Opening Pandora's box: Some reflections on the constitutional effects of the decision in Pupino

European Constitutional Law Review

Volumn 3, Issue 1, 2007, Pages 5-24

  Spaventa, Eleanor ^a  

^a DURHAM UNIVERSITY   (United Kingdom)

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EID: 34247550085     PISSN: 15740196     EISSN: 17445515     Source Type: Journal    
DOI: 10.1017/S1574019607000053     Document Type: Article

References (61)

1. See generally P.J. Kuijper, 'The Evolution of the Third Pillar from Maastricht to the European Constitution: Institutional Aspects', 41 CMLRev. (2004) p. 609
2. S. Peers, EU Justice and Home Affairs Law (London, Longman 2000)
3. N. Walker (ed.), Europe's Area of Freedom, Security and Justice (Oxford, Oxford University Press 2004).
4. See E. Spaventa, 'Fundamental what? The difficult relationship between foreign policy and fundamental rights', in M. Cremona and B. de Witte (eds.), EU Foreign Relations law: Constitutional Fundamentals (Oxford, Hart Publishing, forthcoming 2007).
5. Art. 39(1) EU; according to the second paragraph of that article, the Presidency and the Commission must regularly inform Parliament of discussions in areas covered by Title VI.
6. Art. 34(2)(d).
7. Arts. 29, last indent, and 31(1)(e) EU.
8. Art. 34(c) EU.
9. Even in the first pillar, litigation between member states is a rare occurrence. Given the sensitivity of the subject-matter covered by the third pillar, it is an even more unlikely event here.
10. At the time of writing, and to the best of the author's knowledge, all of the EU 15, except Denmark, Ireland and the United Kingdom, have made a declaration pursuant to Art. 35 EU. Of the EU 10, only the Czech Republic and Hungary have made such a declaration.
11. Art. 35 EU; Spain and Hungary have restricted the possibility to make preliminary references to its courts of last instance, whilst the other member states have allowed all of their courts to make preliminary references.
12. Belgium, Spain, Italy, Luxembourg, the Netherlands, Austria, the Czech Republic, Germany, Greece, France, Portugal, Finland and Sweden have reserved the right to make it compulsory for the courts of last instance to refer the matter to the ECJ; see Council information concerning the declarations by the French Republic and the Republic of Hungary on their acceptance of the jurisdiction of the Court of justice to give preliminary rulings on the acts referred to in Art. 35 of the Treaty on European Union, OJ [2005] L 327/29.
13. ECJ 16 June 2005, Case C-105/03, Maria Pupino.
14. Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings, OJ [2001] L 82/1. On Pupino, see M. Fletcher, 'Extending "indirect effect" to the third pillar: the significance of Pupino?', 30 European Law Review (2005) p. 862
15. J. Spencer, 'Child witnesses and the European Union', 64 Cambridge Law Journal (2005) p. 569
16. R. Calvano 'Il caso Pupino: Ovvero dell'alterazione per via giudiziaria dei rapporti fra diritto interno (precessuale penale), diritto UE e diritto comunitario' [The Pupino ruling: Or on the judicial alteration of the relationship between domestic (criminal procedural) law, EU law and Community law], to be published in Giurisprudenza Costituzionale, available on .
17. And more generally, M. Ross, 'Effectiveness in the European legal order(s): Beyond supremacy to constitutional proportionality?', 31 European Law Review (2006) p. 476
18. K. Lenaerts and T Corthaut, 'Of birds and hedges: The role of primacy in invoking norms of EU law', 31 European Law Review (2006) p. 287.
19. Corte Costituzionale, Sentenza 529, 18 Dec. 2002, available on . The Constitutional Court also debated whether the court's interpretation of the rules of procedure at stake was actually correct, or whether a more generous interpretation was possible.
20. Consistent case-law starting with ECJ 10 April 1984, Case 14/83, Von Colson and Kamann. The UK Government also raised the issue as to whether the principle of supremacy applies to the third Pillar; it conceded however that the duty of consistent interpretation might arise as a matter of international law. We are not going to deal with the principle of supremacy since that would require a lengthy investigation as to what that principle truly entails. The present writer is of the opinion that supremacy applies since the principle of consistent interpretation is a manifestation of that principle. However, the latter view is by no means uncontroversial. In this respect, see Dougan, 'When Worlds Collide. Competing Visions of the Relationship between Direct Effect and Supremacy', to be published soon.
21. Cf. Art. 249(3) EC.
22. Cf. ECJ 8 Oct. 1987, Case C-80/86, Kolpinghuis Nijmegen
23. ECJ 26 Sept. 1996, Case C-168/95 Criminal proceedings against Arcaro
24. See also ECJ 3 May 2005, Case C-387/02, Berlusconi and others
25. ECJ 5 Oct. 2004, Case C-397/01, Pfeiffer and others.
26. Exception given for the principle of direct effect for framework decisions and decisions which has said above is explicitly excluded by Art. 34 EU.
27. ECJ 3 May 2005, Case C-387/02, Berlusconi and others.
28. On this point see also Calvano, supra n. 12.
29. First Companies Directive 68/151, OJ [1968] L 65/8
30. Fourth Companies Directive 78/660, OJ [1978] L 222/11
31. Seventh Companies Directive 83/349, OJ [1983] L 193/1.
32. At para. 46 of the ruling the Court held that the rules at issue did not concern the 'criminal liability of the person concerned but the conduct of the proceedings and the means to take evidence'.
33. See also Corte di Cassazione 15 May 2006, sentenza no. 1654, summary reported in Reflets (2/2006), p. 21, also available on
34. and Calvano, supra n. 12.
35. Cf., e.g., ECtHR, Coëme, and Others v. Belgium (Appl. Nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96), judgment of 22/06/2000, especially paras. 142 et seq. on the applicability of Art. 7 ECHR to rules concerning limitation periods.
36. ECJ 13 Nov. 1990, Case C-106/89, Marleasing v. Comercial Internacional de Alimentación.
37. E. Spaventa, 'Remembrance of Principles Lost: On Fundamental Rights, the Third Pillar and the Scope of Union law', 25 Yearbook of European Law 2006 (Oxford, Oxford University Press, forthcoming 2007).
38. And Art. II-111, Constitutional Treaty (OJ [2004], C 310/1). The Charter is not 'legally binding' but it is clearly legally relevant; it has now been referred to by the Court, ECJ 27 June 2006, Case C-540/03, European Parliament v. Council, para. 38.
39. ECJ 13 July 1989, Case C-5/88, Hubert Wachauf v. Bundesamt für Ernährung und Forstwirtschaft. The national legislature's discretion also is constrained as a matter of national law by national constitutional rights; and, as a matter of international law, by the European Convention on Human Rights.
40. ECJ 11 July 2002, Case C-60/00, Mary Carpenter v. Secretary of State for the Home Department.
41. This is consistent case-law, e.g., see ECJ 18 June 1991, Case C-260/89, ERT v. DEP.
42. The confusion arises from the Wachauf formula, which seemed to indicate that in cases of implementation, the national court's duty was limited to a duty of consistent interpretation; however, later cases suggested that the fundamental rights obligation could be directly effective also in relation to implementation of non-directly effective Community law; see, e.g., ECJ 17 Dec. 1998, Case C-2/97, Societá Italiana Petroli Spa (IP) v. Borsana Srl
43. ECJ 12 Dec. 2002, Case C-442/00, Angel Rodríguez Caballero v. Fondo de Garancía Salaríal (Fogasa)\
44. ECJ 10 July 2003, Joined Cases C-20/00 and C-64/00, Booker Aquaculture ltd and Hydro Seafood GSP Ltd v. The Scottish Ministers.
45. ECJ 22 Nov. 2005, Case C-144/04, Mangold.
46. The case has not been welcomed by the scholarship because it introduces an element of legal uncertainty both in the identification of the general principles, and for the effect it has on private parties; see e.g., February 2006 editorials in the Common Market Law Review and European Law Review.
47. Directive 2000/78 establishing a general framework for equal treatment in employment and occupation, OJ [2000] L 303/13.
48. Council Directive 1999/70/EC concerning the framework agreement on fixed term-work concluded by ETUC, UNICE and CEEP, OJ [1999] L 175/43.
49. The situation is much more complex in relation to directives providing for minimum harmonization; for an excellent critical analysis see F. De Cecco, 'Room to move? Minimum harmonization and fundamental rights', 43 CMLRev. (2003) p. 9.
50. E.g., see the German Constitutional Court Bundesverfassungsgericht, 18/7/05, 2 BvR 2236/04; as reported of on the incompatibility with the German Constitution of the law implementing the Framework decision on the European Arrest Warrant.
51. For a more extensive analysis of this issue, see Spaventa, supra n. 25.
52. Of course there is an open issue as to whether the principle of supremacy applies to the Union as well as to the Community; see D. Curtin and I. Dekker, 'The Constitutional Structure of the European Union: Some Reflections on Vertical Unity-in-Diversity', in P. Beaumont et al. (eds.), Convergence and Divergence in European Public Law (Oxford, Hart Publishing 2001) esp. at p. 68-69.
53. Cf. the German Constitutional Court Bundesverfassungsgericht, 18/7/05, 2 BvR 2236/04; as reported on on the incompatibility with the German Constitution of the law implementing the Framework decision on the European Arrest Warrant.
54. ECJ 19 Nov. 1991, Case C-6/90, Francovich and Bonifaci v. Italy.
55. The Court in Pupino uses a slightly different and self-referential reasoning by focusing on the fact that if individuals were not to be able to rely on the duty of consistent interpretation then the Court jurisdiction in the preliminary ruling procedure would be deprived of most of its useful effect.
56. Council Framework Decision 2002/475/JHA on combating terrorism, OJ [2002] L 164/3.
57. ECJ 30 Sept. 2003, Case C-224/01 Köbler v. Austria.
58. ECJ 15 Jan. 1998, Case C-15/96 Kalliope Schöning-Kougebetopoulou Freie und Hansestadt Hamburg.
59. This is even more so the case after the Court of First Instance, 21 Sept. 2005, Case T-306/01, Yusuf et al. v. Council and Commission,
60. and Case T-315/01 Kadi v. Council and Commission, has accepted the possibility to complement the passerelle clause with a 308 EC legal basis to provide for Community competence in relation to sanctions against individuals.
61. Opinion 26 Oct. 2006, Joined Cases C-354/04 P and C-355/04 P, Gestoras Pro Amnistía et al. and Segi et al.