Even though the European Union so far has no supranational authority to enact criminal laws, meaning that neither a “European Penal Code” nor a “European Code of Criminal Procedure” can be decreed from Brussels, regulatory instruments under EU law still manifoldly affect and even subordinate or supersede criminal laws applying in Germany. Numerous legal instruments aimed at cooperation amongst law enforcement authorities in Europe, such as for instance the European Arrest Warrant or the European Investigation Order, are indeed based on EU regulations and legislative acts. What is more, progress is steadily being made in efforts to introduce a European Public Prosecutor, initially for dealing with crimes that harm the EU Budget.
Since the Treaty of Lisbon came into force on 1 December 2009, the European Union has also been able to harmonise wide areas of national penal law and criminal procedural law in the Member States. This harmonisation has to be taken into account by legal practitioners in this country when interpreting the German Criminal Code in compliance with EU law – as they are bound to do pursuant to the “principle of sincere cooperation” laid down in Article 4(3) of the Treaty on European Union. This same principle has also led to the German legislator extending the scope of protection that applies in respect of offences covered by German penal law, to now include interests and in particular legal interests stipulated by the EU, namely by inserting so-called correlation clauses in numerous statutory provisions (e.g. sect. 162 subsect. 1 and sect. 264 subsect. 7 no. 2 of the Criminal Code). And in some cases, a conflict with directly applicable European law – such as basic rights or relevant EU Regulations – may even mean ultimately that elements of a crime specified in national law cannot in fact be applied.
These multi-facetted influences of EU law as well as of the Council of Europe, which to a significant degree have an impact on judicial assistance within European Union, have to be known and understood if criminal defence is to be conducted effectively in a Europe that is becoming ever more closely integrated. Our law firm will be pleased to let you benefit here from all the relevant expertise and invaluable experience it has to offer.