Abstract
This paper investigates the role played by the rule of law in the construction of an EU criminal law. The analysis, also from a historical perspective, of the rule of law shows how it is tremendously flexible and adaptable to the changing socioinstitutional contexts in which it is considered. It is necessary to assess whether the process of Europeanization can be considered a “risk factor” for its stability or whether, on the contrary, it requires only simple adaptations that do not detract from its essence.
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Notes
- 1.
On the theory of the plurality of sources and systems, cf. Romano (1977), p. 27.
- 2.
For a general overview of the theoretical difficulties involved in traditional legal reasoning “by source” in the new European context, see Ruggeri (2010), pp. 125 ff.
- 3.
Note Article 8 of the Declaration of the Rights of Man and the Citizen of 1789, where it is stated: “The law must establish only penalties that are strictly and evidently necessary, and no one may be punished except by virtue of a law established and promulgated prior to the offence, and legally applied.”
- 4.
Regarding the axiological rule of law, cf. Fiandaca (2003), pp. 53 ff.
- 5.
Interesting observations have been made on this point by Picotti (2008), p. 331, who splits the relationship between criminal law and European legal system into three phases, identifying a relationship of inverse proportionality between the progress of cooperation between the Member States and the discretion of domestic legislators.
- 6.
Pre-Republican and Republican Roman law, in fact, based on case law, rejected codification and allowed the use of analogy both for crimes and punishment, thus disregarding the concept of the rule of law. Subsequently, during the monarchy, criminal law was administered by the king, while in the Republican age there was a shift to iurisdictio by investiture of a magistrate, who had absolute power to determine the sentence and also and, above all, to bring someone to trial for an offense. For a full discussion on the regulation of crimes in Roman law, refer to Santalucia (1998).
- 7.
It was the scholars of the Enlightenment, all concerned with safeguarding the citizens’ rights of freedom vis-à-vis the king, who reflected on a postulate essential to the very nature of law: you cannot punish a posteriori conduct that at the time of its performance was not considered a crime, however ethically questionable the conduct in question may be.
- 8.
We cannot fail to quote the observation of Paul Anselm Feuerbach, who wrote: “The infliction of a penalty always presupposes a criminal law (nulla poena sine lege). In fact, only the threat of harm by the law underpins the concept and the legal legitimacy of a penalty”; cf. Feuerbach (1986), p. 41.
- 9.
Emblematic in this regard is the ruling of the Italian Constitutional Court no. 50/1980, which states: “The rule of law applied to criminal penalties, as provided for under Article 25(2) of the Constitution, establishes a system whose content and approach derives from other substantive principles and in which the implementation of a restorative distributive justice requires differentiation more than uniformity.”
- 10.
For a comprehensive and documented reconstruction of the process that led to Italy not to “constitutionalise” the principle of nulla poena sine lege, cf. Lucifredi (1962), pp. 1632 ff.
- 11.
On one hand, there was a European Parliament not elected by universal suffrage by the citizens of the Member States but composed of representatives of national parliaments and appointed by them; on the other, there was a procedure for the adoption of EU policies characterized by a clear prevalence of the Community’s “executive” bodies.
- 12.
For an overview of the “original” state of criminal matters within the EU, refer to Sgubbi (1990), p. 90.
- 13.
It should be noted that the emerging needs of the fight against transnational organized crime had led the European states, already in the decades following the establishment of the EEC (albeit outside the Community’s institutions and sources, namely in the context of international treaty law), to introduce embryonic forms of cooperation and convergence of legislation in criminal matters. Examples include the Council of Europe Conventions on extradition, the recognition of judgments in criminal matters and the transfer of convicted persons. These convention-based sources, on one hand, did not constitute “threats” to domestic criminal autarchy in the same way as EC sources, since as they required unanimous rather than majority approval, they had no direct effect (since they required a ratification law), and were not accompanied by a procedure to regulate their infringement. On the other hand, they were the first embryonic attempts at bringing closer to each other national criminal justice systems and encouraging cooperation between state authorities, able to break down the barriers built on the absence of mutual trust and a stubborn will to preserve autonomy in criminal matters.
In the same perspective, almost all the Member States of the Community signed and ratified various international conventions enshrining the common adherence to certain general principles of law, especially with regard to fundamental rights (e.g., the European Convention on Human Rights, the International Covenant on Civil and Political Rights of 1966), as well as numerous international conventions aimed at harmonizing national criminal systems in particularly sensitive sectors (UN conventions on terrorism and racial discrimination). There thus emerged a hard core of values (especially those related to the respect of the fundamental rights of the individual), common to all the legal systems of the Member States.
- 14.
On the possibility that, in the presence of highly diversified punitive disciplines among EU Member States, criminal activities of an economic nature may be concentrated in those characterized by less severe regulations, cf. Sevenster (1992), p. 30.
- 15.
See sent. September 21, 1989, Commission v. Greece, 68/88, Coll. 1989, p. 2985. Soon after, with the “Zwarteld” order (Case C-2/88 Imm, Coll. I, p. 3365), there was support for the possibility of Member States to provide criminal penalties to ensure the effectiveness of Community law and safeguard its direct or secondary interests. Along the same lines, we also find the well-known ECJ judgment regarding Unilever (Case C-77/97), which envisages a nucleus of criminal sanctions for the infringement of Community law by imposing a strict obligation on Member States to penalize infringements of Community interests. It was, however, a purely indirect competence of the Community and subject to the Member State’s approval of the “appropriateness” of the protection. The result was that domestic legislation had absolute and unquestionable discretion in deciding which penalties to apply to specific cases resulting from requests for protection of Community origin.
- 16.
As for the obligations of assimilation, attention was given to Article 280(2) EC Treaty, according to which “The Community and the Member States shall counter fraud and any other illegal activities affecting the financial interests of the Community through measures to be taken in accordance with this article.”
- 17.
This principle was in fact already enshrined in Article 7 ECHR, in Article 15(1) ICCPR and would subsequently be confirmed by Article 49 (1) EU FRCh.
- 18.
For a complete discussion of issues of compatibility between assimilation clauses and the rule of law, refer to Panebianco (2007), pp. 62ff.
- 19.
The features of framework decisions have made these sources, on one hand, more easily “tolerable” compared to the sources of the first pillar by those states most reluctant to the devolution of powers in criminal matters to the European institutions; on the other hand, they are more easily adopted than international conventions. They are in fact, considering the first point, taken by unanimity (i.e., the dissenting opinion of just one Member State is enough to prevent their adoption), they have no direct effect (and thus always require domestic implementing legislation), and their violation does not result in infringement proceedings (making them less stringent than regulations and directives). Considering the second point, their entry into force does not require approval or ratification by individual Member States but occurs ipso facto as a result of the unanimous resolution of the Council.
- 20.
On the democratic coefficient of framework decisions, cf. Bernardi (2007), pp. 1171 ff.
- 21.
On the impact of framework decisions on national sources, see Manes (2006), pp. 1150 ff.
- 22.
We should note in particular the judgment of the Grand Chamber of the Court of Justice of 13 September 2005 in Case 176/03.
- 23.
It should not be forgotten, however, that the individual state’s failure to comply with a framework decision constitutes a violation of the principle of “sincere cooperation” under Article 10 TEC. On this point, cf. Militello (2000), pp. 3 ff.
- 24.
On the subject of the reserve of law in relation to Community legislation, there is extensive literature. Specifically on the legislative powers of the European Union in criminal matters, see Sotis (2007).
- 25.
The minimal penal provisions contained in the harmonization directives, in fact, have no direct effect and, depending on their level of detail, postulate implementation and clarification by the Member States.
- 26.
Paonessa (2007), p. 409, however stresses the limited remedies available in the event of a breach of EU obligations in terms of criminal law protection, since they are not subject to specific performance.
- 27.
Cf. D’Amico (2009), p. 76.
- 28.
Consider the instances contained in the so-called Stockholm Programme (2010–2014) aimed at drawing up strategic guidelines for legislative and operational planning within the area of freedom, security and justice. Starting with the observation that organized crime is increasingly assuming an alarming global dimension, this program insists on the adoption of a structured approach to the fight against this form of crime, putting it at the heart of the Union’s priorities and identifying the types of crime against which it will deploy the tools at its disposal. See the Stockholm Programme, An open and secure Europe serving and protecting citizens (2010/C 115/01), in EU Off. Gazz., 4 May 2010, C 115/4.
- 29.
Cf. Grasso (2011), p. 2326.
- 30.
However, it should be noted that the same Article 83(3) of the Treaty of Lisbon provides a guarantee for the individual criminal law systems of the EU member states in the form of the so-called emergency brake, a procedure whereby, if a member of the Council considers that a draft directive would affect fundamental aspects of its criminal justice system, it may request the European Council to assess the matter, resulting in the suspension of the legislative procedure for adoption of the directive.
- 31.
On the principle of the so-called useful effect, which requires states to allow the achievement of the objectives of Community legislation, cf. Scorrano (2006), pp. 349 ff.
- 32.
Unlike autonomous criminal jurisdiction, accessory jurisdiction did not have to wait for the Lisbon Treaty to come into force to become operational, since it had been explicitly recognized by the Court of Justice in the aforementioned ruling of 13 September 2005 (case C-176/03, Commission v. Council) and the judgment of 23 October 2007 (in Case C-440/05, Commission v. Council), conferring indirect criminal jurisdiction on the first pillar. In this regard, we need merely recall that in paragraph 48 of the first of those judgments, the Court used a language very similar to that now found in Article 83.2 TFEU, stating that “when the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences, [the Community legislature is not prevented] from taking measures which relate to the criminal law of the Member States which it considers necessary in order to ensure that the rules which it lays down on environmental protection are fully effective.” As is known, in the light of this case law, the first Directive harmonizing criminal law was introduced, no. 2008/99/EC of the European Parliament and of the Council of 19 November 2008, on protection of the environment from criminal activity.
- 33.
Interesting findings on this issue can be found in Sotis (2002), pp. 44 ff., who emphasizes that accessory criminal jurisdiction may involve an excessive recourse to criminal laws of European origin, contrary to the principle of extrema ratio in the light of the different views of the EU and individual Member States on the intrinsic gravity of criminal conduct.
- 34.
- 35.
What instead is problematic is the attribution of the same justification to provisions contained in directives, since these sources do not as a rule have direct effect on national law but require domestic legislative intervention. A well-established trend shows the existence within this category of European sources of “detailed” or “analytical” directives, which identify with a high degree of accuracy the elements that may cause a certain type of conduct, already considered typical under domestic criminal provisions, not to be seen as criminal in nature. Precisely this feature should make the provision of Community law immediately operational, with an “exonerating” effect, even if the national legislature has failed to implement it, and precisely in order not to unjustly burden the accused with the negative consequences of such a failure.
- 36.
For wider discussions on compliance with the rule of law in criminal legislation deriving from harmonization directives, see Bernardi (2009), p. 48.
- 37.
It should however be noted that, as part of the autonomous criminal jurisdiction of the EU, directives are always undertaken in accordance with the ordinary legislative procedure. On the other hand, in cases of the accessory criminal jurisdiction of the European Union, within the meaning of the last part of Article 83.2, TFEU, criminal law harmonization directives may also be adopted in accordance with a special legislative procedure, where the European Parliament has a merely “advisory” role and therefore does not have the power of veto. The problem of the democratic legitimation of accessory criminal harmonization directives is, however, mitigated in practice due to the fact that today recourse is almost always made to the ordinary procedure.
- 38.
Among the “risk factors,” we should mention in the first place national laws and practices that seem to conflict with the democratic component of the rule of law. As noted by De Vero (2012), p. 256, from the Italian perspective, it is enough to consider that the whole subject of the transposition of the directives was settled in domestic legislation with Law 11/2005, which stipulated that each year a special “Community law” would provide for adjusting the domestic legal system to bring it in line with the European directives of the previous year, specifically mentioned in a list drawn up for this purpose. This resulted in a situation in which Parliament ended up filling community law with legislative delegations to the Government, moreover characterized by vague and generic principles and directive criteria (so-called carte-blanche delegations). Consequently, even though national legislative instruments implementing European sources have for many years now represented almost half of the state’s legislative production, Parliament’s contribution to their definition is somewhat limited.
- 39.
On this issue, Paonessa (2009), p. 272, observes that the predominantly economistic nature of the Union could lead the European legislature to make extensive use of punishment for economic offenses.
- 40.
On this point, cf. Sicurella (2011), pp. 2624 ff.
- 41.
On the possibility that, in the presence of strongly inhomogeneous punitive disciplines among EU Member States, criminal activities of an economic nature may be concentrated in those characterized by less severe regulations, cf. Riondato (1996), p. 142.
- 42.
On the need to protect what are now supranational interests, cf. Sicurella (2008), p. 225.
- 43.
On the process of the constitutionalization of the European Union, see Bernardi (2013).
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Toscano, G. (2015). The Principle of Nullum Crimen Sine Lege in the Construction of European Criminal Law. In: Ruggeri, S. (eds) Human Rights in European Criminal Law. Springer, Cham. https://doi.org/10.1007/978-3-319-12042-3_3
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