Towards an authentic European Criminal Law System
The occasion of the 30th Anniversary of Spain’s signing of the European Economic Community (today European Union) Accession Treaty compels us to take a brief look at the development over time of European criminal law.
As is well known, the creation of European Union (EU) Criminal Law is based on the absence of express recognition of European Community powers under the 1957 Treaty of Rome. The inability of Member States to deal with crimes related in some way to foreigners within the Union resulted in the need to create cooperation mechanisms in criminal law, amongst other areas.
The signing of the Treaty on European Union in Maastricht on February 7, 1992 began the process of creating a common Territory and an Area of Freedom, Security and Justice (AFSJ). The Maastricht Treaty divided the areas of Justice and Home Affairs into two groups: immigration policy and external border controls, included in the First Pillar (directive or regulation); and judicial cooperation in criminal matters, included in the Third Pillar (common policy, decisions, treaties and framework decisions) under the new Title VI of the TEU “Provisions on Police and Judicial Cooperation in Criminal Matters”. In its Judgment of September 13, 2005 (Case C-176/03, Commission vs. Council in an environmental case), the ECJ clarified the dividing of functions between the two pillars relating to criminal law. The First Pillar establishes the rules of conduct and the obligation of Member States to establish criminal penalties that are effective, proportional and dissuasive, whereas the Third Pillar establishes the type and scope of such penalties.
With the entry into force of the Treaty of Lisbon on December 1, 2009, the pillar system was abolished, giving way to Community criminal matters and doing away with the highly disperse legislation and legal loopholes resulting from the Council’s requirement for unanimity. The intended harmonization of criminal law, which until then had been achieved through framework decisions, was structured through directives, in general by applying ordinary legislative procedure: a co-decision by the Parliament – citizens – and the Council – the States.
The cornerstone of cooperation is the principle of mutual recognition of the judgments given by national judicial authorities (1999 European Council Meeting in Tampere), the first and most important application of the principle being the European Arrest Warrant (Framework decision by the Council, of June 13, 2002) which overcomes the traditional extradition between States. Subsequent application of the principle of mutual recognition includes Council Framework Decision 2003/577/JHA, of July 22, 2003, on the execution in the European Union of orders freezing property or evidence.
Different to the mutual recognition of court judgments is the Mutual Judicial Assistance in Criminal Matters (EU Council of Ministers’ Resolution of May 29, 2000 and Council Framework Decision on the European evidence warrant), the purpose of which is to encourage cooperation between judicial, police and customs authorities within the Union through bodies such as the European Judicial Network, Eurojust and Europol, in addition to EAFO, the European Anti-fraud Office.
In the Treaty of Lisbon, of July 17, 2013, the Commission proposed the creation of a European Prosecutor’s Office and to reform Eurojust, which was to become the European Union Cooperation Agency in Criminal Justice. The progress continues towards a single area of criminal justice within the EU to strengthen the long-awaited authentic EU Criminal Justice System.
Garrigues Criminal Law Department