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

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development, 450 thus requiring Member States to criminalise both intentional active and passive corruption. 451 Furthermore, other measures aiming primarily at strengthening the penal framework of first pillar policies were also put forward. This was the case of the Framework Decision, adopted in 2000, which required Member States to criminalise the counterfeiting of the Euro. The importance of this measure was noted in the Preamble: “The worldwide importance of the euro means it will be particularly open to the risk of counterfeiting. Account should be taken of the fact that there is already evidence of fraudulent activity with regard to the euro.” 452 A Framework Decision on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence was also adopted in 2002. Its preamble held that the Framework Decision “supplements other instruments adopted in order to combat illegal immigration, illegal employment, trafficking in human beings and the sexual exploitation of children.” 453 But the adoption of these measures—even under the legal framework of the third pillar—was not necessarily clear-cut as the TEU(A) provisions did not directly attribute competence to the EU to adopt measures protecting EC policies via criminal law (as seen in the first section of this chapter). Article 29 TEU(A) made no reference to the smuggling of human beings, corruption or the counterfeiting of the Euro, whilst Article 31 (e) TEU(A), the legal basis under which these measures were adopted, only made reference to the approximation of minimum elements of crimes and penalties in relation to organised crime, terrorism and drug trafficking. Clearly, the article was being read in a broad way and the list of criminal domains mentioned was taken as non-exhaustive. The lack of controversy in relation to the adoption of measures under the third pillar was a clear sign of the EU’s political will to strengthen the protection of EC policies and 450 See page 2 of the Report based on Article 9 of the Council Framework Decision on combating corruption in the private sector, COM (2007)328 final, Brussels, 18.6.2007. 451 Article 1 (a) and (b) of the Framework Decision, supra note 417. The Framework Decision also establishes that inchoate offences shall be punishable (Article 3) and that legal persons can be held liable (Article 5). The offences shall be punishable by a penalty of a maximum of at least one to three years of imprisonment (Article 4). This Framework Decision is one of the rare cases to add other penalties, beyond imprisonment, to be applicable to natural persons. There is also the possibility of prohibiting a person convicted, at least in the cases whre he or she occupied a leading position in the company, from carrying with that particular or a comparable business activity (Article 4(3)), ibid.. 452 Intent (7) and (8) of the Council Framework Decision 2000/383/JHA of 29 May 2000 on increasing protection by criminal penalties and other sanctions against counterfeiting the euro, OJ L 140/1 [2000], as amended by Council Framework Decision 2001/888/JHA of 6 December 2001, OJ L329/3 [2001]. 453 Council Framework Decision 2002/946/JHA, see supra note 419. 124
interests (in this case the single currency, immigration policies and the sound functioning of the single market) via criminal law. This choice of the third pillar as the legal base for the adoption of these measures appeared to be, at times, a functional choice. Indeed, it was not so much that the third pillar was perceived by all actors as the ideal legal basis for the adoption of these measures but rather—as Mitsilegas notes, in relation to the Framework Decision on the facilitation of unauthorised entry, transit and residence—the third pillar allowed for a compromise to be reached in light of Member States’ reluctance to confer competence in criminal matters to the Community. Accordingly, the solution was the adoption of ‘parallel’ and interlinked measures: a first pillar measure describing the conduct and a third pillar measure determining that such conduct should be deemed a criminal offence and therefore stipulating criminal sanctions. 454 With these measures aiming at the furtherance of EC policies or interests via the criminal law of the third pillar, the division between the pillars became ever more intertwined from a thematic point of view. Moreover, the idea that criminal law had an important role to play in the attainment of EC goals was also boosted under the first pillar. To be sure, as seen thus far, criminal law and criminal law related matters had been clearly placed in the realm of the TEU(A) (third pillar) and remained outside the scope of the ECT(A) (first pillar). Nonetheless, this formal separation between the two Treaties was not as clear-cut in practice. First of all, as just seen, third pillar measures were being adopted specifically with the aim of protecting policies and goals placed under the first pillar. Second, the existence and extent of an EC competence in the domain of criminal law was an on-going debate. One of the important expressions of this possibility had thus far been the case law of the CJEU defining that, in principle, matters of criminal law and criminal procedure did not fall within Community competence; nonetheless, Members were under obligation to ensure the enforcement and effectiveness of EC law through the principle of assimilation and by imposing effective, proportionate and dissuasive sanctions for breaches of EC law. It was seen earlier in the thesis that this case law and some secondary legislation had led, de facto, to the use and transformation of some national criminal law. 455 Thus, as Mitsilegas summarises, the debate remained divided between, on the one hand, those who thought of criminal law as a special field of law, close to the core of State sovereignty and touching upon sensitive areas such as the relationship between the 454 V. Mitsilegas, “Constitutional Principles of the EC and European Criminal Law” (2007) Vol VIII European Journal of Law Reform 303. 455 See sections 1.1. and 2.2. chapter 1 and section 3.2. chapter 2. 125
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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
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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
Page 95 and 96: and drug trafficking, hence giving
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 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 and 122: within the scope of instruments alr
Page 123: Furthermore, the criminalisation of
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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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
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Agreement on the Application betwee
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Websites and links http://www.eurow
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