European Law (2016/2017) Seminar 3

Seminar 3 of the Course European Law (2016/2017), Utrecht University

Week 3

The Area of Freedom, Security and Justice

Question 1

1. Which policy areas does the Area of Freedom, Security and Justice encompass?

Answer to question 1a:

The Area of Freedom, Security and Justice is regulated by Article 3(2) TEU: ‘The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.’ 

According to this Article, the policy areas are border controls, immigration, asylum and the prevention and combating of crime.  

2. The Tampere European Council (1999) endorsed the principle of the mutual recognition of judicial decisions as the foundation of judicial cooperation in both civil and criminal matters. What does this principle entail?

Answer to question 1b:

The principle of the mutual recognition means that Member States have trust in one another and they recognize the judicial decisions of the other Member States, without checking the procedure that was followed. Member States should have the mutual trust that the procedure in the other Member State was right and the rights were guaranteed. This principle entails that the Member States work together and they trust each other. That’s why they recognize each other’s decisions.

There’s a distinction between criminal matters and civil matters.

Question 2

Mr. Ludy, a French citizen, has been living in Denmark since 2007. In 2011 he attends a seminar in Stockholm on “War and Social Media”. Mr. Ludy is one of the keynote speakers of the seminar. Mr. Ludy had arranged in advance that he could stay in the apartment of one of the organizers of the seminar, Miss Anna. That night Mr. Ludy and Miss Anna, reportedly had sex. The day after Mr. Ludy returns to Denmark. A few months later a Swedish Court sentenced Mr. Ludy in absentia to 10 years’ imprisonment for rape. No summon was served because the Swedish authorities were not aware of Mr. Ludy’s whereabouts. The Prosecutor’s Office of Stockholm issued an European Arrest Warrant is against Mr. Ludy for the execution of the sentence. Mr. Ludy gives himself up to the Copenhagen Police and is taken into a surrender hearing at the Court of Copenhagen. Before the Court of Copenhagen Mr. Ludy argues that he was not aware of the proceedings in Sweden. He believes his right of defense has been infringed. The decision of sentence has not yet been served to him in anyway. Look at the Council Framework Decision on the European Arrest Warrant.

1. Is it possible for Sweden to issue a European Arrest Warrant for Mr. Ludy?

Answer to question 2a:

Yes, it is possible to issue a European Arrest Warrant. According to Article 2 Council Framework Decision (CFD), there are to requirements which must be fulfilled (1, 2):

1. ‘’A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.’’ > Rape is punishable under Swedish law. Mr. Ludy is sentenced with imprisonment of 10 years, so this requirement is fulfilled.
2. The offence must fall within the scope of an offence in the list of (2) > Rape is one of the offences on the list, so this requirement is fulfilled.

2. Is Denmark obliged to surrender Mr. Lassange on the ground of the issued European Arrest Warrant?

Answer to question 2b:

According to the principle of mutual recognition, Denmark would be obliged to surrender Mr. Ludy (Article 1 (2) Framework Decision), unless there are grounds on which Denmark is allowed to refuse (Article 3 Framework Decision). Article 3 has imperative grounds, and article 4 has optional grounds and article 4a is about the trial where the person did not appear in person. If Sweden informs Mr. Ludy about this right to retrial, then he should be surrendered (Article 4(d) Framework Decision).    

Question 3:

Please analyse Article 86 TFEU which provides for the possibility of the establishment of a European Public Prosecutor’s Office (EPPO).

1. If the European Public Prosecutor’s Office (EPPO) is established, what will be its main task?

Answer to question 3a:

Article 86 TFEU describes: ‘’In order to combat crimes affecting the financial interests of the Union, the Council, by means of regulations adopted in accordance with a special legislative procedure, may establish a European Public Prosecutor’s Office form Eurojust.

The EPPO shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences against the Union’s financial interests. It shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences’’. The main task of the EPPO will be the investigation, prosecution and brining to judgment of offences against the Union’s financial interest.

2. The European Commission has proposed to establish the European Public Prosecutor’s Office. However, in order to come in force the Commission’s proposal needs to be adopted. Looking at the procedure of Article 86 TFEU, argue why:
   
   1. It is not very likely that the EPPO will be established;
   2. It is very likely that the EPPO will be established.

Answer to question 3b:

1. It is not very likely that the EPPO will be established, because the Member States are afraid they will have to hand in more of their sovereignty. The Union will have  more and more possibilities and tasks. The Member States are losing their sovereignty because of these actions. The Member States do not want that. EPPO has not been established yet. There’s an unanimity needed, which is not likely to happen. In addition, there’s a consent required by the European Parliament and the Council. 
2. It is likely that the EPPO will be established, because the Member States handed in a piece of their sovereignty to the Union, therefore the Union can establish the EPPO. The EPPO would help securing the Union-zone against offences.

Question 4

Explain the importance of the Wolzenburg case in the light of the non-discrimination and proportionality principle.

Answer to question 4:

According to the Wolzenburg case, it is not discrimination of a Member State if it requires a person to live in that state for longer than 5 years, to be able to refuse the surrender of that person. If the person has been already in that Member State for 5 years, the Member State can refuse the surrender. If the person resides in the Member State for a shorter period, the Member State must surrender the person to the other authorities. This happened in the Wolzenburg case, this was no discrimination based on nationality. Look into paragraph 68 and 69, 70.  

Question 5

Suppose the European Commission proposes a directive for combating illicit arms trafficking by criminal law.

1. What could be the legal basis of this proposal?

Answer to question 5a:

Article 83(1) TFEU: ‘’The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of criminal offences and sanctions in the areas 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’’. It’s about the combating of criminal offences. When it concerns particularly serious crimes, then the European Parliament and Council may adopt minimum legislation.

2. The Commission’s proposal also includes minimum sanctions and maximum sanctions which the Member States must implement in their criminal justice system. Germany and Belgium both oppose this proposal. What can Germany and Belgium do?

Answer to question 5b:

In the case Germany and Belgium are afraid that the draft will infringe on the fundamental rights and aspects of the criminal justice system, they can use Article 83 (3) TFEU: ‘Where a member of the Council considers that a draft directive as referred to in paragraph 1 or 2 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. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure.’ The legislative will then be suspended. This is the emergency brake.