COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies through criminal law
Date: 2011-09-20
Institutions: European Commission
Subjects: EU policy, application of EU law, approximation of laws, fight against crime, judicial cooperation in criminal matters in the EU, organised crime

EUROPEAN COMMISSION 

Brussels, 20.9.2011 
COM(2011) 573 final 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL 
COMMITTEE AND THE COMMITTEE OF THE REGIONS 

Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies 
through criminal law 

 
 
 
 
  
 
Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies 
through criminal law 

This  Communication  aims  to  present  a  framework  for  the  further  development  of  an  EU 
Criminal  Policy  under  the  Lisbon  Treaty.  The  EU  now  has  an  explicit  legal  basis  for  the 
adoption  of  criminal  law  directives  to  ensure  the  effective  implementation  of  EU  policies 
which have been subject to harmonisation measures. An EU Criminal Policy should have as 
overall  goal  to  foster  citizens'  confidence  in  the  fact  that  they  live  in  a  Europe  of  freedom, 
security and justice, that EU law protecting their interests is fully implemented and enforced 
and that at the same time the EU will act in full respect of subsidiarity and proportionality and 
other basic Treaty principles. 

A concern for EU citizens  

EU citizens consider crime an important problem  facing  the  Union.  When  asked  to  identify 
the  issues  on  which  the  European  institutions  should  focus  action  in  the  coming  years  to 
strengthen the European Union, citizens rank the fight against crime in the top four of areas of 
action.1 The EU has been taking measures in the area of criminal law for more than a decade 
in  order  to  better  fight  crime  that  has  become  increasingly  international  and  ever  more 
sophisticated. These measures have achieved some degree of approximation of definitions and 
sanction  levels  for  certain  particularly  serious  offences,  such  as  terrorism,  trafficking  in 
human beings, drug trafficking, and fraud affecting the EU financial interests.2 For lack of an 
explicit legal basis in this respect  prior to the  Lisbon Treaty3,  only  very  few  measures  have 
been  taken  for  the  purpose  of  strenghtening  the  enforcement  of  EU  policies.4  This 
Communication will focus on this aspect of EU criminal law. 

The added value of EU criminal law  

Certainly,  criminal  law  is  a  sensitive  policy  field  where  differences  amongst  the  national 
systems  remain  substantial,  for  example  regarding  sanction  types  and  levels  as  well  as  the 
classification  of  certain  conduct  as  an  administrative  or  criminal  offence.  However,  the  EU 

1 

2 

3 
4 

See Eurobarometer 75, Spring 2011. The top four areas where EU action should focus are: economic 
and monetary policy, immigration policy, health policy and the fight against crime. 
Framework  Decision  on  combating  terrorism  (2002/475/JHA),  OJ  L  164/3  of  22.6.2002;  Framework 
Decision laying down minimum provisions on the constituent elements of criminal acts and penalties in 
the  field  of  illicit  drug  trafficking  (2004/757/JHA)  of  11.11.2004;  Directive  on  preventing  and 
combating  trafficking  in  human  beings  and  protecting  its  victims  and  replacing  Council  Framework 
Decision  2002/629/JHA  OJ  L  101/1  of  15.4.2011;  Convention  on  the  protection  of  the  European 
Communities' financial interests, OJ L 316/49 of 27.11.1995. 
See, however, judgments of the European Court of Justice in Cases C-176/03 and C-440/05. 
Directive  2008/99/EC  on  the  protection  of  the  environment  through  criminal  law,  OJ  L  328/28  of 
6.12.2008; Directive 2009/123/EC amending Directive 2005/35/EC on ship-source pollution and on the 
introduction  of  penalties  for  infringements,  OJ  L  280/52  of  27.10.2009;  and  Directive  2009/52 
providing  for  minimum  standards  on  sanctions  and  measures  against  employers  of  illegally  staying 
third-country  nationals,  OJ  L  168/24  of  30.6.2009;  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, OJ L 140/1 of 14.6.2000. 

EN 

2 

   EN 

 
                                                 
can tackle gaps and shortcomings wherever EU action adds value. In view of the cross-border 
dimension of many crimes, the adoption of EU criminal law measures can help ensuring that 
criminals  can  neither  hide  behind  borders  nor  abuse  differences  between  national  legal 
systems for criminal purposes. 

Strengthening mutual trust 

Common minimum rules in certain crime areas are also essential to enhance the mutual trust 
between Member States and the national judiciaries. This high level of trust is indispensable 
for  smooth  cooperation  among  the  judiciary  in  different  Member  States.  The  principle  of 
mutual  recognition  of  judicial  measures,  which  is  the  cornerstone  of  judicial  cooperation  in 
criminal matters5, can only work effectively on this basis.  

Ensuring effective enforcement 

Criminal  law  can  play  an  important  role  to  ensure  the  implementation  of  European  Union 
policies.  These  policies  depend  on  effective  implementation  by  Member  States.  The  Union 
alone cannot make sure that its rules, ranging from environmental protection and conservation 
of  fisheries  resources  to  road  safety,  financial  services  regulation,  data  protection  and  the 
protection of the financial interests of the EU, have the desired effect for the citizen.  

Member  States  are  obliged  to  ensure  that  Union  policies  are  implemented  and  can  usually 
decide themselves on the means of enforcement. In this respect, controls and inspections play 
a crucial role. In cases where the enforcement choices in the Member States do not yield the 
desired  result  and  levels  of  enforcement  remain  uneven,  the  Union  itself  may  set  common 
rules on how to ensure implementation, including, if necessary, the requirement for criminal 
sanctions for breaches of EU law.  

Coherence and consistency 

While EU criminal law measures can play an important role as a complement to the national 
criminal  law  systems,  it  is  clear  that  criminal  law  reflects  the  basic  values,  customs  and 
choices of any given society. The Lisbon Treaty accepts this diversity.6 For this reason, it is 
particularly  important  to  ensure  that  EU  legislation  on  criminal  law,  in  order  to  have  a  real 
added value, is consistent and coherent.7  

A new legal framework 

The  legal  framework  under  the  Lisbon  Treaty  provides  fresh  opportunities  to  develop  EU 
criminal law legislation. The legal framework notably allows the EU institutions and Member 

5 
6 

7 

See Article 82 (1) TFEU. 
See Article 67 (1) TFEU: "The Union should constitute an area of freedom, security and justice with 
respect for fundamental rights and the different legal systems and traditions of the Member States". 
On  the  need  for  more  coherence  in  the  development  of  EU  criminal  law,  see,  as  an  example,  the 
Manifesto on the EU Criminal Policy of 2009 (http://www.crimpol.eu), drafted by an academic group of 
14 criminal law professors from ten Member States of the European Union. 

EN 

3 

   EN 

 
                                                 
States  to  work  together  on  a  clear  basis  towards  a  coherent  and  consistent  EU  criminal  law 
which at the same time effectively protects the rights of suspected and accused persons and 
victims and promotes the quality of justice. Prior to the Lisbon Treaty, the legal framework 
applicable  to  most  criminal  law  legislation8  had  a  number  of  shortcomings.  These  included 
mainly the requirement for unanimous approval of all Member States, consultation only of the 
European  Parliament  and  the  absence  of  the  possibility  of  infringement  proceedings  before 
the European Court of Justice to ensure the correct implementation by Member States. 

The new legal set-up gives a strong role to the European Parliament through the co-decision 
process  and  full  judicial  control  to  the  European  Court  of  Justice.  The  Council  can  adopt  a 
proposal if a qualified majority of Member States supports it. In addition, the Lisbon Treaty 
strengthens the role of national parliaments substantially. They can give their views on draft 
legislation  and  have  an  important  voice  in  monitoring  the  respect  of  the  principle  of 
subsidiarity. In the field of criminal law, this role of national parliaments is stronger than in 
the context of other EU policies.9 

Criminal  law  measures  comprise  intrusive  rules,  which  can  result  in  deprivation  of  liberty. 
This is why the Charter of Fundamental Rights – made legally binding by the Lisbon Treaty10 
– provides important limits for EU action in this field. The Charter, being the compass of all 
EU policies, provides for a binding core of rules that protects citizens. 

When legislating on substantive criminal law or criminal procedure, Member States can pull 
the  so-called  “emergency  brake”,  if  they  consider  that  proposed  legislation  touches  upon 
fundamental  aspects  of  their  national  criminal  justice  system:  in  this  case  the  proposal  is 
referred to the European Council. 

Denmark is  not  participating in  newly adopted  measures on  substantive  criminal law, while 
the United Kingdom and Ireland only participate in the adoption and application of specific 
instruments after a decision to "opt in".11  

8 

9 

10 

11 

Under  the former  EC  Treaty  while  the usual  instrument  for  criminal  law  legislation were Framework 
Decisions under the so-called "third pillar", some directives with criminal law  measures have already 
been adopted: in order to ensure the enforcement of rules concerning the protection of the environment, 
against  ship-source  pollution  and  illegal  employment  (Directives  2008/99,  2009/123  and  2009/52), 
based  on  the  jurisprudence  of  the  Court  of  Justice  (C-176/03).  Approximation  of  sanction  types  and 
levels was only possible in Framework Decisions (C-440/5).  
See  Protocol  No.  1  on  "the  role  of  national  parliaments  in  the  European  Union"  and  No.  2  on  "the 
application of the principles of subsidiarity and proportionality", in particular Article 7 (2).  
See Communication from the Commission on a Strategy for the effective implementation of the Charter 
of Fundamental Rights by the European Union – COM (2010) 573 of 19.10. 2010.  
See Protocols No. 21 and 22.  

EN 

4 

   EN 

 
 
                                                 
Why the EU should act – the added value of EU criminal law legislation 

The  Lisbon  Treaty  grants  the  EU  competence  both  in  the  field  of  criminal  procedure  and 
substantive criminal law. While it is not the role of the EU to replace national criminal codes, 
EU criminal law legislation can, however, add, within the limits of EU competence, important 
value to the existing national criminal law systems.  

•  EU  criminal  law  fosters  the  confidence  of  citizens  in  using  their  right  to  free  movement 
and  to  buy  goods  or  services  from  providers  from  other  Member  States  through  a  more 
effective fight against crime and the adoption of minimum standards for procedural rights 
in criminal proceedings as well as for victims of crime.  

•  Today,  many  serious  crimes,  including  violations  of  harmonised  EU  legislation,  occur 
across  borders.  There  is  thus  an  incentive  and  possibility  for  criminals  to  choose  the 
Member  State  with  the  most  lenient  sanctioning  system  in  certain  crime  areas  unless  a 
degree of approximation of the national laws prevents the existence of such "safe havens".  

•  Common  rules  strengthen  mutual  trust  among  the  judiciaries  and  law  enforcement 
authorities  of  the  Member  States.  This  facilitates  the  mutual  recognition  of  judicial 
measures  as  national  authorities  feel  more  comfortable  recognising  decisions  taken  in 
another Member State if the definitions of the underlying criminal offences are compatible 
and  there  is  a  minimum  approximation  of  sanction  level.  Common  rules  also  facilitate 
cooperation with regard to the use of special investigative measures in cross-border cases.  

•  EU  criminal  law  helps  to  prevent  and  sanction  serious  offences  against  EU  law  in 
important policy areas, such as the protection of the environment or illegal employment.  

1. 

SCOPE FOR EU CRIMINAL LAW 

The EU can adopt under Article 83 of the Treaty on the Functioning of the European Union 
(TFEU) directives with minimum rules on EU criminal law for different crimes.  

First of all, measures can be adopted under Article 83(1) TFEU concerning a list of explicitly 
listed  ten  offences  (the  so-called  “Euro  crimes”)  which  refers  to  terrorism,  trafficking  in 
human beings, sexual exploitation of women and children, illicit drug traficking, illicit arms 
trafficking,  money  laundering,  corruption,  counterfeiting  of  means  of  payment,  computer 
crime and organised crime.12 These are crimes that merit, by definition, an EU approach due 
to their particularly serious nature and their cross-border dimension, according to the Treaty 
itself. Most of the crime areas are already covered by pre-Lisbon legislation, which has been 
or  is  in  the  process  of  being  updated.  Additional  “Euro  crimes”  can  only  be  defined  by  the 
Council acting unanimously, with the consent of the European Parliament.  

12 

See  the  Framework  Decisions  and  Directive  cited  above,  in  footnote  3.  Several  of  those  Framework 
Decisions will be reassessed in the light of the Lisbon Treaty in the coming years, including Framework 
Decision 2000/383, as amended by Framework Decision 2001/888, in 2012.  

EN 

5 

   EN 

 
 
                                                 
Secondly, Article 83(2) TFEU allows the European Parliament and the Council, on a proposal 
from the Commission, to establish "minimum rules with regard to the definition of criminal 
offences and sanctions if the approximation of criminal laws and regulations of the Member 
States  proves  essential  to  ensure  the  effective  implementation  of  a  Union  policy  in  an  area 
which has been subject to a harmonisation measure". This clause does not list specific crimes, 
but makes the fulfillment of certain legal criteria a precondition for the adoption of criminal 
law measures at EU level. It is therefore notably in respect of Article 83(2) TFEU where an 
EU  criminal  policy  is  particularly  warranted;  and  where  this  Communication  intends  to 
provide specific guidance. Most importantly, it is in this field where the EU institutions need 
to make policy choices whether to use or not to use criminal law (instead of other measures, 
such as administrative sanctions) as an enforcement tool; and to determine which EU policies 
require the use of criminal law as an additional enforcement tool.  

Example:  The  EU's  rules  on  financial  market  behaviour  are  a  case  in  point  where  criminal 
law could be a useful additional tool to ensure effective enforcement. As the financial crisis 
has shown, financial market rules are not always respected and applied sufficiently. This can 
seriously  undermine  confidence  in  the  financial  sector.  Greater  convergence  between  legal 
regimes  in  the  Member  States,  including  in  criminal  law,  can  help  to  prevent  the  risk  of 
improper functioning of financial markets and assist the development of a level playing field 
within the internal market.13  

Apart  from  that,  Article  325  (4)  of  the  Treaty  provides  for  the  specific  possibility  to  take 
measures in  the field  of the prevention  of and  fight against fraud affecting the financial 
interests of the Union, a field where some pre-Lisbon legislation already exists.14 It is an area 
of great importance for EU taxpayers, who are funding the EU budget and who legitimately 
expect  effective  measures  against  illegal  activities  targeting  EU  public  money,  e.g.  in  the 
context of the EU's agricultural and regional funds or development aid.15  

2. 

WHICH PRINCIPLES SHOULD GUIDE EU CRIMINAL LAW LEGISLATION? 

As in national law, EU criminal law legislation must be carefully considered. Criminal law, 
whether national or European, consists of rules with a significant impact on individuals. For 
this  reason,  and  because  criminal  law  must  always  remain  a  measure  of  last  resort,  new 
legislation requires the respect of fundamental legal principles.  

2.1. 

General principles to respect  

The general subsidiarity requirement for EU legislation must be given special attention with 
regard to criminal law. This means that the EU can only legislate if the goal cannot be reached 
more effectively by measures at national or regional and local level but rather due to the scale 
or effects of the proposed measure can be better achieved at Union level.  

13 

14 

15 

See  'Communication  on  reinforcing  sanctioning  regimes  in  the  financial  sector',  COM  (2010)  716  of 
8.12. 2010. 
See Convention of 1995 on the protection of financial interests of the EU and its protocols, and Council 
Regulation (EC, Euratom) No 2988/95 of 18.12.1995 on the protection of the European Communities' 
financial interests concerning administrative sanctions, OJ L 312/1 of 23.12.1995.  
See 'Communication on the protection of the financial interests of the European Union by criminal law 
and  by  administrative  investigations  –  An  integrated  policy  to  safeguard  taxpayers'  money',  COM 
(2011) 293, of 26.5. 2011. 

EN 

6 

   EN 

 
                                                 
In addition, fundamental rights, as guaranteed in the EU Charter of Fundamental Rights and 
in the European Convention on the Protection on Human Rights and Fundamental Freedoms, 
must be respected in any policy field of the Union. Criminal law measures are fundamental 
rights-sensitive. They unavoidably interfere with individual rights, be it those of the suspect, 
of the victim or of witnesses. Ultimately, they can result in deprivation of liberty and therefore 
require particular attention by the legislator. 

2.2. 

A two-step approach in criminal law legislation 

The EU legislator should follow two steps when taking the decision on criminal law measures 
aimed  at  ensuring  the  effective  implementation  of  EU  policies  which  are  the  subject  of 
hamonising measures.  

2.2.1. 

Step 1: The decision on whether to adopt criminal law measures at all 

•  Necessity  and  Proportionality  –  Criminal  law  as  a  means  of  last  resort  ("ultima 

ratio") 

Criminal  investigations  and  sanctions  may  have  a  significant  impact  on  citizens'  rights  and 
include a stigmatising effect. Therefore, criminal law must always remain a measure of last 
resort. This is reflected in the general principle of proportionality (as embodied in the Treaty 
on  European  Union16  and,  specifically  for  criminal  penalties,  in  the  EU  Charter  of 
Fundamental  Rights17).  For  criminal  law  measures  supporting  the  enforcement  of  EU 
policies,18  the  Treaty  explicitly  requires  a  test  of  whether  criminal  law  measures  are 
"essential" to achieve the goal of an effective policy implementation.  

Therefore, the legislator needs to analyse whether measures other than criminal law measures, 
e.g. sanction regimes of administrative or civil nature, could not sufficiently ensure the policy 
implementation and whether criminal law could address the problems more effectively. This 
will require a thorough analysis in the Impact Assessments preceding any legislative proposal, 
including  for  instance  and  depending  on  the  specificities  of  the  policy  area  concerned,  an 
assessment  of  whether  Member  States’  sanction  regimes  achieve  the  desired  result  and 
difficulties faced by national authorities implementing EU law on the ground.  

2.2.2. 

Step  2:  Principles  guiding  the  decision  on  what  kind  of  criminal  law  measures  to 
adopt 

Should  Step  1  demonstrate  the  need  for  criminal  law,  the  next  question  is  which  concrete 
measures to take.  

•  Minimum rules  

EU  legislation  regarding  the  definition  of  criminal  offences  and  sanctions  is  limited  to 
"minimum  rules"  under  Article  83  of  the  Treaty.  This  limitation  rules  out  a  full 
harmonisation. At the same time, the principle of legal certainty requires that the conduct to 
be considered criminal must be defined clearly.  

16 
17 
18 

Article 5 (4) TEU. 
Article 49 (3) of the EU Charter of Fundamental Rights. 
Article 83 (2) TFEU. 

EN 

7 

   EN 

 
 
                                                 
However, an EU directive on criminal law does not have any direct effect on a citizen; it will 
have to be implemented in national law first. Therefore, the requirements for legal certainty 
are not the same as for national criminal law legislation. The key is the clarity for the national 
legislator about the results to be achieved in implementing EU legislation.  

Regarding  sanctions,  "minimum  rules"  can  be  requirements  of  certain  sanction  types  (e.g. 
fines,  imprisonment,  disqualification),  levels  or  the  EU-wide  definition  of  what  are  to  be 
considered  aggravating  or  mitigating  circumstances.  In  each  case,  the  EU  instrument  may 
only  set  out  which  sanctions  have  to  be  made  "at  least"  available  to  the  judges  in  each 
Member State.  

•  Necessity and proportionality 

The  condition  of  "necessity"  set  out  above  also  applies  on  the  level  of  deciding  which 
criminal  law  measures  to  include  in  a  particular  legislative  instrument.  The  "necessity  test" 
becomes the more important the more detailed the envisaged rules are with regard to the type 
and  level  of  sanctions  to  be  required  from  Member  States.  The  explicit  requirement  of  the 
Charter of Fundamental Rights19 that "the severity of the penalty must not be disproportionate 
to the criminal offence" applies. 

•  Clear factual evidence 

To establish the necessity for minimum rules on criminal law, the EU institutions need to be 
able to rely on clear factual evidence about the nature or effects of the crime in question and 
about  a  diverging  legal  situation  in  all  Member  States  which  could  jeopardise  the  effective 
enforcement of an EU policy subject to harmonisation. This is why the EU needs to have at its 
disposal  statistical  data  from  the  national  authorities  that  allow  it  to  assess  the  factual 
situation. As part of its follow up action, the Commission will develop plans to collect further 
statistical data and evidence to deal with the areas covered by Article 325 (4) and Article 83 
(2). 

•  Tailoring the sanctions to the crime 

The  development  of  criminal  law  legislation,  notably  to  underpin  the  effectiveness  of  EU 
policies requires also careful consideration of, for example, the following issues:  

– 

– 

whether to include types of sanctions other than imprisonment and fines to ensure a 
maximum  level  of  effectiveness,  proportionality  and  dissuasiveness,  as  well  as  the 
need for additional measures, such as confiscation; and  

whether  to  impose  criminal  or  non-criminal  liability  on  legal  persons,  in  particular 
with regard to crime areas where legal entities play a particularly important role as 
perpetrators. 

19 

Article 49 of the EU Charter of Fundamental Rights. 

EN 

8 

   EN 

 
                                                 
What is the possible content of EU minimum rules on criminal law? 

The  definition  of  the  offences,  i.e.  the  description  of  conduct  considered  to  be  criminal, 
always  covers  the  conduct  of  the  main  perpetrator  but  also  in  most  cases  ancillary  conduct 
such as instigating, aiding and abetting. In some cases, the attempt to commit the offence is 
also covered.  

All  EU  criminal  law  instruments  include  in  the  definition  intentional  conduct,  but  in  some 
cases  also  seriously  negligent  conduct.  Some  instruments  further  define  what  should  be 
considered  as  "aggravating"  or  "mitigating"  circumstances  for  the  determination  of  the 
sanction in a particular case. 

Generally,  EU  legislation  covers  offences  committed  by  natural  persons  as  well  as  by  legal 
persons  such  as  companies  or  associations.  The  latter  can  be  important  in  many  areas,  e.g. 
concerning responsibility for oil spills. However, in existing legislation, Member States have 
always  been  left  with  the  choice  concerning  the  type  of  liability  of  legal  persons  for  the 
commission of criminal offences, as the concept of criminal liability of legal persons does not 
exist in all national legal orders.  

Furthermore, EU legislation can cover rules on jurisdiction, as well as other aspects that are 
considered  part  of  the  definition  as  necessary  elements  for  the  effective  application  of  the 
legal provision.  

Regarding  sanctions,  EU  criminal  law  can  require  Member  States  to  take  effective, 
proportionate and dissuasive criminal sanctions for a specific conduct. Effectiveness requires 
that  the  sanction  is  suitable  to  achieve  the  desired  goal,  i.e.  observance  of  the  rules; 
proportionality  requires  that  the  sanction  must  be  commensurate  with  the  gravity  of  the 
conduct  and  its  effects  and  must  not  exceed  what  is  necessary  to  achieve  the  aim;  and 
dissuasiveness requires that the sanctions constitute an adequate deterrent for potential future 
perpetrators.  

Sometimes,  EU  criminal  law  determines  more  specifically,  which  types  and/or  levels  of 
sanctions are to be made applicable. Provisions concerning confiscation can also be included. 
It  is  not  the  primary  goal  of  an  EU-wide  approximation  to  increase  the  respective  sanction 
levels applicable in  the Member States  but rather to reduce the degree of variation between 
the  national  systems  and  to  ensure  that  the  requirements  of  "effective,  proportionate  and 
dissuasive" sanctions are indeed met in all Member States. 

3. 

WHICH ARE THE EU POLICY AREAS WHERE EU CRIMINAL LAW MIGHT BE NEEDED? 

Criminal law measures can be considered as an element to ensure the effective enforcement of 
EU  policies,  as  recognized  by  the  Treaty  on  the  Functioning  of  the  European  Union.  EU 
policies cover a broad variety of subjects, where common rules have been developed over the 
last decades for the well-being of citizens. These policy areas range from the customs union 
and internal market rules to the protection of the environment.  

In all these policy areas, Member States are obliged to ensure that breaches of EU law are to 
be  sanctioned  with  effective,  proportionate  and  dissuasive  penalties.  Member  States  can  in 

EN 

9 

   EN 

 
 
general choose the nature of the sanction which does not have to be criminal but could also be 
administrative.  

Where the discretion of Member States in implementing EU law does not lead to the desired 
effective  enforcement,  it  may  be  necessary  to regulate,  by  means  of  minumum  rules,  at  EU 
level  which  sanctions  Member  States  have  to  foresee  in  their  national  legislation. 
Approximating  sanction  levels  will  in  particular  be  a  consideration  if  an  analysis  of  the 
current sanction legislation of administrative or criminal nature reveals significant differences 
amongst the Member States and if those differences lead to an inconsistent application of EU 
rules.  

If  EU  action  is  required,  the  EU  legislator  needs  to  decide  whether  criminal  sanctions  are 
necessary or whether common administrative sanctions are sufficient. This will depend on a 
case-by-case  assessment  of  the  specific  enforcement  problems  in  a  policy  area  along  the 
guiding principles set out above.  

There  are  a  number  of  policy  areas  which  have  been  harmonised  and  where  it  has  been 
established  that  criminal  law  measures  at  EU  level  are  required.  This  concerns  notably 
measures to fight serious damaging practices and illegal profits in some economic sectors in 
order to protect activities of legitimate businesses and safeguard the interest of taxpayers:  

•  the financial sector, e.g. concerning market manipulation or insider trading;20  

•  the fight against fraud affecting the financial interests of the European Union, to ensure 
that  taxpayers’  money  is  protected  to  an  equivalent  degree  across  the  Union.  In  a  recent 
Communication,  the  Commission  set  out  a  range  of  tools  that  should  be  considered  to 
strengthen this protection,21 including criminal procedure, common definitions of offences 
and rules on jurisdiction.  

•  the  protection  of  the  euro  against  counterfeiting  through  criminal  law  in  order  to 

strengthen the public's trust in the security of means of payment.  

The  Commission  will  further  reflect  on  ways  how  criminal  law  could  contribute  to  the 
economic recovery by helping tackle the illegal economy and financial criminality. 

In  other  harmonised  policy  areas,  the  potential  role  of  criminal  law  as  a  necessary  tool  to 
ensure effective enforcement could also be explored further. Indicative examples could be:  

•  road transport, concerning, e.g., serious infringements of EU social, technical, safety and 

market rules for professional transports;22 

•  data protection, for cases of serious breaches of existing EU rules;23  

20 

21 

22 

See 'Communication on reinforcing sanctioning regimes in the financial sector', COM (2010) 716 final 
of 8.12. 2010, p.14. 
See 'Communication on the protection of the financial interests of the European Union by criminal law 
and  by  administrative  investigations  –  An  integrated  policy  to  safeguard  taxpayers'  money',  COM 
(2011) 293, of 26.5.2011, p. 10. 
Commission  Staff  Working  Paper  SEC  (2011)  391  of  28.3.2011,  accompanying  the  White  Paper 
'Roadmap  to  a  Single  European  Transport  Area  –  Towards  a  competitive  and  resource  efficient 
transport system', COM (2011) 144 of 28.3. 2011, paragraph 176. 

EN 

10 

   EN 

 
                                                 
•  customs rules concerning the approximation of customs offences and penalties;24 

•  environmental  protection,  if  the  existing  criminal  law  legislation  in  this  area25  requires 
further strengthening in the future in order to prevent and sanction environmental damage;  

•  fisheries  policy,  where  the  EU  has  adopted  a  "zero  tolerance"  campaign  against  illegal, 

unreported and unregulated fishing; 

•  internal  market  policies  to  fight  serious  illegal  practices  such  as  counterfeiting  and 

corruption or undeclared conflict of interests in the context of public procurement. 

These are areas which will require further assessment whether and in which areas minimum 
rules on the definition of criminal offences and sanctions may prove to be essential in order to 
ensure the effective implementation of EU legislation.  

This analysis should take into account the following considerations:  

The seriousness and character of the breach of law must be taken into account. For certain 
unlawful  acts  considered  particularly  grave,  an  administrative  sanction  may  not  be  a 
sufficiently strong response. On the same line, criminal law sanctions may be chosen when it 
is  considered  important  to  stress  strong  disapproval  in  order  to  ensure  deterrence.  The 
entering of convictions in criminal records can have a particular deterrent character. At the 
same  time,  criminal  proceedings  provide  often  for  stronger  protection  of  the  rights  of  the 
accused, reflecting the seriousness of the charge. The efficiency of the sanction system must 
be considered, as well as the extent to which and the reasons why existing sanctions do not 
achieve the desired enforcement level. The type of sanction that is considered to be the most 
appropriate  to  reach  the  global  objective  of  being  effective,  proportionate  and  dissuasive 
should  be  chosen.  An  administrative  sanction  can  often  be  decided  and  executed  without 
delay,  and 
thereby  be  avoided. 
Administrative  sanctions  may  for  this  reason  be considered in areas where, for example the 
offence  is  not  particularly  severe  or  occurs  in  large  numbers  as  well  as  in  areas  where 
administrative  sanctions  and  procedures  are  suitable  and  effective  for  other  reasons  (e.g. 
complex  economic  assessments).  In  many  cases,  administrative  law  also  provides  for  a 
broader range of possible sanctions, from fines and suspension of licenses to exclusion from 
entitlement to public benefits, which can be tailored to the specific situation. In many cases, 
administrative  sanctions  may  therefore  be  sufficient  or  even  more  effective  than  criminal 
sanctions. 

lengthy  and  resource  demanding  procedures  can 

4. 

CONCLUSION 

Even  though  the  new  legal  framework  introduced  by  the  Lisbon  Treaty  does  not 
fundamentally  alter  the  possible  scope  of  EU  criminal  law,  it  considerably  enhances  the 

23 

24 

25 

See  the  Communication  'A  comprehensive  approach  on  personal  data  protection  in  the  European 
Union', COM (2010) 609 of 4.11. 2010, p. 9. 
See Communication 'Delivering an area of freedom, security and justice for Europe's citizens – Action 
Plan implementing the Stockholm Programme', COM (2010) 171 of 20.4.2010, p. 22.  
See Directive 2008/99/EC on the protection of the environment through criminal law, OJ L 328/28 of 
6.12.2008; and Directive 2009/123/EC on ship-source pollution and on the introduction of penalties for 
infringements, OJ L 280/52 of 27.10.2009.  

EN 

11 

   EN 

 
                                                                                                                                                         
possibility to progress with the development of a coherent EU Criminal Policy which is based 
on considerations both of effective enforcement and a solid protection of fundamental rights. 
This  communication  represents  a  first  step  in  the  Commission's  efforts  to  put  in  place  a 
coherent  and  consistent  EU  Criminal  Policy by setting out how  the  EU should  use criminal 
law to ensure the effective implementation of EU policies. It needs to be designed focusing on 
the needs of EU citizens and the requirements of an EU area of freedom, security and justice, 
while fully respecting subsidiarity and the last-resort-character of criminal law.  

For  this  purpose,  the  Commission  will  draft,  in  close  cooperation  with  Parliament  and 
Council,  sample  language.  This  should  guide  the  EU  legislator  whenever  drafting  criminal 
law  provisions  setting  minimum  rules  on  offences  and  sanctions.  This  would  contribute  to 
ensure  consistency,  increase  legal  certainty  and  facilitate  implementation  of  EU  law.  The 
Commission  will  also  set  up  an  expert  group  to  assist  the  Commission  in  gathering  factual 
evidence  and  in  launching  further  discussions  about  important  legal  issues  with  a  view  to 
ensuring an efficient implementation of EU legislation into the national criminal law systems 
of Member States. This includes for example:  

- 

the relationship between criminal and non-criminal sanction systems; and  

the interpretation of criminal law notions regularly used in EU legislation, such as the 
- 
notion  of  "effective,  proportionate  and  dissuasive  sanctions",  "minor  cases"  or  "aiding  and 
abetting". 

Based  on  a  thorough  evaluation  of  existing  EU  criminal  law  measures  and  continuous 
consultation  of  Member  States  and  independent  experts,  the  Commission  will  continue  to 
develop the EU criminal policy over the coming years.  

Our vision for a coherent and consistent EU Criminal Policy by 2020: 

- EU criminal law can be an important tool to better fight crime as a response to the concerns 
of citizens and to ensure the effective implementation of EU policies. . 

- In fields of EU policy where there is an identified enforcement deficit, the Commission will 
assess  the  need  for  new  criminal  law  measures  based  on  an  evaluation  of  the  enforcement 
practice  and  in  full  respect  of  fundamental  Treaty  principles  such  as  subsidiarity  and 
proportionality.  This  concerns  notably  the  protection  of  the  functioning  of  the  financial 
markets, the protection of the financial interests of the EU, the protection of the euro against 
counterfeiting,  serious  infringements  of  road  transport  rules,  serious  breaches  of  data 
protection  rules,  customs  offences,  environmental  protection,  fisheries  policy  and  internal 
market policies to fight illegal practices such as counterfeiting and corruption or undeclared 
conflict of interests in the context of public procurement.  

- There should be a common understanding on the guiding principles underlying EU criminal 
law legislation, such as the interpretation of basic legal concepts used in EU criminal law; and 
how criminal law sanctions can provide most added value at EU level.  

-  Criminal  law  measures  should  be  firmly  grounded  in  strong  EU-wide  standards  for 
procedural rights and victims' rights in line with the EU Charter of Fundamental Rights.  

EN 

12 

   EN