New Issues, Theories and Methods
Judicial Review and Cooperation series
Edited by Bruno de Witte, Juan A. Mayoral, Urszula Jaremba, Marlene Wind and Karolina Podstawa
Chapter 11: Immigration and criminal law: is there a judge in Luxembourg?
Ensuring full and correct implementation of European Union legislation – particularly when adopted in the form of a directive – is among the most complex issues affecting the legal order of the EU. Once the institutions in Brussels come to an agreement and approve a new directive, their role ceases and it is then for the Member States to transpose it into national legislation. As is well known, the Commission – in its role as ‘guardian of the treaties’ – is tasked with overseeing the application of Union law, under the control of the Court of Justice (Art. 17, TEU). In this capacity it may initiate infringement proceedings (Art. 258 ff., TFEU). However, this is an incredibly complex task, requiring a good deal of cooperation from Member States themselves in providing the Commission with information and engaging with it in order to remedy any late or incorrect transposition. Over the years, more and more sophisticated tools for enabling the Commission to properly fulfil this duty have been developed: among them, correlation tables, guidelines, scoreboards and the EU Pilot. The outcomes of the use of such tools are periodically summarized in the Commission’s Annual Report on Monitoring the Application of EU Law which provides a general picture of the state of implementation of EU law. Yet, challenges have been voiced concerning the effectiveness and the proper functioning of such specialized, targeted tools. Some of them are less effective than predicted, others are open to criticism due to their confidential nature, while others are simply not used sufficiently. The correct implementation of instruments adopted to develop an area of freedom, security and justice (Art. 3(2), TEU and Title V, TFEU) is doubly problematic. Firstly, the Court of Justice has only recently obtained full competence to oversee the application of such legislation, which was, until recently, under a transitional regime: the Commission only obtained full powers to launch infringement proceedings in all fields related to this area (including, in particular, criminal matters) in December 2014. Secondly, given the extreme political sensitivity of the subject-matter, which affects the core of the Member States’ sovereignty, ensuring correct transposition and application can be a minefield for European institutions. It therefore comes as no surprise that directives adopted in the field of citizenship and fundamental rights are only transposed in a timely fashion in 21 per cent of the cases, while directives adopted in the area of judicial cooperation suffer from a complete lack of Member State communication regarding the measures taken to implement them.
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