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

“they refer directly to the deliberations of the Council and its preparatory instances. If it
did allow access, the Council would fail to protect the confidentiality of the
proceedings… [including] the position taken by Member States of the Council during the
deliberations.” 262
The CJEU annulled this and other Council decisions to refuse to access the documents,
but even then the Council showed some reservations in releasing all the documents that
had been asked for. 263 The logic at play was similar to the pre-Maastricht years when
criminal matters were discussed secretly and were far removed from public debate as
they were thought to be mere cooperation initiatives.
Indeed, the TEU(M) limited remit in this domain was felt further, for example, in the
nature, legal value and scope of the legal instruments specifically created for the new
third pillar - joint positions, joint actions and conventions. 264 Although these were
clearly meant to be weaker than the instruments available in the first pillar – regulations
and directives - the TEU(M) did not offer details regarding their nature, legal value or
scope. Joint positions were seldom used and their legal value seemed to be very weak. 265
This could be derived from the text of the Joint Position on the definition of ‘refugees’,
for example, which clearly stated that it would “not bind the legislative authorities or
affect decisions of the judicial authorities of the Member States”. 266 Conventions were
better known as typical instruments of international law, hence they were legally binding
upon Member States after being duly ratified. 267 Joint actions were the measures more
frequently adopted. Their legal value was nonetheless still relatively weak compared to
first pillar instruments such as directives or regulations, not only because they had to be
adopted by unanimity, but also because they lacked direct or indirect effect 268 and were
262 T. Bunyan, Secrecy & Openness – chapter 2, supra note 255.
263 Ibid..
264 Article K.3 TEU(M).
265 Only two Joint Positions were adopted, namely the Joint Position of 4 March 1996 defined by
the Council on the basis of Article K.3 of the Treaty on European Union on the harmonized
application of the definition of the term 'refugee' in Article 1 of the Geneva Convention of 28
July 1951 relating to the status of refugees, OJ L 63/2 [1996]; and the Joint Position of 25
October 1996 defined by the Council on the basis of Article K.3 (2) (a) of the Treaty on
European Union, on pre-frontier assistance and training assignments, OJ L 281/1 [1996].
266 Preamble of the Joint Position, ibid..
267 Peers however makes a distinction between Conventions as instruments of international law
and Conventions as in the EU context by noting that: “in the absence of any indication that the
EU Treaty aimed to create a supranational legal system like the Community’s, it was presumably
still left up to each Member State to determine the legal effect of a Convention in their national
law.” S. Peers, EU Justice and Home Affairs Law, supra note 250, 16.
268 Direct effect, briefly, is a principle which allows individuals to invoke EU law provisions in a
national court against the State or against an individual (horizontal direct effect); indirect effect is
a principle which requires national courts to interpret national law in the light of EU law. See for
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