Dorota Leczykiewicz DPhil candidate, University of Oxford [email protected]

Constitutionalising the third pillar

1. Introduction The last two years have brought an important development within the third pillar of Police and Judicial Cooperation in Criminal Matters. The first of them, and the decisive one in the context of this paper, was the fiasco of the European constitutional project. The third pillar was expected to undergo the reform envisaged in the Constitution. With the fiasco of the project it has become clear that those reforms will not happen, at least not as soon as scheduled, or that they will not take exactly the same shape. We could say, that it has become clear, that the third pillar will not become “constitutionalised” because there will be no “Constitution for Europe”. However, despite the fact that none of the existing Treaties regulating the functioning of the European Union bears the name “Constitution” it has not been contested for quite some time that the EU does have a constitution1. This is because it has a set of rules that regulate its objectives, the powers of its institutions and the rights of citizens. In a federal polity a constitution also regulates the relationship between the federal government and states. Equally, the constitution of the EU, a semi-federal polity, contains principles that regulate the relationship between the organization and its Member States. The nature of the relationship is not, however, homogenous across all the activities of the EU. While in the Community pillar the role of the federal government (the EC) is significant, in the second and third pillar it is hardly visible. We could even ask the question whether there is something like a “federal government” in the second and third pillar. So far they have been considered to function on the basis of public international law2. The fundamental principles regulating the relationship between the Member States and the EC, such as the principle of supremacy, direct effect and

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C Timmermans, The Constitutionalization of the European Union, in: P Eeckhout and T Tridimas (2001-2002) 31 Yearbook of European Law 1. 2 They are widely called “intergovernmental” to stress the fact that they are not supranational. For example: P Craig and G de Burca, EU Law, Text, Cases and Materials (3rd ed Oxford University Press 2003) 25.

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the obligation of consistent interpretation, had been considered absent from the second and third pillars. When we talked about European constitutional law as founded on the afore-listed principles we usually meant the EC rather than the EU. Although some of the general principles, such as fundamental rights, have been considered to cut across the whole EU, in practice they only served as operational control devices within the EC and not within intergovernmental pillars3. As we all know the Constitutional Treaty was to replace the three-pillar structure with a uniform entity, were what we call “community method” would have been expanded, with some exceptions, into issues now covered by the intergovernmental method. This communitarisation, and in consequence the constitutionalisation, of the third pillar was brought to a halt when it became clear that the Constitution will not enter into force. However, it quickly turned out that constitutionalisation of the third pillar may take place without the Constitution or even without a treaty revision. I would like now to talk about these phenomena, by which constitutional notions, formerly limited only to acts adopted within the EC pillar, are introduced in the first pillar. I want to talk of how the third pillar has been and might be further constitutionalised by the ECJ case law and by legislative initiatives.

2. Pupino and the obligation of consistent interpretation The first and the most important of this constitutionalising phenomena is the ECJ judgment in the case Pupino4. It is the most important for two reasons. First, it is a development which has already taken place. Second, it opens up further possibilities for the ECJ to constitutionalise the third pillar. Maria Pupino was a nursery school teacher. She was accused of inflicting injuries on pupils that were less than five years old at the time. The prosecutor in the case asked the Italian court to make use of a special inquiry procedure, by which the children witnesses could be examined in more children-friendly conditions. However, in Italian law, the application of special inquiry procedure was limited only to situations where testimonies of victims of a restricted list of offences of sexual nature were being taken. In 2001 the EU

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The ECJ does not have any jurisdiction to review second pillar measures. The jurisdiction of the court is also substantially limited in the third pillar due to the wording of Articles 35 and 46 EU Treaty. See further: B De Witte, The Past and Future of the European Court of Justice in the Protection of Human Rights, in: P Alston, The EU and Human Rights (Oxford University Press 1999) 859, 885. 4 C-105/03 Criminal Proceedings against Maria Pupino [2005] ECR I-5285.

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has introduced the Framework Decision on the standing of victims in criminal proceedings5. Under Art. 8 of the Framework Decision Member States were required to ensure that where there was a need to protect victims – particularly those most vulnerable – from the effects of giving evidence in open court, victims may, by decision taken by the court, be entitled to testify in a manner which will enable this objective to be achieved, by any appropriate means compatible with its basic legal principles. The question arose before the Italian court whether the special inquiry procedure reserved for sexual offences should also be extended to cases of children victims as a result of the principle of indirect effect of third pillar measures. Such interpretation could be required by the obligation to interpret national law consistently with the framework decision. It was therefore first necessary to establish whether the obligation of consistent interpretation existed in the context of the third pillar. The ECJ held that it did. After Pupino it is clear that national courts, interpreting national law, are obliged to strive to achieve a consistent meaning not only with EC law, but also with third pillar framework decisions6. Yet, we might wonder where this obligation of consistent interpretation in the third pillar came from. It seems that according to the ECJ it has always existed. It arises from the principle of loyal cooperation, which although not explicitly present in the wording the EU Treaty is considered “indispensable”. “It would be difficult for the Union to carry out its task effectively if the principle of loyal cooperation, (…) were not also binding in the area of police and judicial cooperation in criminal matters, which is moreover entirely based on cooperation between the Member States and the institutions”7. Such scarce reasoning has naturally been criticized by commentators8. Surely, it would seem that recognition of the principle of consistent interpretation would require some more elaborate justification. It is especially the case, since in Pupino the ECJ allowed not only the principle of consistent interpretation to be applicable in the third pillar, but it also allowed it to operate against individuals. Of course, there is a limitation imposed on the principle: consistent interpretation may not lead to aggravating criminal liability. But, as the Pupino case itself shows the 5

Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings (OJ 2001 L 82/1). 6 It is not clear, however, when the obligation of consistent interpretation starts to bind. The conviction that an EC directive may create interpretational obligations for national courts only from the transposition deadline has been challenged by the ECJ judgment of 4 July 20006 in C-212/04 Adeneler, not yet reported . Can it be the case that also third pillar framework decisions will create some interpretational obligations before the expiry of the implementation period? 7 C-105/03 Criminal Proceedings against Maria Pupino [2005] ECR I-5285, para. 42. 8 M Fletcher, Extending “Indirect Effect” to the Third Pillar: the Significance of Pupino (2005) 30 European Law Review 862, 870 and ff.

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obligation of consistent interpretation may have adverse effect on individuals. The limitation stemming from the prohibition of aggravation of criminal liability does not reach far enough to exclude the effect of framework decisions which is considered purely “procedural”.

3. Supremacy of third pillar measures? Pupino opened up the EU law to further reaching questions. Probably, the most pressing one is: does the recognition of the obligation of consistent interpretation mean that not only EC law, but also EU law can be supreme? We have not yet received a judicial answer from the ECJ on this matter, but we do have a very strong extrajudicial statement of Koen Lenearts, a judge of the ECJ. In his article, co-authored with Tim Corthaut, “Of Birds and Hedges: the Role of Primacy in Invoking Norms of EU Law”9 published in 2006 in European Law Review, he does not argue for the doctrine of supremacy to be applicable also in the third pillar, but simply declares that this is the case: The same reasons that led the Court in Costa v ENEL to proclaim the primacy of EC law are easily transposed to the EU legal order. The EU is similarly established for an indefinite period, and provided with its own organs (actually the same organs as the EC), and, in a functional sense, legal personality. Furthermore, the Union has practical competences, transferred to it by the Member States, allowing the Union to do such diverse things as adopting a common definition of terrorism, imposing sanctions against third states, helping out victims of crime and sending troops and policemen on peacekeeping missions across the Globe after concluding international treaties solely in the name of the Union. As a corollary, it can thus be argued that in those areas the sovereignty of the Member States has been limited. From there it does not take much imagination to submit that the Member States have thus created a legal order which is binding upon them, even if no enforcement mechanism similar to Arts 226 to 228 TEC is available. Moreover, in light of the duty to abstain laid down in Art. 11(2) TEU and the presence of the preliminary reference procedure in Art. 35 TEU one would be hard pressed to deny that the drafters of the Treaty shared the concern that the executive force of EU law “cannot vary from one state to another in deference to subsequent domestic laws, without jeopardizing the attainment of the objectives of the Treaty”.10

Does this mean, as the citation from Lenaerts suggests, that all national law conflicting with third pillar EU law has to be simply set aside? Does it mean that third pillar EU law is capable of overriding national constitutions? As I mentioned earlier we have not yet received a judicial answer to the former of the questions, but we are very close from receiving an answer to the latter question. The opportunity arises thanks to the question referred by the Belgian Cour d’Arbitrage as to the legality of the European Arrest Warrant Framework

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K Lenearts and T Corthaut, Of Birds and Hedges: the Role of Primacy in Invoking Norms of EU Law (2006) 31 European Law Review 287. 10 Ibid, 289-290 (footnotes omitted).

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Decision11. This reference has to be seen in a wider context. In 2005 three Member States’ constitutional courts (Polish, German and Cypriot) reviewed and declared as unconstitutional their national acts implementing the European Arrest Warrant Framework Decision12. It became clear that, if national courts want, they can block the practical operation of a third pillar measure13. Certainly, supremacy would come as handy, but as the experience it the first pillar shows, supremacy may only be a successful story if Member States do not have to worry about the level of human rights protection in the EU. This observation was taken up by AG Colomer in his opinion in the Advocaten case. In paragraphs 79 and 80 it advocates for the ECJ to recognize the authority of the Charter of Fundamental Rights “to avoid repeating past misunderstandings with national courts which have been reticent about the capacity of the Community Institutions to protect fundamental rights”. In other words, AG Colomer wants the ECJ to convince Member States that the general principle of fundamental rights does substantively and not only formally apply in the third pillar, so that they no longer want to review third pillar measures or their national implementations in light of the national constitutions. This opens up the road to supremacy. National standards of review may be safely replaced by European standards, because the protection offered by the general principle is no lesser that the one offered by national constitutions. The need to push forward to the doctrine of supremacy is even more pressing in light of the fact that the EU Treaty does not envisage an infringement procedure. So the only way by which a disobedient state may be disciplined is by means of establishing a cooperation between the ECJ and national courts that will make the third pillar law effective regardless of the inactivity of the Member State in question in implementing third pillar measures. The lack of the infringement procedure may also explain why the Commission may be pressing on the introduction of the principle of state liability for violations of EU law which is a natural consequence of supremacy.

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C-303/05 Advocaten voor de Wereld, opinion of AG Colomer of 12 September 2006. Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA), OJ L190/1. 13 The operation of third pillar measures may also be blocked by Member States legislatures. For example, the Polish Constitutional Tribunal judgment declaring the EAW Framework Decision implementation unconstitutional invited the parliament to change Art. 55 of the Polish Constitution in order to make the institution of surrender fully operative in Polish law. The resulting constitutional amendment introduced, however, the requirement of dual criminality of acts with regard to which the arrest warrant is issued. If supremacy of third pillar measures is recognised Polish judges will be under the obligation to set aside this section of Art. 55 of the Polish Constitution which makes it impossible for them to execute the arrest warrant in accordance with the Framework Decision. 12

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4. The third pillar and human rights However, in order for national courts to review acts of their legislature in light of the third pillar measures their need to be an act that would calm national courts concerns for the human rights protection in other Member States and, most importantly, provide the mechanism by which also implementing national law and not only third pillar Union measures are scrutinised against human rights of the European origin. The Commission made the attempt to meet those needs by introducing and advocating the adoption of the Framework Decision on Procedural Rights in Criminal Proceedings14. The Commission put forward the proposal in 2004. Nothing was really happening with it for a while, despite the fact that voices could be heard that the European Arrest Warrant Framework Decision should have been accompanied by a bill of rights of suspects that would safeguard that when they are sent to be tried in another Member State their rights are adequately protected15. In its recent Communication from June 2006 the Commission has come back to its proposal for the procedural standards framework decision16. It relied on the Hague Programme “Strengthening Freedom, Security and Justice in the European Union”, which was adopted by the European Council in November 2004, to encourage the Council and the European Parliament to adopt the proposal. The measure is portrayed by the Commission as a tool of strengthening mutual confidence between Member States, indispensable for the proper operation of the principle of mutual recognition. The Commission’s Communication does not mention, however, that it is also a means of further encroachment upon the Member States procedural autonomy. This is because the proposed framework decision would apply across the board not only when citizens of one Member State are tried in another. In fact the Commission aims at minimum harmonization of human rights protection in criminal proceedings across the Member States. Of course, this harmonization is just auxiliary to the more important principle of mutual recognition, but isn’t it the case that the mutual recognition was chosen as the way forward precisely because harmonization was rejected?

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Commission’s proposal for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union, COM(2004) 328 final. 15 S Algere and M Leaf, Mutual Recognition in European Judicial Cooperation: A Step Too Far Too Soon? Case Dtudy – the European Arrest Warrant (2004) 10 European Law Journal 200; S Peers, Mutual Recognition and Criminal Law in the European Union: Has the Council Got It Wrong? (2004) 41 Common Market Law Review 5. 16 Communication from the Commission to the Council and the European Parliament “Implementing the Hague Programme: the way forward” of 28 June 2006, COM (2006) 331 final.

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Therefore, the more decisive introduction of human rights acquis into the third pillar can be regarded as a constitutionalising enterprise not only because the third pillar law is beginning to regulate rights of individuals in a more direct manner, but also because it alters the relationship between the EU and the Member States and impacts upon the scope of the Member States’ autonomy, a major aspect of the EU constitutionalism. The incorporation of measures regulating human rights as part of third pillar law allows a much deeper penetration of EU law into national laws, the ability previously reserved for EC acts. In consequence, the more definite introduction of human rights into the third pillar affects the distribution of powers between the EU and the Member States and raises questions of EU competence to enact measures, whose consequences are not substantially different from the measures adopted under the EC pillar, but which relate to issues that have been deliberately left outside the Community legal order.

5. Constitutionalising the third pillar – an easy path? I would now like to move on to evaluate the developments that I have just described. More specifically, I would like to evaluate what obstacles those developments, if further pursued, may face. Let me start with supremacy of third pillar measures. As we all know, the principle of supremacy is not explicitly expressed in the Treaties. It is a doctrine developed by the ECJ, but it has not developed independently from specific Treaty provisions. The recognition of supremacy of EC law was founded on the combination of factors: that the Community has its own institutions (now Art. 7 EC), its own personality, its own legal capacity and capacity of representation on the international plane (Art. 281, 282, 291 and 300 EC) and real powers stemming from a limitation of sovereignty or transfer of powers from the States to the Community (Art. 5 EC and the relevant EC Treaty provisions)17. The presence of these factors justifies EC law supremacy. We could quite successfully argue that neither of them is present when it comes to the EU. The European Union does not have its own institutions, because according to Article 3 EU Treaty it uses the institutions of the EC. Grounds for maintaining that it has legal personality are very thin. Apart from the cryptic Art. 24 TUE there is nothing in the EU Treaty that suggest that Member States contemplated investing the EU with legal personality. Quite the opposite. Proposals of including a section in the EU Treaty which would grant the 17

Case 14/64 Costa v ENEL [1964] ECR 585.

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EU legal personality were rejected by the Council and the IGC. It is also difficult to maintain that the Member States have really transferred any competences on the EU. They clearly expressed the will to cooperate in some fields, but it is not clear that they have given up their relevant powers. If this had been their intention the Member States would have just vested the EC with more competences and would not have established the EU. The establishment of the EU rather than expanding the scope of activities of the EC was a consequence of the Member States’ unwillingness to transfer any more powers. A further problem to the doctrine of supremacy may be posed by the explicit exclusion of the possibility of third pillar measures to have direct effect18. According to Art. 34 (2)(b) and (c) framework decisions and decisions, the only two third pillar measures that have binding force, “shall not entail direct effect”. Of course, the ECJ would not be able to derogate such an explicit provision of the EU Treaty. So supremacy of third pillar measures depends on the possibility of reconciling it with the absence of direct effect. This is problematic, because originally supremacy and direct effect were closely intertwined. In Simmenthal the ECJ stated expressly: “in accordance with the principle of the precedence of Community law, the relationship between provisions of the Treaty and directly applicable measures of the institutions on the one hand and the national law of the member states on the other is such that those provisions and measures (…) by their entry into force render automatically inapplicable any conflicting provision of current national law”19. In other words, an EC act could produce consequences stemming from the doctrine of supremacy only when it was directly applicable. This requirement seems to have been dropped, where more and more EC measures were considered capable of having direct effect. The absence of this criterion was therefore not much felt, with the exception of tensions arising from some effect directives may have on private parties (incidental effect, consistent interpretation). However, direct effect of Framework Decisions is explicitly excluded. It seems that the need to ask the question arises again: can supremacy be really disconnected from the direct effectiveness? It seems that our answer to this question depends on whether we think that separating supremacy and direct effect would serve a worthy purpose. However, the main argument for reconciling the absence of direct effect with the presence of supremacy is that of coherency: it 18

This problem is posed by the fact that it is not clear what the defining element of direct effect is: the creation of rights for individuals, the general possibility to invoke a provision, the application of a provision as a norm governing the case (invocability of substitution) or the application of a provision as a standard of review for disapplication of a national norm (invocability of exclusion). See M Claes, The National Courts’ Mandate in the European Constitution (Hart Oxford 2006) 95-96. 19 Case 106/77 Administrazione delle Finanze v Simmenthal [1978] ECR 629 (emphasis added).

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is good when a system is coherent so the extension of first pillar doctrines onto the intergovernmental pillars is therefore welcome20. What strikes me in those submissions is that such a strong constitutional change is supported by such weak justification. Is it really the case that supremacy may be introduced into the third pillar only for the sake of coherency? If, however, supremacy is indispensable for some good reasons, than we should rather focus on them and not coherency. In the first pillar the axiological justification for the introduction of supremacy, and thereby raising EC law effectiveness, can found in the need of ensuring uniformity of application of EC law as a prerequisite of the establishment of the internal market. It is openly admitted that the same rationale simply does not apply in the third pillar21. However, if uniformity of the law is indeed the guiding force of third pillar supremacy than we would need to come to the conclusion that the ECJ decision in Pupino was mistaken. After all, what the ECJ does with third pillar measures is only applicable in those states that made Article 35 declaration22. Moreover, the obligation of consistent interpretation ceases to operate if a national court would have to interpret contra legem. In other words, the result of consistent interpretation needs to be achieved only “as far as possible”. This means that the extent to which third pillar law will be made effective depends on the limitations of national laws in question which vary across Member States. EU law made effective via consistent interpretation cannot be uniform if the “as far as possible” qualification is to be preserved. The problem is, however, that removal the limitation is simply out of question. Otherwise, the principle of consistent interpretation would not have been any different from direct effect. As for the more decisive introduction of human rights acquis into the third pillar is concerned, it should be regarded as welcome. When rights of individuals can be better protected it is generally a good thing. What is not good, however, is when measures that do raise human rights concerns are not closely scrutinised just because they stem from the EU and not from Member States. Given the conclusion of the AG Colomer’s opinion in the case

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Lenaerts, above; B de Witte, The Pillar Structure and the Nature of the European Union: Greek Temple or French Gothic Cathedral?, in: T Heukles, N Blokker and M Brus (ed), The European Union after Amsterdam (Kluwer the Hague 1998) 51. 21 S Prechal, Direct Effect, Indirect Effect, Supremacy and the Evolving Constitution of the European Union, in: C Barnard, The Fundamentals of EU Law Revisited (Oxford University Press 2007) 35, 41. 22 M Claes comes to the conclusion that judgements of the ECJ in the third pillar should be binding on all courts, even those of Member States that have not made the relevant declaration. M Claes, The National Courts’ Mandate in the European Constitution (Hart Oxford 2006) 107. This is difficult to accept in the light of the fact that Article 35 (2) EU Treaty states that by the declaration Member States will be able to accept the jurisdiction of the Court of Justice to give preliminary rulings (emphasis added).

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Advocaten we may predict that the ECJ will be willing to upheld the European Arrest Warrant Framework Decision. This will strengthen the belief that the ECJ is applying double standard. Moreover, invoking human rights more decisively as grounds for review of third pillar measures may not necessarily address the reservations voiced by national courts that invalidated the EAW national implementations. It is clear from Polish, German and Cypriot judgments that national constitutional courts were primarily concerned not with the fate of all suspects, but only of those that were these states’ nationals. Therefore, their judgments did not just raise, as AG Colomer seems to think, the question of fundamental rights protection as such, but that of the rights stemming from national citizenship, which the EU is simply not equipped to protect. As for the proposal on procedural rights, its legitimacy is highly dubious23. The Commission submits that the measure could be based on Article 31(c), which envisages the EU action with the aim of “ensuring compatibility of rules applicable in the Member States, as may be necessary to improve such cooperation”. However, this provision only talks about ensuring compatibility and not about harmonizing. It seem that if we want to treat the EU as an organisation similar to the EC, vested with competences, whose laws may be supreme, we should treat the question of competence limits seriously. Of course, the Commission could argue that the competence is implied in other Treaty provisions or that the activity of the EU in this matter should be allowed in light of its objectives, such as police and judicial cooperation in criminal matters24. A similar argument was used in the context of the first pillar, when the competence of the EC to join the European Convention of Human Rights was tested25. Then the Court came to the conclusion that the EC did not have the relevant competence both externally and internally26. The ECJ therefore distinguished between the respect for human rights as a condition of the lawfulness of Community act and as a basis for action. If the procedural rights framework decision is adopted and challenged, and the ECJ affirms the EU competence in that respect it would result in the EU taking steps that are unattainable for the EC. The ECJ will need to inevitably explain how come that the EC does 23

See further, R Lööf, Shooting from the Hip: Proposed Minimum Rights in Criminal Proceedings throughout the EU (2006) 12 European Law Journal 421. 24 This argument is based on the assertion that the fields of common action expressly listed in the EU Treaty are not exhaustive and the competence is to be determined in the light of general objectives of police and judicial cooperation in criminal matters as laid down by Art. 29; see for example, the opinion of AG Kokott in Pupino, para. 50. This assertion losses its merit the moment supremacy of third pillar measures is recognised, because it is clear that it must be accompanied by the principle of conferred powers which presupposes clear delineation of competences transferred onto the EU. 25 Opinion 2/94 on Accession by the Community to the ECHR [1996] ECR I-1759. 26 Ibid, para. 27.

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not have the competence to exhaustively regulate human rights issues and the EU does. Of course, the opposing argument could be that the EU is not the EC. In the third pillar it is really the Member States that decide, they all need to agree, their interests are fully protected. This is an interesting argument because it actually stresses the distinctiveness of third pillar measures, the significance of which is then denied when the issue of supremacy, indirect effect and state liability are raised. All the obstacles that I have referred to primarily raise the question of what can be called formal or input legitimacy of the EU action. Of course, we could also ask whether the developments described could be nevertheless justified by concerns of substantive justice. In other words, we could measure whether output legitimacy outweighs misgivings in input legitimacy27. Substantive justice is of course very difficult to evaluate. It opens up the discussion about the values that we want the EU to be founded on. It would also require us to establish a list of priorities that, in order to be comprehensive, would need to include important national concerns. Article 6 EU Treaty states that the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law. I have doubts whether it is indeed democratic when it is the ECJ that introduces important constitutional changes and whether ignoring the wording of the Treaty is an example of adhering to the principle of legality.

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A Menon and S Weatherill, Legitimacy, Accountability and Delegation n the European Union, in: A Arnull and D Wincott, Accountability and Legitimacy in the European Union (Oxford University Press 2002) 115-116.

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