President. – The next item is the report by Cornelis de Jong, on behalf of the Committee on Civil Liberties, Justice and Home Affairs, on an EU approach to criminal law (2010/2310 (INI)) (A7-0144/2012).

  Cornelis de Jong, rapporteur. – (NL) Mr President, criminal law is not just another topic to be discussed. Criminal penalties involve curtailment of the fundamental rights of suspects and convicted criminals. You have to tread carefully in an area like this. Of course, it is justified to curtail fundamental rights in certain circumstances, but there have to be good reasons for doing so, as enshrined in international instruments of human rights and the Charter of Fundamental Rights.

By and large, there are two threats. First of all, there is us, the politicians. The media are paying more attention than in the past to striking crimes. Lawyers sometimes appear before the cameras more often than politicians, and even the Public Prosecutor and the judiciary nowadays make use of an army of advisors. Politicians tend to zero in on this by promulgating new laws that either expand the scope of criminal offences or establish new ones, or else introduce tougher punishments. If they can then also manage to convince other European politicians that such legislation should be introduced all over Europe, they believe they have provided a successful response. Things should not be that way, however.

Criminal law is not suited to recording minor successes in the short term. Before agreeing new definitions for offences or increasing punishments, you need to have thought through the consequences properly. Does this actually result in more criminals being imprisoned and re-socialised, and is public opinion still interested in these tougher punishments in the longer term, or is what we are dealing with here an occasional shock to society that could just as well have been dealt with through better enforcement of existing laws?

The second threat, sadly, comes from Brussels. We have become accustomed to making liberal use of the competences given to the EU by a series of treaties. The Treaty lists a number of crimes where minimum harmonisation is self-evident. In addition, the EU may also push through minimum harmonisation of crimes where necessary for the implementation of harmonised EU policy. This actually provides an awful lot of elbow room and the truth is I could put forward a reason to regulate at European level for each and every crime.

The same Treaty also emphasises respect for national traditions and cultural differences, which are exactly what come to the fore in relation to criminal law. The emergency brake procedure, which is a special feature of criminal law that enables a Member State to resist harmonisation that would be contrary to a fundamental principle in its constitution, is the procedural consequence of this.

There is a tension between these two elements, the generous competences and the restraint and the respect for national traditions. That is why we cannot take the same path in relation to criminal law as in other spheres: namely harmonising here and there, bit by bit, on an uncoordinated basis, without being able to cite very clear, convincing reasons for doing so.

In my report, it has now been made clear that, in the field of criminal law, the politics of symbolism is to be avoided; there must be no political hype. Before you move to harmonisation, you first have to go through an assessment framework that proves the added value of harmonisation statistically and also makes clear that there are no other less intrusive solutions available without resorting to criminal law. In addition, human rights remain a crucial factor and there needs to be constant and explicit assessment in this regard also.

It is just as important to monitor consistency and coherence. All EU bodies will have to put special measures in place in this regard, including the European Parliament. The Committee on Civil Liberties, Justice and Home Affairs has no right of coordination, but disjointed criminal law is poor criminal law.

I would like to thank all the Members of the Committee on Civil Liberties, Justice and Home Affairs for their overwhelming support for this report. I hope that we will be able to further flesh out these rules together with the Commission and the Council in an interinstitutional working group. I am confident that, together, we will succeed in ensuring that future rules concerning criminal law will only be introduced where truly necessary and that, furthermore, such new rules will be of high quality.

IN THE CHAIR: ISABELLE DURANT
Vice-President

Catch-the-eye procedure

  Axel Voss (PPE). – (DE) Madam President, I would like to start by expressing my warm thanks to Cornelis de Jong for the commitment that he has demonstrated here. He has produced a very good and very balanced report, and I am very pleased that we are making progress on the substantive issues in small steps. I have to say that I think he is right here – it is good to see that criminal law has, in fact, evolved differently in the various Member States and we therefore need different harmonisation measures, and since it is simply the strongest argument that we have for sometimes curtailing certain fundamental rights, we should therefore go about this very carefully – both in procedural matters and as regards material criminal law.

That is why I believe it is worth stopping to think about whether, with this in mind, we should also develop a concept, so that we do not start with the European Investigation Order and then argue the principles afterwards, but should instead do things the other way round. I would therefore ask that we take a conceptual approach to such matters, rather than doing the final things first and the initial things, in fact, last.

  Jan Philipp Albrecht (Verts/ALE). – (DE) Madam President, Commissioner Malmström, I am singing from the same hymn sheet as Mr Voss. Mr de Jong’s fine report makes it clear that we urgently need to establish once and for all a coordinated strategy for how we structure and harmonise criminal law, so that we refrain from only ever making progress in areas that serve short-term interests and instead debate a long-term, coherent system of criminal law.

Maybe it would be a really good idea for you and the Commissioner for Justice, Fundamental Rights and Citizenship to sit down together and think about how we can make common progress on this, because time and again we struggle to make the link between the two perspectives clear – particularly to the Council. When it comes to the European Investigation Order and the minimum standards in criminal proceedings, we will naturally find difficulties arising time and time again as regards reconciling the views of Parliament and the Council. The Commission could undoubtedly play an important role as a mediator here. That is what I would ask you to do.

  Gerard Batten (EFD). – Madam President, this report confirms what I have been warning my constituents in London about, and the British people generally, for some years, which is that the EU intends to create its own system of criminal law.

This project is already very well advanced and very comprehensive and I have written about it in a report of my own, Freedom, Security & Justice? or The Creation of a European Union Police State.

We do not need an EU system of criminal law in England. We have something called the common law which has taken a thousand years to evolve. We have safeguards under the Magna Carta, the Bill of Rights and habeas corpus, which are being swept away under this new system. They are being set aside. A British citizen can now be sent off to any corner of the European Union on the strength of a piece of paper with vague accusations. They can be imprisoned for months or years. The English and Scottish courts have abdicated their duty to protect their own citizens from arbitrary arrest and imprisonment.

Your system of EU criminal law would do for our liberties what the European single currency has done for your economies.

  Hubert Pirker (PPE). – (DE) Madam President, what we are looking at here is how security can be guaranteed in the European Union in the long term. That was the case with the last report and indirectly it is, in fact, the objective here. We can ask for all the strategies we like from Commissioner Malmström, but if we do not succeed in implementing these strategies and, in parallel with this, applying criminal law across Europe, then all our initiatives and all our strategies will be useless.

I am therefore in favour of us doing everything we can to harmonise criminal law across Europe, naturally taking into account national traditions, but nonetheless it must be our goal to use harmonised criminal law to implement what we have developed in the area of security in the way of initiatives, what has already been achieved in this area – from border protection, through the fight against organised crime, to cybercrime.

  Jaroslav Paška (EFD). – (SK) Madam President, I agree that the same requirements should be defined in the Maastricht and Lisbon Treaties so that we may work on the creation of a common European criminal law. However, I would like to point out that this journey will be very difficult, complicated and highly sensitive. In Europe, we have many traditions, whether social or judicial, on which law in different countries or regions has been based. An objection has already been raised by my colleague from the United Kingdom, who pointed out that law in the British Isles has a different way of addressing problems there, as they have the law of precedence, whereas in continental Europe, different rules apply. My country, for example, uses an Austro-Hungarian legal basis. I believe that Sweden and the Nordic countries use completely different rules. It therefore follows that there are some differences in the legal systems that we have to consider very sensitively. I am personally highly sceptical that we will be successful in this respect in the foreseeable future.

End of the catch-the-eye procedure

  Cecilia Malmström, Member of the Commission. – Madam President, I would like to thank the rapporteur very much for having taken the initiative to prepare a report on this issue. It links in perfectly with the communication on EU criminal policy that the Commission published last September, and I am really glad to see that this communication has achieved its goal in launching a debate inside and outside the institutions. This was our aim in the Commission: to summarise for the first time the principles guiding legislation on criminal law so as to strengthen the enforcement of EU policies under the new legal framework of the Lisbon Treaty. Mr de Jong’s report very much follows that objective, and I am really grateful for that.

Clear and transparent rules on when to use European criminal law are crucial, and we fully share the view of the rapporteur that any legislation at EU level must fully respect the principles of subsidiarity and proportionality. We know – and it has been clear from the debate here – that criminal law is a sensitive area, with quite substantial differences between the different Member States. This has to be taken into account. Because of that, it is crucial that we ensure full respect of the rights guaranteed by the Charter of Fundamental Rights and the European Convention on Human Rights for all EU criminal law legislation. We need to understand each other’s systems better in order to be able to assess how we can bring them closer together where this is necessary, while respecting the different legal systems and traditions in all Member States.

EU criminal law to strengthen the enforcement of EU policies is only needed in selected areas, but it can provide significant added value. We have seen this, for example, in the context of environmental crime, where two important directives were adopted in 2008 and 2009. These were the first instruments adopted on criminal law in the ordinary legislative proposal. The fruitful cooperation between the Commission and Parliament on these files has set an example for future work.

We also see the importance of common EU rules when it comes to discussing proposals for criminal law measures to fight insider dealing and market manipulation. It is clear that the EU financial markets can only have investors’ confidence and trust if we send a strong signal in the form of common rules.

In addition to rendering EU policies effective through the introduction of criminal law measures, the Treaty establishes ten ‘euro crimes’ that are both serious and have a cross-border dimension, justifying the need to legislate common minimum rules on definitions of offences and sanctions. Much has been achieved in relation to the latter in the post-Lisbon period, specifically with the adoption of directives on the fight against trafficking in human beings as well as the fight against sexual exploitation of children. Negotiations are being finalised regarding the Cybercrime Directive, and the newly-adopted proposal on the harmonisation of confiscation laws is about to be negotiated.

All these initiatives have so far contributed to the development of Treaty provisions contributing, inter alia, to a pragmatic interpretation of the concept of common minimum rules in both areas, and they are important frames of reference for further development of criminal law at EU level.

Putting in place a coherent EU criminal policy requires further reflection and discussion on many legal issues. The European Commission has just set up an expert group which will meet for the first time in June, and we will be happy to report once they have met. It will be composed of experienced academics and practitioners in the field. This expert group will be a forum to discuss the challenging and difficult questions which arise when the EU considers criminal law measures and advises on the best way forward.

We fully share the approach set out in the resolution. For instance, our criminal law communication also supports the idea of simpler language to guide EU legislators when they draft criminal law provisions.

So the Commission’s communication last year, and this report – which has received considerable support here – are the starting point for the shaping of a common EU criminal policy, and I look forward to working with Parliament and moving further towards a common goal: a true area of freedom, security and justice.

  President. – The item is closed.

The vote will take place on Tuesday, 22 May 2012.