EN Official Journal of the European Union CE 70/27

(2004/C 70 E/029)

WRITTEN QUESTION E-3877/02

by Jorge Hernández Mollar (PPE-DE) to the Commission

(10 January 2003)

Subject: A single European penal code

The proposal for a single European penal code that would apply in all the Member States is now on the table, and at the very least this idea deserves to be examined by academics and criminologists, as it is potentially of major importance in the context of joint means of dealing with criminal offences which particularly affect the Community sphere.

The introduction of uniform penalties in the Member States, notably for such offences as drug trafficking, sexual abuse of minors, illegal trafficking in human beings and environmental crimes, could prove a highly effective means of protection for the Community as a whole against the damaging effects of those criminal activities.

Does the Commission believe that it could promote a broad discussion on the possible introduction of a single European penal code, to be facilitated by the funding of studies, debates and other means of comparing legal opinions among criminologists and other experts, which would result in a concrete recommendation on the desirability of such an initiative?

Answer given by Mr Vitorino on behalf of the Commission

(10 February 2003)

The Commission agrees with the Honourable Member that an approximation in some areas of substantive criminal law is necessary to achieve a genuine area of justice in criminal matters. The Union has already begun to approximate national rules relating to the constituent elements of criminal acts and to penalties. The Treaty of Amsterdam, the Vienna Action Plan and the Tampere European Council conclusions identify areas, which should be harmonised as a matter of priority. The degree of harmonisation is, however, not total, partly because the exercise must respect the principles of subsidiarity and proportionality in accordance with Protocol 30 to the Treaty of Amsterdam, and partly because the approach adopted is deliberately progressive.

However, the Commission has serious doubts about whether a Single European Penal Code would be a feasible or appropriate path to follow at this stage. The question of the approximation of substantive criminal law is sensitive. Member States' Penal Codes reflect different legal traditions often well-rooted in history. That is why the development of a genuine area of justice has been mainly governed by the principle of mutual recognition, with approximation of substantive law only in some particular areas. This pragmatic approach is reflected in the Commission representatives' contribution to the discussions on the Convention on the future of Europe. Each action to harmonise substantial criminal law should be justified in relation to at least one of the following criteria: the phenomenon in question is included in the list of ‘European crimes’ set out in the new Treaty and/or where the absence of action at Union level would threaten a shared European interest which is itself already the subject of a common policy. To supplement this, harmonisation is also justified where action at Union level is considered necessary to ensure the full application of mutual recognition of judicial decision and to guarantee the effectiveness of common tools for police and judicial cooperation.

Therefore, the Commission does not envisage for the time being funding any study or activity aimed at analysing the feasibility of a European Penal Code.