Ghent University
PhD candidate Kotomi Moriguchi
30 July 2016
Keio Jean Monnet Center of Excellence

EU Criminal
law
Issues ofharmonisation ofsubstantive andproceduralcriminal law

EUEnlargement
Issues ofinternalmarket,
economic
integration

Issues of rule of law, judicial
Independence, the fightagainst corruptionPart IEU Criminal Law in relation toEU enlargement

Part II

EU Enlargement & Accession
Criteria in JHA (Justice & Home Affairs)

Part III

Case Studies in Selected
ex-Yugoslavian Countries

EU Criminal Law (ECL)In Relation to EU Enlargement

1993

Maastricht Treaty

1998

Amsterdam Treaty
Principal of 'Mutual Recognition' incriminal matters

2009

Lisbon Treaty
Merging into 'Internal Market' first pillar

However, ECL maintains the borders in criminal
settings

Five main areas of ECL (Mitsilegas, 2009)
1. Harmonisation of national criminal law
2. Mutual recognition (Judicial cooperation)
3. Bodies, offices and agencies (Policecooperation)
4. Databases
5. External dimensions of EU criminal law-> In terms of EU Enlargement, 1,2 &5 are highly
relatedEuropean crimes (Article 83 TFEU)- Minimum rules concerning criminal offences
1. Cross-border crimes
e.g., Organised crime, terrorism, etc.
2. Financial interests of the EUe.g., Fraud, money laundering etc.
3. Prorection of fundamental rights=> The concept of 'approximation of substantive
law & procedural rights' is key re the EU acquis
communitaire role in the enlargement process

- Restricts the capacitiy of executing states torefuse or add conditions for cooperation- Punitive impetus- Removes the principle of dual criminality
e.g. European Arrest Warrant (EAW)
European Evidence Warrant (EEW)
Non Conviction-Based Confiscation (NCBC) etc.
-> Deep & controversial changes in criminal justice-> Punitive agenda v. individual rights =fragmentation of ECL, e.g., issue of Ne bis in idem

e.g., Ne bis in Idem principle- Schengen Information System (SIS) related C781/01, C385/01 (2003) Gozotuk & Brugge- Interpreration of Ne bis in idem

C-150/05 (2006) Van Straaten
C-467/04 (2006) Germany v.Gasparini
C-261/09 (2010) Italy v. MantelloEU Enlargement and Accession

I.
II.
III.
IV.

1st to 4th Enlargements-1952-19955th Enlargement
II-i. Major Enlargement in 2004
II-ii. Accession of Bulgaria & Romania in 2007
6th Enlargement
Accession of Croatia in 2013
Current On-Going Accession Processes Origin: 1993 - Maastricht Treaty

Prior to this, separate accession vehicles
such as EEC, Euratom, ECSC

 1993 Copenhagen Criteria

Political, Economic & Administrative
capacities for EUP absorption
 Acquis Communitaire (conditio sine qua non)Some exceptions to JHA: UK, IR, DE
Embodying & enacting values of the EU 1st, 2nd, 3rd enlargements took place before

the 1993 Maastricht Treaty

 In the 4th enlargement, GR, SP & PR joined,but they are far from being the focus of JHA 10 Eastern European states joined the EUincluding 8 post-Communist states plus
island nations Cyprus & Malta
 Method - Association agreements with the EU
 JHA issues - EU Acquis (old) chapter 24- Political importance of JHA is not wellreflected in legal framework- Territorial & minority issues – NorthernCyprus; Russian-speakers in Baltic states Lagging negotiations compared to previous 10states' accession
 EU imposed enhanced conditionality withadditional assistance & guidance via Accession
Treaties - Safeguard clause
Proposed Solution -> Cooperation & Verification Mechanism (CVM)
set up - Originally for 3 years, but has lastedto date
 Continuing high perceived rate of corruption &organised crime CVM - Safeguard measure invoked by

the EC when acceding states have failed to
implement issues of Internal Market or JHA
 Temporary or Permanent Applied to Bulgaria & Romania from 2005 todate- Reform of Judiciary (both)- Corruption (both)- Organised Crime (Bulgaria)

CVM on-going nearly a decade after accession- Judicial reform seems possible, butcorruption and organised crime seem partly
rooted in cultural & historical factors- Takes time to tackle such problems=> Need to provide Member States withmotivation to modify institutions in accord
with additional criteria per the EU acquis

Stabilisation and Association Agreement (SAA)- Modified pre-accession policy re EU aquis (35Chapters)- Chapter 24 Cooperation in Field with JHA, split into
two: Chapter 23, Chapter 24
Far more emphasis put on JHA and its evaluation!
- Suspension of negotiation in case of serious
breaches of key principles derived from Article 2TEU
- More reliance upon conditionality and benchmarks- In practice, EC developed numerous subbenchmarks

EU changed pre- accession policy from the 2004 &2007 accessions, for Croatia in 2013
Advantages
 Imposing more conditionality and robust
benchmarks upon a candidate state Increase in EC capacity to screen the progress ofa candidate during its rapprochement
 Unlike Bulgaria & Romania, no post-accession
monitoring
Drawbacks
 Timeframe - Limited time to adopt reforms, andto implement and evaluate themCountry

StatusYear of Application

SerbiaCandidate since 20122009

Montenegro

Candidate since 20102008

Macedonia

Quasi-candidate since 2005*

2004

Albania

Candidate since 20142009

TurkeyCandidate since 2005

1987

Bosnia andPotential candidate
Herzegovina-Kosovo*-Potential candidate*Complex issues re Macedonia &KosovoCase Studies
in Selected Ex-Yugoslavian Countries

20/08/14

Maps of the former Yugoslavia
Map After WWI (1919)•Curent Map Since 2008

1991-2008
After WW II
1945-1991
After WW I
1918-1945

1918

1991-1999

Socialist
Federal
Republic ofYugoslavia

Kingdom of Serbs, Croats and Slovenes,
Kingdom of Yugoslavia

Pre-1914: Partly AustroHungarian Empire / PartlyOttoman Empire

1991 -Yugoslavia
Independence
begins break- Declarations
up into 7by Slovenia,
separate states; Croatia, &violence, civil
Macedonia
wars & conflicts
including Nato 1992 - Bosnia& Herzegovina
Involvement
2006 Montenegro
2008 - Kosovo

CountryStatus

Year of Accession

Slovenia

EU Member State (5thenlargement)

2004

Croatia

EU Member State (6thenlargement)

2013

SerbiaCandidate since 2012

-Montenegro

Candidate since 2010

-Masedonia

Quasi-Candidate since 2005*-Bosnia &Herzegovina

Potential Candidate-Kosovo*

Potential Candidate-*Complex issues re Macedonia &Kosovo

Slovenia

Croatia

Before 1918

Austro-Hungarian
EmpireAustro-Hungarian
Empire plus Ottoman
Empire1912-1991

Yugoslavian period

Yugoslavian periond

Declaration ofIndendence

1991

1991

IndependenceWar

Ten Days War (1991)

1991- 1995

AssociationAgreement

EU Association
Agreement in 1993

Stabilisation
Association Agreement(SAA)

EU Accession
Application

1993

2001

Negotiation

1995- 2004

2005-2013

EU Accession

20042013

Advantages to joining the EU One of the first five CEE countries to begin
negotiations with the EU in 1998
 Currently, the highest GDP per capita of 2004
accession states
 Low rates of corruption (CPI 2015 - World governanceIndicator)
 2012- OECD membershipDrawbacks
 Territorial issues (territorial issues with Italy andCroatia ) Long & intense independence war aftersecession from Yugoslavia
 Croatia passed all necessary modified criteria(104 out of 130 EU acquis) for the accession
process
 Some discrepancy arose between politicalleaders and the public, in terms ofEuropeanisation
 Perhaps half of Croats held views sceptical of
the EU, including many youth, beforeaccession

Serbia

Montenegro

Kosovo*Before 1918

Ottoman Empire
but in its
northern area,with frequent
Austria-Hungary
intervention

Ottoman Empire/France /AustriaHungary /Petrović-Njegošdynasty

Ottoman Empire

1912-1991

Yugoslavian
periodYugoslavian
periodSpecial Province

Declaration of
Independence

N/A2006

2008

IndependenceWar

1991- 1999
No war (except
as a National
as part of
Yugoslavian army Serbia)

1991- 1999
UNIMIK
involvement

AssociationAgreement

EU-Serbia SAAin 2011

EU-Montenegro
SAA in 2007

EU-Kosvo SAA in2015

EU Accession
Application2009

2008N/A

Negotiation

2015-

2012-

N/A

 Concluded SSA Agreements, basicallyfollowing the same path as Croatia
 AFSJ matters play a central role in theaccession process Unlike Croatia, the Screening Report forChapter 23 & 24, contains detailed
benchmarks and further recommendations
 Serbia Negotiations re Chapter 23 & 24 areopen as of July 2016
 An issue with CR on regional jurisdiction overwar crimes UNMIK involvement since 1999

 EULEX mission in Kosovo to support the ruleof law
 Normalisation Agreement with Serbia
 A special case with complex concerns recrime, corruption & the aftermath of war &conflictPart IEU criminal law has been evolving gradually,extending areas engaged whilst keeping distanceamongst MSs
 Harmonisation of national law, and mutual
recoginiton, are de facto current core issues ofECL Mutual recogniton has punitive power, and needs
to strike a balance amongst fundamental rights
 Across the scope of ECL, some very basic
concepts, e.g., approximation with EU secondary
legislation, are included

Part II
 The recent enlagement process seems to bestricter than before, but now without postaccession monitoring Given the experience with Romania and Bulgaria,
better preparation to implement the EU acquis,
seems indispensable for accession states Issues of corruption and organised crime, may
take a longer time span, a decade or longer,
given its apparent social & political entrenchment

Part III Need to build trust in accession states' criminal
justice systems
 Need to build grounds for application of mutual
recognition - the heart of EU criminal law
 Pre-accession policy & Accession Treaties, givethe EU more powers to enforce standards, & thus
legitimacy
 Focus is not only EU criminal law, but also anapproximation of EU secondary legislation,dealing with mutual recognition, rights ofdefendants & victims, harmonisation of crime
definitions & sanctions

 Chaves (2012) Evolution of European Union

Criminal Law, LSE
 A.Elbasani (2013)European Integration andTransformation in the Western Balkans
 C.Hillion (2004) EU Enlargement: Legal Approch
 A.Klip (2016) European Criminal Law, 3rd edition
 A. Lazowski ‘EU criminal law and EU enlargement’
Chapter 24, Research Handbook on EU Criminal
Law (2016) V.Mitsilegas (2009) EU Criminal Law,
Hart Publishing, 2009EU Progress Report forSerbia, Kosovo.