European (criminal) law v. National (criminal) law - A two way street
| Author | Norel Neagu |
| Position | Associate Professor, 'Acad. Andrei Radulescu' Legal Research Institute of Romanian Academy |
| Pages | 46-66 |
46 NOREL NEAGU
EUROPEAN (CRIMINAL) LAW V. NATIONAL (CRIMINAL)
LAW – A TWO WAY STREET*
Norel NEAGU**
Abstract
European criminal law is an emerging field, both influencing and being influenced by national
criminal law. European (criminal) law draws its roots from constitutional principles stemming from
common traditions of the Member States. Also, European Union instruments are highly influential
over national criminal law, through policy making, legislative instruments and interpreting case
law. One can imagine European versus national criminal law as a two way street, where each turn of
one of the traffic participants shall necessarily influence the other one.
Key words: European law, criminal law, principles of criminal law, guilt, crime, cooperation
between EU member states.
1. Historical Perspective of European Union’s jurisdiction in the field on
criminal law – from non-existent to minimal influence
European Union institutions’ jurisdiction in imposing provisions in the field of
criminal law has represented until recently a controversial issue.
Starting with the Rome Treaty and until the beginning of the ‘70s, the
European Union institutions did not have jurisdiction in the field of criminal law.
This field was considered as part of national sovereignty of Member States.
Consequently, at the beginning of the European Union integration process, this
subject was ‘taboo’ in respect to European intervention in this field.
The Schengen Agreements1 have touched upon this subject, only to specifically
* The paper is part of a broader research supported by the Romanian National Authority for
Scientific Research, CNCS - UEFISCDI, project number PN-II-RU-TE-2012-3-0412.
** Associate Professor, “Acad. Andrei Rdulescu” Legal Research Institute of Romanian
Academy; E.mail: norel.neagu@gmail.com.
1 Convention implementing the Schengen Agreement of 14 June 1985 between the Governments
of the States of the Benelux Economic Union, the Federal Republic of Germany and the French
Republic on the gradual abolition of checks at their common borders, Official Journal L 239, 22/09/2000,
p. 0019 - 0062. The Schengen area and cooperation are founded on the Schengen Agreement of 1985.
The Schengen area represents a territory where the free movement of persons is guaranteed. The
signatory states to the agreement have abolished all internal borders in lieu of a single external border.
Here common rules and procedures are applied with regard to visas for short stays, asylum requests
and border controls. Simultaneously, to guarantee security within the Schengen area, cooperation and
coordination between police services and judicial authorities have been stepped up. Schengen
Law Review vol. II, issue 2, Jul
y
-December 2015, p. 46-66
European (criminal) law v. national (criminal) law – a two way street 47
exclude direct intervention of European Union institutions in criminal law.2
Criminal law field comes into European Union jurisdiction starting with the
adoption of the European Union Treaty,3 which instituted judicial cooperation in
criminal matters as a problem of common interest (art. K1 of the Maastricht Treaty,
corresponding to art. 29 in the Treaty of Amsterdam).4
Two reasons have determined the change in optic of the Member States in
respect to European Union intervention in the field of criminal law. The first one
consisted of the scope of the reform of the Treaties. Thus, several new policies were
added in the European Union’s jurisdiction, and also several changes were
necessary due to the implementation of the four freedoms: free movement of
persons, goods, services, capital. In the interval of less than a decade the European
Union’s legislative framework and its implementation has taken a huge step
forward. More integration and less border control have logically conducted to a
raise in transnational criminal activities. European Union coordinated action in the
field of criminal law was suddenly needed.
The second reason for the change in optic was that European Union
intervention in this field was minimal,5 The legislative instruments available
were conventions6 between Member States, joint actions,7 common posi-
cooperation has been incorporated into the European Union (EU) legal framework by the Treaty of
Amsterdam of 1997.
2 H. Labayle, L’application du titre VI du Traité sur L’Union européenne, RSC, January-March 1995,
p. 34.
3 Treaty on the European Union, OJ C 191, 29/07/1992, p. 1 – 110.
4 According to article K1, for the purposes of achieving the objectives of t he Union, in particular the
free movement of persons, and without prejudice to the powers of the European Community, Member
States shall regard the following areas as matters of common interest: asylum policy; rules governing the
crossing by persons of the external borders of the Member States and the exercise of controls thereon;
immigration policy and policy regarding nationals of third countries; combatting drug addiction;
combatting fraud on an international scale; judicial cooperation in civil matters; judicial cooperation in
criminal matters; customs cooperation; 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).
5 The inclusion of criminal law by the Treaties of Maastricht, Amsterdam and Nice in the field of
intergovernmental cooperation has had deep implications for the adoption and implementation of
legal instruments in this field. Both national criminal law influence over EU law and EU law influence
over national criminal law were negligent though.
6 According to Article K2 of the Maastricht Treaty, the Council may draw up conventions which
it shall recommend to the Member States for adoption in accordance with their respective
constitutional requirements. For example, Council Act of 26 July 1995 drawing up the Convention on
the protection of the European Communities' financial interests, OJ C 316, 27.11.1995, p. 48–57;
Council Act of 26 July 1995 drawing up the Convention based on Article K.3 of the Treaty on
European Union, on the establishment of a European Police Office (Europol Convention), OJ C 316,
27.11.1995, p. 1–32; Council Act of 10 March 1995 drawing up the Convention on simplified
extradition procedure between the Member States of the European Union, OJ C 78, 30.3.1995, p. 1–1.
7 According to Article K2 of the Maastricht Treaty, the Council may adopt joint action in so far as
the objectives of the Union can be attained better by joint action than by the Member States acting
48 NOREL NEAGU
tions8 and later on, framework decisions.9 Drawbacks existed regarding the
non-compliance penalty on the implementation of the provisions these legislative
instruments provided, which was inexistent. Also, decision making process
required unanimity for adoption of these legislative instruments, which was
difficult to achieve.10 Thus, with minimal cooperation instruments, in order to
individually on account of the scale or effects of the action envisaged. For example, Joint
Action 96/443/JHA of 15 July 1996 adopted by the Council on the basis of Article K.3 of the Treaty on
European Union, concerning action to combat racism and xenophobia, OJ L 185, 24.7.1996, p. 5–7;
Joint Action 96/277/JHA of 22 April 1996 adopted by the Council on the basis of Article K.3 of the
Treaty on European Union, concerning a framework for the exchange of liaison magistrates to
improve judicial cooperation between the Member States of the European Union, OJ L 105, 27.4.1996,
p. 1–2; Joint Action 95/73/JHA of 10 March 1995 adopted by the Council on the basis of Article K.3 of
the Treaty on European Union concerning the Europol Drugs Unit, OJ L 62, 20.3.1995, p. 1–3.
8 According to Article K2 of the Maastricht Treaty, the Council may adopt joint positions and
promote, using the appropriate form and procedures, any cooperation contributing to the pursuit of
the objectives of the Union. For example, Joint Position 1999/235/JHA of 29 March 1999 defined by
the Council on the basis of Article K.3 of the Treaty on European Union, on the proposed United
Nations convention against organised crime, OJ L 87, 31.3.1999, p. 1–2; Second Joint Position
97/783/JHA of 13 November 1997 defined by the Council on the basis of Article K.3 of the Treaty on
European Union on negotiations held in the Council of Europe and the OECD on the fight against
corruption, OJ L 320, 21.11.1997, p. 1–2; Joint Position 96/622/JHA of 25 October 1996 defined by the
Council on the basis of Article K.3 (2) (a) of the Treaty on European Union, on pre-frontier assistance
and training assignments, OJ L 281, 31.10.1996, p. 1–2.
9 According to article 34 TUE (in force after the Treaty of Amsterdam) acting unanimously on the
initiative of any Member State or of the Commission, the Council may 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. For example,
Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and
expressions of racism and xenophobia by means of criminal law, OJ L 328, 6.12.2008, p. 55–58;
Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime,
OJ L 300, 11.11.2008, p. 42–45; Council Framework Decision 2004/757/JHA of 25 October 2004 laying
down minimum provisions on the constituent elements of criminal acts and penalties in the field of
illicit drug trafficking, OJ L 335, 11.11.2004, p. 8–11.
10 There were three main aspects that distinguished first pillar from the third pillar instruments:
the legislative procedure, the legal effect and the control of implementation. As regards the legislative
procedure, framework decisions were proposed either by a Member State or by the Commission and
adopted unanimously by the Council after consulting the European Parliament. Directives, however,
can only be proposed by the Commission and, in most cases, are adopted by a qualified majority via
the co-decision procedure. The legal effect of third pillar instruments differed from that of
Community law instruments. Under Article 34(2)(b) TEU, framework decisions were binding on the
Member States as to the result to be achieved, but they did not entail direct effect. In the context of the
first pillar, on the other hand, there is no doubt that directives can have direct effect, as the ECJ has
consistently held in its case-law (see in respect to this P. Craig and G. Burca, ‘EU Law: Text, Cases and
Materials, Oxford University Press, 2003, p. 178–229). As regards the possibility of verifying the
implementation of policies by national authorities, in the third pillar the Court could review the
legality of framework and other decisions. However, there was no infringement procedure as in the
first pillar. See also for reference N. Neagu, Entrapment between Two Pillars: The European Court of Justice
Rulings in Criminal Law, European Law Journal, Vol. 15, No. 4, July 2009, pp. 538-539.
European (criminal) law v. national (criminal) law – a two way street 49
achieve effectiveness in tackling cross-border crime, sectorial cooperation was
needed. This was realised, until the Lisbon Treaty, through several framework
decisions in the field of criminal law, both substantial and procedural.11 The
evolution of legislative instruments in the field of criminal law was slow, but
irreversible in the European Union.
Progressively, discussions on renouncing at the pillars structure in European
Union legislation were gaining support. The impetus in the field of criminal law
was given by two constitutional decisions12 of the European Court of Justice, which
established, without being provided for in the Treaties, that criminal law measures
may by adopted by means of a Directive as a legislative instrument (thus a first
pillar instrument), when implementing measures are necessary in the field of an
already harmonised policy subject to European Union jurisdiction13.
Consequently, the time was ripe for a shared competence between the
European Union and the Member States in the field of criminal law. And this was
achieved by the Lisbon Treaty, after the failed Constitutional Treaty14.
2. Today’s perspective – shared competence in the field of criminal law
Criminal law measures have constantly developed throughout European
integration process, thus contributing to the higher level of security within the
Union. Contemporary security challenges, risks and threats, like international
terrorism, organized crime and migrations, have influenced eve-closer cooperation
11 The most effective and utilised instrument was the Council Framework Decision 2002/
584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between
Member States, OJ L 190, 18.7.2002, p. 1–20.
12 Case C-176/03, Commission v. Council, 2005 ECR I-07879; Case C-440/05, Commission v.
Council, 2007 ECR I-9097.
13 European Union policies which may give rise to harmonisation measures are the internal
market, free movement of goods, agriculture and fisheries, free movement of persons, services and
capital, transport, competition and taxation, the economic and monetary policy, employment, social
policy, educational, vocational training, youth and sport, culture, public health, consumer protection,
trans-European networks, industry, economic, social and territorial cohesion, research, technological
development and space, environment, energy, tourism, civil protection, administrative cooperation.
14 The Treaty establishing a Constitution for Europe (TCE), (commonly referred to as the
European Constitution or as the Constitutional Treaty), was an unratified international treaty
intended to create a consolidated constitution for the European Union. It would have replaced the
existing European Union treaties with a single text, given legal force to the Charter of Fundamental
Rights, and expanded Qualified Majority Voting into policy areas which had previously been decided
by unanimity among member states. The Treaty was signed on 29 October 2004 by representatives of
the then 25 member states of the European Union. It was later ratified by 18 member states, which
included referendums endorsing it in Spain and Luxembourg. However the rejection of the document
by French and Dutch voters in May and June 2005 brought the ratification process to an end.
Following a period of reflection, the Treaty of Lisbon was created to replace the Constitutional Treaty.
This contained many of the changes that were originally placed in the Constitutional Treaty but was
formulated as amendments to the existing treaties. Signed on 13 December 2007, the Lisbon Treaty
entered into force on 1 December 2009.
50 NOREL NEAGU
of Member states in this area. At the same time, there was a persistent need to
achieve balance between ensuring higher level of security as an answer to the more
complex security challenges, risks and threats, and human rights and freedom
protection at the European level on the other side.15
A crucial event in the development of both substantial and procedural criminal
law within the EU was the entering into force of the Lisbon Treaty in December
2009.16 It provided for a shared competence in the field of criminal law between the
EU and the Member States, the latter being able to exercise their competence as
long and insofar as the EU has decided not to exercise its own.17
After the adoption and coming into force of the Lisbon Treaty, the institutional
pillar system was abandoned and ordinary legislative procedure was introduced,
with qualified majority required for making decisions, also in the area of criminal
law. Democratic control was improved by enhancing European Parliament’s
jurisdiction and national parliaments’ role as well. Jurisdiction of the Court of
Justice of the EU was widened and the European Convention of the Human Rights
gained access to the EU as a legal person.18
Having jurisdiction over several harmonized policies, the European Union
needs to ensure consistency between the said policies and its activities, taking all of
its objectives into account and in accordance with the principle of conferral of
powers. The competence conferred on the Union could be exclusive, shared, to
coordinate, define or implement policies, to carry out actions to support,
coordinate or supplement the actions of the Member States.19
The shared competence is defined in Article 2(2) TFEU. That is, when the
Treaties confer on the Union a competence shared with the Member States in a
specific area, the Union and the Member States may legislate and adopt legally
binding acts in that area. The Member States shall exercise their competence to the
extent that the Union has not exercised its competence. The Member States shall
again exercise their competence to the extent that the Union has decided to cease
exercising its competence.
Article 4(2)(j) TFEU states that shared competence between the Union and the
Member States applies in the area of freedom, security and justice. This is an
innovative step in the Treaty of Lisbon, since before that criminal law measures
were to be found in the so-called „third pillar”, in the form of inter-governmental
co-operation.
15 http://cep.org.rs/en/european-policies/24-justice-freedom-and-security.html.
16 Consolidated version of the Treaty on the Functioning of the European Union (TFEU), OJ C 83,
30.03.2010, pp. 47-201.
17 N. Neagu, The European Public Prosecutor’s Office – Necessary Instrument or Political Compromise?,
Law Review, vol. III, no. 2/2013, p. 52-53.
18 http://cep.org.rs/en/european-policies/23-judiciary-and-fundamental-rights.html.
19 Article 7 of the consolidated Version of the Treaty on the Functioning of the European Union.
European (criminal) law v. national (criminal) law – a two way street 51
There are two specific competences for criminalizing conduct provided for in
the TFEU.
First of all, measures can be adopted under Article 83(1) TFEU concerning a list
of explicitly listed ten offences20 (the so-called “Eurocrimes”) which refers to
terrorism, trafficking in human beings, sexual exploitation of women and children,
illicit drug trafficking, illicit arms trafficking, money laundering, corruption,
counterfeiting of means of payment, computer crime and organized crime. These are
crimes that merit, by definition, an EU approach due to their particularly serious
nature and their cross-border dimension, according to the Treaty itself. Most of the
crime areas are already covered by pre-Lisbon legislation, which has been or is in the
process of being updated. Additional “Euro crimes” can only be defined by the
Council acting unanimously, with the consent of the European Parliament.21 There
are also limits imposed to Union’s competence in this field. Thus, the Union is
limited to establishing minimum rules concerning the definition of criminal
offences and sanctions (emphasis added) in the 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.
Same limits seem to be imposed to the second specific competence of the
Union in the field of criminal law. Article 83(2) TFEU allows the European
Parliament and the Council, on a proposal from the Commission, to establish
‘[…] minimum rules with regard to the definition of criminal offences and
sanctions 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 a harmonisation measure.’
In this field there are not specific crimes listed, but fulfilment of certain legal
criteria is made a precondition for the adoption of criminal law measures at EU
level, with emphasize on ensuring effectiveness of EU policies.
A complementary legal basis to Article 83 (2) can be found in Article 325 (4)
TFEU, which provides for the specific possibility to take measures in the field of
the prevention of and fight against fraud affecting the financial interests of the
Union (emphasis added), a field where some pre-Lisbon legislation already
exists.22 It is an area of great importance for both EU and taxpayers, who are
20 According to Article 83[1] par. 3, on the basis of developments in crime, the Council may adopt
a decision identifying other areas of crime that meet the criteria specified in this paragraph (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). It shall act unanimously after
obtaining the consent of the European Parliament.
21 Communication from the Commission to the European Parliament, the Council, the European
Economic and Social Committee and the Committee of the Regions, Towards an EU Criminal Policy:
Ensuring the effective implementation of EU policies through criminal law, COM(2011) 573 final.
22 See Convention of 1995 on the protection of financial interests of the EU and its protocols, and
Council Regulation (EC, Euratom) No 2988/95 of 18.12.1995 on the protection of the European
Communities' financial interests concerning administrative sanctions, O.J. 1995, L312/1.
52 NOREL NEAGU
funding the EU budget and who legitimately expect effective measures against
illegal activities targeting EU public money (e.g. in the context of the EU's
agricultural and regional funds or development aid), but also for European
institutions, especially the Commission.23
On a superficial analysis of the provisions of the Lisbon Treaty (especially the
provisions related to the shared competence), one can conclude that the European
Union as a body can force the Member States, by exercising its right to legislate in
the field of criminal law, to adopt certain legislation in this sector and impose over
the Member State the obligation to refrain from adopting diverging legislation in
the same sector. However, it should be kept in mind that European Union
co-legislator in this field is the Council of the European Union, body composed of
the representatives of the Member States. Legislation in the field of criminal law
can be conceived at European Union level and implemented in the Member States,
but only as a result of a broad political consensus of the Member States’
representatives.24
3. National (Criminal) Law Influence over European (Criminal) Law
European criminal law is highly influenced by national criminal law, starting
from general principles, up to definition of criminal law institutions (such as guilt,
aiding and abetting etc.). Usually national criminal law notions are imported into
European law when common to several different traditions. It is said that national
law influences European law through principles stemming from common
tradition.
In the EU context, there are certain principles which permeate the system as a
whole and with which any individual piece of legislation needs to be in
conformity. Some of these principles are formally higher law in that they are
explicit in the treaties (such as the principle of non-discrimination on grounds of
nationality). Others can only indirectly be linked to the treaties and are rather
explicable on the grounds that no European judge could imagine giving effect to a
legal system which does not respect them (the so called ‘general principles of EU
law’).25
23 See Communication on the protection of the financial interests of the European Union by
criminal law and by administrative investigations – An integrated policy to safeguard taxpayers'
money, COM (2011) 293.
24 Usually, though, in the field of criminal law, legislative action is taken only when consensus is
reached through unanimity. Some actions may be imposed upon qualified majority, as is a recent
example in the field of migration: no unanimous consensus was reached at the European Council
from September 2015, but upon qualified majority migration quotas were ascribed to Member States
to prevent and solve the migration crisis flow from Syria to certain Member States of the European
Union.
25 M. Fletcher, R. Loof, B. Gilmore, EU Criminal Law and Justice, Edward Elgar Publishing Limited
(2008), p. 13.
European (criminal) law v. national (criminal) law – a two way street 53
Several traditional national principles in the field of (criminal) law, imported
into European Treaties and European secondary law are going to be briefly
analysed in the following lines. I will start with several fundamental principles
which constitute the basis for the whole European law (hence also criminal law),
than focus on principles specific to substantial criminal law (e.g., legality, equality,
guilt, mitior lex) and procedural criminal law (e.g. mutual recognition, mutual trust,
ne bis in idem, speciality).
3.1. Constitutional principles
Several guiding principles (especially in the field of drafting legislation and the
limits imposed therein upon the European legislator) are provided for in the Treaty
on the European Union. The European law drafter is subject to respecting the
principles of conferral of powers, subsidiarity, proportionality and
non-discrimination, which are, in fact, constitutional principles known to every
national legislator.
Legislative action at EU level is governed by the principle of conferral of
powers. This principle is defined in Articles 1(1), 4(1) 5(1) and 5(2) TEU.26
According to the said articles, the High Contracting Parties establish among
themselves a European Union, on which the Member States confer competences to
attain objectives they have in common. The limits of Union competences are
governed by the principle of conferral. Under this principle,
‘The Union shall act only within the limits of the competences conferred upon
it by the Member States in the Treaties to attain the objectives set out therein.
Competences not conferred upon the Union in the Treaties remain with the
Member States.’
Exercising competence by the Union is governed also by the principles of
subsidiarity and proportionality. Under the principle of subsidiarity, according to
[Article 5(3) TEU],
‘In areas which do not fall within its exclusive competence, the Union shall act
only if and in so far as the objectives of the proposed action cannot be sufficiently
achieved by the Member States, either at central level or at regional and local level,
but can rather, by reason of the scale or effects of the proposed action, be better
achieved at Union level.’
Under the principle of proportionality, according to [Article 5(4) TEU],
‘The content and form of Union action shall not exceed what is necessary to
achieve the objectives of the Treaties.’
The principle of proportionality, in simple terms, means that the mean has to
be suitable and necessary in order to reach the goal. In other words, to state the
obvious, according to the principle, arguments that would be supportive of a mean
that is unsuitable and/or unnecessary to reach a goal would not be in accordance
26 Consolidated Version of the Treaty on the European Union, O.J. 2010, C 83/13.
54 NOREL NEAGU
with the principle.27 Thus, applying criminal law to tackle behaviour which can be
effectively dealt with by other means (e.g. civil or administrative measures) is
unnecessary, and breaching the proportionality principle. In this understanding of
the proportionality principle, it seems to have the same content as one of the
principles of criminal law (ultima ratio principle).28
The principle of non-discrimination is set forth in Articles 10 and 18 of the
Treaty on the Functioning of the European Union (TFEU)29 and, also, in Article 21
of the Charter of Fundamental Rights of the European Union.30
According to the case law of the ECJ:
“the principle of equality and non-discrimination requires that comparable
situations must not be treated differently unless such treatment is objectively
justified.”31
3.2. Substantial Criminal Law Principles
Under this heading I will briefly present several principles which stem from
the common traditions of the Member States and which can be found or mentioned
in several legislative instruments adopted at European Union level (the legality
principle, the harm principle, the guilt principle, the mitior lex principle)
The principle of the legality of criminal offences and penalties (nullum crimen,
nulla poena sine lege), which is one of the general legal principles underlying the
constitutional traditions common to the Member States, has also been enshrined in
various international treaties, in particular in Article 7(1) of the European
Convention for the Protection of Human Rights and Fundamental Freedoms,32 and
Article 49(1) of the Charter of Fundamental Rights of the European Union.33
27 Tor-Inge Harbo, The Function of the Proportionality Principle in EU Law, 16 EUROPEAN LAW
JOURNAL (2010), p. 161.
28 See, in this respect, N. Neagu (ed.), Foundations of European Criminal Law, C.H. Beck Publishing
House, Bucharest, 2015, p. 194-195.
29 Consolidated version of the Treaty on the Functioning of the European Union, Official Journal
(OJ) (2010) C-83/164 (30 March 2010). The principle of non-discrimination is a fundamental principle
which is also enshrined in Article 14 of the European Convention for the Protection of Human Rights
and Fundamental Freedoms (ECHR), adopted by the Council of Europe (4 November 1950):
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, property, birth or other status.”
30 Charter of Fundamental Rights of the European Union, Official Journal (OJ) (2000) C-364/01 (18
December 2000).
31 Case C-303/05 Advocaten voor de Wereld [2007] ECR I-3633, para. 45.
32 See in this regard, inter alia, Joined Cases C-74/95 and C-129/95 X [1996] ECR I-6609,
paragraph 25, and Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P
Dansk Rørindustri and Others v Commission [2005] ECR I-5425, paragraphs 215 to 219.
33 According to article 49(1) of the Charter, entitled ‘Principles of legality and proportionality of
criminal offences and penalties’:
‘No one shall be held guilty of any criminal offence on account of any act or omission which did
not constitute a criminal offence under national law or international law at the time when it was
European (criminal) law v. national (criminal) law – a two way street 55
According to the legality principle, no one shall be held guilty of any criminal
offence on account of any act or omission which did not constitute a criminal
offence under national or international law at the time when it was committed
(nullum crimen sine lege). Also, no penalty shall be imposed which was not
provided for by the law that was applicable at the time the criminal offence was
committed (nulla poena sine lege).
A basic principle for criminalisation in the Anglo-American legal theory is the
‘harm’ principle. According to Mill, “[…] the only purpose for which power can be
rightfully exercised over any member of a civilized community, against his will, is
to prevent harm to others”.34 Studying the preamble and the impact assessment of
legislative acts in the field of criminal law may offer valuable information on the
reasons of the law maker for criminalizing conduct. An important reason for
criminalising conduct relates to the serious violation caused to individuals or
groups of persons and the significance of crime (‘harm’ principle).35 The ‘harm’
principle is also mentioned in the criminal law policies of European institutions.36
European legislation requiring Member States to criminalise certain acts must
be based, without exception, on the principle of individual guilt (nulla poena sine
culpa). This requirement captures not only the fact that criminalisation should be
used solely against conduct which is seriously prejudicial to society, but that it
should also be regarded as a guarantee that human dignity will be respected by
criminal law. Furthermore, the requirement of individual guilt is inferred from the
committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the
criminal offence was committed. If, subsequent to the commission of a criminal offence, the law
provides for a lighter penalty, that penalty shall be applicable’.
34 J.S. Mill, On Liberty and Other Essays (Oxford University Press 1991, orig. 1859), pp. 14.
35 See in this respect, Council framework Decision 2000/383/JHA of 29 May 2000 on increasing
protection by criminal penalties and other sanctions against counterfeiting in connection with the
introduction of the euro, OJ L 140, 14.6.2000, recital 9; Council Framework Decision 2004/68/JHA of
22 December 2003 on combating the sexual exploitation of children and child pornography, O.J. 2004,
L 13/44, recitals 5 and 7; Council Framework Decision 2001/500/JHA of 26 June 2001 on money
laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the
proceeds of crime, O.J. 2001, L 182/1, recitals 3 and 4; Council Framework Decision 2002/475/JHA of
13 June 2002 on combating terrorism, OJ L 164, 22.6.2002, recitals 1 and 2; Council Framework
Decision 2004/757/JHA of 25 october 2004 laying down minimum provisions on the constituent
elements of criminal acts and penalties in the field of illicit drug trafficking, OJ L 335, 11.11.2004,
recital 8; Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on
preventing and combating trafficking in human beings and protecting its victims, and replacing
Council Framework Decision 2002/629/JHA, O.J. 2011, L 101/1, recital 1.
36 Draft Council conclusions on model provisions, guiding the Council's criminal law
deliberations, 16542/2/09 REV 2 JAI 868 DROIPEN 160; Communication from the Commission to the
European Parliament, the Council, the European Economic and Social Committee and the Committee
of the Regions, Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies
through criminal law, COM(2011) 573 final; European Parliament, Report on an EU approach on
criminal law (2010/2310(INI), A7-0144/2012, Committee on Civil Liberties, Justice and Home Affairs.
56 NOREL NEAGU
presumption of innocence provided for in Article 48(1) of the EU Charter of
Fundamental Rights.37
Generally speaking, the legal instruments of the EU criminalizing conduct
refer to ‘intentional conduct’,38 or to acts that have been ‘intentionally’ committed.39
The ECJ distinguishes between two main categories of offences: intentional (the
general rule) and non-intentional (the exception). The second category is
subdivided into lack of care (recklessness), (serious) negligence and objective
responsibility.40
The principle by which a person is to benefit from the lighter penalty where
there has been a change in the law is known by the Latin phrase lex mitior.41
The mitior lex principle is provided for in international and EU instruments.
Article 15 of the International Covenant on Civil and Political Rights, adopted by
the General Assembly of the United Nations in Resolution 2200 A (XXI) of 16
December 1966, which entered into force on 23 March 1976, is worded basically in
the same terms as Article 49(1) of the EU Charter of Fundamental Rights.
According to article 49(1) of the Charter, entitled ‘Principles of legality and
proportionality of criminal offences and penalties’:
‘No one shall be held guilty of any criminal offence on account of any act or
omission which did not constitute a criminal offence under national law or
international law at the time when it was committed. Nor shall a heavier penalty
be imposed than the one that was applicable at the time the criminal offence was
committed. If, subsequent to the commission of a criminal offence, the law
provides for a lighter penalty, that penalty shall be applicable’.
37 Manifesto on the EU Criminal policy (2009), available at > ,
(last visited 02 Oct. 2015), drafted by an academic group of 14 criminal law professors from ten
Member States of the European Union.
38 Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised
crime, OJ L 300, 11.11.2008, p. 42–45; Council framework Decision 2004/68/JHA of 22 December 2003
on combating the sexual exploitation of children and child pornography, OJ L 13, 20.1.2004, p. 44–48;
Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the
protection of the environment through criminal law, OJ L 328, 6.12.2008, p. 28–37; Directive
2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and
combating trafficking in human beings and protecting its victims, and replacing Council Framework
Decision 2002/629/JHA, OJ L 101, 15.4.2011, p. 1–11 etc.
39 A. Klip, European Criminal Law, an Integrative Approach, Intersentia, Antwerp-Oxford-Portland,
2009, p. 188-189.
40 Case C-157/80 Criminal proceedings against Siegfried Ewald Rinkau [1981] ECR 1395, par. 14-15:
‘The national laws of most of the contracting States distinguish in one way or another between
offences committed intentionally and those not so committed. […] Whereas offences which were
intentionally committed, if they are to be punishable, require an intent to commit them on the part of
the person concerned, offences which were not intentionally committed may resul t from carelessness,
negligence or even the mere objective breach of a legal provision.’
41 W.A. Schabas, Lex mitior, http://humanrightsdoctorate.blogspot.ro/2010/08/lex-mitior.html.
European (criminal) law v. national (criminal) law – a two way street 57
The mitior lex principle has also been asserted as a fundamental principle of
criminal law in the case law of ECJ and ECHR. Thus, the ECJ decided that:
‘According to settled case-law, fundamental rights form an integral part of the
general principles of law, the observance of which the Court ensures. For that
purpose, the Court draws inspiration from the constitutional traditions common to
the Member States and from the guidelines supplied by international treaties for
the protection of human rights on which the Member States have collaborated or to
which they are signatories.42 […] The principle of the retroactive application of the
more lenient penalty forms part of the constitutional traditions common to the
Member States. It follows that this principle must be regarded as forming part of
the general principles of Community law which national courts must respect when
applying the national legislation adopted for the purpose of implementing
Community law.’43
3.3. Procedural Criminal Law Principles
Several guiding procedural criminal law principles, not only recognized in all
Member States of the European Union, but also enshrined in international
instruments and treaties, are going to be briefly mentioned in the following section,
to emphasise the importance of common traditions in European legislative
development. I decided to group the procedural criminal law principles as they are
mentioned in the Charter of Fundamental Rights of the European Union.
The presumption of innocence is a fundamental right, laid down in the
European Convention for the Protection of Human Rights and Fundamental
Freedoms and the Charter of Fundamental Rights of the European Union. Article 6(3)
of the Treaty on European Union (TEU) provides that the Union shall respect
fundamental rights, as guaranteed by the European Convention for the Protection
of Human Rights and Fundamental Freedoms and as they result from the
constitutional traditions common to Member States.
The right of defence includes, inter alia, the right to have someone informed of
the detention, the right to legal advice and assistance, the right to a competent,
qualified (or certified) interpreter and/or translator, the right to bail (provisional
release) where appropriate, the right against self-incrimination, the right to
consular assistance (if not a national of the State of prosecution), fairness in
obtaining and handling evidence (including the prosecution’s duty of disclosure),
the right to review of decisions and/or appeal proceedings, specific guarantees
covering detention, either pre- or post-sentence.44
42 See, inter alia, Case C-112/00 Schmidberger [2003] ECR I-5659, paragraph 71 and the case-law
there cited, and Joined Cases C-20/00 and C-64/00 Booker Aquaculture and Hydro Seafood [2003] ECR
I-7411, paragraph 65 and the case-law there cited.
43 Joined cases C-387/02, C-391/02 and C-403/02, Criminal proceedings against Silvio Berlusconi,
Sergio Adelchi and Marcello Dell'Utri and Others [2005] ECR I-03565, par. 66-69.
44 Green Paper from the Commission, Procedural Safeguards for Suspects and Defendants in
Criminal Proceedings throughout the European Union, COM(2003) 75 final, p. 21.
58 NOREL NEAGU
To enhance the right of defence, harmonization of at least some fundamental
aspects of a criminal trial, starting from the European Convention of Human
Rights and ECHR case law as the common lowest denominator, was decided at EU
level. Hence, an ambitious roadmap for procedural rights in criminal trials has
been established in the EU.45 It included measures related to translation and
interpretation,46 information on rights and information about charges,47 the right to
legal advice and legal aid,48 the right to communication with relatives, employers
and consular authorities, and special safeguards for suspects or accused persons
who are vulnerable.
According to Article 47 CFREU,
‘Everyone whose rights and freedoms guaranteed by the law of the Union are
violated has the right to an effective remedy before a tribunal in compliance with
the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal previously established by law. Everyone shall
have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources in so
far as such aid is necessary to ensure effective access to justice.’
Access to justice is considered a constitutional right in EU law. Thus the
principle of the rule of law requiring judicial review of an act interfering with a
right of an individual and the corresponding need for grant of an effective remedy,
in cases of unjustified infringement is guaranteed by the Charter. This principle is
required by the notion of respect of effective rights of individuals and constitutes
an essential aspect of democratic accountability.49 The ECJ has attributed special
importance to the principle guaranteed by Article 47 from an early stage, in
demanding that individuals should enjoy the opportunity to assert their rights
through the courts as indeed required by the notion of judicial control of the
executive that underlies the constitutional traditions common to the Member
45 Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural
rights of suspected or accused persons in criminal proceedings, OJ C 295, 4.12.2009, p. 1-3.
46 Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on
the right to interpretation and translation in criminal proceedings, OJ L280, 26.10.2010, p. 1-7.
47 Directive 2012/13/EU of the European Parliament and of the Council on the right to
information in criminal proceedings, OJ L 142, 01.06.2012, p. 1-7.
48 The first part of the measure (right to legal advice) is already adopted (Directive 2013/48/EU
of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in
criminal proceedings and on the right to have a third party informed upon deprivation of liberty and
to communicate with third persons and with consular authorities while deprived of liberty, OJ L 294,
06.11.2013, p. 1-12). The second part (right to legal aid) implies delicate negotiations, due to the impact
on national budget of the Member States.
49 L. Cariolou, Commentary of Article 47 of the Charter of Fundamental Rights of the European Union,
EU Network of Independent Experts on Fundamental Rights (June 2006), p. 359.
European (criminal) law v. national (criminal) law – a two way street 59
States.50 "Individuals are entitled to effective judicial protection of the rights they
derive from the Community legal order, and the right to such protection is one of
the general principles of law.51
The second paragraph of Article 47 guarantees the right to a fair trial (a fair
hearing in all proceedings of criminal, civil and administrative nature). It provides
that all its guarantees are to be respected upon the violation of rights and freedoms
conferred by EU law.52 The principles of ‘the rule of law’ and ‘due process’ are at
the core of the substantive protection of the individual against state power and as
such form an ancient achievement of the law. They are found in the Magna Carta
of 1215 and have been ever since widely included in different constitutions.53
Judicial cooperation in criminal matters is based on the implementation by the
Member States of the principle of mutual recognition.54 This principle was
recognized by the Tampere European Council as the “cornerstone of judicial
cooperation in both civil and criminal matters”. It entails quasi-automatic
recognition and execution of judicial decisions among Member States, as if the
executing judicial authority was implementing a national judicial order.
Mutual recognition principle alone is difficult to impose to Member States of
the EU without another principle, which can make mutual recognition possible:
mutual trust. Mutual recognition of judicial decisions involves criminal justice
systems at all levels. It only operates effectively if there is trust in other justice
systems, if each person coming into contact with a foreign judicial decision is
confident that it has been taken fairly. An area of freedom, security and justice
means that European citizens should be able to expect safeguards of an equivalent
standard55 throughout the EU. More effective prosecution achieved by mutual
recognition must be reconciled with respect for rights.
These two principles have given during the years a strong impetus to judicial
cooperation in criminal matters within the European Union, starting with the
50 Case C-222/84, Johnston, [1986] ECR 1651; Case C-222/86, Heylens, [1987] ECR 4097; Case
C-97/91, Oleificio Borelli, [1992] ECR I-6313; Case C-224/01, Kobler v. Republik Osterreich, [2003] ECR
I-10239.
51 Case C-222/84, Johnston, [1986] ECR 1651, para. 18; Case C-50/00 P, Union de Pequenos
Agricultores v. Council, [2002] ECR I-6677, para. 39; Case C-263/02 P, Commission v. Jego-Quere &Cie SA,
[2004] ECR I-3425, para. 29.
52 Case C-85/76, Hoffmann-La Roche v. Commission, [1979] ECR 461.
53 L. Cariolou, Commentary of Article 47 of the Charter of Fundamental Rights of the European Union,
supra, p. 367.
54 A. Atti, La decisione quadro 2002/584/GAI sul mandato d’arresto europeo: la Corte di giustizia
“disolve” I dubbi sulla doppia incriminazione, Dirrito pubblico comparato ed europeo (2007), n. 3, p. 114.
55 Commission Communication, Towards an Area of Freedom, Security and Justice: “procedural
rules should respond to broadly the same guarantees, ensuring that people will not be treated
unevenly according to the jurisdiction dealing with their case” and “the rules may be different
provided that they are equivalent”. COM(1998)459, 14 July 1998.
60 NOREL NEAGU
European Arrest Warrant legislative instrument,56 and continuing with the
improved cooperation in the field of recognition of custodial and non-custodial
sentences and transfer of convicted persons.57
The specialty principle is considered an important guarantee in judicial
cooperation in criminal matters, stating that a person who has been surrendered
may not be prosecuted, sentenced or otherwise deprived of liberty for an offence
committed prior to his or her surrender other than that for which he or she was
surrendered. That rule is linked to the sovereignty of the executing Member State,
which may waive the application of the specialty rule.
In the vast majority of national and international instruments, the ‘ne bis in
idem’ principle is to be understood as a rule forbidding further prosecution/
judgment/conviction for the same offence/conduct/act.58 In EU law, the principle
is drafted in Article 50 of the Charter of Fundamental Rights of the European
Union,59 and also in Article 54 of the Convention Implementing the Schengen
Agreement.60
4. European (Criminal) Law Influence over National (Criminal) Law
European criminal law is a blending of principles stemming from common
traditions of the Member States, standing at the crossroads between common law
and continental law and borrowing from both. European criminal law is not only
heavily influenced by the national criminal law of the Member States, but aids also
to the constant evolution of the latter.
56 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest warrant
and the surrender procedures between Member States, OJ L 190, 18.7.2002, p. 1–20.
57 Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the
principle of mutual recognition to judgments in criminal matters imposing custodial sentences or
measures involving deprivation of liberty for the purpose of their enforcement in the European
Union, OJ L 327, 5.12.2008, p. 27-46; Council Framework Decision 2008/947/JHA of 27 November
2008 on the application of the principle of mutual recognition to judgments and probation decisions
with a view to the supervision of probation measures and alternative sanctions, OJ L 337, 16.12.2008,
p. 102-122.
58 J.A.E. Vervaele, Joined cases C-187/01 and C-385/01, ‘Criminal Proceedings against Huseyin Gozutok
and Klaus Brugge’, Judgment of the Court of Justice of 11 February 2003, Full Court [2003] ECR 1–5689,
(2004) 41 CMLR 795, p. 802.
59 According to Article 50 of the Charter of Fundamental Rights of the European Union,
‘No one shall be liable to be tried or punished again in criminal proceedings for an offence for
which he or she has already been finally acquitted or convicted within the Union in accordance with
the law.’
60 Article 54 of the Convention Implementing the Schengen Agreement of 14 June 1985 (‘the
CISA’) provides as follows:
‘A person whose trial has been finally disposed of in one Contracting Party may not be
prosecuted in another Contracting Party for the same acts provided that, if a penalty has been
imposed, it has been enforced, is actually in the process of being enforced or can no longer be
enforced under the laws of the sentencing Contracting Party.’
European (criminal) law v. national (criminal) law – a two way street 61
European Union influence over national criminal law can be summarized in
three directions: policy making, legislation drafting and judicial interpretation
through mandatory case law.
4.1. Policy making
Policy making is not to be underestimated as regards its influence over
criminal law. European criminal law policy was informal at the beginning of the
90’, without any mention of it in the European legislation. Still, from the meeting of
heads of states and government in the European Council have stemmed several
policy programmes in the field of Justice and Home Affairs, which contain guiding
rules to adopt criminal law legislation at European level according to the said
programmes. Following the Lisbon Reform of the Treaties, this informal guidance
was inserted in the legislation. Thus, according to Article 68 TFUE,
“The European Council shall define the strategic guidelines for legislative and
operational planning within the area of freedom, security and justice.”
Also, according to Article 67 par. (1) and (3),
“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.
(...)
3. The Union shall endeavour to ensure a high level of security through measures to
prevent and combat crime, racism and xenophobia, and through measures for coordination
and cooperation between police and judicial authorities and other competent authorities, as
well as through the mutual recognition of judgments in criminal matters and, if necessary,
through the approximation of criminal laws.”
Several programmes were adopted in the meetings of the European Council,
giving impetus and direction in the area of freedom, security and justice, usually
for a 5 years period.
The first adopted programme was at Tampere, in 1999.61 The main objective of
the programme was to establish the area of freedom, security and justice in an
interval of 5 years. The implementation of the programme was closely monitored
by the European Commission.62 Even if there were some successes in pursuing the
proposed goal, the original ambition was limited by institutional constraints, and
sometimes also by a lack of sufficient political consensus. A new programme was
61 See for a detailed analysis the Communication from the Commission to the Council and the
European Parliament - Area of Freedom, Security and Justice: Assessment of the Tampere programme
and future orientations {SEC(2004)680 et SEC(2004)693}, COM/2004/0401 final.
62 A Commission Communication to the Council and Parliament "Scoreboard to review progress
on the creation of an area of freedom, security and justice in the European Union" has been presented
every six-month since the Tampere European Council. The references are as follows: COM(2000)167
final, 24.3.2000; COM(2000)782 final, 30.11.2000; COM(2001)278 final, 23.05.2001; COM(2001)628 final,
30.10.2001; COM(2002)261 final, 30.5.2002; COM(2002)738 final, 16.12.2002; COM(2003)291 final,
22.5.2003; COM(2003)812 final, 30.12.2003.
62 NOREL NEAGU
established in 2004, with broader ambitions, given the delicate political context
offered by the terrorist attacks of 2001 and 2004.
The multiannual Hague Programme, adopted at the European Council of
4 and 5 November 2004, sets out 10 priorities for the Union with a view to
strengthening the area of freedom, security and justice in the next five years.63
Although much more successful than the Tampere Programme, the Hague
Programme proposed several long lasting challenges to be tackled, needing a long
term action,64 and thus its main issues were not fully addressed during its
implementation. A new and very ambitious programme was set in place in 2010.
The Stockholm programme, five-year strategic plan for 2010-2014, represented
the most relevant cooperation framework within the EU to date.65 The Stockholm
Programme sets out the European Union’s priorities for the area of justice, freedom
and security for the period 2010-2014. Building on the achievements of its
predecessors the Tampere and Hague programmes, it aimed to meet future
challenges and further strengthen the area of justice, freedom and security with
actions focusing on the interests and needs of citizens.66 This programme was so
ambitious and far reaching, that it triggered discussions on its successor, the
conclusion being that it is necessary to fully implement the objectives of the
Stockholm programme for the period 2015-2020 and not to come up with a new
programme with new objectives. The period 2010-2015 was the period with the
most adopted legislative proposals in the field of criminal law and criminal
procedural law.
To conclude, policy making in the form of European Council meetings at the
level of heads of states and governments is a major influence over national criminal
law, establishing the directions to follow, negotiating political compromise and
63 The priorities were: strengthening fundamental rights and citizenship; anti-terrorist measures;
defining a balanced approach to migration; developing integrated management of the Union’s
external borders; setting up a common asylum procedure; maximising the positive impact of
immigration; striking the right balance between privacy and security while sharing information;
developing a strategic concept on tackling organised crime; a genuine European area of justice;
sharing responsibility and solidarity.
64 Communication from the Commission to the Council, the European Parliament, the European
Economic and Social Committee and the Committee of the Regions - Justice, freedom and security in
Europe since 2005: an evaluation of The Hague programme and action plan {SEC(2009) 765 final}
{SEC(2009) 766 final} {SEC(2009) 767 final}, COM/2009/0263 final.
65 The Stockholm Programme – An open and secure Europe serving and protecting citizens
[Official Journal C 115 of 4.5.2010.
66 In order to provide a secure Europe where the fundamental rights and freedoms of citizens are
respected, the Stockholm Programme focuses on the following priorities: Europe of rights; Europe of
justice; Europe that protects; Access to Europe; Europe of solidarity; Europe in a globalised world. An
important accent was placed on cooperation between judicial authorities and the mutual recognition
of court decisions within the EU in criminal cases and also on fight against cross-border crime, such
as: trafficking in human beings; sexual abuse, sexual exploitation of children and child pornography;
cyber crime; economic crime, corruption, counterfeiting and piracy; drugs.
European (criminal) law v. national (criminal) law – a two way street 63
ultimately approving the legislative packages proposed. For the common citizen,
though, more tangible than policy making is the European legislation already
adopted (in force), which needs to be implemented in the national legislation.
4.2. Drafting legislation
The most influential legislative act over national criminal law is the Charter of
Fundamental Rights of the European Union. The Charter of Fundamental Rights of
the EU brings together in a single document the fundamental rights protected in
the EU. The Charter is consistent with the European Convention on Human
Rights adopted in the framework of the Council of Europe: when the Charter
contains rights that stem from this Convention, their meaning and scope are the
same.67 There are two differences: firstly, the Charter can be invoked during the
criminal trial in a national court and a request for a preliminary ruling may be sent
to the European Court of Justice for interpretation on the provisions of the Charter,
while the Convention can be invoked in front of the European Court of Human
Rights after all domestic available effective remedies have been used. Secondly, the
Charter can be invoked only concerning national provisions transposing EU law, 68
while the Convention can be invoked directly against national legislation.
In the period 2000-2015 several legislative acts in the field of substantial
criminal law and also criminal procedure have been drafted and implemented. In
the field of substantial criminal law there are two categories of legislative acts:
those adopted in the field of combating transnational organized crime69 [according
to Article 83 (1) TFEU], and those adopted for ensuring effectiveness of European
Union’s policies in already harmonized fields70 [according to Article 83(2) TFEU].
67 http://ec.europa.eu/justice/fundamental-rights/charter/index_en.htm.
68 See ECJ, C-45/14, ayant pour objet une demande de décision préjudicielle au titre de l’article
267 TFUE, introduite par la Fvárosi Ítéltábla (Hongrie), par décision du 21 janvier 2014, parvenue à
la Cour le 27 janvier 2014, par. 20-25.
69 Council Framework Decision 2000/383/JHA of 29 May 2000 on increasing protection by
criminal penalties and other sanctions against counterfeiting in connection with the introduction of
the euro, O.J. 2010, L140/1; Council Framework Decision 2008/913/JHA of 28 November 2008 on
combating certain forms and expressions of racism and xenophobia by means of criminal law, O.J.
2008, L 328/55; Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism,
O.J. 2002, L 164/3; Council Framework Decision 2004/757/JHA of 25 October 2004 laying down
minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit
drug trafficking, O.J. 2004, L 335/8; Council Framework Decision 2004/68/JHA of 22 December 2003
on combating the sexual exploitation of children and child pornography, O.J. 2004, L 13/44; Council
Framework Decision 2001/500/JHA of 26 June 2001 on money laundering, the identification, tracing,
freezing, seizing and confiscation of instrumentalities and the proceeds of crime, O.J. 2001, L 182/1;
Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing
and combating trafficking in human beings and protecting its victims, and replacing Council
Framework Decision 2002/629/JHA, O.J. 2011, L 101/1; Council Framework Decision 2008/841/JHA
of 24 October 2008 on the fight against organised crime, O.J. 2008, L 300/42.
70 Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009
providing for minimum standards on sanctions and measures against employers of illegally staying
64 NOREL NEAGU
Also, an ambitious roadmap was developed recently in respect to criminal
procedural rights for the accused or the victim,71 and also in respect to judicial
cooperation72. The legislation adopted at European Union level does not entail
direct effect, but an obligation for the Member States to implement it. There is an
obligation of result, leaving the means to do it to each national jurisdiction,
according to its own tradition.
4.3. Case law
Apparently, there is no influence of the case law of the European Court of
Justice over national criminal law. The European Court of Justice has no
jurisdiction in criminal trials, and it is not supervising the decisions taken by
national criminal courts. However, this influence exists and manifests itself in the
form of judicial decision given by the court in preliminary rulings.
This is a very powerful instrument, inserted in Article 267 TFEU.73 The
decisions of the Court are mandatory as regards the interpretation of the Treaties
and of the secondary legislation throughout the whole territory of the European
third-country nationals, O.J. 2009, L 168/24; Directive 2008/99/EC of the European Parliament and of
the Council of 19 November 2008 on the protection of the environment through criminal law , OJ L
328, 6.12.2008, p. 28–37; Directive 2014/57/EU of the European Parliament and of the Council of
16 April 2014 on criminal sanctions for market abuse, OJ L 173, 12.6.2014, p. 179–189.
71 Directive 2012/13/EU of the European Parliament and of the Council on the right to
information in criminal proceedings, OJ L 142, 01.06.2012, p. 1-7; Directive 2013/48/EU of the
European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in
criminal proceedings and on the right to have a third party informed upon deprivation of liberty and
to communicate with third persons and with consular authorities while deprived of liberty, OJ L 294,
06.11.2013, p. 1-12.
72 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest warrant
and the surrender procedures between Member States, OJ L 190, 18.7.2002, Council Framework
Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual
recognition to judgments in criminal matters imposing custodial sentences or measures involving
deprivation of liberty for the purpose of their enforcement in the European Union, OJ L 327, 5.12.2008,
p. 27-46; Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the
principle of mutual recognition to judgments and probation decisions with a view to the supervision
of probation measures and alternative sanctions, OJ L 337, 16.12.2008, p. 102-122; Directive
2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European
Investigation Order in criminal matters, OJ L 130/1, 01.05.2014.
73 According to Article 267, The Court of Justice of the European Union shall have jurisdiction to
give preliminary rulings concerning: a) the interpretation of the Treaties; (b) the validity and
interpretation of acts of the institutions, bodies, offices or agencies of the Union, Where such a
question is raised before any court or tribunal of a Member State, that court or tribunal may, if it
considers that a decision on the question is necessary to enable it to give judgment, request the Court
to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal
of a Member State against whose decisions there is no judicial remedy under national law, that court
or tribunal shall bring the matter before the Court. If such a question is raised in a case pending before
a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the
European Union shall act with the minimum of delay.
European (criminal) law v. national (criminal) law – a two way street 65
Union, not only in the case pending, but also in all subsequent cases were an
identical issue may arise.
Several decisions adopted by the court have significantly influenced the
relationship between European law and national law, hence also criminal law.
Starting from asserting fundamental principles stemming from the Treaties (which
were not manifestly there at the time), such as primordiality and direct effect of
European Union law,74 than moving criminal law jurisdiction from the third pillar
to the first in 2005-2007,75 or asserting the same effects of a Framework Decision
with a Directive,76 the Court has constantly given impetus to interpretation of
European Law towards harmonization and effectiveness. There is also a manifest
influence of the ECJ’s decisions in the field of judicial cooperation in criminal
matters, starting from the interpretation of the ne bis in idem principle,77 moving to
ensuring the effectiveness of the European arrest warrant,78 and also giving effect
to the specialty principle.79
5. Conclusions
European criminal law is an emerging field, both influencing and being
influenced by national criminal law. European (criminal) law draws its roots from
constitutional principles stemming from common traditions of the Member States.
Also, European Union instruments are highly influential over national criminal
law, through policy making, legislative instruments and interpreting case law.
The influence coming towards and from European criminal law is highly
positivistic in approach. There is no dogmatic influence as such, given the diversity
of traditions of the Member States in the field of criminal law. It would be a
tremendous mistake to try to impose a common law approach and justification to
national legislations of continental origin, or continental dogmatic to common law
jurisdictions. The European Union is only setting common goals to be achieved in
the field of (positivistic) criminal law, and leaving to each national jurisdiction the
possibility to adapt the EU legal instruments in its national law according to its
74 Case 26/62 Van Gend en Loos, [1963] ECR 1; Case 6/64, Costa v. ENEL, [1964] ECR 585.
75 Case C-176/03 Commission/Council [2005] ECR I-07879; Case C-440/05 Commission/Council
[2007], ECR I-9097.
76 Case C-105/03, Pupino, [2005] ECR I-05285.
77 Cases C-187/01 and C-385/01 Hüseyn Gözütok şi Klaus Brugge, [2003] ECR I-1345; Case
C-469/03 Filomeno Mario Miraglia, [2005] ECR I-2009; Case C-436/04 Leopold Henri Van Esbroeck [2006]
ECR I-2333; Case C-288/05 Kretzinger, [2007] ECR I-06441; Case C-367/05 Kraaijenbrink, [2007] ECR
I-06619; Case C-467/04 Gasparini [2006] ECR I-9199; Case C-491/07 Turansky, [2008] ECR I-11039; Case
C-150/05, Van Straaten, [2006] ECR I-9327; Case C-261/09, Mantello, [2010] ECR I-11477.
78 Case C-303/05, Advocaten voor de Wereld VZW v Leden van de Ministerraad, [2007] ECR I-3633;
Case C-123/08 Wolzenburg [2009] ECR I-9621; Case C-396/11, Radu, ECLI:EU:C:2013:39; Case
C-399/11, Stefano Melloni, ECLI:EU:C:2013:107; Case C-66/08, Kozłowski, [2008] ECR I-6041; Case
C-42/11, Joao Pedro Lopes Da Silva Jorge, ECLI:EU:C:2012:517; Case C-306/09, I.B., [2010] ECR I-10341.
79 Case C-192/12 PPU, Melvin West, ECLI:EU:C:2012:404; Case C-388/08 PPU, Leymann şi
Pustovarov, [2008] ECR I-8993; Case C-168/13 PPU, Jeremy F., ECLI:EU:C:2013:358.
66 NOREL NEAGU
traditions. Also, only the most common principles stemming from common
traditions of the Member States are taken in consideration at European Union
level. The motto of the European Union, “united in diversity”, can be applied
successfully also in respect to criminal law.
To conclude, one can imagine European versus national criminal law as a two
way street, where each turn of one of the traffic participants shall necessarily
influence the actions of the other one.
References
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[2] L. Cariolou, Commentary of Article 47 of the Charter of Fundamental Rights of the
European Union, EU Network of Independent Experts on Fundamental Rights (June 2006);
[3] M. Fletcher, R. Loof, B. Gilmore, EU Criminal Law and Justice, Edward Elgar
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[4] T.-I. Harbo, The Function of the Proportionality Principle in EU Law, 16
EUROPEAN LAW JOURNAL (2010);
[5] A. Klip, European Criminal Law, an Integrative Approach, Intersentia,
Antwerp-Oxford-Portland, 2009;
[6] H. Labayle, L’application du titre VI du Traité sur L’Union européenne, RSC,
January-March 1995;
[7] J.S. Mill, On Liberty and Other Essays (Oxford University Press 1991, orig. 1859);
[8] N. Neagu, The European Public Prosecutor’s Office – Necessary Instrument or
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[9] W.A. Schabas, Lex mitior, http://humanrightsdoctorate.blogspot.ro/2010/08/lex-
mitior.html;
[10] J.A.E. Vervaele, Joined cases C-187/01 and C-385/01, ‘Criminal Proceedings
against Huseyin Gozutok and Klaus Brugge’, Judgment of the Court of Justice of 11
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