Use and Abuse of the Concept of Fundamental Rights

• Date: 07 June 2018
• Year: 2018
• Author: David Vilas Álvarez
• Pages: 66
• DOI: https://doi.org/10.30709/eucrim-2018-005

I. Major Current Challenges in the JHA Field: The Balance Between Cooperation and Fundamental Rights

Based on the privilege of being part of the complex European legislative procedure, it is possible to describe several main challenges regarding the next development in the field of justice in Europe.

The establishment of the European Public Prosecutor’s Office constitutes the first challenge. Perhaps not because of the powers conferred to this new European body, but because of the simple fact of having a European body so inextricably linked to national criminal jurisdiction. Combining this new European body with national criminal systems, could turn out difficult. However, a swift establishment of the EPPO could overtake the current system of cooperation.

The second challenge arises from new technologies. They pose many questions, but, in general, the discussion revolves around what territoriality means when we discuss the borderless internet and which connecting factors should be used to determine jurisdiction. This discussion is global and not only European. The “Microsoft case”, before the U.S. Supreme Court, the approval of the new Cloud Act in the meantime, and the Commission’s new proposal about e-evidence reveal the common problems we have to face in the coming years.¹

Yet another challenge comes from the field of European harmonisation: some Member States, in particular Germany, believe that the last Commission’s proposals in this area may be partly too far-reaching in their criminalisation of conducts.² Therefore, they are calling for a restriction of this harmonisation trend.

The latter challenge turns around to which extent European Union Member States cooperate. Since 2004, the European Union has grown by 13 new Member. They joined when some of the main cooperation instruments had already been established. Furthermore, they introduced a new approach to cooperation in justice matters – as show figures, which indicate a considerable expansion of making requests for judicial cooperation.

The focus of this article will be on the latter challenge. The main question that is addressed in the following is in particular about the reasons for and the consequences of the aim of some Member States to systematically introduce a ground for refusal based on the respect for fundamental rights into all current instruments of judicial cooperation in the European Union. Taking into account available data, I will first describe the current landscape that led to the increasing use of cooperation tools and therefore created imbalances (below II.). From this starting point, the Member States’ reactions are addressed under III, in particular the proposed proportionality check is analysed. Section IV outlines the diverging positions between the Council and the European Parliament regarding a multilateral fundamental rights control. My hypothesis that the current developments rather risks destroying trust as the basis of mutual cooperation than solving the occurred imbalances in cooperation is further underpinned in section V by examining the “fundamental rights clauses” in the different cooperation instruments as well as by analysing the recent CJEU’s judgment in the Aranyosi/Căldăraru case. In the last section (VI.), I will suggest other ways to arrive at a suitable future solution limiting the abusive application of cooperation tools.

II. The New Landscape of Cooperation: Data on the Increasing Use of Cooperation Tools − Imbalances of this Use

In order to analyse any development in European judicial cooperation, it is necessary to look at the timeline, even if I can provide here a short glance only.

The use of cooperation tools has been undoubtedly increased within the EU in recent years. This would probably also have occurred in a EU of 12 or 15 Member States. The fact remains, however, that an exponential growth can be observed since the accessions of the Eastern European states. Everything reveals that the effects on cooperation by these new arrivals are not proportional to the populations of the new partners, but instead exponential because of different factors.

Some figures confirm this assumption. The successive accessions to the EU since 2004 implied more than a hundred million new European Union citizens.³ In absolute terms, this is a lot. In relative terms, the 13 new Member States⁴ represent a bit more than 20% of the total population of the European Union,⁵ at least before Brexit.

Comparing over the respective population to the requests for cooperation is not an easy task. Proper data are hardly available. This is one of the reasons why all Commission proposals insist on the compilation and completeness of statistics. Nevertheless, it is possible to show some evidence confirming this increasing use.

The European Arrest Warrant (EAW), for instance – probably the most used and best known cooperation tool – offers various statistics that clearly confirm the increasing use of this tool and detail the origin and destiny of the requests. According to the latest data provided by the Commission (2015) 6,894 EAWs were issued in 2005 while 16,144 EAWs were issued in 2015 across the EU. During the same period, 836 EAWs were executed in 2005; while 5,304 EAWs were executed in 2015.

A country-by-country analysis for the period 2004-2015 in the mentioned Commission document shows for the Netherlands, for example, that the 13 new Member States (as mentioned above, representing 20% of the total population of the EU) issued 37% of the total EAWs to the Netherlands: 27% of them belong only to Poland.

The United Kingdom’s National Criminal Agency also provided data on the use of the EAW. Although the data differ in terms of the total numbers,⁶ comparable results occur: whereas 4,369 EAWs were issued in 2010, this number increased to 13,797 in 2017. From 2009 to 2017, Poland issued 13,185 EAWs to the United Kingdom (21,07% of the total). The 13 new partners represent almost 50% of the total EAWs addressed to the UK.

In conclusion: after having been put in practice in 2004, there is a considerable increase in using the EAW. This is a success. The same conclusion can be tentatively drawn about other cooperation tools, even when the data about them are not as clear and the tools are less successfully used in practice.⁷Use of the EAW is particularly important among many of the new EU partners, but disproportionate to their population rate in the Union. Therefore, the success of the judicial cooperation policy already depicted naturally creates imbalances among Member States. Awareness of these unequal flows in each Member State consequently determines the negotiation strategies concerning instruments of judicial cooperation.

III. Possible Reactions against Imbalances: Proportionality Checks and Possible Alternative Approaches

The 2007 Commission Report on the implementation of the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States (EAW FD)⁸ confirmed that the tool was a success since 2005.

Notwithstanding, two years later, in 2009, the Council faced problems involving implementation of the EAW. The UK, due to its particular situation, started asking for a proportionality test in the executing Member State as solution to the above outlined problems and imbalances. The final report of the Fourth Round Evaluation about the practical application of the EAW again mentioned the imbalances of this system.⁹ The report suggested some ways to tackle this problem. In particular, it recommended a proportionality test in the issuing, not in the executing Member State: worth citing is the following passage of the Council’s report: ¹⁰

“The application of a proportionality test in issuing an EAW was a recurrent issue during the evaluation exercise. Basically, this proportionality test is understood as a check additional to the verification of whether or not the required threshold is met, based on the appropriateness of issuing an EAW in the light of the circumstances of the case. The idea of appropriateness in this context encompasses different aspects, mainly the seriousness of the offence in connection with the consequences of the execution of the EAW for the individual and dependants, the possibility of achieving the objective sought by other less troublesome means for both the person and the executing authority and a cost/benefit analysis of the execution of the EAW.”

Therefore, recommendation number 9 urged the following:

“The Council instructs its preparatory bodies to continue discussing the issue of the institution of a proportionality requirement for the issuance of any EAW with a view to reaching a coherent solution at European Union level. The issue of proportionality should be addressed as a matter of priority.”

Consequently, in 2009, Member States agreed that it was better to leave the FD EAW untouched, but to improve its application by addressing existing concerns through guidelines compiled in a handbook, the latest one being issued in 2017.¹¹ However, this smart decision, which had the ultimate goal of creating a more balanced landscape, turned out to be insufficient in reducing the abusive use of EAWs by some Member States.

1. First Indicator: Seriousness of Offence

As we have seen, at least the Council arrived at the conclusion that self-control should constitute the first ingredient. The basis of this self-control should be first consideration of the seriousness of the offence or the use of alternative tools. Everything points towards the fact that this aim failed. In fact, the seriousness of the offence as a criterion for self-restraint when issuing requests is not very compatible with the existing thresholds in Art. 2 of the FD EAW, which itself intend to determine the seriousness of the offence. In relation to this indicator, however, we should mention the harmonisation policy as a possible way out. It could strive for a...