European Criminal Law - Introduction

Question	Answer
Lisbon Treaty	- Abolished Third Pillar and created one supranational Area of Freedom, Security, and Justice (Article 3(2) TEU + Article 67(1) TFEU)
AFSJ Three competences	1) Judicial Cooperation in Criminal Matters 2) Police Cooperation 3) Definition of certain criminal offences and sanctions with regard to serious cross-border crimes.
ECtHR ''Criminal'' Engel Criteria	1) Legal classification of the offence under national law 2) Nature of the offence 3) Degree of severity of the penalty that the person concerned risks incuring
Articles 82(3) and 83(3) TFEU	Create the so-called 'emergency brake procedure' - Available to MS when they express serious concerns that a draft Directive would affect fundamental aspects of its criminal justice system.
Article 82(3) TFEU	Allows member state to have a draft referred to the Council with regard to rules of criminal procedure and cooperation in criminal matters.
Article 83(3) TFEU	Grants the same power (like 82(3) TFEU) but this time refers to substantive criminal laws.
Initiatives for Legislation	Commission or a quarter of MSs
Europol	- Established in 1993 - Exchange and analysis of information between MSs. - No operational authority (cannot arrest, investigate etc.) - Dependent on the police of the MSs to obtain information.
Eurojust	- Established in 2002 - Public prosecutors of the MSs, supporting each other in obtaining mutual co-operation in criminal matters. - Can take joint decisions on the most suitable place for prosecution.
Article 86 TFEU	For matters of criminal justice affecting the financial interests of the Union, the Council may create a European Public Prosecutor's Office from Eurojust.
OLAF	- Unit within the Commission - Investigates fraud against EU Budget, corruption, and serious misconduct within the Union institutions, and develops anti-fraud policy for the European Commission. - Initiations for investigations of criminal law.
Directives	May not be used to determine/aggravate Criminal Liability (if not implemented into national law) because obligations are on the Member States to implement and its individual obligations are not directly applied against the citizen.
Directives Vertical Direct Effect	- An individual may invoke a directive against the State, if that Directive does not prohibit a certain activity but the national law does.
Regulations	States may use Regulations in order to create criminal sanctions based on that Regulation.
Judicial Co-operation in Criminal Matters	- Not to be confused with Judicial or close-cooperation - Assistance offered between judicial authorities of MSs, in cases where the accused or evidence is located in the territory of another MSs.
Bring a case against a MSs for matters of third pillar?	No. Third Pillar focuses on mutual trust. Thus, MSs or the Commission may not bring a case against another MSs for criminal matters.
Article 276 TFEU	- Court has no jurisdiction to review the legality of operative acts of authorities of the MSs. - However, Courts, Tribunals or Judges investigating a criminal matter can refer a question to the Court for the purposes of Article 267 TFEU. (preliminary questions) - Public Prosecutors are not able to refer to the Court.
Preliminary Questions Determination of whether a legal body can make reference to the Court.	The Court will examine whether: a) it is permanent b) is established by law, c) whether its jurisdiction is compulsory d) whether its procedure is inter parties e) whether it applies rules of law f) whether it is independent.
Preliminary Questions Jurisdiction of the Court	The Court has jurisdiction to answer questions for a pending case, if a national court is called upon to give a decision taking into account the preliminary ruling.
What kind of Questions will the Court Answer?	- Can provide the national Court with guidance on the scope of the Rules of Community Law so as to enable that court to apply the rules correctly to the facts of the case before it. - It is not for the Court to apply the rules to the case pending because it has not necessarily all the information that is essential for that purpose.
United Kingdom and Ireland	Have obtained special position with regard to the area of freedom, security and justice , and do not take part in the adoption of measures in this area. However, they can opt in and take part with regard to a specific proposed measure.
Denmark	Also a special position. May decide to implement a measure adopted by the Council building upon the Schengen acquis. -If it decides to do so then the measure will create an obligation under international law between Denmark and other MSs.
Schengen Acquis	Area of Free Movement of persons. To guarantee security within the Schengen area, cooperation and coordination between police services and judicial authorities have been stepped up.
Schengen Acquis	Common rules and procedures are applied with regard to visas for short stays, asylum requests and border controls. - Incorporated into the EU legal framework after Amsterdam Treaty. - Almost all Member States are members but not all.
Council Legislative Procedure	QMV in most areas.
Legal Acts of European Criminal Law	Ordinary Legislative Procedure (Article 289(1) TFEU) - Resulting to the European Parliament having more power.
Pupino Case - Facts	Kindergarden teacher held criminally responsible for inflicting injuries caused to her pupils.
Case C-105/03 Pupino	Extending the enforcement obligation of Article 258 TFEU to the former third pillar on the basis of the principle of sincere (loyal) cooperation. - In this case the Court confirmed the principle in order to ensure effectiveness of EU Law.
Case C-105/03 Pupino Court	Member States have the obligation, when applying national law, to interpret Community law as far as possible in the light of the wording and purpose of the framework decision.
ECHR	- Binding status (now) - Not applicable in Poland and UK
What is the European Criminal Law?	A collective description of: a) all criminal and criminal procedural norms and practices b) based on the law and the activities of the EU and/or the Council of Europe c) and which are contributing to a further harmonization of the national criminal laws.
European Criminal Law	A cross-sectorial area linking to Constitutional, EU and International Law. Is a Supranational Criminal Law, International Law and Europeanized National Law.
Competence-Competence	EU can release directly criminal law in only very specific areas. In other cases there is no such competence, thus the EU does not have competence-competence.
Europeanized National Law	Within the Council of Europe - mainly the ECHR - Lacking competence for supranational legislation but from its objectives. a need for harmonization of the law of the MSs can be deducted. Within the EU - mainly through harmonization and recognition - influencing national law through the principle of sincere cooperation and of interpretation in a Union-conform way.
Sources of EU Criminal Law	Primary Sources (Articles 67-76 and 82-89 TFEU) - Charter of Fundamental Rights - International Law - General Principles of Law - Secondary sources (conventions, framework decisions) - Case Law - Soft Law
International Law	- Schengen Acquis Convention 1985 and CISA 1990, now incorporated into EU law. - Bilateral Treaties - ECHR
Council of Europe Member States	47 Member States - Including Turkey and Russia
Consequence of having two organizations dealing with the same matters. ECHR and Council of Europe	Conflicting Decisions
Criminal Proceedings Final Court of Istance	May revise the decision
Procedural Safeguards	Protection of the individual (suspect)
Case 68/88 Commission v Greece [1989] ECR - Facts	Maize imported from Yugoslavia to Greece without a levy being collected declared to be of Greek origin on their exportation to another Member State. The Greek government did not take measures to penalize the perpetrators.
Case 68/88 Commission v Greece	- Assimilation principle Requires implementation ''under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance'' - Penalties must be effective, dissuasive and proportionate.
Case 68/80 Commission v. Greece Court	- Failure to comply with Union obligations. - Principle of sincere cooperation - under this principle Member States have the obligation to take all appropriate measures in order to ensure the fulfillment of their obligations arising out from the Treaty or resulting by actions taken by Community Institutions.
Case 68/80 Commission v. Greece Court	- Based on this principle Member States had the obligation to penalize perpetrators of Community Law the same way they do in similar cases of domestic Law. Greece failed to do so. - The expected attitude of the local authorities in dealing with the matter is one of same diligence. (penalties)
Enhanced Cooperation	A procedure where a minimum of nine EU member states are allowed to establish advanced integration or cooperation in an area within EU structures but without the other members being involved. (ex. Schengen) - Treaty of Lisbon extended it to also matters of Defense.
Enhanced Cooperation Problems?	- Special Position of some countries, consequently UK, Irealand and Denmark (Schengen Acquis) may be further developed by the other Member States, using the framework of the EU. - Legal Uncertainty when two provisions of two different legal instruments (enhanced cooperation and Union law)
Enhanced cooperation	Article 329-331 TFEU Article 20 TEU
Enhanced Cooperation	- Not provided for in relation to Europol.
Interpretation of Law by the Court.	- Literal and Contextual Interpretation - Wording, context and objectives pursued. - Court said that legal provision have their own autonomous interpretation. - No applicability of Vienna rules on interpretation.
Interpretation of Law by the Court.	- Interpreting in accordance with conventions that the EU is a member (not MSs) - Hardly ever relies on historical interpretation. (sometimes for CISA) - General principles of law applied when interpreting legislation.

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