Judicial cooperation in criminal matters, jurisdiction of the Court and end of the transitory period

Today, 1st December 2014, marks the fifth anniversary of the entry into force of the Lisbon Treaty. More particularly, 1st December 2014 is an important date for the jurisdiction of the Court of Justice in respect of judicial cooperation in criminal matters. The 5 year transitional period laid down in Article 10 (1) of Protocol 36 to the TEU and TFEU comes to an end. Consequently from now on the Court of Justice can exercise its normal jurisdiction to answer preliminary references from national courts in respect of measures adopted by the EU before the entry into force of the Lisbon Treaty. Also, the Commission can take infringement proceedings against Member States in this field from now on. 

The end of that 5 year transitional period applies to all Member States. Of course, the Court of Justice has already handed down judgments responding to preliminary references from certain national courts asking about measure adopted before the entry into force of the Lisbon Treaty. That is because it was possible for Member States to opt into that jurisdiction by making a declaration pursuant to the then Article 35 (2) TEU accepting jurisdiction of the Court of Justice. 18 Member States did so. Member States had the option, when making the declaration, of specifying whether only national courts against whose decisions there was no judicial remedy under national law may request a preliminary ruling (under Article 35 (3) (a) TEU) or whether any national court may do so (under Article 35 (3) (b) TEU). You can find a summary of those declarations – of historical interest now – in the notice published on the OJ here (OJ 2008 C 69, p. 1).

The Lisbon Treaty repealed Article 35 TEU and as a result Protocol 36 lays down the five year transitional period which has now expired.

For some background information on Article 10 of Protocol 36 look at Council document 7519/14 of 10 March 2014 (made available to the general public by Statewatch).

From now on, the courts from all Member States can refer questions to the Court of Justice whether they are first instance, appellate or supreme courts in respect of all acts or measures adopted in the field of judicial cooperation in criminal matters. All Member States, except one Member State …. The United Kingdom.

The United Kingdom had the possibility to opt out generally (a “block opt out”) of applying the pre-Lisbon criminal cooperation measure according Article 10 (4) of Protocol 36 if it applied by 31 May 2014. It notified its intention to opt out on 24 July 2013. The United Kingdom could then opt back in to apply or reparticipate in those measures. The list of the Schengen measures in which the United Kingdom can reparticipate is published here (OJ 2014 L 345, p. 1) and the list of non-Schengen measures in which it reparticipates is published here (OJ 2014 L 345, p. 6). A consolidated list is published, for convenience, here (OJ 2014 C 430, p. 1).

It would seem, however, that while the courts in the United Kingdom can refer questions concerning only the measures in respect of which it reparticipates (or “opted in”), all courts there may do so, not merely courts of last resort.

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