Criminal Justice in Europe: A Comparative Study

By Phil Fennell; Christopher Harding et al. | Go to book overview

6 The European Community and Criminal Law

RENÉ GULDENMUND, CHRISTOPHER HARDING, AND ANN SHERLOCK


INTRODUCTION

While in the case of a treaty such as the European Convention on Human Rights it was obvious from the outset that it would have an impact on the criminal law of the individual Contracting States, there was rather less appreciation until relatively recently that accession to the European Community would involve implications for the criminal law and procedure of the individual Member States. The subject matter of the three Communities--the European Coal and Steel Community (ECSC), the European Atomic Energy Community (Euratom), and the European Economic Community (EEC)--appears at face value to have little or nothing to do with the criminal law of the Member States.1 Indeed, for some time conventional wisdom was that the criminal law of the Member States would remain unaffected by Community law. This was certainly the view of the British Government in 1971 when it set out the legal implications of membership of the European Community and stated that 'nothing in Community law would, for example, materially affect the general principles of our criminal law . . .'.2 The thinking was that the Community operated only in the areas set out in the Treaty and there was no reference in the Treaties to matters of a criminal nature. Indeed, even as late as 1981 the European Court of Justice stated that:

In principle, criminal legislation and the rules of criminal procedure are matters for which the Member States are still responsible.3

____________________
1
With the exception of Art. 194(1) Euratom, as noted by J. W. Bridge in "'The European Communities and the Criminal Law'", [ 1976] CrimLRev. 88. For more recent discussion of the impact of the Community system on national criminal law, see Janet Dine, "'European Community Criminal Law?'" [ 1993] CrimLRev. 246 and Hanna G. Sevenster, "'Criminal Law and EC Law'" ( 1992) 29 CML Rev.29.
2
Legal and Constitutional Implications of United Kingdom Membership of the European Communities, Cmnd. 3301 ( 1971), para. 25.
3
Case 203/80, Criminal Proceedings against Guerrino Casati [ 1981] ECR 2595, para. 27. Nor did the Commission dissent from this position--see, e.g., its Eighth General Report on the Activities of the Community ( 1974), para. 145: 'Criminal law as such is not a matter of Community competence but remains within the jurisdiction of the individual Member States.'

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