The increasing integration of Europe is opening up opportunities for criminal defense lawyers in particular to provide legal assistance across borders. In the area of criminal law, the European arrest warrant in particular is expanding the field of activity of the lawyer. The freedom to practice law is guaranteed throughout the European Union. In principle, no European lawyer acting in the European Union may be rejected by a court, regardless of the instance. This is guaranteed by the Treaty establishing the European Community (EC Treaty), in this case by the so-called fundamental freedoms:
The freedom to provide services in accordance with Articles 59 and 60 of the EC Treaty ensures that lawyers are allowed to travel to other European countries for criminal defense work ("active freedom to provide services"), that clients can visit them ("passive freedom to provide services"), and that the client may correspond with his lawyer from the respective place of residence.
The freedom of establishment according to Art. 52 EGV ensures that lawyers may pursue an activity independently and permanently in a member state under the same conditions as nationals. This includes the establishment and exercise of self-employment as well as the establishment and management of companies. These may be head offices or branches. The freedom to travel rounds off the lawyer's borderless activity.
a.) The Council Directive to Facilitate the Effective Exercise of Freedom to Provide Services by Lawyers
In order to realize the European liberalization of cross-border legal activity, the "Council Directive to Facilitate the Actual Exercise of Freedom to Provide Services by Lawyers" was issued in 1989. In this, the member states committed to mutual recognition of lawyers. This means that no European lawyer must fulfill further admission and recognition requirements. So aptitude tests for foreign lawyers are no longer permitted. However, a foreign lawyer must use the professional title used in their country of origin for the first three years of their employment (for example: "Advocat"). The directive has been amended several times and is now a reliable set of rules. It greatly facilitates cross-border legal practice.
b.) The German EuRAG
The law on the activities of European lawyers in Germany (EuRAG) regulates the details of the professional practice of established European lawyers in Germany. A European lawyer must first register with the relevant bar association. He must use the professional title applicable in his country of origin for the first three years of his practice. Of course, the foreign lawyer must take out professional indemnity insurance or at least provide evidence of insurance in his country of origin that is equivalent to that in Germany. After three years, the foreign lawyer is allowed to drop the professional title of the country of origin if he has regularly worked in German law for three years. According to the decision of the European Court of Justice (ECJ) in the "Vlassopolou" case, these requirements are also considered to have been met if the candidate has written a dissertation on German law. An aptitude test no longer takes place. The latter was declared contrary to European law by the ECJ.
c. De Facto Barriers to Criminal Defense in Other EU Countries
Despite the freedom to provide services for lawyers guaranteed by the EC Treaty, there are still various barriers to criminal defense in other EU countries. The language problem should be mentioned here first, as well as a lack of knowledge of foreign law. European lawyers' associations therefore advocate a professional duty to refuse a client if there is a lack of knowledge of the corresponding foreign legal system (Art. 3.1.3. CCBE).
This proposal should be fully endorsed to ensure that the European criminal defense lawyer does not become a "fast seller" in liability proceedings. To avoid a loss of quality, a locally specialized colleague should be consulted. However, the latter is only conceivable if the client has sufficient financial liquidity.
In addition, the judiciary in the member states regularly denies lawyers from neighboring countries equal status. Many courts have not yet heard of the above-mentioned developments in EC law. The appearance of a lawyer in a foreign country is still considered exotic. Some administrations still insist on language or aptitude tests, or require a local correspondent lawyer, or reject a lawyer from another EU country due to a lack of permission to represent. This should be systematically challenged by means of a complaint (case law on the prohibition of discrimination against lawyers in other EU countries: inadmissible rejection as defense counsel StraFo 1998, pp. 161 f.; StraFo 1999, p. 89).
d. New developments in the context of "European criminal law"
aa.) The European Arrest Warrant
The European arrest warrant expresses, at least according to the official website of the European Commission, the mutual trust between the member states, especially since the decisions of their judges and courts are mutually accepted. However, this trust was not quite so strong, considering that the Federal Constitutional Court had ruled the European Arrest Warrant Act to be unconstitutional in 2005. The central point of contention was the extradition of German citizens and thus a departure from Article 16 of the Basic Law. The teething troubles have now been largely resolved. The idea underlying the European Arrest Warrant, namely to quickly and easily surrender wanted suspects anywhere in the EU to the member state in which the underlying criminal offense was committed, is justified in principle. The right of freedom of movement within Europe must not be misconstrued as a right to commit transnational crimes or to provide safe havens for criminals. Contrary to the linguistic understanding, the European arrest warrant is only an instrument of arrest based on a national basis of detention. It has now become part of the standard practice in criminal proceedings and offers an interesting field of activity at home and abroad. The legal framework is set out in the International Mutual Assistance Act. According to § 22 IRG, the person arrested provisionally is to be brought before the judge of the nearest district court without delay, at the latest on the day after the arrest. Like any other defendant, he has the right to remain silent and can avail himself of the services of a lawyer at any stage of the proceedings. If the factual and legal situation is difficult, the defendant will be appointed a procedural adviser (Section 40 IRG). This is the counterpart to the duty of defense according to Section 140 StPO. The prohibition of double jeopardy is standardized in Section 83 IRG. In Germany, the Higher Regional Court has jurisdiction to review whether there are grounds for refusing extradition. The enforcement of the European Arrest Warrant may be considered a political success for the EC institutions. In fact, based on experience to date, it has not achieved the significant acceleration compared to conventional mutual legal assistance proceedings that was originally intended. In practice, language barriers or a rather subordinate interest on the part of the requested state often still present barriers.
bb.) "corpus juris Florence"
In addition to the necessity for a lawyer to be familiar with the criminal law and criminal procedure of neighboring countries, efforts are being made to establish a community-wide code of criminal procedure.
To combat fraud at the expense of the financial interests of the EC, a commission of experts drafted the "corpus juris Florence". A core of European rights of the accused, similar to the ECHR, has been included in this set of rules. The controversial implementation of this work and the appropriate enabling act (probably Art. 280 IV EGV) are currently being discussed. However, the Member States are distanced from this, as they fear that they will have to cede competences in the area of criminal law to the EC. This is traditionally rejected, since criminal law is almost the only area that has remained untouched by European integration and the Member States do not want to lose their last "bastion of competence".
cc.) Law enforcement authorities at EU level
The range of law enforcement authorities at EU level is constantly being expanded: In addition to Europol, the European Anti-Fraud Office (known by its French acronym "OLAF" - Offlice de la Lutte Anti-Fraude) has existed since 1999. The office is an independent department with investigative powers to combat fraud against the financial interests of the EC. Attempts to expand the office to include other areas of crime failed during the Treaty negotiations in Nice due to resistance from the EC member states, which did not want to cede any of their national sovereignty. Instead, "Eurojust" was created in the version of the EC Treaty of Nice in Article 29 TEU. Eurojust is intended to facilitate the exchange of information among the Member States. However, the exact competences of Eurojust have still not been conclusively determined.
dd.) Criminal law powers of the EC
In principle, the EC has no criminal law competence of its own. The competence of the EC organs to harmonize the domestic legal systems must be distinguished from this. In a widely noted decision of 13 September 2005 - C-176/03 (Commission/Council) - the European Court of Justice ruled that the European Community is authorized to harmonize the criminal law of the Member States to combat environmental crime to the extent necessary. The Court has ignored the Member States' reservations regarding the EC's criminal law powers. This is referred to as the EC's "harmonization competence" by directive. The European Court of Justice confirmed its case law in the judgment of 13 September 2005 - C-176/03 in the decision of October 23, 2007 (C-440/05). In the latter judgment, it annulled Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution.The significant ECJ rulings of 2005 and 2007 are transferable to other policy areas. The speed with which integration in European criminal law has progressed can be seen from the fact that even the approximation of national criminal law was a taboo subject some time ago. Such developments not only refute the widespread misconception of an "immunity" or "blindness" of national criminal law to European influences, but also result in an immense loss of national sovereignty. Occasionally, the view is expressed in the EC organs that, where necessary, the enactment of criminal law provisions is also
ee.) The necessity of harmonizing the Member States' penal codes
There are enormous differences between the individual criminal codes and codes of criminal procedure in the Member States. These differences relate to substantive criminal law, for example, differences in the area of perpetration/participation or single perpetration, the punishability of attempts, the punishability of legal persons, the punishability of contributory negligence, the scope of criminal law, as well as the level of sanctions. The latter varies in the member states from fines to 6-year prison sentences. The legal systems also differ greatly in the area of criminal procedure. There are significant system differences, for example, in the area of the legality/opportunistic principle, as well as the jurisdiction of the courts in interim proceedings, etc.
Due to the differences mentioned, there is an increasing phenomenon of crime tourism. Some market participants analyze the differences in the criminal law systems and let themselves be influenced in their choice of location. This makes the creation of a European penal code and criminal procedure imperative.
ff.) Innovations in the draft of a contract to amend the Treaty on European Union and the Treaty establishing the European Community of 07.10.07
The draft of a treaty amending the Treaty on European Union and the Treaty establishing the European Community of October 7, 2007 also contains significant criminal law reforms. According to Article 69 f EU, theEuropean Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall be able to establish, by means of directives, minimum rules concerning the definition of criminal offenses and sanctions in the areas of particularly serious crime with cross-border dimensions resulting from the nature or impact of such offenses or from a special need to combat them on common bases. The following are listed as such areas of crime: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organized crime.
Art. 69 e EU also stipulates that the European Parliament and the Council may establish minimum rules by means of directives. The minimum harmonization should relate to (a) the admissibility of evidence on a reciprocal basis between Member States, (b) the rights of individuals in criminal proceedings, (c) the rights of victims of crime and (d) other specific aspects of criminal procedure, which have been previously determined by the Council by means of a decision. The interests of national sovereignty are treated with great care in accordance with the respective paragraphs 3 of Articles 69e and 69f of the EU Treaty. This is only a minimum harmonization, which is not associated with any significant loss of competence on the part of the member states.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.