Council Document 9284/16 of 2016-06-09

Council of the

European Union

Brussels, 10 June 2016 (OR. en)

9284/16

JAI 467 DROIPEN 93 COPEN 167

NOTE From: Presidency To: Delegations No. prev. doc.: 10137/15 Subject: Criminal Law Contact Group - Guiding principles for legislative initiatives in the field of substantive criminal law - Information by the Presidency on an informal meeting

Further to on initiative by MEP Dennis De Jong, the European Parliament adopted a resolution on 22 April 2012 on "An EU approach to criminal law" (2010/2310(INI)).

That resolution called, inter alia, for "an inter-institutional agreement on the principles and working methods governing proposals for future EU substantive criminal law provisions" and invited "the Commission and the Council to establish an inter-institutional working group in which these institutions and Parliament can draw up such an agreement and discuss general matters, where appropriate consulting independent experts, with a view to ensuring coherence in EU criminal law".

While establishing an inter-institutional working group appeared not to be advisable at that stage, the Council and the Commission were willing to informally exchange views on the quality and consistency of legislation in the field of European criminal law. It is for this reason that the criminal law contact group (CLCG), an informal contact group of representatives of the European Parliament, the Council and the Commission, was established.

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The three institutions have each adopted a set of guiding principles for legislative initiatives in the field of substantive criminal law:

• the Parliament, in 2012, adopted the Resolution "An EU approach to criminal law" (see reference above); • the Council, in 2009, adopted its "Council conclusions on model provisions" (doc. 16798/09); • the Commission, in 2011, adopted its communication "Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies through criminal law" (COM(2011)573 final).

During the meetings of the CLCG, Mr. De Jong noted that it would be logic and appropriate if the three Institutions would adopt one common document − which could also be a more informal document, such as a memorandum of understanding − setting common standards regarding guiding principles for legislative initiatives in the field of substantive criminal law. As a basis for this work a table produced by the EP Secretariat could be used, which contains a comparison of the documents of the three Institutions (see the Annex).

The Presidency would like to discuss the issue of the guiding principles with the Member States and the Commission. To that end, the Presidency intends organising an informal meeting at the Netherlands Permanent Representation on Tuesday afternoon 28 June 2016. Mr. de Jong will be invited to attend part of this meeting, so that he can provide his views on the said issue and can respond to any questions of the Member States. After Mr. De Jong has left, there will be an exchange of views among the Member States.

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ANNEX

EP RESOLUTION 2012 / JHA COUNCIL CONCLUSIONS 2009/ COM COMMUNICATION 2011

COMMISSION TOPIC EP RESOLUTION COUNCIL CONCLUSIONS COMMUNICATION

p. 2, lett. H: "whereas criminal law p. 1, par. 5: "While noting the p. 3, par. 5: "Coherence and consistency: must constitute a coherent legislative understanding reached in the JHA While EU criminal law measures can play system governed by a set of Council on 21 February 2006 on the an important role as a complement to the fundamental principles and standards procedure for the future handling of national criminal law systems, it is clear of good governance in full respect of legislative files containing proposals that criminal law reflects the basic values, the EU Charter of Fundamental relevant to the development of criminal customs and choices of any given society. Rights, the European Convention on law policy, the Council acknowledges The Lisbon Treaty accepts this diversity. Human Rights and other international the need for further action and For this reason, it is particularly human rights conventions to which the coordination to ensure coherent and important to ensure that EU legislation on Member States are signatories;" consistent use of criminal law provisions criminal law, in order to have a real COHERENCE added value, is consistent and coherent." in EU legislation;"

p. 3, lett. O: "whereas there is a need p. 2, par. 2, second bullet point: p. 12, par. 1: "This communication for Parliament to develop its own "Increased coherence would facilitate the represents a first step in the Commission's efforts to put in place a procedures in order to ensure, together transposition of EU provisions in coherent and with the co-legislator, a coherent national law;" consistent EU Criminal Policy by setting criminal law system of the highest out how the EU should use criminal law to ensure the effective implementation of quality;" EU policies."

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p. 2, lett. I: "whereas in view of its p. 2, Assessment, (1): "Criminal law p. 7, par. 3: Necessity and being able by its very nature to restrict provisions should be introduced when Proportionality – Criminal law as a certain human rights and fundamental they are considered essential in order for means of last resort ("ultima ratio") freedoms of suspected, accused or the interests to be protected and, as a Criminal investigations and sanctions convicted persons, in addition to the rule, be used only as a last resort." may have a significant impact on citizens' rights and possible stigmatising effect of criminal investigations, and taking include a stigmatising effect. Therefore, into account that excessive use of criminal law must always remain a criminal legislation leads to a decline measure of last resort. This is reflected in ULTIMA RATIO in efficiency, criminal law must be (LAST RESORT) the general principle of proportionality applied as a measure of last resort (as embodied in the Treaty on European (ultima ratio) addressing clearly Union and, specifically for criminal defined and delimited conduct, which penalties, in the EU Charter of cannot be addressed effectively by less Fundamental Rights). For criminal law severe measures and which causes measures supporting the enforcement of significant damage to society or EU policies, the Treaty explicitly requires individuals;" a test of whether criminal law measures are "essential" to achieve the goal of an effective policy implementation. p.2, lett. D: "whereas the principles of p. 2, Assessment, (2): "Criminal p. 2, par. 1: "An EU Criminal Policy subsidiarity and proportionality, as provisions should be adopted in should have as overall goal to foster mentioned in Article 5 TEU, are accordance with the principles laid out in citizens' confidence in the fact that they therefore particularly relevant in the the Treaties, which include the principles live in a Europe of freedom, security and SUBSIDIARITY case of legislative proposals governing of proportionality and of subsidiarity, to justice, that EU law protecting their AND criminal law;" address clearly defined and delimited interests is fully implemented and PROPORTIONA conduct, which cannot be addressed enforced and that at the same time the EU LITY effectively by less severe measures:" will act in full respect of subsidiarity and proportionality and other basic Treaty p. 3, lett. Q, point 1: "Stresses that principles." proposals for EU substantive criminal law provisions must fully respect the

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principles of subsidiarity and p. 6, par. 5: "The general subsidiarity proportionality;" requirement for EU legislation must be given special attention with regard to criminal law."

p. 7, par. 3: "criminal law must always remain a measure of last resort. This is reflected in the general principle of proportionality." p. 3, lett. K: "whereas in accordance p. 3, Assessment, (4): "The description p. 7, par. 6: "the principle of legal with the lex certa requirement the of conduct which is identified as certainty requires that the conduct to be elements of a criminal offence must be punishable under criminal law must be considered criminal must be defined worded precisely in order to ensure worded precisely in order to ensure clearly. However, an EU directive on predictability as regards its predictability as regards its application, criminal law does not have any direct application, scope and meaning;" scope and meaning." effect on a citizen; it will have to be implemented in national law first. Therefore, the requirements for legal p. 3, lett. L: "whereas in the case of LEX CERTA, certainty are not the same as for national directives, Member States retain a PRECISE criminal law legislation. The key is the certain measure of discretion on how WORDING AND clarity for the national legislator about the to transpose the provisions into their FORESEEABILI results to be achieved in implementing national legislation, which means that TY EU legislation." in order to meet the lex certa requirement, not only EU legislation itself, but also its transposition into p. 12., par. 2: "For this purpose, the national legislation must be of the Commission will draft, in close highest quality;" cooperation with Parliament and Council, sample language. This should guide the EU legislator whenever drafting criminal p. 4, lett. Q, point 4, second indent: " [Recognises the importance of ] ... the law provisions setting minimum rules on

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principle of legal certainty (lex certa): offences and sanctions. This would the description of the elements of a contribute to ensure consistency, increase criminal offence must be worded legal certainty and facilitate precisely to the effect that an implementation of EU law." individual shall be able to predict actions that will make him/her criminally liable, p. 3, lett. Q, point 4, first indent: p. 3, Intent, (6): "EU criminal p. 9, par. 2: "All EU criminal law "[Recognises the importance of ] ... legislation should, as a general rule, only instruments include in the definition the principle of individual guilt (nulla prescribe penalties for acts which have intentional conduct, but in some cases poena sine culpa), thus prescribing been committed intentionally." also seriously negligent conduct." penalties only for acts which have

been committed intentionally, or in exceptional cases, for acts involving p. 3, Intent, (7): "Negligent conduct serious negligence," should be criminalised when a case-by- case assessment indicates that this is INTENT, appropriate due to the particular NEGLIGENCE p. 2, lett. J: " whereas EU criminal relevance of the right or essential interest AND legislation should, as a general rule, which is the object of protection, for PRINCIPLE OF only prescribe penalties for acts which example in cases of serious negligence GUILT have been committed intentionally or, which endangers human life or causes in exceptional circumstances, for those serious damage." involving serious negligence, and

must be based on the principle of individual guilt (nulla poena sine p. 3, Intent, (8): "The criminalisation of culpa), although in certain instances it an act that has been committed without may be justified to provide for intention or negligence, i.e., strict corporate liability for certain types of liability, should not be prescribed in EU offence; criminal legislation."

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p. 3, lett. Q, point 3, first indent: p. 3, Assessment, (5): "The criminal p. 11, par. 3: "minimum rules on the "[Emphasises that...the necessity of provisions should focus on conduct definition of criminal offences and new substantive criminal law causing actual harm or seriously sanctions may prove to be essential in provisions must be demonstrated by threatening the right or essential interest order to ensure the effective the necessary factual evidence making which is the object of protection; that is, implementation of EU legislation. This it clear that:] the criminal provisions avoiding criminalisation of a conduct at analysis should take into account the focus on conduct causing significant an unwarrantably early stage. Conduct following considerations. The seriousness pecuniary or non-pecuniary damage to which only implies an abstract danger to and character of the breach of law must society, individuals or a group of the protected right or interest should be be taken into account. For certain individuals;" criminalised only if appropriate unlawful acts considered particularly considering the particular importance of grave, an administrative sanction may not the right or interest which is the object of be a sufficiently strong response."

HARMFULNESS protection." AND SERIOUSNESS p. 12, par. 2 of box: "In fields of EU OF THE CRIME p. 2, Assessment, (2), lett. a): [Criminal policy where there is an identified p. 3, lett. Q, point 3, third indent: provisions should be adopted ... to enforcement deficit, the Commission will "[Emphasises that...the necessity of address clearly defined and delimited assess the need for new criminal law new substantive criminal law conduct, which cannot be addressed measures (…). This concerns notably (…) provisions must be demonstrated by effectively by less severe measures:] in serious infringements of road transport the necessary factual evidence making the areas of particularly serious crime rules, serious breaches of data protection it clear that:] the crime involved is of a with a cross-border dimension resulting rules, customs offences, environmental particularly serious nature with a from the nature or impact of such protection, fisheries policy and internal cross-border dimension or has a direct offences or from a special need to market policies to fight illegal practices negative impact on the effective combat them on a common basis, or" such as counterfeiting and corruption or undeclared conflict of interests in the implementation of a Union policy in an area which has been subject to context of public procurement." harmonisation measures,"

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p. 3, lett. Q, point 3, fourth indent: p. 2, Assessment, (3) second bullet p. 2, par. 3: "the EU can tackle gaps and "[Emphasises that...the necessity of point:" [When there seems to be a need shortcomings wherever EU action adds new substantive criminal law for adopting new criminal provisions the value. In view of the cross-border provisions must be demonstrated by following factors should be further dimension of many crimes, the adoption the necessary factual evidence making considered, while taking fully into of EU criminal law measures can help it clear that:] there is a need to combat account the impact assessments that have ensuring that criminals can neither hide the criminal offence concerned on a been made:] how serious and/or behind borders nor abuse differences common basis, i.e. that there is added widespread and frequent the harmful between national legal systems for practical value in a common EU conduct is, both regionally and locally criminal purposes." approach, taking into account, inter within the EU;"

alia, how widespread and frequent the

offence is in the Member States, and" p. 5, par. 1 of box: "While it is not the EU ADDED role of the EU to replace national criminal codes, EU criminal law VALUE p. 2, Assessment, (3) first bullet point: "[When there seems to be a need for legislation can, however, add, within the adopting new criminal provisions the limits of EU competence, important value following factors should be further to the existing national criminal law considered, while taking fully into systems." account the impact assessments that have been made:] the expected added value or effectiveness of criminal provisions compared to other measures, taking into account the possibility to investigate and prosecute the crime through reasonable efforts, as well as its seriousness and implications;" p. 3, lett. Q, point 3, fifth indent: p. 3, Penalties, (10): "When it has been p. 8, par. 3: "The explicit requirement of PROPORTIONA "[Emphasises that...the necessity of established that criminal penalties for the Charter of Fundamental Rights that LITY OF THE new substantive criminal law natural persons should be included it "the severity of the penalty must not be PENALTY provisions must be demonstrated by may in some cases be sufficient to disproportionate to the criminal offence" the necessary factual evidence making provide for effective, proportionate and applies."

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it clear that:] in conformity with dissuasive criminal penalties and leave it Article 49(3) of the EU Charter on to each Member State to determine the Fundamental Rights, the severity of level of the penalties. In other cases there p. 9, par. 5 of box: "Regarding sanctions, the proposed sanctions is not may be a need for going further in the EU criminal law can require Member disproportionate to the criminal approximation of the levels of penalties. States to take effective, proportionate and offence;" In these cases the Council conclusions of dissuasive criminal sanctions for a April 2002 on the approach to apply specific conduct. Effectiveness requires regarding the approximation of penalties that the sanction is suitable to achieve the should be kept in mind, in the light of the desired goal, i.e. observance of the rules; Lisbon Treaty." proportionality requires that the sanction must be commensurate with the gravity of the conduct and its effects and must not exceed what is necessary to achieve the aim; and dissuasiveness requires that the sanctions constitute an adequate deterrent for potential future perpetrators."

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