Is the Development of a Common Substantive Criminal Law for Europe Possible? Some Preliminary Reflections

Abstract

The road to a common European Criminal Law, notwithstanding the political tendency towards the further ‘Europeanisation’ of our laws against the background of multiple threats by transnational crime, is littered with obstacles and difficulties. An analysis of some basic questions of the General and Special Part of the criminal laws of some European Criminal Justice systems confirms that some comparative groundwork is necessary before substantive harmonisation of European criminal laws is feasible. Legal concepts and methods as well as offences show considerable differences. As to the General Part, differences range from the construction of crime to the role of justification and excuse in negating, mitigating or excusing responsibility and the various understandings of the parties to a crime. As to the Special Part, a rather superficial comparison of the offences of murder/manslaughter and theft reveals different approaches across the different systems. As for the new EU-offences contained in the European Arrest Warrant and the Constitution, it is improbable that they exist in all EU member States in the form presented by the EU instruments. From all this follows that a European Criminal Law cannot be introduced overnight ignoring these technical and other (socio-cultural) differences.