EU Law Blog

Criminal Penalties, Environmental Law and Ship-Source Pollution: Directive 2009/123/EC

The Council and European Parliament have adopted Directive 2009/123/EC on ship-source pollution and on the introduction of penalties for infringements.

After the judgment of the Court of Justice in Case C-176/03 Commission v Council that we wrote about here and the Court's judgment in Case C-440/05 Commission v. Council ECR [2007] I-9097 annulling Council Framework Decision 2005/667/JHA of July 12th 2005 to strengthen the criminal law framework for the enforcement of the law against ship-source pollution, the Council and European Parliament have finally adopted Directive 2009/123/EC to amend Directive 2005/35/EC to include criminal penalties to buttress its substantive provisions.

The adoption of Directive 2009/123/EC brings to a conclusion the dispute between the Commission and the Council on the possibility of including provisions on harmonizing criminal penalties for breaches of EU law and environmental law in particular.

For a previous post on the follow-up to the Court of Justice's judgments, see here.

Criminal Law, Evidence and Cross-Border Investigations: The Green Paper

We've said it before ! EU criminal law is the big growth area.

Now the Commission has launched a green paper (COM (2009) 624 final) asking for comments on obtaining evidence in criminal matters from one member State to another and securing its admissibility.

You can consult it here.

The idea is to canvas opinion on an instrument going beyond the Council Framework Decision 2008/978/JHA of December 18th 2008 on the European Evidence warrant. In particular, the green paper states:

"Compared with the scope of application of the Framework Decision on the European Evidence Warrant, this new instrument would also cover evidence that – although directly available – does not already exist, such as statements from suspects or witnesses or information obtained in real time, such as interception of communications or monitoring of bank accounts. It would also include evidence that – although already existing – is not directly available without further investigation or examination, such as analyses of existing objects documents or data or obtaining bodily material, such as DNA samples or fingerprints. The present consultation is aimed at confirming the validity of this approach."

EU/US Extradition and Mutual Legal Assistance Agreements

The Council has adopted and published its decision to conclude the extradition and mutual legal assistance agreements between the USA and the EU.

That means that both agreements are nearer to entering into force which should be on the first day following the third month after the date on which the Contracting Parties have exchanged instruments indicating that they have completed their internal procedures for this purpose.

Both agreements were signed by the Council in 2003 so it's taken a while.

You can find the text of the agreement on extradition here and that of the mutual legal assistance agreement here.

Number of Prisoners: Statistics for 2005-2007

The EC Commission recently released a fascinating set of statistics on the number of prisoners in the EU between 2005 and 2007. You can find them here.

During that period there were 607 000 adult and juvenile prisoners including pre-trial detainees as at September 1st of each year. That figure does not include those held (often in appalling circumstances and with few rights) pending investigation into their immigration status or awaiting deportation.

The EU wide average is 123 prisoners per 100 000 of population. In comparison, in the USA there are 758 prisoners per 100 000 of population.

The highest prisoner rates are to be found in the Baltic countries, Poland and the Czech Republic with the very highest in Estonia (302 prisoners per 100 000 inhabitants ), Latvia (293), Lithuania (232), Poland (228) and the Czech Republic (185). The lowest rates were registered in Slovenia (60), Finland (68), Denmark (71), Ireland (75 in 2004-2006) and Sweden (77). Interestingly, a high crime rate country such as Belgium has a below average rate for prisoners (91).

More complete statistics on crime (number of recoded offences etc.) in the EU are available in this brochure.

European Criminal Law and Coöperation : Recent Significant Measures

Have we mentioned this before ? The big growth area of EU law is criminal law.

Recently, the Council has adopted a number of significant measures in the field of criminal law. Here's a brief overview of them so that you get a taste of what is happening in that area.

The Council adopted its Framework Decision 2008/841/JHA of October 24th 2008 on the fight against organized crime to set out a common definition of what is organized crime. It also requires that member States punish organized crime.

It also adopted a Framework Decision - Council Framework Decision 2008/913/JHA of November 28th 2008 - on combating certain forms and expressions of racism and xenophobia by means of criminal law. It renders criminal intentional public acts designed to incite violence or hatred, or trivializing genocide and similar atrocities. Such acts will be punishable in all member States by a term of imprisonment of no more than 1 to 3 years.

Framework Decision 2002/475/JHA on combating terrorism has been modified by Council Framework Decision 2008/919/JHA of November 28th 2008. The consequence is the introduction of three new offences in EU legislation:
– public provocation to commit a terrorist offence;
– recruitment for terrorism; and
– training for terrorism.

At long last, Council Framework Decision 2008/977/JHA of November 27th 2008 on the protection of personal data processed in the framework of police and judicial coöperation in criminal matters has been adopted. This framework decision lays down rules on the exchange of personal data to enhance mutual trust between the competent authorities. The information exchanged will be protected to prevent obstruction to Member States' cooperation, while respecting the fundamental rights of individuals, in particular their right to privacy and to the protection of their personal data. The Framework Decision sets common standards on the confidentiality and security of the processing, on liability and on the obligation to lay down penalties for unlawful use. It defines the right of access to data, the right to rectification, erasure or blocking, the right to compensation and the right to seek judicial remedies. It allows member States to provide stricter safeguards for protecting personal data than those established in the framework decision.

Council Framework Decision 2008/978/JHA of December 18th 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters sets up a system by which member States can secure the transmission of existing evidence (objects, documents, data) from another member State within a short time frame.

Two important pieces of legislation have been adopted on mutual recognition.

The first is Council Framework Decision 2008/909/JHA of November 27th 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union. This measure will enable sentenced persons to be transferred to another member State for enforcement of their sentences, partly with a view to their social rehabilitation.

The second is Council Framework Decision 2008/947/JHA of November 27th 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions. The purpose of this measure is to facilitate the social rehabilitation of sentenced persons, and to encourage the application of suitable probation measures and alternative sanctions in the case of offenders who do not live in the State of conviction. The Decision sets rules under which a member State, other than the member State in which the person concerned has been sentenced, recognizes judgments and, where applicable, probation decisions and other alternative sanctions and supervises same, taking any necessary relevant decisions.

That's enough crime for now, folks.

Urgent Preliminary Reference Procedure, Arrest Warrant and Specialty Rule: Case C-388/08 PPU

The Court of Justice has handed down its third judgment using the urgent preliminary reference procedure. This time, the judgment - handed down in Case C-388/08 PPU Leymann and Pustovarov concerns the European arrest warrant and the specialty rule. The Court of Justice stated in its judgment that while a person surrendered under a European arrest warrant for the purpose of prosecution for a criminal offence may be prosecuted for that offence only, it is possible to make certain changes to the description of facts during the procedure and describe the offence more precisely without offending against the specialty rule.

Mr Leymann and Mr Pustovarov were wanted in Finland for illegally importing drugs into Finland. The Finnish authorities sent a European arrest warrant to the Polish authorities for Mr Leymann and the Spanish authorities for Mr Pustovarov. The warrants stated that they were suspected of committing a serious drug trafficking offence, between January 1st 2005 and March 31st 2006 in the case of Mr Leymann and between February 19th and 25th, 2006 in the case of Mr Pustovarov. According to the arrest warrants, the offence related to a large quantity of amphetamines. The arrest warrant for Mr Pustovarov also mentioned two separate offences.

Leymann and Pustovarov were surrendered to the Finnish authorities on the basis of those arrest warrants and were remanded in custody. Some time later, the indictment against Mr Leymann and Mr Pustovarov stated that the serious drug trafficking offence concerned not amphetamines but hashish and had been committed between February 15th and 26th 2006. A new arrest warrant with those changes was sent to the Spanish authorities, but the latter did not consent until much later. Leymann and Pustovarov meanwhile were both convicted at first instance and sentenced to imprisonment for that offence and, in the case of Mr Pustovarov, also for the two separate offences.

Leymann and Pustovarov appealed and argued that they had been convicted for an offence other than that for which they had been surrendered, contrary to the ‘specialty rule’ in Council Framework Decision 2002/584/JHA of June 13th 2002 on the European Arrest Warrant and the surrender procedures between Member States.

The Finnish Supreme Court referred a number of questions on the exact scope of the specialty rule and in particular whether the changes made to description of the facts and the nature of the offences in this case went beyond that which was permitted by it.

The Court of Justice held that it was possible to change the description of the facts in the course of proceedings and to describe more precisely or amend the ingredients of the offence without breaching the specialty rule. While it is always possible to prosecute a person for a different offence from the one specified in the arrest warrant with the consent of the member State executing the warrant, such consent is not required for changes and amendments which do not result in a different characterization of the offence.

Consequently, in the present case, the changes and amendments made were acceptable and consent was not required.

It is a credit to the Court of Justice that it managed to hand down its judgment in less than two months.

For previous cases using this procedure see here and here.

Tillack wins in ECHR

Remember that business we wrote about a while ago concerning the journalist Martin Tillack who was "investigated" by OLAF for having obtained documents alleging corruption by Commission officials ?

At the instigation of OLAF, the Belgian police conducted raids and searched Mr Tillack’s home and office and basically trashed both places.

Mr Tillack then took his case to the European Court of Human Rights. He sued the Belgian state, alleging a breach of Article 10 of the European Convention on Human Rights (freedom of expression) and claimed damages.

He won. And he was awarded €10000 (US$ 14,834) in damages and €30000 (US$ 44,497.51) in costs.

The ECHR held that the right of a journalist to protect his or her sources was protected by Article 10 of the European Convention on Human Rights that protected freedom of expression. According to the Court the right to protect sources was not a mere privilege to be granted or taken away depending on the lawfulness or unlawfulness of their sources, but was part and parcel of the right to information, to be treated with the utmost caution in the case of Tillack where he had been under suspicion because of vague, uncorroborated rumors, as subsequently confirmed by the fact that he had not been charged. The Court also described the lamentable and heavy handed manner in which the raids took place. It noted that almost all of Tillack's working papers and tools were seized and placed under seal (16 crates of papers, two boxes of files, two computers, four mobile phones and a metal cabinet). The Belgian police and OLAF even contrived to lose a chest of papers for seven months.

The ECHR judgment is only available in French here. Or try this link.

European Arrest Warrant Framework Decision Upheld: Case C-303/05

The Court of Justice has upheld the validity of the Council Framework Decision 2002/584/JHA on the European Arrest Warrant.

The idea behind the Framework Decision on the European Arrest Warrant is to simplify the system for the surrender of suspects or convicted persons in one member State when they are sought by the authorities of another. In order to do that, certain offenses are listed in the Framework Decision that give rise to surrender on the basis of a European arrest warrant without verification of the "double criminality" of the act. "Double criminality" means that the act is a criminal offense in both country issuing the warrant and in the country of surrender. According to the Framework decision, there is no need to check that the act is a criminal offense in the state of surrender if it is an offense punishable in the issuing State by a custodial sentence for a maximum period of at least three years.

A Belgian association of lawyers, the "Advocaten voor de Wereld", challenged the Belgian implementing legislation (see generally this questionnaire) before the Belgian Court of Arbitration (which is in fact a court, not an arbitration panel). That Court then referred several questions to the Court of Justice on the validity of the Framework Decision itself.

The Court of Justice held that the Framework Decision was perfectly valid.

The ‘Advocaten voor de Wereld’ contended that the removal of verification of double criminality for certain offences listed in the Framework Decision was contrary to the principle of legality in criminal matters. According to that principle, legislation must define clearly offences and the penalties which they attract. The Court of Justice disagreed that the Framework Decision infringed that principle. It pointed out that the Framework Decision does not harmonize the criminal offences in question in respect of their constituent elements or of the penalties which they attract. Consequently, the exact nature of the offenses and the penalties applicable are still determined by the law of the issuing member State, which must respect fundamental rights and fundamental legal principles, including the principle of the legality of criminal offences and penalties. The fact that the Framework Decision dispenses with verification of double criminality for certain categories of offenses does not change the role or obligations of the issuing member State in that respect.

The ‘Advocaten voor de Wereld’ submitted that the Framework Decision infringed the principle of equality and non-discrimination because certain offenses were listed as not requiring "double verification" whereas other offenses continued to require it. Again the Court disagreed. It held that the offenses on the list of those no longer requiring "double verification" were serious ones, justifying the simpler procedure for extradition.

Rather oddly, the ‘Advocaten voor de Wereld’ submitted also the member States should have concluded a convention on the subject of extradition and not a Framework Decision. The Court conceded that the European arrest warrant could equally have been the subject of a convention, but it held that it is within the Council’s discretion to give preference to the legal instrument of the framework decision in the case where, as in the present, the conditions governing the adoption of such a measure are satisfied.

This judgment of the European Court of Justice is a neat sequel to the previous judgment of the German Constitutional Court of July 18th 2005 we noted a while back.

On the European Arrest Warrant generally, see this interesting House of Lords Report from 2006.

The ECJBlog also has a write up on the judgment of the Court of Justice.

Commission activities in the fight on terrorism

For some reason The Commission has published this weird list of things it has done to help in the war on terror. No explanation is given why such a list has been published. Nor is a reason given why only things done since 2004 are listed.

Still, it is a handy thing to look at.

Some of the items on the list are almost completely unrelated to anti-terror actions, such as the proposal for a new customs code. And many of the items are just reports.

More interesting are the items listed of things that remain to be done.

UPDATE: Of course ! The publication marks the third anniversary of the Madrid bombing. Many thanks for the comment and reminder. How insensitive of us not to have made the link. Apologies to all.

OLAF, the press and corruption: Case T-193/04

The facts which led to the judgment of the Court of First Instance in Case T-193/04 Hans-Martin Tillack v. Commission hardly evoke ee cummings' famous poem:

i sing of Olaf glad and big
whose warmest heart recoiled at war:

What happened was this. In February and March 2002, Mr Tillack, a journalist at the German magazine Stern, published two articles in which he alleged that there were instances of misfeasance by officials within the European institutions to which attention had been drawn by another official of the European Communities, a certain Mr Van Buitenen. The Commission's anti-fraud and corruption office, OLAF, carried out an investigation to identify the bureaucrats who were the source of the leak of the memorandum written by Mr Van Buitenen. OLAF stated in a press release of March 27th, 2002 that

‘it is not excluded that payment may have been made to somebody within OLAF (or possibly another EU institution) for these documents’

. Stern admitted to being in possession of the Van Buitenen memorandum but denied that it paid money to obtain documents. Mr Tillack complained of the OLAF press release of March 27th 2002 to the European Ombudsman, who, in a recommendation to OLAF, stated that making allegations of bribery without a factual basis constituted an instance of maladministration. In February 2004, OLAF sent information concerning suspicions of breach of professional secrecy and bribery to the public prosecutor in Brussels and Hamburg. An investigation into alleged corruption and for breach of professional secrecy was opened in Belgium. The Belgian police conducted raids and searched Mr Tillack’s home and office and basically trashed both places.

Mr Tillack was not thrilled and brought an action before the Court of First Instance to annul the measure by which OLAF sent information to the public prosecutor in Brussels and Hamburg, and for damages to compensate for the harm suffered.

The Court of First Instance dismissed Mr. Tillack's claims.

In the first place, the Court of First Instance held that there was no legally binding measure to annul. The action OLAF took by sending information to the national authorities has no binding legal effect on them because they remain free to decide what action should be taken following an OLAF investigation. Consequently, any investigation and prosecution by the national authorities is a matter within their sole and entire responsibility.

As for the action for damages, the Court held there was no direct causal link between OLAF sending the information to the Belgian judicial authorities and the damage alleged in order for liability to be established on that basis.

The interesting bit is where the Court of First Instance finds that the characterization of behavior as an ‘act of maladministration’ by the Ombudsman in his decision on Mr. Tillack's complaint does not mean, in itself, that OLAF’s conduct constitutes a sufficiently serious breach of a rule of law.

For good measure, Mr. Tillack's claims for injunctive relief were dismissed at first instance and on appeal.

Since then, you'll be relieved to learn, OLAF has turned its attention to the serious problem of garlic smuggling. To the relief of the vampires in the EU.