Mr Bot, thank you for seeing us in your office. You are Advocate General to the Court of Justice of the European Union. What is the role of the Advocates General?

Advocate General Yves Bot:

The role of the Advocates General was laid down legally in a famous order of the Court in the Emesa Sugar case. To put it simply, the role of the Advocate General is to publicly - acting as a member of the Court, and therefore independently, objectively, etc. - propose to the Court a legal solution to the new and difficult problems it has to deal with for the first time. The deliberating stage begins after the opinion stage, and that enables the Court to adopt a position in the end, either positively with respect to the opinion of the Advocate General, following his lead by taking up or referring to that opinion in regard to certain points, or, conversely, by taking an opposing position. But for the outside reader, the fact that it adheres wholly, partly or not at all to the opinion of the Advocate General gives him a complete and clear idea of the decision-making model.

Thank you. So I imagine that, when writing your opinion, you of course take into account the precedents of the Court?

Advocate General Yves Bot:

That’s essential because precisely in such instances our role is also to look at the case in context and, in relation to more or less similar previous cases, to say what was decided in similar or related cases, etc., and then to say whether that case law should be upheld, expanded or reorientated, in the assessment of the Advocate General.

Right. And when you write your opinion, what sources do you use? Do you also sometimes base it on national case law, on the European Convention of Human Rights, or the case law of the Court?

Advocate General Yves Bot:

Yes, all of them: doctrine, national doctrine, national case law - by which I don’t necessarily mean that of the Advocate General’s own nation but, indisputably, the doctrine of the country from which the question comes. Because it’s also important to understand in which context the question arises. That’s really fundamental. And then, for the Advocates General, one analyses laws that are not, by definition, the Advocate General’s own national law. The Advocate General does not give an opinion, in preliminary questions in any event, in cases that challenge his national law, his country, when they come from his homeland. So, that enables an assessment to be made, to see where the points of convergence and divergence lie and to see that, after all, perhaps it is no worse there than it is here. Furthermore we are, of course, assisted by the opinions of the Advocates General who have dealt with similar cases before us, by the case law of the Court, by the comments of the parties and also, whenever it seems necessary, by the research notes, from the Court’s Research and Documentation, which really is an absolutely remarkable service (as are all the services of the Court, for that matter).

And your opinion comes after the open court hearing. To what extent does that open court play a role - does it influence you, is it crucial to the content of your opinion?

Advocate General Yves Bot:

Well, I’m a judicial officer by initial training. So, by definition, I always attach a great deal of importance to the judicial debate. And I’ve never found a court hearing to be unnecessary, even in cases that I analysed, at the start, as not being overly complex, in any event given the approach I took, and cases in which I happened to already have my opinion practically ready before the court hearing. Nevertheless, even then the hearing remains just as important, because it makes it possible to see whether or not one has made a mistake, to make use of the questions and answers to test the accuracy of the reasoning, and then to complete it - to see whether I need to change something here or there, whether I haven’t seen a particular aspect of things. As a general rule, the hearing is irreplaceable.

Shall we now turn to the role of the Court of Justice in regard to criminal law? In your view, is the structure of the Court appropriate for dealing with criminal matters or cases? Shouldn’t there be or would it be desirable to have a Chamber specialising in criminal matters?

Advocate General Yves Bot:

At present, the Court deals with questions of criminal law mainly, or even only, by means of preliminary questions. Which is its usual way of working. And it’s clear, I think it’s fair to say, that that works well. By which I mean that the cases are dealt with within the same timeframe as the others and often, or at least sometimes, even much more rapidly when the preliminary question is urgent. This is obviously the case whenever issues affecting freedom are included in the question that’s being put to the Court. By that I mean that, in the principal case, the one pending before the national court, there’s someone who’s been detained. In this case, the Court rules according to an urgent procedure, which doesn’t avoid having the court hearing in the presence of both parties; on the contrary, that makes it even more significant and effective. The Court gives its rulings within a period of no more than two months or so. Which, as I see it, is quite reasonable.

So, you confirm the UPP - the urgent preliminary procedure and, in general, the current procedures - allow the Court to work at the necessary speed?

Advocate General Yves Bot:

Yes, given the number of urgent preliminary procedures asked of us, because that takes up a lot of time - the urgent preliminary procedures really are urgent, that’s clear – the Court copes with its workload. The Court is, of course - and that’s the essential precondition – very precise as to the cases in which urgency can actually be recognised. If we were to start recognising as urgent almost all the cases in which we’re asked to do so, of course it would be impossible. So, there are criteria that have been laid down, that are considered, that obviously are accepted by the national courts, and therefore it works. But that’s the current status of the development of criminal law in the European Union. Whereas the European Union has been familiar with criminal law for only a relatively short time. And criminal law is a type of law that we can see has a slight tendency, shall we say, to take up an increasing amount of space, if only because the fight against criminality makes that absolutely essential. So, new structures will undoubtedly appear one day. Personally, I hope so. That will be a new way of functioning. Then, we’ll see what should be done in terms of the actual functioning of the system, but this time of the Union itself, not really of the Court.

I think we’ll come back to that question later. Still on the subject of the role of the Court in criminal matters, the European Court of Human Rights can adopt interim measures. Do you think it would be desirable for the Court of Justice to be able to adopt such measures in criminal matters too?

Advocate General Yves Bot:

Well, until three weeks or a month ago I’d have replied that I couldn’t see that happening. But now I can. Because we had a preliminary question, in which the Court gave its ruling on 5th April. It raises a scenario in which, actually, there’s a possibility for the Court to take, perhaps not an interim measure but a measure for direct intervention in the role of a procedure, I think so. The example? European arrest warrant: the executory court of jurisdiction says, “I have a problem because, if I base my decision on the latest judgements of the European Court of Human Rights regarding the penal situation in the country of issue, the conditions of respect of human dignity, the conditions of detention, are not in accordance with what they should be in the context of respect of human dignity. What do I do?” The Court gave its ruling. But one could have found oneself (not the case in the situation that was examined) in a scenario in which a deadlock would have been reached. And, if the person to whom the warrant applies is, for example, one of the ones who were arrested for terrorism in Belgium, etc., what does one do? Well, what would be conceivable, for example, is for the Court to be able to say, at that point: alright, it’s simple; in such instances the knowledge of the case, the competence to try it and, therefore, the conditions of detention that go with it can be assigned to the executory State, for example. But, within the European Union, we saw that some national legislations had, in this scenario, a sort of universal competence, for example Germany. Not all of them do. I haven’t checked but I don’t think we have it in France, for example. Then, that would allow the Court, in the end, to do what, in this kind of scenario, a European public prosecutor’s office could do.

OK. Criminal law is very heavily influenced by the national legal traditions. How are those traditions taken into account, in particular in the light of Article 6 of the Treaty on the European Union and Article 67 of the Treaty on the Functioning of the EU? And an additional question: to what extent is the decision-making procedure of the Court based on a compared or comparative legal analysis?

Advocate General Yves Bot:

Oh, the Court undoubtedly takes the fullest possible account of the ECHR and, naturally, of the Charter. Although, of course, in the cases that concern European Union law entirely, it cites the Charter first. And that’s quite normal. But the Court - and again the latest judgement that I was talking about demonstrates it absolutely clearly - does analyse the provisions of the Charter, those of the European Convention on Human Rights, which are in line with each other, how the case law of the ECHR has developed and how it is transposable in the cases we are dealing with, etc. In short, I would go as far as to say that it’s very intricate work.

Since the Charter of Fundamental Rights was given the same legal force, compulsory force, as the treaties, would you say that the Court of Justice has turned into a court of human rights?

Advocate General Yves Bot:

I don’t think I’d say that, for one simple reason: because saying so would mean that previously it had respected human rights less. Which clearly isn’t the case, absolutely not. So, if you will, such a statement seems a little bit ambiguous to me. It’s clear that the two fields are comparable only within certain limits. Of course the functions are clearly not the same. But if this is taken to mean that it changed the Court’s way of respecting human rights, I say that the Court has always respected them wholly and completely. Furthermore, to such an extent that, even at a time when Union law did not include specific provisions in that field, it was the Court that drew on the theory of the general principles of law and reintroduced human rights proprio motu into Union law, so that things could be applied as they were supposed to be.

How would you say that the Court reconciles the necessary effectiveness of criminal law with consideration of fundamental rights? This is a huge question but ...

Advocate General Yves Bot:

Well, it is a huge question. Let me answer once again in a way that’s perhaps marked by my personal inclination. I told you just now that I was a judicial officer. To be more precise, I’m a judicial officer for criminal cases and, to be even more precise, I’ve always pursued my career as a prosecutor and public prosecutor. So, there’s something I’d like to say immediately, which is that applying criminal law does not mean infringing fundamental rights. Because, of course, applying criminal law means enforcing the rule of law by giving the requisite guarantees to everyone, and that means everyone. And it’s also necessary to take into account the rights of the victims, people’s rights, the requirements of the investigations and, in particular, within the framework of the European Union. Because if the single framework becomes one in which criminal law is not as effective as it should be, it will in fact be a common area of free movement and free investment with very little risk to criminals. And I think there could be a risk of that giving rise to another form of democratic deficit.

On the subject of the European warrant, one often has the impression precisely that questions relating to fundamental rights are put somewhat on the back burner for the sake of the need for the system to function properly in the EU as a whole and of the principle of mutual recognition. In your opinion, what is the right balance between those interests?

Advocate General Yves Bot:

Well, the principle of mutual recognition is one that is, of course, fundamental to the area of freedom, security and justice. It’s a principle that was strongly asserted, firstly by some well-known summits, then tempered by Amsterdam, and even more necessarily since it compensated for the inability of the States, how should I put it, to harmonise – I won’t use grand words such as unify - to harmonise their reciprocal rights. So in a way, a solution did have to be found to ensure precisely that the common framework does not benefit criminals or, at least, does not benefit them much and to the detriment of honest citizens. And I think that’s something which has produced excellent results and which should be maintained. Mutual recognition is placed in opposition to fundamental rights. It’s true that criminal law is something that’s dynamic and that it gets all its dynamism from the criminal procedure. And sometimes the State says, yes but, in this or that other State with which I have to cooperate, there are fewer procedural guarantees than there are here, etc. I myself think (but we haven’t got that far in drawing up the texts, and case law has not really had the opportunity yet to take a clear position on this point), anyway I think that once we are working together within the area of freedom, security and justice, any procedural document that comes out of the national State and enters this common framework where it will have to be enforced elsewhere, has to correspond to the norms, what the texts call the minimum norms. That’s an expression I don’t like at all. I prefer to call them the non-derogable guarantees, which mean that, at that point it can, and will have to be, recognised, and that it can and will have to spread, in keeping with the principle of mutual recognition, throughout this whole area of freedom, security and justice.

Thank you. Moving on to the fourth and final part of our interview on the future of the Court of Justice, in particular as to how you see the role of the Court in criminal matters in the next few years? Another huge issue.

Advocate General Yves Bot:

First of all, I see that role as the same one that it has had from the beginning, and which I personally find quite remarkable, first as a dynamic and creative role. I believe that what we have the opportunity of experiencing, in a jurisdiction like this one, is to truly be able to take part in developing something that really will allow the greatest number of people, by which I mean all those who will belong to the Union, to live together retaining their own original aspects while being based on a solid foundation of common values. Because there’s a bit of a tendency to forget common values even though they do exist. The fact that - for example, going back to the European arrest warrant (criminal law tells us a great deal, it expresses values, doesn’t it?) – we have so easily drawn up that list of 32 offences for which there’s no need for double criminality, that’s good because the values which that list protects are, of course, protected, respected and experienced as such by everyone. If common values were considered in the longer term, things would be better. So, having digressed, I come back to your main question. Really, I think the Court will have a role, criminal law will develop, we will see the European public prosecutor’s office established, that’s clear. What’s more, it’s a necessity, it should already exist, current events tell us that, and the Court will be able to find its place in it very well.

Right, so let’s talk about this European public prosecutor’s office which you hope to see. Do you think that the powers of that office should go beyond protecting the financial interests of the EU and cover some forms of serious cross-border criminality, in particular terrorism or human trafficking?

Advocate General Yves Bot:

Well, it not only should, the jurisdiction of the public prosecutor’s office must go beyond the fight against attacks on the financial interests of the Union. Furthermore, once the financial interests of the Union are attacked in that way, it will lead to something else. Because, we know very well – anyone working in the field of criminal law knows very well – that the profit from one offence spreads out to involve other criminal networks. So, it’s quite clear then, of course one would save time by doing it immediately. But it’s a bit of a shame to see that, in the field of the fight against criminality and, therefore, of the protection of our fellow citizens, we move forward more by reacting than by taking action. That is to say, there has to be a tragedy before something is done. And it would perhaps be better for everyone if we were aware of that. But, of course, that doesn’t concern the role of the Court.

Concluding with this European public prosecutor’s office, many practitioners think that the competence of the Court of Justice is essential, in particular for the judicial control of the actions of the public prosecutor’s office, and that’s where they talk about setting up a specialist Chamber. Would that be, in your view, an appropriate solution?

Advocate General Yves Bot:

Well, it’s difficult to say because here we are really looking ahead, based on a plan that isn’t complete at the moment. Compared to the Commission’s initial proposal, it’s changed a lot. And, on the current basis, well, will it change a lot again? It’s the Treaty route that’s been taken, that is to say, acting through the national courts, so I believe it is fundamental, first of all, to be completely aware that the European public prosecutor’s office will be an instrument of a judicial nature. So, it has to be made up of judicial officers. I’m not a corporatist, I’m not looking after my own interests. I confess that I’m not a candidate. Would I like to be? My age would make me cautious in considering that option. So, having clarified that, it is necessary for it to be comprised of judicial officers. Once it is, of course, and under the appropriate controls, it will also have to be left to do its job. I’ve seen a number of projects, reactions, proposals, etc. which, from the point of view of stronger protection of the guarantees, in fact curbed the future action of a possible public prosecutor’s office. Well, if we should end up there, it’s not worth doing. It really has to be something that gives fresh momentum. That doesn’t mean that there won’t be any control, jurisdiction - obviously there has to be and it’s essential. But we go through the national courts, while the Court of Justice has, from this perspective, the power to settle questions of competence, for example. Because when we talk of a European public prosecutor’s office, it’s about offences in several States, which are all committed by the same criminal alliance. I take them, I put them together and I assign the single competence to try them to this or that court of this or that country. It’s within the spirit of the system that one asks the Court, when there’s a dispute between States, to say what it thinks, that seems logical to me. Likewise for decisions, for example to file proceedings for one reason or another, that the Court is asked to check and say whether it believes the filing has been done with all the requisite guarantees according to the criteria laid down by the regulations setting up the public prosecutor’s office. That also seems completely logical to me. That naturally the courts should continue through the preliminary path to consult the Court on the compliance of what they are being asked to do with the broad principles of Union law, of fundamental rights, even when provided for by regulations, of course. But that’s the normal way in which a supreme court works. I don’t think that this makes it a separate criminal court as such. Will it be necessary to provide for a particular structure within the Court? When we’ve reached that stage, I think that we’ll be very, very far ahead and that, in any event, that won’t arise from the moment the system begins to function. But I think it’s clear that at the present time it’s necessary to move forward. And I speak in terms of the States, of course, not as to the Court - the Court will apply what is to be done, it will check whether this is in accordance with the fundamental rights and with the principles of the treaties. But there are things that call for the different actors fighting criminality to come together. For example, some time ago, someone from the Europol staff said that there were 20,000 children whose whereabouts were unknown. Since then others have spoken too, but in the end we don’t really know if the figure is true, if there really is something to worry about or not, etc. Well, it would be good to set up something really well-constructed, wouldn’t it, so that one day, those with the political responsibility for taking those decisions can ask themselves the only question that really matters: where are the kids? That’s it.

Mr Advocate General, many thanks for your time and for answering our questions.

Advocate General Yves Bot:

My pleasure, you’re welcome.

Thank you very much.