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SCHEMA EUROPEAN CRIMINAL LAW SESSION 1 The concept of EU criminal law
LITERATURE
- ANDRE KLIP: P. 1-94.
- READER: p. 5-22
- CASE LAW (reader p. 23-50)
o COMMISSION V GREECE = GREEK MAIZE CASE
o TARICCO CASE
- COLLEGE 1: FOUNDATIONS OF EU CRIMINAL LAW
WHAT IS CRIMINAL LAW?
European Criminal law is defined as the multilevel field of law in which the European Union has
normative influence on substantive criminal law and criminal procedure or on the cooperation
between the Member States.
Definition art 6 EHRM following the Engel-criteria:
- legal classification of the offence under national law
- the nature of the offence
- the degree of severity of the penalty that the person concerned risks incurring.
Art 82 & 83 TFEU: mentions minimum rules for areas in which approximation
(harmonization) may take place.
The main developments of the law take place under the influence of the Court. The Treaties are
often simply codify developments in the case law of the Court
Treaties: TFEU & TEU fundamental rights – freedoms
Fundamental rights Fundamental freedoms (substantive rules UL)
Rights & freedoms guaranteed = rights given to citizens by the TFEU within the Union
by the Charter, ECHR.... 5 freedoms:
- Movement of persons art. 45-55 TFEU
*Freedom of movement of workers (art 4 TFEU)
exceptions? Public security, public health & public policy.
*Right of establishment art 49 TFEU. Exceptions: public
security, public health & public policy.
- Goods art. 28-37 TFEU
Exceptions MS can use?
declaration of real origin
content information on label
1
, compliance with appropriate tax rules
! Quantative restrictions (art 34 TFEU)
- To provide services art 56 TFEU
Exceptions: art. 62 jo. 52 TFEU? Public security, health &
policy.
- Capital art 63 TFEU. Also creates free movement of
capital + payment between MS & third countries.
Exceptions art 65 TFEU?
- Residence (the only one not related to economic
activity): art 21 (2) TFEU. Every citizen of the Union who
does not otherwise enjoys right of residence as a result
of other provisions of the Union, has the right to move
and reside freely within the territory of the MS =
fundamental freedom but not unconditionally.
How to look at a case?
1. Is the case within Union law?
2. Is a freedom under the Treaties infringed?
3. Is there a harmonizing instrument?
4. Is there a justification?
5. Is there discrimination?
6. Is the measure proportionate, necessary and suitable?
Criminal law infringing upon free movement right?
Cross-border element?
a. What is the free movement right at stake?
b. Does it allow for exceptions/ justifications?
c. Is the exception applied without discrimination (on the base of nationality)?
Free movement rights are for EU-nationals. But there can’t be a (direct or indirect) discrimination
between nationals of a MS and other EU-nationals.
d. Is the exception applied proportionally and wit respect for subsidiarity?
TFEU deals only with activities related to transnational movements. So if all activity takes place within
borders of one MS and relates to the workers, goods, services,… of that MS, then that activity does not
come within the scope of the Treaties (so a cross-border element).At first sight the TFEU does not give any
rights to the nationals of MS vis-à-vis their own state, it does not say anything with regard to purely internal
situations.
BUT the Court has geld that the fundamental freedoms may be relied upon by nationals in and against
their own MS, provided they relate to the fundamental freedoms of others. So individuals who are not
entitled to Union freedoms themselves may profit from the freedoms of others. It appears from case law
that the link with UL does not need to be very strong.
The 5 freedoms are not of an absolute character and a number of restrictions might be justified under UL.
There are 2 types of justifications for restrictions:
a) Areas where harmonisation has taken place. This relates to specific common policies or to a common
organisation of the market. f.e. Directive
b) Exceptions provided in the Treaty for each of the specific freedoms.
- Public morality (art 36)
with regard to goods only f.e. pornographic material
- Public policy (art 36, 45, 52, 65)
with regard to goods, workers, establishment, services and capital = public interest
SO national criminal rules can restrict the free movement!: Maastricht Coffee Shop case (session2).
2
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