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Summary EICL - A. Klip European Criminal Law
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A summary of the prescribed parts of A. Klip - European Criminal Law, part of the course European International Criminal Law of Utrecht University (year )
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Summary A. Klip – European Criminal LawLecture 1
Chapter 2
Historic development of the EU
In 1951, France, Germany, Italy, Belgium, the Netherlands and Luxembourg established the European
Coal and Steel Community. This was followed by the 1957 Treaty establishing the European Economic
Community and the European Atomic Energy Community. In the seventes, ember States maintained
the clear desire to keep criminal law within their own authority. They favoured further and more
intensive cooperaton in criminal maters.
The Treaty of Maastricht on European Union (EU) in 1992 created a structure of a European Union based
upon three pillars. This treaty formally opened the way for the EU to have competence in the feld of
criminal law. However, it was the Council and not the Commission that was designated as the key fgure
in this area. Thus, the ember States maintained control over all initatves with regard to criminal law.
The Treaty on European Union was amended by the Treaty of Amsterdam in 1997 and the Treaty of Nice
in 2001. In 2007, the Treaty of Lisbon was concluded, which basically maintains the contents of the
rejected consttutonal treaty. The EU is now founded upon the Treaty on European Union (TEU) and the
Treaty on the Functoning of the European Union (TFEU). The TEU regulates the insttutonal structure of
the Union, and has abolished the pillar structure established under the Treaty of aastricht. As a result,
there is only one insttutonal structure for all the areas in which the Union is competent.
The internal market (art. 26 TFEU) comprises an area without internal fronters in which the free
movement of goods, persons, services and capital is ensured. These freedoms must not meet any
obstacles. Thus, Union law creates a new legal order, which has become an integral part of the legal
systems of the ember States and which their natonal courts are bound to apply. The subjects of the
new legal order comprise not only the ember States but also their citiens.
Principle of sincere cooperaton
According to the principle of sincere cooperaton (or principle of loyalty or enforcement obligaton, see
art. 4 par. 3 TEU), ember States have a general obligaton to enforce Union law. This obligaton of
enforcement rests upon all bodies of the ember States. It creates a positve duty to carry out all
obligatons, as well as an obligaton to refrain from doing anything that might be contrary to the
objectves of the Union. Art. 4 par. 3 TEU can be characterised as an obligaton to achieve a certain
result, although it doesn’t specifcally indicate how (by which mechanisms) ember States should meet
their obligatons. Before the Treaty of Lisbon, it had long been assumed that Community law could not
prescribe that ember States had to practce enforcement under criminal law. However, the Court of
Justce of the EU (ECJ) opened the door for an obligaton to use criminal law as the means to enforce.
Pillar structure
The EU was established by the Treaty of aastricht, which created a pillar structure, in which each pillar
was distnguished by the diferent manner in which legislaton was adopted, its binding efect and its
compliance monitoring. In the First Pillar, Community law found a place, based upon the Treaty
establishing the European Community. The Second Pillar was where a common defence and foreign
policy took place. The Third Pillar related to cooperaton in the area of freedom, security and justce
(AFSJ, see art. 67 TFEU). In the Third Pillar, criminal law was the main enforcement instrument. Whilst
,Community law had created its own legal order, the Third Pillar had not. Third Pillar law preserved its
purely internatonal law character: it had no direct efect, there was no obligaton to enforce the law.
However, in ECJ Pupino the Court extended the enforcement obligaton also the Third Pillar. In ECJ
Pupino, the Court prepared the ground for the convergence of the pillars in the Treaty of Lisbon.
One legal order
Whilst diferences in origin may stll remain visible, they are gradually disappearing, both as a result of
the Court’s case law and the Treaty of Lisbon, which creates one insttutonal framework that merges the
internal market and the AFSJ (art. 3 par. 2 and 3 TEU). It results in the enforcement mechanism being
applicable to all felds of law (including criminal law).
One consequence of the complete merger of the internal market and the AFSJ is that all the principles
that have been developed under Community law for the realisaton of the internal market are now fully
applicable to all felds of Union law, including former Third Pillar law. The applicaton of Union law in
natonal criminal law gave rise to a form of indirect harmonisaton. ost notons derived from Union law
are not specifcally geared towards criminal law, but apply to all legal areas. The principle of sincere
cooperaton and its enforceability (the Commission bringing an acton against a ember State before the
Court, see art. 258 TFEU), have a harmonising efect on the natonal laws of the ember States.
The aboliton of internal borders created the internal market and, at the same tme, made the external
borders even stronger (movement from outside the EU into the EU is subject to severe restrictons). In
criminal law, however, the concept of external borders does not play a role. Criminal law is not oriented
towards a specifc area that must be defended against and by others, but on controlling undesirable
behaviour of persons residing within and outside the area. The AFSJ distnguishes itself from the internal
market in another way: while free movement ofers advantages to the European citien, the free
movement and aboliton of internal borders in criminal law does not directly help the citiens, but does
aid the ember States.
European integraton
European integraton can be defned as the progressive process of bringing European states, peoples and
their societes closer together. Integraton within the EU, and harmonisaton, are understood as a linear,
one-way processes. Integraton need not necessarily take place in a legal form. This is where the
distncton with harmonisaton lies, the later having a legal connotaton. Harmonisaton is the
convergence of the legal practce of various legal systems based upon a common standard.
Harmonisaton can be considered to be a legal means for achieving the politcal objectve of integraton.
Harmonisaton consttutes an atempt to reduce diferences, but its ultmate goal is not to eliminate
them: the eliminaton of all diferences would correspond to the goal of unifcaton (which is the case in
competton law). Harmonisaton distnguishes itself from mutual recogniton. The mutual recogniton of
legal diferences is, in fact, an acknowledgment of the ember States’ right to be diferent and their
desire not to change. The European Union essentally conducts a three-track long-term policy: with
harmonisaton, the goal is to arrive at common rules. With mutual recogniton the partes allow the
diferences to remain and in the process of integraton, something shared and European is created.
Three diferent levels of motves for further integraton of criminal law can be deducted:
1. At the macro-level: the ideal of one Europe or the fght against terrorism. Further integraton is
regarded as something that is self-evident;
, 2. At the meso-level: the argument that fghtng crime is more efectve if it happens in a
harmonised way or, as a variaton on this argument, that harmonisaton leads to beter law;
3. The micro-level: this level pertains to practcal maters that must be regulated and to practcal
needs that must be satsfed.
A number of aspects pose challenges for any discussion on the necessity of harmonising criminal law in
Europe. The frst is a diference of opinion on the role that criminal law should play in European society.
The second element is the struggle for power within the EU.
Tools
In essence, the EU uses two legal tools to pursue its objectves: hard law (legislaton, the backbone of
integraton and harmonisaton) and soft law (control instruments that are not legislaton but may be
based upon legislaton). These terms are generally, although not completely, consistent with
harmonisaton and integraton.
Harmonisaton and approximaton
Harmonisaton or approximaton means that in a given policy area, the ember States must respect the
stated minimum obligatons (e.g. art. 82 and 83 TFEU). They are, however, authorised to establish
supplementary provisions. It is fair to conclude that harmonisaton is stll reserved for areas of Union
policy that previously belonged to the First Pillar. Harmonisaton provides a higher degree of integraton
and similarity than approximaton. Approximaton allows ember States more discreton in the choice of
the means with which to comply with their Union obligatons. However, neither the Treates nor the case
law of the Court are explicit about the dividing line between harmonisaton and approximaton. To date,
the actual infuence of the harmonisaton and integraton model has, with regard to Third Pillar law,
been limited and well below its potental. There are several reasons for this:
1. First, it is related to the nature of compromise legislaton. In additon, even though criminal
lawyers tend to see legislaton as law, European integraton is, frst and foremost, a politcal
process;
2. The second reason is the use of 24 legal languages. By defniton, the use of various language
versions leads to diferences in some legal instruments;
3. Now that implementaton is inevitable in criminal law, common standards will be translated and
incorporated into a natonal context. Natonal law enforcement ofcials will interpret rules with
natonal eyes and as part of an entre natonal system;
4. The actual role of the ECJ in the interpretaton of Union law in preliminary questons is gradually
taking on more shape, but stll remains fragmented (not all ember States make use of the
procedure);
5. The fifh reasons lies in the absence of a view on the role of criminal law in the Union: there is no
grand design on the relatonship between Union law and criminal law.
The EU does not practce just one form of harmonisaton. A distncton can be made between positve
and negatve integraton. Positve integraton refers to areas in which the Union harmonises the
substantve law in a certain feld and, as a consequence of this, the discreton of the ember States for
other measures becomes increasingly limited. Negatve integraton does not force ember States to
implement specifc legislaton in order to harmonise the underlying norms. With negatve integraton,
Union law simply states that certain actons must not meet any impediments (think about the fve
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