The Constitutionalisation and Evolution
of Penal Law and Control Policy in the
European Integration
by Counsellor, docent, Dr Tuomas Pöysti
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Reader for the series of lectures
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About the lecturer: Dr Tuomas Pöysti is docent of Administrative Law
(University of Helsinki) and Counsellor of the Ministry of Finance, Finland,
where he serves as Chief Counsel of Public Economic, Administrative and
Constitutional Law, Regulatory Policy and Public Governance. Dr Pöysti is the
representative of Finland in the European Commission Consultative
Committee on the Fight against Fraud (COCOLAF) and in the Council of the
European Union Anti-fraud working group.
MINISTRY OF FINANCE
Counsellor, docent, Dr Tuomas Pöysti
4-7.11.2003
1
Short abstract
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Topic of the lectures is the evolution and the resulting constitutionalisation
of the penal law and penal administrative law in the processes of European
integration. The European Union has systematically developed its activities
in the field of penal law and it has become a major actor in the formulation
of the control policy, the latest stage of the development being the Draft
Treaty on the European Constitution which is under negotiation in the
Intergovernmental conference. The evolution reflects wider phenomena in
the legal regulation and international law and legal governance, emphasis
on performance and changing concepts of legitimacy and fragmentation of
sovereignty. There is a fundamental tension between universalism and
particularism in the European integration process which is reflected by
different theories about the legitimacy of EU penal law.
Series of lectures is in four parts:
The Theoretical Issues – The theories of integration and changing notions
of legitimacy behind EU law
Evolution of Penal approach in the context of the Common Markets
Protection of the Financial Interests of the European Union and the
European Anti-Fraud Agency OLAF
The project of the European Area of Freedom, Security, Justice in a wider
Constitutional context and the draft Treaty on the Constitution
MINISTRY OF FINANCE
Counsellor, docent, Dr Tuomas Pöysti
4-7.11.2003
2
Objectives
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Give an overview and an interpretation of the evolution of
penal law and criminal policy in the EC/EU Law
Discuss the political theory behind legal developments of the
EU penal law and criminal policy. Which are the fundamental
concepts of legitimacy behind the structures and contents of
EU penal law, penal administrative law and the project of
European Area of Freedom, Security and Justice
 recognise the structures of change andanalyse critically
the structures of change
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phenomenological approach
Give an overview of the legal protection of the EU’s own
interests within penal and penal administrative law
Give an overview of the evolution of the European Area of
Freedom, Security and Justice in the today’s context and
Discuss the Constitutionalisation of EU Penal Law and the project
of the European Area of Freedom, Security and Justice
MINISTRY OF FINANCE
Counsellor, docent, Dr Tuomas Pöysti
4-7.11.2003
3
Topics in the EU penal law’s search for general
theory
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Penal law in the search of political theory and legimacy;
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Penal law and criminal policy in the Internal Market Law
Administrative penal law and the protection of the interests
of the European Union
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Towards the European Legal Space: Penal law and the cooperation in the justice and home affairs
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European Union as the Area of Freedom, Security and Justice
New areas and forms of penal law harmonisation and cooperation in the field of criminal policy and penal justice
Conflict between universalism and particularism as the forms
of Western rationality
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problem of fraud and irregularities
problem of the protection of Euro
Pluralism vs. unitary law and state -approach
Legitimacy and the orientations in the offing: Infinite Justice ?
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MINISTRY OF FINANCE
Counsellor, docent, Dr Tuomas Pöysti
Place and model of penal law in the European integration
4-7.11.2003
4
Criminal law and Legal Integration
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The origins of sovereignty from the economic analyses and political
theory perspective: management of externalities and the Westphalian
system of international governance
The criminal law of sovereign nation-states
 territoriality principle
 national law & legal culture
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Penal law characterises a certain concept of life and culture and virtues,
what is good life
national identity for law
Distrust in international co-operation
 double penalisation -requirement
 centralised authorities, legalisation
 no extradition of own citizens
 qualified use of the procedure of the requesting state
The challenge: the changing reality. Cross-border externalities and
phenomena, transnational legal relationships, growing interdependence
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MINISTRY OF FINANCE
Counsellor, docent, Dr Tuomas Pöysti
4-7.11.2003
5
Models of deepened co-operation
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The Nordic Model
 trust via convergence of social models and societies
 simplified procedure
The supra-national territoriality - the European territoriality
 mutual recognition, free circulation of official actions.
Cross-border legal space filled with the activities by
national authorities
 common judicial authorities
Uniform criminal law & procedure; Ius Commune
 universal rationality and conceptions of justice
 cosmopolitanism, universalism in law
MINISTRY OF FINANCE
Counsellor, docent, Dr Tuomas Pöysti
4-7.11.2003
6
The change of criminal and administrative penal
law in the light of integration theory
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Neofunctionalism
Liberal inter-governmentalism
Multi-layered governance, new institutionalism, legal
pluralism
 meeting with the Other,
 ethics of encounter
MINISTRY OF FINANCE
Counsellor, docent, Dr Tuomas Pöysti
4-7.11.2003
7
The neofunctionalist approach
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The goals of the integration provide the legitimacy;
 peace, justice and prosperity
 integration value as such since it provides peace
The spill-over effect
The supra-national criminal law
Differentiation accepted; system forces towards unification
 example: Money laundering
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harmonisation of the definition of offences
example 2: securities market crimes
Spill-over argument the driving force of integration in
administrative measures
The end station?
 Reappearance of the Empire
 Does the Empire need uniform criminal law
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MINISTRY OF FINANCE
Counsellor, docent, Dr Tuomas Pöysti
4-7.11.2003
8
Liberal inter-governmentalism
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The state-centred approach;
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Union is the agent of the Member States
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The Council of Europe conventions
The complementary nature of EU approach
Mutual co-operation
Problems
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The pooling of action compensates the lost governance resulting
from globalisation
Emphasis in conventions
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The state is the agent of co-operation and provides legitimacy &
control
The state is legitimate forum for policy & legal identity formation
raison d’etat
integrity of authorities
efficiency of control in international networks
Compromise between the nationality idea and humanistic & liberal universalism
MINISTRY OF FINANCE
Counsellor, docent, Dr Tuomas Pöysti
4-7.11.2003
9
The multi-level governance
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European Union is the network of several actors
Internationalizing criminal law results from networks
Pluralistic criminal law and control politics
European Court of Human Rights and Court of Justice
Common metaprinciples
Approaching definitions in the special criminal law
Importance of the elite networks
Differentiation of penal law
Problems
 the integration prevention and the symbol value of criminal
law
 manageability of the pluralistic system
MINISTRY OF FINANCE
Counsellor, docent, Dr Tuomas Pöysti
4-7.11.2003
10