The Constitutional Dimension of European Criminal Law

Ester Herlin-Karnell

• Publisher: Hart Publishing
• Year: 2012
• Print ISBN: 9781849461764
• eBook ISBN: 9781847319548
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

Criminal law is one of the most rapidly changing areas of contemporary EU law and integration. The Treaty of Lisbon has elevated it to a central place in the constitution of the EU, within the dynamic area of freedom, security and justice. The phenomenon of EU criminal law as such is however far from new but has developed on an ad hoc basis, not least as a result of the case law of the European Court of Justice. Central to the Court's reasoning in this area has been the principle of effectiveness. A main theme running through the book is therefore the role of the axiom of effectiveness, which is critically examined, with particular attention to its use by the European Ccurt of Justice in recent leading cases. This book explores the constitutional principles underlying it, both those determining the substantive values it embodies, and those determining its scope and extent. Other chapters consider the phenomenon of preventative criminalisation at EU level and the protection of subsidiarity and proportionality in EU criminal law. The balance between effective EU action, proper control of competence and adequate protection of individual rights is of growing importance as EU criminal law expands, but, as this book suggests, has not yet been fully articulated or entrenched by the institutions of the EU.

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Introduction

I. INTRODUCTION

THIS BOOK EXAMINES the constitutional dimension of European criminal law. The specific focus of the book is the competence question in EU criminal law and how effectiveness has driven its constitutional adaptation and development. The book considers the vertical delimitation of powers between the EU and its Member States. The concept of European criminal law has always been very patchy and has only gained impetus in recent years. Prior to the entry into force of the Lisbon Treaty, criminal law was primarily a third pillar intergovernmental matter within the framework of the Treaty of Amsterdam. The major issue, therefore, was the horizontal delimitation of powers between the former first and third pillars in the EU. This book investigates the development of criminal law in the EU from the failure of the Constitutional Treaty in 2005, to the entry into force of the Lisbon Treaty in 2009, which elevated criminal law to a central constitutional position. However, in spite of the non-ratification and ill-fated destiny of the Constitutional Treaty in 2005 and the uncertain wait for the Lisbon Treaty, the European Court of Justice concluded that there could be an EU supranational competence if this was needed to safeguard the environment effectively. Without doubt, few cases concerning criminal law in a European context have received as much attention as Case C-176/03, Commission v Council¹ (hereafter Case C-176/03), which highlighted the general problem of the delimitation of competences between the former first and third pillars and stated that criminal law could be a matter for the EU legislator if the principle of full effectiveness so required. So, until recently, criminal law in the EU context straddled in the border between the first and the third pillars but could be considered to fall within the scope of the first pillar if this was required for the EU law to be fully effective. This case opened up a vague and ill-defined competence in this judicial area which fuelled a debate concerning the exact limits of competence.² The aim of this book is, therefore, to explore the meaning of ‘effectiveness’ and examine how it has been used as an authority of EU law to open up areas thought to lie – in part or in whole – within the autonomy of Member States. This raises several issues. For example, is the concept of ‘effectiveness’ in EU law different from ‘effectiveness’ in criminal law? Is it possible to simply translate the harmonisation of trade standards into the harmonisation of criminal provisions? Clearly, these issues also illuminate the difficult question of how to reconcile effective EU action with respect for human rights in criminal law matters at the EU level.

Moreover, as will be explained, the principle of effectiveness has primarily and traditionally been seen as a question of the enforcement of EU legal rights in national courts. However, the judgment in Case C-176/03 could also be interpreted to mean that showing the ‘effectiveness’ of an EU rule is a precondition to establishing the EU’s competence to act in the first place. These questions are important to analyse. The reason for this is twofold – first criminal law is very different, for example, from private law in its power to impose ‘legitimate violence’ on individuals and therefore a cautious approach should be taken to avoid the inflationary use or abuse of the criminal law. Secondly, it is dangerous to view the principle of effectiveness as a carte blanche for harmonisation, as this would run counter to the concept of conferred powers as stipulated in Article 5(1–2) Treaty on European Union (TEU) and Article 7 Treaty on the Functioning of the European Union (TFEU).

This book seeks to examine the principle of effectiveness, which has become the key drive in the pursuit of the constitutional evolution of European criminal law. More specifically, the book investigates the constitutional implications of reasoning based on ‘effectiveness’ and how it has developed from an enforcement issue in European law to a more independent principle at the constitutional level when justifying EU powers. The main theme running through this book is the tension between effectiveness concerns and the legitimacy question of EU criminal law. It is argued that criminal law at the EU level has developed rapidly without taking the time to reflect on the premises on which it is based. The contention is that the EU has pushed forward with criminal law initiatives leading to the development of a preventive regime, while the protection of the individual has been largely left behind. Thus, in order to understand the changes for the criminal law as brought by the Lisbon Treaty it is necessary to put it into context. This book serves that purpose. It will embark on a constitutional tour of EU criminal law and explain how the principle of effectiveness has driven this whole area forward. The Lisbon Treaty solves, to some extent, the big question of whether a competence to harmonise criminal law at the supranational level exists by simply asserting that it does. In other words, the Lisbon Treaty provides for a specific basis for such a crime-fighting mission by listing a whole range of crime-fighting activities as set out in Articles 82 and 83 TFEU. The main question is how to decide and monitor the contours of these provisions and how to ensure that procedural rights in criminal law are protected.

This short introduction intends to offer some preliminary background information as to why such a study is important.

II. BRIEF COMMENT ON THE HISTORY OF EU CRIMINAL LAW

When discussing the concept of European criminal law it is easy to get the impression that it is the result of the general success of the EU. However, viewed from a historical perspective it is actually quite difficult to find a sensible meaning for the ‘Europeanisation’ of a criminal law which is already ‘European’, having been inspired by ideas developed during the Enlightenment.³ Nevertheless, there are considerable differences between the different Member States. It is, moreover, precisely the combination of these ‘cultural similarities’ and ‘cultural disparities’ that makes the concept of European criminal law so complex. For example, it is often pointed out that there is currently insufficient mutual trust between the Member States that have divergent criminal laws, to justify the application of the internal market principle of mutual recognition to the field of EU criminal law.⁴

In any case, until recently, the assumption was that criminal law fell outside the legislative competence of the EU. Indeed, criminal law was initially of little interest to the EU legislator who was more concerned with the notion of free movement and the functioning and establishment of the internal market. There was, in short, no need to interfere in the sensitive field of criminal law. As stated though above, the current ‘Europeanisation’ of criminal law is not a new phenomenon, as the general lines of the future orientation of a ‘European criminal law’ were already the basis for Kant’s Perpetual Peace in 1795.⁵ Therefore, although criminal law is a fairly recent actor on the Union stage in terms of ‘EU criminal law’, the notion of ‘European’ criminal law as such is far from new. After all, it should be recalled that there was a time when ‘Europe’ represented a more enlightened and proportionate penal system than the national systems.⁶ For example, the Enlightenment brought with it a criminal law system more inspired by humanism and the introduction of the principles of proportionality and legality.⁷ Today, in slightly exaggerated terms, the opposite appears to be the case, with EU law running the risk of relying on the appealing concept of enforcement at the possible expense of sufficient legal safeguards.⁸ This is especially true, as will be discussed below, in the areas of combating terrorism, money laundering, and in crime prevention at the EU level, where the notion of effectiveness seems to play an increasingly dominant role in the legislative debate.

III. STRUCTURE OF THE BOOK

In examining these issues, this book starts by looking at the famous patchwork pattern of criminal law in the EU and how it was formed. The development of EU criminal law will be explored against the general background of the impact of effectiveness as both an enforcement mechanism and a competence parameter. It also highlight the fact that there is no clear-cut division between enforcement and competence issues and that effectiveness is a chameleonic concept. Yet, the problem is that it is far from clear that effectiveness in criminal law mirrors ‘effectiveness’ as interpreted by the Court or the European Commission. We will begin this exercise by tracing the EU colonisation of criminal law in chapter two, outlining the journey of criminal law in the EU to show how it has emerged from a third pillar issue to a supranational question. In addition, chapter two considers the implications of the Lisbon Treaty by introducing the main changes in criminal law as well as the extended jurisdiction of the Court in this area.

A. Effectiveness as Enforcement

In chapter three, the principle of effectiveness is examined in further detail. In doing so this chapter considers the meaning of effectiveness in EU law generally by tracing its origin in the classic EU context before applying it to the former third pillar, and subsequently to the area of freedom, security and justice (AFSJ) following the Lisbon Treaty. It is argued that there has been an implementation imbalance within the former EU third pillar between the attractiveness of effective enforcement of EU law, and the dangers of one-sided integration where legal protection of the individual is neglected, despite this being an area where such safeguards are most needed. In addition, this chapter discusses the extent to which the Lisbon Treaty has changed the framework of criminal law. It then investigates ‘effectiveness’ as a general principle of criminal law and cautiously argues that this principle is a tricky parameter when deciding on criminalisation.

B. Constitutional Effectiveness

This book then scrutinises effectiveness as a constitutional axiom. Chapter four maps the development of the principle of effectiveness in EU law as a constitutional principle for confirming competences. This is in many ways the chapter on which the book is based, as it attempts to construct a theoretical framework for the analysis of effectiveness in EU criminal law. In particular, the chapter examines Case C-176/03 more closely and considers how the Court established a new meaning of ‘effectiveness’ in their reading of the case and its wider implications. Part I introduces the topic of this chapter and explains the conundrums of effectiveness by analysing it in the light of the conferral of powers in the EU. Although the focus is on criminal law, the aim is to construct a broader setting in order to show the underlying concerns permeating this area. In so doing, the chapter seeks to illuminate the wider question of European powers. Arguably, it is necessary to look at the background picture before looking more specifically at the details of European criminal law and the question of competences. In other words, the aim is to place the notion of a supranational criminal law competence in context. Hence, the chapter covers the general constitutional questions in the EU, such as the objectives of the EU and the conferral of competences.

An important aim of this chapter is to track the objectives of the EU in the light of the effectiveness principle. Part II of the chapter serves this purpose. In particular, this part of the chapter sets out to explore the dynamics and the history of the wide-ranging former portal provision of the acquis communautaire, ex Article 47 TEU and to consider what we can learn from it with respect to the Lisbon Treaty. The purpose of doing so is to investigate how criminal law was already being transferred prior to the Lisbon Treaty as part of the Court of Justice’s heavy reliance on the effectiveness principle coupled with the wide contours of the acquis communautaire. Thus, part II seeks to tie this question to the constitutional question of effectiveness in the EU and show how the competence threshold was being manipulated to extend into new areas. The section considers how much has really changed in this area since the entry into force of the Lisbon Treaty. The intention is to show that even though it is true that Opinion 2/94⁹ was clear that the objectives of the Treaty cannot be expanded by themselves, the meaning of this assertion remained unclear, as in practice the scope of this provision remained unstable, as was demonstrated by the Kadi case.¹⁰ In particular, this part of the chapter tries to explain that the issue of what is to be counted as an EU objective revealed a similar vagueness to that of the effectiveness principle, where the effectiveness imperative has become part of the EU objectives. The chapter also analyses the new Article 13 TEU and the question of institutional balance and the continuing aspirations for effectiveness.

Part III of chapter four then investigates the constitutional scope of Article 114 TFEU, and thereby briefly dissects the myriad of legal scholarship here. More specifically, this part intends to explore how much weight Case C-176/03 could bear before collapsing under Article 114 TFEU. In doing so, this study focuses on the snowball effect of this ruling and the eagerness to legislate that followed in its wake. Moreover, the part examines the Article 114 TFEU conundrums by looking specifically at the market concept in the context of the possibilities of harmonising criminal law by scrutinising the notions of obstacles to trade and the distortion of competition. The starting point for this discussion is naturally the new lex specialis function of Article 83 TFEU and the boundaries of the notion of EU criminal law particularly with regard to how far it will be possible to rely on Article 114 TFEU in the future. Yet although Lisbon provides for quite strictly drafted provisions on criminal law competence, it has also resulted in slippery provisions that would allow legislation ‘when necessary’ for the effective implementation of an EU policy which has been the subject of harmonisation measures as stipulated in Article 83 TFEU.

In part IV the issues of subsidiarity and proportionality are explored in the context of European criminal law in order to show that these principles appear to play a less significant role in EU criminal law as well as in the mainstream EU framework. This is particularly alarming as the very notions of subsidiarity and proportionality should be reflected in the ultima ratio of criminal law. This chapter also discusses the new function of the national parliaments in this area as well as problems with penal populism and the wider issues of balancing in the AFSJ and the extent to which criminal law is different from other areas.

Part V of this chapter links such reasoning to the flexibility provision of enhanced cooperation. The purpose is to show the dangers in ‘moving forward’ blindly at the expense of adequate attention being paid to what such cooperation means from the perspective of coherence. This part of the chapter examines the mechanisms of enhanced cooperation with regard to criminal law and the emergency brake in particular and argues that the emergency brake provided by the Lisbon Treaty might not be significant in practice as nine Member States can always move forward by establishing automatic enhanced cooperation. This part also discusses the meaning of the imperative of loyalty in this area and to what extent the proportionality principle could play a role here in future as better recognising the sensitive nature of criminal law cooperation.

Finally, part VI of the chapter provides some thoughts on the wider constitutional debate which underpins this area as initiated by the Laeken Declaration and taken further in the discussion on the Lisbon Treaty, by highlighting the bigger question of the need for broad flexible competence provisions. Specifically this part of the chapter seeks to bring us back to the discussion on the objectives of the EU and the issue of the future of the EU project more broadly. The chapter concludes by drawing together the findings of the chapter.

C. The Development of EU Precautionary Criminalisation and the Fight against Money Laundering

Chapter five sets out to analyse the EU’s security agenda, which plays an increasingly significant role in the EU’s policy within the AFSJ. More particularly, the chapter aims to discuss it in the light of risk regulation and the effectiveness principle. The intention is to investigate what happens in practice in the intersection between national criminal law and EU measures and two case studies are discussed. Chapter five deals specifically with EU financial crimes and the EU suppression of money laundering. The Third Money Laundering Directive¹¹ introduces a risk-based approach as well as the inclusion of the financing of terrorism within its scope. This poses numerous challenges not least because money laundering and the financing of terrorism, although sometimes related, do not necessarily show the same (criminological) pattern. It will be shown that ‘risk’ in EU law is not necessarily the same as ‘risk’ in criminal law despite the EU’s heavy reliance on the concept. The Third Money Laundering Directive introduces a risk-based approach to suspicious transactions but this book examines ‘risk’ as a much wider concept connected to the question of paternalism and whether the EU should be involved in these issues at all. In particular, this part of the chapter tries to demonstrate that the driving notions behind the EU’s agenda in this area are risk and security coupled with effectiveness concerns. It is argued that the EU’s approach here has led – and could lead – to precautionary criminalisation at the EU level. Such a development is a dang...

Table of contents

• Cover
• Title
• Copyright
• Preface
• Contents
• Table of Cases
• Table of Legislative
• 1 Introduction
• 2 The Journey of Criminal Law in the EU
• 3 Chasing (Traditional) Effectiveness
• 4 Constitutional Effectiveness: An Exegesis
• 5 Case Study I: EU Financial Crimes
• 6 Case Study II: What Happens in Practice? The Implementation of the Third Money Laundering Directive in the UK and Sweden
• 7 The Lisbon Treaty: Anything New Under the Sun?
• 8 Conclusion
• Bibliography
• Index