International Bachelor of LAW Program 2019 – 2020
European Criminal Law Course Notes by 18024580 Page 1 of 24
Course Notes
Lecture 1: Introduction to European Criminal Law (EUCL)
▪ General Introduction
Definition of EUCL
EUCL is not traditional criminal law where we speak of (a) domestic classification; (b) nature of the
offence; and (c) severity of the potential penalty. EUCL is not uniform across Member States, thus it’s
not systematic. This law requires the implementation of an MS to be enforced and recognized in
national courts.
History of EUCL
1951: European Coal and Steel Community – ECSC.
1957: EEC and European Atomic Energy Community (Euratom).
1986: Single European Act – SEA.
1992: The Maastricht Treaty introduced the EUCL by the aspect of Justice and Home Affairs (JHA).
Previously, there was no concept of EUCL since the European Community (EC) focussed on the
economy.
1997: Amsterdam Treaty: JHA Framework Decisions.
2001: The Nice Treaty.
* The three-pillar system does not exist anymore. Before the Lisbon Treaty the legislator had the obligation
to distinguish the concept of ‘criminal’ and other concepts of law.
2007: The Lisbon Treaty – The EC absorbed EU. JHA becomes Area of Freedom, Security and Justice.
* Opt-outs of DK, UK and IE.
Elements of EUCL
Approximation of criminal law
Formal aspect: Chapters 4 and 5, Title V TFEU (Judicial cooperation in Criminal Matters and Police
Cooperation).
*Allows more discretion in the choice of the means with which to comply with their Union obligations.
Practicalities: modified legislative procedure (initiative MS, emergency brake) – opt-outs DK, UK and IE.
Effects of EUCL: Since the Maastricht Treaty, the EU tries to approximate the domestic laws of the MS
into a general law.
Rest of EU law
Formal aspect: e.g. shared competences such as (internal) market, transport, energy, environment,
foreign policy (functionalism – see under).
Practicalities: ordinary legislative procedure (no opt-outs).
Effects of EUCL: The MS can implement non-criminal EU law (e.g. environmental law) through criminal
law [e.g. Directive 2003/6, Art. 14; Directive 2019/1 (Competition enforcement)]. EU non-criminal law may
require MS to implement non-criminal EU law with national law. But cannot require MS to impose
specific criminal penalties [ECJ, C-440/05 Ship Source Pollutioni].
Prohibitions (approximation and the rest)
Statute law e.g. Directive 2019/1: no criminal sanction for administrators that collaborate with anti-
competition authorities.
Case law e.g. ECJ, C-193/94 Skanaviii
, International Bachelor of LAW Program 2019 – 2020
European Criminal Law Course Notes by 18024580 Page 2 of 24
Purpose of EUCL
The purpose is to govern national and EU laws and its relations since there are national criminal laws,
traditions and concepts which differ from each other. Divergence: the process or state of dividing.
The law is a legal form of representing its citizens, which includes their tradition and national identity.
Functionalism
This is a large concept whereby in the course of integration as certain areas where places under the
EU’s purview with time passing and integration deepening further competences had to be taken on the
Board to serve an execution of the core policy (that is the internal market).
* That’s what happened with economic integration implying over time the need for legislating on economic crimes
as well as the need to address transboundary crimes.
Criminal law is meant for environmental and other laws to be enforced for violations to be sanctions.
✓ Freedom of movement of persons (economy);
✓ Elimination of border checks (home affairs);
✓ Common EU migration policy;
✓ EU criminal law on facilitation of illegal migration e.g. Framework Decision 2002/946/JHA;
✓ Freedom to provide services incl. transport;
✓ Harmonisation of transports’ pollution threshold (avoid unfair competition);
✓ Harmonisation of criminal sanctions for polluters e.g. Directive 2008/99.
▪ Constitutional Framework of EUCL
Treaty << Geography >> of EUCL
Principles and objectives are under Art 2 – 6 TEU;
General AFSJ provisions under Art 67 – 76 TFEU;
‘Judicial Cooperation in Criminal Matters’ under Art 82 – 86 TFEU; and
Police cooperation under Art 87 – 89 TFEU.
The EUCL Framework: The AFSJ
The objectives stated in Art 3(2) TEU are: area of freedom, security and justice and the prevention and
combating of crime. And Art 67(3) TFEU: coordination and cooperation between police and judicial
authorities, mutual recognition of judgments in criminal matters and the approximation of criminal laws.
EUCL Competences
Legal basis is of importance since the Union does not have Kompetenz-Kompetenz.
Principle of Conferral – Art 5(2) TEU
Shared competence – Art 2(2) TFEU and Art 4(2) TFEU in the AFSJ.
Legal basis of the procedural EUCL → Art 82(2) TFEU
Mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal
matters by means of directives with the ordinary legislative procedure.
Legal basis of the substantive EUCL → Art 83(1-2) TFEU
Based on developments in crime, the Council may adopt a decision identifying other areas of crime
that meet the criteria specified […]. It shall act unanimously after obtaining the consent of the
European Parliament.
The areas of crimes are e.g. 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;
computer crime and organised crime [Directive 2014/42].
European Criminal Law Course Notes by 18024580 Page 1 of 24
Course Notes
Lecture 1: Introduction to European Criminal Law (EUCL)
▪ General Introduction
Definition of EUCL
EUCL is not traditional criminal law where we speak of (a) domestic classification; (b) nature of the
offence; and (c) severity of the potential penalty. EUCL is not uniform across Member States, thus it’s
not systematic. This law requires the implementation of an MS to be enforced and recognized in
national courts.
History of EUCL
1951: European Coal and Steel Community – ECSC.
1957: EEC and European Atomic Energy Community (Euratom).
1986: Single European Act – SEA.
1992: The Maastricht Treaty introduced the EUCL by the aspect of Justice and Home Affairs (JHA).
Previously, there was no concept of EUCL since the European Community (EC) focussed on the
economy.
1997: Amsterdam Treaty: JHA Framework Decisions.
2001: The Nice Treaty.
* The three-pillar system does not exist anymore. Before the Lisbon Treaty the legislator had the obligation
to distinguish the concept of ‘criminal’ and other concepts of law.
2007: The Lisbon Treaty – The EC absorbed EU. JHA becomes Area of Freedom, Security and Justice.
* Opt-outs of DK, UK and IE.
Elements of EUCL
Approximation of criminal law
Formal aspect: Chapters 4 and 5, Title V TFEU (Judicial cooperation in Criminal Matters and Police
Cooperation).
*Allows more discretion in the choice of the means with which to comply with their Union obligations.
Practicalities: modified legislative procedure (initiative MS, emergency brake) – opt-outs DK, UK and IE.
Effects of EUCL: Since the Maastricht Treaty, the EU tries to approximate the domestic laws of the MS
into a general law.
Rest of EU law
Formal aspect: e.g. shared competences such as (internal) market, transport, energy, environment,
foreign policy (functionalism – see under).
Practicalities: ordinary legislative procedure (no opt-outs).
Effects of EUCL: The MS can implement non-criminal EU law (e.g. environmental law) through criminal
law [e.g. Directive 2003/6, Art. 14; Directive 2019/1 (Competition enforcement)]. EU non-criminal law may
require MS to implement non-criminal EU law with national law. But cannot require MS to impose
specific criminal penalties [ECJ, C-440/05 Ship Source Pollutioni].
Prohibitions (approximation and the rest)
Statute law e.g. Directive 2019/1: no criminal sanction for administrators that collaborate with anti-
competition authorities.
Case law e.g. ECJ, C-193/94 Skanaviii
, International Bachelor of LAW Program 2019 – 2020
European Criminal Law Course Notes by 18024580 Page 2 of 24
Purpose of EUCL
The purpose is to govern national and EU laws and its relations since there are national criminal laws,
traditions and concepts which differ from each other. Divergence: the process or state of dividing.
The law is a legal form of representing its citizens, which includes their tradition and national identity.
Functionalism
This is a large concept whereby in the course of integration as certain areas where places under the
EU’s purview with time passing and integration deepening further competences had to be taken on the
Board to serve an execution of the core policy (that is the internal market).
* That’s what happened with economic integration implying over time the need for legislating on economic crimes
as well as the need to address transboundary crimes.
Criminal law is meant for environmental and other laws to be enforced for violations to be sanctions.
✓ Freedom of movement of persons (economy);
✓ Elimination of border checks (home affairs);
✓ Common EU migration policy;
✓ EU criminal law on facilitation of illegal migration e.g. Framework Decision 2002/946/JHA;
✓ Freedom to provide services incl. transport;
✓ Harmonisation of transports’ pollution threshold (avoid unfair competition);
✓ Harmonisation of criminal sanctions for polluters e.g. Directive 2008/99.
▪ Constitutional Framework of EUCL
Treaty << Geography >> of EUCL
Principles and objectives are under Art 2 – 6 TEU;
General AFSJ provisions under Art 67 – 76 TFEU;
‘Judicial Cooperation in Criminal Matters’ under Art 82 – 86 TFEU; and
Police cooperation under Art 87 – 89 TFEU.
The EUCL Framework: The AFSJ
The objectives stated in Art 3(2) TEU are: area of freedom, security and justice and the prevention and
combating of crime. And Art 67(3) TFEU: coordination and cooperation between police and judicial
authorities, mutual recognition of judgments in criminal matters and the approximation of criminal laws.
EUCL Competences
Legal basis is of importance since the Union does not have Kompetenz-Kompetenz.
Principle of Conferral – Art 5(2) TEU
Shared competence – Art 2(2) TFEU and Art 4(2) TFEU in the AFSJ.
Legal basis of the procedural EUCL → Art 82(2) TFEU
Mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal
matters by means of directives with the ordinary legislative procedure.
Legal basis of the substantive EUCL → Art 83(1-2) TFEU
Based on developments in crime, the Council may adopt a decision identifying other areas of crime
that meet the criteria specified […]. It shall act unanimously after obtaining the consent of the
European Parliament.
The areas of crimes are e.g. 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;
computer crime and organised crime [Directive 2014/42].
