The fight against criminal organizations and their ability to carry out illegal activities that reach beyond national boundaries has long since signaled the need to go beyond a type of European integration that is confined to merely economic aspects. Among the objectives of the European Union—implicitly dealt with in the 1992 Maastricht Treaty and then expressly in the 1999 Amsterdam version—there is the intent to create a shared space not only for goods and citizens but also for “justice, freedom and security” (today art. 3 in the TEU post-Lisbon).

The fight against organized crime in particular represents a “bridgehead” in the European harmonization of national criminal law systems of the member states. The peculiar ability of criminal organizations to expand beyond national borders, facilitated by the abolition of the barriers once restricting the movement of people and goods within the EU, has gradually affected the traditional national autonomy in the field of criminal law. Formerly, such national sovereign authority had prevented any European intervention in this area, and, even when the need for greater European cooperation in the fight against transnational crime had been acknowledged, it still influenced the guidelines developed by the European Union.

The reason was to be found not only in the reservation of the member states to wide their sovereign criminal powers but also in the need to reconsider the consequences of such a new transnational dimension on the traditional guarantees given under national systems of criminal law.

After examining what role the harmonization of criminal law plays in the current European Union treaties (Sect. 2), we will consider how the difficulty of defining the concept of transnational organized crime may lead to European interventions that go beyond the limits of “reasonableness” (Sect. 3). In order to avoid such a risk, it is useful to refer to other relevant international sources, such as the 2000 Palermo UN Convention (Sect. 4). Nevertheless, the more recent European decisions on the matter (in particular, a resolution by the European Parliament of October 25, 2011) seem to have paid significant to the main problems involved (Sect. 5).

On a general level, the effectiveness of normative instruments against organized crime highlights a more general problem. The European Union’s action in the criminal law also shows the need to rethink the traditional guarantees and fundamental principles developed within the political context of nation states: In order to maintain the criminal law system as a means to protect all citizens, it is necessary to reconsider traditional guarantees within the framework of the new European dimension. This difficult topic will be addressed in the final sections of this essay—with reference to the European Court of Human Rights (Sect. 6) and the European Charter of Fundamental Rights and their counterweight activity to prevent unbalanced European action against organized crime (Sect. 7).

Over the last decade, the competencies of the European Union in matters of criminal law have progressively grown. The Lisbon Treaty extended the rules regarding harmonization of criminal offenses and their penalties to up to ten areas of “particularly serious crime with a cross-border dimension” [art. 83(1)(1) TFEU].¹

An EU intervention is also granted in cases where “the approximation of criminal laws and regulations of the member states proves essential to ensure the effective implementation of a Union Policy in an area which has been subject to harmonization measures” [art. 83(2)].² Lastly, a special area is defined regarding offenses against the Union’s financial interests [art. 325 and art. 86(2)].³

The tendency to expand the EU’s competencies in the field of criminal justice and to diversify the areas of intervention reflects the ever-greater role played by the European Union and its institutions. Moreover, the EU’s citizens have supported European action in the fight against crime, perceived as one of the EU’s main objectives, as shown by Eurobarometer data.

In this respect, it seems curious that, in article 83(1)(2) TFEU, organized crime is listed last among the sectors that can be subject to harmonization, as this seems to neglect the fact that organized crime, as a clear example of transnational crime,⁴ has very much accentuated the need for member states to coordinate their national criminal policies both within the EU and within the wider context of the United Nations.⁵

Since 1997, organized crime, along with terrorism and drug trafficking, has been named in European treaties as a possible subject for the harmonization of criminal law [art. 31(1)(e) EUT Amsterdam version, already referred to by article 61(1)(a) ECT].⁶ Harmonization of criminal law is aimed at “developing a close cooperation in the fields of Justice and Home Affairs,” as a new goal of the EU that goes beyond the original intent of the European Economic Community (art. B EUT, Maastricht version of 1992). In the 1990s, the importance of cooperation against cross-border crime, including its organized forms, led to a twofold intervention strategy: the mutual recognition of judicial decisions and the approximation of criminal law.

These two approaches will have to be integrated in order to overcome differences between the criminal justice systems of individual member states [a link highlighted in arts. 67(3) and 82(1) TFEU].⁷

Within this general framework, the European Union has adopted many regulations to fight criminal organizations. Even before the Amsterdam Treaty came into effect (1 May 1999), this was regarded as one of the first “European duties of criminalization”⁸: at the end of 1998, the Council passed a “joint action” relating to the participation in criminal organizations in the EU’s member states.⁹ This innovative point was also included in the 1997 Action Plan against Organised Crime,¹⁰ which has long represented a European policy programme on criminal matters.¹¹

However, the outstanding importance thus accorded to the topic of organized crime is not reflected in article 83(1)(2) of the Treaty, where, as pointed out earlier, the reference to organized crime is only to be found at the end of a long list of criminal activities requiring harmonization—a list on which terrorism is named first [unlike art. 31(1)(e) of the Amsterdam version of the TEU, where terrorism was only mentioned after organized crime].¹² Such a marginal placement of organized crime, together with the traditional vagueness of the concept, carries the risk that the scope of the legal provisions of article 83(1)(2) will be widened excessively, so as to (ideally) include any form of crime among the fields of possible European harmonization.¹³

This risk has to be avoided in order to prevent a definition of organized crime so wide that, although endorsed by article 83(1)(2) TFEU, will be nothing but a worthless duplicate concerning many of the criminal activities named in the same article. In particular, trafficking in human beings, drugs, and arms, and also money laundering and corruption, are all activities that share characteristics that they are “normally” carried out in organized forms, especially when performed transnationally.¹⁴ In order not to lose sight of the real meaning of organized crime, it is necessary to identify its typical characteristics. A definition of organized crime is even more important if we consider that, even before the Lisbon Treaty came into effect, many criminal activities now enumerated in article 83(1)(2) had already been the object of European decisions. These measures established minimum standards concerning both illicit conducts and corresponding penalties.¹⁵ Therefore, the fact that the Amsterdam Treaty only referred to organized crime, terrorism, and drug trafficking did not hamper the further inclusion of several of the sectors, now expressly contained in the list referred to by article 83(1) as areas of European harmonization.¹⁶ Besides, the current Treaty on the Functioning of the European Union envisages the possibility to extend harmonization measures to forms of crime that are not explicitly listed in article 83(1)(2). This will happen with regard to the evolution of crime, for example, when new criminal activities surface that are similar to those that are already the object of a possible harmonization of criminal law [art. 83(1)(3)]. Nevertheless, two characteristic elements are required: a particular “seriousness” and a “cross-border dimension” of the crime. Therefore, future efforts to harmonize criminal law may not exploit the vague definition of organized crime.

Furthermore, formal procedures (unanimity of the Council and consent of the Parliament) may not be taken as the sole basis to extend areas that are subject to harmonization. On the contrary, it will be necessary to verify that each new form of crime that is to be the subject of harmonization meets the two above-mentioned conditions (“seriousness” and “cross-border dimension”) referred to in the Treaty.

The reference to the transnational dimension of a specific crime may turn out to be rather useless when it comes to determining which new criminal phenomena should be subject to a harmonized legal reaction by the European Union. In fact, in the Lisbon Treaty system, the transnational dimension is derived from the “nature” and “impacts” of the offenses discussed, that is, the objective fact that criminal activities affect different states. But there is also reference to the “need to combat” particular types of crime “on a common basis.” Such a perspective is no longer objective, as it expresses the wish to harmonize criminal law across a number of states—and such a definition will not be able to limit an (over)extension of legal harmonization.

In order to avoid this risk, the above-mentioned indications included in article 83(1)(3) should not be considered the only elements that define the transnational dimension of European harmonization in criminal law. Here, it is useful to refer to the concept mentioned in article 3(2) of the 2000 UN Convention of Palermo that was also signed by the EU. This document refers to criminal offenses occurring in more than one state and involving organized criminal groups and views the involvement of a criminal organization as a particularly serious offense because it makes it more difficult to ascertain the liability of individual participants.

Provided that European harmonization follows the standards set for its extension to new forms of crime and respects the principle of subsidiarity, this will legitimate further European interventions, especially as action by individual states will not produce results (art. 5 TEU). It is precisely this difficulty to fight transnational criminal groups that establishes a “special need to combat them on a common basis,” as referred to by article 83(1)(3); otherwise, such a requisite would appear empty or dangerously vague.¹⁷

The reference to organized crime in the above-mentioned European treaties is not to be interpreted as a merely criminological concept, with an inevitably uncertain definition.¹⁸ Rather, the concept of organized crime as object of action by the Union has to be derived from supranational measures with defined legal characteristics, at least on the international level.

There are three different international legal frameworks: the above-mentioned European Joint Action of 1998, the Palermo UN Convention of 2000 on transnational organized crime, and the more recent Framework Decision of the Council on the fight against organized crime (2008/841/JHA of 24 October 2008).

In all of these texts, the notion of criminal organization is described using naturalistic and normative elements, both of which require further definition. Among the naturalistic elements, the most recent formulation in the 2008 Framework Decision stresses the participation of more than two people in a crime and its persistence over a period of time. The requisites concerning the “seriousness” of the offense and the existence of a “structured association,” on the other hand, are normative and need to be evaluated. Generally, the normative references here are too narrow in one case and too vague in the other.

The “seriousness” of the relevant “offenses” is defined as follows: the crimes in question must be punishable by at least 4 years imprisonment [art. 1(1)]. In this way, however, the law ends up including criminal activities that are viewed very differently by individual criminal law systems. Thus, the reference to a specific penalty neglects to address the still very considerable differences between criminal law systems in different EU countries.¹⁹

On the other hand, the definition of “structured association” does seem to appear vague: Excluded from this are only groups “randomly formed for the immediate commission of an offence.” Subsequently, however, it is specified that “the group does not need to have formally defined roles for its members, continuity of its membership, or a developed structure” [art. 1(2) FD 2008].