SCHEME EUROPEAN CRIMINAL LAW SESSION 2
The influence of Union law on national criminal norms: the paradigm of the Five Freedoms
LITERATURE
- ANDRE KLIP P. 85-131
- CASE LAW
o THE SOCIETY FOR THE PROTECTION OF THE UNBORN CHILDREN IRELAND
o BORDESSA CASE
o VAN SCHAIK CASE
o SKANAVI CASE
o JOSEMANS CASE (COFFEESHOP CASE)
o CALFA CASE
- LEGISLATION: DIECTIVE 2004/38/EC
Steps to follow in cases related to obstruction of the five freedoms by MSs
A criminal rule affects the free movement when there is a cross-border element and one of the five
freedoms have to be involved.
1) Does the situation fall under EU law? There
has to be a cross-border element (Abortion
case)
2) Which fundamental freedom?
3) Is there harmonization on the matter?
4) Is there a restriction on one of the
freedoms imposed by the national
authorities? Describe the restriction. The
restrictions are not the same for every
freedom. Is it discriminatory? If it is discriminatory, it is not automatically illegal but there is
another consequence: you must see if the measure is proportionate.
5) Is this restriction justified? (Bordessa) Where can you find a justification? It must fall in the
treaty derogations or in exceptions mentioned in secondary legislation.
Treaty (primary legislation) when there is no full harmonization. There are specific
articles for specific freedoms.
Public policy: MS can include different kinds or reasons that are close to their
heart.
Public security: f.e. guns, army stuff etc.
Public health: cannabis, alcohol, gabling, infectious diseases
Specific justifications: protection of national treasures f.e.
Secondary legislation: Directives specific justification when there is full
harmonization (can be read in the Directive or you can notice from the type of
Directive).
Bordessa: Italian national and he was trying to transport a lot of money from Spain to
France. Spanish caught him. Another couple was caught in France. They had to get an
authorization. And if they didn’t get that it was a criminal offence. How do we judge if it’s
in line with EU law? You have to protect/prevent tax evasion/money laundering/the
market. This all could be justified as public policy. So we can justify it
The influence of Union law on national criminal norms: the paradigm of the Five Freedoms
LITERATURE
- ANDRE KLIP P. 85-131
- CASE LAW
o THE SOCIETY FOR THE PROTECTION OF THE UNBORN CHILDREN IRELAND
o BORDESSA CASE
o VAN SCHAIK CASE
o SKANAVI CASE
o JOSEMANS CASE (COFFEESHOP CASE)
o CALFA CASE
- LEGISLATION: DIECTIVE 2004/38/EC
Steps to follow in cases related to obstruction of the five freedoms by MSs
A criminal rule affects the free movement when there is a cross-border element and one of the five
freedoms have to be involved.
1) Does the situation fall under EU law? There
has to be a cross-border element (Abortion
case)
2) Which fundamental freedom?
3) Is there harmonization on the matter?
4) Is there a restriction on one of the
freedoms imposed by the national
authorities? Describe the restriction. The
restrictions are not the same for every
freedom. Is it discriminatory? If it is discriminatory, it is not automatically illegal but there is
another consequence: you must see if the measure is proportionate.
5) Is this restriction justified? (Bordessa) Where can you find a justification? It must fall in the
treaty derogations or in exceptions mentioned in secondary legislation.
Treaty (primary legislation) when there is no full harmonization. There are specific
articles for specific freedoms.
Public policy: MS can include different kinds or reasons that are close to their
heart.
Public security: f.e. guns, army stuff etc.
Public health: cannabis, alcohol, gabling, infectious diseases
Specific justifications: protection of national treasures f.e.
Secondary legislation: Directives specific justification when there is full
harmonization (can be read in the Directive or you can notice from the type of
Directive).
Bordessa: Italian national and he was trying to transport a lot of money from Spain to
France. Spanish caught him. Another couple was caught in France. They had to get an
authorization. And if they didn’t get that it was a criminal offence. How do we judge if it’s
in line with EU law? You have to protect/prevent tax evasion/money laundering/the
market. This all could be justified as public policy. So we can justify it
