Recent attempts of supranationalization in the third pillar of the European Union

(By Igor Blahusiak)

The Police and Justice Cooperation in the Criminal Matters formed the so-called 3P of the EU, which was established by the Treaty of the European Union, signed in 1992 in Maastricht.

Third Pillar characteristics:

  • A range of different legal instruments – joint positions, joint action and conventions used instead of regulations, directives and decisions;
  • Different decision-making structures were construed – Directorial Committees, Coordinating Committee (K.4 Committee) with JHA Council – left Commission, EP and the Court of Justice with significantly less competences then in the Community Pillar (1P);
  • A possibility of ‘communitarization’ of some of the 3P subject matter.

TREATY OF AMSTERDAY signed in 1997 transferred judicial cooperation in civil matters into the 1P, shrinking the 3P to encompassing police and judicial cooperation in criminal matters only.

TREATY OF NIECE established Eurojust and made amendments the provisions concerning enhanced cooperation among the MSs.

TREATY OF LISBON completely abolished the pillar structure of the EU.  Thus, the procedures and review mechanism of old 1P were extended to the Police and Judicial Cooperation in the Criminal Matters.

There is a possibility of establishment of minimal rules concerning definitions and sanctions for criminal offences by the directives of EP and the Council enacted by the ordinary legislative procedure.

Also, if there is a need for harmonization of criminal laws for effective implementation of a Union policy, directives can set minimal rules for definition of offences and sanctions.

*Case C-440/05 Commission v the Council – ruling in this case made it clear how the Commission can act when proposing a new legislation in the field that could fall within the remit of the 3P; it had a right to propose such legislation, but only under strict conditions of effectiveness, proportionality and dissuasiveness.  Additionally, the sanctions could be imposed only when a need arose when implementing a Community policy and the Commission did not have a right to specify the nature of criminal sanctions.

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