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Summary EICL - A. Klip European Criminal Law
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SCHEMA EUROPEAN CRIMINAL LAW SESSION 3 The influence of national SUBSTANTIVE criminal law on ECL
LITERATURE:
- Andre Klip p. 133-208, 218-231, 235-236, 243-246 and 351-372.
- The principle of legality in ECL, C. Peristeridou
- Case law
o Berlusconi
o Yonemoto
o Minh Khao Vo
o Akerberg Fransson
o Admiral Casinos & Entertainment
- Legislation:
o FD 2008/841
o Directive 2014/57/EU
EUROPEAN COMMON DEFINITION OF CRIMINAL LAW
One of the characteristics of the EU criminal law, is that it derives from multi-layered sources
There is Union law which constitute statutory law. Union law must be interpreted in an
autonomous way and the national meaning Is not decisive. If national definitions were
decisive, a uniform interpretation could no longer be guaranteed.
General principles of law (art 6 p3 TEU)
National law (relevance of the legal traditions of MS; art 6 p3 TEU)
Human rights obligations: which are both part of national law and general principles of law
Union law and national law mutually influence each other. General part is not codified. Competence
criminal law of EU laid down in art 83 TFEU.
AG Mazak in Case C-440/05: there is no uniform concept of the notion of criminal law. He took the
ECHR case law of the ECtHR autonomous interpretation. A punitive element must be attached
to the sanction. This may lead to different results among MS, but is a consequence of the fact that
“the classification of certain kinds of conduct for the purpose of CL is not harmonised and is,
therefore, governed by NL”.
In the Bonda case, the Court explicitely embraced the ENGEL criteria, stipulated by the ECtHR.
+ Akerberg Fransson case deals with this:
Question was if it was a double penalty.
If you not pay taxes you have administrative proceedings with a tax office and then you also have
criminal proceedings for tax evasion. Ne bis in idem: you cannot be punished twice. But it all depends
of whether the tax law provisions is of criminal nature. Is tax law criminal law?
What did the court say?
They gave criteria to decide whether it was criminal or not, but it was for the MS to apply the criteria
and determine.
Why did the court threw the ball to the MS?
The national court gets the feel of which procedure is really that – Engel criteria. Only the national
courts can know this and are able to assess the criteria – look at the facts thoroughly etc. This is also
why there isn’t a common definition of ECL.
,! Note: when enforcing national criminal law Greek maize apply. This may lead to NL being set
aside and NCL not being applied. The MS remain under the obligation of sincere co-operation.
LEGALITY PRINCIPLE
The legality principle = an inherent and key element under UL = general principle of EU. Formulated
in art 49 of the Charter. Following elements:
The classical safeguard of nullum crimen sine lege and nulla poene sine lege, the prohibition
of retroactivity, the application of the lex mitior rule (BERLUSCONI), the Nuremberg
exception, and the requirement of proportional sentencing.
Penalties must have a proper legal basis.
Criminal liability cannot be based directly upon a Directive. Criminal liability for violations of
UL always requires implementation into national CL UL is dependent on NL. The fact that
Directives in CL require implementation into NL is fully in line with the legality principle (art
83, 288, 291 TFEU).
The obligation to interpret in conformity with a Directive, may not determine or aggravate
criminal liability.
A FD may neither determine nor aggravate criminal liability
A Regulation may not be the sole basis for criminal responsibility. The national court is bound
by an interpretation of the NL that is compatible with the Regulation. However, like a
Directive, a Regulation cannot of itself and independently of implementing NL, determine or
aggravate criminal liability. This Is extraordinary, because a Regulation does not require
implementation.
Also applicable in administrative fields of law.
Criminal liability is always based on national law (legality principle).
The Court held that the principle of legality is satisfied “where the individual can know from the wording of
the relevant provision and, if need be, with the assistance of the court’s interpretation of it, what acts and
omissions will make him criminally liable”. The emphasis on foreseeability makes it clear that the legality
principle entails the element of lex certa.
Legal certainty is the broader concept, with legality and the prohibition of analogous interpretation
regarded as sub-categories. The legality principle does not require a specific interpretation of a Directive,
but it does exclude extensive interpretation.
It is for the national court in interpreting the law to assess compliance with the principle of legal certainty.
It is the national implementing CL that must comply with all the requirements of the principle, not the
Union act that imposes the obligation to implement.
The legality principle does not require that the penalty attached to an offence be provided, is relevant. The
legality principle does not require double criminality in co-operation between MS. The abolition of the
double criminality requirement in the so-called list of offences for which the surrender between the MS
may take place does not infringe upon the principle of legality. Alleged criminal liability will be based upon
the applicable law of the MS issuing the European Arrest Warrant.
GENERAL PRINCIPLES OF EU
Art 6 TEU
1 National constitutional traditions (common) tradition common to all the MS’s
2 Derived from human rights convention
, International legal instruments (especially the ECHR)
The Court has formulated general principles of Community law, which must be applied when
interpreting the law. These prevail over the obligations found in primary & secondary EU legislation.
The general principles of EU law are general principles of law which are applied by the ECJ and the
national courts of the MS’s when determining the lawfulness of legislative and administrative
measures within the EU. General principles of EU law may be derived from common legal principles
in the various MS, or general principles found in international law or EU law. Human rights are also
seen as general principles. Amongst others, the ECJ has recognised fundamental rights,
proportionality, legal certainty, equality before the law and subsidiarity as general principles of EU
law General principles of law should be distinguished from rules of law as principles are more
general and open-ended in the sense that they need to be honed in order to be applied to specific
cases with correct results;
Hierarchy: treaty + general principles together, then subsidiarity/secondary law
History: EU was conflicting with human rights and general principles. Therefore they
recognised the general principles of EU law. They are laid down in the Treaty or recognised
by the ECJ in case law. In national law, they are most of the time not codified, but are well
used. The Court has to do a comparative search if this is a general principle; it has to be
recognised by more than one MS. Is has to be general accepted: common legal culture.
Relation to criminal law: Some general principles specifically relate to criminal law. (nulla
poena sine legem, lex mitior, ..etc.) Some general principles are concepts of criminal liability, how
criminal law functions. These are the notions of criminal law; mens rea, actus reus.
Strict liability is no general principle of EU law. The Court decided that t he MS don’t have to apply it,
they can though. Strict liability; you can prosecute even if there is no mens rea (no intent, guilty mind,
negligence, recklessness). So, prosecution without any mental state exception to the principle of
guilt.
Examples of general principles of EU law that are also part of national criminal law:
- Ne bis in idem – not prosecute twice for the same act
- Legality – criminal liability should have a proper legal basis (not a directive, but the national
implementing legislation)
- Proportionality
- Lex mitior – retroactive application of the more lenient penalty
- The prohibition of retroactivity (when it benefits the accused)
- Equal treatment
- Fundamental rights for the defence (art. 6 ECHR)
Who needs to comply with the general principles?
When something falls within the scope of EU law. The national authorities have to comply with the
principles, when they implement/interpret etc. But also the European authorities. So it applies both
at the EU and national level.
LEGISLATIVE COMPETENCES OF THE EU IN CRIMINAL LAW
Union legislation should not have the effect of changing the legal system of a MS. The principles
of conferral, subsidiarity and proportionality limit the possible influence of UL. Fundamental rights
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