The Court of Justice and European Criminal Law: Leading Cases in a Contextual Analysis

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The aim of this book is to provide an insight into the landmark rulings of the Court of Justice of the European Union (CJEU) in European Criminal Law (ECL). As in other areas of EU law, the decisions of the CJEU have been a driving force for development and integration. By analysing the impact of these leading cases on EU and national law, the book provides a diachronic and multifaceted picture of the Court’s approach to criminal law. Volume 91 in the Series Modern Studies in European Law Foreword Table of Contents List of Contributors Introduction Part I: Principles 1. C-80/86 – Kolpinghuis Nijmegen: The General Principles of European (Criminal) Law as Limitation
to the Enforcement of EU Law: The Kolpinghuis Nijmegen Rule I. Introduction: Kolpinghuis Nijmegen as a First Encounter between EU Law and National Criminal Law(s) Principles II. The Facts of the Case and the Judgment of 8 October 1987 III. Revisiting Kolpinghuis Nijmegen. Direct Effect and Consistent Interpretation of Directives as a One-Way Road: The Limitation of 'Descendant' and 'Detrimental' Vertical Direct and Indirect Effects IV. The Legacy of Kolpinghuis Nijmegen in the Case Law V. Conclusions: The Emergence of the General Principles of a Protective European Criminal Law Indirect Effect of EU Law afterKolpinghuis Nijmegen (C-80/86):Consistent Interpretationin Dutch Criminal Courts I. Introduction II. Directive-Conform Interpretationin the Netherlands Post-Kolpinghuis III. Consistent Interpretation in DutchCriminal Courts IV. Final Remarks 2. C-387/02 – Berlusconi and Others: The Berlusconi Judgment: A Cornerstone
of European Legality I. Introduction II. The Facts III. The CJEU's Judgment in a Nutshell IV. Reception and Interpretation by National Criminal Courts and Scholars V. Perspectives on Berlusconi VI. Reassessing Key Elements of Berlusconi in the Light of Multilevel Legality VII. Conclusions Allusion, Illusion, Delusion.The Assessment of the BerlusconiJudgment in Italy I. Ambiguities II. Against the Advocate General:a) Retroactivity vs Effectiveness III. Against the Advocate General(and against the Court):b) Primacy vs Domestic Constitutional Control IV. Is (Only) Retroactivity at Stake?A Deeper Divide V. Overcoming the Divide? Analogy in Interpretinga State’s Duty to Criminalise 3. C-105/03 – Pupino: Impact of the Pupino Decision on EU Law I. Introduction II. Pupino: The Judgment, the Critique, the Context III. The Principle after Pupino, after Lisbon IV. An Evaluation of the Principle in the Field of Criminal Law V. Conclusion Protecting Vulnerable Victims and Beyond:The Duty of Consistent Interpretationin Criminal Matters in Italy after Pupino I. Preliminary Remarks II. The Case Pupino: An Overview III. The Practical Consequences of Pupinoin the Relevant Policy Area at National Level IV. Wider Consequences of the Duty of Consistent Interpretation in Other Areas of National Criminal Law V. Concluding Remarks Part II: Competence 4. 68/88 – Commission v Greece: Effectiveness, Dissuasiveness, Proportionality of Sanctions and Assimilation Principle: The Long-Lasting Legacy of the Greek Maize Case I. Introduction II. The Assimilation Principle before and after the Greek Maize Case III. Effectiveness, Proportionality and Dissuasiveness of Penalties IV. Conclusions The Greek Maize Case. From SincereCooperation to Criminal LawIntegration in the EU I. Preliminary Remarks II. Main Achievements and Developments III. The Impact of the Greek Maize Caseon Domestic Legislation IV. Concluding Remarks 5. C-176/03 – Commission of the European Communities v Council of the European Union: The ‘Constitutional’ ECJ Ruling on the Enforcement of Community Law (Case C-176/03) and its Impact on EU Law I. The Essentials of the Decision and its Broader Historical Context II. The ECJ Judgment and its Supporting Argumentation III. Critical Evaluation of the Judgment IV. The Consequences of the ECJ Judgment and its Impact on EU Law V. Conclusion EU Substantive Criminal Competence and theCourt of Justice: Reactions to the Case Law I. Introduction II. Why Did the Choice of Legal Basis Matter? III. Reactions during the Proceedings: Member State Interventions in Environmental Crime IV. Institutional Reactions to Environmental Crime V. Reviews of Environmental Crime at National Level VI. Ship-Source Pollution and further Member State Litigation VII. Reactions to Substantive Criminal Competence after the Lisbon Treaty VIII. Conclusion 6. C-105/14 – Taricco and Others: On Legality in Criminal Matters
between Primacy of EU Law
and National Constitutional Traditions.
A Study of the Taricco Saga I. Shifting Paradigms: The First Taricco Decision of the Court of Justice II. The Tormented Aftermath of Taricco I III. Back to Court. Constitutional Gatekeepers Raising their Voices IV. Back to Luxembourg with the Opinion of AG Yves Bot: Confirming Taricco, Reaffirming Melloni, Reinvigorating Internationale Handelgesellschaft56 V. How to Build up a Revirement: The M.A.S. Decision of the Court of Justice. Repetita iuvant? VI. Mapping the Limits of "Disapplication" while Defining the European Legality Principle in Criminal Matters VII. The Art of Uncertainty: Protecting Primacy Accepting Pluralism in the Post-Lisbon and Post-Charter EU Legal Order Taricco, Endgame I. Taricco through the Labyrinth of Jurisprudence II. Solved and Unsolved Questions after the 2017Grand Chamber Judgment III. Decision No 115 of 2018: The Natureof the Limitation Period, the ‘Determination’of European Obligations and the Tasksof Competent National Courts IV. ‘Taricco Rule’ before the Constitutional Court: Recommendations ‘Behind the Appearances’ V. Conclusion Part iII: Ne bis in idem 7. C-187/01 – Gözütok and Brügge
Comment on CJEU, 11 February 2003,
Joined Cases C-187/01 and C-385/01
Criminal Proceedings v Hüseyin Gözütok
and Klaus Brügge I. Introduction II. The Legacy of the Gözütok and Brügge Case with Regard to the Broad Interpretation of the ne bis in idem Principle III. Limits to the Broad Interpretation of ne bis in idem and the Appearance of Tensions in the Court"s Case Law IV. The General Impact on the Functioning of the Mutual Recognition Principle and on the Mutual Trust Principle V. Conclusion The Impact of Case C-187/01[Gözütok/Brügge] at the NationalLevel: Inadvertent Legacy I. Introduction II. Contribution to the Recognitionof Mutual Trust as a Normative Tool III. Contributions to the Clarification of the Normative Content of the ne bis in idem Principle IV. Contribution to Establishing a NovelMethod of Interpretation V. Concluding Remarks and Suggestions 8. C-486/14 – Kossowski
Judgment (Grand Chamber) C-486/14
Piotr Kossowski, 29 June 2016 I. Factual Background II. Decision of the Court III. Analysis Impact of the Case C-486/14 – Kossowskiat National Level I. Circumstances of the Case II. Ruling of the Court III. Discussion IV. Conclusion 9. C-617/10 – Åkerberg Fransson
Fishing for Better Rights Protection:
The Court of Justice on the Application
of the Charter in the Member States and
the Reach of ne bis in idem I. Facts and Key Legal Questions II. The Application of the Charter in the Member States: Implementing Union Law III. The ne bis in idem Principle Enshrined in Article 50 of the Charter IV. The Relationship between Charter Rights and the ECHR V. Conclusion The Impact of Case C-617/10:Åkerberg Fransson at NationalLevel – The Swedish Example I. Introduction II. From Haparanda to Luxembourg – Case C-617/10 – Åkerberg Fransson III. The Swedish System, the Rise and Fall of Multilevel Rebellion and Reluctance and the Importance of Dissenting Opinions IV. The Fisherman, the Special Mobile Task Force of National Judges, and EU Law V. Concluding Remarks Part IV: Migration and Citizenship 10. C-61/11 PPU – El Dridi
Criminalisation of Irregular Migration
in the EU: The Impact of El Dridi I. Introduction - The EU Involvement in the Criminalisation of Irregular Migration II. The Return Directive as the Stormy Petrel III. The Judgment in El Dridi: A Decisive Step towards the Delimitation of Member States" Power to Criminalise Irregular Migrants IV. Subsequent Case Law: A Comprehensive Approach towards Criminalisation of Irregular Migrants? V. Conclusion Reshaping Criminalisation of IrregularMigration in Italy: The Impact ofEU Law Beyond the El Dridi Judgment I. Introduction II. The El Dridi Judgment and its Immediate Impacton the Condition of Third-Country NationalsWho Disobeyed an Order to Leave III. The (Belated) Implementation of the Return Directive: The Amended Versions of Article 14(5-ter)and (5-quater) CIA IV. The Impact of El Dridi on Other Provisions Criminalising the Conduct of Illegally StayingThird-Country Nationals: Article 10-bis CIA V. Criminalisation of Breaches of a Re-entry Ban:Article 13(13) and (13-bis) CIA and the Return Directive VI. Conclusions 11. C-304/14 – CS
The Intersection of National Criminal Law
and EU Citizenship Law: Reflections
on the Judgment in CS I. Introduction II. The Legal Context III. The CS Case IV. After CS: First Impressions V. Conclusion Leave at Your Chosen Speed? EU Citizenshipand Criminal Convictions: An Insightinto the United Kingdom’s Approach I. Introduction II. The EU Citizenship Legal Framework III. Expulsion from the EU and MinorUnion Citizens: The Case of CS IV. The UK Legal Framework V. The UK Policy Approach VI. The Debatable Geometry of the UK Approachto Crime and Citizenship Rights VII. Concluding Remarks Part V: Mutual Recognition and Mutual Trust 12. C-303/05 – Advocaten voor de Wereld
Advocaten voor de Wereld:
The Salvation of Mutual Trust I. Introduction II. The Preliminary Reference III. The Decisions of the Court IV. The Implications of the Judgment V. Salvation or Curse? The Contribution of Advocaten voor deWereld for the Protection of Human Rightsin the Context of Supra-State Lawand for the Doctrine of Double Criminality I. Introduction II. Can a Framework Decision (or a Directive) Violatethe Legality Principle? If so, which Jurisdictionis Competent for Ruling Thereupon? III. The Nature and Function of the DoubleCriminality Rule and its Relationshipwith the Legality Principle IV. Conclusion 13. C-396/11 – Radu
Judgment of the Court of Justice of the European Union, 29 January 2013, Radu I. Introduction II. The Reference for a Preliminary Ruling and the Opinion of AG Sharpston - High Expectations III. The Court"s Judgment in Radu: A Missed Opportunity IV. Some Considerations on Mutual Recognition and Mutual Trust, as Interpreted in Radu V. A Few Considerations on Radu"s Impact over the Relationship between the EU and the ECtHR VI. Some Comments on Radu"s Impact over the EAW System and the Subsequent Development of Criminal Law Tools VII. A Final Thought - Does the Aranyosi Case Change it All? The Implication of Radu at a National Level: National Courts’ Diversified Responseto Conflicting Obligations I. Introduction II. The Implementation of the CJEU Radu Ruling by Romanian Courts III. National Courts Diversified Solutions to Conflicting Obligations IV. Conclusions 14. C-399/11 – Melloni
Melloni: Primacy versus Rights? I. Introduction II. The Court"s Ruling III. Standard of Protection and Conviction in Absentia IV. Primacy V. Concluding Remarks Bypassing or Intensifying the Dialoguebetween Courts? The Impact of Melloniat the National Level I. Introduction II. The Melloni Judgment III. The Impact of Melloni in Spain IV. Bypassing or Intensifying the Dialoguebetween Courts? V. Conclusions 15. Joined Cases C-404/15 and C-659/15 PPU – Pál Aranyosi and Robert Căldăraru v Generalstaatsanwaltschaft Bremen
Resetting the Parameters of Mutual Trust: From Aranyosi to LM I. Introduction II. The Starting Premise: Automatic Mutual Recognition based on Presumed, Uncritical Trust III. Revisiting Automaticity: Aranyosi and its Impact IV. Extending Aranyosi: Towards a Fundamental Rights Scrutiny Benchmark across European Public Law V. From a Fundamental Rights to a Rule of Law Scrutiny Benchmark: The Impact of LM VI. Resetting the Parameters of Mutual Trust: From Presumed to Earned Trust Aranyosi and Căldăraruthrough the Eyes of National Judges I. Introduction II. Aranyosi and Căldăraru: Can We Trust Your Detention Conditions? III. Case C-220/18 PPU ML: Can We Really Trust Your Detention Conditions? IV. Case C-216/18 PPU LM: Are You Independent Enough to be Trusted? V. Conclusions The Effect of CJEU Case Law Concerningthe Rule of Law and Mutual Truston National Systems I. The Aranyosi and LM jurispridence II. Potential Consequences for National Judiciaries and Suspects III. National Follow-Up to Aranyosi and LM: Proving the Need for an EU Mechanism on Democracy, the Rule of Law and Fundamental Rights Index