European Union Fundamental Rights and Member States Action in EU Criminal Law
| Published date | 01 June 2013 |
| Date | 01 June 2013 |
| Author | Tony Marguery |
| DOI | 10.1177/1023263X1302000208 |
| Subject Matter | Article |
282 20 MJ 2 (2013)
EUROPEAN UNION FUNDAMENTAL
RIGHTS AND MEMBER STATES
ACTION IN EU CRIMINAL LAW
T M *1
ABSTRACT
is article tries to pin down the conditions under which Member States act within the
scope of application of EU law when the Union has exerci sed its competence in the criminal
‘Area of Freedom, Security and Justice’. With the Treaty of Lisbon, Member States have
transferred important powers to the EU in the eld of judicial cooperation in criminal
matters, which has become more supranational. One witnesses the emergence of a
European criminal justice. In the meantime, EU fundamental rights have developed, in
particular with the Charte r of Fundamental Rights of the EU, which has become a clearer
and b inding source of law. E U fund amenta l righ ts have to be co mbine d with m ultipl e othe r
sources of fundamental rights , both at international and national level. On one hand, the
application of EU fundamental rights may provide a minimum protection of citizens in
criminal justice, but on the other hand, it may also a ect the powers of Member States
to maintain high standards of protection. However, applying EU fundamental rights to
Member States’ actions is subject to the condition that Member States are acting within
the scope of application of EU law. is article shows that there is no clear-cut criterion
to establish when Member States are acting within the eld of EU criminal law for the
purpose of applying EU fundamental rig hts.
Keywords: Akerberg Fransson ca se ; A re a o f Fr ee do m; cit i ze ns ; cr i mi na l l aw ; f un da me nt al
rights; Melloni case; scope of application; Sec urity and Justice
* Assistant Profe ssor of European Law at the Eu ropa Institute of Utrecht . e aut hor is gratefu l to Linda
Senden, Sybe de Vries and to t he peer reviewers of the ar ticle for providing usef ul feedback on former
dra s.
European Union Fund amental Rights a nd Member States Action in EU Cr iminal Law
20 MJ 2 (2013) 283
§1. IN TRODUC TION
e protection of fundamental rights is cr ucial in criminal justice. Cr iminal law aims
at protecting the essential values and rig hts of citizens and, at t he same time, Member
States must respect the fundamental rights, bot h of victims of crime a nd of suspects
facing criminal charges, when they adopt and enforce rules on criminal law. Union
fundamental r ights apply in criminal proceedings when Member States ac t within the
scope of Union law. Especially, the Charter of Fundamental Rights of the European
Union (CFR) and means of remedy particula r to the European Union legal system may
guarantee a hig h level of protection to individuals in cr iminal proceedings. A lthough the
debate concerning the binding force of EU fundamental rights on Member States goes
far beyond the sphere of crimi nal justice,1 this a rticle tries to pin down the conditions
under which Member States act ‘wit hin the scope of application of EU law’,2 in particular
when the Union has exercised its competence in the cr iminal ‘Area of Freedom, Security
and Justice’ (AFSJ). In other words, what should one understand counts as Member
States acting wit hin the scope of EU law for the purpose of applying EU fundamenta l
rights in criminal justice?
e impact of EU law on criminal just ice has been constantly g rowing, particu larly
a er the entry into force of the Lisbon Treaty.3 In the AFSJ, the competence to reg ulate
criminal justice is now shared between the EU a nd its Member States. e scope of
any Member States’ action wil l depend on the extent to which the Union has exercised
its competence within the AFSJ (Article 2(2) TFEU). In particula r, the EU may set
requirements to facilitate judicial cooperation based on the pri nciple of mutual
recognition and engage in har monization, or as the Treaty stipulates, ‘establish m inimum
rules’ in order to approximate procedura l and substantive criminal law.4 In general, the
ordinary legislat ive procedure applies to this subject matter.
It is submitted here that there is no clear-cut deli neating criterion concerning t he
scope of application of EU law for the purpose of applyi ng fundamental rights protect ion
in crimina l proceedings. In order to address the mai n question, one has rst to re call what
1 Editorial com ments, ‘ e scope of application of the genera l principles of Union law: An e ver
expanding Un ion?’, 47 CMLR 6 (2010), p.1589–1596; X. G roussot, L. Pech and G .T. Petu rsson, ‘ e
Scope of Application of Fu ndamental Rig hts on Member States’ Act ion: In Search of Cer tainty in
EU Adjudication’, in U. Neergaard a nd R. Nielsen (eds.), European Legal Method (DJØF Publishing,
Copenhagen 2012), p.135–163.
2 For th e pur pose o f thi s art icle, no dis tinc tion w ill be mad e betw een ‘s cope of applic atio n of EU l aw’ an d
‘ eld of ap plication of the Treaty’.
3 S. Peers, ‘Mission ac complished? EU Justice a nd Home A airs Law a er t he Trea ty of Lis bon’, 4 8 CMLR
3 (2011), p.661.
4 For the purpose of t his contribution, ‘approxi mation’ and ‘harmoni zation’ are synonyms , see however
F.F.M. Tadic, ‘How harmonious ca n harmonisation be? A t heoretical approach t owards harmonisat ion
of (criminal) law’, in A . Klip and H. van der Wi lt (eds.), Harmonisation and Harmoni sing Measures in
Criminal Law (Royal Netherla nds Academy of Arts and S ciences, Amsterda m 2012), p.1–21.
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