Uppsala Faculty of Law

Working Paper 2011:6b

EU Criminal Law Relocated

Recent Developments

Ester Herlin-Karnell
 Abstract
This paper seeks to chart recent developments in EU criminal law
with particular emphasis on case law delivered after the entry into
force of (and in the run up to) the Lisbon Treaty. It begins by set-
ting the scene of EU criminal law post the Lisbon Treaty, by briefly
sketching the main changes as provided by this Treaty. The specific
focus of this paper is however the operation of mutual recognition
in this area and the implications of citizenship rights as demon-
strated in the Wolzenburg case. In addition, the paper cautiously
looks at the notion of an ‘autonomous interpretation’ of EU crimi-
nal law as implied by the Court in the recent Mantello case as well
as briefly examining the IB case regarding the scope of mutual rec-
ognition in the present field.

Working paper 2011:6b

EU Criminal Law Relocated: Recent Developments

Dr Ester Herlin-Karnell
Assistant Professor in EU Law

Department of Transnational Legal Studies

Faculty of Law
VU University Amsterdam
De Boelelaan 1105
1081 HV Amsterdam
[email protected]

Available at http://uu.diva-portal.org
Contents
1 Introduction 4

2 Main changes for the Criminal Law as introduced

by the Lisbon Treaty 5

3 The EU’s criminal law agenda – succinctly put 9

3.1 Criminal law and the emerging notion of an
autonomous European legal order 11

4 A roadmap for procedural safeguards 17

5 Concrete examples of long-lasting clashes 18

5.1 Brief comment on data protection and the
individual 19
5.2 Joint investigation orders 20

6 Conclusion 22

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 Ester Herlin-Karnell

1 Introduction 

This paper seeks to discuss recent developments in the area of

European criminal law. Indeed, the entry into force of the Lisbon
Treaty and thereby the abolition of the complex pillar system and
the extended jurisdiction of the Court of Justice to cover this area
have been of great importance for the credibility of the area of
freedom, security and justice (AFSJ) project. Nevertheless, the
obvious question is of course how much has really changed in the
present area after the entry into force of the Lisbon Treaty? Has
EU criminal law been (completely) relocated? The Lisbon Treaty
opens up a new chapter in the history of EU criminal law by ex-
plicitly transforming it to the supranational level as forming part of
title V of the Treaty of the Functioning of the European Union
(TFEU). This paper seeks to chart these developments with par-
ticular emphasis on recent case law and the concept of autono-
mous interpretation in this area.
More specifically, this paper has three aims. I will begin by
briefly sketching the main changes for the criminal law as intro-
duced by the Lisbon Treaty including the implications of the
Stockholm programme in this area. 1 The Stockholm programme is
the latest Justice and Home Affairs agenda and superseded the
Hague programme. 2 It represents an important step in the direction
of more criminal law regulation at the EU level. Moreover, this
paper will look more closely at recent case law in this area. I will try
to investigate what this case law tells us about the relationship be-
tween the individual and the area of freedom, security and justice
(AFSJ) by focussing on the implications on citizenship in this area
as one of the novelties of the AFSJ. The paper concludes by sup-
plying some general thoughts about the future of EU criminal law.


This working-paper remains work in progress and was presented at the Uppsala Uni-
versity European Law Colloquium on Freedom, Security and Justice on 13-14 January
2011. Some of the ideas were also presented at Edinburgh Law School on 10 Decem-
ber 2010 under the title ‘Is the citizen driving the EU’s criminal law agenda’. Thanks go
to Dr Maria Bergstrom for her helpful comments and to the participants in these semi-
nars. The usual disclaimer applies.
1 The Stockholm programme – An open and secure Europe serving and protecting the

citizen (OJ C115/1, 02.12.2009).

2 The Hague Programme: 10 priorities for the next five years (OJ C 236, 24.9.2005).

4
 EU Criminal Law Relocated: Recent Developments

2 Main changes for the Criminal Law as

introduced by the Lisbon Treaty
It is fitting to begin by briefly setting out the basic legal framework
of EU criminal law after Lisbon. 3 The crucial provisions are Arti-
cles 82 (procedural criminal law) and 83 TFEU (substantive crimi-
nal law). These provisions need, however, to be read in the light of
Chapter 1 of Title V TFEU, which sets out the general goals to be
achieved in this area. More specifically, Article 67 TFEU stipulates
that the Union shall constitute an area of freedom, security and
justice with respect for fundamental rights and the different legal
systems and traditions of the Member States. Moreover, it provides
that the Union shall endeavour to ensure a high level of security
through measures to prevent and combat crime, racism, and xeno-
phobia, and through measures for coordination and cooperation
between police and judicial authorities and other competent au-
thorities, as well as through the mutual recognition of judgments in
criminal matters and, if necessary, through the approximation of
criminal laws. So the importance of ensuring a high level of security
plays an important role here.

Procedural criminal law – basics I

Article 82 TFEU stipulates that judicial cooperation in criminal
matters shall be based on the principle of mutual recognition and
should include the approximation of the laws and regulations of
the Member States in the areas referred to in paragraph 2 of the
same article. This paragraph, in turn, states that the European Par-
liament and the Council may establish minimum rules to the extent
necessary to facilitate mutual recognition of judgments and judicial
decisions as well as police and judicial cooperation in criminal mat-
ters having a cross-border dimension. Such rules shall take into
account the differences between the legal traditions and systems of
the Member States. Article 82(2) TFEU then sets out a list of areas
within which the EU has legislative competence, including the mu-
tual admissibility of evidence between the Member States, the
3For a recent comprehensive analysis, see S Peers, EU Justice and Home Affairs (OUP
Oxford 2011).

5
 Ester Herlin-Karnell

rights of individuals in criminal proceedings, and provisions regard-

ing the rights of victims. Furthermore, the provision contains a so-
called ‘general clause’ stating that any other specific aspect of
criminal procedure, which the Council has identified by (unani-
mous) decision in advance, would qualify for future approximation.
Finally, Article 82(2) states that the adoption of the minimum rules
should not prevent Member States from maintaining or introduc-
ing a higher level of protection for individuals. It remains to be
seen whether this constitutes a far-reaching and sufficiently consis-
tent solution as regards the protection of the individual. In particu-
lar, it remains unclear to what extent a Member State could insist
on higher levels of protection of the individual in the context of
the European Arrest Warrant (EAW) 4 and therefore refuse to sur-
render even since there is no general human rights exception under
the EAW. Instead the notion of mutual recognition (and trust) is
the main rule here based on the assumption that the national legal
orders offer a sufficient framework for analysis in this area.

Substantive criminal law – basics II

Article 83(1) TFEU concerns the regulation of substantive criminal
law and stipulates that the European Parliament and the Council
may establish minimum rules concerning the definition of criminal
law offences and sanctions in the area of particularly serious crime
with a cross-border dimension resulting from the nature or impact
of such offences or from a special need to combat them on a
common basis. Thereafter, this provision sets out a list of crimes in
respect of which the EU shall have legislative competence such as
terrorism, organised crime, and money laundering. It also states
that the Council may identify other possible areas of crime that
meet the cross-border and seriousness criteria. Moreover, and in-
terestingly, Article 83(2) establishes that the possibility exists for
approximation if a measure proves essential towards ensuring the
effective implementation of a Union policy in an area that has al-
ready been subject to harmonisation measures.

4 Framework Decision European Arrest Warrant, [2002] OJ L 190/1, on the EAW.

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 EU Criminal Law Relocated: Recent Developments

The Court’s jurisdiction – basics III

One of the most significant changes introduced by the Lisbon
Treaty is the extension of the Court’s jurisdiction also to cover the
former third pillar area. 5 This is obviously one of the most impor-
tant constitutional restructurings under the Lisbon Treaty and one
of the most crucial changes for the individual as regards effective
judicial protection. 6 It should perhaps be recalled that prior to the
entry into force of the Lisbon Treaty, jurisdiction was based on a
voluntary declaration by Member States as to whether to accept the
Court’s jurisdiction in accordance with Article 35 TEU. 7 The Lis-
bon Treaty changes this, as it significantly extends the Court’s ju-
risdiction within the AFSJ field. Yet, the Lisbon Treaty Protocol on
Transitional Provisions provides for a five-year transition – or al-
teration – period before the existing third pillar instruments will be
treated in the same way as other Union instruments. 8
Therefore, despite the entry into force of the Lisbon Treaty and,
thereby, the merging of the pillars, there will remain ‘echoes’ of the
third pillar in terms of the transitional Protocol and its five-year
transition period. Obviously, this means that the Commission will
not have the power to bring infringement proceedings against
5 Discussed in E Herlin-Karnell, ‘The Lisbon Treaty. A Critical Analysis of Its Impact

on EU Criminal Law’ (2010) European criminal law association forum 58.

6 See however, D Leczykiewicz, ‘Effective Judicial protection of Human Rights after

Lisbon: should national courts be empowered to review EU secondary law?’ (2010) 35

ELRev 326.
7 E.g., E. Denza, The intergovernmental pillars of the European Union, (OUP, Oxford 2002),

Ch. 9.
8 Article 10 of this Protocol stipulates that:

1. As a transitional measure, and with respect to acts of the Union in the field of
police cooperation and judicial cooperation in criminal matters which have been
adopted before the entry into force of the Treaty of Lisbon, the powers of the insti-
tutions shall be the following the date of entry into force of that Treaty: the powers
of the Commission under Article 258 of the Treaty on the Functioning of the
European Union shall not be applicable and the powers of the Court of Justice of
the European Union under Title VI of the Treaty on European Union, in the ver-
sion in force before the entry into force of the Treaty of Lisbon, shall remain the
same, including where they have been accepted under Article 35(2) of the said
Treaty on European Union.
2. The amendment of an act referred to in paragraph 1 shall entail the applicability
of the powers of the institutions referred to in that paragraph as set out in the
Treaties with respect to the amended act for those Member States to which that
amended act shall apply.
3. In any case, the transitional measure mentioned in paragraph 1 shall cease to
have effect five years after the date of entry into force of the Treaty of Lisbon.

7
 Ester Herlin-Karnell

Member States as regards alleged breaches of pre-existing measures

during this period. 9 It also means that the complex inter-pillar
structure which has characterised European criminal law will re-
main influential for some time. Moreover, as a result of the transi-
tional rules, there will be mixed jurisdiction over different measures
concerning the same subject matter, and the most feasible regime
(and favourable from the perspective of the individual) should then
be preferred. The crucial question seems to concern the definition
of when an act is ‘amended.’ It seems likely that in the absence of
any de minimis rule or any indication that acts are in any way sever-
able as regards the Court’s jurisdiction, any amendment − no mat-
ter how minor − would suffice. 10 In the light of the Court’s history
in promoting European integration, the Court would conceivably
favour the most inclusive reading of when an act is ‘amended.’
Most importantly, the Lisbon Treaty introduces the possibility
of expedited procedures for persons in custody. Article 267 TFEU
provides that, if a question is raised in a case pending before a
court or tribunal of a Member State with regard to a person in cus-
tody, the Court shall act with a minimum of delay. This is obvi-
ously an extremely important change and reflects the debate on
speedier justice in Europe. However, despite the reformation of
the Court of Justice’s jurisdiction effected by the Lisbon Treaty,
Article 276 TFEU makes it clear that the Court will still not have
the power to review the validity or proportionality of operations
carried out by the police or other law enforcement agencies of a
Member State, or the exercise of responsibilities incumbent upon
Member States with regard to the maintenance of law and order
and the safeguarding of internal security. Likewise, Article 4 (2)
TEU reinstates this exception by stipulating that national security
remains the sole responsibility of each Member State. This is likely
to create interpretation problems as regards the notion of ‘internal
Member State security’ as opposed to EU security. 11

9 S Peers, ‘EU criminal law and the Treaty of Lisbon’, (2008) 33 EL Rev 507.
10 See S Peers, ‘Finally “Fit for Purpose"? The Treaty of Lisbon and the End of the
Third Pillar Legal Order’ (2008) YEL.47.
11 See, e.g., C Ladenburger., ‘Police and Criminal Law in the Treaty of Lisbon,’ (2008) 4

EU Const 20.

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 EU Criminal Law Relocated: Recent Developments

3 The EU’s criminal law agenda –

succinctly put
The Lisbon Treaty changes cannot be viewed in isolation from the
Stockholm programme as mentioned above. Therefore, the EU’s
criminal law agenda as manifested by the Stockholm programme is
of central importance here. The Stockholm programme 12 is the
follow-up to the Tampere Programme (1999-2003)13 and The
Hague Programme (2004-2009). 14 An initial question – and against
the background of the increased focus on security issues within the
Union – is obviously: does the Stockholm programme serve the
citizen? 15 Whatever the answer, the Commission’s communication
on the Stockholm agenda points at the current success with EU
involvement in the present area. Nonetheless, it is also pointed out
that before the entry into force of the Lisbon Treaty the desired
progress has been comparatively slow in the criminal law area be-
cause of the limited jurisdiction of the Court – and since the
Commission has been unable to bring infringement proceedings –
which has led to considerable delay in the transposition of EU leg-
islation at the national level.

More particularly, this Programme includes:

promoting citizens’ rights – a Europe of rights;
making life easier – a Europe of Justice;
protecting citizens – a Europe that protects;
promoting a more integrated society for the citizen – a Europe of
solidarity.

12 The Stockholm programme – An open and secure Europe serving and protecting

the citizen (OJ C115/1, 02.12.2009).

13 http://www.europarl.europa.eu/summits/tam_en.htm (last accessed 1 May 2011).

14 The Hague Programme, 10 priorities for the next five years (OJ C 236, 24.9.2005)

15 Discussed further in Herlin-Karnell, ‘Is the citizen driving the EU’s criminal law

agenda?’ Book chapter in Dougan, Spaventa & Nic Shuibhne (eds) Empowerment and
Disempowerment of the European Citizen (forthcoming Hart publishing Oxford 2012) and
Herlin-Karnell ‘The Integrity of European Criminal Law Cooperation: The Nation
State, the Individual and the AFSJ’. In F. Amtenbrink & P. van den Bergh (Eds.), The
Constitutional Integrity of the European Union. Assessing the Integrative Function of National Con-
stitutions for the European Constitutional Legal Order (The Hague: T.M.C. Asser
Press/Springer).

9
 Ester Herlin-Karnell

These ambitions are indeed very promising, albeit extremely wide-

ranging, developments and the Commission deserves a lot of
‘credit’ for having taken on board the main criticisms as advocated
by academics. 16 According to the Commission, the internal security
strategy must be construed around three complementary and now
inseparable fields of activity: stronger police cooperation, a suitably
adapted criminal justice system, and more effective management of
access to EU territory. Thus, the Commission stresses the need for
a criminal justice system that serves to protect the public. Hence,
the Commission concludes that ‘faced with cross-border crime, the
administration of justice must not be impeded by differences be-
tween the Member States’ judicial systems’. Accordingly, there is an
apparent need to establish a successful crime-fighting agenda at the
EU level. The question remains as to what extent concerns for the
citizens are genuinely driving this agenda and to what degree such
an agenda is driven by other aspirations such as the establishment
of an autonomous EU system of criminal law. Regardless of the
answer to the question asked, the Commission at least identifies the
need to strengthen mutual trust by enhancing procedural safe-
guards for the individual. Interestingly, in the recent proposals for a
Directive on the right to access to a lawyer in criminal proceed-
ings 17 and protection of the victim respectively18 , the Commission
specifically links the subsidiarity principle, to the importance of
mutual trust. According to the Commission only action taken by
the European Union will establish consistent common minimum
standards that apply throughout the whole of the EU and thereby
enhances trust in this area. In addition, the EU Commission re-
cently published an evaluation of the implementation of the
EAW. 19
In its recent evaluation of this instrument, the Commission-
points out that the effective application of the EAW has been un-
dermined by the systematic issue of EAWs for the surrender of

16 Among the many critics, see eg Steve Peers’s many contributions posted at State-

watch.org.
17 Proposal for a Directive on the right of access to a lawyer in criminal proceedings

and on the right to communicate upon arrest COM(2011) 326/3.

18 Proposal for a Directive establishing minimum standards on the rights, support and

protection of victims of crime, COM (2011) 275 final.

19 COM(2011)175 final, On the implementation since 2007 of the Council Framework

Decision of 13 June 2002 on the European arrest warrant and the surrender procedures
between Member States.

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 EU Criminal Law Relocated: Recent Developments

persons sought in respect of often very minor offences. Therefore,

the Commission states that there is a need to apply a proportional-
ity test to make sure that offences, even if they fall within the scope
of the EAW, which are not serious enough to justify the measures
and cooperation which the execution of an EAW requires are not
carried out. So why has proportionality not functioned in this area?
Has the very foundation of ‘mutual recognition’, which is based on
the elusive notion of trust coupled with a loyalty obligation towards
the EU, excluded the possibility of a proportionality review within
the AFSJ? It seems ludicrous and a waste of judicial resources to
issue arrest warrants for the theft of chickens and the like. As will
be demonstrated below though, it could be argued that the princi-
ple of proportionality already forms part of the very notion of a
‘managed’ mutual recognition concept as such.
Consequently, there is an apparent need to find a solution for a
successful crime-fighting agenda at the EU level and this presup-
poses mutual trust. This brings us to one of the most important
playing-grounds, and EU integration in general, in contemporary
EU criminal law development, namely that of the Court of Justice.
It will be shown that recent case law in this area has had important
implications for the development of EU criminal law.

3.1 Criminal law and the emerging notion of an

autonomous European legal order
This section will try to discuss recent case law in this area in the
intersection of free movement law and mutual recognition in
criminal law matters. Arguably, one of the most interesting cases in
the context of EU criminal law cooperation and free movement
rights is the Wolzenburg 20 case delivered in October 2009. This case
concerned the European Arrest Warrant 21 and the possibility of the
Member States for refusal to surrender under Article 4(6) EAW
where the Netherlands had made such a voluntary ‘opt-out’ under
Article 4(6) EAW. Such an ‘opt-out’ from surrendering in this re-
gard means that if an arrest warrant has been issued for the pur-
poses of executing a custodial sentence or detention order, where

20 Case C-123/08, Wolzenburg, delivered on 6 October 2009, commented by the present

author in (2010) 73 Modern Law Review 824.

21 Council Framework Decision on the European arrest warrant and the surrender

procedures between Member States OJ 2002 L 190/1 of 13 June 2002.

11
 Ester Herlin-Karnell

the requested person is staying in or is a national or a resident of

the executing Member State, that State undertakes to execute the
sentence or detention order in accordance with its domestic law.
The question arose as to whether it constituted discrimination to
distinguish between a state’s own nationals and non-nationals in
this regard. In other words, the core question was whether the
required period of residence of the person requested for surrender-
ing in the executing state counted as “staying” or “residing” so as
to be treated in the same way as nationals. Secondly, the question
presented itself as to whether an additional administrative bur-
den—such as a residence permit—was in line with the axiom of
non-discrimination in EU law. The Court of Justice made it clear
that the non-discrimination axiom was applicable in the (now for-
mer) third pillar area as there is a clear free movement dimension
to the EAW. In the context of the EAW, this has important impli-
cations from the perspective of rehabilitation issues and the possi-
bilities of integrating into society. 22 And yet this case needs to be
understood against the broader picture of the history of the former
third pillar. The reason for this is twofold. Firstly, there had been a
general assumption that before the entry into force of the Lisbon
Treaty, the question of Union citizenship was not interesting out-
side the first pillar setting. Yet this was not the whole truth as citi-
zenship and non-discrimination were relevant to EU criminal law
cooperation already prior to the entry into force of the Lisbon
Treaty not only because of the general loyalty trend within the
former third pillar starting with Pupino 23 but mainly because funda-
mental rights applied across the pillars as proclaimed in ex Article
6 EUT. Accordingly, the Member States and the EU institutions
were under a duty to apply the same standards as regards human
rights when acting in the AFSJ. Secondly, it is quite obvious that
the notion of non-discrimination is also of utmost importance in
criminal law cooperation as forming part of the concept of a fair
trial in a broad sense. Furthermore, there has always been a clear
free movement aspect here: citizens cross borders and therefore
there is a free movement dimension regardless of whether a matter
also concerns an EAW order.

22 Case C-123/08 Wolzenburg, Opinion of AG Bot delivered on 24 March 2009.

23 Case C-105/03 Criminal proceedings against Maria Pupino, [2005] ECR I-5285

12
 EU Criminal Law Relocated: Recent Developments

In addition, the very goal of creating the AFSJ is often accused

of not fulfilling its ambitions and for putting too much weight on
the security aspects while neglecting the freedom and justice di-
mension.24 After all, there has for a long time been a debate on
whether the concept of mutual recognition was adopted too early
within the third pillar: namely, despite overly divergent criminal
laws and overly divergent fair trial guarantees between the Member
States. 25 In other words, the wider question here has concerned the
issue as regards whether the adoption of the notion of mutual rec-
ognition is feasible in EU criminal law, in the absence of a fully
established regime in this area. 26 Yet in a recent judgment 27 concern-
ing the operation of the EAW and trial in absentia, the Court con-
firmed that mutual recognition is not absolute. And yet, mutual
recognition has never been absolute. As Nicolaides points out
though, mutual recognition should be managed. 28 Thus, the notion
of ‘managed’ mutual recognition implies that acceptance of the
norms of other Member State can and must be reciprocal. 29 There-
fore, it represents an expression of proportionality in this area. In
any case, in paragraph 50 of this judgment the Court pointed out
that while it is true that the EAW is based on the principle of mu-
tual recognition, that recognition does not as is clear from Article 3
to 5 of the EAW instrument mean that there is an absolute obliga-
tion to execute an arrest warrant that has been issued. The Court
stressed the importance of allowing for some national discretion in
this area and particularly the importance of enabling particular
weight to be given to the possibility of increasing the requested
persons chances of reintegrating into society. The Court held that
against the background of this here was nothing indicating that the
EU legislator wished to exclude trials in absentia from the scope of

24 S. Peers, EU justice and Home Affairs, (Oxford, Oxford University Press 2011), ch. 9.
25 Ibid.
26 For recent books on mutual recognition in EU criminal law see, A Suominen, ‘The

principle of mutual recognition in cooperation in criminal matters. A study of the prin-

ciple in four framework decisions and in the implementation legislation in the Nordic
Member States’ PhD thesis Bergen University 2011 and M Fichera, The implementation of
the European Arrest Warrant in the European Union: Law, Policy and Practice (Intersentia
Antwerp 2011).
27 Case C-306/09, IB, delivered on 21 October 2010. See for a comment, A Suominen,

C-306/09 I.B. in JFT 1/2011 s. 122-128.

28 K. Nicolaidis, ‘Trusting the Poles? Constructing Europe through mutual recognition’

(2007) 14 JEPP 682.

29 Ibid.

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 Ester Herlin-Karnell

the possibilities of including extra procedural safeguards in this

area.
Moreover, in the judgment of Mantello 30 concerning the scope of
the mandatory options for non- executions of arrest warrants un-
der Article 3 (2) of the EAW Framework Decision the Court stated
that the interpretation of ne bis in idem in Europe should be given an
autonomous interpretation. And that whether a person has been
‘finally’ judged is determined by the law of the Member State in
which judgment was delivered. One could perhaps cautiously ask if
the Court is very concerned with the creation of the autonomous
legal order of the EU? 31 In the light of the fact that Article 50 of
the Charter, which set out the right not to be punished twice, such
a reaffirmation of ne bis in idem appears perhaps less controversial.
Instead, what remains controversial is the application of the mutual
recognition principle, developed within the framework of the in-
ternal market, to criminal law as such. From the perspective of the
individual it is the trust building 32 mission of establishing the le-
gitimacy of EU criminal law cooperation based on mutual recogni-
tion by assuming trust that conceivably has taken place at the ex-
pense of adequate human rights protection. 33
In any case, as discussed above, the Court in Wolzenburg seems
to have applied a reasoning which was directly reflected in the Citi-
zenship Directive 2004/38/EC. 34 One may therefore say that the
Court somehow limited the degree of its intervention by also using
Directive 2004/38/EC as a template in the context of the EAW
and its intersection with third pillar law. This raises the familiar
question of the extent to which secondary legislation should prevail
over Treaty-based rights as provided in the Treaty, i.e. the relation-

30 Case C-261/09, Mantello, 7 September 2010 not yet reported.

31 See for an extraordinary emphasis on this autonomous legal order: Case C-402/05 P,
Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Com-
munities [2008] ECR I-5351 para 285. In para 316, the Court reiterated that “the review
by the Court of the validity of any Community measure in the light of fundamental
rights must be considered to be the expression, in a community based on the rule of
law, of a constitutional guarantee stemming from the EC Treaty as an autonomous legal
system”.
32 Joined Cases C-187/01 and C-385/01 Criminal proceedings against Hüseyin Gözütok and

Klaus Brügge [2003] ECR I-1354.

33 See e.g. V Mitsilegas, EU Criminal Law (Hart publishing Oxford 2009) Ch 3.

34 Citizenship Directive 2004/38/EC OJ L 229/35.

14
 EU Criminal Law Relocated: Recent Developments

ship between primary and secondary EU law. 35 In addition, such a

residency requirement might seem as being in disharmony with the
cases in Teixeira and Ibrahim. 36 It should be recalled that in these
cases the applicants applied for social assistance and sought to es-
tablish rights to residence under Regulation 1612/68 as a carer of
children being educated in the host state. The Court granted rights
under Regulation 1612/68. Therefore, these cases seem to be about
limiting the requirement of self-sufficiency when education is at
stake on family members. As pointed out by one commentator 37 ,
the Court seem willing to construe a more favourable scenario if
the situation does not come naturally within the scope of the Di-
rective. Nonetheless, it is submitted that the Wolzenburg case is not
about limiting rights but expanding them. After all, at the time this
case was delivered it was not even clear that citizenship and non-
discrimination applied to the former third pillar even though there
is a clear free movement element to the EAW as such. In other
words, the former third pillar as well as the current law on mutual
recognition touches upon free movement right regardless of
whether it also concerns the operation of the EAW. 38
More generally, as regards criminal law in the free movement
context, it might be interesting to mention that in the Tsakouridis39
judgment the Court made it clear that an expulsion decision can be
taken even against a citizen who has resided on the territory of the
host State for the previous 10 years on imperative grounds of pub-
lic policy. The Court stated that a balance must be struck between
the exceptional nature of the threat to public policy. Although the
Court stipulated that an expulsion measure must be based on an
individual examination of the specific case and can be justified on
imperative grounds of public security within the meaning of Arti-

35 S O’Leary, ‘Equal treatment and EU citizens: a new chapter on cross border educa-

tional mobility and access to student financial assistance’ EL Rev 34 (2009) 612. See
also E Spaventa, ‘Seeing the Wood Despite the Trees? On the Scope of Union Citizen-
ship and its Constitutional Effects’, (2008) 45 CML Rev 13.
36 Case C-480/08, Teixeira [2010] ECR I-01107, Case C-310/08, Ibrahim ECR [2010]

ECR I-01065.
37 N Nic Shuibhne, The third age of citizenship: Directive 2004/38 in the case law of

the Court of Justice, paper delivered in Antwerp on 8 March 2010 (on file with the
author).
38 See ‘The EAW and the Principles of Non-discrimination and EU Citizenship’, (2010)

73 Modern Law Review 460.

39 Case C-145/09 Tsakouridis judgment of 23 November 2010 not yet reported.

15
 Ester Herlin-Karnell

cle 28(3) of Directive 2004/38 40 only if, having regard to the excep-
tional seriousness of the threat, it raises some questions about the
function of citizenship in this area. It could perhaps be argued that
when drug dealing is at stake the Court is willing to assume that
there are no unlimited (citizenship) rights. 41
What then does a case such as Mantello 42 and the notion of an
autonomous interpretation of criminal law tell us? Whilst it is true
that the Lisbon Treaty provides for a new framework for analysis
the exact implications of this case law is probably too early to say
as there is simply not enough case law in this area. As explained,
the very notion of autonomous interpretation in the context of the
interpretation of ne bis in idem is closely connected with the wider
aspiration of creating trust in EU criminal law cooperation. In-
deed, the trust building mission has been the main concern for the
Court of Justice in this area for decades. After all, it was in the con-
text of the interpretation of ne bis in idem it all started as being
somewhat pioneering in the EU creation of a European criminal
law space based on trust. The Court set the criminal law mutual
recognition ball rolling in the Gözütok and Brugge judgment. 43 The
key provision in this area has been Art. 54 CISA, 44 which sat out
the fundamentals of ne bis in idem: namely, that a person whose trial
has been finally disposed of in one Member State cannot be prose-
cuted in any other Member State for the same act in question. 45
Nevertheless, there is a difference as regards how the Member
States treat ne bis in idem at the national level and how they envisage
the principle to be applied at the transnational level. In spite of this,
in Gözütok and Brügge 46 the Court stated that there is a necessary
implication that the Member States have mutual trust in their
criminal justice systems and that each of them recognises the
criminal law in force in the other Member States, even if the out-

40 Directive 2004/38, L 158/77.

41 See already Case C-348/96 Donatella Calfa [1999] ECR I-11.
42 Case C-261/09, Mantello, 7 September 2010 not yet reported.

43 ECJ, Joined Cases C-187/01 and C-385/01 Criminal proceedings against Hüseyin Gözütok

and Klaus Brügge [2003] ECR I-1354.

44 Protocol attached to the Convention implementing the Schengen Agreement of 14

June 1985 between the Governments of the States of the Benelux Economic Union,
the Federal Republic of Germany, and the French Republic on the gradual abolition of
checks at their common borders. Signed on 19 June 1990 at Schengen, Luxembourg.
45 See also Art. 50 of the Charter of Fundamental Rights.

46 Case C-436/04 Criminal proceedings against Leopold Henri Van Esbroeck [2006] ECR I-

2333.

16
 EU Criminal Law Relocated: Recent Developments

come were different if its own national law were applied. In any
case, the entry into force of the Lisbon Treaty are steps in the right
direction most importantly because of the legally binding status of
the Charter and the EU accession to the ECHR. A reason for the
current mistrust in this area has obviously been the lack of suffi-
cient underlying criminal law protection of the individual. For this
reason, the Stockholm Programme and the action plan 47 imple-
menting it set out to remedy this problem by creating a so-called
roadmap for safeguards of the individual within criminal law pro-
cedure.

4 A roadmap for procedural

safeguards
The roadmap for strengthening procedural rights of suspected or
accused persons in criminal proceedings is a new development in
this area. 48 This roadmap forms part of the Stockholm programme
mission. The roadmap focuses on certain areas of particular impor-
tance. The areas in question are:

 Translation and interpretation

 Information on rights and information about the charges
 Legal aid and legal advice
 Communication with relatives, employers, and consular au-
thorities
 Special safeguards for suspected or accused persons who are
vulnerable.

As part of this roadmap the European Parliament and the Council

adopted a Directive on the right to interpretation and translation in
criminal proceeding. 49 But it is a regrettable that in relation to the
measures contained in the Roadmap elaborated by the Stockholm

47 COM (2010) 171 final, Delivering an area of freedom, security and justice for Euro-

pe’s citizens.
48 Resolution of the Council 30 November 2009, OJ C 295 (2009), for a comment see

e.g. M Jimeno-Bulnes, ‘The EU roadmap for Strengthening Procedural Rights of Sus-

pected or Accused Persons in Criminal Proceedings’, Eucrim 4/2009 p 159.
49 Directive 2010/64/EU OJ L 280 (2010) p 1, for a comment S Cras and L de Matteis,

‘The Directive on the Right to Interpretation and Translation in Criminal Proceedings’,

(2010) EU crim issue 4 p 153.

17
 Ester Herlin-Karnell

programme as well as in the Directive, there is no clarification re-

garding the precise procedural stage at which they should be guar-
anteed. 50 Moreover, it could be asked how much of this really differ
from existing ECHR case law. The ECHR case law means that the
right of fair hearing applies also to pre-trial scenarios. 51 Of course
as is so often pointed out, the Member States of the EU are no
‘saints’ but most of them continue to have cases pending in front
of the ECtHR and that therefore it is good to have as much pro-
tection stipulated as possible. At a more sophisticated level, it could
however be argued that the most important aspect is to create a
European common sense of fairness which genuinely cares for the
individual. Part of this mission involves pinning down just what
shared values the EU has. We already know that Article 2 TEU
states that the EU respects values founded on human rights, but it
is somewhat unclear what it means in the context of procedural
safeguards in criminal law. It goes also without saying that this is
obviously what the very ambition of the creation of mutual trust in
criminal law is about. The problem is that things have happened
very quickly here (for example the adoption of the EAW in the
aftermath of 9/11) and the EU is still trying to catch up with ac-
companying procedural safeguards. Also, it seems clear that in or-
der to create such trust there is a need for some kind of a general
legislative framework, which is why the Lisbon Treaty is welcome
here as it provides for a legislative competence in this regard.
In what follows I will try to discuss an area where the legislative
action appears particularly fast-moving and where there is an acute
need to ensure that adequate protection of the individual is ensured
at the EU level.

5 Concrete examples of long-lasting

clashes
The Stockholm Programme stresses the importance of not only
enhancing trust within the Union but also increasing security within
the Union. It is stated that Europe is facing growing cross-border
criminality and that it is the Commission’s obligation to do its ut-

50 S Allegrezza, ‘Critical remarks on the Green Paper on Obtaining Evidence in Crimi-

nal Matters’ (2010) ZIS 569.

51 Ibid.

18
 EU Criminal Law Relocated: Recent Developments

most to ensure that EU citizens can live in a secure environment.52

For this reason this section will look at some concrete examples of
where the EU’s approach does not seemed to be driven by citizen
concerns. Instead the main focus of the EU in this area seems to
be on security and effectiveness endeavours.

5.1 Brief comment on data protection and the

individual
The question of data protection in the criminal law context plays a
central role in the Stockholm Programme. 53 In this programme it is
repeatedly stressed that the notion of data protection needs to be
strengthened. More specifically, it is stated that the Union must
ensure that the fundamental right to data protection is consistently
applied. Since 2008, the general framework for the protection of
personal data in police and judicial cooperation has been covered
by Framework Decision 2008/977/JHA. 54 This measure has a
scope limited to the processing of personal data transmitted or
made available between Member States. 55 The most important
change in this regard is the inclusion of Article 16 TFEU. That
provision not only contains an individual right of the data subject
to the protection of his or her personal data, but it also obliges the
European Parliament and Council to provide for data protection in
all areas of European Union law. 56 Article 16 TFEU stipulates that
everyone has the right to the protection of personal data concern-
ing them. This applies to all areas, i.e. also to the AFSJ (unlike the
Data Protection Directive (95/46/EC 57 ) which excluded criminal
law from its scope). Article 16 TFEU mirrors Article 8 of the Char-
ter, which also states the right to data protection. In addition, Dec-

52 The Stockholm Programme – An open and secure Europe serving and protecting the

citizen (OJ C115/1, 02.12.2009).

53 Ibid.

54 Framework Decision, on the protection of personal data processed in the framework

of police and judicial cooperation in criminal matters OJ L 350 , 30/12/2008 P. 0060

55 Yet according to Protocol 21, the United Kingdom and Ireland shall not be bound by

the rules laid down on the basis of Article 16 TFEU which relate to the processing of
personal data by the Member States when carrying out activities which fall within the
scope of Chapter 4 or Chapter 5 of Title, that is criminal law and police cooperation.
56 Hijmans and Scirocco, ‘Shortcomings in EU data protection in the third and second

pillars: can the Lisbon Treaty help close the gap?’ (2009) 46 CML Rev 1485.
57 Directive 95/46/EC on the protection of individuals with regard to the processing of

personal data and on the free movement of such data, OJ L 281 , 23/11/1995 P. 0031.

19
 Ester Herlin-Karnell

laration 21 58 states that specific rules on the protection of personal

data and the free movement of such data in the fields of judicial
cooperation in criminal matters and police cooperation based on
Article 16 TFEU may prove necessary because of the specific na-
ture of these fields. Interestingly, it has been suggested that Article
16 TFEU is drafted in a way that echoes citizenship.59 It is true that
Framework Decision 2008/977 60 still applies in this area but it is
not as far reaching as Article 16 TFEU. As pointed out by Hijmans
and Scirocco, it could be argued that Framework Decision
2008/977 does not fulfil the criteria of Article 16 TFEU since it
does not apply to all processing of data , since domestic processing
is excluded from it. Therefore, Article 16 TFEU has a much
broader scope.
Cautiously expressed, it seems as this is an area where citizens’
rights and the protection of data and the efficient fight against
crime creates friction when brought together.

5.2 Joint investigation orders 61

The initiative for a Directive on a European Investigation Order 62

offers – in procedural rather than substantive criminal law – an
interesting narrative with respect to clashes between the efficiency
of criminal law cooperation and the protection of the individual.
This European Investigation Order would repeal (the politically
sensitive and therefore long debated 63 ) European Evidence War-
rant (EEW) 64 Framework Decision by proposing an initiative for a
new directive on the basis of Article 82 (2) TFEU. Accordingly,
this means that, first, the proposed directive is subject to mutual

58 Declaration 21 attached to the Lisbon Treaty.

59 Hijmans and Scirocco, ‘Shortcomings in EU data protection in the third and second
pillars: can the Lisbon Treaty help close the gap?’ (2009) 46 CML Rev 1485.
60 Framework Decision 2008/977, on the protection of personal data processed in the

framework of police and judicial cooperation in criminal matters OJ L 350 ,

30/12/2008 P. 0060 – 0071.
61 Also discussed in E Herlin-Karnell, ‘The development of EU precautionary crimi-

nalization’ (2011) 1 European criminal law review 149.

62 Initiative for a Directive of the European parliament and of the Council regarding the

European regarding the European Investigation Order in criminal matters, 2010/0817

(COD) Brussels 29 April 2010.
63 For a detailed account, see V Mitsilegas, ‘The third wave of third pillar law. Which

direction for EU criminal justice?’ (2009) 34 European Law Review 523.

64 Framework Decision 2008/978 on the European evidence warrant, OJ L 350/72.

20
 EU Criminal Law Relocated: Recent Developments

recognition. Secondly, it means that the so-called emergency brake,

under which the Member States could pull a so-called brake if the
legislation in issue were to affect fundamental principles of their
criminal justice systems (see Article 82 (3) and Article 83 (3) TFEU
respectively) and where a Member State can request a draft direc-
tive be referred to the European Council would not apply. The
reason for this is that general issues concerning the operation of
the mutual recognition rule under the directive as stipulated in Ar-
ticle 82 (1) TFEU does not entail such an emergency brake possi-
bility. The reason for this is that the emergency brake applies to
Article 82 (2) TFEU only, but not to the very application of mutual
recognition as such. Given the controversy with mutual recognition
and the long-standing question of trust building in this area such a
divergence seem highly regrettable. 65 Furthermore, somewhat inter-
estingly, the sacred notion of ne bis in idem is abolished, as is the role
of territoriality, where the Member States have had the option to
investigate and punish crimes committed on their territory. Al-
though the proposed directive ensures in Article 1 that it complies
with fundamental rights and that it would not require the Member
States to breach fundamental rights, there is a risk that the general
efficiency focus will have a negative impact in this regard and un-
dermine rights without necessarily serving effectiveness and secu-
rity. As pointed out by Peers, the reassurances given are too vague
to be taken adequately seriously. 66
The other example worth mentioning in the present context is
the recent Communication on EU Counter-Terrorism Policy. 67
This Communication is to be read in conjunction with a Commis-
sion staff working paper, ‘Taking stock of EU Counter-Terrorism
Measures’ 68 and the Stockholm Programme. The Commission staff
working paper includes a table with concrete achievements and
future challenges to be achieved by focussing on four prestigious
words, ‘prevent, protect, pursue and respond’. This Communica-
tion points to the success with current instruments, such as the

65 See also S Peers, ‘EU criminal law and the Treaty of Lisbon’, (2008) 33 European Law

Review 507.
66 Analysis by Steve Peers, The proposed European Investigation Order: Assault on

human rights and national sovereignty’ available at:

http://www.statewatch.org/analyses/no-96-european-investigation-order.pdf (accessed
30 August 2010).
67 COM (2010) 386 final.

68 SEC(2010) 911 final.

21
 Ester Herlin-Karnell

European Arrest Warrant and the Third Money Laundering Direc-

tive, 69 as well as a whole range of legislative measures for the pre-
vention of the use of the Internet for terrorist purposes; 70 all of
which have, however, been criticised from a human rights perspec-
tive. 71 For this reason, the Commission points out that the relation-
ship between the many interacting instruments and the mechanism
for information exchange needs to be evaluated. The argument is
centred on effectiveness concerns coupled with the need to pre-
vent, pursue and protect. Admittedly, there are also good aspects
of this Communication, such as the explicit recognition of the need
to respect fundamental rights; and it is also highlighted that it is a
priority to ensure that any measure complies with the Charter of
Fundamental Rights. Yet in the light of the EU history on the fight
against terrorism since 9/11, it is easy to have the impression that
such reassurance appears fluffy and vague. 72 At least it remains to
be seen in practice.
Thus, it is cautiously submitted that these measure are not
driven by safeguarding the individual but by security and efficiency
concerns to enable speedy justice in Europe. This might sound
paradoxical when considering the increased focus on the citizen’s
rights with regard to the EU’s future agenda in criminal law as pro-
claimed in the Stockholm programme.

6 Conclusion
This paper had three aims. First, I tried to paint the background
picture and concluded that the Lisbon Treaty provides for a whole
new framework for the development of EU criminal law which
makes it justified to speak about a ‘relocation’ of the notion of EU
criminal law.
Thereafter, I investigated recent case law and tried to discuss the
implications of citizenship in this area. I concluded that the devel-
opment of citizenship rights (although already applicable to the
former – and still existing in terms of the transitional protocol –
69 Directive 2005/60/EC OJ L309, 25 Nov 2005.
70 Such as Council FD 2008/919/JHA on combating terrorism OJ L 330/21 9.12.2008
71 S Peers, The proposed European Investigation Order: Assault on human rights and

national sovereignty’ available at http://www.statewatch.org/analyses/no-96-

european-investigation-order.pdf (accessed 30 August 2010).
72 See e.g. C Eckes, EU Counter-Terrorist Policies and Fundamental Rights The Case of Individ-

ual Sanctions (Oxford: Oxford University Press, 2009).

22
 EU Criminal Law Relocated: Recent Developments

third pillar) constitute extremely important change in this area.

Subsequently this paper discussed the recent Stockholm pro-
gramme and pointed out that although the Commission is trying its
best to create a genuine EU law agenda in criminal law this pro-
gramme is far too open-ended and general to be taken adequately
seriously. There is still a lack of appropriate framework for legal
safeguards of the individual, but the legal web is constantly improv-
ing. Thirdly, this paper looked at the area of data protection and
European investigation orders as examples where there may be
long-lasting clashes regarding the efficiency of criminal law coop-
eration and protection of the individual.
Perhaps the greatest difficulty will be to decide the exact content
of the emerging regime of EU criminal law. There are various
roadmaps produced by the EU and they all aim to drive citizenship
rights, but it remains to be asked to what extent the individual –
including the defendant – fully benefits from the complex web of
EU criminal law as it currently stands. So although the criminal law
has been relocated in terms of Treaty changes, it is too still to early
to talk about an autonomous interpretation of it that fully respects
fundamental rights. This area will remain work-in-progress for the
EU for some time.

23