Stefan Braum: "EU criminal law is in a permanent process of evolution"

Leaders League: What is the purpose of the European Criminal Law Academic Network (ECLAN)? 

Stefan Braum: ECLAN was founded with the goal of facilitating contacts among academics and practitioners specialising in EU criminal law. ECLAN frequently organizes conferences and PhD seminars, which allow researchers to stay up to date with the latest developments in a fast-developing area of law. Moreover, it supports publication of collective works, as well as the New Journal of European Criminal Law, which is arguably the leading journal in the field.

What is the current practical scope of EU criminal law? 

The scope of EU criminal law can be traced in Articles 82 and 83 of the Treaty on the Functioning of the European Union (TFEU). These allow for legal approximation in matters related to rights in criminal proceedings and serious crimes with a cross-border dimension. It has been obvious for years that the threat posed by terrorist attacks and organised crime cannot be adequately addressed by each individual member state, especially because the very existence of borders allows such forms of criminality to adapt and grow unhindered. Striking the right balance between the protection of fundamental rights and this security-driven goal is currently the greatest challenge for EU criminal law. 

How has ECLAN helped criminal law in the EU to evolve? 

ECLAN’s initiatives have been decisive in connecting academic researchers with practitioners and civil servants from EU institutions. This is particularly important because legal theory and practice need to progress in parallel. 

The research projects and studies ECLAN promotes have been accompanying the steps undertaken in the development of EU criminal law and often aim at assessing the implementation of various EU legal instruments (such as the Framework Decision on the European Arrest Warrant [EAW]), thus identifying potential room for future improvement. 

Lastly, the support ECLAN provides to PhD candidates by means of yearly seminars is meant to provide inspiration for their research work and ensure that the next generation of academics will be fully equipped to provide original contributions in the field.

Why do you emphasise the importance of an interdisciplinary orientation when approaching criminal law? 

One could provide a number of examples that illustrate the necessity of an interdisciplinary approach. First of all, this applies in the field of economic legislation, with the question being whether criminal law can develop a regulatory effect, and, if so, whether this is fulfilled in practice. In addition, a comparative approach among different EU legal systems is paramount for a proper understanding of criminal legal culture and its evolution. 

The rapid progression that is now registered in terms of digitisation and AI systems also renders an interdisciplinary approach necessary. In my view, research questions in this field can be fully addressed when the criminal law perspective is combined with a philosophical and/or sociological outlook. 

How, practically, can Luxembourg’s criminal code be strengthened to better combat white-collar crime? 

To this day, the Luxembourgish legislator has made great efforts to properly address money laundering and white-collar crimes. The fourth and fifth Anti-Money Laundering Directives have been thoroughly implemented and many efforts have been made in the direction of wider exchanges of information related to tax offences. 

Nonetheless, there is still room for more transparency with the aim to combat tax evasion in Europe, as well as better coordination in matters related to money laundering through virtual currencies and regulation of blockchain technology. 

Implementing anti-money-laundering legislation and exchanging information in tax matters is a complex task, as private actors – banks and financial service providers in general – have to cooperate with law enforcement authorities.

Luxembourg is working to create a sustainable compliance culture. This cannot be done overnight. 

How are the relations between EU policy makers, Luxembourgish institutions and corporate players in the field of criminal law? 

These actors currently maintain very strong links; this is undoubtedly facilitated by Luxembourg’s key role as the seat of the EU’s judicial authorities – namely the Court of Justice and, mostly recently, the European Public Prosecutor’s Office (EPPO) – and a major financial centre. This reality is also reflected in the curriculum of most Masters programmes at the University of Luxembourg, where many courses are taught by high-ranking EU officials and leading experts from the banking and financial sectors. This is a priority for our University – we want to offer our students the possibility to study law in a context that combines academic viewpoints with the practical aspects of each field.  

What are the main strengths and weaknesses of EU criminal law nowadays? 

EU criminal law is a field that has seen impressive development over the last decade. For instance, the introduction of the EAW and its effective implementation by EU member states has greatly facilitated the prosecution of crime in the EU, and the establishment of the EPPO is anticipated to further protect the EU’s financial interests across the participating member states. 

But there is still room for improvement, most importantly with regard to the level of protection of fundamental rights and the respect of the rule of law amongst member states. For instance, concerns over the independence of the judiciary in Poland have not subsided, even after the relevant judgments issued by the Court of Justice, and the Commission continues to take action in this respect. What lies in the future is still unclear. Rule-of-law principles are very fragile, as can be seen in all western democracies. 

Who are the biggest “influencers” in European criminal law at the moment? 

EU criminal law is in a permanent process of evolution – in other words, a law ‘in actio’. 

Indeed, one could mention several institutions that could either assume a more active role in the future, or find themselves evolving in new and, most certainly, welcome ways. Frontex [the European Border and Coast Guard Agency] would fall in the first category, and should develop a more vigorous role in the future. Furthermore, it is paramount that the action undertaken by the EPPO be limited by fundamental rights considerations. 

On the other hand, the recent case law of the Court of Justice indicates that while it once saw itself as the driving force of European integration directed towards finality, it can now be perceived as something more, namely the guardian of fundamental rights and principles of the rule of law in Europe. 

Lastly, I believe that data protection officers could assume a central role in safeguarding EU citizens’ privacy, provided that they can act independently. 

This multifaceted dynamic reflects the general notion that EU criminal law is developing as a network, by means of a continuous dialogue between European and national courts, which can and should be reinforced in the future.