Steve Peers
In 1993, the Maastricht Treaty’s implementation brought about the EU’s adoption of criminal law and policing measures under a unique system known as the ’third pillar’ of EU law. Although modified by the Treaty of Amsterdam in 1999 and facing multiple attempts at its abolishment over the following decade, it persisted until the Treaty of Lisbon, which formally ended it upon coming into effect on December 1, 2009, albeit with a five-year transitional period.
While this suggests the third pillar ceased on December 1, 2014, that wasn’t the case. Two judgments from the CJEU on this date upheld the validity of existing third pillar measures and allowed new measures based on them. Instead of disappearing completely, third pillar measures have become more like ‘undead’ entities - lingering remnants of EU law.
Background
The Treaty of Lisbon includes a transitional Protocol with two relevant rules concerning the third pillar. Firstly, Article 10 outlines a five-year transitional timeframe after which the CJEU’s jurisdiction would apply to these measures. The UK had the option to withdraw from all measures during this period and later opt back into specific ones, which it did the following year.
Secondly, Article 9 of the Protocol, not bound by a time limit, states that third pillar measures adopted before the Treaty of Lisbon remain valid until amended or repealed. While some have undergone these changes or will soon, the majority, including the contentious European Arrest Warrant (EAW), remain active.
The significance of this is threefold. First, pre-Lisbon measures lack direct effect on individuals, meaning they can’t be used to establish rights in national courts. Second, the European Parliament (EP) held no significant influence in enacting these measures, despite having valuable suggestions for reforming the EAW. Lastly, it raises the legal question of whether these pre-Lisbon measures can justify adopting new measures even after the Lisbon Treaty’s implementation, a question addressed by the judgments mentioned earlier.
Judgments
The EP challenged the legitimacy of post-Lisbon Council measures implementing pre-Lisbon EU criminal law acts. These measures specifically granted police access to the EU’s Visa Information System and banned certain new designer drugs. Similar ongoing cases challenge measures implementing pre-Lisbon laws related to Europol and the ‘Prum’ system for data exchange among national police forces.
The EP’s objection stemmed from the Council exercising these powers through qualified majority voting without consulting the EP, arguing that the legal requirement for consultation, present in the old third pillar rules within the Treaty, was revoked by the Treaty of Lisbon. The EP believes the Council should use the post-Lisbon rules for implementing measures, granting the Commission power to adopt delegated acts under the EP’s control. Otherwise, new EU legislative acts, subject to the ordinary legislative procedure, are required.
The CJEU determined that pre-Lisbon measures remain valid according to Article 9 of the transitional protocol, implying the Council’s right to implement measures following pre-Lisbon procedures. However, diverging from the Advocate-General’s opinion, the Court stated that the Council must at least consult the EP on these measures. Essentially, the Court reasoned that the cross-reference to repealed Treaty rules within the pre-Lisbon legislation maintains their validity.
Comments
The Court’s decision enables the Council to create new third pillar acts despite its nominal demise. It’s comparable to ‘zombie procreation’ in the legal context. Moreover, the Court’s justification for the EP’s partial win suggests that even aspects of the defunct Treaty rules on the third pillar are revived.
While not a full-blown ‘zombie apocalypse’ in EU law, the potential impact of these measures is significant. Aside from these specific implementations, all other EU criminal law acts post-Lisbon take the form of Directives and Regulations, subject to post-Lisbon procedures. Many pre-Lisbon EU measures like the EAW don’t require implementing measures, and those that do, such as the Europol law, face imminent replacement.
Although the Court’s rulings reasonably interpret the transitional rules, the broader political concern remains: numerous controversial measures impacting civil liberties lack meaningful input from the EP. Given the limited success of court actions, the EP should explore alternative strategies like legislative or budgetary blocks to review pre-Lisbon EU criminal laws and, crucially, secure vital EAW reforms.
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Barnard & Peers: chapter 25