1. CRIMINAL LAW OF THE EUROPEAN UNION 16 March HISTORICAL DEVELOPMENT OF EU COMPETENCES IN THE AREA OF CRIMINAL LAW
Dr. sc. Zoran Burić
University of Zagreb – Faculty of Law
Department of Criminal Procedural Law

2. FOUNDATIONS OF THE EU
1951 Treaty of Paris – European Coal and Steel Community (ECSC)
1957 Treaty of Rome – European Economic Community (EEC), European Atomic Energy Community (Euratom)
No competences for the European Communities in the area of criminal law?
WHY?

3. INFLUENCE OF COMMUNITY LAW ON NATIONAL CRIMINAL LAWS
SUPREMACY OF EU LAW
ASSIMILATION
INTERPRETATION OF NATIONAL CRIMINAL LAW IN CONFORMITY WITH EU LAW
DIRECTIVES WITH CRIMINAL LAW INSTRUCTIONS

4. ASSIMILATION
Principle of sincere cooperation (Art. 10 TEC, now Art. 4 TEU):
- Member States must take all appropriate measures to fulfil their obligations arising out of the Treaty and do nothing detrimental to the proper functioning of the European Union
● Does the term „all appropriate measures” also include criminal law measures?
● Commission of the European Union v. Hellenic Republic (Greek maize case), 1989
● In the opinion of the Court the principle of sincere cooperation requires from MS to prosecute and sanction the breach of EC law in the same manner as they prosecute and punish the breach of their national law
● Principle of assimilation: harmonization of supranational and national interests in national criminal justice systems

5. DIRECTIVES WITH PENAL INSTRUCTIONS (1)
● When certain area is regulated (for example quality of pharmaceutical products), in order to make the regulation of an area effective, it may be necessary to protect its application with penal provisions – to threaten to penalize those who breach the provisions of a Directive ● Directives need to be implemented into national legal orders, but how are these penal instructions to be implemented? Multiple questions: 1. Is there a competence for the EC to oblige MS to introduce criminal law provisions? 2. Or can the EC oblige the MS only to introduce administrative law provisions? 3. How broad is the discretion of MS in implementing those provisions? ● The EC can not oblige MS to intorduce criminal law provisions, but can only oblige them to ensure that the sanctions applied are effective, proportionate and dissuasive ● Limitations arising out of the principle of sincere cooperation?

6. SUPREMACY OF EC LAW
● All EC law (primary and secondary) has supremacy over all national law (including constitutional law) ● Consequence: if national law is not in line with EC law, national law is not going to be applied. EC law is going to be applied directly ● Limitations arising primarily from 4 basic freedoms: freedom of persons, goods, services and capital – Henn and Darby, Conegate, Cowan ● Direct application of EC Directives in stead of applying national criminal law? – Pretore di Salo, Kolpinghuis, Arcaro

7. INTERPRETATION OF NATIONAL LAW IN CONFORMITY WITH EC LAW
● Duty to interpret national law in conformity with EC law
● Principle of indirect effect of EC law
● Two main limitations when it comes to interpreting national criminal law provisions in conformity with EC law:
Interpretation must need go to the detriment of the accused (Kolpinghuis, Arcaro);
Criminal offences and sanctions must be strictly defined by law (Kolpinghuis, Criminal proceedings against X, Cantoni v. France [ECtHR]).

8. INITIATIVES
Late 1970s: French Proposal to establish „European Judicial Area in Criminal Matters” – primarily refereed to judicial coopreation in the field of terrorism
TREVI – informal network, counter-terrorism issues
Schengen – 1985
Common characteristic: outside of the EU legal framework

9. WHY?
Emergence of areas of criminality which were of common concern to MS
Development of EU internal market law
Abolition of internal frontiers
Political events external to the Communities

10. CONSEQUENCES MAASTRICHT TREATY - The EU is created - Pillar structure
- Provisions on coperation in the field of justice and home affairs, Third pillar
- Instruments: Conventions, Joint positions, Joint actions
- Role of the EU institutions – limited
- Decision making: unanimity

11. FURTHER DEVELOPMENT Amsterdam Treaty
- Third pillar limited to police and judicial cooperation in criminal matters
- General Union objective: Area of Freedom, Security and Justice
- Incorporation of Schengen into the EU legal regime
- Decision making: unanimity
- Role of the institutions: limited
- Instruments: Common positions, Decisions and Framework Decisions