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 that set minimum rules on the definition of criminal offences. These create rules setting out what constitutes a criminal act and what type and level of sanctions apply for such acts.
Minimum rules like these can be adopted for 'Euro crimes', which are particularly serious crimes with cross-border aspects. They include issues such as 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, cybercrime and organised crime.
On 6 May 2014, the EU adopted a Directive on the protection of the euro and other currencies against counterfeiting by criminal law on the basis of a Commission proposal of 5 February 2013 (COM (2013)42). As the single currency shared by the Member States of the euro area, the euro shall be protected in a consistent manner across the Union, by defining criminal offences in a similar manner and by setting minimum rules to sanction them. The Directive also ensures that adequate tools can be used for investigations, like it is the case for organised crime, thus improving the quality of cross-border investigation in the field of counterfeiting of currencies.
This Directive will replace Council Framework Decision 2000/383/JHA. Member States will have to implement it into their own legal system by 23 May 2016.
Legislation to enforce EU policies - Article 83(2)
The EU can also set EU-wide minimum rules on criminal offences and sanctions if these are essential to ensure that an EU policy is effectively implemented in the same way across the EU.
EU policies such as protection of the environment or free movement of capital rely on effective enforcement. Criminal law can help ensure that the rules are followed if other other enforcement methods have failed. In September 2011, the European Commission has published a Communication setting out the principles for an EU policy on enforcement by criminal law.
Criminal sanctions for market abuse
The Directive on Market Abuse was adopted on 14 April 2014, based on the new Article 83(2) TFEU. It complements the Regulation on Market Abuse, which improves EU legislation in this area and strengthens administrative sanctions available for abuse. Member States will have to implement the Directive into their own legal system by 3 July 2016.
The Directive requires Member States to introduce effective, proportionate and dissuasive criminal sanctions measures for insider dealing, unlawful disclosure of information and market manipulation. There will be EU-wide definitions of these offences. Member States must provide that a judge can sanction insider dealing/market manipulation up to four years and of unlawful disclosure of inside information up to at least two years. Member States can even go beyond this level of sanctions. They must also introduce criminal sanctions for inciting, aiding and abetting market abuse and attempts to commit such offenses. Companies will be held liable for market abuse.
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 .