Protection of Fundamental Rights and Criminal Law

• Date: 01 August 2015
• Year: 2015
• Author: Valeria Scalia
• Pages: 26

I. Preliminary Remarks

Of the most significant innovations of the Treaty of Lisbon, one must refer to the conferral to the EU of a competence in criminal matters,¹ according to which the national legislator, in some cases, is under the obligation to adopt criminal provisions implementing measures regulating criminalization decided at the supranational level. Indeed, according to Art. 83 TFEU, the EU legislative bodies – European Parliament and Council in co-decision − “establish, by means of directives adopted in accordance with the ordinary legislative procedure, minimum rules concerning the definition of criminal offences and sanctions.” Such a competence is conferred with respect to two situations: 1) when serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis is at stake; 2) when the approximation of criminal laws and regulations of the Member States proves essential to ensuring the effective implementation of Union policy in an area that is subject to harmonization measures. Therefore, in these cases, it is up to the EU legislative bodies to assess the underlying choice for a criminal protection relying on the special importance of the protected legal interest and the necessity/need of the criminal sanction. The latter concerns the proportionality between the objective to be achieved and the means to achieve it, on the one hand, and the lack of measures less intrusive to the individual’s fundamental rights than the criminal sanction (e.g., civil or administrative remedies), on the other.

Some criminal law scholars are very critical of such EU competence, fearing its irrational and excessive use by the European legislator, which could cause, in their opinion, an “over-criminalization” at the supranational level that conflicts with the very fundamental principles of criminal policy. Nevertheless, such a worry is to be considered within the framework of the fundamental rights and guarantees already well established at the EU level, which has an even stronger foundation. According to Art. 6 TEU, which also confirms the importance of constitutional traditions common to Member States and the European Convention on Human Rights (hereinafter ECHR) as EU general principles, the Charter of Fundamental Rights of the European Union (hereinafter the Charter) should be recognized as having binding value not only for European institutions but also for Member States, when they implement EU law (Art. 51, para. 1, of the Charter). As a consequence, fundamental rights become the object and limit for the achievement of the EU objectives, especially within the Area of Freedom, Security and Justice (hereinafter AFSJ).² Indeed, respect for fundamental rights at the same time represents a limit to EU legislative action, as it does not allow the adoption of legal rules that are not in compliance with individuals’ rights protected by the supranational legal system. It is a crucial means to building a European judicial area, since it constitutes a strong basis for the development of mutual trust, which is necessary for setting up common standards concerning the protection of fundamental rights among Member States’ legal systems.

Following the entry into force of the Lisbon Treaty, the Charter became the EU bill of rights, legally binding within the EU legal systems. As a consequence, the European Court of Justice (hereinafter CJEU) received jurisdiction over the respect for such rights in EU legislation (including the former third-pillar legal acts) and in Member States “only when they are implementing Union law.”

This contribution focuses on the crucial role played by the Charter as a catalogue of the most important individual rights and guarantees concerning, in particular, criminal law matters (i.e., Arts. 47-50) and their application by the CJEU according to two perspectives.³

On the one hand, the rights protected by the Charter are to be considered general principles of criminal law, limiting the exercise of the competence attributed to the EU legislative bodies in this field. In particular, they represent reliable criteria by which to assess the necessity/need of criminal sanctions to be adopted in EU legislation, in line with solutions in the case law of the European Court on Human Rights (hereinafter ECtHR).

On the other hand, the rights established in the Charter have to be employed by the CJEU as parameters by which to assess compliance with the Charter of Member States criminal law provisions implementing EU law. In this respect, this contribution will focus on the wide interpretation of the wording “only when they are implementing Union law” in Art. 51, para. 1, of the Charter, given by the CJEU in its recent case law, and on the reactions from national courts.⁴

The analysis of this topic will show in a paramount manner the extraordinary contribution of the interaction between the different courts acting within the European area (i.e., CJEU, ECtHR, and national courts) in the attempt to limit the risk of irrational use of competence in criminal matters by the EU legislative bodies and, at the same time, to guarantee a better level of respect for individual rights within the AFSJ, especially when fundamental rights, such as freedom and dignity of individuals, are at stake.⁵

II. Assessment of the Necessity and Proportionality of EU Criminal Legislation

All EU institutions involved in the adoption of legal instruments at the supranational level – Council,⁶ Commission,⁷ and Parliament⁸ – have issued soft law instruments, which show their common consensus on the need to draft criminal policy guidelines, according to which the EU legislator should adopt criminal provisions. In such documents, which for the first time refer to an EU criminal policy, the necessary respect for the fundamental rights, provided for in the Charter,⁹ and for the general principles concerning the criminal law represents an essential condition. Some principles, in particular, are recalled as the basis of EU criminal policy: the legality principle, the harm principle, and the guilt principle. The first principle is considered to cover the requirements of the accessibility and foreseeability of criminal provisions. The harm principle requires that criminal behavior must cause effective harm, or at least a serious danger, in order for the legal interest to be protected. The guilt principle implies that, as a general rule, only conduct committed intentionally is to be considered punishable; negligent conduct can be criminalized only in particularly serious cases (e.g., serious negligence endangering human life or causing serious damage).¹⁰ Furthermore, as for the general choice concerning the criminalization of a form of conduct, according to the above-mentioned texts, criminal law must be the last resort and require the European legislator to comply with the principles of necessity and proportionality. They at the same time represent important constraints, even for the identification of the type and quantity of the criminal measures to be adopted.

The functioning of the supranational legal system should ensure that compliance with the above-mentioned general principles on the part of the EU legislator as regards the criminalization of some forms of conduct is tested. However, if the supranational legislator has not respected such principles and rights in a situation that can be considered exceptional or pathological, an ex post control should be done by the CJEU, or by the ECtHR, which will act in these cases as a real constitutional court in relation to legal provisions adopted by the EU legislator. In this respect, the criteria at the disposal of CJEU by which to assess compliance with fundamental rights and general principles of the EU legislator’s choices concerning the criminalization of some forms of conduct are provided for in the Charter, in the Treaty, and in earlier CJEU case law. As for the parameters established by the Charter, they refer especially to Art. 49, stating the principle of proportionality of criminal sanctions, and to Art. 52, providing restrictions on the enjoyment of some rights (so-called relative or, rectius, not absolute rights). Furthermore, Art. 83 TFEU expressly refers to the need for the criminal measures. Many CJEU judgments deal with the parameter of proportionality concerning obligations of criminal protection and criminal sanctions.¹¹

Although the supranational legal system had already provided criteria for an in-depth assessment by the CJEU of the EU legislator’s choices, such criteria often turned out to be quite formalistic and, because of this, they were inadequate for ensuring a critical evaluation.¹² However, the CJEU has recently undertaken many efforts to apply these parameters in a stricter and more critical manner in light of the ECtHR case law,¹³ as the Digital Rights case shows.¹⁴ In particular, the CJEU states in its decision the non-compliance of some restrictions − provided for in Directive 2006/24/EC on data retention¹⁵ on the enjoyment of the right to privacy and the right to protection of personal data (as protected by Arts. 7 and 8 of the Charter) − with the principles of necessity and proportionality, according to Art. 52 of the Charter. The Court’s reasoning, in particular, follows an in-depth analysis of the challenged provisions of the Directive, taking into consideration ECtHR case law concerning Art. 8 ECHR, and adopts a critical approach, concretely based on the protection of fundamental rights.

The above-mentioned concerns would also be supported by consideration of the judicial remedies provided for in the European legal system for bringing a case before the CJEU, particularly by an individual. In fact, both the action of annulment (provided for in Arts. 263 and 264 TFEU) and the preliminary ruling (provided for in Art. 267 TFEU) are basically reserved for Member...