The Lisbon Treaty Versus standing still: A view from the third pillar

European Constitutional Law Review

Volumn 5, Issue 1, 2009, Pages 99-116

  Hinarejos, Alicia ^a  

^a BRASENOSE COLLEGE   (United Kingdom)

Author keywords

Arrest Warrant; European Court of Justice; European Union; Framework Decision; International law; Judicial protection; National courts; Supremacy; Third Pillar; Treaty of Lisbon

Indexed keywords

EID: 71949110568     PISSN: 15740196     EISSN: 17445515     Source Type: Journal    
DOI: 10.1017/S1574019609000996     Document Type: Article

References (91)

1. Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, OJ [2007] C 306/1, 17.12.2007.
2. The consolidated version will be used throughout this paper: Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, OJ [2008] C 115/1, 9.5.2008.
3. 'Union law', in the language of the Lisbon Treaty. This label would apply to all law adopted by the EU, and such measures would have the features of current EC law.
4. The majority of the doctrine considers EC law and public international law two separate systems: see, e.g., J.H.H. Weiler and U.R. Haltern, 'Constitutional or International? The Foundations of the Community Legal Order and the Question of Judicial Kompetenz-Kompetenz', in A.M. Slaughter et al. (eds.), The European Courts and National Courts: Doctrine and Jurisprudence (Oxford, Hart 1998) p. 331.
5. De Witte, on the other hand, argues very convincingly that EC law is international law that has developed innovative features: B. de Witte, 'The European Union as an International Legal Experiment', forthcoming EUI Working Paper, on file with the author.
6. As a matter of EU law, i.e., not because such features are accorded to public international law as a matter of national law.
7. P. Eeckhout, 'The European Court of Justice and the "Area of Freedom, Security and Jus tice": Challenges and Problems', in D. ÓKeeffe (ed.), Judicial Review in European Union Law Liber Amicorum in Honour of Lord Slynn of Hadley (London, Kluwer 2000) p. 160.
8. Inter alia, case 11/70 Internationale Handelsgesellschaft mbH v . Einfuhr- und Vorratstelle für Getreide und Futtermittel [1970] ECR 1125.
9. Case 314/85 Foto-Frost v . Hauptzollamt Lübeck-Ost [1987] ECR 04199.
10. Their descriptions are identical, except for the fact that direct effect is excluded for frame work decisions and decisions (Art. 34 TEU).
11. C-105/03 Criminal Proceedings against Maria Pupino [2005] ECR I-5285, where the ECJ stated that the duty of conform interpretation applies in the third pillar.
12. See also E. Spaventa, 'Opening Pandora's Box: Some Reflections on the Constitutional Effects of the Decision in Pupino', 3 EuConst (2007) p. 5
13. E. Spaventa, 'Remembrance of Principles Lost: On Fundamental Rights, the Third Pillar and the Scope of Union Law', 25 Yearbook of European Law (2006) p. 153
14. S. Peers, 'Salvation Outside the Church: Judicial Protection in the Third Pillar after the Pupino and Segi Judgments', 44 Common Market Law Review (2007) p. 885.
15. Note the ambiguous remark of the ECJ in Kadi that the EU and the EC are 'integrated but separate legal orders': Case C-402/05 P Kadi v. Council and Commission, judgment of 3 Sept. 2008 (not yet reported) para. 202.
16. This view presupposes that only 'narrow' direct effect is excluded by Art. 34 TEU, and thus that the so-called exclusionary effect is a manifestation of primacy and not of direct effect. Accord ingly, the primacy of third pillar measures would have consequences that would not be barred by the exclusion of direct effect for this area. The most polemic contribution in this respect has been Lenaerts and Corthaut's compelling submission that the principle of primacy applies already both in the second and in the third pillar: 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.
17. On the relationship between narrow/broad direct effect and primacy in the third pillar, A. Hinarejos, 'On the Legal Effects of Framework Decisions and Decisions: Directly Applicable, Directly Effective, Self-executing, Supreme?', 14 European Law Journal (2008) p. 620.
18. Case C-105/03 Criminal Proceedings against Maria Pupino [2005] ECR I-5285.
19. For further , see supra n. 9.
20. C. Timmermans, 'The Constitutionalisation of the European Union', 21 Yearbook of European Law (2002) p. 1 at p. 10.
21. M. Claes, The National Courts' Mandate in the European Constitution (Oxford, OUP 2006) p. 105.
22. Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest war rant and the surrender procedures between Member States, OJ [2002] L 190/1, 18.7.2002.
23. Inter alia, Bundesverfassungsgericht (German Constitutional Court), Decision of 18 July 2005 (2 BvR 2236/04).
24. Trybunal Konstytucyjny (Polish Constitutional Court), Judgment of 27 April 2005, No. P 1/05.
25. Judgment of the Czech Constitutional Court of 3 May 2006, Pl ÚS 66/04.
26. Supreme Court of Cyprus, judgment of 7 Nov. 2005, App. No. 294/2005.
27. Minister for Justice & Law Reform v. Robert Aaron Anderson [2006] IEHC 95.
28. Office of the King's Prosecutor v. Cando Armas [2005] UKHL 67.
29. Case C-303/05 Advocaten voor de Wereld [2007] ECR I-3633.
30. An extensive recollection of the legislative process can be found in J. Spencer, 'The European Arrest Warrant', 6 Cambridge Yearbook of European Legal Studies (2004) p. 201.
31. For more information on the European Arrest Warrant, see R. Blekxtoon and W. van Ballegooij, Handbook on the European Arrest Warrant (The Hague, T.M.C. Asser Press 2005)
32. J. Wouters and F. Naert, 'Of Arrest Warrants, Terrorist Offences and Extradition Deals: an Appraisal of the Main Criminal Law Measures Against Terrorism after ''11 September''', 41 Common Market Law Review (2004) p. 909.
33. For a comprehensive overview of the problems prompted by the application of the principle of mutual recognition to criminal matters, see V. Mitsilegas, 'The Constitutional Implications of Mutual Recognition in Criminal Matters in the EU', 43 Common Market Law Review (2006) p. 1277.
34. Although not only - in the Czech Republic, for example, the challenge also concerned the abolition of the requirement of double criminality. Concerning the different national prohibitions on the extradition of nationals and the problems they pose for the implementation of the EAW, see J. Komárek, 'European Constitutionalism and the European Arrest Warrant: in Search of the Limits of "Contrapunctual Principles"', 44 Common Market Law Review (2007) p. 9 at p. 14-16
35. for an analysis of this rule in a wider context, see M. Plachta, 'Non-extradition of Nationals: A Never-ending Story?', 13 Emory International Law Review (1999) p. 77.
36. For a comment of this case, A. Hinarejos, 43 Common Market Law Review (2006) p. 583.
37. So that Poland would not breach its EU law obligations, the Polish court delayed the entry into force of its judgment by 18 months, while stating the obligation of the legislature to amend the Constitution in the meantime. For a comment of this case, D. Leczykiewicz, 43 Common Market Law Review (2006) p. 1181.
38. As a result of the Court's judgment, Art. 55 of the Polish Constitution was amended (statutes approved by the Sejm on 8 Sept. 2006, and by the Senate on 14 Sept. 2006). It has been argued that the amended provision can still not be reconciled fully with the content of the EAW Framework Decision: A. Górski et al., 'The European Arrest Warrant (EAW) and its Implementation in the Member States of the European Union. International Research Questionnaire', part of the 'EAW Database' available at: , visited 10 Jan. 2009.
39. For a comment of the Czech case, see Komárek, supra n. 19.
40. Case C-303/05 Advocaten voor de Wereld [2007] ECR I-3633.
41. The claimant also argued that the subject-matter of the framework decision should have been implemented by way of a convention.
42. Although the Court refers to the framework decision as an international agreement, it also wonders in its judgment whether third pillar law has primacy over national law, as a matter of EU law: Leczykiewicz, supra n. 211, p. 1185. The English summary of the judgment may be found at , visited 10 Jan. 2009.
43. Even if the Polish Constitutional Court had wanted to ask the ECJ on this point (something we are not in a position to know), it would have been impossible because Poland has not accepted the jurisdiction of the ECJ in the third pillar of the European Union. See infra n. 43.
44. Judgment of the Czech Constitutional Court of 3 May 2006, Pl ÚS 66/04, para. 58.
45. Ibid., para. 60.
46. Vandamme shows that the Belgian Arbitragehof has consistently merged Belgian and EC/EU legal principles for the purpose of their interpretation. This 'merger' ensures that there is no dis crepancy between EC/EU law and Belgian law: T. Vandamme, 'Prochain Arrêt: La Belgique! Explaining Recent Preliminary of the Belgian Constitutional Court', 4 EuConst (2008) p. 127.
47. For a more general critique of the judgment, see A. Hinarejos, 'Recent Human Rights Devel opments in the EU Courts: The Charter of Fundamental Rights, the European Arrest Warrant and Terror Lists', 7 Human Rights Law Review (2007) p. 793 at p. 795-802
48. D. Leczykiewicz, 'Constitutional Conflicts and the Third Pillar', 33 ELR (2008) p. 230.
49. Advocaten voor de Wereld, supra n. 23, para. 45.
50. The Court had already made this statement in Segi: Case C-355/04 P Segi and others v. Council [2007] ECR I-1657, para. 51.
51. D. Sarmiento, 'European Union: The European Arrest Warrant and the Quest for Constitu tional Coherence', 6 International Journal of Constitutional Law (2008) p. 171 at p. 180-181.
52. Spaventa has also argued for the primacy of fundamental rights as general principles in the third pillar: Spaventa 2006, supra n. 9, p. 170-172.
53. Claes, supra n. 13, p. 167-168.
54. Within the first pillar this control extends not only to cases where the member state is imple menting EC law, but also where it is derogating from it: see, respectively, Cases 5/88 Wachauf [1989] ECR 2609.
55. and C-260/89 ERT/DEP [1991] ECR I-2925.
56. See also on this point D. Wyatt, 'New Legal Order, or Old', 7 European Law Review (1982) p. 147
57. Claes, supra n. 33; de Witte, supra n. 3.
58. Case 6/64 Costa v. ENEL [1964] ECR 585, where the ECJ famously first declared the pri macy of EC law, and Case 106/77 Amministrazione delle Finanze dello Stato v. Simmenthal [1978] ECR 629, where the ECJ stated that national courts have a duty to disapply all national law that is incon sistent with EC law.
59. An autonomous legal system that demands consistency; a Community of unlimited duration with its own institutions and legal personality, resulting from a limitation of sovereignty/transfer of powers from the member states.
60. In some countries, it is already the case that international treaties have primacy over second ary legislation, but not over the national constitution. In these cases, the change caused by the move from classic international law to first pillar law would be to make third pillar law superior to the national constitution (at least from the point of view of EU law).
61. Of course, the extent of the national court's powers depends on national law.
62. Art. 35(6) TEU: direct actions challenging the validity of framework decisions and decisions may only be brought by the Commission and the member states. Since Segi, this is to be interpreted to apply to common positions that have legal effects on third parties: Case C-355/04 P Segi and others v. Council [2007] ECR I-1657, paras. 52-56.
63. For an analysis of the case: Peers, supra n. 9, p. 885-902.
64. Hinarejos, supra n. 30, p. 809-811.
65. Art. 35(1) TEU.
66. With exceptions: according to Art. 35(5) TEU, the Court cannot review the validity or pro portionality of operations carried out by the police or law enforcement services of a member state and of decisions relating to the maintenance of law and order and the safeguarding of internal security. For a critical view of the judicial arrangements in the third pillar, see A. Albors-Llorens, 'Changes in the jurisdiction of the European Court of Justice under the Treaty of Amsterdam', 35 Common Market Law Review (1998) p. 1273, 1278.
67. Peers, supra n. 9.
68. S. Douglas-Scott, 'The Rule of Law in the European Union - putting the security into the EU's Area of Freedom Security and Justice', 29 European Law Review (2004) p. 219.
69. At the time of writing, all member states of the Union of 15 have accepted the jurisdiction of the Court with the exception of Denmark, Ireland and the UK: OJ [1999] C 120/24, 20.5.2005.
70. Of the ten member states that acceded in 2004, only the Czech Republic and Hungary have accepted the jurisdiction of the Court, OJ [2005] L 327/19, 20.12.2008.
71. Of the fourteen member states that have accepted the Court's jurisdiction, all except Spain and Hungary permit all national courts to ask for a preliminary ruling. Nine member states have reserved the right to require their final courts to refer (the exceptions are Greece, Portugal, Finland, Sweden and Hungary). S. Peers, EU Justice and Home Affairs Law (Oxford, OUP 2006) p. 41.
72. See also A. Arnull, The European Union and its Court of Justice, 2nd edn. (Oxford, OUP 2006) p. 133.
73. There is no equivalent provision to Arts. 226-228 EC in the TEU: only a mechanism of inter state and Commission-state dispute settlement, typical of a public international law setting (Art. 35(7) TEU).
74. Confirmed by the CFI and the ECJ in Case T-338/02 Segi and others v. Council [2004] ECR II-1647, para. 40
75. and Case C-355/04 P Segi and others v. Council [2007] ECR I-1657, paras. 46-48, respectively.
76. Case 6/64 Costa v. ENEL [1964] ECR 585, 589.
77. Only the ECJ is competent to assess the validity of an EU measure and annul it: Case 314/85 Foto-Frost v. Hauptzollamt Lübeck-Ost [1987] ECR 04199.
78. This would be a grave flaw in the system of judicial protection of the European Union. The European Court of Human Rights, for one, would be likely to consider that the EU does not offer equivalent protection to that of the ECHR. On the equivalent protection doctrine and the EC, see Case Bosphorus Hava Yollari Turizm ve Ticaret Anonim Şirketi v. Ireland, 42 EHRR (2006) p. 1 and its comment in A. Hinarejos, 'Bosphorus v. Ireland and the Protection of Fundamental Rights in Europe', 31 European Law Review (2006) p. 251, with further .
79. A.G. Mengozzi argued in his Opinion in Segi that Foto-Frost should not apply in the third pillar because of the need to offer proper judicial protection. Accordingly, national courts should be allowed to assess the validity of an EU measure, albeit applying EU standards rather than national ones. It is submitted that this way of dealing with the problem would still be a source of inconsistency, although admittedly far less than if national courts applied their own national standards. In practice, it is arguably also problematic to expect courts to apply EU standards only and not national ones in this sort of situation. Opinion of A.G. Mengozzi delivered on 26 Oct. 2006, Case C-355/04 P Segi and others v. Council [2007] ECR I-1657.
80. Again, I am adopting here a narrow definition of direct effect, i.e., assuming that the so-called exclusionary effect is a manifestation of primacy and not of direct effect (and thus not expressly prohibited by Art. 34 TEU). On these distinctions and their significance for the third pillar, see Hinarejos, supra n. 11.
81. BVerfG Decision of 12 Oct.1993 (cases 2 BvR 2134/92 and 2159/92), 89 BVerfGE 155; [1994] 1 CMLR 57.
82. Ibid., para. 14.
83. Ibid., para. 17 [emphasis added].
84. Ibid., para. 22.
85. Ibid., para. 22.
86. Ibid., para. 18.
87. A. Peters, 'The Bananas Decision 2000 of the German Federal Constitutional Court: To wards Reconciliation with the ECJ as regards Fundamental Rights Protection in Europe', 43 German Yearbook of International Law (2000) p. 276 at p. 281.
88. Incidentally, this would also mean that the Foto-Frost rule would apply in the third pillar. Un der these circumstances, it would be unproblematic.
89. Under Arts. 263 and 267 TFEU, equivalent to the current Arts. 230 and 234 EC, respectively. An exception to the jurisdiction of the Court in the third pillar remains in Art. 276 TFEU, as regards operations carried out by the police or other law-enforcement services of a member state or the exercise of the responsibilities incumbent upon member states with regard to the maintenance of law and order and the safeguarding of internal security. This provision is the direct succesor of Arts. 35(5) TEU and 68(2) EC.
90. There is, of course, the matter of transitional measures in the Lisbon Treaty. According to Art. 10 of Protocol No. 36, third pillar measures that are already in place before the Treaty enters into force will still be reviewed by the ECJ under the current (pre-Lisbon) arrangements. This will last five years and is acceptable as long as their legal effects are still those of public international law measures - which, it is submitted, is the interpretation that should be given to Art. 9 of the Proto col.
91. Another way would be for the Council to exercise its power under the existing Art. 42 TEU to transfer the third pillar into Title I V, Part Three of the EC Treaty and then to extend the 'normal' jurisdiction of the Court to this Title, abolishing the restrictions contained in Art. 68 EC. The necessary political will, however, seems to be lacking - the Commission's proposals to this effect have been unsuccessful: 'Communication from the Commission to the European Council. A Citizens' Agenda: Delivering Results for Europe', Brussels, 10.5.2006, COM(2006) 211 final; 'Communication from the Commission to the European Parliament, the Council, the European Parliament, the Council, the European Economic and Social Committee, the Committee of the regions and the