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

Harmonisation was also attempted in relation to criminal liability of corporations and the
conditions that the applicable penalties were to fulfil. Three main elements were usually
required: those of the proportionality, deterrence and effectiveness of the offences
applied at the national level - conditions which largely mirrored the formula already
used by the CJEU in its case law as seen in the decision Commission v. Greece. 308
Measures adopted, however, contrary to the CJEU in the latter case, begun to refer
specifically to criminal penalties. The Convention on the protection of EC budget, for
instance, required Member States to punish by “effective, proportional and dissuasive
criminal penalties” the offences the Convention sought to harmonise, including their
instigation or attempt. Similarly, three other Joint Actions referred to the penalties that
should be applied at the national level. The Joint Action on drug trafficking held that
“Member States shall ensure that under their legal systems the penalties imposed for
serious drug trafficking are among the most severe penalties available for crimes of
comparable gravity.” 309
The Joint Action on trafficking in persons and sexual exploitation of children called for
the application of effective, dissuasive and proportionate penalties (including criminal
penalties) and, additionally, for the liability of legal persons and the application of
appropriate administrative measures, such as the closure of establishments. 310 Finally,
the Joint Action on corruption in the private sector required the introduction of effective,
deterrent and proportional criminal penalties and the creation of provisions which would
ensure the liability of legal persons at national level. 311
Thus, the question emerges as to what type of interests, rationales or themes, if any,
were driving the EU’s legislative intervention in these domains Was there a coherent
discourse underlying EU measures in criminal matters beyond what was clearly
act or omission relating to: - the use or presentation of false, incorrect or incomplete statements
or documents, which has as its effects the misappropriation or wrongful retention of funds from
the general budget of the European Communities or budgets managed by, or on behalf of, the
European Communities, - non disclosure of information in violation of a specific obligation, with
the same effect, - the misapplication of such funds for purposes other than those for which they
were originally granted; (b) in respect of revenue, any intentional act or omission relating to: -
the use or preservation of false, incorrect or incomplete statements or documents, which has as
its effects the illegal diminution of the resources of the general budget of the European
Communities or budgets managed by, or on behalf of, the European Communities; - non
disclosure of information in violation of specific obligation, with the same effect, - misapplication
of a legally obtained benefit, with the same effect […]”, supra note 298.
308 Case 68/88 Commission v Greece, supra note 220; See chapter 1.
309 Article 4 of the Joint Action 96/750/JHA, supra note 279.
310 Title II (a), (b), (c) and (d) of the Joint Action 97/154/JHA, supra note 303.
311 Article 4 and 5 of the Joint Action 98/742/JHA, supra note 250.
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