Tendencies And Evolution Of American And European Criminal Law

CONTENTS

1. Introduction

2. Reflections and thoughts for the principle of offensiveness, guilt, proportionality in the European criminal law according to the jurisprudence of the CJEU

3. Fake news, pandemic and criminal protection in COVID-19 period

4. Sexual offenses in the American context. The California case

5. Civil forfeiture towards a new model of "civil confiscation" of illicit wealth

6. Cyberbullying and sexting. New open frontiers of criminal law: The case of Canada and Australia

7. Critics and thoughts in Gambia v. Myanmar case by the ICJ. Genocide in Rohingya?

Abstract

This work seeks to give insights into some very important issues that aim to give light to open legal discussions and above all the role of the Court of Justice of the European Union (CJEU) in the evolution of Union criminal law.

In particular, the influence of CJEU as an inter partes court continues with another research, which is inspired and aims to analyze the limitations, derogations, and proposals affixed to the right of personal's data protection in the light of recent legislative and jurisprudential developments, made especially in the legislative context of EU and European Council.

Our work continues and focuses on the jurisprudential analysis of some fundamental principles that reign in every national penal system in relation to EU system.

We continue with an examination of a limited profile that is seen to be faced with a fundamental principle, the right to freely express one's thoughts, defined as the cornerstone of the democratic order, with new forms of aggression and new forms of protection, both capable, in the absence of a careful balance, to compress the fundamental freedoms of the citizen.

We continue with the choice to anticipate the presentation of three cases actually subject to scrutiny by the judicial courts from the technical-legal viewpoint is dictated by the fact that from their reading it emerges which are the most significant problems with regard to ascertaining responsibility for sexual crimes.

Another paper is concentrated on the analysis of the civil forfeiture; is a judicial non-conviction-based confiscation, independent of the criminal proceedings and a conviction that is applied by a judge to the outcome of a judicial procedure of essentially civil nature.

We continue our research with another paper who tries to investigate and analyze new crimes such as sexting, cyberbullying and bulling in a comparative way. Cyberbulism is in fact a term which includes a vast range of different behaviors, which many times do not cover criminal figures punishable by any criminal code at national or international level.

Our last work work seeks to examine a last case that has dealt with the ICJ recently, particularly the situation between Gambia v. Myanmar.

1.Introduction

² Ten years have passed since the entry into force of the treaty of Lisbon and despite the pain of being adopted before 2010, the difficulties of the path of European integration continue to this day. Discussions and questions have been open for years, reaching a peak with Brexit and a few years ago with Grexit which was not achieved. The crisis on various themes and policies of the European Union (EU) continues but the Treaty of Lisbon, the "lord of the treaties" still continues to be in force and perhaps it will be re-evaluated, revised or modified in the coming years by the States that are already part of and/or with new ones.

This work seeks to give insights into some very important issues that aim to give light to open legal discussions and above all the role of the Court of Justice of the European Union (CJEU) in the evolution of Union criminal law.

In particular, the influence of CJEU as an inter partes court continues with another research, which is inspired and aims to analyze the limitations, derogations, and proposals affixed to the right of personal's data protection in the light of recent legislative and jurisprudential developments, made especially in the legislative context of EU and European Council. The development of a "supervised society" is the result of the convergence of various factors, linked to the particular historical moment we are experiencing. First of all there is an increased need, felt both internationally and nationally, to reinforce security measures in order to prevent attacks by criminal groups and international terrorists. Moreover, the application of the aforementioned measures was possible thanks to the concomitant technological progress, which we allowed to store and process an ever increasing number of personal information.

Our work continues and focuses on the jurisprudential analysis of some fundamental principles that reign in every national penal system in relation to EU system. It will be sought through CJEU jurisprudence to underline how EU has now become a constitutional subject, given that the integration process has reached the most genuinely constitutional level, namely the protection of fundamental rights, which represents the highest expression of sovereignty and the main element of legitimization of it, which therefore seems military in favor of a definitive attribution of criminal jurisdiction to the institutions of the Union, at least as regards the protection of goods legal systems that are genuinely European.

We continue with an examination of a limited profile that is seen to be faced with a fundamental principle, the right to freely express one's thoughts, defined as the cornerstone of the democratic order, with new forms of aggression and new forms of protection, both capable, in the absence of a careful balance, to compress the fundamental freedoms of the citizen. Within this comparative aspect, we will distinguish: a) a content of a defamatory nature, i.e. cases in which news or visual content affects the honor or reputation of one or more individuals identified or identifiable, without the causes of justification of the right to report and the right to criticize; b) historical revisionist type content, i.e. false information disseminated for the purpose of influencing the thinking of contemporaries regarding events of the past; c) false anti-scientific content aimed at supporting minority theses or not accepted tout court by specialist literature, which are not epistemologically verifiable and falsifiable; d) fake generalist or entertainment news, apparently devoid of offensive content and disseminated in order to generate traffic on the sites that convey them, thus making profits through the so-called Clickbaiting mechanism.

We continue with the choice to anticipate the presentation of three cases actually subject to scrutiny by the judicial courts from the technical-legal viewpoint is dictated by the fact that from their reading it emerges which are the most significant problems with regard to ascertaining responsibility for sexual crimes. In particular, this paper tries to show how the profile of greatest interest revolves around the alternative if it is more important that the American legislator places the accused at the center of the case, enhancing the methods of conduct carried out by the same, specifically the fact that the attacker made use of force and violence for the purpose of committing the crime, or whether it is preferable to focus on the requirement of the victim's lack of consent, valuing his intimate will, expressed or not expressed. The method used is that of comparison (United States-Europe) and in-depth jurisprudential and doctrinaire study at international and American level.

Another paper is concentrated on the analysis of the civil forfeiture; is a judicial non-conviction-based confiscation, independent of the criminal proceedings and a conviction that is applied by a judge to the outcome of a judicial procedure of essentially civil nature. The confiscation of illicit proceeds has the effect, not of depriving the subject of something he previously lawfully possessed, but of eliminating the economically advantageous consequences that have resulted from the commission of an illicit fact, in the absence of which the subject would not have obtained that enrichment that confiscation serves to neutralize. The confiscation of the proceeds would not therefore be of a punitive nature since (and on condition that) it does not affect assets that the subject has legitimately purchased or exceeds the value of the fruit of the crime. Only in this way the measure does not negatively affect the assets of the person, but it simply prevents it from enjoying assets over which it has no right to exercise ownership.

We continue our research with another paper who tries to investigate and analyze new crimes such as sexting, cyberbullying and bulling in a comparative way. Cyberbulism is in fact a term which includes a vast range of different behaviors, which many times do not cover criminal figures punishable by any criminal code at national or international level. These are new open frontiers, elements that must necessarily be kept in mind when one comes to the legal side of the issue. In spite of scientific divergences, the aforementioned multiplicity can be brought to unity by recognizing the presence of recurring elements such as aggression, intentionality, repetitiveness, together with the obvious use of electronic and digital communication means. A very important aspect on these figures and new phenomena is the relationship with minors and legal protection at an international and European level in this area of criminal law.

Our last work work seeks to examine a last case that has dealt with the ICJ recently, particularly the situation between Gambia v. Myanmar. Is this a case of genocide in Rohingya? The issue of genocide should be investigated in both substantive and procedural terms. With reference to the substantive aspect, after a concise reconstruction of the facts, the International Court of Justice (ICJ) followed a line based on the international jurisprudence of the international criminal justice, that is by the ad hoc criminal tribunals and by the ICC. The method used is the comparative one between jurisprudence of international level and with personal criticisms that try to better analyze the ICJ's decision for precautionary measures.

2.Reflections and thoughts for the principle of offensiveness, guilt, proportionality in the European criminal law according to the jurisprudence of the CJEU

SUMMARY: -Introduction; -The principle of offensiveness; -The Amsterdam Bulb BV sentence; -The sentence on the Greek maize scandal (Commission v. Greece); -The El Dridi case law; -After the El Dridi case law; -(Follows) Some reflections…; -The principle of guilt; -The distinction between intentional and unintentional crimes; -The concept of intentionality; -The concept of negligence; -The affirmation and the overcoming of the objective criminal liability; -Ignorantia legis non excusat; -The concept of force majeure; -(Follows) Reflections; -The principle of proportionality in European criminal law; -The principle of proportionality and the free movement of persons; (Follows) And coming to the most recent times…; -The principle of proportionality of penalties and the free movement of goods.; -The principle of proportionality, freedom of establishment and freedom to provide services; -The principle of proportionality and the free movement of capital; -(Follows) Some critics…; -Concluding remarks; -References.

Introduction

In our days, now ripe by legal globalization and continuous jurisprudence from the Courts of the European Union, it is necessary to identify an axiological horizon and principles that lay the foundations of the system of European Union law also in criminal matters, with full understanding of the limits that appear to be proper to the use of ius puniendi and the specifics of the Union legal order. What, this, which is, albeit difficult, feasible, where reference is made to legal cultures that, despite their differences, are similar enough to allow the development of a shared universal grammar. This seems achievable for Western countries or at least, by limiting the scope of analysis, the countries of the European Union- despite the presence of common law systems-because of a common cultural base that must be identified in the protection of rights. The exposition of the different themes will show how the pronouncements of the Court of Justice of the European Union (CJEU) and the General Court (GC) in criminal matters are not only numerous, but also and above all characterized by the progressive emergence of an awareness, of a criminal sensibility³ and the will to elaborate an intrinsically coherent system, it is up to the interpreter the task of categorizing and systematizing the reasoning of judges of Luxembourg, identifying those elements that act as parameters of the system. It has been said that judicial pro-Europeanism cannot be fought but can and must be controlled and calibrated on our identity: This is so undeniable as to be incomprehensible, given that this line of thought has already been adopted by the jurisprudence of the Union. So, it is the opinion of the writer that the criminal rulings of the CJEU as, moreover, also those of the European Court of Human Rights (ECtHR) can be made the subject of an exposure based on the reference to the fundamental guarantee principles of criminal experience of domestic law, to be understood as meta-rules exPressive of basic needs of the Western legal tradition that identify the proper reasons of the binding discipline.

The principle of offensiveness

With reference to the jurisprudential experience of the European Union, it seems to be possible to say that a progressive emergence of the principle of offensiveness has also come about, with the aim of ensuring effective protection, not only of a façade, of legal assets referring to EU law to all, financial interests at the level of transnational crimes⁴. The consequences deriving from an exclusively statistic approach to similar realities must be evaluated. Differentiated sanctioning choices favor the creation of safe havens for organized crime, involve the diversification of the levels of protection according to the State considered, alter the market conditions, compromise the knowledge of the law actually applicable⁵. Not surprisingly, there are those who say that, alongside the traditional four fundamental freedoms recognized in the European system, a fifth, unexpected and unwanted affirmation has been affirmed: That of circulation of criminality⁶.

The Amsterdam Bulb BV sentence

The problem that arose concerned the non-compliance by a Dutch company, the Amsterdam Bulb, of the minimum price for the export of flower bulbs to the United States. This price had been set by the Dutch plant for ornamental plants, authorized by law. In the ensuing judgment, Amsterdam Bulb BV stated that there was a conflict between the state legislation and the relevant European regulations⁷. Mainly, the question at issue was found to be inherent in the case of internal legislation reproducing that of a European source. This problem has already been addressed and resolved by the jurisprudence of the CJEU⁸, in the sense of excluding the compatibility of this practice with European Union law for two reasons: On the one hand, the misunderstanding about the legal nature of the rules and the moment of their entry into force; on the other, the doubt about the possibility of using the preliminary reference instrument. In the Amsterdam Bulb case, however, there was another aspect to be considered, deriving from the fact that the Dutch legislation provided for penal sanctions for any infringements committed. Which, therefore, made the penalties in question also applicable to behavior contrary to European Union law⁹.

For the Advocate General (AG) Capotorti it is not in a situation of incompatibility. This is because a penalty is not likely to alter the content of the rules of a European regulation. In fact, a criminal law that is ancillary to a principal rule of conduct presupposes that rule, with its content, without affecting it. The only limit to the introduction of criminal sanctions must therefore be found in the case in which the regulation already provides for European sanctions. Failing that, there is no conflict with European Union law where a state introduces such legislation¹⁰.

According to the courts of Luxembourg, art. 5 TEU obliges Member States to issue any general and specific measure to ensure compliance with the obligations arising from the acts of the European Institutions, giving each of them the right to choose the appropriate measures, including penal sanctions¹¹. It would seem possible to identify a contradiction in the reasoning of the CJEU. In fact, if art. 5 of the Treaty, which recognizes the principle of European loyalty/loyal/sincere cooperation¹², imposes an obligation on Member States to issue measures aimed at guaranteeing the fulfillment of the obligations deriving from the acts of Institutions, then it could not be considered that the States have a mere faculty to establish the sanctions that they consider opportune: Inherent in the concept of faculty-from a logical point of view, even before juridical-there is the power not to exercise it. If we are dealing with the issue of the provisions, then the obligation should also concern the adoption of sanctions. The question could be explained by referring to the CJEU's political, rather than legal, will not to excessively irritate States, affirming the existence of an obligation to penalize which could have been perceived as contrasting with the reserve of sovereignty. In the light of the sentence on the Greek maize scandal case¹³, one might also remember that nature is not facit saltus and that only progressively has it come to derive the existence of this obligation.

According to our opinion more than a contradiction seems to be able to talk about a reasonable position taken by the CJEU. In fact, the relevant European legislation concerned the establishment of a common market in the agricultural sector, without thereby assuming any importance-as will be the case in the Greek maize case - the protection of own resources, i.e. the European financial interests. Therefore, it does not seem unfair to speak of a faculty left to the free appreciation of national legislators, where such interests are not taken into consideration.

The sentence on the Greek maize scandal (Commission v. Greece)

The Commission v. Greece case of 30 June 1989 was introduced by an action for failure to fulfill obligations brought against Greece, accused of having failed to ascertain and pay the own resources of the European Economic Community. The question arose as a result of the importation from Yugoslavia, without the application of any tax levy, of certain consignments of maize, which were then exported to Belgium as Greek products¹⁴. One of the complaints formulated by the Commission concerned a violation of article 5 of the Treaty, consisting in the failure to initiate criminal or disciplinary proceedings against the perpetrators of fraud and those who had collaborated in various capacities with it. The setting of the AG Tesauro and that of the CJEU come to coincide. The first states that the principle of sincere cooperation implies the duty of Member States to properly prosecute and punish anyone responsible for infringements of European Union law, in order to prevent its effectiveness from being undermined.

The CJEU decision is in the same sense, even if formulated in clearer terms and stentorisms: "(...) where a Community discipline does not contain a specific sanctioning rule of an infringement or that it refers to the laws, regulations and administrative provisions national legislation, article 5 of the Treaty requires Member States to take all measures necessary to ensure the scope and effectiveness of European law (...) in any case, give the sanction a character of effectiveness and proportionality and of deterrent capacity (...) national authorities must proceed with respect to infringements of European law with the same diligence used in the implementation of their respective national legislation (...)¹⁵. In case of violation of properly European interests, the existence in Member States of a genuine obligation to provide sanctions cannot be derived from the principle of loyal cooperation. known formula of the measure having a character of effectiveness, proportionality and deterrent capacity¹⁶. This may indicate a penal sanction as well as an administrative sanction, as it is remitted to the internal legislators an assessment of the analogy between violations of state law and violations of European Union law¹⁷. It is a matter of making a quick reference to the two known cases relating to the division of powers between the first and third pillars, both originating from actions proposed by the Commission, supported by the European Parliament, against the Council of the European Union, supported by many governments of member countries¹⁸.

In the first case, the European Commission (EC) called for the annulment of the framework decision on the protection of the environment through criminal law, as based on an erroneous legal basis. On this point, the Commission stated that, although there was no general European competence in criminal matters, it would still be possible to impose on Member States the obligation to provide for criminal sanctions as necessary means to ensure the effectiveness of supranational legislation. Thus, the harmonization of national criminal disciplines would be configured as an instrument at the service of European policy in the field of the environment and, in support of its thesis, the EC recalled the jurisprudence on the obligation for Member States to prepare effective sanctions, proportionate and dissuasive in order to protect European interests.

The Council and the intervening governments noted how the TEC protected the competence of States with regard to the application of national criminal law and the administration of justice in their systems¹⁹ and how the possibilities of European Union intervention in the criminal field were governed by the dedicated title to police and judicial cooperation. The Commission's statements would therefore have integrated a paradox: On the one hand, they led to believe that the authors of the Treaties had wanted to give the Union implicit penal jurisdiction²⁰ ; on the other hand, they were unaware that the authors themselves had explicitly attributed similar competence to European Union.

On the contrary, for the CJEU, environmental protection is one of the essential European objectives, therefore the European legislature is entitled to take the necessary measures relating to the criminal law of Member States, when the application of effective, proportionate and dissuasive measures by the competent national authorities is an indispensable measure to combat serious environmental violations²¹. Therefore, the framework decision was annulled, since it "bordered" in the European competences. This reasoning, as regards the relationship between first and third pillar instruments, was subsequently confirmed in the sentence annulling the framework decision on the rePression of pollution caused by ships for breach of a European competence. The AG Ruiz-Jarabo Colomer, who states: "(...) the power to impose civil, administrative or criminal penalties must be qualified as instrumental competence, aimed at ensuring the effectiveness of European law (...) once European harmonization has introduced uniform situations, national laws must sanction prohibited conduct, establishing in concrete the rePressive measures connected to the infringement, so as to restore the material situation and the altered juridical order (...)"²². With this, then, the idea is reiterated that there are goods of such importance as to oblige to resort to criminal sanctions in order to ensure adequate protection²³.

The El Dridi sentence

The second orientation to be accounted for originates from the Mr. El Dridi case, a non-EU citizen illegally entered in Italy and without a residence permit. Following a check carried out in September 2010, the police were able to discover that they had been issued a decree of expulsion by the prefect of Turin and an order of removal by the police chief of Udine, to the which Mr. El Dridi did not conform, remaining in Italy. At the time, the legislation in force stipulated that the violation of the removal order issued by the commissioner was punished with imprisonment from one to four years. Following the completion of the implementation of Directive 2004/38/EC²⁴ on the free movement of EU citizens and for the implementation of Directive 2008/115/EC on the repatriation of citizens of irregular third countries, the application of financial penalties of various amount, depending on the case²⁵.

The purpose of the Directive in question is the implementation of an effective policy on expulsion and repatriation, based on common rules, in order to allow non-EU foreigners present irregularly in the territory of the Union to be repatriated in a human manner and respectful of the their fundamental rights and their dignity. In this regard, the AG Jan Mazák²⁶ has the opportunity to point out that States have the full right to regulate the entry, stay and removal of foreigners from the territory over which they exercise sovereignty: By evoking previous case law of the Court of Strasbourg, it recognizes to this right the principle nature of international law²⁷.

The problem raised by the specific case is another and concerns the possibility that the Union legislation can actually be applied, and therefore achieve its objective, despite the provisions of Italian law. Since the aim is to see an effective return policy implemented, it is clear that the effectiveness of the Directive is compromised by the state discipline, given that, on the one hand, it is necessary to remove the irregular foreigner from the territory. EU, on the other, is expected to retain that same foreigner in the territory of the state in order to punish him. Not only: Given the sufficiently precise and unconditional nature of art. 8, n. 1, read in conjunction with art. 15, it is to be considered that such a provision results in a direct effect, such as to authorize the individual to invoke the same against the State that has not implemented the EU legislation, so as to cause the incompatible internal regulation to disapply²⁸. The CJEU²⁹ recognizes the unconditional and sufficiently precise nature of the provisions considered, since no additional elements are required for their implementation and, in light of the principle of sincere cooperation, it is to be considered that EU legislation precludes a discipline such as the Italian one. Therefore, the existence of a sort of protected state sovereignty area with respect to the obligations deriving from EU law is excluded, which, if recognized, would jeopardize the effective possibilities of achieving the effectiveness of European Union law³⁰.

After the El Dridi case law

What was recognized in the El Dridi sentence was confirmed by further decisions subsequently made in similar cases.

The first concerned Mr. Achughbabian³¹, an Armenian citizen subjected to police detention because he was accused of the crime of irregular residence in French territory. Following the decision to extend his detention, he appealed to the Paris Court of Appeals, recalling, among other things, the previous (El Dridi), in order to see the nullity of the detention declared invalid. The Paris judges raised the question for a preliminary ruling, asking the CJEU to determine whether the Return Directive would preclude an internal law that provided for the sanction of imprisonment due to the fact of illegally entering or staying in the French territory of a non-EU citizen.

The AG Jan Mazák confirms the position, previously exPressed, about the relationship between European Union law and domestic criminal law for the purposes of achieving the useful effect of the first³². The CJEU reiterates that the Member States cannot apply penal legislation that would prevent the implementation of the objectives of a Directive, depriving it of the useful effect: And this, despite the fact that it is not possible to state that the Directive results in a ban on national qualifying rights irregular residence as a crime and, therefore, to penalize such conduct³³.

The repatriation procedure must be applied as a matter of priority, with the consequent impediment to internal regulations that prevent this, even though the CJEU comes to admit the possibility of applying a temporary detention measure aimed at determining whether the alien's stay is irregular or not. The CJEU was called to give a ruling with regard to the problems posed in the Sagor case³⁴, concerning a citizen of Bangladesh on trial for the crime of irregular residence pursuant to art. 10 bis of the Italian U.T immigration code. The justice of the peace of Rovigo raised three questions for a preliminary ruling, aimed at ascertaining the compatibility of this legislation with the Directive repatriations.

The El Dridi approach is not in question, in general, and above all with reference to the case of replacement of the pecuniary sanction with the obligation of domiciliary residence: Then, the Directive repatriates does not prohibit the right of a Member State to qualify the stay irregular as a criminal offense and provides for criminal sanctions to discourage and rePress the commission, without prejudice to the fact that a State cannot apply a criminal law suitable to compromise the application of the common rules and procedures established by Directive 2008/115³⁵, thus depriving the latter of its useful effect³⁶.

(Follows) Some reflections…

It is worthwhile to stop here just to remember two important aspects. The first is that it marks the emergence of the principle of offensiveness in the jurisprudence of the CJEU. This, of course, implicitly, without a clear reference, but in any case difficult to contest, given that the principle of loyal cooperation also derives the obligation, for internal legislators, to prepare a protection for the interests of the European Union similar to that provided for the corresponding interests at the state level, being able, however, to make a choice between administrative sanctions and criminal penalties. Thus, the Union can impose on Member States, on the one hand, sanctions, on the other, obligations to abstention from penalization, as shown by the second orientation which has been taken into account.

On the basis of these judgments, the existence of legal assets of the Union can be affirmed, which raises the question whether it is not appropriate to hypothesise a form of direct competence of the European institutions in order to protect interests which appear to be theirs. With regard to the second orientation, there are some considerations that deserve to be carried out in light of the peculiarities of the Italian state legislation that should have been applied in the cases mentioned above.

That taken into account in the El Dridi, Sagor, Mahdi³⁷, and Celaj³⁸ cases, was not any discipline, but was configured as a strongly representative act of a political direction, a majority and, ultimately, a Weltanschauung. The CJEU seems to be aware, given the recognition that the criminal sovereignty is still proper to the States and how the Directive repatriation does not prohibit the criminalization of behaviors that are linked to the migration phenomenon³⁹: However, at the same time and net of the statements, the judges do not consider that there is a limit to their negative scrutiny, since the use of the criminal option tout court undermines the effectiveness of the Directive. Therefore, it is not absolutely forbidden to introduce penal sanctions, but a relative prohibition, to the extent that such sanctions are such as to be detrimental to the policy of expulsion pursued by the European Union. This would appear to be the recognition of the existence of a still considerable amount of intervention in the field of immigration through criminal law. In reality, this is not so, where attention is drawn to a particular assessment carried out by the CJEU in the El Dridi sentence⁴⁰.

Pursuant to art. 2, par. 2, lett. b) of the Return Directive, Member States may decide not to apply this Directive repatriation to third-country nationals subject to repatriation as a penalty or as a consequence of a criminal sanction, in accordance with national legislation, or subject to extradition procedures. In the specific case, it is true that Mr El Dridi should have been subjected to repatriation, but this would not have been established either as a penalty or as a consequence of a criminal sanction, since it was a measure resulting from administrative measures⁴¹. So, as stated by AG in par. 26 of the position, the criminal proceedings to which Mr El Dridi was subjected is not the cause of the obligation to repatriate, but the consequence of the non-execution of that obligation: Then, he is not covered by the hypothesis of an exception art. 2, paragraph 2, lett. b) of the Directive, which is the only case in which it is possible to prefer the penal option to the administrative one. The same CJEU, in par. 49 of the sentence, has likewise a way of underlining this passage. The penal sanction assumes an instrumental function with respect to the administrative procedure of repatriation and, in this sense, it seems a military argument that can be derived from the Sagor and N. sentence⁴². For the CJEU, the European legislation does not preclude a state discipline that penalizes the irregular residence of non-EU citizens with a monetary penalty that can be replaced by the punishment of expulsion, since the decision to return may also be a ruling made by the criminal judge. The impeding effect is instead determined with respect to a state regulation that provides for the replacement of the pecuniary sentence with the obligation of residence at home.

Therefore, the use of the criminal penalty is precluded and in this it seems to be able to identify a push towards the abandonment of criminal law in matters of immigration, especially where the use of this is dictated by symbolic rather than actual reasons. Thus, in light of the first approach taken into account, the CJEU seems to be entitled to a judicial review of the lack of or insufficient introduction of state criminal law for the protection of the interests of the European Union⁴³. Indeed, in light of the second orientation, it comes to attribute the legitimacy to evaluate the choices of criminalization made by internal legislators that are in contrast with the objectives that the Union sets itself to realize. The assessment of the judges of Luxembourg was based on the state legislative power that should always be exercised consistently with the obligations arising from the law of the Union, without being able to think of protected areas of the legal system, due to the particular proximity of the same with the concept of sovereignty and with the positive sanction possibly emanating from the electoral body.

The criminal law of immigration is to be severely limited in its possibilities of explanation, because of the servant nature with respect to repatriation which, implicitly but undeniably, the CJEU has recognized to the criminal reaction in this matter.

The principle of guilt

The principle of guilt constitutes a principle of juridical civilization that for which the attribution of criminal responsibility cannot be based on the mere fulfillment of a fact, or on the sole ascertainment of the anti-juridical character of the accomplished fact, as the existence of a psychological element is also necessary to allow to report the conduct to the author of the same. This is the principle of guilt, exPressed by the opinion according to which nullum crimen, sine poena sine culpa, thanks to which the idea of the need for an interconnected psychic link between the subject and the (psychologically his) work manifests itself. Point of contact between law and morality, by means of this principle the idea is exPressed of a personal rebuke addressed by the legal system towards the agent. The affirmation of it is part of a process of progressive “nationalization” of criminal law, such as to allow this branch of law to overcome a situation, characteristic of primitive systems, which is that of objective responsibility, understood as the attribution of a made to the author based solely on the material causal relationship. The nature of the judgments that follow are punctual and that require the interpreter to draft a systematic reconstruction, from which to start to try to formulate a judgment on the CJEU's approach to the principle of guilt⁴⁴.

The distinction between intentional and unintentional crimes

In the Rinkau case of 26 May 1980 relating to the case of a person found in the Netherlands driving a vehicle equipped with a radio transmitter without the necessary authorization, and therefore sentenced to pay a fine or a day's fine arrest for non-payment, the Luxembourg courts were called upon to rule on the interpretation of the Protocol annexed to the Brussels Convention of 27 September 1968 concerning jurisdiction and the enforcement of judgments in civil and commercial matters. Properly, one of the questions posed concerned the meaning of the term "non-voluntary infraction", as per art. 2, first sub-paragraph⁴⁵.

In this regard, the CJEU clarifies how, even in the absence of a definition contained in the Convention, one should deal with an autonomous concept, elaborated taking into account the aims and structure of the Convention and, secondly, the general principles of the state systems. In the light of these references, we can distinguish between "intentional crimes" and "unintentional crimes"⁴⁶ in the terms for which "intentional crimes include, to be punishable, the intention of the author to commit the prohibited act, unintentional crimes may be due to imprudence, negligence, or simple objective transgression of a legal norm"⁴⁷.

Having identified this summa divisio, in which the dichotomy between crimes and culpable crimes is recognizable, the next step consists in defining what constitutes concepts such as intentionality, imprudence, negligence or simple objective transgression of a juridical norm⁴⁸.

The concept of intentionality

The most important decision on the issue of intentionality was taken by the CJEU with reference to the interpretation of the sanctions adopted following the discovery of Iran's nuclear proliferation program. Properly, the root cause concerned the conduct of an Iranian company which had acquired equipment in Germany for the development of nuclear missiles. The questions referred for a preliminary ruling were related, inter alia, to the subjective element identified, in the Union legislation, through the adverbs "knowingly and deliberately"⁴⁹. The referring court asked whether they presupposed the actual knowledge and the will of their behavior by the agent, or whether it was sufficient to believe that the perpetrator considered as possible and accepted the circumvention of the ban.

The AG Yves Bot clarifies two aspects, first of all: First of all, the fact that it is a notion that must be the subject of an autonomous and uniform interpretation, as it is set by a regulation of the European Union; therefore, as this is a criminal matter, the need to guarantee respect for the general principles of EU law, as well as the principle of autonomy of criminal law. For the AG, a free conscience and a free will must coexist in the subject who is the author of the forbidden behavior, that is to say not unimPressed by a mental problem or a coercion. Then, a conscious and deliberate conduct may turn out to be both that of the subject acting intentionally, with the aim of violating a prohibition, both that of the person acting for imprudence or negligence, having reasonable grounds to believe that his actions would violated the prohibitions⁵⁰.

The CJEU also concludes that the exPression "consciously and deliberately" refers to the two elements of knowledge and will, which occur when the subject pursues a certain goal or, at least, considers that his behavior can lead to the realization of this objective or in any case achieve a certain result and accept the possibility⁵¹.

its most recent ruling on the matter, the CJEU was asked to clarify the notion of "intentional non-compliance" in some regulations concerning aid to the common agricultural policy sector⁵². The answer was to confirm the previously emerged approach to violation of rules that pursues a situation of non-compliance with them or even that it accepts that the eventuality of such non-fulfillment comes to verification, without pursuing it⁵³.

The concept of negligence

In a lawsuit originating from an accident at work reported by an employee of a Finnish company for a malfunction of the equipment used, CJEU was asked to clarify the obligations imposed by European Union law on the importer of machinery presenting the CE marking and the CE declaration of conformity⁵⁴. In providing a timely listing of these obligations - verification of the presence of the CE marking and declaration of conformity, translation of these in the language of the Member State of importation, verification of the presence of instructions translated, completion of an information and collaboration activity with the national supervisory authorities, the CJEU seems to implicitly refer to compliance with a duty of care, even if it does not provide a definition to that effect.

Subsequently, the notion of negligence came to light in the Intertanko case, concerning the interpretation of Directive 2005/35⁵⁵, and specifically the reference to "serious negligence"⁵⁶. The CJEU pronounces itself in these terms: "the notion of" gross negligence "(...) must be understood in the sense that it involves an involuntary action or omission by which the responsible person violates, in a qualified manner, the obligation due diligence that he should have been able to respect in the light of his qualities, knowledge, skills and his subjective situation (...)"⁵⁷. Under which "Member States shall ensure that discharges of pollutants by ships in one of the areas referred to in article 3 (1) are regarded as infringements if they are carried out intentionally, recklessly or through gross negligence (...) and in the presence of the circumstances foreseen by that decision (...)"⁵⁸.

The affirmation and the overcoming of the objective criminal liability

The issue of objective criminal liability has also emerged in the jurisprudence of CJEU and only in particularly recent times has it come to overcome the original approach, which had admitted its legitimacy without too much trouble.

The first case that arose concerned the provision, in the Danish legal system, of a form of objective criminal liability for the employer for the failure by the employee to respect rest periods. Consistent with the teaching of the sentence on Greek maize scandal⁵⁹, Denmark had taken steps to assist the European source discipline with an effective, proportionate and dissuasive sanction which, in the case of the employer, would have resulted in the application of a fine irrespective of the existence of malice or of the fault of that. The EC also affirmed the thesis of legitimacy, considering that the choice made concerned the introduction of an effective means of guaranteeing compliance with the obligations laid down by the European rules. The defendants of the company stated, instead, that the provision of an objective criminal liability was such as to impose excessive obligations compared to those obtainable from the regulation and to determine a distortion of competition among transport companies⁶⁰.

The reasoning has two horns. The first is of a comparative nature: Considering the legal systems of Member States at the time, the AG notes that, with reference to the responsibility of the employer and/or the company for the behavior of the employees, in some States objective criminal liability, in other forms of civil liability, which however disregarded the assessment of the existence of the psychological element. In the light of what is identified as a common constitutional tradition, the existence of an absolute prohibition to introduce, in particular cases (for example, environmental protection, workplace safety, consumer protection), a system of objective criminal liability.

The second horn focuses more on the EU law. At that time, there already existed a jurisprudence of CJEU-later enriched -on the principle of proportionality, understood as a parameter of control of the discretionary choices of national legislators as to the appeal-also-to the criminal option, if this were proved to be restrictive of a freedom recognized by the Treaties. Properly, the national legislators did not impose-nor is it obliged-to always privilege the protection of European Union liberties but, in the case in which it was considered-or thought-to sacrifice them, they are required to make a balance between the demands placed on the basis of this choice and the good/value principle sacrificed. In the case in question, the reference to the principle of proportionality is made to legitimize the choice made by Denmark, noting how a system of objective criminal liability can be consistent with that principle where it seeks to achieve important interests, such as the promotion of road safety. and the improvement of workers' working conditions, and where no excessive penalties were imposed. The indication is therefore in the sense that the Danish legislation is compatible with European law, also in light of the principles of criminal law.

The CJEU deals with the issue only in terms of compliance with the obligations arising from regulation and protection of competition, without responding to the criminal suggestions of AG and orienting itself towards excluding the incompatibility with European law of the regime of objective liability provided that the sanction contemplated is "similar to those imposed in the event of infringement of the rules of national law of a similar nature and importance and (...) proportional to the gravity of the infraction committed (...)"⁶¹.

The CJEU had to rule on a similar issue, always relating to the criminal liability regime of employers in the transport sector for the non-respect of rest periods by employees. Also called in this case to formulate the conclusions, the AG Van Gerven confirms its orientation favorable to the maintenance of a form of objective criminal liability, referring to the precedent mentioned above, in the terms for which the relevant legislation⁶² "does not prescribe or prevent Member States from establishing a system of strict liability with a view to ensuring compliance with the obligations imposed on the undertaking (...)”⁶³. The same solution was offered by CJEU⁶⁴.

At the beginning of the nineties, the objective criminal liability found full citizenship in the Union system⁶⁵. After many years, the changed sensibility AG would have offered the possibility to the CJEU to review a problematic position as regards its relationship with the protection of fundamental rights as well as with the most basic canons of assessment of criminal responsibility. In the Aalborg Portland case of 11 February 2003, the decision by which the CJEU reduced the liability of a Danish company for anti-competitive conduct was challenged, reducing the amount of the fine imposed on it by the Commission. The condemned company requested the annulment of the decision emphasizing how, due to particular corporate events, the conduct complained of should have been referred to a pre-existing legal entity, which became the owner of fifty percent of the company itself. On this point, the words of the AG Dámaso Ruiz-Jarabo Colomer appear, at first sight, carved in stone: "(...) the Court must first recall a general principle of law, developed as a limit to the exercise of the ius puniendi of the public authority: That of the personality of punishment, which is a corollary of the principle of guilt, the first and most important exPression of which is that only the author can be criticized for a sanctionable behavior. This principle, like all guarantees derived from criminal law, it must be applied very cautiously in the administrative field, since, when it comes to punishing unlawful conduct, an objective or no-fault liability regime is not permissible, although its application must be modulated, since it is a legal person, no element authorizes to ignore the subjective element of guilt (...)"⁶⁶. The AG emphasizes that the subjective element of guilt suffers a process of objectification, with reference to juridical persons, not being able to speak of the existence of a will in the strict sense, but of a legal fiction such as to attribute to those infractions deriving from their behavior. It is a kind of contradiction, generated and, probably, justified by the difficulty that the responsibility of legal entities in the penal traditionally causes in the ordinances heirs of the Roman tradition of the society delinquere non potest. And yet, it is a question of contradiction, because it is denied what it had just stated so clearly.

Perhaps the CJEU could have solved the problem but, given the nature of obiter dictum that an assessment of the point would have obviously taken and considered the probable will not to uncover a Pandora's box, it makes no reference to such arguments, merely responding in terms of pure Union law, considering the continuity between the two economic realities subsistent and therefore declaring the ground for annulment unfounded.

In the pronunciation of joined cases C-201/09 P and C-216/09 P, ArcelorMittal Luxembourg SA v. Commission of 26 October 2010, which, although without explicitly regarding objective criminal liability, the CJEU seems to provide some useful indications. In a case relating to failure to comply with the legislation on aid to support rural development, the CJEU was asked to clarify whether the beneficiary's liability can be asserted, with a consequent reduction of the benefit, even if it derives from the fact of a third party who works on behalf of that. For the AG Juliane Kokott, the execution of the work by others does not automatically exclude the personal guilt of the beneficiary, as it could be poured into a hypothesis of culpa in eligendo, instruendo vel custodiendo. The beneficiary must ensure that the third party has the skills and knowledge necessary to avoid defaults. The competent authorities may therefore presume intentional non-compliance in such a case: It will be for the beneficiary to refute this presumption. However, it should be noted that, in par. 81 of the conclusions, it is categorically excluded that a person can be held liable irrespective of the fault, as this would be contrary to the principle of legal certainty⁶⁷.

The interpretation provided by the CJEU is in the same sense, whereby the beneficiary can be held responsible for the breach if he acted intentionally or negligently in the choice of the third party, of control exercised on the latter or of instructions given to him, and this regardless of intentionality or negligence of the behavior of said third party.

From the jurisprudence quoted above we can make a distinction between two different types of proportionality, one considered typical of the criminal sector and the other one of administrative law, so as to distinguish them with the terms C-proportionality (with C to indicate the criminal sector) and A-proportionality (in which A stood for administrative). The first would have a purely retrospective nature and would essentially be enough on a salary meter (grounds of desert). It indicates that the severity of the penalty must be related to the gravity of the violation or in more clear terms that the offender must suffer a commensurate sentence. The second one would have a perspective-like dimension, in the sense that it looks at the future and relates to the relationship between the measure or penalty and the objective it pursues. Proportionality is measured on the objective element of the crime, thus freeing the evaluation from exclusively or predominantly preventive logic. Even if it is then noted that there are no defined indices to accurately measure this proportional retribution. According to our opinion, the emphasis on punishment proportionate to the crime leaves in the first instance to think of a protection against excesses of sanctions. On the other hand, it could also operate in the direction of an aggravation of the penalty, in the sense of requiring that the punishment is not too mild. To prevent a risk of excessive emphasis on the remuneration value of the provision could serve the observation that the textual formulation of the principle is carried out in negative terms: The norm would enunciate not so much a principle of proportion, as a principle of non-proportion between punishment and fact unlawful. The principle can no longer be limited to the relationship between the gravity of the violation and the severity of the sanction from a purely retributional point of view but also expands to the assessment of the need for punishment in absolute terms and the advisability of resorting to criminal law enforcement. Thus the judgment of the relationship between illicit fact and punishment lends itself thus to be extended to all those areas which constitute, in a broad sense, forms of the treatment of the unlawful act⁶⁸.

From a practical point of view the exclusion of the proportionality test is justified only if it can significantly undermine the mutual recognition mechanism in a significant number of cases. This latter risk may arise if the principle of proportionality in the context of judicial cooperation is understood in the maximalist sense, ie in the sense that each state can verify according to its own national canon of proportionality the reasonableness of the foreign sentence⁶⁹.

Ignorantia legis non excusat

As for the principle that ignorance of the criminal law does not excuse, there are no precedents that have dealt with the issue specifically from the point of view of criminal law. However, in two cases, the problem emerged with reference to administrative punitive law.

In the first case, Mr. Louloudakis, a Greek with Italian citizenship, professionally active in both countries, saw a considerable fine imposed on the Greek authorities to have illegally imported three vehicles registered in Italy in the Hellenic Republic. The instrument of the reference for a preliminary ruling was also used-for the purpose of determining whether, in the light of Union law, there was an obligation for Member States to take into consideration, for the purpose of applying the fine, the good faith and the absence of intentionality of the scam. This is because the legislation that should have been applied in that case⁷⁰ was characterized by a peculiar complexity as regards the determination of the applicable regime.

The AG believes to underline, in the first place, how the Directive does not contain any provision in terms of sanctions, so any decisions on the matter are up to the States. This, also with reference to the will to highlight any good faith on the part of the author of the violation. National sanctions must not prevent the realization of the freedoms guaranteed by Union law, above all the freedom of movement of persons. Therefore, in the event that a person has exercised that freedom in good faith by using vehicles registered in another Member State in a Member State, that situation and the absence of fraudulent intent in imposing sanctions can not be disregarded⁷¹.

The assessment exPressed by the CJEU is essentially the same, so that "where there is a general principle in national law, in the rePressive field, according to which the law does not admit ignorance, Union law does not prevent this principle from being applied case of infringement proceedings concerning the temporary importation of certain means of transport, nevertheless, in the light of the purpose of the Directive, which seeks to promote freedom guaranteed by the Treaty, the good faith of the offender must be taken into account when determining the sanction actually imposed to the latter when the determination of the applicable regime has led to difficulties (...)"⁷².

In the second case, Mrs Gerken, a German agricultural entrepreneur, was not granted premiums for some of her own cattle because the proof of their age had not been provided to the German administrative authorities in accordance with Union law. The point is that this exclusion came to be based on a change of practice, followed by the competent office, which took place on the date following the presentation of the request by Mrs Gerken. On this point, the CJEU declares that, in the event that proof is given of having submitted information that is actually correct and in any case of having been free of fault, the penalty⁷³ must not be applied⁷⁴.

The concept of force majeure

Although not related to criminal matters, the Valsabbia judgment of 5 December 1979 is fundamental to understand the concept of force majeure. The cause of the case was the appeals submitted by steel companies from different Member States, operating in the field of rod production for reinforced concrete, in order to obtain the annulment of the individual decisions by which the EC had imposed their pecuniary sanctions for the violation of the regulation of mandatory minimum prices⁷⁵. This discipline was introduced to counteract a crisis experienced by the steel industry, characterized by a significantly higher supply demand and by prices reduced below the value of production costs, with deleterious effects that reverberated on the levels employment. Through this, the minimum prices for the sales of reinforced concrete steels were identified, understood as the basic prices that the companies operating in the sector would necessarily have to practice. The recurring companies had been sanctioned by the EC for not complying with this regime. The decision taken by the EC was challenged and subject to numerous complaints, with a view to obtaining its annulment. Among the findings formulated, there was also that for which sales at prices below the mandatory minimum would have been legitimate because justified by the existence of a state of force majeure or necessity, or in self-defense. Properly, the applicants, who originally complied with the decision on the minimum prices, supported the thesis that, if they continued to comply with it, they would have to deal with harmful consequences and for their existence and for the labor market. In fact, they would have been forced to close or at least proceed with redundancies, which would be followed by strikes and occupations.

In his conclusions, the AG Capotorti notes how the different figures of exactions are mixed, overlapped in the various appeals, without an adequate clarification of their value and their scope. As for the notion of force majeure, the need to verify that there are two elements exists: An objective one, understood as the verification of an extraordinary event, extraneous to the sphere of influence of the obliged; the other subjective, consisting in the fact that the obliged has done everything possible to avoid the event, acting with precaution, prudence and diligence. In this regard, the AG reiterates the idea-already emerged in previous judgments-that there is no general principle from which to derive a uniform notion of force majeure applicable to all areas of Union law. For the purpose of integrating the state of necessity, it is stated that it is necessary to identify an imminent and serious danger, impossible to avoid if not acting in an objectively unlawful way.

As for self-defense, it can be invoked only if there is a direct threat and an imminent danger, lacking legitimate means to cope with such a situation⁷⁶. On this point, it should be noted that, according to the EC, the exactions of the state of necessity and of legitimate defense could not have been validly invoked, as directed to the protection of ethical or moral values inherent to the physical person, and not to commercial interests. The AG Capotorti does not share this personalistic approach, but nevertheless excludes that one of the three exits can be applied in the concrete case. This, due to the fact that many other companies, present in the iron rod market, had continued to operate and exist despite the introduction of mandatory minimum prices, adapting to the new legislation⁷⁷.

As regards the definitions provided by AG it must be said that it is not easy to distinguish the state of necessity from the legitimate defense, given the use of the same terms and concepts. The indications of the CJEU do not appear much clearer, even if they provide some further indication limited to the second. It is configured as an exemption which implies a defensive act against unjustified aggression, which can not be opposed to the public authority acting in a manner respectful of the competences attributed to it by law. In this specific case, the Commission's decision was legitimate, in that it presented the form and substance requirements laid down by the ECSC Treaty.

On the other hand, the CJEU does not provide a definition of a state of necessity, but considers that the fact that the companies that complied with the decision did not run the risk of failing or being wound up was sufficient to exclude their existence⁷⁸.

Lastly, as regards force majeure, the classic definition is confirmed, underlining how, in the concrete case, the majority of companies present on the market turned to other customers or oriented towards other manufacturers, in any case maintaining the production level despite the minimum prices. This therefore prevented the existence of the objective element of the concept in question. These grounds of appeal were therefore rejected.

With reference to the criminal matter, the CJEU was called to clarify the concept of predictability underlying the notion of force majeure. In 1994, Mr. Alan Geoffrey Bird, a driver, was convicted at first instance for failing to comply with the European Union legislation on driving breaks⁷⁹. This decision was challenged, stating that the legislation on the matter would have legitimized an exemption where it had been necessary to guarantee the safety of the goods transported. The interesting aspect of the specific case is that Mr Bird and his employer had foreseen, before the start of the journey, that it would not be possible to follow the rest periods forecasts. Therefore, one of the questions referred for a preliminary ruling before the CJEU it concerned the possibility of applying the derogation where the necessity on which it was based had been known before departure.

The reasoning of the AG Léger is in the sense of underlining how the derogatory provision finds its justification in the need to allow the driver to deal with unpredictable events, unrelated to his will and which he can not resist, as in the case of a damage or an accident, that is of situations of force majeure, occurred and not preventable at a time before their verification. Therefore the setting supported by the appellant must be rejected. Moreover - the AG notes - if this reconstruction is accepted, this would legitimize the employer, possibly with the driver, to decide on the existence of an exemption hypothesis, thus privileging the needs of the company in place of those of road safety , social progress and protection of competition underlying the provision of rest periods⁸⁰. The judges of the First Section first deny that the decision on the exemption may be due to the employer, as this assessment is only remitted to the driver, sharing the solution proposed by the AG⁸¹.

(Follows) Reflections

In the European Convention of Human Rights (ECHR)⁸² system there is no explicit affirmation of the principle of guilt. Given the importance that the protection of fundamental rights has assumed in the legal system of the European Union, thanks to art. 6 TEU⁸³, the CJEU is required to make an interpretation of EU law that is respectful of these principles. On the basis of the analysis of the jurisprudence referred to above, it seems to be possible to state that this has tended to take place, although it is necessary to make some distinctions.

As for intentional crimes, it does not seem possible to move a critique to an approach that gives space both to the representative and to the volitional moment, above all when one considers that, under this second point of view, the interpretation rendered is such as to encompass acceptance of the possibility of verifying the event, and therefore the figure of the eventual or indirect malice⁸⁴.

As for the criminal liability for failure to comply with the due diligence, it is useful to reiterate what the CJEU stated in the Intertanko sentence, where there is talk of an involuntary omission by which the manager violates, in a qualified manner, the due diligence obligation could be respected in the light of their qualities, knowledge, skills and their subjective situation. This approach is particularly interesting because it shows the full awareness of the fact that, for the purpose of the existence of culpable liability (or unintentional crime, if you prefer), three elements are needed: The lack of will of the typical fact (profile negative), the violation of a rule of conduct (objective profile), the enforceability of the observance of this rule by the subject agent (subjective profile), without thereby incurring the erroneous overlap of the three different plans of the exemption, of the causality and precautionary non-compliance.

The absence of a definition of the concept of unintentional crime resulting from imprudence must be noted. Given the fact that the jurisprudence it has become aware of has developed progressively thanks to the instrument of preliminary reference, it is believed that this derives from the non-submission to the CJEU of issues in which this issue has some relevance. It is therefore to be hoped that, in the future, issues will be raised that will make it possible to fill this limit.

The sore notes come from the theme of ignorance legis. The Louloudakis sentence, in which the need to emphasize good faith was affirmed, is a good starting point for recognizing the relevance of excusable error, but it is not enough. In light of what has been agreed by the CJEU and from the AG, it must be considered that good faith/ignorance is relevant only for the purpose of determining the applicable sanction and, therefore, in the sense of leading to a reduction in the entity of the same. because of the particularity of the situation in which the perpetrator of the violation, which has not been placed in the conditions to know the legislation properly. This does not mean that the penalty can be completely excluded. The CJEU states that "the good faith of the offender must be taken into account in establishing the sanction actually imposed on the latter (...)"⁸⁵. So, what is given to understand, the penalty must actually be imposed: It will be milder, because of the good faith of the offender, but this will not be enough to exclude the responsibility altogether.

It is true that the question did not concern the criminal law, but the administrative punitive right: Therefore, it can not be denied that, if the subject were to be presented again with criminal-law profiles, the CJEU, thanks to the experience gained in criminal matters in the course of time, could provide an opposite and more shareable response. It is also true that the Gerken judgment manifests a different conviction, in the light, however, of an unequivocal regulatory appeal.

Therefore, in the absence of an exPress change of course on the point, a ruling such as that of the Louloudakis case appears as a previous problem with reference to the protection requirements of fundamental rights that the Eurunitary system has chosen, definitively, to make its own. Therefore, it is to be hoped that the different sensibility of the Gerken ruling will prevail in the future, allowing the CJEU to continue on its path of progressive adherence to the reasons for the principle of guilt.

As for the institution of force majeure, it takes into account the common origin of the various branches of law-it was necessary to arrive at a unitary concept of force majeure, valid in all areas of legal experience, in order to fulfill a harmonization function, simplification and facilitation of knowledge of the law⁸⁶. The institute in question should have been considered a general principle of law, or in any case a general juridical figure, not susceptible of variation according to the branch considered. This result seems to have been achieved in the context of the CJEU jurisprudence. It is true that, over time, the latter has taken care to affirm that the concept of force majeure varies according to the area of law and the fields of application concerned and that the legal substratum on the basis of the determination of its significance of the situation in question: Therefore, it must take into account both the peculiarities of the report submitted in court and the purposes of the relevant legislation⁸⁷. The aforementioned notion, based on the coexistence of the objective element of extraordinary circumstances, extraneous to the sphere of influence of the subject, and of the subjective element, consisting in having done everything possible to avoid the occurrence of that situation, acting with precaution, prudence and diligence, has found application, without significant adaptations, in all the cases that the CJEU has been able to consider, regardless of the reference sphere. For example, in the matter of contractual obligations, according to the teaching of the courts of Luxembourg, the hypothesis of force majeure is to be considered integrated not only in the case of absolute impossibility⁸⁸.

The same definition is found in the area of monetary compensatory amounts within the common agricultural policy⁸⁹, anti-competitive practices⁹⁰ and compliance with the procedural deadlines in the proceedings before the CJEU⁹¹. In the field of tax deductions connected to the importation of maize, likewise, there is no deviation from the notion now reported, but the nature of force majeure has been highlighted as an equitable criterion. The jurisprudence mentioned above confirms that the notion does not change where one looks at the sanctioning sphere. Therefore, it seems to be possible to speak, at least, of a concept having general scope within the framework of the European Union, despite the indications to the contrary provided by the advocates general and the judges.

[...]

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² The present papers are the results of past researches and conferences (2012-2018) from various Universities and which are published online and now are updated for the present publication.

³ S. MELANDER, Effectiveness in EU criminal law and its effects on the general part of criminal law, in New Journal of European Criminal Law, 5, 2014, pp. 276ss. J. BLOMSMA, C. PERISTERIDOU, The way forward: A general part of European criminal law, in F. GALLI, A. WEYEMBERGH, Approximation of substantive criminal law in the EU: The way forward, Editions University of Bruxelles, Bruxelles, 2013, pp. 118ss

⁴ In particular see: P.H. VAN KEMPEN, European Union protection of the substantive criminal law principles of guilt and ne bis in idem under the Charter of Fundamental Rights: Underdevelopment and over development in an incomplete criminal justice framework, in New Journal of European Criminal Law, 9 (2), 2018, pp. 250ss. J. LELIEUR, ‘‘Transnationalising’’ ne bis in idem: How the rule of ne bis in idem reveals the principle of personal legal certainty, in Utrecht Law Review, 8, 2013, pp. 200ss. A. ROSANÓ, Ne bis interpretation in idem? The two faces of the ne bis in idem principle in the case law of the European Court of Justice, in German Law Review, 18 (1), 2017, pp. 40ss.

⁵ J. PRADEL, G. CORSTENS, G. VERMEULEN, Droit pénal européen, LGDJ, Paris, 2009, pp. 6.

⁶ L.ZEDNER, J.V. ROBERTS (eds.), Principles and values in criminal law and criminal justice. Essays in Honour of Andrew Ashworth, Oxford University Press, Oxford, 2012.

⁷ In particular, Regulation (EEC) Council Regulation (EC) No 234/68 of 27 February 1968 on the establishment of a common organization of the market in live plants and floricultural products, in OJ L 55 of 2 March 1968, 1, Commission Regulation (EC) No 1767/68 of 6 November 1968 on the system of minimum prices for exports to third countries of flowering tubers, tubers and roots, in OJ L 271 of 7 November 1968, 7, and Regulation ) n. Commission Regulation (EEC) No 369/75 of 10 February 1975 fixing the minimum prices for exports to third countries of certain flower bulbs, tubers and flowering rhizomes for the 1975/76 marketing year in OJ L 41 of 15 February 1975, 1.

⁸ CJEU, C-34/73, Fratelli Variola Spa v. Amministrazione delle Finanze dello Stato of 10 October 1973, ECLI:EU:C:1973:101, I-00981, par. 982. C-39/72, Commission v. Italy of 7 February 1973, ECLI:EU:C:1973:13, I-00101, par. 102.

⁹ M. DECHEVA, Recht der Europäischen Union, ed. Nomos, Baden-Baden, 2018.

¹⁰ See the conclusions of the AG Capotorti in case: C-50/76, Amsterdam Bulb of 5 December 1976, ECLI:EU:C:1976:183, par. 151.

¹¹ CJEU, C-50/76, Amsterdam Bulb BV of 2 February 1977, ECLI:EU:C:1977:13, I-00137, parr. 32-33.

¹² A. VON BOGDANDY, M. IOANNIDIS, Systemic deficiency in the rule of law: What is this, what has been done, what can de done, in Common Market Law Review, 51, 2014, pp. 64ss. A. JAKAB, D. KOCHENOV, The enforcement of EU laws and values. Ensuring member States compliance, Oxford University Press, Oxford, 2017. C. KLAMERT, The principle of loyalty in European Union law, Oxford University Press, Oxford, 2014.

¹³ See Regulation (EEC) n. 2727/75 of the Council of 29 October 1975 on the common organization of the market in cereals, in OJ L 281 of 1 November 1975, 1, Council Decision 70/243/ECSC, EEC, Euratom of 21 April 1970 on the replacement of the financial contributions of the Member States from the Communities' own resources, in OJ L 94 of 28 April 1970, 19, and Regulation (EEC, Euratom, ECSC) No Council Regulation (EC) No 2891/77 of 19 December 1977 implementing the Decision of 21 April 1970 on the replacement of the financial contributions of the Member States from the Communities' own resources, in OJ L 15 of 19 January 1978, 42

¹⁴ See the conclusions of the AG Tesauro in case: C-68/88, Commission v. Greece of 30 June 1989, ECLI:EU:C:1989:281, I-02965.

¹⁵ CJEU, C-68/88, Commission v. Greece, op. cit., parr. 23-25. For further details see: S. MIETTINEN, Criminal law and policy in the European Union, ed. Routledge, 2013.

¹⁶ CJEU, C-186/98, Nunes and De Matos of 8 July 1999, ECLI:EU:C:1999:376, I-04890, par. 10. C-177/95, Ebony Maritime and Loten Navigation if 27 February 1997, ECLI:EU:C:1997:376, I-04883, par. 35. C-341/94, Allain of 26 September 1996, ECLI:EU:C:1996:356, I-04649, par. 24. C-36/94, Siesse of 26 October 1995, ECLI:EU:C:1995:351, I-03573, par. 20. C-382/92, Commission v. United Kingdom and Ireland of Nord of 8 June 1994, ECLI:EU:C:1994:233 , I-02461, par. 55. For analysis see M. CREMONA, Compliance and the enforcement of European Union law, Oxford University Press, Oxford, 2012. H. MICKLITZ, Constitutionalization of European private law, Oxford University Press, Oxford, 2014.

¹⁷ CJEU, order, C-2/88, Zwartveld of 13 Juloy 1990, ECLI:EU:C:1990:440, I-03367, par. 17, where, in clarifying the meaning of the principle of loyal cooperation, it is stated that it obliges the Member States to (...) take all measures, which are capable of guaranteeing, if necessary also criminal, the scope and effectiveness of European law (...).

¹⁸ CJEU, C-440/05, Commission v. Council of 23 October 2007, ECLI:EU:C:2007:625, I-09128. C-176/03, Commission v. Council of 13 September 2005, I-07907. J. ÖBERG, Limits to European Union powers. A case study of European Union regulatory criminal law, Hart Publishing, Oxford & Oregon, Portland, 2017. C. BRIÉRE, A. WEYEMBERGH, The needed balances in European Union criminal law. Past, present and future, Hart Publishing, Oxford & Oregon, Portland, 2017.

¹⁹ Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law, in OJ L 29 of 5 February 2003, 55. Pursuant to Arts. 135, in the matter of customs cooperation, and 280 TEC, in the fight against fraud, which became art. 33 and 325 TFEU. However, it must be said that the new wording no longer appears to affect the application of national criminal law or the administration of justice in the Member States. For more analysis see: S. MIETTINEN, Criminal law and policy in the European Union, op. cit.,

²⁰ S. SUMMERS, C. SCHWARZENEGGER, G. EGE, F. YOUNG, The emergence of EU criminal law, Hart Publishing, Portland & Oregon, Oxford, 2014, pp. 7ss.

²¹ CJEU, C-176/03, Commission v. Council of 13 September 2005, C-176/03, ECLI:EU:C:2005:542, I-07907, par. 48. For further details and analysis see: E. HERLIN-KARNELL, The constitutional dimension of European criminal law, Hart Publishing, Oxford & Oregon, Portland, 2012. S. ANDERSEN, The enforcement of European Union law. The role of the European Commission, Oxford University Press, Oxford, 2012, pp. 148ss. L. AZOULAI, Migration and European Union law and policy, Oxford University Press, Oxford, 2014, pp. 100ss. A. BIONDI, P. ECKHOUT, S. RIPLEY, European Union law after Lisbon, Oxford University Press, Oxford, 2012, pp. 63ss.

²² See the conclsuions of the AG Ruiz-Jarabo Colomer in case C-176/03, Commission v. Council of 26 May 20015, ECLI:EU:C:2005:311, I-07881. See also: E. HERLIN-KARNELL, The constitutional dimension of European criminal law, op. cit.,

²³ See the conclusions of the AG Mazák presented in case C-440/05, Commission v. Council of 28 June 2007, parr. 116 and 119, which is affirmed that: "(...) the norms of a specific sector are not sufficiently effective or fully effective and therefore require the instrument of criminal law, and then underline that the determination of whether the penal measures are, in a given case, essential to combat serious violations or essential to ensure that the rules are fully effective requires not only the objective examination of the substantive legal basis or the political sector in question, but also a certain degree of discretion (...)". See in argument also: D. ACOSTA ARCARAZO, C.C. MURPHY, European Union security and justice law after Lisbon and Stockholm, Hart Publishing, Oxford & Oregon, Portland, 2014. M. LEE, European Union environmental law, governance and decision-making, Hart Publishing, Oxford & Oregon, Portland, 2014, pp. 68ss. M. FLETCHER, W.C. GILMORE, European Union criminal law and justice, Edward Elgar Publishers, Cheltenham, 2010. C.C. MURPHY, European counter-terrorism law: Pre-emption and the role of law, Hart Publishing, Oxford & Oregon, Portland, 2012, pp. 39ss.

²⁴ Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, OJ L 158, 30.4.2004, p. 77-123.

²⁵ R. COLSON, S. FIELD, European Union criminal justice and the challenge of diversity. Legal cultures in the area of freedom security and justice, Cambridge University Press, Cambridge, 2016.

²⁶ Position of the AG Mazák in case: C-61/11 PPU, El Dridi of 1st April 2011, ECLI:EU:C:2011:268, I-03017. For analysis see: C.C. MURPHY, European Union counter-terrorism law: Pre-emption and the role of law, Hart Publishing, Oxford & Oregon, Portland, 2012, pp. 39ss. G.P. AGARWAL, S.K. CHOUDHARY, R. GUPTA, Human rights in changing times, Cambridge Scholar Publishers, London, 2014.

²⁷ ECtHR, Riad and Idiab v. Belgium of 24 January 2008; Moustaquim v. Belgium of 18 February 1991; Berrehab v. The Neherlands of 21 June 1988; Abdulaziz, Cabales and Balkandali v. United Kingdom of 28 May 1985. For further details and analysis see: B. RAINEY, W. WICKS, C. OVEY, Jacobs, White and Ovey: The European Convention on Human Rights, Oxford University Press, Oxford, 2017. J.P. COSTA, La Cour europèenne des droits de l'homme. Des juges pour la libertè, ed. Dalloz, Paris. 2017. F. TIMMERMANS, Fundamental rights protection in Europe before and after accession of the European Union to the European Convention on Human Rights, in Liber Amicorum Pieter Van Dijk, M. Van Roosmalen and others (eds.), Intersentia, Antwerp, Oxford, 2013, pp. 225ss.

²⁸ CJEU, C-357/09 PPU, Said Shamilovich Kadzoev (Huchbarov) of 30 November 2009, ECLI:EU:C:2009:741, I-011189. See for analysis: M. CROCK, Migrants and rights, ed. Routledge, London & New York, 2017. I. STAFFANS, Evidence in European asylum procedures, Martinus Nijhoff Publishers, 2012, pp. 258ss.

²⁹ CJEU, C-61/11 PPU, El Dridi, op. cit.,

³⁰ K. AMBOS, European criminal law, op. cit.

³¹ CJEU, C-329/11, Achughbabian, of 26 October 2001, ECLI:EU:C:2001:807, I-12695. G.P. AGARWAL, S.K. CHOUDHARY, R. GUPTA, Human rights in changing times, op. cit.

³² Position of the AG Mazák in case C-329/11, Achughbabian, of 26 October 2001, op. cit.

³³ CJEU, C-329/11, Achughbabian, op. cit., Furthermore, it may be noted that the rapporteur of the judgment in Achughbabian (judge Ilešič) was also the rapporteur of the judgment in El Dridi, as well as the fact that all the judges of the First Chamber, ruling on El Dridi (besides Ilešič, also Tizzano, Kasel, Levits and Safjan), were present in the Great Section pronounced on the Achughbabian case.

³⁴ CJEU, C-430/11, Sagor of 6 December 2012, ECLI:EU:C:2012:777, published in the electronic Reports of the cases.

³⁵ Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, OJ L 348, 24.12.2008, p. 98-107. See also from the CJEU, C-240/17, E. of 16 January 2018, ECLI:EU:C:2018:8 and C-647/16, Hassan of 31 May 2018, ECLI:EU:C:2018:368, above cases published in the electronic Reports of the cases. For the analysis of the cited Regulation see: J. ILIOPOULOS-STRANGAS, M. POTACS, E.S. TANASESCU, Migration, migration, migrations, ed. Nomos, Stämpfli Verlag, Baden-Baden, Zurich, 2017.

³⁶ CJEU, C-430/11, Sagor of 6 December 2012, op. cit., parr. 31-33. Order in case: C-522/11, Mbaye of 21 March 2013, ECLI:EU:C:2013:190, published in the electronic Reports of the cases. C-297/12, Filev and Osmani of 19 September 2013, ECLI:EU:C:2013:569, not published. on which on the sanctions applicable in case of re-entry of the expelled subject, as well as the case: C-166/13, Mukarubega of 5 November 2014, ECLI:EU:C:2014:2336, published in the electronic Reports of the cases. C-383/13 PU, G. and R. of 10 September 2013, ECLI:EU:C:2013:533 in which particular profiles of the internal regulations were raised, concerning the protection of the rights of defense. See also CJEU I October 2015, C-290/14, Celaj of 1st October 2015, ECLI:EU:C:2015:640, published in the electronic Reports of the cases, in which the Luxembourg courts have ruled that the directive repatriations preclude a state regulation that imposes the imposition of a penal sanction in case the irregular foreigner is expelled and therefore falls irregularly in the territory of the State. For the Court, the circumstances underlying this situation are quite different from those that led to the El Dridi and Achughbabian rulings, so it is legitimate to carry out a distinguishing operation. For further details see: C. COSTELLO, The human rights of migrants in European law, Oxford University Press, Oxford, 2016, pp. 300ss. S. PEERS, European Union justice and home affairs law: European Union justice and home affairs law, Oxford University Press, Oxford, 2016, pp. 504ss.

³⁷ CJEU, C-146/14 PPU, Mahdi of 18 July 2014, ECLI:EU:C:2014:1320, published in the electronic Reports of the cases.

³⁸ CJEU, C-290/14, Celaj of 1st October 2015, ECLI:EU:C:2015:640, published in the electronic Reports of the cases.

³⁹ In the same orientation see: C-474/13, Pham of 29 August 2014, ECLI:EU:C:2096, published in the electronic Reports of the cases.

⁴⁰ R. RAFFAELLI, Criminalizing Irregular Immigration and the Returns Directive: An Analysis of the El Dridi Case, in European Journal of Migration and Law, 13 (4), 2011, pp. 468ss.

⁴¹ See also: C-166/13, Mukarubega of 25 June 2014, ECLI:EU:C:2013:2336, published in the electronic Reports of the cases.

⁴² CJUE, C-601/15 PP, N. Of 15 February 2016, ECLI:EU:C:2016:84, published in the electronic Reports of the cases.

⁴³ As we can see in the cases from the CJEU: C-646716, Jafari of 26 July 2017, ECLI:EU:C:2017:586 and C-225/16, Ouhrami of 26 July 2017, ECLI:EU:C:2017:590, above case published in the electronic Reports of the cases.

⁴⁴ See in argument: J.B. BANACH-GUTIERREZ, C. HARDING, European Union criminal law and policy. Values, principles and methods, ed. Routledge, London & new York, 2016, pp. 57ss. K. AMBOS, European criminal law, Cambridge University Press, Cambridge, 2018, pp. 646ss.

⁴⁵ P. STONE, Y. FARAH, Research Handbook on European Union private international law, Edward Elgar Publishing, Cheltenham, 2015, pp. 250ss. D. LIAKOPOULOS, Interactions between European Court of Human Rights and private international law of the European Union, in Cuadernos de Derecho Transnacional, 10 (1), 2018, pp. 254ss.

⁴⁶ For details see J. BLOMSMA, Mens rea and defence in European criminal law, ed. Intersentia, Antwerp, 2012.

⁴⁷ CJEU, C-157/80, Rinkau of 26 May 1980, ECLI:EU:C:1980:120, I-01392, par. 15.

⁴⁸ It is recalled that, with regard to administrative sanctions envisaged for the protection of the Community's financial interests, the Regulation (EC, Euratom) no. 2988/95 of the Council of 18 December 1995 on the protection of the financial interests of the Communities, in OJ L 312 of 23 December 1995, 1, art. 5, par. 1, individuals, even without defining them, "intentional irregularities or caused by negligence (...)". For further analysis see: A. HARTKAMP, C. SIBURGH, W. DEVROE, Cases, materials and text on European Union law and private law, hart Publishing, Oxford & Oregon, Portland, 2017, pp. 282ss. K. LENAERTS, I. MASELIS, K. GUTMAN, European Union procedural law, Oxford University Press, Oxford, 2014, pp. 133ss. M. WIERZBOWSKI, A. GUBRYNOWICZ, International investment law for the 21st century, Oxford University Press, Oxford, 2015. A.H. TÜRK, Judicial review in European Union law, Edward Elgar Publishers, Cheltenham, 2010.

⁴⁹ This is Council Common Position 2007/140/CFSP of 27 February 2007 concerning restrictive measures against Iran, in OJ L 61 of 28 February 2007, 49, and of Regulation (EC) no. 423/2007 of the Council of 19 April 2007 concerning restrictive measures against Iran, in OJ L 103 of 20 April 2007, 1, which refer to the United Nations Security Council Resolution 1737 (2006). L. WOODS, P. WATSON, Steiner & Woods European Union law, Oxford University Press, Oxford, 2017, pp. 37ss C. BARNARD, S. PEERS, European Union law, Oxford University Press, Oxford, 2017, pp. 788ss.E. BERRY, M.Y. HOMEWOOD, B. BOGUSZ, Complete European Union law. Texts, cases and materials, Oxford University Press, Oxford, 2013. G. CONWAY, European Union law, ed. Routledge, London & New York, 2015.

⁵⁰ This is Council Common Position 2007/140/CFSP of 27 February 2007 concerning restrictive measures against Iran, in OJ L 61 of 28 February 2007, 49, and of Regulation (EC) no. 423/2007 of the Council of 19 April 2007 concerning restrictive measures against Iran, in OJ L 103 of 20 April 2007, 1, which refers to the United Nations Security Council Resolution 1737 (2006). F. NICOLA, B. DAVIES, European Union law stories, Cambridge University Press, Cambridge, 2017. J. USHERWOOD, S. PINDER, The European Union. A very short introduction, Oxford University Press, Oxford, 2018. J.L. DA CRUZ VILAÇA, European Union law and integration. Twenty years of judicial application of European Union law, Hart Publishing, Oxford & Oregon, Portland, 2014. T.H. FOLSOM, Principles of European Union law, including Brexit, West Academic, Minnesota, 2017, pp. 278ss. R. GEIGER, D.E. KHAN, M. KOTZUR, EUV/AEUV, C.H. Beck, München, 2016.

⁵¹ Conclusions of the AG Bot presented in case C-72/11, Afrasiabi and others of 16 November 2011, ECLI:EU:C:2011:737, I-14288.

⁵² CJEU, C-72/11, Afrasiabi and others of 21 December 2011, ECLI:EU:C:2011:864, I-14308. In the same spirit see also the case: T-434/11, Europäisch-Iranische Handelsbank AG v. Council of 6 September 2013, ECLI:EU:C:2013:405, not published. M. DECHEVA, Recht der europäischen Union, op. cit., C. BARNARD, S. PEERS, European Union law, op. cit., pp. 586ss. N. FOSTER, European Union law directions, Oxford University Press, Oxford, 2016. A. THIES, International trade disputes and Europan Union liability, Cambridge University Press, Cambridge, 2013.

⁵³ There is a certain similarity to the constant jurisprudence developed in antitrust, according to which, in order for an infringement of the competition rules to be considered intentionally complete, it is not necessary for the company to have been aware of violating the rules, but it is sufficient it could not have been unaware that its conduct would have had the effect of restricting competition in the common market (for example, see CJEU, joined cases T-259/02 to T-264/02 and T-271/02, Raiffeisen Zen tralbank Österreich AG and others v. Commission of 14 December 2006, ECLI:EU:C:2006:396, II-05200, par. 205 and jurisprudence cited there). CJEU, C-396/12, Van der Ham and Van der Ham-Reijersen Van Buuren of 27 February 2914, ECLI:EU:C:2014:98 published in the electronic Reports of the cases. On this point, the Court reiterates the thesis that one should have spoken of an autonomous and uniform concept of European Union law, drawn up taking into account the habitual meaning of the terms, the context in which the articles and the aims of the legislation are placed. Concorde is the indication contained in the conclusions of the AG Kokott presented on October 24, 2013, not yet published. For further details see: M. IOANNIDOU, Consumer involvement in private European Union competition law enforcement, Oxford University Press, 2015, pp. 24ss.

⁵⁴ CJEU, C-40/04, Yonemoto of 8 September 2005, ECLI:EU:C:2005:519, I-07776.

⁵⁵ Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of sanctions, including criminal sanctions, for pollution offenses, in OJ L 255 of 30 September 2005, 11. For analysis see: V. MITSILEGAS, M. BERSGTRÖM, T. KONSTADINIDES, Research handbook on European Union criminal law, Edward Elgar Publishers, Cheltenham, 2016.

⁵⁶ V. MITSILEGAS, M. BERSGTRÖM, T. KONSTADINIDES, Research handbook on European Union criminal law, op. cit.

⁵⁷ C-308/06, The Queen on the application of international Association of independent tanker (Intertanko) and others v. Secretary of State for Transport of 3 June 2008, ECLI:EU:C:2008:312, I-04057, par. 65: “it must be found that UNCLOS does not establish rules intended to apply directly and immediately to individuals and confer upon them rights or freedom capable of being relied upon against States (...) the absence of individual rights and obligations, together with the nature and the broad logic of UNCLOS prevents the Court from being able to assess the validity of a Union measure in the light of that Convention”. For details see. P. KOUTRAKOS, European Union international relations law, Hart Publishing, Oxford & Oregon, Portland, 2015, pp. 337ss. N. FOSTER, European Union law directions, op. cit., A. THIES, International trade disputes and Europan Union liability, op. cit., D.A.O. EDWARD, R. LANE, Edward and Lane on EU law, Edward Elgar Publishers, Cheltenham, 2013.

⁵⁸ D.A.O. EDWARD, R. LANE, Edward and Lane on EU law, op. cit.

⁵⁹ This is about regulation (EEC) n. Council Regulation (EEC) No 543/69 of 25 March 1969 on the harmonization of certain social legislation relating to road transport, OJ L 77 of 29 March 1969, 49. The liability arising from failure to comply with rest periods, see CJEU, C-69/74, Cagnon and Taquet of 18 February 1975, ECLI:EU:C:1975:19, I-00171, with which it was clarified that those responsible should have been considered both the employers and the crew members.

⁶⁰ Conclusions of the AG Van Gerven presented in case: C-326/88, Hansen of 5 December 1989, ECLI:EU:C:1989:291, I-02919.

⁶¹ C-326/88, Hansen of 5 December 1989, op. cit.,

⁶² In the meantime, Regulation no. 543/69 had been replaced by Regulation (EEC) Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonization of certain social legislation relating to road transport, in OJ L 370 of 31 December 1985, 1. For further analysis see: P. CARDONNEL, A. ROSAS, N. WAHL, Constitutionalising the European Union judicial system: Essays in honour of Pernilla Lindh, Hart Publishing, Oxford & Oregon, Portland, 2012, pp. 107ss.

⁶³ Conclusions of the AG Van Gerven presented in the case: C-7/90, Vandevenne and others, of 19 February 1991, ECLI:EU:C:1991:62, I-04377.

⁶⁴ CJEU, C-210/10, Urbán of 9 February 2012, ECLI:EU:C:2012:64, published in the electronic Reports of the cases.

⁶⁵ See also Court of Justice, judgment of 27 February 1997, Ebony Maritime and Loten Navigation, C-177/95, I-01131, concerning administrative sanctions adopted (apart from ascertaining the existence of fault) against the Federal Republic of Yugoslavia. In matters of competition, on the issue of the imputability of an offense following which an administrative sanction had been applied, it could be considered Court of Justice, ruling of 8 July 1999, Commission v. Anic Partecipazioni SpA, C-49/92 P, I-04162.

⁶⁶ Conclusions of the AG Ruiz-Jarabo Colomer presented in joined cases: C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P, e C-219/00 P, Aalborg Portland and others, of 11 February 2003, ECLI:EU:C:2003:6, I-00133, parr. 63-65. see, E. RAVASI, Human rights protection by the European Court of Human Rights and the European Court of Justice: A comaprative analysis, ed. Brill, The Hague, 2017, pp. 360ss.

⁶⁷ It is to be considered that we do not speak about the principle of personal criminal liability because it is not involved in a strictly penal matter, even though we can not deny the importance that such considerations hold for the purposes of criminal law. On the importance of protecting human rights in the field of competition law, see from the ECtHR the case A. Menarini Diagnostics s.r.l. v. Italy, of 27 September 2011, in the same spirit the decision in case: A. And B. v. Norway of 15 November 2016. In the same orientation see the Opinion of AG Bot presented on 26 October 2010 in joined cases C-201/09 P and C-216/09 P, Arcelor Mittal Luxembourg SA v. Commission of 26 October 2010, ECLI:EU:C:2010:190, I-02239. For further details see: L. LOVDAHL GORMSEN, A principled approach to abuse of dominance in European competition law, Cambridge University Press, Cambridge, 2010. R. NAZZINI, The foundations of European Union competition law: The objective and principles of article 102, Oxford University Press, Oxford, 2011. R. O’DONOGHUE, J. PADILLA, The law and economics of article 102 TFEU, Hart Publishing, Oxford & Oregon, Portland, 2013. P. NIHOUL, The ruling of the General Court in intel: Towards the end of an effect-based approach in European competition law?, in Journal of European Competition Law & Practice, 5, 2014, pp. 52ss.

⁶⁸ CJEU, C-294/16, JZ v. Prokuratura Rejonowa Łódź-Śrómieście of 28 July 2016, ECLI:EU:C:2016:610, published in the electronic Reports of the cases.

⁶⁹ See the case: Lord Justice Elias in Christian Ionut Sandru v. Government of Romania (2009), EWHC 2879 (admin) and 2009 WL 3441680: "(...) the appropriate sentence is in part a function of culture, and in any event the courts here have limited information about the factors leading a foreign court to impose the sentence it did (...)". See in argument: L. BACHMAIER WINTER, The role of the proportionality principle in cross-border investigations involving fundamental rights, in S. RUGGERI, Transnational inquiries and the protection of fundamental rights in criminal proceedings, ed. Springer, Berlin, 2013, pp. 86ss.

⁷⁰ Council Directive 83/182/EEC of 28 March 1983 on tax exemptions applicable within the Community with regard to the temporary importation of certain means of transport, in OJ L 105, 23 April 1983, 59. For details see: C. NOWAK, Europarecht nach Lissabon, ed. Nomos, Baden-Baden, 2011. D. CHALMERS, G. DAVIES, G. MONTI, European Union law, Cambridge University Press, Cambridge, 2014. J. TILLOTSON, N. FOSTER, Text, cases and materials on European Union law, Gavedish Publishing, New York, 2013.

⁷¹ Conclusions of the AG Alber presented in case C-262/99, Louloudakis of 16 November 2000, ECLI:EU:C:2000:640, I-05550.

⁷² CJEU, C-262/99, Louloudakis of 12 July 2001, ECLI:EU:C:2001:407, I-05573, par. 76.

⁷³ Properly, the sanction consisting in the decrease of the amount of the aid, foreseen in the art. 10, n. 2, lett. a) of Regulation (EEC) Commission Regulation (EEC) No 3887/92 of 23 December 1992 laying down detailed rules for the application of the integrated administration and control system for certain Community aid schemes, in OJ L 391 of 31 December 1992, 36. The interpretation was given by the Court to the light of art. 44, n. 1, of the regulation (CE) n. Commission Regulation (EC) No 2419/2001 of 11 December 2001 laying down the procedure for implementing the integrated administration and control system for certain Union aid schemes established by Regulation (EEC) No 3508/92 of the Council, in OJ L 327 of 12 December 2001, 11, according to which the reductions and exclusions are not applied where the entrepreneur has provided correct information or can otherwise prove to be free of fault. For further analysis see: M. HORSPOOL, M. HUMPHREYS, European Union law, Oxford University Press, Oxford, 2012, pp. 552ss. T. OPPERMANN, C.D. CLASSEN, M. NETTESHEIM, Europarecht, C.H. Beck, München, 2016. R. SCHÜTZE, T. TRIDIMAS, Oxford principles of European Union Law, Oxford University Press, Oxford, 2018. C. BARNARD, S. PEERS, European Union law, op. cit., pp. 788ss.

⁷⁴ CJEU, C-295/02, Gerken of 1st July 2004, ECLI:EU:C:2004:400, I-06382.

⁷⁵ Decision n. Commission Regulation (EC) No 962/77 / ECSC of 4 May 1977 fixing minimum prices for certain bars for reinforced concrete, in OJ L 114 of 5 May 1977, 1. On this point, see Art. 61, lett. (b) of the ECSC Treaty, where provision was made for the possibility of setting minimum prices within the common market in the event of an apparent or imminent crisis and where necessary for the achievement of the objectives of the Union. For further details see: C. TIETJE, The status of international in the European legal order: The case of international Treaties and non-binding international instrument, in J. WOUTERS, A. NOLLKAEMPER, E. DE WET (eds.), The Europeanization of international law: The status of international law in the EU and its Member States, Cambridge University Press, Cambridge, 2008.

⁷⁶ CJEU, C-16/61, Acciaierie Ferriere and Fonderie di Modena v. Hugh Authority of the European Community of Coal and Steel Community of 12 July 1962, ECLI:EU:C:1962:29, I-00537.

⁷⁷ Conclusions of the AG Capotorti in joined cases: C-154/78, 205/78, 206/78, from 226/78 to 228/78, 263/78, 264/78, 39/79, 31/79, 83/79, 85/79, Valsabbia and others v. Commission of 5 December 1979, ECLI:EU:C:1979:275, I-001035.

⁷⁸ In a similar sense, see Court of Justice, ruling of 11 December 1980, Lucchini v. Commission, 1252/79 on the position of a company which, like those considered in the Valsabbia judgment, had not complied with the minimum price system. The appellant claimed to have acted in need, in order to avoid the loss of traditional markets which were of fundamental importance for its existence. Without elaborating or identifying a definition of the concept under consideration, the Court considers that the state of necessity was not demonstrated, as the company had not provided evidence of a risk of bankruptcy or liquidation.

⁷⁹ This was the regulation (EEC) n. Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonization of certain social legislation relating to road transport, in OJ L 370 of 31 December 1985, 1. F. MARTUCCI, Droit de l'Union europèenne, LGDG, Paris, 2017.

⁸⁰ Pursuant to art. 12 of the regulation n. 3820/85, "provided that it does not compromise the safety of road traffic and to be able to reach an appropriate stopping point, the driver may derogate from this Regulation to the extent necessary to protect the safety of persons, the vehicle or its load. The driver must mention the genre and the reason for the derogation from these provisions on the registration sheet of the recording equipment or in the service register.

⁸¹ Conclusions of the AG Léger presented in case C-235/94, Alan Bird of 14 September 1995, ECLI:EU:C:1995:285, I-03935.

⁸² ECtHR, Varvara v. Italy of 29 October 2013, par. 69. Sud Fondi s.r.l. v. Italy of 10 May 2002, from which emerges a vision similar to that of the Court of Justice. In par. 116 we read, in fact: "(...) here is the Convention, the article 7 ne mentionne pas exPressément le lien moral entre l'élément matériel de l'infraction et la personne en est estérérérée comme l'auteur. Cependant, the logique de la peine et de la punition ainsi que la notion de "guilty" (dans la version anglaise) and the notion correspondent de "personne coupable" (dans la version française) vont dans le sens d'une interprétation de l 'article 7 here exige, pour punir, a lien de nature intellectuelle (conscience et volonté) permant de déceler an élément de responsabilité dans la conduite de l'auteur matériel de l'infraction. A défaut, la peine ne serait pas justifiée. The evening par ailleurs incohérent, d'une part, d'exiger is a base accessible and prévisible et, d'autre part, de permre qu'on considere une personne comme "coupable" and the "punir" alors qu'elle n' était pas en mesure de connaitre la pénale, enraison d'une erreur invincible ne pouvant en rien être imputée à celui ou cella qui en est victime (...)". A. SEIBERT-FOHR, M.E. VILLIGER, Judgments of the European Convention of Human Rights. Effects and implementation, ed. Nomos, Baden-Baden, 2017. C. GRABENWARTER, European Convention on human rights: ECHR, C.H. Beck, München, 2014.

⁸³ H. SATZGER, International and European criminal law, Hart Publishing, Oxford & Oregon, Portland, 2017.

⁸⁴ J. BLOMSMA, Fault elements in EU criminal law: The case of recklessness, in A. KLIP, Substantive criminal law of the European Union, Maklu, Antwerp, Apeldoorn, Portland, 2011, pp. 144ss.

⁸⁵ C-262/99, Louloudakis of 12 July 2001, op. cit.

⁸⁶ CJEU, C-338/89, Organisationen Danske Slagterier of 7 May 1991, ECLI:EU:C:1971:172, I-02347. C-68/77, IFG v. Commission of 14 February 1978, ECLI:EU:C:1978:23, I-00353. C-158/73, Kampffmeyer of 30 January 1974, ECLI:EU:C:1974:8, I-0010. C-4/68, Schwarzwaldmilch of 11 July 1968, ECLI:EU:C:1968:41, I-00499.

⁸⁷ CJEU, C-124/92, An Bord Bainne and Inter-Agra of 13 October 1993, ECLI:EU:C:1993:841, I-05087. C-50/92, Molkerei-Zentrale Süd of 18 March 1993, ECLI:EU:C:1993:105, I-01053. C-296/86, McNicholl of 8 March 1988, ECLI:EU:C:1988:125, I-01507. C-125/83, Corman of 1st October 1985, ECLI:EU:C:1985:382, I-03041. C-20/84, De Jong of 3 July 1985, ECLI:EU:C:1985:284, I-02106. C-42/79, Milch-, Fett-und Eierkontor of 13 December 1979, ECLI:EU:C:1979:289, I-03704. C-186/73, Norddeutsches Vih-und Fleischkontor of 15 May 1974, ECLI:EU:C:1974:54, I-00534. C-11/70, Internationale Handelsgesellschaft of 17 December 1970, ECLI:EU:C:1970:114, I-01126. See: M. BROBERG, N. FENGER, Preliminary references to the European Court of Justice, Oxford University Press, Oxford, 2014, pp. 22ss. M. BROBERG, N. FENGER, Variations in member States. Preliminary references to the Court of Justice-Are structural factors (part of) the explanation?, in European Law Journal, 19 (4), 2013, pp. 490ss.

⁸⁸ CJEU, C-266/84, Denkavit France of 22 January 1986, ECLI:EU:C:1986:23, I-00164.

⁸⁹ CJEU, joined cases 100/80 to 103/80, Musique Diffusion Française of 7 June 1983, ECLI:EU:C:1983:158, I-01831, in which they are considered together, without making a prior conceptual distinction, the state of necessity and the legitimate defense. This is because the Court considered the evidence provided in any case insufficient for the purpose of demonstrating the existence of either one.

⁹⁰ CJEU, C-284/82, Busseni of 9 February 1984, ECLI:EU:C:1984:47, I-0557. See, L. BORZSÁK, The impact of environmental concerns on the public enforcement, Wolters Kluwer Law & Business, 2011, pp. 12ss.

⁹¹ Conclusions of the AG Ruiz-Jarabo Colomer presented in case C-150/05, Van Straaten of 8 June 2006, ECLI:EU:C:2006:381, I-9331, par. 65.