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The European Union and the Globalisation of Criminal Law
Published online by Cambridge University Press: 27 October 2017
Abstract
In the new post-Cold War security era, there is a perception that the nature of cross-border security threats has changed. The need to respond to these new threats has led to a proliferation of multilateral international and regional treaties in this area, as well as unilateral demands made by the United States post-9/11. We have, then, seen a process of globalisation of criminal law, a field traditionally linked to State sovereignty. This chapter examines, first, EU action with regard to UN multilateral conventions and the impact of those conventions on internal EU law, as well as the impact of EU action within the framework of the regional treaties of the Council of Europe; secondly, the interrelationship between Union law and the global production of norms in criminal matters by the UN Security Council and by the Financial Action Task Force; thirdly, bilateral cooperation between the EU and the US, in particular in connection with the transfer of Passenger Name Records data; fourthly, the question of compliance by the EU in this area, in both the internal and the external context; and, fifthly, the Court of Justice’s approach to the protection of fundamental rights when global criminal law is engaged. The EU has managed to take centre stage in international developments in the field of global criminal law through a clear commitment to multilateral negotiations as well as a clear political will to implement at the Union level norms agreed internationally without a high degree of transparency. The Court of Justice has also been reluctant to overturn Union security decisions in the name of fundamental rights. The coming into force of the Lisbon Treaty will eliminate some complexity in this area, but not all, and it still remains to be seen whether in the process of globalisation of criminal law the European values proclaimed in Article 2 of the new EU Treaty will be promoted or compromised.
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- Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2010
References
1 On the evolution of these threats in the context of the development of money laundering counter-measures, see Mitsilegas, V, ‘Countering the Chameleon Threat of Dirty Money: “Hard” and “Soft” Law in the Emergence of a Global Regime against Money Laundering and Terrorist Finance’ in Edwards, A and Gill, P (eds), Transnational Organised Crime: Perspectives on Global Security (London, Routledge, 2003) 195 Google Scholar.
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6 Council Decision of 22 October 1990 concerning the conclusion, on behalf of the European Economic Community, of the UN Convention against Illicit Trafficking in Narcotic Drugs and Psychotropic Substances, [1990] OJ L326/56.
7 The analysis in this chapter refers to developments before the entry into force of the Lisbon Treaty. In this light, and in the light of the particular relevance of the pre-Lisbon pillar structure of the Union for EU internal and external action in criminal matters, the Treaty references in the chapter will not follow the numbering/terminology of the Lisbon Treaty, but rather the numbering/terminology of the Treaties in force at the time of the adoption of the measure analysed.
8 Council Directive 91/308/EEC of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering, [1991] OJ L166/77.
9 Arts 57(2), first and third sentences, and 100a of the EEC Treaty.
10 For a discussion, see Mitsilegas, above n 5, ch 3.
11 See section IV. below.
12 The reference to ‘prohibition’ was introduced in order to circumvent the questionable Community competence to define criminal offences and impose criminal sanctions. However, Member States annexed to the text of the Directive a statement undertaking to de facto criminalise money laundering by the end of 1992.
13 Art 1 of the Directive. See also Preamble, recital 9.
14 Art 1 of the Directive.
15 For an analysis, see Mitsilegas, above n 5, chs 3 and 4.
16 Directive 2005/60/EC of the European Parliament and of the Council on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, [2005] OJ L309/15. The third money laundering Directive calls on Member States to also prohibit terrorist financing. The definition of the latter largely follows the wording of the 1999 UN Convention on the Suppression of the Financing of Terrorism (Art 1(4) of the 2005 Directive). See Mitsilegas, V and Gilmore, B, ‘The EU legislative framework against money laundering and terrorist finance: A critical analysis in the light of evolving global standards’ (2007) 56 ICLQ 119 CrossRefGoogle Scholar.
17 Art 1, indent 5 of the 1991 Directive. See also Preambular recital 5, stating: ‘Whereas for the purposes of this Directive the definition of money laundering is taken from that adopted in the Vienna Convention; whereas, however, since money laundering occurs not only in relation to the proceeds of drug-related offences but also in relation to the proceeds of other criminal activities (such as organised crime and terrorism), the Member States should, within the meaning of their legislation, extend the effects of the Directive to include the proceeds of such activities, to the extent that they are likely to result in laundering operations justifying sanctions on that basis.’
18 The second money laundering Directive called upon Member States to bring the definition of serious crime in line with the definition in the then Joint Action on confiscation ([1998] OJ L333/1). Art 1 of the Joint Action (which was formally repealed by but in substance largely retained in the 2001 Framework Decision on confiscation ([2001] OJ L182/1) in turn called upon Member States not to make or uphold reservations with regard to Arts 2 and 6 of the 1990 Council of Europe money laundering Convention, as regards offences punishable under certain thresholds. The third money laundering Directive consolidated the position by including under serious crimes all offences punishable by a minimum maximum custodial sentence of one year or, as regards Member States which have a minimum threshold for offences in their legal system, all offences punishable by a minimum custodial sentence of at least six months (Art 3(5)(f)).
19 See Art 6(2) of the Convention. Art 6(2)(a) calls upon State Parties to apply the criminalisation of money laundering ‘to the widest range of predicate offences’.
20 See McClean, D, Transnational Organized Crime: A Commentary on the UN Convention and its Protocols (Oxford, Oxford University Press, 2007)CrossRefGoogle Scholar. For an overview of the background to and negotiating history of the Convention, see also Vlassis, D, ‘Drafting the United Nations Convention against Transnational Organized Crime’ in Williams, P and Vlassis, D (eds), Combating Transnational Crime. Concepts, Activities and Responses (London and Portland, Ore, Frank Cass, 2001) 356 Google Scholar.
21 Rijken, C and Kronenberger, V, ‘The United Nations Convention against Transnational Organised Crime and the European Union’ in Kronenberger, V (ed), The European Union and the International Legal Order: Discord or Harmony? (The Hague, TMC Asser Press, 2001) 481, 493–94CrossRefGoogle Scholar. The authors argue that during the negotiation process, the Member States never gave full competence to the Presidency to negotiate the UN Convention on their behalf.
22 Joint Position of 29 March 1999 defined by the Council on the basis of Art K.3 of the Treaty on European Union, on the proposed United Nations convention against organised crime, [1999] OJ L87/1.
23 See, for instance, the conclusions of the Telecommunications Council of 2 May 2000 (Doc no 8058/00, Presse 127-G), according to which ‘the Council authorised the Commission to negotiate on behalf of the Community the draft UNTOC with regard to measures against money laundering, one of the main strands of the Convention, which fall within the scope of the Community’s powers, taking the provisions of the 1991 money laundering Directive as a basis’.
24 Council Common Position of 31 January 2000 on the proposed protocol against the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition, [2000] OJ L37/1, adopted on the basis of the TEU, and in particular Art 34(2)(a).
25 See the conclusions of the ECOFIN Council of 31 January 2000 (Doc no 5565/00, Presse 19-G), according to which ‘the Council adopted a decision authorising the Commission to participate, on behalf of the European Union, in the negotiation of the draft protocol to the UNTOC to combat the illegal trafficking in and the manufacture of firearms, their parts, components and ammunition’. The reference to the Commission negotiating on behalf of the European Union – rather than the European Community – is noteworthy in this context.
26 Preamble, recital 8.
27 Preamble, recital 5. For an overview of the Action Plan, see Gilmore, WC, ‘The EU Action Plan to Combat Organised Crime: The Scope and Implementation of Legal Instruments’, in The Boundaries of Understanding. Essays in Honour of Malcolm Anderson (Edinburgh, University of Edinburgh International Social Sciences Institute, 1999) 97 Google Scholar.
28 [1998] OJ L351/1. For an analysis, see Mitsilegas, V, ‘Defining Organised Crime in the European Union: The Limits of European Criminal Law in an Area of Freedom, Security and Justice’ (2001) 26 EL Rev 565 Google Scholar.
29 Art 1(2). The Joint Position also called for consistency between the Convention and the 1998 EU Joint Action on confiscation—see Art 1(6).
30 Art 1(3) of the Joint Position states: ‘Insofar as the other provisions of the draft convention are concerned, it should apply as broadly as possible to the activities of criminal organisations and to international cooperation for combating such organisations. In principle, the relevant provisions of the draft convention should encompass the activities of persons, acting in concert with a view to committing serious crime, involved in any criminal organisation which has a structure and is, or has been, established for a certain period of time. They should not be limited to groups with a highly developed structure or enduring nature, such as mafia type organisations; and the organisations need not necessarily have formally defined roles for their participants or continuity of membership.’
31 See Art 2 of the Joint Position, according to which ‘in the negotiations on the proposed United Nations convention and any possible protocols, Member States shall, as far as is practicable, coordinate their positions, at the Presidency’s initiative, and seek to arrive at common standpoints on all issues which have significant implications for the interests of the Union’. See also Art 3, calling upon Member States to ensure that the provisions of the proposed United Nations convention and any possible protocols are not inconsistent with instruments drawn up between them.
32 Rijken and Kronenberger, above n 21, 494.
33 Council Decision of 8 December 2000 on the signing, on behalf of the European Community, of the United Nations Convention against transnational organised crime and its Protocols, [2001] OJ L30/44. The legal bases for the Decision were Art 47 EC (now Art 53 TFEU) (free movement/right of establishment), Art 62(2)(a) EC (now Art 77(2)(a) TFEU) (border controls), Art 63 EC, first subpara (3)(b) (now found in Art 78 TFEU) (illegal immigration and illegal residence) and Art 95 EC (now replaced by Art 114 TFEU) (internal market) (in conjunction with Art 300(2) EC (now replaced by Art 218 TFEU)). The Decision confirms that ‘the elements of the Convention and the two Protocols thereto which are subject to Community competence were negotiated by the Commission, with the approval of the Council, on behalf of the Community’ (Preamble, recital 1).
34 Council Decision of 16 October 2001 on the signing, on behalf of the European Community, of the United Nations Protocol on the illicit manufacturing of and trafficking in firearms, [2001] OJ L280/5. The legal bases for the Decision were Art 95 EC (now replaced by Art 114 TFEU) (internal market) and Art 133 EC (now replaced by Art 207 TFEU) (common commercial policy) (in conjunction with Art 300(2) EC (now replaced by Art 218 TFEU)). As with the Decision on the signature of the Convention, this Decision confirms the negotiation by the Commission of matters of the Protocol falling within Community competence (Preamble, recital 1).
35 Council Decision of 29 April 2004 on the conclusion, on behalf of the European Community, of the United Nations Convention Against Transnational Organised Crime, [2004] OJ L261/69.
36 Annex II – Declaration of competence in accordance with Article 36(3) of the Convention.
37 Money laundering.
38 Corruption.
39 Prevention of the misuse by organised criminal groups of tender procedures conducted by public authorities and of subsidies and licences granted by public authorities for commercial activity.
40 Implementation of the Convention through Economic Development and Technical Assistance.
41 ‘The scope and the exercise of Community competence are, by their nature, subject to continuous development and the Community will complete or amend this declaration, if necessary, in accordance with Article 36(3) of the Convention.’
42 Art 9(1) of the Convention calls upon State Parties to ‘adopt legislative, administrative or other effective measures to promote integrity and to prevent, detect and punish the corruption of public officials’. Art 7(4) of the Convention calls for ‘global, regional, subregional and bilateral cooperation among judicial, law enforcement and financial regulatory authorities in order to combat money laundering’. To the extent that this provision refers to Financial Intelligence Units, it must be noted that relevant provisions have since appeared in the (First Pillar) 2005 third money laundering Directive (for an analysis of the constitutional implications of this inclusion, see Mitsilegas and Gilmore, above n 16).
43 The Community has not yet concluded the Firearms Protocol. This is due to the need to wait for the implementation of relevant EC legislation by Member States. According to the Commission, the earliest the Protocol can be concluded is 2010—see Report on Implementation of the Hague Programme for 2007, COM(2008) 373 final, Brussels, 2 July 2008.
44 Arts 179 and 181a TEC respectively (now replaced by Arts 209 and 211a TFEU). See Council Decision of 24 July 2006 on the conclusion, on behalf of the European Community, of the Protocol to prevent, Suppress and Punish Trafficking in Persons … in so far as the provisions of this Protocol fall within the scope of Articles 179 and 181a of the EC Treaty, [2006] OJ L262/44; and Council Decision of 24 July 2006 on the conclusion, on behalf of the European Community, of the Protocol Against the Smuggling of Migrants … in so far as the provisions of this Protocol fall within the scope of Articles 179 and 181a of the EC Treaty, [2006] OJ L262/24.
45 Council Decision of 24 July 2006 on the conclusion, on behalf of the European Community, of the Protocol to prevent, Suppress and Punish Trafficking in Persons … in so far as the provisions of this Protocol fall within the scope of Part III, Title IV of the EC Treaty, [2006] OJ L262/51; and Council Decision of 24 July 2006 on the conclusion, on behalf of the European Community, of the Protocol Against the Smuggling of Migrants … in so far as the provisions of this Protocol fall within the scope of Part III, Title IV of the EC Treaty, [2006] OJ L262/34.
46 According to the Declaration, in these fields the Community has adopted rules and regulations; and where it has done so, it is hence solely for the Community to enter into external undertakings with third States or competent international organisations.
47 A general clause common to all four Decisions states that they will apply in so far as the provisions of the Protocols fall within the scope of their respective legal bases (see, eg, Art 2 of the Decision on the conclusion of the trafficking Protocol on a Title IV legal basis).
48 The Community has since adopted (still in the pre-Lisbon era), a First Pillar Directive including criminal law provisions in the field of Title IV (on illegal work) ([2009] OJ L168/24). Union competence to adopt criminal offences and sanctions is established in Arts 83(1) and (2) TFEU post-Lisbon.
49 Arts 2 and 5 respectively.
50 [1998] OJ L351/1.
51 For a discussion, see Mitsilegas, above n 28, 571–72.
52 See McClean, above n 20, 67. Commenting on the implementation of Art 5, he notes: ‘The statute books of the common law countries which have ratified the Convention will be searched in vain for crimes defined as set out in this Article. As has been clear from the beginning, the offences of conspiracy, soliciting, and other forms of participation in criminal conduct more than adequately cover the field described in the text of the Article.’
53 Art 5(1)(b).
54 COM(2005) 6, Proposal for a Framework Decision on the fight against organised crime.
55 See Mitsilegas, V, ‘The Third Wave of Third Pillar Law: Which Direction for EU Criminal Justice?’ (2009) 34 EL Rev 523 Google Scholar.
56 Framework Decision 2008/841/JHA on the fight against organised crime, [2008] OJ L300/42.
57 Preamble recital 6.
58 See Mitsilegas, V, ‘The EU and the Implementation of International Norms in Criminal Matters’ in Cremona, M, Monar, J and Poli, S (eds), The External Dimension of the Area of Freedom, Security and Justice (Brussels, Bern, Berlin, Frankfurt am Main, New York, Oxford, Vienna, Peter Lang Publishers, forthcoming)Google Scholar.
59 Note in this context the Maastricht Joint Action 97/154/JHA concerning action to combat trafficking in human beings and sexual exploitation of children, [1997] OJ L63/2. However, the scope of the Joint Action was rather limited, with the focus being largely on trafficking for the purposes of sexual exploitation.
60 Council Framework Decision of 19 July 2002 on combating trafficking in human beings, [2002] OJ 203/1.
61 See Preamble, recitals 4 (referring to the Palermo Protocol as ‘a decisive step towards international cooperation in the field) and 6 (referring to the need for the EU to complement work done in international fora, in particular the UN). A similar reference, indicating awareness of, but not overt deference to, the relevant UN standards, can be found in the Preamble to a 2004 First Pillar Directive on residence permits for victims of trafficking who cooperate with essentially law enforcement authorities, [2004] OJ L261/19, recital 3. The Directive (adopted under a Title IV legal basis) is largely drafted from the perspective of the efficiency of State action against traffickers, with the protective spirit permeating the Palermo trafficking Protocol (in particular Art 6 therein) as regards victims being hardly discernible in the EC instrument.
62 The offence includes trafficking for the purpose of labour exploitation. A notable omission from the EU text is trafficking for the purpose of removal of organs. A proposal tabled in 2003 by the then Greek EU Presidency to criminalise the trade in human organs has been blocked in the Council. See Mitsilegas, V, The Coherence of the Adopted Measures During the Last Years by the EU with Regard to Organised Crime and the UN Convention on Organised Crime, Briefing Paper for the European Parliament LIBE Committee, 2006, reproduced in Bigo, D and Tsoukala, A (eds), Controlling Security (Paris, L’Harmattan, 2008) 65–76 Google Scholar.
63 [2002] OJ L328/17.
64 [2002] OJ L328/1. This ‘dual’ approach was adopted in order to address Member States’ concerns with regard to the extent of Community competence to adopt criminal law in the field—for an overview of the constitutional debate in this context, see Mitsilegas, above n 2, ch 2.
65 The disassociation of the financial gain element from the facilitation offence for the purposes of entry and transit raised concerns among humanitarian NGOs, who felt that they would be prosecuted for assisting third-country nationals, including asylum seekers, to enter the EU. For that reason, and after protracted negotiations, a clause was added in the Directive granting Member States the discretion not to impose sanctions where the aim of the behaviour is to pro vide humanitarian assistance to the person concerned. See Mitsilegas, V, Monar, J and Rees, W, The European Union and Internal Security (London, Palgrave Macmillan, 2003) 106–08CrossRefGoogle Scholar.
66 The UN smuggling Protocol also contains provisions on ensuring the safety and humane treatment of smuggled persons who are intercepted at sea, and a series of detailed provisions on prevention, elements which are absent from the EC/EU documents—see Mitsilegas, above n 62.
67 For an overview, see Webb, P, ‘The United Nations Convention against Corruption. Global Achievement or Missed Opportunity?’ (2005) 8 Journal of International Economic Law 191–229 CrossRefGoogle Scholar.
68 [2008] OJ L287/1.
69 Preamble, recital 1.
70 The legal bases of the Decision were: Art 47(2) EC (now Art 53(2) TFEU) (free movement/right of establishment), Art 57(2) EC (now Art 64(2) TFEU) (free movement of capital), Art 95 EC (now Art 114 TFEU) (internal market), Art 107(5) EC (now Art 129(5) TFEU) (monetary policy, ESCB), Art 179 EC (now replaced by Art 209 TFEU) (development cooperation), Art 181a EC (now replaced by Arts 212–214 TFEU) (economic, financial and technical cooperation with third countries), Art 190(5) EC (now Art 223 TFEU) (European Parliament), Art 195(4) EC (now Art 228(4) TFEU) (Ombudsman), Art 199 EC (now Art 232 TFEU) (European Parliament rules of procedure), Art 207(3) EC (now Art 240(3) TFEU) (Council rules of procedure), Art 218(2) EC (now Art 249 TFEU) (Commission rules of procedure), Art 279 EC (now Arts 322–324 TFEU) (Council financial regulations), Art 280 EC (now Art 325 TFEU) (fraud against EC financial interests) and Art 283 EC (now Art 336 TFEU) (staff regulations of officials).
71 Initiative of the Kingdom of Belgium for the adoption by the Council of a draft Common Position defined by the Council on negotiations within the United Nations to draw up a United Nations Convention against Corruption, Doc no 12837/2/01 REV 2, Brussels, 30 October 2003. The draft Common Position was approved by the Article 36 Committee at its meeting of 12 and 13 November 2001, and Coreper was invited to recommend to the Council its adoption—Doc no 14114/01, Brussels, 19 November 2001.
72 According to Art 2, the Convention should cover inter alia active and passive corruption in the private sector, and apply to corruption both of national officials and of foreign officials, and include corruption of international officials; it should also cover the criminalisation of the laundering of proceeds of corruption and seizure/confiscation matters; active and passive corruption in the private sector, trading in influence and accounting offences should also form part of the negotiations.
73 Art 2(3).
74 Particularly for the provisions on laundering, seizure and confiscation of the proceeds of cor ruption, for the provisions on sanctions, the protection of witnesses, assistance and protection of victims, the liability of legal persons and jurisdiction, and for the provisions designed to improve international cooperation in criminal matters (Art 2(5)). See also the EU Presidency Statement of 21 January 2002 on the UN Convention against corruption, in particular paras 9–12, available at <http://www.europa-eu-un.org/articles/en/article_1081_en.htm>, accessed 4 July 2010.
75 Art 4.
76 Art 5.
77 Art 7.
78 Draft second Common Position defined by the Council on the basis of Article 34(2)(a) of the Treaty on European Union on negotiations within the United Nations to draw up a United Nations Convention against Corruption, Doc no 8897/4/02 REV 4, Brussels, 30 October 2003. The draft Common Position was approved by the Article 36 Committee at its meeting of 20 and 21 May 2002 and Coreper was invited to recommend to the Council its adoption—Doc no 9375/02, Brussels, 29 May 2002.
79 Art 5.
80 Art 6.
81 Initiative of the Kingdom of Denmark concerning the adoption by the Council of a draft third Common Position defined by the Council on the basis of Article 34(2)(a) of the Treaty on European Union on negotiations within the United Nations to draw up a United Nations Convention against Corruption, Doc no 12215/2/02 REV 2, Brussels, 30 October 2003. The draft Common Position was approved after some amendments by Coreper at its meeting of 25 September 2002 and the Council was invited to adopt it—Doc no 12329/02, Brussels, 25 September 2002.
82 See Arts 2 and 3 respectively. The same approach was followed with regard to the criminalisation of money laundering (which, according to Art 8, should be compatible with Art 6 of the Palermo Convention) and corruption in the private sector (which should be compatible with Arts 7 and 8 of the Council of Europe Convention). It is noteworthy that compatibility is requested here with international and not EU standards in the field.
83 Art 6.
84 Art 15.
85 Art 16.
86 Article 17.
87 See the Protocol to the EU fraud Convention, [1996] OJ C313/2, and the EU Convention against corruption involving officials of the European Communities or officials of the Member States of the European Union, [1997] OJ C195/2.
88 The EU instruments refer to ‘corruption’, whereas the UN Convention refers to ‘bribery’. The terms will be used interchangeably for the purposes of this chapter.
89 Art 18.
90 Art 19.
91 Art 20.
92 Art 21.
93 Art 22.
94 Similarly, the Convention provisions on judicial cooperation in criminal matters appear to address EU concerns, as they are drafted in very general terms.
95 Webb, above n 67, 213–14.
96 Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector, [2003] OJ L192/54.
97 See the Commission Report on the implementation of the Framework Decision on corruption in the private sector, COM(2007) 328 final, Brussels, 18 June 2007.
98 For the emphasis on action in international fora, see, eg, the Commission Communication On a Comprehensive EU Policy Against Corruption, COM(2003) 317 final, Brussels, 28 May 2003.
99 For details see Mitsilegas, V, ‘The EU and the Rest of the World: Criminal Law and Policy Interconnections’ in Evans, M and Koutrakos, P (eds), Beyond the Established Orders: Policy Interconnections between the EU and the Rest of the World (Oxford, Hart Publishing, forthcoming)Google Scholar.
100 See the 2009 Progress Reports of the same day on Montenegro (SEC(2009) 1336); Serbia (SEC(2009) 1339); Bosnia and Herzegovina (SEC(2009) 1338); and Albania (where the need to comply with FATF standards is also highlighted—SEC(2009) 1337).
101 For details, see V Mitsilegas, above n 58.
102 Framework Decision 2008/919/JHA amending the 2002 Framework Decision on combating terrorism, [2008] OJ L330/21.
103 Council of Europe Convention on the Prevention of Terrorism CETS No196.
104 Framework Decision 2002/475/JHA on combating terrorism, [2002] OJ L164/3 (‘the 2002 Framework Decision’).
105 Framework Decision 2002/475/JHA, Art 1(1) criminalises as terrorist offences which, given their nature or context, may seriously damage a country or an international organisation where committed with the aim of: seriously intimidating a population, or unduly compelling a government or international organisation to perform or abstain from performing any act, or seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.
106 For a discussion, see Hunt, A, ‘The Council of Europe Convention on the Prevention of Terrorism’ (2006) 12 European Public Law 613 Google Scholar.
107 For further discussion of this Framework Decision, see Mitsilegas, above n 55.
108 Hunt, above n 106, 606–07.
109 See also para 11 of the Explanatory Memorandum to the Convention.
110 The Commission provided a similar justification when tabling recently a proposal to amend the EU Framework Decision on trafficking in human beings: the advantages of an EU approach were deemed to be related to the stronger bond created by the EU legal order, namely the immediate entering into force, and the monitoring and implementation: see COM(2009) 136 final 7.
111 Justice and Home Affairs Council Conclusions of December 6–7, 2007, Doc no 15966/07, Presse 275, 21. The integration of the Convention standards in the Union legal order has also been justified on the ground that the Framework Decision would ‘trigger’ the implementation of cooperation mechanisms under Union law, in particular as regards the exchange of information on terrorist offences between Member States and the transfer of such information to Europol and Eurojust. See comment by Tony McNulty, then a Home Office Minister, to the House of Commons European Scrutiny Committee, 26th Report (session 2007–08), para 26.3.
112 The inclusion of disconnection clauses has been standard practice with regard to Council of Europe Conventions, in particular as regards recent Conventions in criminal matters. For an overview and typology of disconnection clauses used by the Community/Union in Council of Europe Conventions, see International Law Commission, Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission (finalised by M Koskenniemi), UN General Assembly doc A/CN.4/L.682, 13 April 2006, paras 289–94.
113 See also the Declaration of Community competence annexed to the Convention, which reads as follows: ‘The European Community/European Union and its Member States reaffirm that their objective in requesting the inclusion of a “disconnection clause” is to take account of the institutional structure of the Union when acceding to international conventions, in particular in case of transfer of sovereign powers from the Member States to the Community. This clause is not aimed at reducing the rights or increasing the obligations of a non-European Union Party vis-à-vis the European Community/European Union and its Member States, inasmuch as the latter are also parties to this Convention. The disconnection clause is necessary for those parts of the Convention which fall within the competence of the Community/Union, in order to indicate that European Union Member States cannot invoke and apply the rights and obligations deriving from the Convention directly among themselves (or between themselves and the European Community/Union). This does not detract from the fact that the Convention applies fully between the European Community/European Union and its Member States on the one hand, and the other Parties to the Convention on the other; the Community and the European Union Member States will be bound by the Convention and will apply it like any Party to the Convention, if necessary, through Community/Union legislation. They will thus guarantee the full respect of the Convention’s provisions vis-à-vis non-European Union Parties.’
114 For a categorisation of disconnection clauses as ‘acquis-saving clauses’ see J Klabbers, ‘Safeguarding the Organizational Acquis: The EU’s External Practice’ (2007) International Organizations Law Review 57, 70–71.
115 See in this context the criticism that disconnection clauses are quite ‘open’ and subject to change—International Law Commission, above n 112, para 293. In this context, they are however similar to the Declarations of Community competence attached to the UN Conventions discussed in section II. of this chapter. However, the latter are also relevant for the determination of competence at Union level.
116 For a discussion of disconnection clauses in the context of primacy in the First Pillar, see Cremona, M, ‘Defending the Community Interest: the Duties of Cooperation and Compliance’, in Cremona, M and Witte, B de (eds), EU Foreign Relations Law: Constitutional Fundamentals (Oxford and Portland, Ore, Hart, 2008) 142–43Google Scholar.
117 See International Law Commission, above n 112, para 294.
118 According to the Deputy Secretary General of the Council of Europe, speaking in the context of the new EU proposals on trafficking in human beings and their relationship with the relevant Council of Europe Convention in the field (which also contains a disconnection clause): ‘If EU legislation does not go as far as our Convention, for instance, as regards the 30 days recovery and reflection period, and if one applies the disconnection clause, we will find ourselves in a paradoxical situation of having two regimes applicable under the same Convention and a lower standard as compared to other parts of Europe.’ Speech by M de Boer-Buquicchio, Hearing on Human Trafficking, ‘Who is fighting trafficking—who is not?’, European Parliament, Brussels, 8 October 2008.
119 See in this context the aforementioned Report by the International Law Commission, above n 112, which examined disconnection clauses in the context of the fragmentation of international law. But see also the view of Klabbers, who notes that ‘it is, indeed, no coincidence that the most ardent critics of the disconnection clause have to resort to systemic arguments (risk of increased fragmentation, undermining legal equality) rather than any concrete and enforceable legal norm’: Klabbers, J, Treaty Conflict and the European Union (Cambridge, Cambridge University Press, 2009) 222 Google Scholar.
120 Although it is significant that disconnection clauses in Council of Europe instruments dealing with criminal law have perhaps been the closest we have come to safeguarding the primacy of Union (and not Community) law in the pre-Lisbon era.
121 Kingsbury, B, Krisch, N and Stewart, RB, ‘The Emergence of Global Administrative Law’ (2004–05) 68 Law and Contemporary Problems 15 Google Scholar.
122 Ibid, 16.
123 Slaughter, A-M, ‘Sovereignty and Power in a Networked World Order’ (2004) 40 Stanford Journal of International Law 283 Google Scholar.
124 Ibid, 315.
125 Ibid, 317–18
126 Slaughter, A-M, A New World Order (Princeton, Princeton University Press, 2004) 168ffGoogle Scholar.
127 See in this context Kingsbury, B ‘The Concept of “Law” in Global Administrative Law’ (2009) 20 EJIL 23 CrossRefGoogle Scholar and Somek, A ‘The Concept of “Law” in Global Adminstrative Law: A Reply to Benedict Kingsbury’ (2009) 20 EJIL 985 CrossRefGoogle Scholar.
128 Para 8(c).
129 In the meantime, UN Security Council Resolution 1363 (2001) had established a mechanism to monitor the implementation of UN Security Council Resolutions 1267 and 1333.
130 Para 8.
131 See in this context inter alia UN Security Resolution 1452 (2002) amending the scope of the sanctions of UN Security Council Resolutions 1267 and 1390; and UN Security Council Resolutions 1735 (2006), 1822 (2008) and 1904 (2009) introducing in particular changes in the procedures of the Sanctions Committee.
132 Para 1(a)–(c).
133 Para 2(e).
134 Para 3(d).
135 See in particular Talmon, S, ‘The Security Council as World Legislature’ (2005) 99 AJIL 175 CrossRefGoogle Scholar; Alvarez, JE, ‘Hegemonic International Law Revisited’ (2003) 97 AJIL 873 CrossRefGoogle Scholar.
136 Talmon, above n 135, 176–77.
137 Alvarez, above n 135, 874.
138 Johnstone, I, ‘Legislation and Adjudication in the UN Security Council: Bringing Down the Deliberative Deficit’ (2008) 102 AJIL 275 CrossRefGoogle Scholar, 283.
139 See in particular Talmon, above n 135, 190.
140 See ibid, 187, and the detailed analysis of Johnstone, above n 138, 284.
141 Talmon, above n 135, 179.
142 Alvarez, above n 135, 874–75. Alvarez examines in detail the US influence in the passage of the Security Council Resolutions. See also Johnstone, above n 138, 300, who points out that multilateral treaty negotiations tend to balance global concerns, leading to trade-offs and bargains that account for a wider range of interests than typically come out of Security Council negotiations.
143 See in this context the criticism of Alvarez, above n 135, 875, who notes that ‘In Resolution 1373 the Council selected certain provisions of the then recently concluded International Convention for the Suppression of the Financing of Terrorism, added to others, and omitted other portions of the Convention (such as the explicit deference to other requirements of international law, including the rights due persons charged with terrorism-related offences, the rights of extradited persons, the requisites of international humanitarian law, and the provisions on judicial dispute settlement)’.
144 See in this context in particular Szasz, PC, ‘The Security Council Starts Legislating’ (2002) 96 AJIL 901 CrossRefGoogle Scholar; Johnstone, above n 138, 295.
145 (1999/727/CFSP), [1999] OJ L294/1.
146 Preamble, recital 2.
147 Art 1.
148 Art 2.
149 [2000] OJ L43/1.
150 Preamble, recital 3.
151 Art 3.
152 Council Common Position of 26 February 2001 concerning additional restrictive measures against the Taliban and amending Common Position 96/746/CFSP (2001/154/CFSP), [2001] OJ L57/1.
153 Council Regulation 467/2001/EC of 6 March 2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan and repealing Regulation 337/2000/EC, [2001] OJ L67/1.
154 According to recital 3, UN Security Council Resolution 1333 (as with its predecessor 1267) fell under the scope of the Treaty and, therefore, notably with a view to avoiding distortion of competition, Community legislation was necessary to implement the relevant decisions of the Security Council, as far as the territory of the Community is concerned.
155 Council Common Position of 27 May 2002 concerning restrictive measures against Usama bin Laden, members of the Al-Qaida organisation and the Taliban and other individuals, groups, undertakings and entities associated with them and repealing Common Positions 96/746/CFSP, 1999/727/CFSP, 2001/154/CFSP and 2001/771/CFSP (2002/402/CFSP), [2002] OJ L139/4.
156 Council Regulation 881/2002/EC of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban, and repealing Council Regulation 467/2001/EC, [2002] OJ L139/9. As with the earlier Regulations, the avoidance of the distortion of competition was evoked as necessitating Community implementation of the relevant Security Council measures—Preamble, recital 4.
157 See M Cremona, ‘EC Competence, ‘Smart Sanctions’ and the Kadi Case’ 28 Yearbook of European Law 2009 559, 569. Cremona explains in detail the evolution of the interpretation of Arts 60(1) and 301 EC in Community legislation prior to the adoption of the Regulations in question. She notes that although neither of these provisions expressly mentions individuals, referring rather to ‘economic relations with one or more third countries’, the concept has been broadly interpreted, in the first place to allow for targeted sanctions against natural and legal persons who are connected to a government or regime—the aim being to put pressure on a third State by taking measures against those people or entities who are either part of the government or closely connected with it (ibid, 567–68).
158 It is noteworthy that the Preamble to Regulation 881/2002 also contains references to UN Security Council Resolution 1373, which extends the scope of economic sanctions beyond the Taliban—recital 3.
159 See in particular Arts 2, 4 and 6 of the Regulation.
160 Council Common Position 2003/140/CFSP of 27 February 2003 concerning exceptions to the restrictive measures imposed by Common Position 2002/402/CFSP, [2003] OJ L53/62; Council Regulation 561/2003/EC of 27 March 2003 amending, as regards exceptions to the freezing of funds and economic resources, Regulation 881/2002/EC, [2003] OJ L82/1.
161 The latest at the time of writing: Commission Regulation (EU) no 110/2010 of 5 February 2010 amending for the 120th time Council Regulation 881/2002/EC imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, [2010] OJ L36/9.
162 Council Common Position of 27 December 2001 on combating terrorism (2001/930/ CFSP), [2001] OJ L344/90. Along with general provisions on the freezing of funds and refraining from making funds available for terrorism, the Common Position calls inter alia for the criminalisation of terrorist finance (Art 1, elements of the definition being copied from UN Security Council Resolution 1373), the suppression of support for terrorism (Art 4), preven tion (Art 5) and bringing persons who participate in the financing, planning, preparation or perpetration of terrorist acts to justice (Art 8). The Common Position further calls upon Member States to become parties as soon as possible to the relevant international conventions and protocols relating to terrorism listed in the annex to the Common Position (including the 1999 Terrorist Finance Convention—Art 14).
163 Council Common Position of 27 December 2001 on the application of specific measures to combat terrorism (2001/931/CFSP), [2001] OJ L344/93.
164 Council Regulation 2580/2001/EC of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, [2001] OJ L344/70.
165 Recital 3.
166 For a categorisation and overview of the various strands of the Community sanctions regime, see Eckes, C, EU Counter-Terrorist Policies and Fundamental Rights. The Case of Individual Sanctions (Oxford, Oxford University Press, 2009)CrossRefGoogle Scholar.
167 For the latest at the time of writing, see Council Decision 2009/1004/CFSP of 22 December 2009 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, [2009] OJ L346/58.
168 See the discussion on the third anti-money laundering Directive above.
169 See Art 2(1) thereof.
170 In the case of M and Others, the Court of Justice found that the different language versions of Regulation 881/2002 varied significantly with regard to the scope of the obligation not to make funds available to parties listed by the Sanctions Committee: see Case C-340/08 The Queen on the application of M and Others v Her Majesty’s Treasury, 29 April 2010, nyr.
171 For further discussion of the competence question in this context, see section V. below.
172 The first EC Money Laundering Directive was adopted in 1991 under a joint free movement/internal market legal basis (then Arts 57(2) and 100a EC, now Arts 53(1) and 114 TFEU), although the main purpose of the instrument was arguably to fight crime and not to protect the integrity of the financial system; for a discussion see Mitsilegas, V, Money Laundering Counter-Measures in the European Union (The Hague, Kluwer Law International, 2003)Google Scholar ch 3.
173 The same free movement/internal market legal bases were used post-Maastricht (and notwithstanding the insertion of the pillars in the Union legal order) to adopt in 2001 the second and in 2005 the third Money Laundering Directive, which extended the scope of the instrument to also cover terrorist finance (legal bases then Art 47(2) EC (now Art 53(2) TFEU) and Art 95 EC (now Art 114 TFEU)).
174 See Art 4 of Common Position 2001/931/CFSP, [2009] OJ L346/58.
175 The Court of Justice addressed these limits to judicial protection in its rulings in Case C-354/04, Gestoras Pro Amnistia and Others v Council [2007] ECR I-1579 and Case C-355/04 P Segi and Others v Council [2007] ECR I-1657. For an analysis see Nettesheim, M, ‘UN Sanctions Against Individuals – A Challenge to the Architecture of European Union Governance’ (2007) 44 CML Rev 567 Google Scholar; Peers, S, ‘Salvation Outside the Church: Judicial Protection in the Third Pillar after the Pupino and Segi Judgments’ (2007) 44 CML Rev 883 Google Scholar; and Eckes, above n 166.
176 For a detailed analysis of the role and work of the FATF, see Gilmore, above n 4, chs 4–6. Gilmore, ibid, 92, characterises the FATF as an ‘ad hoc grouping of governments and others with a complex but highly focused agenda’.
177 As Gilmore, ibid, 89, explains, the original mandate was’to assess the results of cooperation already undertaken in order to prevent the utilisation of the banking system and financial institutions for the purpose of money laundering, and to consider additional preventive efforts in this field, including the adaptation of the legal and regulatory systems so as to enhance multilateral judicial assistance’.
178 For the latest mandate at the time of writing, see FATF, FATF Revised Mandate 2008–2012, 12 April 2008, available at the FATF website, <http://www.fatf-gafi.org>, accessed 4 July 2010.
179 Gilmore, above n 4, 89, notes that in addition to the participants in the G7 summit establishing the FATF (Canada, France, Germany, Italy, Japan, United Kingdom, United States and the Commission) eight other States (Australia, Austria, Belgium, Luxembourg, The Netherlands, Spain, Sweden and Switzerland) were invited to take part.
180 The current membership criteria include, along with compliance with FATF standards, ‘strategic importance’: see FATF, FATF Membership Policy, 29 February 2008, available from the FATF website, <http://www.fatf-gafi.org>, accessed 4 July 2010.
181 See FATF, FATF Members and Observers, available at <http://www.fatfgafi.org/document/52/0,3343,en_32250379_32237295_34027188_1_1_1_1,1>, accessed 4 July 2010. MONEYVAL membership has been key in the context of the accession process leading to the enlargements of the European Union in 2004 and 2007: see Mitsilegas, above n 58.
182 Directive 2001/97/EC of the European Parliament and of the Council of 4 December 2001 amending Council Directive 91/308/EEC on prevention of the use of the financial system for the purpose of money laundering, [2001] OJ L344/76.
183 COM(1999) 352 final, Brussels, 14 July 1999, 3: ‘Just as the 1991 Directive moved ahead of the original FATF 40 Recommendations in requiring obligatory suspicious transaction reporting, the European Union should continue to impose a high standard on its Member States, giving effect to or even going beyond the 1996 update of the FATF 40 Recommendations. In particular the EU can show the way in seeking to involve certain professions more actively in the fight against money laundering alongside the financial sector.’
184 Recital 7.
185 Recital 14.
186 Human rights concerns with regard to fair trial rights by the European Parliament have led to negotiations on the Directive being extended to the Conciliation stage—agreement was reached after the Directive was packaged as an emergency counter-terrorism measure in the weeks after 9/11. For an overview, see Mitsilegas, above n 58. The impact of the Directive provisions on the position of lawyers has been the subject of litigation in Luxembourg—see section V. below.
187 Directive 2005/60/EC of the European Parliament and the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, [2005] OJ L309/15.
188 According to the Preamble, recital 5: ‘Money laundering and terrorist financing are frequently carried out in an international context. Measures adopted solely at national or even Community level, without taking account of international coordination and cooperation, would have very limited effects. The measures adopted by the Community in this field should therefore be consistent with other action undertaken in other international fora . The Community action should continue to take particular account of the Recommendations of the Financial Action Task Force … which constitutes the foremost international body active in the fight against money laundering and terrorist financing. Since the FATF Recommendations were substantially revised and expanded in 2003, this Directive should be in line with the new international standard.’
189 For further details, and an overview of the third money laundering Directive, see Mitsilegas and Gilmore, above n 16
190 See recitals 4 and 5 of the Preamble to the Regulation. Recital 4 states that ‘Account should also be taken of complementary activities carried out in international fora, in particular those of the Financial Action task Force on Money Laundering … Special Recommendation IX of 22 October 2004 of the FATF calls on governments to take measures to detect physical cash movements, including a declaration system or other disclosure obligation’.
191 Regulation 1889/2005/EC of the European Parliament and of the Council of 26 October 2005 on controls of cash entering the Community, [2005] OJ L309/9.
192 Regulation 1781/2006/EC of the European Parliament and of the Council of 15 November 2006 on information on the payer accompanying transfers of funds, [2006] OJ L345/1.
193 According to the Preamble, recital 2: ‘In order to facilitate their criminal activities, money launderers and terrorist financiers could try to take advantage of the freedom of capital movements entailed by the integrated financial area, unless certain coordinating measures are adopted at Community level. By its scale, Community action should ensure that Special Recommendation VII on wire transfers (SR VII) of the Financial Action Task Force … is transposed uniformly throughout the European Union, and, in particular, that there is no discrimination between national payments within a Member State and cross-border payments between Member States …’
194 [2007] OJ L319/1.
195 See Doc no 8864/1/09 REV 1, Brussels, 5 May 2009.
196 For further details and an evaluation in the light of the FATF standards, see Mitsilegas and Gilmore, above n 16, 130.
197 Ibid.
198 According to the Report on the implementation of the revised Strategy on Terrorist Financing (Doc no 8864/1/09 REV 1, Brussels, 5 May 2009, 2): ‘After almost 2 years of discussion, a global agreement on an amended FATF methodology on FATF Special Recommendation IX on cash controls at the borders was reached at the February 2009 meeting in Paris. This agreement acknowledges the specificity of the EU as one jurisdiction and the possibility for it to be compliant with SR IX without (re)introducing controls at Member States’ internal borders.’
199 For an approach including FATF within the so-called ‘Global Administrative Law’ model, see Kingsbury et al, above n 121. For thoughts on the issues of transparency and accountability, which are relevant in the context of the FATF, see also Cohen, J and Sabel, CF, ‘Global Democracy?’(2004–2005) 37 NYU Journal of International Law and Policy 763 Google Scholar, 764, who note that ‘to a substantial and growing extent, then, rulemaking directly affecting the freedom of action of individuals, firms, and nation states (and the making of the rules to regulate this rulemaking) is taking place, undemocratically but not entirely unaccountably, in global settings created by the world’s nations but no longer under their effective control’.
200 On various aspects of what I call the ‘depoliticisation’ in the development of global standards, see: A Somek, Administration without Sovereignty, University of Iowa Legal Studies Research Paper 09-04, January 2009, 17 (noting that ‘where “problem-solving” serves as the preferred descriptor of an activity, ideological conflict does not enter the picture. Problem-solving is the antithesis of political struggle’); Klabbers, J, ‘Institutional Ambivalence by Design: Soft Organizations in International Law’ (2001) 70 Nordic Journal of International Law 403, 417Google Scholar (noting that ‘the facility of doing business without being side-tracked or controlled, dovetails neatly with our late-modern (or post-modern) infatuation for management and technocracy as viable substitutes for politics’); and Kennedy, D, ‘Challenging Expert Rule: The Politics of Global Governance’ (2005) 27 Sydney Law Review 5–28 Google Scholar (writing inter alia about ‘the expert consensus’). For a more positive view, see A-M Slaughter, above n 126. Slaughter views the FATF typologies as ‘important opportunities for operational experts to identify and describe current money laundering trends and effective countermeasures’ and stresses the benefits of professional socialisation (ibid, 54). Slaughter promotes the advantages of what she calls ‘government networks’, marrying hard and soft power, and using information, persuasion and socialisation (ibid, 168ff).
201 Kennedy, above n 200, 25, notes in this context that progress narratives are becoming policy programs, ‘both by solidifying a professional consensus and by defining what counts as progress for the international governance system as a whole’. In the context of the FATF, the regular revision of both mandate and standards has been easier compared to a more formal international organisation; see in this context Boyle, A, ‘Some Reflections on the Relationship of Treaties and Soft Law’ (1999) 48 ICLQ 901, 903CrossRefGoogle Scholar, who notes that soft law instruments are easier to amend or replace than treaties.
202 U.S. Office of Homeland Security, National Strategy for Homeland Security (2002) 21.
203 For details, see Mitsilegas, V, ‘Border Security in the European Union: Towards Centralised Controls and Maximum Surveillance’ in Baldaccini, A, Guild, E and Toner, H (eds), Whose Freedom, Security and Justice? (Oxford, Hart Publishing, 2007) 359 Google Scholar.
204 Department of Homeland Security, Privacy Office, A Report concerning Passenger Name Record Information derived from Flights between the US and the European Union, 18 December 2008, 38.
205 For details, see Mitsilegas, V, ‘Contrôle des étrangers, des passagers, des citoyens: Surveillance et anti-terrorisme’ (2005) 58 Cultures et Conflits 155 Google Scholar.
206 Communication from the Commission to the Council and the Parliament, Transfer of Air Passenger Name Record (PNR) Data: A Global EU Approach, COM(2003) 826 final, 16 December 2003, 5.
207 For details, see section VI. below.
208 For details, see Mitsilegas, V, ‘The External Dimension of EU Action in Criminal Matters’ (2007) 12 European Foreign Affairs Review 457 Google Scholar. For the text, see Agreement between the European Union and the United States of America on the processing and transfer of Passenger Name Record (PNR) data by air carriers to the United States Department of Homeland Security (DHS) (2007 PNR Agreement), [2007] OJ L204/18. See also Council Decision approving the signing of the Agreement on the basis of Arts 24 and 38 TEU, at [2007] OJ L204/16.
209 These are set out in a separate ‘US letter to the EU’, signed by the then Homeland Security Secretary Michael Chertoff, which accompanies the Agreement; see point III of the letter.
210 Ibid, point II.
211 Ibid, point VII.
212 European Parliament Resolution of 12 July 2007 on the PNR agreement with the USA, P6_TA-PROV (2007)0347, point 20.
213 Letter of 27 June 2007 to Wolfgang Schäuble.
214 See comments of 27 September 2007.
215 See also the Agreement signed between the European Union and Australia with regard to the processing and transfer of Union-sources PNR data to the Australian Customs Service, [2008] OJ L213/47, and the Agreement between the European Community and the Government of Canada on the processing of API and PNR data, [2006] OJ L82/15. For further details, see Mitsilegas, V, ‘Extraterritorial Immigration Control in the 21st Century: the Individual and the State Transformed’ in Mitsilegas, V and Ryan, B (eds), Extraterritorial Immigration Control: Legal Challenges (Leiden, Boston, Martinus Nijhoff Publishers, 2010) 39 Google Scholar.
216 Proposal for a Council Framework Decision on the use of Passenger Name Record (PNR) for Law Enforcement Purposes, COM(2007) 654 final, Brussels, 6 November 2007.
217 Ibid, 2.
218 Council Directive 2004/82/EC on the obligation of carriers to communicate passenger data, [2004] OJ L261/24; for further details, see Mitsilegas, above n 203.
219 Proposal, above n [216], 3.
220 Ibid, annex.
221 Ibid, Art 9.
222 Ibid, Art 4(2).
223 Ibid, Art 3(5). Emphasis added.
224 Negotiations on the proposal stopped in the light of the entry into force of the Lisbon Treaty. However, the Commission Action Plan implementing the Stockholm Programme (COM(2010) 171, Brussels, 20 April 2010) indicates that a legislative proposal on a common EU approach to the use of PNR data for law enforcement purposes is due to be tabled by the Commission some time in 2010 (at 29).
225 See the Conclusions of the Justice and Home Affairs Council of 24 October 2008, Doc no 14667/08 (Presse 299), 18.
226 This point is further developed in Mitsilegas, V, ‘The Borders Paradox: The Surveillance of Movement in a Union without Internal Frontiers’ in Lindahl, H (ed), A Right to Inclusion and Exclusion? Normative Faultlines of the EU’s Area of Freedom, Security and Justice (Oxford, Hart Publishing, 2009) 33 Google Scholar.
227 The Commission Action Plan on the implementation of the Stockholm Programme indicates that a similar move may be happening with regard to the surveillance of financial transactions and the movement of capital. Following demands by the US to have access to data held by SWIFT (and the current controversy with regard to the feasibility of an EU/US Agreement on the transfer of such data), the Commission will publish in 2011 a Communication on ‘the feasibility of a European Terrorist Finance Tracking Programme’ (Commission Action Plan, above n 224, 41).
228 See in this context the impact of negative FATF evaluations on Austria: Gilmore, above n 4, 138–39.
229 For further details, see ibid, 133–40.
230 Point II(6)(d). See also Political Guideline 3.
231 Recommendation 15.
232 Joint Action of 5 December 1997 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, establishing a mechanism for evaluating the application and implementation at national level of international undertakings in the fight against organised crime, [1997] OJ L34/7.
233 Recital 4.
234 For a detailed analysis of the background to the negotiations and adoption of the Joint Action and the influence of FATF standards, see Nilsson, H, ‘Eight Years of Experiences of Mutual Evaluation within the EU’ in Weyembergh, A and Biolley, S de (eds), Comment Évaluer le Droit Pénal Européen? (Brussels, Editions de l’Université de Bruxelles, 2006) 115–16Google Scholar.
235 Emphasis added.
236 Art 3.
237 Art 4.
238 Art 5.
239 Art 6.
240 Other similar mechanisms include the Schengen evaluation and the evaluation mechanism established in the context of the implementation of Justice and Home Affairs law by the candidate countries in the 1990s (Joint Action 98/429/JHA, [1998] OJ L191/8). For an overview of the various evaluation mechanisms, see Weyembergh and de Biolley, above n 234.
241 Subjects so far include mutual legal assistance, drugs, the work of Europol, the operation of the European Arrest Warrant, and financial crime and financial investigations. See also Nilsson, above n 234, 117.
242 S de Biolley and A Weyembergh, ‘L’Évaluation dans le cadre du troisième pilier du traité sur l’Union européenne’ in Weyembergh and de Biolley (eds), above n 234, 92.
243 Decision 2002/996/JHA, 24 December 2002, [2002] OJ L349/1. For details, see Weyembergh and de Biolley, above n 234, 89–90.
244 [2005] OJ C53/1, point II(3).
245 [2010] OJ C115/1. The Stockholm Programme, para 1.2.5, stresses that ‘duplication with other evaluation mechanisms should be avoided, but synergies and cooperation should be sought, in particular with the work of the Council of Europe’.
246 Art 70 TFEU.
247 Ibid . A joint interparliamentary involvement (of the European Parliament and national parliaments) is also envisaged with regard to the evaluation of the activities of Eurojust: Arts 85(1) TFEU and 12(c) TEU. See also Arts 88(2) TFEU and 12(c) TEU with regard to arrangements for the scrutiny of Europol’s activities by the European Parliament and national parliaments.
248 Levi and Gilmore note that ‘The term “mutual evaluation” will survive because it serves the purpose of making international relations look voluntary’: Levi, M and Gilmore, W, ‘Terrorist Finance, Money Laundering and the Rise and Rise of Mutual Evaluation: A New Paradigm for Crime Control?’ (2002) 4 European Journal of Law Reform 360 CrossRefGoogle Scholar.
249 The Commission argues in favour of ‘a more general evaluation of the conditions in which judgments are produced in order to ensure that they meet high quality standards enabling mutual trust between judicial systems to be reinforced’, an evaluation which would provide ‘a fully comprehensive view of national systems’: COM(2005) 195 final, 8–9.
250 Joint Action establishing a mechanism for collective evaluation of the enactment, application and effective implementation by the applicant countries of the EU JHA acquis, [1998] OJ L191/8.
251 The example of the 1999 Council of Europe Convention on corruption has been used in this context: see P de Hert and E Pitto, ‘Evaluation in the Context of Enlargement’ in Weyembergh and de Biolley (eds), above n 234, 187.
252 See <http://www.coe.int/moneyval/, accessed 4 July 2010. For an overview, see W Rau and J Ringguth, ‘Evaluation in the framework of the Council of Europe’ in Weyembergh and de Biolley (eds), above n 234, 33–44.
253 Gilmore, above n 4, 173.
254 See the MONEYVAL terms of reference, available at <http://www.coe.int/t/dghl/monitoring/moneyval/About/MONEYVALTERMS.pdf>, accessed 4 July 2010.
255 It is also noteworthy that the Union is currently pushing for the introduction of evaluation mechanisms to ensure compliance with multilateral conventions such as the 2003 UN Convention Against Corruption: see The EU wants tougher measures against corruption, Press Release by the Swedish EU Presidency, available at <http://www.se2009.eu/en/meetings_news/2009/11/9/the_eu_wants_tougher_measures_against_corruption=, accessed 4 July 2010.
256 See Mitsilegas, above n 203.
257 Joined Cases C-317/04 and C-318/04 European Parliament v Council [2006] ECR I-4721.
258 Ibid, paras 56, 59, 67 and 68 in particular.
259 Ibid, para 57.
260 Ibid, para 58. The Court used this distinction again in its ruling on the legality of the data retention Directive (Directive 2006/24/EC of the European Parliament and of the Council on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks, [2006] OJ L105/54). The Court held unconvincingly that, unlike the PNR case, the Directive in question (requiring the retention of personal data by private companies) was correctly adopted under a First Pillar internal market legal basis, and was distinguished from the PNR measures as it regulates operations which are independent of the implementation of any police and judicial cooperation in criminal matters (Case C-301/06 Ireland v European Parliament and Council, nyr, para 83). For a commentary, see Konstadinides, T ‘Wavering between Centres of Gravity: Comment on Ireland v Parliament and Council’ (2010) 35 EL Rev 88 Google Scholar.
261 See section VI.C. below.
262 The ruling was indeed a Pyrrhic victory for the European Parliament, whose role of scrutinising international agreements under the Third Pillar was minimal.
263 This reasoning has been criticised by Cremona: Cremona, M, External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Effects of International Law (EUI Working Paper LAW No 2006/22)Google Scholar.
264 A-G Opinion, para 123.
265 As mentioned in section I V. above, subsequent agreements between the US and, this time, the Union replaced the original EC–US PNR Agreement.
266 Directive 2001/97/EC of the European Parliament and of the Council amending Council Directive 91/308/EEC on prevention of the use of the financial system for the purpose of money laundering, [2001] OJ L344/76.
267 Case C-305/05 Ordre des barreaux francophones et germanophone v Council [2007] ECR I-5305.
268 Ibid, para 12.
269 For details, see Mitsilegas, V, Money Laundering Counter-measures in the European Union (The Hague, Kluwer Law International, 2003)Google Scholar ch 3.
270 See the amended Art 6(3) of the 1991 Directive and recital 17 of the 2001 Directive. The wording of this exception has since been amended in the third money laundering Directive; for details, see Mitsilegas and Gilmore, above n 16.
271 Case C-305/05 Ordre des barreaux francophones et germanophone v Council [2007] ECR I-5305, para 13.
272 On the development of the FATF standards, see section III. above.
273 Recommendation 9.
274 Case C-305/05 Ordre des barreaux francophones et germanophone v Council [2007] ECR I-5305, para 47. See Mitsilegas, above n 269, 89.
275 Recital 14. However, unlike the recitals concerning the extension of the list of the predicate offences (recitals 7 and 8), the Preamble does not refer explicitly to the need to extend the ratione personae scope of the Directive to lawyers in order to implement in the Community legal order the FATF standards.
276 Case C-305/05 Ordre des barreaux francophones et germanophone v Council [2007] ECR I-5305, para 8.
277 Ibid, para 9.
278 There is an indirect reference in the section on the legal context where reference to recital 14 of the Preamble to the second Directive is made.
279 Case C-305/05 Ordre des barreaux francophones et germanophone v Council [2007] ECR I-5305, para 28.
280 The Court adopted the same approach with regard to the ECHR in its Kadi ruling; see section VI.C. below.
281 Case C-305/05 Ordre des barreaux francophones et germanophone v Council [2007] ECR I-5305, para 28.
282 Ibid, para 31.
283 Ibid, paras 32–37
284 Ibid, para 36.
285 Case T-315/01 Yassin Abdullah Kadi v Council and Commission [2005] ECR II-3649 (Kadi ); Case T-306/01 Ahmed Ali Yussuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-3533 (Yussuf and Al Barakaat).
286 Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351 (Kadi and Al Barakaat).
287 See section III. above. For a background to the legal framework of the case see ibid, paras 11–45.
288 For Arts 60 and 301 EC see Kadi, paras 92–97, and Yussuf and Al Barakaat, paras 128–33; for Art 308 EC see Kadi, paras 98–121, and Yusuf and Al Barakaat, paras 134–57.
289 Kadi, para 135, and Yusuf and Al Barakaat, para 170.
290 Kadi, paras 123–25, and Yusuf and Al Barakaat, paras 159–61.
291 Kadi and Al Barakaat, para 167.
292 Ibid, para 169.
293 Ibid, para 170. In this light, the Court noted (para 175) that the ambit of Art 41 of the UN Charter does not coincide with Art 301 EC, as these measures are of a fundamentally different nature from those intended to interrupt or reduce economic relations with third countries.
294 Ibid, paras 184–93.
295 Ibid, paras 202–04.
296 Ibid, paras 213–14.
297 Ibid, para 216.
298 Ibid, paras 223–25.
299 Ibid, para 226.
300 Ibid, para 227.
301 Ibid, para 230.
302 Ibid, para 235.
303 Cremona, above n 157, 581.
304 Ibid.
305 See in this context also Tridimas, T, ‘Terrorism and the ECJ: Empowerment and Democracy in the EC Legal Order’ (2009) 34 EL Rev 103 Google Scholar, 107.
306 See the Court’s ruling in the PNR case, n 257 above.
307 Kadi, paras 226ff; Yusuf and Al Barakaat, paras 277ff.
308 See in particular Eeckhout, P, ‘Community Terrorism Listings, Fundamental Rights, and UN Security Council Resolutions: In Search of the Right Fit’ (2007) 3 European Constitutional Law Review 183 CrossRefGoogle Scholar.
309 See in this context Murkens, J, ‘Countering Anti-Constitutional Argument: The Reasons for the European Court of Justice’s Decision in Kadi and Al Barakaat’ (2008–09) 11 CYELS 15 Google Scholar.
310 Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351, para 281.
311 Ibid, para 283. The Court noted the special significance of the ECtHR in this context, referring to its ruling on the compatibility of the second money laundering Directive with fundamental rights: see section V.B. above.
312 Ibid, para 284. The Court also (paras 303–04) stressed that the wording of Treaty Articles such as Arts 297 and 307 EC (now Arts 347 and 351 TFEU) cannot be understood as derogating from or challenging the principles of liberty, democracy and respect for human rights and fundamental freedoms enshrined in Art 6(1) TEU (now Art 6(1) TEU) as a foundation of the Union.
313 Ibid, para 282.
314 Ibid, para 285.
315 Ibid, para 308.
316 Ibid, para 316.
317 Ibid, para 286, emphasis added.
318 Ibid, para 287. The Court further noted (para 288, emphasis added) that any judgment given by the Community judicature deciding that a Community measure intended to give effect to such a resolution is contrary to a higher rule of law in the Community legal order would not entail any challenge to the primacy of that resolution in international law.
319 Ibid, para 297.
320 Ibid, para 298.
321 Ibid, para 314.
322 Ibid, para 326.
323 Ibid, para 327.
324 Ibid, para 334.
325 Ibid, para 370.
326 Ibid, para 363.
327 As Halberstam and Stein have noted, ‘until Kadi, the story of European constitutionalism has focused largely on establishing the Community’s legal order as autonomous from those of the Member States. With few exceptions, the constitutional gaze has been inward looking, that is, setting off the Union’s legal order from, and integrating it with, those of the Member States’: Halberstam, D and Stein, E, ‘The United Nations, the European Union, and the King of Sweden: Economic Sanctions and Individual Rights in a Plural World Order’ (2009) 46 CML Rev 13 Google Scholar, 62.
328 G de Búrca, The European Court of Justice and the International Legal Order after Kadi (NYU School of Law, Jean Monnet Working Paper 01/09, 36).
329 Tridimas, above n 305.
330 Ibid, 113.
331 See in this context the criticism of the CFI ruling by Guild, who points out that the structure of politics and law at the international level leaves the individual without a voice or visibility: Guild, E, EU Counter-Terrorism Action: A Fault Line Between Law and Politics? (Brussels, CEPS, 2010) 9–10 Google Scholar.
332 Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351, para 297. See also Case C-117/06 Möllendorf and Möllendorf-Niehuus [2007] ECR I-8361, para 54.
333 Case C-340/08 The Queen on the application of M and Others v Her Majesty’s Treasury, nyr. The Court referred to the need to take into account pf the wording and purpose of UN Security Council Resolution 1390 (2002) which Regulation 881/2002 (the implementation of which by the UK was the subject of a preliminary reference by the House of Lords) was designed to implement (para 45). The Court focused on the linguistic divergences in the wording of Art 2(2) of the Regulation in the different language versions, and justified the need to take into account of the substance of Resolution 1390 (2002) but also of subsequent Security Council Resolutions and initiatives (paras 49–51). The Court opted for a restrictive interpretation of the scope of Art 2(2) of the Regulation.
334 For an analysis of subsequent revisions of Security Council Resolutions in this light, in particular by UN Security Council Resolution 1822 (2008), see Scheinin, M, ‘Is the ECJ Ruling in Kadi Incompatible with International Law?’ 28 Yearbook of European Law 2009 637, 648–50CrossRefGoogle Scholar.
335 The CFI/General Court has been increasingly vocal with regard to the need to address procedural defects in the listing of individuals under autonomous EC lists; see in this context the series of OMPI rulings, in particular OMPI III (Case T-284/08 People’s Mojahedin Organization of Iran v Council, nyr). For an analysis of the evolving OMPI case law, see the note by Spaventa, E in (2009) 46 CML Rev 1239 Google Scholar.
336 Indeed, the language of the Court in Kadi stressed the relationship of Community law with international agreements.
337 See in this context also the criticism of Scheinin, above n 334, who advocates the repeal of Resolution 1267 and its replacement with national or EU level terrorist listing pursuant to UN Security Council Resolution 1373.
338 See in this context the express legal bases for sanctions against individuals in the Lisbon Treaty: Arts 75 and 215 TFEU.
339 Case C-308/06 The Queen on the application of Intertanko v Secretary of State for Transport [2008] ECR I-4057 (‘Intertanko’).
340 Directive 2005/35/EC of the European Parliament and of the Council on ship-source pollution and on the introduction of penalties for infringements, [2005] OJ L255/11.
341 The Prestige was a tanker which sank off the Spanish coast in November 2002. Its sinking led to a large oil spill which is believed to have caused extensive damage to the environment—see inter alia New Scientist, ‘Prestige Oil Spill far Worse than Thought’, 27 August 2003, available at <http://www.newscientist.com/article/dn4100-prestige-oil-spill-far-worsethan-thought.html">http://www.newscientist.com/article/dn4100-prestige-oil-spill-far-worsethan-thought.html>, accessed 4 July 2010.
342 Directive on ship-source pollution, Arts 4 and 5. For an analysis of the perceived innovations of the Directive in terms of liability for ship-source pollution, see the contributions in The Eighth Cadwallader Annual Memorial Lecture, available at <http://www.shippinglbc.com/pages/8th_cad>, accessed 4 July 2010.
343 Council Framework Decision 2005/667/JHA to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution, [2005] OJ L255/164.
344 Greece and Malta voted against the text of the Directive, and Cyprus abstained: Doc no 11138/05, Presse 188, Brussels, 12 July 2005.
345 Boelaert-Suominen, S, ‘The European Community, the European Court of Justice and the Law of the Sea’ (2008) 23 The International Journal of Marine and Coastal Law 643, 702CrossRefGoogle Scholar.
346 Barnes, R and Happold, M, ‘Current Legal Developments: United Kingdom’ (2007) 22 The International Journal of Marine and Coastal Law 331 CrossRefGoogle Scholar.
347 See Intertanko, above n 339, para 29.
348 Ibid, para 37.
349 The Court also examined the issue of the compatibility of the term ‘serious negligence’ used in the Directive with the principle of legal certainty, but purely from the perspective of Community law—ibid, paras 67–80. The analysis in this section will focus on the part of the Court’s ruling on the relationship between Community and international law.
350 Ibid, para 42.
351 Ibid, para 43.
352 Ibid, para 44.
353 Ibid, para 45, where the Court referred to its IATA ruling: Case C-344/04 IATA and ELFAA [2006] ECR I-403.
354 Intertanko, above n 339, para 47.
355 Ibid, para 48.
356 Ibid.
357 Ibid, para 49.
358 Ibid, para 50. The Preamble to the Directive recognises the need to harmonise the implementation of MARPOL at Community level (recital 3). The text of the Directive is less clear, however; according to Art 1(1), the purpose of the former is ‘to incorporate international standards for ship-source pollution into Community law and to ensure that persons responsible for discharges are subject to adequate penalties’ (emphasis added). It is not clear from Art 1(1) whether the introduction of provisions on liability for ship-source pollution in the Directive is a separate objective from the incorporation of international standards—the use of the cumulative ‘and’ indicates that these are separate objectives. For a view in favour of the purpose of the Directive being to implement international law, see Bolaert-Suominen, above n 345, 701–02 (noting also the cross-references to MARPOL and to UNCLOS in the text of the Directive and its annex). For a different view, see Eeckhout, P, who points out that it has been ambiguous during negotiations whether the purpose of the Directive was to implement international standards: see his case note at (2009) 46 CML Rev 2041, 2043Google Scholar.
359 Intertanko, abvoe n 339, para 51. See, in this light, Bolaert-Suominen, above n 345, 706.
360 Intertanko, above n 339, para 52.
361 On this point, see also Eeckhout, above n 358, 2052.
362 Intertanko, above n 339, para 51.
363 Ibid, para 53, referring to Case C-459/03 Commission v Ireland [2006] ECR I-4635 (the Mox Plant case).
364 Ibid, para 54.
365 Ibid, para 55.
366 Ibid, para 58.
367 Ibid, paras 59 and 60–63.
368 Ibid, paras 49ff.
369 Ibid, para 64.
370 Ibid, para 65.
371 See in particular Denza, E, ‘A Note on Intertanko’ (2008) 33 EL Rev 870, 875Google Scholar.
372 See in this context in particular Bolaert-Suominen, above n 345, 707, who notes that by ruling that UNCLOS is not directly effective as it confers no rights or obligations directly on individuals, the Court seems to have put stricter conditions for the ‘invocability’ of international (environmental) agreements than in earlier case law. See also Mendez, M, ‘The Legal Effect of Community Agreements: Maximalist Treaty Enforcement and Judicial Avoidance Techniques’ (2010) 21 European Journal of International Law 83 CrossRefGoogle Scholar.
373 See Eeckhout, above n 358, 2056.
374 Case C-176/03 Commission v Council [2005] ECR I-7879.
375 Case C-440/05 Commission v. Council [2007] ECR I-9097.
376 For details on both cases see Mitsilegas, above n 2, ch 2.
377 As Eeckhout, above n 358, 2056, notes, the Court ‘may not have been convinced that it was possible to interpret the Directive in conformity with Marpol 73/78 and with UNCLOS’.
378 This is in particular the case if one considers that the scope of both MARPOL and UNCLOS is much broader than the specific issue of liability for ship-source pollution at stake in the proceedings, and that their adoption (and ratification by the Community and/or its Member States) predated the development of the specific Community response to pollution at sea triggered by a major incident taking place in European waters.
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