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

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criminal sanctions, such as civil or administrative sanctions, will be sufficient to ensure policy implementation or whether criminal law would address the problems more effectively. The second stage in the adoption of EU legislation is the decision of which concrete measure to adopt when there is a demonstrated need for criminal law. Here, the Commission identifies four main elements to be taken into consideration. First, it reasserts the EU’s competence to adopt minimum rules only, although these must be clear enough to respect the principle of legality. Second, it reasserts the criteria of ‘necessity’ and proportionality in the choice of criminal offences. Third, the need for clear factual evidence about the nature and effects of the crime in question as well as divergent legal situations in Member States which could jeopardise the effective enforcement of an EU policy. Finally, the Commission reasserts the need for effectiveness of the penalty applicable which might involve the ‘tailoring of the sanction to the crime’. This could involve the use of sanctions such as confiscation, for example. 943 The Commission’s Communication makes a clear first attempt at the formulation of principles of criminalisation or criteria for such formulation at the EU level. Underlying this attempt, three main ideas become salient: subsidiarity (the EU should only intervene if it is shown to be necessary due to the scale and effects of the measures needed); criminal law as ultima ratio (the principle according to which criminal law should be of last resort); and effectiveness (the demonstrated need that a particular EU policy is not efficient without the help of criminal sanctions). 944 How the EU in general, or the Commission in particular, will articulate these principles in practice is yet to be seen. Indeed, as seen in Chapter 3, the effectiveness of EC policies and interests was the strongest argument in the Commission and CJEU’s reasoning for the need to adopt of criminal measures. Particularly in relation to the protection of EC’s environmental policy via criminal law, there were arguments put forward that criminal law was not necessarily the most effective means to ensure compliance with environmental policies. 945 However, the CJEU and the Commission both seemed to assume that criminal law could guarantee such effectiveness per se. 946 This suggests that the Commission will have to seek a balance between the criteria of effectiveness and that of ultima ratio. The necessity for this balance is indeed indirectly voiced in the Communication when, the need for more ‘factual evidence’ is mentioned by the Commission. In particular, the Commission mentions ‘Impact Assessments’ 943 Ibid., 7-8. 944 A. Klip, “Editorial: European Criminal Policy”, ibid., 6. 945 M. Faure, “European Environmental Criminal Law”, supra note 480; and B. Lange, “Environmental Criminal Law in a European Context”, supra note 481. 946 See chapter 3. 248
preceding any legislative proposal, as a means to provide for the necessary factual evidence in relation to particular policy areas, in order to determine whether the need for the use of criminal law is necessary or not. 947 On a different level, in answering the question of in which EU policy areas might EU criminal law be needed, the Commission suggests that there a number of areas where it has been established that criminal law measures are required—namely, areas to fight serious damaging practices and illegal profits in economic sectors. These include the financial sector, in particular, measures concerning market manipulation and insider trading, the fight against EU fraud 948 and the protection of the Euro against counterfeiting. 949 Furthermore, the Commission voices its intention to reflect on how criminal law could contribute to economic recovery by tackling illegal economy and financial criminality. Finally, insofar as the subject-matter of ECL is concerned, the Commission asserts that it will further explore whether criminal law is a necessary tool to ensure the effective enforcement of other policy areas, such as road transport (and in particular, serious infringements of EU social, technical, safety and market rules for professional transports), data protection, customs rules, environmental protection, fisheries (policy where the EU has adopted a ‘zero tolerance’ campaign against illegal, unreported and unregulated fishing) and internal market policies (in order to fight illegal practices such as counterfeiting and corruption or undeclared conflict of interests in public procurement). 950 The Commission’s Communication suggests that the narrative of protection of EC policies and interests via criminal law will, most likely, become central in the future of the field. Moreover, besides the increasing scope of ECL, the explanatory memorandums of specific measures proposed suggest that these new measures will also encompass an increase in formal criminalisation in some national legal orders. For example, the Commission has put forward a proposal for a Directive on criminal sanctions for insider dealing and market manipulation. 951 The Directive will be the first instrument in ECL to directly require Member States to criminalise conducts relating to insider dealing and market manipulation. The Commission notes in the explanatory memorandum to the proposal that Member States sanctioning regimes in this area are 947 Commission’s Communication, ‘Towards an EU Criminal Policy”, supra note 939, 7 948 To date the specific legislation in this regard remains the 1995 Convention on the protection of financial interests of the EU and its protocols, and the Council Regulation 2988/95, supra note 361. 949 Commission’s Communication, ‘Towards an EU Criminal Policy”, supra note 939, 10. 950 Ibid., 10-11. 951 Proposal for a Directive of the European Parliament and of the Council on criminal sanctions for insider dealing and market manipulation, COM(2011)654 final, Brussels, 20.10.2011. 249
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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
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arguments against extradition of na
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To be sure, concerns with fundament
Page 197 and 198: text of the preamble does not amoun
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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
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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 245 and 246: persons acting together; in the fra
Page 247: policies appeared as the main crite
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
Page 293 and 294: Case C-186/98 Criminal proceedings
Page 295 and 296: Agreement on the Application betwee
Page 297: Websites and links http://www.eurow
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