26/29 June - Dipartimento di Scienze Giuridiche Unisalento Room R 27 Judicial Training and research on EU crimes against environment and maritime pollution Ciro Grandi – University of Ferrara EU Competence in Criminal Law Matters. The New Perspectives after the Lisbon Treaty.

EU Competence in Criminal Law Matters. The New Perspectives after the Lisbon Treaty I. The obstacles to the establishment of a EC competence in criminal matters. II. The impact of EC law on national criminal law regardless of the attribution of a criminal law competence. III. The establishment of a EU competence in criminal matters under the Treaty of Maastricht and Treaty of Amsterdam: the so-called third pillar. IV. The EC criminal law competence under ECJ case law. V. EU competence in criminal matters under the Treaty of Lisbon.

I - The obstacles to the establishment of a EC competence in criminal matters. Peculiarities of criminal law:  Symbol of national sovereignty;  Influenced by the traditions and values of national culture Therefore States reluctant to lose their monopoly on criminal law and transfer to other institutions the related legislative competence

I - The obstacles to the establishment of a EC competence in criminal matters. Peculiarities of criminal law: 3) National criminal law governed by the principle of legality and, in most European legal system, nullum crimen sine lege parlamentaria (riserva di legge), so as to preserve the democratic legitimacy of criminal law 4) Criminal offences, as they are provided for by the law, fall under the scrutiny of the Constitutional Court(s); consistency with fundamental rights stated under Constitution(s).

I - The obstacle s to the establishment of a EC competence in criminal matters. Peculiarities of EC (EU) law 1) European legal integration originates from a transfer of competence from MS to European institutions; 2) EC (EU) law has peculiar strength and effectiveness due to the principle of - Primacy (ECG, Costa v. Enel, n. 6/64) - Direct Effect (ECG, Van Gend and Loss, n. 26/62) - Loyal Cooperation (including obligation of conforming interpretation of national law), art. 10 TEC (now art. 4.3 TEU)

I - The obstacles to the establishment of a EC competence in criminal matters. Infringement procedure (Arts. 226 ss. TEC; now arts. 258 ss. TEU) - If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter (…). - If the State concerned does not comply with the opinion of the Commission, the latter may bring the matter before the Court of Justice of the European Union. - If the Court of Justice finds that a Member State has failed to fulfil an obligation under the Treaty, the State shall be required to take the necessary measures to comply with the judgment of the Court of Justice. - If the Court of Justice finds that the Member State concerned has not complied with its judgment it may impose a lump sum or penalty payment on it.

I - The obstacles to the establishment of a EC competence in criminal matters. “Democratic deficit” of EC law-making process: primary role played by Commission and Council (i. e. non representative organs) in the adoption of secondary acts; marginal role of European Parliament, deprived of the right of initiative; Lack of reference to fundamental rights in the Treaties; therefore lack of judicial control (ECG) on the consistency of EC acts with fundamental rights.

I - The obstacles to the establishment of a EC competence in criminal matters. Remarkable differences between EC legal system and the traditional legal framework of international law (lack of direct effect; need for national measures of implementation; lack of sanctioning procedures…) Parallel between EC legal system peculiarities and Criminal Law peculiarities (autharchy, monoply of States, connection with national values and cultures) Reluctance of MS to establish in the Treaties a Criminal law competence for EC. MS unwilling to establish a criminal law competence to be exercised without democratic legitimacy and without a judicial control aimed at guaranteeing fundamental rights.

I - The obstacles to the establishment of a EC competence in criminal matters. All this considered: No explicit attribution of competences in the penal field to the EC in the Rome Treaty => As a consequence, according to the vast majority of opinions, no competence of the EC in the penal field (until the decision of the CJEC of September 2005) However impact of EC law on national penal law (distinction between negative and positive effects of EC law on national penal law)

II - The impact of EC law on national criminal law regardless of the attribution of criminal law competence. Interaction between EC law and national Criminal Law (indirect effects; positive-negative effects) a. Negative (or restrictive) effect of EC law on national Criminal Law b. Positive (or expansive) effect of EC law on national Criminal Law c. The impact of National (Criminal) Law on EC law – Criminal Law principles as General Principle of Community Law

II - The impact of EC law on national criminal law regardless of the attribution of criminal law competence. a. Negative (or restrictive) effect of EC law on national Criminal Law ECG, 203/80, Casati: In principle, criminal legislation (...) are matters for which the member states are still responsible. However, it is clear from a consistent line of cases decided by the court, that Community law also sets certain limits in that area as regards the control measures which it permits the member states to maintain in connection with the free movement of goods and persons. The administrative measures or penalties must not go beyond what is strictly necessary, the control procedures must not be conceived in such a way as to restrict the freedom required by the treaty and they must not be accompanied by a penalty which is so disproportionate to the gravity of the infringement that it becomes an obstacle to the exercise of that freedom. In case criminal rule disproportionately restrict individual right under EC law national judge must disapply that rule

II - The impact of EC law on national criminal law regardless of the attribution of criminal law competence. b. Positive (or expansive) effect of EC law on national Criminal Law ECJ has encouraged the use of national criminal law when it was necessary to ensure the effectiveness of Community law. (Case 50/76 Amsterdam Bulb) “Although article 5 of the EEC treaty places member states under a duty to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations resulting from action taken by the institutions of the community, it allows the various member states to choose the measures which they consider appropriate, including sanctions which may even be criminal in nature.”

II - The impact of EC law on national criminal law regardless of the attribution of criminal law competence. b. Positive (or expansive) effect of EC law on national Criminal Law In milestone case C-68/88 (Commission v Greece) ECJ stated: Where Community legislation does not specifically provide any penalty for an infringement or refers for that purpose to national laws (...) Article 5 of the Treaty requires the Member State to take all measures necessary to guarantee the application and effectiveness of Community law. For that purpose, whilst the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalized under conditions (...) which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive. Principle of assimilation Principle of effectiveness and proportionality of the sanction

II - The impact of EC law on national criminal law regardless of the attribution of criminal law competence. c. The impact of National (Criminal) Law on EC law – Criminal Law principles as General Principle of Community Law MS concerned for the lack of judicial control over the consistency of EC acts with fundamental rights ECJ case-law included in the “general principles of EC unwritten law” the fundamental rights and principle stated in (i) national constitutions of the MS, (ii) international convention signed by MS (especially ECHR).

II - The impact of EC law on national criminal law regardless of the attribution of criminal law competence. ECJ C-4/73 Nold: Fundamental rights are an integral part of the general principles of law the observance of which the court ensures. In safeguarding these rights the court is bound to draw inspiration from the constitutional traditions common to the MS and cannot uphold measures which are incompatible with the fundamental rights established and guaranteed by the constitutions of these states. Similarly, international treaties for the protection of human rights, on which MS are signatories, can supply guidelines… Therefore EC acts (and nationals act implementing the latter) must respect fundamental rights, under the scrutiny of the ECJ.

III - The establishment of EU competence in criminal matters: the so- called third pillar. The absence of instruments for a common European criminal policy proved to be a negative element for European integration: Growing concern about the development of new forms of transnational criminality (terrorism, drug trafficking, environmental offences). The fight against transnational criminality requires closer cooperation among national authorities. Adoption of several international Conventions (outside EC legal framework)

III - The establishment of EU competence in criminal matters: the so- called third pillar. Awareness that the creation of a common market, with effective competition, required approximation of national sanctions systems throughout EC area and closer judicial cooperation. The effective implementation of EC policies needs adequate and harmonized sanctions, in order to avoid: i. Lack of protection of EC interests; ii. Forum shopping; iii. Distortion of competition among economic operators.

III - The establishment of EU competence in criminal matters: the so- called third pillar. Shengen agreement (1985): abolition of checks at common internal borders; free movement of persons throughout the Shengen area. Need for “compensatory measures”: abolition of internal frontiers combined with further integration in the field of immigration and criminal law. Compensatory measures : especially in the field of police cooperation and judicial cooperation in penal matters (Title III of the implementing Convention of Title IV about the SIS) Shengen agreement and Convention: intergovernmental nature, outside Community legal framework

III - The establishment of EU competence in criminal matters: the so- called third pillar. Treaty of Maastricht The TEU contains 3 pillars (Greek Temple): - 1st pillar = Treaty European Community - 2 nd pillar = Common For. Sec. Polic. (Title V TEU) - 3rd pillar = Justice Home Affairs (Title VI TEU)

III - The establishment of EU competence in criminal matters : the so- called third pillar. Art. K. Treaty of Maastricht: “ Cooperation in the fields of justice and home affairs shall be governed by the following provisions…”. Art. K1: MS States shall regard the following areas as matters of common interest: 1. asylum policy; (…) 3. immigration policy and policy regarding nationals of third countries; (…) 7. judicial cooperation in criminal matters; 9. police cooperation for the purposes of preventing and combatting terrorism, unlawful drug trafficking and other serious forms of international crime, including if necessary certain aspects of customs cooperation, in connection with the organization of a Union-wide system for exchanging information within a European Police Office (Europol).

III - The establishment of EU competence in criminal matters: the so- called third pillar. One single institutional framework: EC institutions (first pillar) operates in the third pillar too; Decision-making procedure of intergovernmental nature: unanimity and not (qualified) majority; Major role of the JHA Council; right of initiative in the areas of art. K.1 (7-9) only to the MS (and not to the Commission); Very limited role of the EP (democratic deficit) and of the ECJ (jurisdictional control deficit); Inefficiency of the legal instruments : either traditional international instruments such as conventions (hardly ever ratified), or new tools such as joint actions, joint positions (Art. K 3.2), whose binding force was weak and disputed.

III - The establishment of EU competence in criminal matters under the Treaty of Maastricht: the so-called third pillar. The reform of the third pillar under the Treaty of Amsterdam: “Communitarisation” of the policies in matter of “visa, asylum, immigration and other policies related to the free movement of persons” (New title IV of TEC) Title VI TEU renamed “Provisions on Police and Judicial Cooperation in Criminal Matters” Still predominant the intergovernmental method, but with more Community features More precise objectives, more effective instruments

III - The establishment of EU competence in criminal matters under the Treaty of Maastricht: the so-called third pillar. Human rights role in EU-EC legal framework, art. 6 TEU (ex Article F) 1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States. 2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.

III - The establishment of EU competence in criminal matters under the Treaty of Maastricht: the so-called third pillar. Art. 29 TEU: Without prejudice to the powers of the European Community, the Union's objective shall be to provide citizens with a high level of safety within an area of freedom, security and justice (…). That objective shall be achieved by preventing and combating crime, organised or otherwise, in particular terrorism, trafficking in persons and offences against children, illicit drug trafficking and illicit arms trafficking, corruption and fraud, through: — closer cooperation between police forces (…) — closer cooperation between judicial and other competent authorities of the MS (…) — approximation, where necessary, of rules on criminal matters in the Member States, in accordance with the provisions of Article 31(e).

III - The establishment of EU competence in criminal matters under the Treaty of Maastricht: the so-called third pillar. Article 31 TUE Common action on judicial cooperation in criminal matters shall include: (a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States (…); (b) facilitating extradition between Member States (…) (e) progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking.

III - The establishment of EU competence in criminal matters under the Treaty of Maastricht: the so-called third pillar. Art. 34 TEU (…) [in the area referred in this Title] acting unanimously on the initiative of any Member State or of the Commission, the Council may: (a) adopt common positions defining the approach of the Union to a particular matter; (b) adopt framework decisions for the purpose of approximation of the laws and regulations of the Member States. Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect; (…) (c) adopt decisions for any other purpose (…) excluding any approximation of the MS’ laws (d) establish conventions which it shall recommend to the Member States for adoption in accordance with their respective constitutional requirements (…).

III - The establishment of EU competence in criminal matters under the Treaty of Maastricht: the so-called third pillar. FRAMEWORK DECISIONS: “on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro (2000/383/JHA) “on combating terrorism” (2002/475/JHA) “on the European arrest warrant and the surrender procedures between Member States” (2002/584/JHA) “on combating trafficking in human beings” (2002/629/JHA) on combating the sexual exploitation of children and child pornography (2004/68/JHA) “laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking” (2004/757/JHA) “on attacks against information systems” (2005/222/JHA) “on the fight against organised crime” (2008/841/JHA) (…)

III - The establishment of EU competence in criminal matters under the Treaty of Maastricht: the so-called third pillar. Example of approximation of illicit conduct and sanctions. FD on combating the sexual exploitation of children and child pornography (2004/68/JHA) Art. 2 Offences concerning sexual exploitation of children 1. Each Member State shall take the necessary measures to ensure that the following intentional conduct is punishable: (a) coercing a child into prostitution or into participating in pornographic performances, or profiting from or otherwise exploiting a child for such purposes; (b) recruiting a child into prostitution or into participating in pornographic performances; (…) Art. 3 Offences concerning child pornography 1. Each Member State shall take the necessary measures to ensure that the following intentional conduct whether undertaken by means of a computer system or not, when committed without right is punishable: (a) production of child pornography; (b) distribution, dissemination or transmission of child pornography; (…)

III - The establishment of EU competence in criminal matters under the Treaty of Maastricht: the so-called third pillar. FD on combating the sexual exploitation of children and child pornography (2004/68/JHA) Art. 4. (…) 1. Each Member State shall take the necessary measures to ensure that the offences referred to in Articles 2, 3 and 4 are punishable by criminal penalties of a maximum of at least between one and three years of imprisonment. 2. (…) each Member State shall take the necessary measures to ensure that the following offences are punishable with criminal penalties of a maximum of at least between five and ten years of imprisonment:  the offences referred to in Article 2(a), consisting in ‘coercing a child into prostitution or into participating in pornographic performances’, and the offences referred to in Article 2(c)(i); (…)

III - The establishment of EU competence in criminal matters under the Treaty of Maastricht: the so-called third pillar. The third pillar under the Treaty of Maastricht. Conclusive remarks. Still predominance of intergovernmental features (i.e. major role of the Council and unanimity rule); however, right of initiative shared by MS and Commission; important use of the right of initiative by the Commission. More powers for the ECJ (art. 35 TUE). But still restricted in comparison with its competences in the 1rst pillar : a) Preliminary ruling b) Action for Annulment c) Jurisdiction to rule disputes between the MS or between the MS and the Commission

III - The establishment of EU competence in criminal matters under the Treaty of Maastricht: the so-called third pillar. The third pillar under the Treaty of Maastricht. Final remarks. Still very marginal role for European Parliament (persistent democratic deficit); Remarkable results in terms of approximation of national criminal laws, thanks to the high number of FD adopted and implemented; significant results also in terms of judicial and police cooperation (FD on EAW, procedural rights of accused persons, right of the victims…) However, the rule of unanimity often led to down compromises; Lack of infringement procedure make FD, though formally binding, much less effective than directive in the practice.

IV - The EC criminal law competence under ECJ case law ECJ, 13 Sept. 2005, Commission v. Council, C-176/03: action for annulment introduced by the Commission against the Council FD of January 2003 on the protection of the environment through criminal law ; distribution of competences; conflicts of legal bases between the 1rst and the 3rd pillars: - see § 15 of the Commission’s reasoning: FD infringes arts TUE, since the proper legal basis is established under art. 176 TEC. - and § 45 ss. the Court’s reasoning: Annulment of the whole FD as adopted on a wrong legal basis. Consequences : establishment of EC competence in criminal matters.

IV - The EC criminal law competence under ECJ case law ECJ, 23 Oct. 2007, C ‑ 440/05, Commission v Council : action for annulment introduced by the Commission against the Council FD of July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution ; ECJ recalls the findings and reasoning of judgment of 13 sept and concludes for the annullment of the FD for breach of art. 29, 47 TEU, art. 80 TEC (the latter being the proper legal basis) However: “the determination of the type and level of the criminal penalties to be applied does not fall within the Community’s sphere of competence” (§70); therefore, type and level of sanctions still matter of 3 rd pillar.

IV - The EC criminal law competence under ECJ case law DIRECTIVE 2008/99/EC on the protection of the environment through criminal law (first directive of criminal law harmonization) Art. 3: Conduct to be criminalized Art. 5: Penalties: MS “shall take the necessary measures to ensure that the offences referred to in Articles 3 and 4 are punishable by effective, proportionate and dissuasive criminal penalties” (no indication of type and level of criminal sanctions). Other directives of criminal law harmonization (before Lisbon Treaty): Dir. 48/2009, on safety of toys (art. 51); Dir. 52/2009, minimum standards on sanctions and measures against employers of illegally staying third-country nationals (arts. 9-10); Dir. 123/2009, amending Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements (arts. 5,6).

V - EU competence in criminal matters under the Treaty of Lisbon Relevant provisions of the Treaty of Lisbon One single institutional framework in the EU: abolition of pillars. Art. 6 TEU on the role of fundamental rights in the EU legal system: Eur. Charter of Fundamental Rights is incorporated in the EU primary law (art. 6.1) EU accedes to the ECHR (still ongoing process) Fundamental rights under ECHR and Constitutional traditions of MS are general principle of EU law Title V, Area of Freedom Security and Justice Art. 67 TFEU: 1. The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States.

V - EU competence in criminal matters under the Treaty of Lisbon Title V, Chapter 4 (Judicial cooperation in criminal matters) Art. 83 directives of criminal law harmonization (minimum rules with regard to the definition of criminal offences and sanctions) :  in areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis (terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking (...)  in an area which has been subject to harmonisation measures, if the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy. Art. 86: room for EU regulations in criminal matters (concerning the protection of EU financial interests)?

V - EU competence in criminal matters under the Treaty of Lisbon Highlights on the consequences of the abolition of pillars and the establishment of EU competence to adopt directive of criminal law harmonization Directive adopted under the ordinary legislative procedure (art. 294TFEU): Equivalent powers to Council and European Parliament (democratic deficit is progressively overtaken); Directives adopted with qualified majority (not unanimity) Full jurisdiction of ECJ (preliminary ruling, action for annulment and infringement procedure) “Emergency break” under art. 83.3, counterbalance to address MS’ concerns on the impact of criminal law directive on national criminal systems.

V - EU competence in criminal matters under the Treaty of Lisbon DIRECTIVE 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims (first directive of criminal law harmonization after Lisbon) Article 2. Offences concerning trafficking in human beings. 1. Member States shall take the necessary measures to ensure that the following intentional acts are punishable: The recruitment, transportation, transfer, harbouring or reception of persons, including... Article 4. Penalties. 1. Member States shall take the necessary measures to ensure that an offence referred to in Article 2 is punishable by a maximum penalty of at least five years of imprisonment. (...) DIRECTIVE 2011/92/EU on combating the sexual abuse and sexual exploitation of children and child pornography (arts. 3 ss.). Proposal for a DIRECTIVE on criminal sanctions for insider dealing and market manipulation, COM(2011) 654 final.