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

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After 1985, indirect requests for Member States to use their national law as a means to protect EC interests, were also further expanded to other domains of criminality with measures adopted on money laundering, drugs and weapons control as well as insider dealing practices. In these measures, the use of criminal offences and penalties by the national legislator was implied or even, on occasion, referred to in a direct way. Intervention in drug related matters was said to be essential for the completion of the single market, particularly related to the correct application of law and customs regulations in agricultural matters. 206 The Council noted that it was important in this context “that each Member State provide for sufficiently dissuasive penalties.” 207 Therefore, a Regulation laying down measures to be taken to discourage the diversion of certain substances to the illicit manufacture of narcotic drugs and psychotropic substances, for instance, provided for the introduction of measures “…to monitor trade between the Community and third countries in substances frequently used for the illicit manufacture of narcotics drugs and psychotropic substances for the purposes of preventing the diversion of such substances.” 208 The Regulation went beyond monitoring by providing that “Each Member State shall determine the penalties to be applied for infringement of the provisions of this Regulation. The penalties shall be sufficient to promote compliance with those provisions.” 209 Likewise, Directive 91/308 on the prevention of the use of the financial system for the purpose of money laundering was adopted. Strikingly, the use of criminal law at the national level was specifically mentioned in the preamble. 210 Moreover, the body of the Directive did not make express reference to criminal provisions, yet article 14 of the Directive held that 206 Preamble of the Council Regulation (EEC) No 3677/90 of 13 December 1990 laying down measures to be taken to discourage the diversion of certain substances to the illicit manufacture of narcotic drugs and psychotropic substances, OJ L 357/1 [1990]. 207 Ibid.. 208 Article 1, ibid.. 209 Article 8, ibid.. 210 Preamble of the Council Directive 91/308/EEC of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering, OJ L 166/77 [1991]. 58
“Each Member State shall take appropriate measures to ensure full application of all the provisions of this Directive and shall in particular determine the penalties to be applied for infringements of the measures adopted pursuant to this Directive.” 211 Likewise, Article 15 once again left Member States the option to adopt stricter measures than the ones provided for by the Directive. Finally, Directive 91/477 on control of the acquisition and possession of weapons called for the harmonisation of measures on weapon control, namely for the purposes of hunting and target shooting. 212 Once again the Directive made use of the usual formula and stated that “Member States shall introduce penalties for failure to comply with the provisions adopted pursuant to this Directive. Such penalties must be sufficient to promote compliance with such provisions.” 213 Directive 89/592, which coordinated regulations on insider dealing, was a further example of the Court’s influence in national criminal law. 214 The initial proposal made by the Commission expressly required Member States to make insider dealing a criminal offence. 215 The final draft was not as ambitious but still used a language that clearly incentivised Member States to adopt a criminal approach to insider dealing. First, Article 2 stated that “Each Member State shall prohibit any person who” possesses inside information by virtue of his membership, holding capital or access to information, from taking advantage of that information. 216 Furthermore, Article 3 held that, “Member States shall prohibit any person subject to the prohibition laid down in Article 2 who possesses inside information from: (a) disclosing that inside information to any third party [or to] (b) recommend or procuring a third party on the basis of that information […].” 211 Ibid.. For details on the debate on how much the Directive and follow up Directives could push for the adoption of criminal measures, on the background of negotiations and on the legal basis of the Directive, see V. Mitsilegas, Money Laundering Counter-Measures in the European Union (The Hague/ London : Kluwer Law International, 2003) chapter 3. 212 Preamble of Council Directive 91/477/EEC of 18 June 1991 on control of the acquisition and possession of weapons, OJ L 256/51 [1991]. 213 Article 16, ibid.. 214 Council Directive 85/592/EEC of 13 November 1989 coordinating regulations on insider dealing, OJ L 334/30 [1989]. 215 Roger France, “The Influence of European Community Law on the Criminal Law of the Member States”, supra note 114, 340. 216 For more details see Article 2 Council Directive 85/592/EEC, supra note 214. 59
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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
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 and 36: enforcement agencies were keen to e
Page 37 and 38: framed. 98 The principle of direct
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: means to repatriate third country n
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
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positions would be suited to define
Page 111 and 112:
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
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text of the preamble does not amoun
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States should not have to use their
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e partly explained by the fact that
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“Confidence in the application of
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2007, Polish authorities requested
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With these judgements, the Court st
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does not deem the acts in question
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discretion in Title VI TEU(A), one
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Such reasoning led the Court to con
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was committed by a national abroad
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Furthermore, the list of types of o
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“without any further formality be
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An EEW can only be issued with the
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“The competent authorities in the
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prisoners with the view of ‘facil
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The preamble explains this choice b
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3.3.3 Probation and alternative san
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prosecuted elsewhere in the EU. Rat
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of drugs between two Schengen count
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definitely bar further prosecution
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Conclusion The introduction and dev
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Chapter 6 Conclusion: Towards a Eur
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Measures adopted along these narrat
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implementation of Union policies. 9
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persons acting together; in the fra
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policies appeared as the main crite
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preceding any legislative proposal,
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suggests that mutual recognition wi
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clear in relation to the EAW. In fa
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It is beyond the scope of this thes
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Furthermore, Article 6 TEU(L) confe
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that may endanger his or her life,
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communication upon arrest 1012 is u
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penal values in the future. Similar
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Member State of execution, irrespec
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as how long the individual concerne
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6. A renewed challenge for coherenc
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Bibliography Books and articles Aba
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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
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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
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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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