Closing the criminal legislation gap of the European Union

EU level Criminal law is a very delicate issue. In the European Parliament a new document from the Commission would be examined: “Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies through criminal law”.

Criminal law measures comprise intrusive rules, which can result in deprivation of liberty. This is why the Charter of Fundamental Rights – made legally binding by the Lisbon Treaty – provides important limits for EU action in this field. The Charter, being the compass of all EU policies, provides for a binding core of rules that protects citizens. When legislating on substantive criminal law or criminal procedure, Member States can pull the so-called “emergency brake”, if they consider that proposed legislation touches upon fundamental aspects of their national criminal justice system: in this case the proposal is referred to the European Council. Denmark is not participating in newly adopted measures on substantive criminal law, while the United Kingdom and Ireland only participate in the adoption and application of specific instruments after a decision to “opt in”.


The EU can adopt under Article 83 of the Treaty on the Functioning of the European Union (TFEU) directives with minimum rules on EU criminal law for different crimes. First of all, measures can be adopted under Article 83(1) TFEU concerning a list of explicitly listed ten offences (the so-called “Euro crimes”) which refers to terrorism, trafficking in human beings, sexual exploitation of women and children, illicit drug traficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.12 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.

Secondly, 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”. This clause does not list specific crimes, but makes the fulfillment of certain legal criteria a precondition for the adoption of criminal law measures at EU level. It is therefore notably in respect of Article 83(2) TFEU where an EU criminal policy is particularly warranted; and where this Communication intends to provide specific guidance. Most importantly, it is in this field where the EU institutions need to make policy choices whether to use or not to use criminal law (instead of other measures, such as administrative sanctions) as an enforcement tool; and to determine which EU policies require the use of criminal law as an additional enforcement tool.

As you can see EU criminal legislation is in hot waters and very much restricted. With the ACTA criminal chapter the EU developed a new path for EU criminal legislation that is not considered by the Commission paper, yet:

  • First you have to use an international channel previously used for  negotiating  Trade Agreements with other nations (bananas import prices, quota, minimum size etc.) .
    As a ruthless Trade negotiator from the Commission you would make sure you agree on maximalist criminal sanctions with your international partners, raising the previous standards. What you can’t get inside the EU framework because of Treaty constraints and lack of political support (democracy is so obstructive!) becomes possible when you negotiate it like a Trade Agreement with a third nation, e.g. Switzerland or the Vatican.
  • Secondly keep negotiations strictly confidential. Secrecy is customary only in the field of trade agreements and there we are! Secrecy keeps attention of the MEPs away from the substance, nice. Bow in and clarify that there won’t be death penalty in the package though you include non-compulsory lethal action and won’t rule out proportional targeted killings. These proposed measures won’t bind the partners, after all!
  • Third: someone may find out that the EU lack pre-existing EU level criminal legislation (“Acquis”) or competence under the Treaties in the matters you negotiate with your colleagues from Switzerland and the Vatican. Here you can simply argue in Parliament the rules are just about persecuting the “known criminals” or whatever. You also ensure that the criminal chapter is formally negotiated by the Council Presidency advised by a “Friends of the Presidency” committee because there may be indeed a competence issue of you at the Commission.
  • Fourth, all this may be illegal, legal scholars say, so you simply hope that Parliament won’t invoke the European Court of Justice to check the compliance under the treaties. When your MEPs know that the Court would have to rule it illegal, they would sabotage a request to the ECJ. “Don’t ask, don’t tell the ECJ” creates a nice precedent case for next time.
  • And by the way, of course the Council has to authorize your “trade negotiations”, fortunately you write the authorisation for the Council yourself, and in the worst case scenario you have change it until no national representative dares to ask for changes anymore and they would simply accept it. Because the authorisation relates to “international relations” it has to be kept secret from the public and the European Parliament, so no one else can check if your negotiations are in line with the Council authorisation document. Nice!
  • When has the European Parliament last time refused to give consent to an international treaty? SWIFT 1st round? Fine, exceptions confirm the rules and Parliament would bow in anyway.

Last time we read the Treaties sarkasm wasn’t banned. For these reasons ACTA methodology should seriously get considered for closing the criminal legislation gap of the European Union.

The Commission withdrew the proposed IPR criminal enforcement directive of the European Union because member states failed to give their consent in the Council. We don’t have existing EU level harmonized criminal law for that! Member states didn’t want it to be regulated on the EU level. Thus the EU negotiates the ACTA criminal chapter (which goes far beyond the failed legislative proposal) with other nations under an EU Treaty provision for concluding international trade agreements.

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