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

Spain with a imprisonment penalty from eight to twelve and with fine of up to ten times
the value counterfeited; France with imprisonment up to thirty years and fine up to 450
000 Euros; Italy applies custodial sentences which can range from three to twelve years
and a fine from 516 to 3098 Euros; whilst in Germany the same conduct is punishable
with custodial sentences ranging from one to fiftheen years (with some qualification
depending on mitigating or aggravating circumstances). 678 All these five Member States
comply with the Framework Decision provisions on penalties, yet the different domestic
provisions are hardly harmonised. Indeed, if one considers maximum penalties, whilst in
France counterfeiting is punishable with custodial sentences of up to thirty years, Spain
applies a maximum of ten years. Likewise, minimum penalties also vary greatly – see
for instance the difference between one year in Germany to eight years in Spain. Clearly,
the framework decision hardly led towards significant harmonisation.
In fact, the Commission had voiced concerns about the difficulty in harmonising
penalties and noted in its Green Paper on the Approximation, Mutual Recognition and
Enforcement of Criminal Sanctions that
“The differences between Member States’ legislation on penalties are still quite sharp.
There are historical, cultural and legal reasons for this, deeply rooted in their legal
systems, which have evolved over time and the expression of the way in which Member
States have faced and answered fundamental questions about criminal law. These
systems have their own internal coherence, and amending individual rules without
regard to the overall picture would risk generating distortions.” 679
The risk of generating distortions is not negligible if one considers the existing
differences. Maximum custodial sentences for example range from life imprisonment
in countries such as Belgium, Greece, the United Kingdom, France and Italy, to 30
years in Spain or even 25 years in Portugal and Greece. Among countries with life
imprisonment the possibility of early release also varies immensely. Minimum periods
can go up to 30 years in France, 20 years in Ireland, 15 in Germany or 10 in
Belgium. 680 A lack of coherence in the choice of the minimum maximum threshold for
punishment was further pointed out by Weyembergh who notes in this regard, for
example, how the Framework Decision against the counterfeiting of the Euro and the
678 I. Horta Pinto, “Os Efeitos do ‘Direito Penal Europeau’ nos Sistemas Sancionatórios dos
Estados Membros da Uniao Europeia”, in Estudos de Homenagem ao Prof. Doutor Jorge
Figueiredo Dias, Vol I (Coimbra: Coimbra Editora, 2009) 821, 831-32. Our translation.
679 European Commission, Green Paper COM(2004)334final, see supra note 573, 8.
680 Ibid., 29; I. Horta Pinto, “Os Efeitos do ‘Direito Penal Europeau’ nos Sistemas Sancionatórios
dos Estados Membros da Uniao Europeia”, note 678 supra, 825.
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