Steve Peers

The year 2014 was significant for the European Union, marked by events such as European Parliament elections, the establishment of a new European Commission, and notable legislative and case-law developments. This post, the first in a series, reviews key developments in specific EU law areas.

The most substantial change in EU criminal law occurred on December 1st, ending the five-year transition period for EU criminal law measures enacted before the Lisbon Treaty came into effect. These measures, known as “pre-Lisbon EU criminal law measures” or “third pillar” measures, now fall under standard EU law rules, although their legal impact remains limited, lacking direct effect. This shift has three primary implications.

First, the UK had the option to withdraw from all pre-Lisbon EU criminal law measures and subsequently re-join specific ones. Exercising this right, the UK rejoined 35 such measures by December 1, 2014, after a complex process in the House of Commons. This means the UK’s involvement in EU criminal law remains largely unchanged, as it rejoined most significant pre-Lisbon measures.

Second, this change empowers the EU Commission to pursue infringement proceedings against Member States that haven’t correctly implemented or have completely ignored pre-Lisbon EU criminal law measures. Commission reports issued this year highlight the significance of this change, covering areas like prisoner transfer, hate crime, and jurisdictional conflicts.

Thirdly, all courts across EU Member States can now refer questions related to interpreting pre-Lisbon EU criminal law to the Court of Justice of the European Union (CJEU). The practical impact of this change is likely limited since two-thirds of Member States already permitted such referrals, and there were no such limitations for EU criminal law enacted after the Lisbon Treaty. The CJEU has already addressed cases on the EU’s double jeopardy rules, clarifying their relationship with provisions in the European Convention on Human Rights (ECHR) and the EU Charter of Fundamental Rights.

Regarding post-Lisbon EU criminal law, the first referral from national courts came this year in the Covaci case, addressing Directives on interpretation and translation in criminal proceedings and the “letter of rights.” While an anticipated surge in cases on EU suspects’ rights legislation hasn’t materialized, it could still occur. Meanwhile, Member States must implement the Victims’ Rights Directive by late 2015. It’s hoped that the CJEU’s case law on this measure will be more robust than its earlier ruling on compensation for crime victims.

In another significant ruling, the CJEU determined that a policing information measure fell under EU transport law, prompting swift action to adopt replacement legislation applicable to all Member States. This ruling highlights the CJEU’s inclination towards a narrower interpretation of the EU’s criminal law powers compared to its other areas of competence.

The conclusion of the transitional period didn’t trigger a comprehensive review of pre-Lisbon EU criminal law measures. The Commission only suggested repealing a few obsolete measures. It appears the new Justice Commissioner has no major plans for new criminal law proposals.

However, some pre-Lisbon measures have been amended, replaced, or are slated for such changes. In 2014, the EU adopted legislation covering the European Investigation Order, euro counterfeiting, confiscation of criminal assets, and the European Police College. Legislation on criminal penalties for market abuse was also enacted.

Proposals are underway to replace pre-Lisbon EU criminal law measures related to fraud against the EU, Europol, Eurojust, and data protection in criminal cases. The latter is increasingly important, evidenced by the CJEU’s invalidation of the Data Retention Directive, which raised questions about the legality of Member States maintaining their own data retention laws.

The CJEU will soon rule on data protection and criminal law matters, prompted by the European Parliament’s request to assess the validity of the EU-Canada draft treaty on passenger name records. The ongoing “Europe v Facebook” case raises concerns about the impact of the Snowden revelations on EU-US data protection arrangements. Meanwhile, the proposed Passenger Name Records Directive remains stalled due to European Parliament opposition, with EU leaders failing to set a deadline for its adoption.

Other proposals are also being discussed, including a more comprehensive overhaul of the European Police College, the establishment of a European Public Prosecutor’s Office, and the adoption of three additional suspects’ rights measures concerning child suspects, presumption of innocence, and legal aid. However, a Commission proposal for new regulations for OLAF, the EU’s anti-fraud agency, met with resistance from the Council.

Conclusion

Throughout 2014, the European Parliament, CJEU, and Commission played crucial roles in shaping EU criminal law. With the third pillar’s end, 2015 is poised for further advancements, potentially diminishing the significance of pre-Lisbon measures. These advancements include enacting new legislation on Europol, the European Police College, and possibly Eurojust; revising legislation on fraud against the EU budget; implementing two or three new suspects’ rights Directives and the Victims’ Rights Directive; potentially agreeing on rules for a European Public Prosecutor’s Office; and witnessing significant developments in data protection. The overarching trend toward increased parliamentary and judicial oversight and a stronger emphasis on individual rights within this domain accelerated in 2014 and may continue its trajectory next year.

Barnard & Peers: chapter 25