MODULE 3 – THE COURT OF JUSTICE: JURISDICTION AND CASE-LAW – VERSION 3.0
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Training organised by
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on (date) at (place)
Based on
the standard training programme in judicial cooperation in criminal
matters
within the European Union
Module 3
THE COURT OF JUSTICE OF THE EUROPEAN
UNION:
COMPETENCE AND CASE-LAW IN CRIMINAL
MATTERS
Version: 3.0
Last updated: 20.12.2012
The European Judicial
Training Network
With the support of the European Union
Version: 1.0
Last updated: 28.02.2007
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MODULE 3 – THE COURT OF JUSTICE: JURISDICTION AND CASE-LAW – VERSION 3.0
PROJECT DESCRIPTION
This module is part of a standard training programme in judicial cooperation in criminal matters
within the European Union (EU-Copen Training Programme).
The ‘programme’ as a whole is an educational training tool designed to facilitate the training of
judicial authorities in the field of judicial cooperation in criminal matters within the European
Union. The tool is primarily aimed at any national authority responsible for judicial training, for the
purpose of developing specific training courses on the subject, as well as to any stakeholder
involved in judicial cooperation as part of their day-to-day professional practice. It may also be
used by anyone interested in this field.
The methodological approach of the ‘standard programme’ aims to provide authoritative
information while also focusing on the practical aspects of the mechanisms of judicial
cooperation.
This tool was originally developed based on two projects run in 2005-2006, and subsequently in
2009, by the Institute for European Studies (Free University of Brussels) and ECLAN (European
Criminal Law Academic Network) with funding from the European Commission (under the AGIS
programme and subsequently the 'Criminal Justice' programme) of the Ministry of Justice of the
Grand Duchy of Luxembourg and the International University Institute of Luxembourg.
In 2012, the European Judicial Training Network, which has been involved in the Copen Training
programme since it began, took over the project’s management and coordination. Version 3 (3.0)
of the Copen Training tool is therefore the property of the European Judicial Training Network.
Any comments regarding its content and any requests for information about Copen Training
should be sent to ejtn@ejtn.eu, quoting Copen Training.
The main authors of version 3.0 are: Serge de Biolley, Gisèle Vernimmen and Anne
Weyembergh. Veronica Santamaría and Laura Surano contributed to the previous versions.
How to use this document:
The 'standard training programme in judicial cooperation in criminal matters' training tool and all
parts thereof are the property of the European Judicial Training Network. Its use is subject to the
following conditions:
1. Its content and layout cannot be altered in any way, except:
- where space is explicitly provided for the insertion of data relating to training organised on the
basis of this standard programme (organiser’s logo, date, place etc.)
- where space is explicitly provided for the insertion of data relating to the national situation of
the Member State concerned
MODULE 3 – THE COURT OF JUSTICE: JURISDICTION AND CASE-LAW – VERSION 3.0
2. If the user feels that corrections or additions need to be made to the content of the tool or
parts thereof, provided each of the following criteria is met:
- the additions or amendments must be accompanied by a foreword indicating the origin of these
amendments or additions
- these additions and amendments must be notified to the project’s development team
ejtn@ejtn.eu, quoting Copen Training.
3. No section of the tool or any of its parts may be copied or separated from the tool as a whole
without the express permission of the Institute for European Studies and of its authors.
WHAT’S NEW IN THIS VERSION?
This version is the third version (3.0). It will take into account:
 Changes to the competence of the Court of Justice following the Lisbon Treaty
 Case-law arising since version 2.0.
AIMS OF THIS MODULE
This module focuses on the Court of Justice of the European Union (CJEU).
It aims to examine the competence of the CJEU in the field of cooperation in criminal matters,
particularly its jurisdiction to give preliminary rulings. It is this particular area of competence that
is likely to be of interest to the practitioner. Secondly, it aims to look at the case-law of the
CJEU in criminal matters. Several key judgments for the European criminal law-enforcement
area have been handed down.
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CONTENTS
1.
Introduction .............................................................................................. 5
2.
Overview of the current competences of the CJEU ............................. 7
2.1. The competences of the CJEU as laid down by Article 35 TEU .................................................. 7
2.2. The competences of the CJEU as laid down by the TFEU ......................................................... 8
3.
Reference for a preliminary ruling ....................................................... 11
3.1. Significance of the reference for a preliminary ruling ................................................................ 11
3.2. Scope of the CJEU’s jurisdiction to give preliminary rulings in criminal matters ........................ 11
3.2.1. Restricted jurisdiction to give preliminary rulings under Article 35 TEU ................................. 11
3.2.2. A (quasi) common law jurisdiction to give preliminary rulings under the TFEU ...................... 16
3.3. Initiating a reference for a preliminary ruling ............................................................................. 17
3.3.1. Subject-matter of a preliminary ruling .................................................................................... 17
3.3.2. Submitting the request (time and form) .................................................................................. 18
3.3.3. Consequence of initiating a reference and duration of the proceedings before the Court of
Justice.. .............................................................................................................................................. 19
3.4. The urgent preliminary ruling procedure or PPU ....................................................................... 19
3.5. The impact of the Court of Justice’s preliminary rulings on national case-law .......................... 20
4.
The case-law of the CJEU ..................................................................... 22
4.1. Overview of judgments handed down ....................................................................................... 22
4.2. The Pupino judgment of 16 June 2005, Case C-105/03 ........................................................... 23
4.2.1. Legal facts and background ................................................................................................... 23
4.2.2. Judgment of the Court ........................................................................................................... 25
4.2.2.1 On the admissibility of the application: scope of the principle of conforming interpretation 25
4.2.2.2. Answer to the question for preliminary ruling referred by the national court ....................... 27
4.2.3. Impact of the Pupino Judgment ............................................................................................. 27
4.2.3.1. Examples of decisions concluding on the constitutionality of national transposing legislation
or the execution of the European Arrest Warrant ................................................................................ 29
4.2.3.2. Examples of decisions concluding on the unconstitutionality of national transposing
legislation or refusal to execute the European Arrest Warrant ............................................................ 30
4.2.4. The five other judgments interpreting FD 2001/220/JHA of 2001. ......................................... 31
5.
Further information................................................................................ 34
MODULE 3 – THE COURT OF JUSTICE: JURISDICTION AND CASE-LAW – VERSION 3.0
1. Introduction
The competence of the Court of Justice of the European Union (hereinafter, CJEU) in criminal
matters has undergone significant developments.
Initially, in the 1970s, until the entry into force of the Maastricht Treaty, progress in cooperation
in criminal matters between the Member States of the European Union (hereinafter, EU) was
hampered by a specific jurisdictional deficit owing to the total absence of the CJEU (formerly the
Court of Justice of the European Communities).
The Maastricht Treaty maintained the CJEU’s lack of competence under the 3 rd pillar. This sidelining of the Court and the resulting jurisdictional deficit were repeatedly denounced by the
CJEU itself, by a number of Member States and by academics. There were, however, two
exceptions to this initial marginalisation of the Court: firstly, the Court could be called upon to
ensure compliance with Community competences, where these were infringed by an act
adopted under Title VI (Articles M and L of the EU Treaty combined); secondly, the conventions
adopted under the third pillar could if necessary stipulate that the Court has jurisdiction to
interpret their provisions and rule on any disputes regarding their application, in accordance with
such arrangements as they may lay down (Article K.3, 2c of the EU Treaty). The Court’s
jurisdiction was in fact laid down in several conventions. An example of this is Article 40 of the
Europol Convention and its Protocol of 24 July 1996.
Pursuant to Article 35 EU introduced by the Amsterdam Treaty, the CJEU’s competencies grew
considerably, but they remained subordinate to various conditions and subject to significant
limitations with respect to the Court’s competences in the Community sphere. The Treaty of
Nice did not modify these restrictions. The Lisbon Treaty, however, greatly expanded the
Court’s competences while keeping none of these limitations, with one exception. This is the
consequence of the communitisation of cooperation in criminal matters brought about by the
new treaty.
The following sections will first describe the framework of the CJEU’s current jurisdiction. This
bears the hallmarks of the former Article 35 TEU regarding the old acts, that is, those adopted
before the entry into force of the Lisbon Treaty, as well as the provisions of the Lisbon Treaty, or
more precisely the Treaty on the Functioning of the EU (hereinafter, TFEU), regarding the new
acts, that is, those adopted since the entry into force of this Treaty (1 December 2009) (2).
Given its special importance to the practitioner, specific subsequent sections are dedicated to
the reference for preliminary ruling procedure (3).
We will then look at the case-law of the CJEU: some of its judgments with most significance for
the European criminal law-enforcement area will be examined. Despite the restrictions that have
long affected the competences of the CJEU in criminal matters, and which to some extent still
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affect it today, a number of key judgments have been handed down by the Court since the entry
into force of the Amsterdam Treaty and the insertion of Article 35 TEU (4).
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2. Overview of the current competences of the CJEU
In accordance with Protocol No 36 on transitional provisions, and more specifically its Article 10,
the current competences of the Court are governed by both the former Article 35 TEU (2.1.) and
the provisions of the new TFEU (2.2.). This ‘mixed’ situation will continue until 1 December
2014, 5 years after the entry into force of the Lisbon Treaty. On this date, only the new system
will in theory be applicable.
2.1.
THE COMPETENCES OF THE CJEU AS LAID DOWN BY ARTICLE 35 TEU
Under Article 10 of Protocol No 36 on transitional provisions, the former acts in the field of
cooperation in criminal matters, that is, those adopted before the entry into force of the Lisbon
Treaty (such as the Framework Decision of 13 June 2002 on the European Arrest Warrant and
surrender procedures between Member States of the European Union), will continue to be
subject to the ‘former’ competences of the CJEU, that is, the competences of the CJEU as
provided for by Article 35 TEU, until 1 December 2014.
Pursuant to Article 35 TEU, the CJEU only has three areas of jurisdiction:
-
jurisdiction to give a preliminary ruling under the 3 rd pillar (Article 35, paragraphs 1-4
TEU): this area of jurisdiction, which is particularly interesting to practitioners, will be
examined in detail in the next section. Note that under Article 35 TEU, this is a variable
geometry area of jurisdiction and is much more limited than it is in Community law (see
below)
-
jurisdiction to hear action for annulment (Article 35(6) TEU): the Court has jurisdiction to
review the legality of framework decisions and decisions where an action was brought by
a Member State or by the Commission on grounds of lack of competence, infringement of
an essential procedural requirement, infringement of the Treaty or of any rule relating to
its application, or misuse of powers. Compared with Community law, this jurisdiction is
also much more limited as to the acts that can be appealed against 1 and as regards the
possible applicants
-
and competence to rule on disputes between Member States or between a Member State
and the Commission (Article 35, paragraph 35(7) TEU): this mechanism has not been
used to date
1
Only some acts under the 3rd pillar can therefore be the subject of action for annulment. Common positions, for example, are normally
excluded from such a review of legality. See, however, the Segi case (judgment of 27 February 2007, Case C-355/04, Comp. 2007, p. I1657) and the Gestoras pro Amnistia case (judgment of 27 February 2007, Gestoras Pro Amnistía, Case C-354/04 P, Comp. 2007, p. I1579).
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This jurisdiction is also subject to an important limitation enshrined in Article 35, paragraph 5,
whereby the CJEU does not have 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 responsibilities incumbent on Member States to maintain law and order
and safeguard internal security.
In accordance with Article 35 TEU:
- there is no action for failure to fulfil an obligation comparable with that laid down in
Community law. The Commission is therefore not able to perform its role of ‘guardian of
the Treaties’ in the field of criminal matters as it does in Community law
- there is no action for failure to act as under the first pillar, in the event of the
institutions’ inaction
- there is no action for damages.
2.2.
THE COMPETENCES OF THE CJEU AS LAID DOWN BY THE TFEU
As well as renaming the Court of Justice of the European Communities the ‘Court of Justice of
the European Union’, the Lisbon Treaty greatly augmented its powers of judicial review
regarding acts within the remit of cooperation in criminal matters. This augmentation is mainly a
result of the removal of 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. This transfer entails, in principle, standardising the competences of the CJEU and
removing restrictions on the exercise of its powers, as laid down in the former Article 35 TEU.
Therefore, the three actions omitted from the former 3 rd pillar, namely action for failure to act
(Article 265 TFEU), action for damages (Articles 268 and 340 TFEU) and action for failure to
fulfil an obligation (Article 258-260 TFEU) are now extended to criminal matters. In the event
that acts within the remit of Title V on the area of freedom, security and justice are not
transposed, or are transposed late or incorrectly, the Commission or a Member State will thus
have the power to bring action against the defaulting Member State before the CJEU to obtain a
finding of failure to fulfil an obligation. This is expected to significantly strengthen the
effectiveness of the European criminal law-enforcement area and promote its uniform
application.
The two other actions that were already provided for by Article 35 TEU, but to a much lesser
extent than in Community law, are now applicable under the same conditions as those laid
down by common law:
 it is now the ‘common law’ of the preliminary ruling procedure that applies to cooperation
in criminal matters (Article 267 TFEU), signifying the end of variable geometry (see
below)
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 action for annulment is subject to significant revisions, in particular an extension of the
acts that may be the subject of an action for annulment and a broadening of the possible
applicants.
Under Article 263(1) TFEU, the legality of legislative acts in general, of the acts of the
various EU institutions including the European Council intended to produce legal effects
vis-à-vis third parties can now be subject to the CJEU’s judicial review. The number of
applicants that may institute proceedings has also been expanded to include the
European Parliament and the Council, in addition to the Member States and the
Commission. Natural and legal persons have also been granted the right to institute
proceedings for annulment under the conditions provided for in Article 263(4) TFEU,
which relaxes the admissibility conditions of actions for annulment brought by individuals
against the former Community law system prior to the entry into force of the Lisbon
Treaty. Hence, in the words of the aforesaid provision, ‘[a]ny natural or legal person
may, under the conditions laid down in the first and second paragraphs, institute
proceedings against an act addressed to that person or which is of direct and individual
concern to them, and against a regulatory act which is of direct concern to them and
does not entail implementing measures’.
At present, it is still difficult to pinpoint what impact this expansion of the possibilities for
individuals to request annulment of an EU measure will have on criminal law. This
impact depends, inter alia, on how the concepts of ‘regulatory acts’, ‘direct and individual
concern’ and ‘implementing measures’ of Article 263(4) TFEU are interpreted and
applied. The first two concepts have already been afforded a narrow interpretation by
the Court of First Instance. According to this court, the meaning of ‘regulatory act’ must
be understood ‘as covering all acts of general application apart from legislative acts.
Consequently, a legislative act may form the subject-matter of an action for annulment
brought by a natural or legal person only if it is of direct and individual concern to them’2.
With regards to the concept of an act of direct concern to a natural or legal person, two
conditions must be satisfied: first, that the European Union measure contested must
directly affect the legal situation of those persons and, secondly, that there must be no
discretion left to the addressees of that measure who are responsible for its
implementation, that implementation being purely automatic and resulting from
European Union rules alone, without the application of other intermediate rules 3.
Although it remains to be seen how the concept of ‘implementing measures’ will be
interpreted, it follows from the foregoing narrow interpretation that changes introduced
must only have minimal impact on criminal matters, at least for the habitual instruments,
that is, Directives and Regulations concerning mutual recognition of judgments in
criminal matters, the coordination of investigations and prosecutions, the approximation
of criminal laws and police cooperation. To date, the only sector that has emerged in
which measures of direct concern to individuals must be adopted is that of penalties
against terrorist groups and persons. This was, however, already partly the case in the
2
3
CFI, Order of 6 September 2011, T-18/10, Inuit Tapiriit Kanatami Case, paragraphs 39 et seq.
Ibid. paragraph 71.
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Treaties of Amsterdam and Nice, and individuals already had the right to contest the
instruments concerned, thus giving rise to a major source of dispute that will not be
covered in these modules.
The changes mentioned should of course help to expand dialogue between national courts and
the Court of Justice, and to increase the effectiveness and coherence of the European criminal
law-enforcement area, as well as its uniform application.
But a general exception to the standardisation of the competences of the CJEU is maintained:
the Lisbon Treaty in fact contains the exact wording of the exception as laid down by Article
35(5) TEU (see above), whereby the CJEU does not have 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 responsibilities incumbent on Member States to
maintain law and order and safeguard internal security (Article 276 TFEU).
These new powers of the CJEU are applicable:
- to new measures adopted in criminal matters since the entry into force of the Lisbon
Treaty (including new instruments repealing and replacing former instruments)
- to former instruments amended or updated by a new instrument adopted since the
entry into force of the Lisbon Treaty, for example if the framework decision on the
European Arrest Warrant is maintained but updated by a Directive or Regulation. In
such cases, the amending instrument in some way ‘contaminates’ the old instrument
from the perspective of the judicial review: the new competences of the CJEU apply
to all.
- to the old instruments (not amended or not updated by a new instrument), but only
from 1 December 2014, i.e. 5 years after the entry into force of the new treaty.
Remember that this extension is, however, subject to a specific opt-out afforded to
the United Kingdom (cf. Article 10(4) and (5)) (see Module 1 on this subject).
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3. Reference for a preliminary ruling
3.1.
SIGNIFICANCE OF THE REFERENCE FOR A PRELIMINARY RULING
The reference for a preliminary ruling system is a 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.
The possibility of referring a matter before the CJEU for a preliminary ruling is key for
practitioners: it allows them to obtain clarification on the validity or scope and interpretation of
European law on a particular issue. Decisions handed down by the CJEU on references for a
preliminary ruling in the criminal sector have been shown to be essential to practice in the
European criminal law-enforcement area. Excellent examples are its judgment of 16 June 2005
in the Pupino case, as well as its decisions relating to the ne bis in idem principle or regarding
the European Arrest Warrant (see below for more on this subject).
The reference for preliminary ruling system relies on collaboration between national courts and
the CJEU. It does not establish a hierarchy between them but is the principal means for
establishing dialogue between national and Community courts and for ensuring national courts
are involved in accomplishing this task of common interest, that is, the uniform application and
interpretation of EU law. It is therefore essential that practitioners are informed about how it
functions.
3.2.
DESCRIPTION OF THE CJEU’S JURISDICTION TO GIVE PRELIMINARY RULINGS IN CRIMINAL
MATTERS
3.2.1. Restricted jurisdiction to give preliminary rulings under Article 35 TEU
Compared with its jurisdiction under Community law, the CJEU’s jurisdiction to give preliminary
rulings on acts within the 3rd pillar is subject to several restrictions under Article 35 TEU.
In criminal matters, its jurisdiction is optional. It is subordinate to a general declaration from the
Member States made at the time of signing the Amsterdam Treaty or at any time thereafter (optin system). Not all national courts of the Member States therefore have the automatic right to
refer to the Court for a preliminary ruling. This right is only available to Member States that have
made a declaration accepting the jurisdiction of the Court. On 1 December 2012, 19 Member
States had made such a declaration. The other 8 Member States had not done so: these are the
United Kingdom, Denmark, Ireland, Bulgaria, Estonia, Malta, Poland and Slovakia; none of the
national courts of these countries are consequently able to bring a reference for a preliminary
ruling concerning the former acts adopted by the EU on criminal matters.
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In addition, 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: 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) Unlike in
Community law, these courts therefore generally only have the right, rather than the obligation,
to bring a matter before the Court if they consider that a decision on the question is necessary
to enable it to give judgment. The States may, however, still make a second declaration, in
accordance with Declaration No 10 attached to the Amsterdam Treaty 4, to reserve their right to
approve national legislation requiring reference for a preliminary ruling by the courts of final
instance. Since such a declaration is not self-executing, the Member State must nevertheless
adopt the necessary internal measures to implement it. Jurisdiction to give preliminary rulings is
therefore ‘variable geometry’ jurisdiction. However, of the 19 Member States that have
recognised it, only one (Spain) has limited authorisation to its courts of final instance, whereas
the remaining 18 have extended it to all their courts. Of these 19 States, 11 have made a
declaration in accordance with the aforesaid Declaration 10: these are Germany, Austria,
Belgium, Spain, France, Italy, Luxembourg, Netherlands, Czech Republic, Slovenia and
Romania. Not all of these eleven Member States have, however, passed implementing
legislation. Germany, Austria, Spain, France and the Czech Republic are among those that
have passed such legislation.
In conclusion,
- no national court of the 8 Member States that have not accepted the jurisdiction of
the CJEU to give preliminary rulings is authorised to make a reference for a
preliminary ruling to the CJEU.
- Spanish courts that are not final instance courts are also deprived of this possibility.
- Courts of final instance of the Member States that have made the aforesaid second
declaration and have adopted legislation implementing this declaration must make a
reference for a preliminary ruling where a decision on this point is necessary to give
judgment.
- All other courts and tribunals (whether or not they are final instance courts) of the
Member States that have accepted the jurisdiction of the CJEU but have not made
the second declaration, or have done so but have not adopted implementing
legislation, are not obliged to refer a question to the Court for a preliminary ruling but
are free to do so if a decision on this matter is necessary to give judgment. These
courts and tribunals consequently benefit from a substantial margin of manoeuvre in
this
regard.
4
Declaration No 10 relating to Article K.7 of the Treaty on European Union, annexed to the Amsterdam Treaty, states that: ‘The
Conference notes that Member States may, when making a declaration pursuant to Article K.7, paragraph 2, reserve the right to make
provisions in their national law to the effect that, where a question relating to the validity or interpretation of an act referred to in Article K.7,
paragraph (1) is raised in a case pending before a national court or tribunal against whose decision there is no judicial remedy under
national law, that court or tribunal will be required to refer the matter to the Court of Justice.’ Following the renumbering of the Treaties in
1999, Article K.7 now corresponds to Article 35 TEU (see CJEU Press Release of 30 July 1999, No 57).
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Summary
Member State
Declaration
pursuant to
Article 35(2)
EU
Option
selected
(subparagr
aph a) or
b) of
Article(3)
35
EU)
Information
published in the
OJ
Reservation
pursuant to
Declaration
No 10
annexed to
the final
act of
Amsterdam
Treaty
(Declaration
relating to
Article 35
EU (formerly
Article K.7))
Provisions of national law
adopted following the
reservation made under
Declaration No 10
Germany
yes
2/10/1997
b)
L 114/1999, page
56
C 120/1999, page
24
yes
Austria
yes
2/10/1997
b)
L 114/1999, page
56
C 120/1999, page
24
yes
Belgium
yes
2/10/1997
b)
L 114/1999, page
56
C 120/1999, page
24
yes
Gesetz betreffend die Anrufung
des Gerichtshofs der
Europäischen
Gemeinschaften im Wege des
Vorabentscheidungsverfahrens
auf dem Gebiet
der polizeilichen
Zusammenarbeit und der
justitiellen Zusammenarbeit in
Strafsachen nach Art. 35 des
EU-Vertrages (EuGH-Gesetz)
vom 6. 8. 1998
BGBl. 1998 I, p. 2035
Bundesgesetz über die
Einholung von
Vorabentscheidungen des
Gerichtshofs
der Europäischen
Gemeinschaften auf dem
Gebiet der polizeilichen
Zusammenarbeit und der
justitiellen Zusammenarbeit in
Strafsachen
BGBl. I No 89/1999
*
Bulgaria
Cyprus
*
yes
20/07/2009
No
yes
23/12/1998
b)
L 56/2010, page
24
No
a)
L 114/1999, page
56
C 120/1999, page
24
yes
b)
L 114/1999, page
No
Denmark
Spain
Estonia
Finland
*
yes
Ley Orgánica 9/1998, de 16 de
diciembre
BOE 17 de diciembre 1998,
núm. 301/1998 [pág. 42266]
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10/07/1998
France
yes
14/03/2000
b)
Greece
yes
2/10/1997
b)
Hungary
Ireland
Italy
Latvia
Lithuania
Luxembourg
yes
7/07/2004
No
yes
19/04/1999
yes
28/06/2007
yes
yes
2/10/1997
b)5
b)
b)
b)
b)
56
C 120/1999, page
24
L 327/2005, page
19
C 318/2005, p. 1
L 114/1999,
56
C 120/1999,
24
L 327/2005,
19
C.318/2005,
1
L 70/2008,
23
C 69/2008,
1
L 114/1999,
56
C 120/1999,
24
L 70/2008,
23
C 69/2008,
1
L 70/2008,
23
C 69/2008,
1
L 114/1999,
56
C 120/1999,
24
page
yes
Décret n° 2000-668 du 10 juillet
2000
Journal Officiel de la
République française du
19.07.00, p. 11073
No
page
page
No
page
page
page
page
yes
*
page
page
No
page
page
No
page
page
yes
*
*
page
Malta
Netherlands
No
yes
2/10/1997
b)
L 114/1999, page
56
C 120/1999, page
24
yes
Poland
Portugal
No
yes
19/03/1999
b)
L 114/1999, page
56
C 120/1999, page
24
No
5
According to the information published in OJ No 70, 2008, page 23, and OJ No C 69, 2008, page 1, the Republic of Hungary withdrew
the declaration it had made previously (see OJ No L 327, 2005, page 19 and OJ No C 318, 2005, page 1), in which it accepted the
jurisdiction of the CJEU in accordance with the provisions of Article 35(2) and Article 35(3), subparagraph a) of the Treaty on
European Union, and declared that it accepted the jurisdiction of the CJEU in accordance with the provisions laid down in Article 35(2) and
Article 35(3), subparagraph b), of the Treaty on European Union. The comments appearing in the new information concur with the
decision (Kormányhatározat) 2088/2003 (V.15) of the Hungarian Government under the terms of which the Republic of Hungary accepts
the jurisdiction of the Court of Justice in accordance with the provisions laid down in Article 35(3)(b) TEU.
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Czech Republic
yes
16/04/2003
b)
L 236/2003, page
980
yes
Romania
yes
25/11/2009
No
No
yes
5/12/2005
b)
L 56/2010, page
24
yes
b)
L 70/2008,
23
C 69/2008,
1
L 114/1999,
56
C 120/1999,
24
yes
United Kingdom
Slovakia
Slovenia
Sweden
TOTAL
yes
8/05/1998
yes
19
States
no 8 States
b)
a) 1 State
b)
18
States
page
par. 109 odst. 1 písm. d) OSŘ
ve znění zákona č. 555/2004
Sb. Parlamentu České
republiky, kterým se mění zákon
č. 99/1963 Sb., občanský
soudní řád, ve znění
pozdějších předpisů, zákon č.
150/2002 Sb., soudní řád
správní, ve znění
pozdějších předpisů, zákon č.
549/1991 Sb., o soudních
poplatcích, ve znění
pozdějších předpisů, a zákon č.
85/1996 Sb., o advokacii, ve
znění pozdějších
předpisů
*
page
page
No
page
yes 11
no 8
Not all of the 11 Member States
that have made Declaration 10
have adopted implementing
legislation
* No official information available
The reference for a preliminary ruling procedure relates to:
- the interpretation and validity of framework decisions and decisions
- the interpretation of conventions
- the interpretation and validity of their implementing measures
It therefore does not relate to:
- a reference for preliminary ruling regarding the validity of conventions
- a reference for preliminary ruling regarding common positions, which are the instruments
through which the European Union defines an approach on a given issue with regards to
external matters. However, as the CJEU expressly noted in two cases relating to entries on
anti-terrorism lists, namely the Segi and Gestoras Pro Amnistía cases, a common position
that would produce legal effects in relation to third parties and that would thus exceed the
scope conferred by the EU Treaty to this type of measure, should be able to be reviewed by
the Court through a reference for preliminary ruling6. The significance of this case-law is
6
See paragraphs 54 and 55 of the Segi judgment of 27 February 2007 (Case C-355/04, Comp. 2007, p. I-1657), where the Court of
Justice states: ‘Paragraph 54 (...) Therefore, a national court hearing a dispute which indirectly raises the issue of the validity or
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clear, since it extends the scope of the judicial review of decisions imposing restrictive
measures on a natural person or entity with a view to combating terrorism.
Finally, pursuant to 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. The precise extent to which this
exception is likely to restrict judicial review by the CJEU is not very clear. It could legitimately be
inferred that such a review does not cover the operational means available to the Member
States to implement their criminal justice policy. If the EU does indeed have jurisdiction in the
field of cooperation between law enforcement services, the review may not extend to the means
implemented, the conduct of which falls to the sovereign discretion of the Member States.
Nevertheless, it falls to the CJEU itself to interpret the precise scope of this exception.
3.2.2. A (quasi) common law jurisdiction to give preliminary rulings under the TFEU
By transferring police and judicial cooperation in criminal matters to Title V on the ‘AFSJ’, the
Lisbon Treaty extended the application of Article 267 TFEU, which lays down the ‘common law’
of the reference for preliminary ruling, to this sector. This jurisdiction affects all instruments that
fall under Title V of the AFSJ and is now binding on all Member States, regardless of any
declaration made in this regard. It is in principle subject to the same arrangements everywhere:
all national courts have the right to refer a question for a preliminary ruling concerning the
validity or interpretation of acts relevant to cooperation in criminal matters if they consider that a
decision on the question is necessary to enable it to give judgment, and the courts and tribunals
of final instance are obliged to refer such questions raised in a pending case to the CJEU.
The Lisbon Treaty also expanded the scope of the reference for preliminary ruling procedure:
Article 267(1) of the TFEU extends it to acts of the institutions, bodies, offices and agencies of
the EU. The acts of Europol and Eurojust may now therefore be the subject-matter of a
preliminary ruling as to validity or interpretation. In such cases, the reference must be notified to
the party concerned so that it can submit its written observations or statements of case (Article
23(1) and (2), protocol on the Statute of the CJEU). As regards the acts of the institutions, it
should be noted that, given that the new treaty institutionalised the European Council, 7 if its acts
produce legal effects, they should in principle also be able to be the subject-matter of a
reference for preliminary ruling.
interpretation of a common position adopted on the basis of Article 34 EU, (...) and which has serious doubts whether that common
position is really intended to produce legal effects in relation to third parties, would be able, (...) to ask the Court to give a preliminary ruling.
It would then fall to the Court to find, where appropriate, that the common position is intended to produce legal effects in relation to third
parties, to accord it its true classification and to give a preliminary ruling.
Paragraph 55 The Court would also have jurisdiction to review the lawfulness of such acts when an action has been brought by a Member
State or the Commission under the conditions fixed by Article 35(6) TEU.’ Cf. also CJEU, 27 February 2007 Gestoras Pro Amnistía, Case
C-354/04 P, Comp. 2007, p. I-1579, paragraphs 52-55.
7
See Articles 13 and 15 TEU.
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Through these changes, the Lisbon Treaty helps to expand dialogue between national courts
and the Court of Justice, to increase the effectiveness and coherence of the European criminal
law-enforcement area, as well as its uniform application. Opening up the reference for
preliminary ruling procedure to all national courts and tribunals has boosted equality in European
citizens’ ability to ‘indirectly’ access the CJEU.
3.3.
INITIATING A REFERENCE FOR A PRELIMINARY RULING
Preliminary comment: in general, proceedings before the CJEU are governed by rules of law included in
the Treaties, in the Protocol on the Statute of the Court, or in its Rules of Procedure (Nb. the new Rules
of Procedure of the CJEU were adopted on 25 September 2012, OJ L 265 of 29 September 2012, page
1). In addition to these texts, we also recommend consulting the documents available on the Court’s
website intended to assist practitioners (these documents can be found on the CJEU website:
http://curia.europa.eu/jcms/jcms/Jo2_7031). Two of these documents are particularly useful:
o Recommendations to national courts and tribunals in relation to the initiation of preliminary
ruling proceedings (OJ No C 338, 6 November 2012, page 1)
o and
notes
for
the
guidance
of
counsel
(see
http://curia.europa.eu/jcms/upload/docs/application/pdf/2008-09/txt9.pdf – listed in the Annex).
Some of the information below is quoted directly from these documents.
3.3.1. Subject-matter of a preliminary ruling
Under the preliminary ruling procedure, the role of the CJEU is to provide an interpretation of EU law or
to decide on its validity. It is not responsible for:
- 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
It is the referring court’s responsibility to draw conclusions from these, where necessary declining to
apply the national rule in question.
With regard to a reference as to interpretation, pursuant to Article 35 EU, national courts and
tribunals (those of final instance and others) within a Member State that has recognised the
jurisdiction of the CJEU will most often have the simple option of initiating a reference as to
interpretation where it considers this necessary to resolving a dispute brought before it. The
courts of final instance – that is, those whose decisions are not subject to internal judicial review
– of Members States that have made the declaration will, however, be obliged to do so.
Nevertheless, they will not be obliged to refer the matter to the CJEU if case-law already exists
on the matter (provided any new context does not raise any serious doubt as to whether that
case-law may be applied), or if the correct interpretation of the Community rule of law is
obvious. Where national courts refer a question to the Court, they must explain why the
interpretation sought is necessary to enable them to give judgment.
As regards the reference as to validity, it should be emphasised that the CJEU has sole jurisdiction
for declaring a European act invalid. Although they have the option of rejecting pleas before them
challenging validity, national courts do not have the right to declare an act of the EU invalid. If they have
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doubts as to the validity of such an act, the national courts authorised to do so must therefore refer the
question to the Court of Justice, stating the reasons why they consider the act may be invalid.
3.3.2. Submitting the request (time and form)
National courts are responsible for assessing at what stage of the procedure a question should be
referred to the Court for a preliminary ruling. In this assessment, it is nevertheless necessary to take
account of the fact that 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. It may also be in the interests of justice to refer a question for a
preliminary ruling after both sides have been heard.
As the Court of Justice has itself emphasised on several occasions, the Treaty on European
Union does not specify explicitly or implicitly the form in which the national court must submit its
request for a preliminary ruling. It is the order for reference, that is, the order by which the
national court submits a question to the Court for a preliminary ruling, which serves as the basis
for the proceedings before the Court. This order is therefore essential.
Although the Court of Justice may exhibit a spirit of cooperation and a degree of flexibility, its
recommendations should be followed (cf., in particular, recommendations for national courts on
initiating preliminary ruling proceedings).
The order for reference must be drafted succinctly but be sufficiently precise, clear and
complete to give the Court and the interested parties entitled to submit observations to the Court
a clear understanding of the factual and legislative context of the main proceedings. It is also
advisable to take account of the fact that this request will be translated. In particular, the order
for reference must:
- set out the individual question(s) for preliminary ruling clearly and precisely (usually at the
beginning or end of the order)
- include a brief statement of the subject-matter of the proceedings, and the relevant facts as
they have been established, or at least set out the factual assumptions on which the
question referred is based
- reproduce the content of any applicable national provisions and identify, where appropriate,
the relevant national case-law, giving precise references in each case
- identify the provisions of European Union law relevant to the case as precisely as possible
explain the reasons that led the referring national court to question the interpretation or
validity of the provisions of European Union law, and the link it establishes between those
provisions and the national provisions applicable to the main proceedings
- include, where applicable, a summary of the primary pertinent arguments of the parties to
the main proceedings.
The referring court may, if it considers itself able to do so, briefly state its opinion on the
response to the questions referred for a preliminary ruling.
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The order for reference and relevant documents (including, where applicable, the case file – a
copy if necessary) must be sent directly to the Court of Justice by the national court by
registered post to:
Registry of the Court of Justice of the European Communities, L-2925 Luxembourg
Tel. +352 4303-1
3.3.3. Consequence of initiating a reference and duration of the proceedings before the Court
of Justice
Initiating a reference for a preliminary ruling entails suspension of the national proceedings until
the Court of Justice has given its ruling, but it does not affect the competence of the national
court to take any precautionary measures.
When preparing to submit a reference for a preliminary ruling, national courts must be aware of
how long proceedings before the Court of Justice take. On average, this is over 20 months.
Since such a duration could prove problematic in the criminal sector, particularly for criminal
proceedings relating to a person in custody pending execution of the European Arrest Warrant,
for example, it is important to know that there are two routes allowing for expedited procedures,
namely:
- the expedited procedure for processing cases as laid down by Article 105 of the Rules of
Procedure the Court of Justice. This procedure is not specific to matters relating to the area
of freedom, security and justice and only allows for limited expedition. In the Szymon
Kozlowski case, which was processed under this expedited procedure, the CJEU took five
months to give its ruling (CJEU, 17 July 2008, Szymon Kozlowski, C-66/08).
- the urgent preliminary ruling procedure or PPU, which is specific to the area of freedom,
security and justice, and allows for a greater expedited procedure under Article 105 (see
below).
3.4.
THE URGENT PRELIMINARY RULING PROCEDURE OR PPU
The urgent preliminary ruling procedure, or PPU, is a relatively recent creation: Council Decision
of 20 December 2007 amending the Protocol on the Statute of the Court (cf. Article 23a). The
Rules of Procedure of the Court of Justice have also been revised accordingly (cf. Article 107 et
seq.).
The PPU has been effective since 1 March 2008.
It only covers matters included in the area of freedom, security and justice, that is, matters
covered by Title V of Part 3 of the TFEU.
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The PPU is applicable:
o at the express and reasoned request of the national court
o on an exceptional basis, of its own motion
If the request originates from a national court, the latter must set out ‘the matters of fact and law
which establish the urgency and justify the application of that exceptional procedure’. According
to the recommendations to national courts and tribunals in relation to the initiation of preliminary
ruling proceedings (cf. paragraph 36 et seq), application of the PPU must only be requested in
circumstances where it is absolutely necessary for the Court to give its ruling on the reference
as quickly as possible. The Court does not provide a list of such circumstances but gives a
number of examples in which a national court could consider making such a request. Among
these is that of a person in custody or deprived of his or her liberty, where the answer to the
question raised is decisive as to the assessment of that person’s legal situation. Nevertheless, it
is for the designated Chamber to decide on whether it is necessary to deal with the reference
under that procedure.
The PPU has three main features:
o it ensures the participation of all the traditional players in the preliminary ruling
procedure, albeit differentiated participation, since the written stage is restricted to the
parties to the main proceedings, to the Member State within which the referring court is
located and to the Community institutions, with the oral stage also being open to all
other traditional players.
o it simplifies internal decision-making processes: for example, a specifically designated
Chamber ruling initially on whether deal with the reference under the PPU and
subsequently on the merits of the case, immediate assignation to the Judge-Rapporteur
and Advocate General, and the fact that the Advocate General is merely heard.
o it allows for extensive use of electronic media, both internally and externally (national
court, parties to the main proceedings, Member States, Community institutions).
As can be seen from the first criminal cases processed in this way, this new procedure really
does expedite references for preliminary rulings. Thus, the Ignacio Pedro Santesteban
Goicoechea case (CJEU, 12 August 2008, Case C-296/08 PPU) was decided in the space of
less than six weeks8 and the Leymann and Pustovarov case (CJEU 1 December 2008, C388/08 PPU) within around three months9. The PPU is therefore expected to encourage and
strengthen dialogue between national courts and the Court of Justice.
3.5.
8
9
THE IMPACT OF THE COURT OF JUSTICE’S PRELIMINARY RULINGS ON NATIONAL CASE-LAW
The request from the referring court was made to the CJEU on 3 July 2008 and the ruling was delivered on 12 August 2008.
The request from the referring court was made to the CJEU on 5 September 2008 and the ruling was delivered on 1 December 2008.
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Preliminary rulings of the Court of Justice have res judicata force. They are binding on the
judicial authorities of the Member States that submitted the questions for a preliminary ruling.
They must therefore also be taken account of by the other judicial authorities of the Member
States. For questions relating to the former acts of the EU, that is, those adopted prior to the
entry into force of the Lisbon Treaty, it could be considered that the preliminary rulings must
also be taken account of by the courts of the Member States that have not made a declaration
accepting the jurisdiction of the Court. Any Member State, whether or not it has accepted the
jurisdiction of the Court of Justice to give preliminary rulings within the meaning of Title VI TEU,
may also submit statements of case or written observations in the instances covered by Article
35 TEU.
There are numerous national courts that may not refer questions to the Court for a preliminary
ruling on the former acts of the EU in criminal matters, but which apply the latter’s case-law. We
will refer, for example, to the application of the Pupino case-law by the UK’s House of Lords
(see below).
Judgments handed down by the CJEU are also likely to have an impact on the national courts of
third countries: the domestic courts of the Schengen associate countries must therefore take
judgments of the Court of Justice into consideration when interpreting the Schengen acquis or
the provisions amending or supplementing that acquis. This is as a result of the association
agreements concluded with these countries. Under these agreements, if a substantial difference
is found between the case-law of the Court of Justice and that of the Icelandic or Norwegian
courts, and the Schengen Mixed Committee fails to ensure a uniform application and
interpretation, even in the context of a dispute settlement procedure, the association agreement
ceases to be applicable. These Schengen associate countries are also entitled to submit
statements of case and written observations to the CJEU where a question has been referred to
it by a court or tribunal of a Member State for a preliminary ruling as to the interpretation of any
of these provisions10.
10
See Articles 9-11 of the agreement concluded by the Council of the European Union, the Republic of Iceland and the Kingdom of Norway
concerning the association of both these states with the implementation, application and development of the Schengen acquis.
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4. The case-law of the CJEU
Despite the restrictions on its jurisdiction, which continue to partially affect it today, the CJEU
has handed down a number of key judgments for the European criminal law-enforcement area.
4.1.
OVERVIEW OF JUDGMENTS HANDED DOWN
Two judgments were handed down concerning action for annulment. These were instituted for
infringement of the rules for distribution of powers between the 1st and 3rd pillars. The instrument
at issue in both cases was a Framework Decision (3rd pillar) approximating substantive criminal
law, where the Court considered that at the very least part of its content should have been
covered by a Directive (1st pillar). These decisions are key for the European criminal lawenforcement area but have no direct impact on judicial cooperation. They are therefore briefly
discussed in Module 1 but will not be examined in further detail in this standard programme 11.
However, the majority of the judgments handed down by the CJEU have concerned the
reference for a preliminary ruling. Since the entry into force of the Amsterdam Treaty, some
twenty references for preliminary ruling have been brought before the CJEU. So far, all these
references have concerned former acts of the EU, that is, acts adopted before the entry into
force of the Lisbon Treaty. The judgments handed down can be classified into 3 main groups.
a) The first group includes nine judgments in which the Court interpreted the scope of the ne
bis in idem principle, as set out in Article 54 of the 1990 Convention Implementing the
Schengen Agreement. These were the judgments of:
- 11 February 2003, Joined Cases C-187/01 and C-385/01, Gözütok and Brügge
- 10 March 2005, Case C-469/03, Miraglia
- 9 March 2006, Case C-436/04, Van Esbroeck
- 28 September 2006, Case C-150/05, Van Straaten
- 29 September 2006, Case C-467/04, Gasparini
- July 2007 Case C-288/05, Kretzinger
- July 2007, Case C-367/05, Kraaijenbrink
- December 2008, Case C-297/07, Klaus Bourquain
- 22 December 2008, Case C-491/07, Turansky
In two of these decisions, the Court of Justice placed limitations on the ne bis in idem
principle (Miraglia and Turansky), whereas in the other seven it applied a broad
interpretation of this principle.
11
A judgment of 13 September 2005, Commission v Council, Case C-176/03 concerning Council Framework Decision 2003/80/JHA of 27
January 2003 on the protection of the environment through criminal law, a judgment of 23 October 2007, Commission v Council, Case C440/05, concerning Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the
enforcement of the law against ship-source pollution.
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 These decisions are examined in more detail in Module 9, specifically in the section
dedicated to the ne bis in idem principle.
b) The second group includes a series of decisions relating to the Framework Decision of 13
June 2002 on the European Arrest Warrant and surrender procedures between Member
States, namely the following judgments:
- 3 May 2007, Advocaten voor de wereld, Case C-303/05
- 17 July 2008, Szymon Kozlowski, Case C-66/08
- 12 August 2008, Santesteban Goicoechea, Case C-296/08 PPU
- 1 December 2008, Leymann and Pustovarov, Case C-388/08 PPU.
- 6 October 2009, Wolzenburg, Case C-123/08
- 21 October 2010, I.B.. Case C-306/09
- 16 November 2010, Mantello, Case C-261/09
- 28 June 2012, Melvin West, C-192/12 PPU
- 5 September 2012, João Pedro Lopes Da Silva Jorge, Case C-42/11.
 These are examined in Module 8, in the section specifically dedicated to the European
Arrest Warrant.
c) The third group includes six judgments in which the Court interpreted certain provisions of
Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in
criminal proceedings12. This instrument has been the subject of reams of case-law of the
CJEU It has therefore developed a uniform interpretation of some of its provisions. These
are the following judgments:
- 16 June 2005, Pupino, Case C-105/03,
- 28 June 2007, Giovanni dell’Orto, Case C-467/05
- 9 October 2008, Katz, Case C-404/07
- 15 September 2010, Gueye and Sameron Sanchez, Joined Cases C-483/09 and C-1/10
- 21 December 2011, M.X., Case C-507/10
- 12 July 2012, Giovanardi and others, Case C-79/11.
 These judgments, and the first handed down in the Pupino case in particular, will be
studied here.
4.2.
THE PUPINO JUDGMENT OF 16 JUNE 2005, CASE C-105/03
4.2.1. Legal facts and background
A nursery school teacher – Maria Pupino – was the subject of criminal proceedings before the
Tribunale di Firenze. She was accused of having committed numerous offences, among which
was the ‘misuse of disciplinary measures’ against pupils aged less than five years old at the
time of the events and of serious injuries to one of her pupils.
12
OJ L 82 of 22 March 2001, p.1.
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The proceedings in question were in their initial, preliminary investigation, stage. During this
phase, the public prosecutor’s office makes enquiries and, under the supervision of the judge in
charge of the preliminary investigation, gathers the evidence on the basis of which it assesses
whether the prosecution should be abandoned or the matter should proceed for trial before the
criminal court. If the public prosecutor’s office opts for this second option, and if the judge in
charge of the preliminary investigation agrees to its request, a second phase begins, namely the
‘adversarial stage’, which opens proceedings proper. It is only then that evidence must be taken
at the initiative of the parties and in compliance with the adversarial principle. This requires that,
as a rule, the evidence gathered by the public prosecutor’s office during the initial phase must
be subjected to cross-examination during the trial proper in order to acquire the value of
‘evidence’ in the full sense.
However, the Italian Code of Criminal Procedure (hereinafter, CPP) contains an exception to
this rule: according to Article 392, the judge in charge of the preliminary investigation may, in
compliance with the adversarial principle, decide to bring forward the production of evidence
during the initial phase, by means of a ‘special procedure for taking evidence early’. Evidence
gathered in that way has the same probative value as that gathered during the second stage of
the proceedings. Pursuant to Article 392, paragraph 1a of the CPP, recourse to this exceptional
procedure is possible when taking evidence from victims of certain sexual offences or offences
with a sexual background aged less than sixteen years.
It was precisely the use of this ‘special procedure for taking evidence early’ that was at issue in
the Pupino case: the public prosecutor’s office had asked the judge in charge of the preliminary
investigation to apply it in order to take the testimony of eight children, the witnesses and victims
of the offences in question. The grounds for this application was the fact that such evidence
could not be deferred until the trial on account of the ‘witnesses’ extreme youth, inevitable
alterations in their psychological state, and a possible process of repression’. Maria Pupino
opposed this application, arguing that it did not fall within any of the cases envisaged by Article
392, paragraphs 1 and 1 b) of the CPP.
The judge in charge of the preliminary investigation dismissed the application from the public
prosecutor’s office, on the basis of the national provisions in question. These provisions do not
expressly provide for the use of the special procedure for facts such as those alleged against
Maria Pupino, which are not sexual offences or offences with a sexual background. However,
having doubts as to the compatibility of Italian national law with Articles 213, 314 and 815 of the
13
Article 2 of the Framework Decision states: ‘[e]ach Member State shall ensure that victims have a real and appropriate role in its
criminal legal system. It shall continue to make every effort to ensure that victims are treated with due respect for the dignity of the
individual during proceedings and shall recognise the rights and legitimate interests of victims with particular reference to criminal
proceedings’ (paragraph 1) and ‘[e]ach Member State shall ensure that victims who are particularly vulnerable can benefit from specific
treatment best suited to their circumstances’ (paragraph 2).
14 Article 3 of the Framework Decision, on hearings and provision of evidence, provides that ‘[e]ach Member State shall safeguard the
possibility for victims to be heard during proceedings and to supply evidence’ (paragraph 1) and that ‘[e]ach Member State shall take
appropriate measures to ensure that its authorities question victims only insofar as necessary for the purpose of criminal proceedings’
(paragraph 2).
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Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings, the
judge in charge of the preliminary investigation at the Tribunale di Firenze decided to stay the
proceedings and to ask the Court of Justice to rule on the scope of the aforesaid Articles of the
Framework Decision of 15 March 2001 (hereinafter, 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.
4.2.2. Judgment of the Court
Noting the importance of the question referred, no less than seven governments (Italian, Greek,
French, Dutch, Portuguese, Swedish and British), together with the European Commission,
intervened in the case in various ways. Some of them argued – explicitly or implicitly – that the
application for a preliminary ruling was inadmissible on the basis that, given the limited legal
scope of the 2001 Framework Decision, an answer from the Court could not in any case have
an impact on the Italian proceedings and would therefore not be useful in resolving the dispute
in the main proceedings. Defending the admissibility of the request, the Commission argued to
the contrary that since the Framework Decision requires a conforming interpretation of national
law, the interpretation of the Framework Decision by the Court of Justice would have an impact
on the main proceedings. Initially, the Court of Justice therefore had to resolve the question of
admissibility: it had to examine whether the principle of conforming interpretation applicable to
Community directives applies with the same effects and within the same limits where the act
concerned is a framework decision adopted on the basis of the third pillar (3.1.2.1.). It then had
to answer the question referred for a preliminary ruling itself and interpret Articles 2, 3 and 8 of
the Framework Decision in question (3.1.2.2).
4.2.2.1.
On the admissibility of the application: scope of the principle of conforming
interpretation
The Court clearly concluded that ‘the principle of conforming interpretation is binding in relation
to framework decisions adopted in the context of Title VI of the Treaty on European Union’
(paragraph 43). It therefore extended the scope of this well-known principle in Community law
to the 3rd pillar of the Treaty. The Court based this on two fundamental arguments.
First, it cited the comparable nature of directives and framework decisions. It referred to the
similar wording of the third paragraph of Article 249(3) of the TEC relating to directives and
Article 34(2)(b) on framework decisions: like directives, framework decisions are binding, as to
the result to be achieved, upon Member States, but leave to the national authorities the choice
15
Article 8 of the Framework Decision, introducing a right to protection, provides in its 4 th paragraph that ‘[e]ach Member State shall
ensure that, where there is a need to protect victims – particularly those most vulnerable – from the effects of giving evidence in open
court, victims may, by decision taken by the court, be entitled to testify in a manner which will enable this objective to be achieved, by any
appropriate means compatible with its basic legal principles’.
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of form and methods. It therefore refuted the reasoning of the Italian Government, according to
which Community directives and framework decisions are completely different and separate
sources of law, and that a framework decision cannot therefore place a national court under an
obligation to interpret national law in conformity. It also rejected the arguments put forward by
Sweden and the United Kingdom, which insisted on the intergovernmental nature of cooperation
between Member States in the context of Title VI of the Treaty on European Union. In this
regard, the Court stated that the fact that its jurisdiction is less extensive under that Treaty than
it is under Community law does not invalidate the existence of the obligation to interpret in
conformity (paragraph 35) and that ‘irrespective of the degree of integration envisaged by the
Treaty of Amsterdam in the process of creating an ever closer union among the peoples of
Europe within the meaning of the second paragraph of Article 1(2) TEU, it is perfectly
comprehensible that the authors of the Treaty on European Union should have considered it
useful to make provision, in the context of Title VI of that treaty, for recourse to legal instruments
with effects similar to those provided for by the EC Treaty, in order to contribute effectively to
the pursuit of the Union’s objectives’ (paragraph 36). It continued by highlighting the importance
of the Court’s jurisdiction to give preliminary rulings under Article 35 of the EU Treaty.
According to the Court, this jurisdiction ‘would be deprived of most of its useful effect if
individuals were not entitled to invoke framework decisions in order to obtain a conforming
interpretation of national law before the courts of the Member States’ (paragraph 38).
The Court also concluded that the principle of loyal cooperation laid down by Article 10 of the
EC Treaty also extends to the 3rd pillar. The Court concluded that ‘[i]t would be difficult for the
Union to carry out its task effectively if the principle of loyal cooperation, requiring in particular
that Member States take all appropriate measures, whether general or particular, to ensure
fulfilment of their obligations under European Union law, were not also binding in the area of
police and judicial cooperation in criminal matters, which is moreover entirely based on
cooperation between the Member States and the institutions [...]’ (paragraph 42).
The Court further concluded that ‘[w]hen applying national law, the national court that is called
upon to interpret it must do so as far as possible in the light of the wording and purpose of the
framework decision in order to attain the result which it pursues and thus comply with Article
34(2)(b) EU’ (paragraph 43). The terms ‘as far as possible’ were ‘imported’ from the case-law of
the Court in Community law. As for the obligation to interpret national law in conformity with
Community instruments, when a framework decision was at issue, it stated that there were limits
on this obligation. The Court referred to its earlier case-law concerning Community directives
and applied this to framework decisions. Two limits key to the principle of conforming
interpretation were thereby recorded.
First, the Court made explicit reference to the general principles of law, particularly those of
legal certainty and non-retroactivity (paragraph 44). It declared that these general principles of
law prevent the obligation to interpret in conformity ‘from leading to the criminal liability of
persons who contravene the provisions of a framework decision being determined or
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aggravated on the basis of such a decision alone, independently of an implementing
law’ (paragraph 45).
The Court further noted that the principle of conforming interpretation cannot serve as a basis
for an interpretation of national law contra legem: this obligation ‘ceases when [its national law]
cannot receive an application which would lead to a result compatible with that envisaged by
that framework decision’. But it pointed out that that principle does require that, where
necessary, the whole of national law be taken into account in order to assess how far it can be
applied in such a way as not to produce a result contrary to that envisaged by the framework
decision (paragraph 47). In this case, it is not obvious that an interpretation of national law in
conformity with the framework decision is impossible, but it is for the national court to determine
whether a conforming interpretation of national law is possible (paragraph 48).
Accordingly, since the application was not necessarily without impact on the Italian proceedings
and was consequently likely to be useful in resolving the dispute, the Court of Justice declared
the request admissible and examined the question referred for a preliminary ruling.
4.2.2.2.
Answer to the question for preliminary ruling referred by the national court
The Court of Justice then turned its attention to the interpretation of Articles 2, 3 and 8 of the
2001 Framework Decision.
The Court emphasised that the Framework Decision does not define the concept of the victim’s
vulnerability but indicates that the children concerned in this case are suitable for such
classification (paragraph 53). It continued by stating that none of the three provisions of the
Framework Decision lays down detailed rules for implementing the objectives that they state
(paragraph 54), and declared that achievement of the aims pursued by the abovementioned
provisions of the Framework Decision requires that a national court should be able, in respect of
particularly vulnerable victims, to use a special procedure, such as the special inquiry for early
gathering of evidence provided for in the law of a Member State (paragraph 56). It concluded by
declaring that ‘assuming use of the special inquiry and of the special arrangements for the
hearing of testimony under Italian law is possible in this case, bearing in mind the obligation to
give national law a conforming interpretation’, ‘it is for the national court to ensure that the
application of those measures is not likely to make the criminal proceedings against Mrs Pupino,
considered as a whole, unfair within the meaning of Article 6 of the Convention [European
Convention on Human Rights] as interpreted by the European Court of Human Rights’.
(paragraph 60).
4.2.3. Impact of the Pupino Judgment
In its Pupino judgment, the Court of Justice largely drew on the case-law it has built up in the
context of the 1st pillar: it applied to the 3rd pillar, by analogy, the case-law built up concerning
the obligation to interpret national law in conformity with Community law.
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The impact of applying this Community case-law to the 3rd pillar is huge. According to the Court
of Justice, both the national law to be interpreted in accordance with Community law 16 and the
Community law used as a paradigm for interpreting national law must be considered widely.
However, as the Court itself emphasised in its decision of 16 June 2005, the principle of
conforming interpretation is not absolute and has important limits. The latter are themselves
also applied by the European court by analogy to Community law. Some of these become all
the more important in the criminal sector. One example of such limits is the legal certainty and
non-retroactivity arising from the general principles of law. The Court of Justice also
emphasised that the application of the principle of conforming interpretation could not lead to
the criminal liability of persons who contravene the provisions of a framework decision being
determined or aggravated on the basis of such a decision alone, independently of an
implementing law (see the Pupino judgment, paragraph 45, as well as Berlusconi and Others,
CJEU, 11 June 1987, Pretore di Salo, Case 14/86, Comp. 2545, paragraph 20; CJEU, 26
September 1996, Arcaro, Case C-168/95, Comp. I-4705, paragraphs 37 and 38).
By broadening the scope of the principle of conforming interpretation to the 3 rd pillar of the
Treaty, the decision of the Court of Justice in the Pupino case confers a key role to the national
courts, which are now responsible for interpreting their national law in conformity with the law of
the European Union.
Several national decisions have already relied on this judgment and the principle of conforming
interpretation. Some of these decisions originate from national courts that cannot refer
questions for a preliminary ruling to the CJEU because their government has not made a
declaration recognising the jurisdiction of the CJEU to give preliminary rulings within the
meaning of Article 35(1) EU.
This ‘revival’ of Pupino has allowed some national courts to conclude that their transposing
legislation is constitutional or on the surrender of a person (3.1.3.1.), while other decisions have
concluded that, after all, their transposing legislation was fully or partially unconstitutional or on
a refusal to surrender on the basis of the limits established by the CJEU on the principle of
conforming interpretation (3.1.3.2).
16
In the Rechnungshof judgment in particular, the Court ruled that ‘any provision of national law’ must be interpreted according to
Community law (CJEU, 20 May 2003, Rechnungshof, Joined Cases C-465/00, C-138/01 and C-139/01, Comp., 2003, I, paragraph 93),
including national case-law (CJEU, 13 July 2000, Centrosteel, Case C-456/98, Comp., 2000, I, 6007, paragraph 17). Moreover, since the
Marleasing judgment, it is clear that national law includes all national measures, whether they date from before or after the Community rule
(CJEC, 13 November 1990, Marleasing, Case C-106/89, Comp., 1990, I, 4135, paragraph 8; see also CJEU, 29 April 2004, Björnekulla
Fruktindustrier, Case C-371/02, Comp., 2004, I, paragraph 13 (‘Where a national court is called upon to interpret national law, whether the
provisions in question were adopted before or after the directive concerned, it is required to do so, so far as possible, in the light of the
wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of
Article 249 EC […], notwithstanding any contrary interpretation which may arise from the travaux préparatoires for the national rule’).
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4.2.3.1.
Examples of decisions concluding on the constitutionality of national transposing
legislation or the execution of the European Arrest Warrant
o Decision of the Czech Constitutional Court of 3 May 2006 (Pl. Us 66/04): an appeal had
been brought before the Constitutional Court with the aim of annulling certain national
provisions transposing the Framework Decision on the European Arrest Warrant. The
annulment of the provisions relating to the surrender of Czech nationals was requested. The
legislator had amended national law to conform to the requirements of the Framework
Decision on this point. However, despite the proposed amendments submitted by the
Ministry of Justice, the Constitution had not been revised. The applicants therefore argued
that Section 21(2) of the Penal Code and Sections 403(2), 411(6) and (7) of the Code of
Criminal Procedure were contrary to Article 14(4) of the Czech Charter of Fundamental
Rights, under which Czech citizens cannot be forced to leave their homeland. The
applicants also sought the annulment of the provisions partially removing verification of the
requirement of double criminality, namely Section 412(2) of the Code of Criminal Procedure,
for infringement of Article 39 of the Czech Charter of Fundamental Rights, which establishes
the nullum crimen sine lege principle. Through its decision of 3 May 2006, the Czech
Constitutional Court rejected the action for annulment, referring specifically to the Pupino
case, to the principle of loyal cooperation and the principle of conforming interpretation17.
o Judgment of the Italian Court of Cassation of 30 January 2007 in the Ramoci case (Sezioni
unite, Judgment of 30 January 2007, No 4614): Article 18(e) of the Italian law transposing
the Framework Decision on the European Arrest Warrant establishes the obligation to
refuse execution of a warrant where it originates from a country that has no legal (or
constitutional) limitation on the duration of pre-trial detention. This particular case related to
implementation of Article 13(5) of the Italian Constitution, which provides that the law
establishes maximum limits for pre-trial detention. Initially, the Italian Court of Cassation
applied the law literally, leading it to refuse execution of a European Arrest Warrant issued
against a person named Cusini by a Belgian judicial authority in a judgment of May 2006.
On this occasion, and even though Belgian law has mechanisms for regular monitoring of
the duration of detention in conformity with the requirements of Article 5(4) ECHR, the court
considered that in the absence of a fixed upper limit for the duration of pre-trial detention,
the Belgian system did not comply with the requirements of Italian law or the Italian
Constitution (Sez. 6, No 16542 of 8/5/2006–15/5/2006, Cusini). Under pressure from the
trial judges, the Court of Cassation subsequently adopted an entirely different attitude in its
Ramoci judgment in January 2007 (Sez. un., No 4614 of 30/01/2007–5/02/2007, Ramoci).
This time it was a case concerning execution of a European Arrest Warrant issued by a
German judicial authority. Like Belgian law, German law does not expressly fix a maximum
duration for pre-trial detention but it has also established mechanisms intended to monitor
the need to continue such detention at regular intervals. In its Ramoci judgment, the Court
of Cassation relied on two main arguments, namely the principle of mutual confidence and
the obligation to interpret in conformity with EU law. The judgment therefore made express
reference to the Pupino judgment, stating that the national court must interpret its national
17
Cf. in particular paragraphs 58 et seq., paragraphs 79 et seq. of the decision of the Czech Constitutional Court.
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law in conformity with the aim pursued by the Framework Decision, the only limit being an
interpretation contra legem of national law. In doing so, the Italian Supreme Court
established the ‘non-exportability’ of the constitutional rationale that had led to the
establishment of fixed limits on the duration of pre-trial detention in Italy; it opted for an
interpretation according to the spirit rather than the (seemingly obvious) letter of its national
law, and accepted in substance that legislation that complies with the standards provided for
by the case-law of the European Court of Human Rights regarding the duration of pre-trial
detention and its monitoring is in accordance with the legislator’s objective.
o Decision of the UK’s House of Lords of 28 February 2007 in the Dabas case (Session
2006–07, [2007] UKHL 6. On appeal from: [2006] EWHC 971 (Admin)): in this decision, the
House of Lords also moved away from a literal interpretation of the text of its national law
transposing the Framework Decision on the European Arrest Warrant. This was a case
relating to a European Arrest Warrant issued by a Spanish judicial authority against a
person suspected of being involved in the Madrid terrorist attacks. In this case, the House of
Lords had to interpret, inter alia, Section 64(2)(b) and (c) of the Extradition Act 2003 on
certain formal requirements that must, as a rule, be met by a European Arrest Warrant for it
to be valid and executed by the British authorities. The aforesaid section seems to require
that, in addition to the European Arrest Warrant itself, the issuing authority should transmit a
supplementary document specifically certifying that ‘the conduct falls within the European
framework list’. The transmission of such a certificate is not laid down in the Framework
Decision itself. The Spanish judicial authority met the formal requirements of Article 8 of this
Framework Decision and therefore provided the details it stipulates in the European Arrest
Warrant itself but did not transmit the separate certificate that appears to be required by
Section 64(2)(b) and (c) of the Extradition Act. A majority of the members of the House of
Lords interpreted these sections in the light of Article 8 of the Framework Decision and
concluded that the requirement for the certificate should have been considered as met,
given the information contained in the European Arrest Warrant itself. In order to reach this
conclusion, they expressly relied on the principle of conforming interpretation and referred
expressly to the CJEU’s Pupino judgment18. Such an approach is all the more remarkable
since the United Kingdom, which has not made a declaration accepting the jurisdiction of
the CJEU to give preliminary rulings, intervened in the Pupino case arguing a position that
somewhat differed, to say the least, from that argued by the Court of Justice.
4.2.3.2.
-
Examples of decisions concluding on the unconstitutionality of national transposing
legislation or refusal to execute the European Arrest Warrant
Judgment of 7 November 2005 of the Cypriot Supreme Court (No 294/2005, Attorney
General of the Republic v Costas Konstantinou): The Constitution of Cyprus prohibits the
18
Cf. Lord Bingham of Cornhill, paragraph 5; Lord Hope of Craighead, paragraphs 39-40 (who also makes reference to the conclusions of
the Advocate General in the Advocaten voor de wereld case, cf. paragraph 41); Lord Brown of Eaton-Under-Heywood, paragraphs 75 et
seq.
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extradition of its nationals. In this particular case, which gave rise to the judgment of 7
November 2005, the surrender of a Cypriot national to the British judicial authorities had
been refused on the basis of the unconstitutionality of the national law transposing the
Framework Decision authorising the surrender of nationals. In support of an appeal
against this refusal, the public prosecutor’s office argued, inter alia, that the surrender
procedure was not equivalent to an extradition, and that it could not therefore be
considered to fall under the constitutional prohibition. This argument was not accepted by
the Supreme Court. The latter expressly cited and underlined the importance of the
CJEU’s Pupino judgment but considered that the transposing legislation could not be
interpreted in conformity with the Constitution, given that Article 11 of the latter stipulated
the reasons for which an arrest is authorised. In fact, Article 11 of the Constitution does
not provide for an arrest intended to facilitate execution of a European Arrest Warrant.
The Court consequently concluded that it was impossible to interpret the provisions of the
law such as to make them conform to Article 11. Following this judgment from the Cypriot
Supreme Court, a constitutional amendment took place on 28 July 2006.
-
Decision of 25 February 2008 of the Irish Supreme Court in the Minister for Justice,
Equality & Law Reform v Tobin case: this case related to a European Arrest Warrant
issued by the Hungarian judicial authorities against a person named Tobin sentenced in
absentia on 7 May 2002 for an offence committed in April 2000 and authorised to leave
Hungary. Among the questions raised in this case was that of whether the facts were
covered by Section 10(d) of the 2003 Act authorising surrender, which stipulate that
‘Where a judicial authority in an issuing State duly issues a European Arrest Warrant in
respect of a person … (d) on whom a sentence of imprisonment or detention has been
imposed in respect of an offence to which the European Arrest Warrant relates, and who
fled from the issuing state before he or she — (i) commenced serving that sentence, or (ii)
completed serving that sentence, that person shall, subject to and in accordance with the
provisions of this Act and the Framework Decision, be arrested and surrendered to the
issuing State’. Considering that the individual had not fled within the meaning of Section
10(d) of the 2003 Act, the High Court refused the surrender in its decision of 12 January
2007. The Irish Central Authority then brought an appeal against this decision before the
Supreme Court. According to the latter, the party concerned could not be considered as
having fled in accordance with the usual meaning of this term (paragraph 33).
Nevertheless, it examined the question of whether the principle of conforming
interpretation established by the Court of Justice, first in Community law and then in the
context of the 3rd pillar in the Pupino case, entails a different outcome (paragraph 34 et
seq.). Referring to the case-law of the Court of Justice and emphasising in particular that
the principle of conforming interpretation cannot result in an interpretation contra legem of
national law, the Supreme Court concluded that to consider that the party concerned had
fled would be contrary to Section 10(d) of the 2003 Act and would therefore be contra
legem. It therefore rejected the appeal and upheld the refusal to surrender.
4.2.4. The five other judgments interpreting FD 2001/220/JHA of 2001.
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In the Giovanni dell’Orto case, the reference for a preliminary ruling was made as part of
criminal enforcement proceedings following a judgment resulting in final criminal conviction,
brought before the judge in charge of preliminary investigations at the Tribunale di Milano,
acting as the judge responsible for enforcement, and concerning the return of assets placed
under sequestration. The referring court was unsure as to the applicability of the principles laid
down in Articles 2 and 9 of the Framework Decision. In essence, it asked the Court whether the
Framework Decision must be interpreted in the sense that, in criminal proceedings and more
specifically enforcement proceedings following a judgment resulting in final conviction, such as
that in question in the main proceedings, the concept of ‘victim’ within the meaning of the
Framework Decision includes legal persons who have suffered harm directly caused by acts or
omissions that are in violation of the criminal law of a Member State. The Court of Justice
answered in the negative.
In the Katz case, the reference for a preliminary ruling was made by the Fővárosi Bíróság in
criminal proceedings brought against Mr Sós, who had been prosecuted for fraud by Mr Katz,
acting as substitute private prosecution. The ‘substitute private prosecution’ at issue in the main
proceedings is one of three means of instituting a public prosecution in Hungary allowing the
victim of an offence to take action, particularly where the public prosecutor’s office terminates
the proceedings that it has instituted. The question concerned the interpretation of Articles 2 and
3 of Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in
criminal proceedings. Unsure as to what is meant by the concepts of a ‘real and appropriate’
role for victims and the ‘possibility’ they have ‘to be heard during proceedings and to supply
evidence’, as provided for in these articles, and as to whether they should include the possibility
for a national court to hear the victim of an offence as a witness in the course of a substitute
private prosecution, the Fővárosi Bíróság, acting as a court of first instance, decided to stay
proceedings and to refer the following question to the Court for a preliminary ruling: ‘Must
Articles 2 and 3 of … Framework Decision 2001/220 … be interpreted as meaning that the
national court must be guaranteed the possibility of hearing the victim as a witness also in
criminal proceedings which have been instituted by him as a substitute private prosecution?’
The Court of Justice answered that Articles 2 and 3 of that Framework Decision are to be
interpreted as not obliging a national court to permit the victim to be heard as a witness in
criminal proceedings instituted by a substitute private prosecution such as that in the main
proceedings. However, in the absence of such a possibility, it must be possible for the victim to
be permitted to give testimony that can be taken into account as evidence.
In the Gueye and Salmeron Sanchez case, the questions for preliminary ruling were referred by
the Audiencia Provincial de Tarragona (Spain), in the context of criminal proceedings against Mr
Gueye and Mr Salmerón Sánchez respectively for violating the injunction imposed as an
accessory penalty prohibiting them from approaching their female victim having suffered
domestic abuse, for which major penalties were also imposed on them. The questions at issue
concerned the interpretation of Articles 2, 8 and 10 of the FD of 2001. The CJEU answered that
these Articles must be interpreted as not precluding the mandatory imposition of an injunction to
stay away for a minimum period, provided for as an ancillary penalty by the criminal law of a
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Member State, on persons who commit crimes of violence within the family, even when the
victims of those crimes oppose the application of such a penalty. It also answered that Article
10(1) of the FD must be interpreted as permitting Member States, having regard to the particular
category of offences committed within the family, to exclude recourse to mediation in all criminal
proceedings relating to such offences.
In the Mr X case, the reference for preliminary ruling originated from the Tribunale di Firenze
and concerned the interpretation of Articles 2, 3 and 8 of the FD of 15 March 2001. This
reference was made as part of criminal proceedings brought against Mr X, who was suspected
of having committed acts of a sexual nature against his daughter, Miss Y, a minor. The Court of
Justice answered that Articles 2, 3, and 8(4) of FD 2001/220/JHA must be interpreted as not
precluding provisions of national law, such as Articles 392(1b), and 398(5b) and 394 of the code
of criminal procedure, which, first, do not impose on the public prosecutor any obligation to
apply to the competent court so that a victim who is particularly vulnerable may be heard and
give evidence under the arrangements of the incidente probatorio during the investigation phase
of criminal proceedings and, second, do not give to that victim the right to bring an appeal
before a court against that decision of the Public Prosecutor rejecting his or her request to be
heard and to give evidence under those arrangements.
Finally, in the Giovanardi and Others Case, the question was referred by the judge in charge of
preliminary investigations at the Tribunale di Firenze as part of criminal proceedings brought
against Mr Giovanardi and several others following an accident in the workplace. The CJEU
answered that Article 9(1) of FD 2001/220/JHA must be interpreted as meaning that, under a
system governing the liability of legal persons such as that at issue in the main proceedings,
that provision does not preclude a situation in which the victim of a criminal act is not entitled to
seek compensation for the harm directly caused by that act in the course of criminal
proceedings from the legal person who committed an administrative offence.
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5. Further information
Visit the website of the CJEU: http://curia.europa.eu
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 opinions.
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