2021 - Turning point for the EU and EU Criminal Law?

If I were to use a word to describe 2021, I would probably use uncertainty. The pandemic is likely the main cause for this - possibly too subjective - feeling. But beyond the pandemic, a few further events aggravate this sense of uncertainty when looking from the prism of an EU criminal lawyer.

2021 was the year in which the transitional period following Brexit expired and the new legal framework governing the relations between the EU and the UK entered into force ¹ . Other than the fuzziness of some legal provisions governing this special relation (and some doubts raised about the jurisdiction of the EU in relation to an agreement with a now third-state regarding cooperation in criminal matters), the uncertainty of the practical implications of the UK’s loss of membership to a federal Union somehow gives me both as a practitioner and as an academic a sense of ambiguity. While in a way opening the doors to our imagination and creative capacity, in another way it leaves our clients and their lives on hold. It also creates a sense of insecurity and uncertainty for EU citizens as to whether after all this project of a perennial and solidary Union is nothing more than an unfulfillable aspiration.

2021 was also the year in which the European Public Prosecutor’s Office (EPPO) finally entered operations. As an EU citizen, I am enthusiastic to see an institution come to light, which implements a further step in this ever-closer union of Europeans. I see it as paramount that the EPPO establishes itself as a strong, fair and reputable European institution. A symbol of the rule of law, justice and transparency in the EU. However, I fear that the legal framework adopted following difficult political negotiations and pragmatic consensus is not sufficient to reach this ultimate purpose, having remained short of creating a fully-fledged European body. Indeed, as an EU criminal lawyer and practitioner, reading the EPPO Regulation ² I find myself again in a room full of fuzziness and uncertainty.

For example, in the realm of defence rights, I am concerned to see beautiful forms of words or proclamations of principles, such as: ‘the activities of the EPPO shall be carried out in full compliance with the rights of suspects and accused persons enshrined in the Charter, including the right to a fair trial and the rights of defence’ ³ . Yet I see few operating provisions. The Regulation states that the minimum rights established in the procedural rights directives ⁴ are applicable in EPPO proceedings ⁵ (Directives which however not regulate explicitly EPPO proceedings and contain only minimum broad provisions). Furthermore, it declares that the rights established in national law are applicable ⁶ . No right of direct access to the EU Highest Court is granted to those facing a EPPO investigation.

As both an EU citizen and defence lawyer, I believe that a suspect, accused or defendant in criminal proceedings brought by a truly European institution such as the EPPO must have the same rights throughout Europe (especially due to the flexibility of forum choice). And these rights must be concrete and operational, not only theoretical and illusory (to borrow the European Court of Humans Rights case law expression). Law and practice show that there is no such equal and effective protection throughout the EU. Even those rights that are well-established at domestic level are blurred when put in a cross-border context or in this new world of prosecution by an EU institution. Steps further in the direction of the creation of truly European rights and remedies must be resolutely taken, in order to bring this lack of clarity and certainty to an end.

Finally - still blown away by the shockwaves Brexit sent across the EU, 2021 was a year in which the boundaries and feasibility of the federal model of the Union have been put to test. Amidst the “rule of law crisis”, we find ourselves in the presence of decisions by the Highest Court in the Union, declaring that certain Member States are in violation of the EU’s core values and “punishing” them with financial sanctions for non-compliance with interim measures ordered in order to ‘avoid causing serious and irreparable harm to the legal order of the European Union and, consequently, to the rights which individuals derive from EU law and the values, set out in Article 2 TEU, on which that Union is founded, in particular that of the rule of law’ ⁷ .

What happens if the decisions of the Highest Court of the Union are simply ignored and not complied with by the persons vested with authority to implement them in the Member States? Vested with prescriptive and adjudicative jurisdiction ⁸ , the EU is deprived of executive jurisdiction. What does this mean in practice? It means that the Union may not forcibly enforce its own judicial decisions if those in power in the Member States simply refuse to do so. In a domestic setting, Courts’ decisions are subject to coercive enforcement and a refusal to comply with them may even be subject - in certain serious instances, which may undermine the authority of the judicial branch itself - to punishment under criminal laws. Is such status quo in the EU acceptable, especially when facing an infringement of the core values and of the core normative principles of the edifice of Union law? Will this status quo not impact the effectiveness of other EU institutions, such as the EPPO?

My view is that we should never let out of our sight the vision of what the EU is all about: a process to create ‘an ever closer union among the peoples of Europe’ (Article 1, para 2, Treaty on European Union), founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights (Article 2 Treaty on European Union). Some will say this is a rather oneiric statement - and maybe they are right. But for me this is what the EU is about and we, as European Union citizens, and our governments, should be clear about it and establish a fully-fledged Union. Hesitation leaves room for ambivalence which is in turn exploited by those who want to undermine the dream of a true Union.

2021 begs the question: have we reached the limits of this ever-closer Union? I truly hope that we have not and that when we look back from the future, it will rather be seen as a turning point for the adoption of resolute steps - including in EU Criminal Law - in the fulfilment of the dream that this Union was and still is.