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

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least ten years imprisonment in contrast with eight years, provided in the Framework Decision. 925 The Directive also broadens the concept of ‘aggravating circumstances’ to include all cases with child victims and the commission of the offence by public officials. 926 Moreover, it further requires Member States to establish jurisdiction in cases where the offence was committed—in whole or in part—in their territory as well as when the offender is one of their nationals (this might potentially involve the assertion of jurisdiction beyond the EU’s territory). 927 A Directive on the sexual exploitation of children, amending and expanding the provisions of the Framework Decision on the same topic, was also adopted. 928 The Framework Decision categorised these offences in two main categories: those of ‘offences concerning the sexual exploitation of children’ and ‘offences concerning child pornography’. 929 The Directive now categorises offences in four distinct categories: ‘offences concerning sexual abuse’, ‘offences concerning sexual exploitation’, ‘offences concerning child pornography’ and ‘solicitation of children for sexual purposes’. 930 Besides these broader categorisations, the Directive requires Member States to criminalise more conducts than those required by the Framework Decision such as, for example, the causing a child who has not reached the age of sexual consent, to witness sexual activities or sexual abuse, for sexual purposes, even without being forced to participate. 931 Further examples are to knowingly attend pornographic performances involving the participation of a child, 932 and to knowingly obtain access, by means of information and communication technology, to child pornography. 933 The Directive also lists a higher number of aggravating circumstances that Member States may consider than those listed in the Framework Decision. Examples of aggravating circumstances which were not mentioned in the Framework Decision are, for instance, the offence being committed against a child in a particular vulnerable situation, such as with a mental health or physical disability; the offence being committed by a member of the child’s family, a person cohabitating with the child or a person who has abused a recognised position of trust and authority; the offence being committed by several 925 See Article 3(2) of the Framework Decision and Article 4(2) of the Directive, ibid.. 926 Article 4 (2)(a) and(3) of the Directive, ibid.. 927 Article 10 (1) (a) and (b), ibid.. 928 Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA, OJ L 335/1 [2011]. 929 Articles 2 and 3 of Framework Decision 2004/68/JHA, supra note 414. 930 Articles 3, 4, 5 and 6 of the Directive, respectively. Supra note 928. 931 Article 3 (2) and (3) of the Directive, ibid.. 932 Article 4(4), ibid.. 933 Article 5(3), ibid.. 244
persons acting together; in the framework of a criminal organisation; or the offender having previously committed offences of the same nature. 934 Beyond those mentioned above, other harmonisation measures are currently being proposed. The European Commission has already put forward a proposal for a Directive on attacks against information systems, which will replace the Framework Decision on attacks against information systems. 935 Similarly to the previous two Directives mentioned, the scope of conduct that the Directive will require Member States to criminalise, is broader than that of the Framework Decision. For example, the proposed Directive calls for the criminalisation of new methods of committing cyber crimes— such as the use of bonnets. 936 2.1.2. Protecting EU interests and policies via the criminal law Harmonisation, in the context of Article 83(2) TFEU, is at the centre of ECL’s development, currently. The article provides that, if the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area that has been subject to harmonisation measures, directives may establish minimum rules regarding the definition of offences and sanctions, in the area at stake. This provision affords a clear competence for the Union to reinforce its policies via the use of criminal norms as well as the application of criminal sanctions. Article 325(4) TFEU also provides this competence in relation to the EU’s financial interests. As shown throughout the thesis, the narrative of protection of EC interests was for the most part, developed indirectly. This was so because, for a significant period of ECL’s evolution, the EC did not have a recognised competence to seek the protection of its own interests and policies via criminal law. Nonetheless, this protection was sought indirectly via third pillar instruments as well as through the influence of the CJEU. This influence culminated in two important CJEU decisions in which the Court recognised competence for the EC to adopt criminal law measures in the context of its environmental and transport policies when these aimed at fighting serious environmental crime. The use of criminal law to protect EC policies was controversial at different levels, as it touched upon a number of difficult themes. The first of which related to the legitimacy and 934 Article 9 (a), (b), (c), (d) and (e), ibid.. 935 Proposal for a Directive of the European Parliament and of the Council on attacks against information systems and repealing Council Framework Decision 2005/222/JHA, COM(2010) 517 final, Brussels, 30.9.2010. 936 Article 6 of the Proposal, ibid..; ‘Bonets are networks of private computers infected with malicious software and controlled, as a group, without the owners’ knowledged; see also page 3 of the proposal for more details on what bonets are and how they operate. 245
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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
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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 and 242: Measures adopted along these narrat
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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,
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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
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
Page 293 and 294: 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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