commission funded study by the European Criminal law Academic Network (ECLAN), Analysis of the Future of Mutual Recognition in Criminal Matters in the European Union (November 2008), available at home/doc centre/criminal/recognition/docs/ mutual recognition en.pdf [Accessed June 3, 2009]. 104 Framework Decision 2008/978/JHA on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters [2008] OJ L350/ COM(2003) 688, Proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects, documents and data for use in proceedings in criminal matters. 106 See the conclusions of the June 2006 Justice and Home Affairs Council, Council doc.9409/06, Presse 144, p.9.

17 Valsamis Mitsilegas 539 the significant differences on these issues in the laws of EU Member States (linked with the absence of harmonisation of rules on admissibility of evidence in the European Union), concerns regarding the operation of the instrument were expressed throughout the negotiations. Along with the broader debate on the scope of the instrument and the degree of automaticity in the execution of European Evidence Warrants in the light of these differences, two main issues have been at stake: whether the issuing state can obtain evidence which is admissible and/or can be obtained lawfully in the executing state, when this is not necessarily the case under the law of the issuing state (a kind of a fishing expedition ); and whether the issuing state can oblige the executing state to use coercive measures to obtain evidence which may be unlawful under the laws of the latter. 107 Concerns regarding the issues above and their potential impact on the position of the individual and the coherence of domestic criminal justice systems have been addressed in a twofold manner: by limiting the ambition and scope of the European Evidence Warrant, and by introducing a series of safeguards with regard to its recognition and execution. The limitation in the reach of the Evidence Warrant is clearly illustrated by the fact that the Framework Decision contains a general statement on its scope, 108 followed by detailed provision on what is not covered by the instrument. Areas not covered include a wide range of evidence, namely interviews, statements and hearings, bodily examinations and material such as DNA or fingerprints, real time information, data analysis and communications data. 109 Another example of placing limits on the ambition of the instrument is the choice that the Framework Decision will not replace, but rather coexist with existing legal instruments concerning mutual legal assistance in criminal matters in the relations between Member States. 110 The limitation of the scope of the Evidence Warrant in these terms renders the added value of the instrument questionable, while at the same time adds to the proliferation and complexity of existing European instruments on evidence gathering. 111 Another way in which concerns with regard to the application of the European Evidence Warrant have been addressed involves the insertion of a number of safeguards in the text 107 For these and other concerns see J.R. Spencer, An Academic critique of the EU Acquis in Relation to Trans-Border Evidence Gathering (2005) ERA-Forum (special issue on European Evidence in Criminal Proceedings) 28; and S. Gless, Mutual Recognition, Judicial Inquiries, Due Process and Fundamental Rights in J.A.E. Vervaele (ed.), European Evidence Warrant. Transnational Judicial Inquiries in the EU (Antwerp/Oxford: Intersentia, 2005), pp According to Framework Decision 2008/978/JHA Art.4(1), an Evidence Warrant may be issued with a view to obtaining in the executing state objects, documents or data needed in the issuing state for the purpose of a series of proceedings in the issuing state (on the types of proceedings covered, see Art.5 of the instrument). 109 Framework Decision Art.4(2). However, Art.4(4) allows the issuing of a warrant in these cases where evidence is already in the possession of the executing authority before the warrant is issued. It has been argued that this widening of the scope of the instrument raises a number of issues with regard to the admissibility of evidence and the position of the defendant in certain domestic criminal justice systems R. Belfiore, Movement of Evidence in the EU: The Present Scenario and Possible Future Developments (2009) 17 European Journal of Crime, Criminal Law and Criminal Justice 1, Framework Decision Art.21(1). According to the Preamble, such co-existence should be considered transitional until the types of evidence-gathering excluded from the scope of the Framework Decision are also the subject of a mutual recognition instrument, the adoption of which would provide a complete mutual recognition regime to replace mutual assistance procedures (recital 25). 111 For a critical analysis of the various instrument sin the field and their relationship see J.R. Spencer, The Problems of Trans-border Evidence and European Initiatives to Resolve Them ( ) 9 Cambridge Yearbook of European Legal Studies 465.

18 540 The third wave of third pillar law of the Framework Decision. These safeguards aim to limit the powers of the issuing state and uphold the basic principles of domestic constitutional and criminal justice systems on the one hand, and grant procedural safeguards with regard to the execution of the Warrant on the other. Article 7 states that an Evidence Warrant can be issued only if obtaining the evidence sought is necessary and proportionate, 112 and evidence can be obtained by the issuing state, in a comparable case if they were available on the territory of the issuing state however these conditions are to be assessed only in the issuing state, and they do not constitute grounds for refusal. 113 Articles 11 and 12, on the other hand, contain safeguards with regard to the execution of the Warrant. While the rule is that the executing authority must execute a warrant without any further formality, 114 the decision of the means of execution is for the executing state: the latter is responsible for choosing the applicable national law to the provision of the evidence and deciding whether it is necessary to use coercive measures to provide the assistance requested. 115 The executing authority must in principle comply with instructions expressly issued by the issuing authority provided however that these are not contrary to the fundamental principles of law in the executing state. 116 The executing Member State is moreover not obliged to make search and seizure available for the execution of an Evidence Warrant, with the exception of cases that are related to offences for which dual criminality has been abolished. 117 It remains to be seen how these provisions will be implemented by Member States and applied by the competent authorities when issuing or executing European Evidence Warrants. The complex negotiations and compromise wording of the agreed text point out that, if and when implemented, the system established by the Framework Decision will not lead to the automaticity that mutual recognition in its original conception had entailed. This view is strengthened by perhaps the most significant inroad to the principle to be inserted in the Framework Decision: the exception from the abolition of dual criminality, for the first time introduced in a third pillar mutual recognition instrument. 118 Germany pushed for the insertion in the Framework Decision of an option to reintroduce dual criminality: pursuant to a Declaration, it reserves the right to make 112 The insertion of a requirement of proportionality in the issuing of European Evidence Warrants can be seen as reflecting concerns with regard to the practice by certain national authorities in issuing European Arrest Warrants. It has been pointed out that there are cases where arrest warrants are being issued for minor offences in a disproportionate manner see the ECLAN, Analysis of the Future of Mutual Recognition in Criminal Matters in the European Union, 2008, pp Such proportionality concerns could be addressed more effectively if the scope of the mutual recognition instruments was narrowed down to focus primarily on serious and/or cross-border offences. 113 Moreover, Framework Decision 2008/978/JHA Art.8(1) states that an Evidence Warrant may be transmitted to the competent authority of a Member State in which the competent authority of the issuing state, has reasonable grounds to believe that relevant evidence is located. 114 Framework Decision Art.11(1). See also the tight deadlines for recognition, execution and transfer in Art Framework Decision Art.11(2). If used in the execution of an Evidence Warrant, coercive measures always trigger legal remedies. The latter are available to any interested party, including bona fide third parties, in order to preserve their legitimate interests. Member States may limit remedies only in cases where coercive measures are used Framework Decision 2008/978/JHA Art.18(1). 116 Framework Decision Art Framework Decision Art.11(3)(ii). In principle Member States must ensure that any measures which would be available in a similar domestic case in the executing state are also available for the purpose of the execution of the Evidence Warrant (Art.11(3)(ii)). 118 As will be seen below, such exceptions have also been introduced in mutual recognition measures adopted subsequently.

19 Valsamis Mitsilegas 541 the execution of an Evidence Warrant subject to the verification of dual criminality in cases related to terrorism, computer-related crime, racism and xenophobia, sabotage, racketeering and extortion or swindling if it is necessary to carry out a search or seizure for the execution of a warrant, except where the issuing authority has declared that the offence concerned under the law of the issuing Member State falls within the scope of the criteria indicated in the declaration. 119 This development demonstrates the limits of mutual trust, in particular in terms of the protection of fundamental rights in the application of mutual recognition. Its roots can be found in the extensive debate taking place in Germany over the legitimacy and legality of the European Arrest Warrant. 120 Germany s Declaration, which can be found as an annex to the Framework Decision, effectively introduces its own definitions for the offences mentioned above for the purposes of mutual recognition under the Evidence Warrant. 121 Probation and transfer of sentenced persons The difficulties in the implementation of the first round of mutual recognition instruments and in the negotiation of the European Evidence Warrant have not stopped Member States from tabling new legislative proposals on mutual recognition. An initiative by Austria, Finland and Sweden culminated in the adoption of a Framework Decision on the application of mutual recognition in the field of the transfer of sentenced persons. 122 A parallel initiative by Germany and France led to the adoption of a Framework Decision on the mutual recognition of judgments and probation decisions. 123 These instruments extend the principle of mutual recognition to further stages of the criminal process and pose a number of challenges with regard to their impact on the relationship between the individual and the state, on the one hand, and their impact on the operation of the principle of mutual recognition on the basis of mutual trust on the other. The Framework Decision on the transfer of sentenced persons will replace the corresponding provisions of a number of Council of Europe Conventions (including the 1983 European Convention on the transfer of sentenced persons and its Additional Protocol of 1997) applicable in relations between the Member States. 124 The added value of the Union instrument to the 1983 Convention and the 1997 Protocol is deemed to be twofold: it goes further in dispensing with the requirement of consent for the transfer; 119 Framework Decision 2008/978/JHA Art.23(4). 120 The minutes of the June Justice and Home Affairs Council of June 2006 include a statement explaining that Framework Decision Art.25(2)(b) was a compromise in order to proceed to the agreement of the text while taking into account Germany s concerns see statement 7 in doc.16870/1/ A number of these offences (sabotage, racketeering and extortion and swindling) have not been subject to EU harmonisation legislation. For the other offences on the list (terrorism, computer-related crime and racism and xenophobia), the definition is based on a combination of EU and international instruments. In these cases, definitions are in need of an update in the light of subsequent legislative developments at EU level (on terrorism and racism and xenophobia, see the analysis in this article). 122 Framework Decision 2008/909/JHA on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (Framework Decision on the transfer of sentenced persons) [2008] OJ L327/ Framework Decision 2008/947/JHA on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions (Framework Decision on probation) [2008] OJ L337/ Framework Decision on the transfer of sentenced persons Art.26(1).

20 542 The third wave of third pillar law and it imposes a duty to take charge of sentenced persons for the enforcement of a sentence or an order. 125 Yet the purpose of the Framework Decision is proclaimed to be to establish the rules under which a Member State, with a view to facilitating the social rehabilitation of the sentenced person, is to recognise a judgment and enforce the sentence. 126 The sentenced person is not always consulted about his/her rehabilitation: although the consent of the sentenced person is in principle required for the issuing Member State to forward a mutual recognition request to the executing Member State, 127 such consent is not required as to the state to which the request is made: the Member State of nationality in which the sentenced person lives; the Member State to which the sentenced person will be deported once he or she is released from the enforcement of the sentence on the basis of an expulsion or deportation order; or the Member State to which the sentenced person has fled or otherwise returned in view of the criminal proceedings pending against him or her in the issuing State or following the conviction in that issuing state. 128 A request may be forwarded to the Member State of nationality when the sentenced person lives there or of he/she does not live there, when expulsion or deportation occurs; but it may also be forwarded to any other Member State the authority of which consents to such forwarding. 129 Although the proclaimed aim of the Framework Decision is to facilitate the social rehabilitation of the sentenced person, its real aim appears to be to alleviate the burden of prisons in EU Member States by allowing for the transfer, without their consent, of sentenced persons to their country of nationality. Some Member States have welcomed this political development, 130 while others managed to obtain concessions on non-applicability of the new system for fear that their prison systems could not cope with the influx of sentenced persons 131 or due to a broader scepticism with regard to the new instrument. 132 The use of mutual recognition in this context facilitates this objective. Requests must be recognised speedily, in principle within three months (90 days) from receipt 133 and transfer must take place no later than 30 days from the issuing of the final 125 See Framework Decision Preamble recital Framework Decision Art.3(1). 127 Framework Decision Arts 4(1) and 6(1). 128 Framework Decision Art.6(2). See also recital 5 of the Preamble. 129 Framework Decision Art.4(1). 130 See in this context the comments by John Reid, then UK Home Secretary, who hailed the outcome as, an excellent result for Britain : David Gow, EU to allow states to send prisoners to jail in home country in Guardian, February 16, 2007 available at [Accessed June 3, 2009]. 131 See Framework Decision on the transfer of sentenced persons Art.6(5), according to which the abolition of the consent requirement with regard its nationals will not apply with regard to Poland as an issuing state and as an executing state in cases where the judgment was issued before the lapse of five years from December 5, This derogation was justified in the light of the increased mobility of Polish citizens (Preamble recital 11). 132 Note the transitional provision in Framework Decision Art.28, which allows Member States to apply the existing legal instruments on the transfer of prisoners the Netherlands have made a Declaration to that effect under Art.28(2) (Council doc.9265/09 (Brussels: April 30, 2009)). See also Art.26(2) and (3), allowing Member States to continue under certain conditions to apply or to conclude bilateral or multilateral agreements or arrangements. See in this context the Declarations made under Art.26(4) by Italy (concerning its relations with Romania (Council doc.7504/09 (Brussels, March 12, 2009)), Latvia and Lithuania (Council doc.15413/1/08 REV 1 (Brussels, November 18, 2008)) and the Nordic countries with regard to Nordic co-operation in the field (see for instance the Declaration by Finland, Council doc.7505/09 (Brussels: March 12, 2009)). 133 Framework Decision on the transfer of sentenced persons Art.12(2).

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