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

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the request of other Member States or of the Commission in similar conditions as it would prosecute “an act prejudicial to its rules on secrecy and as one falling, both as to merits and jurisdiction, within the scope of its laws relating to acts prejudicial to the security of the State or to disclosure of professional secrets”. 97 Besides this minimal presence in the Treaties, there were other avenues through which criminal law was indirectly and slowly making its way into the political and legal spheres of the European project. This happened first as the EC made room for national laws to criminalise behaviours that could negatively influence EC policies or, more importantly, to introduce provisions—often of a penal nature—which could ensure efficiency and compliance with EC norms. Second, the EC’s role was shaped through an occasional influence of the CJEU. The latter sought to eliminate penal hindrances to the completion of the single market, setting aside domestic criminal law provisions. Lastly, at a political level, the EC provided a useful and suitable framework for the development of police cooperation primarily in relation to terrorism and later on with regard to serious criminality. These levels of influence will be described in the following section. 1.1. The pursuit of EC interests and policies via national criminal law As mentioned, the ECT was silent in relation to criminal law. However, this is not to say that criminal law had no place in the broad framework of the EC’s development. In fact, during the first decades of the EC’s existence, Community law was increasingly influencing Member States’ criminal law, thus facilitating the realisation of the EC’s interests and policies. Hence, although the Community had no competence in criminal matters, national criminal law was indirectly being used as a tool to regulate the common market and to facilitate the enforcement of EC policies. This influence took two forms. First, via legislative acts when EC measures were implemented into domestic legal orders via criminal law provisions. Second, when the CJEU would set conditions upon domestic criminal law. This influence was made possible mainly through two constitutional principles developed by the CJEU: the primacy or supremacy of EC law over national law and the principle of direct effect. The former was developed very early on in the case Costa v Enel in which the Court held that EC law could not be overridden by domestic legal provisions, however these were 97 Article 194 Euratom Treaty, OJ C 84/1 [2010] (consolidated version). 36
framed. 98 The principle of direct effect, in turn, was recognised in Van Gend en Loos (and further developed in several subsequent cases) in which the Court held that provisions of EC law that were sufficiently clear, precise and unconditional, could be invoked by individuals before national courts. 99 Regarding the legislative influence of Community law in national criminal law, examples vary throughout policy areas such as transport, environmental policy, agriculture and fisheries. The EC’s influence could be seen, for instance, in the Council Regulation on the harmonisation of social legislation related to road transport, 100 which sought to: determine the minimum age of drivers engaged in the carriage of goods and passengers, 101 set limits on duration of continuous driving periods and daily driving time, 102 stipulate resting periods, 103 and to enact mechanisms of control for these provisions. 104 The coordination of these elements targeted several objectives, which ranged from promoting harmonious competition in the domain of transport to an improvement in road safety as well as greater control by the EC (and national authorities) regarding the type and mode of road transport used in the EU space. The Regulation required vehicle crew members to carry an ‘individual control book’ where information regarding rest periods, driving hours, etc. should be registered. Finally, article 18 (1) of the Regulation provided that national legislation complementing the Council Regulation should cover the organisation, procedure and means of control as well as the penalties to be imposed in the case of a breach of such provisions. 105 The common fisheries policy was another important domain in which the effectiveness of EC measures was to be guaranteed by national legal orders. In this domain, a Regulation establishing control measures for the fishing activities of the Member 98 Case 6/64 Costa v Enel ECR 1141 [1964], in particular at 594. 99 Case 26/62 Van Gend en Loos v Netherlands Inland Administration ECR 1 [1963]; see for further developments of the principle, inter alia, Case 41/74 Van Duyne ECR 1337 [1974], Case 2/74 Reyners ECR 631 [1974], Case 43/75 Defrenne ECR 455 [1976]. 100 Regulation (EEC) No 543/69 of the Council of 25 March 1969 on the harmonisation of certain social legislation relating to road transport, OJ L 77/49 [1969]. 101 Article 5, ibid.. 102 Articles 7, 8, 9 and 10, ibid.. 103 Articles 11 and 12, ibid.. 104 Articles 14 and 15, ibid.. 105 Later on, intervention was streamlined with the adoption of Regulation 3820/85 on the harmonisation of certain social legislation relating to transport which repealed Regulation 543/69 - this Regulation aimed at harmonising competition between methods of inland transport, whilst improving working conditions and road safety. The same lines of action were maintained although the Regulation provided for fewer exemptions from the obligations to install the control mechanisms provided for in its text. Furthermore, it again reasserted that “Member States shall, in due time and after consulting the Commission, adopt such laws, regulations or administrative provisions as may be necessary for the implementation of this Regulation. Such measures shall cover, inter alia, the organisation of, procedure for and means of control of the penalties to be imposed in case of breach.”, Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonization of certain social legislation relating to road transport, OJ L 370/1 [1985]. 37
Page 1 and 2: The London School of Economics and
Page 3 and 4: Abstract This thesis addresses the
Page 5 and 6: However, the journey of writing thi
Page 7 and 8: 3. The scope of intervention: the e
Page 9 and 10: 4. The emergence and development of
Page 11 and 12: Introduction: The nature of Europea
Page 13 and 14: This dissertation seeks to advance
Page 15 and 16: account as a reference. Indeed, sev
Page 17 and 18: Whilst the distinctive criteria of
Page 19 and 20: it makes sense to consider the doma
Page 21 and 22: creation of summary offences tried
Page 23 and 24: want to be talking about a simple a
Page 25 and 26: contemporary societies that primari
Page 27 and 28: influence on Member States to intro
Page 29 and 30: But what defines these Euro-crimes
Page 31 and 32: significantly broader range of crim
Page 33 and 34: legal orders that punish more sever
Page 35: enforcement agencies were keen to e
Page 39 and 40: obligations were further confirmed
Page 41 and 42: Moreover, other realms of interacti
Page 43 and 44: Hence, the Court, whilst recognisin
Page 45 and 46: for some understanding of the first
Page 47 and 48: “The Commission’s efforts and i
Page 49 and 50: trafficking), and especially about
Page 51 and 52: The central actors in the Trevi fra
Page 53 and 54: justice and home affairs matters un
Page 55 and 56: Likewise, the Programme of Action t
Page 57 and 58: means to repatriate third country n
Page 59 and 60: “Each Member State shall take app
Page 61 and 62: “For that purpose, whilst the cho
Page 63 and 64: limiting national criminal law, it
Page 65 and 66: “…synthesis of the arrangements
Page 67 and 68: of Action relating to the reinforce
Page 69 and 70: the single market and the consequen
Page 71 and 72: Rather limited in scope and depth,
Page 73 and 74: The need for more openness in the w
Page 75 and 76: not subject to control or enforceme
Page 77 and 78: the individual. The building of a m
Page 79 and 80: Initiatives ranged from the creatio
Page 81 and 82: etween police forces in matters of
Page 83 and 84: evenue. 298 Along the same lines, t
Page 85 and 86: identified in the TEU(M) It was see
Page 87 and 88:
esponsible for the formalisation of
Page 89 and 90:
Indeed, already in 1996, organised
Page 91 and 92:
Finally, besides the political and
Page 93 and 94:
particularly those initiatives that
Page 95 and 96:
and drug trafficking, hence giving
Page 97 and 98:
trade. 356 The Court continued by n
Page 99 and 100:
well as the first protocol. 366 The
Page 101 and 102:
crime is a fluid concept, with loos
Page 103 and 104:
means of transport, telecommunicati
Page 105 and 106:
Chapter 3 The evolution of European
Page 107 and 108:
1. Treaty of Amsterdam: expansion a
Page 109 and 110:
positions would be suited to define
Page 111 and 112:
The author noted how it was adopted
Page 113 and 114:
2. The new scope of European Union
Page 115 and 116:
these political declarations, which
Page 117 and 118:
thirty years and epitomises and imp
Page 119 and 120:
phenomenon and of the multifaceted
Page 121 and 122:
within the scope of instruments alr
Page 123 and 124:
Furthermore, the criminalisation of
Page 125 and 126:
interests (in this case the single
Page 127 and 128:
More notably, the most significant
Page 129 and 130:
The Court decided with the Commissi
Page 131 and 132:
Regardless of the Court having plac
Page 133 and 134:
in particular fields, thus solidify
Page 135 and 136:
However, competence to enact legisl
Page 137 and 138:
months) to third-country national v
Page 139 and 140:
derogations); 525 others proposed f
Page 141 and 142:
ecognition of national sentences, p
Page 143 and 144:
2. The features of the new supranat
Page 145 and 146:
criminal matters and, if necessary,
Page 147 and 148:
with a cross border dimension. Ther
Page 149 and 150:
question of ‘why criminal law’,
Page 151 and 152:
e affected by ECL law. 562 This dec
Page 153 and 154:
Chapter 4 Harmonisation of national
Page 155 and 156:
Harmonisation was felt to be necess
Page 157 and 158:
matters. Indeed, the European Union
Page 159 and 160:
This provision portrays a criminal
Page 161 and 162:
“a structured group of three or m
Page 163 and 164:
development is in line with the rea
Page 165 and 166:
economic loss; (e) seizure of aircr
Page 167 and 168:
Framework Decision, which obliged t
Page 169 and 170:
possession, among others. 630 A stu
Page 171 and 172:
Again, the EU’s provision was bro
Page 173 and 174:
liability is a sensitive issue whic
Page 175 and 176:
3.2. A focus on minimum maximum pen
Page 177 and 178:
the threshold demanded by EU law. T
Page 179 and 180:
of ensuring a degree of homogeneity
Page 181 and 182:
Framework Decision on trafficking i
Page 183 and 184:
inging about a harsher criminal law
Page 185 and 186:
extraterritoriality to nothing less
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 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
Page 243 and 244:
implementation of Union policies. 9
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
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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