By Honor Mahony
The European Commission on Tuesday said it is considering how to set up an EU criminal policy, with clear definitions on what is an EU crime and the minimum punishment to be applied across all member states.
It wants to put an end to criminals seeking out member states with the most lenient punishments for pan-European crimes such as human trafficking, money laundering, counterfeit and corruption.
The EU executive is tip-toeing into this legal and political minefield by way of a thought paper or ‘communication’ penned by its justice commissioner Viviane Reding.
“Europeans expect the EU to help fight crime,” says the commissioner who is using the EU’s new rule book, the Lisbon Treaty, to harmonise sanctions for certain crimes, an issue that until now has been treated haphazardly and defined by European case law.
In her paper, Reding indicates that EU laws governing a whole range of areas could require criminal sanctions to make sure they are properly enforced. They include environmental protection, financial services regulation, data protection, fish conservation, road safety and protection of EU money.
Financial markets abuse – high in policy-makers minds since the onset of the global financial crisis three years ago – gets a special mention in the paper, with the commission keen to crack down on crimes such as insider trading.
Where member states’ sanction in these areas “do not yield the desired result”, the Union may set rules on how to ensure implementation possibly including “the requirement for criminal sanctions for breaches of EU law,” says the paper.
The commission’s hand in this area was first strengthened by a landmark ruling in 2005 which backed Brussels’ attempt to force member states to treat a series of environmentally-damaging activities as criminal offences.
The paper illustrates how the commission will seek to use its new powers, saying that criminal law will remain “a measure of last resort” and criminal sanctions will only be used for “particularly serious offences”.
The commission also says that it will work closely with national parliaments, who be responsible for bringing any criminal sanctions law into the domestic lawbooks.
“There can’t be EU laws that actually go against an individual, it has to be through a national law,” said Reding’s spokesperson.
Reding herself has already recognised the possible political hurdles ahead. “Criminal law is an area where decisions need to be made about what is a crime and how we punish it. These are decisions that go to the heart of national sovereignty,” she said in a speech last year.
What is a crime?
Political problems aside, there are also purely practical ones. Member states often do not agree on what is a crime, let alone how it should be punished.
“If you look at conflicts of interest, the definition of it may be completely different depending on the country,” said Reding’s spokesperson. “So in one country it might be completely appropriate that a politician has a company and it benefits from public procurement whereas in another country, this would completely against the law.”
Some politicians have already expressed opposition to the idea.
“Defining what constitutes a crime and what penalties should apply is a fundamental issue of statehood.We have a process of implementing and enforcing EU policy: through national governments,” said British Conservative MEP Sajjad Karim, member of the European Parliament’s anti-federalist European Conservatives and Reformists group.