Introduction of a European Community Criminal Code to protect the EC budget?
The EU is damaged annually by intentional subsidy frauds in the amount of several million euros. This accounts for 2.5% of the EC budget. In previous years, fraud was measured at much higher levels.
Experts largely agree that the true extent of the damage is significantly higher. Estimates based on assumptions, which are naturally based on the dark field, assume that the extent of the damage is at least 10-20% of the community budget. In absolute figures, this would correspond to fraud and irregularities eroding the EC coffers by around 6-12 billion euros annually. Despite the considerable differences in the estimates of the actual extent, the figures are in any case high enough to support the conclusion that fraud is booming in Europe. It is becoming necessary to fight fraud seriously and consistently and to address the issue more thoroughly. The reason for the astronomical scale of the abuse is seen in the enormous attraction of the Community budget for fraudsters. The EC budget has always been a fertile breeding ground for fraud and irregularities: an ever-increasing number of economic operators feel that they have a license to commit fraud. This is due, among other things, to the detailed regulatory technique of the Community legislator, which virtually invites manipulation. Experience shows that the more complicated the regulatory technique, the greater the opportunity for fraud. In view of lax controls, the risk of detection appears to be relatively low, so the high profits outweigh the minor risks. The inhibition threshold for committing offenses at the expense of the community budget appears to be relatively low because the perpetrators are not confronted with a visible victim and the overly differentiated regulatory technology often appears implausible. In addition, competitive pressure in more than a few industries has a so-called "pull effect" on the commission of fraud.
Such a high level of damage is associated with an enormous loss of credibility. For this reason, the EU has started to take effective measures to combat this. To get the situation under control and to put an end to the high criminal appeal of this area, it is also necessary to resort to criminal law measures for deterrence reasons. The Member States have not been able to effectively protect the EC budget through their penal codes. The national provisions are highly divergent. The opening of border crossings between the Member States represents a negative flip side of the freedom of movement in Europe. To put it bluntly, borders unfortunately do not present an obstacle to the commission of crimes, but rather to the prosecution of criminals, since the latter essentially remains organized on a national level.
The EC is therefore even considering the introduction of its own criminal law provisions. Criminal law was previously regarded as a core area of national sovereignty, which is inviolable by the EC. Criminal law has so far only been sluggish in participating in the process of European integration. Since the Treaty of Amsterdam in 1999, the EC Treaty has already allowed the Community institutions to take the necessary measures to prevent and combat fraud. In a widely noted decision of September 13, 2005 – C-176/03 (Commission/Council) – the European Court of Justice ruled that the European Community is authorized to harmonize the criminal law provisions of the Member States for combating environmental crime to the extent necessary. The Court has ignored the Member States' reservations regarding the EC's criminal law powers. Some EC institutions have argued that it would also be possible to enact criminal law provisions if necessary.
However, there will be no criminal law of the European Community in the foreseeable future. Although the EC may harmonize the criminal codes of the Member States if necessary, it may not impose its own criminal penalties. Democratic considerations speak against the EC having criminal law competence: Provisions of criminal law would not be sufficiently democratically legitimized in the European Community: The Council, which is at best indirectly democratically legitimized, continues to hold a dominant position in the EC when it comes to lawmaking. Furthermore, the role of the European Parliament in the legislative process cannot yet be compared with the functions that parliaments usually have. Accordingly, a criminal law competence of the EC would be directly linked to the fact that a body with, at best, extremely weak democratic legitimacy, the Council, would, as the institution primarily responsible, take over the legislative decision-making on these matters from a directly legitimized representative body, the national parliaments. . Even a partial transfer of powers would thus directly result in a shift of legislative powers to an executive body for matters that, according to the fundamental convictions of parliamentary democracies, fall within the core area of parliamentary rights.
A body that does not meet the basic requirements of the constitutional principles of the member states with regard to its organization cannot in good conscience be granted the authority to issue legal acts that could seriously restrict the freedom of the individual. Measures of a criminal-law nature cannot be taken due to the ongoing "double" democratic deficit.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.