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The European Union and substantive criminal law: reinventing the wheel?*

Published online by Cambridge University Press:  07 July 2009

Steve Peers
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Extract

In recent years the European Union (EU) has played an increasing role in criminal law. A number of obligations for EU Member States have been agreed in various forms, ranging from substantive law obligations to procedural obligations and new mechanisms for enforcement, particularly the Europol and Eurojust agencies. These agencies and the novel procedural obligations, particularly in the form of the European arrest warrant, are well known. But is anything new in the EU's approach to substantive criminal law?

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Articles
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Netherlands Yearbook of International Law , Volume 33 , December 2002 , pp. 47 - 73
Copyright
Copyright © T.M.C. Asser Press 2002

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References

1. For a broader overview of the institutional framework, covering criminal procedure and enforcement, see Peers, S., ‘The European Union and Criminal Law: An Overview’, 12 ICLJ (2002) p. 2.Google Scholar

2. See proposed Treaty on fraud against the EU budget (OJ (1976) C 222). For further detail on this period, see Peers, S., EU Justice and Home Affairs Law (Harlow, Longman 2000) chapter 2.Google Scholar

3. Former Articles K to K.9 of the TEU. For further detail, see ibid.

4. See the former Articles K.3 and K.6 of the TEU.

5. The six Conventions providing for the Court's jurisdiction concerned Europol (OJ (1995) C 316/1; applied from 1 July 1999), the Customs Information System (OJ (1995) C 316/33; not yet in force); Protection of EU Financial Interests (OJ (1995) C 316/48; in force 17 October 2002); corruption (OJ (1997) C 195/1; not yet in force); driving disqualification (OJ (1998) C 216/1; not yet in force); and customs cooperation (‘Naples II’: OJ (1998) C 24/1; not yet in force). There were also further Protocols to the first three Conventions. The two Conventions which omitted Court jurisdiction concerned extradition (OJ (1995) C 78/1 and OJ (1996) C 313/11; neither yet in force). For further details, see Peers, S., ‘Who's Judging the Watchmen?: The Judicial System of the Area of Freedom Security and Justice’, 18 YEL (1998) pp. 337–415.Google Scholar

6. For more detail on the current institutional framework, see Peers, op. cit. n. 2, Chapter 3.

7. Arts. 29–42 of the EU Treaty. The key institutional provisions are Arts. 34 (Council, Commission, legal instruments and legal effect), 35 (Court of Justice) and 39 (EP).

8. For instance, the Convention on mutual assistance on criminal matters (OJ (2000) C 197/1) contains only an ambiguous possibility to adopt implementing measures in Art. 10(8) and the Decision on football match security (OJ (2002) L 121/1) contains no provision for such measures.

9. Cf., Art. 230 EC.

10. Member States can also restrict the power to refer to final national courts only, although only Spain has chosen this option.

11. Convention on mutual assistance on criminal matters (supra n. 8). Several Protocols to this and the earlier Conventions (supra n. 5) have also been agreed since entry into force of the Treaty of Amsterdam.

12. Supra n. 5.

13. The definition is identical to that of a Directive (see Art. 249 EC), except that the direct effect of Framework Decisions is expressly ruled out.

14. For example, see the Decisions on football security (supra n. 8) and on Eurojust (OJ (2002) L 63/1).

15. The Court has no jurisdiction over Common Positions (Art. 34(2)(a) TEU), except as regards dispute settlement between Member States (see Art. 35 TEU).

16. They have particularly been used to adopt positions on treaties concerning corruption (in the OECD, Council of Europe and United Nations) and on the UN Organised Crime treaty, where the goal was to maintain consistency with existing or planned EU measures.

17. Art. 38 TEU.

18. See generally Peers, S., ‘Caveat Emptor? Integrating the Schengen Acquis into the European Union Legal Order’, 2 CYELS (2000) pp. 87–123.Google Scholar

19. Joined cases C-187/01 Gozutok and C-385/01 Brugge, 2003 ECR I-1345. These cases concerned the ‘double jeopardy’ rules in the Schengen Convention.

20. These rules were originally in Art. 40 TEU, but following entry into force of the Treaty of Nice on 1 February 2003, there are revised rules in Arts. 40 to 40b TEU.

21. Art. 31 of the proposed Part I of the Constitution and Arts. 9 and 17 of the proposed Title on JHA issues (Doc. CONV 614/03, 14 March 2003), online at: <http://european-convention.eu.int>.

22. For an overview of the pre-Amsterdam rules, see Peers, op. cit. n. 2, at pp. 149–165.

23. Art. 31(e) is now Art. 31(1)(e) after entry into force of the Treaty of Nice, which added a new Art. 31(2) to the TEU, but its text is otherwise unchanged.

24. Para. 48 of the European Council conclusions.

25. This list does not include the proposed Framework Decision on fraud in public procurement (OJ (2000) C 253/3), as there appears to be no interest in discussing this proposal in the Council.

26. Convention (supra n. 5) and First Protocol (OJ (1996) C 313/1), both in force from 17 October 2002. The Second Protocol is not yet in force (OJ (1997) C 221/12).

27. Convention, (supra n. 5); Joint Action on private corruption (OJ (1998) L 358/2); proposed Framework Decision on private corruption (OJ (2002) C 184/5), agreed in principle by the JHA Council in December 2002 (text ready for adoption in Council Doc. 7370/03, 14 April 2003).

28. Framework Decision (OJ (2000) L 140/1). Member States had to implement part of this measure by 31 December 2000 and the rest by 29 May 2001.

29. Joint Action (OJ (1998) L 333/1); Framework Decision (OJ (2001) L 182/1). Member States had to implement the latter by 31 December 2002.

30. Framework Decision (OJ (2001) L 149/1). Member States have to implement this by 2 June 2003.

31. Framework Decision (OJ (2002) L 164/3). Member States had to implement this by 31 December 2002.

32. Framework Decision (OJ (2003) L 29/55). Member States have to implement this by 27 January 2005. There is also a specific proposal for a Framework Decision on pollution from shipping (COM (2003) 227, 2 May 2003).

33. Framework Decision (OJ (2002) L 162/1); see earlier Joint Action (OJ (1997) L 63/2). Member States have to implement this by 1 August 2004.

34. Framework Decision (OJ (2002) L 328/1). Member States have to implement this by 5 December 2004.

35. Proposed Framework Decision (COM (2000) 854, 21 December 2000; OJ (2001) C 62 E/327), which was ‘politically agreed’ in October 2002 latest text, Council Doc. 10748/03, 29 July 2003; see earlier Joint Action (supra n. 31).

36. Proposed Framework Decision (COM (2001) 259, 23 May 2001; OJ (2001) C 270 E/144); the latest text under discussion is Council Doc. 14542/02, 22 November 2002.

37. Proposed Framework Decision (COM (2002) 173, 17 April 2002; OJ (2002) C 203 E/109), agreed in principle by JHA Council in Febuary 2003 (text ready for adoption in Council Doc. 8687/03, 12 May 2003).

38. Proposed Framework Decision (COM (2001) 664, 28 November 2001; OJ (2002) C 75 E/269); see earlier Joint Action (OJ (1996) L 185/5). The latest text under discussion is Council Doc. 7280/03, 14 March 2003.

39. Joint Action (OJ (1998) L 351/1).

40. Proposed Framework Decision (Council Doc. 6290/03, 13 February 2003; OJ (2003) C 100). The latest text available at time of writing is in Council Doc. 8592/03, 25 April 2003.

41. See respectively COM (2001) 272, 22 May 2001; OJ (2001) C 240 E/125; revised after EP vote: COM (2002) 577 (EC financial interests); COM (2001) 139, 14 March 2001; OJ 2001 C 180 E/238; revised after EP vote: COM (2002) 544 (environmental crime) and COM (2003) 92, 5 March 2003 (shipping pollution). On the connection between EC law and criminal law generally, see Peers (supra n. 2) pp. 139–146.

42. Supra n. 30; case C-176/03, Commission v. Council, pending. See Council Doc. 9088/03, 7 May 2003, which summarises the Commission's arguments. The Council has also chosen to continue application of the Convention on the EC's Financial interests (supra n. 5) rather than consider adopting the proposed Directive on this subject (ibid.), but in this case the Commission does not have a ‘target’ to seek annulment of.

43. Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969.Google Scholar

44. For example, see case C-177/95 Ebony Maritime [1997] ECR I-1111, concerning economic sanctions against a non-EU State.

45. The first such report, concerning implementation of the Framework Decision on counterfeiting the euro, has been issued: COM (2001) 771, 13 December 2001.

46. The following discussion is based on Peers, , ‘EU Responses to Terrorism’, 52 ICLQ (2003) at p. 227.CrossRefGoogle Scholar

47. Conventions concerning: the Suppression of Unlawful Acts against the Safety of Maritime Navigation (27 ILM (1988) at p. 668); Protocol concerning the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (27 ILM (1988) at p. 685); the Suppression of Unlawful Seizure of Aircraft (Hague Hijacking Convention) (10 ILM (1970) at p. 133); the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Montreal Hijacking Convention); Protocol for the Suppression of Unlawful Acts of Violence at Airports serving Civil Aviation (27 ILM (1988) at p. 627); on the Protection and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (13 ILM (1973) at p. 41); against the Taking of Hostages (18 ILM (1979) at p. 1456); on the Suppression of Terrorist Bombings (UN Doc. A/Res/52/164 (9 January 1998)); on the Physical Protection of Nuclear Material (18 ILM (1980) at p. 1419); and for the Suppression of the Financing of Terrorism (UN Doc. A/54/109 (9 December 1999)). From a huge literature, see the discussion with further references by Bassiouni, M.C., ‘Perspectives on International Terrorism’Google Scholar, in Bassiouni, M.C., International Terrorism: Multilateral Conventions 1937–2001 (Ardsley NY, Transnational Publishers 2001).Google Scholar

48. Art. 2(1) of Convention (ibid.).

49. Art. 1 of the Convention (ETS 90). The first two offences are defined by reference to UN Conventions, while the others had also or have since been the subject of UN Conventions.

50. The differences are that the EU measure refers to ‘seriously intimidating’ and ‘unduly compelling’. The ‘compulsion’ criterion is also found in the Protection of Nuclear Materials Convention, Art. 7(1)(e)(ii); the Hostage-Taking Convention (Art. 1(1)), where it applies to compulsion against all natural or legal persons or groups of persons; to the Maritime Navigation Safety Convention (Art. 3(2)(c)); and to the Fixed Platforms Protocol, Art. 2(2)(c) (all supra n. 47).

51. The first two points also correspond to Art. 2(1)(a) of the Protected Persons Convention, which obviously has a far narrower personal scope.

52. Compare to Art. 2(1) of the bombings Convention. However, it is arguable that information systems are covered by the Convention's definition of ‘infrastructure’ as including ‘communications’ (Art. 1(2) of the Convention). Also, the Protocol to the Montreal Hijacking Convention covers broader forms of damage to civil aviation facilities, and Art. 2(1)(b) of the Protected Persons' Convention covers attacks on the premises or private accommodation of such persons.

53. Art. 7(1)(e) of the Protection of Nuclear Material Convention; Art. 3(2)(c) of the Maritime Safety Convention; Art. 2(2)(c) of the Fixed Platforms Protocol; and Art. 2(1)(c) of the Protected Persons’ Convention (supra n. 47)

54. Art. 2(1)(a) of the Fixed Platform Convention.

55. It might be argued that the hijacking could nonetheless ‘seriously damage’ the country and could ‘seriously intimidate’ the population, thus meeting the criteria in the Framework Decision.

56. Cf., Art. 2 of each Convention to Art. 2 of the Framework Decision. While the Framework Decision, compared to the financing Convention, does not define the concept of ‘funding’, it does more precisely define a ‘terrorist group’.

57. Title II, point A.c of the Joint Action (supra n. 33).

58. Art. 1(d) (supra n. 26).

59. Art. 3(1) (ibid.).

60. Art. 3(2) (ibid.).

61. Art. 3(3) (ibid.).

62. Art. 4(1) (ibid.).

63. Art. 4(2) (ibid.).

64. Art. 3 of Joint Action (supra n. 36).

65. Supra n. 27, Arts. 1 (second indent), 5 and 6.

66. Supra n. 28, Arts. 1 (third indent), 8 and 9.

67. Agreed text (supra n. 27), Arts. 1 (first indent), 5 and 6.

68. Agreed text (supra n. 37), Arts. 1(c), 8 and 9.

69. Latest text (supra n. 38), Arts. 5 and 6.

70. Arts. 1(b), 7 and 8 of the Framework Decision (supra n. 30).

71. Arts. 7 and 8 (supra n. 31).

72. Supra n. 31; however, the rules on liability and penalties in Arts. 2 and 3 follow the template.

73. Arts. 1(c) and 7 (supra n. 32).

74. Arts. 4 and 5 (supra n. 33).

75. Arts. 6 and 7 of the agreed text (supra n. 35).

76. Arts. 5 and 6 of latest text (supra n. 40). The original proposal suggested criminal liability of legal persons in all cases, but this has been changed during discussion so that Member States will have the standard option.

77. Arts. 1(3), 6 and 7 of the latest text (supra n. 36).

78. Art. 6 of Directive (supra n. 41) and Art. 3(2) of Framework Decision (supra n. 32).

79. Art. 6 of Framework Decision (supra n. 27).

80. Art. 2 of Framework Decision (supra n. 29).

81. Arts. 5 and 6 of Framework Decision (supra n. 31).

82. Art. 3 of Framework Decision (supra n. 33).

83. Art. 1 of Framework Decision (supra n. 34).

84. Art. 5 of latest text (supra n. 35). The agreed text of this measure is not available, and there were still reservations on Art. 5 in the latest text available, so it is not known at time of writing what was finally agreed.

85. Art. 4 of agreed text (supra n. 27).

86. Arts. 6 and 7 of agreed text of Framework Decision (supra n. 37). Member States may also apply the aggravated penalty when the conduct has ‘caused serious damages or has affected essential interests’.

87. Arts. 4 and 5 of latest text of proposed Framework Decision (supra n. 36). Lesser penalties apply to precursors.

88. Arts. 4 and 5 of latest text of proposed Framework Decision (supra n. 38). Lesser penalties apply to precursors.

89. Art. 4 of original proposal for Framework Decision (supra n. 40). However the latest text available would set a maximum sentence of 5–10 years in such cases and 2–5 years for illegal organ removal as defined in the Framework Decision (idem.).

90. Art. 6 of Directive (supra n. 41)and Art. 3(1) of Framework Decision (supra n. 32).

91. For the jurisdiction rules, see Art. 4, PIF Convention (supra n. 5); Art. 7, corruption Convention (supra n. 5); Art. 9, Framework Decision on payment card fraud (supra n. 30); Art. 4, Framework Decision on facilitation of illegal entry and residence (supra n. 34); Art. 9, Framework Decision on terrorism (supra n. 31); Art. 8, Framework Decision on environmental crime (supra n. 32); Art. 8, latest text of Framework Decision on sexual exploitation and child pornography (supra n. 35); Art. 7, agreed text of Framework Decision on private corruption (supra n. 27); Art. 10, agreed text of Framework Decision on attacks on information systems (supra n. 37); Art. 8 of latest text, Framework Decision on drug trafficking (supra n. 36); Art. 8, proposed Framework Decision on trafficking in organs (supra n. 40); Art. 3, proposed Directive on shipping pollution (supra n. 32); and Art. 4, proposed Framework Decision on shipping pollution (supra n. 41). On the jurisdiction rules in pre-Amsterdam measures, see Peers, op. cit. n. 2, at pp. 162–164.

92. The ‘straightforward’ territorial obligations are found in Art. 5(1)(a), Montreal Hijacking Convention (applying to the Protocol to that Convention); Art. 6(1)(a), terrorist bombing Convention; and Art. 7(1)(a), terrorist financing Convention. For the ‘clarified’ obligations, see Art. 6(1)(a) and (b) of the maritime safety Convention (territorial waters); Art. 4(1)(a) and (b), Hague Hijacking Convention (where aircraft lands); Art. 5(1)(b) and (c), Montreal Hijacking Convention (where aircraft lands); Art. 3(1)(a), fixed platforms Protocol (continental shelf); Art. 3(1)(a), protected persons Convention; Art. 5(1)(a), hostages Convention; Art. 6(1)(b), terrorist bombing Convention; Art. 8(1)(a), nuclear materials Convention; and Art. 7(1)(b), terrorist financing Convention (all supra n. 47). These provisions all concern the state of registration of an aircraft and the flag state of vessels, along with the further clarifications mentioned.

93. See Art. 6(1)(c) of the maritime safety Convention; Art. 3(1)(b), fixed platforms Protocol; Art. 3(1)(b), protected persons Convention; Art. 5(1)(b), hostages Convention; Art. 6(1)(c), terrorist bombing Convention; Art. 8(1)(b), nuclear materials Convention; and Art. 7(1)(c), terrorist financing Convention.

94. Art. 3(1)(c), protected persons Convention; Art. 5(1)(c), hostages Convention.

95. The only examples are Art. 4(1)(c), Hague Hijacking Convention and Art. 5(1)(d), Montreal Hijacking Convention, applying only where a lessee company is a ‘national’.

96. See Art. 6(2) of the maritime safety Convention (passive personality and protective); Art. 3(2), fixed platforms Protocol (passive personality and protective); Art. 5(1)(d), hostages Convention (passive personality); Art. 6(2), terrorist bombing Convention (protective and passive personality); Art. 8(4), nuclear materials Convention (state of importation or exportation); and Art. 7(2), terrorist financing Convention (protective, passive personality).

97. The relevant provisions extending criminal jurisdiction to such persons are all merely permissive, not mandatory: Art. 6(2)(a), maritime safety Convention; Art. 3(2)(a), fixed platforms Protocol; Art. 5(1)(b), hostages Convention; and Art. 7(2)(d), terrorist financing Convention.

98. However, Art. 4(b) of the Tokyo Hijacking Convention, while not requiring the application of criminal sanctions, does permit criminal jurisdiction where acts are committed by or against ‘permanent residents’.

99. It should be recalled that EU rules ban cross-border double jeopardy within the EU, subject to certain exceptions: for details see Peers, (op. cit. n. 2) at pp. 164–165. This rule was the subject of the Gozutok and Brugge judgments (supra n. 19).

100. Art. 8(3) of proposal (supra n. 32).

101. OJ (2002) C 184/3. The Council reached agreement in principle on this proposal in December 2002.