Transcript Slide 1

The Law of the Lisbon Treaty
Irish Centre for European Law Conference
The Area of Freedom, Security and
Justice & the Rule of Law
Dr. Laurent Pech
(NUI Galway)
Irish Centre for European Law Conference
Outline
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1. Introduction: 1.1 “The collapse of
the Pillars”; 1.2 Scope of presentation
2. The EU Principle of the Rule of Law
3. Positive Changes Introduced by
Lisbon: 3.1 ECJ’s Jurisdiction over FSJ
measures; 3.2 EU Power in the Area of
Criminal Law; 3.3 “Emergency Brakes”
Provisions; 3.4 Miscellaneous
4. Questionable Provisions: 4.1.
“National Security” Exceptions; 4.2 Optin Arrangements; 4.3 Transitional
Arrangements
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NEW Title V TFEU: AREA OF FSJ
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[All fields under current Titles IV TEC and VI TEU
will, from the date of entry into force of Lisbon,
come into this new Title]
Title V contains the following Chapters:
Chap. 1: General provisions (Art. 67-76 TFEU)
Chap. 2: Policies on border checks, asylum and
immigration (77-80)
Chap. 3: Judicial cooperation in civil matters (81)
Chap. 4: Judicial cooperation in criminal matters
(82-86)
Chap. 5: Police cooperation (87-89)
Irish Centre for European Law Conference
The EU Rule of Law
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Art. 6(1) TEU: “The Union is founded
on the principles of liberty,
democracy, respect for human rights
and fundamental freedoms, and the
rule of law, principles which are
common to the Member States”
See also Case 294/83 Les Verts
[1986]
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New Art. 2 TEU
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“The Union is founded on the values of
respect for human dignity, freedom,
democracy, equality, the rule of law and
respect for human rights, including the
rights of persons belonging to minorities.
These values are common to the Member
States in a society in which pluralism,
non-discrimination, tolerance, justice,
solidarity and equality between women
and men prevail.”
Irish Centre for European Law Conference
Current ECJ’s jurisdiction in respect of Title IV TEC
measures (1st Pillar JHA measures):
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Relatively extensive jurisdiction: As
with other 1st Pillar measures, ECJ can
rule on annulment actions (Art 230 EC),
infringement actions (226 EC) and actions
for failure to act (232 EC)
Exception: PR (234 EC) can only be
made from NCs against whose decisions
there is no judicial remedy under national
law (68(1) EC)
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Current ECJ’s Jurisdiction in respect of Title
VI TEU (“3rd Pillar JHA measures”)
Limited jurisdiction =
 Infringement proceedings excluded;
 Only the MS/Commission can bring
annulment actions (35(6) TEU) and ECJ
cannot rule on legality of “Conventions”
(35(1) TEU);
 PR possible only where the MS in question
has made a declaration accepting the
Court’s jurisdiction (+ option for the MS to
limit the preliminary ruling jurisdiction to
courts of final appeal)
Irish Centre for European Law Conference
ECJ’s Jurisdiction post-Treaty of Lisbon
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Lisbon completes the absorption of the
remaining 3rd Pillar of JHA into 1st Pillar =
All FSJ Measures will, subject to transitional and,
in the case of the UK/Ireland, opt-in
arrangements, come over a period within the
jurisdiction of the ECJ.
Most important changes: (i) PRs will be possible
from all NCs on Qs relating to asylum, immigration
and civil law matters; (ii) PRs will be available in all
MS in the area of criminal law and policing from any
NC; (iii) infringement proceedings will be possible in
respect of instruments adopted in the area of
criminal law and policing
Traditional “national security” exception maintained
(Art. 276 TFEU): TBD
Irish Centre for European Law Conference
EU Power in the Area of
Criminal Procedural Law
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Specific and exhaustive list of areas for
EU potential action: (1) admissibility of
evidence, (2) individual rights procedure
and (3) victims’ rights
Limitations: EU Action must facilitate
mutual recognition of judgments and
decisions and police cooperation in
criminal matters “having a cross-border
dimension”
+ EU rules “must take into account the
differences between the legal traditions
and systems of the MS.”
Irish Centre for European Law Conference
EU Power in the Area of
Substantive Criminal Law
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Exhaustive list of areas of particularly serious
crime with a cross-border dimension:
Terrorism, trafficking in human beings and
sexual exploitation of women and children,
illicit drug trafficking, illicit arms trafficking,
money laundering, corruption, counterfeiting
of means of payment, computer crime and
organised crime
Limitations: Each area of crime to be subject
to harmonisation must (1) be particularly
serious and (2) have a cross-border
dimension
Irish Centre for European Law Conference
“Emergency Brakes”
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Where a MS considers that a draft
directive would affect fundamental
aspects of its criminal justice system,
it may request that the draft directive be
referred to the European Council. In that
case, the ordinary legislative procedure
shall be suspended...
See New Art. 82(3), 83(3). See also 86(1)
[EPP], 87(3) [Police Cooperation]
Irish Centre for European Law Conference
Fight against Terrorism: New Art. 75 TFEU
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Where necessary to achieve the objectives set
out in Article 67, as regards preventing and
combating terrorism… the European Parliament
and the Council … shall define a framework for
administrative measures with regard to capital
movements and payments, such as the freezing
of funds, financial assets or economic gains
belonging to, or owned or held by, natural or
legal persons, groups or non-State entities.
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The acts referred to in this Article shall include
necessary provisions on legal safeguards.
Irish Centre for European Law Conference
The “National Security Exception”
(New Art. 276 TFEU)
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In exercising its powers regarding the
provisions of Chapters 4 and 5 of Title V of
Part Three relating to the area of FSJ, the
Court of Justice of the European Union
shall have no jurisdiction to review
the validity or proportionality of operations
carried out by the police or other lawenforcement services of a MS or
the exercise of the responsibilities
incumbent upon MS with regard to the
maintenance of law and order and the
safeguarding of internal security
Irish Centre for European Law Conference
PROTOCOL (No 21) on the Position of the UK and
Ireland in respect of the area of FSJ
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Art. 1: “Subject to Article 3, the United
Kingdom and Ireland shall not take part in
the adoption by the Council of proposed
measures pursuant to Title V of Part Three of
the Treaty on the Functioning of the European
Union. …”
Art. 8: “Ireland may notify the Council in
writing that it no longer wishes to be covered
by the terms of this Protocol. In that case,
the normal treaty provisions will apply to
Ireland.”
Irish Centre for European Law Conference
PROTOCOL (No 36) on Transitional Provisions
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Art. 10(1): With respect to EU acts in the field
of police cooperation and judicial cooperation in
criminal matters adopted before the entry into
force of the Treaty of Lisbon, the powers of the
Commission under Art. 258 TFEU shall not be
applicable and the powers of the ECJ under
current Title VI TEU shall remain the same,
including where they have been accepted under
Art. 35(2) TEU
These transitional arrangements shall cease to
have effect five years after entry into force of
the Treaty of Lisbon.
Irish Centre for European Law Conference
The Law of the Lisbon Treaty
Irish Centre for European Law Conference