Indirect influence of community law over national criminal law

AuthorMirela Gorunescu
Pages30-39

Mirela Gorunescu. Associate professor, Ph.D., Police Academy „Alexandru Ioan Cuza” Bucharest (e-mail: mire_gor@yahoo.com).

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1. Criminal Law at Community Level

The Romanian doctrine stated that criminal matters may not be subject to legislative unification at European level1, the criminal law is considered an expression of national sovereignty of each Member State, attribute that does not disappear by joining this organization2. Member States do not abdicate their sovereignty as regards the criminalization and punishment of acts dangerous to the legal order, criminal law and criminal process remaining in the national jurisdiction.

However, reality has shown the need for further approximation of national provisions in the Member States to face effectively the threat represented by the phenomenon of crime at the European and worldwide level3.

In this way, from a stage characterized by strict intergovernmental cooperation in this area led to the promotion of ideas, very bold, as is the creation of an "European criminal judicial area"4, of judicial cooperation in criminal cases, generated by the need to compensate with police measures freedom of movement for those who engage in criminal behavior.

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By the Maastricht Treaty was created cooperation in justice and home affairs (JHA), which was Pillar III of EU and which aimed the facilitation of dialogue, mutual assistance and cooperation between police, customs and justice in the Member States.

The relevant provisions are found in Title VI of the Maastricht Treaty. Article K1 provided that, in order to achieve the objectives of the Union, in particular the free movement of persons, and without prejudice to the powers of the European Community, Member States consider the following areas as matters of common interest: (1) asylum policy; (2) rules on crossing the external borders of the Member States by persons and exercising control over the crossings; (3) immigration policy and policy towards third country nationals: (a) conditions of entry and movement by the nationals of the third countries on the territory of Member States; (b) residence conditions of the nationals of third countries on the territory of Member States, including family reunion and access to employment; (c) the fight against illegal immigration, residence and employment of third country nationals in Member States; (4) combating drugs; (5) fight against the international dimensions of fraud; (6) judicial cooperation in civil matters; (7) judicial cooperation in criminal matters; (8) customs cooperation; (9) police cooperation in preventing and combating 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 the European Police Office (Europol).

In this way, was acquired a centralized activity in the field of justice and home affairs, particularly in the field of police and judicial cooperation and some Community institutions are involved in this field (European Parliament, Commission and even the European Court of Justice).

However, a series of intergovernmental issues were maintained: the principle of unanimity (Art. K4 subparagraph 3); ineffective involvement of some Community institutions (the main being given to the JHA Council, with limited involvement of Parliament and a near absence Court of Justice); inefficient legal instruments used by Pillar III (conventions, joint actions and common positions).

The Treaty of Amsterdam has strengthened cooperation in justice and home affairs5, four major changes being made in this area: the identification of objectives clearly outlined; the division of Pillar III Maastricht in two parts, a new Pillar III being created; further centralization of JHA cooperation by integrating the Schengen aquis in Community law; the promotion of flexibility and closer cooperation. Regarding the objectives, it is noticed the formulating of a high impact general objective – to achieve a common area of freedom, security and justice (Articles 2 and 29 of the Treaty).

It is actually the moment when the police and judicial cooperation in criminal matters cease to cover only counterbalance of the border control elimination. The Treaty of Amsterdam divided Pillar III into two parts, creating a new Pillar III, a reviewed one called "Police and Judicial Cooperation in Criminal Matters (PJCC)". Conclusively, asylum policy, provisions regarding the crossing of external borders, immigration policy and policy towards third country`s nationals, inclusive the legal cooperation on civil and criminal issues - have been assigned to Community Pillar, specifically in the chapter newly introduced in the EC Treaty [concerning visas, asylum, immigration and other policies on the free movement of persons]. The remaining areas of Pillar III were contained in the new, smaller, chapter "Provisions on police and judicial cooperation in criminal matters", Chapter VI of the EU Treaty, Articles 29 - 42, which are - in a totally surprising way - under the jurisdiction of the European Court of Justice.

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In compensation, some Community elements were introduced in Pillar III: The Commission has broader initiative rights, although not exclusively; the European Parliament is consulted (except in relation to common positions); the possibility to take by qualified majority measures to implement the decisions; to the Court of Justice were recognized some skills in JHA; article 42 TEU (egg. K9) maintained the "bridge"6 that allows the transfer of powers from Pillar III to Pillar I.

The Treaty of Nice (entered into force in 2003) has revised some provisions on closer cooperation on justice and home affairs. For example, it has defined the minimum number of Member States, it has abolished the right of veto to any member. At the same time, it was adopted the Charter of Fundamental Rights of the European Union7. The Treaty of Nice provided expressly the possibility of cooperation in the field of justice, "to enable the Union to develop more quickly in an area of freedom, security and justice" (art. 40 TEU)8 and included EUROJUST in Treaty on European Union (article 31 - provides, among others: "The Council encourages cooperation through EUROJUST ...)

The Treaty of Lisbon, as the newest project registered at Community level, and the Treaty establishing a Constitution for Europe, as well, establishes the waiving of an EU based on three pillars. All fields belonging to JHA will be centralized in Title V, entitled "Area of freedom, security and justice" of the Treaty on the functioning of the European Union (TEU), in art. 64 to 89, divided into five chapters. The consequences that could be determined by the adoption of the Lisbon Treaty in this form, aim, firstly, to eliminate conflicts between the three pillars of the Community concerning the adoption of legal instruments9. At the same time, it will be operated a communitarization in the field of police and judicial cooperation in criminal matters which generates some very important changes: the introduction in this area of the codecision procedure and extending the powers of the European Parliament; possibility to use first Pillar's legal instruments, more efficient than current tools used by Pillar III (directives and regulations); extending the powers of the Court of Justice, and the incidence community principles (supremacy of Ec law) and waiving the rule of reciprocity.

Through all these elements the Lisbon Treaty aimed at correcting four weaknesses in the institutional field reported today in current Pillar III: complexity (through the abolition of the three pillars structure); low effectiveness of decision making (by introduction the majority voting instead of unanimous); reduced effectiveness of the legal instruments in criminal matters (by creating the possibility to use regulations, directives and full jurisdiction of the Court of Justice); legitimacy deficit (using the co-decision procedure, extending the jurisdiction of the Court of Justice and increasing the role of national parliaments)10.

2. Unifying Trends in the Field of Criminal Law

On this background of deepening and increasing complexity at Community level determined a spectacular evolution of the relationship between Community Law and Criminal Law. From the initial stage of purely intergovernmental cooperation between Member States,Page 33 stages have gone increasingly bold: harmonization of laws (derived from the need to harmonize stems from the contribution to establish common criteria relating to public order encourage the creation of a spirit of mutual confidence favorable to the area of freedom, security and justice11 and is an effective instrument to combat the obstacle of double incrimination met often in the field of cooperation in its traditional dimensions12, assimilation of some social values (eg in the protection of the euro against counterfeiting).

The latest trend is to unify the criminal law of the EU member states which is indicated to represent also the most advanced method of the European penal integration, even if a perfect unification on an European level, which would not assume just strictly identical rules (normative unification) but also an unified control (jurisdictional unification), is considered to be an utopia. Concrete ways in which unification can be achieved are: spontaneous unification (in case of convergence) and hybridization (in case of divergence)13.

Such unification trends are noted also in the following cases: the Corpus Juris Project (between 1995 and 1996) to develop a number of guiding principles on the protection through criminal law of financial interests...

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