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Vervaele EUROPEAN CRIMINAL JUSTICE IN THE POST-LISBON AREA OF FREEDOM, SECURITY AND JUSTICE with a prologue by Gabriele Fornasari and Daria Sartori (Eds.) 2014 QUADERNI DELLA FACOLTÀ DI GIURISPRUDENZA 5 2014 Al fine di garantire la qualità scientifica della Collana di cui fa parte, il presente volume è stato valutato e approvato da un Referee esterno alla Facoltà a seguito di una procedura che ha garantito trasparenza di criteri valutativi, autonomia dei giudizi, anonimato reciproco del Referee nei confronti di Autori e Curatori PROPRIETÀ LETTERARIA RISERVATA © Copyright 2014 by Università degli Studi di Trento Via Calepina 14 - 38122 Trento ISBN 978-88-8443-579-8 ISSN 2284-2810 Libro in Open Access scaricabile gratuitamente dall’archivio IRIS - Anagrafe della ricerca (https://iris.unitn.it) con Creative Commons Attribuzione-Non commerciale-Non opere derivate 3.0 Italia License. Maggiori informazioni circa la licenza all’URL: http://creativecommons.org/licenses/by-nc-nd/3.0/it/legalcode Il presente volume è pubblicato anche in versione cartacea per i tipi di Editoriale Scientifica - Napoli, con ISBN 978-88-6342-692-2. Novembre 2014 John A.E. Vervaele EUROPEAN CRIMINAL JUSTICE IN THE POST-LISBON AREA OF FREEDOM, SECURITY AND JUSTICE with a prologue by Gabriele Fornasari and Daria Sartori (Eds.) Università degli Studi di Trento 2014 SUMMARY Pag. Gabriele Fornasari & Daria Sartori Prologue .......................................................................................... 1 PART I EUROPEAN CRIMINAL JUSTICE AND COMBATING CRIME Chapter 1 The European Union and Harmonization of the Criminal Law Enforcement of Union Policies: In Search of a Criminal Law Policy? ............................................................................................. 11 Chapter 2 Enforcing the Market Abuse Regime: Towards an Integrated Model of Criminal and Administrative Law Enforcement in the European Union? ............................................................................ 57 Chapter 3 Gathering and Use of Evidence in the Area of Freedom, Security and Justice, with Special Regard to EU-Fraud and OLAF- Investigations ................................................................................... 97 Chapter 4 Mutual Legal Assistance in Criminal Matters to Control (Transnational) Criminality ............................................................ 139 SUMMARY Pag. PART II EUROPEAN CRIMINAL JUSTICE AND FUNDAMENTAL RIGHTS Chapter 5 Ne Bis In Idem: Towards a Transnational Constitutional Principle in the EU? ........................................................................ 167 Chapter 6 The Application of the EU Charter of Fundamental Rights (CFR) and its Ne Bis In Idem Principle in the Member States of the EU .............................................................................................. 207 Chapter 7 The European Arrest Warrant and Applicable Standards of Fundamental Rights in the EU ......................................................... 235 Chapter 8 The Material Scope of Competence of the European Public Prosecutor’s Office: A Harmonised National Patchwork? ............. 259 Chapter 9 European Territoriality and Jurisdiction: The Protection of the EU’s Financial Interests in its Horizontal and Vertical (EPPO) Dimension ........................................................................................ 279 VI PROLOGUE Gabriele Fornasari & Daria Sartori In May 2013, John A.E. Vervaele was Visiting Professor at the Doctoral School of Comparative and European Legal Studies of Trento University. His lessons on European criminal law were source of inspiration for PhD candidates, researchers and professors alike: Thanks to his considerable expertise, he successfully enlightened old and new challenges faced by the criminal law after the adoption of the Lisbon Treaty. It has thus been decided to publish the nine essays on which his lessons were based, and to publish the present book in English (language in which the course was taught). Before introducing the content of this volume, a brief presentation of the Author and of the context in which his course was placed is due. John A.E. Vervaele is Professor in Economic and European Criminal Law at the School of Law of Utrecht University (Utrecht, Netherlands). He is also Professor in European Criminal Law at the College of Europe (Bruges, Belgium) and president of the World Association of Criminal Law (AIDP). He is a renown expert of European Criminal law, and his work is widely known and appreciated by the Academic community worldwide. He is actively engaged in cooperating with the Italian academia, both as visiting professor and as member of research groups, and many of his contribution are published in Italian. The course he taught at the Doctoral School of Comparative and European Legal Studies of Trento University was focused on European criminal law. Indeed, the importance of the EU dimension for criminal lawyers is steadily growing. The most recent developments of the European process of integration include legislative competencies for the EU in criminal matters, the replacement of Mutual Cooperation with Mutual Recognition, and the creation of a European Public Prosecutor Office. These developments call for a strong protection of the guarantees which are essential to the criminal law, and it is precisely in this context that the work by professor Vervaele is placed. GABRIELE FORNASARI & DARIA SARTORI His contributions highlight the need to take a clear stand on the protection of substantial and procedural guarantees for the criminal defendant. Most of those guarantees have now acquired the status of fundamental rights within the EU; however, their definition and actual relevance is still ‘work in progress’ (mainly under the Court of Justice’s auspice). In every essay, Vervaele demonstrates his support for the European harmonisation process, being, however, perfectly aware of its many flaws. Harmonisation is still an on-going process, and Vervaele stresses the need for it to be accomplished both in substantial and in procedural criminal law, as well as in the field of investigation. He also insists on the need to comply with the general principles of the criminal law, on which domestic legal systems are based. In The European Union and Harmonization of the Criminal Law Enforcement of Union Policies: in Search of a Criminal Law Policy?, the Author firmly underlines the need for the harmonised criminal law to pass the test of proportionality, subsidiarity and necessity, being conceived as ultima ratio: Thus, every time a different kind of sanction can be used to prevent and punish illicit activities, criminalization should be avoided. In the same contribution, the Author complains that Member States of the EU have not shown any interest in elaborating a well-thought enforcement and criminal law policy after the adoption of the Lisbon Treaty. The only exception has been a notice from the Dutch Minister of Justice and Security to the Chamber of Deputies, in which he explains the position and policy of his Department in relation to European criminal law under the Lisbon Treaty. The note, however, is vague and cannot be the ground for a reasoned proposal on the harmonisation of the criminal law. Thus, as the Author concludes: ‘The EU is sure about its competence, but still does not know when and how to deal with it: certus an, incertus quando. In Enforcing the market abuse regime: towards an integrated model of criminal and administrative law enforcement in the European Union? (wrote by the Author together with Michiel Luchtman), the focus is on the investigation, prosecution and punishment of market abuse, which are analyzed in a wider context than the mere normative one. 2 PROLOGUE In order to realise a proper functioning internal market, the current proposal of market abuse rules lays down norms for the actors of the financial markets and introduces the obligation to enforce these rules through (punitive) administrative and criminal law. In addition, organisational structures for network building and cooperation, investigative powers and sanctions are prescribed at European level. This last requirement, however, faces the typical issues affecting many of the areas invested by the European harmonisation process: The operational rules adopted by domestic authorities are often diverging, making it difficult to achieve an efficient cooperation at the international level, and there are no adequate rules coordinating criminal and administrative sanctions. This means that there is no body ultimately responsible for the system as a whole. Furthermore, there is no attention whatsoever for the development of fundamental rights beyond the context of the nation-state (with the partial exception of the ne bis in idem principle). Vervaele’s position in this regard is exceptionally important. Notwithstanding his enthusiasm for the creation of a truly European criminal law, he holds as a necessity the respect for fundamental rights, which is often considered as an obstacle to the efficiency of the system. Finally, the Author(s) complain that there seems to be no common strategy when it comes to the external dimension of the enforcement of the financial markets. This lack is remarkable, as strategies are present, instead, in the area of competition law, where an agreement has been devised to provide for regular bilateral