~ EIPA zernentemetenani European Centre for Judges and Lawyers TC vENM @ Seminar 1: The changes brought by the Lisbon Treaty to judicial cooperation in criminal matters: Special focus on the new powers of the institutions and the competence of the relevant EU agencies Paris (FR), 15-16 December 2011 Speci Grant Agreement JUST/20 10LIPEN/AGIFPAOO1 Framework Partnership Agreement JLS/2007/JPEN-FPAIO17 Improving Judicial Cooperation in Cminal Mators in he area of Freedom, Security and Justice, Isttutional Processes and Tooical Areas The actors and the new decision making mechanisms in the area of judicial cooperation in criminal matters Presented by Petra Jeney ‘Visiting Expert a the European Centro for Judges and Lawyers EIPA Luxembourg‘The actors and the new decision making mechanisms in the area of judicial cooperation in criminal matters Pot Jeney EIPA vstng expert Fl creel octr nmin in FF) Tresitona rovsionsRCO R ee nee ae) + reorganizes the existing treaty framework * extends co-decision procedure and QMV to criminal law (with exceptions) * no individual Member State can initiate legislation in the field of criminal law + emergency brake / pseudo veto /passarelle * restrictions of the jurisdiction of the European Court of Justice are removed * institutional issues (new institutions, modified powers) * widens the scope of opt out rul * general provisions of the TFEU are applicable to JHA (legitimacy, accountability, non-discrimination, powers ‘on external relations, data protection) eee cur Rome eh eos aera ios ‘all JHA provision are under one single Title in ‘TFEU — TEU Part Throo Titlo V. Area of Freedom, Security and Justice former TEU and former TEC provisions were put together + former Ilr pillar transferred to former Ist ‘Community’ pillar EU replaced and succeeded the former EC, former ‘Community legal order is replaced by union legal order transitional rules ketion ofthe European Cou of Justice concening pe. ‘satin ie ilar mosaures Le. measures opie bao the tiebon trea Jopa eect of pre-xstng I pllar measuresDee ea ee Cor ‘Arvicle wz (ex Article 31 TEU) 4. ial cooperation in siminl maitre hte Union sal be tne ‘he arncne of mutual ecoantion of judgments and jul decisions ‘and shal incude the approximation of he las. and regulations of ho Member Sates be areas feted om paragraph 2 and in Ae 83 ‘The European Pariament ard the Counet, acting in accordance with the ‘1dinaryieiisve procedure. shall eéopt measure + (2) ay down rues and procedures fr ensuring recoantion throughout the Union of alforms of judgments and judi decisions * (brevet and sete conics of ueccon between Member States * (6 support he wining of ne uci and jc stat; * (6) factiate cooperation between ud or equivalent authors of the ember Sites in relat o proceedings in cmina mates andthe sninacamsnt of decisions, Pru eee es ‘Article 82 (ex Article 1 TEU) cont iiieareee Gece ete react ats ingen wemeaa ots re ‘Member States " trae ony ey etm men nb, ; Bintan ee rere : Sig geri comme faction ie br eeatrneneeenteoee Sea cereaas aemaeawsmeas | Adaptor of he minimum rule refered to nhs perapranh shat not revert er ates fom moraining or ioduong a Ma ve Bos ft | Hansa.Perey En ea ces] ‘Article #3 (ox Article 31 TEU) fume Patan an Coumtnay ao recente cara ee es, sof paral esc waa Ste oder ‘Sine rein om aro npc of uch ofeas oo 3 Spit needa catia! hem ons common Thee aan of cng are levis eevee nan pe rox more wundsrng, carton {aurtoraing of means of python. compute ce an orgahised + Sho ta gf detent nena te Cot ay dent a decision fear ol cabal te a pea he speak dal et uantown ae’ oar cows oft "ee | DPSS eur bese eC Oey Article 83 (ox Aticle 31 TEU) contd 2. ithe agromaon of ial ws and rguaions of he Mende: Saos ves eset osu the olive npenenaon of rion ley an ‘Sea tien has neon aajersoNamansaten messes ties ey ‘Seah rinmom es wih rpartofe detren lil flonan and “mnetonn fe aren cocomad Such drecves sabe aod he ame ‘xSnuyo socal lana grcod as was lized fe atone ‘smonasin measures neal. who pce oA 70 Atco 04 +The Euan Palanan te Cour, ang in oxrcance wih he ana ‘nists pod, ray etablsh son's promo an spore acton {erbar Sitsn ef ere revrion, edgar hemersston ‘elon andreplobane ofa Mombar Sates ‘EsDecision-making — power toinitiate * Before the Treaty of Lisbon Individual MS had he power fo propose legislation in the ik of Doleng an ermial iw mor At 24 TEU) - Practce: MSs proposed legsaton In groups Buln coalons wos neossr ath cay tgp * After the Treaty of Lisbon + Yo al MSs may propose (76. TFEU) es: power to whew oF amend, COM enjoys his ight Practice Tt orpteon and varleon he tsenrck ent poco | Eutopean Investigation Onor ile Soar Perens Beets : = new legislative process applies: ordinary legislative procedure, previously consultation with the European Parliament * Art 294 TFEU (former Art 251 TEC on co- decision procedure) * Council and the European Parl co-legislators * provides joint powers for the European Parliament = power to amend, power to veto + two readings + conciliation procedure ment are bothDecision making — ordinary legislative: ec) * Assessment: EP has direct influence on the content ofthe legisiative et + democratic legitimacy increased EP can develop a criminal law policy agenda = time frame of the legisiative procedure bacame much longer approx 1 year (oreviously 6 months)= general rule: qualified majority sxceptional cases when unanimity is required establishing the European Public Prosecutor Art 86 (1) + pales cooperation At 87 (3) + eoss border police cooperation At 89 + possports AA 77(3) “fey aw Act 84(3)Overview of changes in decision making Pron Saeed * applicable to specific legal basis, can not be invoked regarding to any measure = involves the European Council = may result in fact track decision making (enhanced cooperation), without the proceudiral hurdles of the ordinary legislative procedure * but! differences between the two toolsSe em eee ema “ Whece a member of he Counc considers that a dat. drecive as ‘afer ton paragraph 2 woud aft ‘imal usice system, may request hat tne cat recive be refered {oie European Coun tat cas, the shallbe suspended. ter decurson, and ngaee ofa consensus be Evropeon Counel sha, win four month of tis suspension, refer the ‘raft back to the Cour, which shal trmaito the suspension ofthe ‘orinarylegisiatve procedure. Win the same teame, in caso of csagroament, ait at ast nine Nomber Sates wih s establish entancod cooperation on the Desi of the caf cect concerned they shall roy the European Params, ‘he Counel and the Commission acoongy In sucha care, he ‘2uhrisation oproced wth hanced cooperation refered to Artiste £2002) ofthe Treaty or European Union and Arce 320(1) ofthe Treaty ‘hallbe deemed to be grand andthe prvisons on ennanced aoperation sal soe) es Se USO Ra) + 3.nere a member af the Counct considers tat a drat decve as Feferec ton paragraph tor 2 would sec undamenia agpects oe hay request hat the dat drocive be rtored stance cooperation oti Treaty en Curopean Union ar Arce S68 Ne ah satlon goose red end te rovers on ohare ‘persion al soo ieEmergency break Art 82(3) and 83(3) TFEU * sppliee to decisions related to national criminal procedure and ‘bstantive imma! aw + Grounds for resorting tthe emergency brake is specifiod Smaweny RECA) ONE ~ Bea's demented Be i conconed me Nato mse = 10 Bit Te tna ielaive soon be Sought tobe ened + request to the European Counel to suspend ordinary legislation + Underying procedure: ordinary lepslatie process + guome: consensus resumption! edna lepelalvepeeaduro, process forindotnta time pens anced cogporation but in a negative way: MS a the European Council * + applies to the European Public Prosecutor Art 86(1) and epastonl ain compro 673) + no limitation as to on what basis the veto Is Invoked + Invoked by a group of MSs lying procedure requir unanimity, not special ive procedure + can not be changed or overridden * triggers enhanced cooperation in a positive way: MSs favoring a roves tur the European Counc, theoretfely tot possible tat then he enhanced ‘cooperation would + possibility to shift voting from unanimity to QNV among {efi and legislative procedure rom specif cerdinarySore eon cay = Enhanced cooperation = general rules on enhanced cooperation = Art 20(2) TEU and At 329(1) TFEU emergency brake and pseudo veto ee =e See ester iret + further exceptions when unanimity in Council is required “Ast 8202) ¢) nt as a vavcn the Coutel hes ina Hector ortho adoption ofsucnadeesion, no” Gouncl shal act unanimously afer obtaining the consent ‘of he European Parlamant” Eanes =A 248) a : is invoked altering decsion- making OF vobng mba besy amcatinsat Ele ——RUST Cu ruse * Jurisdiction of the European Court of Justice ‘over legislative acts emanating from he former Ird pillar of the TEU prior to the ToL .gal effect of the legislative acts emanating from he former Ilird pillar of the TEU prior to the ToL = possibility for the UK to opt-out legislative acts from emanating from he former Ilied pillar of the TEU prior to the ToL Deu cae r Cominglopeatve ais hathave | ova, rt proeuaad bate Ta. ‘neraaert “7 Ne rtm force for MS who 1 (int exe he utacaon of to* Pending legisiative proposals at the eve of the entry into force of the Treaty of Lisbon = subject to revised decision making (immigration, asym and cv law) ~ new proposal reeded tobe tabled due to the new legal basis in the TFEU (policing and criminal law) “Fea — Stare i * Committee on internal Security * European Parliament * National parliaments + European Public Prosecutor * European Court of Justice special urgency procedure in the preliminary ruling proceudre Art 267 para 4ee Ce DESC SY 2°)" + no power to adopt legislative acts * no power to conduct operations + relation to the Coordinating Committee in the area of police and judicial cooperation in criminal matters - CATS Cte i = extended powers * ordinary legislative procedure = consulted when Council takes decision under the special legislative procedure + gives its consent ~ extending criminal law competence of the EU ~ regarding the European Public ProsecutorNational parliaments / + scrutiny powers on JHA legislation Art 69 TFEU subsicaty chock ‘pete tate bute meets lek he propos ately ‘ogre of ational paar ahemert gly dees in Se * Art 12. ¢) TEU taking part of the evaluation mechanism of the implomentation of the Union polices within the {framework of the area of freedom, securiy and justice * Arts. 70. 88. and 85. TFEU being involved inthe political ‘monitoring of Europol and the evaluation of Eurojust's activities in accordance with Articles 88 and 85 of that Treaty rere estoy * full jurisdiction after the transitional period * special urgency procedure nlf stich a question is raised in a case pending before 8 court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay. * existed before ToL. under TEU, now incorporated in TFEU * detention and custody, ECJ practice child abduction* legitimacy and accountability improved ~ greater role fr the European Parliament - scrutiny power for national pariaments = jurisdiction ofthe European Court of stice * intergovernmental nature of the former decision-making, type of legislative acts, judicial review etc. applicable to criminal matters are ebolished * now one single union legal order Ln &) Do You Have ? ) Any Questions? a We would be hapy the. Plensysinr