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

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“organised crime” has also itself shown to be adaptable to different policy priorities and hence suitable as a political-legal justification when needed. As Levi notes “Legal definitions of organized crime, like other social labels such as ‘anti-social behaviour’, are based around the measures that legislators want to take against evils, both activities and ‘sorts of people’, especially combinations of people.” 345 This was relevant especially as the competency of the EU to act in many of these domains was not clear-cut. Indeed, although many of the crimes in relation to which the EU sought to act upon could be potentially integrated under the very wide concept of “serious international crime” used by Article K.1 of the TEU(M), the link between the wording of the Treaty and many measures adopted was rather feeble and particularly where harmonisation measures were concerned, which clearly went beyond the level of cooperation envisaged by the TEU(M). 3.1.1. The ancillary use of organised crime as a legal concept The use of organised crime as an umbrella legal concept to allow for intervention in domains in which the EU’s competence was not necessarily clear, was further perceived in drugs and drug trafficking matters in relation to which Article K.1 specifically recognised the EU’s competence. Drug trafficking is a traditional field of organised crime and the links between the two cannot be easily overlooked. 346 Thus, one would expect that if the rationale of the fight against organised crime is as wide as previously described, drug trafficking would certainly be part of it. However this is not necessarily so – or at least – this is not acknowledged as such by the preambles of the legal measures in this regard. Indeed, the Joint Actions on drug trafficking, 347 on new synthetic drugs and on chemical profiling of drugs, 348 for example, did not mention organised crime in their preambles or bodies, in clear contrast with the large majority of measures described earlier. Article K.1 however particularly mentioned drug addiction 345 M. Levi, “Organized Crime and Terrorism”, in M. Maguire, R. Morgan and R. Reiner, The Oxford Handbook of Criminology, 4 th Edition (Oxford:OUP, 2007) 771, 779-780. 346 M. Levi, “Organized Crime and Terrorism”, ibid., 777; See also the UK Serious Organised Crime Agency who, in its website, points out that drug trafficking is the most damaging sector of organised crime in the UK, at http://www.soca.gov.uk/threats/, last visited on May 27, 2012. 347 Joint Action 96/750/JHA of 17 Dece,ber 1996 adopted by the Council on the basis of Article K.3 of the Treaty on European Union concerning the approximation of the laws and practices of the Member States of the European Union to combat drug and to prevent and combat illegal drug trafficking, OJ L 342/6 [1996]. 348 Joint Action 96/699/JHA, supra note 302; Joint Action 97/396/JHA of 16 June 1997 adopted by the Council on the basis of Article K.3 of the Treaty on the European Union, concerning the information exchange, risk assessment and the control of new synthetic drugs, OJ L 167/1 [1997]. 94
and drug trafficking, hence giving clear competence to the EU to intervene in this area. Likewise, this was the case with terrorism related cooperation as well. Although terrorism is not necessarily a phenomenon related to organised crime, the links between the two are often relevant and recent literature has become more aware of the increasing connections in today’s world. 349 Furthermore, during the pre-Maastricht period, organised crime, drug trafficking and terrorism were domains associated with each other in official documents. 350 The fact that their link to organised crime was not mentioned or explored in preambles, especially when the approach to the former has been so broad, comes to emphasise the ancillary use of organised crime as a motto or justification for the adoption of measures outside the limited reach of the TEU(M). Hence, when the TEU(M) specifically gave competence to the EC and the EU to intervene in a specific domain – as it did to drug trafficking and terrorism – the preamble of these measures no longer makes a particular reference to organised crime. Hence, the non-use of the discourse of organised crime in drugs and terrorism related matters draws attention to the instrumental use of the discourse of the fight against organised crime made by the EU in other domains during the Maastricht period. 3.2. Protection of EC interests and policies The use of criminal law to protect Community interests and policies was also further developed during the nineties although the ECT(M) continued to be silent in relation to criminal law, which had now been placed under the institutional framework of the third pillar (TEU(M)). Nonetheless, the EC did not remain completely alienated from criminal matters, seeking the protection of its policies and interests via criminal law through both judicial and legislative means. The CJEU continued to be an important actor in this regard, either placing limits on national criminal law or obligations upon Member States. For instance, the Court continued to place limitations on the definition of criminal offences or on the level of penalties applicable at the national level when these would compromise an EC goal. In Bordessa, for example, the Court limited the scope of a national criminal offence, holding that a Spanish law prohibiting the export of coins, banknotes or bearer cheques in excess of PTA 5 million per person and per journey, unless subject to prior 349 See, for example, H. Abadinsky, Organized Crime (Belmont: Wadsworth, 2010, 9th Edition) 5-9. 350 See chapter 1. 95
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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
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it makes sense to consider the doma
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creation of summary offences tried
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want to be talking about a simple a
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contemporary societies that primari
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influence on Member States to intro
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But what defines these Euro-crimes
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significantly broader range of crim
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legal orders that punish more sever
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enforcement agencies were keen to e
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framed. 98 The principle of direct
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obligations were further confirmed
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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: particularly those initiatives that
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
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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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