EU Criminal Law after Lisbon: Rights, Trust and the Transformation of Justice in Europe

by Valsamis Mitsilegas, Anne Weyembergh (Editor), Katalin Ligeti (Editor), Valsamis Mitsilegas (Editor)

Overview

This monograph is the first comprehensive analysis of the impact of the entry into force of the Treaty of Lisbon on EU criminal law. By focusing on key areas of criminal law and procedure, the book assesses the extent to which the entry into force of the Lisbon Treaty has transformed European criminal justice and evaluates the impact of post-Lisbon legislation on national criminal justice systems. The monograph examines the constitutionalisation of EU criminal law after Lisbon, by focusing on the impact of institutional and constitutional developments in the field including the influence of the EU Charter of Fundamental Rights on EU criminal law. The analysis covers aspects of criminal justice ranging from criminalisation to judicial co-operation to prosecution to the enforcement of sanctions. The book contains a detailed analysis and evaluation of the powers of the Union to harmonise substantive criminal law and the influence of European Union law on national substantive criminal law; of the evolution of the Europeanisation of prosecution from horizontal co-operation between national criminal justice to forms of vertical integration in the field of prosecution as embodied in the evolution of Eurojust and the establishment of a European Public Prosecutor's Office; of the operation of the principle of mutual recognition (by focusing in particular on the European Arrest Warrant System) and its impact on the relationship between mutual trust and fundamental rights; of EU legislation in the field on criminal procedure, including legislation on the rights of the defendant and the victim; of the relationship between EU criminal law and citizenship of the Union; and of the evolution of an EU model of preventive justice, as exemplified by the proliferation of measures on terrorist sanctions. Throughout the book, the questions of the UK participation in Europe's area of criminal justice and the feasibility of a Europe à-la-carte in EU criminal law are examined. The book concludes by highlighting the possibilities that the Lisbon Treaty opens for the development of a new paradigm of European criminal justice, which places the individual (and not the state), and the protection of fundamental rights (and not security) at its core.

Product Details

ISBN-13:	9781849466486
Publisher:	Bloomsbury Academic
Publication date:	06/30/2016
Series:	Hart Studies in European Criminal Law , #1
Pages:	336
Product dimensions:	6.14(w) x 9.21(h) x 0.75(d)

About the Author

Valsamis Mitsilegas is Head of the Department of Law, Professor of European Criminal Law and Director of the Criminal Justice Centre at Queen Mary, University of London.

Table of Contents

Acknowledgements v

Table of Cases xiii

Table of Legislation xix

1 Introduction 1

2 The Constitutionalisation of EU Criminal Law After Lisbon 4

I Introduction 4

II The Constitutionalisation of EU Criminal Law 5

A Constitutionalisation at EU level: Institutions, Principles, Rights 5

B Constitutionalisation and the Member States: Focusing on Transposition and Implementation 11

C Constitutionalisation as Interdependence. Towards a More Coherent EU Criminal Policy 13

III The Persistence of National Diversity 14

IV The Competence Debate-Contested Competence 19

A Contested Competence: Member States v The EU-The Lissabon-Urteil 19

B Contested Competence and Inter-institutional Balance: The Road Traffic Offences Directive Case 21

C Contested Competence and Inter-institutional Balance: The Internal/External Dimension-The Case of Terrorist Sanctions 25

V The Limits of Subsidiarity 40

VI The Limits of Justice À-la-Carte: Variable Geometry and the Case of the United Kingdom 44

VII Conclusion 50

3 Defining EU Competence in Substantive Criminal Law: From Securitised to Functional Criminalisation 53

I Introduction 53

II The Constitutional Politics of Criminalisation Before Lisbon: The Interplay Between Securitised and Functional Criminalisation 54

III EU Competence to Criminalise After Lisbon: Securitised and Functional Criminalisation Revisited 57

A Securitised Criminalisation-Article 83(1) TFEU 58

B Functional Criminalisation-Article 83(2) TFEU 60

C The Extent of EU Competence to Criminalise: Minimum Rules 62

IV The Relationship Between Criminal and Adminstrative Law 63

V Extending EU Competence to Criminalise Elsewhere in the Treaty 65

VI Policy Responses to the EU Competence to Criminalise After Lisbon 68

VII The Lisbon Treaty and the Impact on National Criminal Law 72

A Effectiveness and National Criminal Law: Decriminalisation 73

B Effectiveness as Assimilation: Over-criminalisation 74

VIII Conclusion 80

4 The Rocky Road to European Prosecution: Caught Between Co-ordination and Centralisation 83

I Introduction 83

II Horizontal Co-ordination via the Protection of Fundamental Rights: The Emergence of a Transnational Ne Bis In Idem Principle 84

III Horizontal Co-ordination via the Establishment of Common Standards-The Case of Decisions on Choice of Forum and Conflicts of Jurisdiction 91

IV Towards Vertical Co-ordination: The Evolution and Powers of Eurojust 94

A The Commission's Proposal for a Eurojust Regulation 96

B The Council General Approach 101

V Towards the Establishment of the European Public Prosecutor's Office-Ambitions and Limits to Centralisation 103

A Structure and Powers of the European Public Prosecutor's Office 104

B Competence, Scope, Territoriality 109

C Judicial Review of the European Public Prosecutor's Office at EU Level 113

i Constitutional Challenges from Limiting EU Judicial Review for Acts of the EPPO 113

ii Judicial Review of Investigation Decisions and Acts: Lessons from OLAF 117

VI The Quest for Coherence in Prosecution in a Fragmented Area of Criminal Justice 119

VII Conclusion 121

5 Mutual Recognition and Mutual Trust in Europe's Area of Criminal Justice: The Centrality of Fundamental Rights 124

I Introduction 124

II Mutual Recognition as Legal Pluralism 125

III Establishing Limits to Automatic Recognition: The Role of Fundamental Rights 129

A Fundamental Rights as Grounds for Refusal in the European Arrest Warrant Case-Law 131

B Fundamental Rights as Limits to Automatic Recognition: Lessons from European Asylum Law 136

C Mutual Trust and Fundamental Rights: The Impact of Opinion 2/13 140

IV Proportionality as a Limit to Mutual Recognition 142

V Mutual Recognition, Mutual Trust and the Rule of Law 147

VI Conclusion: From Presumed to Earned Trust in Europe's Area of Criminal Justice 151

6 Legislating for Human Rights: The EU Legal Framework on the Rights of Individuals in Criminal Proceedings 153

I Introduction 153

II The Rocky Road Towards EU Law on the Rights of the Defendant Before Lisbon 154

III The Lisbon Breakthrough-The Attribution of An Express (Albeit Functional) Competence to the European Union to Legislate on the Rights of the Individual in Criminal Procedure 156

IV The Renewed Momentum Towards EU Procedural Rights in the Light of Lisbon 158

V The Content of EU Procedural Rights 160

A The Directive on the Right to Interpretation and Translation 161

B The Directive on the Right to Information 162

C The Directive on the Right of Access to a Lawyer 165

VI Horizontal Issues: The Scope and Level of Protection of Procedural Rights After Lisbon 171

VII The Impact of EU Procedural Rights on National Legal Systems: Enforcement and Implementation of Rights 175

VIII The Impact of EU Procedural Rights on National Legal Diversity-The Role of Autonomous Concepts 176

IX Variable Geometry and EU Procedural Rights-The Quest for Coherence 180

X Conclusion: Towards a Paradigm Change in Europe's Area of Criminal Justice 183

7 The Place of the Victim in Europe's Area of Criminal Justice 185

I Introduction 185

II Victims' Rights in EU Criminal Law-A Typology 186

A Victims' Rights as Free Movement Rights 187

B Mutual Recognition 188

C Harmonisation 190

III The Place of the Victim in Europe's Area of Criminal Justice: Constitutional Implications 195

IV The Impact of EU Law on Victims' Rights on National Criminal Justice Systems 199

A Mutual Recognition 199

B Harmonisation 202

V The Impact of Victims' Rights on Justice in Europe 206

VI Conclusion 210

8 The Uneasy Relationship Between EU Criminal Law and Citizenship of the Union 212

I Introduction 212

II Citizenship in EU Criminal Law 212

A EU Citizenship in the European Arrest Warrant 213

B EU Citizenship in the EU System on Transfer of Prisoners 220

III EU Criminal Law in EU Citizenship 223

A The Impact of Secondary EU Criminal Law on EU Citizenship-Tsakouridis 223

B The Impact of Primary EU Criminal Law on EU Citizenship: Article 83(1) TFEU and P.I. 227

IV Conclusion: Towards a Paradigm Change in Citizenship and EU Criminal Law 234

9 The European Union and Preventive Justice. The Case of Terrorist Sanctions 236

I Introduction 236

II Preventive Justice via 'Global Administrative Law': The Role of the UN Security Council 237

III Implementation of the UN Security Council Resolutions by the European Union 241

IV Judicial Review of the EU Implementation of UN Security Council Resolutions: Kadi I 245

V Judicial Review of the EU Implementation of UN Security Council Resolutions: Kadi II 249

VI Extending the Preventive Justice Framework in the Field of Counter-Terrorism: The Case of Measures on 'Foreign Fighters' 257

VII Conclusion: Preventive Justice and the Limits of Procedural Justice 260

10 Conclusion. Placing the Individual at the Heart of European Criminal Justice 263

A The Impact of the Lisbon Treaty on National Legal Diversity-From Cooperation and Mutual Recognition to Interdependence and Harmonisation 264

B The Impact of the Lisbon Treaty on the Relationship Between the Individual and the State-The Growing Importance of Fundamental Rights and the Rule of Law 266

C The Promise of Rights-The Individual at the Heart of European Criminal Justice 270

Bibliography 272

Index 287

Editorial Reviews

...this latest monograph by Mitsilegas must be praised both in content for the sophistication of the analysis and, which is not always the case with scientific publications, also in style for the use of clear language and for the linearity of its arguments...EU Criminal Law after Lisbon represents a landmark publication in the field, an essential read for anyone wishing to carry out any quality research in this ever changing and growing field of law.
European Law Review

EU Criminal Law after Lisbon is a critical analysis of EU criminal law that should find itself on the bookshelves of any lawyer interested in the this everdeveloping and increasingly important area of the law ... It is difficult to capture in the space of a single review the rich and comprehensive quality of this monograph that touches on all aspects of EU criminal justice.
Modern Law Review

This book presents a rich, detailed, comprehensive, yet at the same time coherent and manageable analysis. The book is characterized by a lucid and analytical writing style, and has many valuable references to the academic literature. Its critical engagement with the literature make it useful not only for established scholars in the field, but also for (graduate) students looking for inspiration for research projects. It is a highly valuable contribution to the study of European criminal law.
Common Market Law Review

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