RICERCA ITALIANA     

Development of criminal law in the aereas of European interest in the perspective of the new reform proposals of the Treaties

Università degli Studi di Verona

Abstract

1. The Project of the Treaty modyfying the Treaty on the European Union and the Treaty establishing the European Community was published in October 5, 2007 with the annexed Protocols (CIG 1/1/07 REV 1), in accordance with the mandate of the Council of European Union of Bruxelles of June 26, 2007.
Accordingly, on one hand the ambitious project of “Constitutional Treaty”, approved in Rome on October 29, 2004, has been abandoned, owing to the failure to ratify on the part of a number of Member States, while on the other hand the process of the reformation of the European Union is drawing to a close, substancially acquiring its most outstanding innovations.
Among these innovations a non minor role have the ones concerning penal law in relation to the law of the European Union, to which is esplicitely aknowledged a “shared competence” with the ones of the Member States in order to combat serious and transnational crime in a number of sectors and to ensure an “effective application” of the policies of the Union in those areas that have already undergone harmonisation measures (environment, combating frauds, sectors of the Economics Law: see artt. 69 E and 69 F of the Treaty on the Fonctioning of the Union, into which has been turned the Treaty establishing the European Community, corresponding to artt. III-270 and III-271 of the abandoned Constitutional Treaty, concernign both substantive penal law and penal procedural law).
2. The reasearch moves from the >>>

Principal Investigator

Lorenzo Picotti Università degli Studi di VERONA

Research Objectives

The research aims at three final tasks.
a) Firstly, to outline the influence, in the sectors under the competence of the European Union, of the Europeanization and harmonisation processes that have developed up to now, mainly through to the instruments of the “Third Pillar”, especially the Framework Decisions involving many fields of substantive penal law (terrorism, organized crime, computer crime, trafficking in human beings etc.) and of penal procedural law (European warrant, acquisition of documentary evidence, confiscation). A strong impulse, however, has been given also by the case law and especially by the European Court of Justice, that has recently overcome the dichotomy existing between the first and the third pillars on “communitarian” matters – such as environment – admitting in such cases the competence to provide for effective obligations to punish the violation of rules which should be effective implemented (sentence September 13, 2005 C 176/03). In many fields, especially of Economics penal law (discipline of financial markets, corporate law, copyright, e commerce etc.) or concerning the protection of collective security (i.e. in working places), the harmonisation has also been partially achieved through directives that regulate the extra-penal discipline, to which the penal sanctions provided by the single Member States are accessory.
b) Secondly, to investigate into details the new penal and procedural competences provided by the project of a >>>

First Results

The results expected by the research may be divided into in-progress or functional results and final results.
The former will be formed by a reasoned survey of the normative, case law, bibliographic and empiric data concerning the various sectors of penal law an or procedural law investigated, related to the juridical-penal instruments of the European Union and, if appropriate, to international instruments.
As to the final results, they will emerge through the collation, synthesis and evaluation of the collected materials, that for each Unit will have to underline the homogeneous and heterogeneous aspects among the various legal systems not only at a legislative level but also in regard to criminal action procedure and to issues with theoretical and doctrinal importance.
Specific areas in which harmonisation and transnational cooperation have already been or are close to being achieved and those from which these goals appear more distant will so emerge.
The result will also enlight the risk profiles for the rights and guaranties of persons stemming from the growing competences and the centralisation of the choices in the field of criminal policy at a European level, that lead to privilege the needs of public security instead of the needs of freedom and respect for the private life of individuals. As to such risks, we will point out the practical remedies offered as a guarantee of the fundamental rights, both at a political level and at the level >>>

Timescale

24 months

National and international background

1. On 18 and 19 October 2007 the leaders of State and Government of the European Union have approved – with a few proposals of emendation included in specific delarations – the “Project of a Treaty modifying the Treaty on the European Union and the Treaty establishing the European Union”, the articulate text of which was published on October 5, 2007 with the annexed Protocols (CIG 1/1/07 REV 1), in conformity with the mandate of the Council of the European Union of Bruxelles of June 27, 2007. Hence, on one side the project of a “costitutional” Treaty (approved in Rome on October 9, 2004) was abandoned owing to the non-ratification on the part of some member States, on the other side the complex process of reform of the European Union is drafting to a close, substantially acquiring the most outstanding innovations outlined by the above mentioned “costitutional” Treaty. Still subject to the ratification process, the new “Reform treaty” yet stands on more consistent political perspectives, the need for it in the face of the new tasks awaiting the European Union, in the present world situation, and particularly after the enlargement to 27 Member States, being fully acknowledged. Thus, a fast final approval is to be foreseen, with important consequences on the structure of penal law-European Union law relations.
2. The research will develop starting from the important scientific basis of the studies carried out and the results achieved in the course of the previous >>>