“The Emerging Relevance of EU Law to Sentencing”

A report on the lecture delivered by Professor Bakerto the Steering Committee of the Irish Sentencing Information System on the 18th of April 2013

  1. Introduction

On the 18th of April 2013,Professor Estella Baker, Professor of European Criminal Law & Justice at Leicester De Montfort Law School, delivered a lecture on the relevance of EU law to sentencing. The event was hosted by the steering committee of the Irish Sentencing Information System and was located in the Jury Reception Area of the Criminal Courts of Justice. The event was attended by a wide variety of judges, legal practitioners and academic lawyers. What follows is a brief overview of some of the key elements of the lecture.

  1. The legislative background & Post-Lisbon transition

Professor Baker began by noting the introduction of the “Justice & Home Affairs third pillar” in the Maastricht Treaty, as well as its subsequent change of scope to “Police & Judicial Co-operation in Criminal Matters,“ and acquisition of new legal instruments in the Amsterdam Treaty. She also noted that as of the Amsterdam Treaty, a new formal goal of the Union was to become an “area of freedom security and justice”. Furthermore, Professor Baker noted that the Lisbon Treaty created the conditions for criminal and sentencing law to be brought into mainstream EU law, by dissolving the third pillar and absorbing it into the first pillar. However, as she pointed out, the third pillar was intergovernmental in nature and enjoyed no supremacy, nor had it been established to date that any of its law was capable of havingdirect effect. Furthermore, although legislation in the field of the former third pillar post 2009 forms part of the EU’s supranational law, the third pillar legislation enacted between 1993 and 2009 retains its original character. Over 130 such third pillar measures remain in force. Finally, Professor Baker finished this section of her speech by noting that the ECJ will acquire full jurisdiction over all aspects of the former third pillar from the 1st of December 2014.

  1. The Union’s sentencing law

Professor Bakerthen examined the principal features of Union sentencing law. These included: obligations on Member States to punish “real crime” or those other offences which are necessary to penalise for the compliance with/effectiveness of EU law; the disapplication of national sentencing laws; and finally, the cross-border enforcement of national sentencing and punishment decisions(mutual recognition).

First, Professor Baker examined the obligations imposed by the Union to punish certain offences. She began by looking at the competence of the EU to impose obligations on Member States in respect of punishment. In respect of the Post-Lisbon regime, she highlighted the legislative basis of Article 83 TFEU as well as the inherent competence in Article 4(3) TEU,which has been recognised through ECJ case-law[1]. Professor Baker then proceeded to examine Article 83(1) TFEU, which empowers the European Parliament and Council to target crimes such as human trafficking, arms trafficking, organised crime, money laundering, corruption and child pornography via directives. [2] She also examined its sister provision, Article 83(2) TFEU, which empowers the Union to require the Member States to use criminal law means so as to ensure “the effective implementation of a Union policy in an area which has been subject to harmonisation measures.“ It was noted that this provision was the legislative basis for the proposed market abuse directive. Finally, Professor Baker focused her attention on the Union's legislative sanctioning techniques. One is the requirement that sanctions be “effective, proportionate and dissuasive”, although the obligation to use criminal sanctions is not necessarily always explicit. The other is use of the minimum-maximum penalties scale which was adopted by the Justice, Home Affairs and Civil Protection Council in 2002. She also pointed out that other provisions of EU law in relation to aggravating and mitigating factors in sentencing were quite far reaching[3], e.g. Council framework decision 2008/919/JHA requires the Member States to make racism & xenophobia a general aggravating factor for sentencing.[4]

Second, Professor Baker noted that Union law could have a direct impact on the sentencing law of member states in so far as the latter must be disapplied if it conflicts with supranational Union law, i.e. a primary rule or fundamental principle of Union law, e.g. proportionality, fundamental rights, etc.[5] Hence, any theoretical infringement of a right or genuine enjoyment of such a right under Union law, e.g. the freedom of movement, would result in the disapplication of the relevant national law. Professor Baker also noted that the Union's free movement law offered some protection from post-punishment expulsion by a host Member State.[6]

Third, Professor Baker concluded this section of her speech by highlighting the cross border enforcement of punishment under Union law. In this respect, she spoke of the European arrest warrant, as well as the mutual recognition of: financial penalties; confiscation orders; custodial sentences (i.e. prisoner transfer); and finally sanctions, both probation and alternative.

After highlighting the various elements of EU law which exert an influence on the sentencing laws and practice of Member States, Professor Baker proceeded to examine their relationship to sentencing practice in Ireland and the disposition of the Irish legal order in respect of those provisions of Union law.

  1. The implications for sentencing in Ireland

Professor Baker began by examining the obligations for sincere co-operation under Article 4(3) TEU, and the doctrine of indirect effect which applied to third pillar measures since the Pupino[7] decision. She then proceeded to consider the provisions incorporating the Union's sentencing law into Irish law. In this respect, she noted the “opt in” to both the Schengen agreement and the Area of Freedom Security and Justice under Protocol 19 and Protocol 21 respectively, as well as the dualist function of Articles 29.4.4 to 29.4.8 of Bunreacht na hEireann. Thereafter, Professor Baker highlighted the remedies available before national courts in respect of Union law. In particular, she highlighted the expedited procedure for a preliminary ruling under Article 267 TFEU, where the question relates to a “person in custody”. However, she noted that national courts cannot use the preliminary rulings procedure with respect to pre-Lisbon third pillar law unless the Member State opted in to that element of the ECJ's jurisdiction prior to the Lisbon Treaty entering into force. Like the UK, Ireland did not do this. Finally, Professor Baker noted the "policing" role of the Commission under Article 258 TFEU, and that the Commission would need to find a justiciable interpretation of “effective, proportionate and dissuasive” in respect of Member State sanctions.

5. Conclusion

In conclusion, Professor Baker finished her lecture by highlighting the fact that there was no clear Union penal policy, and that were some signs that, in the longer term, Member States might eventually have to account for their penal policies in terms of their impact upon the Union's "area of freedom, security and justice". At this point Professor Baker also highlighted the situation in the UK in respect of the looming deadline to opt out of the third pillar. Finally, Professor Baker answered questions from the floor.

Mark Collier

Irish Sentencing Information System Researcher

18th April 2013

[1] Case C-68/88; Case C-265/95.

[2] Directive 2011/92/EU (child pornography).

[3] 2011/92/EU

[4] 2008/919/JHA

[5] Case C-193/94 Skanavi; Case C-299/95 Kremzow; Case C-348/96 Calfa; Case C-617/10 Fransson.

[6] Directive 2004/38/EC (citizenship directive); Case C-145/09 Tsakouridis; Case C-348/09 PI.

[7] Case C-105/03 Pupino.