Hague Joint Conference
Dinnerspeech by Justice Minister Hirsch Ballin Hague Joint Conference, 29 Juni 2007 “Trends and challenges in the field of criminal law in Europe”. (Engels uitgesproken, English only)
1. Introduction
Good evening, ladies and gentlemen,
As a member of both the Dutch International Law Association and the American Society of International Law, I had noted the dates of this Joint Conference in my diary as long ago as last autumn. Unfortunately my current office makes it impossible for me to take part in the panels and working meetings, as I did at the second Joint Conference. So I am all the more grateful to be invited to speak at the dinner. It is an honour and a privilege. Especially as I performed the same task at the first Joint Conference. I’ve looked back over my notes for that speech. I’m afraid there weren’t many jokes! It was rather long and deadly serious. You had to wait a while before the next course was served. But you must have liked it – why else would you have invited me back for a second helping?
I’d like to talk to you this evening about ‘Trends and challenges in the field of criminal law in Europe’. At first sight you might think that this subject is somewhat removed from the international law theme of this conference. But I believe, and the conference organisers agree, that there are more than enough reasons to examine this issue. European cooperation in criminal law matters takes place in a broader international context. Crime and terrorism don’t stop at Europe’s external borders. What happened today in London was a good example.
We all know that criminal law is a reflection of the prevailing norms and values within a community. In that sense, a country’s criminal law is a manifestation of its national identity. This does not mean that criminal law is, or should be, a purely national affair. After all, people belong to different communities. I am a Dutchman, a European and a citizen of the world all at the same time. The contexts in which people live and work are increasingly inter-related. Also, norms and values are never static; they are always shifting. Even between legal communities. It is these shifts in the European context in recent decades that I would like to discuss with you this evening.
But in relations between the member states of the European Communities, now the European Union, the traditional international law approach did not go far enough. Member states could invoke various conventions on cooperation in criminal law in the broader context of the Council of Europe, but here too, more was needed.
Thirty years ago the idea was first mooted of bringing national systems of criminal law closer together, eventually leading to a European area of criminal law. It was Valéry Giscard d’Estaing, speaking as French President in 1977, who referred to an espace juridique européen. But the time was not yet ripe to incorporate this idea into the European treaties. What we did start to see, however, were arrangements for practical cooperation between member states. The Trevi Group, for example, named after the fountain in Rome. A few years later, in 1985, five member states decided to go a step further. They concluded an intergovernmental agreement at Schengen, outside the Community framework.[1] The aim was to make arrangements for police and judicial cooperation to complement the internal market. In the years that followed, more countries joined the original five states.
The big breakthrough in this area came in 1992 with the signing of the Maastricht Treaty, which came into force in November the following year. Criminal law became a policy area of the European Union, as part of cooperation in the field of justice and home affairs. But the breakthrough was a case of two steps forward and one step back.
Decisions on criminal law were not taken using the Community method, but instead came under a separate, third pillar of the European Union. This meant that unanimity was required among national governments in the Council. The European Parliament was only given an advisory role. The vast majority of member states were still very reluctant to give up powers in the field of criminal law to a supranational body.
As specialists in international law, you will be familiar with this tension. As a product of custom and negotiation between states, international law lacks the democratic legitimacy to regulate the lives of individual citizens. This is why international cooperation on criminal law matters has traditionally been bound by all manner of restrictions and cumbersome procedures. But in the wake of the Europeanisation and globalisation of the economy and communication, the need for precisely this kind of cooperation became urgent: the need for rules that apply across national borders. For example, to track down the perpetrators of cross-border crime and bring them to justice.
In this context it proved impossible for the time being to incorporate cooperation on criminal law matters into Community law. National sovereignty over law enforcement remained. The Maastricht Treaty went no further than a hybrid structure, linking intergovernmental decision-making to Community institutions. Criminal law, in which the values of a national community are so important, was precisely the kind of area where national governments were unwilling to relinquish their own democratic legitimacy.
At that time, the European Union could not provide a democratic alternative. Only with the signing of the Treaty of Amsterdam, ten years ago, was a more or less mature democratic structure put in place. This was achieved with the introduction of the European Parliament’s right of co-decision on legislation.
[1] Agreement between the Kingdom of the Netherlands, the Kingdom of Belgium, the Federal Republic of Germany, the French Republic and the Grand Duchy of Luxembourg on the gradual abolition of checks at their common borders of 14 June 1985.
2. Step by step
But more changes lay ahead. The 1997 Treaty of Amsterdam brought Schengen cooperation within the framework of the Union. It brought asylum and migration into the first pillar, under the Community umbrella, with qualified majority voting and co-decision by the European Parliament. Criminal law remained in the third pillar. But a political objective was formulated: to provide citizens with a high level of safety within an area of freedom, security and justice. In 1999, the year in which the Treaty of Amsterdam entered into force, the Tampere programme was introduced, setting out how this objective could be met in practice.
European cooperation in criminal law matters was given added impetus when Europol became fully operational in 1999 and Eurojust was set up in 2002,[1] both based in The Hague.
Let me now turn to the substance of the cooperation in the field of criminal law.
Four dimensions in the development of criminal law in the EU.
a. Criminal law and compensation for the disappearance of borders
In the first place criminal law as a means to compensate for the disappearance of internal borders.
When the free movement of persons without checks at internal borders was introduced, we had to work together to prevent criminals abusing the situation. That is the first dimension of criminal law in Europe: cooperation to compensate for the abolition of internal border checks and to enforce national norms. This is why the Schengen Convention was signed in 1990. It formed the basis for the Schengen Information System, a shared databank for the use of border control and investigative authorities.
b. Criminal law and the enforcement of Community law (first pillar)
The second dimension is about enforcing Community law. Before the turn of the millennium, criminal law was already used as a means to protect the Community’s interests against the threat of corruption and fraud. The Tampere programme of 1999 provided for further protection of Community interests – mainly economic interests – by criminalising certain offences throughout the EU.
c. Criminal law as an instrument of cooperation between member states (third pillar)
The third dimension of criminal law in Europeis about further cooperation between member states in the European area of freedom, security and justice. The terrorist attacks in the United States and Madrid served as a wake-up call. Member states realised that close cooperation was needed to protect them from terrorism. This led to the quick adoption of the European arrest warrant in 2003. The Hague Programme of 2004 was also shaped by these terrible events. It included the principle of availability. Up to then, information from law enforcement agencies in one member state was not available to a law enforcement officer in another, unless a decision was taken to that effect. The principle of availability has turned this around. If an officer in one state needs information, the authorities in the other state must make it available, provided this does not prejudice ongoing investigations or the rule of law. So a qualified ‘no’ was replaced by a qualified ‘yes’.
d.Criminal law as a manifestation of a shared European identity
Let me now move on to the fourth dimension, which is disputed but inevitable. Criminal law as a manifestation of a shared European identity. I see a development in Europe in the sphere of criminal law towards a shared outlook, a common vision of what merits condemnation and therefore criminalisation. Xenophobia, racial hatred, cyber crime, violent video games, trafficking in persons, and child pornography. In all these areas, Europe has adopted instruments or is preparing to take action, but we will need safeguards for the right balance with national identity and sovereignity.
From this point of view, we need better decision making procedures since the unanimity requirement can easily create a stalemate. The Treaty establishing a Constitution for Europe signed in 2005 made significant advances in European cooperation in criminal law matters by transferring most of decision making to qualified majority voting with co-decision. But again it was two steps forward, and one back. The Constitution was swept aside by the French and Dutch referendums. But recently we have seen a very important step forward. The Reform Treaty, on which political agreement was reached last Saturday, brings cooperation in criminal law matters into Community decision-making structures, with co-decision, but limits on majority voting. A member state can oppose a decision by referring it to the European Council. If unanimity is not reached there, the new treaty will provide for enhanced cooperation among the member states that do want to push ahead (provided they represent at least one third of member states). As in the case of Schengen, the United Kingdom and Ireland have the right to opt out. But with the introduction of qualified majority voting in justice and home affairs, and greater protection for fundamental rights, the European Union will take an important step towards making an area of freedom, security and justice a reality.
[1] Provided for by Treaty of Nice (2001).
3. Conclusion
Ladies and gentlemen,
I have tried to outline how criminal law in the European Union has developed in recent decades, and what the prospects are for the future. I foresee an increasing role for criminal law at EU level, as a reflection of a growing European identity.
We need to build bridges in today’s world. The world is once more dividing increasingly into camps. Opponents with differing ideas on justice, on matters of right and wrong. The Reform Treaty is a promising development. It reflects the desire to intensify cooperation without giving up the pedigree of national identity. The direction is unity without abandoning the values of diversity. Our task is to seek what binds us together – the values that sustain criminal law: freedom, security and justice.
Thank you.