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

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egarding ECL’s evolution, to the fashion according to which it responded to common perceived threats and needs in criminal. To look at the history of ECL is thus to look not only but also at its institutional structures, at how these both limited and empowered political and legal actors and conditioned the focus, shape and dynamics in the field at different times. As seen in Chapter 3, the Lisbon Treaty made deep changes to the old institutional structure, which was divided into three pillars. After Lisbon, these were reconfigured into two Treaties: the Treaty on the European Union (TEU(L)) and the Treaty of the Functioning of the European Union (TFEU), 913 which pave the way to the merging of the old pillar structure. This is of major significance for criminal matters within the EU, which, as seen throughout the thesis, were always kept in the separate framework of the third pillar (although, as also, this did not prevent a growing presence of criminal matters within the first pillar). Furthermore, the Treaty of Lisbon has also elevated the Charter of Fundamental Rights to the same legal value as the Treaties. 914 Specific to ECL, the TFEU formalised previous developments and left room for more expansion in the field. The central provisions for ECL are now Article 82 and 83 TFEU which, respectively, concern mutual recognition in criminal matters and the harmonisation of national criminal law. It was also seen in chapter 4 and 5 of this dissertation that both principles of harmonisation of national criminal law and mutual recognition in criminal matters are contributing to a more severe penality across the EU. This was taking place in a threefold manner: first, by increasing levels of formal criminalisation at the national level; 915 second, by facilitating criminal investigation, prosecution as well as securing punishment across the European Union; 916 thirdly, by potentially placing more pressure on more lenient States. 917 It will be seen below that, in the light of the new institutional framework of the Treaty of Lisbon, ECL is likely to continue to lead to an increase in formal criminalisation. 1.1. Recent developments in harmonisation of national criminal law Recent developments in harmonisation of national criminal law suggest that the trends of increasing expansion and punitiveness will continue to echo throughout ECL. Expansion is seen first in the wording of the Article 83 TFEU, which envisages the possibility of adoption of further harmonisation measures in relation to serious and cross border crime on the basis of “developments of crime”; 918 second, Lisbon also gives the EU competence to adopt criminal measures if these are necessary to ensure the effective 913 Article 1 TEU(L) atributes the same legal value to both Treaties. This chapter will also refer to the two Treaties in more general terms as ‘Treaty of Lisbon’ or ‘Lisbon Treaty’. 914 Article 6(1) TEU(L). 915 Chapter 4. 916 Chapter 5. 917 Chapter 4 and 5. 918 Article 83(1) TFEU. 242
implementation of Union policies. 919 The latter development clearly extents the competence recognised by the CJEU in relation to the protection of EC environmental and transport policies via the criminal law. 920 2.1.1. Fighting serious cross-border crime Article 83(1) explicitly grants competence for the EU to establish minimum rules concerning the definition of criminal offences and sanctions in area of serious crossborder crime. Specifically, ten different areas of crime are identified: terrorism, trafficking in human beings, sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime. In this context, several new Directives have been adopted or proposed aiming at further harmonisation and at replacing previous framework decisions. Most of these instruments amend and further expand the scope of criminalisation. This broadened scope will likely lead to a second wave of increased formal criminalisation. This is seen, for example, in the new Directive on trafficking in human beings. 921 The Directive replaces the former Framework Decision 922 and adopts a broader concept of what should be considered under ‘trafficking in human beings’. Hence, it requires Member States to criminalise a broader range of conducts than the preceding Framework Decision. The new behaviours to be criminalised include: the exploitation of begging, including the use of a trafficked dependent person for begging; the exploitation of criminal activities, namely the exploitation of a person to commit , among other, pick-pocketing, shop-lifting, drug trafficking and other similar activities which are subject to penalties and imply financial gain; and trafficking for the purpose of organ removal. 923 Similarly, the Directive also increases the level of penalties to be applied. A new minimum-maximum sentence of at least five years imprisonment is now to be applicable in ordinary trafficking offences, whilst previously the Framework Decision did not specify a minimum maximum for non-aggravated offences (it did require however, that the offences would be punishable by effective, proportionate and dissuasive penalties, which may entail extradition). 924 Similarly, the minimum maximum sentence to be applied in cases where aggravating circumstances are verified is now at 919 Article 83(2) TFEU. 920 See chapter 3. 921 Directive 2011/36/EU of the European Parliament and the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Framework Decision 2002/626/JHA, OJ L 101/1 [2011]. 922 Framework Decision 2002/629/JHA, supra note 409. 923 Article 2 of the Directive. See also intend 11 of the preamble, supra note 921. 924 See Article 3(1) of the Framework Decision and Article 4 of the Directive, supra notes 409 and 921. 243
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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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Framework Decision on trafficking i
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inging about a harsher criminal law
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extraterritoriality to nothing less
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development of the single market -
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“(… )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 and 232: prosecuted elsewhere in the EU. Rat
Page 233 and 234: of drugs between two Schengen count
Page 235 and 236: definitely bar further prosecution
Page 237 and 238: Conclusion The introduction and dev
Page 239 and 240: Chapter 6 Conclusion: Towards a Eur
Page 241: Measures adopted along these narrat
Page 245 and 246: persons acting together; in the fra
Page 247 and 248: policies appeared as the main crite
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,
Page 261 and 262: communication upon arrest 1012 is u
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
Page 283 and 284: Council Directive 91/477/EEC of 18
Page 285 and 286: Joint Action 96/602/ JHA of 14 Dece
Page 287 and 288: Proposals Portuguese Republic, Init
Page 289 and 290: supervision order in pre-trial proc
Page 291 and 292: 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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