Irish Centre for European Law Conference 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 ConferenceOutline 1. Introduction: 1.1 “The collapse of the Pillars”; 1.2 Scope of presentation 1. Introduction: 1.1 “The collapse of the Pillars”; 1.2 Scope of presentation 2. The EU Principle of the Rule of Law 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 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 Opt- in Arrangements; 4.3 Transitional Arrangements 4. Questionable Provisions: 4.1. “National Security” Exceptions; 4.2 Opt- in Arrangements; 4.3 Transitional Arrangements

Irish Centre for European Law Conference NEW Title V TFEU: AREA OF FSJ [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] [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: Title V contains the following Chapters: - Chap. 1: General provisions (Art 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 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” 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] See also Case 294/83 Les Verts [1986]

Irish Centre for European Law Conference New Art. 2 TEU “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. “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): 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) 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) Exception: PR (234 EC) can only be made from NCs against whose decisions there is no judicial remedy under national law (68(1) EC)

Irish Centre for European Law Conference Current ECJ’s Jurisdiction in respect of Title VI TEU (“3rd Pillar JHA measures”) Limited jurisdiction = Infringement proceedings excluded; 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); 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) 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 Lisbon completes the absorption of the remaining 3 rd Pillar of JHA into 1 st Pillar = Lisbon completes the absorption of the remaining 3 rd Pillar of JHA into 1 st 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. 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 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 Traditional “national security” exception maintained (Art. 276 TFEU): TBD

Irish Centre for European Law Conference EU Power in the Area of Criminal Procedural Law Specific and exhaustive list of areas for EU potential action: (1) admissibility of evidence, (2) individual rights procedure and (3) victims’ rights 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” 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 Exhaustive list of areas of particularly serious crime with a cross-border dimension: 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 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” 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 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. 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.… 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) 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 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 law- enforcement 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 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 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 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. 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