Abstract
The book edited by Chloé Brière and Anne Weyembergh is an important entry in the Hart series ‘Studies in European Criminal Law’. The volume includes the proceedings of the International Conference ‘The Needed Balances in EU Criminal Law: Past, Present and Future’, organised by the European Criminal Law Academic Network (ECLAN) in 2016 (along with a number of additional contributions). This event celebrated the 10th anniversary of the Network. Accordingly, the book includes contributions from numerous scholars and practitioners active within ECLAN.
The collection offers an impressively large overview of current research topics in the area of European Union (EU) criminal law. Those topics range from issues of constitutional nature (the problems of EU competence and the relationship between EU institutions in the area of criminal justice) to the challenges facing EU agencies such as Europol, Eurojust and the newly established European Public Prosecutor’s Office (EPPO). In their introduction, Brière and Weyembergh expand on the conceptual framework of this collection. As they point out, the notion of ‘balance’ is key to reflecting on the current Zeitgeist of EU criminal law as it encapsulates the key points of contention regarding the future of the Area of Freedom, Security and Justice.
The notion of ‘balance’ (and the related concept of ‘imbalance’), therefore, provides a unifying framework to investigate EU criminal law’s most heated topics and indicate the path for future reforms. By ingeniously relying on the various nuances of the term ‘balance’, the editors have divided the book into four different parts (plus an introduction). Each part reflects the goal of striking a necessary equilibrium between opposing interests within the field. Part I includes a number of introductory writings and lays out the book’s overarching research framework.
Part II is devoted to discussing the need for an institutional balance within EU criminal law; here chapters explore the entangled relationship between EU institutions and the ever-problematic issue of competence to legislate in criminal matters. Samuli Miettinen explores the distribution of competence between the EU and the Member States in light of the principle of conferral, while Pedro Caeiro highlights the ‘prescriptive’ nature of EU’s penal jurisdiction along with some important gaps in the Treaty’s legal basis as regards the criminal protection of Union’s ‘institutional’ legal interests.
Both Irene Wieczorek and Eugenio Selvaggi critically analyse the principle of subsidiarity as providing criteria to assess the need for EU penal intervention and legitimise prospective lawmaking. Yet EU’s competences are all but monolithic and the Court of Justice of the European Union (CJEU) has often performed as aiguilleur des compétences (‘competence regulator’) when determining relevant shifts in the distribution of powers between the Union and its Member States. Some of these ‘judicially driven’ changes are neatly summarised in the chapters written by Adam Łazowski and Emilio De Capitani.
Overall, contributions in this first part provide a much-needed summary of the ‘state of the art’ as several monographs (especially during the last decade, e.g. Irene Wieczorek’s The Legitimacy of EU Criminal Law, and Jacob Öberg’s Limits to EU Powers, to name but a few) have sought to explore the foundations and limits to EU power to adopt minimum rules on criminal law and procedure.
In part III, contributions address the ‘quest’ for a balance between unity and diversity. This complex topic is discussed by contributors through an analysis of the two major strategies of legal integration: mutual recognition and harmonisation. While Daniel Flore’s chapter reflects on the prerequisites for mutual trust as a key element of EU judicial cooperation, Annika Suominen casts mutual recognition and harmonisation as two different (but complementary) means to fight cross-border crime more effectively and coherently. Both authors stress the importance of a principled approach to legal integration, one that would comply with the principles of proportionality and ultima ratio. Anze Erbeznil, in turn, argues that mutual recognition could only be made operational through supporting harmonisation of criminal procedure and the application of a general clause allowing non-recognition based on Article 6 TEU.
One could only lament that these chapters fail to expand on provisions such as Article 4(2) TEU (the so-called ‘national identity clause’) as its implications for EU criminal law might have warranted more attention. It remains to be seen how this clause may be relied on to solve potential conflicts between EU law and Member States’ constitutional principles as happened with the Taricco-saga (see Case C-42/17).
Part IV gathers a number of diverse contributions, which are unified by their focus on the need to strike a balance between liberty and security. Valsamis Mitsilegas explores the hugely under-researched topic of measuring the role of mutual trust within EU’s external relations. He does so by critically assessing the agreements adopted to foster EU-US cooperation on matters of terrorism. The complexities of anti-terrorism laws are explored through a different lens in Jørn Vestergaard’s chapter, by focusing on Danish legislation. Paul de Hert and Jurai Sajfert investigate the function of data protection authorities – in the wake of the General Data Protection Regulation (GDPR) – in monitoring the processing of data by criminal justice agencies and highlight the need for increased cross-border cooperation between these supervising authorities. Leandro Mancano’s chapter takes readers back to the core issue of mutual trust and paints a broad picture of recent CJEU’s case law on the European Arrest Warrant. In a similar vein, Lorena Bachmaier Winter provides a first in-depth examination into the implementation of 2014 Directive on the European Investigation Order (EIO) by paying special attention to the interception of communications and the gathering or transfer of electronic evidence.
This multifaceted part of the book sheds further light on what is probably the most significant contradiction inherent to the development of EU criminal law, namely the relationship between the ‘sword’ and the ‘shield’ functions of criminal justice. All contributions express concerns for the lack of attention for fundamental rights originally affecting many early third pillar instruments (perhaps the ‘original sin’ of EU criminal law), but they also share a common and somewhat optimistic view about recent developments brought about by EU legislation and case law.
Finally, in Part V, contributors shed light on the intricate connections between national and (all the more frequently) supranational actors in the field of EU criminal justice. The analysis of these relationships reveals problematic imbalances. As both contributions of Sabine Gless and Thomas Wahl and the chapter written by Anne Weyembergh, Ines Armada and Chloé Brière point out, the development of the two main EU criminal justice agencies (Europol and Eurojust) has been affected by a lack of equilibrium between law enforcement and judicial powers. Gless and Wahl dwell notably on the institutional imbalance that characterises the role and functions of the two agencies as regards criminal justice cooperation. For their part, Weyembergh, Armada and Brière look into the functioning of Joint Investigation Teams as a specific case study to reflect on the cooperation between Europol and Eurojust. A further structural imbalance in the architecture of judicial cooperation concerns the lack of a ‘level playing field’ for prosecution and the defence in cross-border criminal cases. This disparity is apparent in the way in which the EPPO has finally been established as Hans-Holger Herrnfeld explains in his chapter written as a commentary on the then draft regulation establishing the EPPO.
In a similar vein, John Vervaele laments the lack of clarity in the material scope of competence of the European prosecutors, by criticising the absence of sufficiently clear definitions of offences that the new organ will be able to prosecute. This sits at odds with the principle of legality (nullum crimen nulla poena sine lege preavia et cearta) as, due to uncertainties and inconsistencies in the implementation of the PIF Directive, suspects will struggle to foresee for which offences they could be held criminally liable.
All in all, the volume edited by Brière and Weyembergh present itself as a key milestone in the development of EU criminal law scholarship. A ‘must read’ for anyone interested in this ever-changing field of study. Despite the numerous nuances, all contributions within this volume seem to work towards the same goal. Taken together, they provide an attempt to forge a constitutional theory of EU criminal law: One that factors in national diversity by relying on a multi-level protection of fundamental rights. Perhaps the most relevant output of ECLAN’s years-long research activities to date, this volume frames a compelling criticism of EU criminal law’s imbalances without giving up a true commitment to further EU integration.