Constitutional limits of EC criminal law

Two recent decisions of the European Court of Justice in the field of criminal sanctions have raised a considerable amount of academic interest. Its decision in Case C-176/03 Commission v Council (Environmental Legislation Litigation) confirmed the Community has the implied power to harmonise criminal laws in relation to other Treaty competences. Its earlier decision in Case C-105/03 Pupino established a requirement of sympathetic interpretation in relation to Union third pillar framework decisions, furthering the legal impact of instruments which on the basis of the Treaty on European Union were previously thought to be incapable of supranational legal effects. However revolutionary both of these decisions may seem, this paper will consider the limitations inherent in both Community and Union legal orders as well as these and subsequent cases that mitigate the practical effects of these judgments. It will discuss the legal circumstances under which the Communautizing effects of Case C-176/03 are applicable and proceed to examine the remaining limitations of Union framework decisions in the field of criminal law. Whilst the ECJ has developed the notion of Community criminal competence, this paper will demonstrate that its effects are primarily upon the vertical division of competences in the Union rather than on the criminal law liability of individuals. This is in part because the ECJ has maintained in Berlusconi and other recent cases its position that Community directives and Union framework decisions are incapable of detrimentally affecting defendants’ legal rights, and in part because a number of developments raise questions as to the feasibility of directly applicable criminal law Regulations.