10.6092/issn.2531-6133/10426
Keynote speech for the Annual Colloquium of the University of Bologna Law Review, February 20th, 2019, Alma Mater Studiorum University of Bologna (Bologna, Italy).
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Valsamis Mitsilegas
University of Bologna Law Review
European Integration
The Constitutional Dimension of European Criminal Law
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2019-12-31
2020-01-21
2019-08-23
2020-03-17
390-397
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Valsamis Mitsilegas
2019/12/31
10.6092/issn.2531-6133/10426
390
Queen Mary University of London
2531-6133
2
European Integration
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397
The Constitutional Dimension of European Criminal Law
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 CONFERENCE PAPERS                                                      https://doi.org/10.6092/issn.2531-6133/10426




  The Constitutional Dimension of European Criminal Law

                                           VALSAMIS MITSILEGAS †



CONFERENCE & MEETING PROCEEDING: Keynote speech for the Annual Colloquium of the
University of Bologna Law Review, February 20th, 2019, Alma Mater Studiorum
University of Bologna (Bologna, Italy).

KEYWORDS: Constitutional Law; European Criminal Law; Supranational Litigation; Taricco Case;
European Integration




                                       UNIVERSITY OF BOLOGNA LAW REVIEW

                                                   ISSN 2531-6133

                                                    [VOL.4:2 2019]

     This conference paper is released under the terms of Creative Commons Attribution 4.0 International License (CC-BY)



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Thank you very much for the introduction and kind invitation. I hope you
can hear me. It is a pleasure to address you. I think this is a great initiative.
I know it is challenging and complicated but congratulations to you and
your team for sustaining this journal, this serves as a forum for change.
I am very pleased because I have met some of you before and I have been
really impressed by the level and quality of the student body at all levels. It
is amazing that so many people are here today.
          You assigned me the brief to speak about European Criminal Law. I
chose to speak about European criminal law in broad terms, so I will focus
on the intersection between European criminal law and constitutional
law. The aim of my talk today is to cover the three main aspects of the
previously mentioned relationship. First of all, the aspect of power: what
can the EU do? What is its competence in the criminal sphere? How is this
ﬁeld evolving? The second aspect will be about principles: what are the
principles of EU law as of now in the ﬁeld of criminal law? And does
criminal law in that sense transform the meaning and content of the
constitutional principles of EU law or vice versa? And lastly, something
which is very important in this context are rights: what is the impact of
the integration in the European Criminal Justice on the protection of
fundamental rights? And what, if any, role does the integration of the
Charter play in the reconﬁguration of this landscape?
          I will focus on these topics, but ﬁrst I want to start by giving you a
more deﬁned context, especially for those of you who have not been
following closely the development of European criminal law. This is an
area of European integration which is very young compared to the others.
The EU has deﬁned express competence in the complex Maastricht Treaty
in 1992, but the fact is that EU law has been inﬂuencing national criminal
law in a number of ways. There have been a lot of discussions on how
criminal law is at the heart of state sovereignty and at the heart of our
modern understanding of state and state power so obviously the ceding of
powers to organizations which lie beyond the state is always a challenge.
†
    Valsamis Mitsilegas is Professor of European Criminal Law and Global Security and Deputy
    Dean for Global Engagament (Europe) at the Queen Mary University of London (UK).



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The second aspect which I forgot to highlight earlier is that questions on
criminal enforcement and the extent and content of European integration
in criminal matters become questions of constitutional law. This is the
case when one studies a number of recent landmark judgments of the
Court of Justice of the European Union. These rulings aim to address the
potential and real conﬂict between criminal law and constitutional law
principles and they have resulted in the development of constitutional
principles in EU criminal law.
      The third aspect, that is worth to be mentioned is that the
development    of   European     criminal    law    goes      beyond        traditional
‘zero-sum’ assumptions by scholars and politicians on the adverse
impact of Europeanization on national sovereignty. European criminal
law is not uniﬁed criminal law. We do not have a European criminal court
and neither do we have a European criminal code. European criminal law
is actually a system of continuous interaction and integration between EU
law and each national law. Judicial co-operation takes place within the
framework of mutual recognition, which requires the interaction between
national systems. Criminalisation takes place in the form of Directives,
which provide a leeway for member states in terms of implementation-
criminalisation thus occurs under national law.                    Even the most
‘avant-garde’ instrument of European criminal law, the Regulation
establishing a European Public Prosecutor’s Office, establishes not a
centralised, top-down system of investigation and prosecution, but
rather a system based on the interaction between EU law and national law.
      So bearing this in mind, European integration in criminal matters is
a complex process involving the interaction between the EU and national
law in a ﬁeld which is highly politicised. This is what makes the ﬁeld of
European criminal law an exciting ﬁeld for people like me and for some of
the PhD scholars today in this room.
      First of all, in terms of competence, what did the EU do in the ﬁeld
of criminal law? I would focus mostly on the production of substantive
criminal law and on the organisation of criminal law and criminal

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sanctions.   What are the compromises necessary for the evolution of
European integration in this sensitive ﬁeld? We have witnessed a major
constitutional change from the inter-governmental third pillar to the
entry into force of the Lisbon Treaty.
      The EU has traditionally had the competence to adopt rules on all
serious crimes for example on the big areas as terrorism, organized
crimes and so on. There could be a case for supranational criminal law and
for essential policies where the EU was involved. This was tested in two
very important cases by the Court of Justice in the 1990s whose concern
was about the protection of environment. So the member states came up
with a framework decision on harmonizing criminal law and environment
law (previously mentioned third pillar) and the Commission challenged
this in the Court of Justice as this was a matter under normal community
law because these cases did not only involved criminal or criminality but
they also involved the protection of environment. The Court of Justice
agreed. It treated criminal law not as a self-standing EU policy, but rather
as a means to an end used to achieve the objectives of the Union. These
rulings have been translated into Treaty provisions under ‘functional
criminalisation’ which is the legal basis of Article 83(2) TFEU.
      The Lisbon Treaty explains the constitutionalisation of the
European criminal law in different ways: ﬁrst of all, it aims to clarify and
strengthen the European Parliament’s legislative power in criminal
matters. Secondly, it supranationalizes the EU criminal law in terms of
the powers of EU institutions and the applicability of EU law principles
such as primacy and, where applicable, direct effect.                 What is also
important is that the Charter of Fundamental Rights is applicable in EU
criminal law. The Lisbon Treaty also attempted to clarify EU competence
to harmonise criminal offences and sanctions, via the introduction of
‘securitised’ criminalisation (competence on major areas of crime) in
Article 83(1) TFEU, and, as said above, ‘functional criminalisation’ in
Article 83(2) TFEU.



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In spite of the attempt to clarify the Union’s criminalisation competence
in Article 83 TFEU, there are still a number of questions regarding its
scope. Article 83(1) requires criminalisation for areas of crime having a
‘cross-border dimension.’ The meaning of ‘cross-border’ in this context
is contested.   There is a view treating this term as synonymous with
cross-border crime, limiting the Union’s competence in criminality
which involves more than one jurisdictions. A different view, with which I
would subscribe, interprets the scope of Article 83(1) TFEU more
extensively to include areas of crime with a cross-border dimension even
if these occur in a single jurisdiction.   The extent of the ‘functional
criminalisation’ competence of the EU in Article 83(2) TFEU is also
contested with the provision granting competence to the EU to legislate
when this is essential to ensure the effectiveness of EU policies which
have already been implemented. It is unclear what constitutes ‘essential’
and what the implementation requirements are for the provision to apply.
Moreover, Article 83(2) TFEU raises the question of the relationship
between criminal law and administrative law in cases where dual
instruments have been adopted- such as in the case of market abuse. One
can consider in these cases that the adoption of administrative sanctions
could lead to decriminalisation, by precluding Member States from
treating conducts sanctioned by administrative law as criminal in the
national legal orders.
      Another key development post-Lisbon has been the establishment
of a European Public Prosecutor’s office. The idea had a long gestation
since the days of the Corpus Juris and stems from the distrust of European
institutions- in particular the Commission – on the political will and
capacity of Member States to protect effectively the EU budget. The logic
behind this was that national prosecutors are either unwilling or unable
to prosecute effectively against the EU budget and this would thus require
a European response in the form of a European prosecutor. The logic here
is that a European body is needed to effectively protect European
interests. However, the project of a European prosecutor was contested in

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a number of European states in view of its potentially adverse impact on
state sovereignty and the state monopoly on prosecution in criminal
matters. This is why the Lisbon Treaty has introduced in Article 86 TFEU
possibilities for establishing a European Public Prosecutor’s Office (EPPO)
through enhanced co-operation. This has led to the adoption of the EPPO
Regulation, and at the time of writing the vast majority of EU Member
States are participating. However, the current non-participation of states
which are signiﬁcant recipients of EU funds, such as Hungary and Poland,
is a matter of concern.
      In terms of the structure and powers of the EPPO, we have moved
from a Commission- proposed centralised model to a multi-level system
involving multiple layers of EPPO offices and officers- with day to day
work handled by the European Delegated Prosecutors based in Member
States. From the point of view of the citizen and from the point of view of
legal certainty, this multi-layered system is problematic. Jurisdiction of
the Court of Justice is limited and applicable law (national or EU law) is
contested and unclear at times. The absence of harmonisation and the
over-reliance on national law, as well as the legal uncertainty can have
considerable negative consequences for the protection of fundamental
rights and for the position of individuals investigated or prosecuted by the
EPPO. However, this was the price to pay for a political compromise. For
the ﬁrst time we have an EU criminal justice agency with direct powers on
the national criminal justice systems, and the EPPO is a system which can
serve as a laboratory for further integration in European criminal law.
      In terms of the applicability of constitutional principles of EU law,
it is important to see how European criminal law is testing the Court’s
approach with regard to key constitutional principles. I think there are
two key cases that show how difficult it is sometimes to explain the
relationship between EU law and national laws.
      The ﬁrst case is the Taricco case, Taricco I and Taricco II as we EU
lawyers say – or the Taricco saga as it has been called by some scholars. I
will analyse Taricco from an EU perspective. In Taricco I, we get the

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reference by a lower Italian court by a judge who said that he cannot
prosecute in Italy - it is difficult to do so because of the Italian statute of
limitations applies - so the Italian judge asked Luxembourg what could he
do to give effectiveness to EU Law. The Court of Justice answered that this
situation is incompatible with the principle of effectiveness of EU law-
the national judge is under an obligation to disapply the national law if he
thinks that EU law would be breached. Taricco I was also important as a
successful example of the preliminary reference procedure, whereby a
judge from a lower court can send a question on interpetation directly to
the Court of Justice in Luxembourg.
       The beauty of Taricco was that ﬁrst of all it comes from a lower
judge and secondly, it involves a true question of effectiveness of the EU.
The question can be seen as a cry for help.           The national judge was
cocnerned about the potential of national law to lead to impunity as far as
fraud against the EU budget is concerned. Subsequent litigation in Italian
courts and in the Court of Jusice in ‘Taricco II’ centered on the
compatibility of the Court’s judgment in Taricco I with the principle of
legality. This generated an inconclusive judicial dialogue as to the legal
meaning and extent of the principle of legality. The Court of Jusitce in
Taricco II attempted to accommodate the Italian courts even if this meant
legal inconsistencies in its ruling. However, the response in Italy was not
so accommodating with one of the key concerns from the perspective of
EU law being attempts by the Italian higher judiciary to limit the avenues
of preliminary references from Italian lower courts to Luxembourg-
undermining thus this bottom-up collaborative mechanism on the
interpretation of EU law.
       A further constitutional aspect concerns the protection of
fundamental rights in Europe’s area of freedom, security and justice. Key
questions arise here from the operation of the system of mutual
recognition in criminal matters, and most notably on the operation of the
European Arrest Warrant system. The system is based on mutual trust. I
accept your request as a judge of another EU member state because I trust

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your system and I do not ask many questions about what lies behind your
decision, I comply because we are all located in an Area of Freedom,
Security and Justice and we do not want criminals to take advantage of the
abolition of borders. Initially the European Arrest Warrant system based
on uncritical mutual trust did not include a ground of refusal to execute on
grounds relating to fundamental rights concerns. We are all ‘good guys’,
we have signed the ECHR at the end of the day. In its initial case-law, the
Court of Justice defended this approach, linking it to the effectiveness of
EU law and EU criminal enforcement. A key judgment in this context has
been Melloni, whereby the Court of Justice found that EU secondary law
has primacy over national constitutional law, even if the latter provides a
higher level of human rights protection. In view of reactions by national
courts since, the Court of Justice has revised its case-law to move from a
model of blind trust to a model of earned trust: in the case of Aranyosi,
the Court of Justice established a model of judicial dialogue between the
issuing and the executing authority; if the latter has doubts on the
adequacy of the human rights protection of the requested individual after
the execution of the warrant, and stated for the ﬁrst time that if human
rights concerns persist, the execution of the warrant can be suspended. In
the subsequent case of LM, the Court of Justice extended this reasoning in
cases where concerns relate to the rule of law, when the judicial
authorities of the issuing member state are not deemed to be independent.
Thus, the Court of Justice made a decisive step towards taking meaningful
account of human rights, through a system of dialogue both between
national courts and between national courts and the Luxembourg Court.
      It is through this process of evolution and learning that the
constitutionalisation of European criminal law will take ﬂesh.
      Thank you very much for your attention.




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