Getting Hold of a Barely Illegal Concept: The Legal and Normative Basis for the EU-wide Criminalisation of Ecocide

The Belt and Road Initiative aims to connect China with the rest of Asia and Europe, thereby creating a Eurasian continent. Since the European Union is the terminal point of both the overland and maritime routes of the Belt and Road Initiative, the European Union is an essential partner for the success of the Initiative. Nonetheless, the EU has not yet adopted any common position on the Belt and Road Initiative. Whereas southern and eastern EU Member States are generally enthusiastic, northern and western EU Member States are more hesitant. China for its part focuses on the 16+1 framework, which includes EU and non-EU Member States, but has not yet comprehensively engaged with the EU. However, such engagement is needed, due to significant legal obstacles that may arise when the Belt and Road Initiative is implemented within the EU legal order. Although China may prefer to engage with individual EU Member States, due to the pooling of sovereignty at the EU level, EU Member States do no longer have sole decision-making powers in the areas of internal market, international investment, public procurement, etc. Consequently, projects under the Belt and Road Initiative may conflict with EU rules, as is evidenced by the EU Commission’s investigation into the Budapest-Belgrade Railway for possible violation of EU public procurement rules. The contribution looks into the potential legal obstacles posed by EU law for the successful implementation of the Belt and Road Initiative and proposes that China and the EU should set up a comprehensive international framework through which the European part of the Belt and Road Initiative may be realized.

This article, based on a paper with the same title presented at the Amsterdam Center for Law and Economics (ACLE) Conference on ``Remedies and Sanctions in Competition Policy: Economic and Legal Implications of the Tendency to Criminalize Antitrust Enforcement in the EU Member States’’ (Amsterdam, 17-18 February 2005) addresses five questions concerning criminalization of EU antitrust enforcement: First, what do we mean by "criminalization’’, or "criminal’’ enforcement (as opposed to public enforcement of a "civil’’ or "administrative’’ nature)? Second, is there a tendency in the EU Member States to criminalize antitrust enforcement (in comparison with US antitrust enforcement and with antitrust enforcement at the level of the EU institutions)? Third, is criminal antitrust enforcement, more specifically imprisonment, desirable (in general, irrespective of whether it takes place at the level of the Member States or of the EU institutions, or whether it is harmonized at EU level)? Fourth, is it problematic that antitrust enforcement is criminalized at the level of individual EU Member States without parallel criminalization at the level of the EU institutions or without EU harmonization? Fifth, would it be legally possible to criminalize antitrust enforcement at the level of the EU institutions, or to have EU harmonization of criminal antitrust enforcement in the Member States?

This paper, presented at the Amsterdam Center for Law and Economics (ACLE) Conference on 'Remedies and Sanctions in Competition Policy: Economic and Legal Implications of the Tendency to Criminalize Antitrust Enforcement in the EU Member States' (Amsterdam, 17-18 February 2005) addresses five questions concerning criminalization of EU antitrust enforcement: First, what do we mean by 'criminalization,' or 'criminal' enforcement (as opposed to public enforcement of a 'civil' or 'administrative' nature)? Second, is there a tendency in the EU Member States to criminalize antitrust enforcement (in comparison with US antitrust enforcement and with antitrust enforcement at the level of the EU institutions)? Third, is criminal antitrust enforcement, more specifically imprisonment, desirable (in general, irrespective of whether it takes places at the level of the Member States or of the EU institutions, or whether it is harmonized at EU level)? Fourth, is it problematic that antitrust enforcement is criminalized at the level of individual EU Member States without parallel criminalization at the level of the EU institutions or without EU harmonization? Fifth, would it be legally possible to criminalize antitrust enforcement at the level of the EU institutions, or to have EU harmonization of criminal antitrust enforcement in the Member States?

This work provides an analysis of the different systems of financial regulation and supervision in EU Countries. In particular it analyses the cases of France, Germany, Italy, Spain and the United Kingdom on the regulation and supervision of the banking sectors, but also with reference to insurance companies and the securities market. Furthermore, it studies the relationships, in terms of ownership and control, between banks and non-financial institutions. In particular several information are given with regard to the banks ownership in non-financial firms, and vice-versa, both at the EU level and within the member States. The research work done has therefore been based on information found through the publications and the websites of the principal supervisory authorities in the European Member States under consideration. This second part of the paper is divided in two main parts. The first one describes the rules governing banks investment in non-financial firms at the EU and member States level. The second part, instead, analyses, again from a European and national point of view non-financial firms investment in banks. I decided to include not all European member States, but only France, Germany, Italy and Spain. The Second Banking Coordination Directive has harmonised in several respects the regulations of the single member States; however some differences still persist, mainly deriving from the fact that EU member States have to comply with European Directives, but they can impose more stringent regulation, if this is not in contrast with European Directives. The differences in the regulatory systems concern both the investment of banks in non-financial firms and of non-financial firms in banks.

EU immigration politics and policies have been established by EU institutions and member states during the past four decades. Initial efforts to cooperate on this issue started in the 1970s and, since then, supranational influence on the policy area has increased step by step. From 1999 to 2009, member states agreed on five directives that regulate the entry and residence of migratory categories. These encompass family migration, long-term residents, students, researchers, and highly qualified workers. Observing this development, this book deals with two basic questions: First, how can EU policy in such a sovereignty-sensitive area like immigration be achieved? And, second, what kind of policy was agreed upon at the EU level? Does EU legislation in this policy area aim to restrict or expand immigration in EU member states?

Previous chapters of Part II dealt with the protection of IGOs at the EU level, i.e. IGOs as unitary rights, through the direct protection system. However, protection of IGOs at the EU level may be ensured not only through the direct protection system, but also through trade mark protection system, namely, through protection as a Community collective mark. That protection is ensured by the Codifying Community Trade Mark Regulation, namely Title VIII containing Arts. 66–74 (previously—Arts. 64–72 of the Community Trade Mark Regulation). From the point of view of the territorial scope, Community collective mark differs from national collective marks of EU Member States. Generally trade mark law of EU Member States provides for the registration of collective marks, however, since they are treated as trade marks, their territorial scope is limited with a respective EU Member State. In the case of Community collective marks, their territorial scope is the entire European Union and due to that reason they are unitary rights.

The increasing legislative activity in the field of eu criminal law has highlighted the need for a coherent and consistent approach to criminalisation, which has been acknowledged by the eu institutions themselves. One of the basic questions all legislators need to tackle, however, is what sorts of conduct can be (legitimately) criminalised. The aim of this article is, firstly, to examine the prevailing substantive criminalisation principle(s) in the eu Member States’ criminal law theories; secondly, to sketch an ideal criminalisation process, which although applicable at national level can be useful also at eu level, and thirdly, to inspect the existing criminal law grounds for criminalisation and the criminal policy orientations at eu level in order to find out what the underlying substantive criminalisation principle behind eu criminal law is or ought to be, alongside other principles that may act as ‘limiting factors’ within the criminalisation process.

Change of legal basis by the court and the right to a fair civil trial

The mapping of the EU coordination and cooperation mechanisms of risk communication in the field of food safety (i.e. encompassing all matters pertaining to the feed and food chain) was conducted for the European Food Safety Authority (EFSA), following a mandate by the European Commission, to inform the General Plan for Risk Communication that the Commission will set out. This study focuses on communication activities in 'peacetime' situations (i.e. non-crisis) on the published outputs of risk assessment and risk management. This is a specific part of the risk communication process defined in the General Food Law. Data were collected through an online survey of competent authority organisations involved in risk communication at national and regional levels in the EU-27 Member States and Norway; and interviews with selected organisations at Member State, EU and international levels. Based on these data, this report provides an overview of the current information flow of risk communication, in terms of whether and how organisations at all levels receive, produce, and disseminate risk communication material. The existing flows in each country are described and mapped in flow charts. Flows are also presented for each of the EU/international organisations involved in risk communication on food safety. A number of relevant networks are identified that actively engage in sharing/exchanges of risk communication material on food safety, including networks managed by EFSA. This project also highlighted certain challenges in current risk communication systems, and recommendations are made to address them. At national level, these are: an increase in resources dedicated to coordinating communication on EU food safety issues, to improve capacity to undertake this task; strengthen the cooperation and coordination between authorities involved in risk communication activities to ensure a more proactive approach. In addition, recommendations are provided to enhance further collaboration of communication activities at all levels (between Member States and with EFSA; between EU Agencies), so that the coordination of risk communication at EU level follows a partnership approach.

Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget entered into force in January 2021. It seeks to establish mechanisms necessary to protect the Union budget in the event of breaches of the rule of law in the Member States. In simple terms, the Regulation thus becomes an instrument making the transfer of EU funds conditional on Member States’ respect for the rule of law. The aim of this study is to assess the application of the Regulation in practice from the point of view of the protection of the rule of law and its role in this respect. The discussion aims to determine whether the implementation of the Conditionality Regulation confirms its “usefulness” for strengthening the rule of law in the EU Member States. This analysis should thus allow us to determine to what extent the “EU money”, in the framework of the procedures established by the Regulation, effectively strengthens the rule of law by motivating Member States to certain behaviours. In this light, the investigation of the law in force is used as the main research method herein. The article is divided into three parts covering the origin and the analysis of the purpose and main assumptions of the Regulation in the context of the protection of the rule of law, cases of its practical application and the effects of the implementation of the Regulation together with their assessment. The analysis has led to the following main conclusions: 1. The Conditionality Regulation is an instrument that protects the budget and financial interests of the European Union – as such it protects them against violations of the rule of law and, in this light, respect for the rule of law becomes the basis and necessary condition for the effective implementation of the EU budget in accordance with the principle of sound financial management. 2. The Regulation provides for relatively clear conditions and criteria for implementing the budgetary protection procedure and a relatively clear procedure for applying safeguard measure. 3. The conditionality mechanism provided for in the Regulation, with its consistent and rigorous application, has a chance to strengthen the rule of law in the EU Member States – the case under discussion seems to confirm this thesis.

Setting the framework for the protection of the environment through criminal law at the EC level ultimately leads to the adoption of Directive 2008/99/EC of 19 November 2008 on the protection of the environment through criminal law. The Directive establishes a minimum set of conducts that should be considered criminal offences throughout the EU when unlawful and committed intentionally (or with at least serious negligence). Inciting, aiding and abetting of such conducts will equally be considered a criminal offence. Directive 2008/99/EC must be implemented by Member States by 26 December 2010. Its adoption has been a debated and lengthy process. These debates occurred at the EU level (institutional conflict) and member state level, and were reflected into the legal scholars work. These debates concerned not as much the specific content of the Directive, but the institutional framework and in particular the use made of criminal law provisions in a first pillar legal instrument, as opposed to the normal use for these purposes of instruments provided for in the third pillar of the EU (police and judicial cooperation on criminal matters). The Directive, therefore, seemingly deviates from the general rule that “neither criminal law nor the rules of criminal procedure fall within the Community’s competence”. The Directive follows a Court of Justice’s decision of 13 September 2005 (Case C176/03) to annul an EU Framework Decision on the protection of the environment on the grounds that it had been adopted on an erroneous legal basis. In its decision the Court upheld the Commission's submission, holding that the Commission may take measures in relation to the Member States' criminal law where the application of criminal penalties is an essential measure for combating serious environmental offences. Hence, a Directive, a first pillar instrument, including criminal law provisions could be adopted. This article discusses the Directive’s institutional background and looks at the criminal law provisions in the Directive. It ends with a critical note on the presumed impact of the Directive.

Empirical study of specific value added tax problems in selected EU member states is focused mainly on the field of providing services. Specifically services provided to a person from the same EU member state, which shall provide this service immediately further to a customer from other EU member state and further provision of service provided by a provider from one EU member state to a recipient of service from other EU member state are concerned and also these services are connected with immovable property situated in the state of provider of service. These issues are solved in the frame of selected EU states - Czech Republic, Slovakia, Hungary and United Kingdom. The results show insufficiencies in treatment of the mentioned field of value added tax not only at the EU level, but also at the national level of the selected states and application of objective provisions in practice as well. General recommendations of process of elimination of insufficiencies causing problems in providing service further or providing service connected with immovable property are here on this base laid down. Except above mentioned facts, this paper also offers wider view on the harmonization process in the field of value added tax in the EU and highlights the significance of value added tax in the general consequences.

It is dedicated, a person, his life and health, honor and dignity, inviolability and security are recognized as the highest social value in Ukraine. Due to Russia’s military invasion of Ukraine, millions of Ukrainian citizens were forced to flee the war to neighboring EU member states. These EU member states, in accordance with the norms of their national legislation, guarantee basic rights and freedoms to the citizens of Ukraine. Also, these states are members of the integration association, the norms of primary law of which also guarantee basic rights and freedoms to citizens of Ukraine. The article focuses attention on the catalog of rights of Ukrainian citizens in the EU and on the mechanisms of their protection. It is emphasized that the catalog of human rights contained in the primary law of the EU is not identical to the catalog of human rights enshrined in the national legislation of the EU member states. It is noted that citizens of Ukraine who are in the EU have rights guaranteed to them by EU legislation, which establishes minimum standards, and by the national law of the EU member state in which the citizen of Ukraine resides. The minimum standards of human rights established by the norms of EU primary law must be ensured to every citizen of Ukraine residing in any EU member state. Higher standards of human rights, which are guaranteed by the norms of national legislation, differ in each EU member state. The article highlights the peculiarities of the implementation of the rights of citizens of Ukraine, whose legal regime of stay in the EU is temporary protection. It is emphasized that until March 4, 2022, such a regime did not exist for citizens of Ukraine. Features of the implementation of the following rights of citizens of Ukraine who enjoy temporary protection are highlighted: residence permit; access to work; access to education: children under the age of 18 have the right to study in educational institutions under the same conditions as citizens of the host country; provision of housing; access to social security; access to medical care; access to information about temporary protection; the possibility of obtaining refugee status; the possibility to return to the state of citizenship at any time. It is emphasized that each EU member state independently establishes requirements for the cancellation of the temporary protection status for EU citizens.

The article approaches regulation of the wholesale energy market as a part of coordinated effort to establish single EU-27 energy market. We analyze the forms of the cooperation among the national regulators responsible for competition in the wholesale energy markets; such responsibility is split - between two, three or more regulators. The principle of cooperation dominates in the oversight of the wholesale energy market [over concurrency] and has been institutionalized in the form the memo, statute or code; it had also evolved in the EU acquis. Domestic legal system of a state remains a fundamental framework in the traditional nation-state world order as the domestic regulators (NCA, NRA or SMA), along with domestic authority, get also to vote in the EU authorities. Previous research concentrated on delegation of the sovereign powers to the EU level and, to a lesser extent, on coordination between national and state level in the federal EU Member States. This article, instead, looks at horizontal cooperation on the national level only using the comparative legal method. The national level appears to generate the ideas for the EU level and not vice versa, at least, in the analyzed settings of Belgium, France, Germany, the Netherlands, Spain and the United Kingdom. The working arrangements on the information exchange, pooling of resources in the form of task force, investigation crew, joint unit as well as consultations and mutual comments on the policy proposals are common cooperation formats in each of the countries analyzed, often as a formal legislative rule. At the same time, the EU level inter-agency cooperation for the wholesale energy market can boast only memoranda of understanding, quite short. The research also lay prospectives of how Ukrainian government could fit in with its oversight mandate split among the competition authority, financial market authority and energy regulating authority given decision by the European Council on 14-15 December 2023 to open accession negotiations with Ukraine. This publication is third in the planned series of four comparative legal research papers on the inter-action between the regulatory agencies, the first two papers deal with the characterization of the wholesale energy product and wholesale energy market, undertake a content-analysis of the EU-level agencies interactions; the closing fourth part will systematize regulatory policy proposals for the domestic inter-agency cooperation in Ukraine.

The following paper examines the envisaged framework and effectiveness of the triangulation of mechanisms currently planned at the EU level: the establishment of the European Public Prosecutor’s Office (EPPO), proceedings under Article 7 of the Treaty on European Union (TEU) against Poland and Hungary, and the mechanism to protect EU’s budget in deficiencies withregards to the rule of law in Member States. This research focuses on the overall structure and powers of the EPPO with special attention on its role in investigating and prosecuting offences affecting to the EU’s financial interests. This includes active and passive corruption among others with particular emphasis on the expected interaction between the EPPO and the national authorities. However, not all EU Member States have joined the EPPO framework. Here the role of the EU institutions is analyzed in light of the recent developments in Article 7 TEU proceedings. A third possible mechanism to react to the growth of executive powers in some states and the corresponding imbalances is the EU Commission’s proposal for a mechanism on the protection of the EU’s budget in case of generalized deficiencies as regards the rule of law. This may include corruption or other breaches to the implementation of the Union budget.