European Federal Criminal Law: The Federal Dimension of EU Criminal Law

European Federal Criminal Law: The Federal Dimension of EU Criminal Law

by Carlos Gomez-Jara Diez


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For decades, the EU has developed a system of criminal justice consistent with the mixed (sometimes contradictory) tendencies embedded in its very own structure. The Lisbon Treaty consolidated some federal elements that have an impact on the future development of this area of law. The sovereign debt crisis of 2010 and its progeny have, if anything, consolidated the need for the federal protection of EU financial interests at the EU level. This book provides new insights in the federal dimension of these developments. Beginning with an analysis of the current state of affairs, the book also tackles the federalizing elements contained in such issues as the creation of a European banking supervision authority, the establishment of the European Prosecutor Office, or the enactment of a EU regulation containing the grounds rules of its functioning. Throughout, the reader will find constant references to the most efficient system of federal criminal law, i.e. the US system. This comparative law note serves the purpose of confirming the federal nature of what has been achieved so far at the EU level and providing guidelines for its future development. The basic contention is that such regulation and its enforcement at the EU level is a fundamental tool to achieve the goals that the EU has already set forth in the upcoming agenda. In a nutshell: although the EU is not a federal state, it has the same problems as if it were. [Subject: European Law, Criminal Law, Comparative Law, Financial Law]

Product Details

ISBN-13: 9781780681207
Publisher: Intersentia
Publication date: 04/19/2013
Pages: 256
Product dimensions: 6.50(w) x 9.50(h) x 0.60(d)

Table of Contents

Preface vii

Acknowledgements xi

Findings xix

Introduction 1

1 Why the Comparison with the US System of Federal Criminal Law? 5

2 Some Notes on American Federalism 8

3 Structure of this Book 10

Chapter 1 The EU Criminal Law Situation Prior to the Lisbon Treaty 13

1 Introduction 13

2 Preliminary Issues 15

2.1 Vertical and Horizontal Federalism in Both Unions 15

2.2 EU Criminal Law, Europeanized Criminal Law and European Criminal Law: ante portas or intramuros? 18

2.3 Conclusion 19

4 Crime Policy 19

4.1 Introduction 19

4.2 European Criminal Policy 20

4.3 Federal Crime Policy in the US System 23

4.4 Conclusion 26

5 Criminal Law Scholarship 26

5.1 EU Criminal Law Scholarship 26

5.2 LTS Federal Criminal Law Scholarship 30

5.3 Conclusion 34

6 The Fundamentals of European Horizontal Federal Criminal Law: The Principle of Mutual Recognition 34

6.1 Introduction 34

6.2 The Application of the Principle of Mutual Recognition to the Field of Criminal Law 35

6.2.1 Introduction 35

6.2.2 Criticisms Generated by the Transplantation of the Principle of Mutual Recognition to the Criminal Law Field 38

6.2.3 Responses to the Critics 42

6.2.4 It Had It Coming: The Ruling of the German Constitutional Court on 18 July 2005 44

6.2.5 The Timid ECJ Response; Advocaten voor der Wereld (2007) 46

6.3 The Full Faith and Credit Clause in the US System: A Valid Comparison? 47

6.3.1 Introduction 47

6.3.2 The Rules and the Exceptions to Full Faith and Credit 48

6.3.3 Full Faith and Credit in Criminal Matters? 51

6.3.4 Conclusion 53

Chapter 2 The Federal Criminal Law Dimension in the Lisbon Treaty 55

1 Introduction 55

2 Preliminary Issues 60

2.1 How Many Different Sources of Criminal Powers Are There in Both Unions? 60

2.2 Federal Courts in Both Unions 64

3 The First Federal Dimension of the Unions' Criminal Law: Crimes Affecting the Unions' Interests 74

3.1 Introduction 74

3.2 The Protection of the EU's Financial Interests (Article 325 TFEU) 76

3.3 The Protection of Direct Federal Interests in the US Constitution (Article I Section 8) 85

4 The Second Federal Dimension of the Unions' Criminal Law: Interstate Criminality and the Enforcement of the Unions' Policies 90

4.1 Introduction 90

4.2 Criteria for Federalizing Crimes in the EU (Horizontally) and in the US (Vertically) 91

4.2.1 Introduction 91

4.2.2 Criteria for the Inclusion of Matters within the Area of Liberty, Security and Justice of the EU 93

4.2.3 The Federalization of Crime in the US 96

4.3 Interstate Criminality 100

4.3.1 Introduction 100

4.3.2 EU's Serious Cross-Border Criminality (Article 83(1) TFEU) 101 Catalog of (Vertical) Federal Crimes Specified in Article 83(1) TFEU (EU) 101 The Open-Ended Nature of the Catalog (Article 83(1) TFEU in fine) 105

4.3.3 US's Criminality Affecting Interstate Commerce 108 Catalog of (Horizontal) Federal Crimes Specified in Title 18 of the U.S.C. (US) 108 The Open-Ended Nature of the Catalog: the Commerce Clause and Federal Criminal Law 109

4.4 Enforcement of Unions' Policies 115

4.4.1 Introduction 115

4.4.2 Effective Implementation of an EU Policy (Article 83(2) TFEU) 116

4.4.3 The Necessary and Proper Clause in the US Constitution 121

5 The Enforcement Federal Dimension in the Unions' Criminal Law 128

5.1 Introduction 128

5.2 European Public Prosecutor's Office (Article 86 TFEU): From Horizontal to Vertical Federalism? 129

5.3 Federal Prosecutors in the US: The Raw Discretionary Power 132

Chapter 3 Testing the Alleged Lack of Federalism 137

1 Introduction 137

2 Interstate Extradition 138

2.1 Introduction 138

2.2 European Arrest Warrant (EU) 139

2.3 Interstate Rendition (US) 144

2.4 Comparison 148

3 Double Jeopardy 149

3.1 Introduction 149

3.2 Article 54 Schengen Agreement and ne bis in idem (EU) 150

3.3 Double Jeopardy and the Dual Sovereignty Doctrine (US) 155

3.4 Comparison 160

4 Criminal Law Harmonization 161

4.1 Introduction 161

4.2 Mandatory Harmonization (EU): European Directives 162

4.3 Voluntary Harmonization (US): Interstate Compacts and Uniform State Law 165

4.4 Comparison 172

Chapter 4 The Federal Dimension of Fundamental Rights 175

1 Introduction 175

2 The Bill of Rights and the Incorporation Debate (US) 177

2.1 Introduction 177

2.2 Background Concepts 177

2.3 The Evolution of Incorporation 179

3 The Growth of European Due Process 182

3.1 Due Process from the ECJ and the ECHR 182

3.2 Specific European Due Process Rights 187

4 Comparing Systems 190

4.1 Evolving Standards and Judicial Activism 190

4.2 Federal/"Federal" Relationships 192

4.3 Greater European Federalism: Maximum Standards 196

5 Other Criminal Procedure Harmonization 197

5.1 Introduction 197

5.2 The EU Roadmap on Procedural Rights 197

5.3 The (Lack of) Sub-Constitutional Criminal Procedure in the US 198

6 Conclusion 199

7 Case Study: European Due Process in Action: The Case of Spanish Secrecy Court Proceedings 202

7.1 Introduction 202

7.2 Spanish Secrecy Proceedings 203

7.3 European Due Process and Secrecy Proceedings 204

7.4 The Right to Information in Article 6(3)(a) ECHR 206

7.4.1 Information for the Preparation of Defense 207

7.4.2 Article 6(3)(a) ECHR in the Context of Secrecy Proceedings 208

7.5 Trial within a Reasonable Time in Article 6 ECHR 210

7.5.1 Length of Proceedings: the Law 211 Beginning of the "Reasonable Time" Measure 211 Factors Considered by the Court 212

7.5.2 Length of Proceedings in the Context of Secrecy Proceedings 213

7.6 Conclusion 214

Chapter 5 The Sovereign Debt Crisis and the Future of EU Criminal Law 217

1 Introduction 217

2 United States versus Europe: Different Approaches to the Same Problem? 218

2.1 The Financial Markets' Pressure 220

2.2 The European Approach 222

2.3 The American Approach 223

2.4 The Future Ahead 224

3 Recent Developments in the EU Approach 225

3.1 Safeguarding Taxpayers' Money? 225

3.2 The So-Called Anti-Fraud Strategy 226

3.3 Towards an EU Criminal Policy 228

3.4 Will this Well-Intended Language Suffice? 229

4 The First Benchmark: The Directive on Criminal Sanctions for Insider Dealing and Market Manipulation - Financial Markets and the Stability of the EU 231

5 The Second Benchmark: The Proposal for a Directive to Protect European Financial Interests through Criminal Law - Genuine EU Interests 234

6 The Third Benchmark: The European Prosecutor Office - "Blue Helmets" in the War against Crime? 236

7 The ESMA Case: A Prequel in Terms of Questioning Enforcement Powers? 241

8 Law Enforcement and Investors Rationality: Some Lessons from the Law and Finance Debate 245

9 The Current Greek Crisis: Would it Look Different with an Independent EPPO Effectively Enforcing the Protection of the EU Financial Interests? 248

10 A Proposed System of ELI Criminal Law: The Balance between Vertical and Horizontal Federalism 249

10.1 Introduction 249

10.2 Enhancing the Vertical Federalism Dimension 250

10.2.1 Rethinking the Model: Towards an EU Competition Law Model with the Necessary Checks and Balances 250

10.2.2 Regulation Protecting EU Financial Interests through Criminal Law 252

10.2.3 Regulation Introducing European Rules of Criminal Procedure 253

10.2.4 EPPO: Single-Hat Prosecutors 253

10.2.5 Eurojust: Coordination between EPPO and National Enforcement Authorities 254

10.2.6 The Role of National Prosecutors: Assisting the EPPO 254

10.2.7 OLAF: The European FBI 254

10.2.8 The Role of National Courts: Creating Specialized Courts to Authorize Measures Affecting Fundamental Rights and to Try EPPO Cases 255

10.2.9 Judicial Review before the ECJ: Article 257 TFEU to Review the Decision to Proceed to Trial and to Review the Convictions 255

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