Abstract
Biological and chemical weapons are a realistic threat for the EU, which requires concerted effort to combat. The EU has sought to be active in this field by incorporating EU-wide export controls and having EU sanctions against individuals suspected of proliferation activities. However, in many regards the national measures of the member states of the EU are still quite divergent when it concerns chemical and biological weapons, especially regarding criminalization. This raises the question of whether continued convergence in this field is necessary. This submission will look at this by discussing the current activities of the EU in this field and contrasting this with the existing legislation in the 27 member states, with a focus on the criminal prohibitions. It will show the gaps that exist within the EU regulation as well as in the national legislation addressing biological and chemical weapons. Art. 83(1) TFEU allows for the harmonization of national criminal legislation in certain circumstances. While chemical and biological weapons cannot fully be captured under any of the existing areas of crime included in Art. 83(1) TFUE, these can be expanded. The existing gaps in the national penal provisions in combination with the EU-wide effects of any potential use or proliferation of chemical and biological agents warrants the expansion of the areas of crime and harmonisation of national criminal law on the basis of Art. 83 TFEU.
The possibility of biological or chemical weapons being used in the EU was long a distant and often neglectable threat. This issue had therefore not been at the forefront of EU policy or discussion, with most of the activities at the EU level being focused on implementation of the norms against chemical and biological weapons outside of the European Union. Recent times have however shown that this is no longer a topic that can be ignored. While the possibility of terrorists using chemical or biological weapons has been accepted as an important threat for a longer period and instigated action from the European Union, other potential threats can clearly be seen now. In recent years there have been two instances in which chemical weapons were used for assassination purposes on the territory of the European Union, showing the threat that they still pose. At the same time the recent outbreak of SARS-CoV-2 and the drastic effects this had on every member state shows the danger the release of a biological weapon would pose. This presents a need to reflect and consider how chemical and biological weapons are addressed in the European Union and whether there are any improvements that can be made to better ensure protection against them. It is necessary to discuss this issue from an EU-perspective as the free flow of goods and free movement of persons has increased the possibility of proliferation and the likelihood of significant cross-border effects in the case of any biological or chemical attack.
This article will therefore consider the issue of chemical and biological weapons from an EU-perspective, determining where further action might be warranted and how further action could take shape. It will start by discussing some of the current threats and realities concerning biological and chemical weapons and why the threat of these weapons does warrant EU activity. The article will then lay out the current legislative activities that have been undertaken by the EU in this field. This will show that there is no EU-wide policy regarding the criminalization and punishment of biological and chemical weapons related activity. As such the article will go through the current national legislation addressing these issues and determine whether there is significant divergence within domestic legislation. This allows for the identification of potential gaps within the framework of national legislation which create potential vulnerabilities. The article will then consider whether these gaps can be closed at the EU-level by considering whether harmonisation of criminal law might be possible through Article 83 TFUE. In order to do so it will provide a detailed discussion of the article and its interpretation before applying it to the context of chemical and biological weapons. This will allow for the recommendation of specific courses of action on the basis of the threat of biological and chemical weapons in relation to the legal framework within the EU.
The chemical and biological threat in the EU
For the longest time the notion that chemical or biological weapons would be used in the EU was relegated to doom scenarios with regard to terrorist activity, as there was no realistic fear that anyone would actually use chemical or biological weapons, least of all another state. This has however changed in recent years. The use of chemical weapons throughout the world has become more common, although most of this took place outside of the European Union. It was not until the poisoning of Sergei and Yulia Skripal in the United Kingdom that there was any real indication that chemical weapons would be employed in the European Union. 1 The use of novichok nerve agents in an assassination shocked the EU and its member states. Since then, it has been shown that this was not an isolated instance, as a few years later a similar agent was used in an attempt to assassinate Alexei Navalny in Germany. 2 In both cases it is highly likely that Russia was the state responsible for their use, however the fact that both these incidents took place in the EU is significant cause for concern. It clearly shows that the threat of chemical weapons use has greatly increased over the last years and it is unlikely that this threat will decrease in light of worsening relations with Russia.
Unlike with chemical weapons, there has not been any attack with a biological agent in the EU thus far, but recent developments have shown clear indications concerning the threat that the release of a biological agent would have. The potential threat of a contagion has been clearly shown by the recent SARS-CoV-2 outbreak. Although this was probably a natural or at least a non-intentional outbreak, it did show the massive effects the release of a biological agent will have. SARS-CoV-2 caused significant numbers of fatalities and lingering health issues for many EU citizens as well as massive disruptions to the EU economy and the healthcare system in many EU member states. It clearly showed the cross-border effects an outbreak would have as well as the near impossibility of preventing the spread throughout the EU. Similar, or even more devastating, effects are to be expected in the case of the intentional release of a dangerous pathogen, showing the clear threat that biological weapons are for the economy and the health of EU-citizens.
The danger of potential biological threats has also increasingly been in focus due to the continued claims made by Russia of alleged bio-weapons programmes on the territory of Ukraine, allegedly organised or support by third states, among them several EU member states. This has been argued to potentially set the stage for possible false flag operations or even the release of a biological or chemical agent. 3
The biological weapons convention and the chemical weapons convention
All member states of the EU are party to the main international agreements prohibiting biological and chemical weapons, namely the Biological Weapons Convention (BWC) and the Chemical Weapons Convention (CWC). These treaties prohibit activities related to biological and chemical weapons respectively.
The negotiation of both treaties was heavily influenced by Cold War relations and the underlying rationale for these treaties was to address the state-level chemical and biological weapons programmes that had been developed. The prohibitions and obligations in both these treaties are state-centric and while the prohibitions are broader, the focus was on state-ran chemical and biological weapons programmes, seeking to prohibit and dismantle them. 4 Activities related to chemical and biological weapons of individuals or groups, such as terrorists or criminals, were considered to be within the scope of the prohibitions as such but the treaties were not developed to specifically address them, addressing them requires national actions and legislation implementing the BWC and CWC respectively. 5
In order to facilitate this, both treaties include a specific provision requiring national implementation, however the degree of specificity differs between them. The BWC was the first arms control agreement to incorporate an obligation to adopt national measures but did not further expand on what the necessary national measures would be. This has been, at least partially, alleviated by the Review Conferences which have consistently adopted the interpretation that these measures should at least include penal provisions for the acts explicitly referenced to in Article IV. 6 However, even though the RevCon has adopted a comprehensive reading of Article I BWC and included use in the prohibited activities, this has not been the case with regard to Article IV BWC and therefore there is no obligation to adopt national measures related to the use of biological weapons. 7 Another issue with the BWC is the fact that there is no real compliance or verification mechanism and assessment of compliance relies of states submitting reports on national implementation in the context of confidence building measures, however many states parties to the BWC do not submit reports or submit incomplete reports. 8 This has made it difficult to ensure compliance with the BWC and the enactment of necessary national measures, creating potential weaknesses in addressing non-state actors. Even with regard to states, the BWC does not have any real manner to address allegations concerning biological weapons programmes in any coherent, independent and impartial manner, as the procedures initiated by Russia in 2022 have shown. 9
The CWC is more explicit in its provision, with the text of the treaty itself proscribing the adoption of relevant penal legislation prohibiting activities related to chemical weapons, including use. The CWC also has a compliance mechanism and the OPCW assists with and assesses the adoption of penal legislation addressing chemical weapons. However, while the treaty prescribes the adoption of penal legislation, it does so in a very broad manner leaving most aspects to the discretion of the national legislator. 10 This, as will be shown, has led to quite wide divergence in both approaches as well as sentencing instructions between different countries, even amongst the EU member states.
Although the CWC has some procedures to address the use of chemical weapons within their treaty, it does not facilitate the criminal prosecution of any individuals. Even with regard to states it is questionable whether the procedures in the context of the CWC can really be used to determine responsibility as the experiences with Russia and Syria in recent years have shown. 11 Therefore to address chemical and biological weapons use or proliferation it is oftentimes necessary, even in cases of state involvement, to rely on national procedures.
EU activities in the field
This shows there is a warranted fear for chemical and biological weapons within the EU and that the existing international agreements by themselves are not sufficient to address these fears. The EU has recognized that this issue is something that requires common action, however the question is how far has the EU gone and what issues have not been addressed that potentially should be addressed? In order to determine the extent that the EU has taken legislative action this section will discuss the current legislative measures of the EU in that seek to combat the proliferation or use of chemical or biological weapons. These are quite disparate types of legislative measures, however they form the whole of the legislative approach taken by the EU. This firstly concerns measures takes to prevent the proliferation of biological and chemical weapons, consisting of the Dual-Use Regulation and Regulation 649/2012 on the Export and Import of Hazardous Chemicals. Secondly, there is the Terrorism Directive, which seeks to address the threat of biological or chemical terrorism. Lastly, Council Decision CFSP 2018/1544 concerning restrictive measures against the proliferation and use of chemical weapons was adopted specifically in response to incidents of chemical weapons use.
Dual-use regulation
The most important regulation for combating chemical and biological weapons proliferation is Regulation (EU) 2021/821 of the European parliament and of the Council of 20 May 2021 modifying and updating the Union regime for the control of exports, brokering, technical assistance, transit and transfer of dual-use items. This regulation was developed to supplant the previous dual-use control regulation by updating the control lists as well as the framework regulation.
This regulation sets up an authorisation mechanism for materials that can be used for the development of chemical and biological weapons, which requires authorisation for any exporting, brokering, technical assistance, transfer or transit of materials listed in Annex I. This annex includes most of the items related to the development of chemical and biological agents, such as human and animal pathogens and chemicals that can be used as precursors for toxic chemical agents, as well as materials that can be used for the development of such weapons. This Regulation directly implements the export control lists that have been developed through the Australia Group and goes even further. In this manner it transposes non-legally binding norms into legally binding norms which are directly applicable in the EU Member States. The Regulation clearly lines out that no authorisation is supposed to be given for any of the acts mentioned if the goods are or may be intended for the development of chemical and biological weapons. Such authorisation is not only required for materials and items listed in the Annex to the Regulation but also for any other items that are or may be intended for the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical and biological weapons. The Regulation also requires authorization on intra-European Union exports if they are listed in Annex IV, which specifically notes ricin and saxitoxin as two substances for which a general authorisation is not possible.
Regulation 649/2012 export and import of hazardous chemicals
Similar to controlling dual-use items in general, the EU has sought to specifically incorporate export and import controls on specific chemicals. It has done so through Regulation 649/2012 concerning the export and import of hazardous chemicals. This Regulation requires the notification of the export of import of certain hazardous chemicals, among them agents which can be used as chemical weapons and their precursors. It then allows for the potential allowing or prohibiting of the export or import. The Regulation also details which information should be provided to ensure the safety and security of the chemical agents concerned. 12 While the Regulation is primarily focused on the safety of these chemicals and the protection of human health and the environment, there are also some limited effects for the regulation of chemical weapons, even though the provisions of the Dual-Use Regulation is far more detailed and specific.
The terrorism directive
One area in which the EU has long been active is the fight against terrorism. 13 There is a single directive that directly obligates member states to implement specific minimum rules concerning the definition of criminal offences and sanctions dealing with chemical and biological weapons. This concerns the 2017 Terrorism Directive, the follow-up to Framework Decision 2002/475 that already incorporated many of these crimes and central elements. The legal basis of the Terrorism Directive is art. 83(1) TFEU, which foresees the European Union to adopt directives setting minimum rules for definitions of crimes and penalties for these crimes. 14
Part of the Terrorism Directive was the coordination of the implementation of UN Security Council Resolutions, which included addressing the use and proliferation of chemical and biological weapons by non-state actors, specifically terrorist organisations.
The Terrorism Directive established minimum rules for the definition of offences and indicated specific rules for the sanctions for these crimes. This includes specific acts related to chemical and biological weapons. However, it only addressed these weapons within a terrorism-context, meaning that the minimum rules only required the penalization of acts related to chemical and biological weapons when they were conducted with a very specific intent, namely (a)seriously intimidating a population;(b) unduly compelling a government or an international organisation to perform or abstain from performing any act; (c) seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation. 15 Consequently it would only address a subsection of chemical and biological weapons proliferation and use and cannot be depended upon to govern the whole of the issue.
Council Decision CFSP 2018/1544 concerning restrictive measures against the proliferation and use of chemical weapons
An important instrument that directly seeks to address chemical weapons is Council Decision (CFSP) 2018/1544. This decision was developed in response to the use of chemical weapons in Syria and seeks to enforce sanctions against individuals involved in either the use or proliferation of chemical weapons and as such consist of obligations for member states to take measures necessary to prevent entry into or transit through their territories and freeze the funds of the individuals that are identified in the annex. 16 While this decision sought to address a very specific problem it now ensures that there is a standing piece of regulation that can be employed to enforce sanctions against individuals in the context of any future chemical weapons use or proliferation. The decision is for limited time periods and has been extended several times, as it allows for the renewal of the decision if the Council deems that its objectives have not been met. 17 While it is likely that this is linked to the specific instances and the lack of accountability for these individuals, the objectives of the decision have been phrased in a general manner, where any potential proliferation could be considered as being sufficient for renewal.
There is not a comparable piece of legislation for biological weapons, mainly due to the fact that this Council Decision sought to address specific incidents of chemical weapons and individuals suspected of being responsible for these incidents. The link to the process in the CWC and the specific incidents makes it unlikely that a similar decision would be developed for biological weapons, namely due to a lack of credible accusations of biological weapons proliferation or use.
Assessment of EU action
Looking at the legislative action undertaken at the EU-level it is clear that certain aspects of combating the proliferation of chemical and biological weapons are dealt with in detail, especially through the Dual-Use Regulation, which includes a largely comprehensive control list and control requirements. The Regulation even allows the blocking of transfers within the internal market if there are fear concerning proliferation. Similarly, the use and proliferation of chemical and biological weapons are addressed in the Terrorism-Directive. This harmonizes the criminal provisions as well as certain aspects concerning sentencing of the use or proliferation-related activities when this is done with the required specific intent. Looking at the implementing legislation of the Terrorism-Directive clearly shows that the specific intent is incorporated in the EU Member States domestic legislation. However, what is clear from both these pieces of legislation is that proliferation or use that is not committed with the required specific intent is not prohibited at the EU-level, while the Dual-Use Regulation seeks to restrict it, it does not contain criminal provisions. This is potentially a significant gap, especially in light of the growing threat and the clear EU-wide effects the use or proliferation of chemical and biological weapons would have. It must therefore be considered whether there is an actual need for EU action for this issue and in order to do so it must first be considered whether the issue has possibly been addressed comprehensively in the domestic legislation of the EU Member States, thereby precluding the need for EU action.
Current national provisions
As is the case with most issues that are not governed at the EU-level, chemical and biological weapons use and proliferation is criminalized in different ways in different member states. There are many aspects in which these forms of legislation differ, such as whether they have different provisions for biological and chemical weapons or not, or whether they differentiate between proliferation activities and use or have a uniform provision incorporating all activities. There is therefore an inherent issue with discussing the whole of the national provisions in a concrete singular fashion that covers all legislation similarly that would allow for coherent comparison. This section will accordingly not discuss every single member state’s legislation but focus on specific points in which the divergence between states is clearest and most impactful as well as where the largest gaps in the EU-wide framework of national prohibitions can be found. It will focus on provisions that specifically addresses biological and chemical weapons, for while it might be possible to otherwise prosecute related acts under other offences, the notion of fair labelling argues for the existence of specific provisions. 18 Provisions developed for other purposes but which could potentially address biological or chemical weapons use or proliferation should be considered as insufficient. On top of that it can be difficult to ensure that all activities related to all types of biological and chemical weapons are clearly prohibited when there is a need to rely upon provisions not specifically prohibiting acts related to chemical and biological weapons.
Criminalization
The majority of member states have adopted one of two separate approaches to prohibit the proliferation and use of chemical and biological weapons. The first is by incorporating criminal provisions in the implementing legislation for the Chemical Weapons Convention and the Biological Weapons Convention. These criminal provisions provide penal sanctions for those who violate any of the prohibitions incorporated in the CWC or BWC. This approach can be seen for both chemical and biological weapons in Belgium 19 , Ireland 20 and Slovakia. 21 Italy 22 , Malta 23 , Greece 24 , Cyprus 25 and Croatia 26 have taken this approach only with regard to the Chemical Weapons Convention.
The other common approach is developing provisions addressing biological and chemical weapons within more general legislation. This is commonly done is through the inclusion of a provision in the criminal code prohibiting the use of and potentially also other acts related to weapons of mass destruction or more generally of weapons which are prohibited in international law, both of which would include chemical and biological weapons. Such provisions are included in the criminal acts of Austria 27 , Bulgaria 28 , Czechia 29 , Estonia 30 , Hungary 31 , Latvia 32 , Poland 33 , Slovenia 34 and Spain. 35 Finland has also included provisions in their criminal code but made those specific to chemical and biological weapons. 36 Several other states incorporated similar provisions not in their criminal code but rather through legislation relating to the regulation of weapons in general, this is the case in Portugal 37 , Luxembourg 38 , Germany 39 and Denmark. 40
Although these approaches are the most common, several states have criminalized biological and chemical weapons in a different way. France, for example included provisions concerning the use and proliferation of chemical weapons, as well as proliferation activities related to biological weapons in their Code de la Defense. 41 The use of biological weapons is addressed separately in the Code de la Santé Public. 42 Another example of a different approach can be seen in Sweden, which has very specific provisions on chemical weapons in their criminal code 43 , rather than incorporating it in more general provisions in the criminal code.
When analysing the different provisions some clear gaps that can be identified. The clearest gap that can be seen is that many states do not include penal sanctions for acts related to biological weapons in a general sense. This stands in contrast with the regulation of chemical weapons, where most have provisions criminalizing acts related to chemical weapons. The extent to which this is the case differs between different states. Several states lack a general criminalization of biological weapons-related acts, This is the case in Croatia 44 , Cyprus 45 , Greece 46 , Luxembourg, 47 Malta 48 and Romania. 49 These states do include the use or proliferation of biological weapons either in their terrorism legislation or their provisions concerning war crimes. However, these provisions are generally not of a general nature and are only applicable in specific contexts, terrorism or armed conflict respectively. Sweden also lacks provisions specifically dealing with the proliferation of biological weapons and is reliant on general provisions prohibiting the intentional spread of disease to penalize potential use of biological weapons. 50
However, several other states do provide penal sanctions for proliferation-related activities but do not have penal sanctions in place to address the use of biological weapons in a general sense. This is the case in both Belgium 51 and Italy. 52 This could be explained from the fact that their penal provisions concerning biological weapons are incorporated within their implementing legislation of the BWC. The BWC itself does not explicitly include a prohibition on the use of biological weapons in its text 53 and since the implementing legislation is based or even immediately taken from the text of the treaty, this lack of an explicit prohibition on use is then also implemented. This issue does not exist in the implementing legislation for the CWC, as this treaty does include an explicit prohibition on the use of chemical weapons. Austria also lacks a clear prohibition on the use of biological weapons, instead relying on a general prohibition on the intentional spreading of disease to address the release of a biological agent. 54 Chemical weapons on the other hand are clearly prohibited which includes reference to CWC. 55 Germany has stated that the prohibition of use of biological weapons is included in their War Weapons Control Act 56 even though this is not explicitly mentioned in their legislation. It is Germany’s view that the term ‘die tatsächliche Gewalt über sie auszuüben’ should be read as including the prohibition of use. However, it is unclear whether this is actually the case as the drafting history seems to clearly indicate that the term tatsächliche Gewalt was to be interpreted as possession and should be considered similarly to possession in the civil law sense. 57 As no cases concerning the use of biological weapons have come before the courts in order to assess whether the interpretation of the government would be followed by the court, it remains relatively uncertain whether this would be the case. A similar issue exists in the context of Bulgaria, where the government argues that the use of biological and chemical weapons is subsumed under the term ‘преработва’ 58 (processes). 59
As this all shows there is significant divergence between different EU member states with regard to their legislation criminalizing acts related to biological and chemical weapons. This divergence is more apparent concerning biological weapons and especially their use, with multiple states not prohibiting this or doing so in a manner which creates uncertainty or does not cover the whole field of biological weapons use.
Sanctioning
A significant objective of the Terrorism-Directive was not only to create specific minimum rules for how crimes were defined and the type of crimes that should be included but it also sought to create minimum rules for the penalties that were provided for these crimes. As a result, most member states have imposed specific sanctions for terrorist activities that are in line with this directive and consequently includes custodial sentences. Therefore, the use and proliferation of biological and chemical weapons within a terrorist context is punished by custodial sentences in most EU member states. Outside of terrorism, the sentences provided for by member states for chemical and biological weapons related activities do include custodial sentences in most cases, where the acts are criminalized at least. However, not all states provide for custodial sentences, notably both Croatia 60 and Slovakia 61 only provide for pecuniary sentences for acts concerning biological or chemical weapons.
The vast majority of member states therefore provide for custodial sentences in the context of acts related to chemical or biological weapons, however when actually looking at these sentences it can be seen that the extent of the possible sentences differs significantly between member states. The applicable sentences in most member states show a clear differentiation between those provided for proliferation-related activities and those provided for use, with the former generally having shorter maximum custodial sentences. Regardless of whether acts concern proliferation-related activities or use the maximum sentences are generally significant, with most states imposing sentences generally ranging from five years to life imprisonment. 62 There are however also notably outliers with regard to sentence length, these include Lithuania 63 and Sweden 64 that limit sentences in the context of biological weapons proliferation to a maximum of three and four years respectively, as well as Denmark that appears to limits all sentences related to chemical and biological weapons, outside of the terrorist context, to a maximum of 2 years. 65
Harmonisation for chemical and biological weapons related provisions?
To determine whether it is possible for the EU to undertake action to harmonize the criminal law of its member states, it needs to be considered which competencies the EU has in this regard and whether these can be employed in the context of biological and chemical weapons. EU convergence on criminal matters is governed by Art. 83 TFEU. This article provides two different scenarios in which the EU can take measures aimed at the harmonisation of national criminal legislation, namely paragraph 1 and paragraph 2. Paragraph 2 concerns the approximation of national criminal legislation in the case where it is essential to ensure the effective implementation of a Union policy. 66 However, as has been shown previously there has been little in the way of Union policy in the field of biological and chemical weapons. The only context in which it could potentially be argued that harmonisation could be essential to implement EU policy would concern violations of import or export regulations, on the basis of the Dual-Use Regulation and Regulation 649/2012 concerning the Export and Import of Hazardous Chemicals. Therefore, in the case of biological and chemical weapons, it is specifically paragraph 1 of Art. 83 TFEU that needs to be considered.
According to this paragraph the EU can develop directives that would harmonize the substantive criminal law in its member states in several specific criminal areas. Such directives are adopted on the basis of the regular legislative procedure and could therefore be adopted without requiring consensus between the member states. However, as criminal law is generally considered closely linked to national sovereignty and fundamental aspects of their national criminal justice systems, paragraph 3 allows for an emergency break procedure that would refer a draft directive to the European Council. Thus far this has remained a dead letter and there is little indication that this would be employed in most cases. 67
The substance of Art. 83(1) TFEU is relatively concise in its wording and the competencies of the EU or how they are to be employed are not entirely clear from just the paragraph. To determine the effect of the paragraph and the way it should be employed several aspects should be considered. The first is that the competency is limited to the setting of minimum rules. As these are minimum rules it does not lead to the uniformization of criminal law but provides a common minimum standard. Consequently, it is possible for states to have more strict penal provisions, as long as these provisions offer higher levels of protections, such as through wider definitions or higher punishments. 68 However, it does require member states to have at least these minimum rules, thus states that do not have relevant penal provisions need to expand their existing legislation to incorporate these minimum standards. 69 The setting of these minimum standards is done through the adoption of a directive which generally already implies that a margin of appreciation would exist. 70 The extent to which this margin of appreciation exists can differ, as the exact margin of appreciation depends on the clarity and the precision of the directive and the more precise a directive is the more limited the degree of appreciation is. 71 This, in combination with the broad interpretation of these competences prior to the TFEU has led some to opine that instead of them being minimum rules they are effectively veritable rules of reference. 72 This appears to have been born out in the case of the Terrorism-Directive, where in the definition of the crimes there is very little margin of appreciation. 73
When considering what is intended with minimum rules concerning sentencing it must be determined whether this concerns minimum sentencing or minimum maximum sentences. Art. 83(1) TFEU does not make this entirely clear as the wording could include minimum sanctions stricto sensu, however this possibility has been rejected by the Commission. 74 This is a logical conclusion, as this is in line with the general requirement for the EU to respect national identity since not all EU member state accept the notion of minimum penalties. 75 Consequently, the EU can only provide for what the minimum maximum penalties should be for crimes incorporated within a Directive based on this article. 76 In this regard it is possible for the Directive to include requirements with regard to certain types of sentences, for example requiring the adoption of custodial sentences, the length that a maximum sentence should at least be or the height that any fine should at least be. It has even been stated that it could consider what are aggravating or mitigating circumstances. 77
Art. 83(1) TFEU also makes clear that the EU does not have the possibility to establish minimum rules in criminal law in general but only with regard to areas of ‘particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis.’ These areas are further defined in the second subparagraph of Art. 83(1) TFEU, as 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.
There are two specific areas of crime that could be argued to potentially be applicable in the context of chemical and biological weapons, however each of these has limitations that would make them insufficient to address the whole scope of activities related to chemical and biological weapons. The first potential area of crime is terrorism. There is not a strict definition of terrorism in either EU law or international law, which could potentially open up the possibility of activities related to chemical and biological weapons falling within this area of crime. However, even though there is not a strict definition of terrorism, it is generally considered that acts should be committed within a specific context in order to amount to terrorism. This can be found in the actual terrorism-directive, which requires a specific terrorist intent, thereby limiting the suitability of this approach for biological and chemical weapons. While this is not strictly speaking a definition of terrorism and it would hypothetically be possible for the EU to follow a broader approach to terrorism, a similar interpretation can be found in most states, both EU member states and non-EU member states. 78 It is therefore not really feasible for activities related to chemical and biological weapons that do not occur with the specific terrorist intent to be covered under this area of crime.
The second area of crime that could be argued to be relevant is illicit arms trafficking. Although this area is commonly considered to encompass mostly conventional arms, such as small arms and ammunitions, and not WMDs, 79 an argument could certainly be made that this could be interpreted to include biological and chemical weapons as well. However, the notion of arms trafficking has a different issue, namely the concept of trafficking would limit the kind of acts that could be addressed. Trafficking is not specifically defined in EU law but it can generally be defined as the import, export, acquisition, sale, delivery, movement or transfer of firearms from across the territory of one state to another state. 80 This therefore would require chemical or biological weapons to be transported from one state to another and therefore only addresses the trade and export and import of chemical and biological weapons and related materials. Consequently, activities that are confined within a single state, or which do not concern the transfer but rather the development, production or use of either chemical or biological weapons would not be included under the umbrella of arms trafficking.
Consequently, none of the areas of crime referred to in Art. 83(1) TFEU would be able to address all relevant activities related to biological and chemical weapons and it thus needs to be considered whether this list of areas of crime can be expanded. This possibility is described in the third subparagraph, requiring a unanimous Council decision after having obtained consent from the EU Parliament. The requirement of following this special procedure can be viewed as a reflection of the fact that criminal law is generally considered as being reserved for the Member States and only the representatives of their governments can decide to give competence to the EU. 81 Art. 83(1) TFUE makes clear that for any area of crime to be added to the list of areas of crimes in which the EU has competency to harmonise criminal law, two cumulative criteria need to be met, namely that it concerns ‘particularly serious crime’ and that this has a ‘cross-border dimension’. 82 Determining whether these criteria have been met should be approached carefully and with significant scrutiny. 83 Neither of these criteria have been defined either in any of the EU treaties, nor in any subsequent practice, however some general considerations can be made about the two criteria.
The criterion of ‘particularly serious crime’ indicates that for any area of crime to be included there needs to be at least a certain level of gravity that would justify EU harmonisation. 84 Therefore crimes that do not rise to this level, such as petty crimes or not particularly serious offences would not fall within the scope of Art. 83(1) TFEU. 85 Beyond this there is no clear indication as to how this should be viewed as there is no definition or even consistent application of the term ‘serious’ or ‘particularly serious’ crime in EU policy documents. The best indication can be found in some policy documents where empirical criteria are mentioned as possible indicators, such criteria include aspects such as the nature, scale, significance, and impact of the offences. 86
There are multiple indicators that speak towards chemical and biological weapons activities generally being considered as particularly serious crimes. These acts have been the subject of multiple international treaties seeking to combat them and concern about these activities is often cited for regulatory activities at several different levels. 87 The particular serious nature can also be seen in the fact that the use of chemical or biological weapons in armed conflicts is subject to universal jurisdiction in several EU member states that do have provisions addressing this. 88
The use and proliferation of chemical and biological weapons is almost universally considered to be abhorrent with widespread condemnation, as can be seen in recent cases of chemical weapons use, such as the Skripal and Navalny poisonings. 89 A similar widespread condemnation can be found in the responses to allegations of biological weapons programmes on the territory of Ukraine. 90 These reactions clearly show the significance that acts, both use and proliferation, related to biological and chemical weapons have. The little regulatory action taken by the European Union in the case of chemical weapons also underlines this understanding of the serious nature of acts with these weapons, this includes sanctions against individuals involved with the production or use of chemical weapons. 91
At the same time the impact of, especially the use of, chemical and biological weapons is significantly high, with potential debilitating effects on the whole of the European Union in the case of a potential biological weapons attack. The effects of a release of a chemical or biological agent cannot generally be contained and oftentimes result in significant numbers of casualties. Consequently, the nature, scale, significance, and impact of offences related to biological and chemical weapons all indicate that the area of WMD use and proliferation rises to the level of an area of particularly serious crimes.
The term ‘cross-border dimension’ can generally be interpreted as requiring that the crime to some extend goes beyond the borders of a single member state. Several factors could indicate this, such as the nature of the crime, its impact, or potentially even a special need to combat the area of the crime on a common basis. 92 With both the impact and the special need to combat it on a common basis it is possible that the activities all take place within the borders of a single member states, however it can still be considered to have a cross-border dimension if the impact is transnational. 93 This can for example be seen in the context of the proposed EU directive on combating violence against women and domestic violence. 94 The notion of cross-border dimension has not always been interpreted very strictly but rather in a very broad manner and dependent on what the EU legislator sought to harmonise. 95
With chemical and especially biological weapons activities there are multiple indicators that show the cross-border dimension of these crimes. Firstly, it can be argued that there is a special need to combat proliferation and use of chemical and biological weapons on a common basis. 96 This special need can be established in the context of proliferation-related activities, as the nature of the common market makes it so that these activities often have the potential of taking place in multiple member states or involve multiple EU member states. As has been established in the discussion of the national legislation, it can be found that there are certain aspects, such as the use of biological weapons as well as certain proliferation-related activities for which there currently exist so-called safe harbours.
The other aspect that clearly indicates the cross-border dimension is the impact and nature of potential biological or chemical weapons use, or unintentional release during proliferation activities. Biological and chemical weapons are generally abhorred due to the fact that in most cases the effects of them cannot be contained. 97 For the determination of a cross-border dimension it is especially important that the effects of a biological or chemical weapon therefore oftentimes cannot be contained to a single state. Once, for example, a biological agent is released the potential of further dispersal is relatively random and in many cases unlimited, parallels can be made here to natural disease outbreaks and their potential to spread towards other states. This also shows a cross-border dimension in the context of development or proliferation related activities, as an unintended release of such an agent, which is very possible in the case of clandestine development, would have similar effects as any intended release of a biological or chemical agent.
Art. 83(1) TFEU makes clear that the expansion should be based on developments in crime that have made EU action necessary. This could potentially be a hurdle for the adoption of chemical and biological weapons related activity as a new area of crime since it would require developments in crime since the adoption of the TFEU. There are however several factors that could be argued in the case of chemical and biological weapons as creating new developments requiring EU action. The first is that since the adoption of the TFEU there have been two instances of actual chemical weapons use on the territory of the EU, namely the Skripal and Navalny poisoning. These were the first instances of chemical weapons use on the territory of EU members. Another clear development, although perhaps not in crime per se but in general, is the SARS-CoV-2 outbreak and the effect this had on the EU and its member states. This was perhaps the first clear example of what a pandemic outbreak could cause in the modern EU and evidenced how difficult combating a potential biological weapons attack could be. There has also been an increased awareness of potential biological weapons use due to the conflict in Ukraine and the allegations that western states are involved with biological weapons programmes. 98 On top of that are technological developments that make the proliferation of chemical and biological weapons more difficult to combat as well as more dangerous, requiring more concerted action. 99
It is obvious that not all crimes that have a cross-border dimension and are of a particular serious nature are included in the list of Art. 83(1) TFEU. 100 It is therefore not only these two criteria that are of importance, there generally also needs to be a special need to combat the area of crime at the EU level, there needs to be some form of added value. This has at times been interpreted to be as broad as preventing the notion of ‘forum shopping’ or to ensure that there are no safe havens. 101 This can however be interpreted as broadly as also considering the symbolic potential that a decision to harmonise legislation, re-affirming values and importance of the EU. 102
The Commission itself has also made clear that any actions based on Art. 83 TFEU would also need to fulfil the requirements of necessity (subsidiarity) and proportionality. 103 The nature of the specific criteria of Art. 83(1) TFEU make it so that subsidiarity in itself is already incorporated within the article, as only when it is necessary to address this from an EU-level would it fall within the scope of Article 83(1) TFEU, therefore it would also be necessary from the perspective of the subsidiarity principle. 104 The proportionality aspect has been interpreted to some extent by the Commission as incorporating the concept that ‘criminal law must always remain a measure of last resort.’ 105 Therefore it should be considered that assessing the proportionality is to assess whether or not it is necessary in a certain context to implement or harmonise criminal law. 106 On top of that there is a secondary proportionality consideration specific to the harmonisation of penalties, namely Art. 49(3) of the Charter of Fundamental Rights of the European Union, which excludes clearly disproportionate sentencing. 107
It thus needs to be questioned whether there is really a need for EU action in the case of chemical and biological weapons related activities. For the EU to act in the field of criminal law extra focus must be given to the notion of subsidiarity for EU regulation. Due to the impact of criminal law it must be especially carefully considered whether the goal of these actions cannot be more effectively achieved by actions at the national or local level. 108 The need for such harmonisation needs to therefore be carefully demonstrated. One of the aspects that need to be considered is whether there is significant divergence between the national criminal provisions addressing the issue, especially whether the divergence harms the actual protections that should be offered by criminal law. As has been shown previously there certainly is such a clear divergence, with regard to both the criminal provisions themselves, as well as the penalties provided for them. While this is the case with both chemical and biological weapons, it is also clear that with biological weapons there is more divergence than is the case with chemical weapons. Harmonisation is therefore especially needed for the prohibition of acts concerning biological weapons. This combined with the significant EU-wide effects that the use and proliferation of these weapons would have can be considered as requiring EU-wide actions. The goal of combating biological and chemical weapons cannot be more effectively achieved by activities at the national or local level. Especially due to the nature of the single market there is a need for a concerted effort.
It therefore needs to be considered whether this divergence harms the actual protections that would be provided for with harmonised penal legislation on biological and chemical weapons. As is shown with regard to the cross-border dimension, the lack of such provisions provides for potential safe harbours for the development or use of biological weapons. The existence of these safe harbours not only present a lack of protection in the states that constitute these safe harbours but present dangers to the other member states of the European Union as well.
What needs to also be considered in this context is whether this divergence can be alleviated by other means. The main possibility through which such divergence can be alleviated is by states implementing the necessary legislation themselves. This possibility cannot be seen entirely separate from the relevant international agreements, especially Art. IV BWC and Art. 7 CWC. States are obligated to implement relevant penal provisions under these articles, and this could potentially in itself alleviate the issue. However, practice related to these articles has shown that this approach has not resolved the issue. This is due to different reasons. The first is that there is broad discretion with regard to both the necessary penal provisions as well as the sanctioning. This still has the potential of creating loopholes as well as states that do not have effective provisions. On top of this there is a general lack of enforcement of these provisions. In the BWC this is a structural issue as there is no enforcement or compliance mechanism, while within the CWC, a compliance mechanism does exist but it has been relatively weak with regard to national implementation measures, especially necessary criminal sanctions. Art. IV BWC has another weakness in that it does not obligate the prohibition of use within the necessary national measures and therefore this article cannot be used to alleviate divergence in this context. Overall, practice has shown that these international agreements by themselves cannot be relied upon to ensure comprehensive protections for chemical and biological weapons. It is also due to the existence of these obligations and their inability to ensure adequate protections in national legislation that it appears unlikely that states will alleviate the divergence on their own accord without EU harmonisation.
There is therefore a good justification and a solid foundation for the expansion of the areas of crimes in Art. 83(1) TFEU to include WMD-related activities. The expansion of the areas of crimes would not be an unprecedented move, as the Council has already expanded this list of areas recently by also incorporating the violation of Union restrictive measures. 109 There is also a current ongoing initiative to incorporate hate crime and hate speech as another new area of crime. 110 It could be argued that WMD-related activities are potentially just as necessary to be included in Art. 83(1) TFEU and also require joint EU action and harmonization.
Conclusion
As this all has shown there is significant divergence in the national provisions addressing chemical and biological weapons, which potentially allow for the existence of safe harbours, especially with regard to the use of biological weapons. The use or proliferation of biological or chemical weapons would have a significant effect on all member states of the EU as well as the EU as a whole. This therefore requires EU-wide action. It is therefore imperative that the EU Council initiates the proceedings to incorporate WMD-related activities within the areas of crimes mentioned in Art. 83(1) TFEU, which would allow for the harmonization of national substantive criminal law.
Even though current directives harmonising criminal law have not been fully implemented by all member states, the adoption of a directive does ensure a higher degree of coherence and over time there will be full implementation. However, these are only the goal-oriented perspective towards crime and what must not be overlooked is the symbolic factor that incorporation within EU law would have. While this argument certainly should be considered as being subservient to the utilitarian, as the context of EU-criminal legislation has largely been focused on the utilitarian approach 111 , it is a factor that needs to be taken into account, especially in light of a potential shift in the focus on this approach that can be considered from the recent proposed directive combating violence against women, where the symbolic effect can clearly be seen. 112 The adoption of specific penal measures from the EU would show the shared values of the EU with regard to chemical and biological weapons. While adopting penal measures on solely symbolic grounds would likely go against the notions of subsidiarity and the ultima ratio of criminal sanctions 113 in the case of biological and chemical weapons there are clearly valid grounds outside of the symbolic nature and this is only an added strength of such a decision.
The ongoing armed conflict in Ukraine that has included consistent fears and allegations related to chemical and biological weapons shows that the threat of biological and chemical weapons has not decreased and likely will remain a realistic threat for the coming decades. It is therefore necessary to act now and ensure that there are no safe harbours within the EU while at the same time giving a clear indication that the use and proliferation of these weapons are abhorrent to each of the member states as well as to the EU as a whole.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This work was supported by the German Federal Ministry of Education and Research (Grant Number 01UG2202A).
