EU Criminal Law and Policy

Values, Principles and Methods

Joanna Beata Banach-Gutierrez, Christopher Harding, Joanna Beata Banach-Gutierrez, Christopher Harding

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781138614048
• eBook ISBN: 9781317427605
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

The EU now possesses a clear legal basis for taking action on criminal law matters and steering the policy and practice of Member States in relation to crime and criminal law. However, for what is now an important area of law, there remains a striking absence or uncertainty regarding its theoretical basis, its legitimacy and its conceptual vocabulary.

This book offers a review of the significance of EU criminal law and crime policy as a rapidly emerging phenomenon in European law and governance. Bringing together an international set of contributors, the book questions the nature, role and objectives of such 'criminal law', its relationship with other areas of EU policy and law, and the established rules of criminal law and criminal justice at the Member State level.

Taking up such subjects as the application of criminal law across national boundaries and in the broader European context, effective enforcement, and the working out of a new European policy, the book helps to structure an increasingly significant subject in law which is still finding its direction. The book will be of great use and interest to researchers and students of EU law, criminal justice, and criminology.

1. EU criminal law as an emergent regime: editorial introduction

Joanna Beata Banach-Gutierrez and Christopher Harding

EU criminal law as a contrapuntal entity

Approaching a subject (or subjects, depending on how inter-related we may see them) such as EU criminal law and crime policy, we may be reminded of the lines: ‘something is happening here, but you don’t know what it is, do you?’¹ and address that comment to the EU and assorted policy-makers and legal experts when they now talk and write about that subject. Over the past thirty years, and perhaps even longer, something has happened in the context of the European Community and Union, taking shape incrementally and in various forms as EU crime policy and criminal law, but without any explicit statement in a Treaty provision or other constitutional instrument of a plan, purpose, or clear delineation of its scope and reach.² There is, sure enough, an increasing sense of something significant bubbling away and ready to burst out into the open, especially at such moments when the European Arrest Warrant became a reality, or the idea of a European Public Prosecutor threatened to do so. But basic questions remain without a clear answer: what does it mean more precisely to talk about an EU crime policy and criminal law? In what sense is this matter ‘European’, in what sense are we talking about ‘crime’, and in what sense and in which forms can we talk about either ‘policy’ or ‘law’?³ In more practical terms, in what way may this new, emergent entity be mapped onto the existing space of national, Member State criminal law, criminal justice and penal orders, with their deep legal and cultural heritage? And prospectively, what are the direction, purpose and goals of this process? Whereas the European Single Market has a long-standing constitutional statement and treaty foundation, EU criminal law seems to reside in a conceptually amorphous territory of ‘justice and home affairs’ and ‘freedom, security and justice’. The student new to the subject might justifiably feel that it was an enterprise set up to tease and obfuscate – ‘yes, this is all very important, but we cannot tell you very well how it is happening, or where it is going.’

The papers brought together in this collection are part of an attempt to inform our understanding of this uncertain and haphazard process. They do so, it may be argued, by largely drawing upon what is there first of all at the national level – concepts, principles and strategies of criminal law and criminal justice – and then what may have emerged therefrom as a wider European heritage and culture of criminal law, as a more immediate basis for an integrated EU project of crime policy and criminal law: thus, from the national, to the more broadly European, to the more specifically European Union. As such, the following contributions may be read in one way as an exercise in Comparative European Criminal Law, since the prevailing methodology of the discussion is comparative, then deductive. That kind of reading of criminal law history and development is clear enough for example in the case of the ultima ratio principle⁴ – as an urging of parsimony in the use of criminal law and criminal law sanctions, using the latter as a last resort, as traced through the preferred policy option of a number of continental European legal systems, through to a collection of twentieth-century ‘European’ principles and legal instruments, to emerge then, as a recent example, in an EU policy statement of 2011.⁵ As another example, in a way that overlaps with ultima ratio as a theme of discussion, there has also over the last fifty years or more been a more substantive debate about the appropriate use of criminal law in relation to business and financial activity⁶ and this has been especially relevant to some of the main lines of European integration. Again, it is possible to see the beginnings of such discussion at a national level as a debate on matters often described in criminological terms as ‘white collar crime’. A comparison of national approaches to this question then fed into a broader European dialogue, with consequences at that level, whether in the form for instance of transnational co-operation to deal with money laundering⁷ or, rather differently, the forging of a supranational non-criminal law but still repressive system of regulation to deal with competition infringements.⁸ In terms of policy development and legal history, this is a natural progression, from a national to a supranational, transnational or international level. The methodology is one of extrapolation of supranational (European) solutions from the experience and models of national criminal law by means of comparative evaluation and theoretical testing. The outcome then is something that is worked out from but still usually operating on two tiers, rather like a musical fugue, as something which is polyphonic or contrapuntal in nature.

To use the metaphor of a fugue may be illuminating, in both its senses, musical and psychiatric. A closer examination of much that now counts as EU criminal law may suggest something like a number of themes or melodies being played independently but at the same time, and brought together by a common harmony. This is a complex notion, but may serve to demonstrate and understand the actual complexity of a normative ordering, involving different levels of activity (national and European, at least), some commonality of principle and substance and underlying inspiration, appearing in different forms at those levels, but brought and held together in a single normative framework. In this way, we can appreciate then the ‘contrapuntal’ character of an instrument such as an EU directive, with both an EU and a national application and differently formulated in those contexts, but representing overall a single and harmonised normative entity. How well it works as such, like the fugue as a musical arrangement, will depend in the end on the harmonious impact of the piece as a whole. In its (now less used) psychiatric sense, the fugue is literally a mental flight into another realm of perception and experience, with some amnesia about how that has happened. That, in a more critical way, may serve as a description of the evolution of EU criminal law – arriving in a different place, but with an imperfect memory or knowledge of the route to that destination. Thus in dictionary definition terms the subject of EU criminal law may first be metaphorically described as ‘a melody or phrase introduced by one part, successively taken up by others, and developed by interweaving the parts, gradually built into a complex form, having distinct stages of development and a marked climax at the end’; and, in more critical terms, as ‘a loss of awareness of identity, coupled with a flight from one’s usual environment, beginning a new life with a loss of memory of the former life.’ In this way the metaphor may serve to illuminate both the more positive and some of the negative characteristics of EU criminal law.

The positive dimension of EU criminal law: harmonious melodies

An important aspect of the subject, which needs constantly to be borne in mind, is that EU criminal law and crime policy take form and operate necessarily at two levels (in some ways, but not entirely, like a federal criminal law).⁹ Within this perception, it is doubtful whether there is much that is very new about EU criminal law. Has the EU policy-making and legal order formulated much in the way of novel concepts and ideas about criminal liability, types of procedure or substantive offences? Little comes to mind, apart from the work on relational processes, necessary in the context of a two-tier and collective enterprise of establishing and applying norms. There may be some novelty in the principles and procedures of harmonisation and norm application – the emergence of the strategies of subsidiarity and mutual recognition, for instance – but this of course is true of much of the project of European integration. A good part of the essential constitutional and legal business of the latter has been working out the relationship between the European and the national. In that way, much of the history to date of EU criminal law has been the evolution of form and method, from ‘conventions’, to ‘framework decisions’, to ‘directives’, from the intergovernmental to the supranational. Recognising that fact helps to explain the difficulty in bringing together the different epistemological communities of national criminal lawyers and European lawyers. The former have struggled to grasp the technicalities of a new relational and constitutional law (‘direct effect’, ‘indirect effect’, ‘subsidiarity’, ‘mutual recognition’? Je ne comprends pas).¹⁰ The latter, on the other hand, have not, in terms of provenance and experience, been so familiar with the culture and mindset of criminal law. And when ‘EU criminal lawyers’ (a fair description of the contributors to this work) appear on the scene, what kind of species are these experts?¹¹ Or, taking a view of this question inside looking out, as EU criminal lawyers, where have we come from and where are we going?

But there is much that is positive and progressive in this sometimes challenging and difficult experience and learning process. Most evidently there are the benefits of comparative analysis, arising from a discourse based on an exchange of experiences and notes, aimed at the evolution of a good common approach to policy development and methods of regulation. This has for long been an important legal goal within the ongoing project of European integration,¹² based on an instinctive understanding of the value and richness of a diverse cross-European heritage. In this way, much of what now counts as European law, whether intergovernmental in its normative character (such as Council of Europe instruments) or supranational (as in the case of the European Community and now the Union), derives from an itinerary of comparative evaluation, and consideration of the respective merits of maintaining diversity or achieving a common position and method. This reading of the evolution and character of ‘EU criminal law’ is the theme in a number of the contributions in this collection, examining for instance the longer history of European criminal law and penal heritage (Utrat-Milecki, Chapter 3, and Banach-Gutierrez, Chapter 2) or the resilience of diversity in approach (the ‘penal rainbow’) as a characteristic of European criminal law and crime policy (Banach-Gutierrez and Harding, Chapter 4).

Looking at the subject through this kind of lens also enables some reflection on what may be distinctively European in this field, and whether it is justifiable to attribute that extra layer of meaning to the vocabulary of European or EU criminal law. Although it was not part of this project to directly compare European and non-European responses to crime, inevitably some such broader comparisons emerged from the discussion in some of the contributions, or at least may be teased from some reading between the lines. One such implied comparison involves the acceptance or otherwise of ‘negotiated’ criminal justice through processes such as plea bargaining, strongly characteristic of US practice, or alternatively resistance to that approach, as may be found in some continental European legal orders (as discussed by Günsberg, Chapter 10). Comparisons between more aggressive prosecutorial practices and a greater readiness to employ catch-all conspiracy offences and use a harsh system of imprisonment in the US system, and a more dogmatic assertion of defence rights and the importance of the trial and appeal process in Europe have become more frequent.¹³ Such discussion lies to a large extent beyond the brief of an examination of EU criminal law, but the latter does inevitably draw upon the impact of common European well-springs of principle and policy: ultima ratio (Lahti, Chapter 5), proportionality, subsidiarity and a rights-based moderation of criminal law sanctioning (Kaptein, Chapter 6), reservation regarding an instrumental use of criminal law (Franssen, Chapter 7), the assertion of victims’ interests and rights (Vidal Fernández, Chapter 12), and penal moderation in the form of restorative justice (Sampani, Chapter 13). There is some sense at the present moment that EU criminal law, whilst having predominantly pragmatic and instrumental origins (Franssen, Chapter 7), now stands at a kind of crossroads, with some opportunity and choice to build upon the above listed European sensibilities and preferences and use the political and legal authority of the Union to assert a more definitely rights-based, moderated and variegated approach to criminal law. If opportunities for a specialised European criminal jurisdiction (van der Wilt, Chapter 9) and better-informed policy-making (Harding, Chapter 8) are realised, then a more distinctively principled rather than pragmatic EU system of criminal law may emerge.

The above speculation is one kind of fugue, as a work in progress. Its success, as in musical terms, would depend on a harmonious interweaving of contrapuntal melodies. More exactly, that will depend on both a canny extrapolation from existing sources, as described in the list just above, and then a strategically effective return of principle to application at the national level in disparate contexts (Gruszczak, Chapter 11, Günsberg, Chapter 14, and Błachnio-Parzych, Chapter 15). But that kind of return of distilled principle and policy to the national level may not be easily transparent or readable (Edwards, Chapter 16, and Harding, Chapter 8), Thus, analysing the dynamic of EU criminal law is likely to remain a matter of debate, and assessing its impact also a matter of some speculation – and this observation returns our discussion to the more negative dimension of the subject, its uncertain identity.

Negative impressions: an uncertain role and future

It would ...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Notes on contributors
• Preface
• 1. EU criminal law as an emergent regime: editorial introduction
• PART I The search for principle, direction and coherence
• PART II Stocktaking progress, achievements and prospects
• Index