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

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Changes towards the extension of liability to legal persons were also made following the 2001 Framework Decision on combating fraud and counterfeiting of non-cash means of payment. By 2006, five Member States reported to the Commission that legislation expanding such liability was before their national parliaments awaiting approval. Belgium, Denmark, Lithuania, the Netherlands, Poland and Slovenia had also taken the necessary measures “to ensure that a legal person can be held liable where the lack of supervision or control by people in leading positions made the commission of offences possible” and provided for liability in the other cases required by the Framework Decision. 657 Examples of the introduction or extension of liability of legal persons can also be seen in consequence of the implementation of the 2002 Framework Decision on terrorism (amended in 2008), which also required the extension of liability to legal persons (Article 7). The Commission reported in 2007: “The Czech Republic, Latvia and Slovakia have failed to foresee the liability of legal persons for terrorist offences as requested in paragraph 1 and Luxembourg has not transmitted the relevant provisions. The other Member States evaluated have correctly implemented paragraph 1. Their provisions often go beyond the minimum level required by the Framework Decision through either setting more than one criterion or retaining wider criteria.” 658 Likewise, the Framework Decision on attacks against information systems also envisaged liability of legal persons. 659 The Commission reported in 2008 that 16 Member States had taken the necessary measures to ensure such accountability. Estonia however had not accepted to expand criminal liability, considering that its rules on civil liability covered all the conducts described in the Framework Decision. 660 657 European Commission, Report from the Commission, Second report based on Article 14 of the Council Framework Decision of 28 May 2001 combating fraud and counterfeiting of non cash means of payment, COM(2006)65 final, Brussels, 20.02.2006, 6. 658 European Commission, Report from the Commission based on Article 11 of the Council Framework Decision of 13 June 2002 on combating terrorism, COM(2007)681final, Brussels, 6/11,2007, 6. 659 Article 8 of the Framework Decision 2005/214/JHA, note 543. 660 European Commission, Report from the Commission to the Council based on Article 12 of the Council Framework Decision of 24 February 2005 on attacks against information systems, COM(2008)448 final, Brussels, 14.7.2008, 8. 174
3.2. A focus on minimum maximum penalties Moreover, the shift towards a potentially more severe penal law was also seen in other elements beyond the broad definition of offences and the extension of liability to legal persons, namely in relation to penalties. 661 Most Framework Decisions require penalties to be effective, dissuasive and proportional (a criterion brought forward from the Maastricht years) 662 but the feature mostly explored after Amsterdam was the setting of specific minimum maximum sentences. 663 As the Commission noted in relation to harmonisation of custodial sentences in 2004, “The formula used to harmonise penalties has not been so much to determine effective, proportionate and dissuasive penalties as to set minimum levels for maximum penalties.” 664 The Framework Decision on the counterfeiting of the Euro for example established a minimum of not less than eight years custodial sentences for some of the conducts criminalised. 665 The Framework Decision on money laundering provided for a maximum imprisonment penalty of at least four years. 666 The Framework Decision on terrorism requires Member States to punish participation in offences related to terrorist groups with at least eight years and the direction of such a group with at least fifteen years. 667 In turn, the Framework Decisions on combating corruption in the private sector, 668 sexual exploitation of children, 669 cyber-crime 670 and illicit drug trafficking 671 all require a maximum penalty of at least 1-3 years’ imprisonment (the latter two require a minimum maximum of, respectively, 2-5 and 5-10 years in case of aggravating circumstances). 661 For more details on the method used by the Council to determine the threshold of minimum maximum penalties see Council of Justice Ministers, Home Affairs and Civil Protection, Luxembourg, 25-26 April 2002, 2423rd Council meeting, 7991/02 (Presse 104), 15. 662 Chapter 2. 663 Note that no framework decision requires Member States to introduce, for example, mandatory penalties. For more details on the method used by the Council to determine the threshold of minimum maximum penalties see Council 2423rd Council meeting, 7991/02 (Presse 104), supra note 661. 664 European Commission Green Paper COM(2004)334final supra note 573, 15. 665 Council Framework Decision 2000/383/JHA, note 452. Article 6 of the Framework Decision, ibid.. 666 Article 2 of the Framework Decision 2001/500/JHA, see supra note 410. 667 Article 5 (3) of the Framework Decision 2002/475/JHA, see supra note 413. 668 Council Framework Decision 2003/568/JHA, note 417 supra. 669 Council Framework Decision 2004/68/JHA, note 414 supra. 670 Council Framework Decision 2005/222/JHA, note 408 supra. 671 Council Framework Decision 2004/757/JHA, note 415 supra. 175
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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
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thirty years and epitomises and imp
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phenomenon and of the multifaceted
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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 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
Page 173: liability is a sensitive issue whic
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
Page 219 and 220: “without any further formality be
Page 221 and 222: An EEW can only be issued with the
Page 223 and 224: “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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