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

– albeit functional – legal basis enabling the adoption of EU measures on the rights of
the defendant (…) ); and by creating a momentum for revisiting the existent third pillar
enforcement measures.” 1015
5. The CJEU post Lisbon: an exercise of balance between punitiveness and the
protection of the individual
In defining the future of ECL and in constructing a balance between punitiveness and
individual rights, the CJEU will be of central importance. As seen in Chapter 3, the
Lisbon Treaty brought ECL under the full jurisdiction of the Court. The Commission is
now able to bring infringement proceedings for Member States’ failure to fulfil their
obligations under Title IV TFEU. 1016 Furthermore, the Court now has full jurisdiction to
hear preliminary rulings which should be given with minimum delay in cases involving
individuals in custody; 1017 to hear actions regarding compensation for damages; 1018
review the legality of legislative acts; 1019 review the compliance of legislative acts with
the principle of subsidiarity; 1020 and review the legality of acts of the European Council
and bodies, offices and agencies of the Union intended to produce legal effects in
relation to third parties. 1021
This is not say that the CJEU’s jurisdiction has no limitations. First, regardless of the
significant increase in the Court’s jurisdiction post-Lisbon, the CJEU still cannot review
the validity or proportionality of operations carried out by the police and other law
enforcement agencies of a Member State or the exercise of responsibilities incumbent
upon Member States with regard to the maintenance of law and order and the
safeguarding of internal security. 1022 Second, Article 10 of Protocol 36 to the Treaty of
Lisbon holds that the CJEU’s powers remain the same—including preliminary rulings—
with regard to acts adopted in the field of police and judicial cooperation for a
transitional period of five years (the transition period ends on 30 November 2014).
Although the transitional period in still on-going, the Court has already delivered a
number of decisions on ECL related matters or on topics of direct interest to ECL that
provide some guidance on how the Court will adjudicate on the balancing of different
1015 V. Mitsilegas, “FIDE General Report The Area of Freedom, Security and Justice from
Amsterdam to Lisbon. Challenges of Implementation, Constitutionality and Fundamental Rights”
XXV Congress Tallinn 2012, available at http://www.fide2012.eu/index.phpdoc_id=90.
1016 Articles 258 – 260 TFEU.
1017 Articles 267 TFEU.
1018 Article 268 TFEU.
1019 Article 263 TFEU.
1020 Article 8 of Protocol Nº2 on the Application of the Principles of Subsidiarity and
Proportionality.
1021 Article 263(1) TFEU.
1022 Article 276 TFEU.
262