week 3 - general principles

Nature of EU criminal law

Nature of EU criminal law

• general principles of ECL interplays with ‘general part’ of criminal law (e.g. elements of crime, jurisdiction, modes of liability)

• normative foundations EU criminal law (has fundamental nature, proximity to EU values, legal standard with real normative effects)

• judicially asserted and/or treaty based

  • sectoral EU law principles (effectiveness, effective and dissuasive penalties, harmonization)

  • constitutional traditions (legality)

• so, a bit fragmented but in jurisprudence referred to as “generally accepted rule/principle of EC law” , "basic principle of law"; “fundamental principle”

List of principles

Specific to EU

• Equality/equivalence of EU citizens

• Non-discrimination (in between EU specific and domestic origin)

• Sincere cooperation

• Effectiveness

• Mutual recognition

• Harmonization/Assimilation

• Primacy

Principles of domestic origin (but in EU crim law)

• Legality (certainty & non retroactivity)

• Ne bis in idem

Importance of principles

1. Gap-Filling = not clear criteria, principle can be helpful to be invoked, where the primary and secondary legislation do not provide clear or any answer

   1. Court identified lacuna and then tries to identify general principle to fill lacuna

2. Interpretative aid = to clarify EU or MS legal norms

   1. object and purpose

3. Benchmarks & constraints = reviewing validity/applicability of EU or MS law

   1. requiring negative actions (e.g. disapplying EU law) or positive measures (penalties)

   2. Protective dimension

Status of General Principles

• Equivalent to EU primary legislation, or superior (especially when used as normative benchmarks)

• Principles among themselves -> some are more important in case of conflict between principles (lex specialis = subject by subject)

  • legality > direct effect

  • ne bis in idem > proportionate penalties

• Principle specific to a specific area of law, prevails over general principles of law (e.g. legality in CL over effectiveness)

Sources of principles

1. Treaties (TEU, CFR)

   1. sincere cooperation (4 TEU) proportionality (5(1)+(4) TEU) equality of citizens (9 TEU)

   2. legality, proportionality (49 CFR)

   3. non-discrimination (21(1) CFR)

2. Fundamental Rights

   1. ECHR (6(3) TEU; ECtHR case law

   2. CFR before it became primary instrument

3. Constitutional traditions common to MS

   1. 52(4) CFR

Principle of Legality

• Important in criminal law

• Legal certainty (lex certa) + non-retroactivity (praevia)

Sources

• Art 49(1) CFR

  • nullum crimen (cannot be punished for something not criminalized)

  • nulla poena (not a heavier penalty than imposed at time of offense)

  • lex mitior (if penalty lighter subsequent to commission crime then that penalty applies)

Justification court (this is why it is a general principle)

• Art 2 TEU = rule of law → legality is a component of that

• Art 7 ECHR

• non-retroactivity common to legal orders MS

Implications from CJEU case law

1. non-implemented EU law cannot serve as basis for CR

2. regulations envisaging domestic measures cannot give rise to or aggravate CR (parameters of crim and penalisation need to be spelled out clearly)

3. Directives/FDs cannot lead to dis-application of MS laws which preclude or mitigate CR

4. Limits to indirect effect & D/FD-conforming interpretation

5. Conforming interpretations of procedural law are not prohibited

Principle of Legality → substantive law

• Kolpinghuis Nijmegen + Pretoredi Salo

  • “a directive cannot itself...have the effect of determining or aggravating the liability in criminal law of persons”

• Berlusconi

  • directives may not be relied on to create criminal law obligations, but also not be used to set aside national law which would preclude criminal law obligations

• Criminal proceedings against X

  • regulation cannot give rise to CR absent of implementing national law

Principle of Legality → procedural law

• Pupino

  • certainty and non-retroactivity prevent harmonious interpretation FD from CR being determined or aggravated, indepenndently of an implementing law BUT interpreting evidentiary rules in line with FD is not legality breach

• Advocaten voor de wereld

  • lack of requirement to verify double criminality of offences in Art 2(2) FD EAW no legality breach (mutual trust)

Ne Bis in Idem

"not twice in the same” → cannot be punished twice for the same conduct

• CISA Art 54

• CFR Art 50

• FD EAW Art 3(2) = mandatory ground for refusal

• IDEM (conduct)

  • defined by CJEU in van Esbroeck, van Straaten, and Kraaijenbrink that it is “a set of concrete circumstances…inextricably linked together in time, space and subject matter” where the “inextricable link” does not need to be identical (e.g. in the case of importing/exporting drugs quantity doesnt need to be identical) and link does not depend solely on defendant's intentions

• ENFORCEMENT requirement

  • penalty imposed, in the process of being imposed, enforced, or can no longer be enforced

  • CJEU Spasic = execution requirement general validity for NBII in AFSJ

• BIS

  • "case finally disposed of” = decision must be FINAL, barring further prosecution

  • NBII applies

    • Gozutok & Brugge

    • van Straaten

    • Gasparini

  • NBII not barring

    • Miraglia: closed proceedings w/o assessment conduct

    • Turansk: police suspended proceedings/expiry lim period

    • Kossowski: prosecutor terminated proceedings w/o investigatioon

  • TEST → does MS law definitely bar prosecution? has the case been properly investigated?

Pretore di Salo 1987

• dead fish

• Provisions of directive that are sufficiently precise can apply to individuals (to use against state) , but cannot be used by state on individuals

  • General Principle (direct effect -> directives which are sufficiently clear precise can give rise to rights of individuals to invoke against states, even if not transposed or impartially or incorrectly transposed) but the contrary is not true; states cannot rely on unimplemented directives to invoke obligations against individuals

  • Cannot rely on directives even if sufficiently clear, against individuals, to aggravate criminal liability)'

    • = PRINCIPLE OF LEGALITY IS A LIMIT TO DIRECT EFFECT OF DIRECTIVES'

    • Can only rely on NATIONAL law in criminal proceedings against nationals when they determine or aggravate liability of individuals

    • But then..berlusconi?

Kolpinghuis Nijmegen (1987)

• direct effect and to clarify direct effect is also limited

• confirmed that the directives cannot be retroactively applied & cannot aggravate liability

• also clarified what the relationship between princ of legality and direct effect of directives is (→ indirect effect is also limited by principle of legality)

• In principle, state shave obligation to interpret national law as far as possible in interpreting EU law, also if not implemented, but NOT if it breaches principle of legality

• At the time of commission offence, NL was still transposing the directives (still in compliance w EU law, not violated obligation, still had time) but the court said this made no difference -> still cannot rely on national law to aggravate criminal liability

Berlusconi 2005

→ Not only may a directive not be relied on to create crim law obligations, a directive may also not be used to set aside national law which would preclude crim law obligations

Context:

• false tax info

• applicable penal code (in this case, Italian civil code) was in line with directive at the time of the commission of the offence → once proceedings ongoing, code changed, so now false acoounting was subject to STRICTER limitation periods but subject to lesser penalties, treated as lesser offence → not in line anymore with directive

• Specific council directive that requires MS to criminalize offences and impose penalties

Question: is Italian legislation in compliance with directive? And if it wasnt, is there an obligation to dis-apply national provisions that are not in compliance with EU obligations?

• Court: obligation to dis-apply, but obligation cannot be imposed if leads to a breach of legality

• Breach of legality identified by court = principle of application of more lenient penalties (civil law systems) → if current law that is applicable at the time would lead to more favorable treatment of defendant, then we apply this, even if not in force anymore

• This case you ALLOW RETROACTIVE application

• However, if previous legislation results in harsher penalties, then breach of legality because against lex meteor (milder penalty applies)

• Impunity, then newer EU law would be applied, because cannot rely on directive to justify application of former laws if former laws result in impunity

Maria Pupino 2005

1) Clarifies indirect effect of FD and 2) how substantive law is distinguished from procedural law with regards to principle of legality

Context

• Framework decision: minors can testify under special procedure

• Not available in Italy (only in sexual mistreatment) but that wasn’t the case here. Under Italian law, minors could not testify, but FD did allow minors to testify

Question: whether Italian national courts were allowed to extend special procedure of council FD to minors under 5 for non-sexual offences, even though not foreseen under national law?

• Violation of Legality? → subject to proceedings for which special rule is applied in unforeseen circumstance

• Indirect effect to FD → does it violate principle of legality?

Part 1 ruling on indirect effect FD: yes -> FD have indirect effect (so not direct effect like directives) but in this case can interpret national laws in light of the FD

• FD do not have direct effect. They have indirect effect. Indirect effect means that court is allowed/obliged to use this decision in interpreting own laws (even if EU law is not implemented appropriately or adequately)

Part 2 ruling on indirect effect FD: legality? -> not a problem,

• limits of direct effect are then the same as directives so need to consider legality

• Can person foresee?

• Court said in the case of criminal procedure (interpreting evidentiary rules in line with FD), not so much a problem w the principle of legality → no legality

  • In line w Taricco II?

Advocaten voor de Wereld 2007

• List to verify double criminality for EAW extradition

  • needs to be equivalent criminal offence

  • 32 categories of crimes in EAW list → these are not subject to analysis of double criminality

• Question: is it a breach of legality to surrender (no analysis of double criminality) if the crime is not criminalized in one of the MS because the list is not fully harmonized yet?

• Court:

1. it concerns procedure and not substantive law → legality threshold of mechanism of criminal procedure is not that high, but also

2. FD was never meant to harmonize definitions of offences it is for national jurisdictions to define them more clearly to confirm with legality

→ Instrument itself did not need to define, that was left to MS, as long as issuing MS they had definitions that comply with principle of legality, then there is NO BREACH

• Executing MS has to TRUST that the other state is complying with the principle of legality

• Effective enforcement of EU law →

  • Effective, proportionate, dissuasive penalties (principle of effectiveness)

  • Indirect and direct effect

Gözütok and Brügge 2003

• ne bis in idem → pecuniary settlement (NBII applies to final judgements, regardless of whether classified as administrative or criminal sanctions)

• Question: can person X be subject to prosecution/extradition in another state, if they have received a pecuniary settlement in another MS (if that settlement is classified as administrative under national law)?

  • No, because “finally dealt with” so not criminal proceedings

  • Bear in mind whether case has been finally disposed of, and what does that mean

Court: it is any case where there has been assessment of 1) merits and 2) persons has been acquitted or tried & convicted → so case has been finally disposed of

• Doensnt matter if intervention national court, as long as under nat law the authorities involved were empowered to assess the merits of the case

• Obligation was imposed upon individual, even if pecuniary obligation -> so in this case there was clearly an assessment of the case and an assessment that led to the pecuniary settlement

*Any decision that under NATIONAL law would BAR prosecution -> also counts for ne bis in idem between MS so on a EU level

• Provions to turn to when applying

  • Art 54 Shengen Convention (CISA)

    • Free movement of people (because it would inhibit this out of fear they would be tried for same acts again)

  • Art 50 CFR (fundamental rihjt, prohibition against double jeopardy)

Åkerberg Fransson 2013

• Ne bis in idem → imposition of a tax penalty

• Dependent on national legislation → criminal or civil/administrative character

• If purely administrative, NOT ne bis in idem

→ BUT NBII → when administrative proceedings against this person could BAR prosecution IF (administrative) proceedings ledd to penalty that was CRIMINAL in nature

• If 2 proceedings -> first administrative but led to criminal penalty, that bars the prosecution under crim proceedings = NBII

Engel criteria ECHR (PARA 35 Fransson case) also confirmed by Bonda CJEU (?)

• Legal classification under national law of the offence

• True nature of the penalties (punitive or not)

• Harshness or severity of the penalty

Summary of cases CJEU → Principle of Legality

Di Salo → identify principle of legality as a limit to the direct effect of directives

Kolpenhuis nijmegen → direct effect and to clarify direct effect is also limited

Pupino → turn to first to identify indirect effect of FD and second to distinguish between sub and proc law with regards to application of principle of legality and its limitation to the conforming interpretation

Berlusconi → case that applies the principle of lex meteor to the realm of EU crim law, case that clarifies that the obligation of states to dis-apply national provisions not confirming to EU law cannot lead to situations that determine or aggravate the criminal responsibility of an individual