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Viviane Reding

Vice-President of the European Commission responsible for Justice, Fundamental Rights and Citizenship

The EU judicial system of protection after Lisbon

Conference 'Implementing the Lisbon Treaty'

Brussels, 10 February 2011

Ladies and Gentlemen,

The Lisbon Treaty has now been in force for fourteen months. Not long in the overall scheme of things. But, as your Justice Commissioner I can tell you its impact has certainly been strongly and positively felt within the Justice portfolio.

It is often said that the Lisbon Treaty is only about institutions and procedures. This is certainly not true. I have myself seen in the field of Justice that the Lisbon Treaty helps us enormously to deliver concrete results for citizens, for the daily functioning of Europe's single market and for the creation of a European area of justice. The Justice portfolio is certainly the area where you can best see how procedural innovations and institutional changes give political leaders instruments to bring about substantial change.

From the very start of this new mandate, I was only too aware of the responsibility and opportunity that this represented. A responsibility because it would no longer be possible to blame the limitations of the old pillar structure, but at the same time an opportunity to start building, now equipped with the necessary institutional and legal tools.

One of the major innovations of the Lisbon Treaty has been the enhancement of the system of judicial protection. The old third pillar has been removed, allowing the full set of legal remedies and guarantees to apply to the area of police and judicial cooperation in criminal matters.

The Lisbon Treaty reinforced the role of the Court of Justice. The Court acquired general jurisdiction to give preliminary rulings in the area of freedom, security and justice. On police and judicial cooperation in criminal matters, the jurisdiction of the Court of Justice to give preliminary rulings became binding and is no longer subject to a declaration by each Member State. In fact, only 17 Member States had previously made such a declaration. Now, any court or tribunal may request a preliminary ruling from the Court of Justice.

The national courts have been quick to understand these changes. In 2010 the number of requests for preliminary rulings in this area doubled to 20 compared to the previous year.

I believe that the extension of the Court's jurisdiction to the entire field in the area of freedom, security and justice has been, from the point of view of positive law, the main innovation of the Treaty of Lisbon in the field of judicial protection.

The removal of the old third pillar introduces the possibility of infringement procedures in that area, which could be launched by the Commission to enforce EU law and the rights of citizens as guaranteed by EU law. Given the five year transition period, the impact of this change may sometimes take slightly longer to be felt in its entirety. However, the Commission has the possibility to speed up matters in selected areas by "Lisbonising" some of the old third pillar instruments. The Commission has started to do so in the field of procedural rights for suspects and accused persons in criminal proceedings, and in a few weeks time, I will follow this up with regard to the rights of victims.

The first "Lisbon baby" – the first-ever Directive on criminal law was on the rights of the individual e.g. the Directive on the right to interpretation and translation in criminal proceedings – was adopted in record time showing that Lisbon works fine!

I am confident that these changes will allow us to move away from an à la carte approach, with no guarantees of uniform interpretation and application of EU law.

The normalisation of approach in criminal justice matters also extends to the mechanism for law-making. We have seen the extension of qualified majority voting and of co-decision. The full involvement of the European Parliament is in particular a change of seismic importance. It is obvious that this change adds to the democratic legitimacy and enhances the transparency of the legislative process. But it has also added a new political dynamic.

Beforehand, decisions were taken by ministers behind closed doors. Neither the European Parliament, nor the Court of Justice, nor the Commission were involved in the process. The result was poor legislation, insufficient consideration of individual rights and a focus on repressive instruments such as the European arrest warrant.

Under the Lisbon Treaty, the European Union legislator has the possibility to strengthen national mechanisms for judicial protection, notably by approximating the laws regarding proceedings; in order to increase mutual trust and improve judicial cooperation in criminal matters. The acts of EU secondary legislation which are aimed at strengthening national judicial protection systems by approximating the procedural laws of the Member States are already playing a central role in the post Lisbon efforts to consolidate an area of freedom, security and justice. I stress again the work on the procedural rights for suspects and accused persons in criminal proceedings. In 2010, the EU adopted common minimum standards on the right to interpretation and translation. The Commission has also proposed rules requiring that suspects of a criminal offence be informed of their rights in a language they understand. Anyone arrested either for a criminal offence or under a European Arrest Warrant will be informed in writing, in a document called Letter of Rights, of their basic rights at the time of arrest and what they are accused of. This year, we will continue to strengthen fair trial rights, by proposing rules to render effective the access to a lawyer and the right to communicate with family members, consulates or employers.

In courts, not only the defendants, but also the victims of crime have rights that need to be respected. The Commission is keen on improving their situation. In spring, the Commission will present a package of measures to improve the rights, protection and support of all victims of crime throughout the justice process and beyond the trial. The aim is to "Lisbonise", or to strengthen, the incomplete judicial protection of the old third pillar instruments, such as the Framework Decision on the position of victims in criminal proceedings.

In my account of experience with implementing the Lisbon Treaty I also have to mention the impact of Article 6 of the Treaty on European Union. In this context we took two decisive steps towards a Europe of fundamental rights. Firstly Article 6 transforms the Charter of Fundamental Rights of the European Union into a legally binding instrument and secondly it introduces an obligation for the EU to accede to the European Convention on Human Rights. Both of these changes will enhance the system of judicial protection and they are rather complementary in nature.

Implementation of Article 6 has been a priority for me as EU Justice Commissioner. Last summer, in July, on the basis of a mandate agreed by the Council, I started negotiations with the Council of Europe on the accession to the European Convention on Human Rights. In October, the Commission adopted a Strategy on the effective implementation of the Charter. The aim of the Strategy is to ensure that the Union sets an example in upholding fundamental rights.

Given that the Charter applies most particularly to the work of EU institutions and bodies, the Strategy has a focus on the EU law-making process. It sets out a new "fundamental rights checklist" to be applied by the Commission when drawing up proposals and acts. The overall objective is to embed a fundamental rights culture or reflex right from the start of work on a proposal. This will enable a clearer identification of the fundamental rights affected, thereby assisting in the assessment of the proportionality, necessity and effectiveness of the measure.

The ultimate success of the Strategy will of course not only depend on the approach taken by the Commission. Both the European Parliament and the Council need to share the same fundamental rights reflex, so that the legislation finally adopted is irreproachable. Having transmitted the Strategy to both institutions, I am encouraged by the seriousness of the debate that now follows on this subject.

Ladies and Gentlemen,

I see from today's programme that you have a busy and stimulating afternoon ahead of you, with a discussion on the EU system of judicial protection.

The EU system of judicial protection is the basis on which the EU is built. We do not have an EU police force or EU army to uphold the law. The European Union is not that kind of construction. Instead, the force that binds us together is the rule of law, which in turn depends on the mutual trust that our judicial systems place in each other. Europe is a "Rechtsgemeinschaft", as Walter Hallstein, the first Commission President, said very rightly, a Community governed by the rule of law. After Lisbon, this is even truer than before.

We now have the possibility to build this continent as a space of justice firmly grounded on the rule of law. The beginning has been promising and we have set off at a solid pace. The continuation will be thrilling.

Thank you for your attention.

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