The Lisbon Treaty and EU Criminal law : A Feasibility Analysis For The Creation of Deterrent Legislation Against White-Collar Crime at EU Level

Abstract: The hypothesis of this thesis is that deterrent regulation could have had prevented or, arguably, at least minimised the myriad forms of fraudulent misrepresentation at the core of the economic crisis. Therefore, white-collar crime had, and has, a central position in causing the economic crisis and deterrent regulation will be essential in reducing the risk of a crisis of this scale infecting in our legal systems again.  The background has been evaluated through the definition and origin of white-collar crime and Anglo-Irish bank has been used as a demonstrative example to illustrate this hypothesis.               The EU’s competence in creating criminal law is examined, through primary law, with the aim of elucidating the boundaries that are provided in the Lisbon Treaty. Before this, however, an evaluation of the definition of criminal law is necessary to establish the relationship between criminal law and administrative sanctions. The relevant bases in the context of the EU’s competence are: article 83 TFEU, and article 325 TFEU and the EU’s outspoken goals for the Union in the Stockholm programme. Article 83 TFEU is examined as it gives the EU an explicit legal basis for the adoption of criminal directives, thereby ensuring the effective implementation of EU policies that have been subjected to harmonisation measures. Further, article 325 TFEU stipulates the EU’s priority in fighting “fraud and any other illegal activities”. Through The Proposed Directive on the fight against fraud to the Union’s financial interests the article is given a supranational character in creating criminal law on the area of law.               The Proposed Directive on the fight against fraud to the Union’s financial interest and The Proposed directive on bank recovery and resolution have been found, through their scope and legal bases, to cover what could be argued to be different essential tools in the fight against white-collar crime. The first proposed directive presents a wide range of offences and holds both natural and legal persons liable by “deterrent” legislation i.e. minimum prison sentences. The second proposed directive is presented as a tool for the prevention of the occurrence of another economic crisis utilising the means of administrative sanctions in article 114 TFEU. However, whilst not classified as a “deterrent” (in accordance with the interpretation of deterrent found in article 325 TFEU), administrative sanctions has been given the competence to have a “punitive character” and therefore a controlling function without the competence of criminal law. However, in order to prevent and deter crimes of the magnitude of those that occurred at Anglo-Irish bank, it is argued that its legislation must be made sufficiently “deterrent” by incorporating a fear of being caught, given lengthy sentences and public shaming by thorough criminal investigations, proceedings, trials, convictions and/or a criminal records.