What we have known all along and what the “ever-closer union” dictates, the EU is desperate to get criminal-law powers. Their way of achieving this is their well-tested means of the salami method, a method well described e.g. in the book The Great Deception by Christopher Booker and Richard North.
Over the course of the last year, the EU has:
established the office of the EU public prosecutor;
called for the European Parliament to have the subpoena power;
held an event called “Conflicts of Criminal Jurisdiction: Roadmap to Legislation at EU Level”
The EU prosecutor has, so far, only a very limited scope and works only in the “enhanced cooperation” framework but the pressure on other countries to join will be getting stronger. And, of course, the prosecutor’s powers will increase in time as well.
The recommendations of the Committee of Inquiry to investigate alleged contraventions and maladministration in the application of Union law in relation to money laundering, tax avoidance and tax evasion (the full name of the committee is so great it must be mentioned in its entirety) – which were voted through during the plenary session in December – contain language that expressly calls for the Parliament to be granted powers to summon witnesses and enforce document access, akin to the powers of the US Congress. (Such recommendations are outside the mandate of the Committee that the Parliament as a whole granted to it but then voted for them anyway.)
How the Parliament wishes to have subpoena powers without EU criminal law escapes me. For example, what are the EU mens rea requirements for perjury? What are the rules for the refusal to respond to such subpoenas and under what circumstances is it possible to “plead the Fifth”, i.e. refuse to testify so as to not incriminate oneself? What are the rules of criminal procedure? Where would the alleged offenders be tried? Before the European Court of Justice? There are myriads of questions like this, and to my mind this implies the creation of EU criminal law.
The European Parliament Research Service allowed us to have a more precise look on how this is all probably going to come down. The European Law Institute, an outfit funded by the EU, came up with a 60-page paper that:
- takes it for granted there are conflicts of criminal jurisdiction that cannot be solved by the existing structures;
- found a clause in the TFEU (as amended by the Lisbon Treaty) that would allow the EU to grants itself powers in this area.
The clause in question is Art. 82(1)(b) TFEU: “The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures to: […] (b) prevent and settle conflicts of jurisdiction between Member States;”
In the paper, they present three different scenarios how to proceed but all these scenarios mean granting Eurojust powers to determine which Member State has jurisdiction in a given matter.
The EP Research Service held an event in the European Parliament and invited a seasoned Dutch to discuss the topic with the authors of the paper. The judge, Anne-Marie Smit, who previously served on Eurojust, said that it hadn’t happened yet that the Member States wouldn’t eventually be able to agree on which one of them should have jurisdiction.
So, in a usual EU fashion, we are solving a problem that emphatically does not exist. But in the meantime, the EU gets more powers. Which is what we always wanted. Or haven’t we?
The UK has an opt-out from justice and home affairs (though not as strong one as Denmark) and is leaving anyway, so while this will probably only affect British citizens residing in the EU and not Brits at home, the rest of us are in for a treat.
While the Member States still have at least the sole jurisdiction in criminal matters, they maintain a good deal of sovereignty. Once an EU “federal” criminal framework begins to take root, it won’t take long before we will all be committing three EU felonies a day.
EU criminal law, EU taxes, and an EU army. It’s not a crazy far-fetched notion. All of this is alreadyin the works.