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3 CRIME WITHIN THE AREA OF FREEDOM, SECURITY AND JUSTICE The Europeanisation of the fight against crime is a broad and muchcontested notion. This in-depth analysis of the role of the EU in fighting crime within the Area of Freedom, Security and Justice explores the impact of EU policies in the Member States, the progressive convergence of Member States criminal law systems, the emergence of mutual recognition as an alternative to harmonisation, and the incremental development of the ECJ s jurisdiction. The essays also explore the limitations inherent in EU counter-crime policies and the changes brought about by the introduction of the Treaty of Lisbon. These changes are discussed both collectively and within individual substantive areas in which the EU has taken an active role in fighting crime, such as corruption, money laundering, terrorism, organised crime and extradition. christina eckes is an assistant professor at the Amsterdam Centre for European Law and Governance (ACELG), University of Amsterdam, where her research interests include the external relations of the European Union and the development of European constitutional law. theodore konstadinides is a lecturer in European law at the School of Law, University of Surrey. His main area of interest is European constitutional law, in particular the delineation of competence between the EU and the Member States and the impact of European integration on national constitutional systems.

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5 CRIME WITHIN THE AREA OF FREEDOM, SECURITY AND JUSTICE A European Public Order Edited by CHR ISTINA ECK ES AND THEODORE KONSTADINIDES

6 cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Dubai, Tokyo, Mexico City Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York Information on this title: Cambridge University Press 2011 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2011 Printed in the United Kingdom at the University Press, Cambridge A catalogue record for this publication is available from the British Library Library of Congress Cataloguing in Publication data Crime within the Area of Freedom, Security and Justice : A European Public Order / [edited by] Christina Eckes, Theodore Konstadinides. p. cm Includes bibliographical references and index. ISBN Criminal justice, Administration of European Union countries. 2. Judicial assistance European Union countries. 3. Law enforcement European Union countries. I. Konstadinides, Theodore, 1978 II. Eckes, Christina. KJE9430.C dc ISBN Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

7 CONTENTS List of Contributors Acknowledgements Abbreviations vii xi xiii Introduction 1 CHRISTINA ECKES and THEODORE KONSTADINIDES 1 EU criminal justice: beyond Lisbon 10 MARIA FLETCHER 2 The European Union policy against corruption in the light of international developments 43 PATRYCJA SZAREK-MASON 3 The EU s anti-money laundering agenda: built on risks? 76 ESTER HERLIN-KARNELL 4 EU anti-money laundering regulation: multilevel cooperation of public and private actors 97 MARIA BERGSTRÖM 5 The legal framework of the European Union s counter-terrorist policies: full of good intentions? 127 CHRISTINA ECKES 6 Organised crime: developments and challenges for an enlarged European Union 159 MASSIMO FICHERA 7 The Europeanisation of extradition: how many light years away to mutual confidence? 192 THEODORE KONSTADINIDES v

8 vi CONTENTS 8 The European Evidence warrant: mutual recognition and mutual (dis)trust? 224 CIAN C. MURPHY 9 Law and order and internal security provisions in the Area of Freedom, Security and Justice: before and after Lisbon 249 ALICIA HINAREJOS 10 The external dimension of the EU s Area of Freedom, Security and Justice 272 RAMSES A. WESSEL, LUISA MARIN and CLAUDIO MATERA Index 301

9 CONTRIBUTORS m a r i a bergström joined the Law Faculty at Uppsala University as a research fellow in July Prior to this, she worked as a researcher at the Law Faculty at Stockholm University. She has been part of several research projects funded, for example, by the Swedish Research Council. She defended her thesis, on the use of legal rules and courts of law for the realisation of different groups objectives, at the European University Institute (EUI) in Her particular research interests are concerned with competence issues, changing boundaries and the interactive development of national and EU law. She is currently conducting research on public-private cooperation and the EU functional notion of the state. She has always been interested in interdisciplinary research and she codirects an interdisciplinary research project on accountability and antimoney laundering regulation together with a political scientist and an economist. Her publications are mainly concerned with the relationship between national and EU-law within the fields of constitutional, administrative, penal and procedural law. christina eck e s currently works as an assistant professor at the Amsterdam Centre for European Law and Governance (ACELG). She joined the University of Amsterdam as a post-doctoral researcher in September Prior to this, she worked as a lecturer in European law at the University of Surrey, Guildford ( ). After having completed her studies at the Universities of Trier and Lausanne with the First State Examination in Law (Germany, 2002), she did a master s degree in European Community law at the College of Europe in Bruges (LLM, 2003). In February 2008 she defended her PhD thesis on European sanctions against private individuals at King s College London. Her particular research interests are the external relations of the European Union and the development of European constitutional law. Her recent publications include EU Counter-Terrorist Policies and Fundamental Rights The Case of Individual Sanctions (2010). vii

10 viii CONTRIBUTORS massimo fichera currently works as a post-doctoral researcher at the University of Helsinki. He defended his PhD thesis on the European Arrest Warrant and the principle of mutual recognition in criminal matters at Edinburgh University in May His research interests lie in the area of European integration and the intersection between international law and European constitutional law. His publications include a series of articles on the European Arrest Warrant, mutual recognition and drug trafficking. Prior to his PhD, he qualified as a barrister in Italy and carried out research within academic institutes and international organisations, for example during his internship at the United Nations Drugs and Crime Office (Vienna). He completed his studies in law at the University of Messina and international affairs at ISPI, Milan (MIA). maria fletcher is a senior lecturer in European Law at the University of Glasgow. She joined the University in Her research interests lie broadly in the justice and home affairs field, and in particular in the governance and constitutional aspects thereof. She is co-author of EU Criminal Law and Justice (2008) with Robin Lööf and Bill Gilmore and has published numerous papers on the topics of EU criminal law and immigration and asylum law. ester herlin-karnell is a lecturer in EU law at the VU Amsterdam (Vrije Universiteit Amsterdam). She has recently completed a DPhil in law (Somerville College, Oxford University, thesis title: The Constitutional Dimension of European Criminal Law) and holds an LLM from King s College London and Stockholm University. She has previously worked as a legal secretary and judge s assistant in a Swedish Administrative Court and as well as in a District Court. Her research interests lie within European criminal law and European constitutional law. a lici a hina r ejos is a British Academy postdoctoral fellow (Faculty of Law, University of Oxford) and a William Golding junior research fellow (Brasenose College and Institute of European and Comparative Law, Oxford). Since 2009, she is also an assistant professor and Boulton Fellow at McGill University. theodore konstadinides is a lecturer in European law at the School of Law, University of Surrey. Prior to this he was a doctoral researcher and academic tutor in EU law at University College London. He holds a degree in law (LLB Qld) and a Masters in EU Law (LLM) from the University of Kent and obtained his PhD in Law at University College London. His main area of interest coheres around European constitutional law. His

11 CONTRIBUTORS ix research explores, in particular, the delineation of competence between the EU and the Member States and the impact of European integration on national constitutional systems. Recent publications include Division of Powers in European Union Law: The Delimitation of Internal Competence between the EU and the Member States (2009). lu isa m a r i n currently works as an assistant professor at the University of Twente. Before joining Twente in 2007, she was a post-doctoral researcher and lecturer at the University of Helsinki and before then at the University of Verona, where she defended her PhD on the principle of mutual recognition in criminal matters (2006). Her research interests cover EU cooperation in criminal matters within the perspective of European constitutional law. She has co-edited a book and published a number of articles on the European Arrest Warrant. She pursued her education mainly in Italy (law degree and Masters in European Law, University of Bologna), but also in France and the Netherlands. Besides her academic career, she has been admitted to the Bar before the Venice Court of Appeal. cl au dio m ater a currently works as a researcher for the EU law department of the T.M.C. Asser Instituut, The Hague. He is also a PhD candidate at the University of Twente. His PhD dissertation analyses the external relations of the Union in the fields of the Area of Freedom, Security and Justice and forms part of the research activities of the Centre for the Law of EU External Relations hosted by the institute. He obtained his law degree from the Università degli Studi di Milano-Bicocca and has an LLM in European Law from the College of Europe, Bruges. cian c. murphy is currently University Research Fellow at City University London, Visiting Fellow at the Centre of European Law, King s College London and Teaching Fellow at University College London. He holds a BCL (Hons) degree from University College Cork and LLM (Public Law) and PhD degrees from King s College London. His doctoral research was entitled The Rule of Law in the EU in the War on Terrorism and was supported by an AHRC Doctoral Award, NUI Travelling Studentship and Modern Law Review Scholarship. His research interests lie in the areas of EU, Irish and British public law, counter-terrorism law and human rights; EU criminal law and justice; and the relationship between law, state violence and non-state violence. patrycja sza r ek-m ason received her law degrees from Adam Mickiewicz University in Poznan and the University of Ghent. She taught

12 x CONTRIBUTORS various European Union law courses at the University of Edinburgh, where she also obtained her PhD in Since 2003, her research has focused on the requirements of EU membership in the area of anti-corruption policy. r a mse s a. w e s sel is Professor of the Law of the European Union and other International Organizations and Co-Director of the Centre for European Studies at the University of Twente. He is Dean of Education at the School of Management and Governance and was Director of its European Studies programmes ( ). He graduated in 1989 at the University of Groningen in International Law and International Relations and subsequently worked at the same university ( ) and at the Department of International and European Institutional Law at Utrecht University ( ). He is the author of The European Union s Foreign and Security Policy: A Legal Institutional Perspective (1999) and of a number of other publications in the field of international and European law. His general research interests lie in the field of international and European institutional law, with a focus on the law of international organisations, peace and security, European foreign, security and defence policy and EU external relations in general.

13 ACKNOWLEDGEMENTS The origins of this volume lie in a long-discussed idea between the editors to find common ground in their research and work together in a pertinent area of EU law. The foundations were laid in Spring Since then, our aim has been to capture so far as possible the development of a rapidly growing area of law. Being our first ever edited collection we met a number of unique challenges. There were times when we felt as if we were holding a camera which had only a few shots left, and yet we were trying, from different angles, to take vivid pictures of a fast moving unidentifiable object. This volume is thus a product of hard labour (sometimes until the early morning hours); compromise; long correspondence; meetings in London and Amsterdam; trial and error. To this end we have had the pleasure and privilege of consulting and working with numerous remarkable academics. We both wish to offer our enormous gratitude to our contributors for breathing life into this project and for their endless patience and flexibility. Good things come to those who wait! We only hope that they enjoyed the journey as much as we did and that this volume consists of the first in many instances of future collaboration. We would also wish to thank Cambridge University Press, in particular, the commissioning editor, Sinéad Moloney and her team, for believing in us and showing great trust in our efforts to make this book happen. In particular, special thanks go to Richard Woodham, Dan Dunlavey and Laurence Marsh for their invaluable assistance and attention to detail. Christina Eckes wishes first of all to thank Theodore Konstadinides for being a great colleague and true friend. Ήταν ευχαρίστηση να δουλέψουμε μαζί πάνω στο βιβλίο! Further thanks goes to all the members of the Amsterdam Centre for European Law and Governance for creating such a friendly and stimulating working environment; Ester Herlin-Karnell for her useful comments on my chapter; Natalie Browes and Lisa Clarke for their helping hands with all sorts of questions on the English language; Joana Mendes and Madalina Busuioc for their support and entertainment xi

14 xii acknowledgements during rainy working days in my new home, Amsterdam; Angela Moisl and Willem van Merle for numerous tips, tricks and favours; and, last but not least, Dennis van Berkel for helping to smooth my encounters with Dutch (legal) culture indirect as this contribution may seem, it is of great value to me. Theodore Konstadinides wishes to thank in no particular order: past and present colleagues from the University of Surrey, especially: Chris Kerse, Jon Yorke and, for his unbounded support, Leslie Blake. Special thanks goes to Valsamis Mitsilegas for his positive feedback on the project and my own contribution; Christophe Hillion for his useful suggestions; Maria Bergström for her hospitality during my visits to Sweden; and Juliane Gillner for her research assistance. No words can do justice to Michael Dougan and Takis Tridimas for offering me their encouragement when most needed. I further wish to thank those friends who have patiently listened to my pompous orations during the various stages of this book: Rui Alves, Andreia Costa, Ioannis Glinavos and, in particular, Tom Dyson. I am greatly indebted to my esteemed friend Christina Eckes. I thank her with all my heart for committing herself to this very long engagement. Lastly, my warmest expression of gratitude goes to Konstantinos and Foteini Konstadinides and Natasha, Maria and Dionysios Gousetis whose devotion and unconditional love make everything possible and worthwhile.

15 ABBREVIATIONS AFSJ Area of Freedom, Security and Justice AG Advocate-General AML Anti-Money Laundering ATCSA Anti-Terrorism, Crime and Security Act 2001 BCBS Basel Committee on Banking Supervision BVerfG Bundesverfassungsgericht CDD customer due diligence CEECs Central and Eastern European countries CFI Court of First Instance CFSP Common Foreign and Security Policy CFT Combating the Financing of Terrorism CJEU Court of Justice of the European Union CTG Counter-Terrorist Group CVM Commission within the so-called mechanism of cooperation and verification of progress EAW European Arrest Warrant EC European Community ECHR European Convention on Human Rights ECJ European Court of Justice ECR European Court Reports ECtHR European Court of Human Rights EEAS European External Action Service EEW European Evidence Warrant EJN European Judicial Network EP European Parliament EPP European Public Prosecutor s Office ESDP European Security and Defence Policy EU European Union EU(Lis) Treaty on the European Union post-lisbon EUMM European Union Monitoring Mission Europol European Police Office FATF Financial Action Task Force xiii

16 xiv abbreviations FIU Financial Intelligence Unit Frontex European Border Agency FSA Financial Services Authority FSMA Financial Services and Market Act GG Grundgesetz (German Constitution) GRECO Group of States Against Corruption IOSCO International Organization of Securities Commission JHA Justice and Home Affairs JMLSG Joint Money Laundering Steering Group MLAC Money Laundering Advisory Committee MLIU Money Laundering Investigation Unit OECD Organisation for Economic Cooperation and Development OPC Observatory for the Prevention of Crime PEPs politically exposed persons PJCCM Police and Judicial Cooperation in Criminal Matters Phare The Programme of Community aid to the countries of Central and Eastern Europe SARs suspicious activity reports SBA Swedish Banking Association SC res Security Council resolution SitCen Joint Situation Centre SOCA Serious Organised Crime Agency TACT The Terrorism Act 2000 TEC Treaty Establishing the European Community/EC Treaty TEU Treaty on European Union TFEU Treaty on the Functioning of the European Union UK United Kingdom UN United Nations UNC UN Charter UNCAC UN Convention Against Corruption UNTOC United Nations Convention on Transnational Organised Crime Convention

17 Introduction Christina Eckes and Theodore Konstadinides Over the last decade the responsibilities of the European Union (EU) in protecting its citizens from crime, organised or otherwise, have expanded incrementally. Security-led issues have gained particular relevance following the attacks of 11 September 2001, 9 March 2004 and 7 July 2005 and the last two EU enlargements of 2004 and These events have not only contributed to externalising internal security issues (e.g. through political cooperation with third countries on issues of freedom, security and justice), they have also, most significantly, legitimised pan- European initiatives or, to put it otherwise, they have Europeanised internal security issues. This has occurred through the adoption of a wide range of legislative instruments related to law enforcement, cooperation on the prevention and combating of crime, intelligence exchange and public order management. Until the entering into force of the Treaty of Lisbon much of European criminal law was tucked away in the third pillar of the EU. With the Treaty of Lisbon, the field of judicial cooperation in criminal matters has acquired an identifiable constitutional framework and has become a fully-fledged EU policy. The Treaty introduces the ordinary legislating procedure, involving the European Parliament and allowing the Council to vote by qualified majority in order to establish minimum rules. It also extends the Court s jurisdiction to cover areas of the former third pillar, albeit significantly limited by the transitional provisions (Protocol 36). Finally, the Union s available legislative instruments are strengthened and the principle of mutual recognition formally becomes the backbone of European criminal law. The EU has with the Treaty of Lisbon renewed its commitment to combat crime as an essential component to the progressive establishment of an Area of Freedom, Security and Justice. The prioritisation of countering crime at EU level constitutes an inevitable consequence of the crossborder nature of contemporary criminal activities, on the one hand, and the fact that crime cannot be clearly separated from policy fields that 1

18 2 CHRISTINA ECKES AND THEODORE KONSTADINIDES are governed by EU law, on the other. It has been accepted that convergence essentially necessitates the alignment of national prosecution systems and regulation of highly sensitive and contested policy areas, such as the maintenance of law and order. In the not so distant past, however, the pillar structure of the EU in conjunction with the principle of conferred powers created adverse conditions for a unified approach towards a European criminal policy. The former Treaty structure effectively hindered policy convergence in criminal matters. But even today, the endeavour of the Member States to take joint action against both internal and external threats openly clashes with their interest in protecting their sovereignty from the extension of EU competence. At the same time, it is widely perceived that Member States cannot deal effectively with new threats and serious cross-border crime by acting on their own. In other words, it can be contended that cross-border crime necessitates a crossborder response. Legal and judicial cooperation under EU law appears to provide an appropriate solution. It allows reaching policy convergence through minimum standards and mutual recognition rather than harmonisation. This provides a middle ground for the establishment of an Area (not a Community ) that strikes a balance between strict European integration and national sovereignty. Yet at the same time, criminal law is an area where different standards resulting from the increasing size and heterogeneity of the EU may have adverse consequences on the freedoms of the individual, such as the right to personal liberty and safeguards as to arrest and detention. This renders law-making based on the principle of mutual recognition increasingly difficult. For the above-mentioned reasons, the establishment of a true Area of Freedom, Security and Justice in which national enforcement tools freely circulate, irrespective of the absence of a European standard, is a dangerous undertaking: fundamental constitutional principles both at the national and European level may be compromised. This requires the establishment of some sort of a European Public Order, a term used in the Court s jurisprudence to refer to, according to one commentator, the status of some fundamental provisions in the EC Treaty. 1 It follows that the maintenance of a Public Order within the EU is tantamount to the preservation of a hierarchy of principles at the supranational level with the objective of preventing disorder and as a result 1 R. de Lange, The European Public Order: Constitutional Principles and Fundamental Rights 1(1) Erasmus Law Review (2009) 1 24, at 8.

19 CRIME WITHIN THE AFSJ: INTRODUCTION 3 providing for the polity s welfare. In that respect, it can be argued that Public Order becomes synonymous to Public Security. It is suggested in this book that it is not essential to secure the homogeneity of all actors involved but rather to invest in the establishment of a set of obligations, which are objective in character and whose scope of protection extends beyond state-centric interests, thereby protecting the fundamental rights of citizens. For instance, the development of principles and guarantees governing criminal law and criminal procedure constitutes an essential component for the survival and continuation of a European Public Order (Ordre Public). Steps towards the establishment of constitutional instruments of European Public Order consist of the now binding EU Charter of Fundamental Rights and the possibility for the EU to accede to the European Convention on Human Rights. 2 Since the entry into force of the Treaty of Amsterdam, establishing the Area of Freedom, Security and Justice, as part of a consistent and coherent policy framework, has become one of the Union s main objectives. The challenge is to guarantee the free movement of persons while offering a high level of protection from threats, including terrorism and other illegal activities which have both internal and external security dimensions. The political agenda set by the European Council at Tampere (1999) and enhanced by the Hague Programme (2004) and, most recently, by the Stockholm Programme (2009), links a vast number of policy areas ranging from protection of the Union s external borders to judicial cooperation in criminal matters, from the fight against acts of terror, cross-border and organised crime to tackling fraud and corruption. The Stockholm Programme (2009) in particular, has added to the securityoriented vision of the Area of Freedom, Security and Justice. It set the agenda for the period of 2010 to 2014 and identified strategic objectives and concrete actions related to its security rationale. This places a greater emphasis on the role of the EU as a facilitator within the Area of Freedom, Security and Justice and the Member States duty to align, via enhanced cooperation and mutual trust, their substantive laws as a vehicle to solving problems through collective action. Most significantly, in the Stockholm Programme, the European Council has recognised the need for increased harmonisation of criminal law via the establishment of minimum rules on the definition of criminal offences and sanctions. The present collection aims at providing an in-depth analysis of the role of the EU in fighting crime within the Area of Freedom, Security and 2 Provided that all Member States ratify the accession document: see Article 218(8) TFEU.

20 4 CHRISTINA ECKES AND THEODORE KONSTADINIDES Justice. In doing so it deals with the broad and much contested notion of Europeanisation of the fight against crime. For the purpose of this volume, the term is taken to encompass the impact of EU policies in the Member States and the progressive convergence of the latter s criminal law systems as a result of the adaptive pressures by supranational legislation; mutual recognition as an alternative to harmonisation and the incremental development of the jurisdiction of the Court. This volume also explores the limitations inherent in European counter-crime policies within the Area of Freedom, Security and Justice, and discusses changes under the new constitutional framework introduced by the Treaty of Lisbon. It assesses the contribution of the Treaty of Lisbon both collectively and within individual substantive areas, in which the EU has taken an active role in fighting crime, namely: corruption, money laundering, terrorism, organised crime and extradition. Although these areas have recently received particular attention in literature, they are still in the making and many new issues deserve further discussion. The final two chapters of this volume move away from specific subject areas and discuss certain limitations inherent in the Area of Freedom, Security and Justice. The penultimate turns to examine an internal limitation, i.e. the scope of the judicial review of the national law and order clauses in the Luxembourg courts. The last chapter gives consideration to the external implications and limitations of the Area of Freedom, Security and Justice. The approaches taken in the different chapters, although diverse in character, are not limited in merely considering the intensification of EU action in the Area of Freedom, Security and Justice through regulation, mutual legal assistance and operational collaboration. They, most interestingly, explore the potential of mechanisms that are intended to enhance the efficiency of implementation of the Member States obligations within the EU and their contribution to establishing a European Public Order. To that effect, they examine some of the emerging issues and sources of tension in the establishment of the Area of Freedom, Security and Justice. The legitimacy to pursue such a project at the EU level, the interaction between the national and supranational level, the search for accountability and a clear legal mandate at the European level, as well as the effectiveness of judicial protection of fundamental rights these constitute central themes throughout this collection. They arise across all sectors of European lawmaking regarding the fight against crime and determine the degree of convergence and divergence between Member States. Of course, with the exception of their own contributions, the views and arguments expressed hereafter do not necessarily reflect those of the editors.

21 CRIME WITHIN THE AFSJ: INTRODUCTION 5 In a preliminary section, Maria Fletcher considers the implications of the Treaty of Lisbon framework to the Area of Freedom, Security and Justice. Her contribution consists of a critique of the Treaty of Lisbon and the Stockholm Programme, which brings the collection up to date. The impact of the Treaty of Lisbon is a recurrent theme in all the following chapters in the context of the specific subject area that those chapters explore. Patrycja Szarek-Mason reviews the existing EU policy against corruption within the Member States and addresses how this policy compares to the international standards in this area. Her chapter begins with an overview of the major international anti-corruption instruments. It focuses on the activities of the Organisation for Economic Cooperation and Development (OECD), the Council of Europe and the UN. Following this discussion, she moves on to analyse the EU policy against corruption. Her chapter outlines the scope of the EU mandate to prevent and combat corruption across the Member States and the impact of the Treaty of Lisbon on this area of EU policy. Next, Szarek-Mason reviews the existing EU anti-corruption instruments in the light of international developments. She points out the areas where the EU has fallen behind international standards and identifies the added value of cooperation at the EU level. Finally, her chapter analyses the latest EU policy developments and points out that the EU is moving towards a more coherent strategy against corruption within the Member States. Ester Herlin-Karnell reviews the Union s anti-money laundering agenda. The third money laundering directive controversially introduces not only a risk-based approach to the fight against dirty money but also includes the financing of terrorism. The directive is based on former Article 95 TEC (current Article 114 TFEU) which raises questions as to its contribution to the establishment of the internal market. Herlin-Karnell broadly explores the implications of EU risk assessment in the area of EU anti-money laundering and the implications of supranational harmonisation in the area. In doing so, she examines whether there are different notions of risk at stake, i.e. within the traditional context of EU risk regulation and the area of money laundering and terrorism financing respectively. Finally, the chapter addresses the implications of the former cross-pillar overlap as well as the impact of the Treaty of Lisbon. Maria Bergström examines the changing character of public-private cooperation within the field of EU anti-money laundering regulation, in particular, the regulatory and implementing structures on the global, regional and national arenas, with the UK and Sweden as topical examples

22 6 CHRISTINA ECKES AND THEODORE KONSTADINIDES of different approaches. With the introduction of the risk-based approach, private actors have been given an augmented role. Yet, whereas public actors are accountable within the democratic system of command and control, private actors are not. Arguably, a new model of legal accountability is emerging. The closer elements of such a model are set down in binding legislation, and non-binding standards and recommendations are worked out by those that are then monitored by administrative and law-enforcement agencies. Bergström argues that the eventual success of such a legal accountability model depends, however, on the quality of the underlying rules and procedures in monitoring the private actors, their effect on actually combating crime, and last but not least, on their acceptance by those who are being regulated. Christina Eckes explores the legal framework of European counterterrorist policies. Containing terrorism is one of the ten priority action points of the Hague Programme launched by the European Council in 2005, setting out a five-year plan for developing the Area of Freedom, Security and Justice. The emphasis lies on facilitating cooperation between Member States in sharing information and in preventing and combating cross-border crime. However, the EU also adopts operational measures, such as economic sanctions against terrorist suspects. Countering terrorism at the EU level entails specific problems of justification and coordination. A basic doubt remains whether the EU is the right actor to adopt counter-terrorist measures. Also, great national differences in the perception of terrorism as a threat and in security culture create additional difficulties in the attempt to fight terrorism in an efficient but rights-compliant way at the European rather than at the Member State level. Massimo Fichera examines the developments and challenges of the EU s fight against organised crime. Organised crime is an area of great concern in the Union, not only at the institutional level but also at the citizens level. It is a highly diversified phenomenon embracing not only legal, but also economic and socio-cultural matters. Following the opening of borders between Member States and the creation of a globalised society, a number of organised criminal groups have turned into transnational enterprises capable of affecting several states at once. After approaching this phenomenon from a historical perspective, Fichera provides an overview of the policy adopted by the EU to combat organised crime and the obstacles faced by it (e.g., common definitions, evidence gathering, mutual recognition). This analysis is carried out against the background of the EU s enlargement and its neighbouring policy, which raises a host of thorny issues, such as the emergence of new forms of organised crime

23 CRIME WITHIN THE AFSJ: INTRODUCTION 7 and the extent to which the institutions are able to tackle them. In conclusion, the results of the EU policies are assessed with a view to verifying whether or not the common approach adopted so far can be considered effective and, if not, what should be improved. Theodore Konstadinides revisits the innovations introduced by the Framework Decision on the European Arrest Warrant (EAW) and the establishment of an EU-wide system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an Area of Freedom, Security and Justice. He focuses upon the functionality of the principle of mutual recognition and identifies certain problem areas that limit the substantive scope of the EAW. The chapter first examines the two major reforms introduced by the Framework Decision, namely the abolition of the double criminality test and the limited grounds for refusal of execution, especially the rule against surrendering nationals. It is argued that such a refusal cannot now rest on any human rights considerations, despite its constitutional premise in a number of cases. The chapter also provides a commentary on the paradox that, while the Framework Decision dispenses with verification of the double criminality test for the categories of listed offences, it leaves the definition of those offences (and the penalties applicable in each case) to the issuing Member State. And in accordance with the Framework Decision, the Member State must respect fundamental rights as enshrined in Article 6 TEU as well as the principle of legality. Konstadinides argues that mutual recognition does not necessarily imply mutual trust. Cian Murphy examines the evolution and implementation of the European Evidence Warrant. The warrant, which aims to complement rather than replace existing mechanisms for evidence transfer in the EU, took much longer to agree and implement than its sister measure, the European Arrest Warrant. His chapter demonstrates how the warrant has been carefully crafted to fit with existing mechanisms and how the EU appears to have learned from certain mistakes made with the European Arrest Warrant. It also considers the principle underpinning the warrant mutual recognition and what may be done to strengthen the mutual trust required for its successful operation. Murphy concludes by looking to the future, for the European Council has already proposed to replace the European Evidence Warrant with a new measure under the Stockholm Programme. Alicia Hinarejos raises concerns as to the current process of judicial review of the law and order and internal security clauses of the Member States. She acknowledges that the maintenance of law and order and the

24 8 CHRISTINA ECKES AND THEODORE KONSTADINIDES safeguarding of internal security are competences lying at the very core of national sovereignty. It is therefore apparent that, within the framework of an ever more dynamic Area of Freedom, Security and Justice, Member States have sought to emphasise that the EU may not lay claim to these competences, or regulate the way in which Member States discharge them. Her contribution focuses on the judicial review of national measures caught by the law and order and internal security provisions introduced in the Treaties. It contends that these provisions are better interpreted as general clauses on the limits of EU law rather than as derogations comparable to those available from the law of the single market. This, however, does not exclude the possibility of review by the Court of Justice. It is submitted that Member States have responded to what they perceived as a threatening attitude on the Court s part by adding, as a second and potentially problematic safeguard, a series of provisions that explicitly limit the jurisdiction of the Court. Ramses A. Wessel, Luisa Marin and Claudio Matera address issues associated with the external dimension of the Area of Freedom, Security and Justice. They set off by arguing that traditionally both the Union s third pillar and the Area of Freedom, Security and Justice (Title IV of the EC Treaty) have been somewhat inward looking. The reason is that most of the rules related to these areas concerned cooperation between Member States, rather than with third parties. At the same time, where external relations came in, they were considered to have remained largely in the hands of the Member States. This explains why in the study of the EU s external relations, the area of justice and home affairs has been virtually neglected and the focus was on the Community s external relations in other policy domains (trade in particular) and the Union s foreign, security and defence policy. However, with the intensification of cooperation in the justice and home affairs area, the external dimension became more apparent and complex and the EU has become an important player on the international scene. This internationalisation of EU justice and home affairs was not only the result of a coming of age of this cooperation, but also of the introduction of new competences, including a treaty-making competence of the EU. The chapter, therefore, aims to analyse the main legal questions in an area that is still very much under development. By way of conclusion, the book addresses two separate but interlinked enquiries in the Europeanisation of criminal law. It examines the different fields in which Europeanisation can be witnessed and identifies the internal and external limitations to this Europeanisation of criminal law, namely the complicated division of competences between the EU and

25 CRIME WITHIN THE AFSJ: INTRODUCTION 9 its Member States and the limited legitimacy of the EU to address certain issues. The significance of EU law has dramatically increased in a range of policy areas that either fall under what is strictly speaking criminal law or are, at least, closely connected with criminal law. Throughout the book, two driving factors can be identified behind this Europeanisation. The first is the increasing cross-border nature of crime, best exemplified in the phenomenon of international terrorism, which goes beyond the territory and sphere of influence of Member States. In particular, European law-making in the fight against corruption, money laundering, terrorism, and organised crime has been motivated by the recognition that these international phenomena cannot be effectively contained at the national level. The second driving factor is a spill-over effect from increased EU competence in other policy fields. Close links with existing areas of competence make it necessary for the EU to take criminal law action in order to preserve its own credibility. For instance, the exercise of EU free movement rights by perpetrators, to avoid prosecution in a Member State, necessitates a European strategy to address their surrender. More recently, and this has been the main focus of this book, the creation of the Area of Freedom, Security and Justice has extended EU competence into areas that are either commonly dealt with under criminal law, or in which criminal law plays at least a significant role. For police and judicial cooperation in criminal matters the Treaty of Lisbon constitutes the final step on this way. Since the idea for this book was conceived, it has been our expectation to identify current themes, provide reflections and raise questions. It has been a long but pleasant journey. Looking at the above synopses, one cannot do justice to our contributors insights with regard to the pertinent issues surrounding the Area of Freedom, Security and Justice that they have so thoroughly articulated. We can only wish that this collection proves to be thought-provoking and offers the reader a complementary or corrective approach to their understanding of an ever-expanding area of EU law.