by Emilio De Capitani

On December 1st, 2014, after five years, the prior “third pillar” of EU law will transition from intergovernmental control to a supranational system. However, it remains unclear if this shift will result in a consistent policy that is properly executed by Member States and respects human rights.

Specifically, according to Article 10 of Protocol 36, added by the Lisbon Treaty, all EU measures concerning police and judicial cooperation in criminal matters adopted before the Lisbon Treaty will be treated like other EU laws regarding the jurisdiction of the Court of Justice of the European Union (CJEU). Implementation of these measures should be verified, and the Commission can bring Member States to the CJEU if issues arise. The CJEU will also have the authority to interpret these measures based on referrals from all national courts, unlike the current system where only some national courts have this ability.

Furthermore, the end of the final transitional period for the Area of Freedom, Security and Justice (AFSJ) allows for an assessment of the numerous measures, such as the European arrest warrant or the PRUM decision. These were negotiated under different political and legal circumstances and might need revision to align with the new EU framework.

Surprisingly, this deadline, with its significant potential impact on Member States’ policies and EU citizens’ rights, is approaching without public discourse from civil society, national parliaments, or academia.

Even at the EU level, during the recent Justice and Home Affairs Council meeting where this topic was on the agenda, no delegations engaged in discussion. Similarly, the recent European Council failed to mention it in the guidelines outlining the future of the freedom, security, and justice area.

UK opt-in, opt-out and re-opt-in…

This silence likely stems from the UK’s ongoing negotiations with the Council and the Commission to determine its final stance on the former EU third pillar measures. To accommodate the UK’s “red lines” during the Lisbon Treaty negotiations in October 2007, a five-year period freezing the Commission and CJEU’s enforcement powers was included in Protocol 36 (transitional measures).

The UK government aimed (and likely still aims) to safeguard its common law systems, police, and judicial processes from potential “judicial activism” by the CJEU. According to a House of Lords report, the UK government made this request because most pre-Lisbon police and judicial cooperation (PCJ) measures were not crafted with CJEU jurisdiction in mind and were often agreed upon at the “lowest common denominator” to achieve unanimity. Consequently, the drafting quality was often subpar and susceptible to broad interpretation by the CJEU (see point 91 of House Of Lords Report “EU police and criminal justice measures: The UK’s 2014 opt-out decision” HL Paper 159).

Furthermore, the UK skillfully secured the right in the same Protocol to opt out of all former third pillar measures before May 2014. It also retained the option to reconsider and potentially opt back into some or all of the former third pillar measures after December 1st, 2014, in agreement with the Council (for Schengen-related measures) and the Commission. However, according to Protocol 26, the UK’s re-opt-in would only be granted if it doesn’t significantly hinder the practical functionality of the third pillar measures and respects their overall coherence.

Last year, the UK government submitted its Opt-Out decision to the Council and is currently in informal negotiations regarding a possible re-opt-in for roughly 35 to 37 third pillar measures.

While the outcome of the EU-UK negotiations remains uncertain, if the Council and Commission accept the UK’s re-opt-in request (which could be postponed for certain measures beyond the end of 2015), the situation won’t differ drastically from the pre-block opt-out scenario. The main difference being that the UK would then be subject to the Commission and CJEU’s enforcement powers.

The difficult quest of the former third pillar acquis …****.

Setting aside the unique situations of the UK and Denmark, defining the pre-Lisbon acquis for police and judicial cooperation in criminal matters is crucial for other EU Member States and likely for the European Parliament (EP) and national parliaments. Since the end of 2009, the EP has been a co-legislator in police and judicial cooperation in criminal matters but won’t be involved in implementing Protocol 36. National parliaments will now share extensive scrutiny powers with the EP (Articles 70, 71, 85, and 88 TFEU) on these policies. This grants them the opportunity to examine EU actions beyond their borders and, more importantly, within their territories. The December 1st deadline could prompt some national parliaments to assess the correct transposition of these EU measures and identify any necessary amendments, as is still possible for measures like Europol and Eurojust, which are currently under renegotiation at the EU level.

A revised list of the former third pillar measures has been recently compiled by the Commission in collaboration with representatives from the Member States. The 123 measures currently included in Protocol 36 are quite diverse. Some are quasi-legislative, such as the Framework Decisions, while others, like international agreements or Conventions and Council Decisions, are binding despite not being legislative. Others still, such as the “Joint Actions” adopted under the Maastricht Treaty, are less clearly defined.

In terms of content, these measures address:

• Mutual recognition of national decisions (for example, the European Arrest Warrant (EAW), the European Supervision Order, and the mutual recognition of freezing orders, fines, confiscation orders, probation orders, and prison sentences);
• Harmonization of definitions for specific criminal offenses and minimum penalties;
• Criminal procedures;
• Cross-border cooperation, particularly between police and law enforcement agencies, including information exchange and crime investigation;
• EU agencies (Europol, Eurojust, and the European Police College (CEPOL));
• Agreements with non-EU countries on information sharing, mutual legal assistance, and extradition.

It is important to note that the Commission’s list is not yet finalized, as some measures might be replaced with currently negotiated texts before December 1st. The Commission also announced its intention to repeal obsolete measures.

…the problem of their transposition and operability …

To assess the “operability” of these measures, the European Commission needs to verify their correct transposition by the Member States. Although not yet authorized to initiate infringement procedures for non-compliance, the Commission is already gathering relevant data.

It’s noteworthy that the Commission has already delivered several implementing reports, as in the case of the European Arrest Warrant. In other instances, the Commission has only recently issued pre-alert communications to Member States, which should be addressed to prevent legal proceedings after December 1st, 2014.

The first pre-alert report concerns Framework Decisions 2008/909/JHA, 2008/947/JHA, and 2009/829/JHA on the mutual recognition of judicial decisions regarding custodial sentences or measures involving deprivation of liberty, probation decisions and alternative sanctions, and supervision measures as an alternative to provisional detention. These Framework Decisions (FD) are a set of interconnected and complementary legislation addressing the detention of EU citizens in other Member States and have the potential to reduce pre-trial detention or facilitate cross-border social rehabilitation of prisoners.

The first FD (transfer of Prisoners) allows a Member State to enforce a prison sentence issued by another Member State for individuals remaining in the first Member State. It also establishes a system for transferring convicted prisoners back to their home country or country of habitual residence (or to another Member State with close ties) to serve their sentence. Article 25 of the Transfer of Prisoners FD, combined with Article 4(6) and 5(3) of the European arrest warrant, permits a Member State to refuse the surrender of its nationals or residents if the requesting Member State commits to enforcing the prison sentence according to the same FD.

The second FD (Probation and Alternative Sanctions) pertains to alternatives to custody and measures promoting early release, such as restrictions on entering specific locations, community service obligations, or directives related to residence, training, or professional activities. The probation decision or other alternative sanction can be executed in another Member State with the consent of the individual involved.

The third FD (European Supervision) focuses on pre-trial release. It enables the transfer of non-custodial supervision, such as an obligation to remain at a designated place or report to a specific authority at set times, from the Member State where the non-resident is suspected of committing an offense to their usual country of residence. This allows a suspect to be subject to supervision in their home country until the trial takes place in another Member State, preventing pre-trial detention.

It’s crucial to highlight that, by the time of the Commission Communication, well past the deadlines, 10, 14, and 16 Member States, respectively, had yet to transpose these Framework Decisions.

Another pre-alert report addresses the implementation of Framework Decision 2008/675/JHA of July 24, 2008, on considering convictions in EU Member States during new criminal proceedings. This Framework Decision aims to ensure that domestic convictions and those from other Member States have comparable legal ramifications. Article 3 relies on the principle of simple assimilation of convictions, requiring, in principle, that foreign convictions have legal consequences equivalent to domestic convictions. More than three years after the implementation deadline, six Member States (Belgium, Spain, Italy, Lithuania, Malta, and Portugal) still haven’t communicated the measures transposing this Framework Decision’s obligations.

A third pre-alert report focuses on Framework Decision 2009/948/JHA of November 30, 2009, on preventing and resolving conflicts of jurisdiction in criminal proceedings. This FD addresses scenarios where multiple Member States might have the jurisdiction to conduct criminal investigations and prosecute alleged offenders for the same crime. This poses challenges not only for coordination and effective prosecution but also for upholding the fundamental criminal law principle, enshrined in the Charter of Fundamental Rights of the European Union, that individuals cannot be prosecuted or convicted twice for the same offense (Ne bis in idem). Over a year after the implementation deadline, 13 Member States (Bulgaria, Denmark, Estonia, Greece, Spain, France, Ireland, Italy, Lithuania, Luxembourg, Malta, Sweden, and the UK) have yet to notify the Commission of the measures taken to transpose this Framework Decision. While seven Member States (Bulgaria, Greece, Spain, France, Lithuania, Malta, and Sweden) informed the Commission about preparations for relevant transposition measures at the national level, none had adopted or notified the Commission of such measures by April 2014.

In these pre-alert Communications, the Commission clearly emphasizes the problematic nature of non-implementation of the Framework Decisions by certain Member States. It hinders those Member States that have implemented them from fully benefiting from the cooperation provisions in their dealings with non-compliant states. Consequently, when cooperating with a Member State that failed to implement these measures on time, even compliant Member States have to resort to the unpredictable and often lengthy traditional mutual legal assistance in criminal matters. This lacks the reliable guarantee of timely detection of bis in idem cases, which should ideally occur in the early stages of criminal proceedings. This practice significantly increases the risk of double jeopardy.

…and the problem of their “coherence” and compliance with the EU Charter.

A key priority for the EU legislator in the coming months should be to ensure that the former third pillar measures, negotiated without considering the now-binding Fundamental Rights Charter, align with the new EU institutional and legal framework.

Despite attempts by some scholars and politicians to present a narrative of continuity between the pre- and post-Lisbon eras, this is demonstrably not the case for the AFSJ. The Charter’s entry into force has brought about a clear shift in perspective. Recent CJEU jurisprudence in the asylum domain exemplifies this, with the presumption of compliance with fundamental rights by another Member State considered rebuttable when fundamental rights are threatened (CJEU Judgment in NS). Another example is the data retention judgment, which saw the annulment of the EU data retention Directive for violating the principle of proportionality and the Charter. Given the CJEU’s stance, it raises the question of how many of the 123 measures listed by the Commission require substantial revision to be considered “coherent” with the post-Lisbon legal and constitutional framework.

Please don’t throw out real rights for fake security…

Pre-Lisbon measures should be subject to parliamentary scrutiny at both the European and national levels, as mandated by Article 70 of the TFEU for the past five years. Their effectiveness is crucial, as they can impact EU citizens’ security and fundamental rights. However, assessing the proportionality and effectiveness of their interference with citizens’ rights is challenging. As the post-Snowden saga has revealed, “intelligence-led policing” and “operational cooperation” often involve intrusive practices without clear results for European or national parliaments. More concerning is the lack of parliamentary scrutiny regarding their countries’ involvement in the EU’s “Internal Security Strategy” or the “policy cycle,” which are less transparent than the “joint actions” negotiated under the Maastricht Treaty. This begs the question of whether these “soft law” initiatives remain justified forty years after the TREVI cooperation was launched in these areas. Moreover, post-Lisbon, can EU citizens expect a legislative framework from the EU and its Member States that guarantees both effective security and fundamental rights protection?

This was the promise of the new treaties and the Charter five years ago. It is now the responsibility of the incoming Commission and the newly elected European Parliament to fulfill what the European Council hesitated to propose.