Primeras percepciones sobre la homosexualidad.

1. Justice and Home Affairs cooperation in the European Union

Cooperation in Justice and Home Affairs in the European Union (EU) formally started with the Treaty of Maastricht (1992), which established the European Union itself. The EU had a so-called pillar structure, the Third Pillar of which was dubbed Cooperation in Justice and Home Affairs. The Third (and Second) pillars of the EU were mostly intergovernmental in nature, as opposed to the supranational character of the First Pillar (i.e., the European Communities). The Treaty of

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Dr.sc. Anita Blagojević, senior lecturer, Department of Constitutional and Politicial Sciences, Osijek, [email protected]

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Dr. habil. Csongor Herke, PhD, associate professor, Department of Criminal Procedure Law and Forensic Science, Pécs, [email protected]

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Dr. Ágoston Mohay, junior lecturer, Department of Public International and European Law, Pécs, [email protected]

Anita Blagojević– Csongor Herke– Ágoston Mohay

Amsterdam (1997) transferred a number of areas from the Third Pillar into the First, ‘communitarising’ among others asylum policy, visa policy and judicial cooperation in civil matters.1 The Third Pillar was thus renamed into Police and Judicial Cooperation in Criminal Matters.2 The Amsterdam Treaty also meant the introduction of the concept of the EU as an area of freedom, security and justice. Recently, when the Lisbon Treaty entered into force (on 1st of December 2009), the pillar structure was abolished, and the EU has de jure and de facto taken the place of the European Community. The former Third Pillar and Title IV of the EC-Treaty were modified and merged into the new Title V of the Treaty on the Functioning of the European Union (TFEU). The abolition of the pillars brought about remarkable changes for cooperation in criminal matters, as integration in these areas has become truly supranational.3

2. The circumstances of the adoption of the EAW Framework Decision

The EAW Framework Decision was adopted in 2002, under the then Third Pillar of the EU. The political impetus for its creation is to be found in the Tampere Programme adopted by the European Council in 1999. This political document introduced the idea of mutual recognition of judicial decisions in the EU. As an element of this, it was stated that enhanced mutual recognition of judicial decisions and judgements would facilitate better co-operation between authorities and the judicial protection of individual rights. The European Council identified the principle of mutual recognition as the future cornerstone of judicial co- operation in both civil and criminal matters within the Union. More specifically, concerning criminal cases, the Council proposed that the formal extradition procedure should be abolished among the Member States regarding persons who are fleeing from justice after having been finally sentenced, ‘and replaced by a simple transfer of such persons.’4

1

These areas were inserted into Title IV of the EC Treaty, thus establishing new competences for the European Community.

2

The Treaty of Amsterdam also incorporated the Schengen acquis into the framework of the EU.

3

Some intergovernmental features still remain, however. For an analysis see V. Mitsilegas, EU Criminal Law (Oxford, Hart Publishing 2009) pp. 41-56.

4

Tampere European Council 15 and 16 October 1999 – Presidency Conclusions, Section B/VI

The legal characteristics of the European Arrest Warrant, its implementation in...

The Commission was asked to produce a corresponding proposal. The proposal for the Framework Decision was ready by 2001.5 After some discussion (the proposal was a type B element on the Council’s agenda), and after consulting the European Parliament, which produced a positive report,6 the legal instrument was finally adopted on the 13th of June 2002, with the formal title Council Framework Decision on the European Arrest Warrant and the surrender procedures between Member States (2002/584/JHA).7 Member States were obliged to take the necessary measures to comply with the provisions of the Framework Decision by 31 December 2003.

3. The Legal Nature of Framework Decisions

Before the changes facilitated by the Treaty of Lisbon, Framework Decisions were regulated in an Article of the Treaty on European Union. Article 34 (b) declared that the Council, acting unanimously (on the initiative of any Member State or of the Commission) may adopt Framework Decisions ‘for the purpose of approximation of the laws and regulations of the Member States. Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect.’ Framework Decisions are similar to Directives regarding structure and regulating method – they are binding as to their result, while leaving national legislators some regulatory freedom. As directive-like legal norms, they need to be implemented in national laws. Framework Decisions do not necessarily result in unified law, but in approximated legal regulations, allowing (some) national legal characteristics and traditions to be maintained. The EU Treaty itself proclaimed that Framework Decisions do not have direct effect – as opposed to Directives, which may entail vertical direct effect.8 This Treaty provision has been if not overridden, but certainly presented in new light by the Court of Justice of the European Union (CJEU) in the

5

COM(2001)0522 final, OJ 332 E, 27/11/2001 p. 0305-0319. 6

The Parliament was consulted under Art. 39 of the Treaty on European Union (pre- Lisbon version).

7

OJ 2002 L 190/1

8 _{For an analysis see P. Craig, ‘Directives: Direct Effect, Indirect Effect and the} Construction of National Legislation’, 22 European Law Review (1997) pp. 519- 538.

Anita Blagojević– Csongor Herke– Ágoston Mohay

Pupino case.9 In this judgment the ECJ confirmed the application of the so-called principle of conforming interpretation, which was originally developed by the Court’s case law regarding Community law Directives.10 In Pupino, the Court noted that it would be difficult for the EU

‘to carry out its task effectively if the principle of loyal cooperation, requiring in particular that Member States take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under European Union law, were not also binding in the area of police and judicial cooperation in criminal matters’.

Thus, in its judgment the CJEU held that the principle of conforming interpretation is also binding in relation to Framework Decisions: accordingly, when applying national law, the national court must interpret the national regulations as far as possible in the light of the wording and purpose of the framework decision in order to achieve the result which it pursues. An important constraint upon the principle, however, also needs to be kept in mind: the extent of the interpretation of national law in the light of Framework Directives is limited by general principles of law, particularly those of legal certainty and non- retroactivity.11

4. The situation of Framework Decisions following the Lisbon Treaty

As the Pillar Structure of the EU has been abolished, and the sources of law in the EU have been (more or less) unified, new acts relating to the Area of Freedom, Security and Justice will take the form of Directives, Regulations and Decisions – supranational sources of law, the use of which was previously restricted to the area of Community law. These

9

ECJ, Case C-105/03 Criminal Proceedings against Maria Pupino [2005] ECR I- 5285.

10

See inter alia Case 14/83 Sabine Von Colson and Elisabeth Kamann v. Land Nordrhein-Westfalen [1984] ECR 01981, para 26.; Case 80/86 Criminal Proceedings agains Kolpinghuis Nijmegen BV [1987] ECR 03969., para 12.; C- 106/89 Marleasing SA v. La Comercial Internacional de Alimentacion SA [1990] ECR I-04135., para 8.

11

The Court referred in particular to ‘those principles prevent that obligation from leading to the criminal liability of persons who contravene the provisions of a framework decision from being determined or aggravated on the basis of such a decision alone, independently of an implementing law.’ Case C-105/03, para 45.

The legal characteristics of the European Arrest Warrant, its implementation in...

sources of law may entail direct effect, and have primacy (supremacy) over national law.12

However, the acts which have been previously under the Third Pillar, have neither been abolished nor transformed automatically. Their legal fate is regulated by a protocol attached to the Treaty on the Functioning of the European Union that lays down some transitional arrangements regarding (among others) the former Third Pillar of the EU.13 These ‘legacy acts’ (Common Positions, Framework Decisions, Conventions and implementing decisions) remain in force, and their legal nature is not altered, leaving them without direct effect and supremacy.14 Once such an act is amended, the new rules established by the Lisbon Treaty will apply, even if the matter at hand is a word-by-word conversion. Naturally, if such legacy acts are annulled, they can only be replaced by the ‘new’ legal instruments provided by the modified Treaties. In the Stockholm Programme, the Commission was asked to submit ‘a proposal for a timetable for the transformation of instruments with a new legal basis’, meaning that transformations are indeed foreseen and preferred by the European Council.15 The timetable has not yet been produced, so it is questionable whether the EAW Framework Decision

12 _{Regarding direct effect, see inter alia Cases 26/62 Van Gend en Loos [1963] ECR} 001.; 57/65 Lüttcike v. Hauptzollamt [1966] ECR 205.; 9/70 Grad v Finanzamt Traunstein [1970] ECR 825.; 41/74 Van Duyn v. Home Office [1974] ECR 1337.; 43/74 Defrenne v Sabena [1976] ECR 547.; 152/84 Marshall v. Health Authority [1986] ECR 723. Regarding supremacy or primacy see inter alia Cases 6/64 Costa v. ENEL [1964] ECR 585.; 11/70 Internationale Handelsgesellschaft [1970] and 106/77 Simmenthal [1978] ECR 629. For some recent analysis of these doctrines see M. Prinssen and A. Schrauwen, Direct Effect – Rethinking a Classic of EC Legal Doctrine (Europa Law Publishing 2002) and K. J. Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (Oxford, Oxford University Press 2001).

13

Protocol (No. 36) on Transitional Provisions, Title VII – Transitional provisions concerning acts adopted on the basis of Titles V and VI of the Treaty on European Union prior to the entry into force of the Treaty of Lisbon.

14

The phrase ‘legacy acts’ has been borrowed from Professor Peers. See S. Peers, The ‘Third Pillar acquis’ after the Treaty of Lisbon enters into force, Statewatch Analysis, 3 November 2009, available at: <http://www.statewatch.org/analyses/86- third-pillar-acquis-post-lisbon.pdf>, (last accessed on 2010.07.20).

15

The Stockholm Programme – An open and secure Europe serving and protecting the citizen, Conclusions of the European Council (10/11 December 2009), Section 1.2.10. This political programme outlines the future priorities of the EU concerning Justice- and Home Affairs policy for the time period between 2010-2014.

Anita Blagojević– Csongor Herke– Ágoston Mohay

will be transformed in the near future. (To make things even more complicated, there are still some Maastricht-era Third Pillar instruments currently in force.16)

The changes brought about by the Lisbon Treaty in the policy areas previously belonging to the Third Pillar not only concern the legal instruments, but also the method of decision making and the jurisdiction of the Court of Justice of the European Union (CJEU): in most cases, the ordinary decision making procedure (co-decision) will apply, and the CJEU will have full jurisdiction as opposed to the previously restricted possibilities under Article 35 EU of the pre-Lisbon Treaty on European Union. Regarding the latter, the aforementioned protocol establishes a five-year transitional period, during which the Commission will not be able to initiate infringement proceedings against members states on the basis of non-compliance with the acts adopted under the former Titles V and VI of the pre-Lisbon version of the Treaty on European Union. Furthermore, any other changes regarding the jurisdiction of the CJEU in relation to these policy areas will also not be applicable during the five-year moratorium.17