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

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and practices and bondage comparable to slavery.” 624 Likewise, Portuguese law, in the earlier versions of the Portuguese Penal Code, only considered trafficking of persons for the purpose of sexual exploitation. 625 In 2007 the crime was expanded in order to incorporate the purpose of labour exploitation and extraction of organs thus complying with the Framework Decision. 626 The Framework Decision also contains a broader definition than the UN measures in this domain. The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children, for example, also offers a very broad notion of trafficking, 627 but instead of the explicit purpose of “labour exploitation”, it mentions “forced labour or services, slavery or practices very similar to slavery” in a more limited formulation than that of the Framework Decision. 628 In relation to illicit drug trafficking there are also some relevant changes in national legislation. The Framework Decision on drug trafficking requires the criminalisation of the “(a) the production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of drugs”, “the cultivation of opium poppy, coca bush or cannabis plant”, “possession or purchase of drugs with the view of conducting one of the activities listed in (a)”, and of “the manufacture, transport and distribution of precursors, knowing that they are to be used in or for the illicit production or manufacture of drugs.” 629 The Commission noted how the national legislation of Member States did not include ‘illicit drug trafficking’ as a particular criminal offence, although they often focused on punishing related offences, such as production, cultivation, extraction, acquisition, and 624 Article 1 of the Framework Decision 2005/629/JHA, supra note 409. 625 Article 169 in the version of Decreto Lei nº 48/95, 15 of March and following the alterations of Lei 99/2001, 25 of August. 626 Lei 59/2007, 4 of September 2007. 627 “The recruitment, transportation, transfer, harbouring or receipt of a person, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.”, Article 3 of the Protocol to Prevent Suppress and Punish Trafficking in Persons, especially women and children, supplementing the United Nations Convention Against Organised Crime, A753/383, Annex II, 2000. 628 “The exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices very similar to slavery, servitude or the removal of organs”, ibid.. 629 Article 2 of the Framework Decision 2004/757/JHA, supra note 415. 168
possession, among others. 630 A study by the United Nations showed that there were considerable differences between national laws. 631 German law, for instance, criminalised ‘illicit narcotics trafficking’ and Italian law, the ‘distribution of illegal drugs’. 632 The use of the expression ‘drug trafficking’ is necessarily broader than the latter, because ‘drug’ includes more substances than ‘narcotics’. Indeed, marijuana or even a prescription medication can be included in the concept of ‘drug’, while only opium, morphine or, in the broad sense, cocaine and heroin are considered ‘narcotics’. 633 Hence, to criminalise the trafficking of drugs is more restrictive than to criminalise the trafficking of narcotics or illegal drugs and while the former would not, strictu sensu, be considered a criminal offence under German law it is required to be so following the Framework Decision on drug trafficking. Finally, trafficking is a broader concept than mere ‘distribution’, hence the punishable conduct under Italian law had to be extended to cover cases which are not distribution but which might be considered trafficking. The Framework Decision on attacks against information systems also illustrates this trend. The Framework Decision requires the criminalisation of access without a right to the whole or any part of an information system (Member States have the choice to criminalise such conduct only when a ‘security rule’ was infringed), or the intentional serious hindering or interruption of the functioning of an information system by inputting, transmitting, damaging, deleting, deteriorating, altering, suppressing or rendering inaccessible computer data when committed without a right (the same is applicable to data in a computer system). 634 The explanatory text accompanying the proposal for a Framework Decision noted that national laws in this area contained significant gaps and differences. Spain, the Netherlands and Poland for instance did not criminalise the unauthorised but intentional access to information systems altogether (so-called “hacking”), whose criminalisation is now called for by Article 3 of the Framework Decision. 635 Greece, 630 Proposal for a Council Framework Decision laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking COM (2001) 259 final, Brussels, 23.5.2001, 5. 631 UN Report covering Germany, Italy, Poland and the UK – E. Savona, Organised crime across-borders, The European Institute for crime prevention and control, affiliated with the United Nations, HEUNI Papers N 6, 1995, 27-28. 632 Ibid., 27-28. 633 Definitions from the A. Hornby et al, Oxford Advanced Learners Dictionary (Oxford: OUP, 2002). 634 Article 2, 3 and 4 of the Framework Decision, supra note 343. 635 M. Olinet, “Cybercriminalité: Énoncé du Cas Pratique et Synthèse des Réponses”, in M. Delmas-Marty, G. Giudicelli-Delage, E. Lambert-Abdelgawad (eds) L’Harmonisation des 169
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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,
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The need for more openness in the w
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not subject to control or enforceme
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the individual. The building of a m
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Initiatives ranged from the creatio
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etween police forces in matters of
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evenue. 298 Along the same lines, t
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identified in the TEU(M) It was see
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esponsible for the formalisation of
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Indeed, already in 1996, organised
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Finally, besides the political and
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particularly those initiatives that
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and drug trafficking, hence giving
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trade. 356 The Court continued by n
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well as the first protocol. 366 The
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crime is a fluid concept, with loos
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means of transport, telecommunicati
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Chapter 3 The evolution of European
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1. Treaty of Amsterdam: expansion a
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positions would be suited to define
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The author noted how it was adopted
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2. The new scope of European Union
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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
Page 163 and 164: development is in line with the rea
Page 165 and 166: economic loss; (e) seizure of aircr
Page 167: Framework Decision, which obliged t
Page 171 and 172: Again, the EU’s provision was bro
Page 173 and 174: liability is a sensitive issue whic
Page 175 and 176: 3.2. A focus on minimum maximum pen
Page 177 and 178: the threshold demanded by EU law. T
Page 179 and 180: of ensuring a degree of homogeneity
Page 181 and 182: Framework Decision on trafficking i
Page 183 and 184: inging about a harsher criminal law
Page 185 and 186: extraterritoriality to nothing less
Page 187 and 188: development of the single market -
Page 189 and 190: “(… )involves the recognition o
Page 191 and 192: These changes in extradition across
Page 193 and 194: arguments against extradition of na
Page 195 and 196: To be sure, concerns with fundament
Page 197 and 198: text of the preamble does not amoun
Page 199 and 200: States should not have to use their
Page 201 and 202: e partly explained by the fact that
Page 203 and 204: “Confidence in the application of
Page 205 and 206: 2007, Polish authorities requested
Page 207 and 208: With these judgements, the Court st
Page 209 and 210: does not deem the acts in question
Page 211 and 212: discretion in Title VI TEU(A), one
Page 213 and 214: Such reasoning led the Court to con
Page 215 and 216: was committed by a national abroad
Page 217 and 218: 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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