This Communication aims to contribute to the debate on the emergence of a new branch of law and its relationship with the domestic law of the Member States. It is then clear whether European criminal law is a right of the European Union or is a right of the member states of the Council of Europe. The aspect of its content is also of no interest. It is composed only of the rules of criminal law stemming from Community acts, Community acts and the Council of Europe or its rules also encompass aspects of national law applicable to transnational crimes.
Personally, I am of the opinion that after the Treaty of Lisbon the rules of criminal law stemming from the European Convention and other normative sources of the Council of Europe are direct sources of the European Union’s criminal law as in the domestic law of our country the rules of the international treaties ratified by Romania, according to art. 20 of the Constitution are part of it.
But is there a European criminal law? Already in the doctrine is the concept of European criminal law and this branch of law. Ina Raluca Tomescu, from Constantin Brâncuşi University of Târgu Jiu, in a scientific communication, already in 2012, made known its opinion on the existence of European criminal law, indicating its three sources, namely the provisions resulting from the activity of the Council Europe, those concerning the work of the European Union and those of the conventions concluded within the two organizations. However, the author made a number of considerations regarding the concept of European criminal law in the context in which he states that the basic treaties of the European Union do not contain any rule of jurisdiction that would allow the establishment of a “genuine” European supranational criminal law system.
In this respect, the author cites H. Satzger, according to which the criminal activity of the European Union may consist only in the harmonization of the internal rules of the Member States by imposing standards which Member States must take into account when defining criminal law in order to achieve desiderata such as: the protection of the original interests, in particular the financial ones of the Union, the fight against cross-border crime, as a common interest of all Member States.
The aforementioned author’s claim is well founded, but some prerequisites are required before presenting it.
In the Maastricht Treaty (1992), alongside other two pillars (the European Community and the CFSP), the Justice and Home Affairs Cooperation (JAI) pillar, including the areas of the fight against terrorism, major crime, trafficking in human beings, drugs and fraud at international level, judicial cooperation in criminal and civil matters, the creation of Europol, the fight against illegal immigration.
The European area of freedom, security and justice has been institutionalized by the Treaty of Amsterdam. The Treaty of Lisbon, amending the institutional treaties and reducing them to the two, the Treaty on European Union and the Treaty on the Functioning of the European Union, restates in the latter the European institution called the “area of freedom, security and justice”, adding that this space has as its values respect for fundamental rights and the different legal systems and legal traditions of the Member States. To this end, the Union is working to ensure a high level of security through measures to prevent crime, racism and xenophobia, as well as measures to combat them through cooperation between police and judicial authorities and other competent authorities, and by mutual recognition of criminal trials and, where appropriate, approximation of criminal laws (Article 67 TFEU).
As H. Satzger has shown, it is obvious that the Treaty does not contain rules to empower the European Union, through its institutions, or the European legislature, through its two institutions, the Council and the European Parliament, to give substantive or procedural criminal law. The conclusion is reinforced by art. 68 of the TFEU which provides that the strategic guidelines for legislative and operational planning within the area of freedom, security and justice are defined by the European Council. It should be pointed out that the institution of the European Council, on the one hand, does not have legislative powers and, on the other hand, it does not issue rules but only guidelines.
And art. Article 72 of the TFEU defines more precisely the right of Member States in criminal matters to the effect that the provisions of the chapter “Area of freedom, security and justice” do not affect the exercise of the responsibilities incumbent upon Member States for the maintenance of public order and the safeguarding of internal security and the national parliaments must ensure that legislative proposals and initiatives are done in compliance with the principle of subsidiarity (Article 69 TFEU).
In general, art. 75 of the TFEU only stipulates that the European Parliament and the Council, acting in the ordinary course of action, shall define the framework for administrative measures on capital movements and payments such as the freezing of funds, financial assets or economic benefits belonging to natural or legal persons, groups or entities stateless, owned or held by them. Instead, the Treaty provides for the possibility of the Commission applying fines in cases of breaches of rules that protect free competition. An example is the provisions of art. 103 par. 2 in reference to art. 101 and 102 of the TFEU, according to which the Commission may impose fines and periodic penalty payments for non-compliance with the competition rules. Even though the fines apparently have the nature of administrative sanctions, this aspect of their legal nature is questionable because in the interpretation of Art. 6 of the European Convention on Human Rights, given in the case law of the European Court of Human Rights, criminal prosecution is also given in cases where sanctions with significant repercussions for the person are applied. Their qualification is also based on the degree of severity of the punishment applied, as well as the repressive or deterrent nature of the legal norm.
In the field of “the area of freedom, security and justice”, judicial cooperation in criminal matters (Article 82-89) of the TFEU is included.
By art. 82 of the TFEU, the Parliament and the Council are expressly empowered to issue:
1 – rules and procedures for the recognition of all categories of judgments and judicial decisions for the resolution of conflicts of jurisdiction between Member States; facilitating cooperation between judicial authorities (not others) and in criminal matters;
2- minimum rules on the definition of offenses and sanctions in areas of particularly serious crime of cross-border dimension, namely terrorism, trafficking in human beings and sexual exploitation of women and children – men, not yet – illicit drug trafficking, trafficking illicit arms, money laundering, corruption, counterfeiting of means of payment, cybercrime and cybercrime) or the need to combat them on a common basis. The Council, subject to the consent of the European Parliament, depending on the development of crime, may also provide for other areas of crime.
Also, in the ordinary legislative procedure, taking into account the differences between the legal traditions and the legal systems of the Member States, minimum rules on the rights of individuals in criminal proceedings are laid down; the rights of victims of crime, the mutual admissibility of evidence between Member States, and other special elements of the criminal procedure. States can establish a higher level of protection for people.
It should be noted, however, that at Art. 83 TFEU provides that minimum rules for the definition of offenses and sanctions are adopted by directives.
Is the directive able to lay down mandatory rules in the domestic law of the EU Member States? Article 288 of the TFEU provides that, for the exercise of its powers, the Union shall adopt regulations, directives, decisions, recommendations and opinions. It is only on regulations that the Treaty states that they are binding and directly applicable in the Member States, whereas, for directives, they are binding only on the result to be achieved, leaving the national authorities with the form and means. It is therefore not directly applicable but mediated by the compliance of the addressees or the Member States with the limits set, which in this case are minimal, underlined also by the provision that Member States may also introduce a higher level of protection of persons (Article 82, paragraph 2, last sentence of the TFEU).
Definitions for the issue of the qualification of the European Union criminal law provisions are also the provisions of art. 83 par. 2 of the TFUE, which develops the scope of competence in the field of criminal law regulation. 1 of the same article and provides that where the approximation of the laws, regulations and administrative provisions of the Member States in criminal matters proves to be indispensable in order to ensure the effective implementation of a Union policy In a field which has been the subject harmonization measures, directives may establish minimum rules on the definition of offenses and sanctions in the area concerned.
The Union therefore intervenes through minimum standards:
– by means of directives for the definition of offenses and sanctions in areas of serious gravity crime of a cross-border dimension, listed above in this Communication:
– by decision of the Council, in the light of the development of crime to identify other areas of criminality of particular gravity of a cross-border dimension;
– by establishing directives laying down minimum rules on the definition of offenses and the determination of penalties where the approximation of the laws, regulations and administrative provisions of the Member States in criminal matters proves to be indispensable in order to ensure the effective implementation of the Union, an area that has been the subject of organizational measures.
Turning to the legal force and applicability of the Directive in national law, the rationale for their establishment, their legal syllogism, must be in line with those of the Court of Justice of the European Communities in the case of Van Duyn against the United Kingdom of Great Britain and Northern Ireland. This 1974 decision stated that a decision has a direct effect if its provisions are unconditional and sufficiently clear and precise and if the EU country has not transposed the Directive within the time-limit laid down by law.
In the Tullio Rotti vs. Italy, Case 148/78, the Court of Justice of the European Communities has decided that after the expiry of the period laid down for the implementation of the Directive a Member State can no longer apply its domestic law to a person who complied with the Directive and the requirements of the Directive. By this decision (Rotti) it was decided that the direct effect can only be vertical, the member states of U.E. having the obligation to implement the directives, but that directives can not be invoked by a European Union country against a natural person. This is another argument for establishing the mediated nature of the obligation and the application of the Directive by national law.
This would create the appearance of a lack of norm, as H. Satzger says.
However, starting from the statements in the doctrine regarding the recipients of the legal norm, where they are classified as first-line recipients, those with the duty to observe the law and the second-line recipients, those who actually have the rights and obligations provided by law, we can conclude that we also have several recipients in this case.
The first line of recipients is the State, then the second line of recipients is the nationals of the Member States.
Some authors have invoked the Van Duyn judgment in support of the idea that the directives do not have direct effect unless they result from all their provisions that they are likely to produce direct legal effects between Member States and private individuals.
Concluding on the question of the existence of a body of rules justifying one of the constituent elements of a legal branch, I consider that this condition is fulfilled. The provisions of the Treaty on the Functioning of the European Union empower the Council and the European Parliament to lay down rules, it does not matter that they are for establishing minimum standards for the definition of offenses and sanctions. As long as it establishes a set of standards according to which an act can be classified as an offense and establishes its sanction, the rule is criminal, even if it is not directly addressed to natural or legal persons susceptible to criminal sanctions in the case of committing offenses .
I believe that the general conditions laid down in the doctrine are also met in order for a group of norms to generate a branch of law.
Regarding the origin of the rules that make up it, I appreciate that the name refers only to the rules concerning the European Union. This interpretation does not exclude the rules of the European Community stemming from the European Convention on Art. 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides that the Union shall accede to it and that fundamental rights guaranteed by the Convention shall become general principles of Union law.
Also, as an answer to the questions to which this approach is intended to address, namely that which questions the question of whether the rules of national law belong to European law, the assessment is in the sense that they are not part because national law applies only within borders of the State concerned.
- The Treaty of Maastricht
- The Treaty of Amsterdam
- The Treaty of Lisbon
- Treaty of the European Union
- Treaty on the Functioning of the European Union
- Ina Raluca Tomescu, Annals of “Constantin Brâncuşi” University, Târgu Jiu, Letters and Social Sciences Series, no. 1/2012
- Cause of Van Duyn vs. The United Kingdom of Great Britain and Northern Ireland
- Case Rotti vs. Italy
- Sofia Popescu, The General Theory of Law, Editura Lumina Lex, Bucharest 2000
- Nicoleta Diaconu, Theoretical and practical aspects regarding the direct application of the European Union law in the notional legal order, http://www.nos.iem.ro/bitstream/handle/123456789/1135/2-Diaconu_Nicoleta.pdf?sequence=1&isAllowed=y
 Ina Raluca Tomescu, Annals of “Constantin Brâncuşi” University, Târgu Jiu, Letters and Social Sciences series, no. 1/2012, pp. 152-173
 Apud Ina Raluca Tomescu, op. Cit. p. 153, H. Satzger, Intenationales und Europäisches Strafrecht, Ed. Tanas, Baden-Baden, 2009, cap. 7, paragraph 7 et seq.
 H. Satzger, op. cit. head. 7, par. 7 and following
 v. Sofia Popescu, The General Theory of Law, Editura Lumina Lex, Bucharest, 2000
 Apud Nicoleta Diaconu, Theoretical and practical aspects regarding the direct application of the European Union law in the notional legal order see http://www.nos.iem.ro/bitstream/handle/123456789/1135/2-Diaconu_Nicoleta.pdf?sequence=1&isAllowed=y