EU law and international cooperation in criminal matters: a tale of legal competence and political competency

Abstract

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.