The Chancellor of the University of Helsinki, Thomas Wilhelmsson, has on 17.12.2015 granted me the title of ‘docent in European law’. It is the Finnish equivalent to an adjunct professorship. Although mostly honorary in nature, it carries the right to enroll doctoral students at the faculty subject to approval by the faculty council. On the same day, my colleague Emilia Korkea-Aho received the title. The chancellor’s decision can be found here: https://www.helsinki.fi/fi/kanslerin-paatokset (Finnish only).
The defense speech for my thesis has been published in the most recent edition of the Tidskrift utgiven af juridiska föreningen in Finland. Missed the opening lecture on the day? Here it is, in unabridged form.
The European Union is about a decade ahead of several Member States in its principled approach to impact assessment: legislation should be fit for the purpose it claims to pursue, and if not, should not pass the stage of impact assessment. From time to time, the idea that particular harmonized crimes should attract similar penalties across EU Member States has been mooted in legislative proposals. However, the evidence that penalties are suitable for achieving the aims of legislation, in particular the argument that nominal penalties are the most effective deterrents, is doubtful in the light of much criminological evidence. It is also unclear whether, from a constitutional perspective, the Union is the appropriate level at which such decisions ought to be made. In an article now published in earlyview and forthcoming in the European Law Journal, Wendy deBondt and I review these claim in the context of recent proposals to introduce minimum penalties for EU-wide harmonized offences.
De Bondt, Wendy, and Miettinen, Samuli, ‘Minimum Criminal Penalties in the EU: In Search of a Credible Justification’ (European Law Journal, early view 11/2015).
Get to the article via the abstract link: http://onlinelibrary.wiley.com/doi/10.1111/eulj.12157/abstract
The FIDE 2016 national report on competence, authored by myself and Anna Hyvärinen (University of Turku) has been submitted after a hectic weekend of last-minute corrections. This year the questions were quite detailed, and much of our work was cutting the draft down to close to the recommended 20 pages. It turns out a who’s who of Finnish EU law scholars has written on the topics of interest to the general reporter, Jacques Ziller. The report will e reviewed and eventually published in the FIDE congress publication. Last year, I needed a second suitcase to bring home the books. The questionnaire is linked here: Topic_3_final_English
Article 83 TFEU contains the current express provisions detailing when the Union has been conferred competence to enact rules to approximate substantive criminal law (offences and penalties). The development of similar rules by the Court of Justice before the Lisbon Treaty was one of the most contentious developments of the past decade. Member States have, in legislative practice, continued to be cautious of EU initiatives based on these provisions.
Nevertheless, the express competence is carefully crafted. Article 83 contains almost a normative policy checklist of when the EU ought- and when the EU ought not, engage its competence to require criminal sanctions. Is it, for example, ‘essential’- a question examined in detail by i.a. Jacob Öberg.
However, for as long as the provisions have existed, it has not been clear whether they are exhaustive. Can other Treaty articles be used instead? This idea was unanimously opposed by the Member States, who voted in Council to change the legal basis of the PFI directive proposal (COM 2012 363) from Article 325 TFEU to Article 83 TFEU:
Recent case law of the CJEU suggests, however, that EU constitutional law may be more permissive than the Member States claim. In an article now published in the European Criminal Law Review, I review the recent case law on analogous issues to explain why this is so. The paper is now published:
Miettinen, Samuli, Criminal competence and the choice of legal basis: space in the margins? 2/2015 European Criminal Law Review 222-242.
When Protocol 21 on the position of UK and Ireland in the Area of Freedom, Security and Justice was drafted, its authors chose a novel and untested form of words: The states would be able to opt in (or not opt in) to measured ‘pursuant to Title V’. Why was this form chosen in lieu of the established legal basis rules, and what were its consequences? My (brief) talk at the University of Copenhagen on the UK experience before the court of justice, presented, 30.9.2015, is now published online. View the video here: http://jura.ku.dk/english/news/2015/european-criminal-law-and-justice/
The Council has now released the 2012 council legal service opinion which was subject to litigation in T-395/13. The full text can be found here: st12979.en12. Much of the opinion relates to perceived weaknesses in the proposed market abuse directive and regulation, subsequently passed as Regulation (EU) 596/2014 and Directive 2014/57/EU. Issues include the role of ne bis in idem in determining how each set of rules should be applied, but also the broader question of whether in the circumstances the directive really is ‘essential’ to ensure the effective implementation of the Regulation.
Whilst the UK is peering towards the exit, Denmark is expected to have a referendum on the possibility of more intense cooperation in the ‘area of freedom, security and justice’. On December 3, 2015 the Danes will vote on whether to convert their exclusion from this area under Protocol 22 to an opt-in like that now enjoyed by the UK and Ireland under Protocol 22. On September 30, Jesper Tynell from Danish Radio 1 interviewed me at the University of Copenhagen on what the Danes might learn from the UK experience. Listen to it here: http://www.dr.dk/radio/ondemand/p1/orientering-2015-10-06/#!/
Judgment in T-395/13 Miettinen v Council: ‘Widest possible access’ still includes legal service opinions
Today the General Court delivered judgment in my second transparency case, T-395/13 Miettinen v Council .
In 2013, I had requested a set of legal opinions relating to ongoing legislative procedures in the field of EU criminal law. Although some would say these are subject to legal privilege, they relate to how legislation is drafted. Since at least the 2008 Turco judgment, it is clear they should in principle be open to public scrutiny even if their drafters consider the advice sensitive. These opinions have, however, been fairly difficult to obtain in practice even after Turco.
Following my 2013 requests, some documents were received immediately, others through the ‘confirmatory application’ process. Several requests were denied, typically on grounds that the legal advice was particularly sensitive. One document was then received after lodging an action in case T-303/13 (link). Another was the subject of today’s judgment.
All of the documents involved drafting choices in legislative procedures, a major topic of my doctoral thesis at Helsinki. As the openness regulation states in its recitals, legislative procedures in particular should be open to public scrutiny. That is a value of particular importance in Nordic states.
In its judgment, the General Court dismissed all of the many reasons given in 2013 when the Council stated that it must deny access to the opinion. This opinion, if now released, is likely to inform several key debates in EU criminal law.
The reasoning of the General Court can be accessed here. Watch this space for analysis and discussion.
For most of the EU’s constitutional history, the Court of Justice has refused to admit evidence of the drafters’ intent when interpreting EU treaties. This is unlike the more permissive standard approach in international law: Articles 31 and 32 of the Vienna Convention on the Law of Treaties expressly provide for the travaux préparatoires to be considered as aids to interpretation. In several recent cases, the Court of Justice of the European Union has reversed its position. In the forthcoming issue of the Cambridge Yearbook of European Legal Studies (link to firstview published 3.8.2015), Merita Kettunen and I explore the case law and its ramifications on the future of European integration. The intent of the framers may conflict with integration goals, thus offering a counterweight to ‘ever closer union’. The new doctrine also invites reflection on how that intention is construed. Lively debates on this topic may be transposed from the United States to the European setting.