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C 140 E/524 Official Journal of the European Communities EN 13.6.

2002

Thursday 15 November 2001

TEXTS ADOPTED

1. Criminal sanctions and Community law (procedure without debate)

B5-0707/2001

European Parliament recommendation on criminal sanctions and Community law

The European Parliament,

 having regard to the provisions on police and judicial cooperation in criminal matters: Title VI of the
Treaty on European Union, Articles 2, 6, 42 and 47 of the Treaty on European Union and, inter alia,
Articles 47(2), 55, 65, 95, 175, and 280 of the EC Treaty,

 having regard to its previous resolutions, particularly its resolution of 13 March 1998 on judicial
cooperation in criminal matters in the European Union (1),

 having regard to the Charter of Fundamental Rights of the European Union (2),

 having regard to Article 39(3) of the Treaty on European Union,

 having regard to the proposals of the Committee on Citizens’ Freedoms and Rights, Justice and Home
Affairs, the Committee on the Environment, Public Health and Consumer Policy and the Committee
on Budgetary Control,

 having regard to Rule 107 of its Rules of Procedure,

A. whereas the European Union is founded on the principles of the rule of law, liberty, democracy and
respect for human rights, as stated in Article 6 of the Treaty on European Union, principles which are
common to the Member States,

B. whereas these principles, and in particular the principle of the rule of law, imply parliamentary scru-
tiny and judicial control over legislative measures, and whereas adequate controls are particularly
important for measures directly impinging on the rights and freedoms of citizens, such as the imposi-
tion of criminal law sanctions,

C. whereas the European Parliament is consulted increasingly frequently on legislative measures requiring
Member States to establish criminal law sanctions, for example in relation to the environment (3), the
protection of the Community’s financial interests (4), counterfeiting of the Euro (5), child por-
nography (6), combating terrorism (7), illegal immigration (8), and trafficking in human beings (9);
whereas, in particular:

 within the EU framework two legislative initiatives have so far been adopted regarding environ-
mental crimes, with different legal bases; the Council framework Decision on combating serious
environmental crime (10) is based on Article 34(2)(b) of the Treaty on European Union and the
proposal for a Directive of the European Parliament and the Council on the protection of the
environment through criminal law (11) is based on Article 175 of the EC Treaty,

(1) OJ C 104, 6.4.1998, p. 267.


(2) OJ C 364, 18.12.2000, p. 1.
(3) OJ C 121, 24.4.2001, p. 494 and OJ C 180 E, 26.6.2001, p. 238.
(4) OJ C 240 E, 28.8.2001, p. 125.
(5) ‘Texts Adopted’, 3.5.2001, Item 9.
(6) OJ C 40, 7.2.2001, p. 41.
(7) (COM(2001) 521).
(8) ‘Texts Adopted’, 13.3.2001, Item 2.
(9) ‘Texts Adopted’, 12.6.2001, Item 5.
(10) OJ C 39, 11.2.2000, p. 4.
(11) OJ C 180 E, 26.6.2001, p. 238.
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Thursday 15 November 2001

 Parliament has, in several resolutions, emphasised the need to appoint a European Public Pros-
ecutor for the protection of the financial interests of the European Union, by means of a revision
of Article 280 of the EC Treaty, and whereas the Commission’s proposal to the Nice European
Council to that effect was not successful,

 the Nice European Council again confirmed that protection of the Communities’ financial interests
came under the first pillar,

 the 1995 convention and the two additional protocols on the protection of the European Com-
munities’ financial interests, drawn up by the Council Act of 26 July 1995 (1), have still not been
ratified by all the Member States, which is preventing them from entering into force and means
there is no genuine protection of financial interests at Community level,

 the will of the Member States and the Commission to wage a genuine campaign to combat fraud
against the Community’s financial interests can be called into question,

 the Commission recently proposed a Directive of the European Parliament and of the Council on
the criminal-law protection of the Community’s financial interests (2), which incorporates the
provisions of the abovementioned convention, including Member States’ substantive criminal law
concerning the definition of fraud, corruption and money laundering, but does not include the
provisions on criminal law procedure and judicial cooperation, which means that the draft direc-
tive is not a satisfactory anti-fraud tool,

D. whereas only first-pillar legislation is automatically subject both to judicial review by the Court of
Justice and oversight by the Commission in its capacity as guardian of the Treaties,

E. whereas, pursuant to Article 47 of the Treaty on European Union, the EC Treaty takes precedence over
the Treaty on European Union, with the result that measures adopted under the provisions of Title VI
TEU cannot encroach upon the competence of the Community, leading to disputes as to the correct
legal base and the division of competence for the adoption of measures concerning criminal law
sanctions,

F. whereas measures for the approximation of rules in the Member States on criminal matters are due to
be adopted outside the Community framework, in accordance with the intergovernmental provisions
in Title VI of the Treaty on European Union,

G. pointing out that, under Title VI of the Treaty on European Union, the European Parliament, the body
most representative of EU citizens, is only consulted on certain measures and within strict time limits
(Article 39), and judicial control by the European Court of Justice is severely limited (Article 35),

H. whereas the threat of international terrorism has further highlighted the weaknesses of Title VI of the
Treaty on European Union; whereas, if the Member States show confidence in each other’s penal law
systems through the adoption of the Commission proposal for a Council framework Decision on the
European arrest warrant and the surrender procedures between the Member States (COM(2001) 522),
it will be hard to understand why Member States continue to insist on this divided competence,

I. whereas the coexistence of two parallel legal frameworks in which criminal law sanctions are adopted,
with reference to the same Member States, the same fundamental rights, the same citizens and the
same objective of developing the Union as an area of freedom, security and justice may result in
delays, parallel proceedings, possible incoherence and legal uncertainty,

(1) OJ C 316, 27.11.1995, p. 48.


(2) OJ C 240 E, 28.8.2001, p. 125.
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Thursday 15 November 2001

J. whereas the Community law system relies on general principles of law common to the national legal
systems and on Article 10 of the EC Treaty, which enshrines the principle of loyal cooperation, for
competence to require Member States to provide appropriate sanctions, including criminal law sanc-
tions, to ensure fulfilment of obligations arising from the EC Treaty or its implementing measures, as
recognised by the European Court of Justice,

K. whereas Parliament has been asking since 1999 for the first and third pillars to be unified (1),

L. whereas, pursuant to Article 42 of the Treaty on European Union, the Council has the power to
transfer competence for the creation of an area of freedom, security and justice as defined in Arti-
cle 29 to Title IV of the Treaty establishing the European Community, thereby creating a unified legal
framework for measures requiring criminal law sanctions,

M. whereas the transfer by the Amsterdam Treaty of judicial cooperation in civil matters from the third
pillar to the Community framework resulted in Member States adopting within a six-month period
measures which, under intergovernmental cooperation, had been blocked for thirty years,

N. whereas similar handling of cooperation in the civil and criminal spheres under Title IV of the EC
Treaty will:
 be conducive to better functioning of justice for European citizens,
 avoid duplication of legislative instruments for the same subject,
 provide more certainty for the Member States as regards the fulfilment of obligations imposed by
the Treaties; and, furthermore,
 pave the way for clearer negotiation with candidate countries,

1. Recommends the transfer, pursuant to Article 42 of the EU Treaty and to the codecision procedure,
of competence for all areas of action defined in Article 29 of the Treaty on European Union or, at least, of
competence for measures in the field of judicial cooperation in criminal matters having cross-border
implications within the European Union, in particular, approximation, where necessary, to Title IV of the
EC Treaty;

2. Recommends that the Commission, or one or more of the Member States, submit an initiative to the
European Parliament for its opinion and to the Laeken European Council in December 2001 for its unan-
imous adoption;

3. Recommends that the Commission or the Member States submitting an initiative consider the possi-
bility that those Member States to which protocols apply may continue to be bound by general inter-
national law even if future measures are adopted in a Community framework, by analogy with the Danish
protocol on Title IV Community measures;

4. Recommends that the Laeken European Council adopt such an initiative in accordance with the
provisions of Article 42 of the EU Treaty;

5. Recommends that Member States ratify that decision as rapidly as possible in accordance with their
respective constitutional requirements;

6. Recommends that Council refrain from taking any action on environmental criminal law before the
abovementioned draft Directive on the protection of the environment through criminal law is adopted;

7. Recommends that the Commission take appropriate action should Council envisage adopting the
abovementioned draft framework Decision on combating serious environmental crime, prior to the adop-
tion of the abovementioned draft Directive;

8. Instructs its President to forward this recommendation to the Council, the Commission and the
parliaments and governments of the Member States.

(1) See, for example, its resolution of 16.9.1999 on the extraordinary European Council meeting on the area of free-
dom, security and justice (Tampere, 15/16.10. 1999) (OJ C 54, 25.2.2000, p. 93).