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

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.
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