CSJESA - Centre for Juridical, Economic and Socio-Administrative Studies

Fundamentals of European Union Penal Law

Research Team
Norel Neagu – Project Director
Tudor Avrigeanu – Member
Lamya-Diana Al-Kawadri – Member

Project summary

1. Project objectives
2. Project presentation
3. End Notes
4. Novelty and originality
5. The estimated impact of the project
6. Research methodology

Research results
1. Dissemination

Project presentation

Until recently, criminal law was a taboo in politics of European Union law. With the entry into force of the Treaty on European Union (Maastricht 1992), in addition to existing Community competences, two new areas were added: foreign and security policy and justice and home affairs, later turned into police and judicial cooperation in criminal matters (Title VI TEU). Originally designed as an intergovernmental cooperation not prejudicing national sovereignty, police and judicial cooperation in criminal matters gradually came to fulfil another function: that of harmonisation (officially “approximation”) of the laws of the Member States in both substantial criminal law and criminal procedure [1].
The changing of constituent treaties (following ratification and entry into force of the Treaty of Lisbon on December 1, 2009) is an important step in terms of competence of the Union in areas of criminal law. According to article 4 paragraph 2 lit.j) of the Treaty establishing the European Union [2], the Union shall share competence with the Member States in the area of freedom, security and justice.  According to Article 2 TFEU, where the Treaties confer on the Union a shared competence with the Member States in an area, the Union and Member States may legislate and adopt legally binding in this area. Member States shall exercise their competence to the extent that the Union has not exercised its competence. They shall again exercise their competence to the extent that the Union decided to stop and engage her.
In art.83 TFEU it has been established that for specific areas criminal law powers be conferred upon the Union’s institutions. According to art.83 paragraph 1, the European Parliament and the Council may issue directives under the ordinary legislative procedure, establish minimum rules concerning the definition of offences and penalties in areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or of a special need to combat them from a common basis. These areas of crime are the following: terrorism, human trafficking and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.
Under art.83 paragraph 2, where the approximation of laws, regulations and administrative provisions of Member States in criminal matters is required in order to ensure effective implementation of a Union policy in an area which has been subject to harmonization measures, directives may establish minimum rules concerning the definition of offences and penalties in this area.
We can see two main lines of action of the Community legislature in criminal law.  A first direction concerns judicial cooperation in criminal matters, which can be achieved, according to art.83 paragraph 1, by harmonising definitions of crimes of serious transnational nature [3].
A second direction (art.83 paragraph 2) is to use criminal law as an instrument to protect the effectiveness of EU policies in other fields (agriculture, energy, competition, etc …). The criteria which establish the use of criminal law measures consist of the indispensability of harmonisation of national laws and ensure effective implementation of Union policies.
But it is essential to harmonise criminal laws? And how to determine the effective implementation of EU policies through the use of the tools of criminal law prior to their adoption? How to limit abuse of criminal use of tools to secure the Union’s policies when their effective implementation can be achieved through the use of alternative instruments?
To answer these questions that have already sparked numerous polemics [4], in The Stockholm Programme [5] which sets EU priorities for the next 5 years (2010-2014) to ensure completion of the area of freedom, security and justice, was established as a steering Priority Action identification of criteria for  using criminal in the Community legislative initiatives. This project spans for a period of five years and it is also the theme of our scientific approach.
Addressing the criteria of criminalisation in the Community legislative initiatives is sporadically and shortly addressed in European legal literature [6]. There isn’t so far any study dedicated to this subject. There is an extensive legal literature regarding the fundaments of national criminal law [7], which can be taken and developed at European level. Mainly, in addition to the need for criminal law [8], the discussion focuses on the type of criminal policy used in adopting legal rules of criminal [9], instrumentalist and ethical concepts of criminal law [10], the concept of crime [11], characteristics of the criminal law [12].

End Notes
[1] See in this regard, by way of example, 2000/383/JHA Council Framework Decision of 29 May 2000 on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro (OJ L 140, 14.6 .2000, p. 1-3); 2001/220/JHA: Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings; 2001/500/JHA: Council Framework Decision of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime (OJ L 182, 5.7.2001, p. 1-2); 2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ L 190, 18.7.2002, p. 1-20); 2003/577/JHA Council Framework Decision of 22 July 2003 on the execution in the European Union of orders freezing property or evidence (OJ L 196, 2.8.2003, p. 45-55); 2005/212/JHA Council Framework Decision of 24 February 2005 on confiscation of crime-Related proceeds, Instrumentalities and Property (OJ L 68, 15.3.2005, p. 49 — 51) 2005/667/JHA Council Framework Decision of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution (OJ L 255, 30.9.2005, p. 164-167); Council 2006/783/JHA Framework Decision of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders (OJ L 328, 24.11.2006, p. 59-78); 2008/675/JHA Council Framework Decision of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings (OJ L 220, 15.8.2008, p. 32-34).
[2] Treaty on European Union, Official Journal of the European Union C 115 of 09/05/2008, p. 47-199.
[3] Bruno Nascimbeni, the European judicial cooperation in criminal matters: what protection for individuals under the Lisbon Treaty, in ERA-Forum: scripta Iuris europaea 2009, v. 10, n.3, October, p. [397] -407.
[4] Patrick Bishop, Criminal Law as a preventative tool of environmental regulation: compliance versus deterrence, in: The Northern Ireland Legal Quarterly 2009, v. 60, n. 3, Autumn, p. [279] -304; Gouritin Armelle, Paul De Hert, La directive du 19 novembre 2008 relative à la protection de l’environnement par le droit pénal: première réalisation du “Nouveau système de droit pénal européen, in: Journal de droit européen 2009, v. 17, n. 160 , juin, p. 164-171, Ludwig Krämer, La protection de l’environnement par le droit pénal communautaire (Directive 2008/99), in: Revue du droit de l’Union européenne 2009, n. 1, May, p. 13-29; Diane Ryland, Protection of the Environment through Criminal Law: the question of competence unabated?, In: European Energy and Environmental Law Review 2009, v. 18, n. 2, April, p. 91-111.
[5] Multiannual program for an area of Freedom, Security and Justice serving the citizen (The Stockholm Program), The Council of the European Union, doc.no. 17024/09
[6] Valsamis Mitsilegas, EU Criminal Law, Oxford, Hart, 2009, Andre Klip, European Criminal Law: an integrative approach, Intersentia, 2009, Jean Pradel, Droit pénal compare, Paris: Dalloz 2008.
[7] George Fletcher, Basic Concepts of Criminal Law, Oxford University Press 1998, Rethinking Criminal Law, Oxford: Oxford University Press 2000, The Grammar of Criminal Law, Oxford: Oxford University Press 2007; Hans Welzel, El nuevo sistema del derecho penal , trans. J. Cerezo Mir, Montevideo / Buenos Aires: Editorial B F 2004, Florin Streteanu, Treaty of criminal law, general part, I, Bucharest 2008, Roger Merle / André Vitu, Traité de droit criminel,  7ème édition, Paris: LGDJ 1997, Ferrando Mantovani, Diritto criminal, some general, Padua: give in 1992, Günther Jakobs, Norm, Person, Gesellschaft, Berlin: Duncker & Humblot 2008, George Anthoniu (coord.), criminal law reform, Bucharest: EAR 2004;
[8] Antony Duff, Theories of Criminal Law, Stanford Encyclopedia of Phiposophy, 2008, Herman Bianchi, Justice as Sanctuary: Toward a New System of Crime Control Bloomington: Indiana University Press, 1994; Louka Hulsman, Critical Criminology and the Concept of Crime, Contemporary Crises 10: 63-80, 1986.
[9] Mireille Delmas-Marty, Les grandes systèmes de politique criminelle, PUF 1992.
[10] Claus Roxin, Strafrecht Allgemeiner Teil (4th ed.) Vol.1, Munich: CH Beck, 2006, Anthony Duff, Answering for Crime: Responsibility and Liability in the Criminal Law, Oxford: Hart Publishing, 2007, Nils Jareborg, Criminalization as Last Resort (last resort), Ohio State Journal of Criminal Law 2:521, 2005 Douglas Husak, The Criminal Law as a Last Resort Oxford Journal of Legal Studies 24:207, 2004, Michael Moore, Placing Blame: A Theory of Criminal Law, Oxford: Oxford University Press, 1997, Herbert LA Hart, Punishment and Responsibility, Oxford: Oxford University Press, 1968
[11] Andrew Ashworth, Principles of Criminal Law (5th ed.), Oxford: Oxford University Press, 2006.
[12] Douglas Husak, Overcriminalisation, Oxford: Oxford University Press, 2007 Arthur Ripstein, Equality, Responsibility and the Law, Cambridge: Cambridge University Press, 1999.

Project objectives

This project does not support the idea of existence of a european criminal law (we are very far from it now). There are three reasons encouraging us to look closely at the fundamentals of criminal law in the European Union:
– adoption of legislative criminal instruments which is increasing in numbers in recent years;
– new powers to the Union as regards the adoption of legislative instruments in the field of criminal law (shared competencies);
– ambitious plan at European level in the next five years about ensuring a space of freedom, security and justice including the use of criminal law to achieve this objective.
We believe that this necessarily requires a study to establish the main foundations on which it could be built a possible (future) European criminal law. For a healthy penal policy at European level is needed first a regulation based on principles, not on the needs of the moment that creates the premise of not correlated criminal instruments at European, national and, in the implementation stage.
The project focuses mainly on the following objectives:
1. The need to use criminal law in the European Union.
The project tries to demonstrate the necessity of recourse to instruments of transnational criminal law, both in achieving cooperation (horizontal) and to ensure efficiency of Union policies (vertical).
2. Penal policy type used in criminal legal rules adopted in eu legislation; instrumentalist views versus moral concepts of criminal law.
It will be studied if there is one type of criminal policy used in adopting EU legislation (of liberal, egalitarian or totalitarian essence, each with its influences and deviations), and while looking at the vision of fundaments of criminal law (of instrumentalist, functional, or ethics, moral essence) in both directions for EU action in criminal law (cooperation – horizontally, and harmonization – vertically). I will try to argument the conclusion that in both directions, although apparently different objectives are followed and foundation is different (for example, in cooperation, all serious transnational crimes concern mala in se offences), it is a functional, instrumentalist approach.
3. Establishing general principles that guide the work of the European legislator – criminal law as last resort.
The case-law of the European Court of Justice, without providing explicitly that principle tends to establish rules according to which the use of criminal tools for ensuring effective EU policy should constitute an exception and to intervene only when other implementation tools do not give expected results. Along with the legality of criminal offences, sincere cooperation, subsidiarity and proportionality, are fundamental principles which should guide the Union’s legislative work in the field of criminal law.
4. The concept of crime in European Union law
It is not sufficient to establish that criminal law is necessary, that criminalising activity is coherent and that general principles are respected, but a definition of a crime and setting its key features at European level (even if they are different national), for a uniform application in the Member States is needed.
5. Establish criteria for determining the essential character of the instruments of criminal law in the EU legislative proposals.
Using criminal law may be necessary to ensure the efficiency of EU policies, but that does not mean it is also indispensable. Since it is one of the conditions for the use of tools of criminal law in EU legislation, it is necessary to set criteria for determining the essential nature of these instruments.
6. Ensure full effectiveness of EU policies and criteria for determining it – an extremely difficult task to accomplish
Any legislative proposal from the Commission to the Council and European Parliament is accompanied by an impact study, which should reflect both the expected impact of the proposal, and the necessity of adopting the legislative act. One of the conditions for adoption of legal instruments in the sphere of criminal law is their indispensability to ensure effective EU policies. European Court of Justice went further than the treaties in the interpretation of this requirement, demanding ensuring full effectiveness by adopting tools of criminal law nature (restricted interpretation). The study aims to determine the criteria for ensuring full effectiveness (before the adoption of legal instruments of a criminal nature), although this is probatio diabolica, introduced to limit the effects of new legislative procedure (qualified majority instead of unanimity), practically being necessary unanimous agreement for introducing a criminal law instrument.
7. Setting specific features of criminal law – differentiation of other means of ensuring efficiency of Union policies
Although so far it has been established when, how and what needs to resort to instruments of criminal law, it is still needed a differentiation of these instruments from those of other branches of law and showing how they influence or provide a more effective implementation of Union policies.

Novelty and originality

Such a project has not been achieved so far at European level and it is of utmost interest, in fact, the broad principles which justify the criminalization of certain acts as crimes is provided as one means of achieving policy objectives in Stockholm Program in the field of Freedom, security and justice in the period 2010-2014 in the European Union. Such a project comes to meet European policies in the field.
This project distinguishes itself by identifying the basic characteristics that criminal law is separated from other types of law, answering the question whether and why should we maintain such an institution, analyzing instrumentalist answers to this question, showing that the criminal law is an effective technique for achieving certain goals, and the responses of non-instrumentalist, showing criminal law as an intrinsically appropriate response to certain types of wrongful conduct, by considering how the criminal law should apply to the people, by properly considering areas of application of criminal law and establishing what types of conduct should be criminalised, by analysing several principles of criminal law, and by analysing the definition of criminal offense in the future European Criminal law.

The estimated impact of the project

I estimate that this project should have a significant impact at different levels:
Firstly, at European level by proposing a program clearly laying down the indictment requirements. The intention is to establish principles of criminalization and the development of criteria to limit the use of penal institutions on the basis of political agreement, wishing to respect and transfer at European level some principles of the sovereign national state, like the rule of law, the legitimacy of criminal offences, respecting the fundamental right of the person, and also restrict this right to liberty through instruments of criminal law only as an exception, where a higher interest so requires.
Secondly, at the case-law level, by disseminating research results and awareness of crucial influence that the legal instruments belonging to the criminal law of the European Union have on a national criminal law and thus how it is manifested in the criminal trial and what is the procedure followed by the court.
Thirdly, on the training of magistrates in the INM, who need to know the importance of fundaments of European criminal law, with particular influence on national criminal law.
Forthly, on the specialised literature, which is likely to take a position on such research findings and which will contribute to the overall evolution of our system of law.
Finally, I estimate that this project will have a positive impact even on the international visibility of the project director and research team, by disseminating research results (inter alia through the development of three ISI articles and a monograph) and participation at international conferences throughout the project.

Research methodology

The project focuses on fundamental research conducted individually and in teams.
It is a scientific research project in law, which requires analysis of legislation, and conditions that lead to its adoption, and the effects the implementation of adopted normative acts produces. The research is based on legislation adopted or proposed to be adopted, the views expressed in the specialised legal field, and practical effects resulting from the national or European case law.
Aimed at identifying fundamentals of European criminal law, and the most effective criminal policy which could be used to introduce criminal provisions in EU legislation, this is a theoretical approach that does not require laboratory equipment or conducting experiments.
Achieving goals will be made through the scientific research of the team.
The research methodology project has the following steps:
1. development of premises and assumptions of the phenomenology of the fundamentals of research a possible European criminal law;
2. identifying and obtaining relevant national and European bibliography (consisting of legislative acts, literature, published court decisions, magazines, unpublished court ruling);
3. elaborating a comprehensive bibliographic apparatus, consisting of works for each institution of criminal legal doctrine concerned (treaties, lectures, monographs, articles, professional, national and Community reports)
4. comparative analysis of substantial, procedural and European institutional criminal regulations;
5. analysis documented case-law;
6. identifying legal issues arising from the regulation in a field where competence of the Union is limited by national sovereignty (criminal law);
7. development of the proposed monograph;
8. disseminating research results and their discussion during the workshops and scientific communications session with the participation of specialists from Romania and abroad .
Research will be achieved through a combination of individual and collective efforts of the team.
Monthly team meetings will be organized in order to evaluate progress in research of each team member and any difficulties encountered. The team has a balance, including the project director, a young researcher and a researcher in training. It is noteworthy that in the team enters a researcher who has studied issues of criminal law at European level, performing an internship at the European institutions (European Commission), being familiar with the legislative process at EU level and knowing both advantages and disadvantages of this process and the impact on national legislation. Also in the team there is a researcher into the foundations of national criminal law, who has studied criminal law in Germany, at the famous school of criminal law in Bonn.
Research documentation will be gathered by accessing different sources through field visits, through visits to European bodies with expertise in the field, including international conferences on topics related to the project, and by accessing the most recent international publications and case law in the field. Studies and reports will be presented and discussed at seminars and round tables organized by the team.


A. ISI Articles:
1. The Ne Bis in Idem Principle in the Interpretation of European Courts: Towards Uniform Interpretation, Leiden Journal of International Law 4/2012, http://journals.cambridge.org/abstract_S0922156512000520

B.  Articles indexed in International Databases:
1. CONSENT AND OBVIOUS VULNERABILITY, Revista Curentul Juridic nr.3/2012, http://revcurentjur.ro/arhiva/attachments_201203/recjurid123_3A.pdf
6. Effectiveness of European Union Policies, Lex et Scientia nr.2/2013, http://lexetscientia.univnt.ro/ro/articol/FULL-EFFECTIVNESS-OF-EUROPEAN-UNION–S-POLICIES~498.html
7. The Distinctive Features of European Criminal Law,  Lex et Scientia nr.1/2014, http://lexetscientia.univnt.ro/ro/articol/THE-DISTINCTIVE-FEATURES-OF-EUROPEAN-CRIMINAL-LAW~511.html

C. Books:

Foundations of European Criminal Law
Jurisprudenta CJUE si influenta acesteia asupra dreptului penal national

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D. Conference ”Foundations of European Criminal Law”, 17 May 2013
Nicolae Titulescu University organises at 17 May 2013, starting at 11.30, in the Senat Hall, the conference “Foundations of European Criminal Law”.
Conference Programme:
1.      Mirela Gorunescu – ”Ne Bis in Idem” Principle in the Field of Criminal Law and the Case Law of the European Court of Justice
2.      Norel Neagu – Equality and Non-Discrimination in the Field of Criminal Law and the Case Law of the European Court of Justice
3.      Mircea Damaschin – Right of Defence, the European Arrest Warrant and the Case Law of the European Court of Justice
4.      Mihai Hotca – Obligation of information in the Field of Money Laudering and the Case Law of the European Court of Justice
5.      Norel Neagu – Speciality Principle in the Field of Criminal Law and the Case Law of the European Court of Justice
6.      Lamya-Diana Al-Kawadri – Effectiveness Principle in the Field of Criminal Law and the Case Law of the European Court of Justice
The conference is targeted towards both researchers and practitioners. Number of places: 30. No participation fee is involved. For registering please contact us at the email address norel.neagu@univnt.ro.
Partner: Asociatia romana de drept si afaceri europene – ARDAE
Media partner: JURIDICE.ro

Conference links:
– part one: http://www.youtube.com/watch?v=10Vb2f0qxRo
– part two: http://www.youtube.com/watch?v=v0q5rLAK0J4

E. Preparatory Colloquium of the Fourth Section (Helsinki, Finland) of the XIX International Congress of Penal Law
The Finnish National Group of the AIDP together with the HEUNI (European Institute for Crime Prevention and Control, affiliated with the United Nations) and the Faculty of Law of the University of Helsinki have organized between 10-12 June 2013 in Helsinki, Finland, the Preparatory Colloquium of the Fourth Section of the XIX International Congress of Penal Law.
A member of the Nicolae Titulescu University from Bucharest, conf.univ.dr. Norel Neagu has actively participated in the debates and the adoption of the proposed resolution to be presented at the International Congress of Penal Law (Rio de Janeiro, 2014).


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F. The Centro di diritto penale europeo of the University of Catania organized the conference « The Challenge of setting up a european public prosecutor’s office: definition of common rules and their impact on national legal systems ».

During the  days of the event, supported by OLAF (European Anti-Fraud Office), took place at Aula Orazio Condorelli, Dipartimento Seminario Giuridico, Via Gallo 24 in Catania (Italy).
Because of Article 86 TFEU, providing for the establishment of a European Public Prosecutor’s Office, responsible “for investigating, prosecuting and bringing to judgment (…) the perpetrators of, and accomplices in, offences against the Union’s financial interests”, interesting perspectives are opened in the dynamic process of European rules regarding criminal matters.

The  discussions within this conference  involved the relevant institutional actors at national level – regarding the adoption of a proposal for a regulation establishing such a European Prosecutor’s Office
All legal practioners were called to deal with the many issues arising from the setting up of a European dimension of prosecution concerning substantive criminal law, as well as procedural law.
The essential aim of the event was the defini!on of a legal and operational framework adequate to ensure the fundamental balance between effectiveness of repression and individuals’ guarantees.

At this event expressed their point of view many European personalities: SILVIA ALLEGREZZA, Researcher in Criminal Procedure, University of Bologna, LORENA BACHMAIER WINTER, Professor in Criminal Procedure, Complutense University of Madrid,
ANTONIO BALSAMO, Judge, Court of Caltanissetta, ALESSANDRO BERNARDI, Professor in Criminal Law, University of Ferrara,
ANTOINE CAHEN, Head of Unit, Committee on Civil Liberties, Justice and Home Affairs (LIBE) – European Parliament, MICHELE CAIANIELLO, Professor in Criminal Procedure, University of Bologna, ALBERTO CANDI, Public Prosecutor, Appeal Court of Bologna, GIANFRANCO CIANI, Public Prosecutor, Court of Cassation, PÉTER CSONKA, Advisor, Criminal Justice, DG Justice, European Commission, GIOVANNI GRASSO, Professor in Criminal Law, University of Catania, and President of the “Centro di Diritto Penale Europeo”, etc.

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