Legislative implementation of EU Criminal Law in Sweden Seminar EU Criminal Law Spring 2013 Department of Law UPPSALA UNIVERSITY Mari-Ann Roos

Outline Rocking the boat Paving the ground Time to act The end justifies the means Fait accompli, damage control Implementation formalities Minimum rules FD on organised crime Child abuse directive

Rocking the boat Why new EU-legislation? COM wants to rock – MS want to stay put EU competency to act Political will to act at EU-level Problem to be solved COM right of initiative MS mostly prefer status quo; in particular when it comes to criminal law MS initiative Many MS still prefer status quo

Paving the ground Before the proposal COM communications, White & Green papers, etc. Preliminary analysis, information to Riksdag, consultation with stake holders Expert meetings, formal and informal consultations with COM Goal: to maintain status quo & to prepare for the worst Mean: to influence the proposal & cover the back

Time to act! Draft proposal Proposal to EP, Council and National Parliaments/Riksdag Riksdag - Subsidiarity evaluation within 8 weeks Written information to the Riksdag, including opinion on subsidiarity within 5 weeks Analysis of the proposal => Negotiating mandate ◦ Legal consequences ◦ Financial consequences ◦ Political consequences ◦ Emergency break? ◦ Objective – status quo, room for manoeuvre, red-lines ◦ Consultation with stakeholders => Negotiating mandate/instruction to the negotiator

the end justifies the means... Negotiating phase Goal – to maintain status quo Argue the SE case Find allies Drafting proposals Consultations with stakeholders? Lobby groups? Information to the Riksdag Continued analysis & preparation for implementation

Fait accompli & Damage control Directive adopted Analysis of the result & dead-line for implementation No legislative amendments ◦ => Notification to COM, case closed Legislative amendments ◦ Analysis (Ds) referred for consideration to stakeholders ◦ Commission of inquiry (SOU) or one man committee appointed (Ds)  SOU or Ds referred for consideration to stakeholders Government bill New legislation adopted and promulgated ◦ => Notification to COM, case closed COM report on implementation, infringement procedures before the ECJ, etc…

Implementation - formalities Art. 288 TFEU – implementation of directives Art. 291 TFEU – measures to implement Art TFEU – effective implementation essential for EU Art. 4.2 TEU – sincere cooperation Why is this, and what does it mean for the implementation of framework decisions and directives?

Minimum rules – Article 83 The EP and the Council may, by means of directives [---], establish minimum rules concerning the definition of criminal offences and sanctions [---] What does this mean for the implementation of framework decisions and directives? Minimum in relation to what?

FD 2008/841/JHA – Art. 1 "criminal organisation" means a structured association, established over a period of time, of more than two persons acting in concert with a view to committing offences which are punishable by deprivation of liberty or a detention order of a maximum of at least four years or a more serious penalty, to obtain, directly or indirectly, a financial or other material benefit "structured association" means an association that is not randomly formed for the immediate commission of an offence, nor does it need to have formally defined roles for its members, continuity of its membership, or a developed structure.

FD 2008/841/JHA – Art. 2 (a) conduct by any person who, with intent and with knowledge of either the aim and general activity of the criminal organisation or its intention to commit the offences in question, actively takes part in the organisation’s criminal activities, including the provision of information or material means, the recruitment of new members and all forms of financing of its activities, knowing that such participation will contribute to the achievement of the organisation’s criminal activities; (b) conduct by any person consisting in an agreement with one or more persons that an activity should be pursued, which if carried out, would amount to the commission of offences referred to in Article 1, even if that person does not take part in the actual execution of the activity.

Directive 2011/93/EU Art. 3 – Offences concerning sexual abuse Art. 4 – Offences concerning sexual exploitation Art. 5 – Offences concerning child pornography Art. 6 – Solicitation of children for sexual purposes

Thank you & Good luck!