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

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The preamble then moves on to contextualise the adoption of the Framework Decision within the framework of the Vienna Action Plan, of the Tampere Conclusion of 1999 and of the UN Convention of 12 December 2000 against Transnational Organised Crime. 445 All these measures are clearly contextualised under the umbrella framework of the fight against organised criminality which stands out as the main goal and underlying rationale of the EU’s intervention in criminal matters. The expansive approach taken to the idea of organised crime is also seen also in the link made to financial criminality. Many of these measures adopted in the context of organised crime were concerned with financial criminality. Hence, boundaries between financial, business crime and organised crime remained fluid. This thematic intertwine reflects the fact that, as seen in earlier in this dissertation, the concept of organised crime, as observed by the EU, has developed in a particularly wide ranging, broad and fluid manner. Consequently, goals of the single market are also pursued via the fight against organised crime. Although the EC had no competence under the first pillar to adopt criminal law measures to protect its interests and policies, this protection was sought under the third pillar. Hence, third pillar measures were adopted with the aim of directly protecting EC interests or policies or with the aim of complementing existing first pillar instruments. Examples are the protection of immigration and labour markets with the Framework Decision on trafficking of human beings, or the protection of the financial system, through the Framework Decisions on money laundering, fraud, etc. In fact, measures to fight human trafficking or money laundering in the context of the third pillar, for example, were adopted mainly to complement and render efficacy to a vast bulk of legislation on the topic already existent in the realm of the first pillar. Money laundering, for example, was the object of several measures adopted in the realm of the first pillar in the nineties, directed at the single market. EU legislation has been adopted since 1991 to protect the financial system and financial activities from being misused for money laundering. 446 445 See intents (2), (4) and (6), ibid.. 446 The first measure adopted in the context of the fight against money laundering was the 1991 Directive on the prevention of use of the financial system for the purpose of money laundering, supra note 164. The Directive was adopted in the context of the freedom of establishment and single market provisions, based on a threat posed to the financial system, although its scope went well beyond a strictly financial rationale and established a comprehensive framework of repression and prevention of money laundering. The Commission then replaced the Directive of 1991 by a Directive in 2001 and by another in 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, OJ L 309/15 [2005]. The Directive now covers the laundering of drug trafficking, organised crime and fraud as defined in the EU instruments, corruption in general, and of offences that generate considerable proceeds and which are punishable by severe sentences of imprisonment, in accordance with the law of the Member State. 122
Furthermore, the criminalisation of trafficking of human beings came to complement a broad range of measures to fight irregular immigration, namely the Directive on facilitation of unauthorised entry, transit and residence 447 and the Framework Decision on strengthening the penal framework to prevent the facilitation on unauthorised entry, transit and residence. 448 Nonetheless, besides the importance of the narrative of the fight against organised crime, the rationale of protecting EC interests and policies via the criminal law was also expanded and solidified during the Amsterdam years. This will be explored in the following section. 2.1.2. Protection of EC/EU interests and policies The idea that criminal law had a role to play in the furtherance of EC interests and policies was bolstered during the Amsterdam years. This took place even if the Treaties remained either silent or unclear regarding the relationship between criminal law and Community law. On the one hand, in Article 29 of the TEU(A), express reference was made to intervention in crime—organised or otherwise—and, in particular, to terrorism, trafficking in persons and offences against children, illicit drug trafficking and illicit arms trafficking, corruption and fraud. Similarly, Article 31 (e) referred specifically to the harmonisation of national criminal law—particularly in regard to organised crime, terrorism and illicit drug trafficking. On the other hand, the ECT(A) continued to be mostly silent regarding criminal law. If anything, it made clear in two different provisions that certain elements were to remain within the sphere of Member States. Both Articles 135 and 280(4) of the ECT(A)—on the adoption of Community measures on customs cooperation and on the prevention and fight against fraud respectively— clarified that Community initiatives should not concern the application of national criminal law or the national administration of justice. Regardless, criminal law, continued to be used as a tool to protect EC interests and policies at various levels in order to promote the effectiveness of Community law. Hence, measures aimed at the protection of EC interests and policies via criminal law were adopted under the third pillar. This was the case, for instance, in the Framework Decision on combating corruption in the private sector 449 aiming prima facie at the protection of the single market—particularly its competitiveness and economic 447 Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence, OJ L 328/17 [2002]. 448 Ibid.. 449 Council Framework Decision 2003/568/JHA, supra note 417. 123
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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
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“For that purpose, whilst the cho
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limiting national criminal law, it
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“…synthesis of the arrangements
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of Action relating to the reinforce
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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
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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 and 112: The author noted how it was adopted
Page 113 and 114: 2. The new scope of European Union
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: within the scope of instruments alr
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
Page 163 and 164: development is in line with the rea
Page 165 and 166: economic loss; (e) seizure of aircr
Page 167 and 168: Framework Decision, which obliged t
Page 169 and 170: possession, among others. 630 A stu
Page 171 and 172: 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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