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

:: 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

: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

: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)

: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)

: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

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

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

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.”

(1) Court can interpret 3rd pillar Treaty provisions

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

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.”

(2) Court can give preliminary rulings on 3rd pillar acts even where it cannot under art. 35(2)

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

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.”

(3) Law under 3rd pillar penetrates national law, including FDs

:3/5: the Court's contribution

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”.

(1) Consistency of legal system restored

:3/5: the Court's contribution

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)

(2) mutual recognition

:3/5: the Court's contribution

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

(3) urgent procedure

: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)

: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)

: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

:: Conclusion

Thank you

:: illustrations1: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/.

:: illustrations10: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/.