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

weak and heterogeneous. 952 Existing national sanctions to fight market abuse offences
are lacking impact and are not sufficiently dissuasive, whilst national definitions of
market abuse and insider dealing offences diverge considerably from Member State to
Member State. In addition, five Member States do not provide for criminal sanctions for
disclosing inside information by primary insiders and eight Member States do not do so
in relation to secondary insiders. In addition, one Member State does not currently
impose criminal sanctions for insider dealing by a primary insider and four do not do so
for market manipulation. 953 Therefore, the correct implementation of the Directive is,
once again, likely to increase formal criminalisation in some Member States.
Finally, the Commission has also put forward a Proposal for a Directive on the fight
against fraud to the Union’s financial interests by means of criminal law. 954 The
explanatory memorandum notes that despite developments in this area, Member States
have adopted diverging rules and consequently, often diverging levels of protection of
the Union’s financial interests within their national legal systems. Again, the Directive
requires Member States to criminalise more broadly than its predecessor—the ‘PIF’
Convention—does. 955 It will do so by no longer requiring that the prohibited conduct be
‘in breach of official duties’ and by including in its scope ‘misappropriation’, which
covers conduct by public officials that does not constitute fraud stricto sensu but which
consists of misappropriation of funds or assets with the intention to damage the Union’s
financial interests. 956 Moreover, the Directive also introduces minimum penalties to be
applied (previously ECL measures would only refer to minimum maximum penalties). 957
2.2. Recent developments in mutual recognition in criminal matters
The second dynamic of ECL—the one brought about by mutual recognition—is also
solidified and expanded. As seen in Chapter 3 and earlier in this chapter, Article 82 (1)
of the Treaty of Lisbon formalises the role of mutual recognition as the hub of judicial
cooperation in criminal matters in the EU. This dynamic was the most expansive until
Lisbon, as it incorporated potentially all criminality under its umbrella and touched upon
an increasing number of domains in the domestic criminal justice systems. Its
endorsement in the Treaty as the cornerstone of judicial cooperation in criminal matters
952 Ibid., 2.
953 Ibid., 3.
954 Proposal for a Directive of the European Parliament and of the Council on the fight against
fraud to the Union’s financial interests by means of criminal law, COM(2012)363 final, Brussels,
11.7.2012.
955 Convention for the Protection of the European Communities financial interests, supra, note
298.
956 Article 4 of the Proposal; see also pages 8-9 of the explanatory memorandum, supra note 954.
957 Ibid., 19.
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