Criminal law policy
While the EU cannot adopt a general EU criminal code, EU criminal legislation can add, within the limits of EU competence, important value to the existing national criminal law systems.
Added value of EU rules
Action at EU level in this field is crucial for a number of reasons:
- The most serious types of organised crime are committed across borders. To prevent criminals from misusing those EU countries with the most lenient legal systems and 'safe havens' from appearing, a certain approximation of national laws can be necessary.
- Through adopting minimum standards for procedural rights in criminal proceedings and making the fight against crime more efficient, EU criminal law fosters citizens' confidence in a high level of security throughout the Union. This is of particular importance to those exercising their right of free movement.
- Common rules strengthen mutual trust between the judiciaries of different EU countries. This facilitates cooperation and mutual recognition of judicial measures.
- EU criminal law helps to prevent and punish serious offences against EU law in certain policy areas, such as the protection of the environment.
- New legislation can overcome the piecemeal approach of existing instruments and ensure a consistent and coherent system of legislation.
The Lisbon Treaty provides for a new legal framework for criminal legislation with a strong role for the European and national parliaments as well as comprehensive judicial control by the European Court of Justice.
Within the limits of the Treaty, the competent EU institutions decide which wrongful behaviours require sanctions under criminal law and ensure that the rights of suspected and accused persons and victims are protected.
As defined in the Treaty on the Functioning of the EU, the EU has three specific competences for criminal law:
Minimum rules on Euro Crimes - Article 83(1)
The EU can adopt directives providing for minimum rules regarding the definition of criminal offences, i.e. rules setting out which behaviour is considered to constitute a criminal act and which type and level of sanctions are applicable for such acts.
Such minimum rules can be adopted for the so-called 'Euro crimes', which is a list of particularly serious areas of crime with a cross-border dimension. They include 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.
The Commission proposed a new Directive on the protection of the euro and other currencies against counterfeiting by criminal law on 5 February 2013 (COM (2013)42). It will replace Council Framework Decision 2000/383/JHA.
Criminal law for the enforcement of EU policies - Article 83(2)
The EU also has the competence to adopt common minimum rules on the definition of criminal offences and sanctions if they are essential for ensuring the effectiveness of a harmonised EU policy.
European Union policies containing rules ranging from environmental protection and conservation of fisheries resources to road safety, financial services regulation, data protection and the protection of the financial interests of the EU, depend on effective enforcement. Criminal law, as the last resort, can play an important role when other enforcement methods have failed. The European Commission has published in September 2011 a Communication setting out the framework for the development of an EU criminal policy in this area, based on the principles of proportionality and subsidiarity.
Criminal sanctions against market abuse
To better protect and to reinforce the integrity of the EU's financial markets, the European Commission proposed EU-wide rules to ensure minimum criminal sanctions for insider dealing and market manipulations on 20 September 2011. With its proposal for a Directive on Market Abuse the Commission used for the first time the new legal basis of Article 83 (2) TFEU and followed the approach set out in its recent Communication "Towards an EU Criminal Policy - ensuring the effective implementation of EU policies through criminal law". Current sanction regimes applied in the Member States for market abuse offences had proven not to be sufficiently effective. The sanction regimes did not always use the same definitions of these crimes and were too divergent, allowing perpetrators to benefit from loopholes.
After negotiations between the co-legislators, the Directive on Market Abuse was adopted on 14 April 2014 (press release). The Directive complements the Regulation on Market Abuse, which improves the existing EU legislative framework and reinforces administrative sanctions and was adopted the same day.
The Directive requires Member States to take the necessary measures to ensure that the criminal offences of insider dealing, unlawful disclosure of information and market manipulation are subject to effective, proportionate and dissuasive criminal sanctions. There will be common definitions of these offences. Member States have to provide for a maximum sanction of at least four years for insider dealing/market manipulation and of at least two years for unlawful disclosure of inside information in their national law. Member States will also be required to impose criminal sanctions for inciting, aiding and abetting market abuse, as well as for attempts to commit such offenses. Legal persons (companies) will be held liable for market abuse.
After the signature of the Directive by the Presidents of the European Parliament and the Council and its publication in the Official Journal, expected in June, Member States will have to implement the Directive into national law within 24 months.
Protection of EU public money - Articles 310(6), 325, 85 and 86
To protect taxpayers' money in a context of budgetary austerity, the fight against misuse of EU public money is a priority for the Union. This priority is reflected in the Lisbon Treaty which sets out an obligation, and corresponding legal bases, to act for the protection of EU financial interests, including by means of criminal law:
Criminal annex competence
The European Court of Justice has decided, in a case concerning environmental protection (C-176/03), that the EU can take measures related to the criminal law in other policy areas as long as firstly, the application of effective, proportionate and dissuasive criminal penalties is essential for combating serious offences and, secondly, the Member States have a choice as to whether to apply the appropriate criminal penalties. This decision has paved the way for the adoption of Directive 2008/99/EC on the protection of the environment through criminal law and for Directive 2009/123 on crimes against ship-source pollution. Documents related to the implementation of these directives can be found here.
For EU criminal law to be truly efficient, it is necessary to ensure that the quality and effectiveness of its implementation by EU countries are evaluated in an objective and impartial manner.
Relevant evaluation instruments and a legal basis for the creation of appropriate new mechanisms (Article 70) have been put in place.
Expert group on EU criminal policy
In 2012, the Commission set up an expert group on EU criminal policy, composed of twenty high-level legal experts, academics and practitioners. The group was created following the Commission's Communication published in September 2011 "Towards an EU criminal policy - Ensuring the effective implementation of EU policies through criminal law".
The objective of the group is to advice the European Commission and contribute to improve the quality of EU legislation in the field of criminal law, in the light of the rules of the Lisbon Treaty and the Charter of Fundamental Rights.
The group includes law professors, judges, prosecutors and defence lawyers from different EU Member States representing the major legal traditions of the EU. The members of the group are appointed for a mandate of 3 years and meet twice a year. The first mandate of the group came to an end in May 2015 and has been renewed .