The evolution of European Union criminal law (1957-2012)

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given within three months. 397 The same could be said about the European Commission. As Monar notes, although the Commission was given a shared right of initiative, it was to assert it in “the ‘climate’ of the intergovernmental framework which tends to limit its actual possibilities of influencing decision making” at least in the earlier stages of its new role. 398 Furthermore, the primary instrument of ECL introduced by Amsterdam – the framework decision – was of limited strength. Article 34 (2) (b) TEU(A) held that framework decisions were binding upon the Member States as to the result to be achieved, leaving national authorities the choice of form and methods. The Article further noted that framework decisions were not to have direct effect. This exclusion was a clear differentiation from directives, the equivalent instrument in the context of the first pillar. The fact that framework decisions could not entail direct effect was highly limiting in legal force, even more so in a domain where individual fundamental rights are often at stake, such as in criminal law. 399 Furthermore, the TEU(A) did not provide for any mechanism of enforcement or control of Member States’ implementation of framework decisions. This, once again, was in sharp contrast with the first pillar, under which the Commission could lodge infringement actions under Article 226 ECT(A) if it found a Member State had not implemented a directive correctly or had not implemented it at all and it had failed to follow the Commission’s advice to do so. Likewise, conventions remained weak as legal instruments mainly because they depended on the political goodwill of Member States to be ratified and this process was not always expedited. This difficulty was felt strongly - to the point that some mechanisms to compensate for these limitations were created. Den Boer notes how the introduction of the ‘rolling ratification’ procedure aimed precisely at avoiding the paralyses of a draft convention, as it allowed their entry into force once adopted by at least half of the Member States (in their territory only). 400 397 Article 38 TEU (A). 398 J. Monar, “Justice and Home Affairs after Amsterdam: The Treaty Reforms and the Challenge of their Implementation”, supra note 385, 267, 283. 399 The principle of direct effect, briefly, allows individuals to invoke EU law provisions before a national court against the State (vertical direct effect) or against another individual (horizontal direct effect) when certain conditions are met; See for more details D. Chalmers et al., European Union Law, supra note 268, 268-300. 400 M. den Boer, “An Area of Freedom, Security and Justice: Bogged Down by Compromise”, in D. O’Keefe and P. Twomey (eds) Legal Issues After the Treaty of Amsterdam (Oxford/Portland: Hart Publishing, 1999) 279, 317. 112
2. The new scope of European Union criminal law: Euro-crime and narratives How did these changing structures reflect themselves upon the material body of ECL What themes, rationales or narratives derived from it It will be suggested that an expanding dynamic continued in this field as the EU formalised intervention in areas not mentioned by the TEU(M) but in relation to which the legislator had used the ‘umbrella’ of the fight against organised crime to intervene. This formalisation occurred, for example, in relation to organised crime, trafficking in persons, offences against children and corruption. The concept of organised crime also made its way into Article 29TEU(A). Hence, Article 29 TEU(A) as mentioned earlier in this chapter held that the Union’s objective was to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action among the Member States in the fields of police and judicial cooperation in criminal matters as well as in combating racism and xenophobia. More specifically, in relation to the domains of criminality in which intervention was to take place, Article 29 TEU(A) mentioned crime - organised or otherwise - such as terrorism, trafficking in persons and offences against children, illicit drug trafficking and illicit arms trafficking, corruption and fraud. In relation to harmonisation of national criminal law this provision was complemented by Article 31(1)(e) TEU(A) which noted that common action should include progressively adopting measures establishing minimum rules on the constituent elements of criminal acts and penalties in the fields of organised crime, terrorism and drug trafficking. Nevertheless, as it will be seen below, measures were adopted in domains not directly mentioned in the TEU(A), such as cyber crime, money laundering, victims’ rights and environmental crime. These were all areas of harmonisation not mentioned in Article 29TEU, let alone in the short list of Article 31 (1)(e) (which mentioned organised crime, terrorism and illicit drug trafficking only). It will be contended that ECL continued to have, as its focal point, a specific type of criminality: Euro-offences. 401 Hence, whilst Euro-crime continued to rest on ideas around the fight against organised crime (for which there was, at this stage, a clear legal basis), the narrative of protection of EC interests and policies via criminal law was further enhanced, whereas concerns with fundamental rights (mostly in the form of procedural victims’ rights) became more visible, albeit very limited. The latter two themes however, were in a realm of uncertain competence for the EU to enact legislation. This was so, given that the TEU(A) did not directly attribute competence for the EU to adopt criminal law measures that aimed at the protection of EC interests and policies or relating to criminal procedure. 401 See chapter 2. 113
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The London School of Economics and
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Abstract This thesis addresses the
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However, the journey of writing thi
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3. The scope of intervention: the e
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4. The emergence and development of
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Introduction: The nature of Europea
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This dissertation seeks to advance
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account as a reference. Indeed, sev
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Whilst the distinctive criteria of
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it makes sense to consider the doma
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creation of summary offences tried
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want to be talking about a simple a
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contemporary societies that primari
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influence on Member States to intro
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But what defines these Euro-crimes
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significantly broader range of crim
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legal orders that punish more sever
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enforcement agencies were keen to e
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framed. 98 The principle of direct
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obligations were further confirmed
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Moreover, other realms of interacti
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Hence, the Court, whilst recognisin
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for some understanding of the first
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“The Commission’s efforts and i
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trafficking), and especially about
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The central actors in the Trevi fra
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justice and home affairs matters un
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Likewise, the Programme of Action t
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means to repatriate third country n
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“Each Member State shall take app
Page 61 and 62: “For that purpose, whilst the cho
Page 63 and 64: limiting national criminal law, it
Page 65 and 66: “…synthesis of the arrangements
Page 67 and 68: of Action relating to the reinforce
Page 69 and 70: the single market and the consequen
Page 71 and 72: Rather limited in scope and depth,
Page 73 and 74: The need for more openness in the w
Page 75 and 76: not subject to control or enforceme
Page 77 and 78: the individual. The building of a m
Page 79 and 80: Initiatives ranged from the creatio
Page 81 and 82: etween police forces in matters of
Page 83 and 84: evenue. 298 Along the same lines, t
Page 85 and 86: identified in the TEU(M) It was see
Page 87 and 88: esponsible for the formalisation of
Page 89 and 90: Indeed, already in 1996, organised
Page 91 and 92: Finally, besides the political and
Page 93 and 94: particularly those initiatives that
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Page 97 and 98: trade. 356 The Court continued by n
Page 99 and 100: well as the first protocol. 366 The
Page 101 and 102: crime is a fluid concept, with loos
Page 103 and 104: means of transport, telecommunicati
Page 105 and 106: Chapter 3 The evolution of European
Page 107 and 108: 1. Treaty of Amsterdam: expansion a
Page 109 and 110: positions would be suited to define
Page 111: The author noted how it was adopted
Page 115 and 116: these political declarations, which
Page 117 and 118: thirty years and epitomises and imp
Page 119 and 120: phenomenon and of the multifaceted
Page 121 and 122: within the scope of instruments alr
Page 123 and 124: Furthermore, the criminalisation of
Page 125 and 126: interests (in this case the single
Page 127 and 128: More notably, the most significant
Page 129 and 130: The Court decided with the Commissi
Page 131 and 132: Regardless of the Court having plac
Page 133 and 134: in particular fields, thus solidify
Page 135 and 136: However, competence to enact legisl
Page 137 and 138: months) to third-country national v
Page 139 and 140: derogations); 525 others proposed f
Page 141 and 142: ecognition of national sentences, p
Page 143 and 144: 2. The features of the new supranat
Page 145 and 146: criminal matters and, if necessary,
Page 147 and 148: with a cross border dimension. Ther
Page 149 and 150: question of ‘why criminal law’,
Page 151 and 152: e affected by ECL law. 562 This dec
Page 153 and 154: Chapter 4 Harmonisation of national
Page 155 and 156: Harmonisation was felt to be necess
Page 157 and 158: matters. Indeed, the European Union
Page 159 and 160: This provision portrays a criminal
Page 161 and 162: “a structured group of three or m
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development is in line with the rea
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economic loss; (e) seizure of aircr
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Framework Decision, which obliged t
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possession, among others. 630 A stu
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Again, the EU’s provision was bro
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liability is a sensitive issue whic
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3.2. A focus on minimum maximum pen
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the threshold demanded by EU law. T
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of ensuring a degree of homogeneity
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Framework Decision on trafficking i
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inging about a harsher criminal law
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extraterritoriality to nothing less
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development of the single market -
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“(… )involves the recognition o
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These changes in extradition across
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arguments against extradition of na
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To be sure, concerns with fundament
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text of the preamble does not amoun
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States should not have to use their
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e partly explained by the fact that
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“Confidence in the application of
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2007, Polish authorities requested
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With these judgements, the Court st
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does not deem the acts in question
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discretion in Title VI TEU(A), one
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Such reasoning led the Court to con
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was committed by a national abroad
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Furthermore, the list of types of o
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“without any further formality be
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An EEW can only be issued with the
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“The competent authorities in the
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prisoners with the view of ‘facil
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The preamble explains this choice b
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3.3.3 Probation and alternative san
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prosecuted elsewhere in the EU. Rat
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of drugs between two Schengen count
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definitely bar further prosecution
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Conclusion The introduction and dev
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Chapter 6 Conclusion: Towards a Eur
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Measures adopted along these narrat
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implementation of Union policies. 9
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persons acting together; in the fra
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policies appeared as the main crite
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preceding any legislative proposal,
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suggests that mutual recognition wi
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clear in relation to the EAW. In fa
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It is beyond the scope of this thes
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Furthermore, Article 6 TEU(L) confe
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that may endanger his or her life,
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communication upon arrest 1012 is u
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penal values in the future. Similar
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Member State of execution, irrespec
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as how long the individual concerne
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6. A renewed challenge for coherenc
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Bibliography Books and articles Aba
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Deen-Racsmany, D., “The European
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Hinarejos, A., Spencer, J.R., and P
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Xanthaki (eds) Towards a European C
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Szymanski, J., “Discretionary Pow
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Legislation and other sources by ty
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Council Directive 91/477/EEC of 18
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Joint Action 96/602/ JHA of 14 Dece
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Proposals Portuguese Republic, Init
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supervision order in pre-trial proc
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Council Doc. 9067/06 on the Proposa
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Case C-186/98 Criminal proceedings
Page 295 and 296:
Agreement on the Application betwee
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Websites and links http://www.eurow
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