Transcript Harmonization of Substantive Criminal Law of the MS

Course: European Criminal Law
SS 2009
Hubert Hinterhofer
Sanctions of Criminal Law in a Broader
Sense
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Competence of the EC (First Pillar) to impose
sanctions of criminal law in a broader sense
Legal Basis: Art 83 TEC
Violation of free competition-principle
Fines
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Art 23 New Regulation against trusts (2003)
Fines against Companies (trusts)
Commission
At most 1 % of the yearly sales
Example: “Vitamin-Trust” (Hoffmann La-Roche)
Sanctions of Criminal Law in a Broader
Sense
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Other Financial Sanctions
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Other Sanctions
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No fines, but punitive nature
E.g.: Forfeiture of a bail
Deprivation of a Concession
Deletion or Reduction of Subventions
All Sanctions have repressive nature:
accusation according to Art 6 ECHR
Harmonization of Substantive Criminal
Law of the MS
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Fundamentals
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Basically part of the Third Pillar
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Legal Basis: Art 29 and 31 TEU
Art 29: Approximation of rules on criminal matters in the
MS
Art 31:
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Establishing minimum rules relating to the basic elements
of crimes
– Establishing minimum rules relating to the penalties
– Organized Crime; Terrorism; Illicit Drug Trafficking
Harmonization of Substantive Criminal
Law of the MS
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Art 29/Art 31 TEU: Different wording
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Harmonization only allowed with regard to
Organized Crime, Terrorism and Drug Trafficking?
Main Opinion
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Wording of Art 29 prevails
Art 31 is just an exemplary enumeration
Harmonization efforts are not restricted to special crimes
Result applies to legal practice within the EU
Harmonization of Substantive Criminal
Law of the MS
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Harmonization as part of the First Pillar
(TEC)
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In order to ensure the effectiveness of Community
law
Directives
Harmonization of Substantive Criminal
Law of the MS
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Legal Instruments
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FWD: Art 34 sec 2 lit b TEU
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Purpose of approximation of the Criminal Laws of the
MS
Binding upon the MS as to the result
No direct effect (transformation into national law is
needed)
Conventions: Art 34 sec 2 lit d TEU
Directives: to secure the effectiveness of
Community law (TEC)
Harmonization of Substantive Criminal
Law of the MS
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Basic Elements of Criminal Acts
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Minimum Rules
Purpose: reaching the same standard of
Substantive Criminal Law in the MS
Criteria in legal practice of the EU:
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Protection of interests of the EU
Severity of crimes
Cross-border crimes
Harmonization of Substantive Criminal
Law of the MS
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Harmonization Regarding Penalties
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Obligation for the MS to provide for “effective,
proportional and deterrent” penalties
Minimum Penalties
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Imprisonment that does not fall below a certain limit
E.g.: from 1 to 3 years or from 2 to 5 years imprisonment
No possibility for the MS to go beyond that limit
Harmonization of Substantive Criminal
Law of the MS
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Criminal Liability of Legal Entities
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Obligation for the MS to provide for a criminal
liability of legal entities
Transformation into Austrian Law
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New Law in 2006 (“Verbandsverantwortlichkeitsgesetz”)
Main Penalty: fines
Harmonization of Substantive Criminal
Law of the MS
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Examples
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FWD on:
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Corruption
Counterfeiting the Euro
Counterfeiting Non-cash Means of Payment
Drug Trafficking
Money Laundering
Organized Crime
Sexual Exploitation of Children
Terrorism (I and II)
Trafficking in Human Beings
Racism
Directive on:
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Protection of the Environment
Harmonization of Substantive Criminal
Law of the MS
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Relationship between European Community
Law (First Pillar) and Criminal Laws of the
MS
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Criminal Law is not “community-law-resistant”
National Criminal could violate European
Community Law
E.g.: discriminating criminal law with regard to the
freedom of establishment
Harmonization of Substantive Criminal
Law of the MS
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Violation of European Community Law with
regard to penalties
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MS are not allowed to issue or to maintain
criminal law that violates European Community
Law
Disproportional Penalties (too severe)
Type of Penalty
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E.g.: ban of profession is possibly problematic
Harmonization of Substantive Criminal
Law of the MS
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Priority of European Community Law
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Neutralization of national law which breaches European
Community Law
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National law not applicable
Regarding Primary Community Law and Regulations (which
are directly applicable)
Conforming Interpretation
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Derived from Art 10 TEC (MS have to fulfill obligations arising
from Community Law)
Interpretation of national law has to be consistent with
European Community Law
Pupino Decision of the ECJ: principle is also applicable with
regard to FWD (Third Pillar)