The legal basis for preventing and resolving conflicts of criminal jurisdiction in the TFEU

2018 ◽  
Author(s):  
Martin Wasmeier
Keyword(s):  
European Union ◽  
The European Union ◽  
Legal Basis ◽  
Judicial Cooperation ◽  
Member States ◽  
Criminal Jurisdiction ◽  
Amsterdam Treaty ◽  
Criminal Matters ◽  
Conflicts Of Jurisdiction

Since the European Union (EU) has received powers to adopt legally binding acts in the area of judicial cooperation in criminal matters, the Treaties expressly referred to conflicts of jurisdiction as one of the issues to be tackled. Under the Amsterdam Treaty, the Union could adopt decisions and framework decisions with the aim of ‘preventing conflicts of jurisdiction between Member States’ (ex-​Article 31(d) of the Treaty on European Union (TEU)). The Treaty of Nice (26 February 2001) added the coordination of prosecutions through Eurojust.

Caught Between National and Supranational Values: Limitations to Judicial Cooperation in Criminal Matters as Part of the Area of Freedom, Security and Justice within the European Union

2008 ◽  
Vol 10 (1) ◽  
pp. 51-72
Author(s):  
Olivia den Hollander
Keyword(s):  
European Union ◽  
Legal Framework ◽  
The European Union ◽  
Judicial Cooperation ◽  
Member States ◽  
Eu Member States ◽  
The Third ◽  
The One ◽  
Criminal Matters ◽  
The Eu

AbstractCurrently, the European Union is based on both supranational (first pillar) and international (second and third pillar) law. The third pillar signifies police and judicial cooperation in criminal matters and although formally based on international law, it has been under increasing "supranational pressure" by the developments in the "Area of Freedom, Security and Justice". This Area is focused on a set of common values and principles closely tied to those of the single market and its four "freedoms". The main argument of this article is that the legal framework of the third pillar is an impediment to judicial cooperation in criminal matters in general, and to the coordination of conflicts of jurisdiction and the principle of ne bis in idem in particular. The legal framework of the third pillar finds itself in the middle of an identity crisis, since it can neither be identified as a traditional intergovernmental, nor as a supranational institutional framework. Criminal law is a politically sensitive matter, which on the one hand explains why the EU member states are reluctant to submit their powers over the issue to the European level and on the other hand, it implies that if the EU member states really want to cooperate on such an intensive level, they will have to submit some of their powers in order to strengthen EU constitutional law. The article suggests a reform of the third pillar through the method of "communitization", which is exactly what will happen in case the EU Reform Treaty will enter into force. This would offer the ingredients for a true international community in which the ambitious agenda of the Area of Freedom, Security and Justice can realise its aim of a common set of values and principles which supersedes those of each of the member states individually.

scholarly journals The evolution of standards for the creation and extension of jurisdiction of the Court of Justice of the European Union in the founding instruments of the European Communities and the European Union in the pre-Lisbon period

2020 ◽  
pp. 422-426
Author(s):  
Petro Rudyk
Keyword(s):  
European Union ◽  
European Economic Community ◽  
The European Union ◽  
Judicial Cooperation ◽  
Amsterdam Treaty ◽  
Court Of Justice ◽  
Gradual Evolution ◽  
Energy Community ◽  
Criminal Matters ◽  
Court Of First Instance

The gradual evolution of the standards of the founding instruments of the European Communities and then the European Unionin the field of their judicial systems, which is subject to the integration processes in Europe, is comprehensively analyzed. Thoroughscientific works of both foreign and domestic scientists cover the problems of various spheres of development of the European Union,its institutions, in particular, its Court of Justice. However, the study of this topic was not given enough attention. Therefore, the purposeof the article is a comprehensive analysis of the evolution of the standards of the constituent instruments of these associations inrelation to the establishment and expansion of the jurisdiction of their Court of Justice in the pre-Lisbon period. It is established thatthe origins of the standards of the Court of Justice were enshrined in the founding treaties of the European Communities, and were furtherdeveloped in the founding instruments of the European Union, which were constantly being transformed. The jurisdiction of theCourt of Justice of the Coal and Steel Community was limited to a narrow sphere of economy, and with the entry into force of theTreaties establishing the European Economic Community and the European Atomic Energy Community (1958), the Court became ajoint institution for the three communities, with the powers of ensuring respect for the law in the interpretation and application of eachof the treaties.The peculiarities of the amendments made to the provisions of the following constituent instruments are discovered. The SingleEuropean Act (1986) provided for a certain unification of the legislation of Western European countries, supplementing the foundingtreaties of the Communities with new provisions on the establishment of the Court of First Instance to hear certain claims of individualsand legal entities to relieve the Court of Justice. The Maastricht Treaty (1992) formally proclaimed the establishment of the EuropeanUnion and defined the new structure of the Court of Justice (Court, Tribunal and Specialized Tribunals), its composition and powers,and powers of the Member States in the judicial field. The Amsterdam Treaty (1997) expanded the jurisdiction of the Court of Justiceof the European Union, namely certain areas of activity of courts, their cooperation with other competent authorities of the MemberStates, joint actions of judicial cooperation in criminal matters, etc. The Treaty of Nice significantly deepened the standards of thefounding instruments of the Court of Justice, expanded the powers of its judicial bodies and modernized its structure (including theCourt of Justice and the Court of First Instance), defined high requirements for judges and advocates general, the periods of theirreplacement, extended the jurisdiction of the Court of First Instance, etc. Further transformation of the standards of the Court of Justicehas been carried out under the Lisbon Treaty, which requires a separate study.

scholarly journals Prosecuting political dissent: Discussing the relevance of the political offence exception in EU extradition law in light of the Catalan independence crisis

2021 ◽  
pp. 203228442110047
Author(s):  
Sibel Top
Keyword(s):  
European Union ◽  
The Political ◽  
Political Rights ◽  
Mutual Trust ◽  
The European Union ◽  
Judicial Cooperation ◽  
Member States ◽  
Political Dissent ◽  
Criminal Matters ◽  
The Eu

Most extradition treaties contain a political offence exception clause, which precludes extradition from taking place when the concerned crime is considered to be political by the requested state. This clause has been abolished within the European Union (EU), where mutual trust prevails among Member States, allegedly rendering such safeguards obsolete. This article, however, seeks to question the commonly agreed outdatedness of the political offence exception clause within the EU framework, looking at the context of its abolition, the role Spanish authorities played in it at the time of its abolition, the way they have handled the Catalan crisis since 2017 and the exportation of the latter at the EU level. It argues that the situation in which Catalan exiles are today casts doubt over the obsolescence of safeguards such as the political offence exception and further contends that human and political rights safeguard mechanisms should not be perceived as hampering mutual trust and judicial cooperation in criminal matters in the EU.

Human rights and the rule of law in judicial cooperation in criminal matters under the EU–UK Trade and Cooperation Agreement

2021 ◽  
pp. 203228442199593
Author(s):  
Wolfgang Schomburg ◽  
Anna Oehmichen ◽  
Katrin Kayß
Keyword(s):  
European Union ◽  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
Cooperation Agreement ◽  
Judicial Cooperation ◽  
Human Rights Protection ◽  
Criminal Matters ◽  
The Eu

As human rights have increasingly gained importance at the European Union level, this article examines the remaining scope of human rights protection under the EU–UK Trade and Cooperation Agreement. While some international human rights instruments remain applicable, the Charter of Fundamental Rights of the European Union did not become part of the Trade and Cooperation Agreement (TCA). The consequences, especially the inapplicability of the internationalised ne bis in idem principle, are analysed. Furthermore, the conditionality of the TCA in general as well as the specific conditionality for judicial cooperation in criminal matters are discussed. In this context, the risk that cooperation may cease at any moment if any Member State or the UK leave the European Convention of Human Rights is highlighted. Lastly, the authors raise the problem of the lack of judicial review, as the Court of Justice of the European Union is no longer competent.

scholarly journals Castaño avoids a clash between the ECtHR and the CJEU, but erodes Soering. Thinking human rights transnationally

2020 ◽  
pp. 203228442097974
Author(s):  
Sibel Top ◽  
Paul De Hert
Keyword(s):  
European Union ◽  
Human Rights ◽  
Union Member ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
European Court ◽  
Criminal Matters ◽  
European Union Member States

This article examines the changing balance established by the European Court of Human Rights (ECtHR) between human rights filters to extradition and the obligation to cooperate and how this shift of rationale brought the Court closer to the position of the Court of Justice of the European Union (CJEU) in that respect. The article argues that the ECtHR initially adopted a position whereby it prioritised human rights concerns over extraditions, but that it later nuanced that approach by establishing, in some cases, an obligation to cooperate to ensure proper respect of human rights. This refinement of its position brought the ECtHR closer to the approach adopted by the CJEU that traditionally put the obligation to cooperate above human rights concerns. In recent years, however, the CJEU also backtracked to some extent from its uncompromising attitude on the obligation to cooperate, which enabled a convergence of the rationales of the two Courts. Although this alignment of the Courts was necessary to mitigate the conflicting obligations of European Union Member States towards both Courts, this article warns against the danger of making too many human rights concessions to cooperation in criminal matters.

II. Free Movement of Persons

2001 ◽  
Vol 50 (1) ◽  
pp. 168-175 ◽  
Author(s):  
Jules Lonbay
Keyword(s):  
European Union ◽  
Subject Matter ◽  
Free Movement ◽  
The European Union ◽  
Amsterdam Treaty ◽  
Previous Note ◽  
Title Iv ◽  
Treaty Of Rome ◽  
Free Movement Of Persons ◽  
Criminal Matters

As mentioned in the previous note1 the Amsterdam Treaty significantly alters the treaty structure as regards the free movement of persons. The EC treaty now has, as one of its formal activities as set out in article 3(1)(d), “measures concerning the entry and movement of persons as provided for in Title IV”. The creation of a new Title IV in the EC Treaty on establishing an area of freedom, security and justice moves a corpus of subject matter2 from the inter-governmental pillar on Justice and Home Affairs to the Treaty of Rome. The aim clearly set out is to establish, within five years, all the measures necessary to create “an area without frontiers” in accordance with Article 143 together with “flanking measures with respect to external board of controls of asylum and immigration” as well as “measures to prevent and combat crime in accordance with the provisions of Article 31 (e) of the Treaty on European Union”.4 Co-operation between the Member States is also to be strengthened and encouraged5 as well as measures in the field of police and judicial co-operation in criminal matters though the latter is in accordance with the provisions of the Treaty on the European Union.6

COMPARATIVE ANALYSIS OF INTESTATE SUCCESSION IN THE LEGISLATION OF THE MEMBER STATES OF THE EUROPEAN UNION

2021 ◽  
Vol 65 (04) ◽  
pp. 164-169
Author(s):  
Elkhan Ajdar Askarov ◽  
Keyword(s):  
European Union ◽  
Comparative Analysis ◽  
Key Words ◽  
Civil Code ◽  
The European Union ◽  
Legal Basis ◽  
Member States ◽  
Important Place ◽  
Judicial Practice

Intestate succession occupies an important place in the field of Succession law in the civil legislation of the European Union. Intestate succession (devolution of decedent’s property to persons indicated in law) is effective in case of an intestacy or if testament is declared invalid entirely or partly. The article reflects the concept, sequence, legal basis and place in judicial practice of intestate succession. Key words: intestate succession, succession law, civil code, legislation, comparative analysis

The Limitations of the Harmonisation of Criminal Law in the European Union Protected by Articles 82(3) and 83(3) tfeu

2018 ◽  
Vol 26 (4) ◽  
pp. 315-334
Author(s):  
Kaie Rosin ◽  
Markus Kärner
Keyword(s):  
European Union ◽  
Criminal Justice ◽  
Criminal Law ◽  
Justice System ◽  
The European Union ◽  
Judicial Cooperation ◽  
Minimum Standards ◽  
Legislative Procedure ◽  
Definition Of ◽  
Criminal Matters

Articles 82(3) and 83(3) tfeu give Member States the possibility to suspend the legislative procedure of eu criminal law. Article 82(3) allows that kind of emergency brake mechanism for the process of adopting minimum standards for harmonising rules of criminal procedure enhancing judicial cooperation in criminal matters and Article 83(3) for establishing minimum rules concerning the definition of criminal offences and sanctions. A Member State can only use the emergency brake clause when the proposal for the directive would affect the fundamental aspects of its criminal justice system. This prerequisite deserves a closer analysis, therefore the aim of this article is to interpret the meaning of tfeu articles 82(3) and 83(3) to better understand the limitations of the harmonisation of criminal law in the European Union.

In View of Ratification: Governmental Preferences and Domestic Constraints at the Amsterdam Intergovernmental Conference

2002 ◽  
Vol 56 (2) ◽  
pp. 447-476 ◽  
Author(s):  
Simon Hug ◽  
Thomas König
Keyword(s):  
European Union ◽  
Political Parties ◽  
Data Sets ◽  
The European Union ◽  
Member States ◽  
Amsterdam Treaty ◽  
Treaty Negotiations ◽  
Domestic Constraints ◽  
Draft Proposal ◽  
The Eu

The bargaining product of the Amsterdam Intergovernmental Conference—the Amsterdam Treaty—dwindled down the draft proposal to a consensus set of all fifteen member states of the European Union (EU). Using the two-level concept of international bargains, we provide a thorough analysis of how this consensus set was reached by issue subtraction with respect to domestic ratification constraints. Drawing on data sets covering the positions of all negotiating actors and ratifying national political parties, we first highlight the differences in the Amsterdam ratification procedures in the fifteen member states of the EU. This analysis allows us to compare the varying ratification difficulties in each country. Second, our empirical analysis of the treaty negotiations shows that member states excluded half of the Amsterdam bargaining issues to secure a smooth ratification. Because member states with higher domestic ratification constraints performed better in eliminating uncomfortable issues at the Amsterdam Intergovernmental Conference, issue subtraction can be explained by the extent to which the negotiators were constrained by domestic interests.

Harmonisation of Asylum Law and Policy within the European Union: A Human Rights Perspective

2002 ◽  
Vol 20 (2) ◽  
pp. 163-184
Author(s):  
Hannah R. Garry
Keyword(s):  
European Union ◽  
Human Rights ◽  
Asylum Seekers ◽  
The European Union ◽  
Member States ◽  
Asylum Policy ◽  
Law And Policy ◽  
Amsterdam Treaty ◽  
Asylum Law ◽  
The Eu

From 1986 to the present, there has been a dramatic increase in the numbers of asylum applications within the borders of the European Union largely from Eastern European countries and former colonies in Africa, Asia and the Middle East. Reacting to the influxes of the 1980s, European States began to implement and coordinate policies to control entry of asylum seekers. Within this climate, the EU has moved towards harmonisation of asylum policy and procedure as necessary for its pursuit of an ‘area of freedom, security and justice’ without internal borders for the purpose of greater economic and political integration. In light of the current restrictive attitudes and practice towards asylum seekers in the individual Member States of the EU, the harmonisation of asylum policy through the institutions and law of the EU may prove to be problematic from a human rights perspective. This paper first traces the development of a common asylum policy within the EU through the Maastricht Treaty and the Amsterdam Treaty. Second, this paper analyses the implications of harmonisation after the Amsterdam Treaty with reference to the international obligations of the Member States under international human rights and refugee law. Third, this paper critiques the development of various current asylum policies and practice through intergovernmental development of ‘soft law’. Through this overview and analysis, it is argued that further steps towards harmonisation will continue to reflect European concerns with security, economic prosperity, and cultural homogeneity unless the moves towards supranationalism within the EU framework lead to a deliberate effort to make respect for human rights the core of asylum law and policy.

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