Standard training programme in judicial
cooperation in criminal matters
within the European Union
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Version: 3.0
Last updated: 20.12. 2012
The European Judicial
Training Network
With the support
of the European
Union
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Logo of the training
organiser
Training organised by
(name of training organiser)
on (date) at (place)
Title (of the training)
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Version: 3.0
Last updated: 31.10. 2012
The European Judicial
Training Network
With the support
of the European
Union
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Module 3
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The Court of Justice of the European Union :
Version: 3.0
Last updated: 20.12.2012
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Contents
1.
2.
3.
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4.
Introduction
Overview of the current competences of the CJEU
Reference for a preliminary ruling
The case-law of the CJEU
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1. Introduction
Evolution of the competences of the CJEU:
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Initially: total absence of the CJEU
Maastricht Treaty: initial lack of competence, with exceptions
Amsterdam/Nice Treaty: limited competence, governed by Article
35 TEU
Lisbon Treaty: full competence (with one exception)
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2. Overview of current competences
Currently, and until 1 December 2014, competences of the
CJEU subject to a mixed system (cf. Article 10 of the protocol
on transitional provisions):
 Article 35 TEU for former acts (concluded before the entry into
force of the Lisbon Treaty, i.e. 1 December 2009)
 Provisions of the TFEU for:
•
•
New acts (adopted since 1 December 2009)
Former acts amended by a new act
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From 1 December 2014, all acts (old and new) are subject to the
provisions of the TFEU.
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2. Overview of current competences
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2.1. Competences as laid down by Article 35 TEU
2.2. Competences as governed by the provisions of the TFEU
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2. Overview of current competences
2.1. Competences as laid down by Article 35 TEU
=> 3 areas of jurisdiction
 jurisdiction to give a preliminary ruling under the 3rd pillar (Article
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35, paragraphs 1-4 TEU)
 jurisdiction to hear action for annulment (Article 35(6) TEU)
 jurisdiction to rule on disputes between Member States or between
a Member State and the Commission (Article 35(7) TEU)
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2. Overview of current competences
There is no action for failure to fulfil an obligation comparable
with that of Community law.
 There is no action for failure to act as in Community law, in
the event of the institutions’ inaction
 There is no action for damages.
+ No jurisdiction to review the validity or proportionality of
operations carried out by the police or other law enforcement
services in a Member State, or to rule on the exercise of the
responsibilities incumbent upon Member States to maintain
law and order and safeguard internal security (Article 35(5)
TEU)
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
2.2. Competences as governed by the provisions of the
TFEU
The Lisbon Treaty abolishes the third pillar and the
‘communitisation’ of criminal matters, or rather their transfer
to Title V of Part 3 of the TFEU concerning the area of
freedom, security and justice.
 Standardisation of the competences of the CJEU
 Abolition of restrictions on the exercise of the
competences of the CJEU, while maintaining one
exception (see below)
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2. Overview of current competences
2. Overview of current competences
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Submission of the reference for preliminary ruling procedure
to common law (Article 267 TFEU) (see below)
Submission of action for annulment to common law:
extension of the acts that may be the subject of an action for
annulment and a broadening of the possible applicants
(Article 263 TFEU).
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2. Overview of current competences
Extension to the criminal sector of three actions ignored in the 3rd pillar
TEU, namely:
 action for failure to act (Article 265 TFEU)
 action for damages (Articles 268 and 340 TFEU)
 action for failure to fulfil an obligation (Articles 258-260 TFEU)
But maintained lack of jurisdiction to review the validity or proportionality of
operations carried out by the police or other law enforcement services
in a Member State, or to rule on the exercise of the responsibilities
incumbent upon Member States to maintain law and order and
safeguard internal security (Article 276 TFEU).
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3. Reference for a preliminary ruling
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3.1. Significance of the reference for a preliminary ruling
3.2. Scope of jurisdiction to give preliminary rulings
3.3. Initiating a reference for a preliminary ruling
3.4. The urgent preliminary ruling procedure or PPU
3.5. The impact of the CJEU’s preliminary rulings on national
case-law
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3.1. Significance of the reference for a preliminary ruling
 Fundamental mechanism of European Union law that aims to
give national courts the means to ensure uniform
interpretation and application of EU law in all the Member
States
 Key mechanism for practitioners: allows them to obtain
clarification on the validity or scope and interpretation of
European law on a particular issue
 Relies on collaboration between national courts and the
CJEU. Primary means for establishing dialogue between
them
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3. Reference for a preliminary ruling
3. Reference for a preliminary ruling
3.2. Scope of jurisdiction to give preliminary rulings in
criminal matters
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3.2.1. Restricted jurisdiction to give preliminary rulings under Article 35
TEU
3.2.2. A (quasi) common law jurisdiction to give preliminary rulings
under the TFEU
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3. Reference for a preliminary ruling
3.2.1. Restricted jurisdiction to give preliminary rulings under
Article 35 TEU
Compared with EC law, the jurisdiction of the CJEU to give a
preliminary ruling in the criminal sector is more limited:
optional jurisdiction, subject to a declaration of acceptance of its
jurisdiction by each Member State (opt-in system)
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3. Reference for a preliminary ruling
Member States making a declaration that they accept this
jurisdiction must specify in their declaration which national courts
are authorised to submit questions for a preliminary ruling:
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•
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this can either be any of their courts (Article 35(3) b) TEU)
or those against whose decisions there is no judicial remedy under national law (Article 35(3)(a)
TEU)
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Second declaration possible to reserve their right to approve
national legislation requiring reference for a preliminary ruling by the
courts of final instance
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3. Reference for a preliminary ruling
The reference for a preliminary ruling concerns the interpretation
and validity of framework decisions and decisions, the
interpretation of conventions, and the interpretation and validity of
their implementing measures. It therefore does not relate to:
•
•
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a reference for preliminary ruling regarding the validity of conventions
a reference for preliminary ruling regarding common positions (but CJEU
Segi and Gestoras Pro Amnistía cases)
Article 35(5): the CJEU has no jurisdiction to review the validity or
proportionality of operations carried out by the police or other law
enforcement services in a Member State, or to rule on the exercise
of the responsibilities incumbent upon Member States to maintain
law and order and safeguard internal security.
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3. Reference for a preliminary ruling
3.2.2. A (quasi) common law jurisdiction to give preliminary
rulings under the TFEU
Consequence of the transfer to Title V on the AFSJ:
 End of variable geometry: jurisdiction to give preliminary rulings
binding on all MS, subject to the same arrangements everywhere
(Article 267 TFEU) =>
• option for national courts to refer a question concerning the validity or
interpretation of acts
• obligation of the courts of final instance to refer to the CJEU
under Title V on the AFSJ, including acts of the institutions, bodies
and agencies of the EU.
But revival of the restriction under Article 35(5) TEU (Article 276 TFEU).
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 The jurisdiction to give preliminary rulings affects all instruments
3. Reference for a preliminary ruling
3.3. Initiating a reference for a preliminary ruling
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3.3.1. Subject-matter of a preliminary ruling
3.3.2. Submitting the request (time and form)
3.3.3. Consequence of initiating a reference and duration of
the proceedings before the Court of Justice
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3. Reference for a preliminary ruling
3.3.1. Subject-matter of a preliminary ruling
The role of the CJEU is to provide an interpretation of EU law or to
decide on its validity. It is not responsible for:
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ruling on questions of fact raised in the main
proceedings or applying EU law to this factual situation
resolving differences of opinion on the interpretation or
application of rules of national law
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It is the referring court’s responsibility to draw conclusions from these,
where necessary declining to apply the national rule in question.
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3. Reference for a preliminary ruling
3.3.2. Submitting the request
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Time: to be determined by the referring court but the Court should be able to
obtain all the necessary information in order to verify, where appropriate, that
European law is indeed applicable to the main proceedings and provide a
pertinent response to the national court
Form: follow the recommendations made by the CJEU itself, including:
• set out the individual question(s) for preliminary ruling clearly and precisely
• include a brief statement of the subject-matter of the proceedings, and the relevant
facts
• reproduce the applicable national provisions and identify case-law
• identify the relevant provisions of European Union law as precisely as possible
• explain the reasons for the questions relating to the provisions of European Union law,
and the link it establishes between those provisions and the national provisions
• include a summary of the primary pertinent arguments of the parties to the main
proceedings.
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3. Reference for a preliminary ruling
• expedited procedure for processing cases as laid down by Article 105 of the
rules of procedure of the Court of Justice
• urgent preliminary ruling procedure or PPU (Article 107 et seq. of the Rules of
Procedure of the Court of Justice)
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3.3.3. Consequence of initiating a reference and duration of the
proceedings before the Court of Justice
 Effect of the reference: suspension of the national proceedings until
the Court of Justice has given its ruling (does not affect the
competence of the national court to take any precautionary
measures)
 Average duration of the reference for a preliminary ruling procedure
before the CJEU = over 20 months. BUT:
3. Reference for a preliminary ruling
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3.4. The urgent preliminary ruling procedure or PPU
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Specific procedure for fields included in the area of freedom, security
and justice
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Applicable since 1 March 2008
 on an exceptional basis, of its own motion
 at the express and reasoned request of the national court
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3. Reference for a preliminary ruling
3.5. The impact of the CJEU’s preliminary rulings on national case-law
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Res judicata force of the preliminary rulings of the Court of Justice.
Binding on the judicial authorities of the Member States that submitted
the questions for a preliminary ruling.
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But must also be taken account of by the other judicial authorities of
the Member States. For former acts of the EU, i.e. adopted before the
entry into force of the Lisbon Treaty, these must be taken account of:
•
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•
by the other judicial authorities of the Member States
that declared acceptance of the jurisdiction of the CJEU
but also by the courts of the Member States that have
not made a declaration accepting the jurisdiction of the
Court (see examples)
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4. Case-law
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4.1. Overview of judgments handed down
4.2. The Pupino judgment of 16 June 2005, Case C-105/03
4.3. The 5 other judgments interpreting FD 2001 on the standing of
victims in criminal proceedings
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4. Case-law
4.1. Overview of judgments handed down
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2 judgments handed down concerning actions for annulment brought
for infringement of the rules on distribution of powers between the 1st
and 3rd pillars:
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Majority of judgments handed down concerning references for a
preliminary ruling => can be classified into 3 main groups:
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Judgments concerning the interpretation of Article 54 CISA on the ne bis in idem
principle: see Module 9.
Judgments concerning the validity or interpretation of the FD of 2002 on the
European Arrest Warrant: see Module 8
Judgments interpreting the FD 2001 on the standing of victims in criminal
proceedings
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13 September 2005, Commission v Council, Case C-176/03
23 October 2007, Commission v Council, Case C-440/05
4.2. The Pupino judgment of 16 June 2005, Case C-105/03
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Legal facts and background: having doubts as to the compatibility of
Italian national law with Framework Decision of 2001 March 2001 on
the standing of victims in criminal proceedings, the judge in charge of
the preliminary investigation at the Tribunale di Firenze asked the
Court of Justice to rule on the scope of the aforesaid Articles of the FD.
The precise question referred to the Court of Justice to answer was
whether, in accordance with the Framework Decision, in criminal
proceedings for offences against children aged less than five years,
the latter could be heard as witnesses outside the public trial as part of
a procedure for gathering evidence early, even though this is not
provided for by Italian criminal procedure for this type of offence
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4. Case-law
4. Case-law
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Judgment of the Court
 As to the admissibility of the application: extension of the scope of
the principle of conforming interpretation to the 3rd pillar on the
basis of 2 main arguments:
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Answer to the question for preliminary ruling referred by the
national court
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Comparable nature of directives and framework decisions
Principle of loyal cooperation laid down by Article 10 of the EC Treaty also
extends to the 3rd pillar.
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Impact of the Pupino Judgment
 Decisions concluding on the constitutionality of national
transposing legislation or the execution of the European Arrest
Warrant
 Decisions concluding on the unconstitutionality of national
transposing legislation or refusal to execute the European Arrest
Warrant
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4.3. The 5 other judgments interpreting FD 2001 on the standing of
victims in criminal proceedings
The contents and opinions expressed herein are solely that of the EJTN, and the European
Commission cannot be held responsible for any use that may be made of these contents and
4. Case-law
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