The European Commission is looking to put in place an EU Criminal Policy. In fact, it has recently adopted a Communication entitled “Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies through criminal law.” Unsurprisingly, the aim is “to present a framework for the further development of an EU Criminal Policy under the Lisbon Treaty.”
It is well known that the Lisbon Treaty has given the EU competence to legislate in the area of criminal law. Hence, decision making on criminal matters is now subject to the Community method, ordinary legislative procedure, qualified majority voting and the European Court of Justice’s jurisdiction. The Commission has now the power to bring infringement proceedings against Member States before the ECJ in this policy area.
The Commission recalled that before the Lisbon Treaty entered into force there was no explicit legal base to adopt measures intended to strengthen the enforcement of EU policies. But it stressed that “the EU now has an explicit legal basis for the adoption of criminal law directives to ensure the effective implementation of EU policies which have been subject to harmonisation measures.”
In 2005 the European Court of Justice ruled that the European Community had competence under the EC Treaty to adopt criminal law measures when they are necessary for the implementation of Community objectives. The ECJ held that the European Parliament and the Council had the power to adopt criminal law sanctions where it is necessary to facilitate the enforcement of EC law. However, according to the Court “the determination of the type and level of the criminal penalties to be applied does not fall within the Community’s sphere of competence.” In 2009, the Council and the European Parliament adopted a Directive amending Directive 2005/35/EC on ship source pollution and on the introduction of penalties for infringements, this was only possible because the ECJ ruled that provisions defining criminal offences could be adopted under the EC Treaty if they were necessary to guarantee that EC rules on maritime safety are effective. Following the ECJ ruling, the Commission could not include provisions on criminal penalties types and levels. However, the Commission has been waiting for the Lisbon Treaty to enter into force to put forward another legislative proposal harmonising sanction levels.
The Lisbon Treaty has therefore confirmed and expanded the ECJ ruling, as it allows the EU to adopt rules on criminal law regarding definitions of criminal offences and sanctions, if EU rules are not effectively enforced. Under Article 83 (2) TFEU “if the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, directives may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned.” The procedure to adopt such directives will be the one followed to adopt the harmonization measures in question. This means that in the majority of the cases harmonization of criminal law will be decided by QMV through the ordinary legislative procedure (codecision procedure). It should be mentioned that the UK might not have an opt out from substantive criminal law measures as they will be adopted to ensure the implementation of another Union policy and the decision making procedure is to be found in the provisions concerning the policy in question therefore, it will be out of the Protocol on the area of freedom, security and justice. Nevertheless, Article 83 (3) TFEU provides for an emergency brake on draft directives establishing minimum rules with regard to the definition of criminal offences and sanctions to ensure the implementation of a Union policy. Hence, if one member state considers that a draft directive would affect fundamental aspects of its criminal justice system, it may request the draft to be referred to the European Council and the ordinary legislative procedure will be temporarily suspended. The European Council would decide by consensus. However, there is also the possibility for at least nine member states wishing to establish ‘enhanced cooperation’, on the basis of the draft directive in question, to move forward and the non-participating States cannot prevent the others to go ahead with further integration.
The Lisbon Treaty allows the EU to make use of criminal law to strengthen the enforcement of EU policies, and this is the focus of the present Communication. According to the Commission “It is therefore notably in respect of Article 83(2) TFEU where an EU criminal policy is particularly warranted; and where this Communication intends to provide specific guidance.” The Communication represents the Commission first step in developing an EU criminal policy, by setting out a strategy and principles that it intends to apply when using criminal law to ensure the effective implementation of EU policies. In fact, the Communication shows how the Commission will use its new powers.
Presently, Member States are able to decide on the EU policies enforcement instruments. They are required to ensure that breaches of EU law are sanctioned with effective, proportionate and dissuasive penalties, but generally they are allowed to choose the nature of the sanctions, which can be administrative. However, according to the Commission “In cases where the enforcement choices in the Member States do not yield the desired result and levels of enforcement remain uneven, the Union itself may set common rules on how to ensure implementation, including, if necessary, the requirement for criminal sanctions for breaches of EU law.” Consequently, Brussels would decide on sanctions that national legislations should foresee.
The Commission acknowledges that criminal law must be a measure of last resort and announced several principles that should guide the EU criminal law legislation, including the principles of subsidiarity and proportionality. However, the principle of subsidiarity has not worked, as the Commission has been proposing EU legislation with total disregard to this principle.
Before presenting legislative proposals on criminal law measures aimed at ensuring the effective implementation of EU policies, the Commission will assess if criminal law is necessary to achieve this goal. Then, the Commission will decide what kind of criminal law measures would be best suited to address the enforcement problems in a specific policy area. The Commission would then consider the sanctions types, such as fines and imprisonment as well as the sanctions levels. The Commission recalled that EU criminal law might specify which types and levels of sanctions are to be made applicable. According to the Commission “The primary goal of an EU-wide approximation is to reduce the degree of variation between the national systems.” The Commission would also consider whether to impose criminal liability on legal persons. Consequently, EU legislation would cover offences committed by natural persons as well as by legal persons, as it is already covered in some directives, despite the fact the concept of criminal liability of legal persons does not exist in all national legal orders. The Commission has pointed out that “EU minimum rules on criminal law” could have as content the definition of the offences, including the description of conduct of the main perpetrator as well as ancillary conducts such as instigating, aiding and abetting. Moreover, the Commission is considering proposing a EU-wide definition of what should be considered aggravating or mitigating circumstances for the determination of the sanction in a given case.
The Commission announced the EU policies areas where criminal law measures at EU level are required, including the financial sector, the fight against fraud, the protection of the euro against counterfeiting through criminal law. In fact, last December, the European Commission adopted a Communication setting out possible ways of “Reinforcing sanctioning regimes in the financial services sector.” The Commission is therefore considering introducing criminal sanctions for violations of financial services legislation. The Commission has also recently adopted a Communication entitled “On the protection of the financial interests of the European Union by criminal law and by administrative investigations", where it noted that definitions of criminal offences, such as embezzlement or abuse of power, vary widely among the Member States as well as the sanctions applicable to those offences. Hence it intends to put forward rules concerning the definition of these criminal offences. The Commission is also planning to use Article 83 TFEU as legal basis to put forward proposals establishing rules defining criminal offences and sanctions concerning corruption.
The Commission also indicated other EU policies that might require criminal sanctions to ensure they are properly enforced, such as road transport (including serious infringements of EU social rules for professional transports), data protection, customs rules, environmental protection, fisheries policy and internal market policies. The Commission will consider rules on the definition of criminal offences and sanctions in these are areas in order to ensure the effective implementation of EU legislation. Whereas presently Member States, in most of the cases, may choose between criminal law and administrative law under future EU legislation this choice would no longer be possible. Consequently, national legislation would have to provide for the types and levels of sanctions that Brussels considers necessary to enforce EU policies.
According to the European Commission “There should be a common understanding on the guiding principles underlying EU criminal law legislation, such as the interpretation of basic legal concepts used in EU criminal law”, thus it will adopt a “common model language to be used in future criminal law legislation.”
The power to determine criminal liability and to impose criminal penalties is a sovereign power, which must be kept. The Member States are best placed to decide what should be criminalised. As Sajjad Karim MEP, European Conservatives and Reformists group legal affairs spokesman, said, "Defining what constitutes a crime and what penalties should apply is a fundamental issue of statehood. Unfortunately an activist ruling by the European court and the Lisbon Treaty have undermined this right." Moreover, he said that "We have seen some criminal law already passed at EU level but this should not open the floodgates to a US style system of state and federal criminal systems.” However, the European Commission is planning another “EU power grab.”
