Directive 2008/99/EC of 19 November 2008 on the protection of the environment through criminal law: A new start for criminal law in the European Community?

elni Review ◽  
2009 ◽  
pp. 22-27
Author(s):  
Armelle Gouritin ◽  
Paul De Hert
Keyword(s):  
Criminal Law ◽  
General Rule ◽  
State Level ◽  
Judicial Cooperation ◽  
Member States ◽  
Specific Content ◽  
Institutional Conflict ◽  
Criminal Matters ◽  
The Eu ◽  
Lengthy Process

Setting the framework for the protection of the environment through criminal law at the EC level ultimately leads to the adoption of Directive 2008/99/EC of 19 November 2008 on the protection of the environment through criminal law. The Directive establishes a minimum set of conducts that should be considered criminal offences throughout the EU when unlawful and committed intentionally (or with at least serious negligence). Inciting, aiding and abetting of such conducts will equally be considered a criminal offence. Directive 2008/99/EC must be implemented by Member States by 26 December 2010. Its adoption has been a debated and lengthy process. These debates occurred at the EU level (institutional conflict) and member state level, and were reflected into the legal scholars work. These debates concerned not as much the specific content of the Directive, but the institutional framework and in particular the use made of criminal law provisions in a first pillar legal instrument, as opposed to the normal use for these purposes of instruments provided for in the third pillar of the EU (police and judicial cooperation on criminal matters). The Directive, therefore, seemingly deviates from the general rule that “neither criminal law nor the rules of criminal procedure fall within the Community’s competence”. The Directive follows a Court of Justice’s decision of 13 September 2005 (Case C176/03) to annul an EU Framework Decision on the protection of the environment on the grounds that it had been adopted on an erroneous legal basis. In its decision the Court upheld the Commission's submission, holding that the Commission may take measures in relation to the Member States' criminal law where the application of criminal penalties is an essential measure for combating serious environmental offences. Hence, a Directive, a first pillar instrument, including criminal law provisions could be adopted. This article discusses the Directive’s institutional background and looks at the criminal law provisions in the Directive. It ends with a critical note on the presumed impact of the Directive.

Implementation of European Arrest Warrant in Croatia: A Risk for the Functioning of Judicial Cooperation in Criminal Matters in the eu?

2015 ◽  
Vol 23 (3) ◽  
pp. 258-280 ◽  
Author(s):  
Tomislav Sokol
Keyword(s):  
Public Attention ◽  
Judicial Cooperation ◽  
Member States ◽  
Arrest Warrant ◽  
Legal Principles ◽  
Framework Decision ◽  
European Arrest Warrant ◽  
Definition Of ◽  
Criminal Matters ◽  
The Eu

Croatian accession to the eu included the implementation of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States. The way Croatia implemented the eaw Framework Decision, however, has resulted in controversies and public attention, both in Croatia and other Member States, revealing many problems within the system of judicial cooperation in criminal matters within the eu. The aim of the paper is to investigate the implementation of the eaw Framework Decision within Croatia; to determine whether the manner in which the said Member State has carried out the implementation has highlighted a risk for the functioning of judicial cooperation in criminal matters within the eu; and which legal measures should be used in order to prevent disintegration of the cooperation from happening. Several legal measures are proposed, both on the national and the European level, to prevent the risk of further undermining the system of judicial cooperation within the eu. These measures are presented within the context of several overarching legal principles like (providing clearer definition of the notion of) non-verification of double criminality and protection of legal interests of the Member States issuing the European Arrest Warrant.

Caught Between National and Supranational Values: Limitations to Judicial Cooperation in Criminal Matters as Part of the Area of Freedom, Security and Justice within the European Union

2008 ◽  
Vol 10 (1) ◽  
pp. 51-72
Author(s):  
Olivia den Hollander
Keyword(s):  
European Union ◽  
Legal Framework ◽  
The European Union ◽  
Judicial Cooperation ◽  
Member States ◽  
Eu Member States ◽  
The Third ◽  
The One ◽  
Criminal Matters ◽  
The Eu

AbstractCurrently, the European Union is based on both supranational (first pillar) and international (second and third pillar) law. The third pillar signifies police and judicial cooperation in criminal matters and although formally based on international law, it has been under increasing "supranational pressure" by the developments in the "Area of Freedom, Security and Justice". This Area is focused on a set of common values and principles closely tied to those of the single market and its four "freedoms". The main argument of this article is that the legal framework of the third pillar is an impediment to judicial cooperation in criminal matters in general, and to the coordination of conflicts of jurisdiction and the principle of ne bis in idem in particular. The legal framework of the third pillar finds itself in the middle of an identity crisis, since it can neither be identified as a traditional intergovernmental, nor as a supranational institutional framework. Criminal law is a politically sensitive matter, which on the one hand explains why the EU member states are reluctant to submit their powers over the issue to the European level and on the other hand, it implies that if the EU member states really want to cooperate on such an intensive level, they will have to submit some of their powers in order to strengthen EU constitutional law. The article suggests a reform of the third pillar through the method of "communitization", which is exactly what will happen in case the EU Reform Treaty will enter into force. This would offer the ingredients for a true international community in which the ambitious agenda of the Area of Freedom, Security and Justice can realise its aim of a common set of values and principles which supersedes those of each of the member states individually.

scholarly journals The position of youth justice in EU criminal law: No game for kids

2020 ◽  
Vol 11 (2) ◽  
pp. 135-160
Author(s):  
Jantien Leenknecht ◽  
Johan Put
Keyword(s):  
European Union ◽  
Juvenile Offenders ◽  
Criminal Law ◽  
Criminal Responsibility ◽  
The European Union ◽  
Youth Justice ◽  
Criminal Proceedings ◽  
Judicial Cooperation ◽  
Criminal Matters ◽  
The Eu

In criminal matters, the European Union (EU) managed to establish several mechanisms to strengthen and facilitate judicial cooperation over the years but does not clearly nor uniformly define the concepts of ‘criminal matters’, ‘criminal proceedings’, ‘criminal responsibility’ and so on in any of the cooperation instruments themselves. It is however important to know as to what the EU understands by the notion ‘criminal’ because Member States have developed specific rules in response to delinquent behaviour of minors, which are somewhat different from ‘general’ criminal law. The question arises whether the existing cooperation mechanisms only apply to ‘adult’ criminal matters or also include youth justice matters. This article therefore aims to find out whether a consistent and shared view exists on the meaning of the concept ‘criminal’ and to subsequently clarify to what extent the existing EU instruments in criminal matters also apply to juvenile offenders.

scholarly journals The Problems of Criminal Law Harmonization in the Framework of the EU

2019 ◽  
Vol 13 (2) ◽  
pp. 311-321 ◽  
Author(s):  
Vadim Voynikov
Keyword(s):  
Criminal Law ◽  
Main Idea ◽  
Legal Framework ◽  
Member States ◽  
Eu Member States ◽  
Criminal Procedure Law ◽  
The Moment ◽  
High Level ◽  
Criminal Matters ◽  
The Eu

The free movement of people across internal borders, and the high level of integration between EU member states, demands the development of cooperation in the fight against crime. That is why the EU is empowered to ensure the coordination of activities of member states in the fight against crime. This fight is one of the elements of EU policy in the areas of freedom, security and justice. One of the EU’s anti-crime activities is the harmonization of national criminal law, the main idea of which is to ensure the same level of responsibility for crimes of a cross-border dimension in all EU member states. The article analyzes the legal basis for the harmonization of criminal law within the EU, classifies these activities, shows the features of certain types (modes) of harmonization, as well as shows the place of criminal law harmonization in the EU system of combating crime. The analysis of the definition «EU criminal law» and other concepts relating to legal cooperation in criminal matters within the EU has a special place in this article. Based on an analysis of the positions of a number of researchers, the author comes to the conclusion that the concept of «EU criminal law» is an «umbrella» definition, which is understood as a set of rules relating to the harmonization of criminal law and criminal procedure law. In addition, the paper shows the features of harmonization of criminal law within the most serious types of crimes, such as terrorism, human trafficking, etc. The EU has a competence on the harmonization of national criminal law, but EU institutions are entitled to accept only framework norms that do not have a direct effect needing implementation into national law. At the moment, the EU’s primary Law contains the necessary legal framework for the harmonization of national criminal law. The analysis of this framework allows us to identify three main modes of harmonization of criminal law within the EU: functional (basic) harmonization, annex harmonization, and auxiliary harmonization.

Die Konstitutionalisierung der gegenseitigen Anerkennung

2019 ◽  
Author(s):  
Christoph Burchard
Keyword(s):  
Mutual Recognition ◽  
Fundamental Rights ◽  
Judicial Cooperation ◽  
Member States ◽  
Legal Principle ◽  
Criminal Matters ◽  
The Eu

The increasing level of judicial cooperation in criminal matters in the field of freedom, security and justice of the EU is based on the principle of mutual recognition. Christoph Burchard examines the scope and limits of this principle from a strictly union-constitutional perspective. He points out that the mutual recognition constituted in Article 82 No.1 TFEU has the effect of merely substantiating competence and thus needs to be more firmly established by way of secondary legislation. Just as unconditional trust between Member States of the Union, unrestricted mutual recognition must not be elevated to the rank of a constitutional legal principle of the EU. Therefore, the fundamental rights of the Union as well as the federal principle (including the protection of the identity of the Member States), serve as recognition barriers for the secondary legislator as well as the secondary law users.

scholarly journals Order of the International Ban and Albania's Agreements with Other Countries

2016 ◽  
Vol 2 (1) ◽  
pp. 93
Author(s):  
Nikolin Hasani
Keyword(s):  
International Order ◽  
Decision Framework ◽  
Judicial Cooperation ◽  
Member States ◽  
Eu Member States ◽  
Criminal Matters ◽  
The Eu ◽  
Legal Force

Higher stage of cooperation in criminal matters between European states is undisputed the adoption of the International Order of Prohibition (UEN) which was materialized by means of Decision Framework Constitution Nr.584 , dated June 13, 2002. This decision was endorsed by the EU Council and published in its official bulletin on June 18, 2002. Among the EU member states this order replaces classical Extradition procedure, except when some member states have declared that they will continue to implement the conventions of Extradition. From this moment the extradition procedures applied within the EU, are without legal force. The aim of this paper is to present a brief analyse of Albania’s agreements with other countries, pointing out specific aims of them, specific conditions of implementations according the specifical need for judicial cooperation between Albania and each of these countries

scholarly journals El legislador europeo en materia de seguridad y justicia tras el Tratado de Lisboa : avances hacia la cooperación judicial penal en la UE = The european security and justice legislator after the Lisbon Treaty : progress toward the criminal judicialcooperation in the EU

2013 ◽  
pp. 179
Author(s):  
Juan Fernando López Aguilar
Keyword(s):  
Criminal Law ◽  
Fundamental Rights ◽  
Wishful Thinking ◽  
Voluntary Exercise ◽  
European Policy ◽  
European Security ◽  
Judicial Cooperation ◽  
Intergovernmental Cooperation ◽  
Criminal Matters ◽  
The Eu

El proceso europeo de aproximación y/o armonización legislativa en materia penal y procesal penal arrancó en tiempo reciente: de hecho, hasta hace bien poco parecía un ejercicio de voluntarista wishful thinking, en la medida en que impactaba sobre un ámbito preservado a la idea tradicional de soberanía de los Estados. La incorporación de la legislación penal y la cooperación judicial penal al ámbito definitivo de la política europea es ejemplificativa de la construcción europea en espacios históricamente monopolizados por los legisladores nacionales. En efecto, en este ámbito se han superado en poco tiempo las limitaciones de la cooperación intergubernamental en el III Pilar que emergió con la entrada en vigor del TUE de 1992, tras su conversión en Espacio de Libertad, Seguridad y Justicia en el posterior Tratado de Ámsterdam de 1999. En este marco se adoptaron importantes Decisiones Marco (DM) que dieron pasos significativos en el ámbito de la cooperación judicial, mediante la implementación de medidas específicamente orientadas a la seguridad europea contra la criminalidad grave transfronteriza por la vía de la cooperación judicial en materia penal. La conversión del Espacio de Libertad, Seguridad y Justicia en una genuina política europea sujeta al procedimiento legislativo ordinario (con especialidades) tras el Tratado de Lisboa de 2009, junto a la proyección de la Carta de Derechos Fundamentales de la UE (en especial, de los principios de seguridad jurídica, de «proporcionalidad» y de «necesidad» y/o «subsidiariedad» en la articulación y aplicación de la legalidad penal) son ahora en efecto, la expresión más rotunda de la ambición política y de la dimensión constitucional de la UE. En paralelo a la entrada en vigor del Tratado de Lisboa, el Programa de Estocolmo, adoptado en diciembre 2009, estableció la conversión del antiguo acervo del III Pilar en una nueva y genuina política europea sujeta, por tanto, en lo sucesivo, al Derecho europeo. Los desarrollos futuros de los principios de primacía, eficacia directa, interpretación uniforme, seguridad jurídica y garantía jurisdiccional de los derechos de la ciudadanía, en el marco de las legislaciones internas en los EEMM de los que siguen siendo competentes los Parlamentos nacionales, requerirán un ejercicio intensivo de clarificación judicial por vía interpretativa, y por tanto, exigirá poner particular énfasis en la formación judicial, y del conjunto de las profesiones jurídicas, en la comprensión y manejo del Derecho europeo.The European approximation and/or harmonization in both criminal matters and criminal procedure legislation got started not so long ago: As a matter of fact, until recently, it all seemed a voluntary exercise of wishful thinking, in as much as it was making on a field so far preserved within the traditional realm of States’ sovereignty. The final incorporation of criminal law and criminal judicial cooperation to the sphere of European policy is an outstanding example of the european construction towards areas and competences that had been historically monopolised by national legislators. Indeed, the limitations in this matter of the intergovernmental cooperation in the Third Pillar that emerged with the entry into force of the TEU in 1992, after its conversion into the Area of Freedom, Security and Justice in the subsequent Treaty Amsterdam 1999, have been just recently overcome. Accordingly, some most important Framework Decisions (FD) meaning significant steps in the area of judicial cooperation were taken, through the implementation of specific measures on European security against serious cross-border crime by means of judicial cooperation in criminal matters. The conversion of the Area of Freedom, Security and Justice is a genuine European policy subject to the ordinary legislative procedure (with some specialties) after the Treaty of Lisbon in 2009, together with the projection of the Charter of Fundamental Rights of the EU (i.e., of the principles of legal certainty, of «proportionality» and «necessity» and/or «subsidiarity» in the articulation and application of criminal law) are now, in fact, the most visible expression of the EU’s political ambition and constitutional dimension.

scholarly journals THE COUNCIL OF EUROPE AS A NORMATIVE BACKDROP TO POTENTIAL EUROPEAN INTEGRATION IN THE SPHERE OF CRIMINAL LAW

2012 ◽  
Vol 19 (1) ◽  
pp. 123-148
Author(s):  
Gerard Conway
Keyword(s):  
European Union ◽  
Criminal Law ◽  
State Level ◽  
European Convention ◽  
The European Union ◽  
Council Of Europe ◽  
The Common ◽  
Criminal Matters ◽  
National Systems ◽  
The Eu

At a European inter-state level, both the Council of Europe and the European Union (EU) have developed cooperation in criminal matters between European jurisdictions. Although the EU represents a deeper form of integration and cooperation in legal terms than does the Council of Europe, the EU also has to date preferred a looser ‘intergovernmental’ means of cooperation in police and criminal matters, as compared to the degree of integration of the common market. This reluctance to integrate, to a greater degree, national systems of criminal law is reflected in the relatively limited nature of the pre-existing Council of Europe framework of instruments in the field. This article seeks to illustrate this point through an assessment of three of the most relevant Council of Europe instruments – the European Convention of Human Rights, the Convention on Mutual Assistance in Criminal Matters, and the Convention on Extradition – in the light of recent EU developments.

scholarly journals Prosecuting political dissent: Discussing the relevance of the political offence exception in EU extradition law in light of the Catalan independence crisis

2021 ◽  
pp. 203228442110047
Author(s):  
Sibel Top
Keyword(s):  
European Union ◽  
The Political ◽  
Political Rights ◽  
Mutual Trust ◽  
The European Union ◽  
Judicial Cooperation ◽  
Member States ◽  
Political Dissent ◽  
Criminal Matters ◽  
The Eu

Most extradition treaties contain a political offence exception clause, which precludes extradition from taking place when the concerned crime is considered to be political by the requested state. This clause has been abolished within the European Union (EU), where mutual trust prevails among Member States, allegedly rendering such safeguards obsolete. This article, however, seeks to question the commonly agreed outdatedness of the political offence exception clause within the EU framework, looking at the context of its abolition, the role Spanish authorities played in it at the time of its abolition, the way they have handled the Catalan crisis since 2017 and the exportation of the latter at the EU level. It argues that the situation in which Catalan exiles are today casts doubt over the obsolescence of safeguards such as the political offence exception and further contends that human and political rights safeguard mechanisms should not be perceived as hampering mutual trust and judicial cooperation in criminal matters in the EU.

The preliminary ruling procedure at the court of justice of the European Union and transformation of European anti-discrimination law

2020 ◽  
Vol 2020 (3) ◽  
pp. 66-72
Author(s):  
Elena Sorokina
Keyword(s):  
Legal System ◽  
Essential Feature ◽  
Preliminary Ruling ◽  
The European Union ◽  
Judicial Cooperation ◽  
Member States ◽  
National Courts ◽  
Court Of Justice ◽  
Protection Of Human Rights ◽  
The Eu

The preliminary ruling procedure is an essential feature of the EU legal system, which is a unique cooperation tool as part of the dialogue between the Court of Justice of the EU and national courts of the Member States. Its main purpose is to ensure uniform interpretation and application of the provisions of EU law with all Member States and to preserve the uniformity of the European legal system. The continuous use by national courts of the Member States of the mechanism of preliminary ruling and constructive inter-judicial cooperation, the Court of Justice has developed an extremely extensive case law on the prohibition of discrimination and with the result to introduce substantial changes in European anti-discrimination law.The preliminary rulings of the Court of Justice have shown its inclination to expand notions of what constitutes discrimination and in most cases the Court prompt by the desire to interpret the provisions of European law so as to ensure the full effectiveness of the law, as well as a willingness to promote and strengthen protection against discrimination in Europe. While the protection against discrimination on some grounds is stronger than others, however, the preliminary rulings of the Court of Justice are important contribution to the transformation of anti-discrimination law, promote change in the national legislation of the Member States and provide the more effective protection of human rights in general.

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