Equilibrio de los ingredientes para lograr la gelificación

As a starting point it may be asked whether criminal law is something exceptional in the EU law context? On the one hand, it may be pointed out that the EU law overrides national criminal law, thus not putting this area of law on a pedestal in relation to other areas of law. As opposed to that due to the severe interference that criminal law brings about and the cultural traits that it carries, it may be regarded as something special, far removed from other areas of law.1 _{The notion of the elevated status of} 1 _{Asp 2013 p. 74}

criminal law, according to Asp, owes inter alia to the rigorous criminal law safeguards, the condemnation that it carries. Moreover, ethics, tradition and sovereignty concerns of nation states highlight such understanding of criminal law, and the national constitutional provisions that grant such a position to criminal law. 2 With a view to the latter interpretation of the

status of criminal law, one may examine the implications of the expanding criminal law powers of the EU.

Originally the European community was a project to promote peace, but over time the competences covered for instance organized crime. The Maastricht Treaty further extended the criminal law powers, by introducing the third pillar, under which the unanimous Council could adopt criminal law measures. The Treaty of Amsterdam further reinforced this line of development.3

Before the Lisbon Treaty entered into force the pillar structure of the Union gave the impression that criminal law measures could be properly adopted within the confines of the area of Police and Judicial Cooperation in Criminal Matters.4 The Commission contested in 2003 the Council

framework decision regarding the criminal law rules on the protection of the environment, based on art. 29 and 31(e) in the EU Treaty, instead in the Commission’s view criminal measures should have been adopted on the basis of Article 175(1) in the former EC Treaty. The ECJ adopted the view in the Environmental crime case that based on art. 175 EC, now art. 192 TFEU, criminal measures could have been introduced ‘when the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences’ and the Union legislator may take criminal law measures that are necessary in its view, thus including the community pillar as well.5 _{Consequently based on ex art. 175 EC a directive was}

adopted.6 Further in the Ship-Source Pollution case the ECJ took the

position that ‘ the determination of the type and level of the criminal penalties to be applied does not fall within the Community’s sphere of competence.’7

By analogy such criminal powers could apply in other areas of community pillar than environmental matters, and indeed a directive introducing criminal penalties against employers of unlawfully staying third-country nationals had its basis in the former art. 63(3)(b) EC, now

2 _{Asp 2013 pp. 76-78} 3 _{Turner 2012, pp. 5-6.} 4 _{Khan 2012 p. 83.}

5 _{C-176/03 para 48.; Simonsson 2011, p. 206.}

6 _{Directive 2008/99/EC of the European Parliament and of the Council of 19} November 2008 on the protection of the environment through criminal law. OJ L 328 2008. P.28 ff.

art. 79 TFEU. The explicit wording of the aforementioned article was silent on the criminal law powers, but this did not prevent the introduction of the directive.8

In the field of intellectual property law the Commission sought to tackle counterfeit products via criminal law already back in 2003.9 This

was not however accepted by the European Parliament. In the Parliament’s view administrative sanctions are sufficient.10 This was followed by a new

proposal by the Commission.11 _{As a response to the Environmental crime}

case the Commission later amended the proposal.12

The Criminal law competences under art. 83(2) TFEU may be regarded as a systematization of the notable ECJ decisions, namely the Environmental and Ship-source pollution cases.13

Arguably Article 83 TFEU presented an explicit dilution of the sovereignty of the EU Member States in criminal matters.14

The democratic deficit at the EU level however gives support for the contention that the decision-making on criminal law should more appropriately take place at the national level to maintain legitimate criminal law. The principles of subsidiarity and proportionality that are enshrined in the Treaties give support for this as well.15

8 _{Khan 2012 p. 83; Directive 2009/52/EC of the European Parliament and of} the Council of 18 Jun. 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals. OJ L 168, 2009. p. 24.

9 _{See Simonsson 2011, p. 206; See Commission proposal for a Directive of the} European Parliament and of the Council on measures and procedures to ensure the enforcement of intellectual property rights COM(2003) 46 final. Art. 20; See also Mylly 2012.

10 _{Bulletin EU 3-2004, Internal Market (23/28)), point 1.3.53.}

11 _{Commission proposal for European parliament and council directive on criminal} measures aimed at ensuring the enforcement of intellectual property rights; Proposal for a Council Framework Decision to strenghten the criminal law framework to combat intellectual property offences’ COM(2005) 276 final.

12 _{Commission, amended proposal for a Directive of the European Parliament and of} the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights, COM(2006) 168 final.

13 _{Asp 2013 p. 127}

14 _{See article 83(2) of the TFEU establishing a broad competence for the EU to} legislate criminal law: “If the approximation of criminal law 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 harmonisation measures, directives may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned.”

4.3 ARTICLE 83(2) TFEU – THE REQUIREMENT OF A