The external dimension of EU action in criminal matters

European Foreign Affairs Review

Volumn 12, Issue 4, 2007, Pages 457-497

  Mitsilegas, Valsamis ^a  

^a QUEEN MARY UNIVERSITY OF LONDON   (United Kingdom)

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EID: 85044896447     PISSN: 13846299     EISSN: 18758223     Source Type: Journal    
DOI: 10.54648/eerr2007041     Document Type: Article

References (107)

1. COM (2005) 491 final, Brussels, 12 October 2005.
2. Council doc. 15446/05, Brussels, 6 December 2005.
3. The report on the implementation of the Justice and Home Affairs external strategy further refers to the development of geographical (but also thematic) priorities for external action (Council document 15001/06, Brussels, 20 November 2006).
4. On the concept of the Union as 'rule generator', see M. Cremona, 'The Union as a Global Actor: Roles, Models and Identity' (2004) 41 CML Rev., pp. 557-558.
5. On conditionality and enlargement, see K.E. Smith, 'The Evolution and Application of EU Membership Conditionality' in M. Cremona (ed.), The Enlargement of the European Union (OUP, Oxford, 2003), pp. 105-140
6. see also F. Schimmelfennig and U. Sedelmeier, 'Governance by Conditionality: EU Rule Transfer to the Candidate Countries of Central and Eastern Europe' (2004) 11 Journal of European Public Policy, pp. 661-679.
7. On the link between conditionality and trust see M. Cremona, 'Introduction' in Cremona, note 6 above, pp. 5-6.
8. For an overview, see Ch. Hillion, 'The Copenhagen Criteria and their Progeny' in Ch. Hillion (ed.), EU Enlargement: A Legal Approach (Hart, Oxford, 2004), pp. 1-22.
9. See European Commission, White Paper: Preparation of the Associated Countries of Central and Eastern Europe for integration into the internal market of the Union, COM (95) 163 final.
10. For further details, see V. Mitsilegas, Money Laundering Counter-Measures in the European Union (Kluwer Law International, The Hague, 2003), pp. 79-80.
11. See V. Mitsilegas, J. Monar and W. Rees, The European Union and Internal Security (Palgrave, Basingstoke, 2003), pp. 126-127.
12. For an overview of crime control features under communism, see A. Fijakowski, 'The Paradoxical Nature of Crime Control in Post-Communist Europe' (2007) European Journal of Crime, Criminal Law and Criminal Justice, pp. 155-172.
13. On the implementation challenges, see K. Henderson, 'Perceptions of Internal Security Issues in the New Member States' in K. Henderson (ed.), The Area of Freedom, Security and Justice in the Enlarged European Union (Palgrave, Basingstoke, 2004), p. 15.
14. For a detailed overview of the various stages in the accession negotiations, see W. de Lobkowitz, 'La Sécurité Interieure de l'Union Européenne Élargie' in G. de Kerchove and A. Weyembergh (eds), Sécurité et Justice: Enjeu de la Politique Extérieure de l'Union Européenne (Editions de l'Université de Bruxelles, Brussels, 2003), pp. 31-65.
15. On the issue of trust in the context of mutual recognition in criminal matters, see V. Mitsilegas, 'Trust-Building Measures in the European Judicial Area in Criminal Matters: Issues of Competence, Legitimacy and Inter-institutional Balance' in S. Carrera and T. Balzacq, Security versus Freedom? A Challenge for Europe's Future (Ashgate, Aldershot, 2006), pp. 279-289.
16. At the time of writing 'new' Member States were still not full Schengen members, with the target date of membership being constantly postponed. On the sensitivity of Schengen membership for newcomers see Mitsilegas et al., note 10 above, and J. Monar, 'Enlargement-Related Diversity in EU Justice and Home Affairs: Challenges, Dimensions and Management Instruments', Working Document W112, Dutch Scientific Council for Government Policy, 2000.
17. Art. 39 of the Act of Accession. For an overview, see Ch. Hillion, 'The European Union is Dead. Long Live the European Union⋯ A Commentary on the Treaty of Accession 2003' (2004) 29 European Law Review, pp. 605-607. Hillion notes the role of the Commission in this context, notwithstanding the fact that mutual recognition in criminal matters is a third- and not a first - pillar issue.
18. It has been demonstrated that the safeguard clause has had an impact on the outcome of the Polish Constitutional Tribunal judgment: see A. Lazowski, 'Constitutional Tribunal on the Surrender of Polish Citizens under the European Arrest Warrant. Decision of 27 April 2005' (2005) 1 European Constitutional Law Review, p. 580.
19. For an overview of the case law of various courts, see V. Mitsilegas, 'The Constitutional Implications of Mutual Recognition in Criminal Matters in the EU' (2006) 43 CML Rev., pp. 1277-1311
20. see also (on the Czech Republic), I. Slosarcik, 'Czech Republic and the European Union Law in 2004-2006' (2007) 13 European Public Law, pp. 374-376.
21. For a background, See A. Lazowski, 'And Then They Were Twenty-Seven⋯ A Legal Appraisal of the Sixth Accession Treaty' (2007) CML Rev., pp. 401-430.
22. European Commission, Monitoring Report on the state of preparedness for EU membership of Bulgaria and Romania, COM (2006) 549 final, Brussels, 26 September 2006, pp. 4-5.
23. Art. 2 of both decisions. The Commission has already published its first two progress reports: COM (2007) 377 final (on Bulgaria), and COM (2007) 378 final (on Romania), both on 27 June 2007.
24. COM (2003) 104 final, Brussels, 11 March 2003.
25. Communication from the Commission, European Neighbourhood Policy: Strategy Paper, COM (2004) 373 final, Brussels, 12 May 2004.
26. Council doc. 11016/07, Brussels, 19 June 2007, endorsed in the GAERC Council of 18 June 2007 (doc. 10657/07, Presse 138).
27. On the various action plans for each of the ENP countries, see .
28. M. Cremona and Ch. Hillion, 'L'Union fait la force? Potential and Limitations of the European Neighbourhood Policy as an Integrated EU Foreign and Security Policy', EUI Working Paper LAW, No. 2006/39.
29. A Secure Europe in a Better World: European Security Strategy, Brussels, 12 December 2003. The Strategy includes a separate section on 'building security in our neighbourhood'.
30. See COM (2004) 373 and GAERC Council of 13-14 December 2004.
31. OJ C77, 29 March 2003, p. 1. A revised action plan was endorsed by the EU-Ukraine Co-operation Council on 18 June 2007: see Council doc. 11003/07 (Presse 142).
32. Cremona and Hillion, note 41 above, p. 17.
33. Another factor that may hinder reform is the non-legally binding character of the ENP action plans. However, at least as regards Ukraine, the Council is in the process of negotiating a new, 'enhanced agreement', which would be legally binding. For details see Ch. Hillion, 'Mapping-Out the New Contractual Relations between the European Union and Its Neighbours: Learning from the EU-Ukraine "Enhanced Agreement' (2007) 12 EFA Rev., pp. 169-182.
34. For the Russian stance see L. Delcour, 'Does the European Neighbourhood Policy Make a Difference? Policy Patterns and Reception in Ukraine and Russia' (2007) 7 European Political Economy Review, pp. 118-155
35. EU-Russia Relations, May 2007, in .
36. Council document 15534/1/06 REV 1, Brussels, 28 November 2006.
37. The same year saw also the launch of the Stability Pact for Southern Europe. The Pact is an OSCE (rather than an EU) instrument but the EU has played an important part in its development. The issues of democratization and human rights and security (including justice and home affairs) constitute two of its three specific themes (the other being economic reconstruction and development). See F. Trauner, 'EU Justice and Home Affairs Strategy in the Western Balkans', CEPS Working Document, No. 259, available under .
38. Council document 9272/06, Brussels, 12 May 2006.
39. The first report was submitted at the end of 2006: see Council document 15736/06, Brussels, 24 November 2006.
40. For views in favour of some sort of legal personality of the Union see inter alia A. Dashwood, 'External Relations Provisions of the Amsterdam Treaty' in D. O'Keeffe and P. Twomey (eds), Legal Issues of the Amsterdam Treaty (Hart, Oxford, 1999), pp. 219-220
41. P. Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (OUP, Oxford, 2004), in particular p. 155.
42. For the contrary view, see E. Denza, The Intergovernmental Pillars of the European Union (OUP, Oxford, 2002), pp. 174-176.
43. For an analysis of the relevant treaty provisions, see further R.A. Wessel, 'Revisiting the International Legal Status of the EU' (2000) 5 EFA Rev., pp. 507-537
44. N. Neuwahl, 'Legal Personality of the European Union: International and Institutional Aspects' in V. Kronenberger (ed.), The European Union and the International Legal Order: Discord or Harmony? (Asser Press, The Hague, 2001), pp. 3-22.
45. See in particular Neuwahl, ibid. See also Th. Georgopoulos, 'What Kind of Treaty-Making Power for the EU? Constitutional Problems Related to the Conclusion of the EU-US Agreements on Extradition and Mutual Legal Assistance' (2005) 30 European Law Review, pp. 191-192.
46. See J. Monar, 'The EU as an International Actor in the Domain of Justice and Home Affairs' (2003) 9 EFA Rev., pp. 400-403.
47. See also S. Marquardt, 'La Capacité de l'Union Européenne de Conclure des Accords Internationaux dans le Domaine de la Coopération Policiere et Judiciaire en Matiere Pénale' in de Kerchove and Weyembergh, note 18 above. pp. 185-187.
48. Note that a number of agreements have also been concluded between the Union and European states which are associated with Schengen (including Switzerland, Norway and Iceland). See recently the agreement between the Union and Iceland and Norway on a surrender procedure between the parties (OJ L292, 21 October 2006, p. 1). This may include cross-pillar agreements (see Switzerland). For an analysis, see N. Wichmann, 'The Participation of the Schengen Associates: Inside or Outside?' (2006) 11 EFA Rev., pp. 87-107.
49. For details, See V. Mitsilegas, 'The New EU-USA Cooperation on Extradition, Mutual Legal Assistance and the Exchange of Police Data' (2003) 8 EFA Rev., pp. 515-536.
50. See Mitsilegas, note 67 above. See also House of Lords European Union Committee, 'EU-US Agreements on Extradition and Mutual Legal Assistance', 38th Report, session 2002-2003, HL Paper 135.
51. Agreement on extradition between the European Union and the United States of America, OJ L181, 19 July 2003, p. 27
52. Agreement on mutual legal assistance between the European Union and the United States of America, OJ L181, 19 July 2003, p. 34.
53. See also the Council Decision, on the basis of Arts 24 and 38 TEU, concerning the signature of these agreements: OJ L181, 19 July 2003, p. 25.
54. Art. 17(2) of the extradition agreement provides for 'consultations' between the parties 'where the constitutional principles of, or final judicial decisions binding upon, the requested State may pose an impediment to fulfilment of its obligation to extradite'. The reference to 'final binding judicial decisions' was added at the very last stages of negotiations and may be read as covering decisions by the Luxembourg and Strasbourg Courts: see the address by Mr Petsalnikos, then minister of justice of Greece, the holder of the EU Presidency a the time of the signature of the agreements, to the European Parliament Civil Liberties Committee, 10 June 2003, available at .
55. For a defence of the agreements, see G. Stessens, 'The EU-US Agreements on Extradition and Mutual Legal Assistance: How to Bridge Different Approaches' in de Kerchove and Weyembergh, note 18 above, pp. 263-274.
56. On the US response regarding border security see A. Ceyhan, 'Securité, frontieres et surveillance aux États Unis apres le 11 Septembre 2001' (2004) 53 Cultures et Conflits, downloaded from .
57. For details, See V. Mitsilegas, 'Contrôle des étrangers, des passagers, des citoyens: Surveillance et anti-terrorisme' (2005) 58 Cultures et Conflits, pp. 155-182.
58. Communication from the Commission to the Council and the Parliament, Transfer of Air Passenger Name Record (PNR) Data: A Global EU Approach, COM (2003) 826 final, Brussels, 16 December 2003, p. 5.
59. Opinion 2/2004 on the Adequate Protection of Personal Data contained in the PNR of Air Passengers to be transferred to the United States' Bureau of Customs and Border Protection (US CBP), adopted on 29 January 2004, doc. 10019/04/EN, WP 87.
60. Art. 25(6) of the 1995 data protection directive (OJ L281, 23 November 1995 p. 31).
61. Commission Decision on the adequate protection of personal data contained in the Passenger Name Record of air passengers transferred to the United States' Bureau of Customs and Border Protection, OJ L235, 6 July 2004, p. 11 (including an Annex with the relevant US Undertakings); and Council Decision on the conclusion of an Agreement between the European Community and the United States of America on the processing and transfer of PNR data by Air Carriers to the US Department of Homeland Security, Bureau of Customs and Border Protection, OJ L183, 20 May 2004, p. 83 (the agreement is annexed to the decision).
62. It is noteworthy that the Court accepted the intervention of the European data protection supervisor, in spite of the fact that the latter is not an EU institution founded directly by the treaty but a body created by the Council on the basis of Art. 286 TEC: see V. Michel, 'Case Note' (2006) 42 Revue Trimestrielle du Droit Européen, pp. 550-551.
63. Joined cases C-317/04 and C-318/04, European Parliament v. Council, 30 May 2006, [2006] ECR I-4721.
64. For details, See V. Mitsilegas, 'Constitutional Principles of the European Community and European Criminal Law' (2006) 8 European Journal of Law Reform, pp. 301-324.
65. By excluding any first pillar application on the matter, the Court departed somewhat from the AG approach. The AG examined the possibility of a first pillar incidence, and took the view that the first pillar objective of preventing distortions of competition, 'to the extent that it is actually pursued by the Council', is incidental in character to the two main objectives of combating terrorism and other serious crimes, and protecting passengers' personal data (para. 147). For a discussion of possibilities of bringing security-based legislation under the first pillar under this or other constructions, see G. Gilmore and J. Rijpma, 'Case Note' (2007) 44 CML Rev., pp. 1092-1096.
66. This has been criticized by Cremona: M. Cremona, 'External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Effects of International Law', EUI Working Paper LAW, No. 2006/22.
67. On this point, see S. Adam, 'Quelques Réflexions sur les Relations entre les Procédures a priori et a posteriori d'Examen de Compatibilité des Accords Communautaires suite á l'Affaire dite de l'Accord PNR' (2006) 42 Cahiers de Droit Européen, p. 669. By excluding any first pillar incidence, the Court excluded both the coexistence of a counterterrorism and a data protection objective, but also the coexistence of a counterterrorism and internal market objective.
68. Council Dir 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger data [2004] OJ L 261/24, 6 August 2004.
69. In particular by the UK Government: see V. Mitsilegas, 'Border Security in the European Union: Towards Centralised Controls and Maximum Surveillance' in E. Guild, H. Toner and A. Baldaccini (eds), EU Immigration and Asylum Law and Policy (Hart, Oxford, 2007). The UK position - that passenger data transfer by the private sector can be both a first pillar and a security matter - is also reflected in its intervention in support of the Council in the PNR case (see in particular the AG opinion, para. 80).
70. See Mitsilegas, ibid. See also House of Lords EU Select Committee, 'Fighting illegal immigration: should carriers carry the burden?', 5th Report, Session 2003-2004, HL Paper 29.
71. Council Decision on the conclusion of an Agreement between the European Community and the Government of Canada on the processing of API/PNR data, OJ L82, 21 March 2006, p. 14 (the agreement is annexed to the decision).
72. See also Adam, note 115 above, who notes that the status of this agreement is uncertain (p. 697). See also House of Lords European Union Committee, 'The EU/US Passenger Name Record (PNR) Agreement', 21st Report, session 2006-2007, HL Paper 108.
73. Similar inconsistencies, in the light of the PNR judgment, can be discerned with regard to two further measures: as regards the use of information, a directive on data retention has been adopted under the first pillar, although in the author's view its main objective is counterterrorism (OJ 2006, L105, 13 April 2006, p. 54). The legality of the adoption of the directive is currently subject to a challenge which is pending before the ECJ (Case C-301/06, Ireland v. Council and Parliament).
74. With regard to border management (and external relations), an - also pending - action for annulment has been brought by the European Parliament against a Commission Decision approving a Philippine Border Management Project (Case C-403-05, Parliament v. Commission).
75. See the reply by the Council Presidency and the Commission, OJ C259, 27 October 2006, p. 4. According to the reply, The EU institutions 'took note' of the US letter, adding that 'the commitments of DHS to continue to implement the Undertakings allow the EU to deem that, for purposes of the implementation of the Agreement, it ensures an adequate level of protection'.
76. European Parliament Resolution of 12 July 2007 on the PNR agreement with the USA, P6-TA-PROV (2007)0347, point 20.
77. Letter of 27 June 2007 to Wolfgang Schauble, available under .
78. Council document 11493/07, Brussels, 18 July 2007.
79. 'EU agrees deal with US on data grabs', available under , 6 October 2006.
80. Europol Convention, Art. 26(1) (OJ C316, 27 November 1995)
81. Eurojust Decision, Art. 1 (OJ L 63, 6 March 2002, 1).
82. Art. 18 of the Europol Convention allows Europol to communicate personal data to third states and bodies if it is necessary for preventing and combating criminal offences falling within Europol's remit and the third state or body offers an adequate level of data protection. On the basis of Art. 18(2), the Council adopted in 1999 an Act setting out the rules governing the transmission of personal data to third states and bodies. This provides a procedure for the negotiation and conclusion of agreements between Europol and third countries. The agreements are negotiated by the director of Europol and conclusion is not permitted prior to the Europol joint supervisory body on data protection giving a non-binding opinion. The Act was amended in 2002 (OJ C76, 27 March 2002, p. 1).
83. Art. 27 of the Eurojust decision provides for a similar mechanism. Its rules were supplemented by the Eurojust rules of procedure on the processing and protection of personal data (OJ C68, 19 March 2005, p. 1). Art. 28(1) of the rules states that Eurojust 'shall endeavour to put in place cooperation agreements containing suitable provisions regarding exchange of personal data with all partners with whom exchanges of data take place on a regular basis'. Art. 28(2) adds that Eurojust shall only transfer personal data to a third country if it is subject to the 1981 Council of Europe Data Protection Convention or when an adequate level of protection is ensured. According to Art. 28(3), the decision concerning transfers to non-parties to the 1981 convention will be taken by the national members involved, on the basis of an adequacy assessment by the Eurojust data protection officer. In case of difficulties, the officer must consult the JSB before making an assessment on a specific transfer. However, it is not clear that the data protection officer's assessment is binding to the national member. See V. Mitsilegas, 'Judicial Co-operation in Criminal Matters between the EU and Third States: International Agreements' in M. Leaf (Ed.), Cross-Border Crime (JUSTICE, 2006), pp. 79-92.
84. For an analysis, see D. McClean, Transnational Organized Crime (OUP, Oxford, 2007).
85. OJ L87, 31 March 1999, p. 1. According to the joint position, the Commission would be 'fully associated' with such coordination efforts (notwithstanding the fact that a number of issues fall within the third pillar). See also C. Rijken and V. Kronenberger, 'The United Nations Convention against Transnational Organised Crime and the European Union' in Kronenberger, note 59 above, pp. 481-517.
86. Council Decision on the conclusion, on behalf of the European Community, of the United Nations Convention against Transnational Organised Crime, OJ L261, 6 August 2004, p. 69.
87. On such developments, see V. Mitsilegas and B. Gilmore, 'The EU Legislative Framework against Money Laundering and Terrorist Finance: A Critical Analysis in the Light of Evolving Global Standards' (2007) 56 International and Comparative Law Quarterly, pp. 119-141.
88. See for instance the two decisions on the conclusion of the smuggling Protocol; two separate decisions were adopted to take into account the different legal bases in TEC with respect to different areas of competence (179 and 181a TEC-OJ L262, 22 September 2006, p. 24; and Title IV TEC-OJ L262, 22 September 2006, p. 34).
89. See for instance the debate over the content of the declaration of Community competence regarding the smuggling Protocol: see Council document 5535/2/06, Brussels 16 February 2006, showing Member States' objections.
90. See the Report by J.-C. Juncker, Council of Europe-European Union: 'A Sole Ambition for the European Continent', Strasbourg, 11 April 2006.
91. Council of Europe Parliamentary Assembly, Recommendation 1743 (2006).
92. Opinion 1/03, delivered on 7 February 2006.
93. On the FATF, see B. Gilmore, Dirty Money (3rd edn, Council of Europe Publishing, Strasbourg, 2004)
94. see also V. Mitsilegas, 'International Regulation of Money Laundering and Terrorist Finance' in I. Bantekas and G. Keramidas (eds), International and European Financial Criminal Law (Butterworths, London, 2006), pp. 41-64.
95. See R. Foot, 'The United Nations, Counter Terrorism, and Human Rights: Institutional Adaptation and Embedded Ideas' (2007) 29 Human Rights Quarterly, pp. 489-514
96. E.J. Flynn, 'The Security Council's Counter-Terrorism Committee and Human Rights' (2007) 7 Human Rights Law Review, pp. 371-384.
97. For a concise and clear background, see J. Helikoski, 'Case Note on Ayadi' (2007) 44 CML Rev., pp. 1145-1147.
98. Case T-306/01, Yusuf and Al Barakaat International Foundation v. Council and Commission [2005] ECR II-3533.
99. Case T-315/01, Kadi v. Council and Commission [2005] ECR II-3649. Both cases are currently on appeal to the Court of Justice.
100. For details see inter alia: C. Tomuschat, 'Case Note' (2006) 43 CML Rev., pp. 537-551
101. N. Lavranos, 'Judicial Review of UN Sanctions by the Court of First Instance' (2006) 11 EFA Rev., pp. 471-490
102. P. Stangos and G. Gryllos, 'Le Droit Communautaire á l'Épreuve des Réalités du Droit International: Lecons Tirées de la Jurisprudence Communautaire Récente Relevant de la Lutte contre le Terrorisme International' (2006) Cahiers du Droit Européen, pp. 429-481.
103. Case T-253/02, Chafiq Ayadi v. Council, judgment of 12 July 2006.
104. Case T-49/04, Faraj Hassan v. Council and Commission, judgment of 12 July 2006.
105. Case T-228/02, O.M.P. I. v. Council, judgment of 12 December 2006.
106. 'UN Sanctions and Judicial Review' (2007) 76 Nordic Journal of International Law, pp. 1-17.
107. See in this context M. Nettesheim, 'U.N. Sanctions against Individuals - a Challenge to the Architecture of European Union Governance' (2007) 44 CML Rev., p. 584.