{"id":3238,"date":"2025-01-04T22:46:02","date_gmt":"2025-01-04T21:46:02","guid":{"rendered":"https:\/\/johan-callewaert.eu\/?p=3238"},"modified":"2025-01-05T13:02:59","modified_gmt":"2025-01-05T12:02:59","slug":"the-fields-covered-by-union-law-not-outside-the-fields-covered-by-the-convention-judgment-of-the-cjeu-in-the-case-of-pt","status":"publish","type":"post","link":"https:\/\/johan-callewaert.eu\/fr\/the-fields-covered-by-union-law-not-outside-the-fields-covered-by-the-convention-judgment-of-the-cjeu-in-the-case-of-pt\/","title":{"rendered":"“The fields covered by Union law”: not outside the fields covered by the Convention \u2013 Judgment of the CJEU in the case of PT"},"content":{"rendered":"\n

In the case of PT (agreement between the Prosecutor and the perpetrator of an offence)<\/em><\/a> (C-432\/22, 28.11.2024), the CJEU ruled on the compatibility with EU law of provisions of Bulgarian criminal procedure relating to plea-bargaining<\/strong>, i.e. a mechanism providing for the possibility to impose a more lenient penalty on an accused who pleads guilty.<\/p>\n\n\n\n

In the main proceedings, 41 persons<\/strong> were accused of drug related offenses<\/strong> in one set of proceedings. Two of them entered into a plea-bargaining agreement<\/strong> with the Public Prosecutor.<\/p>\n\n\n\n

The first question submitted to the CJEU by the referring court, a Specialised Criminal Court, related to a provision according to which it is for an ad hoc<\/em> court<\/strong>, and not the court responsible for the case, to rule on an agreement for settlement<\/strong> of the case entered into by a defendant and the public prosecutor, where other defendants are also prosecuted in the same proceedings. The second question concerned a provision which, in criminal proceedings brought against several defendants on the basis that they had participated in the same organised criminal group, makes the judicial approval<\/strong> of an agreement for settlement of the case, entered into by one of the defendants and the public prosecutor, subject to the consent of all the other defendants<\/strong>. <\/p>\n\n\n\n

The CJEU detected no incompatibilities<\/strong> between these provisions and EU law. In its opinion, the first of these provisions was justified by the need to preserve the impartiality of the trial court<\/strong> which will have to assess the guilt of the other defendants, whereas the second provision sought to preserve their rights of the defence<\/strong>.<\/p>\n\n\n\n

What is particularly noteworthy about this case, from a Convention point of view, is the CJEU\u2019s reasoning as regards its own jurisdiction<\/strong>.<\/p>\n\n\n\n

In a first step, the CJEU indeed considered that the provisions of the Bulgarian Code of Criminal Procedure at stake in the present case did not come within the scope of the EU-Charter<\/strong>, because they did not constitute \u201cimplementation of Union law<\/strong>\u201d, for the purposes of Article 51(1) of the EU-Charter<\/strong>, in respect of the relevant provisions of Framework Decisions 2004\/757 (laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking) and 2008\/841 (on the fight against organised crime).<\/p>\n\n\n\n

In other words, in the absence of an EU law obligation to legislate<\/strong> on the settlement of criminal cases, at issue in the present case, there was no sufficient \u201cdegree of connection<\/strong>\u201d between the relevant national and EU law provisions. Consequently, the CJEU did not have jurisdiction <\/strong>to answer the questions submitted by the referring court in so far as they concerned Article 5 of Framework Decision 2004\/757, Article 4 of Framework Decision 2008\/841, the first and second paragraphs of Article 47 and Article 52 of the Charter (\u00a7 43). <\/p>\n\n\n\n

Interestingly, however, the CJEU then decided to consider the case under the 2nd<\/sup> subparagraph of Article 19(1) TEU<\/strong>, the provision which \u201cgives concrete expression to the value of the rule of law<\/strong> affirmed in Article\u00a02 TEU\u201d and which to date has been mainly applied as enshrining the requirement of judicial independence<\/strong>, as e.g. in Inspec\u0163ia Judiciar\u0103<\/a><\/em>. According to this provision, which has direct effect (\u00a7 54), the Member States shall provide remedies sufficient to ensure effective legal protection \u201cin the fields covered by Union law<\/strong>\u201d.<\/p>\n\n\n\n

In this connection, the CJEU recalled that the 2nd<\/sup> subparagraph of Article 19(1) TEU is intended, inter alia<\/em>, to apply to any court or tribunal<\/strong> which can rule on questions concerning the interpretation or application of EU law<\/strong> and which therefore falls within the fields covered by that law, irrespective of any implementation of Union law<\/strong> (\u00a7\u00a7 45-46). As this was the case with the referring court, the CJEU had jurisdiction, under that provision, to deal with the two first questions submitted by that court.<\/p>\n\n\n\n

The CJEU then inferred from the 2nd<\/sup> subparagraph of Article 19(1) TEU some new and specific requirements concerning the impartiality<\/strong> of the courts and the rights of the defence<\/strong> in the context of plea-bargaining proceedings<\/strong>, which were considered as fulfilled by the Bulgarian provisions at stake. <\/p>\n\n\n\n

Even more interesting, from a Convention perspective, is the link<\/strong> established by the CJEU between the 2nd<\/sup> subparagraph of Article 19(1) TEU<\/strong> and Articles 47, second paragraph, of the EU-Charter<\/strong> and 6 \u00a7 1 of the Convention<\/strong>. Considering that the principle of effective judicial protection<\/strong> was a general principle of EU law which was enshrined in the second paragraph of Article 47 of the EU-Charter<\/strong>, and considering that according to the Explanations relating to the EU-Charter, the second paragraph of Article 47 corresponds to Article 6 \u00a7 1 of the Convention<\/strong>, the CJEU indeed concluded that, pursuant to Article 52(3) of the EU-Charter<\/strong>, it had to ensure that its interpretation \u201cin the present case\u201d ensured a level of protection which did not disregard that guaranteed by Article 6 \u00a7 1 of the Convention<\/strong>, as interpreted by the ECtHR (\u00a7\u00a7 51-52).<\/p>\n\n\n\n

This would appear to be the first time the CJEU considers the Convention as a benchmark<\/strong> when applying Article 19(1) TEU<\/strong> (on the benchmark function of the Convention in EU law, see The Recent Luxembourg Case-Law on Procedural Rights in Criminal Proceedings<\/a><\/em> and Benchmark function of the Convention stressed by the CJEU in Mirin and Real Madrid Club de F\u00fatbol<\/a><\/em>).<\/p>\n\n\n\n

Not only does this approach serve to ensure consistency of the CJEU case-law<\/strong> with that of the ECtHR. It also allows the national judges<\/strong> applying this rather novel Luxembourg case-law to be satisfied that by doing so, they also comply with the Strasbourg case-law<\/strong>, in respect of which they can be held liable in an application before the ECtHR<\/strong>.<\/p>\n\n\n\n

The \u201cfields covered by Union law<\/strong>\u201d are indeed not outside the \u201cfields covered by the Convention<\/strong>\u201d. As the ECtHR put it, inter alia<\/em> in Bosphorus v. Ireland<\/em><\/a>, \u00a7 153: \u201cA Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations. Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of a Contracting Party’s \u201cjurisdiction\u201d from scrutiny under the Convention<\/em>\u201d.<\/p>\n","protected":false},"excerpt":{"rendered":"

In the case of PT (agreement between the Prosecutor and the perpetrator of an offence) (C-432\/22, 28.11.2024), the CJEU ruled on the compatibility with EU law of provisions of Bulgarian criminal procedure relating to plea-bargaining, i.e. a mechanism providing for the possibility to impose a more lenient penalty on an accused who pleads guilty. In […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23,19],"tags":[],"class_list":["post-3238","post","type-post","status-publish","format-standard","hentry","category-court-of-justice-of-the-eu","category-recent-case-law"],"translation":{"provider":"WPGlobus","version":"3.0.2","language":"fr","enabled_languages":["en","de","fr"],"languages":{"en":{"title":true,"content":true,"excerpt":false},"de":{"title":false,"content":false,"excerpt":false},"fr":{"title":false,"content":false,"excerpt":false}}},"_links":{"self":[{"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/posts\/3238","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/comments?post=3238"}],"version-history":[{"count":5,"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/posts\/3238\/revisions"}],"predecessor-version":[{"id":3245,"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/posts\/3238\/revisions\/3245"}],"wp:attachment":[{"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/media?parent=3238"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/categories?post=3238"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/tags?post=3238"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}