Week 1

European Parliament

-represents the interests of citizens

-co-legislative power

The Council of the European Union (The Council)

-represents interests of MS

-co-legislative power

-Art 16(2)

The Commission

-guardian of interests of EU as a whole (also “European Commission”)

-sole legislative initiative (main power)

- Art 294 TFEU

-under Art 258 TFEU institutes infringement proceedings against MS in CJEU

CJEU

-Court of Justice (top court) + the (general) court + specialised court = the judiciary

-Mandate: Art 19 TFEU

European Council

-heads of state and governments of MS

-Art 86(4) TFEU

Aspects of ECL

1. constitutional: competences, sources, MS obligations

2. substantive: eurocrimes and other crimes subject to harmonization

3. procedural: fund rights, instruments, and cooperation

4. institutional: EU bodies facilitating cooperation of enforcing ECL

1992 Maastricht Treaty

-consolidated pre-existing treaties, established the EU as kind of an intl organization

-3 pillar structure

-P3 powers limited

3 pillar structure

P1: Euro communities

P2: Common foreign & security policy

P3: Justice & home affairs

1997 Treaty of Amsterdam

-change from JHA under P3 to AFSJ spread over P1 and P3

-CL cooperation still under P3 because states did not want to delegate that to supranational P1 pillar

-FD replaced Joint Actions → approximation AFSJ (FD to establish common basis)

2001 Treaty of Nice

-adopted EU Charter on Fundamental Rights (still not binding)

2004 Constitution for Europe

-failed referenda

2009 Lisbon Treaty

• constitutional shift → EU succeeds EC

• established TEU and TFEU

• pillars merged; CL cooperation now part of regular EU constitutional structure

• CJEU: full jurisdiction

• Directives: main form of cooperation

• EU CFR: primary law, now binding all MS

• EU Broad supranational CL competence (CJEU case law on ex-P3 codified)

  • Art 82 TFEU

  • Art 83 TFEU

Art 82 TFEU

• criminal justice and procedure (mutual recognition + approximation)

Art 83 TFEU

• substantive CL (min. rules: definitions of serious cross-border crimes, further crimes in areas already harmonized)

Art 294 (and 289) TFEU

Ordinary Legislative Procedure

Ordinary Legislative Procedure

• Parliament + Council jointly adopt reg, dir, decisions that are proposed by Commission

• majority vote (376votes)

Special Legislative procedure

• 89 TFEU (association)

• 86 TFEU (consent)

Harmonization

-creating uniform regulation; convergence of legal practice of various legal systems should be based on common legal standards

-essentially creating a minimum standard → making sure there is a level of assimilation between MS

-similar to approximation, but appx could mean MS retain a certain degree to choose (debate on this definition, essentially similar, but different degree of interpretation)

Mutual Recognition

-in a system like the EU where there are differences but you want to harmonize, operate on a system of mutual recognition

-respecting diversity and legal pluralism

-MR kind of required for harmonization, and harmonization required for MR

Greek Maize 1989

Principles in terms of Obligations EU MS

• created enforcement criteria when founding treaties lacked specific provisions

• Facts: Greece imported maize from Yugoslavia, presented as Greek maize so no levies, when found that Greece did not fulfil its obligations to the Union asked it starts proceedings against actors involved, Greece did not do this so case went to CJEU

• Art 4(3) TEU = principle of sincere cooperation

  • MS should impose penalties on individuals who failed to fulfil community obligations

  • MS have discretion in determining appropriate measures to be taken, but should be based on 1) princ of effectiveness and 2) princ of assimilation (Art 325(2) TFEU)

• Criteria for penalties

  • 1. effective 2) proportionate 3) dissuasive

  • essentially, analogous to those if similar to a national infringement

Principle of effectiveness

Greek Maize principle

penalties capable of ensuring the compliance with the European union law and of achieving the desired objective.

Principle of proportionality

Greek Maize principle

penalties adequately reflect the gravity of the violation, suitable to achieve goal and do not go beyond.

Principle of dissuasiveness

Greek maize principle

penalties have deterrent effect on the offender and on potential offenders.

Principle of assimilation

penalties for European union law violation are analogous [substantially and procedurally] to those applicable to infringements of national law of similar nature and importance.

Principle of sincere cooperation

defined by article 4.3 TEU, Member States and the Union are required to assist each other in fulfilling the tasks flowing from the Union Treaties.

principle of subsidiarity

based on the idea that the EU should only take action in areas that cannot be sufficiently addressed by member states at the national, regional, or local level. This means that decisions should be taken as close to the citizens as possible, and the EU should only intervene when it can bring added value to the action taken at the national level.

• Article 5 TEU

principle of proportionality (Art 5)

requires that any EU action taken must be proportionate to the objective it seeks to achieve. This means that the EU must ensure that the measures it takes are not excessive or go beyond what is necessary to achieve the objective.

• Art 5 TEU