RICERCA ITALIANA     

Research program

Criminal Law and Treaty establishing a Constitution for Europe

University Co-ordinator

Università degli Studi di FERRARA - SCIENZE GIURIDICHE - FERRARA(FE)

Research Unit Leader

Alessandro BERNARDI

Description

In the light of the emergent debate concerning the attribution to the EU of a legislative competence in criminal matters, it is necessary to assess the feasibility of such an attribution in relation to the fundamental principles governing criminal law. More in details, the relationship between the criminal law competence of the EU and the principle of legality requires three different traces of analysis: the first trace regards the ratio underlying the principle of legality and its peculiarities in the national and European contexts; the second regards the different phases of the EU law-making process, in order to weigh the quantum of legality existing in each phase; the third regards the reforms passed with the Treaty establishing a Constitution for the EU, in the view of finding a compromise between supranational legislative powers and the national democratic principles.
The aforesaid traces of analysis will run in parallel during the two years of research. During the first year a static-descriptive approach will prevail in the analysis of the principle of legality, on the basis of the results of the literature and of the case-law on the subject. During the second year this approach will be flanked by the study of the most recent legislation, namely the Constitutional Treaty of the EU. The aim is to consider whether the national standards of legality are respected at European level and whether those standards allows a EU-competence in criminal matters.
In order to examine more in details the two-years project of research, the following elements must be pointed out.
A) During the first year, the research will focus on the development of the principle of legality at national and European level, in the light of national legislation (Constitution and Criminal Code), of Constitutional Court case-law, of EU Treaties, of the ECCJ case-law and of the European law literature. As concerns the national level, the principle nullum crimen sine lege will be especially investigated: in particular, the ratio of this principle within the national legal system will be considered, with the aim to verify what legislative acts are consistent with it. From this standpoint, the attention will focus especially on the decreti legge and the decreti legislativi. On the basis of the aforesaid comprehensive analysis of the case-law and of the literature, it must be considered if the elaboration of the literature concerning the principle of legality is put into practice by the case-law.
In parallel, the investigation of the principle of legality at European level will be particularly centred on how the ECCJ, especially when asked by the national Constitutional Courts, perceives and implements the principle in question. The research will also underline how the ECCJ acknowledges certain fundamental principles stated under the ECHR and the national Constitutions, in order to integrate the principles stated under the Treaties.
Special attention will be dedicated to the principle of legality (art. 7.1 CEDU), as interpreted by the ECCJ in order to underline the clarity, accessibility and predictability of criminal provisions. But also the limits of the interpretation of the legality in the ECHR and ECCJ case-law will be assessed: in particular, the principle of nullum crimen sine lege is not always taken into consideration by the ECCJ, which is hardly ever sensible to the criteria of the maximum standard either (in other words, the criteria of the highest possible standard of guarantee of a given individual right among the national legal systems of the EU member-States). The ECCJ, given the difficulties of guaranteeing the maximum standard of protection, usually implements the criterion of the prevailing standard (which is to say the most frequent solution adopted under national Constitutions), or the criterion of the better law (the best national solution in the view of the EU necessities).
B) During the second year, the research will focus on the practical enforcement of the principle of legality at EU level, on the basis of the structure of European institutions, of the EU law-making process and of the reform possibly passed under the Treaty establishing a EU Constitution. The aim is to assess the consistency of the EU law-making process with the principles governing the adoption of national criminal acts: this part of the study will be divided into three parts.
Firstly, the participation of national Parliaments to the adoption of EU acts will be examined, so to weigh the quantum of legality in the preparation of the European legislation, also taking into consideration that the dialectic relation between the Council and national governments are usually reduced to the strict necessary to maintain good political relationship.
Afterwards, the investigation will consider the phase of the EU law-making process where national organs have no role to play: during this phase the bills already discussed by national Parliaments and Governments, and by EU Council, pass under the scrutiny of the EU Parliament. The traditional critics to this phase will be pointed out: first, the Parliament discuss the bill only after it has been adopted, and not during its formation; secondly, the lack of transnational electors' list, underlying the absence of "European nation"; lastly, the lack of participation of national assemblies in the approval of the final version of the bill.
Eventually, the research will address the implementation of EU acts in the national legal systems; it can take place by means of national measures providing sanctions for the violation of EU rules (currently for EU regulation, in the future for European law), or by means of national measures specifying the general principles stated under EU acts (currently for directives, in the future for European framework-laws).
On the basis of the analysis concerning the significance of the principle of legality at national and European level, and the EU law-making process, the research unit will evaluate to what extent EU acts meet the principle of legality as it is perceived at national level and if EU acts allow the establishment of a EU legislative power in criminal matters. More in details the fundamental question is whether the two phases of the EU law-making process are sufficient for respecting the principle nullum crimen sine lege; or whether the final approval by national assemblies would be indispensable; or if, in the end, also this final approval would not be sufficient to provide with democratic justification acts that are not democratically formed from the beginning. The analysis shall also take into account that the principle of nullum crimen sine lege is sometimes derogated at national level; so to avoid apodictic criticism towards a possible EU competence in criminal matters.
Lastly, the study will examine the recent development of the principle of legality under the Treaty establishing a European Constitution, with the purpose of evaluating the new criteria adopted to fill the gaps of legality. To this aim, the formal declaration of the principle of legality (art. II-109, which gives written confirmation to the previous interpretation carried out by the ECCJ) will be investigated. Moreover, the attribution of an indirect competence in criminal matters, by means of European framework laws (art. III-271), will be examined, as like as the attribution of a direct competence in criminal matters, by means of European law (art. III-415, even though with sole regard to the fraud affecting the Union's financial interests).
The study will score the increase of legality in the adoption of EC acts, due to the extension of the co-decision procedure (art. III-302) and to the strengthening of the role played by national Parliaments in the first phase of the legislative procedure.
The democratic legitimacy of the decision-taking process could be rooted both in the participation of national organs in the adoption of the acts of the Council and of the Commission (external legitimacy), and in the intervention of the European Parliament (internal legitimacy). Therefore, the co-decision procedures would entail a "double-legitimacy", as a combination between the participation of the member States' organs and of the European institutions representing European citizens.
In the last part of the research, the local unit will evaluate whether factors like the extension of EU competences, or like the strengthening of the role played by the European Parliament in the EU law-making process and by national Parliaments (also during the formation of the acts) are sufficient to endow EU acts with an adequate democratic legitimacy, with no regard to the possibility to fill the European deficit of democracy by means of the adoption of national acts laying down sanctions for the violations of EU law.
The outcome of the research will be presented in a final conference, with the participation of the other local units of research and of national and international experts, and will form part of a comprehensive monograph on the subject.