The establishment of the European Public Prosecutor’s Office in a climate of legal uncertainty: what impact on the harmonisation of European Criminal Law?
On Wednesday 28th March, the S&D member Caterina Chinnici released a statement to the Italian press agency ANSA (Agenzia Nazionale Stampa Associata) calling for an extension of the competences of the European Public Prosecutor’s Office (EPPO). The EPPO should assume its tasks within 2020 under the auspices of 20 Member States, including Belgium, France, Germany and Italy, which strive for an enhanced judicial cooperation to counter fraud at the European level. By cooperating also with non-participating Member States, EPPO will investigate, prosecute and bring to justice the perpetrators of offences against the financial interests of the European Union (EU). However, as underlined by the Italian MEP, “such offences are often perpetrated by criminal organisations against which effective anti-mafia countermeasures could be implemented in the first place”. Although the EU has been dealing with organised crime through several policy instruments since the early 1990s, this issue has gained increasing attention due to its new cross-border dimension from which no State is immune. By recalling the Italian experience in fighting criminal organisations, especially with regard to the confiscation and forfeiture of illicit assets, Caterina Chinnici has underlined the need for a progressive harmonisation of the relevant legislation in the EU. Starting from reviewing the main steps made by the EU in the fight against organised crime, this article will seek to provide the reader with an overview of the phenomenon within European borders and analyse the challenges of harmonisation of European Criminal Law.
From Maastricht to the TFEU
Although experiences of informal cooperation among States in the area of criminal law date back to before the creation of the EU, it was the Maastricht Treaty (Treaty on European Union or TEU) that first addressed the questions of developing a common “space of freedom, security and justice”. More precisely, the TEU devoted the third pillar of the so-called “three pillars” of the EU to the police and judicial cooperation of Member States in both criminal and civil matters. Originally named Justice and Home Affairs (JHA), the third pillar was an essentially intergovernmental structure in which Member States had to inform and consult one another within the European Council in order to coordinate their action. The JHA had competence on the following areas: asylum policy, immigration policy, drug trafficking, combating fraud, judicial cooperation, and police cooperation for the purposes of preventing and combating terrorism. The TEU was thus silent on organised crime. It was only after the amendments introduced by the Treaty of Amsterdam in 1999 that the EU specifically provided for the possibility to approximate criminal legislation in the field. Under Title VI (“Provisions on Police and Judicial Cooperation in Criminal Matters”), Article 29 and 31§e expressly address organised crime by calling for: (1) a closer cooperation between police forces, customs authorities and other competent authorities in the Member States; (2) a closer cooperation between judicial and other competent authorities of the Member States; (3) approximation of rules on criminal matters in the Member States; (4) the adoption of measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking. The Treaty of Amsterdam also made the third pillar increasingly supranational and transferred competence on asylum, migration and judicial cooperation in civil matters to the first pillar (European Community). By dealing with drug trafficking, weapons smuggling, terrorism, human trafficking, organised crime and fraud, the JHA was renamed Police and Judicial Co-operation in Criminal Matters (PJCCM) in 2003.
New paths for the approximation of national criminal laws addressing organised crime were opened in 2009 by the Lisbon Treaty thanks to which the EU obtained a consolidated legal personality. In order to facilitate cooperation among Member States, the Lisbon Treaty abolished the pillar system, making the TEU and the Treaty on the Functioning of the European Union (TFEU) the primary legal basis of the EU. The aforementioned Article 31§e was indeed replaced by Article 83§1 of the TFEU which provides as follows: “The European Parliament and the Council may […] establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension […]. These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime”. Despite the comprehensive nature of such provision, there is some ambiguity in its formulation, as organised crime has been listed alongside more specific forms of crime, such as trafficking in human beings that is often committed by organised criminal groups. The lack of a proper legal definition of organised crime represents a major obstacle in the harmonisation process of European Criminal Law. In this regard, the next paragraph will analyse the main features of this issue, known as “definitional impasse”.
The definitional impasse of organised crime
Despite the fact that EU institutions have tried to address organised crime as comprehensively as possible, a clear definition of the phenomenon is still missing. MEP Chinnici stated in this regard that “it would be necessary to introduce an agreed definition of criminal organisation in the European legislation in order to define its essential features more specifically”. There have been indeed different attempts to harmonise the definition of organised crime and criminal organisation, starting from the Joint Action on making it a criminal offence to participate in a criminal organisation in the Member States of the European Union (98/733/JHA) (henceforth JA): Article 1 defines a criminal organisation as “a structured association, established over a period of time, of more than two persons, acting in concert with a view to committing offences which are punishable by deprivation of liberty or a detention order of a maximum of at least four years or a more serious penalty, whether such offences are an end in themselves or a means of obtaining material benefits and, where appropriate, of improperly influencing the operation of public authorities”. The first feature of the criminal organisation is thus the presence of an association with at least three participants. Despite the specific requirements of being “established over a period of time” and of “concert” between its members restrict the domain of application of the provision, the definition remains extremely vague as it does not address the whole phenomenon which can include a range of different activities and structures. Nonetheless, it is necessary to bear in mind that, despite being broad, this was the very first important attempt to harmonise EU legal systems in the sector of organised crime.
The second instrument worth mentioning is the United Nations Convention against Transnational Organised Crime, better known as Palermo Convention, which was signed in the namesake town in December 2000 and entered into force on 29 September 2003. The Palermo Convention first introduced a global legal definition of “organised criminal group” in its Article 2§a that reads as follows: ““Organised criminal group” shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit”. Despite the wording of the Palermo Convention is essentially similar to the vague definition enshrined in the JA, because of the extensive number of Parties, it is to be considered the world’s tool of reference in the field.
Following the JA and the Palermo Convention, the Framework Decision on the fight against organised crime (FD) is the third legal instrument providing a definition of organised crime. Being a blend of the aforementioned provisions, the FD defines “criminal organisation” as a structured association, established over a period of time, of more than two persons acting in concert with a view to committing offences which are punishable by deprivation of liberty or a detention order of a maximum of at least four years or a more serious penalty, to obtain, directly or indirectly, a financial or other material benefit”. The JA thus retains the term “criminal organisation” as provided in the JA but recalls the goals of criminal organisations as clearly stated in the Palermo Convention. Without departing from the JA and Palermo Convention definitions, the FD proves that the European legislator has disregarded the criticism of vagueness raised particularly to the JA and that the broad definitions of criminal organisation still impede an effective approach to organised crime. Ultimately, according to Europol’s Serious and Organised Crime Threat Assessment (SOCTA) 2017 report, the FD’s definition “does not adequately describe the complex and flexible nature of modern organised crime networks”.
Organised crime in Europe
Although no agreed definition has been formulated yet, cross-border organised crime is a reality. According to a recent investigation conducted by Europol, about five thousand organised crime groups are currently under investigation, the majority of which operate in more than one country of Europe. While the rooted Italian mafia has been spreading its roots into other countries from many years, and Russian and Turkish mafias have increasingly gained attention, other criminal groups are raising, such as the Albanian and Kosovar clans that are mainly active in Eastern Europe. Criminal organisations certainly do not spread randomly. Instead, they tend to follow specific directions in illicit markets according to opportunities for traffic and profit. According to the 2015 Portfolio of Organised Crime in Europe issued by Transcrime, illicit markets in the European Union produce about € 110 billion each year, whose 60% (€ 64 billion) belongs to Finland, France, Ireland, Italy, the Netherlands, Spain and the United Kingdom. As reported by David Ellero, Officer of the military police responsible for the fight against crime organised for Europol, the drug market is still the most profitable ‘traditional’ market in the EU, for a value estimated at nearly € 28 billion a year. The emergence of new synthetic substances and the growth of home-made illicit drugs (such as cannabis) are reshaping this market, increasing profit margins. As added by Ellero, “one of the first directions is the Iberian Peninsula, which is a drug trafficking hub. The second direction is Germany-Belgium-Netherlands because of the ports of Rotterdam and Antwerp, […] and the Schipol Airport [which] is logistically perfect for trafficking”.
Figure 1: Syntetic drugs: productions, trafficking and cultivation (Europol)
The Italian experience as a reference point
Despite the relevance of the drug trafficking issues, the main danger with long–term consequences for Europe is the increasing amount of money that are laundered and introduced in the legal economy through business operations. Indeed, as stated by Ellero with specific reference to Italian criminal organisations, “sometimes the same people who were selling drugs and committing murders 30 years ago now run restaurants”. The low profile maintained by certain criminal organisations is precisely the reason why those who think that organised crime action is limited to murders and explosions have been fooled by this new pragmatic attitude. Considering only the Italian organisations, the Eurojust 2016 report noted the high infiltration rate of organised crime investments into the legitimate economy in Spain, particularly favoured by the Camorra clan, along with the Netherlands, Romania, France, Germany, and the United Kingdom. Criminal investments have mainly focused on real estate, participation in public or private contracts, renewable energy, waste collection and management, money transfer, casinos, video lottery terminals, slot machines, games and betting.
Figure 2: Regions with evidence of organised crime investiments (OCPTranscrime)
Despite Article 2 of the FD required all Member States to consider organised crime as separate from the general perpetration of a crime, this issue is still on the table. While Italian organisations are legitimately recognised as “mafia associations” thanks to a series of specific provisions aimed at countering the phenomenon – such as the Article 416 bis of the Italian Criminal Code – many of the criminal organisations with similar characteristics and scope operating in Europe have not been specifically identified yet. As Eurojust’s 2016 report noted, “not all Member States have adopted similar provisions,” and “when they have done so, the extent of the application of and penalties attached to such offences varies greatly, and so do the possibility and requirements for applying special investigative techniques such as wiretappings”. For example, Denmark and Sweden still have no organised crime law, and individual crimes are punished with the aggravating factor of colluding with several people, while Germany and the Netherlands have legislation considered rather soft. It is precisely because of the cultural differences among Member States and the lack of harmonisation of European Criminal Law that criminal organisation can go “jurisdictional shopping” across Europe, meaning that they can take advantage of countries where standards for organised crime punishment are lenient and not comprehensive. For this reason, through Resolution on organised crime in the European Union, in 2011 the European Parliament called all Member States to “make associating with mafias or other criminal rings a punishable crime”, and to do it so “even without any specific acts of violence or threats”. Following this path, in 2013 Europol suggested the establishment of a European 416 bis on the assumption that “being a member of a Mafia-type organisation must be considered a crime per se”. Unfortunately, no further progress has been made since then: as written in Eurojust’s 2016 report “experience shows that the existence of different legal definition and the lack of an equivalent to Article 416 bis of the Italian Criminal Code cause major legal and operation obstacles to effective judicial cooperation”. Thanks to this criminal provision, the Italian State can indeed confiscate the assets belonging to convicted members of criminal organisations and therefore deprive them of their primary resources. Most importantly, Article 416 bis was introduced as part of the Law 646/1982, entered into force in 1982 in the aftermath of the murder of Pio La Torre, a member of the Italian Communist Party that Cosa Nostra killed that same year in Palermo for his commitment to seizing assets of criminal organisations. Ten years later, after the infamous 1992-1993 bombings, the Decree-Law 399/1994 has strengthened the previous provisions by allowing unexplained assets to be confiscated even without a final conviction, when serious signs of guilt are paired with the investigated party or when the defendant is not able to prove a legitimate source of assets. The implementation of such provision is possible because the Italian legislative system provides that the “reversal of the burden of proof” can be applied for suspects of particularly serious offences, meaning that if suspects fail to demonstrate that their assets are legitimate, the State can remove them lawfully. To understand the impact of such measures it suffices to say that between 1992 and 2016, € 21,3 billion (15,2 without conviction) have been seized while € 8,5 billion (7,6 without conviction) have been confiscated. Unfortunately, the problem with this specific provision at the European level is the endless struggle between protecting rights and pursuing justice. Indeed, that is the primary reason why many European States are against a common application of the main Italian pieces of legislation against organised crime. However, in this regard the European Court of Human Rights (ECHR) has clarified that this specific measure does not constitute punishment without trial as it is part of the preventive measures for criminal matters. In addition, it is proportional as the profit that derives from illicit activities gives organised crime the power to undermine the supremacy of State law. That is why, quoting ECHR judge Francesco Menditto, “the means adopted to combat this economic power, particularly the confiscation measure complained of, may appear essential for the successful prosecution of the battle against the organisation in question”.
An embryonic phase of development for European Criminal Law
As presented above, the European fight against organised crime has many technical and legal difficulties. For this reason, despite several European institutions committed to fighting fraud and organised crime at the EU level welcome the establishment of the EPPO, others raise serious concerns about it effectiveness. Ernesto Savona, Director of Transcrime, stated indeed that particularly regarding investigative cooperation, the EPPO is “on its way to becoming […] a major failure in the fight against mafias on the European level”. According to him, “there is no use insisting on asking for a unified antimafia legislation”, as even the “anti-mafia Commission of the European Parliament produced nothing”. Only effective means for international confiscation supported by “more cooperation between national police and more training” could have an impact on the fight against organised crime and fraud in the EU. Despite it is indeed true that more coordination between investigative national authorities remains the main objective of European policies in the field of organised crime, “this comes up against resistance from certain legal systems and legal cultures”. As Elly Schlein, Italian MEP elected with the Democratic Party, co-President of Integrity, Transparency, Corruption and Organised Crime (ITCO) has explained, “many colleagues fail to see how the mafias are spreading throughout the EU”. “And as long as we fail to harmonise the means for fighting it, we are unlikely to combat it effectively above the national level”. The key concept thus remains the harmonisation of legal systems that can ensure the establishment of a common ground of different jurisprudential doctrines and combat cross-border organised crime through highly networked law enforcement. Although this was already provided for in the Lisbon Treaty, Member States still need to apply it and make its contents meaningful. As Europe is not a federation, EU institutions need to rely on Member States’ collaboration in order to enforce their legislation and policy. To this end, as stated by members of the Group of States against Corruption (GRECO) during the presentation of its 2017 Report, “EPPO represents an embryo of the EU system of criminal law” and as an embryo, it will most likely need many adjustments, but it certainly represents an essential boost for the harmonisation of European Criminal Law and effective fight against organised crime. Only a complete harmonisation of Member States’ laws against organised crime and an effective approximation of the latter to EU standards can effectively counter organised crime and prevent its displacement towards countries where the criminal law system is less prepared to tackle it.
For further information:
European Council, Council of the European Union, “20 member states confirm the creation of an European Public Prosecutor’s Office http://www.consilium.europa.eu/en/press/press-releases/2017/10/12/eppo-20-ms-confirms/
European Council, Council of the European Union, Justice and Home Affairs Council 12-13/10/2017 http://www.consilium.europa.eu/en/meetings/jha/2017/10/12-13/
EU News, “Via libera alla Procura europea, indagherà su danni al bilancio Ue e frodi Iva” http://www.eunews.it/2017/06/08/procura-europea-bilancio-ue-iva/87423
European Parliament, “Communitization of the third pillar (JHA) of the Treaty European Union” http://www.europarl.europa.eu/igc1996/fiches/fiche9_en.htm
Europol, “Serious and Organised Crime Threat Assessment (SOCTA), Identifying the priorities in the fight against major crime https://www.europol.europa.eu/activities-services/main-reports/serious-and-organised-crime-threat-assessment
Francesco Calderoni, “Organised Crime Legislation in the European Union”, Springer (2010)
Il Fatto Quotidiano.it, “United Mafias of Europe: what is lacking to fight crime in EU Interactive Map: the presence of clans in each Member State” https://www.ilfattoquotidiano.it/longform/mafia-and-organized-crime-in-europe/map/
Library of the European Parliament, Library Briefing, “The EU response to organised crime”, http://www.europarl.europa.eu/RegData/bibliotheque/briefing/2013/130625/LDM_BRI(2013)130625_REV1_EN.pdf
Marcin Rozmus, Ilona Topa, Marika Walczak, “Harmonisation of criminal law in the EU legislation – The current status and the impact of the Treaty of Lisbon”, ePub (2014)
Pierre Hauck, Sven Peterke, “International Law and Transnational Organised Crime”, Oxford University Press (2016)
Tom Obokata, “Transnational Organised Crime in International Law”, Hart Pub (2010)
Treaty of Amesterdam, amending the Treaty on European Union, the Treaties establishing the European Communities and certain related Acts http://treaties.fco.gov.uk/docs/pdf/1999/TS0052.pdf