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

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prosecution in a Member State, even when such decisions were adopted without the involvement of a court or did not take the form of a judicial decision. 879 This broad interpretation of the principle of ne bis in idem was followed by a significant number of cases in which the CJEU consistently took a wide interpretation when deciding on the meaning of idem, 880 of bis 881 and of the ‘enforcement of penalties’ (the last part of Article 54 CISA). The Courts’ decisions draw a clear parallel between national and European. Accordingly, what is valid nationally is also to be deemed valid and effective beyond those national boundaries. Ultimately this is tantamount to granting criminal decisions complete extraterritoriality. This broad line of interpretation of the principle was further developed and reasserted by the CJEU. In Van Esbroek the Court turned to examine the meaning of idem finding that it should be based on “the identity of the material acts, understood as the existence of a set of facts which are linked together, irrespective of the legal qualification given to them or the legal interest protected.” 882 The Court found this broad interpretation necessary, once again, in the light of securing free movement: “Only if the perpetrator of an act knows that, once he has been found guilty and served his sentence, or, where applicable, been acquitted by a final judgment, he may travel within the Schengen territory without fear of prosecution in another Member State.” 883 The Court further developed this interpretation of ne bis in idem in Van Straaten 884 and Gasparini. 885 In Van Straaten the Court elaborated on the notion of ‘same acts’ and decided along the lines of Van Esbroek. In particular, the Court ruled that the movement 879 Para 37, 38, ibid.. 880 Same acts or same offences (or what constitutes either of these two). 881 Whether the principle is applicable to decisions on the merits only (determining someone’s innocence or guilt) of if it also includes decisions on procedural grounds. 882 Case C-436/04 Criminal proceedings against Van Esbroeck ECR I- 2333 [2006] para 42. 883 Para 34, ibid.. 884 Case C-150/05 Criminal proceedings against Van Straaten ECR I-9327 [2006]. 885 Case C-467/04 Criminal proceedings against Gasparini ECR I-9199 [2006]. 232
of drugs between two Schengen countries – the ‘export’ from one country and ‘import’ into the other country - are basically the same acts. As Wasmeier and Thwaites note “The ECJ clearly stated that the variety of interpretations linked to the EU’s nature is incompatible with the proper and consistent application of ne bis in idem as a fundamental principle. This echoes the European Council’s conclusions of its summit in Tampere where it was stressed that: ‘in a genuine European Area of Justice individuals (...) should not be prevented or discouraged from exercising their rights by the incompatibility or complexity of legal and administrative systems in the Member States.’” 886 In Van Straaten the CJEU went further when considering the concept of bis as well, finding that a courts’ final decision of acquittal for lack of evidence should be subsumed within the application of the principle. The Court noted that, not including these decisions in the concept of bis and allowing criminal proceedings in a different Member State for the same acts, would affect the exercise of the right of free movement and would undermine the principles of legal certainty and legitimate expectations. 887 Along the same lines in Gasparini 888 the CJEU held that decisions where the defendant was acquitted because prosecution was time barred are to be included in the remit of the principle. 889 This wide interpretation has also been taken in relation to the last part of Article 54 CISA namely to what is the meaning of enforcement of a penalty. 890 In this regard the Court took the view that a suspended sentence is a penalty in the course of being 886 M. Wasmeier and N. Thwaites, “The development of ne bis in idem into a transnational fundamental right in EU law: comments on recent developments” (2006) 31 European Law Review 565, 573. 887 Case C-150/05, supra note 884, para 58-60. 888 Case C-467/04, supra note 885. 889 This went against the findings of AG Sharpston who found that a decision that does not involve examinations of the merits of the case does not settle societies account with the individual nor does it strike a balance between free movement and fighting crime which could lead to a forum shopping jurisdiction by offenders, para 74-76, 81, 84 and 104 of the AG Conclusions in Criminal proceedings against Gasparini delivered on 15 June 2006, ECR I- 9203. 890 The last part of Article 54 CISA holds that for the principle to apply a penalty imposed “has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the Contracting Party.” Supra note 59. 233
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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
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Furthermore, the criminalisation of
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interests (in this case the single
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More notably, the most significant
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The Court decided with the Commissi
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Regardless of the Court having plac
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in particular fields, thus solidify
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However, competence to enact legisl
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months) to third-country national v
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derogations); 525 others proposed f
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ecognition of national sentences, p
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2. The features of the new supranat
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criminal matters and, if necessary,
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with a cross border dimension. Ther
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question of ‘why criminal law’,
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e affected by ECL law. 562 This dec
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Chapter 4 Harmonisation of national
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Harmonisation was felt to be necess
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matters. Indeed, the European Union
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This provision portrays a criminal
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“a structured group of three or m
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development is in line with the rea
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economic loss; (e) seizure of aircr
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Framework Decision, which obliged t
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possession, among others. 630 A stu
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Again, the EU’s provision was bro
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liability is a sensitive issue whic
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3.2. A focus on minimum maximum pen
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the threshold demanded by EU law. T
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of ensuring a degree of homogeneity
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Page 183 and 184: inging about a harsher criminal law
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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
Page 225 and 226: prisoners with the view of ‘facil
Page 227 and 228: The preamble explains this choice b
Page 229 and 230: 3.3.3 Probation and alternative san
Page 231: prosecuted elsewhere in the EU. Rat
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Page 237 and 238: Conclusion The introduction and dev
Page 239 and 240: Chapter 6 Conclusion: Towards a Eur
Page 241 and 242: Measures adopted along these narrat
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Page 245 and 246: persons acting together; in the fra
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Page 249 and 250: preceding any legislative proposal,
Page 251 and 252: suggests that mutual recognition wi
Page 253 and 254: clear in relation to the EAW. In fa
Page 255 and 256: It is beyond the scope of this thes
Page 257 and 258: Furthermore, Article 6 TEU(L) confe
Page 259 and 260: that may endanger his or her life,
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Page 263 and 264: penal values in the future. Similar
Page 265 and 266: Member State of execution, irrespec
Page 267 and 268: as how long the individual concerne
Page 269 and 270: 6. A renewed challenge for coherenc
Page 271 and 272: Bibliography Books and articles Aba
Page 273 and 274: Deen-Racsmany, D., “The European
Page 275 and 276: Hinarejos, A., Spencer, J.R., and P
Page 277 and 278: Xanthaki (eds) Towards a European C
Page 279 and 280: Szymanski, J., “Discretionary Pow
Page 281 and 282: 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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