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Criminal Jurisdiction, the Public Dimension to ‘Effective Protection’ and the Construction of Community-Citizen Relations

Published online by Cambridge University Press:  27 October 2017

Estella Baker
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Extract

In a series of decisions the European Court of Justice [‘the Court’] has ruled that Member States must deploy their law enforcement authorities, including their criminal justice systems, so as to safeguard Community interests from threat or damage. These rulings have received attention from commentators because, amongst other things, they make it explicit that Community law has a tangible impact on matters of criminal law and justice notwithstanding the absence of a criminal legal base in the Community Treaty.

Type
Research Article
Information
Cambridge Yearbook of European Legal Studies , Volume 4 , 2001 , pp. 25 - 46
Copyright
Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2001

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References

1 See, inter alia, Albrecht, P.A. and Braum, S. ‘Deficiencies in the Development of European Criminal Law’ (1999) 5 ELJ 293 CrossRefGoogle Scholar; Delmas-Marty, M. “The European Union and Penal Law’ (1998) 4 ELJ 87 CrossRefGoogle Scholar; Harding, C.S. ‘Member State Enforcement of European Community Measures: The Chimera of ‘Effective’ Enforcement” (1997) 4 MJ 5 Google Scholar and Baker, E. ‘The Duty of National Criminal Justice Authorities to Enforce Community Law’ in Cullen, P. and Jund, S. (eds), Criminal Justice Co-operation in the EU Post-Amsterdam (Academy of European Law, 2002, forthcoming)Google Scholar. This is not the only thread in the Court’s case law through which it is apparent that Community law has an important bearing on national penal law: see also, for example, relevant Article 234 preliminary ruling cases discussed, inter alia, in Baker, E. ‘Taking European Criminal Law Seriously’ [1998] Crim LR 361 Google Scholar.

2 For general discussion see, for example, Kilpatrick, C. et al (eds.) The Future of Remedies in Europe, (Oxford, Hart Publishing, 2000)Google Scholar.

3 Arts. 64(1) EC and 33 TEU. It is, however, necessary to read these Articles with care as they apply specifically to Titles IV EC and VI TEU.

4 Title VI TEU. Originally ‘Justice and Home Affairs’, Title VI was retitled by the Treaty of Amsterdam.

5 Case C–6/64 Costa v. ENEL [1964] ECR 585; Case C–213/89 R v. Secretary of State, ex parte Factortame [1990] ECR I–2433.

6 Case C–274/96 Criminal proceedings against Horst Otto Bickel & Ulrich Franz [1998] ECR I–7637, para 17.

7 Barring special exceptions for criminal provisions: see, inter alia, Case C–148/78 Ratti [1979] ECR 1629, Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969, Case C–168/95 Criminal proceedings against Luciano Arcaro [1996] ECR I–4705.

8 This section contains a summary of an argument set out more fully in Baker (in Cullen and Jund), above n 1.

9 See further the discussions in Delmas-Marty, above n 1; Harding, above n 1.

10 Case C–265/95 [1997] ECR I–6959.

11 Case 68/88 [1989] ECR I–2965.

12 See, inter alia, Case-note by Jarvis, M. at (1998) 35 CMLRev 1371 Google Scholar; Muylle, K. ‘Angry Farmers and Passive Policemen: Private Conduct and the Free Movement of Goods’ (1998) 23 ELRev 467 Google Scholar.

13 Case C–265/95 [1997] ECR I–6959, para 65.

14 Ibid., paras 33–34.

15 Ibid., para 31.

16 Case 68/88, above n 11.

17 Ibid., paras 24–25.

18 The principle of equivalence is also sometimes referred to as the principle of assimilation: see, for example, Harding, above n 1.

19 See, inter alia, Cases C–46 and 48/93 Brasserie du Pêcheur v. Germany and R v. Secretary of State for Transport, ex parte Factortame Ltd. [1996] ECR I–1029; Case 199/82 San Giorgio [1983] ECR 3595.

20 It is possible to identify plausible alternative interpretations. For example, effectiveness might be conceptualised in economic terms instead: see, for example, Goldblatt, P. and Lewis, C. Reducing Offending: An Assessment of Research Evidence on Ways of Dealing with Offending Behaviour, Home Office Research Study 187 (Home Office, 1998)Google Scholar.

21 For full argument on this point see Baker (in Cullen and Jund), above n 1.

22 Case C– 265/95 [1997] ECR I–6959, paras 48–9.

23 This is consistent with the standard account: see, inter alia, Albrecht and Braum, above n 1; Delmas-Marty, above n 1.

24 Case 11/70 Internationale Handelsgesellschaft mbH v. Einfuhr-und-Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125; Brunner v. The European Union Treaty [1994] 1 CMLR 57.

25 Ashworth, A.J. Principles of Criminal Law 3rd edn. (Oxford, OUP, 1999) 60 Google Scholar.

26 It is interesting to consider the nature of this process in the context of discussions elsewhere of the inability of nation states effectively to deal with crime problems: see especially Garland, D. ‘The Limits of the Sovereign State: Strategies of Crime Control in Contemporary Society’ (1996) 36 Brit J Crim 445 CrossRefGoogle Scholar.

27 For relevant domestic case law see Shaw v. DPP [1962] AC 220; Knuller v. DPP [1973] AC 435; R v. R [1992] 1 AC 599; C v. DPP [1996] AC 1. One reason for such a prohibition is that the creation of offences by this method is in potential violation of Art. 7 ECHR.

28 In the light of the decision in Commission v. Greece (above n 11) it is clear, for example, that Greece was not the only Member State that had failed to make adequate legal provision to deal with the problem of fraud. See further Passas, N. and Nelken, D. ‘The Thin Blue Line Between Legitimate and Criminal Enterprises: Subsidy Frauds in the European Community’ (1993) 19 Crime, Law and Social Change 223 CrossRefGoogle Scholar.

29 The list that follows does not purport to be exhaustive.

30 See the classic debates between H.L.A. Hart and Lord Devlin, on the one hand, and John Stuart Mill and Sir James Fitzjames Stephen, on the other, which are usefully summarised in Hart, H.L.A. Law, Liberty and Morality (Oxford, OUP, 1963)Google Scholar.

31 This observation raises the question of the status of Member States’ criminal laws with respect to Article 151 EC which, in paragraph 1, asserts that the Community will respect their ‘national and regional diversity’.

32 For general discussions of the democratic deficit within the European Union see, inter alia, Curtin, D. ‘The Fundamental Principle of Open Decision-Making and EU (Political) Citizenship’ in O’Keeffe, D. and Twomey, P. (eds.) Legal Issues of the Amsterdam Treaty (Oxford, Hart Publishing, 1999)Google Scholar; de Búrca, G. ‘The Quest for Legitimacy in the European Union’ (1996) 59 MLR 349 CrossRefGoogle Scholar; Douglas-Scott, S. Constitutional Law of the European Union (London, Longman, 2002) ch. 3 Google Scholar; Majone, G. ‘Europe’s ‘Democratic Deficit’: the Question of Standards’ (1998) 4 ELJ 5 CrossRefGoogle Scholar.

33 Furthermore, of course, the Member States have the opportunity to intervene in proceedings before the Court, thereby contributing to its decision-making process.

34 See, for example, the emphasis placed on the need to take account of public opinion in formulating proposals for the reform of sentencing: Home Office, Making Punishments Work: Report of a Review of the Sentencing Framework for England and Wales (Home Office, 2001).

35 See relevant discussions in, inter alia, Hough, M. and Roberts, J.V. Attitudes to Punishment: Findings from the British Crime Survey, Home Office Research Study 179 (Home Office, 1998)Google Scholar; Home Office, above n 34.

36 Case C–265/95, above n 10.

37 Case 68/88, above n 11.

38 See further the discussion of compliance below.

39 Case 231/83 [1985] ECR 305.

40 Case C–265/95, above n 10, para 58. For further discussion see Baker, E. ‘Policing, Protest and Free Trade: Challenging Police Discretion under Community Law’ [2000] Crim LR 95 Google Scholar; Barnard, C. and Hare, I. ‘The Right to Protest and the Right to Export: Police Discretion and the Free Movement of Goods’ (1997) 60 MLR CrossRefGoogle Scholar.

41 See especially Bottoms, A.E. ‘Morality, Crime, Compliance and Public Policy’ in Bottoms, A.E. and Tonry, M. (eds) Ideology, Crime and Criminal Justice (Cullompton, Willan, 2002)Google Scholar and also von Hirsch, A. et al. Criminal Deterrence and Sentence Severity: An Analysis of Recent Research (Oxford, Hart Publishing, 1999)Google Scholar.

42 Bottoms, above n 41 at 36–37.

43 Ibid. at 36–37 where the significance for the perceived legitimacy of criminal justice agencies of the fairness of the processes according to which individuals are treated when they come into contact with them is highlighted.

44 The continuing predominately economic ethos of the Community increases the chances that such clashes of values will occur between fulfilment of Community obligations and meeting citizens’ expectations regarding conventional law and order objectives. For a domestic illustration of a clash of this type see R v. Chief Constable of Sussex, ex parte International Traders Ferry Ltd. [1999] 1 All ER 129 discussed in Baker, above n 40; Barnard and Hare, above n 40. See also the general discussion in Taylor, I. Crime in Context (Cambridge, Polity, 1999)Google Scholar.

45 For an excellent discussion of this aspect of criminal law see Lacey, N. and Wells, C. Reconstructing Criminal Law: Text and Materials 2nd ed. (London, Butterworths, 1998) ch. 2 Google Scholar.

46 There is a link between this idea and the argument developed by Bottoms discussed in the text, above n 41–43.

47 Case 231/83, above n 39.

48 Case C–265/95, above n 10, paras 52–53.

49 See further Lacey and Wells, above n 45.

50 For the theory behind this assertion see the Commission’s White Paper, Completing the Internal Market, COM(85) 310, discussed in Craig, P. and de Búrca, G. EU Law: Text, Cases and Materials 2nd ed. (Oxford, OUP, 1998), ch. 26 Google Scholar.

51 Now contained in Arts. 17–22EC.

52 For general discussions of citizenship see, inter alia, Delanty, G. ‘Models of Citizenship: Defining European Identity and Citizenship’ (1997) 1 Citizenship Studies 285 CrossRefGoogle Scholar; Douglas-Scott, above n 32, ch 14; O’Leary, S. ‘Putting Flesh on the Bones of European Union Citizenship’ (1999) 24 ELRev 68 Google Scholar; Shaw, J. ‘The Interpretation of European Union Citizenship’ (1998) 61 MLR 293 CrossRefGoogle Scholar; Shore, C. Building Europe: The Cultural Politics of European Integration (London, Routledge, 2000)Google Scholar, ch. 3; Soysl, , ‘Changing Citizenship in Europe: Remarks on Postnational Membership and the National State’ in Cesarani, D. and Fulbrook, M. (eds) Citizenship, Nationality and Migration in Europe (London, Routledge, 1996)Google Scholar; Weiler, J. The Constitution of Europe (Cambridge, CUP, 1999)Google Scholar, ch. 10.

53 Art. 17(1) EC states that ‘every person holding the nationality of a member state shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship.’

54 Confirmed by Case C–192/99 R v. Secretary of State for the Home Department, ex parte Kaur [2001] ECR I–2037.

55 See, for example, the analysis in Hervey, T. ‘Migrant Workers and their Families in the European Union: the Pervasive Market Ideology of Community Law’ in Shaw, J. and More, G. (eds.) New Legal Dynamics of European Union (Oxford, Clarendon, 1995)Google Scholar.

56 Arts. 18–21EC.

57 See, inter alia, Cases C–64 and 65/96 Uecker, Jacquet [1997] ECR I–3171; Case C–274/96 Criminal Proceedings against Horst Otto Bickel and Ulrich Franz [1998] ECR I–7637; Case C–86/96 Martinez Sala v. Freistaat Bayern [1998] ECR I–2691; Case C–378/97 Florus Ariël Wijsenbeek [1999] ECR I–6207; C–192/99 R v. Secretary of State for the Home Department, ex parte Kaur [2001] ECR I–2037. For general discussion see Fries, S. and Shaw, J. ‘Citizenship of the Union: First Steps in the European Court of Justice’ (1998) 4 EPL 533 Google Scholar; Toner, H. ‘Judicial Interpretation of European Union Citizenship—Transformation or Consolidation?’ (2000) 7 MJ 158 Google Scholar.

58 There are some important caveats to this assertion that concern the uneven distribution of ‘stakes’ in Community assets and of opportunities to attain material and other aspirations through legitimate means: see further the general discussion in Taylor, above n 44.