1. MINISTRY OF FINANCE 4-7.11.2003Counsellor, docent, Dr Tuomas Pöysti1 The Constitutionalisation and Evolution of Penal Law and Control Policy in the European Integration by Counsellor, docent, Dr Tuomas Pöysti Reader for the series of lectures About the lecturer: Dr Tuomas Pöysti is docent of Administrative Law (University of Helsinki) and Counsellor of the Ministry of Finance, Finland, where he serves as Chief Counsel of Public Economic, Administrative and Constitutional Law, Regulatory Policy and Public Governance. Dr Pöysti is the representative of Finland in the European Commission Consultative Committee on the Fight against Fraud (COCOLAF) and in the Council of the European Union Anti-fraud working group.

2. MINISTRY OF FINANCE 4-7.11.2003Counsellor, docent, Dr Tuomas Pöysti2 Short abstract Topic of the lectures is the evolution and the resulting constitutionalisation of the penal law and penal administrative law in the processes of European integration. The European Union has systematically developed its activities in the field of penal law and it has become a major actor in the formulation of the control policy, the latest stage of the development being the Draft Treaty on the European Constitution which is under negotiation in the Intergovernmental conference. The evolution reflects wider phenomena in the legal regulation and international law and legal governance, emphasis on performance and changing concepts of legitimacy and fragmentation of sovereignty. There is a fundamental tension between universalism and particularism in the European integration process which is reflected by different theories about the legitimacy of EU penal law. Series of lectures is in four parts: 1. The Theoretical Issues – The theories of integration and changing notions of legitimacy behind EU law 2. Evolution of Penal approach in the context of the Common Markets 3. Protection of the Financial Interests of the European Union and the European Anti-Fraud Agency OLAF 4. The project of the European Area of Freedom, Security, Justice in a wider Constitutional context and the draft Treaty on the Constitution

3. MINISTRY OF FINANCE 4-7.11.2003Counsellor, docent, Dr Tuomas Pöysti3 Objectives Give an overview and an interpretation of the evolution of penal law and criminal policy in the EC/EU Law Discuss the political theory behind legal developments of the EU penal law and criminal policy. Which are the fundamental concepts of legitimacy behind the structures and contents of EU penal law, penal administrative law and the project of European Area of Freedom, Security and Justice recognise the structures of change andanalyse critically the structures of change  phenomenological approach Give an overview of the legal protection of the EU’s own interests within penal and penal administrative law Give an overview of the evolution of the European Area of Freedom, Security and Justice in the today’s context and Discuss the Constitutionalisation of EU Penal Law and the project of the European Area of Freedom, Security and Justice

4. MINISTRY OF FINANCE 4-7.11.2003Counsellor, docent, Dr Tuomas Pöysti4 Topics in the EU penal law’s search for general theory 1. Penal law in the search of political theory and legimacy; Penal law and criminal policy in the Internal Market Law Administrative penal law and the protection of the interests of the European Union problem of fraud and irregularities problem of the protection of Euro 2. Towards the European Legal Space: Penal law and the co- operation in the justice and home affairs European Union as the Area of Freedom, Security and Justice New areas and forms of penal law harmonisation and co- operation in the field of criminal policy and penal justice Conflict between universalism and particularism as the forms of Western rationality Pluralism vs. unitary law and state -approach 3. Legitimacy and the orientations in the offing: Infinite Justice ? Place and model of penal law in the European integration

5. MINISTRY OF FINANCE 4-7.11.2003Counsellor, docent, Dr Tuomas Pöysti5 Criminal law and Legal Integration The origins of sovereignty from the economic analyses and political theory perspective: management of externalities and the Westphalian system of international governance The criminal law of sovereign nation-states territoriality principle national law & legal culture Penal law characterises a certain concept of life and culture and virtues, what is good life national identity for law Distrust in international co-operation double penalisation -requirement centralised authorities, legalisation no extradition of own citizens qualified use of the procedure of the requesting state The challenge: the changing reality. Cross-border externalities and phenomena, transnational legal relationships, growing interdependence

6. MINISTRY OF FINANCE 4-7.11.2003Counsellor, docent, Dr Tuomas Pöysti6 Models of deepened co-operation The Nordic Model trust via convergence of social models and societies simplified procedure The supra-national territoriality - the European territoriality mutual recognition, free circulation of official actions. Cross-border legal space filled with the activities by national authorities common judicial authorities Uniform criminal law & procedure; Ius Commune universal rationality and conceptions of justice cosmopolitanism, universalism in law

7. MINISTRY OF FINANCE 4-7.11.2003Counsellor, docent, Dr Tuomas Pöysti7 The change of criminal and administrative penal law in the light of integration theory Neofunctionalism Liberal inter-governmentalism Multi-layered governance, new institutionalism, legal pluralism meeting with the Other, ethics of encounter

8. MINISTRY OF FINANCE 4-7.11.2003Counsellor, docent, Dr Tuomas Pöysti8 The neofunctionalist approach The goals of the integration provide the legitimacy; peace, justice and prosperity integration value as such since it provides peace The spill-over effect The supra-national criminal law Differentiation accepted; system forces towards unification example: Money laundering harmonisation of the definition of offences example 2: securities market crimes Spill-over argument the driving force of integration in administrative measures The end station? Reappearance of the Empire Does the Empire need uniform criminal law

9. MINISTRY OF FINANCE 4-7.11.2003Counsellor, docent, Dr Tuomas Pöysti9 Liberal inter-governmentalism The state-centred approach; The state is the agent of co-operation and provides legitimacy & control The state is legitimate forum for policy & legal identity formation Union is the agent of the Member States The pooling of action compensates the lost governance resulting from globalisation Emphasis in conventions The Council of Europe conventions The complementary nature of EU approach Mutual co-operation Problems raison d’etat integrity of authorities efficiency of control in international networks Compromise between the nationality idea and humanistic & liberal universalism

10. MINISTRY OF FINANCE 4-7.11.2003Counsellor, docent, Dr Tuomas Pöysti10 The multi-level governance European Union is the network of several actors Internationalizing criminal law results from networks Pluralistic criminal law and control politics European Court of Human Rights and Court of Justice Common metaprinciples Approaching definitions in the special criminal law Importance of the elite networks Differentiation of penal law Problems the integration prevention and the symbol value of criminal law manageability of the pluralistic system