Limits to European Harmonisation of Criminal Law

• Date: 01 April 2020
• Year: 2020
• Author: Prof. Dr. Werner Schroeder LL.M. (Berkeley)
• Pages: 82
• DOI: https://doi.org/10.30709/eucrim-2020-008

I. Objectives of EU Harmonisation of Criminal Law

The terms “approximation of laws” and “harmonisation” stand for the alignment of national rules with a standard prescribed by Union law. Since the Treaty of Lisbon, criminal law in the EU has been approximated or harmonised within the supranational framework of “Judicial Cooperation in Criminal Matters” (Art. 82 et seq. of the Treaty on the Functioning of the European Union, TFEU), which is part of the “Area of Freedom, Security and Justice” (Art. 67 et seq. TFEU). In principle, criminal law thus follows general rules, which also apply in other areas of Union law, e.g., in the internal market. However, the harmonisation of criminal law is subject to a number of peculiarities.

In the EU, legislative harmonisation is not an end in itself but has to be understood functionally. It therefore not only serves to reduce legal differences between the Member States but also to achieve certain policy objectives as well as an overall “European common good.”¹ For example, the European harmonisation of the Member States’ criminal laws under Art. 67 para. 3 and Art. 82 et seq. TFEU is a building block in the Area of Freedom, Security and Justice, as it ensures a “high level of security.” However, this policy goal of the EU is not merely designed to meet criminal law problems arising as a side effect of a European area without internal borders. Beyond that, it has a meaningful function for the EU as a whole, which has developed from a European economic area into a supranational living space. This becomes clear in the values and objectives of the EU, which are set out in Art. 2 and Art. 3 para. 2 of the Treaty on European Union (TEU). Consequently, the harmonisation of criminal law is an expression of the common values of the Member States.

II. Instruments for EU Harmonisation of Criminal Law

Primarily, limits for the harmonisation of criminal law result from the EU’s limits of competence. The perception that the EU legislator is only allowed to harmonise legislation where it has the necessary legislative powers to do so may seem trivial. It is well known, however, that the EU legislator tends to extend its legislative and harmonisation powers. For example, Directive (EU) 2015/849 on combating money laundering and terrorist financing² is based on the internal market competence (Art. 114 TFEU), which seems reasonable, since there is a given link to the free movement of capital. However, as the Directive constitutes accompanying law to the effective enforcement of criminal law prohibitions, Art. 83 TFEU should have served as its genuine legal basis.

As a rule, legal harmonisation in the EU is achieved by way of minimum harmonisation, which gives Member States room for broad discretionary power. For example, Art. 17 Regulation (EC) No. 178/2002 on the general principles and requirements of food law³ obliges Member States to create effective, proportionate and dissuasive sanctions in the event of infringements of food law⁴ but leaves it up to the States on how to implement this obligation at the national level.⁵

In exceptional cases however, certain areas of EU law require full harmonisation. In this case, all requirements concerning the approximation of legislation derive from the EU act itself. This means that Member States will not then be able to incorporate laws into their legislation or maintain laws other than those set out in the applicable EU act.⁶ In regards to the areas of criminal procedural law and substantive criminal law, the EU does not have such a comprehensive competence for legal harmonisation, even under the Lisbon Treaty. Instead, in specifically defined areas under Art. 82 and Art. 83 TFEU, it may establish “minimum rules” for the approximation of national law, and only by means of “directives.”

III. Positive and Negative Strategies for EU Harmonisation of Criminal Law

In order to understand the significance of approximating laws in the EU, it is important to note that this method exists in a relationship of mutual tension with other strategies that promote European legal integration.

1. Principle of mutual recognition

In a strict sense, the concept of approximation of laws described above is also referred to as an instrument of positive integration. This instrument eliminates differences in national legal systems by creating a (positive) uniform standard for the entire EU with the enactment of EU secondary legislation.

The method of negative integration, on the other hand, is based on the elimination of national legal differences in the EU through mutual recognition.⁷ This concept has its origin in the internal market principle and applies to areas that have not been harmonised by EU secondary legislation yet. It provides that authoritative decisions from the Member State of origin regarding a product, service, or person (e.g., a permission, an authorization, or a license, etc.) also have legal effect in the Member State of destination, thus making further legal scrutiny dispensable. Therefore, a specific good, service, or professional activity that is approved in one Member State must also be approved in other Member States.⁸ As a result, this mechanism brings about a de facto approximation of laws, in the form of a negative approximation of laws to the lowest national level applicable in the EU.

However, mutual recognition has its limits. In the internal market, this concept presupposes that the legal standards applicable in the two Member States concerned, i.e., the country of origin and the country of destination, are almost equivalent. If this is not the case, the Member States of destination may refuse recognition by relying on justifications, e.g., necessary protection of the national ordre public.

2. Relationship between EU harmonisation of criminal law and mutual recognition

The TFEU chapter on judicial cooperation in criminal matters also encompasses these two strategies described above. In comparison with internal market law, however, it is remarkable that mutual recognition should take priority over the approximation of national legislation by means of EU secondary legislation. Positive harmonisation of criminal law should merely be a subsidiary means of enforcing the principle of mutual recognition.⁹ In relation to criminal procedural law, this is set out in Art. 67 TFEU (“if necessary”) and in Art. 82 para. 2 TFEU (“to the extent necessary”).

As the above mentioned example of the internal market law shows, mutual recognition ultimately brings about an indirect European approximation of law – yet, an approximation at the lowest legal level applicable in an EU Member State, as the decisions of each Member State have to be recognised by all other Member States. This approach is particularly problematic in the area of criminal law. The functionalist considerations on which mutual recognition in the internal market is based cannot simply be transferred to the recognition of criminal decisions.¹⁰ In the latter area, the principle of recognition does not ‒ in contrast to its application in the internal market – serve to extend rights and freedoms but rather serves to reduce them transnationally. Hence, in order to make mutual recognition a proper tool for the integration of criminal law, further conditions must be observed:

(1) Firstly, unlike in the internal market, mutual recognition of acts may not work automatically in the area of criminal justice. Rather, pursuant to Art. 83 para. 1 subpara. 2 lit. a TFEU, the principle of recognition must first be implemented by the EU under secondary law through special “rules and procedures.” Framework Decision 2002/584/JHA on the European arrest warrant¹¹ represents the most important example of such a rule, which lays down certain conditions for the mutual recognition of an arrest warrant.

(2) Secondly, implementation of the principle of mutual recognition of judicial decisions crucially depends on mutual trust in the quality and rule of law of criminal justice in all Member States.¹²

3. Limits of mutual recognition

One may wonder whether such mutual trust is justified if criminal justice in the Member States has not been brought to a European minimum standard yet. Art. 82 para. 1 TFEU ignores these concerns and calls for mutual recognition of judicial decisions even without prior approximation of laws. In this regard, the Framework Decision on the European arrest warrant, according to which a European arrest warrant issued by the requesting EU Member State must be enforced by the delivering Member State (Art. 1 para. 2), is again worth mentioning. This strict standard “which reflects the consensus reached by all the Member States”¹³ is justified by the fact that all Member States are constitutional states, a condition that was scrutinized when they joined the EU (cf. Art. 2 TEU in conjunction with Art. 49 TEU).

In fact, this assumption is no longer valid.¹⁴ We are witnessing a massive rule-of-law crisis in some Member States, such as Hungary, Poland, and Romania, with regard to the judiciary in particular. The...