RICERCA ITALIANA     

Research program

Criminal Law and Treaty establishing a Constitution for Europe

University Co-ordinator

Università degli Studi di MODENA e REGGIO EMILIA - SCIENZE GIURIDICHE - MODENA(MO)

Research Unit Leader

Luigi FOFFANI

Description

In the light of the research background outlined earlier, the specific research program of the research unit of the University of Modena and Reggio Emilia, concerns the specific impact of the process of construction of European criminal law concerning economic criminal practices and corporate policies. As already pointed out, it is a very large field that includes, among others also frauds and corruption that bear prejudices to community finances. Up until now, this field has constituted the most advanced point in the process of development of European penal law. If, however, with reference to this field there already exists an important body of research and an even larger body of legislative projects (Corpus Juris, Green Book, etc.), the same cannot be said with regard to other fields. Even though in these fields the process of "Europeanisation" of criminal policies is already quite advanced, they have not yet formed the object of systematic scholarly analysis, nor of a strategy of intervention on the part of European institutions.

The research group purports to analyse two issues: one related to the penal discipline of corporations and financial markets, the other to corporate criminal law.

1) The corporate criminal law constitutes one of the fields where there took place a spontaneous process of Europeanisation, the result of a progressive Europeanisation of civil law through numerous directives and of other acts of community law. The relationship between the "Europeanised" civil law and the sanctionative law (criminal and administrative) is very tight, but the framework formed by the national legislation is still very uneven: some legislative interventions, like the Spanish penal code of 1995, or in Italy the reform of corporate crimes of the legislative decree 61/2002, do not appear to take sufficiently into account the importance of the European dimension of the discipline and of the interests safeguarded by the criminal law provisions. The case of the Italian law of false accounting, brought before the Court of Justice of the European Communities, constitutes only an example of a larger phenomenon. It becomes therefore rather imperative for national legislators to reorganise the choices of criminalisation, and more generally of criminal intervention (and criminal-administrative), that take as starting point the European dimension and the European relevance of the interests and of the civil law. The provisions of new European Constitution, already mentioned in the research background, are very important, as they may provide for a direct intervention of the European legislator, aimed at "establishing minimal norms relative to the definition of crimes and of the sanctions in the field in question", object of policies of harmonisation.
In the field of the financial markets law, the process of harmonisation is, by contrast, more advanced, and concerns the criminal matter). In particular, the directive of 1989 has already had significant effect, as it has diffused in the entire European Union area a new offence (the so-called insider trading).
As far as this first group of study matters is concerned (the corporate law and the law of financial markets), the specific target of the research group will be a comparative law analysis that evaluates: a) the extent to which and the means through which the European law can influence the national criminal legislation; b) the prospects for an effective harmonisation of the choices of criminalisation and of the related sanctions, also in the light of the projects already proposed in the last years (in particular the "Eurodelikte" project).

2) As far as the economic criminal law is concerned, the research group intends to analyse certain fundamental questions: the issue of "responsibility for organisation of the risk assessment", the so-called precautionary principle.
In all these fields, the most diffused model of intervention (criminal and criminal-administrative) is that of "responsibility " concerning the "evaluation" of the risk. Even though this way what it is requires is not a complete elimination of the risk, but only its reduction to a minimum level, it is not however true that in this way the area of punishable acts gets reduced. In reality, these new normatives get added to the older ones.
Moreover, relative to these innovative models of incrimination there already exists a genetical mutation of the responsible subjects: the responsible (for consumer safety, safety and health at work, etc.) is no longer the addressee of precautionary norms of organisation and of rules precautionary rules emanating from the state that s/he needs to apply and whose respect s/he needs to insure. Rather, the guarantor is ever more often also the source of generation of norms. If s/he does not respect them, s/he will be responsible. S/he is, in this respect, ever more often, co-legislator and, at the same time, potential author of crimes.
The risk has thus substituted the danger as criteria for criminalisation.
The choices concerning the guarantees in important fields, like the environment, product safety, safety at the working place, etc., have accelerating effects on the development of economic criminal law as compared to the traditional law, but ultimately they influence also the latter. Moreover, there is still lacking a model of connection between the community law and the national law that is capable of preventing an indiscriminate development of criminal law, on top of, and without coordination with the (numerous) norms already in force.
One of the most urgent problems therefore appears to be that of providing for general offences that contain a selection of criminal laws that refers both to the result and to the level of conduct (actus reus), in conformity to the principles of proportionality, subsidiarity, legality and culpability (mens rea). At the same time this selection needs to be compatible also with the control exercised by the Court of Justice of the European Communities over the community sources "perceived" at national level.
Together with the model of risk criminal law, the other track of community intervention capable of changing the traditional crimes of danger is constituted by the so-called precautionary principle. The latter, as it is well known, prescribes to States obligations of preventive and repressive intervention in cases of scientific uncertainty with regard to the risk situations. The cases of scientific uncertainty generate therefore norms that are now often also criminal, and which give raise to (new) models of presumption of risks that are distinct from (traditional) models where the presumption needed to be founded in all circumstances on previous scientific laws, and not on the absence of scientific laws: an absence that the precautionary principle presupposes.
That all this is problematic with regard to the principle of reasonability and that of offensiveness needs not to be underscored. Yet it is important that the research analyses the extant European achievements with regard to this phenomenon in the light of a number of basic principles contained in the European Constitution, in addition to those of the single States.

At operational level, and with regard to the pursuit of the scientific objectives outlined here, an investigation in the two groups of matter (corporate criminal law and criminal law of the financial market) connects with other researches already conducted by the research group of University of Modena and Reggio Emilia concerning, for example, the issue of European harmonisation of economic criminal law and of criminal law of economic enterprises (the so-called "Eurodelikte" Project), societal criminal law, the reform of complimentary criminal laws, the reform of the criminal code, risk criminal law, prevention and safety at the work place, alimentary offences, culpable responsibility, causality by omission, responsibility of the producer, criminal and community subsidiarity.
Starting from a comparative and community law examination, the research will need to check the "European" level of the matter by means of four analytical steps: a) the examination of the European sources in the specified matters; b) the study of the realisation of the European norms in the various member states; c) the comparison with the Italian case; d) the check of the legitimate modes of penal intervention on the basis of national Constitutions: and therefore in the perspective of a future concurrent criminal competency, according to differentiated models, such as "Corpus Juris", the "Eurodelikte" or the "Green Books" of the European Community, as well as the text of the European Constitution.

The planing of an international congress together with all the others units research will be a very important moment in order to verify the results of our research.
After the international meeting results of the research will be published.