THE EC/EU COMPETENCE IN CRIMINAL MATTERS BEFORE AND AFTER
THE LISBON TREATY
in order to ensure effectiveness of the EC/EU policies
Jana Bambič
Permanent Representation of the Republic of Slovenia to the EU, Brussels
E-mail: jana.bambic@gov.si
The paper is in working process!
Introduction
1.) Current situation
a) Legal Basis: Third Pillar (EU)
b) Article 47 TEU: delimitation between the First Pillar (EC) and the Third Pillar (EU)
c) Legal Basis: First Pillar (EC)
2). The Lisbon Treaty: Article 83/2
3.) Conditions to harmonise national laws in accordance with Article of the Lisbon
Treaty
a) EU Policies
b) Policy already harmonised at the EC level
c) Prohibition
d) Application
e) Principle of Subsidiarity
f) Penalties
Conclusion
1
Introduction
The changes proposed by the Lisbon Treaty regarding the EU competence to harmonise
criminal laws in order to ensure an effective implementation of the EU policies in
comparison to the existing system will be critically examined.
First, the current setting is analysed; specifically the 2 landmark judgments (the
Environmental crime judgment1 and the Ship Source Pollution judgment2) and the current
legislative practice are assessed.
Until the first decisive Environmental crime judgment it was generally perceived that the
EC (First Pillar) in principle lacked the competence to harmonise national criminal laws.
However, in the Environmental crime judgment the Court established the following three
conditions to harmonise national criminal laws regarding definitions of criminal offences
on the basis of Article 175 TEC: 1.) the harmonising measure must be essential, 2.) in
order to ensure full effectiveness of 'adopted rules', 3.) and, the measure should be limited
to combat serious environmental offences.3 In the Ship Source Pollution judgment the
Court further clarified the scope of the EC competence in criminal matters, concluding
that in the current setting the EC legislature is not competent to harmonise type and level
of criminal penalties.4 In contrast the Lisbon Treaty5 does provide competence to
harmonise criminal sanctions as well.
However, the Court in the 2 above mentioned judgments did not clarify what EC
policies are covered in order to harmonise criminal laws. The practice after the 2
judgments does show that the EC legislature interprets the 2 judgments in a wide manner;
similarly as provided in the Lisbon Treaty, meaning that the EC competence in criminal
matters is not only limited to the environmental policy as it was argued by some after the
2 judgments. The question that is analysed in this context is whether it is desirable that
the EC/EU legislature is granted such wide powers.
Second, the novelties provided in Article 83/2 of the Lisbon Treaty are
scrutinized; with emphasis on establishing the criteria to apply Article 83/2 in order to
avoid the potential competence creep.
Moreover, the possible limits of harmonisation of criminal penalties are assessed,
since it might interfere with value judgments of each Member State and therefore with
the core of the sovereignty of each Member State. In addition, there is a potential that
harmonisation of monetary penalties might lead to certain distortions of competition on
the Internal market.
Finally, it is discussed whether a correct application of the principle of
subsidiarity is the solution to avoid competence creep. In this context, the necessity and
the efficiency elements are further scrutinised. In addition it is assessed whether the
emergency brake system provided by the Lisbon Treaty might ensure that the principle of
subsidiarity will be properly observed.
1
Case C-176/03 Commission v Council [2005] ECR I-7879.
Case C-440/05 Commission v Council [2007] ECR I-9097.
3
Case C-176/03 Commission v Council [2005] ECR I-7879, at paragraph 48.
4
Case C-440/05 Commission v Council [2007] ECR I-9097, at paragraph 70.
5
Consolidated version of the Treaty on Functioning of the European Union: OJ C 155/47.
2
2
1.) Current situation
a) Legal Basis: Third Pillar (EU)
The EU (Third Pillar) competence in criminal matters was established by the Maastricht
Treaty whilst the 2 significant Justice and Home Affairs programmes (the Tampere
programme and the Hague programme) ensured a political impetus for the development
of the Area of Freedom, Security and Justice.6
In practice, the Council took a broad approach regarding the scope of its competence
based on the Third pillar, arguably resulting in some measures being based on the Third
Pillar legal bases where it could be argued that the link with the Third Pillar legal basis is
in some cases rather tenuous.7 The Intergovernmental nature of the Third pillar (required
unanimity of the Member States in the Council) could explain the tendency of the
Council, since the Member States are often not concerned with the competence creep as
long as they have the option of a veto in the Council. For example, the same trend of
expansive interpretation of the attributed EC competencies was observed in the First
Pillar before the Single European Act, when the unanimity in the Council was the norm
to adopt EC harmonising measures on the ground of Article 94 EC.8
In addition, the required unanimity in the Council did prove in some cases as a
hindrance in the legislative process and it lead in some cases to the suboptimal content of
adopted acts, since they are in most cases compromise solutions of 27 Member States.
The problem within the Third Pillar is that quite many measures in the field of
judicial cooperation in criminal matters were adopted lately, however the record of
implementation by the Member States is not very encouraging;9 in general it is estimated
that the European Arrest Warrant Framework decision is the only Third Pillar instrument
that was implemented in all the Member States and is actually working in practice.
The main explanation for a bad record of implementation of Third Pillar instruments are
limited powers of the Commission and the Court within the Third Pillar to control the
implementation of the Third Pillar acts.10
The additional problem that is encountered in the Third Pillar is the lack of mutual
trust of national authorities in each other’s judicial system, what is a relevant factor since
6
The EU Institutions are at the moment preparing a new Post-Hague programme; it is expected that the
programme will be adopted by the end of this year and will set the political goals in the JHA area for the
period 2010-2014.
7
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. The Framework decision on
certain procedural rights (COM (2004) 328) was not adopted in 2007 since some Member States were of
the opinion that the TEU does not provide a legal basis. However, the proposed Lisbon Treaty does provide
in Article 82/2 (b) a specific legal basis to adopt directives concerning rights of individuals in criminal
proceedings.
8
For example: the 76/160/EEC Directive on Bathing Water or the 80/778/EEC Directive on Drinking
Water
9
The Council conclusions: January, 2009.
10
Article 35 TEU.
3
the judicial cooperation in criminal matters is primarily based on the principle of mutual
recognition of judicial decisions.11
It is expected that the proposed introduction of the ordinary legislative procedure, as
provided in the Lisbon Treaty, will expedite the decision making of the EU legislature
and as well provide for a better quality of legislation.
b) Article 47 TEU: delimitation between the First Pillar (EC) and the Third Pillar
(EU)
Article 47 TEU:
Subject to the provisions amending the Treaty establishing the European Economic
Community with a view to establishing the European Community, the Treaty establishing
the European Coal and Steel Community and the Treaty establishing the European
Atomic Energy Community, and to these final provisions, nothing in this Treaty shall
affect the Treaties establishing the European Communities or the subsequent Treaties and
Acts modifying or supplementing them.
Article 47 regulates the so-called competition between the Pillars; the case law on the
delimitation between the 2 pillars accelerated.12 For example the 2 relevant judgments
(C-176/03 and C-440/05) were issued in the context of a dispute between the EU
Institutions which pillar provided for the correct legal basis. It could be argued that the
Court established an absolute primacy of the First Pillar over the Second and Third
Pillar.13
The saga of the delimitation between the Pillars continues; therefore it is expected that
the Lisbon Treaty will bring an added value with the de-pillarisation.14 However, the
status of the Second Pillar (CFSP) is still specifically regulated in the revised Treaty on
European Union.
c) First Pillar (EC)
The Court did clarify in the Environmental crime judgment and in the subsequent Ship
Source Pollution judgment that the EC (First Pillar) does have certain (exceptional or
subsidiary) competences in criminal matters. In the first landmark judgment the Court
held that:
11
The principle of mutual recognition was borrowed from the economic (free movement) context. It is
expected that the Commission will issue a communication on functioning of the principle of mutual
recognition shortly.
12
For example: the PNR judgment (C-317/04) and the more recent judgment: Ireland v Council (C310/06). Both judgments are concerned with data protection issues.
13
Case C-176/03 Commission v Council [2005] ECR I-7879, at paragraphs 39 and 40. See: COWAS C91/05.
14
As it did often prove in practice that it is rather difficult to upheld the distinction between the Pillars,
especially in the field of data protection.
4
However, the last-mentioned finding does not prevent the Community legislature,
when the application of effective, proportionate and dissuasive criminal penalties
by the competent national authorities is an essential measure for combating
serious environmental offences, from taking measures which relate to the criminal
law of the Member States which it considers necessary in order to ensure that the
rules which it lays down on environmental protection are fully effective.15
In the subsequent Ship Source Pollution judgment the Court did further clarify the scope
of the EC (First Pillar) competence, concluding that in the current setting the EC
legislature is not competent to harmonise type and level of criminal penalties.
It seems that the Court was rather inspired by the Constitutional Treaty when deciding the
Environmental crime judgment since the unsuccessful Constitutional Treaty provided the
same legal basis in criminal matters in order to ensure effective implementation of EU
policy as the Lisbon Treaty. It is necessary to remind the reader that the judgment was
issued after the failure to the proposed Constitutional treaty; and therefore it is possible to
argue that the Court did decide in accordance with the intentions of the drafters (the
Member States) of the Constitutional Treaty; though the Court did only go a half way
since it did not interpret the EC competence in a way that it would make it possible to
impose sanctions as well (as it is provided with the Lisbon/ Constitutional Treaty).
Moreover, it is necessary to emphasise that even before the landmark Environmental
crime judgment the Court dealt with cases that indirectly concerned criminal law.16 For
example in the Lemmens judgment the Court indicated that:
Although in principle criminal legislation and the rules of criminal procedure are
matters for which the Member States are responsible, it does not follow that this
branch of the law cannot be affected by Community law (see, to that effect, Case
186/87 Cowan [1989] ECR 195, paragraph 19, and Case 203/80 Casati [1981]
ECR 2595, paragraph 27).17
It was argued by some that the Environmental crime judgment was a rather revolutionary
judgment, since it was in general perceived that the EC (First Pillar) primarily pursues
economic goals. In addition, the Court did not impose a general obligation on the
Member States to provide for specific remedies with regard to the implementation of the
EC law, since the Court developed the principle of national procedural autonomy.
Moreover, it is necessary to emphasise that with the Amsterdam Treaty the part
on the judicial cooperation in civil matters was shifted to the First Pillar (now Title IV
TEC) from the Third Pillar and therefore acquired a different status from the Title on
judicial cooperation in criminal matters; this is as well one of the arguments supporting
the predisposition that the Environmental Crime judgment was a rather surprising
15
Case C-176/03 Commission v Council [2005] ECR I-7879, at paragraph 48.
For example: Calfa judgment (C-348/96), Lemmens judgment (C-226/97), Cowan judgment (C186/87).The Cowan judgment inspired the adoption of the Council Directive 2004/80/EC of 29 April 2004
relating to compensation to crime victims.
17
At para. 19.
16
5
judgment because it would be more appropriate for the EU legislature to adopt
constitutional decisions unanimously. There was a clear reluctance from the side of the
Member States to go as far as the Court established in the 2 landmark judgments. It is
possible to understand the positions of the Member States, since under the current system
the Member States do not have any option to use the emergency brake as provided by the
Lisbon Treaty.
Article 42 TEU18 does provide an option for a ‘passarelle’, but in the 2006 the
Council did not reach the required unanimity; what is more precisely indicating the
preference of the Member States for a systematic approach regarding the merging of the
Pillars.
18
Article 42 (ex Article K.14):
The Council, acting unanimously on the initiative of the Commission or a Member State, and after
consulting the European Parliament, may decide that action in areas referred to in Article 29 shall fall under
Title IV of the Treaty establishing the European Community, and at the same time determine the relevant
voting conditions relating to it. It shall recommend the Member States to adopt that decision in accordance
with their respective constitutional requirements.
6
2. The Lisbon Treaty: Article 83/2
Article 83
-Serious Crime
1. The European Parliament and the Council may, by means of directives adopted in
accordance with the ordinary legislative procedure, establish minimum rules concerning
the definition of criminal offences and sanctions 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.
These areas of crime are the following: terrorism, trafficking in human beings and sexual
exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money
laundering, corruption, counterfeiting of means of payment, computer crime and
organised crime.
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. It shall act
unanimously after obtaining the consent of the European Parliament.
-Effective Implementation of a Union Policy:
2. 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 harmonisation measures, directives may establish
minimum rules with regard to the definition of criminal offences and sanctions in
the area concerned. Such directives shall be adopted by the same ordinary or special
legislative procedure as was followed for the adoption of the harmonization
measures in question, without prejudice to Article 76.
-Emergency Brake
3. Where a member of the Council considers that a draft directive as referred to in
paragraph 1 or 2 would affect fundamental aspects of its criminal justice system, it may
request that the draft directive be referred to the European Council. In that case, the
ordinary legislative procedure shall be suspended. After discussion, and in case of a
consensus, the European Council shall, within four months of this suspension, refer the
draft back to the Council, which shall terminate the suspension of the ordinary legislative
procedure.
-Enhanced Cooperation
Within the same timeframe, in case of disagreement, and if at least nine Member States
wish to establish enhanced cooperation on the basis of the draft directive concerned, they
shall notify the European Parliament, the Council and the Commission accordingly. In
such a case, the authorisation to proceed with enhanced cooperation referred to in Article
20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall be deemed
to be granted and the provisions on enhanced cooperation shall apply.
Article 83 does have a hybrid nature, indicating certain intergovernmental elements, since
it provides for the emergency brake. Moreover an option is provided that one quarter of
the Member States could propose a legislative initiative; an option that does not currently
exist within the First Pillar (it is provided in the Third Pillar.)
7
Article 83/ 2 will provide for sectorial minimum harmonisation, which implies a
potentially wide scope. An important difference between the Environmental Crime
judgment and Article 83/2 is notable; more precisely in the judgment the Court made an
explicit reference to the seriousness of crime19, what is not specified in paragraph 2 of
Article 83 of the Lisbon Treaty20; in contrast paragraph 1 of Article 83 imposes a
requirement of a particularly serious crime and a cross border element21. Therefore, it
could be argued that the scope of paragraph 1 is narrower than the scope of paragraph 2
of Article 83.
The Lisbon Treaty is still preserving the general distinction between the harmonisation of
national material laws and the cooperation in criminal matters, as it is currently provided
in the Third Pillar (Title VI).
3.) Conditions to harmonise national laws in accordance with Article of the Lisbon
Treaty
a) EU Policies:
Article 83/2 provides for harmonisation of national criminal laws in order to ensure
effective implementation of a Union policy. The present author is of the opinion that it is
necessary to identify the EU policies for which harmonisation of criminal laws shall be
provided in order to ensure their effective implementation. The Court did not discuss in
the 2 judgments the question (more precisely, it was not necessary for the Court to
discuss) what are the policies that can require harmonisation of criminal laws, since both
cases (the Environmental Crime and the Ship Source Pollution) dealt with the protection
of the environment policy even though the Ship Source Pollution case concerned Article
80 TEC (Transport). Therefore, some did argue that the EC competence in criminal
matters should be limited to the protection of the environment on the ground that Article
6 TEC provides for a special status of the protection of the environment in comparison to
other EC policies.
In contrast, after the Environmental crime judgment the Commission did issue a
communication arguing for a wide scope of the EC competence and even proposed to
convert certain Third Pillar acts into First Pillar acts.22 The EP did argue along the same
line as the Commission, since the EP position in the legislative process is stronger within
the First Pillar when the co-decision procedure applies in contrast to the consultation
procedure in the Third Pillar which provides for a limited influence of the EP.23
On the basis of the current legislative practice it is possible to conclude that the Council
confirmed that the competence in criminal matters within the First Pillar does go beyond
pursuing an effective implementation of the environmental policy, since in the aftermath
19
At para. 48.
It could be argued that the seriousness of an offence is an indicator of the necessity.
21
In comparison: Article 31/ e TEU does not require a cross border element.
22
COM (2005) 583 final/2.
23
EP Report A6-0172/2006.
20
8
of the 2 relevant judgments the Council discussed a proposal for a Directive on criminal
measures aimed at ensuring the enforcement of intellectual property rights and a proposal
for a Directive providing for sanctions against employers of illegally staying third
country nationals.
The Lisbon Treaty categorises the EU competence as the exclusive, the shared and the
complementary competence (Part 1, Title 1, Articles 2-6)24. It could be argued that in
general there is a certain correlation between the legal base and the EU policy25;
however, some legal bases, as for example Article 95 TEC (Article 114 LT), do provide
for a possibility to pursue different policies because of their horizontality.26 Therefore it
is necessary to ensure that the EC competence in criminal matters based on Article 95
TEC (article 114 LT) will not be defined too broadly, since there are tendencies to
interpret the scope of Article 95 TEC expansively.27
It is possible to suggest that the policies based on the exclusive and shared
competences are covered by Article 83/2 LT, but not the policies that are based on the
complementary competences which do not provide for harmonisation28 (infra: point b)).
Article 308 TEC (Article 352 LT) is as well excluded as a potential legal basis,
since this Article itself provides for an exceptional competence.
It is necessary to add that selection of policies merely indicates the existence of the EU
competence, more precisely meaning that further conditions must be fulfilled in order to
exercise the competence.
b) Policy already harmonised at the EC level
The second condition to harmonise criminal laws in order to ensure an effective
implementation of the EU policy is a requirement that the EC/EU did already adopt
harmonising measures pursuing the policy goals.
If interpreting this requirement stricto sensu it is possible to conclude that it is first
necessary to adopt the harmonising measure pursuing certain policy, and only after the
implementation of the original harmonising measure it is actually possible to assess
whether the harmonisation of criminal provisions is necessary in order to ensure effective
implementation. Such a model would help with the assessment of the necessity test
(infra). It should be noted that this was not the route taken by the EC legislature when
negotiating the Illegal Immigrants directive; where the EC legislature opted to adopt both
parts (policy and criminal) simultaneously.
Moreover, the Commission proposed a wide scope of a Directive on criminal measures
aimed at ensuring the enforcement of intellectual property rights29 meaning that it should
24
The intention of the drafters of the Lisbon Treaty was actually to clearly delimit the division of
competence between the EC and the Member States.
25
Article 83/2 LT does provide for such a possibility, since it refers to the legislative method and therefore
indirectly to the legal base on the ground of which the measure was adopted.
26
For example the proposal for a Directive on Ship Source pollution is based on Article 80 TEC
(Transport), even though it does pursue protection of the environment objective.
27
See C-376/98 and related subsequent judgments.
28
Article 2/5 LT.
29
COM (2005) 276.
9
cover the intellectual property rights that are not regulated at the EC level (for example
plant variety rights), what was not in line neither with the 2 judgments nor with the
requirement of the Lisbon Treaty.
A similar issue was at stake with regard to the proposal for a Directive facilitating crossborder enforcement in the field of road safety. The problem was that no EC rules exist in
respect of four types of offences in question (drink driving, going through red light,
speeding and not wearing helmet); in addition, the proposal did provide for
harmonisation of judicial procedures, what would go again beyond the EC competence.30
c) Prohibition
In accordance with criminal law principles it is required that the original harmonising
measure does provide a prohibition. This requirement can as well act as a selection
criterion to establish which EU policies (exclusive and shared competences) are within
the reach of Article 83/2. Since providing for a prohibition is an inherent criminal law
requirement, it is suggested that this should be strictly assessed on a case by case basis
d) Application
The EU is competent to harmonise definitions of criminal offences and criminal
penalties; though the application of criminal laws in each individual case is in the hands
of national judges.
Therefore it is stated in the recital 10 of the preamble of the Directive on the protection of
the Environment through criminal law, which is the first measure that was adopted within
the Firs Pillar and therefore is the precedence:31
This Directive obliges Member States to provide for criminal penalties in their
national legislation in respect of serious infringements of provisions of
Community law on the protection of the environment. This Directive creates no
obligations regarding the application of such penalties, or any other available
system of law enforcement, in individual cases.
Therefore it could be concluded that harmonisation of criminal provisions will possibly
provide efficient implementation, but not necessarily efficient enforcement.
e) Principle of Subsidiarity (Necessity test and the effectiveness tests)
The Lisbon treaty provides greater powers of national parliaments to examine whether
the principle of subsidiarity is properly observed32; it is expected that at least some
national parliaments will exercise their new powers thoroughly. In general it could be
argued that, in most cases so far, the principle of subsidiarity was not closely examined;
30
A possible solution is provided in Article 74 LT (administrative cooperation).
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.
32
Protocol 1.
31
10
more precisely meaning that in cases when conditions to harmonise national laws were
fulfilled, it was simply assumed that the principle of subsidiarity was fulfilled as well.
Since harmonisation of criminal laws is a rather sensitive area it is suggested that
even in cases when harmonising national criminal laws to ensure effective
implementation of exclusive EU policies an assessment of the principle of subsidiarity
must be conducted.
It is possible to argue that the 2 requirements of necessity and effectiveness reflect the
principle of subsidiarity, indicating that the EU competence on the ground of Article 83/2
is exceptional or subsidiary.
The Court did not deliberate in the Environmental crime judgment whether the necessity
test is fulfilled, therefore this indicates that probably in the opinion of the Court this is
actually a political choice.33 To put it in simple terms, it seems that the Court will leave
the decision on the necessity to the EU Institutions.
Therefore the involvement of the national parliaments in the legislative process
might bring an added value when deciding whether the necessity requirement is fulfilled
in each individual case.34
It is possible to argue that the necessity is fulfilled when administrative or civil sanctions
imposed by the Member States or the EC do not attain the objective of efficient
implementation.35 This more precisely implies that harmonisation of criminal provisions
should be seen as the ultima ratio. In this context it is necessary to add that criminal
provisions do not replace civil and administrative sanctions. The present author is of the
opinion that the principle of national procedural autonomy applies concurrently with the
EC competence to harmonise criminal laws.
The present author is sceptical with regard to harmonisation of criminal provisions in
cases when the Member States legislation already exists; as an example the proposed
directive on the protection of intellectual property rights through criminal law could be
given. All the Member States do actually impose criminal sanctions for breaches of the
main intellectual rights; therefore it could be argued that the necessity test is not fulfilled,
since the harmonising measures based on Article 83/2 should not merely regulate the
market. In cases if criminal organisations would actually take an advantage stemming
from the differences between national laws, the EC legislature does still have an option to
adopt a measure on the ground of Article 83/1 instead of Article 83/2, which is
specifically designed to tackle organised crime; moreover such an approach would
actually respect as well the principle of proportionality.
The necessity test is inherently interlinked with the requirement of the effective
implementation. This criterion is as well subjective and imprecise. Harmonising national
criminal laws does not necessarily ensure an efficient enforcement; and when making
policy choices it is necessary to distinguish between the 2 aspects (for example: even if a
Member States implements a Directive on the protection of intellectual property rights
33
At para 48 and 50.
TBD: to scrutinize the legislative practice regarding Article 308 that as well requires a necessity test.
35
TBD.
34
11
through criminal law, it is not necessary that it will have sufficient resources to actually
enforce the measure).
It is possible to argue that the legislative practice in the field of criminal matters will
probably not alter substantially after the Lisbon Treaty enters into force. More precisely it
is possible to assume that the emergency clause is actually going to resemble the veto
option, as it currently exists.36 The current practice indicates that the Member States do
always strive to find a common compromise solution, sometimes at the expense of the
quality of legislation.
f) Penalties:
The Lisbon Treaty will provide in Article 83/2 for the minimum harmonisation of
criminal penalties. Therefore the EU legislature will only be competent to impose socalled minimum maximum penalties. Currently, a general provision is used in the acts of
the First Pillar: that the Member States must provide effective, proportionate and
dissuasive penalties.
Advocate General Mazak did offer an excellent analysis of potential difficulties with
harmonising criminal penalties in the Ship Source Pollution case.37 The main arguments
established by Advocate General Mazaka are: the seriousness of a criminal penalty, its
effectiveness and dissuasiveness, cannot be viewed in isolation from the other criminal
penalties; each criminal code reflects a particular ranking of the legal interests which it
seeks to protect (property, the person, the environment, and so on) and varies the
penalties accordingly; harmonisation could lead to fragmentation and compromise the
coherence of national penal systems.
It is questionable whether the imposition of criminal penalties will be of practical use if
they are set too low; on the other hand if the penalties are set too high it might interfere
with value judgments of each Member State and therefore would interfere with the core
of the sovereignty of each Member State.
In this context the relevant question is how to impose minimum-maximum pecuniary
penalties in order not to cause distortions of competition on the one hand and at the same
time ensure that penalties will achieve their goal (efficiency, proportionality and
dissuasiveness).38 The matter is rather sensitive since Article 83/2 does provide for
sectoral harmonisation and therefore potentially wide interference with national systems.
36
Furthermore, the Member States do have an option of closer cooperation; though it is questionable
whether the option is actually going to be exercised in practice; for example the Commission is very
reluctant to issue a proposal for a closer cooperation with regard to the proposed Rome III Regulation.
More precisely implying that there is a certain degree of reluctance because of the consequences a proposal
for enhanced cooperation could have for the EU.
37
At para. 105-107.
38
It is necessary to note that Article 3 LT listing the objectives of the Union would not contain a specific
reference to a system ensuring that Competition in the Internal Market is not distorted. Relevant Protocol
(No 27) on the internal market and competition,
12
Conclusion
In general, the Lisbon Treaty will provide wider and more precise EU competences in the
field of judicial cooperation in criminal matters as is defined currently; at the same time
some intergovernmental elements are still preserved in the Lisbon Treaty.
Article 83/2 of the Lisbon Treaty provides a legal base to approximate criminal laws and
provisions whenever this is essential to ensure the effective implementation of a EU
Policy in an area which has been subject to harmonisation measures; the EU may
establish minimum rules with regard to the definition of criminal offences and sanctions
in the area concerned.
The Court established in 2005, in the Environmental crime judgment, the
subsidiary competence of the EC, arguing that the following three conditions to
harmonise national criminal laws on the basis of Article 175 TEC must be fulfilled: 1.)
the harmonising measure must be essential, 2.) to ensure full effectiveness of 'adopted
rules' must be ensured, and 3.) the measure should be limited to combat serious
environmental offences. The Court further clarified the scope of the EC competence in
the Ships Source Pollution judgment, arguing that in the current setting the EC legislature
is not competent to harmonise the type and level of criminal penalties; meaning that the
Lisbon Treaty provides for wider competences.
The current legislative practice shows that the EC is not only competent in matters
pursuing the protection of the environment, but also other policies. Such a practice is in
line with Article 83/2 of the Lisbon Treaty which refers to all the EU polices. It is argued
that policies based on the complementary competences are excluded from the scope of
Article 83/2.
Furthermore, the main criteria and elements to exercise the EU competence on the
grounds of Article 83/2 are established and assessed (policy already harmonised at the
EC level; harmonising measure must provide for a prohibition; EU is not competent with
regard to the application of criminal laws, more precisely, application is in the hands of
national judges).
In addition, the sensitivity of harmonising criminal penalties is addressed;
Moreover, there is a risk that harmonisation of monetary penalties might lead to certain
distortions of competition on the Internal market due to different standards among the
Member States.
New tools of control against the over-expansive reading of the scope of the EU
competence are provided in the Lisbon Treaty; especially the national parliaments will
have the main task to control the possible intentions of the EU institutions to interpret
over-expansively the competence provided in Article 83/2 of the Lisbon Treaty. It is
argued that the proper application of the principle of subsidiarity is essential to avoid the
competence creep; in particular, since Article 83/2 provides 2 rather subjective criteria to
exercise competence (necessity and efficient implementation).
In addition, the Member State will have the option to exercise the emergency
brake when it considers that a proposed directive would affect the fundamental aspects of
its criminal justice system.
13