The Criminal Law Competence of the EC before Lisbon

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

1st pillar: EC/EUROATOM Regulated the legal, political and economic structure of EC Joined internal and external policies: -free movement of goods -agriculture -environment …  Supranational character  Direct effect 2nd pillar: Foreign and Security Policy Intergovernmental cooperation 3rd Pillar: Justice and Home Affairs  Mixed method, relied mainly on intergovernmental cooperation MAASTRICHT TREATY 1992

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

AMSTERDAM TREATY rd Pillar is converted to 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: 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 Approximation (harmonization) – not unification of substantive CL of MS Legal basis – Articles 29 and 31(e): 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: Four legislative instruments: a) Framework decisions b) Decisions c) Common positions d) Conventions FD – had to be implemented, but no ratification required FD – had to be implemented, but no ratification required - binding as to result - no direct effect

ECJ Case ECJ Case C-105/03, third pillar legislation is binding and that Member States are held to implement it correctly (article 10 EC). 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 FD may have indirect effect (but not to impose criminal liability) – interpretation in conformity with the FD Maria Pupino, kindergarten teacher in Italy – criminal proceedings for serious mistreatment - Special protection for vulnerable victims?

Law making in the Third Pillar Initiative of Commission & MS Initiative of Commission & MS Strong powers of the Council Strong powers of the Council limited role of the EP limited role of the EP – democratic deficit? – democratic deficit? Limited role of the ECJ – preliminary reference procedure(optional) Limited role of the ECJ – preliminary reference procedure(optional)

1st pillar: EC/EUROATOM Regulated the legal, political and economic structure of EC Joined internal and external policies: -free movement of goods -agriculture -environment …  Supranational character  Direct effect 2nd pillar: Foreign and Security Policy Intergovernmental cooperation 3rd Pillar: Justice and Home Affairs  Mixed method, relied mainly on intergovernmental cooperation MAASTRICHT TREATY 1992 The 3-Pillar System HOW ABOUT ENVIRONMENTAL PROTECTION THROUGH CRIMINAL LAW?

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

Reactions to C-176/03 Wolfgang Schüssel: ”The ECJ had expanded EC competences in areas where there is decidedly no Community law.” Wolfgang Schüssel: ”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” 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” 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: First pillar binding instruments: Regulations – automatically become part of the law of each MS Regulations – automatically become part of the law of each MS Decisions – binding entirely only on those to whom they are adressed 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) 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) 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 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 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.) 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” The Directive itself says it ”does not oblige MS to impose criminal sanctions” Figure: Max. terms of imprisonment in years for infringments in MS Figure: Max. terms of imprisonment in years for infringments in MS (source: Implementation Report, , COM(2003) 198 final) (source: Implementation Report, , COM(2003) 198 final)

The Criminal Law Competence of the EU after Lisbon

Lisbon Treaty 2007 Entered into force: 1st December Entered into force: 1st December Amends: - TEU (1992 Maastricht Treaty) Amends: - TEU (1992 Maastricht Treaty) - TEEC (1957 Rome Treaty)  TFEU - TEEC (1957 Rome Treaty)  TFEU Abolished the 3-pillar structure and created a unified legal system Abolished the 3-pillar structure and created a unified legal system Abolished framework decisions (no direct effect)  directives (direct effect) 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, Decisions, Opinions, Opinions, Recommendations. Recommendations.

Chap. 4 of TFEU: Judicial Cooperation in Criminal Matters Art. 82: mutual recognition of judgments and judicial decisions Art. 82: mutual recognition of judgments and judicial decisions Art. 83: Substantive Criminal Law Art. 83: Substantive Criminal Law Art. 84: measures to promote and support the action of Member States in the field of crime prevention Art. 84: measures to promote and support the action of Member States in the field of crime prevention Art. 85: EUROJUST Art. 85: EUROJUST Art. 86: European Public Prosecutor’s Office Art. 86: European Public Prosecutor’s 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. 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 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 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 +other crimes that meet the criteria

Fundamental aspects of national systems (83/3) Ordinary legislative procedure: Ordinary legislative procedure: Commission (proposal) Commission (proposal)  Council of Ministers & Parliament (codecision) 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 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. 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.