In its landmark judgment of 13 September 2005 – C-176/03 (Commission v Council) – the European Court of Justice ruled on the so-called EC competence to issue instructions or directives for criminal sanctions in the area of environmental protection.[i] The power to issue instructions is generally understood to mean the power of the EC institutions to instruct the EC states to harmonize their national criminal law by means of a directive.
In its judgment, the ECJ explicitly stated that the Community is empowered to "take measures relating to the criminal law of the Member States which it considers necessary to ensure that the rules it lays down on environmental protection are fully effective, provided that the application by the competent national authorities of effective,proportionate and dissuasive sanctions by the competent national authorities is an essential measure for combating serious environmental damage,"[ii]. In any case, Community legislation should regulate the criminal liability for particularly serious environmental damage, leaving the Member States the choice of the applicable criminal sanctions, which should be effective, proportionate and dissuasive.
I. Introduction
The fundamental competence of the European Community to instruct the EC Member States by means of directives to harmonize their national criminal law was, at least prior to the clarifications provided by the ECJ in 2005, highly controversial in legal literature.
Some believed that the European Community was not authorized under any circumstances to adopt criminal guidelines. According to other opinions, EC directives approximating the criminal codes of the Member States were considered permissible under the condition that they leave the EC states a rather wide margin of discretion with regard to the form of the sanction, i.e. the latter do not specifically oblige them to introduce or amend criminal law norms.[iv] Proponents of criminal law powers, on the other hand, also considered such Community acts to be within the scope of their powers, even where they did not leave the Member States any options. Although in both cases it is a regulatory technique for "the EC to determine national criminal law",[v] the relevant difference is that in the latter case, the implemented domestic criminal provision is only formally democratically legitimized by the directly elected national parliaments.[vi] Basically, however, if the national parliaments were to adopt the requirements set by a directive, they would be surrendering their competence to set criminal law to the EC organs. However, the authority of the EC to enact criminal law was not considered to exist, primarily due to the democratic deficit at the EC level. [vii] In some cases, the above-mentioned dispute of opinion also distinguished between whether national legislation already exists or whether it is formally a "creation of law by the Community". In this context, the proponents of the EC's criminal law powers considered a directive to be permissible, since it could not be the case that the Community legislator would have to wait for the adoption of a national regulation first.viii
Before the much-publicized decision of the European Court of Justice of September 13, 2005 on the Community's competence to issue instructions in the environmental field, there had never been any EC legal acts in which the EC member states were expressly obliged to impose criminal sanctions. To date, the type of sanction, which may possibly go beyond the above requirements, has been left to them. In these legal acts, the EC Member States were usually only encouraged to "adopt appropriate sanctioning provisions or amend their penal provisions".[ix] Furthermore, various directives adopted in the area of fisheries and transport policy required EC states to take criminal action against lawbreakers or restricted the types of sanctions they could provide for. Although the term "criminal law" was not explicitly used, only criminal law provisions could fulfill the required implementation.
II. Transferability of the court decision of September 13, 2005 to the financial interests of the EC?
The judgment of the European Court of Justice has been heavily criticized in the literature.[xi] According to the critics, the ECJ failed to sufficiently recognize the limitations of European criminal law. In particular, there are concerns in the literature that the decision is being over-interpreted with regard to the competences of the EC in criminal law.[xii]
In fact, the European Court of Justice has fundamentally addressed the question of the existence of a criminal law competence of the EC institutions in the context of the recitals. It is questionable whether the recognized jurisdiction for Art. 175 EGV can also be transferred to other communitarized policy areas and whether the path for a "total harmonization of criminal law by the ECJ"[xiii] has been paved. Specifically in the area of the EC's financial interests, i.e. the protection of the EC budget, the question of the EC's authority to set criminal law provisions has always been the subject of lively discussion. The protection of the EC's financial interests represents a "pioneering role"[xiv] for European criminal law. The particular interest in the question of introducing and approximating criminal law competencies is due to the fact that the extent of the damage is at least 10-20% of the Community budget. From this, there is a high need for the EC institutions to protect their own budget more effectively. For this reason, the call for the EC to have criminal law powers is particularly loud when it comes to the EC's budgetary interests, since a sufficient deterrent effect can only be achieved with criminal law measures in the case of particularly serious subsidy or fraud offenses, and the member states often have only a limited interest in the complete protection of the EC budget.[xvi] Furthermore, in view of the enormous differences in substantive criminal law and criminal procedure, there is an acute need for the approximation of the differing national laws.
The ECJ's statements on the power to issue instructions under criminal law clearly go beyond the area of environmental protection: First of all, the Court of Justice challenges the view of the Council and the Member States that had joined it, who had argued that the mere fact that an implied transfer of competence over criminal law was out of the question was enough to argue against the competence of the EC institutions.[xvii] In the Council's view, "in view of the considerable importance of criminal law for the sovereignty of the Member States", an explicit allocation of competence was necessary. The ECJ did not follow this interpretation of critics of European criminal law, which had already been expressed in legal writing,[xviii] and for good reason. This must be fully endorsed: After all, the enabling principles of the Community Treaty are designed to be independent of legal fields, so that an explicit mention of criminal law would be highly atypical for the system of the EC Treaty. It also seems almost inconceivable that one would exceptionally want to depart from the systematically justified silence in the bases of competence of primary Community law for the area of genuine criminal law. In this respect, a tacit transfer of the right to establish criminal law to the European legislator would also be conceivable in principle.
The ECJ's statement that, in principle, neither criminal law nor criminal procedural law falls within the jurisdiction of the Community does not argue against the criminal law competence of the EC organs. In the following sentence of the judgment, the Court states that this circumstance cannot prevent the Community legislature from taking measures with regard to the criminal law of the EC states that it considers necessary. The fundamental jurisdiction of the Member States for criminal law had already been clarified by the ECJ in various decisions. [xix] These general statements by the ECJ were misinterpreted early on by the literature and, above all, by critics of European criminal law who opposed the EC's competence in criminal matters. At the time, these statements by the Court were only of limited significance for the possible introduction of a Community criminal law-enforcement competence for the protection of the EC's financial interests, which is to be clarified here. In its statements on criminal law, the court only establishes "principles" that leave open the question of whether sector-specific exceptions are conceivable. Moreover, it was not clear whether these statements concerned criminal law in the narrower sense, covering only crimes punishable under criminal law, or criminal law in the broader sense.[xx] Furthermore, even proponents of an extensive interpretation would probably describe a fundamental original competence of the EC for criminal law as absurd.
Furthermore, the argument put forward by the Council that criminal law powers are reserved for the European Union (Art. 29, 30, 31e EU) does not hold water. This follows from the passage standardized in Art. 29 EU that the objectives of Title VI would be pursued "without prejudice to the powers of the European Community". This wording suggests that further-reaching competences of the European Community should not be excluded.xxxi] In this respect, the existence of competence over the subject matter of criminal law within the Community provisions of primary law does not appear inconceivable from the outset. The strict separation of the legal matters of the EU and EC Treaty, as expressed in this non-affection clause, would ultimately also be preserved if one were to consider separate criminal law community legal acts for the financial interests as a result of the concurrent area of competence.
In any case, neither Union law as a whole nor Title VI of the EU Treaty allow the European Community to be granted the power to do so.xxii If one also takes into account the fact that the purpose of Article 29 EU is to prevent the Union legislature from attempting to control or amend the EC Treaty, [xxiii] the non-affection clause seems to have more of a competence-limiting effect on the "provisions on police and judicial cooperation in criminal matters" themselves. Accordingly, one could at most come to the opposite conclusion, namely that ultimately even Community law limits the powers in the area of "police and judicial cooperation in criminal matters". The assumption that the provisions of Title VI of the Treaty on European Union have the effect of limiting the competence for Community criminal law would thus be tantamount to reversing the actual function of Article 29 EU.
III. The non-affection clause of Art. 280 (4) sentence 2 of the EC Treaty
Above all, the interpretation of Article 280, paragraph 4, sentence 2 of the EC Treaty by the European Court of Justice is decisive in favor of a comprehensive recognition of the EC's authority to issue instructions, including in the area of the EC's financial interests. Here, the EC institutions may take measures relating to the criminal law of the Member States.
Art. 280 (4) sentence 2 of the EC Treaty states:
"These measures shall not concern the application of national criminal law or the national administration of justice."
This so-called non-affection clause was regarded in much of the literature prior to the much-publicized decision of the European Court of Justice as evidence that the Member States should be protected from a further expansion of supranational competences into the field of criminal law, with the consequence that that the application of criminal law remains a prerogative of the individual member states in the future as well.xxv] The inviolability clause was intended to express that the member states are to be protected from the criminal law influences of the EC.xxvi]
The ECJ has clearly opposed this and unequivocally stated that it cannot be inferred from this paragraph that any harmonization of criminal law is inadmissible if it is necessary to ensure the effectiveness of Community law.[xxvii] A reverse conclusion to the effect that criminal law provisions are only within the competence of the EC in environmental policy, but not in other areas in which there are non-affection clauses, cannot be drawn from this. Behind the Community law approximation directives in criminal law, there are in fact legislative obligations addressed to the Member States to penalize certain forms of conduct that were not previously punishable. Such a conclusion would have the consequence that the approximation of criminal law would be permitted in environmental policy, but prohibited in other policy areas. However, according to their explicit wording, the non-affection clauses generally refer to the application of the criminal law of the Member States and their criminal justice system. Otherwise, the consequence would be that the EC institutions would have criminal law powers in environmental law, but would not be able to effectively protect their own legal assets, such as their budget. In his final speech in the case C-176/03 of 26.05.05 (Rz. 78), the Advocate General Colomer oversimplified matters: he had relativized the significance of Art. 135 EC and 280 IV 2 EC to the effect that they only allowed measures to affect the "application" of criminal law and the criminal justice system, i.e. not the creation of the norm is affected, but only its application, and that would undoubtedly be the responsibility of the judges responsible for the administration of criminal justice. However, this is clearly not the full extent of the non-affection clause, as otherwise it would be completely without regulatory content, especially since there is not yet a European criminal court.
This surprisingly unambiguous interpretation of the clause in sentence 2 of Article 280 (4) EC gives cause to take a closer look at the content of the non-affection clause:
At first glance, the clause's opacity is hard to beat. Accordingly, it has caused great confusion not only in the literature. The only thing that is currently agreed upon is that Article 280 (4) EC is a poorly formulated norm.xxviii The true meaning of the inviolability clause continues to be a matter of guesswork. Here is an initial overview: some understand it to mean only that national criminal and criminal procedural law will continue to apply in the future, i.e. remain in force alongside any supranational measures.[xxix] An interpretation understood in this way would allow the creation of new supranational criminal provisions in the future.[xxx] However, it was countered that the non-affection clause also contains a "negative statement"[xxxi]. If the continued validity of the fifteen national penal codes was also established by the wording in Art. 280 IV 2 ECT, then the will was hereby associated with this, to not make all remaining behaviors of the European market participants, which are unpunished according to the national penal provisions, subject to punishment.[xxxii] In this respect, "any incrimination by the Community that covers conduct that does not already trigger the application of national criminal law [...] affects this negative function of national criminal law and thus also its (negative) application". Consequently, the inviolability clause contains an assurance of exclusivity with regard to the subject matter of criminal law and the administration of criminal justice to the Member States, with the consequence that "necessary measures" may not include criminal provisions. [xxxiv]
The most far-reaching view, which was probably settled by the ECJ judgment of September 13, 2005, assumed that even an approximation of the domestic criminal offenses by EC institutions was made impossible by Art. 280 para. 4 sentence 2 EC impossible. This interpretation of the non-affection clause could be achieved by referring to the prohibition of "interference" of community law and criminal law. If the meaning and purpose of Art. 280 para. 4 sentence 2 EC to prevent any interference of national criminal law by legislative measures of Community law, and thus to strictly separate the area of criminal law from Community law, one would have to conclude that any influence on national criminal law in the form of secondary directives will also be prohibited in the future.[xxxvi] The Community legislator would therefore be prohibited from working towards the national legislative bodies ultimately repealing relevant national penal provisions and/or incorporating regulations into the penal codes elsewhere through Community legislative acts.
1. The literal interpretation
However, if one takes as a basis the (awkwardly formulated) legal text of Art. 280 (4) sentence 2 of the EC Treaty, it initially only prohibits the Community legislator from "applying the criminal law of the Member States or their criminal justice system", and thus specifically does not exclude their criminal law as a whole. In other words, "necessary measures" within the meaning of the first sentence may not prescribe the application of national criminal law. Hence, the Community legislature is henceforth prohibited from making referrals in acts of European Community law to already existing criminal law provisions of the Member States for the criminal law protection of EC financial interests. Regulations based on Art. 280 (4) sentence 1 EC in this area may not contain any provisions that determine that the scope of application of the national criminal law is extended to acts detrimental to the legal interests of the European Community that would not have been covered by the scope of application of the national criminal law without such a secondary law reference provision.
Such a regulatory technique for equating the protection of European Community legal interests under criminal law with those of the individual nation states, which certainly offers the advantage of not necessarily being dependent on the implementation of this obligation by the often disinterested individual nation states with regard to the success of the complete assimilation of supranational and domestic legal interestsoften disinterested in this respect, was initially undertaken in the past in two EEC regulations outside the area of financial interests: To ensure confidentiality in the context of surveys on wages[xxxvii] or the structure and distribution of wages in industry and trade[xxxviii], the regulations in their respective Art. 5 para. 2[xxxix] the penal provisions of the member states, which previously only threatened business and trade secrets with punishment within the state itself, [xl] for directly applicable.
Similar references to national criminal law can be found in regulations aimed at combating fraud and irregularities, such as Commission Regulation 1681/94 concerning irregularitiesirregularities and the recovery of sums wrongly paid in connection with the financing of structural policies and for the establishment of an information system in this field"[xli]. Article 10 (4) (1) [xlii] of the regulation subjects the information transmitted or received under the regulation to the national laws of the member states for the protection of professional secrecy. The second sentence of Article 45(1)(1) of Regulation 515/97 also refers to the criminal law of the Member States protecting professional secrecy, in order to ensure the confidentiality of information provided in the course of mutual assistance between administrative authoritiesand the cooperation of those authorities with the Commission to ensure the proper application of customs and agricultural legislation. Since the purpose of the latter regulations is to protect the EC's financial interests under criminal law, and thus now fall within the scope of Article 280(4) EC, 280 (4) EC, they may have become ineffective as a result of the prohibition of the reference technique, unless the prohibition in Art. 280 (4) sentence 2 EC applies only to future legal acts.
Long before the non-affection clause in Art. 280 par. 4 sentence 2 EC came into being, the competence of the EC organs to refer to pre-existing national criminal law was highly controversial. This found expression in the fact that the law on statistics for federal purposes [xlv], which was referred to in the first two regulations, was amended by § 8 of the "Law for the Implementation of Regulation 70/66 (EEC)" "Special Provisions for Statistics of the European Economic Community and the European Atomic Energy Community"[xlvi]. These changes to the Statistics Law had become necessary after a dispute had arisen between the German Bundesrat[xlvii] and the government regarding the effectiveness of such references. In any case, after the last-mentioned provisions were inserted, it was established that the statistics of the European Economic Community and the European Atomic Energy Community were equivalent to national business and trade secrets under criminal law. It is no longer relevant in this area to decide on the authority of Community institutions to refer to national criminal law, especially since the regulations have since become irrelevant following the implementation of the surveys.[xlviii]
For a long time, there was disagreement in the literature about the admissibility of references to national criminal law. On the one hand, sanction regimes in the form of references were considered possible if they were applied in the context of "comparable facts".[xlix] If the Council of Ministers were to determine that the national criminal provisions also apply at the EC level, it would be respecting the legislative decision of the national legislative bodies. [l] On the other hand, massive concerns were raised about the so-called "referral competence" were raised.[li] These resulted primarily from the fact that this would create direct criminal law norms of the Community legislator and thus supranational criminal law.
2. The systematic interpretation
In the systematic interpretation of the inviolability clause, some[lii] draw a reverse conclusion, the correctness of which must be examined: According to Tiedemann[liii], the formulas known from numerous regulations imply that "the jurisdiction of the Member States for criminal law or the administration of criminal justiceremain unaffected"[liv] or that the measures envisaged in the respective legal act are "not of a criminal law nature"[lv], this indicates that, because of the differently formulated non-affection clause of Art. 280 para. 4 sentence 2 EC, the Community legislator is not prohibited from laying down its own criminal law sanctions. Since the already known and common formulations of secondary law, which clearly clarify that an EC criminal law competence is not and has not been created, have not been adopted into primary law, the clause of Art. 280 (4) sentence 2 EC ("The application of national criminal law and the national administration of justice shall not be affected by such measures.") that this regulation has a different meaning than the non-affection clauses of Article 19, Regulation No. 11[lvi], Article 15 (4), VO Nr. 17[lvii], Art. 22 Abs. 4, VO Nr. 1017/68[lviii] and Art. 14 Abs. 4, VO 4064/89[lix]. In this case, Tiedemann is interpreting the primary law of the EC Treaty in a way that is consistent with secondary law. However, the correctness of this approach must be questioned.
Firstly, the view cannot be supported by the ECJ's established practice of interpreting secondary Community law with the help of primary treaty provisions. The Court has always reviewed the interpretation of secondary legislation in the light of the provisions of the EC Treaty to ensure consistency with primary law.In case of doubt, the European Court of Justice prefers the interpretation variant that avoids a classification as incompatible with primary law when interpreting the lower-ranking law.[lxi] Although the expression of this case law may consist of the fact that, in order to ensure the compatibility of secondary and primary law, a certain presumption suggests itself that the same formulations of the derived law and contractual norms are based on a uniform meaning. However, the premise of this form of interpretation is the temporally preceding existence of primary-law treaty articles, which are then used to interpret secondary-law clauses. However, since the current formulations in secondary Community law are cited as an argument for the assumption of a criminal law competence of the EC in Art. 280 (4) EC, in this case it is not the derived law that is interpreted by the EC Treaty, but rather the other way around, standards of primary law are interpreted by long-standing formulas in secondary legislation. In this case, the standard of the primary law does not serve as a test, but only the subordinate secondary community law. However, there is a lack of relevant case law for such an interpretation practice. In some judgments, the Court has substantiated indeterminate terms of the EC Treaty by referring to secondary legislation. [lxii] Evidence for an understanding of a primary law standard was taken from the subsequent practice of the Community institutions when provisions of secondary law substantiated this regulation. However, the possibility of certain interactions between Community law of different ranks does not in any way imply that the Court of Justice fundamentally recognizes an "interpretation of Treaty law in conformity with secondary law"[lxiii]. The ECJ has so far only interpreted primary Community law concepts through formulations in secondary law in relation to the derived law and the corresponding enabling provisions of the Treaty on the basis of which it was issued.[lxiv] Beyond these constellations, an interpretation of the Treaty law that conforms to secondary law would be prohibited. Aspects of the hierarchy of norms would be the main argument against the fundamental recognition of such an interpretation method.[lxv] Just as national law cannot be directly invoked in the interpretation of Community law, Community legal acts may not interpret provisions that are superior to them. Otherwise, the principle of the lower rank of secondary Community law in relation to the law of the Treaty would indeed be disregarded. [lxvi] If the understanding of a primary law provision were always based on related provisions of secondary law, there would be a significant risk not to declare inferior norms invalid in the event of their being contrary to the contract, but even to regard their meaning as decisive for the primary legal norm. Since the regulations no. 11[lxvii], no. 17[lxviii], no. 1017/68[lxix] and no. 4064/89[lxx], which contain the well-known clauses in Art. 19, Art. 15 (4), Art. 22 (4) and Art. 14 (4) contain the well-known clauses to which Tiedemann[lxxi] refers, were in any case not based on the basis of the contractual provision of Art. 280 (4) EC to be interpreted here, in any case an alignment of the higher-ranking with the lower-ranking Community law in the interpretation of the provision is ruled out.
If Tiedemann [lxxii] claims that precisely because the special terminology of secondary law was not adopted, it must be assumed, by implication, that the inviolability clause must be understood to mean that the norm of Article 280 (4) EC must include criminal acts, he fails to recognize these aspects. The argument also overlooks the fact that, while both secondary and primary law constitute Community law, there is often no further overlap between them. The essential difference lies in the divergent creators of the regulatory areas. While secondary legislation is standardized by the organs of the EC, the articles of the EC Treaty are drafted by the representatives of the governments of the Member States at the intergovernmental conferences. It is doubtful whether the authors of the Amsterdam Treaty had the relevant secondary legislation, with its typically detailed wording, at all during their negotiations, let alone whether they were even familiar with it. Against this background, differing formulations in secondary legislation and in primary Community law, which, it should be noted, do not regulate completely congruent subject areas, do not necessarily have to lead to different results.[lxxiii]
3. The teleological interpretation
In the context of the teleological interpretation of the inviolability clause, a restrictive understanding of Art. 280 para. 4 sentence 2 EC has emerged. According to these interpretations, the Treaty of Amsterdam has given the EC partial criminal law competence to protect its financial interests, since the inviolability clause only has the significance of ordering the exclusion of a priority effect typical of Community law for the area of criminal law. This would have the consequence that additional intervention by the Community legislator would be permissible in this area.[lxxiv] According to this opinion, the EC legislature could take subsidiary action in cases where the laws of the EC Member States do not provide sufficient protection of the European Community's financial interests or where they provide insufficient protection. The Community would then have the authority to close these gaps in the national criminal law systems on a subsidiary basis.[lxxv] If the EC legislator finds discrepancies in the national legal systems, then it must consequently have the option of correcting these with its own, complementary criminal law.[lxxvi] Thus, the creation of an EC penal provision penalizing the reckless acquisition of subsidies is permissible under the law of jurisdiction, but with the proviso that the provision is only applicable in the criminal law systems of member states that do not recognize criminal law protection against the reckless acquisition of subsidies.[lxxvii] On the other hand, the regulation is not applicable in the EC countries that already criminalize the reckless misappropriation of European Community subsidies.[lxxviii]
Even if the separation of the legal masses of Community law from national criminal law is seen as documented in the immunity clause, this would not necessarily speak against Community sanctions of a criminal nature, since the ordered divorce would be preserved if the individual national and Community criminal offenses were to stand side by side in isolation.[79] In support of this view, it is stated that the financial interests of the EC are such an important legal interest that the inhibitions against the communitization of criminal law do not apply here, [80] so that this interpretation corresponds to the development of recent years, in which the protection of the financial interests of the EC was always the driving force behind the development of a European criminal law.
The first problem with this interpretation of the non-affection clause is that it is unclear when a criminal gap in the national criminal law systems can be assumed.Does the existence of a gap mean that there is no criminal liability according to the literal analysis of the wording, or does criminal liability already exist if there is an explicit criminal provision but legal practice only interprets the norm restrictively?
Moreover, the results of this interpretation variant are not entirely convincing. It seems unfair to ignore the need for intervention by the Community legislator if all Member States recognize intentional subsidy fraud but the severity of sentenceswould vary from moderate fines to double-digit prison sentences, just as action by the EC institutions does not necessarily appear to be necessary if the relevant EC country does not recognize subsidy fraud as a criminal offense, but the behavior is covered by other facts.
Attention must also be drawn to the enormous potential for conflict that would arise in the event of the subsidiary application of Member State and national criminal law. On the one hand, Schröder[lxxxii] points to the undermining of the national decision-making process, although it should be noted that state parliaments were already suffering from this loss of power in the area of criminal law at the time of Maastricht. The loss of credibility that would result from the conviction of perpetrators on the basis of European criminal law would be even more tragic if the perpetrators were convicted. Many citizens would wonder what the point of the domestic penal code is if it is not complete, and would be uncertain about which legal situation applies. It would quickly become clear that a standardized European StGB would be the better solution, since all actions and omissions to be penalized could be clearly compiled here.
The same conclusion would be reached if, in the case of a restrictive interpretation of the non-affection clause, it were considered to have the sole meaning of preventing the conclusive effect of Community sanctions in the area of criminal law. Such considerations could be taken into account in view of the fact that, according to the general rules on the distribution of jurisdiction between the Community and the individual Member States in the area of concurrent legislative jurisdiction, the subordinate legal system (of the Member States) loses its authority to legislate when the higher-level authority has exercised its competence over a subject in a conclusive and exhaustive manner. [lxxxiii] In principle, the Member States can no longer issue any standards here.
measures to combat fraud, for which, at least since the Amsterdam Treaty, both the EC states and the EC institutions themselves are responsible[lxxxiv], and which thus fall under the concurrent legislative competence, have in this respect a fundamentallyfinal effect in the case of a regulation by the Community legislator. Ultimately, however, the authors of the EC Treaty and the Community legislator can themselves determine the consequences for national law when the Community legislates. Exceptions to the primacy of Community law are already provided for in primary law for the area of environmental policy in Article 130t ECT, for occupational safety in Article 118a (3) ECT, and for the approximation of legislation relating to the internal market in Article 100a V EGV[lxxxvii] had been planned.
A conclusive effect of secondary Community law and thus a loss of legislative competence of the Member States can therefore be prevented if the authors of the Treaty have expressly permitted the EC Member States to enact additional provisions in primary law by means of such so-called "protective or emergency clauses" in primary law. [lxxxviii] In this area, the Member States can continue to apply their national law and enact new legislation.[lxxxix] If the non-affection clause were now regarded as such an "authorization", then Community measures in the field of criminal law and criminal procedure would not preclude the Member States from acting.
This interpretation is compatible, above all, with the idea that the existing Community provisions on sanctions are not intended to be exhaustive and are to be understood only as a minimum sanction,[xc] which allows for more severe punishment under national provisions.[xci] If the primary law were to determine that criminal law is exceptionally excluded from the primacy effect,[xcii] this would also indicate that "necessary measures" can also entail criminal law, community regulations, which may even exhaustively regulate the protection of EC financial interests, otherwise an explicit provision excluding the superseding effect of Community law would be superfluous. In other words, this method of interpretation leads to the following conclusion: If supranational criminal law provisions that regulate the fight against fraud to the detriment of community funds in an exhaustive and comprehensive manner were excluded from measures within the meaning of paragraph 4, sentence 1, the future application of national criminal law would have arisen even without a mention in Article 280 (4) sentence 2 EC would have followed from the fact that a superseding effect could not have taken place from the outset.
Admittedly, if one assumes a parallel distribution of competences, in which not only Community criminal law but also domestic criminal law sanctions would apply, there would be a risk of significant burdens for the person concerned due to a possible "double jeopardy".[xciii] It is suggested that this could be countered by offsetting the sentences or by suspending one of the proceedings.[xciv]
Before the pronouncement of the discussed judgment of the ECJ of September 13, 2005, it was held that the purpose of the non-affection clause was to leave the Member States with a certain monopoly on decisions regarding the constituent elements of the offense and the scope of all criminal provisions.
However, it would be a mistake to conclude from the non-affection clause that it enjoins the Community legislature from influencing domestic criminal law through any legislative action, as Satzger[xcv] does. This would amount to an over-interpretation of the clause. According to Satzger, the non-affection clause even contains the following "negative statement":[xcvi] If the wording in Art. 280 (4) sentence 2 EC also established the continued validity of the fifteen national penal codes, this was associated with the will not to make punishable all the other conduct of European market participants that is not punishable under national criminal law.[xcvii] He draws this from Liszt's[xcviii] "Magna Carta of Crime." By defining criminal offenses, the nation states simultaneously created leeway under criminal law. In this respect, "any incrimination by the Community covering a form of conduct not already covered by the application of national criminal law would affect... the negative function of national criminal law and thus also its (negative) application"[xcix]. Consequently, the non-affection clause expresses an assurance of exclusivity with regard to the subject matter of criminal law and the administration of criminal justice to the Member States, with the first consequence that "necessary measures" may not include criminal law provisions, [c] and the further consequence that that efforts at harmonization in the form of Community law directives will also be prohibited in the future. If the non-affection clause were actually interpreted to mean that the Amsterdam version precludes any interference with national criminal law by legislativemeasures of community law, then the community legislature would now be barred from obligating the member states to take measures to ensure appropriate sanctioning or to approximate the criminal law protection of European protected interests. The organs of the EC would thereforenot use Community legislation to ultimately abolish relevant national criminal provisions or to incorporate regulations into the penal code in another place if this is deemed necessary for greater consistency and the Community legislator fears gaps in punishability.
However, criminal law is not independent of European Community law to that extent. If the Community legislature were to be deprived of the right, already exercised many times in the past, to [ci] force the Member States to harmonize their sanctioning and penal provisions in this way, this would undoubtedly be at the expense of the uniformity of protection under criminal law, which 280 para. 4 sentence 1 EC, one of the outstanding objectives of the EC fraud prevention. This example also illustrates that the Treaty of Amsterdam would have led to a significant step backwards in integration if it had in future been ruled out to aim to harmonize individual provisions of the criminal codes of the Member States by means of secondary directives through measures pursuant to para. 4 sentence 1 of the provision to aim to harmonize individual provisions of the criminal codes of the member states by means of secondary legislation.
Such a view would even mean the temporary end of all Community initiatives to curb distortions of competition by harmonizing national criminal law. Art. 280 para. 4 sentence 2 EC then blocked the Community's efforts to put an end to the fragmentation of the law only by measures in the area of national criminal law that would protect national sovereignties.
If the inviolability clause is given the meaning that it is intended to prevent any "interference" of European law and criminal law, then one would have to conclude that this form of influence on national criminal law will be prohibited in the future. However, the incorrectness of this interpretation can be seen from the fact that, according to this line of argument, the obligation of the EC states to assimilate the elements of crime, which is known as the mildest form of influence, could no longer be maintained, since national criminal law is no less influenced by supranational law as a result. This would already contradict the explicit primary law provision of Art. 280 (2) EC, which continues to maintain the obligation on the Member States to harmonize their criminal law.
4. Interim result
The fact that Art. 280 para. 4 sentence 2 EC does not explicitly contain a provision for thesolution to the question of a sector-specific transfer of jurisdiction over criminal law to the European Community, it is clear that the formulation of the non-affection clause must be assumed to be an editorial mistake by the authors of the Treaty of Amsterdam. Unclear or even erroneous formulations in the EC Treaty are no longer a rarity and have also occurred in other policy areas in the past. [ciii] The unfortunate wording of Art. 280 (4) sentence 2 EC has even been openly stated and regretted in the European Parliament. [civ]
To make it clear that criminal law will remain a "domaine reserved" for the member states in the future, it would have been necessary – as it was, for example, in the various non-affection clauses of Regulation (EC) 1073/1999 – it would have been necessary to articulate more clearly that not only "the application of national criminal law and the national administration of justice" is excluded from the measures required under Article 19 1 of the same paragraph, but that the Member States' overall jurisdiction over criminal law or the administration of criminal justice should remain unaffected.
In view of this, the wording of Art. 280 (4) sentence 2 EC could be corrected during one of the next treaty revisions. The Member States should then amend the non-affection clause to the effect that the measures referred to in the first sentence may not affect the criminal law or the administration of justice in the Member States. Clarification would also be provided by the wording that has already been included in numerous secondary legislation regulations[cv] and has always been used, namely that the measures to be adopted under the first sentence are "not of a criminal law nature". Otherwise, the fear expressed by Hefendehl [cvi] that the Brussels octopus could now incorporate criminal law could come true. This risk must certainly apply to the protection of the EC's financial interests, as there is a pressing need for uniform criminal law standards in view of the enormous extent of the abuse and the widely differing criminal law provisions.
IV. Conclusion
In its decision of 13 September 2005, the European Court of Justice for the first time clearly spoke out in favor of comprehensive competence of the EC organs for the harmonization of the criminal law of the Member States. However, this does not yet pave the way for a "total harmonization" of the criminal codes of the member states, since, according to the ECJ, the EC's competence in criminal law is subject to necessity. The ECJ did not follow the view that the inviolability clause of Art. 280 (4) sentence 2 EC in particular speaks against the criminal law competences of the EC to effectively guarantee the protection of the financial interests of the EC. The ECJ also did not address the historical method of interpretation, which would have suggested that the non-affection clause was indeed a consequence of the reluctance of the Member States to accept European criminal law. On the contrary, the European Court of Justice even uses the non-affection clause of Art. 280 (4) 2 EC Treaty to ultimately derive the EC's efforts towards harmonization of criminal law.
Unfortunately, in its landmark decision, the ECJ also failed to address the most important argument put forward against the competence for criminal law, namely that criminal law provisions could not be sufficiently democratically legitimized due to the democratic deficit within the European Community.[cviii] Since the European Court of Justice has already explicitly ruled in other proceedings that the sufficient involvement of a specific EC institution is necessary for certain policy areas and legislative proposals in order to give the standard the necessary democratic legitimacy,[cix] one can conclude from this that the Court apparently considers EC criminal law guidelines to be sufficiently democratically legitimized to ensure uniform punishment.
In the area of the criminal law protection of the EC's financial interests, the question will therefore be (and must be) discussed even more vigorously in the future as to whether original criminal law provisions of the EC organs are now within the limits of their authority when enacted by way of a regulation.The judgment of the ECJ of September 13, 2005 gives the impression that even the introduction of EC penal regulations for the protection of its financial interests is only permissible under the condition of "necessity".
Endnotes:
[i] ECJ, judgment of September 13, 2005 – C-176/03 (Commission v Council) = ECR 2006, 179. [ii] ECJ ECR 2006, 184 para. 48. [iii] For the former opinion with further evidence: Hecker, Europäisches Strafrecht, 2005, pp. 154 et seq.; Satzger, Die Europäisierung des Strafrechts, 2001, pp. 393 et seq.; Dannecker, Criminal Law of the European Community, in Eser, Albin/ Huber, Barbara (eds), Development of Criminal Law in Europe 4, Part 3, Freiburg im Breisgau, 1993, p. 59; Tsolka, The General Part of European Supranational Criminal Law in the Broader Sense, 1995, p. 32. [iv] Gröblinghoff, Die Verpflichtung des deutschen Strafgesetzgebers zum Schutz der finanziellen Interessen der Europäischen Gemeinschaften, 1996, pp. 135 et seq.; Johannes, EuR 1968, 63 (108); Moll, Europäisches Strafrecht durch nationale Blankettstrafgesetzgebung?, 1998, p. 258; Oehler, Questions on the criminal law of the European Community, in Vogler, Theo/ Herrmann, Joachim (eds.), Festschrift for Jescheck, Hans Heinrich, 2nd half, Berlin 1985, p. 1399 (1408); id., Der Europäische Binnenmarkt und sein wirtschaftsstrafrechtlicher Schutz, in Arzt, Gunther et al. (eds), Festschrift für Baumann, Jürgen, Bielefeld 1992, p. 561 (566); Perron, in: Dörr/Dreher (eds.), Europa als Rechtsgemeinschaft, 1997, p. 135 (152); Sieber, ZStW Band 103 (1991), 957 (965, 972); Tiedemann, NJW 1993, 23 (26). [v] Sieber, ZStW Band 103 (1991), 957 (965). [vi] van Kalmthout/van der Landen, NK 1991, 15 (16). The question of a democratic deficit at the community level does not arise here. Magiera, in: Randelzhofer u.a. (Hrsg.), Gedächtnisschrift für Eberhard Grabitz, 1995, S. 409 (429); Weigend, ZStW Band 105 (1993), 774 (799). [vii] See Fromm, Der strafrechtliche Schutz der Finanzinteressen der EG, 2004, pp. 227 et seq. [viii] Heitzer, Punitive Sanktionen im Europäischen Gemeinschaftsrecht, 1997, p. 150. [ix] "4. Council Directive of 25 July 1978on the annual accounts of certain types of companies (OJ 1978 L 222, p. 11 et seq.), the "Directive on the coordination of regulations on insider dealing of 13 November 1989" (OJ 1989, L 334, p. 30), as well as the "Council Directive on the prevention of the use of the financial system for the purpose of money laundering of June 10, 1991" (OJ 1991, L 166, p. 77). [x] Cf. Article 14 of Council Directive 91/308/EEC of June 10, 1991 on prevention of the use of the financial system for the purpose of money laundering (OJ 1991 L 166, p. 77) and Articles 1 to 3 of Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence (OJ EC No. L 328, p. 17). [xi] Hefendehl, ZIS 2006, 161 (164). [xii] H. Satzger, The Future of European Criminal Law Between Harmonization, Mutual Recognition and Alternative Solutions, Journal for European Criminal Law, Heft 1, 2006, pp. 27 et seq. [xiii] Hefendehl, ZIS 2006, 161 (166). [xiv] Dannecker, in Wabnitz/Janovsky (Ed.), Handbuch des Wirtschafts- und Steuerstrafrechts, 2000, Chapter 8, para. 106. [xv] Bruns, Der strafrechtliche Schutz der europäischen Marktordnungen für die Landwirtschaft, 1980, p. 23; Dannecker, JZ 1996, 869 (875); id. (fn. 14), chap. 8 para. 110; id., in Leitner (ed.), Aktuelles zum Finanzstrafrecht: Schutz der Finanzinteressen der EU im allgemeinen Strafrecht und im Finanzstrafrecht, 1999, p. 9 (17); Delmas-Marty, ELR 1998, 87 (88); id., Union Européenne et Droit Pénal, 1997, p. 607; Fischler, ÖJZ 1997, 521; Johannes, Neue Tendenzen im Strafrecht der EuropäEuropean Communities, RIDP 1971, 82 (83); Lenaerts, EuR 1997, 17 (20, Fn. 14); Lührs, wistra 1999, 89 (90); Magiera, in: Grabitz/Hilf, The Law of the European Union, 2000, 14th supplementary delivery, as of October 1999, Art. 209a Rn. 5, id., in Wendt (ed.); The protection of the financial interests of the European Union, Festschrift for Friauf, Karl Heinrich; State, Economy, Taxes; 1996, p. 13 (19); Nuutila, in: Huber (ed.), The Corpus Juris as the basis for a European criminal law. Internationales Kolloquium in Trier 1999, 2000, p. 177; Otto, Jura 2000, 98 (100); id., in: Huber (Fn. 15), p. 141 (143); Pache, Der Schutz der finanziellen Interessen der Europäischen Gemeinschaften, 1994, p. 65; Perron (fn. 4), p. 135 (144); Pühs, Der Vollzug von Gemeinschaftsrecht, 1997, p. 269 fn. 357; Court of Auditors of the European Communities, in F.A.Z. v. 17.2.1995, p. 15; Reisner, Die Strafbarkeit von Schein- und Umgehungshandlungen in der Europäischen Gemeinschaft, 1995, p. 7; Rump, in Leitner (fn. 15), p. 75 (77); Sieber, RPS 1996, 357 (358); Spinellis, KritV 1999, 141; Tiedemann, in Gamm/Raisch/Tiedemann (eds), Festschrift für Gerd Pfeiffer, Criminal law, corporate law, law relating to the legal profession, 1988, p. 101 (104); Vervaele, Fraud against the Community, 1992, p. VII; id., RSCDPC 1990, 29 (30); Waldhoff, in Calliess/ Ruffert, Kommentar des Vertrages über die Europäische Union und des Vertrages zur Gründung der Europäischen Gemeinschaft, 1999, Art. 280 Rn. 1; Wolffgang, in Ehlers, Dirk u.a. (Hrsg.), Rechtsfragen der Europäischen Marktordnungen, Köln 1998, S. 209 (212). Wägenbaur, EuZW 1996, 450 (451) estimates the ratio of the established to the true extent of the damage at one to ten. [xvi] Fromm (fn. 7), p. 21 et seq. [xvii] ECJ ECR 2006, 182 para. 27. [xviii] Griese, EuR 1998, p. 462 (476); Schröter, European Directives and German Criminal Law, 2002, p. 146. Despite the new ECJ decision of September 13, 2005, Dannecker, ZIS 2006, 309 (313) also adheres to this view. [xix] EuGH Slg. 1981, 2595 = NJW 1982, 504 Rn. 27 – "Casati", and Slg. 1998, I-3711 = EuZW 1998, 569 Rn. 19 m. Abele = NStZ 1999, 141 m. Anm. Gless – "Lemmens" [xx] On this, Fromm (fn. 7), pp. 68 et seq. [xxi] Dannecker, Jura 1998, 79 (80); id. (fn. 14), chap. 8 para. 41; Heitzer (fn. 8), p. 144; Kathrein, ÖJZ 1994, 785 (793); Kuhl, in: Henke (ed.), Hemmnisse und Sanktionen in der Europäischen Union, 1996, p. 149 (157); Zott, Der rechtliche Rahmen der innen- und justizpolitischen Zusammenarbeit in der Europäischen Union, 1999, p. 72. [xxii] Brübach, Die Zusammenarbeit der Mitgliedstaaten der EuropäUnion in the Area of Justice and Home Affairs, 1997, p. 128; Hailbronner, Handkommentar zum Vertrag über die Europäische Union (EUV/EGV), 7th delivery, Nov. 1998, Cologne et al. 1998, Art. K, para. 15. [xxiii] Cremer, in Calliess/Ruffert (fn. 15), Art. 47 EU para. 1; Pache, in Grabitz/Hilf (fn. 15), Art. M EUV para. 23. [xxiv] Denkschrift der Bundesregierung zum Vertrag von Amsterdam, in BT-Drs. 13/9339, p. 159; BR-Drs. 784/97, p. 159. In response to a major interpellation by the CDU/CSU parliamentary group (Drs. 14/ 1774), the new government confirmed this interpretation of the EC/EU Treaty (Drs. 14/4991). However, harmonization of legal provisions is now considered possible. For more on the major inquiry and the government's answers, see Krekeler, StraFo 2002, 50 f. [xxv] Gosalbo Bono, RTDE 1997, 769 (797); Kienle, in Bergmann/Lenz, Der Amsterdamer Vertrag, Cologne 1998, Chapter 8, para. 20; Soulier, RSCDPC 1998, 237 (251). [xxvi] Albrecht/Braum, ELR 1999, 293 (298); Chavaki, ZEuS 1999, 431 (465); Eisele, Jura 2000, 424 (429); id., Jura 2000, 896 (898); Fijnaut, TvS 1998, 988 (1024); Gärditz, wistra 1999, 293; Geiger, EC/EU Treaty, Commentary, 3rd ed. 2000, Art. 280 Rn. 2, 3; Gleß, DRiZ 2000, 365 ("... dass überall dem Gesetz ein Genüge geschehe"); Griese, EuR 1998, 462 (476); Haguenau-Moizard, RMC 1998, 240 (251); Kaiafa-Gbandi, KritV 1999, 162 (167); id., in: Huber (fn. 15), p. 91 (99); Kühl, The contribution of criminal law science to the Europeanization of criminal law, in G. Köbler et al. (eds.), Festschrift für Alfred Söllner, Europas universale rechtsordnungspolitische Aufgabe im Recht des dritten Jahrtausends, 2000; p. 613 (616); Labayle, RTDE 1997, 813 (858); Müller-Gugenberger, in id./Bieneck (eds.), Handbuch des Wirtschaftsstraf- und Ordnungswidrigkeitenrechts, 3rd ed., 2000, § 5 Rn. 63; Musil, NStZ 2000, 68; Nuutila (fn. 15), p. 177 (182); Pieth, in ders. et al. (ed.), Korruption im internationalen Geschäftsverkehr, 1999, p. 343; Satzger, StV 1999, 132; Satzger, ZRP 2001, 549 (552); Satzger (fn. 3), DELETION; Siano, Betrugsbekämpfung zum Schutz der finanziellen Interessen der EU unter besonderer Berücksichtigung der UCLAF, 1999, p. 51; Soulier, RSCDPC 1998, 237 (251); Störbeck, DRiZ 2000, 481 (487); Waldhoff (footnote 15) Art. 280 Rn. 3; Wattenberg, StV 2000, 95 (193); Zeder, in Leitner (Fn. 15), S. 57 (63); de Zwaan, in Vervaele (Hrsg.), Transnational Enforcement of the Financial Interests of the European Union, 1999, S. 13 (25). [xxvii] ECJ ECR 2006, 185 para. 52. [xxviii] Bourlanges (PPE), on the subject: Criminal proceedings for the protection of the Union's financial interests, in European Parliament proceedings in March/April 1998, No. 4-517, pp. 59 (63); Draft opinion of the Committee on Budgetary Control for the Committee on Constitutional Affairs of 13 January 2000, D.; Schröder (fn. 18), p. 146. [xxix] Dannecker, in Leitner (fn. 15), p. 9 (40); Tiedemann, AGON 1997, no. 17, p. 12; id., GA 1998, 107 (108); Ulrich, Kontrollen der EG-Kommission bei Wirtschaftsbeteiligten zum Schutz der finanziellen Interessen der Gemeinschaft, 1999, p. 181. [xxx] Berg/Karpenstein, EWS 1998, 77 (81); Feit, Das System zum Schutz der finanziellen Interessen der Gemeinschaft im Ausfuhrerstattungsrecht, Münster, Diss. 2001; p. 113; Tiedemann, AGON 1999, No. 23, p. 7; Ulrich, EWS 2000, p. 137 (147); id., ZfZ 1998, 176 (179); Wolffgang/ Ulrich, EuR 1998, 616 (644); Wolffgang, in Ehlers u.a. (eds.), see footnote 15, p. 209 (241). [xxxi] Satzger, Die Europäisierung des Strafrechts, Chapter 2. B. IV. 3) b) (3); id., ZRP 2001, p. 549 (553). [xxxii] Satzger (fn. 3), p. XXX chap. 2. B. IV. 3) b) (3). [xxxiii] Satzger (fn. 3), p. XXX chap. 2. B. IV. 3) b) (3). [xxxiv] Gosalbo Bono, RTDE 1997, 769 (797); Kienle (fn. 25), chap. 8 para. 20; Waldhoff (fn. 15), Art. 280 para. 19; White, Protection Of The Financial Interests Of The E.C., The Fight Against Fraud And Corruption, 1998, pp. 190, 191, 196; id., AGON 1997, No. 16, p. 3 (5). [xxxv] Denkschrift der Bundesregierung zum Vertrag von Amsterdam, in BT-Drs. 13/9339, p. 159; BR-Drs. 784/97, p. 159; Hetzer, Kriminalistik 2000, 782 (787). A.A. Hecker, in: Lenz (ed.), EC Treaty Commentary, 1999, Art. 280 para. 2; Petite, R.M.U.E. 1997, 17 (35); Satzger (fn. 3), p. XXX chap. 5. C. II. 2) b) (3). Similarly, the European Court of Auditors, "Special Report 8/98 on the Commission departments responsible for combating fraud, in particular the Unit for the Coordination of Fraud Prevention (UCLAF), together with the Commission's replies," OJ 1998, C 230, p. 1 (5, no. 2.10.), which, after the introduction of Article 280 EC, sees the possibility for "a community action to coordinate the national criminal law systems". [xxxvi] Thus Satzger, ZRP 2001, 549 (553 f.). [xxxvii] Regulation No. 28, in OJ 1962, p. 1277. [xxxviii] Regulation No. 188/64 (EEC), in OJ 1964, p. 3634. [xxxix] These are identical: "The legal provisions of the Member States concerning national surveys shall apply to the prosecution of infringements of paragraph 1, in particular the infringement of business and trade secrets." [xl] Section 13 of the old version of the German Federal Statistics Act (see BGBl. 1953, p. 1314) read: "Any person who, without authorization, discloses or uses a business or industrial secret which has been entrusted to him in the course of his activities under this Act or which has otherwise become known to him, or any person who, in breach of the provisions of this Act,
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