10 Guidelines and model provisions
on EU criminal legislation
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| Draft Council Conclusions on model provisions, guiding the Council's criminal law deliberations
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| Legal base | —
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| Department | Justice
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| Basis of consideration | Minister's letter of 6 December 2009
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Politically and legally important
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| Committee's decision | — Further information requested.
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Background
10.1 The Parliamentary Under-Secretary of State at the Ministry
of Justice (Lord Bach) wrote on 6 December to inform the Committee
of the draft Council conclusions "on model provisions, guiding
the Council's criminal law deliberations" which were agreed
and adopted at the Justice and Home Affairs Council on 1 December
2009. Although Council conclusions are not subject to Parliamentary
scrutiny and have no legally binding effect, the Minister states
that he nevertheless wanted to make us aware of them.
10.2 The Lisbon Treaty has collapsed the third
pillar of the EU, which means the formulation of EU criminal legislation
is no longer an intergovernmental affair but adopted by the Council
and European Parliament, in most cases under the "ordinary
legislative procedure" (formerly "co-decision")
in which both institutions have equal legislative powers. These
Council conclusions, an initiative of Sweden and Germany, establish
guidelines on assessing the need for criminal provisions in future
EU legislation and provide model criminal provisions to be used
in future proposals. The Minister reports that they are aimed
in particular at providing assistance to non-criminal law experts,
who are likely to be required to consider criminal provisions
more frequently under the Lisbon Treaty arrangements. They are,
however, only a starting point: the Council, European Parliament
and Commission are tasked to further "develop and refine"
the conclusions once the Lisbon Treaty is in force.
Council conclusions
Introduction
10.3 The Council conclusions fall into two parts:
guidelines and model provisions. They are annexed to this Report,
and summarised below.
10.4 Guidelines and model provisions on criminal
law are said to be necessary because: a) the Lisbon Treaty is
likely to have the effect that criminal law provisions will be
discussed within the Council to an even greater extent than at
present; and b) this may result in incoherent and inconsistent
criminal provisions in EU legislation, thus creating unnecessary
difficulties when implementing and interpreting EU law.
10.5 The advantages are enumerated as follows:
- guidelines and model provisions
would facilitate negotiations by leaving room to focus on the
substance of the specific provisions;
- increased coherence would facilitate the transposition
of EU provisions in national law;
- legal interpretation would
be facilitated when new criminal legislation is drafted in accordance
with agreed guidelines which build on common elements.
Guidelines
10.6 The conclusions set out the following guidelines
as "a starting point for discussions in the Council".
They do not "introduce obligations or constraints that go
beyond what is set out in the Treaties".
10.7 Assessment of the need for criminal provisions:
- "Criminal law provisions
should be introduced when they are considered essential in order
for the interests to be protected and, as a rule, be used only
as a last resort."
- "Criminal provisions should be adopted in
accordance with the principles laid out in the Treaties, which
include the principles of proportionality and of subsidiarity,
to address clearly defined and delimited conduct, which cannot
be addressed effectively by less severe measures:
(a) in the areas of particularly serious crime
with a cross-border dimension resulting from the nature or impact
of such offences or from a special need to combat them on a common
basis,[37] or
(b) if the approximation of criminal laws and
regulations of the Member States proves essential to ensure the
effective implementation of a Union policy in an area which has
been subject to harmonisation measures."[38]
- "When there seems to be
a need for adopting new criminal provisions the following factors
should be further considered, while taking fully into 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;
- how serious and/or widespread and frequent the
harmful conduct is, both regionally and locally within the EU;
- the possible impact on existing criminal provisions
in EU legislation and on different legal systems within the EU."
10.8 The structure of criminal provisions:
- "The description of conduct
which is identified as punishable under criminal law must be worded
precisely in order to ensure predictability as regards its application,
scope and meaning."
- "The criminal provisions should focus on
conduct causing actual harm or seriously threatening the right
or essential interest which is the object of protection; that
is, avoiding criminalisation of a conduct at an unwarrantably
early stage. Conduct which only implies an abstract danger to
the protected right or interest should be criminalised only if
appropriate considering the particular importance of the right
or interest which is the object of protection."
10.9 Intent:
- "EU criminal legislation
should, as a general rule, only prescribe penalties for acts which
have been committed intentionally."
- "Negligent conduct should be criminalised
when a case-by-case assessment indicates that this is appropriate
due to the particular relevance of the right or essential interest
which is the object of protection, for example in cases of serious
negligence which endangers human life or causes serious damage."
- "The criminalisation of an act that has
been committed without intention or negligence, i.e., strict liability,
should not be prescribed in EU criminal legislation."
10.10 Inciting, aiding and abetting, and attempt:
- "The criminalisation of
inciting, aiding and abetting of intentional offences should normally
follow the criminalisation of the main offence. Attempts to commit
an intentional offence should be criminalised if it is necessary
and proportionate in relation to the main offence. Consideration
should be given to the different regimes under national law."
10.11 Penalties:
- "When it has been established
that criminal penalties for natural persons should be included
it may in some cases be sufficient to provide for effective, proportionate
and dissuasive criminal penalties and leave it to each Member
State to determine the level of the penalties. In other cases
there may be a need for going further in the approximation of
the levels of penalties. In these cases the Council conclusions
of April 2002 on the approach to apply regarding the approximation
of penalties should be kept in mind, in the light of the Lisbon
Treaty."
10.12 Model provisions:
- "Once it has been established
that criminal provisions should be adopted, either as the only
option or as an alternative, there is a need to establish a range
of concurrent rules, e.g., rules on liability of legal persons.
There may also be a need to differentiate between conduct that
should be prohibited but does not necessarily have to be established
as a criminal offence and conduct that should be criminalised."
10.13 The model provisions are set out in annex
to the conclusions, and cover infringements; criminal offences;
inciting, aiding and abetting and attempt; criminal penalties
for individuals with and without approximation of levels; and
liability of and penalties against corporations.
Minister's letter of 6 December
10.14 The Minister sees value in this initiative,
considering that it will facilitate coherent and consistent use
of criminal provisions in future EU proposals. In particular,
he takes the view that it will be useful in the context of future
negotiations to underline that the Council considers the use of
criminal sanctions as a last resort and attaches particular importance
to the principles of subsidiarity and proportionality when assessing
the need for such sanctions. He adds that during negotiations
the Government secured the inclusion of a recommendation that
the impact of criminal provisions at EU level on different legal
systems should be considered.
10.15 One issue that arose during negotiations
was the question of negligence. As originally drafted, the guidelines
would have foreseen negligence being considered as a matter of
course when criminal sanctions were contemplated. The Government
did not think this was appropriate, having in mind the seriousness
of the conduct with which some EU legislation deals. He comments
that the final draft is much improved in this respect, and provides
for consideration of negligence within criminal provisions on
a case-by-case basis, which the Government could accept.
10.16 The Minister reports that the conclusions,
although only a starting point for negotiations, met with a mixed
reception from the Commission. In particular, at the JHA Council,
the Commission made a statement to the effect that the guidelines
and model provisions were premature and restricted the interpretation
of Article 83 of the Treaty on the Functioning of the European
Union (TFEU). The Government does not agree. It takes the view
that the coming into force of the new Treaty does not conflict
with the agreement of the Council conclusions: they are merely
guidelines and are not capable of restricting interpretation of
Treaty provisions. The Commission further asserted that these
are unilateral guidelines of the Council and are without prejudice
to the Commission's right of initiative. The Government fails
to see how such guidelines could interfere with the right of initiative.
10.17 Nonetheless, to address these concerns,
the conclusions include a statement encouraging discussion of
the conclusions with the other institutions of the Union after
the entry into force of the Lisbon Treaty.
Conclusion
10.18 We are grateful to the Minister for
sending us a copy of the Council conclusions, and for the further
explanation contained in his letter, particularly, as he notes
himself, because Council conclusions are not depositable EU documents
under the Committee's Standing Order No. 143.
10.19 The fact that a document as important
as this is not depositable causes us great concern. It matters
little that these conclusions are non-binding "soft law":
they contain model provisions for use in Council working group
negotiations and so are likely to have a considerable influence
on the shape of future EU criminal legislation. As the Minister
knows, the impact of EU criminal law on national sovereignty and
on the relationship between State and citizen is a key concern
of this Committee, and we would have had several comments to make.
Yet these conclusions were adopted without any parliamentary scrutiny
whatsoever.
10.20 The deposit of Council conclusions is
a matter we are pursuing with the Government through other channels,
and so need not trouble the Minister. But we do ask that he deposit
a further draft version of the conclusions in time for the Committee
to comment if, as he says, they are to be "refined and developed"
at the insistence of the Commission.
Annex 1: Draft Council conclusions
on model provisions, guiding the Council's criminal law Deliberations
Since the entry into force of the Amsterdam Treaty,
several Framework Decisions have been adopted on the basis of
Articles 31 and 34 of the TEU, establishing minimum rules concerning
the definition of criminal offences and sanctions in various areas,
inter alia terrorism, computer crime and organised crime.
In addition, the European Court of Justice has clarified
that criminal law provisions may under certain conditions be included
in specific areas of Community law.
The Lisbon Treaty is likely to have the effect that
criminal law provisions will be discussed within the Council to
an even greater extent than at present. This may result in incoherent
and inconsistent criminal provisions in EU legislation. Furthermore,
provisions negotiated within the Council might unjustifiably deviate
from wording that is normally used in EU criminal legislation,
thus creating unnecessary difficulties when implementing and interpreting
EU law.
While noting the understanding reached in the JHA
Council on 21 February 2006 on the procedure for the future handling
of legislative files containing proposals relevant to the development
of criminal law policy, the Council acknowledges the need for
further action and coordination to ensure coherent and consistent
use of criminal law provisions in EU legislation.
To this end, it would be useful if the Council were
to agree on guidelines and model provisions for its work on criminal
law.
Foreseeable advantages of guidelines and model provisions
for criminal law include:
- Guidelines and model provisions
would facilitate negotiations by leaving room to focus on the
substance of the specific provisions;
- Increased coherence would facilitate the transposition
of EU provisions in national law;
- Legal interpretation would be facilitated when
new criminal legislation is drafted in
- accordance with agreed guidelines which build
on common elements.
The following guidelines should be conceived as a
starting point for discussions in the Council. These guidelines
do not introduce obligations or constraints that go beyond what
is set out in the Treaties. On this basis, the Council suggests
that the Presidency should conduct future discussions on criminal
law within the EU, taking these conclusions into account. Furthermore,
the Council should seek , together with the European Parliament
and the Commission, as soon as possible after the entry into force
of the Lisbon Treaty, to further develop and refine these conclusions,
and it invites the Presidency to take the necessary measures to
that end.
The Council adopts the following conclusions:
Assessment of the need for criminal provisions
(1) Criminal law provisions should be introduced
when they are considered essential in order for the interests
to be protected and, as a rule, be used only as a last resort.
(2) Criminal provisions should be adopted in accordance
with the principles laid out in the Treaties, which include the
principles of proportionality and of subsidiarity, to address
clearly defined and delimited conduct, which cannot be addressed
effectively by less severe measures;
a) in the areas of particularly serious crime
with a cross-border dimension resulting from the nature or impact
of such offences or from a special need to combat them on a common
basis, or
b) if the approximation of criminal laws and
regulations of the Member States proves essential to ensure the
effective implementation of a Union policy in an area which has
been subject to harmonisation measures.
(3) When there seems to be a need for adopting new
criminal provisions the following factors should be further considered,
while taking fully into 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;
- how serious and/or widespread and frequent the
harmful conduct is, both regionally and locally within the EU;
- the possible impact on existing criminal provisions
in EU legislation and on different legal systems within the EU.
Structure of criminal provisions
(4) The description of conduct which is identified
as punishable under criminal law must be worded precisely in order
to ensure predictability as regards its application, scope and
meaning.
(5) The criminal provisions should focus on conduct
causing actual harm or seriously threatening the right or essential
interest which is the object of protection; that is, avoiding
criminalisation of a conduct at an unwarrantably early stage.
Conduct which only implies an abstract danger to the protected
right or interest should be criminalised only if appropriate considering
the particular importance of the right or interest which is the
object of protection.
Intent
(6) EU criminal legislation should, as a general
rule, only prescribe penalties for acts which have been committed
intentionally.
(7) Negligent conduct should be criminalised when
a case-by-case assessment indicates that this is appropriate due
to the particular relevance of the right or essential interest
which is the object of protection, for example in cases of serious
negligence which endangers human life or causes serious damage.
(8) The criminalisation of an act that has been committed
without intention or negligence, i.e. strict liability, should
not be prescribed in EU criminal legislation.
Inciting, aiding and abetting, and attempt
(9) The criminalisation of inciting, aiding and abetting
of intentional offences should normally follow the criminalisation
of the main offence. Attempts to commit an intentional offence
should be criminalised if it is necessary and proportionate in
relation to the main offence. Consideration should be given to
the different regimes under national law.
Penalties
(10) When it has been established that criminal penalties
for natural persons should be included it may in some cases be
sufficient to provide for effective, proportionate and dissuasive
criminal penalties and leave it to each Member State to determine
the level of the penalties. In other cases there may be a need
for going further in the approximation of the levels of penalties.
In these cases the Council conclusions of April 2002 on the approach
to apply regarding the approximation of penalties should be kept
in mind, in the light of the Lisbon Treaty.
Model provisions
(11) Once it has been established that criminal provisions
should be adopted, either as the only option or as an alternative,
there is a need to establish a range of concurrent rules, e.g.,
rules on liability of legal persons. There may also be a need
to differentiate between conduct that should be prohibited but
does not necessarily have to be established as a criminal offence
and conduct that should be criminalised.
(12) The model provisions set out in Annex II should
guide future work of the Council on legislative initiatives that
may include criminal provisions.
MODEL PROVISIONS
The following wording shall guide future legislative
work in criminal and related matters within the EU. The aim is
to achieve coherent and consistent criminal law provisions, and
to avoid unnecessary difficulties in the interpretation of EU
law and problems for national legislators in the process of implementation.
A — PROVISION ON INFRINGEMENTS AND PENALTIES
THAT DO NOT NECESSARILY HAVE TO BE CRIMINAL
Infringements
Each Member State shall lay down the rules on penalties
applicable to infringements of the provisions adopted pursuant
to this Directive. The penalties provided for must be effective,
proportionate and dissuasive.
B — CRIMINAL LAW PROVISIONS AND RELATED PROVISIONS
Criminal Offences
Each Member State shall ensure that the following
conduct constitutes a criminal offence, when [unlawful and][39]
committed intentionally [or with at least serious negligence].
Inciting, aiding and abetting and attempt
1. Each Member State shall ensure that inciting,
aiding and abetting the intentional conduct referred to in Article
(Article on Criminal Offences) is punishable as a criminal offence.
2. Each Member State shall ensure that attempting
the intentional conduct referred to in Article (Article on Criminal
Offences) is punishable as a criminal offence.
Criminal Penalties (for natural persons, without
approximation of levels)
Each Member State shall take the necessary measures
to ensure that the offences referred to in Articles (Article on
Criminal Offences) are punishable by effective, proportionate
and dissuasive criminal penalties.
Criminal Penalties (for natural persons, with
approximation of levels)
Each Member State shall take the necessary measures
to ensure that an offence referred to in Article (Article on Criminal
Offences) is punishable by (penalty levels) of imprisonment.[40]
Liability of legal persons
1. Each Member State shall [take the necessary measures
to] ensure that a legal person can be held liable for offences
referred to in Articles (Article on Criminal Offences) where such
offences have been committed for its benefit by any person, acting
either individually or as part of an organ of the legal person,
who has a leading position within the legal person, based on
a) a power of representation of the legal person,
b) an authority to take decisions on behalf of
the legal person, or
c) an authority to exercise control within the
legal person.
[2. Each Member State shall also ensure that a legal
person can be held liable where the lack of supervision or control,
by a person referred to in paragraph 1, has made possible the
commission of an offence referred to in Articles (Article on Criminal
Offences) for the benefit of that legal person by a person under
its authority.]
3. Liability of a legal person under paragraphs 1
and 2 shall not exclude criminal proceedings against natural persons
who are perpetrators, inciters or accessories in the offences
referred to in Articles (Article on Criminal Offences).
4. [For the purpose of this Directive] 'legal person'
shall mean any entity having legal personality under the applicable
law, except for States or public bodies in the exercise of State
authority and for public international organisations. [NB: This
paragraph is preferably included in an Article on definitions,
if such a provision exists.]
Penalties against legal persons
Each Member State shall take the necessary measures
to ensure that a legal person held liable pursuant to Article
(Article on Liability of legal persons) is punishable by effective,
proportionate and dissuasive penalties [which shall include criminal
or non-criminal fines and may include other penalties, such as:
a) exclusion from entitlement to public benefits
or aid;
b) temporary or permanent disqualification from
the practice of commercial activities;
c) placing under judicial supervision;
d) a judicial winding-up order;
e) temporary or permanent closure of establishments
which have been used for committing the offence.]
37 This follows the wording found in Article 83(1)
of the Treaty on the Functioning of the European Union (TFEU). Back
38
This follows the wording found in Article 83(2) TFEU. Back
39
Text within square brackets indicates that the inclusion of such
text should be considered on a case by case basis. Back
40
The Council conclusions of April 2002 on the approach to apply
regarding the approximation of penalties which indicates four
levels of penalties (doc. 9141/02) should be kept in mind, in
the light of the Lisbon Treaty. Back
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