scholarly journals Norm diffusion as a tool to uphold and promote EU values and interests: A case study on the EU Japan Mutual Legal Assistance Agreement

2020 ◽  
Vol 11 (4) ◽  
pp. 439-466
Author(s):  
Anne Weyembergh ◽  
Irene Wieczorek
Keyword(s):  
Fundamental Rights ◽  
Legal Assistance ◽  
The European Union ◽  
Judicial Cooperation ◽  
Mutual Legal Assistance ◽  
Norm Diffusion ◽  
Legal Standards ◽  
Norm Emergence ◽  
The Eu

The article takes the European Union (EU)-Japan Mutual Legal Assistance (MLA) Agreement as a case study to analyse the EU success in pursuing its art 3(5) TEU mandate of upholding and promoting its values and interests; and to what extent the EU effectively relied on norm diffusion to this aim. The EU has arguably been, at least partially, successful in exporting its legal standards on ‘improved judicial cooperation’ in the text of the Agreement, especially a legal basis for acquiring testimony via videoconference, whereby to uphold its interest into security; and in including clauses allowing it to uphold its values of respect of fundamental rights. In particular, in having clause allowing the EU to refuse assistance if death penalty is involved, the EU arguably not only acted as a norm exporter, but it also set a new international legal standard, through which it also hoped to promote its values by triggering a change in Japan’s retentionist policy. An analysis of 10 years of implementation of the Agreement shows, however, a more nuanced picture, highlighting the importance to look at both the norm emergence and the norm socialisation phase when assessing the success of the EU as a norm exporter. The institutionalisation of EU-Japan MLA cooperation through the conclusion of the agreement has triggered a stark increase in volume and speed of cases, contributing to higher security. However, legal, practical and cultural factors hinder the implementation in practice of EU legal standards on acquisition of evidence and the promotion of the EU abolitionist agenda.

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 TOWARDS MINIMUM PROCEDURAL GUARANTEES FOR THE DEFENCE IN CRIMINAL PROCEEDINGS IN THE EU

2011 ◽  
Vol 60 (4) ◽  
pp. 1017-1038 ◽  
Author(s):  
Laurens van Puyenbroeck ◽  
Gert Vermeulen
Keyword(s):  
European Union ◽  
Criminal Law ◽  
Criminal Policy ◽  
Fundamental Rights ◽  
The European Union ◽  
Criminal Proceedings ◽  
Judicial Cooperation ◽  
Democratic Rule ◽  
Constitutional System ◽  
The Eu

A critical observer would not deny that the practice of European Union (‘EU’) policy making in the field of criminal law in the past decade since the implementation of the Tampere Programme has been mainly repressive and prosecution-oriented.1 The idea of introducing a set of common (minimum) rules, guaranteeing the rights of defence at a EU-wide level, has not been accorded the same attention as the introduction of instruments aimed at improving the effectiveness of crime-fighting. What does this mean for the future of EU criminal policy? Will the EU succeed in the coming years in developing an area where freedom, security and justice are truly balanced? According to several authors, to date the EU has evolved in the opposite direction. As one observer put it:[I]f Procedural Criminal Law arises from the application of Constitutional Law, or indeed if it may be described as “a seismograph of the constitutional system of a State”, then as a consequence the Procedural Criminal Law of the European Union shows the extent of the Democratic Rule of Law, of the existence of a true “Rechtsstaat”, within an integrated Europe. This situation may be qualified as lamentable, as the main plank of the EU's criminal justice policy relates to the simplification and the speeding up of police and judicial cooperation—articles 30 and 31 of the Treaty of the EU—but without at the same time setting an acceptable standard for fundamental rights throughout a united Europe.2

scholarly journals The Perils of the ‘Europeanisation’ of Extradition Procedures in the EU Mutuality, Fundamental Rights and Constitutional Guarantees

2007 ◽  
Vol 14 (2) ◽  
pp. 179-200
Author(s):  
Theodore Konstadinides
Keyword(s):  
Mutual Recognition ◽  
Civil Liberties ◽  
Fundamental Rights ◽  
The European Union ◽  
Constitutional Treaty ◽  
Judicial Cooperation ◽  
Current Application ◽  
Arrest Warrant ◽  
European Arrest Warrant ◽  
The Eu

This article focuses on the main problems regarding the current application of EU extradition procedures in relation to the area of judicial cooperation in criminal matters. It introduces the ‘Europeanisation’ of extradition procedures through a discussion based on the continuity of the principle of mutual recognition from the EC Treaties to the EU Constitutional Treaty. The latest manifestation of this continuity is the introduction of the European Arrest Warrant (adopted on 13 June 2002) that is aimed at simplifying the extradition procedures for suspected criminals within the territory of the European Union by creating a positive list of criminal areas. The author discusses the innovations introduced by the Framework Decision on the European Arrest Warrant (abolition of the test of dual criminality) and then focuses on two main problem areas based on the reaction of certain Member States: i) the compatibility with constitutional guarantees, where the author focuses on the eagerness of the national courts to contest the constitutionality of the EU Arrest Warrant implementation laws for authorising the extradition of their own nationals; ii) the compatibility with Human Rights, where the author argues that the principle of mutual recognition is not adequate for adjudicating interstate criminal cases when it operates in isolation. The article then focuses upon the balance between procedural efficiency and civil liberties and proposes certain procedural and institutional checks that would assist in moving from the current embryonic stage of EU criminal law to its adolescence.

scholarly journals Interpretation of Art. 54 of the Convention Implementing the Schengen Agreement

2020 ◽  
Vol 9 ◽  
Author(s):  
Oskar Losy
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
Preliminary Ruling ◽  
The European Union ◽  
Judicial Cooperation ◽  
Court Of Justice ◽  
Ne Bis In Idem ◽  
Charter Of Fundamental Rights ◽  
Criminal Matters ◽  
The Eu

The paper discusses the problem of the ne bis in idem principle stipulated in the Convention Implementing the Schengen Agreement (CISA) and the Charter of Fundamental Rights of the European Union. Article 54 of the CISA makes the application of the principle ne bis in idem subject to the condition of execution of the penalty. An analogous condition is not provided for in the Charter. These differences caused doubts regardingthe application of the ne bis in idem principle and were subject of the question for preliminary ruling in the Spasic case (C-129/14 PPU). The paper contains a critical review of the reasoning of the Court of Justice of the European Union in this judgment. In addition, the article also contains an analysis of the CJEU’s decision in Case C-398/12 M. in which the CJEU has analysed the meaning of “final disposal” of the judgment in the context of the ne bis in idem principle. Based on the above judgments, the article presents arguments indicating that the reasoning of the CJEU on the conditions for the application of the ne bis in idem principle in judicial cooperation in criminal matters in the EU is not consistent.

scholarly journals Short Profiles of Different European Investigation Order Domestic Regulations in the European Union

2019 ◽  
Vol 25 (2) ◽  
pp. 169-175
Author(s):  
Georgia Papucharova
Keyword(s):  
European Union ◽  
Legal Assistance ◽  
The European Union ◽  
Judicial Cooperation ◽  
New Instrument ◽  
Evidence Gathering ◽  
The Right ◽  
Criminal Matters ◽  
National Systems ◽  
The Eu

Abstract Тhe regulatory fragmentation and the excessive administrative formalities in the area of international legal assistance in investigation have created the need for a unitary mechanism. This article is focused on the relatively new instrument for international judicial cooperation in criminal matters – The European Investigation Order (EIO). Specifically, it examines the reflection of Directive 2014/41/EU in several Member States of the EU and provides an overview of the separate national systems. The analysis contained in this paper seeks to identify the issuing, the receiving and the executing authorities in each of the considered countries. Main aspects of the EIO’s regulation such as, for an example, its form and content, its transmission, proportionality assessment, deadlines and refusal grounds are seen from the perspective of different national legislations. Although the present study is not intended to be exhaustive, it could clarify to some extent whether an“one-size-fits all” solution in the area of evidence-gathering is an appropriate approach. Special attention is paid to the protection of the right to defence provided by the examined domestic regulations concerning the EIO.

The Request for Mutual Assistance and the European Investigation Order – Is the Modern Legal Assistance Instrument Better than its Predecessor

2020 ◽  
Vol 26 (2) ◽  
pp. 211-216
Author(s):  
Georgia Papucharova
Keyword(s):  
European Convention ◽  
Legal Assistance ◽  
Judicial Cooperation ◽  
Mutual Legal Assistance ◽  
Mutual Assistance ◽  
Goods And Services ◽  
Advantages And Disadvantages ◽  
Cross Border ◽  
International Response ◽  
Criminal Matters

AbstractEuropean evidence law is a quite sensitive topic and has always been the cause of much debate by practitioners and academics. Theoretical and physical borders do not matter for transnational crime. The intensive mobility of people and the evolution of world trade with goods and services create favorable conditions for the cross-border crime to develop. Therefore, it is of a great importance to take far-reaching steps to an upgraded mechanism for obtaining evidence in and from the Member States. This article examines the application of two mutual legal assistance instruments – the request for mutual assistance, which was established by the European Convention on Mutual Assistance in Criminal Matters of 1959, the EU Mutual Legal Assistance Convention of2000 with its 2001 Protocol, and Arts. 48 to 53 of the Schengen Agreement, and the European Investigation Order introduced by the Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters. The main objective of this research is to emphasize the advantages and disadvantages of both judicial cooperation mechanisms. A comparative analysis of both operational tools is an appropriate way to assess which one is related to more procedural savings and how both of them deal with the protection of human rights. Thus, the modern instruments for judicial cooperation in the area of transnational evidence-gathering as an international response to crimes with cross-border dimensions can be adequately valued.

The preliminary ruling procedure at the court of justice of the European Union and transformation of European anti-discrimination law

2020 ◽  
Vol 2020 (3) ◽  
pp. 66-72
Author(s):  
Elena Sorokina
Keyword(s):  
Legal System ◽  
Essential Feature ◽  
Preliminary Ruling ◽  
The European Union ◽  
Judicial Cooperation ◽  
Member States ◽  
National Courts ◽  
Court Of Justice ◽  
Protection Of Human Rights ◽  
The Eu

The preliminary ruling procedure is an essential feature of the EU legal system, which is a unique cooperation tool as part of the dialogue between the Court of Justice of the EU and national courts of the Member States. Its main purpose is to ensure uniform interpretation and application of the provisions of EU law with all Member States and to preserve the uniformity of the European legal system. The continuous use by national courts of the Member States of the mechanism of preliminary ruling and constructive inter-judicial cooperation, the Court of Justice has developed an extremely extensive case law on the prohibition of discrimination and with the result to introduce substantial changes in European anti-discrimination law.The preliminary rulings of the Court of Justice have shown its inclination to expand notions of what constitutes discrimination and in most cases the Court prompt by the desire to interpret the provisions of European law so as to ensure the full effectiveness of the law, as well as a willingness to promote and strengthen protection against discrimination in Europe. While the protection against discrimination on some grounds is stronger than others, however, the preliminary rulings of the Court of Justice are important contribution to the transformation of anti-discrimination law, promote change in the national legislation of the Member States and provide the more effective protection of human rights in general.

EU Health Law & Policy

2019 ◽  
Author(s):  
Anniek de Ruijter
Keyword(s):  
Public Health ◽  
Health Care ◽  
Human Health ◽  
Fundamental Rights ◽  
The European Union ◽  
Health Issues ◽  
Division Of Powers ◽  
Legal Principle ◽  
Legal Competence ◽  
The Eu

This book describes the expansion of EU power in health care and public health and analyses the implications of this expansion on EU health values and rights. The main conclusion of the book is that the EU is de facto balancing fundamental rights and values relating to health, implicitly taking on obligations for safeguarding fundamental rights in the field of health and affecting individuals’ rights sometimes without an explicit legal competence to do so. This brings to light instances where EU health policy has implications for fundamental rights and values without the possibility to challenge the exercise of power of the EU in human health. This begs the question of whether subsidiarity is still the most relevant legal principle for the division of powers and tasks among the Member States, particularly when EU policy and law involves the politically sensitive areas of health care and public health. This question draws out the parameter for continuing the debate on the role of the European Union in promoting its own values and the wellbeing of its peoples, in light of its ever-growing role in human health issues.

Instrument of Mobilization or a Bridge towards Understanding? Religion and Values in the Reform Process of the European Union

2009 ◽  
Vol 2 (3) ◽  
pp. 257-284 ◽  
Author(s):  
Christof Mandry
Keyword(s):  
European Union ◽  
Political Identity ◽  
Fundamental Question ◽  
Fundamental Rights ◽  
The Self ◽  
Reform Process ◽  
The European Union ◽  
Charter Of Fundamental Rights ◽  
The Relationship ◽  
The Eu

AbstractThe self-understanding of the Europeans has been profoundly put into question since 1989, and during the EU reform process, 'Europe' was confronted by the task of describing itself anew. In this context, the debate about the significance of the religious patrimony took on a key position in the discourse. The broad public discussions of the preambles to the European Charter of Fundamental Rights and the Treaty establishing a Constitution for the European Union (ECT) indicate that the relationship between religion and political remains a controversial issue. The article argues that the 'preamble disputes' are part and parcel of the European Union's quest for a political identity and that the outcome of the identity debate—the self-description as a 'community of values'—deals in a specific way with this fundamental question.

scholarly journals Member States’ social security agreements with India

2018 ◽  
Vol 20 (2) ◽  
pp. 173-187
Author(s):  
Pauline Melin
Keyword(s):  
Social Security ◽  
European Commission ◽  
Current Approach ◽  
Legal Analysis ◽  
The European Union ◽  
Member States ◽  
Bilateral Agreements ◽  
Country Case Study ◽  
The Eu

In a 2012 Communication, the European Commission described the current approach to social security coordination with third countries as ‘patchy’. The European Commission proposed to address that patchiness by developing a common EU approach to social security coordination with third countries whereby the Member States would cooperate more with each other when concluding bilateral agreements with third countries. This article aims to explore the policy agenda of the European Commission in that field by conducting a comparative legal analysis of the Member States’ bilateral agreements with India. The idea behind the comparative legal analysis is to determine whether (1) there are common grounds between the Member States’ approaches, and (2) based on these common grounds, it is possible to suggest a common EU approach. India is taken as a third-country case study due to its labour migration and investment potential for the European Union. In addition, there are currently 12 Member State bilateral agreements with India and no instrument at the EU level on social security coordination with India. Therefore, there is a potential need for a common EU approach to social security coordination with India. Based on the comparative legal analysis of the Member States’ bilateral agreements with India, this article ends by outlining the content of a potential future common EU approach.

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