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Judicial control: the CJEU and the future of Eurojust

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Abstract

Eurojust’s position is more than interesting: post-Lisbon it stands legally poised both for change and as the basis for possible reforms shifting the very foundations of criminal justice institutionalisation in Europe. In practice, its importance is ever-growing with case-loads hitting record levels, expectations as to its role subtly changing. We are witnessing it inching its way from being a ‘mere’ service body to a potential powerhouse. There can be no better moment to consider Eurojust’s framework and any changes which may be necessary as a result. Undoubtedly the European tradition ascribes a special role to courts in controlling the work of criminal justice institutions. This paper explores the role of the Court of Justice of the European Union (hereinafter CJEU, including the Court of Justice “CJ” and the General Court “GC”) and its potential to perform such a role in relation to Eurojust.

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Notes

  1. Case T-29/03, Comunidad Autónoma de Andalucía v Commission [2004] ECR II-02923.

  2. Case T-215/02 Gómez-Reino v Commission [2003] ECR II-1019.

  3. Case T-259/03 Nikolaou v Commission [2007] ECR II-00099.

  4. Case T-193/04 Tillack v Commission [2006] ECR II-3575; see ECHR Tillack v. Belgium 27 November 2007 (no. 20477/05).

  5. See in particular: Case T-193/04 Hans-Martin Tillack v Commission of the European Communities [2006] ECR II-3995.

  6. Council Decision 2009/426/JHA of 16 December 2008 on the strengthening of Eurojust and amending Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime.

  7. See Article 24(2) of the Eurojust Decision.

  8. Conducted by the author at the Max Planck Institute for Foreign and International Criminal Law see: Wade (2011) EuroNEEDS—Determining the Needs of and the Need for a European Criminal Justice System—preliminary report, available online at: http://www.mpicc.de/ww/en/prs/forschung/forschungsarbeit/strafrecht/euroneeds.htm.

  9. Article 85 TFEU

    1. 1.

      Eurojust’s mission shall be to support and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to serious crime affecting two or more Member States or requiring a prosecution on common bases, on the basis of operations conducted and information supplied by the Member States’ authorities and by Europol.

      In this context, the European Parliament and the Council, by means of regulations adopted in accordance with the ordinary legislative procedure, shall determine Eurojust’s structure, operation, field of action and tasks. These tasks may include:

      1. (a)

        the initiation of criminal investigations, as well as proposing the initiation of prosecutions conducted by competent national authorities, particularly those relating to offences against the financial interests of the Union;

      2. (b)

        the coordination of investigations and prosecutions referred to in point (a);

      3. (c)

        the strengthening of judicial cooperation, including by resolution of conflicts of jurisdiction and by close cooperation with the European Judicial Network.

      These regulations shall also determine arrangements for involving the European Parliament and national Parliaments in the evaluation of Eurojust’s activities.

    2. 2.

      In the prosecutions referred to in paragraph 1, and without prejudice to Article 86, formal acts of judicial procedure shall be carried out by the competent national officials (emphasis added by author).

  10. For Europol—e.g., TE-SAT 2012: Europol, EU Terrorism Situation and Trend Report, 2012, available at https://www.europol.europa.eu/sites/default/files/publications/europoltsat.pdf and Europol, Trafficking Human Beings in the European Union, 2011, available at: https://www.europol.europa.eu/sites/default/files/publications/trafficking-in-human-beings-in-the-european-union-2011.pdf.

    For OLAF e.g., OLAF (2012): The OLAF Report 2011. p. 27 et seq. <Available at http://ec.europa.eu/anti_fraud/documents/reports-olaf/2011/olaf_report_2011.pdf> accessed on 17/12/2012.

  11. See Eurojust, Annual Report 2011, 2012, p. 15 et seq. available at: http://eurojust.europa.eu/doclibrary/corporate/eurojust%20Annual%20Reports/Annual%20Report%202011/Annual-Report-2011-EN.pdf.

  12. Thus the creation of OLAF—see e.g., Article 2(5)c of Commission Decision of 28 April 1999 establishing the European Anti-fraud Office (OLAF) (1999/352/EC, ECSC, Euratom) and see The OLAF Activity Report 2011, pp. 27 and 29.

  13. Although a defence lawyer might well dispute this assertion.

  14. Although the Eurojust Decision (Article 7(2) of the amended Eurojust Decision) confers powers to the College to make binding decisions as regards jurisdiction, it tends not to exercise these, allowing for informal decision-making see European Parliament, The Future of Eurojust, 2012, pp. 96 and 100, available at: http://www.europarl.europa.eu/committees/en/studiesdownload.html?languageDocument=EN&file=73791.

  15. See e.g., Tak [3].

  16. This will not always be true of transnationalised criminal justice cases. Prosecutors in the EuroNEEDs study understandably often assert that European criminal cases are brought against powerful or socio-economically advantaged suspects who can afford a very good defence. It is interesting, however, to note in the European criminal justice context that the EuroNEEDs study features 9 % of prosecutorial interviewees asserting that cases involving mutual recognition cause problems for the defence and that they have noticed this because European cases are easier to handle than domestic ones—see Wade [4].

  17. See e.g., the Justice in Europe Campaign of Fair Trials International—http://www.fairtrials.net/justice-in-europe/.

  18. See e.g., the United Kingdom Victim’s Charter—available at http://www.gm-probation.org.uk/files/victims-charter2835.pdf.

  19. See e.g., Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings (2001/220/JHA) and European Parliament (2011) Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims.

  20. Imagine e.g., a trafficking human beings case a classic example of European and Transnational focus.

  21. Joined Cases C-402/05 P & C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation. v. Council of the European Union and Commission of the European Communities [2006] I-06351, para. 5.

  22. See e.g., the above cited Justice in Europe Campaign of Fair Trials International—http://www.fairtrials.net/justice-in-europe/ though note also its Interpol-related campaign: http://www.fairtrials.net/interpol/.

  23. See e.g., A. Travis, Why does Theresa May want to opt-out of 130 European Justice Measures? The Guardian, 15 October 2012—available at: http://www.guardian.co.uk/politics/2012/oct/15/theresa-may-european-justice.

  24. The work being done on the roadmap and under the European Supervision Order provides the notable exception to this trend though the slow progress of such legislation compared to that of repressive measures does somewhat underline the point. The subjugation of the EU’s legislative mandate to work in relation to individual rights in criminal proceedings “to the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters” only—Article 82(2)b TFEU, is telling.

  25. Thus the speed of adoption of the EAW and the European Investigation Order (EIO—see Initiative of the Kingdom of Belgium, the Republic of Bulgaria, the Republic of Estonia, the Kingdom of Spain, the Republic of Austria, the Republic of Slovenia and the Kingdom of Sweden for a Directive of the European Parliament and of the Council regarding the European Investigation Order in criminal matters. Explanatory Memorandum 2010/C 165/02, Official Journal C 165, 24/06/2010 P. 0022–0039.) cannot only be contrasted with the failed framework decision on fundamental rights in criminal proceedings and the incremental approach now taken via the Roadmap (see supra), but also e.g., relating to the European Supervision Order due to come into force on the 1st of December 2012—see COUNCIL FRAMEWORK DECISION 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention O.J. 11.11.2009, L-294/20 and FTI The European Supervision Order: Key Facts, available at www.europeancriminallaw.com. Simple measures to secure liberty which clearly were not afforded similar priority as repressive measures to secure and facilitate investigations and prosecutions.

  26. See the declaration of the United Kingdom Presidency of the EU 2005—UK Presidency, Justice and Home Affairs Purpose Statement, 2005, Available online at: http://www.eu2005.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1079979841177.

  27. See Proposal for a Council Framework Decision amending Framework Decision 2002/475/JHA on combating terrorism Brussels, 6.11.2007 COM(2007) 650 final and Borgers [1].

  28. See BBC (2009) Lisbon passes German court test, http://news.bbc.co.uk/1/hi/world/europe/8125742.stm and Wade [5].

  29. Although its position has changed by virtue of the co-decision procedure which has now become standard post-Lisbon—meaning that the European Parliament is drawn into the legislative procedure—the effectiveness of the Parliament as a counter-balance has yet to be ensured. That is not to belittle its position in extreme cases such as the S.W.I.F.T. context—see e.g., R. Turner, European Parliament rejects S.W.I.F.T. deal, 2010, DW, available at: http://www.dw.de/european-parliament-rejects-swift-deal-for-sharing-bank-data-with-us/a-5239595. It is undeniably, however, still an institution developing its teeth. The same can be said for the mechanism developing the role of national parliaments in ensuring accountability. Clearly both of these changes bear significant potential to change the nature of the Union from an executive-steered governance level—see e.g., Horvathova [2]. It seems fair to say that this effect has, however, not yet materialised.

References

  1. Borgers, M.L.: Framework decision on combating terrorism: two questions on the definition of terrorist offences. New J. Eur. Crim. Law (1), 68–82 (2012). Available at SSRN: http://ssrn.com/abstract=2083453

  2. Horvathova, A.: EU Criminal Law and the Treaty of Lisbon—where shall we go now? (November 30, 2010). doi:10.2139/ssrn.1836754

  3. Tak, P.J.P.: The criminal justice system in the Netherlands. In: Sieber, U., Wade, M. (eds.) Structures of European Criminal Justice, vol. 4. Duncker and Humblot, Berlin (2013) forthcoming

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  4. Wade, M.: Securing defence rights in transnational proceedings. Eur. J. Crime Crim. Law Crim. Justice (2013) forthcoming

  5. Wade, M.: The Constitution says yes [but…] to the Lisbon Treaty—The Judgment of the Second Senate of the Federal Constitutional Court of 30 June 2009. Eucrim (1–2), 57–60 (2009)

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  1. School of Law, University of Birmingham, Birmingham, UK

    Marianne L. Wade

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Correspondence to Marianne L. Wade.

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Many thanks are due to Sam J. Cole for his excellent research assistance.

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Wade, M.L. Judicial control: the CJEU and the future of Eurojust. ERA Forum 14, 201–214 (2013). https://doi.org/10.1007/s12027-013-0315-y

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