This document discusses the role of the European Court of Justice in the third pillar of EU law regarding police and judicial cooperation in criminal matters. It outlines what the EU treaties say about the Court's competences in this area and how the Court has interpreted its own role. The document also examines the Court's contributions, such as restoring the consistency of the legal system and mutual recognition between member states. However, it notes some drawbacks of the Court's interventions, such as suboptimal legal solutions and reversals of communitarization. Overall, the document evaluates that the Court's involvement came politically too early but was necessary given the specificity of decisions taken in justice and home affairs.

1. Role of the Court in the third pillar:
Does not it grow too fast?
Ivan Grigoryev

2. :: outline
1. what the Treaty says on the Court's
competences in the third pillar
2. what the Court thinks of its own
competences
3. the Court's contribution: the rule of law
restored
4. drawbacks of the Court's intervention
5. overall evaluation

3. :1/5: what the Treaty says on the
Court's competences in the third pillar
Maastricht provided no role for the Court in the
3rd pillar

4. :1/5: what the Treaty says on the
Court's competences in the third pillar
two-fold reform in Amsterdam:
-breakdown of the pillar itself
(Title IV TEC; esp. art 68)
-reform of the Court's
competences within Title VI TEU
(see art. 35)

5. :1/5: what the Treaty says on the
Court's competences in the third pillar
Lisbon demolished the pillars
(but mind the 5 year transition period)

6. :1/5: what the Treaty says on the
Court's competences in the third pillar
drafters tried to enclose the Court into a
more restrictive institutional environment

7. :2/5:
what the Court thinks of its own
competences in the third pillar

8. :2/5: what the Court thinks of its own
competences in the third pillar
(1) Court can interpret 3rd
pillar Treaty provisions
C-170/96 (Air transit visas):
“It is... the task of the Court
to ensure that [second and
third pillar] acts... do not
encroach upon the powers
conferred by the EC Treaty on
the Community.”

9. :2/5: what the Court thinks of its own
competences in the third pillar
(2) Court can give preliminary rulings on
3rd pillar acts even where it cannot under
art. 35(2)
See C-354/04 P (Gestoras pro amnestia): “the right to
make a reference to the Court for a preliminary ruling
must... exist in respect of all measures adopted by the
Council, whatever their nature or form.”

10. :2/5: what the Court thinks of its own
competences in the third pillar
(3) Law under 3rd pillar penetrates
national law, including FDs
C-105/03 (Pupino):
“when applying national law,
the national court that is
called upon to interpret it
must do so as far as possible
in the light of the wording and
purpose of the framework
decision in order to attain the
result which it pursues and
thus comply with Article 34(2)
(b) EU.”

11. :3/5: the Court's contribution
(1) Consistency of legal system restored
Rule of law in Pupino, right for legal protection in Segi
(C-355/04 P): “it is for the Member States and, in
particular, their courts and tribunals, to... [enable]
natural and legal persons to challenge before the
courts the lawfulness of any decision or other national
measure relating to the drawing up of an act of the
European Union or to its application to them and to
seek compensation for any loss suffered”.

12. :3/5: the Court's contribution
(2) mutual recognition
Gözütok and Brügge (C-
187/01 and C-385/01):
“the ne bis in idem principle
necessarily implies that the
Member States have mutual
trust in their criminal justice
systems and that each of
them recognises the criminal
law in force in the other
Member States”, but see
Turanský (C-491/07)

13. :3/5: the Court's contribution
(3) urgent procedure
March, 3 2008:
Court proposes the urgent
preliminary ruling procedure.
See Leymann and
Pustovarov (C-388/08 PPU)

14. :4/5: drawbacks of the Court's intervention
(1) suboptimal results of
the legal solutions: PNR
ruling (C-317/04 and C-
318/04)
“[the EP’s success] turned into... a major ‘Pyrrhic
legal victory’ as the Court’s ruling not only made
Council and Commission move to a ‘third pillar’ legal
base..., but also provided the US Government with an
opportunity to force the EU to accept that the
operation of the agreement would be automatically
subject to subsequent changes in US legislation”
(Monar, 2007: 119)

15. :4/5: drawbacks of the Court's intervention
(2) reversal of
communitarisation
Cases C-176/03 (Environmental crimes) and C-
440/05 (Ship-source pollution)

16. :5/5: overall evaluation
Politically – too early: the area was not
duly prepared by the legislator
But just in time, given the specificity of the decisions
taken in JAI and the resulting need for judicial control

17. :: Conclusion
Thank you

18. :: illustrations
1:Armstrong, Paul. They grow up too fast, August 5, 2007.
http://www.flickr.com/photos/wiseacre/1017839840/.
3:Keene, Jack. Restricted Sunrise, March 9, 2005.
http://www.flickr.com/photos/whatknot/6375170/.
4:Davis, Christine. Two, July 20, 2004.
http://www.flickr.com/photos/msneato/94948/.
5:Jones, Phineas. Demolition, March 1, 2006.
http://www.flickr.com/photos/phineasx/106301263/.
6:Finleyson, Kim. Sarah_and_Whale_GA_Acquarium, May 31,
2007. http://www.flickr.com/photos/kim_gallery/616898882/.
7:Heupel, Eric. Hello Inuk!, May 8, 2005.
http://www.flickr.com/photos/eclectic-echoes/23648529/.
8:Cunningham, Raymond. USSR Visa, May 15, 2008.
http://www.flickr.com/photos/zaruka/2496252484/.
9:Artaraz, Jabi. Perdidos en la niebla, November 11, 2006.
http://www.flickr.com/photos/jabitxu/2087727000/.

19. :: illustrations
10:Howard, Philip. Explaing the naughty things we have done
this year - will we be believed if we don't mention everything,
June 29, 2008.
http://www.flickr.com/photos/22326055@N06/2620852569/.
11:Henderson, Jim. Consistency, August 4, 2007.
http://www.flickr.com/photos/differentperspective/1003772736/.
12:Arlene. Creme de cassis.. yummm, December 28, 2009.
http://www.flickr.com/photos/23616889@N02/4252520442/.
13:Blackman, Samuel C. Take Amphetamines!, February 19,
2007. http://www.flickr.com/photos/samblackman/395389124/.
14:Czyrnek, Radoslaw. Passengers, February 14, 2009.
http://www.flickr.com/photos/radosurou/3488962547/.
15:Rensburg, Werner Janse van. Container ship at sunset, April
6, 2008. http://www.flickr.com/photos/wernerjvr/2393555802/.
16:Twm. Death of a milkman, October 7, 2006.
http://www.flickr.com/photos/twmlabs/263183495/.
17:Menefee, Michael. Moose Matinee, September 25, 2006.
http://www.flickr.com/photos/fortphoto/286509900/.