FECL 10 (November 1992):

THE MAASTRICHT TREATY AND CRIMINAL LAW

In his inaugural lecture as a professor of law at the university of Copenhagen in May, Vagn Greve commented on the possible consequences of the Maastricht Treaty on criminal law. Greve makes out a fundamental contradiction in the treaty itself between the striving, on the one hand, for more centralization as expressed for instance by the decision to set up Europol and the insistent reference to the so called principle of subsidiarity on the other.

To begin with, it is difficult to make out any interest of the EC in the issue of criminal law at all. EC ambitions have focused on coal and steel, the creation of a common policy on agriculture and the abolition of commercial barriers as pointed out in the 313 points for the creation of the single market agreed upon in 1985.

Nonetheless, the EC has already some jurisdiction that could be defined as criminal law in the domain of anti-trust legislation: the EC may inflict penalties in cases of severe competition limiting acts. In a famous case the Tetra Pak company was condemned to pay 6oo million Danish crowns.

It is only recently that considerable harmonization in domains related to criminal law are discussed in various fora such as the European Parliament, the Council of Ministers, the European Commission and in the context of the setting up of Europol.

International drug trafficking, terrorism and "organized crime" have been defined as areas of high priority. The areas of cooperation within the framework of Europol shall however be expanded as early as 1994.

Greve remarks that a super-national police force with a certain degree of executive power makes no sense without a previous common development in the field of sanctions, i.e. jurisdiction.

Indeed, the "common aim" of the Member States to develop cooperation in the field of criminal jurisdiction and other domains of internal security is stated in the Maastricht Treaty.

In other parts of the Maastricht Treaty however, the principle of subsidiarity is defined as one of the corner stones of the Union. In a democratic understanding, subsidiarity means that competences should be delegated "upwards" if the decision-making bodies of the lower level feel that such is in their common interest. But until now, practice tends to show that the EC's interpretation of subsidiarity is another one: it is the central EC-bodies which decide whether competences shall be delegated "downwards" or not.

Article K.1 in chapter VI on cooperation in the spheres of justice and home affairs names the following domains related to criminal law as areas of "common interest": The combat against drug addiction, the combat against fraud on an international scale, judicial cooperation in criminal matters, customs cooperation and "police cooperation for the purposes of preventing and combatting terrorism, illegal drug trafficking and other serious forms of international crime, including if necessary certain forms of customs cooperation in connection with the organization of a Union-wide system for exchanging information within a European Police Office (Europol)." Measures of police cooperation are further detailed in the Declaration on police cooperation.

According to Greve, all this must lead to a massive shift of competences in a number of legal spheres to the Union. There will be no space for national diversities - whether with regard to criminalization or the organization of the system of sanctions. Greve draws the conclusion that "it is realistic to assume that Danish criminal law will cease to exist within the next ten years and will be replaced by a European criminal law - under the condition of course, that the referendum of the 2nd July results in the acceptance of the Maastricht Union."

This would have drastic effects on jurisdiction in Denmark. Greve points out that while in the core of criminal law (murder, burglary, robbery etc.) criminalization is fairly similar in all EC-countries, there are fundamental differences in less central spheres as for instance abortion, euthanasia, drugs and freedom of expression.

Differences are even more significant regarding the severity of sanctions (e.g. the length of imprisonment). According to Vagn Greve, Denmark would have to create 900 additional prison places if German law was applied in Danish courts and 1500 under the rule of UK jurisdiction.

The fact that there is such great variation in criminal law is due to the different history and cultural background of the EC-countries. As a matter of fact, jurisdiction is simply a codification of reigning social values in a particular society at a specific time. It is therefore not surprising that criminal law even differs between England and Scotland or between Denmark, the Faeroe Islands and Greenland.

Article K.1. shows an "obvious lack of understanding that central parts of each judicial system are and should be dependent on the culture of its environment, its conception of man and society", Greve says, and the provisions regarding harmonization in the field of criminal law are in obvious conflict with the respect of national identities as stipulated by article F and with article 3 B on subsidiarity. How this conflict will be solved will become a matter of purely political decision making. Jurists will not have much to say.

Vagn Greve concludes that it would be regrettable if such values as formulated in the jurisdiction of each country would be disconnected from their cultural background.

Behind such criticism one can clearly make out the concern of the Danish professor of law that European harmonization of criminal jurisdiction is likely to result in a more repressive criminal law and longer prison sentences in countries like Denmark, with a more liberal conception of criminal jurisdiction.

Eberhard Stüber

 

Source: Vagn Greve, aktuelle strafferetlige spörsmål, tilltraedesforelaesning de 12te maj 1992.