Models for a System of European Criminal Law: Unification vs. Harmonisation?
| DOI | 10.1177/203228441000100308 |
| Date | 01 September 2010 |
| Published date | 01 September 2010 |
| Author | Carlos Gómez-Jara Díez |
| Subject Matter | Article |
New Journal of Eu ropean Crimina l Law, Vol. 1, Issue 3, 2010 385
MODELS FOR A SYSTEM OF
EUROPEAN CRIMINAL LAW:
UNIFICATION VS. HARMONISATION?
C G-J D*
1. INTRODUCTION
For many years European scholars have engaged i n a dialectic battle over whether the
EU needs a single Criminal Code valid for all of its territory or if it is preferable to
harmonize existing state regulations. is essay contends that, to a certain extent,
such discussion is short-sighted. It is argued that, in the end, the EU needs both
actions to be taken; the challenge is which subject-matters are to be included in the
single (federal) Code, and which to be ha rmonized progressively throughout the EU.
Correspondingly, a certa in interpretation of the crimina l provisions contained in the
Lisbon Treaty enables a more exible type of criminal legislation based on directives
(harmonisation) and also a more rigid codi cation aimed at the protection of the
truly EU interests (uni cation) i.e. as of today: the nancial i nterests of the EU.
A close examination of the recent debate on how to build a European system of
criminal law revea ls that special attention has been paid to the quest ion over whether
uni cation – by way of the enactment of a direct European regulation – or
harmonisation – mostly through Guidelines (or Framework decisions) not directly
enforceable – should be the way to go in Europe. is initial distinction between
uni cat ion / harmonisation served as a basis for coin ing the somewhat “new” concepts
of European Criminal Law and Euro-harmonized (Europäisiert) Criminal law.
Following Helmut Satzger’s de nition1, Euro-harmonized criminal law refers to the
in uence of EU law, exerted through Guidelines and Framework decisions, over the
existing numerous national criminal codes.2 European criminal law, on the other
* Associate Professor of Criminal Law (Universidad Autónoma de Madrid, Spa in). White-collar
Defence Attorney [Contac t: cgj@corporated efense.es].
1 See Satzger, Die Europäisierung des Stra frechts, 2001, at 8, 57 et seq. See a lso Prittwitz, ZStW 113
(2001), at 788; Kühl, FS Söllner, 2002, at 614; Nelles, ZStW 109 (1997), at 739; Sieber, Europäische
Einigun g und europäisches Str afrecht, 1993, at 12; Zabel, KritV 2003, at 3 63.
2 Vogel , GA 2002, at 521 regards Eu ropean harmonisat ion as an example of “inte rlegality”.
Carlos Gómez-Jara Díez
386 Intersentia
hand, consists of those criminal provisions belonging to EU law, directly enforceable
in all member states a nd adopted through EU regulations.
Not surprisingly, the question t hat immediately comes into light is the following:
do these concepts of European or Euro-harmonized Criminal Law already exist in
current EU legislation? Or do we have to wait a substantial nu mber of years for them
to appear? Put it di erently: is this something ante portas or intra muros?3 Well,
regarding Euro-harmonized criminal law, the intra muros response seems more
accurate given the ex istence of numerous EU Guidelines and Framework decisions in
criminal matters. To the contrary, when dealing with “genuine” European Criminal
Law the answer fal ls more on the side of the ante portas.4
is picture, however, does not take into account a broader perspe ctive of the legal
system i.e. not just con ned to enacted legislation. In this sense, once the eld of law-
in-force is abandoned, the number of criminal policies and academic contributions
regarding European Criminal Law certainly favours the intra muros perspective. In
addition, the provisions contained in the Lisbon Treaty re ect a higher tendency
towar ds Europ ean cr imina l law. erefore, in the end t he issue to tackle reads: Should
European Crim inal Law exist? And Euro-harmoni zed Criminal Law? And both?
In order to respond to those questions, a brief summa ry of current problems in the
face of the European pena l paramount should be addressed in Part II. e entry i nto
force of the Lisbon Treaty gives rise to some additional concerns that are re ected in
Part III. Once those problems have been exposed, it will then be time in Part IV to
analyze moder n proposals revolving around t he so-called Europea n crimes. Following
the description of the var ious proposals, Part V will exa mine a certain approach that
tries to encompass various aspects of past proposals, though gaining a broader
perspective from the ver y nature of the EU. In a nutshell: given the federal aspects of
the European Union, there is a need for the coex istence of a European Federal Cr iminal
Law, distinct and di erent national crimina l laws, and e ec ti ve me cha n is ms of j ud ic ia l
and police cooperation.
2. CURRENT PROBLEMS OF CRIMINAL LAW IN EUROPE
Criticism aimed at the “democratic de cit” of EU Institutions, the European
“sneaking” of national State sovereignty, or the violation of certain longstanding
national rights is widely spread.5 Not only are these critiques well-known, but they
3 See Schünemann, GA 2002, at 510; Id., StV 2003, at 116; Schulz, StV 2001, at 85; Id., StV 2003, at
142.
4 See Deutscher, Die Kompetenz der Europäi schen Gemeinsc ha en zur originären Strafgesetzgebung,
2000, at 345, 350; Hamm, StV 2001, at 81; Hecker, Stra are Produk twerbung im Licht des
Gemeinscha srechts, 2001, at 2; Id., Eu ropäisches Straf recht, 2005, at 5; Wei gen d, StV 2001, at 63.
5 See Braum, Europäische Strafgesetzlichkeit, 2003; Schünemann, GA 2002, at 510; Id., StV 2003, at
116; Id ., GA 2004, at 194; Schünemann et al, Alternati ventwurf Europäi sche Strafverfolg ung, 2004,
passim. Yet Braum, GA 2005, at 699.
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