It is well known that the Lisbon Treaty has given the EU competence to legislate in the area of criminal law. And now, it has become crystal clear that the Commission is seeking to harmonise criminal law in the Union. In fact, the European Commission, in the last few weeks, took several steps towards this aim.

On 26 May, the European Commission adopted a Communication entitled “On the protection of the financial interests of the European Union by criminal law and by administrative investigations.” Presently, member states have their own procedural rules and decide whether to initiate criminal investigations into fraud and other crimes against the EU financial interests. Hence, criminal investigations into fraud are initiated by Member States’s prosecution services acting, obviously, under their respective criminal law. However, the Commission noted “the level of protection for EU financial interests by criminal law still varies considerably across the Union.” According to the Commission there is a “lack of equivalence of criminal law protection throughout the Union.” In order to change the existing situation, the Commission “will rely on the Lisbon Treaty” which, as the Commission stressed, has set “a clear framework for the EU to reinforce its action in the field of criminal law.” The European Commission, in this Communication, indicated its intention to increase the level of harmonisation of criminal law across the Union. It stressed “The Union should aim at an effective, proportionate and dissuasive level of protection of its financial interests through speedy criminal procedures and sanctions across the Union, increasing their deterrent effect.” According to the Commission definitions of criminal offences, such as embezzlement or abuse of power, vary widely among the Member States as well as the sanctions applicable to those offences. Unsurprisingly, the Commission intends to make use of the competences granted by the Lisbon Treaty, and “strengthen substantive criminal law” by establishing rules concerning the definition of criminal offences, such as embezzlement and abuse of power.

In fact, the Lisbon Treaty introduced a new provision, which allows the Union to define certain criminal offences and set minimum sentences for those found guilty of them, overriding Member States criminal laws and sentencing policies. Article 83 (1) provides that the Union may define criminal offences and sanctions in areas “of particularly serious crime with cross border dimension”: terrorism, illicit drug trafficking, organised crime, trafficking in human beings and sexual exploitation of women and children, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment and computer crime. Some of these areas of crime are quite broad which might lead the EU to regulate offences without a cross border dimension. The European Parliament together with the Council, acting by QMV, thorough the ordinary legislative procedure, may adopt directives establishing minimum rules concerning the definition of “criminal offences and sanctions" in the areas abovementioned. Furthermore, such list of areas of crime is not exhaustive as this provision provides that the Council, acting unanimously after obtaining the consent of the European Parliament “may adopt a decision identifying other areas of crime that meet the criteria specified in this paragraph.”

The European Commission has also urged Member States and the European Parliament to agree on “new tools” to combat fraud. The Commission wants to strengthen the European bodies so they can deal with criminal investigative measures. According to the Commission in order to protect its own financial interests, Brussels needs to strengthen the Eurojust role. Presently, Eurojust is unable to initiate criminal investigations and to prosecute crimes on its own. However, the Lisbon Treaty expressly provides that Eurojust may have the power and the responsibility to initiate criminal investigations and also the power to propose the initiation of prosecutions even though the prosecution would be then conducted by the competent national officials. This provision (Article 85 TFEU) implies a major take over of the responsibilities of national public prosecutors. However, the Commission is planning to put forward, in 2012, a proposal for a Regulation providing Eurojust with powers to initiate investigations. Such proposal would be subject to the ordinary legislative procedure and QMV in the Council. The European Commission also reiterated its plans to create a European Public Prosecutor's Office (EPPO), as foreseen in the Lisbon Treaty, to combat crimes affecting the financial interests of the Union. The Treaty also provides for the extension of powers of the EPPO to include “serious crimes having a cross-border dimension.” The European Public Prosecutor’s Office would be a judicial body in charge of investigating, with the power to order national police forces to initiate investigations, of assembling all the evidence in favour or against the accused and responsible for conducting and coordinating prosecutions. Moreover, he/she would have the power to bring to judgment perpetrators, and accomplices, of offences against the Union’s financial interests, deciding in which Member State the trial will take place. The EPPO jurisdiction would prevail over the jurisdiction of the Member States enforcement authorities. The creation of such a post is made in complete disregard of the different legal systems within the EU and it is likely to have a severe impact on Member States criminal systems. Under the Coalition Government Agreement “Britain will not participate in the establishment of any European Public Prosecutor.” The UK is very likely to opt out from a proposal establishing the EPPO. The establishment of the European Public Prosecutor’s Office requires unanimity in the Council and consent of the European Parliament. Hence, the UK could veto such proposal. However, the veto of one or more Member States will not be enough to stop its creation. If the European Council is unable to find an agreement, nine member states may establish ‘enhanced cooperation’, on the basis of the draft regulation, in question. Hence, the non participating States cannot prevent the others to go ahead with further integration.

On 6 June, the European Commission adopted a Communication entitled “Fighting Corruption in the EU.” The Commission noted “the implementation of the anti-corruption legal framework remains uneven among EU Member States and unsatisfactory overall” and recall “The Treaty on the Functioning of the European Union recognises that corruption is a serious crime with a cross-border dimension which Member States are not fully equipped to tackle on their own.” The Commission is, therefore, planning to propose, this year, a revised EU legal framework on confiscation and recovery of criminal assets, and in 2012 it will present a strategy to “improve criminal financial investigations in Member States.” The Commission has also announced that it will conduct “an assessment of the protection of persons reporting financial crimes” and then will consider “further action at EU level.”

The Commission pointed out that presently “there is no mechanism in place monitoring the existence, and assessing the effectiveness, of anti-corruption policies at EU and Member State level in a coherent crosscutting manner.” Hence, the Commission has decided to put in place a specific EU monitoring and assessment mechanism. The Commission argues it has a political mandate, given by the adoption of the Stockholm Programme, “to measure efforts in the fight against corruption and to develop a comprehensive EU anti-corruption policy.” Moreover, the Commission pointed out “Article 83 of the TFEU lists corruption as one of the particularly serious crimes with a cross-border dimension.” Hence, the European Commission adopted a decision establishing an EU Anti-corruption reporting mechanism. The so-called EU Anti-Corruption Report, accompanied by country analyses and recommendations for each Member State, will be published every two years, starting in 2013.

The mechanism will periodically assessment anti-corruption efforts in all Member States. The Commission believes it “will create an additional impetus for Member States to tackle corruption effectively, notably by implementing and enforcing internationally agreed anticorruption standards.” The Commission is expecting to obtain information not only from member states but from different sources, such as existing monitoring mechanisms (GRECO, OECD, UNCAC), independent experts, the European Anti-Fraud Office (OLAF), Europol and Eurojust, the European Anti-Corruption Network, and civil society. Once again, the Commission is applying “one size fits all approach.” The EU anti-corruption reporting mechanism will “periodically assess the situation in the Union regarding the fight against corruption”, “identify trends and best practices”, “make general recommendations for adjusting EU policy on preventing and fighting corruption” as well as “tailor-made recommendations directed to individual Member States.” It seems the Commission will provide non-biding evaluations and recommendations of member states practices and legislation. The report mechanism is likely to overlap with other existing mechanisms, such as the Council of Europe's Group of States against Corruption (GRECO) and to create additional burden on the national administrations. The Commissioner responsible for Home Affairs, Cecilia Malmström, said "The purpose is not to rank member states, but the information will be there, who is doing what, what are the best practices and the gaps." The Commission is expecting the report to provide “a fair reflection of the achievements, vulnerabilities and commitments of all Member States.” Obviously, this will give an excuse to the Commission to put forward legislative proposals. It is important to mention that the Commission has stressed “an EU reporting mechanism will prepare the ground for future EU policy initiatives in the area of anti-corruption”, including “the approximation of criminal law in the field of corruption.” The Commission is likely to use Article 83 TFEU as legal basis to put forward proposals establishing rules defining criminal offences and sanctions concerning corruption.

It is important to recall that the Lisbon Treaty enshrines the principle of mutual recognition of judicial decisions in criminal matters. Under Article 82 (1) (a) the Council, acting by QMV, and the European Parliament, through the ordinary legislative procedure, may adopt measures to “lay down rules and procedures for ensuring recognition through the Union of all forms of judgments and judicial decisions.” Such measures affect fundamental issues of sovereignty and will be adopted by QMV rather unanimity.  This provision implies mutual recognition of non-custodial pre-trial supervision measures in the investigation procedure, mutual recognition of final judgments which implies mutual information on convictions, enforcement of criminal penalties, enforcement of non-custodial measures, suspended sentences, and mutual recognition of disqualifications. Hence, this provision prevents any judgment from the courts of another EU member state from being challenged in the UK courts, with grave consequences for individuals, business and UK legal system. The Member States have different criminal systems, some Member States have low standards of rights for the accused, therefore mutual recognition raises concerns of fairness. Yet, the solution, for Brussels, lies in harmonising criminal procedures. Under Article 82 (2) the Council acting by QMV together with the European Parliament through the ordinary legislative procedure may adopt directives establishing minimum rules to “facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension.” Hence, this provision represents a new EU competence to adopt measures concerning criminal proceedings. The Union is now allowed to adopt minimum rules concerning the rights of individuals in criminal procedure. These so called minimum rules apply to cases with cross border implications but they are likely to affect pure national cases. This provision stresses that the adoption of minimum rules “shall take into account the differences between the legal traditions and systems of the Member States.” However, the experience tells us that the Commission has not taken into account the special nature of UK common law. The Commission puts forward proposals in complete disregard of the different legal systems within the EU, particularly the common law system. In fact, this provision might raise concerns over limitation of the right to trial by jury and habeas corpus.

It is important to mention that in November 2009 the Justice and Home Affairs Council adopted a Resolution on a roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings. The Council roadmap is now part of the Stockholm Programme. The Commission was invited to present proposals concerning the following rights: Translation and Interpretation, Information on Rights and Information about the Charges, Legal Aid and Legal Advice, Communication with Relatives, Employers and Consular Authorities and Special Safeguards for Vulnerable Persons. The measures mentioned in the roadmap are the first step towards the harmonisation of criminal procedural law, entailing the codification of the rights of defendants across the EU. One could wonder whether the Commission ultimate aim is to create an EU criminal procedural code. According to the Commission “a package of measures on the procedural rights of suspected and accused persons” will “assist in achieving the necessary mutual trust between judicial practitioners, whilst taking into account the differences between the legal traditions and systems of the Member States.” However, to foster mutual trust and to improve the rights of suspects, Brussels just have one solution – harmonisation. Member States have different legal systems and legal traditions and the proposals would have an impact on the structure of criminal proceedings as defined by each member state’s national laws.

The Council and the European Parliament have already endorsed the proposal on the right to interpretation and translation in criminal proceedings. The Council has also endorsed the Commission proposal on information on rights and information about charges (the Letter of Rights), which is presently being negotiated with the European Parliament. The UK has an opt out from Justice and Home Affairs measures. The Conservative party pledge “to bring back key powers over legal rights” and “criminal justice” seems to have been abandoned. In fact, the Coalition Government agreed to “approach forthcoming legislation in the area of criminal justice on a case by case basis.” The UK loses protection every time it decides to opt in, as it will be subject to the ECJ and the European Commission enforcement powers. However, in the meantime, the Coalition Government has already decided to opt into several proposals, including the draft directive creating the European Investigation Order. The government has also opted into the directive on the right to interpretation and translation of criminal proceedings as well as into the Draft Directive on the right to information in criminal proceedings, ceding jurisdiction in that area to the European Court of Justice.

On 8 June, the European Commission presented a proposal for a directive on the right of access to a lawyer in criminal proceedings. The proposal intends to “approximate” Member States’ procedural rules regarding the time and manner of access to a lawyer for suspects and accused persons and for persons subject to an EAW, aiming at enhancing mutual trust. The draft directive would guarantee that all suspects have the right to speak with a lawyer from the moment they are held by police, and throughout criminal proceedings, until the conclusion of proceedings. Member States would be required to ensure that suspects or accused persons deprived of their liberty have the right to communicate with at least one person named by them, as soon as possible. The draft directive also provides for the right to communicate with consular or diplomatic authorities. Hence, Member States have the duty to ensure that all foreign detainees are able to have the consular authorities of their State of nationality informed of the detention if they so ask, and to communicate with the consular or diplomatic authorities. This draft directive is the third proposal in a series of proposals, as abovementioned, to guarantee minimum rights to a fair trial in the EU.

The draft proposal promotes the application of the Charter of Fundamental Rights, particularly Articles 47 and 48, which provide for the right to a fair trial and defence, by building upon Article 6 ECHR, which enshrines the right of access to a lawyer. There are several rulings of the European Court of Human Rights (ECHR), which have clarified the scope of these provisions. In fact, the draft directive reflects the ECHR jurisprudence.

The present draft directive is not intended to regulate the issue of legal aid, article 12 states “This Directive is without prejudice to domestic provisions on legal aid, which shall apply in accordance with the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights.” Hence, Member States may continue to apply their domestic provisions on legal aid, however they must be in line with the Charter, the ECHR and the case law of the European Court of Human Rights.

The Commission is planning to present a legislative proposal on legal advice and legal aid by the end of the year. One could say that the Commission will try to harmonise the different rules governing legal aid, which differ from a member state to another. In fact, any proposal on legal advice and legal aid is likely to increase the UK existing obligations under the ECHR as well as raise the UK legal aid expenditure.

Originally, the procedures and remedies for breaches of Community law were a matter for Member States. The ECJ in order to ensure the judicial protection of EU rights has developed two principles, the principle of equivalence and the principle of effectiveness concerning the adequacy of national remedies. The Lisbon Treaty codifies the ECJ’s principles of effectiveness and equivalence. Obviously, this provision will have a major impact on Member States, as the requirement to provide for sufficient remedies is primary law. Hence, the Member States have to establish provisions within their rules of procedure, which provide effective remedy for potential violations of rights conferred by Union law. Moreover, Article 47 (1) of the Charter of Fundamental Rights also provides “Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” Under the draft directive Member States are required to ensure that a suspect or accused person is entitled to an effective remedy where their right of access to a lawyer has been breached.

This Directive would have to be implemented according to the fundamental rights and principles recognised by the Charter. In fact “Member States should ensure that the provisions of this Directive, where they correspond to rights guaranteed by the ECHR, are implemented consistently with those of the ECHR and as developed by case law of the European Court of Human Rights.”

It is important to mention that the UK has a Protocol on the Application of the Charter (Protocol 30), which states that the UK courts or the Court of Justice may not declare UK law incompatible with the Charter. However, the Protocol is not an opt out from the Charter, and will not prevent the UK Courts of being bound by the ECJ interpretations of Union law measures based on the Charter. Moreover, if the ECJ recognizes a fundamental right as a general principle of EU law, the UK is legally bound by it, irrespective of the Charter and the Protocol 30. It is important to recall that Article 6(3) TEU provides that fundamental rights, as guaranteed by the ECHR constitute general principles of EU law.

The Council’s Resolution on a Roadmap for strengthening procedural rights of suspected persons in criminal proceedings also asked the Commission to present a Green Paper on pre-trial detention. The Stockholm Programme also calls for a “more efficient principle of mutual recognition in the area of detention.” The European Council also asked the Commission to consider “alternatives to imprisonment, pilot projects on detention and best practices in prison management” taking into account “possibilities offered by the Lisbon Treaty.” The European Parliament has been calling for the creation of an EU criminal justice area, which could be developed, according to the MEPS, by “minimum standards for prisons and detention conditions and a common set of prisoners' rights in the EU.” Moreover, according to the European Parliament “EU funding should be provided to build new detention facilities in Member States affected by prison overcrowding.”  

Hence, the Commission has decided to address detention conditions and adopted, on 14 June, a Green Paper on the application of EU criminal justice legislation in the field of detention. The Green Paper opened a consultation on this issue and covers the interaction between detention conditions and mutual recognition instruments. The Commission identified several mutual recognition instruments, which might be affected by the issue of detention conditions, such as the Council Framework Decisions on the European Arrest Warrant, the transfer of prisoners, mutual recognition of alternative sanctions and probation and the European Supervision Order. The Commission acknowledges that Member States are responsible for detention conditions and prison management. Nevertheless, it argues that “detention conditions can have a direct impact on the smooth functioning of mutual recognition of judicial decisions – the basis for cooperation between judges in the EU” consequently, it believes it has a role to play in ensuring that “judicial cooperation in the EU works and fundamental rights are respected when EU mutual recognition instruments (…) are implemented.” Furthermore, the Commission said, “There are (…) reasons for the European Union to look into these issues, notwithstanding the principle of subsidiarity.” According to the Commission “Detention issues come within the purview of the European Union as first they are a relevant aspect of the rights that must be safeguarded in order to promote mutual trust and ensure the smooth functioning of mutual recognition instruments, and second, the European Union has certain values to uphold.” In fact, the Commission stressed “that the law and criminal procedures of all Member States are subject to ECHR standards and must comply with the EU Charter when applying EU Law.” The Commission recalled, “Judicial decisions are to be recognised as equivalent and executed throughout the Union regardless of where the decision was taken.” Consequently, according to the Commission “Without mutual confidence in the area of detention, European Union mutual recognition instruments that have a bearing on detention will not work properly, because a Member State might be reluctant to recognise and enforce the decision taken by another Member State's authorities.” Hence, the Commission is planning to introduce measures aiming at improving mutual trust between judicial authorities such as promoting exchanges of best practice on detention conditions between national administrations, alternatives to detention, and better monitoring of prison conditions by national governments. All the issues concerning pre-trial detention are Member States responsibility, nevertheless the Commission has presented some suggestions. In fact, the Commission wants to introduce “minimum standards in respect of provisions on review of the grounds of pre-trial detention and/or statutory maximum time limits on pre-trial detention” aiming at enhancing mutual confidence between Member States.

The Council of Europe adopted in January 2006 the European Prison Rules, which are not biding but provide “comprehensive guidance on the running of prisons and the treatment of prisoners.” The Commission is considering adopting “equivalent prison standards for the proper operation of the mutual recognition instruments.” The Commission is, therefore, ignoring the principle of subsidiarity.

The problem lies in the mutual recognition, which should not have been introduced in the first place. And now, Brussels is moving towards harmonisation of criminal law, and is affecting the whole UK justice and criminal law system.