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JUDICIAL COOPERATION IN CRIMINAL MATTERS : EU CRIMINAL LAW: PRIOR EVALUATION FUNDAMENTAL.

A legislative proposal in the area of criminal law at European level

must be preceded by an evaluation of national legislations, stressed Lotte Knudsen, director for criminal justice at the European Commission's DG Justice. She was speaking on 8 December, at a European Parliament hearing on the Union's approach to criminal law. Knudsen briefed MEPs on the key elements of the Commission's first communication on effective implementation of Union policies through criminal law, published in September.

"Two years after the Lisbon Treaty, we are starting to see the first results," said Knudsen. She explained that "the approach is more consistent". The inclusion of criminal law in Chapter IV of the TFEU rather than in an intergovernmental (third) pillar unquestionably facilitates the introduction of criminal measures in different EU policies. Furthermore, apart from a few exceptions, this area now comes under the co-decision procedure.

But while there are major advances in terms of decision making, the sector remains "the most sensitive of European harmonisation," noted Antonio Caiola of the EP's Legal Service. This is not only because it remains at the heart of national sovereignty but also because of the diversity of member states' penal legislations.

Due to this sensitivity, application of the principles of subsidiarity, proportionality and necessity (ultima ratio) is all the more important when it comes to harmonising criminal legislations, which include procedural law and substantive law (infringements, sentences, rules of criminal liability). The objective is to ensure the added value and quality of the Union's penal law and its quality legislation.

The Commission therefore proposes in its communication to proceed in two phases: first to decide whether criminal law measures are absolutely necessary and then to come to a decision on measures. To do this, however, "every proposal must be based on reasoning built on the facts and statistics of the legislation of each member state," said Knudsen. She explained that the Commission is striving to develop its knowledge in this respect.

The Polish EU Presidency, represented by Tomasz Osolski, presented a similar analysis: "The added value of penal measures must be subject to a thorough prior evaluation". This is an "important element," particularly because of the multitude of different rules.

Ultima ratio

In its communication on effective implementation of Union policies through criminal law, the Commission states that the principles of proportionality and necessity mean that criminal law must remain a measure of last resort since investigations and criminal sanctions have important repercussions on citizens.

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Publication:European Report
Date:Dec 9, 2011
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