RICERCA ITALIANA     

Criminal Law and Treaty establishing a Constitution for Europe

Università degli Studi di Verona

Abstract

1. The Treaty which institutes a Constitution for Europe, signed in Rome on 29 October 2004 and the effectiveness of which is due on 1 November 2006 after the ratification on the part of the 25 Member States, includes important innovations concerning penal law and its relationships with the European Union law; these innovations have not yet been analysed by the doctrine, and thus they represent an original and important research field.
2. Penal law has been traditionally considered alien to the competences of the European Community as it was not expressly mentioned in the Treaties and it was considered as a particular object of State monopoly. Yet, thanks to the progressive penetration of communitarian law into national juridical systems (owing to the expansive force of extra-penal rules and disciplines of communitarian competence in single areas and of many innovative interventions of the European Community Court of Justice), in the course of time a relevant phenomenon of "europeanisation" of national penal systems, and of penal science itself, has taken place.
3. Penal law has later entered the institutive Treaty of European Union of Maastricht (1992) as a mean for the achievement of its objectives, but it was included in the so called Third Pillar (that is outside communitarian rules in the strict sense of the word) and entrusted to juridical instruments characteristic of the inter-government method, requiring a transposition into the Member States and >>>

Principal Investigator

Lorenzo PICOTTI Università degli Studi di VERONA

Research Objectives

The objective of the research program, to be achieved trough the coordinated activity of five operative units, is the analysis of the influence of the new European Constitution on penal law and on penal processual law in the different areas examined by each unit. The Treaty instituting a Constitution for Europe, signed in Rome on 29 October 2004, which will become effective (after the completion of the ongoing confirmation procedures on the part of the 25 member Nations) on 1 November 2006, is in fact an evident turning point in the relationships between penal law and communitarian law or, in a larger sense, European law, as for the first time a penal competence of the European Union is expressly recognised; the European Union will be able and will have to act, with its own juridical sources (the future "European laws" and "European framework laws", in substitution of both rules and directives of communitarian law - in the strict sense of the word - and the conventions and framework decision of the so called Third Pilaster) in areas explicitally mentioned in the Constitutional Treaty itself.
In the two years of the researches, each operative unit will hence carry on the analysis of the most outstanding: economic criminality (Modena and Reggio Emilia unit), organised criminality (Catania unit), cyber crime (Verona unit), European Public Prosecutor and circulation of prove (Insubria Varese-Como unit); general aspects of the principle of legality in penal matters >>>

Timescale

24 months

National and international background

1. The analysis of the relationship between normative competences of the European Union (or Community) on one side and penal law of the member nations on the other, has shown in the last decades a rapid evolution (Bernardi, Satzger, Bacigalupo). The initial exclusion of any competence of the European Union in the penal matter, stated since the 70s (as it was considered a field both inseparably connected with the idea of state sovereignty and a peculiar expression of national culture, so that the States would never have renounced to it: Riz, Grasso) has in time been overcome by the acknowledgement of the (indirect) influence of communitarian law in many fields of penal law, particularly as far as it concerns the formulation of extra-penal precepts, punished by (national) penal sanctions, as well as the integration of "normative elements" of single (national) penal offences, or on the contrary for the effects of the exclusion of punishability or of justification to be recognized to European principles and disciplines which are the sources of rights and faculties incompatible with certain incriminations provided by national law (Bernardi, Picotti).
More in general, in the light of the jurisprudence of the European Community Court of Justice ( Decision of 21.9.1989, C 68/88) and of the national jurisdiction that in the course of time have assimilated it, it must now be considered as an unquestionable fact that the principle of primacy of communitarian law over national >>>