Minimum Criminal Penalties in the European Union: In Search of a Credible Justification

Published date01 November 2015
Date01 November 2015
Minimum Criminal Penalties in the
European Union: In Search of a Credible
Wendy De Bondt
* and Samuli Miettinen
Abstract: The EU has recently mooted the possibility of harmonising minimum penalties.
Minimum criminal penaltiesrefers to the lowest sanction available for a judge in a
concrete case. Calculating the actual penalty involves legal mechanisms that might
mitigate that penalty. Comparative analysis reveals that a distinction needs to be made
between minimum penalties included in national criminal codes (in abstracto penalty)
and the lowest penalty that might be imposed (in concreto penalty). Although in abstracto
minimum penalties are found in the criminal codes of most Member States, they are
ercely opposed in others. In concreto minimum penalties that constitute an absolute limit
to the discretion of a judge are even more controversial. Against that background, this
contribution reviews whether or not the EU should force the Member States to impose
absolute, in concreto minimum criminal penalties. It examines the justications presented
in recent proposals in light of legal and criminological research.
I Introduction
Criminal law remains a sensitive area from the perspective of legal integration. The
issue of penalty levels is amongst the most sensitive. Views on sentence severity differ
signicantly across Member States. A myriad of interlinked elements in national
criminal justice systems complicate comparisons between legal systems. The diversity
in those myriads makes it difcult to develop a coherent and effective EU-level penalty
policy. Recent proposals on minimum penalties are examples of this dilemma. Respect-
ing plurality between Member States by limiting approximation efforts to individual
elements of penalty systems may not be suitable given the aims of the Union: approxi-
mation of one element is insufcient to achieve a satisfactory level of convergence. It is
also unclear whether the reasons that are stated for approximating minimum penalties
are aligned with criminological evidence on their effect. Unication, the wholesale
harmonisation of all elements of penalty systems, could in principle be effective. How-
ever, this is politically difcult and may not constitute a minimum rulewithin the
meaning of the Unions conferred competence in the eld. Thus, the Union is faced with
a choice between an unpalatable and unconstitutional unication of penalty systems
and an ineffective approach that respects plurality but is not suitable for achieving
the aims of approximation. We explore this dilemma in the context of arguments
*Professor Dr Wendy De Bondt is professor of criminal law and rights of the child and member of the Institute for
International Research on Criminal Policy at Ghent University. Dr Samuli Miettinen is associate professor at
Tallinn University and postdoctoral researcher (xed term) at the University of Helsinki.
European Law Journal, Vol. 21, No. 6, November 2015, pp. 722737.
© 2015 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK and 350 Main Street,
Malden, MA 02148, USA
presented in support of minimum penalties in recent legislative proposals. We argue
that attempts to impose minimum penalties on the basis of this reasoning could be
subject to judicial review. The prospects for such an action are improving, as demon-
strated in the light of recent Court of Justice case-law that examines impact assessments
and appears to carefully scrutinise the proportionality of proposals that impact on
fundamental rights.
Should the EU approximate minimum penalties? Article 83 of the Treaty on the
Functioning of the European Union (TFEU) details the EUs competence to approxi-
mate minimum standards with respect to the denition of the constituent elements of
offences and the accompanying penalties of the Member States. The EUs approxima-
tion competence dates back to the Treaty of Amsterdam. Article K.3.(e) TEU, later
renumbered Article 31(e) TEU, allowed measures establishing minimum rules relating
to the constituent elements of criminal acts and to penalties []. Pursuant to this
provision, the EU can set minimum standards whilst allowing the Member States to
decide to go beyond those minima in their own legal system. Notwithstanding the intro-
duction of that express approximation competence, EU attempts to interfere with the
national criminal codes are typically viewed with suspicion. To datein spite of
European integration achievements and the approximation acquiscriminal law
remains a core issue of national identity and sovereignty.
The initial reluctance of
Member States to provide the EU with any competence concerning criminal law is
symbolised by the unanimity requirement linked to Article 31(e) TEU. The earliest
provisions governing EU criminal law competence provided a clear de facto veto power
to every participating state.
That reluctance is also apparent in the Declaration on
Article K.3.(e) TEU. According to that Declaration, the Conference of Member States
agreed that the provisions of Article K.3.(e) of the Treaty on the European Union shall
not have the consequence of obliging a Member State whose legal system does not pro-
vide for minimum sentences to adopt them.
Before the Lisbon Treaty, the Court of
Justice also denied ancillary Community competence to approximate penalties beyond
the requirement for effective, dissuasive and proportionatepenalties.
In sum, from
Amsterdam onwards, the EU was competent to adopt minimum standards with respect
to the maximum penalty. It did not appear competent to impose minimum penalties.
For these reasons, the framework decisions adopted by the Union in order to approxi-
mate criminal laws required a minimum nominal amount of maximum penalty that had
to be available to a sentencing judge. However, judges were not required to impose this
U. Sieber, Union Européene et droit pénal européen. Proposition pour lavenir du droit pénal européen,
(1993) 2 Revue de science criminelle et de droit pénal comparé, 249265, at 262; P.A. Albrecht and S. Braum,
Deciencies in the Development of European Criminal Law, (1999) 5 European Law Journal, 293310, at
293; J. Vogel, Why Is Harmonisation of Penal Law Necessary? A Comment, in A. Klip and H. Van der
Wilt (eds), Harmonisation and Harmonising Measures in Criminal Law (Royal Netherlands Academy of
Arts and Science, 2002) 5564, at 5556; P. Asp, The Substantive Criminal Law Competence of the EU
(Stiftelsen Skrifter utgivna av Juridiska fakulteten vid Stockholms universitet, 2012), at 77.
A. Klip, European Criminal Law. An Integrative Approach (Intersentia 2009; 2012, second edition); S. Peers,
Substantive Criminal Law, in S. Peers (ed), EU Justice and Home Affairs (Oxford University Press, 2006,
second edition), 381427; S. Miettinen, Criminal Law and Policy in the European Union (Routledge, 2013) at
139140. See also Albrecht and Braum, above, n 1.
Declarationson Article K.7 of the Treaty on European Union as amended by theTreaty of Amsterdam,OJ
C 340, of 10.11.97, 308.Although Declarations are typically not seen as binding,the Court has seen t to refer
to them with legally measurable consequences: see e.g. ruling in case C-192/99,Kaur, [2001] ECR I-01237.
Furthermore, the unanimityvoting rule enabled a single Member State to block frameworkdecisions.
Case C-440/05, Ship-Source Pollution, [2007] ECR I-9097, §70.
Minimum Criminal Penalties in the European UnionNovember 2015
© 2015 John Wiley & Sons Ltd. 723

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