The evolution of European Union criminal law (1957-2012)

The author noted how it was adopted swiftly and left national parliaments very little
time to evaluate the draft of the proposal. 393 On the other hand, accountability around
the EU’s actions remained weak, given the limitations on the role of institutions able to
provide checks and balances - such as the CJEU, the EP or national parliaments. Indeed,
regardless of the empowerment of various EU actors, as shown above, their role
remained rather narrow. The Court, for example, was merely given an optional
competence in order to accommodate the interests of some countries less willing to
cooperate in this domain, such as the UK. 394 Hence, Article 35 (1) TEU(A) held that the
Court had jurisdiction to give preliminary rulings on the validity and interpretation of
framework decisions and decisions, on the interpretation of conventions adopted under
Title VI TEU(A) and on the validity and interpretation of the measures implementing
them. However, this jurisdiction was dependent on Member States’ acceptance. Hence,
paragraph 2 and 3 held that Member States could accept the jurisdiction of the Court by
a declaration in which they should specify whether any court or tribunal against whose
decision there would be no judicial remedy under national law could request the CJEU
to give a preliminary ruling; or whether any court or tribunal, even against whose
decision there would be judicial remedy, could do so. Paragraph 5 clarified that the
CJEU had no jurisdiction to review the validity or proportionality of operations carried
by the police or other law enforcement agencies with regard to the maintenance of law
and order and the safeguarding of internal security. These limitations of competence on
the Court were further exacerbated by the slowness of some Member States and the
refusal of others in accepting the former’s jurisdiction. In 2001, only six countries had
made such declarations of acceptance, 395 whilst in total only 19 Member States accepted
the Court’s jurisdiction (all except the UK, Ireland, Denmark, Estonia, Poland, Slovakia,
Bulgaria and Malta). 396 Moreover, regarding the EP, a similarly weak framework
existed. Indeed, although it was to be consulted before the adoption of measures, such a
consultation was merely advice-giving and the Council could act when no opinion was
393 S. Douglas-Scott, “The Rule of Law in the European Union – Putting the Security into the
Area of Freedom, Security and Justice” (2004) 29 European Law Review 219, 221, 228.
394 B. Smith and W. Wallace point out how the UK’s stance during the negotiations of the Treaty
affected this outcome, for example, in “Constitutional Deficits of EU Justice and Home Affairs:
Transparency, Accountability and Judicial Control”, J. Monar and W. Wessels (eds) The
European Union after the Treaty of Amsterdam (London/NY: Continuum, 2001) 125, 141.
395
Austria, Germany, Greece, Luxembourg, Belgium and The Netherlands were the only
countries to have opted in the Court’s jurisdiction at the date of the signing of the Treaty of
Amsterdam. Smith and Wallace, ibid. at 141. See also House of Lords – European Union
Committee, The Treaty of Lisbon: an impact assessment, Volume 1 – Report, HL Paper 62-I, 13
March 2008, 125.
396 For a summary of the status quo in December 2009, before the entry into force of the Treaty
of Lisbon, see information concerning the Declaration by the Republic of Cyprus and Romania
on their acceptance of the Jurisdiction of the Court of Justice of the European Union to give
preliminary rulings on the acts referred to in Article 35 of the Treaty on European Union, OJ L
56/14 [2010].
111