Theodore Konstadinides

Constitutional Identity as a Shield and as a Sword: The European Legal Order Within the Framework of National Constitutional Settlement

The pitfalls of the relationship between European and national judges constitute a well-travelled ground in literature, especially with regard to ‘sagas’ over the reconciliation of national sovereignty with EU law primacy. Hence, the contribution that this article is attempting to make is to explore the judicial understanding and potential of the concept of constitutional identity in the light of the newly-introduced Article 4(2) TEU by the Treaty of Lisbon, which makes it explicit that national identity encompasses constitutional specificity.

EU Law and International Cooperation in Criminal Matters: A Tale of Legal Competence and Political Competency

This chapter aims to analyse the external dimension of EU criminal law through a discussion of the external profile of the AFSJ, the domicile of the EU’s acquis in the field of criminal law. It is argued that in view of growing security challenges from outside the EU borders, the external dimension of the AFSJ is not only crucial to EU internal but also, and perhaps most importantly, global stability and security. To this end, the preservation of the AFSJ necessitates inter alia EU international cooperation with non-Member States in criminal matters. Beyond the EU classic range of instruments, such as bilateral agreements with third countries on extradition or priorities set in the context of Association Agreements, EU international cooperation in criminal law also includes less known individual mechanisms. In the AFSJ context such mechanisms include, inter alia, a strategic partnership with Russia outside the context of the European Neighbourhood Policy, individual arrangements with the US covered by the New Transatlantic Agenda , as well as external aid programmes and institution building contributing to good governance and the rule of law in the Western Balkans. This chapter will commence with an analysis of EU criminal justice as an external policy. It will identify its restrictions based on the lack of criminal law competence in the foreign policy realm. In lieu of the lack of such competence, the chapter will then discuss the advancement of indirect EU international cooperation in criminal matters by identifying briefly the instruments available and their legal basis. It will then turn into some case studies, starting with a consideration of the EU’s strategic partnership with Russia and the potential of a new EU-Russia legally binding agreement with criminal law implications and the issues of legislative competence surrounding it. The chapter will move on to consider EU policy on capabilities enhancement in the Western Balkans as part of the development of regional cooperation with a view to EU accession. Once legal competence is established in this context, the purpose there is to evaluate the political competency of the EU to influence public policy in the field of criminal justice. We will also attempt to identify actual and potential stumbling blocks in the transfusion of EU rules and norms to neighbouring states. The time is ripe since the first forms of EU criminal law post-Lisbon have been enacted and a new constitutional dimension has attached to this field an external dimension which is worth observing.

Mapping European Defence Cooperation

The post-Cold War era has witnessed a set of changes in the security landscape faced by European states which have important implications for the institutional architecture of European security. The bi-polarity of the Cold War and threat of attack by the Soviet Union has given way to a more uncertain and diffuse range of security threats, including environmental security, transnational crime, global pandemics, international terrorism, failed states and the proliferation of weapons of mass destruction (WMD).1 At the same time, several more traditional security issues persist. As North Sea oil and gas reserves begin to mature, European states face the challenge of ensuring security of gas, particularly oil, supplies in the context of an increased scarcity of resources. European states must also cope with the challenge of managing the rise of new powers in the international system: the emergence of China and India as global players and the re-emergence of Russia.2

Theoretical Contestation on European Defence Cooperation

Debate on the variables which should take prominence in explaining the development of CSDP is characterised by a high level of theoretical contestation. Several theoretical schools and approaches claim to provide analytical leverage, including constructivism, governance, Europeanisation, liberal intergovernmentalism, two-level games theory, institutionalism and classical realism. This chapter undertakes a critical examination of these approaches. It finds that existing accounts of the post-Cold War development of Europe’s security and defence architecture fail to provide convincing explanations of the pattern of intergovernmental cooperation outlined in Chapters 1 to 3. These approaches do not fully stand up to empirical scrutiny and fail to properly account for the important role played by structural variables from the international system in driving and hindering European defence cooperation. The chapter argues that neorealism’s theoretical competitors have been guilty of presenting the theory as a ‘straw man’: of dismissing the theory’s utility while engaging only with a limited range of neorealism’s potential insights.

The Application of EU Law in Defence Collaboration and Armament Procurement

Collaborative procurement constitutes an attempt of states to share expenditure over the development or production of military equipment.1 In recent years the EU has taken active steps to consolidate the economic aspects of the CSDP via defence industrial consolidation and more efficient public procurement. These steps have sought to enhance the competitiveness of European defence firms and make the best of the limited resources allocated to defence while also avoiding the duplication of capabilities. Defence procurement in Europe has been regulated both within the auspices of the EU and outside EU structures. The main EU instruments regulating defence procurement law are the principles emanating from the EU treaties and a number of directives, which are examined below. Furthermore, the EDA, which has been operative since 2006, is responsible for promoting European armaments cooperation by opening up the defence markets of the member states and promoting efficient and fair competition.

Explaining European Defence Cooperation

As the previous chapter has highlighted, the legal bases of European defence cooperation raise serious questions about the utility of existing theoretical approaches in understanding the scope of European defence cooperation. This chapter finds that the patterns of progress and stasis in European defence cooperation which are identified in Chapters 1–3 can be explained by a focus on the contradictory imperatives of neorealist thought. The ‘push and shove’ effects of the ‘balance of threat’ are creating strong centripetal forces driving European states towards convergence in the overall strategic direction of their defence and security policies. The chapter argues that this convergence has taken the form of a process of ‘reformed bandwagoning’ on US power, characterised, as demonstrated by Chapters 1–3, by cooperation that is intergovernmental and more densely institutionalised only in areas which do not have highly significant ramifications for a European states’ relative power.

The Legal Underpinnings of European Defence Cooperation

As explored in Chapter 1, defence cooperation at EU level emerged not until late after the end of the Cold War. Yet the Common Security and Defence Policy, formally known before the Treaty of Lisbon as the European Security and Defence Policy (ESDP), ‘lifted off’1 in 1999 as an EU second pillar activity (CFSP).2 It was formally launched in June 1999 by the Cologne European Council.3 As such, CSDP constitutes a relatively ‘new step in the construction of the European Union’, adding to its political weight on the international stage.4 Although it has ‘exhibited the same characteristics that have shaped the development of CFSP’,5 CSDP is characterised by a stricter attribution of competences.6 This is because security matters, such as defence budgets and operational military decisions, are central to national sovereignty and, thus, exclusively determined by member states. Yet, in recent years, the EU has been under greater pressure to craft a defence identity. The political process of what now constitutes the CSDP grew out of the so-called European Security and Defence Identity (ESDI). This reach for an ‘identity’ was merely an attempt made in the beginning of the 1990s to shift responsibility and influence within NATO to the European members of the Alliance.7 Yet, against the intentions of those who might have wished for a robust European role in security, the wars in Bosnia (1995), Kosovo (1999) and, more recently, the civil war in Libya and the anti-government protests in Syria (2011)8 have confirmed both Europe’s lack of defence capability and the European military forces’ reliance upon existing NATO military assets and structures.9

The Europeanisation of Extradition: How Many Light Years Away to Mutual Confidence?

The objective set for the Union to become an Area of Freedom, Security and Justice has led, amongst other things, to abolishing extradition between Member States and replacing it with a simplified system of ‘surrender between judicial authorities’. Following the September 2001 terrorist attacks in New York, and having considered the potential impact on the fight against crime and terrorism, the heads of State and Government of the European Union, the President of the European Parliament, the President of the European Commission, and the former High Representative for the Common Foreign and Security Policy jointly called for a new system that would make it easier for justice to be administered across the EU through the enforced transfer of persons from one Member State to another. The draft legislative resolution on the Commission proposal for a Council Framework Decision on the European Arrest Warrant (EAW) was adopted on 13 June 2002 by the Council, establishing a pan-European warrant for search, arrest, detention and surrender to the judicial authority of the issuing country. As a consequence, in 2004 the EAW gradually replaced extradition between Member States. Undeniably, the Framework Decision on the EAW has added impetus to the EU counter-terrorism response, which since the terrorist bombings in Madrid (March 2004) and London (July 2005) has expanded incrementally through the adoption of a panoply of measures. At the time of writing, not only has the EAW been implemented by all the Member States but it is operational in most cases.

The Perils of the 'Europeanisation' of Extradition Procedures in the EU: Mutuality, Fundamental Rights and Constitutional Guarantees

This article focuses on the main problems regarding the current application of EU extradition procedures in relation to the area of judicial cooperation in criminal matters. It introduces the ‘Europeanisation’ of extradition procedures through a discussion based on the continuity of the principle of mutual recognition from the EC Treaties to the EU Constitutional Treaty. The latest manifestation of this continuity is the introduction of the European Arrest Warrant (adopted on 13 June 2002) that is aimed at simplifying the extradition procedures for suspected criminals within the territory of the European Union by creating a positive list of criminal areas. The author discusses the innovations introduced by the Framework Decision on the European Arrest Warrant (abolition of the test of dual criminality) and then focuses on two main problem areas based on the reaction of certain Member States: i) the compatibility with constitutional guarantees, where the author focuses on the eagerness of the national courts to contest the constitutionality of the EU Arrest Warrant implementation laws for authorising the extradition of their own nationals; ii) the compatibility with Human Rights, where the author argues that the principle of mutual recognition is not adequate for adjudicating interstate criminal cases when it operates in isolation. The article then focuses upon the balance between procedural efficiency and civil liberties and proposes certain procedural and institutional checks that would assist in moving from the current embryonic stage of EU criminal law to its adolescence.