The Criminal Law

Competence of the EC
before Lisbon
 Introduction
Initially, the EC had no formal role in
relation to justice & home affairs
Criminal law traditionally perceived as
sovereign prerogative of MS
 MAASTRICHT TREATY
1992

2nd pillar: 3rd Pillar:

1st pillar:
Foreign and Justice and
EC/EUROATOM
Security Policy Home Affairs
Regulated the legal,
political and economic
structure of EC Mixed method,
Intergovernmental relied mainly on
Joined internal and intergovernmental
external policies: cooperation cooperation
-free movement of goods
-agriculture
-environment

Supranational
character
Direct effect
 MAASTRICHT TREATY

Intention to develop close cooperation in

JHA - various policies of common interest
(including judicial and police
cooperation in criminal matters)
Limited role of substantive CL (only in
context of exceptions to double
criminality)
 AMSTERDAM TREATY
1997

3rd Pillar is converted to Police and Judicial

Cooperation in Criminal Matters

Objective: creation of AFSJ by improving police and

judicial cooperation in criminal matters and by
preventing racism and xenophobia:
a. through closer cooperation
b. through approximation, where necessary, of rules on
criminal matters in the MS
 AMSTERDAM TREATY 1997

Approximation (harmonization) not unification of

substantive CL of MS
Legal basis Articles 29 and 31(e):
a. Organised Crime
b. Terrorism
c. Illicit drug trafficking

- Restrictions ignored in practice financial crime,

trafficking, sexual exploitation of children, high tech
crime, racism and xenophobia.
 Third Pillar Legislative Instruments and
their Effect
Four legislative instruments:
a) Framework decisions
b) Decisions
c) Common positions
d) Conventions
FD had to be implemented, but no ratification required
- binding as to result
- no direct effect

Maria Pupino,
kindergarten teacher in
Italy criminal
proceedings for serious
mistreatment
- Special protection for
vulnerable victims?
ECJ Case C-105/03,
third pillar legislation is
binding and that Member
States are held to implement
it correctly (article 10 EC).
FD may have indirect
effect (but not to impose
criminal liability)
interpretation in conformity
with the FD
 Law making in the Third Pillar
Initiative of Commission & MS
Strong powers of the Council
limited role of the EP
democratic deficit?

Limited role of the ECJ preliminary

reference procedure(optional)
 The 3-Pillar System

2nd pillar: 3rd Pillar:

1st pillar:
Foreign and Justice and
EC/EUROATOM
Security Policy Home Affairs
Regulated the legal,
political and economic
structure of EC Mixed method,
Intergovernmental relied mainly on

HOW ABOUT
Joined internal and
external policies:
-free movement of goods
cooperation
intergovernmental
cooperation

ENVIRONMENTAL
-agriculture
-environment

PROTECTION THROUGH
Supranational
character
Direct effect
CRIMINAL LAW?
MAASTRICHT TREATY 1992
 Case C-176/03
Commission v Council
First pillar poposal Directive of 13 March 2001 on protection
of the environment through criminal law (Commission)
Third pillar: Framework Decision of 27 January 2003 on Ship
Source Polution (Council)
Institutional conflict: Commission appealed against Council
Decision
Judgment of 13 September 2005 (Case C-176/03):
Use of criminal law may be ordered to MS to protect the
environment:
If application of effective, proportionate, dissuasive criminal
penalties is essential measure
Necessary to ensure that rules are fully effective
 Reactions to C-176/03

Wolfgang Schssel: The ECJ had

expanded EC competences in areas where
there is decidedly no Community law.
 Reactions to C-176/03

Anders Fogh Rasmussen: accused the ECJ

of assuming over-inflated authority and
called for EC cooperation to be put back
on a democratic basis
 Reactions to C-176/03

European Commission: the judgment lays down

principles going far beyond the case in question. The
same arguments can be applied in their entirety to
the other common policies and to the four freedoms
(freedom of movement of persons, goods, services
and capital) with which criminal penalties should be
associated in order to ensure their effectiveness
 EC laws and their legal effect
First pillar binding instruments:
Regulations automatically become part of the
law of each MS
Decisions binding entirely only on those to
whom they are adressed
Directives the most important legislative
instrument in the criminal law area
(following the C-176/03 judgment)
binding to MS as to the result to be achieved (choice
of implementation method and form is left to the MS)
this flexibility makes them attractive
 Obligation on MS to Impose
Criminal Sanctions
C 176/03 in certain circumstances MS are
obliged to punish certain conduct

A number of directives requires effective,

proportionate and dissuasive penalties, although
not necassarily criminal sanctions (e.g. Copyright
Directive, Conditional Access Directive etc.)
 E.g. Conditional Access Directive
(98/84/EC of 20 November 1998)
The Directive itself says it does not oblige MS to
impose criminal sanctions

Figure: Max. terms of imprisonment in years for infringments in MS

(source: Implementation Report, 24.04.2003, COM(2003) 198 final)
 The Criminal Law
Competence of the EU
after Lisbon
 Lisbon Treaty
2007

Entered into force: 1st December 2009.

Amends: - TEU (1992 Maastricht Treaty)
- TEEC (1957 Rome Treaty) TFEU

Abolished the 3-pillar structure and created a unified

legal system

Abolished framework decisions (no direct effect)

directives (direct effect)
 Sources of EU CrimLaw

Sources of primary law Sources of secondary law

-acts of Member States: -acts of EU institutions:
Treaty on the EU, Regulations,
Treaty on the Functioning of the EU. Directives,
Decisions,
Opinions,
Recommendations.
 Chap. 4 of TFEU:
Judicial Cooperation in Criminal Matters
Art. 82: mutual recognition of judgments and
judicial decisions
Art. 83: Substantive Criminal Law
Art. 84: measures to promote and support the
action of Member States in the field of crime
prevention
Art. 85: EUROJUST
Art. 86: European Public Prosecutors Office
 Article 82 TFEU
Judicial cooperation in criminal matters in the
Union shall be based on the principle of mutual
recognition of judgments and judicial decisions
and shall include the approximation of the laws
and regulations of the Member States in specific
areas of criminal law.
Minimum rules for criminal matters with cross-
border dimension by means of directives
 Article 83 TFEU
Minimum rules defining particularly
serious crimes with a cross-border
dimension and establishing sanctions:
terrorism, trafficking in human beings and
sexual exploitation of women and children,
illicit drug trafficking, illicit arms
trafficking, money laundering, corruption,
counterfeiting of means of payment,
computer crime and organised crime
+other crimes that meet the criteria
 Fundamental aspects of
national systems (83/3)
Ordinary legislative procedure:
Commission (proposal)
I
Council of Ministers &
Parliament (codecision)

In case of a collision with fundamental aspects of

national criminal justice system, ordinary procedure
can be (temporarly) suspended by referring the
draft to the European council
 Article 84 TFEU
The European Parliament and the Council
of Ministers, acting in accordance with the
ordinary legislative procedure, may
establish measures to promote and
support the action of Member States in
the field of crime prevention, excluding
any harmonisation of the laws and
regulations of the Member States.