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

• Published date: 01 November 2015
• DOI: http://doi.org/10.1111/eulj.12157
• Date: 01 November 2015

Minimum Criminal Penalties in the

European Union: In Search of a Credible

Justification

Wendy De Bondt

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* and Samuli Miettinen

Abstract: The EU has recently mooted the possibility of harmonising minimum penalties.

‘Minimum criminal penalties’refers 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

fiercely 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 justifications 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

significantly 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 difficult 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 insufficient 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. Unification, the wholesale

harmonisation of all elements of penalty systems, could in principle be effective. How-

ever, this is politically difficult and may not constitute a ‘minimum rule’within the

meaning of the Union’s conferred competence in the field. Thus, the Union is faced with

a choice between an unpalatable and unconstitutional unification 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 (fixed term) at the University of Helsinki.

European Law Journal, Vol. 21, No. 6, November 2015, pp. 722–737.

© 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 EU’s competence to approxi-

mate minimum standards with respect to the definition of the constituent elements of

offences and the accompanying penalties of the Member States. The EU’s 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 date–in spite of

European integration achievements and the approximation acquis–criminal law

remains a core issue of national identity and sovereignty.

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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.

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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’.

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Before the Lisbon Treaty, the Court of

Justice also denied ancillary Community competence to approximate penalties beyond

the requirement for ‘effective, dissuasive and proportionate’penalties.

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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

1

U. Sieber, ‘Union Européene et droit pénal européen. Proposition pour l’avenir du droit pénal européen’,

(1993) 2 Revue de science criminelle et de droit pénal comparé, 249–265, at 262; P.A. Albrecht and S. Braum,

‘Deficiencies in the Development of European Criminal Law’, (1999) 5 European Law Journal, 293–310, 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) 55–64, at 55–56; P. Asp, The Substantive Criminal Law Competence of the EU

(Stiftelsen Skrifter utgivna av Juridiska fakulteten vid Stockholms universitet, 2012), at 77.

2

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), 381–427; S. Miettinen, Criminal Law and Policy in the European Union (Routledge, 2013) at

139–140. See also Albrecht and Braum, above, n 1.

3

‘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 fit 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.

4

Case C-440/05, Ship-Source Pollution, [2007] ECR I-9097, §70.

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