European Criminal Law – From Where to Where? – Part One
Nowadays, criminal law inspired by the European Union has evolved into a significantly developing discipline and the legislations of the Member States must comply with European requirements. The importance that all legal professionals have proper knowledge in this special area of interaction between criminal law and EU law (Karsai, 2004, 90.) cannot be stressed enough in the ambit of the current situation, especially in light of the fact that the EU is proceeding towards the realisation of the single area of justice (Polt, 2019a, 14.), and the endeavours of the EU appear in the development of the traditional cooperation in criminal matters, the deepening of legal harmonisation and the uniformisation of substantive and procedural law instruments as well. The issues under examination are present simultaneously on the theoretical and/or practical level, thereby vesting a serious task on the EU and the Member States, therefore on all concerned bodies of our country (Polt, 2019b, 332.).
In the following, we aim to summarise the milestones in the development of European criminal law in two parts.
Up until 1993 – when the EU was established and the Maastricht Treaty entered into force (Várnay & Papp, 2010, 54.) – there was hardly any consideration as to whether a community-level criminal law and the harmonisation of the Member States’ criminal law rules were necessary, and even after that this question arose only in connection with the possible means of protection against fraud infringing the European Communities’ (hereinafter: European Communities/EC) financial interests (Farkas, 2018, 75., see also Madai, 2011, 265–275.). It could not be imagined that the Member States would have provided the EC with the possibility of having a voice in their respective national legal systems in the field of criminal law (Madai, 2019a, 304.).
Namely, the position that criminal law falls outside of the scope of competence of the EC and that the Member States did not explicitly transfer their sovereignty to the EC in the field of criminal justice, therefore the EC does not have its criminal legal system (Weller, 1998, 331.), dominated for a long time in the history of European integration (see also Haas, 1958., Rosamond, 2000.).. In his study written in 1995, Károly Bárd still reported about the dominant opinion according to which criminal law was more connected to the national culture compared to other branches of law, therefore it is much more resistant to the integration attempts (Bárd, 1995, 150.). This is also referred to as the thesis of cultural dependency: comparing the crossing of national boundaries in criminal law, or the possibility thereof with the argument of the close connection of criminal law to the society, culture and arising from those, to national sovereignty (Karsai, 2004, 17.). As it was already noted by Bárd as well – while acknowledging the connection of criminal law and its application to national traditions (Ligeti, 2004, 15.) – the connection examined is not stronger than in the case of other branches or fields of law (Bárd, 1995, 157.). Moreover, Krisztina Karsai points out the common features which characterize the criminal law of all states or the development thereof (Karsai, 2004, 17–20., e.g. the same principles, the reinforced protection of human rights, etc.).
The criminal policy (Bárd, 2016, 437.) of the EU was brought into being by practical necessity (see also Pradel & Corstens, 2002, 5–6.). Together with the free movement of persons and the elimination of border control among the Member States the situation of offenders changed as well since it became easier to hide within Europe. The more and more noticeable internationalisation of crime and the emergence of new cross-border forms of crime appeared as important factors (Polt, 2019b, 331–332.). Thus, the new dimensions of criminal offences appeared, which made it ever so clear that the traditional (and substantially different even in terms of principles in each state) national legislation and application are practically useless against those forms of crimes that constitute the most severe risk to the European societies (Irk, 2017, 113., Madai, 2017, 259.).
Namely, these differences in criminal law protection may also result in the perpetrators ‘sensitive’ to such differences in the Member States choosing their place of operation or trying to ‘fall under’ the jurisdiction of a Member State where they could count on less serious legal consequences (Madai, 2019b, 134–135.). By the way, this approach is not an unknown phenomenon in criminal law, for example, there is an – essentially similar – institution of ‘forum shopping’ known in international private law, which also makes it necessary to harmonise the national criminal laws (Udvarhelyi, 2018, 296.). The same applies to cybercrime and economic crime as well, types of criminal offences that go beyond not only the territorial but also the functional limits of criminal law (Sieber, 2007, 31.). In can be mentioned as an additional crucial reason that together with the establishment of the EU, certain supranational legal subjects which had not existed before but now required criminal law protection were formed (such as the budget of the EU, the financial interests of the EU or the purity of its public life, Pápai-Tarr, 2007, 26.). All these made it inevitable that the substantial differences among the criminal regulations of the Members States were lessened, and ‘interoperability’ could be realized among the legal systems (Karsai, 2004, 27.).
In practice, the process of ‘legal harmonisation’ (legal approximation) means the phasing out of the differences of the national (Member State) legal systems in the interest of some kind of common goal, without the introduction of identical rules. Meanwhile, institutionalised legal harmonisation means a specific method, in the course of which the national legislations are transformed so that through the introduction of identical or similar legal instruments and legal solutions the legislations become suitable for realising the EU’s goals. Similarly, the legal harmonisation of criminal law could also be suitable for eliminating the differences among the Member States’ legal systems, however, this shall never be the end in itself; it shall always be carried out to achieve a common, substantial goal. In case of the legal harmonisation of substantive law – which is the subject to our assessment as well – this goal is the essentially identical consideration and regulation of the same acts, therefore, among others, achieving identical strictness, through which the abovementioned ‘forum shopping’ can also be eliminated (Karsai, 2008, 433–435.).
The Ever-Evolving Concept of European Criminal Law
In 2020, Ferenc Nagy still found that the expression ‘European criminal law’ shall be construed as an umbrella term for the European legislative development process rather than as a particular branch of law in the classical sense; besides, Nagy found it more appropriate to consider it as the process of Europeanisation and cross-border cooperation in criminal law (Nagy, 2002, 307.). Furthermore, Krisztina Karsai noted that the term ‘European criminal law’ did not refer to a well-defined field of law until the Lisbon Treaty entered into force. Legal scholars used it as a blanket term to cover the extraordinarily heterogeneous results of the development processes that were occurring in the subsystems of Member States’ criminal regulations (Karsai, 2015, 15–16.).
Today the concept of ‘European criminal law’ is generally accepted, which is used by the legal literature – most often in the strict sense of the term –, and according to Ákos Farkas (in Hungary, Ákos Farkas was the first who referred to this field of law as European criminal law, in 1997, Farkas, 2018, 76.) it is linked to the EU and is embodied in the criminal law legislation and institutional system related to the relationship between the EU and the Member States and that of the EU and EU citizens (Farkas, 2017, 17.). In other words, the term is understood as the existing and evolving system of regulations and instruments of the substantive criminal law and criminal procedural law of the EU (Farkas, 2012, 139–140.) which is a new field of law, although together with international criminal law it transforms the traditional approach of criminal law (Mitsilegas, 2009.).
However, at the same time – as it is highlighted by Péter Polt (Polt, 2019a, 10). – we obviously cannot refer to the complete legal harmonisation of substantive criminal law. There is not and there cannot be a ‘single European criminal law concept’, moreover, there is not and there cannot be a ‘single European criminal law’ either (Gál & Tóth, 2016, 463–494.), since, as it is pointed out by Barna Miskolczi, a criminal law consistent with our traditional criminal law approach and assuming governmental existence cannot be established in the EU, due to the particularities thereof (Miskolczi, 2019, 161.). With these considerations in mind, the – widely used and taught – concept of European criminal law, as described above, means a living criminal law, since, in the framework of judicial cooperation in criminal matters, the Member States use countless instruments on a daily basis.
However, these means of cooperation continue to assume a criminal law ecosystem linked to the existence of the state in the traditional sense, which remains functioning because the Member States have their own (substantive and procedural) criminal law, and these (supplemented by the principles of cooperation in criminal matters, of course) constitute a proper legal foundation for the cooperation of the bodies concerned. However, this is not a criminal law ‘without a state’ or ‘above a state’. Furthermore, as it is also noted by Miskolczi, an EU-level ‘integration criminal law’ in the non-traditional sense (this emerges from the very revelation that the ‘traditional’ European criminal law is unable to react to numerous fundamental issues, Miskolczi, 2018, 4.) would not be inconceivable, however, the efforts leading to the establishment thereof have not brought about a breakthrough yet (see Miskolczi, 2018, 12.).
Consistently with this, Ákos Farkas also notes that it is not a ‘fully-fledged’ field of law, but rather one that is indeed young and turbulent, as well as unsteady in some respect, which still faces numerous unsolved issues, and a single criminal law system is not visualised by the researchers of the field either; instead, they systemise it as existing material which has multiple sources (Farkas, 2018, 76.). As the most important lesson of discussing the issues with the definition, Barna Miskolczi states that the European criminal law is still on the way to ‘find itself’ (see Miskolczi, 2019, 160–161.), and he also notes that international criminal law is struggling with similar conceptual problems (Miskolczi, 2018, 8. refers to the following: „As opposed to international private law, even the compound word, i.e. the joint use of the expressions «international» and «criminal law» already seem troublesome.” Blaskó & Polt, 2014, 41.). Currently, Krisztina Karsai also considers that the relevance of European criminal law as an independent field of law can be represented as the criminal law content of EU law that came to life through the Treaty on the Functioning of the European Union (hereinafter: TFEU) and – along the lines of the purity of the branches of law – its Member State-level ‘manifestation’, in other words, the Member States’ ‘harmonised’ law, cannot be considered as part of the European criminal law (Karsai, 2015, 16.).
For a list of references, click HERE.
Author: dr. Petra Ágnes Kanyuk
Ph.D. Student at the Géza Marton Doctoral School of Legal Studies of the University of Debrecen, Department of Criminal Law and Criminology
The study was prepared with the professional support by the Research Scholarship for Ph.D. Students No. ÚNKP-19-3, granted by the Ministry for Innovation and Technology in the framework of the New National Excellence Programme.