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The Taste of Cherries* – The state of legal certainty in European criminal law [ Volume 3 – 2013]

14 June 2013

I. Introduction

Japan’s culture of cultivating cherry trees is renowned and admired all over the world.As a token of her friendship, Japan has bestowed many of these cherry trees to foreign governments and institutions. Let us assume, for the sake of this paper, that one of these trees is now rooted in Brussels, Belgium, which many consider to be the capital city of Europe as it is so closely linked to law-making at the European level. This tree starts to bloom sometime during the spring and it will eventually bear fruit. If you were to wonder about the taste of these cherries, there is but one way to find out: You would have to try one. Let us further assume that we have a representative from each of the 27 Member States of the European Union pick a cherry from this tree and taste it. While the first 26 of these representatives would announce that this tree bears sour cherries, the last one of them would swear to high heaven that the cherries taste sweet. Who is right? Or in other words: Is anybody wrong?

II. The case of Lubella

Rest assured. I do not want to waste your time with the description of a fictitious cherry tree in Brussels. This simple story may however serve as an allegory to the language situation in the European Union. More specifically, it refers to the case of Lubella, which was decided by the European Court of Justice in 1996.[1]At the time, EU law provided a certain minimum price for sour cherries and charged importing companies a countervailing amount in case they had obtained these cherries at a price below this set minimum. The German company of Lubella had imported sour cherries into the European Union. Based on this regulation, customs authorities charged Lubella with a countervailing amount. Their decision was subsequently challenged before court. Lubella claimed that the respective regulation only referred to sweet cherries and not to sour cherries and based its argument on the German version of this legal instrument, which did in fact use the word “Süßkirschen” (sweet cherries).However, the English version of this regulation explicitly mentioned sour cherries and so did all of the other language versions except for one. What might provoke especially criminal lawyers for such a clear and obvious violation of the wording did not stir the Court of Justice at all. The Court simply referred to its well-settled case-law according to which

“the need for a uniform interpretation of [Union] regulations makes it impossible for a given piece of legislation to be considered in isolation and requires that, in case of doubt, it should be interpreted and applied in the light of the versions existing in the other official languages.”[2]

Since all but the German version of this regulation related only to sour cherries, Court ruled that this was the correct interpretation. Sweet cherries (“Süßkirschen”) must therefore be understood to refer to sour cherries (“Sauerkirschen”). I would like to move beyond the implications of this particular case. It did not involve criminal or administrative sanctions and certain factors of this case let to the assumption that Lubella had not acted in good faith when they relied on the German wording. I have omitted these factors from my description to keep the facts simple. However, as I will show in the following, the Court of Justice has extended this line of reasoning to criminal law measures as well. This is where it becomes dangerous.

III. Supranational elements of crime

Let us take a step back and look at how criminal law provisions in European law came into existence. As a general rule, criminal justice in Europe lies still within the hands of national legislators. We have provisions on homicide, murder, theft and fraud in all of the 27 national jurisdictions that form the European Union. A European criminal code with comparable criminal laws does not exist. To give those of you who are not familiar with the distribution of powers in Europe, I would like to stress that the Member States of the European Union remain sovereign regardless of how far European integration has taken them during the recent years and decades. The European Union itself is not a state. It must not act unless there is an express competence embodied in one of the European Treaties which confers the power to legislate upon the Union. Within the scope of its competences, the Union may enact Regulations which are directly applicable in all Member States. This is what I refer to as supranational law. It is supranational because it is applicable in all of the Member States as such. There is no need for national legislators to implement these European provisions. National courts and administrative authorities are bound directly by the European Regulations. The European legislator, which consists notably of the Council of the European Union representing the Member States and the European Parliament, has enacted Regulations to govern many legal areas, many of which are of a technical nature. They concern for example fishing quota or the making, marketing and distribution of wine and other alcoholic beverages. Due to this technical nature, many of the European citizens go about their daily routines without having to have regard to the European provisions.

Although the European Union has over the years reached out to legislate on many different fields, it has left the field of criminal law relatively untouched. Member States had always regarded the criminal justice system to be a peculiar aspect of their national sovereignties and have consequently defended this domain.[3] Scholars and practitioners agree that the European Union does – generally speaking – not have the competence to enact its own supranational criminal law provisions.[4] This is why a European provision on murder or theft does not exist and is not likely to be enacted in the future. This lac of criminal law competence leaves the European Union dissatisfied. While it may on the one hand regulate large legal areas with the greatest precision and respect for details, its hands are tied with regard to enforcing these provisions and to punishing any perpetrators which do not abide by its rules. Therefore, the law of the European Union requires the Member States to “ensure in particular that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive.”[5] The national criminal justice system must therefore serve to protect the interests of the Union by imposing penalties, not necessarily criminal sanctions, for violations of Union law. The easiest way to fulfill this obligation would be to transpose the European Regulation into national law and to provide for a sanction in case of violations thereof. This solution, however, is barred by the Court of Justice. The Court has expressly prohibited Member States from transposing supranational into national law provisions since it feared that such implementing measures might conceal their European origin.[6]The only way forward is therefore to enact so called blanket criminal law provisions. Consider Section 34 para. 4 of the German Foreign Trade and Payments Act[7], which provides:

„A prison sentence of six months up to five years shall be imposed on anyone who

(…) acts contrary to the legally binding prohibition of export, import, transit, (…) laid down in an act of law of the European Union which was published in the Federal Gazette and serves the implementation of economic sanctions adopted by the European Union Council in the field of the common foreign and security policy.“

The Federal Gazette mentioned in Section 34 refers to Regulation No. 423/2007[8]concerning restrictive measures against Iran. Art. 5 para.1 reads as follows:

“It shall be prohibited:

(a) to provide, directly or indirectly, technical assistance, or brokering services related to the goods and technology listed in Annex I and to the provision, manufacture, maintenance and use of goods listed in Annex I to any natural or legal person, entity or body in, or for use in, Iran;”

This provision, as it is embodied in an EU Regulation, has been incorporated into a German blanket criminal law provision. Similar national legislation has been enacted in all other Member States as well. Supranational elements of crime therefore exist as references in national criminal blanket laws.

IV. Interpretation of supranational elements of crime

Before we turn to address the consequences for the principle of legal certainty, let us briefly how these supranational elements of crime must be interpreted. Since the purpose of the national criminal blanket laws is to establish sanctions for violations of supranational norms, the interpretation of the criminal blanket laws must follow the interpretation standards provided for the norms themselves. As the Court of Justice repeatedly states:

“It must be borne in mind that [Union] legislation is drafted in several languages and that the different language versions are all equally authentic. An interpretation of a provision of [Union] law thus involves a comparison of the different language versions. It must also be borne in mind, even where the different language versions are entirely in accord with one another, that Community law uses terminology which is peculiar to it. Furthermore, it must be emphasized that legal concepts do not necessarily have the same meaning in Community law and in the law of the various Member States.”[9]

Thus, European norms have their own nomenclature. Their words have to be interpreted autonomously and by taking into account all of the official language versions. European Union law is equally authentic in 23 different languages. It is needless to say that there is probably not a single person in Europe, presumably not even a single linguistic expert working at the Court of Justice, who is capable of comparing the technically phrased wordings of 23 different languages. To assume that this is possible must seem absurd. The Court of Justice, however, has clung to its established standard of interpretation. It has done so, as is my reading of this jurisprudence, because it fears to take any step towards giving particular language versions more weight. Over decades, the Court of Justice has fought vigorously against national courts, even constitutional courts, and their attacks on the supremacy of Union law. By maintaining that no particular language version may be superior to others, the Court of Justice has managed to get a firm grip on Union law and to secure its mandate to interpret Union law. In recent years, national courts have aligned themselves to follow the lead by the Court of Justice.

V. Deficits for the principle of legal certainty

In the following, I would just briefly point two different types of deficits with regard to the principle of legal certainty which we may identify: concrete and abstract deficits.

1. Concrete Deficits

Let us take another look at the Regulation to which I referred above. Art. 5 of said Regulation prohibited “brokering services” to Iran. I would like to draw particular attention to the term “brokering services”, which is also defined in this Regulation:

“‘brokering services’ means activities of persons, entities and partnerships acting as intermediaries by buying, selling or arranging the transfer of goods and technology (…)”

The respective German version of this Regulation reads as follows:

“Tätigkeiten von Personen, Einrichtungen und Partnerschaften, die als Vermittler beim Kauf, beim Verkauf oder bei der Organisation des Transfers von Gütern und Technologien tätig sind”

Those of you who understand both languages and read carefully, will note a striking different between the two language versions: the English version gives the impression that you become an intermediary through participating as a contracting party in chain of subsequent exchanges or transfers of a prohibited good. This is indicated by the term “by buying, selling”. The intermediary him- or herself must become a contracting party. The German version in turn merely requires that intermediaries simply deal with the buying and selling by others, i.e. the German version seems to be content with requiring an assisting role of the intermediary. It does not presuppose that the intermediary personally becomesa contractor. This example illustrates a concrete deficit of this Regulation with regard to the principle of legal certainty. The German and English versions of this Regulation do not match as to this particular aspect. If the Court of Justice were asked to determine the meaning of this definition, it would have to opt for either the German or the English notion. In case the Court prefers the German version by merely requiring a supporting role of the intermediary (instead of requiring them to become part of a chain of transactions), English-speaking perpetrators might claim a violations of the principle of legality since the English wording is phrased more narrowly.

2. Abstract Deficits

In spite of concrete examples, in which language versions do not seem to match, there is a general, systemic deficit to the principle of legal certainty. We simply do not know what the law says. We rest on the assumption that the jurist-linguists working in their Brussels offices do a perfect job of providing literal and correct translations for all the working documents they receive before they become the law. This assumption is challenged by everyday experience of working with different language versions. I would like to recall what the principle of legality stipulates according to its inventors, namely Charles de Montesquieu and Cesare Beccaria. They advocated that any law may be phrased as precisely as necessary to trigger the same thoughts and ideas in any person’s mind and convey exactly the notion of what is legal and what is prohibited.[10] Nowadays we know, of course, that this is impossible and – allow me to say – I have my doubts as to whether Montesquieu und Beccaria themselves ever believed that their demands could be met.[11]Today, we accept the limitations of language as such to convey thoughts and ideas and we have learned to limit the principle of legality respectively. However, the problems posed by Union law are of a different quality. If the Court continues to interpret Union law autonomously from national interpretations and with due regard to literally all of the official languages, one particular language may no longer provide a satisfactory means of orientation. You simply do not know to what Union law refers but are limited to estimating the law. As we will see in the following, the Court of Justice is well aware of these consequences. In one of the very first proceedings before the Court of Justice, at a time when there were only four authentic languages, Advocate General Maurice Lagrange put these considerations in a nutshell by stating:

“As you know, all four languages are authentic, which means that no single one of them is authentic.”[12]

VI. The view taken by the Court of Justice

The Court of Justice has acknowledged the principle of legal certainty long ago. The Court did this first in the context of administrative sanctions for illegal cartels[13] but has willingly extended this principle to the field of criminal law subsequently. The Court acknowledges

“that legislation must define clearly offences and the penalties which they attract. That requirement is satisfied where the individual concerned is able, on the basis of the wording of the relevant provision and, if need be, with the help of the interpretative guidance given by the courts, to know which acts or omissions will make him criminally liable.”[14]

It is striking that the Court seems to base the assessment as to whether the content of an incriminated norm is phrased in a sufficiently clear way on the ability of the “individual concerned”. This is, however, nothing but a rhetorical deception since this individual must “if need be” take recourse to the “interpretative guidance given by the courts”. As mentioned before, I do not want to criticize that the Court acknowledges limits to the principle of legality which are inherent to use of language by the legislator. But the Court’s jurisprudence suggests that the principle of legality is nothing but a formal guarantee which the individual can hardly ever invoke if we continue to go by the Court’s interpretation.

In recent years, the Court has had and continues to have the opportunity to refine the role of particular language versions of European Regulations. This is due to the recent accession of Central and Eastern European countries to the European Union. A large number of former Soviet republics, such as Poland, the Czech Republic, Slovakia or Hungary, acceded to the European Union in 2004. Romania and Bulgaria followed in 2007. When these countries joined in the past, the entire Union legislation had to be translated into the new official languages. This amounted to a Herculean task and was not accomplished by the legal interpreters in due time. Consequently, these countries became official Member States before Union legislation in its entirety became available in their respective official languages. It so happened that individuals from these countries were fined for violating certain Regulations which at the time of the violation had not yet been published in the official journal. They claimed that this was a violation of the principle of legality and the Court of Justice concurred with their views. In the case of Skoma-Lux, which was decided in 2007, the Court held

“that the principle of legal certainty requires that Union legislation must allow those concerned to acquaint themselves with the precise extent of the obligations it imposes upon them, which may be guaranteed only by the proper publication of that legislation in the official language of those to whom it applies.”[15]

By this ruling, the Court seemed to accept that an individual may claim to be adjudicated only if the norm had been published prior to the alleged offence. When a Latvian company named Kurcums Metal tried to invoke this reasoning in a case in which the Latvian version differed from the other languages to have a fine annulled, the Court stopped short of assigning any substantive meaning to the principle of legality. In its own words:

“The problem to which Kurcums Metal refers is not that of a failure to publish [the respective Regulation] in the Official Journal of the European Union, which was indeed published inter alia in Latvian, but that of a divergence between the Latvian language version of Article 1 of that regulation and the other language versions of that provision.”[16]

While this may already be read as rejecting any material consequences from the Skoma-Lux judgment, the Court made this clear explicitly:

“It is settled case-law that the wording used in one language version of a provision of European Union law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Such an approach would be incompatible with the requirement for uniform application of European Union law. (…)”[17]

The judgment in the case of Kurcums Metal was rendered on November 15th, 2012. This is where we stand today: The Court of Justice seemingly considers the publication of all language versions to be of particular importance with regard to letting the individual know what is expected of him or her. Thereby, the Court implies that a particular language version has the potential of sufficiently informing individuals about their duties under Union law. However, once a particular language version has been published officially, the wording in that language is only of subordinate relevance – if it is of relevance at all.

VII. The way forward

What approach should the Court of Justice pursue instead? The Court’s fear of opening Pandora’s Box by making any change to its interpretative standards is justified. The Court would put the uniform application of Union law at stake if it chose to allow national courts to give preference to the wording of particular language versions when interpreting supranational law. But I would suppose that the Court’s grip on the interpretation of Union law is firm enough to allow national courts to apply the principle of legality by having regard solely to a particular language version. This solution presupposes distinguishingnorms and sanctioning provisions.[18] Norms contain imperatives directed at individuals. Sanctioning provisions contain the rules for dealing with possible infringements. With regard to the example mentioned above (relating to the German law on export control), the Regulation concerning certain measures against Iran contains explicit prohibitions, while the German criminal blanket law merely provides legal consequences for those who do not abide by the referenced norms. For the reasons mentioned before, it is not feasible, nor necessary to alter the rules governing the interpretation of Union norms. We may, however, change the way we look at national sanctioning provisions from the perspective of the principle of legality. The Court of Justice should allow invoking the wording of a particular language version with regard to the legality of the sanctioning provisions instead of the norm as such. National courts would then be tasked to assess whether a particular language version of a Union norm reflects the actual content of this norm as it is established by the Court of Justice. In my opinion, this solution would reconcile the need for a uniform interpretation of Union law which takes every particular language version into account with the need for reasonable foreseeability. I would imagine that most cases would not have to be solved differently. Many official translations are defective but not in every aspects. The Court of Justice would be required to take a leap of faith towards national courts and trust their prudent application of the principle of legality (or rather legal certainty).

Before we conclude, let me briefly point to follow-up questions which would then arise and which I have left out in order not to exhaust the time allocated to my presentation. This European solution has so far left out the consequences for the national criminal justice systems, in particular: whether or not it may lead to blurring the differences between two aspects of the principle of legality: the principle of legal certainty on the one hand and the prohibition of analogies detrimental to the accused on the other hand. The principle of legal certainty as I advocate it is not so much concerned with foreseeability but rather with the question as to whether a particular interpretation of Union law remains legitimate from a strictly legal perspective. I have also not been able to address the question of whether or not the concept of blanket criminal laws with references to Union law may be reconciled with the national equivalents to the principle of legal certainty. Although I have to leave these questions unanswered for now, I believe that establishing the right to rely on a particular language version is a necessary step towards ensuring the liberty of the individual in European criminal law. It seems to me to be the only way to uphold the equality of all authentic languages on the one hand and to pour substantive guarantees into the principle of legality on the other hand. The formal approach so far endorsed by the Court of Justice is a dead end. As the Greek scholar Mangakis put it faced with the Greek military regime during the late 1960s:

“We must not only note that our freedom is constantly put at risk but also that despotism nowadays has become smarter. While it substantially annuls the virtual effects of a legal principle but nevertheless keeps it formally, the principle is eroded of its guarantees. Despotism knows how leave legal guarantees untouched but to strip them of their protective powers at the same time.”[19]

I do not want to suggest that the state of the European Union is anywhere near despotism. But I do wish that Mangakis’ words may guide us when deliberating as to whether and how we must adapt our legal thinking to address legal issues with which we had not been confronted in the past. Formal arguments do not lead us on the right track. To sum up the state of legal certainty in European criminal law, I would like to honour Japan’s literary traditions by concluding with a haiku poem and kindly ask you to excuse my feeble attempt:

In Brussels, there blooms

A cherry tree and its fruit

Taste both: sweet and sour.