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

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solidification of many developments which had begun to take place outside the framework of the Treaties in the previous decades. 244 The EU’s claim in criminal matters was to be complementary to Member States which remained central in this regard. This was made clear in the TEU(M), which clarified the EU’s new competencies in this domain: “This Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.” 245 Hence, the EU claimed competence on discrete areas of “common interest” only, where cooperation in justice and home affairs in general was to be developed, namely those of asylum, external borders, immigration, drugs issues (trafficking and addiction), fraud on an international scale, judicial cooperation in civil and criminal matters, customs cooperation and police cooperation in the domains of terrorism, drug trafficking and other forms of international crime. 246 More specifically, in the criminal justice matters concerned, Article K.1 of the TEU(M) stated: “For the purposes of achieving the objectives of the Union, in particular the free movement of persons, and without prejudice to the powers of the European Community, Member States shall regard the following areas as matters of common interest: … 7. judicial cooperation in criminal matters; … 9. police cooperation for the purposes of preventing and combatting terrorism, unlawful drug trafficking and other serious forms of international crime, including if necessary certain aspects of customs cooperation, in connection with the organization of a Union-wide system for exchanging information within a European Police Office (Europol).” The scope of intervention in these areas of common interest was addressed in Article K.3, which mentioned that, in the areas referred to in article K.1, Member States should “inform” and “consult” one another within the Council in order to “establish cooperation” between the relevant departments of their administrations. 244 See chapter 1. 245 Article K.2 (2) TEU(M) OJ. C. 191, 29 July 1992. 246 Article K.1, ibid.. 70
Rather limited in scope and depth, the TEU(M) maintained that Member States should remain at the centre of these new arrangements but attributed the most prominent role to the Council and a rather secondary role to all other main institutions. Hence, the Council was the central institution and its work was to be supported by a Committee – the K4 Committee – which ought to give opinions and prepare the Council’s discussions. 247 Other institutions were given minor roles only. Article K.4 (2), for example, provided that the European Commission did not have any right of initiative in criminal law related matters even if it ought to be “fully associated” with the work developed in the domains of police and judicial cooperation in criminal matters. 248 The European Parliament had no role in the decision making process but again, similarly to the European Commission, was also to be “informed” of the discussions in the area involving themes in Title VI and consulted on the “principle aspects of activity”. Finally, the Court of Justice was also given no jurisdiction in criminal matters except if a specific Convention would stipulate its jurisdiction to interpret their provisions and to rule on disputes regarding their application. 249 These institutional arrangements centred on the Council and the K4 Committee, leaving the European Commission, the European Parliament and the Court of Justice in the periphery of the decision-making process, in turn prolonging and accentuating old concerns over the lack of transparency and accountability of the EU’s activity in criminal law related matters. The European Commission, for example, which, according to the TEU(M), was to be fully associated with the role of the K4 Committee, had very little opportunity to do so and there is very little evidence that the Committee associated the former with its work as stipulated. 250 As for the EP, it was consulted only once before 1997. 251 In a similar fashion, the CJEU’s limited competencies were not used at all during these years. As a matter of fact, only in 2008 and 2010 did two preliminary references regarding conventions signed during the Maastricht period reach the Court – both regarding Europol staff disputes. 252 247 Article K.4 ibid.. 248 Article K.3 (2) gave the European Commission rights of initiative in other domains of Justice and Home Affairs, ibid.. 249 Article K.3, ibid.. 250 Even in relation to the domains where the Commission had the right of initiative, such as immigration and border control, for instance, in practice it did not make much use of such a right until 1997. Even after this, Peers points out how only two of the Commission’s Proposals were agreed on before the entry into force of the Treaty of Amsterdam, S. Peers, EU Justice and Home Affairs Law (Oxford: OUP, 2006, Second Edition) 12. 251 S. Peers, ibid., 13. 252 Case C-133/08 ICF v BV ECR I-9687 [2009] and C-29/10 Heiko Koelzsch v Luxembourg ECR I-01595 [2010]. 71
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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
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 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: the single market and the consequen
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
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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
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Hinarejos, A., Spencer, J.R., and P
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Xanthaki (eds) Towards a European C
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Szymanski, J., “Discretionary Pow
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Legislation and other sources by ty
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Council Directive 91/477/EEC of 18
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Joint Action 96/602/ JHA of 14 Dece
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Proposals Portuguese Republic, Init
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supervision order in pre-trial proc
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Council Doc. 9067/06 on the Proposa
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Case C-186/98 Criminal proceedings
Page 295 and 296:
Agreement on the Application betwee
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Websites and links http://www.eurow
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