TABLA 2 Balance de masa para ingredientes en la formulación de un bocadillo
FORMULACION DE BOCADILLOS
7. CONTROL DE CALIDAD
One should also consider other possible limits to the EU’s competence to legislate criminal law, whether explicit or non-explicit.
Criminal law may be seen to belong to the sovereign area of the Member States. The democratic deficit at the EU level arguably supports the idea that the decision-making on criminal law should more appropriately take place at the national level to maintain legitimate criminal law.84 Article
83(3) TFEU itself provides that if ‘fundamental aspects’ of a Member State’s criminal justice system could be affected the Member State may ask that the measure be suspended. This is the so called ‘emergency brake’ available under art. 82(3) and art. 83(3) TFEU which may alleviate the Member State concerns about the creeping EU criminal law powers.85
Adopting criminal law measures against cartels specifically under art. 83(2) TFEU therefore appears to be supported inter alia by the availability of the ‘emergency brake’ procedure which may enhance the democratic legitimacy of the planned legislation.86
The principle of ultima ratio, meaning that the criminal law should be used only as a last resort is recognized by the Commission Communication ‘Towards an EU Criminal Policy’.87 Further, the Treaty on the European
Union incorporates in article 5(4) the principle of proportionality, which
81 Asp 2013 p. 153. 82 Asp 2013 p. 154. 83 Asp 2013 pp. 162-163. 84 Turner 2012, p. 4. 85 See Herlin-Karnell 2010, pp. 1117-1118. 86 See Kaiafa-Gbandi 2011, p. 25.
87 Communication from the Commission to the European Parliament, the Council, The European Economic and Social Committee and the Committee of the Regions,
may also be of relevance.88 The EU Charter of Fundamental Rights calls for
proportionality in the prescription of criminal penalties.89
The relevance of the principle of ultima ratio may however be questioned in the following context: if criminal penalties are introduced in an area where violations already attract administrative sanctions, it could be argued that the criminal penalties are adopted due to the experience that administrative penalties do not suffice. This way criminal law is not an alternative (which is the focus of the ultima ratio principle) but an additional measure.90 This is
relevant in the EU setting, where competition law infringements are already subject to administrative penalties.
Böse has touched upon the principle of protecting the legal interest and also the ultima ratio principle, which are the sub principles of the principle of proportionality. The Manifesto on European Criminal Policy sought to make the European Legislator more attentive to these principles.91 Böse is
sceptical about heavily emphasizing these principles.92 He points out that the
principles of proportionality, ultima ratio and the principle of protecting the legal interest do not limit in absolute terms criminal law, but are something to be discussed while preparing a legislative proposal.93
The Limiting Principles
Kumm has pointed out that the legislator must opt for the measure that is the least disruptive one and is necessary for the legitimate objective that addresses a common problem and sees proportionality as a limitation. He concludes that the Member States’ freedom to regulate should not be circumscribed any more than what is necessary.94 In Davies’ view also
proportionality is a good tool to limit the EU’s competence to legislate.95
The principles of subsidiarity and proportionality are relevant when considering the proper limits of the EU to legislate criminal law. In terms of the areas where Member States share competence with the EU, under the principle of subsidiarity, the EU may take action in situations where
Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies through criminal law, Brussels, 20.9.2011 COM(2011) 573 final, p. 7 88 art. 5(4) TEU: ’…the content and form of Union action shall not exceed what is
necessary to achieve the objectives of the Treaties.’ 89 See art. 49(3) Charter of Fundamental Rights. 90 Böse 2011, p. 39.
91 See European Criminal Policy Initiative, ’A Manifesto on European Criminal Policy’, Zeitschrift für Internationale Strafrechtsdogmatic, 12/2009.
92 Böse 2011, p. 35, 43.
93 Böse 2011, p. 42; See in the same volume the discussion on these principles by Petter Asp, who emphasizes the last-resort character of the criminal law in achiving the objectives set out by the Treaties, Asp 2011, p. 44.
the Member State actions have not been sufficient and the EU could act more effectively. The principle of subsidiarity is enshrined in the Treaty on European Union in art. 5(3).96 It should be born in mind however
that as per art. 3 TFEU the competition law rules fall within the exclusive competence of the EU.
The principle of conferral shows the limits of the Union competences, meaning that the boundaries of the competences are set out in the Treaties. The principles of proportionality and subsidiarity are heavily linked, as was well expressed by Asp: ‘when it comes to proportionality the measure should be necessary to achieve the aim pursued; when it comes to subsidiarity it should be necessary to act on EU level’.97
With regard to the principle of subsidiarity one should carefully observe the nulla poena sine lege parlamentaria principle in the context of criminal law which touches upon matters of sovereignty: The society is best created at the regional level, not at the supranational one is the main premise of the subsidiarity principle, this way the citizens get the best opportunities to have an impact on the decisions influencing them. Understandably one could argue that decisions with regard to criminal law are most appropriately taken at the national level within the EU, due to reasons relating to the election of the representatives and also the availability and standards attached to debates at the Member State level.98 Since criminal law is connected to the
deep underlying values of the societies, the art 4(2) TEU requirement of respect for national identities should be observed.99
The Treaty on the European Union sets out in article 5(4) the following: “Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.” The EU legislators should according to the principle show that actual contribution is achieved through the measures and that it does not reach any further than what is necessary and that the state or individual whose interests are involved, do not see an excessive effect on their interests – in other words no more force should be used than is necessary to achieve the desired result. 100 The court of justice of the EU has also extensively
tackled the principle of proportionality, and based on the Fedesa case101 it
has been argued that the principle forms a test divided into three parts” 1. Is the measure suitable to achieve a legitimate aim? “ 2 Is the measure necessary to achieve that aim? 3 Does the measure have an excessive effect
96 Consolidated version of the Treaty on European Union - Article 5 , Official Journal 115 , 09/05/2008 P. 0018 – 0018; See Turner 2012, p. 8.
97 Asp 2013 p. 183 98 Asp 2013 pp. 184-185 99 Asp 2013 p. 186 100 Turner 2012, pp. 8-9.
101 C-331/88 R v Minister of Agriculture, Fisheries and Food, ex parte Fedesa [1990 ] ECR I-4023.
on the applicant’s interests?” .102 Chalmers, Davies and Monti argue that
there is a test of necessity and suitability where the suitability refers to ‘the relationship between the means and the end’ and necessity to ‘weighing competing interests’. This way the Court may review the appropriateness of possible criminal law measures. Arguably the proportionality test is much more leniently applied to the EU institutions by the Court than to Member State measures. 103 Davies had argued that the national autonomy should
be protected from the community’s measures less worth while by giving full effect to the proportionality principle in the court’s judicial review, assessing whether the EU measure truly is so important that it warrants the Member State’s interests being affected.104 As pointed out by Jenia Turner
respecting the principle of proportionality means simultaneously that due respect is given to Article 4(2) TEU which requires the respect for national identities.105 The union legislators are however adamant that criminal
measures are necessary to combat cross-border crimes.106
In addition to the foregoing, the principle of proportionality may be understood as referring to the proportionate relationship between the severity of the penalty and the gravity of the offence which is determined by the harm and culpability, thus calling for just deserts.107 This may be
witnessed in Regulation 1/2003 art. 20, whereby it is stipulated that the calculation of fines is to have regard to the severity of the violation.108
In terms of retrospective proportionality one may separate the ordinal proportionality which sets out the requirement that individuals convicted of similar offences should be subject to penalties of equal harshness, whereas cardinal proportionality refers to question whether the perpetrator deserves to be punished in the absolute sense.109 The retrospective proportionality
is spelled out in Article 49(3) of the Charter of Fundamental Rights. Asp is doubtful of the limiting ability at the EU level.110 As opposed to that
he believes that the prospective proportionality principle could be more important if duly observed, especially the criterion of necessity, which has arguably been ignored in the area of criminal law harmonization, despite the primary importance of the proportionality principle among other EU law principles. The ultima ratio principle has a connection to the prospective
102 Chalmers, Davies & Monti 2010, p. 367. 103 Chalmers, Davies & Monti 2010, p. 368. 104 Davies 2006. p. 83. 105 Turner 2012, p. 9. 106 Turner 2012, p. 9. 107 Asp 2013 pp. 189-190 108 Asp 2013 p. 191 109 Asp 2013 pp. 199-200
proportionality principle, thus especially highlighting the importance of it from the perspective of criminal policy.111
The Principle of Legality
The principle of legality may be regarded among the most important criminal law principles and therefore must be examined briefly even when discussing a possible criminalization of cartels. It may be found in art. 7 of the ECHR. It may be divided into four sub-divisions, which have been confirmed by the ECtHR112:
1. The criminal conduct must be prescribed by the written law, also referred to as nulla poena sine lege scripta
2. The ban on retroactive criminal law, the Latin equivalent being nulla poena sine lege praevia
3. The ban on application by analogy, also called nulla poena sine lege stricta
4. Finally the principle of certainty, the requirement precisely defined law, also known as nulla poena sine lege certa.
If the EU adopted criminal law regulations the principle of legality would apply to such measures at the EU level.113
The expression nulla poena sine lege parlamentaria, means in the context of EU criminal law that from a democratic perspective criminal laws should be adopted by the representatives of the people in the parliaments due to the lengths that criminal law can go in interfering with the lives of the people. This could be regarded as a part of the principle of legality. It further corroborates the subsidiarity principle.114
Besides the principle of legality, the principle of culpability is important in the area of criminal law, and is incorporated in art. 6 of the ECHR. It means that criminal liability cannot be invoked in the absence of mens rea. It is principally the legislator who should make laws that adhere to this principle115 – thus by not enacting laws that establish liability in the
absence of culpability. Strict liability follows from omitting the tenets of the culpability principle. 116
111 Asp 2013 pp. 204-205
112 See Asp 2013 pp. 168-169; See also the discussion in section 6.2. in this work. 113 Asp 2013, p. 177.
114 Asp 2013, pp. 177-178. 115 Asp 2013, pp. 178-179. 116 Asp 2013, p. 182.
The Principle of Coherence
Besides the principles of proportionality and subsidiarity, the principle of coherence is important with regard to the emerging EU criminal law. While the principle of coherence does not get as explicit recognition in the Treaties as the principles of proportionality and subsidiarity do, the Manifesto on European Criminal Policy urges the European legislator to see to the coherence of the criminal justice systems of the Member States by not introducing measures that would require maximum penalties that would not be in harmony with the national system. Further, the Manifesto stated that ‘the European legislator must pay regard to the framework provided for in different EU-instruments’ and referred to Article 11(3) TEU which calls for coherent Union actions in the horizontal sense.117 The foregoing
is interesting with regard to competition law sanctions, which arguable are of a similar penal value as insider trading – the Commission has proposed a minimum level regarding sanctions on market abuse. Duly observing coherence is important, as Asp points out criminal law is not just a tool for attaining specified aims, but also a way of sending a moral message. When the latter function is undermined by a lack of coherence then also the former ability of criminal law will suffer. Thus EU actions might have a considerable impact on national systems and thus restraint may be in place in the absence of good grounds to act.118 With regard to the horizontal coherence, lest the
EU measures be inconsistent, the ordinal proportionality should be observed in relation to the introduction of minimum sanctions. Arguably it would be beneficial if EU criminal policy negotiations observed the aforementioned principles in order to produce coherent legislation.119 It appears that this
principle has an important bearing on a possible criminalization of cartels that remain outside the reach of criminal law at the EU level, especially now that the Commission has proposed criminal rules against market abuse.
EU Cartel Sanctions and a ‘consistent and coherent’ EU Criminal
Policy
The Commission came out with a communication with regard to the EU criminal policy in the fall of 2011, which refers to a Eurobarometer survey that showed that the EU citizens were eager to see the EU put high priority on fighting crime.120 Bearing this in mind the Commission Communication 117 See European Criminal Policy Initiative, ’A Manifesto on European Criminal
Policy’, Zeitschrift für Internationale Strafrechtsdogmatik, 2009. p. 709; Asp 2013, pp. 206-207.
118 Asp 2013 p. 207; See also on fair labeling Ashworth Andrew, 2009. p. 78 119 Asp 2013 p. 212
120 See Communication from the Commission to the European Parliament, the Council, The European Economic and Social Committee and the Committee of the
‘Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies through criminal law,’ underlines that as acknowledged by the Lisbon Treaty diversity exists among the different societies that have their own ‘basic values, customs and choices’ that the criminal law reflects. Understandably this then means that EU criminal law needs to be consistent and coherent to render added value.121 Such consistency requires due respect
of the principles of proportionality and the ultima ratio principle, also acknowledged by the Commission’s Communication ‘Towards an EU Criminal Policy’.122 The Commission states that there should exist a shared
understanding of the guiding principles in the field of EU criminal law. 123
In principle this approach by the Commission is commendable, but as pointed out by Herlin-Karnell such a cautious approach by the Commission might be undermined by the fact that ‘consistent and coherent’ criminal law could be understood to require increasingly more EU criminal law, which would conflict with the idea of giving space for the different values of the multiple societies within the EU. For instance the recent Directive on market abuse does not convince everyone that this objective is being duly observed by the Commission.124
How should the hard-core cartels be seen in this context considering that they severely impede the functioning of the free market system and cause economic damage? The legal interest that is protected is the free market economy, which is arguably of same caliber than several other legal interests that are protected by the criminal law.125
Furthermore as at the EU level the cartel control is administrative in name at least and as the EU may take over serious cartel cases from national authorities a question arises in cases where the national regime is based on criminal law: can it be considered to be ‘a coherent and consistent criminal policy’, as Harding asks, that an international cartel may be subject to a corporate fine, whereas individuals at the local level may be jailed?126 This
EU policies through criminal law, Brussels, 20.9.2011 COM(2011) 573 final, p. 2; Eurobarometer 75 (Spring 2011). Available online at http://ec.europa.eu/public_ opinion/archives/eb/eb75/eb75_publ_en.pdf. Last visited on the 20th of December
2012. P. 13
121 COM(2011) 573 final, p. 3; See also Herlin-Karnell Ester 2012c, p. 493. 122 See Manifesto on the EU Criminal Policy in 2009. Available online at http://www.
zis-online.com/dat/artikel/2009_12_383.pdf. Last accessed on the 20th of December
2012. under the heading ’2. The ultima ratio principle’; 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, Brussels, 20.9.2011 COM(2011) 573 final p. 7
123 COM(2011) 573 final, p 12; Herlin-Karnell Ester 2012c, p. 493. 124 COM (2011) 654 final; Herlin-Karnell Ester 2012c, p. 493. 125 See Matikkala 2009, p. 276.
calls for a more nuanced approach by the EU with regard to the dividing line between administrative and criminal sanctions, especially now that the Lisbon Treaty has explicitly broadened the EU criminal law powers.
It seems relevant that the EU Commission has made a proposal to introduce minimum criminal law rules for market abuses at the EU level.127
It may be asked whether it can be justified that individual cartelists go unpunished under the EU anti-cartel enforcement regime? 128
It is important to juxtapose hard-core cartels with other white-collar offences of arguably similar penal value, such as insider trading. This should be part of a ‘consistent and coherent’ EU criminal policy. The quest for a ‘consistent and coherent’ EU criminal policy should include an extensive overall evaluation of the control policy, where both the criminal penalties and administrative sanctions are compared.129