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Module 1 general introduction: judicial cooperation in criminal matters - Version 3.0Module 1 general introduction: judicial cooperation in criminal matters - Version 3.0

Project description

The European Judicial Training Network

With the support of the European Union

This module is part of a standard training programme in judicial cooperation in criminal matters within the European Union (EU-Copen Training Programme).

The programme as a whole is an educational training tool designed to facilitate the training of judicial authorities in the field of judicial cooperation in criminal matters within the European Union. The tool is primarily aimed at any national authority responsible for judicial training, for the purpose of developing specific training courses on the subject, as well as to any stakeholder involved in judicial cooperation as part of their day-to-day professional practice. It may also be used by anyone interested in this field.

The methodological approach of the standard programme aims to provide authoritative information while also focusing on the practical aspects of the mechanisms of judicial cooperation.

This tool was originally developed based on two projects run in 2005-2006, and subsequently in 2009, by the Institute for European Studies (Free University of Brussels) and ECLAN (European Criminal Law Academic Network) with funding from the European Commission (under the AGIS programme and subsequently the 'Criminal Justice' programme) of the Ministry of Justice of the Grand Duchy of Luxembourg and the International University Institute of Luxembourg.

In 2012, the European Judicial Training Network, which has been involved in the Copen Training programme since it began, took over the projects management and coordination. Version 3 (3.0) of the Copen Training tool is therefore the property of the European Judicial Training Network. Any comments regarding its content and any requests for information about Copen Training should be sent to ejtn@ejtn.eu, quoting Copen Training.

The main authors of version 3.0 are: Serge de Biolley, Gisle Vernimmen and Anne Weyembergh. Veronica Santamara and Laura Surano contributed to the previous versions.

How to use this document:The 'standard training programme in judicial cooperation in criminal matters' training tool and all parts thereof are the property of the European Judicial Training Network. Its use is subject to the following conditions:

1. Its content and layout cannot be altered in any way, except:

- where space is explicitly provided for the insertion of data relating to training organised on the basis of this standard programme (organisers logo, date, place etc.)

- where space is explicitly provided for the insertion of data relating to the national situation of the Member State concerned

2. Where the user feels that corrections or additions need to be made to the content of the tool or parts thereof, provided each of the following criteria is met:

- the additions or amendments must be accompanied by a foreword indicating the origin of these amendments or additions

- these additions and amendments must be notified to the projects development team ejtn@ejtn.eu, quoting Copen Training.

3. No section of the tool or any of its parts may be copied or separated from the tool as a whole without the express permission of the Institute for European Studies and of its authors.

Whats new in this version?

This version is the 3rd version (3.0).

In particular, it takes into account the new institutional and decision-making framework introduced since the entry into force of the Lisbon Treaty.

Aims of this module

This Module 1 is the most 'theoretical' of the standard programme. It is vitally important, since it introduces the other modules by setting out the general background to the subject, therefore facilitating understanding and providing a context for the rest of the training. It describes how the institutional and decision-making framework for cooperation in criminal matters has evolved within the European Union and focuses on the legislative procedure and legal instruments currently in effect in this framework.

It provides an overview of all the developments in the criminal justice sector within the European Union. It covers aspects that will be explored further in the subsequent modules, namely judicial cooperation, mutual recognition and European stakeholders, but also focuses on the approximation and harmonisation of criminal laws and the external dimension of the European criminal law-enforcement area, which will not be examined in further detail later on.

Finally, it briefly highlights a number of similarities and differences between Member States national criminal justice systems.

Relevant legislation

Convention of 25 May 1987 on the application of the ne bis in idem principle ( Compendium B.3.1.

Agreement of 25 May 1987 on the application among the Member States of the European Communities of the Council of Europe Convention on the Transfer of Sentenced Persons ( Compendium B.3.2.

Agreement of 6 November 1990 on the Transfer of Proceedings in Criminal Matters ( Compendium B.3.3.

Convention of 13 November 1991 on the Enforcement of Foreign Criminal Sentences ( Compendium B.3.5.

Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 ( Compendium B.2.1.

Agreement between the EU and the Republic of Iceland and Norway on the surrender procedure between the Member States of the EU and Iceland and Norway ( Compendium B.8.3.

Contents

71. Introduction: three general preliminary comments

1.1.Diversity of geographical settings71.2.Frequently used concepts71.3.Sensitivity of the European criminal law-enforcement area82.History and institutional framework102.1.The starting point: The silence of the Treaty of Rome on criminal matters102.2.The launch of cooperation in criminal matters within the EU102.2.1The 1970s: first attempts by the Member States of the European Communities to develop cooperation in criminal matters in order to combat certain types of crime, particularly European terrorism102.2.2Resumption of work in the 1980s in the form of compensatory measures accompanying the abolition of checks at internal borders112.2.3Implementation of Schengen cooperation122.3.The Maastricht Treaty132.3.1The emergence of the 'Treaty on European Union' and its three pillars132.3.2The third pillar of the Maastricht Treaty142.4.The Treaty of Amsterdam and the Treaty of Nice152.4.1The Treaty of Amsterdam152.4.2The Treaty of Nice252.4.3The conclusions of Tampere of October 1999, The Hague Programme of 2004 and its Action Plan of June 2005252.5.The Lisbon Treaty and the current system262.6.Conclusion353.The European criminal law-enforcement area and its components373.1.Deepening/relaxation of mechanisms of cooperation in criminal matters383.2.Establishment of European stakeholders383.3.Approximation of laws393.3.1Approximation of substantive criminal law393.3.2Approximation of procedural law423.4.External dimension of the European criminal law-enforcement area434.A European criminal law-enforcement area founded on national criminal procedure and criminal law474.1.Examples of differences in substantive criminal law474.1.1Offences474.1.2Penalties494.2.Examples of differences in criminal procedure504.2.1General differences504.2.2Differences in the distribution of powers between investigation and prosecution functions.514.2.3Differences in determining the authority responsible for investigations524.3.Conclusion53

1. Introduction: three general preliminary comments

1.1. Diversity of geographical settings

This training focuses on the European Union (hereinafter, EU) but the diversity of the geographical settings in which cooperation in criminal matters takes place must be emphasised, and the various other fora concerned with such matters cannot be overlooked. These vary in size and cover different geographical areas:

Global: e.g. the activities of the United Nations (such as the conventions for combating terrorism, organised crime and drugs) or of Interpol in the field of police cooperation.

Regional: on the European continent, for example the activities of the Council of Europe, which very soon after its creation was concerned with judicial cooperation in criminal matters and signed a number of agreements that can be considered the 'mother' conventions in the field (such as the 1959 European Convention on Mutual Assistance in Criminal Matters, and the 1957 European Convention on Extradition). The European Convention on Human Rights (hereinafter, ECHR) and some of its protocols, and the case law of the European Court of Human Rights (hereinafter, Eur. Court HR) are also essential. In addition to the Council of Europe, the Organization for Economic Cooperation and Development (hereinafter, OECD) also plays an important role in combating corruption.

Sub-regional or bilateral: e.g. judicial cooperation within the Norden, between Iceland, Norway, Sweden, Denmark and Finland; cooperation between the three Benelux countries (in particular the Treaty of 27 June 1962 between the Kingdom of Belgium, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands concerning extradition and mutual assistance in criminal matters); and the agreements governing police cooperation in cross border areas (for example, the agreements that led to the establishment in Luxembourg of the joint police cooperation office (BCCP, between Luxembourg, Germany and Belgium) and the Police and Customs Cooperation Centre (PCCC, between Luxembourg and France).1.2. Frequently used conceptsThe concept of cooperation in criminal matters within the EU is closely linked to three other frequently used concepts that need to be defined:

Cooperation in criminal matters within the EU is part of the broader field of cooperation in justice and home affairs (hereinafter, JHA), which also covers criminal matters, asylum, immigration, external border controls and judicial cooperation in civil matters. The links between these different sectors are numerous.

The growth of cooperation in criminal matters between EU Member States also contributed to the establishment of an area of freedom, security and justice (hereinafter, AFSJ), a general objective of the EU introduced by the Treaty of Amsterdam and now enshrined in Article 3 (2) of the TEU and Article 67 et seq. of the TFEU.

Finally, work on developing cooperation in criminal matters that falls under efforts to establish a 'European criminal law-enforcement area'. This concept is not enshrined in the treaty but is frequently referred to. This will be discussed further later on.

1.3. Sensitivity of the European criminal law-enforcement area Cooperation in criminal matters, and more generally the European criminal law-enforcement area, is by nature extremely sensitive. This is due to two factors: a) The close connection of the criminal justice system with the nation-state and national sovereignty: the criminal justice system is at the heart of national sovereignty, which explains the difficulties of establishing a true European criminal law-enforcement area.

b) The complexity of the relationships between the criminal justice system and fundamental rights. The criminal justice system has two instruments at its disposal for the protection of fundamental rights: a sword, which aims to protect individuals from criminality, to ensure their safety, and a shield, which aims to protect individuals from misuse of the legitimate violence used by law enforcement authorities. The following quote perfectly illustrates this sensitivity, and the need to strike a balance between these two functions:

Whatever view one holds about the penal law, no one will question its importance in society. This is the law on which men place their ultimate reliance for the protection against all the deepest injuries that human conduct can inflict on individuals and institutions. By the same token, penal law governs the strongest force that we permit official agencies to bring to bear on individuals. Its promise as an instrument of safety is matched only by its power to destroy. If penal law is weak or ineffective, basic human interests are in jeopardy. If it is harsh or arbitrary in its impact, it works a gross injustice on those caught within its coils. The law that carries such responsibilities should surely be as rational and just as law can be. Nowhere in the entire legal field is more at stake for the community, for the individual'

(Wechsler, H., 'The Challenge of a Model Penal Code', Harvard Law Review, 1952, p. 1097).2. History and institutional frameworkThis will be looked at in five distinct stages:

the starting point, or the silence of the Treaty of Rome, which founded the EEC

the start of cooperation in criminal matters within the EU (before the Maastricht Treaty)

the Maastricht Treaty and the creation of the 3rd pillar

the Treaty of Amsterdam and the Treaty of Nice (including the conclusions of Tampere and The Hague programme) the Lisbon Treaty (including the Stockholm Programme)

The 5th stage will be examined in greater depth, since it is the stage we are in now. Some aspects of the 4th stage will also be looked at in detail, since they still apply today, such as the former competences of the Court of Justice (hereinafter, CJEU).

2.1. The starting point: The silence of the Treaty of Rome on criminal matters

There was no provision in the 1957 Treaty of Rome, which founded the European Economic Community (hereinafter, EEC) that expressly attributed competences in criminal matters to the Community. This is why the majority view in the Council has long been that the E(E)C did not have competences in criminal matters. However, this position was revised following the judgments of 13 September 2005 and 23 October 2007 of the CJEU in the Commission v Council cases (see below), and more radically with the entry into force of the Lisbon Treaty, which communitised cooperation in criminal matters.2.2. The start of cooperation in criminal matters within the EU 2.2.1 The 1970s: first attempts by the Member States of the European Communities to develop cooperation in criminal matters in order to combat certain types of crime, particularly European terrorism

While the Member States of the Council of Europe and of the Benelux countries addressed cooperation in criminal matters soon after they were established, it was not until the late 60s and mid 70s that the subject began to be debated between the Member States of the European Communities (hereinafter, EC).

This was the time when awareness of the internationalisation of criminal threats, and the threat of terrorism in particular, set in. In these years, there was a fear of seeing a growing European terrorism from far left (such as the Red Army Faction in Germany and the Red Brigades in Italy) and far right movements and from the Middle East, directed against the West. In order to combat these new threats together, the EC Member States created intergovernmental cooperation organisations outside the Communitys institutional framework. The Trevi Group, for example, was set up in in Rome in 1975 by the Interior Ministers. This groups activities focused primarily on police cooperation. It was in this context, and during the same period, that the French proposal to create a European criminal justice area' was presented by President Giscard dEstaing. This was a way of building closer ties in the area of criminal justice between the Member States of the EC, which were seen as closer to one another than the Member States of the Council of Europe. However, despite intense diplomatic effort, the project was unsuccessful and was shelved.2.2.2 Resumption of work in the 1980s in the form of compensatory measures accompanying the abolition of checks at internal bordersAt the Fontainebleau summit meeting in June 1984, the Heads of State or Government of the EC decided to reactivate the Community machinery by emphasising, inter alia, the need to establish a true internal market. This led to the drafting of the famous White Paper from the Commission in 1985, followed by the adoption of the Single European Act in 1986 the first major revision of the Treaty of Rome. The Act inscribed in the Treaty the aim of establishing a genuine common market, characterised by the abolition of checks at intra-Community borders.

To prevent this abolition of checks at internal borders from benefiting criminal organisations and increasing illegal immigration, and to prevent it leading to a security deficit, compensatory measures' accompanying the abolition of checks at internal borders were adopted. These compensatory measures were applicable to areas affecting justice and home affairs in the Member States concerned, in particular in the field of cooperation in criminal matters. This was developed further in the second half of the 1980s between EC Member States, in the form of compensatory measures accompanying the abolition of checks at intra-Community borders.

Work between the EC Member States at the time was done outside the Community framework, within new bodies functioning, for the most part, within the framework of European Political Cooperation (EPC). These bodies differed in aspects such as their origin, the authorities they were answerable to, how they functioned and were chaired, and the nature of their links with the EC institutions. They did, however, share some common characteristics, namely their entirely intergovernmental nature and their consequences. The instruments they established were adopted by unanimous vote; they followed traditional diplomatic practice in so far as conventions, recommendations and resolutions were adopted on the basis of unanimity. Governments and administrations retained the major, if not the exclusive, role, while national parliaments and the European Parliament (hereinafter, EP) were kept at a distance and there was no review by the CJEU.

Working groups of the era included the EPC group on judicial cooperation in criminal matters. This group drafted five conventions on judicial cooperation in criminal matters, the objective being to implement (within the limited framework of the Twelve) simpler, more operational and more suitable agreements than those developed on the same subjects by the Council of Europe.. None of these conventions entered into force between all European Union Member States. Nevertheless, a number still apply between some of them.

2.2.3 Implementation of Schengen cooperation

Although actual cooperation in the field of criminal justice between EC Member States before Maastricht was rather scant, parallel to this, five Member States seeking further cooperation (France, Belgium, Luxembourg, the Federal Republic of Germany and the Netherlands) signed the Schengen agreements. They established a type of cooperation that remained strictly intergovernmental. There are two separate texts:

The Schengen Agreement on the gradual abolition of checks at common borders of 14 June 1985 (entered into force on 2 March 1986) and its implementing convention of 19 June 1990 (entered into force on 26 March 1995) [Compendium B.2.1.].

The objective was that this would act as a laboratory' for testing the opening up of borders within the Schengen area. They thus abolished checks at their internal borders: internal borders could be crossed freely anywhere by anyone, regardless of their nationality. To prevent this abolition leading to a security deficit, they set up a series of compensatory measures concerning justice and home affairs. Both the Schengen Agreement of 1985 and its implementing convention of 1990 therefore include provisions regarding police cooperation and judicial cooperation in criminal matters, as well as compensatory measures accompanying the abolition of checks at internal borders within the Schengen area: see in particular, Title III, 'Police and Security' concerning police cooperation (Chapter 1) and judicial cooperation in criminal matters, specifically Mutual Assistance in Criminal Matters (Chapter 2), the application of the ne bis in idem principle (Chapter 3), extradition (Chapter 4), and the transfer of enforcement of criminal judgments (Chapter 5). Two specific areas were also addressed: narcotic drugs (chapter 6), and firearms and ammunition (chapter 7). Title IV of the implementing convention establishes the Schengen Information System (SIS), in order to maintain public policy and public security, including national security, in the territories of the Contracting Parties, and to apply the provisions of this Convention relating to the movement of persons in those territories, using information communicated via this system.' (see below).2.3. The Maastricht Treaty 2.3.1 The emergence of the Treaty on European Union' and its three pillarsThe Treaty on European Union, signed in Maastricht on 7 February 1992, and which entered into force on 1 November 1993, added two new pillars to the Treaty establishing the EC (which constituted its first pillar). These two new pillars were predominantly intergovernmental. Alongside the second pillar, or Title V of the Treaty on European Union on the common foreign and security policy, Title VI of the TEU, generally known as the third pillar, introduced cooperation in justice and home affairs between EC Member States into the framework of the EU.

Sch1_mod1_V10

Title VI of the TEU, or the third pillar, introduced developments relating to cooperation in justice and home affairs between Member States of the European Communities into the framework of the EU, for example police and judicial cooperation in criminal matters. Upon the entry into force of the Maastricht Treaty, police and judicial cooperation in criminal matters between Member States took place within the framework of this third pillar'. As a result, the majority of the existing groups, such as the Trevi Group or the ad hoc judicial cooperation in criminal matters' group disappeared, and their work was integrated into the institutional framework of the EU. But there was one notable exception to this centralisation: Schengen cooperation, which continued to take place outside the framework of the EU between a small number of Member States until the Amsterdam Treaty.

2.3.2 The third pillar of the Maastricht Treaty

The creation of the 3rd pillar and absorption of cooperation into the framework of the Treaty on European Union did not bring any major changes to the objective of the work. The main objective of cooperation in JHA, including cooperation in criminal matters, remained the same as it was in the 1980s: compensating for the abolition of checks at internal borders.

By contrast, the absorption of cooperation into the framework of the 3rd pillar led to significant institutional changes. Although the bodies that had hitherto operated in the field were purely intergovernmental, integrating their work into the structure of the Treaty on European Union led to the introduction of certain elements that were specific to the Community approach. Although there were three distinct pillars, there was nevertheless a single institutional framework. This meant that the second and third pillars in some way borrowed the existing Community institutions. The EP, the European Commission and the CJEU thus made their entrance into the sector. However, like the 2nd pillar of the TEU, the third pillar, or Title VI of the TEU was still predominantly intergovernmental and this intergovernmentality was strengthened further in the field of criminal matters. It was part of the hard core of States national sovereignty.

The main intergovernmental features of the 3rd pillar, as it functioned under the Maastricht Treaty included: Unanimous decision-making. This reflected Member States caution about committing to this area of cooperation, since it guaranteed them a veto power.

Community institutions were indeed borrowed by the 3rd pillar, but the distribution of roles was not the same as in the 1st pillar. The leading role was given to the Council of the European Union (JHA Council bringing together Member States Ministers responsible for justice and home affairs). The other Community institutions were involved, but in a somewhat limited way: a) the European Commission did not share the right of initiative in criminal matters: this was reserved for Member States.b) the EP was usually only notified of activities via the Commission and the Presidencyc) the CJEU was not in principle competent to review activities within the framework of the third pillar. 2.4. The Treaty of Amsterdam and the Treaty of NiceThe 3rd pillar was extensively revised by the Treaty of Amsterdam (2.4.1.). However, no major changes to its functioning were introduced by the Treaty of Nice (2.4.2.). Two programme-based instruments also exerted a strong guiding force: the conclusions of the European Council of Tampere and The Hague Programme (2.4.3.).

2.4.1 The Treaty of Amsterdam

The Amsterdam Treaty, signed on 2 October 1997 and which entered into force on 1 May 1999 [Compendium B.1], introduced four major changes:

2.4.1.1. New objective: area of freedom, security and justiceThe Amsterdam Treaty made the establishment of an area of freedom, security and justice a new objective for the EU (Article 29 (1)): it was no longer solely about developing cooperation in JHA and cooperation in criminal matters in particular to compensate for the abolition of checks at internal borders. This cooperation was to now enable the establishment of the AFSJ. This new objective heralded key changes to the focus of developments in criminal matters, changes that were linked to two elements of the new objective, namely the concept of area on the one hand, and the concepts of freedom, security and justice on the other:

The concept of area: this is to national territories what the concept of EU citizenship introduced by the Maastricht Treaty is to the nationality of the Member States. In the same way that the concept of EU citizenship has not abolished the concept of nationality, but has instead enhanced it by emphasising membership of a common political entity, the concept of area did not abolish the traditional concept of national territory but rather enhanced it by emphasising the geographic unity represented by all of the national territories making up the European Union. It is therefore important to give practical expression to this concept of area by qualifying it and by demonstrating gaps in the principle of criminal territoriality. We will see later on that this is what was done, inter alia, with the principle of mutual recognition and joint investigation teams.

The concepts of freedom, security and justice: these should take into account concerns other than security and combating criminality; concerns that have massively dominated developments in the field of criminal justice since the 1970s.

2.4.1.2. The splitting of JHA matters into two distinct groups The Amsterdam Treaty divides JHA matters previously grouped under the third pillar of the Maastricht Treaty into two distinct parts: Most JHA matters were transferred from the third pillar to the first pillar and have thus been 'communitised'. Asylum, crossing the external borders of the Member States, immigration and policy regarding nationals from third countries, together with judicial cooperation in civil matters were thus transferred to the first pillar and were the subject of the new Title IV entitled 'Visas, asylum, immigration and other policies related to free movement of persons'. Police and judicial cooperation in criminal matters was kept in the third pillar, in the new Title VI renamed police and judicial cooperation in criminal matters'. It is not surprising that these matters, which were viewed by Member States as being core to national sovereignty, remained within the third pillar at that time.

2.4.1.3. Updating the 3rd pillarTitle VI, or the new 3rd pillar, was extensively updated by the Amsterdam Treaty. It continued to follow a traditional approach to intergovernmental cooperation, as reflected in: the maintenance of the unanimity requirement: with the exception of the measures implementing decisions and conventions, decisions are taken by unanimous vote (Article 34 (2) of the TEU);

the maintenance of the predominant role of the Council the limited powers of the EP: the EP is merely notified. It must be formally consulted but is no longer co-legislator.

However, major changes of Community influence were introduced. These included:

strengthening the role of the European Commission: the right of initiative, or to submit proposals, was now available to Member States as well as to the Commission. Since the entry into force of the Amsterdam Treaty, the Commission has made great use of its right of initiative.

strengthening the effectiveness of the legal instruments available: not only did the various provisions of the Amsterdam Treaty help accelerate the entry into force of conventions (Article 34(2)(d) of the TEU), it provided new instruments, namely framework decisions (hereinafter, FD) and decisions: these are legally binding, but framework decisions are the only ones that can be used to approximate the laws of Member States. Their scope is the same as that of Community directives, in that they are binding upon Members States as to the result to be achieved, but leave the choice of form and methods up to them. However, unlike directives, which can entail direct effect (see below), decisions and FDs are expressly denied any direct effect. To be implemented in the domestic legislation of Member States and for individuals to be able to invoke them before national courts, they must therefore in principle be the subject of national measures to transpose them. The effectiveness of FDs was, however, strengthened by the CJEU in its judgment of 16 June 2005 in Case C-105/03 against Maria Pupino. It declared that the duty of loyal cooperation and the duty of conforming interpretation, which, within the framework of Community law, are the responsibility of the Member States, apply in the framework of the 3rd pillar. It follows that national authorities, including domestic courts and tribunals, called upon to apply and interpret national law, are required to do so as far as possible in light of the wording and purpose of the EU instruments concerned. See the analysis of the Pupino judgment in module 3 for further details. Strengthening the competences of the CJEU: compared with its jurisdiction under the Maastricht Treaty, the CJEUs competences were strengthened but were still subject to various limitations and restrictions when compared to its jurisdiction as regards Community law (Article 35 of the TEU). The jurisdiction of the Court that is the most relevant for the practitioner is undoubtedly the reference for preliminary ruling, since this means clarifications can be given on the validity or scope of EU law on a specific matter and enables a uniform interpretation of the European provisions concerned. Explanation will, however, also be provided regarding the other remedies available to the CJEU.Note: understanding these powers of the Court under the Amsterdam Treaty is not solely a question of historical interest. These powers also apply to the instruments adopted before the entry into force of the Lisbon Treaty, that is, the majority of instruments of criminal law and of judicial cooperation in criminal matters in the EU. It is only from 1 December 2014 that the legacy instruments' will transfer to the system of the Lisbon Treaty as regards the competences of the Court of Justice (and of the European Commission). See the explanations below regarding Protocol 36 of the Lisbon Treaty.- Reference for a preliminary ruling: The CJEU had jurisdiction to give preliminary rulings concerning:

the validity or interpretation of FDs and decisions. the interpretation of conventions and the validity and interpretation of their implementing measures. The preliminary jurisdiction thus conferred on the Court was limited, since it did not apply to common positions and, in the case of conventions, it only allowed the Court to rule on their interpretation and not on their validity. It was also optional: each State could make a declaration accepting the jurisdiction of the CJEU. Some have still not accepted it. It was at variable geometry: each Member State could, through a declaration to that effect, agree to all national courts and tribunals being able to refer questions for preliminary rulings, or only those of final instance. But the option to request a reference for a preliminary ruling and the terms thereof depended on the existence of a declaration of acceptance by the requesting Member State and, where applicable, on the content of this declaration. Due to these restrictions, and also the duration of preliminary procedures (20 months on average, which is difficult to reconcile with the requirements for rapidity in criminal matters), only a limited number of references for preliminary ruling have been made. However, an urgent preliminary ruling procedure (PPU) was established and has been in force since 1 March 2008 (see Module 3). Although few in number, the references made have led to some key decisions: good examples are the aforesaid judgment of 16 June 2005 in the Pupino case, and the decisions pronounced concerning the ne bis in idem principle (such as the judgment of 11 February 2003 in the joined cases C-385/01 and C-187/01, Brgge and Gztoc, or that of 9 March 2006 in Case C-486/04, Van Esbroeck) or concerning the FD on the European Arrest Warrant (and its judgment of 3 May 2007 concerning the Advocaten voor de wereld association in Case C-303/05 of 12 August 2008, and Santesteban Goicoechea in Case C-296/08 PPU).

Declarations concerning acceptance of the jurisdiction of the CJEU to give preliminary rulings on the acts referred toin Article 35.1 of the TEU*

Type of court Reserves the right to stipulate in their domestic legislation the obligation on courts of final instance to refer to the CJEU (rather than just the option)

GermanyAll courts and tribunals Yes

AustriaAll courts and tribunals

Yes

BelgiumAll courts and tribunals

Yes

CyprusAll courts and tribunalsNo

SpainCourts of final instance

Yes

FinlandAll courts and tribunals No

FranceAll courts and tribunals Yes

GreeceAll courts and tribunals

No

Hungary All courts and tribunals

No

Italy All courts and tribunals

Yes

Latvia

All courts and tribunals

No

Lithuania

All courts and tribunals

No

LuxembourgAll courts and tribunals

Yes

NetherlandsAll courts and tribunals

Yes

PortugalAll courts and tribunals

No

RomaniaAll courts and tribunalsYes

SloveniaAll courts and tribunals

Yes

Sweden All courts and tribunals

No

Czech RepublicAll courts and tribunals

Yes

* Bulgaria, Denmark, Estonia, Ireland, Malta, Poland, Slovakia and the United Kingdom have made no declaration conferring this jurisdiction to the CJEU.tab1_mod1_V10

- In addition to its jurisdiction for preliminary rulings, the CJEU had other powers within the framework of the third pillar, but these had less of an impact on judges daily work: it could review the legality of FDs and decisions where an action was brought by a Member State or by the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaty or of any provision relating to its application, or misuse of powers. Besides the fact that only the legality of decisions and framework decisions could be questioned, and not that of the other instruments adopted under Title VI, this challenge could only be brought by the Commission or by a Member State, to the exclusion of natural or legal persons and the other institutions of the European Union. Individuals therefore had no direct access to the Court. Action for failure to fulfil an obligation, well known in Community law, did not exist in the 3rd pillar. But the Court could rule on any dispute between Member States regarding the interpretation or application of acts adopted under the third pillar, whenever such dispute cannot be settled within the Council within six months. It could also rule on any dispute between Member States and the Commission regarding the interpretation or application of conventions (Article 35 (7)). Action for failure to act and for damages did not exist under the 3rd pillar.

=> Whether it was references for preliminary rulings or other action brought before the CJEU in criminal matters, the Court did not, in any event, have jurisdiction to review the validity or proportionality of operations carried out by the police or other law enforcement services in a Member State, or to rule on the exercise of responsibilities incumbent on Member States to maintain law and order and safeguard internal security. It could, however, of its own motion review the facts of the grounds alleged by Member States and shape the scope of the restriction placed on its jurisdiction.

2.4.1.4. The integration of the Schengen acquis into European Union lawEven though, since its launch, Schengen cooperation had developed outside the EC and EU framework, the Amsterdam Treaty integrated the Schengen acquis into the framework of the EU. This integration took place through the Protocol integrating the Schengen acquis into the framework of the European Union, which was attached to the Treaty. Under this Protocol, the Council of the European Union took the place of the Schengen Executive Committee and, acting by a qualified majority, adopted the detailed arrangements for the integration of the Schengen Secretariat into the General Secretariat of the Council.

a) Why was the Schengen acquis integrated into the law of the EU? There were three main reasons for this: the common objectives, the ripple effect and the prospect of enlargement.

The close relationship between the substance of Schengen cooperation and cooperation within the framework of the 3rd pillar proves that there was a common objective in the two frameworks. The integration of the Schengen acquis into the law of the European Union put an end to having two parallel networks of institutions and procedures with responsibility for the same matters. This streamlining became all the more necessary in light of Schengens considerable ripple effect. The first five Schengen partners were joined in 1990 by Italy, in 1991 by Spain and Portugal, in 1992 by Greece and in 1995 by Austria. In 1996, Denmark, Finland and Sweden also joined so that, by the time the IGC leading to the Amsterdam Treaty began, Schengen had brought together 13 of the 15 Member States of the European Union (15 minus Ireland and the UK). The prospect of enlargement also led to the integration of Schengen into the EU, since if the Schengen provisions became part of the Community acquis, candidate countries had to transpose them as such. The protocol integrating the Schengen acquis also provides that the Schengen acquis is henceforth binding on candidates for EU membership. Decisions and measures arising from this acquis must be accepted in full by these States. The integration of Schengen has therefore resulted in an increase in the criteria that candidates for admission will have to meet before joining the EU. Each of the 12 new Member States was therefore bound, upon admission, by a significant part of the Schengen acquis, particularly all aspects of judicial cooperation. The removal of checks at internal borders with these States did not, however, occur immediately. It was subject to specific evaluation, separate to that of admission to the EU. This evaluation, which is undergoing reform, is based largely on a peer evaluation', that is, a process whereby Member States experts evaluate candidates for admission to the Schengen area through in-country visits and reports.

This evaluation includes, inter alia, checks at external borders. New Member States are not therefore part of the Schengen area' (as defined as the area without internal borders) upon admission to the European Union. For the criminal matters covered here, this primarily means that the following aspects are not immediately applicable to new Member States: the Schengen Information System (important for the application of the European Arrest Warrant, see Module 7) and the rules on cross-border surveillance and hot pursuit (see Module 7). For 9 of the 12 new Member States, checks at internal borders were abolished from 21 December 2007 for land and sea borders, and from March 2008 for air borders. These 9 States were then connected to the SIS. The abolition of checks has not yet been implemented for Cyprus, Bulgaria and Romania (see Module 5).b) How has the Schengen acquis been integrated into EU law?

Three aspects will be discussed in turn: the use of differentiation or flexibility, the definition of the acquis and its breakdown across EU law, and the status of the associate Schengen countries.

The use of flexibility and the position of the United Kingdom and Ireland: since only 13 of the 15 former EU Member States were bound by the Schengen acquis at the time of the IGC, a formula needed to be devised so that the United Kingdom and Ireland were not bound by this integration. This was organised by the protocol on the integration of Schengen itself, whereby only 13 States participated in this integration. Nevertheless, it provided for an opt in' for the two States not party to Schengen: Ireland and the United Kingdom may at any time request to take part in some or all of the provisions of the Schengen acquis. The Council must then decide on the request with the unanimity of the Member States party to Schengen and of the State concerned. The UK and Ireland submitted a request to take part in some of the Schengen provisions concerning police and judicial cooperation in criminal matters. These were each authorised by a specific decision of the Council. Pursuant to these decisions, these two States will take part in the following aspects of the Schengen convention:

provisions on police cooperation, with the exception of the right of cross-border hot pursuit (Article 41): this therefore includes, inter alia, cross-border surveillance (see Module 5).

provisions on mutual assistance in criminal matters, the ne bis in idem principle, extradition, the transfer of enforcement of foreign sentences

provisions relating to combating drug trafficking

SIS, but solely for aspects relating to cooperation in criminal matters (i.e. not alerts for foreign nationals for the purposes of preventing them being admitted into the territory).

However, the application of this admission is conditioned by one or more Council decisions laying down start dates for implementation according to the specific areas of cooperation. This is where the positions of the United Kingdom and Ireland differ:

United Kingdom: in a decision of 22 December 2004, the Council set 1 January 2005 as the start date for putting into effect all aspects of Schengen cooperation accepted by the United Kingdom, with the exception of provisions concerning the SIS.

Ireland: to date, there is no Council decision laying down a start date for putting into effect these provisions. Work appears to have been suspended at Irelands initiative. Ireland is therefore the only country in the European Union to which none of the parts of the Schengen agreement concerning cooperation in criminal matters is applicable. The definition of acquis and its breakdown: the Schengen acquis is defined in an annex to the protocol. It refers to the Schengen Agreement of 1985, its Implementing Convention of 1990, its protocols and accession agreements, decisions and declarations adopted by the Executive Committee, as well as acts adopted by the bodies to which the Committee has conferred decision-making powers. As laid down in the protocol, this acquis was incorporated, through a Council Decision of 20 May 1999, depending on the provisions at issue, either under the first Community pillar, enriched by its new Title IV on the free movement of persons, or under Title VI, now limited to police and judicial cooperation. This decision determines the legal basis for the provisions and decisions concerning the Schengen acquis, as set out in Annexes A to D, with the exception of the provisions and decisions for which the Council has established that a legal basis was not necessary because they are no longer applicable. Breakdown by area between the first and the third pillar had sometimes not been possible, as evidenced by the provisions governing the Schengen Information System. The problem lies mainly in the fact that the SIS contains, on the one hand, a file relating to undesirable foreign nationals, which should have its basis in the first pillar of the Treaty, and the other a file containing the data necessary to judicial and police cooperation, which by contrast should have its legal basis in the 3rd pillar. There are, in addition, horizontal provisions concerning, for example, the purposes of the SIS, the categories of data that can be added to it, data protection and financing. Pursuant to the Protocol integrating the Schengen acquis, these provisions continued to be based on the third pillar.

=> Identifying the legal basis for the provisions that constitute the Schengen acquis was essential to their implementation and development. It determined the framework in which, and therefore the procedures by which, the acquis was developed.

The protocol integrating the Schengen acquis governs the position of certain third countries; the states with Schengen associate status. On the eve of the IGC, some third countries were recognised as associate countries of the Schengen Agreements, namely Norway and Iceland. These two countries entered into a cooperation agreement with the Schengen signatory states when Denmark, Sweden and Finland signed the Schengen Agreements. The aforesaid agreement was necessary to preserve the system already operating between the five Nordic countries under the agreement on the abolition of passport checks at inter-nordic borders signed in Copenhagen on 12 July 1957 establishing the Nordic Passport Union. Under the protocol integrating the Schengen acquis, these two states are associated with the implementation of the Schengen acquis and its subsequent development. The details of this association are governed by an agreement signed on 18 May 1999 by the Council of the European Union, the Republic of Iceland and the Kingdom of Norway concerning the association of the latter two states with the implementation, application and development of the Schengen acquis.

Under this agreement: a) The provisions of the Schengen acquis, as listed in Annex A, and the provisions of the acts of the European Community replacing the corresponding provisions of the Implementing Convention of 1990 or adopted pursuant thereto, as listed in Annex B, shall be implemented and applied by Iceland and Norway.

b) These States are also associated with the development of the Schengen acquis. When a proposal is submitted, the Council must determine whether it is a development of the Schengen acquis or not (Schengen related' or not). If it is, Iceland and Norway are associated with the decision-shaping process (i.e. negotiations, debates, discussions) but they do not take part in the decision-taking process (i.e. the adoption itself). When a Schengen-related instrument is adopted, the Council notifies the associate states. They must then signal whether they accept the instrument and whether they agree to transpose it into their internal legal order. They have 30 days to notify their decision. If they do not provide a response or if they refuse, the association agreement of 1999 shall be considered terminated. In practice, to determine whether Iceland and Norway are bound by the instruments adopted by the EU in criminal matters following the integration of Schengen, we must therefore consider whether they are Schengen related or not. If they are, they are considered bound by them. Sometimes only certain provisions are; for example, the 2000 Convention on Mutual Assistance in Criminal Matters. But just because an instrument or some of its provisions is not a development of the Schengen acquis, it does not mean it will not be binding on Iceland and Norway. On the basis of Article 24 and 38 of the TEU, the EU may conclude external agreements with these countries that incorporate the content of instruments or provisions that are not Schengen related (for example, the agreement extending the non-Schengen related provisions of the 2000 Convention on Mutual Assistance in Criminal Matters to these two countries, and also the agreement extending a light' version of the European Arrest Warrant system to these two associate countries). The case-law of the CJEU is also binding on these states.Iceland and Norway have been joined' by two new Schengen associate states, namely Switzerland and Lichtenstein.

2.4.2 The Treaty of Nice The Treaty of Nice signed on 26 February 2001 and which entered into force on 1 February 2003 did not introduce major changes to Title VI, or the third pillar, of the Treaty. However, there were two notable amendments:

An express provision regarding the establishment of Eurojust (Article 31) was inserted (see below).

The conditions for initiating enhanced cooperation, that is, being able to deepen cooperation without the need to involve all Member States, while still operating within the framework of the Treaty on European Union, were relaxed, in view of the prospect of enlargement (Articles 40, 40(a) and 40(b) of the TEU). Now the initiative had to come from the Commission or at least eight Member States. This possibility has not yet been made use of. Cooperation in the criminal sector was initiated with the entry into force of the Treaty of Nice, but outside the scope of the treaty (see the Prm Convention and the agreement on the exchange of criminal records information, addressed in Modules 5 and 7 respectively).

2.4.3 The conclusions of Tampere of October 1999, The Hague Programme of 2004 and its Action Plan of June 2005.

2.4.3.1. At the European Council in Tampere on 15 and 16 October 1999, which was the first Summit of Heads of State or Government specifically dedicated to the field of justice and home affairs, conclusions were adopted that set a five-year work programme designed to implement the area of freedom, security and justice. These conclusions were not legal commitments but rather policy guidelines. But this does not make them any less essential: they gave unprecedented impetus to the establishment of a European criminal law-enforcement area, for example by opening up new prospects. These were the conclusions that, inter alia, enshrined the principle of mutual recognition as the cornerstone of judicial cooperation in criminal matters (paragraph 33) and which referred to the creation of a unit called Eurojust' (paragraph 46).

2.4.3.2. Adopted by the Brussels European Council of 4 and 5 November 2004, The Hague Programme succeeded the conclusions of Tampere. It was put into practice' by an action plan adopted in June 2005. The aim was to develop the concept of area, underlining, from a judicial perspective, the importance of mutual recognition, and establishing, from a police perspective, the principle of availability (see paragraph 2.1. of The Hague Programme) (see below).2.5. The Lisbon Treaty and the current system

The current system is laid down by the Lisbon Treaty, adopted by the European Council on 18 October 2007 and signed on 13 December 2007, entering into force on 1 December 2009. This 5th phase is also characterised by the Stockholm Programme, the name given to the new multiannual programme adopted by the European Council on 10 and 11 December 2009, which succeeded the conclusions of Tampere and The Hague Programme. Under the provisions of this new programme, an action plan designed to implement it was presented by the Commission in April 2010. This plan was greeted frostily by the Council, which criticised it for not implementing certain components of the Stockholm Programme and for developing other aspects not provided for in that programme.

The Lisbon Treaty incorporates most of the many and far-reaching reforms introduced by the Treaty establishing a Constitution for Europe, adopted by the European Council on 17 and 18 June 2004 and signed in Rome in October 2004. The field of JHA in general, and criminal matters in particular, is one of the areas where the Lisbon Treaty has introduced the most significant changes.

The most radical of these are the institutional changes. Changes to the EUs competences in the field of cooperation in criminal matters have also been introduced. Most of these merely maintain the course already set by the European legislator and the CJEU, such as enshrining the principle of mutual recognition and clearer legal bases for the approximation of laws into the body of the treaty itself. Others are more significant, such as the possibility of expanding the mission of Europol (Article 88 of the TFEU) and Eurojust (Article 85 TFEU), and the possibility of establishing a European Public Prosecutors Office from Eurojust (Article 86 TFEU). However, here we will focus on the major institutional changes (2.5.1.); changes to the competences of the EU will be studied in subsequent sections dedicated to those specific developments.

The Lisbon Treaty strengthened the EUs variable geometry, and this was probably the price to pay for adopting all of the changes it introduced (2.5.2).

2.5.1. Major institutional changes

The Lisbon Treaty introduced two fundamental reforms: first, the abolition of the third pillar and, second, the end of the intergovernmentality and the communitisation of cooperation in criminal matters (2.5.1.1.). The Community method is nevertheless still subject to some qualifications, due to the specific nature of criminal justice. (2.5.1.2.). This overview of the major institutional changes will conclude with a description of the current decision-making procedure (2.5.1.3.).

2.5.1.1. The removal of the third pillar, the end of intergovernmentality and the transition to the Community method.

The Lisbon Treaty removed the third pillar. Provisions relating to the area of freedom, security and justice were brought under Title V of Part III of the Treaty on the Functioning of the European Union (hereinafter, TFEU), the new name for the TCE, or 1st pillar. Title V is divided into five separate chapters. Three of these are particularly relevant to the European criminal law-enforcement area, namely the first, which contains various rules common to this area; Chapter 4 on judicial cooperation in criminal matters' and Chapter 5 on police cooperation'.

The abolition of the third pillar by the Lisbon Treaty, and the integration of police and judicial cooperation in criminal matters into Title V of Part III of the TFEU, resulted in the communitisation of these fields. This had four significant consequences.

The transition to the ordinary legislative procedure: cooperation in criminal matters was now subject to the codecision procedure, which entails the transition to qualified majority voting within the Council (Article 294 of the TFEU). A single Member State or a small group of Member States can therefore no longer block negotiations: if they do not constitute a blocking minority in the quorum of the qualified majority, these countries must immediately and actively participate in seeking satisfactory compromise solutions to prevent finding themselves isolated at the end of the exercise and seeing their request purely and simply rejected. The transition to the codecision procedure also entails that the adoption of each instrument is subject to approval by both the Council and the EP.

The provision of traditional Community instruments, including regulations and directives: these instruments are much more effective than the decisions and FDs of the former third pillar, even after the indirect effect' they were afforded by the CJEU in the Pupino case (see above and Module 3). A regulation is defined as having general application, as being binding in its entirety and directly applicable in all Member States (Article 288 of the TFEU). This latter characteristic is a definite advantage, as it means that this instrument does not require any measure to transpose or implement it into the domestic law of the Member States: it is a direct source of rights and obligations, that is, able as such to confer rights and/or to impose obligations on Member States, their institutions and on individuals in the same way as national law. Directives are binding, as to the result to be achieved, upon each Member State to which it is addressed, but leave to the national authorities the choice of form and methods (Article 288 TFEU). The directive is the preferred instrument for the approximation of legislation but normally requires the transposition or adoption of internal implementing measures. Under the Van Duyn case-law of the CJEU, however, it can be afforded direct effect. This is, however, subject to certain conditions and important limitations. The direct effect of a directive is dependent on the existence of a provision that is unconditional and sufficiently clear and precise, and when consequently it does not leave any margin of discretion to the Member States as to its application. This is one example of vertical direct effect, which can only be invoked by individuals against a defaulting Member State. In the criminal sector, instances of vertical direct effect do not normally affect either the rules of cooperation between judicial and police authorities or the rules of substantive criminal law, since the latter primarily lays down minimum standards for the purposes of prevention rather than protection (see below). However, insofar as such instruments also often include provisions that may benefit individuals in the fields of data protection or the right of appeal they may also be afforded partial vertical direct effect. Furthermore, directives on the rights of victims or those intended to enhance the protection of suspects and accused persons in criminal proceedings are likely to entail direct effect (see below). Given the growing importance of approximation work in these sectors, the potential direct effect of directives could have a major impact at national level. These new instruments are all the more effective because the review of these instruments implementation is also enhanced. Infringement proceedings, common in Community law, are now also applicable to the criminal justice sector. Consequently, where the Commission observes a failure to transpose or an incomplete transposition, it may formally notify the Member State concerned, with the prospect of infringement proceedings before the CJEU and the threat of a penalty payment or a financial sanction being imposed on that State. The strengthening of judicial review over the European criminal law-enforcement area: firstly, the Lisbon Treaty opens up the prospect of strengthening external judicial review by the European Court of Human Rights, since it declared that the EU accedes to the ECHR (Article 6(2) of the TEU). Furthermore, review by the CJEU is substantially consolidated. It has become identical to that it habitually exercised in Community law. These changes particularly affect preliminary proceedings before the CJEU, as well as action for failure to fulfil an obligation, review of legality and action to declare an act void, action for failure to act and compensation for damages. These changes do not only apply to any new instrument adopted after the entry into force of the new treaty, but also, under Protocol 36 annexed to the Lisbon Treaty concerning transitional arrangements, to former instruments. The transition from the former instrument to the new system can take place in two ways. If an old model' legislative instrument (usually a decision or a FD) is amended by a new model' legislative instrument (a directive or regulation), the effects of the latter thus contaminate' the resulting amended instrument as the amending instrument under the new system. Even if an old model' instrument is not amended by a new model' legislative instrument, it will nevertheless entail the effects afforded to the new systems legislative instruments on 1 December 2014. The new treaty therefore not only offers new prospects for the law after Lisbon'; it could also give dozens of decisions and framework decisions adopted between 1999 and 2009 a second life' (see Module 3).

The application of the general principles of Community law to cooperation in criminal matters: following communitisation, the general principles of Community law, such as the principle of primacy or the exclusion of reciprocity are now applicable to cooperation in criminal matters.

2.5.1.2. Some qualifications to communitisation

Despite the communitisation principle enshrined in the Lisbon Treaty, the treaty retained some derogations.

Firstly, instead of enshrining the Commissions monopoly, the Lisbon Treaty keeps the right of initiative shared between the Commission and the Member States. But for a proposal to be submitted by the Member States a minimum of one quarter of the Member States needs to be reached (currently a minimum of 7 Member States, and when Croatia joins the EU). The new treaty still retains a number of exceptions to the ordinary legislative procedure', that is, to the codecision system. It thus retains the requirement to merely consult the EP and the requirement of unanimity within the Council that is, the system under the old third pillar for three specific areas of police and judicial cooperation: the creation of a European Public Prosecutors Office (Article 86(1) of the TFEU), operational police cooperation (Article 87(3) of the TFEU) and the rules on the conditions and limitations under which the competent authorities of the Member States concerned may operate in the territory of another Member State (Article 89 of the TFEU). These derogations reflect the particularly sensitive relationship of these three specific areas to national sovereignty.

In addition, and although the resulting legislative instruments were adopted under the ordinary legislative procedures and therefore by qualified majority, the treaty has padlocked the approximation of procedural criminal law and substantive criminal law by providing limitative lists of areas of crime in which the EU could act, requiring a unanimous decision of the Council to add to these lists (Article 82(2) and Article 83(1) of the TFEU). Furthermore, in this field of approximation of procedural and substantive laws, an alarm bell' procedure was also established. When a Member State believes that a proposed directive affects fundamental aspects of its criminal justice system, it may request that the proposal in question be forwarded to the European Council. In this instance, the ordinary procedure is suspended.

Finally, a exception to the normal competences of the CJEU lies in Article 276 of the TFEU, which incorporates the former Article 35(5) TEU, whereby the Court has no jurisdiction to review the validity or proportionality of operations carried out by the police or other law enforcement services in a Member State, or to rule on the exercise of responsibilities incumbent upon Member States to maintain law and order and safeguard internal security.

2.5.1.3. Description of the current decision-making procedure

The filing of an initiative: remember that the right of initiative is shared between the European Commission and Member States. Any legislative proposal must respect the principles of subsidiarity and proportionality (Article 5 of the TEU). Protocol 2 to the Lisbon Treaty, which addresses the application of these principles, provides for an obligation to give detailed grounds for legislative proposals, including an assessment of the financial impact. This applies to initiatives from the Commission as well as those from Member States.

The involvement of national parliaments at the start of the procedure: the Lisbon Treaty provides for national parliaments formal involvement in the legislative procedure. National parliaments have a period of 8 weeks from submission of the draft legislation to issue a reasoned opinion stating why they believe the proposal in question does not comply with the principle of subsidiarity.

Negotiation: once the initiative has been filed, the negotiation of an instrument submitted to the ordinary legislative procedure begins with relatively separate negotiations within the Council and the EP. Negotiations between the two institutions and with the Commission then begin. The procedure is described in Article 294 of the TFEU. The ordinary legislative procedure (codecision) may be completed at three stages in the process:

after first reading: in the early stages of legislative procedure, work within the Council and within the EP will progress in parallel, but it is the Council that takes the lead in determining a first approach. The first stage therefore involves, in most cases, attaining a general approach' within the Council that will guide the Presidency in its negotiations with the EP. Discussions within the Council take place within a multi-level pyramidal structure, and usually begin within the working group of experts, usually from the Ministries of Justice or Interior Ministries of the Member States. Working groups normally meet once a month. The dossier may then be submitted to an interim committee comprising high-level government officials, called the CATS. However, this step is not mandatory. When political issues emerge or the dossier is ready for agreement, the dossier is referred to Coreper II (Committee of Permanent Representatives of the Member States) and the JHA Council.

Within the EP, most of the discussions take place within the competent Parliamentary committee and begin with the appointment of a rapporteur. The rapporteur plays a central role as it is they, assisted by the EP Secretariat, who must set out parliaments position and negotiate with the Council. In the area of JHA, while preparing their reports, the rapporteurs generally wait to receive the general approach of the Council in order to take this into account; converging on certain issues or taking an opposing position. The rapporteur then presents their draft report to the committee. The other Members of Parliament then have a period of time to file their amendments. The rapporteur then prepares compromise amendments and report is adopted through an orientation vote'. This forms the EPs starting position in negotiations with Council.

Negotiation can then begin. This takes the form of a trilogue involving the Presidency, the rapporteur and the Commission. If the Presidency and the rapporteur believe they have reached an agreement at the end of the last trilogue, the Presidency presents this compromise to Coreper. If Coreper approves the text by qualified majority, this agreement is notified to the EP. The competent committee then votes on the text, which is then sent to the plenary session of the EP. It is when the text is adopted in plenary session that an agreement at first reading is considered to have been attained.

after second reading: in the small minority of instances where there is no agreement at first reading, that is, if the rapporteur and the Presidency fail to arrive at a text that is acceptable to both the Council and to the EP, the latter each take a position, starting with the Parliament. Even when the first phase of negotiations has failed and where the EP has adopted an initial position that is not acceptable to the Council, negotiations will often continue until the Council has adopted its first position. If these negotiations prove successful, the Council will adopt its first position knowing that it is acceptable to the EP. This is called 'early second reading'. It requires further confirmation by a second position of the EP adopted in plenary session. Strict time limits are imposed for the second reading stage. Once informed of the position of the Council, Parliament must adopt a second position within three months and in turn the Council has three months to adopt its position. Again, there can only be agreement at second reading if the EP position at second reading is acceptable to the Council. The institutions therefore have three months after the position at first reading of the Council to reach an agreement. The procedures are the same as for the first reading stage and therefore rely on trilogues involving the three institutions.

under a conciliation procedure: failure of the second reading procedure automatically activates the conciliation procedure. This is rarely necessary. Conciliation takes place through a Conciliation Committee comprising one representative per Member State for the Council, and an equal number of members representing the EP and the commissioner concerned. The work of the committee is, however, done through trilogues similar to those used during other phases of the procedure. The timescales are very short: within six weeks after the adoption of the position at second reading of the Council for the first meeting of the Conciliation Committee, a further six-week deadline between the first meeting and an agreement being reached within the committee, and a final six-week deadline for the Parliament and the Council to each confirm the agreement reached within the Conciliation Committee. It is very rare for the conciliation procedure to fail.

2.5.2. The price to pay: the variable geometry of the European criminal justice area

The changes described above, which have often been radical, greatly enhance European cooperation in criminal matters. This evolution has not, however, been accepted as such by everyone. Two types of compromise have therefore needed to be found: the closing off of some competences, compensated for by increased scope for enhanced cooperation (see above), and the granting of opt-out mechanisms for the United Kingdom, Ireland and Denmark (2.5.2.1). These modulations add to the already complex situation created by Schengen cooperation, which will be briefly reiterated (2.5.2.2.). Accompanying these specific provisions was also the general opt-out possibility granted to the United Kingdom by Protocol No 36 on transitional provisions (2.5.2.3.).

2.5.2.1. Opt-outs granted to Denmark, the United Kingdom and Ireland by the Treaty of Lisbon

For instruments that do not fall under Schengen cooperation, the justification for the specific system granted to these three countries is the same: in JHA, due to the relationship with national sovereignty, these Member States rejected the communitisation of JHA. These opt-outs already existed for communitised matters under the Amsterdam Treaty (asylum, immigration, border crossings and judicial cooperation in civil matters see above). Since the Lisbon Treaty extended communitisation to cooperation in criminal matters, by the same token it also extended the opt-outs granted to these three Member States. The opt-out system is laid down by Protocol No 21 to the Lisbon Treaty for the United Kingdom and Ireland, and by Protocol No 22 for Denmark (hereinafter Protocols 21 and 22).

While Denmark has a full opt-out, the United Kingdom and Ireland operate on a more ' la carte' basis.

For Denmark, the opt-out is total insofar as, when a new instrument is proposed, Denmark does not have the option of choosing to participate (no opt-in is possible, except in Schengen matters). The only way the instrument could apply to Denmark would be under a specific agreement between the European Union and Denmark. Denmark may, however, decide to change this system at any time. It may abandon the opt-out system in its entirety and join the other 24 Member States (Article 7 of Protocol 22). It may also decide to join the ' la carte' system enjoyed by the United Kingdom and Ireland (Article 8).

The United Kingdom and Ireland benefit from a more flexible system that can be described as an ' la carte' opt-in or opt-out. The basic rule is that they do not participate in instruments adopted since the Lisbon Treaty that relate to cooperation in criminal matters. However, each time a new legislative proposal is filed, these two Member States have an 8-week period to decide on an 'a priori opt in', that is, to decide whether they will take part in that instrument. If they decide to opt in, they assume the benefits (their vote counts) as well as the risks, which may include being in a minority in the final outcome of the negotiations. They cannot withdraw from the instrument at the end of these negotiations. Furthermore, they cannot simply opt in at the start of negotiations and await their outcome. If they are satisfied with the outcome, they can decide on an a posteriori opt in (Article 4 of Protocol 21), which can be notified at any time after the adoption of the instrument, as if part of enhanced cooperation.

2.5.2.2. The complexity associated with Schengen cooperation

As regards Schengen cooperation, we must first remember that not all Member States are bound by Schengen cooperation in the same way. A distinction is drawn between four groups of Member States from this perspective:

EU Member States that are part of the Schengen area: the entire Schengen acquis is fully applicable to the following 21 countries: Germany, Austria, Belgium, Spain, Estonia, Finland, France, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, the Czech Republic, Slovakia, Slovenia and Sweden. Five Member States are missing from this list, namely the United Kingdom, Ireland, Cyprus, Romania and Bulgaria (see below):

The United Kingdom and Ireland are not bound by Schengens integration into the EU. They did, however, request, that without taking part in the Schengen area (the area without checks at internal borders), they take part in some measures of the Schengen acquis, including many of the cooperation in criminal matters measures (see above).

States that have recently joined the EU but that are not yet members of the Schengen area: the opt-out granted to two 'old' EU Member States is exceptional (United Kingdom and Ireland) and this option is not available to new Member States. They must agree to take part in Schengen cooperation and the Schengen area, as well as to the remainder of the EU acquis. However, although EU membership requires immediate participation in a large part of Schengen cooperation, this is not true for is joining the Schengen area, which is subject to supplementary conditions. Currently, Cyprus, Romania and Bulgaria are still in the transition phase and are therefore not yet members of the Schengen area. The same applies to Croatia. Cyprus, Romania and Bulgaria were, however, bound by some provisions of the Schengen acquis as part of the EU acquis upon joining the EU. This part of the acquis is defined in the act of accession to the EU. It covers a large part of the rules of judicial cooperation in criminal matters and police cooperation, with the specific exception of hot pursuit and cross-border surveillance (Articles 40 and 41 of the CISA) and the SIS.

Finally, the case of Denmark is quite specific, as it forms part of the Schengen area. Its status as a Schengen State needed to be reconciled with its opt-out regarding communitised JHA matters. The situation is laid down in Protocol 22 to the Lisbon Treaty. Under its opt-out regarding JHA, Denmark is not directly bound by measures adopted by the EU in this area, even if they fall under the development of the Schengen acquis. Article 4 of Protocol 22 provides that Denmark shall decide on a case-by-case basis whether or not to transpose such Schengen-related measures into national law. Denmark therefore has more opportunity to opt in than it does when the measures are not 'Schengen related'. This Article also provides that 'if Denmark decides not to implement a measure of the Council as referred to in paragraph 1, the Member States bound by that measure and Denmark will consider appropriate measures to be taken'.

Finally, remember that some third countries that are not EU members are Schengen associate states. These are Norway, Iceland, Switzerland and Liechtenstein. They are members of the Schengen area and are bound by the Schengen acquis past and future. They participate in all activities, legislative and otherwise, regarding the implementation and development of the Schengen acquis. All these activities take place in a 'Joint Committee' composed of EU Member States and Schengen partners. In practice, the normal working structure of the Council is used. The working group, committee, Coreper or Council concerned meet to discuss the points that are relevant to Schengen cooperation, as a Joint Committee', and therefore in the presence of the 27 Member States and three Schengen partners.

2.5.2.3. The general opt-out possibility granted to the United Kingdom by Protocol No 36 on transitional provisions While the opt-out laid down by Protocol No 21 concerns both the UK and Ireland and applies to the 'new generation' instruments, that is, those presented after the entry into force of the Lisbon Treaty, the opt-out under Protocol No 36 only applies to the United Kingdom and to previous acts of the EU in the criminal justice sector, namely those adopted before the entry into force of the Lisbon Treaty. Under Article 10(3) of Protocol No 36, the previous acts of the EU in criminal matters will be subject to the new competences of the institutions (European Commission and CJEU) five years after the entry into force of the Lisbon Treaty, i.e. from 1 December 2014. Under Article 10(4) and (5), no later than six months before the expiry of the transitional period, that is, before 1 June 2014, the United Kingdom may notify to the Council that it does not accept these new competences. In this instance, all acts adopted before the entry into force of the Lisbon Treaty shall cease to apply to that State. A possibility of notifying its wish to re-opt into acts that have ceased to apply to it is provided for in Article 10(5). It remains to be seen whether the United Kingdom will actually use the aforesaid opt out and, if necessary, the ability to re-opt in. A lively debate on this subject is underway in the United Kingdom. Despite its complexity, and problems use of such an opt-out would cause, the British Government stated in late 2012 its intention to propose use of this opt-out to the national parliament.2.6. Conclusion

It appears that cooperation between EU Member States in the criminal sector is emblematic of the evolving and dynamic process of constructing a unified Europe:

This is true from an institutional perspective: initially, no competence in criminal matters was provided for in the Treaty of Rome. Cooperation in this area slowly developed outside the Community framework at first, before being integrated into the Treaty on European Union. The intergovernmental approach initially adopted has gradually become tinged with Community shades, with the Lisbon Treaty as the culmination of this evolution, aiming to enshrine the transition to a true communitisation of criminal matters.

It is also true as regards the pursued aims: we have seen the emergence and gradual realisation of the concept of a European criminal law-enforcement area; while and the constitutional treaty, by virtue of the prospect of establishing a European Public Prosecutors Office, has opened up the prospect of truly integrated European institutions.

3. The European criminal law-enforcement area and its components Since the entry into force of the Amsterdam Treaty, achievements in the field of cooperation in criminal matters have increased. These developments are not only impressive in their quantity. They are also impressive in their content: some of them genuinely put the concept of area into practice, beyond traditional concepts of national sovereignty and the principle of criminal territoriality (see above, particularly the principle of mutual recognition).

But strong resistance remains. This resistance centres on two areas: The establishment of a genuine European criminal law-enforcement area: the negotiations and adoption of a number of instruments to develop the European criminal law-enforcement area are proving difficult. This is the case for instruments of mutual recognition, for example. Negotiations have proven very problematic for some of them, even after the entry into force of the Lisbon Treaty. In addition, once adopted, the instruments have also met with resistance regarding their transposition into the national law of the Member States. Many transpositions have been late or incomplete. In this respect, it was hoped that the entry into force of the Lisbon Treaty would improve the situation, in part because action for failure to fulfil an obligation now exists in these areas for the new acts and, from 1 December 2014, for the previous acts.

The balance to be struck between the three key words: freedom, security and justice. Since the Amsterdam Treaty, there has been some diversification of objectives, both in terms of prevention (cf. the establishment of a European crime prevention network), and in the area of victims rights (cf. FD of 15 March 2001 on the standing of victims in criminal proceedings). While under the Amsterdam Treaty this diversification was still extremely timid (the majority of the instruments adopted aim to develop crime-combating measures and to serve the sword approach to criminal law), since the entry into force of the Lisbon Treaty, it has appeared to gain strength, as reflected primarily in the Directive of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, replacing the aforementioned FD and the directives on procedural safeguards for suspects.

In work to establish a European criminal law-enforcement area, four dimensions can be distinguished:

deepening/relaxation of mechanisms of cooperation in criminal matters (3.1.)

establishment of European stakeholders (3.2.)

approximation of criminal laws (3.3)

external dimension of the European criminal law-enforcement area (3.4)

The first two dimensions, namely the development of mechanisms of cooperation in criminal matters and police cooperation, and the establishment of European stakeholders are most relevant to the everyday practice of cooperation in criminal matters within the EU. These will be the focus of the subsequent modules.

The existence of the two other dimensions, however, should not be overlooked. The complementarity of the four dimensions is essential: the complementarity of the approximation of laws and the deepening of cooperation mechanisms, but also the complementarity of the first three dimensions falling within the scope of the internal dimension of the European criminal law-enforcement area with the 4th, external, dimension.

3.1. Deepening/relaxation of mechanisms of cooperation in criminal matters

In this first dimension, a distinction must be drawn between:

a) work aimed at simplifying the mechanisms of judicial cooperation in criminal matters, which has recently taken the form of the mutual recognition procedure, on the one hand,

b) work concerning police cooperation on the other hand.

It should be noted that some mechanisms concern both police cooperation and judicial cooperation in criminal matters, such as the principle of availability (see Module 5).

3.2. Establishment of European stakeholders

The main stakeholders of police cooperation and judicial cooperation in criminal matters are the national police and judicial authorities of the Member States. However, various other European stakeholders or organisations have been established. Their function is to facilitate cooperation in criminal matters (for example, liaison magistrates, the European Judicial Network, Eurojust see below) and police cooperation between EU Member States (for example, Europol see below). They are not European police or judicial institutions in the strict sense: there is currently no European criminal judicial authority or European police authority with enforcement powers throughout the EU. However, the Lisbon Treaty opens up new prospects, such as the strengthening of Europol's powers (Article 88 of the TFEU), the granting of limited enforcement powers to Eurojust (Article 85 of the TFEU), and the even more ambitious prospect of establishing a European Public Prosecutors Office (Article 86 of the TFEU) (see above).3.3. Approximation of laws

Work to approximate the criminal laws of the EU Member States began with the entry into force of the Maastricht Treaty. This was stepped up following the entry into force of the Amsterdam Treaty, which introduced Article 31 e), specifically dedicated to the approximation of laws, into the treaty. This work has been developed further since the entry into force of the Lisbon Treaty, which provides clearer legal bases for this work (Article 82(2) of the TFEU concerning the approximation of procedural criminal laws, and Article 83 concerning the approximation of substantive criminal laws). Until the entry into force of the Lisbon Treaty, work to approximate laws mainly focused on substantive criminal law; criminal procedure was, by contrast, somewhat neglected. Since the entry into force of the Lisbon Treaty, the approximation of substantive laws has continued and the approximation of procedural law has developed. 3.3.1 Approximation of substantive criminal law

The instruments adopted include:

a) a number of conventions adopted under the 3rd pillar of the TEU (Maastricht Treaty), such as that of 26 July 1995 on the protection of the European Communities financial interests and its protocols of 27 September 1996, 29 November 1996, and 19 June 1997 and the Convention of 26 May 1997 on the fight against corruption involving officials of the European Communities or officials of the Member States of the European Union.

b) a number of joint actions adopted under the 3rd pillar of the TEU (Maastricht Treaty), such as the Joint Action of 15 July 1996 concerning action to combat racism and xenophobia, the Joint Action of 21 December 1998 on making it a criminal offence to participate in a criminal organisation in the Member States of the European Union, most of which have since been replaced by Framework Decisions (see below).

c) Framework decisions adopted under the 3rd pillar, as revised by the Treaty of Amsterdam and the Treaty of Nice:

Council Framework Decision 2000/383/JHA of 29 May 2000 on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro, as subsequently amended by Framework Decision 2001/888/JHA of 6 December 2001

Council Framework Decision 2001/413/JHA of 28 May 2001 on combating fraud and counterfeiting of non-cash means of payment

Council Framework Decision 2001/500/JHA of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime

Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism and Council Framework Decision 2008/919/JHA of 28 November 2008 amending the previous Framework Decision

Council Framework Decision 2002/629/JHA of 19 July 2002 on combating trafficking in human beings, replaced by Directive 2011/36/EU (see below).

Council Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence, which should be read in conjunction with Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law: this framework decision was annulled by the CJEU (see above) and 'replaced' at least in part by Directive 2008/99/EC (see below) Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the