GREEN PAPER on the approximation, mutual recognition and enforcement of criminal sanctions in the European Union

(presented by the Commission)

Objectives of the Green Paper

The European Union has set itself the objective of offering its citizens a high level of protection in an area of freedom, security and justice (Article 29 of the Treaty on European Union). For this the Commission considers that it is worth analysing whether national differences regarding criminal penalties are an obstacle to attaining that objective. It is also necessary to analyse whether these differences raise problems for judicial cooperation between Member States, which entails first identifying the barriers to implementation of the mutual recognition principle, which, according to the conclusions of the Tampere European Council, is to "become the cornerstone of judicial cooperation in both civil and criminal matters within the Union" and in general terms make it easier to have penalties ordered in one Member State enforced in others.

This document is a preliminary reflection instrument so that at a second stage a better informed opinion can be reached, in the light of the reactions and comments on it, on the utility and feasibility of a legislative proposal, and to some extent also on the approximation of the rules applicable to criminal penalties in general and to the mutual recognition of custodial sentences and alternative sanctions in the European Union.

Consultation of all interested parties

A series of questions have arisen on problems that the Commission regards as the most important in establishing a genuine law enforcement area which would give rise to a degree of approximation of the rules applicable to criminal penalties in the Union.

The Commission would like to receive reasoned replies to these questions from all interested parties. Comments may also be offered on other interesting aspects, whether or not they are mentioned in the Green Paper. Replies to the questions and other comments should be sent no later than 31 July 2004 to:

European Commission Directorate-General for Justice and Home Affairs, Unit D.3 B-1049 Brussels Fax: +32 2 296.76.34

e-mail: JAI-justicepenale@cec.eu.int

To simplify management, interested parties who respond by two different means (by e-mail and by post, for instance) are requested to specify that the same document has already been sent to the Commission. Interested parties wishing to comment on this Green Paper must give particulars of the interests they represent and the level at which they do so.

This consultation and the replies and comments will be published on the Commission's website:, unless the author specifically objects to this.

TABLE OF CONTENTS

Objectives of the Green Paper

Consultation of all interested parties

1. Introduction

1.1. Objectives

1.2. Objectives of mutual recognition

1.3. Method and structure of the Green Paper

2. Measures taken by the European Union - a Stock-taking

2.1. Approximation of penalties

2.1.1. The Treaty on European Union

2.1.2. The Vienna Action Plan

2.1.3. Conclusions of the Tampere European Council

2.1.4. Instruments adopted or under negotiation

2.1.5. Custodial sentences

2.1.6. Financial penalties

2.1.7. Disqualification

2.1.8. Confiscation

2.1.9. Sanctions for legal persons.

2.1.10. Alternative sanctions

2.1.11. Enforcement of criminal penalties

2.1.12. Conclusions

2.2. Mutual recognition and enforcement of criminal penalties in another Member State

2.2.1. European arrest warrant

2.2.2. Recognition of financial penalties

2.2.3. Recognition of decisions regarding confiscation

2.2.4. Recognition of decisions regarding disqualification

2.2.5. Agreements concluded between the Member States of the European Community in the context of European Political Cooperation (EPC)

2.2.6. Conclusions

3. Current situation: National legislation and international agreements

3.1. Great diversity between the Member States

3.1.1. General rules of criminal law

3.1.1.1. Principles governing prosecution - mandatory or discretionary

3.1.1.2. The room for manoeuvre of the criminal courts

3.1.1.3. Level of participation: aiding and abetting.

3.1.1.4. Level of completion: attempts

3.1.1.5. Aggravating and mitigating circumstances

3.1.1.6. A special case - recidivism

3.1.1.7. Concurrent offences

3.1.2. Custodial penalties

3.1.3. Financial penalties

3.1.4. Disqualification

3.1.5. Confiscations

3.1.6. Sanctions for legal persons

3.1.7. Alternative sanctions

3.1.8. Enforcement of criminal penalties

3.2. An incomplete range of mutual recognition instruments

3.2.1. Mutual recognition of custodial penalties.

3.2.1.1. European Convention of the Council of Europe of 28 May 1970 on the International Validity of Criminal Judgments

3.2.1.2. Convention of 13 November 1991 between the Member States of the European Communities on the enforcement of foreign criminal sentences

3.2.1.3. The Treaty of 26 September 1968 between Belgium, the Netherlands and Luxembourg on the enforcement of judgments in criminal matters

3.2.1.4. The model for cooperation between the Nordic States

3.2.1.5. Council of Europe Convention on the Transfer of Sentenced Persons of 21 March 1983

3.2.1.6. Additional Protocol to the Council of Europe Convention on the transfer of sentenced persons of 18 December 1997

3.2.1.7. Agreement on the application, between the Member States of the European Communities, of the Council of Europe Convention on the transfer of sentenced persons of 25 May 1987

3.2.2. Recognition of judgments imposing a suspended sentence, conditional release or alternative sanctions

3.2.2.1. Description and identification of the problem.

3.2.2.2. Existing instruments

3.2.3. Recognition of disqualification decisions

3.2.4. Conclusions

4. Outstanding problems and need for action by the European Union

4.1. Approximation of custodial penalties and alternative sanctions

4.1.1. General rules of criminal law

4.1.1.1. Prosecution - mandatory or discretionary?

4.1.1.2. The room for manoeuvre of the criminal courts

4.1.1.3. Level of participation: aiding and abetting.

4.1.1.4. Aggravating and mitigating circumstances

4.1.1.5. Recidivism

4.1.1.6. Concurrent offences

4.1.2. Custodial penalties

4.1.3. Financial penalties

4.1.4. Disqualification

4.1.5. Confiscation

4.1.6. Legal persons

4.1.7. Alternative sanctions

4.1.8. Enforcement of penalties

4.2. Recognition and enforcement of custodial penalties and alternative sanctions in another Member State

4.2.1. Scope of possible European Union rules

4.2.1.1. Personal scope

4.2.1.2. Material scope

4.2.2. Conditions for recognition

4.2.2.1. Right of initiative in the recognition procedure

4.2.2.2. Grounds for refusal

4.2.2.3. The power of the State of enforcement to adapt, convert or substitute a penalty imposed in the State of judgment

4.2.2.4. Participation of the sentenced person

4.2.2.5. Participation of the victim

4.2.3. Questions of procedure and practical arrangements for implementing the recognition of judgments in criminal matters and the transfer of prisoners

4.2.3.1. Time-limits

4.2.3.2. Reimbursement of expenditure incurred by the State of enforcement of penalties

4.2.4. Distribution of powers between the State of judgment and the State of enforcement

ANNEX I: Inventory and comparison of Member States' legislation regarding the way that custodial penalties that are imposed as part of the sentence are enforced

1. Suspended sentences

2. Suspension/deferment of sentencing

3. Day release

4. Sentences served in instalments (weekend detention)

5. Electronic surveillance

6. Home detention

ANNEX II: Inventory and comparison of Member States' legislation regarding alternative sanctions

1. Community service

2. Mediation in criminal cases

3) Settlement

ANNEX III: Inventory and comparison of Member States' legislation regarding the enforcement of criminal penalties

1. Suspended sentences

2. Day release

3. Early release

4. Remission

5. Amnesty and pardon

ANNEX IV: Table of questions

1. INTRODUCTION

Article 31(1)(e) of the Treaty on European Union provides for the gradual adoption of "measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties" in certain fields. This approach is confirmed by the Council and Commission Action Plan on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice [1] (Vienna Action Plan) and the conclusions of the Tampere European Council [2] (paragraph 48).

[1] OJ C 19, 23.1.1999, p. 1. See also point 2.1.2.

[2] Accessible at: http://ue.eu.int/en/Info/eurocouncil/ index.htm.

The approximation of criminal penalties would also contribute to ensuring such compatibility in rules applicable in the Member States as may be necessary to improve such cooperation (Article 31(1)(c)), and to facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States, in relation to proceedings and the enforcement of decisions (Article 31(1)(a)).

To act on this, the Council has already adopted legislative instruments (Framework Decisions) on fraud involving non-cash means of payment, euro counterfeiting, money laundering, terrorism, environmental crime, trafficking in human beings and facilitation of unauthorised entry and residence. Other instruments are under discussion in the Council and the European Parliament, such as the proposals for Council Framework Decisions on the fight against ship-source pollution and racism and xenophobia. [3] The purpose of the Framework Decisions is to approximate the Member States' legislation and regulations. Framework Decisions are binding upon the Member States as to the result to be achieved but leave to the national authorities the choice of form and methods. [4]

[3] See point 2.1.5.

[4] Article 34(2)(b) of the Treaty on European Union.

As regards penalties, there are provisions determining penalties applicable. The formula used to harmonise penalties has not been so much to determine effective, proportionate and dissuasive penalties as to set minimum levels for maximum penalties. [5] In the Commission's view this approach, which is confined to custodial sentences, produces a minimum approximation which may not be adequate to meet the declared objectives. The Commission is meeting a need to identify the areas in which Union action is justified.

[5] But the Council Joint Action of 21 December 1998 on making it a criminal offence to participate in a criminal organisation in the Member States of the European Union does not provide for a minimum penalty.

It must also be borne in mind that the action undertaken by the Community on the basis of the Union Treaty is without prejudice to its powers to work for the objectives set out in Article 2 of the EC Treaty, to require the Member States to legislate for national penalties, criminal penalties if need be, where a Community objective is to be secured. This would include, for example, protection of the environment, including the prohibition on illicit discharge from vessels at sea, and the common fisheries policy.

Apart from imprisonment, a wide range of criminal sanctions is provided for by the Member States' criminal systems. And regarding imprisonment, even if the same penalty is set for an offence, there are major divergences between the general rules of criminal law in the Member States, which generate a difference between the sentence that is passed and the penalty that is served.

This Green Paper contains a comparative analysis of the Member States' legislation. The situation of the acceding countries has not been reflected at this stage, since the studies used did not extend to the legislation of all of them. In the consultations launched by this Green Paper, the acceding countries will of course have every opportunity to make their views known. And the Commission will invite them to send contributions so as to complete the information about their legislation in the relevant matters.

In this context, it is worth asking in terms of effectiveness, whether the penalty is actually applied and if it has a truly dissuasive effect, to take over the now well known concepts of the Greek-Yugoslav Maize case [6] that underlie the system for the approximation of penalties established by third-pillar instruments. In conclusion, the penalty served is ultimately the result of a complex equation involving an extremely large number of variables: theoretically action would have to be taken on every one of them to guarantee an identical penalty in all the legal orders.

[6] ECJ, Case 68/88, judgment given on 21 September 1989, Commission v Hellenic Republic [1989] ECR 2965.

However, it must be acknowledged that it is not possible simultaneously to harmonise all the relevant factors in the short term and the Commission obviously has no intention of proposing the standardisation of all criminal penalties in the European Union. This would be neither desirable nor legally feasible.

The differences between the Member States' legislation on penalties are still quite sharp. There are historical, cultural and legal reasons for this, deeply-rooted in their legal systems, which have evolved over time and are the expression of the way in which Member States have faced and answered fundamental questions about criminal law. These systems have their own internal coherence, and amending individual rules without regard for the overall picture would risk generating distortions.

On the contrary, in accordance with the subsidiarity principle, the aim must be to focus on areas where a need has been identified, in the light of the objectives set and the legal bases available. The point, therefore, is really to identify differences in penalties that have harmful effects and the limits to be imposed, if any, in order to attain a European law-enforcement area.

The first paragraph of Article I-41 of the Draft Constitution, [7] concerning the area of freedom, security and justice, provides that the Union shall establish that area:

[7] Accessible at: http://european-convention.eu.int/ .

- by adopting European laws and framework laws intended, where necessary, to approximate national laws in the areas listed in Part III;

- by promoting mutual confidence between the competent authorities of the Member States, in particular on the basis of mutual recognition of judicial and extrajudicial decisions;

- by operational cooperation between the competent authorities of the Member States.

Part III of the Draft Constitution, in the Section on judicial cooperation in criminal matters (Article III-171), specifies that this cooperation is to be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in certain areas. The Council, acting unanimously after obtaining the consent of the European Parliament, may adopt a European decision identifying other areas of crime. Article III-172 provides that "European framework laws may establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with cross-border dimensions resulting from the nature or impact of such offences or from a special need to combat them on a common basis".

By point 2(d) of the second subparagraph of Article III-171(1) of the Draft Constitution, European laws or framework laws shall establish measures to "facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions". The Council of Ministers, acting unanimously after obtaining the consent of the European Parliament, may adopt a European decision identifying any other specific aspects of criminal procedure (third subparagraph of Article III-172(1)).

If the approximation of criminal legislation proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, European framework laws may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned (Article III-172(2)).

Under Article III-173 of the Draft Constitution, European laws or framework laws may establish measures to promote and support the action of Member States in the field of crime prevention, which is important for the implementation of custodial sentences and alternative sanctions (Annexes I and II). But such measures may not include the approximation of Member States' legislative and regulatory provisions.

1.1. Objectives

The approximation of criminal penalties can satisfy several mutually complementary objectives:

- First, by defining common offences and penalties in relation to certain forms of crime, the Union would be putting out a symbolic message. The approximation of penalties would help to give the general public a shared sense of justice, which is one of the conditions for establishing the area of freedom, security and justice. [8] It would also be a clear signal that certain forms of conduct are unacceptable and punished on an equivalent basis. The sexual exploitation of children is a good example. Approximation of the definition of the offence and of the level of the penalty incurred for it, provides effective and equivalent protection for citizens throughout the Union against a phenomenon that strikes against the principles and values shared by the Member States.

[8] See point 15 of the Vienna Action Plan.

- The corollary of a European area of justice would be that the same criminal conduct incurs similar penalties wherever the offence is committed in the Union. The approximation of legislation is accordingly an autonomous objective in areas regarded as deserving priority and identified as such. A degree of approximation of provisions of substantive criminal law is needed since certain forms of crime have a transnational dimension and the Member States cannot combat them effectively on their own.

- Union minimum standards thus help to prevent offenders (or at least certain categories of them, such as organised crime) from taking advantage of divergences between penalties in the Member States and moving from one to another to evade prosecution or the enforcement of penalties. The Tampere conclusions (point 5) state that criminals must not find ways of exploiting differences in the judicial systems of Member States. This is particularly true of financial crime.

- Discussions in Council on the draft Framework Decision on the "ne bis in idem" principle have also shown that the application of the principle in Article 50 of the Charter of Fundamental Rights of the European Union will be easier to accept if the penalties are comparable and actually applied.

- While the operation of certain mechanisms for judicial cooperation in criminal matters was dependent on the level of penalties, this is no longer the case following the adoption of instruments based on the principle of mutual recognition.

- There is also a link, as Article III-172(2) of the Draft Constitution makes clear, between the approximation of criminal law and the effective implementation of a Union policy where harmonisation measures have been taken. Examples are protection of the environment, safety at work and economic and financial transactions, as areas where criminal law could help to enforce a Union policy.

- Finally, the approximation of rules of criminal law concerning penalties and their enforcement also helps to secure acceptance of the mutual recognition of judgments, since it enhances mutual trust. But approximation is not a sine qua non for mutual recognition; rather, these are two complementary mechanisms for achieving the European area of justice. Compatibility between the rules applicable in the Member States would thus be facilitated, as required by Article 31(1)(c) of the TEU, and cooperation between the authorities of the Member States in the enforcement of decisions (Article 31(1)(a)) would be improved. Compatible conditions for enforcement of penalties between the Member States would promote the rehabilitation of persons by allowing them to serve their sentence in a Member State other than the one where they were convicted.

Even so, any action seeking to approximate criminal penalties must quite obviously respect the subsidiarity and proportionality principles. The Protocol on the application of the principles of subsidiarity and proportionality annexed to the EC Treaty by the Amsterdam Treaty contains guidelines for the application of these principles. Community action is justified where the issue under consideration has transnational aspects, where actions by Member States alone or lack of Community action would conflict with the requirements of the Treaty or where action at Community level would produce clear benefits by reason of its scale or effects compared with action at the level of the Member States.

Under Article 2 of the Union Treaty, these guidelines are applicable in the context of the powers conferred on the Union. To attain the objective set by the Union Treaty of establishing an area of freedom, security and justice in the European Union, any effort at approximation of the application and enforcement of penalties is therefore justified since the objectives of the proposed action cannot be sufficiently achieved by Member States' action in the framework of their national constitutional system and can therefore be better achieved by action on the part of the Union. To attain these objectives, the proposed approximation measures could refer to the various aspects of penalties that correspond somehow to four themes:

(1) what penalties can be imposed under the criminal law?

(2) how are offences prosecuted?

(3) how are penalties imposed?

(4) how are the penalties that have been imposed enforced?

The Commission considers that the problem should be seen in comprehensive terms and not merely in terms of approximating penalties themselves. It is not enough, for instance, for similar penalty levels to be set in the Member States if penalties, once imposed, are applied more flexibly or more strictly in one country than in another. Opting for a penalty that is applicable necessarily entails opting for the way in which it will be enforced.

A consistent policy on sentencing in the Union must therefore at least [9] consider the four following issues, without there being any prior judgement as to the value or feasibility of Union action on each of them:

[9] All the following factors influence criminal penalties:

(1) the level of penalties and the range of penalties available (for example, custodial penalties, alternatives to custodial penalties, fines, etc.);

(2) the rules governing prosecution (discretionary or mandatory prosecution, priorities in criminal policy etc.);

(3) the general rules of criminal law (participation, attempts, aiding and abetting, instigation, aggravating and mitigating circumstances, recidivism etc.);

(4) rules and practices regarding enforcement (different forms of conditional release, remission and reduction of sentence, amnesty, pardon, rehabilitation, involvement of judicial and other authorities in enforcing sentences, measures for personalisation of penalties to facilitate reintegration, etc.).

In considering all these questions, the Commission will also be mindful of the results of a recent study on "Harmonisation of criminal penalties in Europe" [10] by the "Unité Mixte de Recherche de Droit Comparé" in Paris. The study, which was financed under the Grotius Programme, focuses on the feasibility of harmonising the general rules of criminal law relating to sentencing and on the rules governing enforcement. The results of the study could be helpful in subsequently clarifying the issues where Union action might be envisaged.

[10] 0 "L'harmonisation des sanctions pénales en Europe". Dir: M. Delmas-Marty, G. Giudicelli-Delage, E. Lambert-Abdelgawad. Société de législation comparée. Collection de l'UMR de Droit comparé de Paris (Paris I- CNRS, vol.V), Paris, 2003.

1.2. Objectives of mutual recognition

Article 31(1)(a) of the Union Treaty provides that common action on judicial cooperation in criminal matters is to include " facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States ... in relation to proceedings and the enforcement of decisions". This provision was added at Amsterdam [11] and does not mention the principle of mutual recognition, whereby judgments and other decisions by the judicial authorities of a Member State (Member State of judgment) are recognised and, if necessary, enforced in another Member State (Member State of enforcement).

[11] 1 Signed on 2 October 1997 and in force on 1 May 1999.

The Cardiff European Council on 15 and 16 June 1998 made the first mention of this concept, borrowed from the single market, and asked the Council to determine to what extent it should be extended to the decisions of the courts of the Member States. [12]

[12] 2 Presidency Conclusions, point 39.

Mentioned at point 45(f) of the Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice, adopted on 3 December 1998, the idea of mutual recognition was taken up by the Tampere European Council in October 1999, which felt that it should be "the cornerstone of judicial cooperation in both civil and criminal matters within the Union" (points 33 to 37). The Tampere conclusions state: "Enhanced mutual recognition of judicial decisions and judgments and the necessary approximation of legislation would facilitate cooperation between authorities and the judicial protection of individual rights". Mutual recognition must therefore not only ensure that effect is given to judgments but also that this is done in such a way as to secure individual rights. By way of example, the recognition and enforcement of a judgment in a Member State must also be sought where it improves the prospects for the social rehabilitation of the offender.

The Tampere European Council asked the Council and the Commission to adopt a programme of measures to implement the principle of mutual recognition. [13]

[13] 3 Presidency Conclusions, point 37.

In its Communication to the Council and Parliament on Mutual Recognition of Final Decisions in Criminal Matters of 26 July 2000, [14] the Commission proposed basic guidelines.

[14] 4 COM(2000)495 final.

These were then spelled out in a Programme of measures to implement the principle of mutual recognition of decisions in criminal matters. [15] This programme states that the mutual recognition of judgments is a factor for certainty as to the law in the European Union since it ensures that a judgment given in one Member State will not be questioned in another. It further notes that implementing the principle of mutual recognition of judgments on criminal matters presupposes mutual trust between the Member States in their respective criminal justice systems. Such trust is based in particular on the common core of principles in their attachment to the principles of freedom, democracy, respect for human rights and fundamental freedoms and the rule of law. And mutual trust is facilitated by the approximation of national legislation, as can be seen in the experience of cooperation between the Nordic countries (see point 3.2.1.4.).

[15] 5 OJ C 12, 15.1.2001, p. 10.

The Draft Constitution confirms this method and this approached. Article III-171 provides that cooperation in criminal matters in the Union "shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States...."

1.3. Method and structure of the Green Paper

The Green Paper takes stock of the measures taken by the European Union for the approximation, mutual recognition and enforcement of criminal penalties in another Member State (Chapter II) and proceeds then to consider the situation regarding the legislation of the Member States on the general principles of criminal law, penalties and their enforcement and relevant international agreements concluded by the Member States (Chapter III, plus Annexes I, II and III).

The final part (Chapter IV) identifies the problems remaining despite the adoption of a series of Union measures for approximation and mutual recognition and the conclusion of international agreements by the Member States. That part will give examples of actual or potential legal and practical barriers to the establishment of the European area of justice. On the basis of that analysis, the Chapter will go on to consider the needs for Union action as seen by the Commission at the present time, given the legal possibilities of attaining these objectives. It will look only at the mutual recognition of custodial sentences (including the enforcement rules) and alternative sanctions. Initiatives are under discussion in the Council regarding the recognition of financial penalties and confiscation orders. The Commission will consider the question of disqualification orders in a separate Communication. Reactions to the Green Paper, and in particular the answers to the questions in this Chapter (see Annex IV, summing up all the questions), will provide a basis for adding or removing items on the list of needs identified or modifying them.

2. MEASURES TAKEN BY THE EUROPEAN UNION - A STOCK-TAKING

2.1. Approximation of sanctions

2.1.1. The Treaty on European Union

The Treaty on European Union (TEU), as last amended by the Nice Treaty, which came into force in February 2003, sets the Union the objective of providing citizens with a high level of safety within an area of freedom, security and justice (Article 29). This objective is to be attained by, among other means, approximation, where necessary, of rules on criminal matters in the Member States. In particular, Article 31(1)(e) provides for the gradual adoption of "measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking".

Under the Maastricht Treaty, approximation measures had already begun to be taken. Joint actions had laid down common definitions of offences in areas such as racism and xenophobia [16] and participation in a criminal organisation, [17] but these instruments are silent on the question of penalties.

[16] 6 OJ L 185, 24.7.1996, p. 5.

[17] 7 OJ L 351, 29.12.1998, p. 1.

2.1.2. The Vienna Action Plan

Point 46 of the Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice [18] provides for approximating the Member States' criminal law rules relating to a number of offences, within two or five years of the entry into force of the Treaty, as the case may be.

[18] 8 OJ C 19, 23.1.1999, p. 1.

There are references in particular to organised crime, terrorism and drug trafficking, where it is urgent and necessary to adopt measures establishing minimum rules relating to the constituent elements and to penalties and, if necessary, elaborate measures accordingly. The first areas in which this is envisaged might, in accordance with the Action Plan, be offences linked to organised crime, terrorism and drug trafficking such as trafficking in human beings and the sexual exploitation of children, offences against the drug-trafficking legislation, corruption, computer fraud, offences committed by terrorists, offences against the environment, offences via the Internet and money-laundering linked to these forms of crime.

2.1.3. Conclusions of the Tampere European Council

The Tampere European Council - October 1999 (paragraph 48 of the conclusions) also considered that "with regard to national criminal law, efforts to agree on common definitions, incriminations and sanctions should be focused in the first instance on a limited number of sectors of particular relevance, such as financial crime (money laundering, corruption, Euro counterfeiting), drugs trafficking, trafficking in human beings, particularly exploitation of women, sexual exploitation of children, high tech crime and environmental crime".

There is accordingly an obligation to approximate penalties, both under the Treaty and the Vienna Action Plan and in response to the political will of the European Council expressed at Tampere.

2.1.4. Instruments adopted or under negotiation

In all the areas mentioned in the Union Treaty, the Vienna Action Plan and the conclusions of the Tampere European Council there have already been initiatives from the Member States or proposals from the Commission that have been adopted or are under negotiation. They are listed here on the basis of the type of penalty:

2.1.5. Custodial sentences

The formula used to harmonise penalties has not been so much to determine effective, proportionate and dissuasive penalties as to set minimum levels for maximum penalties. The instruments adopted are the following:

-The Council Framework Decision of 29 May 2000 on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro: [19] this provides for effective, proportionate and dissuasive criminal penalties, including custodial penalties which can give rise to extradition. For certain forms of conduct covered by the Framework Decision, provision is made for terms of imprisonment, the maximum being not less than eight years.

[19] 9 OJ L 140, 14.6.2000, p. 1.

-The Council Framework Decision of 28 May 2001 on combating fraud and counterfeiting of non-cash means of payment: [20] this provides for effective, proportionate and dissuasive criminal penalties including, at least in serious cases, custodial penalties which can give rise to extradition.

[20] 0 OJ L 149, 2.6.2001, p. 1.

-The Council Framework Decision of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime: [21] this provides that the offence of money laundering will be punishable by deprivation of liberty for a maximum of not less than four years.

[21] 1 OJ L 182, 5.7.2001, p. 1.

-The Council Framework Decision of 13 June 2002 on combating terrorism: [22] this provides for effective, proportionate and dissuasive criminal penalties which can give rise to extradition. The relevant offences, where there are terrorist motives, must be punishable by custodial sentences heavier than those imposable under national law for such offences in the absence of the special intent. Offences relating to a terrorist group must be punishable by a maximum sentence of no less than eight years for participation in the activities of such groups and fifteen years for the offence of directing a terrorist group.

[22] 2 OJ L 164, 22.6.2002, p. 3.

-The Council Framework Decision of 19 July 2002 on combating trafficking in human beings: [23] this provides that Member States must ensure that the offences are punishable by effective, proportionate and dissuasive criminal penalties, which may entail extradition.

[23] 3 OJ L 203, 1.8.2002, p. 1.

-Council Directive 2002/90/EC of 28 November 2002 and the Council Framework Decision of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence: [24] Member States must ensure that the offences are punishable by effective, proportionate and dissuasive criminal penalties, which may entail extradition.

[24] 4 OJ L 328, 5.12.2002, pages 1 et 17.

-The Council Framework Decision of 27 January 2003 on the protection of the environment through criminal law: [25] this provides for effective, proportionate and dissuasive penalties including, at least in serious cases, penalties which can give rise to extradition. There is also provision for the disqualification for a natural person from engaging in an activity requiring official authorisation or approval.

[25] 5 OJ L 29, 5.2.2003, p. 55. The Commission has brought an action in the Court of Justice against the Council challenging the legality of the Framework Decision and seeking a declaration that it encroaches on Community powers in requiring the Member States to impose penalties, including criminal penalties, where that is necessary for the attainment of Community objective.

-The Council Framework Decision of 22 July 2003 on combating corruption in the private sector: [26] this provides for effective, proportionate and dissuasive penalties. Certain offences must be punishable by a maximum penalty of at least one to three years of imprisonment.

[26] 6 OJ L 192, 31.7.2003, p. 54.

-The Council Framework Decision of 22 December 2003 on combating the sexual exploitation of children and child pornography: [27] this provides for maximum criminal penalties of at least between one and three years of imprisonment.

[27] 7 OJ L 13, 20.1.2004, p. 44.

The Joint Action adopted by the Council on 21 December 1998 [28] on making it a criminal offence to participate in a criminal organisation in the Member States of the European Union does not provide for minimum levels of penalty.

[28] 8 OJ L 351, 29.12.1998, p. 1.

Other instruments are under discussion:

-Proposal for a Council Framework Decision laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking. [29] Political agreement was recorded at the (JHA) Council on 27-28 November 2003.

[29] 9 Proposal for a Council Framework Decision laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking, presented by the Commission on 23 May 2001 (COM(2001)259; OJ C 270 E, 25.9.2001, p. 144).

-Proposal for a Council Framework Decision on racism and xenophobia: [30] this provides for effective, proportionate and dissuasive penalties. For certain offences, the maximum custodial penalty must be at least between one and three years.

[30] 0 Proposal for a Council Framework Decision on racism and xenophobia, presented by the Commission on 29 November 2001 (COM (2001) 664; OJ C 75 E, 26.03.2002, p. 269).

-Proposal for a Council Framework Decision on attacks against information systems: [31] this provides for effective, proportionate and dissuasive penalties. For certain offences, the maximum custodial penalty must be at least between one and three years. Political agreement was recorded at the Council (JHA) on 27 and 28 February 2003.

[31] 1 Proposal for a Council Framework Decision on attacks against information systems, presented by the Commission on 19 April 2002 (OJ C 203 E, 27.8.2002, p. 109).

-Draft Council Framework Decision concerning the prevention and control of trafficking in human organs and tissues. [32]

[32] 2 Initiative by the Hellenic Republic for a Council Framework Decision concerning the prevention and control of trafficking in human organs and tissues (OJ C 100, 26.4.2003, p. 27).

-Proposal for a Council Framework Decision to strengthen the criminal law framework for the enforcement of the law against ship-source pollution: [33] this provides for a maximum sentence of at least five to ten years' imprisonment in the most serious cases, and for criminal or non-criminal fines. Negotiations in the Council have begun.

[33] 3 COM(2003)227, 2.5.2003.

The Council Declaration annexed to the Framework Decision on the European arrest warrant and the surrender procedures between Member States, [34] adopted on 13 June 2002, calls for further harmonisation in relation to the offences listed in Article 2(2) of the Framework Decision, [35] where there has been no approximation in the Union as yet. But this declaration certainly does not remove the need for case-by-case review of the exercise in subsidiarity and proportionality terms. Regarding the level of penalties, following consideration of the issues under the Belgian and Spanish Presidencies, the Council (JHA) on 25 and 26 April 2002 adopted conclusions on the approach to apply regarding approximation of penalties, with the establishment of ranges to determine the minimum level of the maximum penalty to be applied, as follows:

[34] 4 OJ L 190, 18.7.2002, p. 1.

[35] 5 Article 2(2) of the Decision refers to a list of 32 offences.

-Level 1: Penalties of a maximum of at least between 1 and 3 years of imprisonment

-Level 2: Penalties of a maximum of at least between 2 and 5 years of imprisonment

-Level 3: Penalties of a maximum of at least between 5 and 10 years of imprisonment

-Level 4: Penalties of a maximum of at least 10 years of imprisonment

The conclusions expressly foresee the possibility of going beyond level 4 in specific circumstances. For example, the Council Framework Decision of 13 June 2002 on combating terrorism [36] provides for maximum custodial sentences of at least fifteen years for directing a terrorist group.

[36] 6 OJ L 164, 22.6.2002, p. 3.

The presentation in the form of ranges is a purely cosmetic exercise: only the lower level of each range really counts as the maximum applicable is to be at least 1, 2, 5 or 10 years, as the case may be.

But there are no Union instruments providing for minimum penalties. It should be remembered that Declaration 8 annexed to the Amsterdam Treaty provides that a Member State which does not provide for minimum penalties cannot be obliged to adopt them.

As regards the enforcement of custodial penalties (such as suspended sentences and suspended or deferred sentencing, day-release, enforcement in instalments, electronic surveillance and home detention), there is no European Union legislation.

2.1.6. Financial penalties

As has already been seen, hitherto the Union's activities in relation to penalties have been confined to custodial penalties.

But the Commission proposal for a Council Framework Decision to strengthen the criminal law framework for the enforcement of the law against ship-source pollution [37] proposes a scale that involves setting a minimum level of maximum penalties to be imposed under the proposal for a directive that it amplifies [38] on natural and legal persons for offences that it covers. The Commission considers that fines would be more appropriate than imprisonment for such offences.

[37] 7 Supra, point 2.1.5.

[38] 8 Proposal for a Parliament and Council Directive on ship-source pollution and on the introduction of sanctions, including criminal sanctions, for pollution offences (COM(2003)92 final, 5.3.2003).

Two levels of penalty are provided for. The first, from 1% to 10% of annual turnover, concerns cases where imprisonment is not provided for by the directive. The second, from 10% to 20% of turnover, concerns more serious cases, where imprisonment could be ordered under the directive.

Other harmonisation criteria could be devised, however, and are currently being discussed in the Council. For example, the scale of the damage caused (by the relevant pollution in this case) seems unlikely to be accepted as it could be seen as condoning small-scale damage, or a minimum fine with the possibility of raising it to two thirds of the value of the cargo or freight carried by the offending ship. Discussions are continuing in the Council.

2.1.7. Disqualification

For the purposes of this Green Paper, disqualification means a penalty withdrawing or restricting rights or a preventive measure whereby a natural or legal person is prohibited, for a limited or unlimited period, from exercising certain rights, occupying a position, going to certain places or doing certain things.

A few Framework Decisions that have been or shortly will be adopted in the Union provide for the possibility of disqualifications in the exercise of certain occupations. The Council Framework Decision strengthening the penal framework to prevent the facilitation of unauthorised entry, transit and residence [39] provides for the possibility of a prohibition on practising directly or through an intermediary the occupational activity in the exercise of which the offence was committed.

[39] 9 Article 1(2) , OJ L 328, 5.12.2002, p. 1.

The Council Framework Decision on combating the sexual exploitation of children and child pornography requires Member States to take measures to ensure that a person who has been convicted of one of the offences referred to in the Framework Decision may, if appropriate, be temporarily or permanently prevented from exercising professional activities related to the supervision of children. The Framework Decision on combating corruption in the private sector contains a provision requiring Member States to take measures to ensure that where a natural person has been convicted of active or passive corruption in the private sector he may in certain circumstances be temporarily prohibited from carrying on this particular or comparable business activity in a similar position or capacity.

2.1.8. Confiscation

There has been some Union approximation of confiscation orders. The Council Framework Decision of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime [40] provides that, in so far as the offence is punishable by deprivation of liberty or a detention order for a maximum of more than one year, Member States may not make or uphold reservations in respect of Article 2 of the 1990 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime. [41] This provides that each Party to the Convention must adopt such legislative and other measures as may be necessary to enable it to confiscate instrumentalities and proceeds or property the value of which corresponds to such proceeds. Member States were required to adopt measures to comply with the Framework Decision by 31 December 2002. The Commission will shortly be presenting a report on implementation by the Member States.

[40] 0 OJ L 182, 5.7.2001, p. 1. Articles 1 and 3.

[41] 1 Council of Europe Treaty Series, No 141. Opened for signature on 8 November 1990, entered into force on 1 September 1993, accessible at http:// conventions.coe.int.

The Framework Decision applies horizontally, as the offence is punishable by deprivation of liberty or a detention order for a maximum of more than one year. But other sectoral instruments also contain specific provisions for confiscation: the Council Framework Decision on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence [42] and the proposal for a Framework Decision on minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking. [43]

[42] 2 Article 1(2) (OJ L 328, 5.12.2002, p. 17).

[43] 3 Article 4, OJ C 270 E, 25.9.2001, p. 144.

In August 2002 Denmark presented an initiative for a Council Framework Decision on confiscation of crime-related proceeds, instrumentalities and property [44] on the grounds that existing instruments had not sufficiently achieved effective cross-border cooperation with regard to confiscation as there are still a number of Member States which are unable to confiscate the proceeds from all offences punishable by deprivation of liberty for more than one year.

[44] 4 Initiative of the Kingdom of Denmark with a view to the adoption of a Council Framework Decision on Confiscation of Crime-related Proceeds, Instrumentalities and Property (OJ C 184, 2.8.2002, p. 3).

At the Council (JHA) in December 2002 political agreement was reached on this instrument, which has the purpose of approximating legislation on confiscation orders. It will enable Member States to confiscate, either wholly or in part, instrumentalities and proceeds from criminal offences punishable by deprivation of liberty for more than one year, or property the value of which corresponds to such proceeds. It represents progress over the Framework Decision of 2001 since it also contains extended confiscation powers for a list of offences.

2.1.9. Sanctions for legal persons.

In 1997 the Second Protocol of the Convention on the protection of the European Communities' financial interests was adopted. [45] This required each Member State to take the necessary measures to ensure that legal persons could be held liable for fraud, corruption and money-laundering. Since then, numerous legal instruments based on Title VI of the Treaty on European Union have been adopted or proposed containing provisions of this kind requiring the Member States to take the necessary measures to allow legal persons to be held liable for the offences referred to in the legislation and to lay down sanctions.

[45] 5 OJ C 221,19.7.1997, p. 11.

These legal instruments do not require the Member States to introduce criminal liability for legal persons - it can be administrative liability - because the criminal liability of legal persons is not an accepted concept in all Member States. The liability of legal persons is not general but confined to specific offences, and the sanctions (which may include criminal and non-criminal fines) must be effective, proportionate and dissuasive. Other sanctions may also be imposed, such as exclusion from entitlement to public benefits or aid, a temporary or permanent disqualification from the practice of commercial activities, placement under judicial supervision or a judicial winding-up order. [46]

[46] See Council Framework Decision combating fraud and counterfeiting of non-cash means of payment (Articles 7 and 8); Council Framework Decision on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro (Articles 8 and 9); Council Framework Decision on combating trafficking in human beings (Articles 4 and 5); Council Framework Decision on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence (Articles 2 and 3); Council Framework Decision on combating terrorism (Articles 7 and 8); Council Framework Decision on the sexual exploitation of children and child pornography (Articles 6 and 7); proposal for a Council Framework Decision on drug trafficking (Articles 7 and 8); proposal for a Council Framework Decision on combating racism and xenophobia (Articles 9 and 10); proposal for a Council Framework Decision on combating corruption in the private sector (Articles 6 and 7) proposal for a Council Framework Decision on attacks against information systems (Articles 9 and 10).

The Council Framework Decision on trafficking in human beings, the Framework Decision on combating the sexual exploitation of children and child pornography and the proposal for a Framework Decision on drug trafficking also provide for the temporary or permanent closure of establishments used to commit the offence.

It is clear that whenever there has been an approximation of the constituent elements of offences in a particular area at EU level it has been accompanied by an approximation of the sanctions imposed on natural and legal persons.

Moreover, horizontal legislation on confiscation and the mutual recognition of fines applies to sanctions imposed on both natural and legal persons, even for non-harmonised offences.

2.1.10. Alternative sanctions.

Given the significant differences between the criminal law of the Member States, particularly as regards the classification of punishments into primary, [47] additional [48] and ancillary [49] penalties, it is hardly surprising that the term "alternative sanction or penalty" is not interpreted in the same way in all Member States. In France, for example, an alternative penalty is one that national legislation allows the judge to impose instead of one or more primary penalties. Alternative sanctions consist of forfeiture or restriction of the rights listed in Article 131-6 of the French Criminal Code, [50] community service or a daily fine. In Germany, by contrast, the daily fine is a primary penalty because this is the only way fines are calculated, [51] and in Belgium community service was recently introduced as a primary penalty (see below).

[47] In most Member States there are two main types of punishment: deprivation of liberty and fines, which are prescribed by the legislatures either as alternatives or cumulatively.

[48] In French law an additional penalty is one that may be added to the primary penalty by the judge if expressly provided for by the legislation making the act an offence.

[49] These are penalties that follow ipso jure from the conviction and are therefore applied in conjunction with the primary penalty in certain Member States (e.g. France) without being handed down by the judge.

[50] 1) Suspension of driving licence; 2) ban on driving certain types of vehicle; 3) cancellation of driving licence; 4) confiscation of one or more vehicles belonging to the offender; 5) immobilisation of one or more vehicles belonging to the offender; 6) ban on possessing or carrying a weapon for which a licence is required for a period of up to five years; 7) confiscation of one or more weapons belonging to the offender or freely available to him; 8) withdrawal of a hunting licence; 9) ban on drawing cheques; 10) confiscation of any object that was used in or intended for use in committing the offence or was the product of the offence; 11) ban on exercising any professional or social activity where the facilities afforded by such an activity were knowingly used to prepare or commit the offence.

[51] "Tagessatzsystem", Article 40 of the German Criminal Code (StGB).

To avoid becoming bogged down in a complex comparison between the classifications used by the 15 different criminal law systems in the Member States, we suggest the following definition: for the purpose of this Green Paper, "alternative sanctions" means penalties imposed on natural persons or accepted by them in the course of a mediation or out-of-court settlement procedure which are not custodial penalties (or their implementing rules) or fines, confiscations or disqualifications. [52]

[52] Though some Member States class disqualifications as alternative sanctions.

This definition roughly corresponds to the term "community sanctions" which is defined in the annex to the Council of Europe Committee of Ministers' Recommendation No R (92) 16 on the European rules on community sanctions and measures (which sets out a range of alternatives to imprisonment): "The term "community sanctions and measures" refers to sanctions and measures which maintain the offender in the community and involve some restriction of his liberty through the imposition of conditions and/or obligations, and which are implemented by bodies designated in law for that purpose. The term designates any sanction imposed by a court or a judge, and any measure taken before or instead of a decision on a sanction as well as ways of enforcing a sentence of imprisonment outside a prison establishment." [53]

[53] See also the list of sanctions and alternative measures in point 1 to Recommendation (2000)22 of the Council of Europe Committee of Ministers on improving the implementation of the European rules on community sanctions and measures adopted on 29 November 2000 and Resolution (76)10 of the Council of Europe Committee of Ministers on certain alternative penal measures to imprisonment, adopted on 9 March 1976.

But there is no European Union legislation relating to alternative sanctions.

2.1.11. Enforcement of criminal penalties

Under Article 31(1)(c) of the Union Treaty, "Common action on judicial cooperation in criminal matters shall include ... ensuring compatibility in rules applicable in the Member States, as may be necessary to improve such cooperation", which extends to the rules on the enforcement of criminal penalties.

Although the European Union has powers in relation to the enforcement of criminal penalties, it has not yet been highly active in this field. But some research has been done, with Union support or funding. [54]

[54] 4 Examples of projects and measures:

2.1.12. Conclusions

Union approximation of substantive criminal law has not yet gone far. All areas of crime are not covered, and offences are often defined in minimalist terms or with possibilities for derogations. [55] And certain forms of potentially criminal conduct have not been defined in the instruments and are perceived differently in the Member States (e.g. attempts, participation, instigation).

[55] 5 For example, the Framework Decision of 28 May 2001 combating fraud and counterfeiting of non-cash means of payment does not cover all means of payment; the proposal for a Framework Decision on attacks against information systems, on which political agreement was reached at the Council (JHA) in February 2003, allows unlawful attacks to be excluded where security measures are not breached.

It must also be borne in mind that as regards the approximation of penalties the exercise has so far been confined to defining the penalties applicable either as effective, proportionate and dissuasive or in terms of the minimum level of the maximum penalty. Apart from imprisonment, a wide rage of penalties is available in the Member States' criminal systems.

Even if the same penalty is defined for the same offence, there are major divergences in the general rules of criminal law on the Member States, so that the penalty imposed and the penalty served may not be the same (for example in the active detection of offences, the principle of mandatory or discretionary prosecution, the level of the sentence imposed and the sentence actually served).

2.2. Mutual recognition and enforcement of criminal penalties in another Member State

Regarding the mutual recognition and enforcement of criminal penalties in another Member State, the following measures have been or are about to be prepared in the Commission or adopted by the Council:

2.2.1. European arrest warrant

On 13 June 2002 the Council adopted a Framework Decision on the European arrest warrant and the surrender procedures between Member States, [56] which entered into force on 7 August 2002. It had to be transposed by the Member States by 31 December 2003. The European arrest warrant is the first practical manifestation, in the criminal law field, of the principle of mutual recognition of judicial decisions. Its aim is to ensure that the person concerned is returned to the Member State which sentenced him (Article 1(1)). But the executing Member State may refuse to execute the European arrest warrant where the requested person is staying in, or is a national or a resident of, the executing Member State and that State undertakes to enforce the sentence or detention order in accordance with its domestic law (Article 4(6) of the Decision).

[56] OJ L 190, 18.7.2002, p. 1.

2.2.2. Recognition of financial penalties

In this area, on 8 May 2003 political agreement was reached within the Council on an initiative of the United Kingdom, France and Sweden with a view to the adoption by the Council of a Framework Decision on the application of the principle of mutual recognition to financial penalties. [57] This initiative corresponds to Conclusion 37 of the Tampere European Council and to Measure 18 in the Programme of measures to implement the principle of mutual recognition, which refers to "preparation of an instrument enabling the State of residence to levy fines imposed by final decision on a natural or legal person by another Member State". The Framework Decision will be applicable to any decision which definitively imposes a financial penalty on a natural or legal person. The decision imposing the financial penalty may be adopted either by a court or by an administrative authority, provided the person concerned has been given the opportunity to have the case heard by a court whose jurisdiction includes criminal matters.

[57] 7 OJ C 278, 2.10.2001, p. 4.

Measure 18 provides that the instrument to be adopted should also include provisions on procedure in the event of non-payment. The current draft, however, contains no such provision. The question arises, therefore, whether it ought not to be supplemented by another instrument.

2.2.3. Recognition of decisions regarding confiscation

In 2001 the Danish Government presented an initiative with a view to the adoption of a Council Framework Decision on the enforcement in the European Union of confiscation orders. [58] This initiative provides for the mutual recognition of confiscation orders between Member States and supplements the draft Framework Decision on the execution in the European Union of orders freezing assets or evidence. [59] It has not yet been adopted by the Council. It implements Measure 19, first indent, in the Programme of measures to implement the principle of mutual recognition of decisions in criminal matters ("Examine: ...in particular whether the grounds for refusal of enforcement of a confiscation measure in Article 18 of the 1990 Convention are all compatible with the principle of mutual recognition"), [60] without, however, covering the aim in the second indent of Measure 19 ("Examine ... how to improve the recognition and immediate enforcement in one Member State of another Member State's decision to protect a victim's interests, where such a decision forms part of a decision imposing a criminal conviction"), which has still to be achieved.

[58] 8 OJ C 184, 2.8.2002, p. 8.

[59] 9 In 2001, France, Sweden and Belgium presented an initiative on the execution in the European Union of orders freezing assets or evidence (OJ C 75, 7.3.2001, p. 3) which seeks to render immediately enforceable in a Member State a freezing order issued by another Member State without the enforcing Member State having to issue a fresh order.

[60] 0 "Aim: To improve enforcement in one Member State of a confiscation order, inter alia for the purpose of restitution to a victim of a criminal offence, issued in another Member State, taking into account the existence of the European Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime of 8 November 1990."

2.2.4. Recognition of decisions regarding disqualification

As far as the recognition of decisions regarding disqualification is concerned, the Programme of measures to implement the principle of mutual recognition has as its aim "gradually to extend the effects of disqualifications throughout the European Union: the effectiveness of certain sanctions in the European context depends on their being recognised and enforced throughout the Union". With a view to achieving this aim, the Programme provides for the following measures:

Measure 20: "Compile a list of the decisions regarding disqualification, prohibition and incapacity common to all Member States, handed down when sentencing a natural or legal person or further thereto."

Measure 21: "Carry out a feasibility study to determine how best to ensure, while taking full account of requirements relating to personal freedoms and data protection, that the competent authorities in the European Union are informed of any disqualification, prohibition or incapacity handed down by the courts in a Member State. The study should also consider which of the following would be the best method: (a) to facilitate bilateral information exchanges; (b) to network national criminal records offices; or (c) to establish a genuine European central criminal records office."

Measure 22: "Draw up one or more instruments enabling the listed disqualifications to be enforced in the sentenced person's Member State of residence and certain disqualifications to be extended to the Union as a whole, at least as regards certain types of offence and disqualification. The question whether a decision to ban a person from entering the territory issued in one Member State should be extended to the entire Union also needs to be dealt with in this context."

In 2002 Denmark presented an initiative "with a view to adopting a Council Decision on increasing cooperation between European Union Member States with regard to disqualifications". [61] This initiative, which is currently before the Council, applies to "disqualifications which are imposed on natural persons as part of a judgment or as a corollary of a criminal conviction, and which restrict the convicted persons' access to employment, with the exception of driving disqualifications." The draft Decision provides only for the exchange between Member States of information on disqualifications. It does not entail any mutual recognition of disqualifications. It should, however, facilitate future progress in this area in accordance with Measure 22 in the Programme of measures.

[61] 1 OJ C 223,19.9.2002, p. 17.

Driving disqualifications are covered by the European Union Convention on driving disqualifications of 17 June 1998 (see point 3.2.3.).

2.2.5. Agreements concluded between the Member States of the European Community in the context of European Political Cooperation (EPC)

In connection with the recognition of final judgments in criminal matters, several agreements concluded between the Member States of the European Community in the context of European Political Cooperation (EPC), chiefly to apply or amplify Council of Europe Conventions, need to be borne in mind. The effort made by these agreements between the Member States of the European Community has not been highly fruitful as they have not been ratified by all the Member States and reservations abound. For structural reasons, and to aid comprehension, they will be presented and analysed in the context of the Council of Europe Conventions to which they relate (Chapter 3.2., in particular points 3.2.1.2. and 3.2.1.7.)

2.2.6. Conclusions

Despite the adoption of the Framework Decision on the European arrest warrant and surrender procedures between the Member States, which constitutes major progress in mutual recognition, and even if there is reason to hope that drafts now under discussion or in preparation on the recognition of financial penalties and confiscation and disqualification decisions will be adopted in the near future, the fact remains that the range of mutual recognition instruments in the European Union is still somewhat incomplete. In particular, there are virtually no rules on the mutual recognition of custodial penalties and their enforcement in another Member State.

3. CURRENT SITUATION: NATIONAL LEGISLATION AND INTERNATIONAL AGREEMENTS

3.1. Great diversity between the Member States

The legislation of the Member States on penalties varies widely. The Commission does not intend to offer an exhaustive survey in this Green Paper but feels it would be useful to give a general overview.

3.1.1. General rules of criminal law [62]

[62] 2 The information in document 12432/01 DROIPEN 83 and in the study on Harmonisation of criminal penalties in Europe (see footnote 10) was used in preparing this Chapter.

3.1.1.1. Principles governing prosecution - mandatory or discretionary

The Member States' criminal systems are divided on the issue of mandatory or discretionary prosecution. The discretionary principle is applied in Belgium, France, Denmark, Ireland, the United Kingdom, Luxembourg and the Netherlands. In Germany, Austria, Spain, Finland, Sweden, Greece, Italy and Portugal the mandatory prosecution principle applies.

The mandatory prosecution principle is that the prosecution authorities must act - even if no complaint has been lodged - where they suspect that an offence has been committed. The discretionary prosecution principle is that the decision whether to prosecute is at the discretion of the prosecution service.

In practice, however, all legal systems combine elements of the two principles. Certain questions arise in both systems, for example the question of the evidence needed to commence a prosecution. Those that apply the mandatory prosecution principle apply discretionary criteria in certain circumstances, for example with the possibility of conditional discharge, and those applying discretionary criteria allow, for example, instructions from Prosecutors General or criminal policy guidelines from the Ministry of Justice and require reasons to be given for discharge decisions and/or appeal procedures to be available.

In the United Kingdom, for example, there are two rules: the reasonable prospect of a conviction - which is more and more widely used in countries that apply the mandatory prosecution principle - and the public interest. But in systems where the mandatory prosecution principle applies there are criteria for giving priority to certain cases and not prosecuting minor offences.

3.1.1.2. The room for manoeuvre of the criminal courts

Even if the ambition is to establish an area of freedom, security and justice in which the same offence incurs an equivalent penalty everywhere, it is clear that we have to operate with bodies of legislation that provide sets of equations but that the practical outcome will always depend on an unknown factor - the decision of a court that in every case has a discretionary power when it comes to sentencing.

But the first limit on the court's freedom at the sentencing stage flows from the basic principle that penalties must be provided for by law, so that where it holds that an offence has been committed it must pass a sentence provided for by the law for that offence. This in turn flows from the principle of legal certainty, whereby the penalty incurred for an offence must be specified by law.

The presence of aggravating and mitigating circumstances, considered below, to some extent also limits the court's freedom, as can the possibility, for example, of lowering the penalty or exempting from it.

3.1.1.3. Level of participation: aiding and abetting.

Aiding or abetting and being an accomplice are the commonest form of participation. The accomplice is defined as a person who participated in one way or another in the commission of the offence. In general, being an accomplice requires there to be two elements: a punishable principal offence and an act of aiding and abetting involving an objective component (for example aid or assistance) and a mental state (intention to participate in the offence).

By and large a distinction can be made between two models regarding penalties for participation in offences. In some Member States (for example, France, Italy, Portugal, Austria, Denmark and Ireland), any person involved in the commission of the offence can be punished as for the principal offence, regardless of level of involvement. But the court can take account of the level of participation for sentencing purposes. In other Member States (for example, Germany, Spain, Belgium, Luxembourg, Netherlands, Finland and Greece), the law makes a distinction when sentencing the principal offender and accomplices. Joint offenders and instigators are generally punished in the same way as the principal offender.

3.1.1.4. Level of completion: attempts

It can happen that the result of an offence is not achieved although acts directed towards it have been done. The absence of a result can have one of two causes: acts were commenced but suspended, or the act was completed but the result was lacking, or both.

There are generally possibilities of lower penalties for attempts than for the completed offence, either because the court has a discretion (Austria, Germany, Denmark, France and Ireland) or because there is express statutory provision (Belgium, Spain, Finland, Greece, Italy, Luxembourg, Netherlands, Portugal and United Kingdom).

In these cases the lower penalty is often calculated by reference to the penalty for the completed offence, so that if these penalties differ widely, the penalties for attempts will differ likewise.

3.1.1.5. Aggravating and mitigating circumstances

Aggravating circumstances as regards criminal liability can be general - applicable to offences generally- or specific - applicable to specific offences. For sentencing purposes, some Member States allow the courts to pass a heavier sentence in the presence of aggravating circumstances, [63] whereas others do not allow the ordinary maximum to be exceeded. [64]

[63] For example, in Greece, Italy and Portugal.

[64] For example, in Spain, Ireland and Sweden.

Regarding mitigating circumstances, all the Member States' criminal systems allow the courts to reduce the statutory penalty for a specific offence on the basis of mitigating or exonerating circumstances provided for by the law. But in systems where there are no minimum penalties, such as France, the mitigating circumstances mechanism is broadly useless. As in the case of aggravating circumstances, the systems of some Member States provide for a general list of mitigating circumstances - Spain is an example - whereas others do not provide for a list and the court weighs up the facts that might be taken to constitute mitigating circumstances - for example Belgium.

3.1.1.6. A special case - recidivism

Regarding the offender's background, recidivism can be taken into account for sentencing purposes (for example in Italy, Belgium and Austria) or as an aggravating circumstance (for example in Finland, Denmark and Spain). As regards the level of the penalty, as in the case of aggravating circumstances, some Member States provide for a penalty in excess of the standard maximum - Austria, Belgium, France, Italy, Luxembourg, Sweden and Portugal - whereas others do not allow the statutory maximum penalty to be exceeded - for example, Finland, Ireland and Spain.

It should be noted here that the Council Framework Decision of 6 December 2001 amending Framework Decision 2000/383/JHA on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro [65] requires each Member State to recognise the principle of the recognition of previous convictions under the conditions prevailing under its domestic law and, under those same conditions, shall recognise for the purpose of establishing habitual criminality final sentences handed down in another Member State for the offences referred to in the Framework Decision.

[65] OJ L329, 14.12.2001, p.3.

3.1.1.7. Concurrent offences

"Concurrent offences" means a situation where the same offender commits several offences simultaneously or successively before being finally convicted for one of them. The absence of previous convictions distinguishes this from the recidivism. Several systems - for example in Belgium - distinguish between cases where the same offender commits several separate acts punishable under the criminal law and cases where one and the same act is an offence against several different statutory provisions.

Where a person is prosecuted for related or unrelated offences in several Member States, proceedings could be transferred to a single Member State to facilitate the prosecution. Article 8(1)(d) of the European Convention on the Transfer of Proceedings in Criminal Matters 1972 [66] provides that a Contracting State may request another Contracting State to take proceedings if proceedings for the same or other offences are being taken against the suspected person in the requested State. Article 32 of the Convention provides that States concerned shall examine whether it is expedient that one of them alone shall conduct proceedings.

[66] Council of Europe, European Treaties No 73. Opened for signature on15 May 1972, entered into force on 30 March 1978. Accessible at http://conventions.coe.int/ .

The 1972 Convention provides that a Contracting State which, before the institution or in the course of proceedings is aware of proceedings pending in another Contracting State against the same person in respect of the same offence shall consider whether it can either waive or suspend its own proceedings, or transfer them to the other State. If it deems it advisable in the circumstances not to waive or suspend its own proceedings it shall so notify the other State in good time and in any event before judgment is given on the merits. In that eventuality, the States concerned shall endeavour as far as possible to determine which of them alone shall continue to conduct proceedings. But only five Member States [67] have ratified the 1972 Convention and five have not even signed it.

[67] Austria, Denmark, Netherlands, Spain and Sweden.

In a situation in which an offender commits offences against several different statutory provisions, the question of ne bis in idem arises, a fundamental principle of criminal law whereby nobody can be prosecuted or convicted twice for the same act, [68] as does the lis pendens principle whereby a prosecution cannot be brought for an offence if proceedings are already in motion for it.

[68] That is to say for the same facts as in the initial decision - same date, place and specific effects.

3.1.2. Custodial penalties

While it has become conventional for sectoral instruments approximating substantive criminal law to set minimum levels for maximum penalties in the Union, there are no common maximum penalties, and there are major differences here. The criminal systems of some Member States, such as Belgium, Greece, the United Kingdom, France and Italy, provide for life imprisonment. Others such as Spain and Portugal do not.

In general, in those Member States where there is provision for life imprisonment, there is the possibility of conditional release after a specified minimum period has been served, but that period varies very widely (from 10 years in Belgium to 15 in Germany and 20 in Ireland). In France, a minimum period of up to 30 years can be ordered.

Life imprisonment being a sentence reserved for very serious crimes, the maximum prison sentences for non-life offences also vary from one Member State to another. This ranges from 15 years in Germany to 20 in Austria and 30 in Belgium. Likewise, early release is possible after one third of the sentence has been served in Belgium, two thirds in Denmark and Germany and three quarters in Spain. These periods are usually lengthened in the case of recidivists.

As for the various modes of enforcement of custodial penalties, and before going on to consider whether there are grounds for Union action here, see the more detailed presentation in Annex I. That annex deals with suspended sentences, suspended or deferred sentencing, day-release, sentences served in instalments, electronic surveillance and home detention.

On the basis of the inventory and comparative analysis of the Member States' legislation on the various modes of enforcement of custodial penalties, it can be seen that most Member States have a relatively large variety of modes of enforcement allowing a gradual transition from prison to freedom. The approach generally flows from the desire to make use of forms of punishment that are more appropriate than firm imprisonment as a means of supporting the offender's reintegration into society and from problems linked to overcrowding in prisons. [69] The most widespread form is the suspended sentence, available in almost all the Member States. Electronic surveillance is applied in six Member States and is under test or consideration in a further five. All the other instruments (suspended or deferred sentencing, day-release, sentences served in instalments and home detention) are known and applied only in a minority of Member States.

[69] 9 In several Member States, the problem of prison overcrowding is a topic of intense public debate, for example in Belgium (see article in Le Vif/L'Express of 9.5.2003, p. 26), in France (see articles in Le Monde, 12.4. and 30.4.2003) and in Portugal (see article in Grande Reportagem, April 2003, p. 78).

3.1.3. Financial penalties

Certain Member States (such as Denmark, Spain, Portugal and Germany) apply the daily fine system, whereas others (Belgium, Luxembourg, the Netherlands, the United Kingdom and Italy) follow the traditional fixed-amount system. In some countries the two systems coexist (France, Greece, Sweden and Finland).

In the daily fine system, fines are usually determined by the national courts by the following procedure. First, the court decides the term of imprisonment that would be ordered if a prison sentence was in order. Then it determines the amount to be paid in place of each day of that period. The period set by the Member States' legislation generally begins at five days, or possibly less (in France, Finland, Greece, Spain and Germany), though in Sweden it begins at 30 days. The maximum number of days that the courts can impose varies from 150 in Sweden to 730 in Spain. The minimum amounts that the court sets per day vary between 1 euro and 10 euros, though there is a much greater variation in the maximum amounts, between 60 euros in Greece, 300 euros in Spain and 360 euros in France, all the way up to 5000 euros in Germany.

In the traditional fixed-amount system, minimum and maximum amounts reflecting the seriousness of the offence are usually provided for. Between the two extremes, the court commonly has a considerable discretion to set the fine.

In jurisdictions where the traditional fixed-amount system coexists with the daily fine system, the sentencing rules are more complicated and vary from country to country. In Finland, for example, the daily fine system is applied but for certain specific offences the fixed-amount system is used, whereas in France, the system applied depends on the status of the offence.

Whatever the fine system, the legislation or the cases in most Member States require the sentencing court to have regard to the circumstances of the case and/or the offender's financial situation.

Finally, whatever the fine system, the national legislation usually explicitly requires the sentencing court to order imprisonment as an alternative, subsidiary penalty for failure to pay the fine (Germany, Belgium, France, Netherlands, Luxembourg and Portugal).

3.1.4. Disqualification

There is a whole range of disqualification penalties or measures in the Member States' legal systems, from bans on driving certain categories of vehicles for a specified period to prohibition on entering the country or on exercising an occupation.

Driving disqualifications exist in all Member States. But certain disqualifications in relation to specific occupations (company director, armed service) or to being in specific places (football stadiums, licensed premises) do not.

There are also a series of disqualifications in the sense of deprivation of civic and civil rights ordered as secondary measures accompanying another penalty - usually imprisonment for a certain duration. Such measures relate to the right to vote or stand for election or prohibitions on exercising certain public functions.

3.1.5. Confiscations

Confiscation is usually specific (in Germany, Belgium, Denmark, Luxembourg, the Netherlands, Italy or the United Kingdom), applying to articles used in the commission of an offence and to assets derived directly from the offence or assets substituted for them and even to the income from these assets once invested. If these articles cannot be traced in the offender's assets, the court will evaluate them in money's worth and confiscate an equivalent sum (Belgium, Denmark, Luxembourg and France).

All the Member States have ratified the Council of Europe Convention of 8 November 1990 on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime. [70] But some of them have made declarations under Article 2 [71] on confiscation that they will confiscate only the proceeds of specified offences. Information gathered by the Commission for the forthcoming report on the implementation of the Council Framework Decision of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime [72] shows that a large majority of Member States comply with Article 1(a) of the decision, which prohibits reservations regarding Article 2 of the Convention. But some of them will have to review their reservations in line with the Framework Decision.

[70] 0 Accessible at: http:// conventions.coe.int.

[71] 1 Article 2 -"Confiscation measures: (1) Each Party shall adopt such legislative and other measures as may be necessary to enable it to confiscate instrumentalities and proceeds or property the value of which corresponds to such proceeds. (2) Each Party may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that paragraph 1 of this article applies only to offences or categories of offences specified in such declaration."

[72] 2 OJ L 182, 5.7.2001, p. 1.

Clearly, then, there are still divergences in the possibilities for confiscation in the Member States, and some of the States are still not in a position to confiscate the proceeds of all offences that can give rise to prison sentences of more than a year.

3.1.6. Sanctions for legal persons

There are considerable differences between the Member States as regards sanctions for legal persons. Some provide for liability - sometimes specifically criminal liability - for legal persons, as in France, Ireland, the United Kingdom, Belgium and the Netherlands. But this is not the case of, for instance, Greece, Germany, Luxembourg or Italy. There is much debate about the criminal liability of legal persons. Those who oppose the idea argue that a legal person cannot have a mind of its own and cannot therefore have a criminal intent (societas delinquere non potest). Those who support the idea see things in a very different light. They regard legal persons as more than mere legal fictions. They exist, they hold a predominant place in our society and must be liable for the offences they commit.

In the United Kingdom cases, for example, the liability of legal persons is based on the doctrine of identification. This states that there is a degree of identity between the legal person and the persons who direct it - the managers or directors whose functions in the firm are such that they receive no orders or instructions from anybody hierarchically superior to them. Where an offence is committed by a person or a group of persons identified with the organisation, it is therefore an offence by the legal person. But despite their differences from the common law systems, other Member States, France among them, provide for the criminal liability of legal persons.

3.1.7. Alternative sanctions

Non-custodial penalties and measures offer a more creative and humane way of dealing with the issue of crime and punishment. In particular, they limit the use of short prison terms, which most specialists agree are harmful. The involvement of the community (in many cases the local community) is a necessary and unique feature of the application of alternative sanctions.

Alternative sanctions therefore play an important role in crime prevention because they are much better than custodial sentences at promoting the successful rehabilitation of offenders. According to Article 29 (2) of the Union Treaty, the European Union's objective of providing citizens with a high level of safety within an area of freedom, security and justice will be achieved by preventing crime. The rehabilitation of offenders contributes directly to the prevention of re-offending.

On the basis of the inventory and comparative analysis of the Member States' legislation on alternative sanctions (Annex II), it can be seen that most Member States have introduced alternative sanctions in recent years or are in the process of doing so. The approach generally flows from the desire to make use of forms of punishment that are more appropriate than firm imprisonment as a means of supporting the offender's reintegration into society and from problems linked to overcrowding in prisons. In some Member States there have been difficulties in securing acceptance of alternative sanctions by the courts. And national legislation tends to focus on specific forms of alternative penalty - community service and mediation.

3.1.8. Enforcement of criminal penalties

To ascertain the situation in the Member States, it is necessary to undertake an inventory and comparative analysis of the Member States' legislation on the enforcement of criminal penalties. Annex III, without claiming to be exhaustive, presents the Member States' legislation on suspended sentences, day-release, early release, remission, amnesty and pardon.

Annex III shows that the differences between the Member States' legislation on the enforcement of criminal penalties are also considerable.

Suspended enforcement of a penalty is possible in only a minority of Member States, such as France and Italy. Only a few Member States have the option of day-release (Germany, Belgium, Spain, France, Italy, Portugal) while the sentence is served. The eligibility conditions, the implementing rules and the consequences of violation of the conditions imposed vary widely. Early release is possible in all Member States, but the eligibility conditions and implementing rules again vary widely. The possibility of more or less automatic remission exists in only a small number of Member States (France and Greece). The Member States' legislation on amnesty and pardon diverge widely, usually leaving the public authorities with extensive powers of discretion.

These differences are neatly illustrated by the numbers of prisoners (in absolute terms or per 100 000 inhabitants) in the Member States, though the differences do not reflect only the differences as regards the enforcement of penalties but also as regards the full set of factors in criminal law that influence the penalty. On 1 August 2003 the Commission sent the current and future Member States a questionnaire on the prison population. It has not yet received all the replies, but there is a geographical breakdown as follows: traditionally, there is a moderate approach in the Scandinavian countries (between 50 and 70 prisoners per 100 000 inhabitants), a group of Member States with a rate below 100 prisoners (Germany, Austria, Belgium, France, Italy, Greece, Luxembourg, Netherlands) and a group with a rate of between 100 and 150 prisoners per 100 000 inhabitants (Spain, Great Britain, Portugal and a few new Member States). Since some of the new Member States have rates of more than 350 prisoners per 100 000 inhabitants, it can be seen that the prison population is proportionately six times higher than in the Scandinavian countries.

3.2. An incomplete range of mutual recognition instruments

3.2.1. Mutual recognition of custodial penalties.

A series of Council of Europe Conventions, amplified by instruments agreed in European Political Cooperation (EPC) are relevant here. The main purpose of the EPC Conventions is to facilitate the application of the Council of Europe Conventions and to reinforce judicial cooperation in criminal matters between the Member States. There are also a number of regional conventions between, for instance, the Nordic countries.

3.2.1.1. European Convention of the Council of Europe of 28 May 1970 on the International Validity of Criminal Judgments

The European Convention of the Council of Europe on the International Validity of Criminal Judgments, [73] which was concluded on 28 May 1970, has been ratified by 15 of the Council of Europe's 45 members. It entered into force on 26 July 1974. Eleven Member States of the Union have signed [74] the Convention, and five have ratified it. [75] Numerous reservations have been entered by most of the contracting parties with respect to the Convention's implementation. The Convention applies to sentences involving deprivation of liberty.

[73] 3 Accessible at .

[74] 4 Austria, Belgium, Denmark, Germany, Spain, Italy, Luxembourg, Netherlands, Portugal and Sweden.

[75] 5 Austria, Denmark, Spain, Netherlands and Sweden.

According to the Convention, the sentencing State may request another Contracting State to enforce a sentence only if one or more of the conditions set out in Article 5 are fulfilled, namely: (a) if the sentenced person is ordinarily resident in the other State; (b) if the enforcement of the sentence in the other State is likely to improve the prospects for the social rehabilitation of the sentenced person; (c) if, in the case of a sentence involving deprivation of liberty, the sentence could be enforced following the enforcement of another sentence involving deprivation of liberty which the sentenced person is undergoing or is to undergo in the other State; (d) if the other State is the State of origin of the sentenced person and has declared itself willing to accept responsibility for the enforcement of that sentence; or (e) if it considers that it cannot itself enforce the sentence, even by having recourse to extradition, and that the other State can. In addition, the judgment handed down in the requesting State must be final and enforceable and the offence in respect of which the sentence has been passed must also constitute an offence under the law of the requested State ("double criminality" requirement [76]).

[76] 6 The double criminality requirement has, on the other hand, not been included in the following agreements: the cooperation agreement of 23 March 1962 between Denmark, Finland, Iceland, Norway and Sweden (known as the "Helsinki" agreement), the judicial cooperation agreement concluded in 1983 at Riyadh between certain Arab States and the 1986 Commonwealth Scheme for the Transfer of Offenders.

Enforcement requested may be refused, in whole or in part, only in one of the cases listed in Article 6. [77]

[77] 7 Grounds for refusal: (a) where enforcement would run counter to the fundamental principles of the legal system of the requested State; (b) where the requested State considers the offence for which the sentence was passed to be of a political nature or a purely military one; (c) where the requested State considers that there are substantial grounds for believing that the sentence was brought about or aggravated by considerations of race, religion, nationality or political opinion; (d) where enforcement would be contrary to the international undertakings of the requested State; (e) where the act is already the subject of proceedings in the requested State or where the requested State decides to institute proceedings in respect of the act; (f) where the competent authorities in the requested State have decided not to take proceedings or to drop proceedings already begun, in respect of the same act; (g) where the act was committed outside the territory of the requesting State; (h) where the requested State is unable to enforce the sentence; (i) where the request is grounded on Article 5.e ("if it considers that it cannot itself enforce the sanction, even by having recourse to extradition, and that the other State can") and none of the other conditions mentioned in that article is fulfilled; (j) where the requested State considers that the requesting State is itself able to enforce the sentence; (k) where the age of the sentenced person at the time of the offence was such that he could not have been prosecuted in the requested State; (l) where under the law of the requested State the sentence imposed can no longer be enforced because of the lapse of time; (m) where and to the extent that the sentence imposes a disqualification.

A sentence pronounced in the requesting State may not be enforced in the requested State except by a decision of a court in that State (Article 37). Before a court takes a decision upon a request for enforcement, the sentenced person must be given the opportunity to state his views (Article 39). The judicial decisions taken in the requested State with respect to the requested enforcement and those taken on appeal from decisions by the administrative authority referred to in Article 37 must be appealable (Article 41). The requested State is bound by the findings as to the facts in so far as they are stated in the decision or in so far as it is impliedly based on them (Article 42).

If the request for enforcement is accepted, the court will substitute for the sentence involving deprivation of liberty imposed in the requesting State a sentence prescribed by its own law for the same offence (Article 44). This sentence may, subject to the limitations mentioned below, be of a nature or duration other than that imposed in the requesting State. If this latter sentence is less than the minimum which may be pronounced under the law of the requested State, the court will not be bound by that minimum and will impose a sentence corresponding to the sentence imposed in the requesting State. In determining the sentence, the court may not aggravate the penal situation of the sentenced person as it results from the decision delivered in the requesting State.

Under the Convention, enforcement is governed by the law of the requested State and that State alone is competent to take all appropriate decisions, such as those concerning conditional release. The requesting State alone has the right to decide on any application for review of sentence. Either State may exercise the right of amnesty or pardon.

3.2.1.2. Convention of 13 November 1991 between the Member States of the European Communities on the enforcement of foreign criminal sentences

On 13 November 1991 eight Member States [78] of the European Communities signed a Convention on the enforcement of foreign criminal sentences. [79] Since it has never been ratified by any of the Member States, the Convention has never entered into force. In relations between Member States which are parties to the European Convention of the Council of Europe on the International Validity of Criminal Judgments of 28 May 1970, the 1991 Convention was to apply to the extent that it supplements the provisions of that Convention or facilitates the application of the principles contained therein (Article 20).

[78] 8 Belgium, Denmark, Germany, Greece, Spain, France, Italy and Luxembourg.

[79] 9 Accessible at http://ue.eu.int/ejn/ .

Pursuant to Article 2 of the Convention, Member States of the European Communities undertake to accord each other the widest possible cooperation with regard to the transfer of enforcement of sentences (custodial or financial penalties). The transfer of enforcement may be requested either by the sentencing State or by the administering State. Each Member State may state in a declaration those offences which it intends to exclude from the scope of the Convention. The other Member States may apply the rule of reciprocity (Article 1).

The transfer of enforcement of a sentence involving deprivation of liberty may be requested where (a) the sentenced person is in the territory of the administering State and is a national of that State or is permanently resident in its territory; or (b) the sentenced person is in the territory of the administering State and his extradition has been refused, would be refused if requested, or is not possible; or (c) the sentenced person is in the territory of the administering State and is serving or is to serve a custodial sen