1. Course: European Criminal Law SS 2009 Hubert Hinterhofer

2. Sanctions of Criminal Law in a Broader Sense Competence of the EC (First Pillar) to impose sanctions of criminal law in a broader sense Legal Basis: Art 83 TEC Violation of free competition-principle Fines – Art 23 New Regulation against trusts (2003) – Fines against Companies (trusts) – Commission – At most 1 % of the yearly sales – Example: “Vitamin-Trust” (Hoffmann La-Roche)

3. Sanctions of Criminal Law in a Broader Sense Other Financial Sanctions – No fines, but punitive nature – E.g.: Forfeiture of a bail Other Sanctions – Deprivation of a Concession – Deletion or Reduction of Subventions All Sanctions have repressive nature: accusation according to Art 6 ECHR

4. Harmonization of Substantive Criminal Law of the MS Fundamentals – Basically part of the Third Pillar Legal Basis: Art 29 and 31 TEU Art 29: Approximation of rules on criminal matters in the MS Art 31: – Establishing minimum rules relating to the basic elements of crimes – Establishing minimum rules relating to the penalties – Organized Crime; Terrorism; Illicit Drug Trafficking

5. Harmonization of Substantive Criminal Law of the MS Art 29/Art 31 TEU: Different wording – Harmonization only allowed with regard to Organized Crime, Terrorism and Drug Trafficking? – Main Opinion Wording of Art 29 prevails Art 31 is just an exemplary enumeration Harmonization efforts are not restricted to special crimes Result applies to legal practice within the EU

6. Harmonization of Substantive Criminal Law of the MS Harmonization as part of the First Pillar (TEC) – In order to ensure the effectiveness of Community law – Directives

7. Harmonization of Substantive Criminal Law of the MS Legal Instruments – FWD: Art 34 sec 2 lit b TEU Purpose of approximation of the Criminal Laws of the MS Binding upon the MS as to the result No direct effect (transformation into national law is needed) – Conventions: Art 34 sec 2 lit d TEU – Directives: to secure the effectiveness of Community law (TEC)

8. Harmonization of Substantive Criminal Law of the MS Basic Elements of Criminal Acts – Minimum Rules – Purpose: reaching the same standard of Substantive Criminal Law in the MS – Criteria in legal practice of the EU: Protection of interests of the EU Severity of crimes Cross-border crimes

9. Harmonization of Substantive Criminal Law of the MS Harmonization Regarding Penalties – Obligation for the MS to provide for “effective, proportional and deterrent” penalties – Minimum Penalties Imprisonment that does not fall below a certain limit E.g.: from 1 to 3 years or from 2 to 5 years imprisonment No possibility for the MS to go beyond that limit

10. Harmonization of Substantive Criminal Law of the MS Criminal Liability of Legal Entities – Obligation for the MS to provide for a criminal liability of legal entities – Transformation into Austrian Law New Law in 2006 (“Verbandsverantwortlichkeitsgesetz”) Main Penalty: fines

11. Harmonization of Substantive Criminal Law of the MS Examples – FWD on: Corruption Counterfeiting the Euro Counterfeiting Non-cash Means of Payment Drug Trafficking Money Laundering Organized Crime Sexual Exploitation of Children Terrorism (I and II) Trafficking in Human Beings Racism – Directive on: Protection of the Environment

12. Harmonization of Substantive Criminal Law of the MS Relationship between European Community Law (First Pillar) and Criminal Laws of the MS – Criminal Law is not “community-law-resistant” – National Criminal could violate European Community Law – E.g.: discriminating criminal law with regard to the freedom of establishment

13. Harmonization of Substantive Criminal Law of the MS Violation of European Community Law with regard to penalties – MS are not allowed to issue or to maintain criminal law that violates European Community Law – Disproportional Penalties (too severe) – Type of Penalty E.g.: ban of profession is possibly problematic

14. Harmonization of Substantive Criminal Law of the MS Priority of European Community Law – Neutralization of national law which breaches European Community Law National law not applicable Regarding Primary Community Law and Regulations (which are directly applicable) – Conforming Interpretation Derived from Art 10 TEC (MS have to fulfill obligations arising from Community Law) Interpretation of national law has to be consistent with European Community Law Pupino Decision of the ECJ: principle is also applicable with regard to FWD (Third Pillar)