The Needed Balances in EU Criminal Law: Past, Present and Future

Description

This important volume provides an up-to-date overview of the main questions currently discussed in the field of EU criminal law. It makes a stimulating addition to literature in the field, while offering its own distinctive features. It takes a four-part approach: firstly, it addresses issues of a constitutional nature, such as the EU competence in the field of criminal law, the importance of the principle of subsidiarity and the role played by the different EU institutions. Secondly, it looks at issues linked to the quest of the right balance between diversity and unity, and focuses in particular on the special relationship between approximation and mutual recognition. Thirdly, it focuses on the balance between security and freedom, or, in other words, between the shield and sword functions of EU criminal law. Special attention is given here to transatlantic cooperation, data protection, terrorism, the European Arrest Warrant and the European Investigation Order. Finally, it examines the importance of balanced relations between criminal justice actors. Volume 5 in the series Hart Studies in European Criminal Law Acknowledgements Contents List of Contributors Abbreviations Part I:
Introduction 1: Introduction by Vera Jourova, EU Commissioner for Justice, Consumers and Gender Equality 2: Introduction by Minister Koen Geens, Minister of Justice, Belgium 3: Introduction by Minister Félix
Braz, Minister of Justice, Luxembourg 4: Introduction: About ECLAN and the Balances that Need to be Struck in EU Criminal Law I. A Brief History of the Network II. Striking Much Needed Balances in EU Criminal Law III. Conclusion Part II:
The Quest for the Right Balance in the Institutional Design/Between the EU
and the Member States and Between
the EU Institutions 5: The Evolution of Competence Distribution Between the European Union and the Member States in the Criminal Field I. Introduction II. Overviews from Academia III. Evolution of the Union's Competence in Criminal Matters IV. Future Outlook/Conclusion 6: 'The Evolution of Competence Distribution Between the EU and the Member States in the Criminal Field' (by Samuli Miettinen)—A (Short) Reaction I. Preliminary Issues: EU Jurisdiction ('Competence') Over Criminal Matters; Responsibility; Three Streams of Legal Interests II. The Treaties and the Relationship Between Jurisdiction and Responsibility: How the Third Pillar Logic Hijacked the Penal Protection of First Pillar Legal Interests III. Reshaping the EU's Jurisdiction Over Criminal Offences and Penalties 7: The Principle of Subsidiarity in EU Criminal Law I. Introduction II. The Problem of the Allocation of Powers: Performance (Efficiency), Normative and Political Values Criteria III. Power Allocation Within the EU Legal Order: Subsidiarity and other Criteria IV. Subsidiarity as a Performance (Efficiency-Based) Criterion and its Implication for the Role of the EU V. Subsidiarity and EU Criminal Law: When is the EU More Efficient in the Criminal Justice Field? VI. Subsidiarity and EU Criminal Law: The Efficiency Dimension in Policy and Treaty Language VII. Subsidiarity and EU Criminal Law: The Normative Dimension in Legislative Texts VIII. Subsidiarity and EU Criminal Law: What is the Envisaged Role for the EU in the Area of Criminal Justice? IX. Conclusions 8: Challenges Facing the Academic Community: A Practitioner's Point of View in Reaction to Irene Wieczorek's Paper 9: Stepping into Uncharted Waters No More: The Court of Justice and EU Criminal Law I. Introduction II. Procedural Aspects of the Court's Involvement in EU Criminal Law III. Enforcement of EU Criminal Law at the National Level IV. Validity and Interpretation of EU Criminal Law Instruments V. Conclusions 10: The Evolution of the Relationship and Balance Between the Different EU Institutions I. Introduction II. Complex Division of Powers within the EU Institutional Design III. Is the New Post-Lisbon Era a Reality? IV. A Virtual 'Google Map' of the EU Institutions Six Years after Lisbon V. Conclusion Part III: The Quest for the Right Balance Between Diversity and Unity 11: The Issue of Mutual Trust and the Needed Balance Between Diversity and Unity I. The Milestones II. Elements of Mutual Trust III. Mutual Trust as Seen by the ECJ (First Phase) IV. Mutual Trust as Seen by the Legislator V. Mutual Trust as Seen by the ECJ (Second Phase) VI. Concluding Remarks 12: The Sensitive Relationship Between the Different Means of Legal Integration: Mutual Recognition and Approximation I. Introduction II. Approximation (or Harmonisation) of Criminal Laws III. Mutual Recognition IV. The Relationship between Mutual Recognition and Harmonisation V. The Principles Behind Legislation VI. What does this Entail for the Future? 13: Mutual Recognition in EU Criminal Law and Fundamental Rights—The Necessity for a Sensitive Approach I. Introduction II. Overview of Existing Mutual Recognition Instruments III. The European Investigation Order (EIO) as an Example of a 'Good'/Balanced Mutual Recognition Instrument IV. Harmonisation—A Question of Level V. About the EPPO—A Lesson not Learned VI. The United States' Experience as an Example of Cross-Border Cooperation VII. Conclusions Part IV:
The Quest for the Right Balance
Between Liberty and Security 14: The External Dimension of Mutual Trust: The Coming of Age of Transatlantic Counter-terrorism Cooperation I. Introduction II. Transatlantic Counter-Terrorism Cooperation: A Typology of EU—US Agreements and their Impact on European Values III. The Quest for Mutual Trust in Transatlantic Counter-Terrorism Cooperation IV. Conclusion 15: The Role of the Data Protection Authorities in Supervising Police and Criminal Justice Authorities Processing Personal Data I. Introduction II. Three-Pillar Structure of the EU Data Protection Legal Framework III. Role of the Supervisory Authorities IV. Independence of the Supervisory Authorities V. Can the Supervisory Authorities Supervise Judges and Prosecutors? (Article 45 of the Directive) VI. The Powers of the Supervisory Authorities (Article 47 of the Directive) VII. Complaint Handling (Articles 52–55 of the Directive) VIII. Conclusion: Emphasised Importance of Data Protection in the Area of Criminal Law 16: 'Foreign Terrorist Fighters'—De-Radicalisation and Inclusion vs Law Enforcement and Corrections in Denmark I. The Dual Challenge with Responding to the Phenomenon of Foreign Fighters II. Denmark as an Actor in the Theatre of International Terrorism III. The Aarhus De-Radicalisation and Rehabilitation Model IV. Outline of Danish Criminal Law Concerning Terrorism and Foreign Fighters V. Updating the Treason Provisions VI. Amending the Passport Code and the Foreigners Act VII. The UN Security Council—Adopting Resolutions 2170 and 2178 (2014) VIII. The Council of Europe—Adopting an Additional Protocol IX. The European Union—Proposing a New Directive X. Introducing a Ban on Travelling to and Remaining in Conflict Zones XI. The First Conviction by Danish Courts of a Syrian-Traveller XII. Looking Back—Looking Forward 17: A New Hope? The Court of Justice Restores the Balance Between Fundamental Rights Protection and Enforcement Demands in the European Arrest Warrant System I. Introduction II. Mutual Trust and Mutual Recognition III. The European Arrest Warrant Framework Decision IV. The Court of Justice and the EAW Framework Decision. Two Eras towards a Restored Balance V. Concluding Remarks 18: Mutual Recognition and Cross-Border Interception of Communications: The Way Ahead for the European Investigation Order I. Introduction II. Interception of Communications with Technical Assistance of Another Member State III. Interception of Communications without Technical Assistance of Another Member State IV. Conclusions Mutual Recognition and Cross-Border Interception of Communications: The Way Ahead for the European Investigation Order Part V:
The Quest for Balance Regarding
Criminal Justice Actors and in Their
Mutual Relations 19: A Comparison of the Evolution and Pace of Police and Judicial Cooperation in Criminal Matters: A Race Between Europol and Eurojust? I. About Roles and Functions II. Mission Accomplished—Where does One Go Now? III. Challenges for the Future—Law in Action IV. Conclusion 20: The Cooperation Between Police and Justice at the EU Level: The Representative Example of Joint Investigation Teams I. Introduction II. The Evolution of Europol and Eurojust's Competences in JITS and their Necessary Cooperation III. Aspects of the JITS Functioning where a Problematic Blur can be Witnessed between the Authorities Involved in JITS IV. Conclusion 21: The Draft Regulation on the Establishment of the European Public Prosecutor's Office—Issues of Balance Between the Prosecution and the Defence I. Introduction II. Main Elements of the EPPO III. Five Issues in Respect of Striking a Balance between the Prosecution and the Defence IV. Conclusion 22: The Material Scope of Competence of the European Public Prosecutor's Office: Lex uncerta and unpraevia? I. Introduction II. The Treaty Frame III. The Eppo-Proposal of the European Commission and its Versions under Negotiations IV. Substantive Harmonisation of the PIF-Offences V. Conclusion Part VI:
Conclusion 23:
Afterword(s) on Mutual Recognition and the Respect for Fundamental Rights Revisited—Following the Judgment in Aranyosi and Căldăraru I. Introduction II. The Principle of Mutual Recognition Based on Mutual Trust III. The M.S.S.–N.S. Jurisprudence and its Potential Extension IV. After Aranyosi and Căldăraru V. A Fundamental Disagreement on Fundamental Rights Between the Two European Courts? VI. Where the Shoe Still Pinches Index