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

of ensuring a degree of homogeneity among Member States. This can be seen at two
levels – a legislative one and an executive one.
4.1. Disharmony in national laws
Authors have stressed how the implementation of framework decisions often leads to
dissonance among Member States who are equally compliant with the EU standard. The
first striking example is precisely the Framework Decision on combating organised
crime, which leaves Member States the option of criminalising both or only one offence
of conspiracy to commit offences in the context of a criminal organisation or of
membership of such organisation. 676
Indeed, the prima facie goal of harmonisation of national legislation seemed in itself to
have been compromised in those provisions as Member States could choose to
criminalise one or both offences of membership of a criminal organisation or conspiracy
to commit offences in the context of such an organisation. The European Commission,
joined by France and Italy, was particularly clear in this regard when it observed that the
Framework Decision
“does not achieve the minimum degree of approximation of acts of directing or
participating in a criminal organisation on the basis of a single concept of such an
organisation (…) but to continue to apply existing national criminal law by having
recourse to general rules on participation in and preparation of specific offences.” 677
Dissonance was also pointed in relation to penalties by Horta Pinto, who noted that the
harmonisation of minimum maximum penalties set in motion by the EU is unlikely to
provide for actual harmonisation at national level. She demonstrates this lack of
harmonisation even in maximum sentences in the light of one specific example of the
implementation of Framework Decision on counterfeiting of the Euro which stipulated a
minimum maximum sentence of at least eight years. The author notes how, since 2001,
Portugal punishes counterfeiting with custodial sentences from three to twelve years;
676 This choice reflected the difficulties of agreeing on a common definition of organised crime
among the 27 Member States particularly due to the existence of two models in the European
Union: the ‘Anglo-Saxon’ model that tackles organised crime primarily via conspiracy offences
and the ‘Continental model’ which criminalises the participation in a criminal organisation
instead. The European Commission sought first to harmonise along the lines of the Continental
model but the UK was not willing to let go of its conspiracy approach. V. Mitsilegas, EU
Criminal Law, supra note 14, 94-95.
677 Statement by the Commission, joined by France and Italy, in Annex A to Annex to the
Council Doc. 9067/06 on the Proposal for a Council Framework Decision on the fight against
organised crime, Brussels, 10 May 2006, 12.
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