Responsabilidad Social Empresarial/Corporativa

As mentioned before, the third ‘aspect’ of the criminal law dimension ofEU law is the competence of the Union and the Community to harmonise the criminal laws of the Member States.

Several unsuccesful attempts had been made to enable the Community to harmonise the criminal laws of the Member States in certain areas during the 1960’s and 1970’s, and the 1970’s saw a burst of legal literature on the topic of European criminal law.96_{In 1977, the European Parliament passed a resolu-}

tion, urging the Commission to carry out further research into criminal law harmonisation in several problem areas, amongst which the distortion of competition, and the ne bis in idem principle.97 _{After that, the matter dis-}

appeared from sight for several decades.

3.8.2 EU competences

Nowadays, theEUpresents us with a very different picture. Ever since the entry into force of the Maastricht Treaty, harmonisation of criminal law “has been a major area of activities in the Third Pillar of the EU”.98_{Nevertheless,}

approximation in the field of criminal law remains a sensitive and controversial

95 and without any margin of discretion for the Member States, but subject to the exceptions contained in Article 55 CISA, if a declaration as referred to in that article was issued by a Member State.

96 Sevenster 1992, pp. 35-37.

97 Resolution of the European Parliament of 7 March 1977, [1977] OJ C 57/55. For comments, see: Sevenster 1992, p. 37.

area of EU activity, raising many of the same issues and objections as the application of the mutual recognition principle in that field.99

One of the main problems is the narrow wording of the legal basis for hamonization in Article 31(e)TEU. According to that provision, common action on judicial cooperation includes “progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the field of organized crime, terrorism, and illicit drugs trafficking”. It has been argued that instruments which were adopted on the basis hereof, in particular theFDEAW, exceed this narrow basis.100

3.8.3 Competences of the Community

TheECTreaty does not explicitly confer upon the Community the power to define criminal offences or to require the Member States to adopt criminal sanctions in Community legislation. It was therefore long believed by, amongst others, the Member States that the Community had no legilative competence in relation to criminal law and that theEU’s legislative competence in relation to criminal law was limited to the (rather narrow) basis provided for in Title VI TEU.101_{The best known examples of a ‘criminal’ prohibition contained in}

a Community Directive is the money laundering Directive from 1991.102 _A

(voluntary) statement attached to the directive by the Member States ensures that criminal law measures would be ennacted by them before the end of 1992.103

The judgments of theECJin cases C-176/03Commission v. Council104_and

C-440/05Commission v. Council(ship source pollution)105 _{have marked im-}

portant developments in the area of harmonisation of criminal law. In case C-176/03 Commission v. Council the Court struck out Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law, because the criminal sanctions prescribed in that Frame- work Decision were based on Articles 29et seqTEU. The Court specified that where the harmonizations of of criminal law is needed to ensure the effective- ness of Community law, a measure must be adopted under the first pillar only, because the competences of theEUwithin the Third Pillar would otherwise encroach upon the competences of the Community. Because of their aim and their content, the sanctions provided for in the Framework Decision had as their main

99 Dawes & Lynskey 2008, p. 131. 100 Weyembergh 2005, p. 1569. 101 Dawes & Lynskey 2008, pp. 132-133.

102 Council Directive 91/308 of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering [1991] OJ L166/77.

103 For comments, see: Peers 2000, pp. 146-147.

104 Case C-176/03Commission v. Council[2005] ECR I-7879.

purpose the protection of the environment. These provisions could therefore have been properly adopted on the basis of Article 175EC, and should not therefore have been adopted on the basis of provisions in the Third Pillar. Similarly, in case C-440/05 the Court found that the framework decision had as its primary objective the improvement of maritime safety and the protection of the environment and that the provisions requiring the Member States to adopt criminal law sanctions could have been validly adopted on the basis of theEC Treaty. When the application of effective, proportionate and dis- suasive criminal penalties by the national authorities is essential for combating serious environmental crimes, the Community may require the Member States to adopt criminal law sanctions in order to ensure the effet utile of Community law on this point. The Court however found that the determination of thetype andlevelof the criminal penalties to be applied falls outside of the Commun- ity’s competence.

Although these judgments undoubtedly have important constitutional and institutional implications because of the differences which presently exist between the Community and the Third Pillar, the extent of the criminal law competences of the Community has remained in dispute. In both cases, the contested Framework Decisions required the Member States to introduce criminal sanctions only for certain, particularly serious environmental crimes. For now it remains to be seen whether the Community will also have certain competences to require the Member States to introduce criminal sanctions in policy areas other than environmental law.

3.9 ECCOMPETITION LAW