Max Planck Institute for Foreign and International Criminal Law

1. The European Basis

The general framework of the Project was established by the "European Action Plan to Combat Organized Crime", approved by the EU in 1997, which provided for numerous initiatives in this field. The Joint European Project first of all checked whether the Italian, German and Spanish legal systems satisfy the provisions of the Action Plan and comply with the further developments of the European commitment in the field. At the same time the possibilities were analysed of concretising the goal upon which these European documents are based: the harmonization of the criminal systems of the Member States. On this basis, the Project drafted several rules at the European level, focusing on some significant sectors already indicated in the above mentioned Action Plan.

2.The Phases of the Project

2.1 Collection and Comparison of Data (1998-1999)

The comparative analysis during the first phase focused on the following thematic areas:

• the European commitment to countering organized crime, with particular attention to the legal basis for harmonizing criminal systems;
• the forms of organized crime in the three EU Member States included in the Project: a sociological and criminological analysis;
• criminal association as a specific offence to countering organized crime: normative relevance, structural characteristics, fields of activity, forms of participation and complicity;
• infiltration of crime into politics, professions and law enforcement: phenomenology and contrasting strategies;
• illicit income and law enforcement instruments: money laundering, assets investigations and confiscation of illicit goods;
• government witnesses and legislation regarding their privileged status;
• procedural instruments to combat organized crime;
• the reaction of civil society and prevention by local agencies.

The various topics were analysed by researchers from different countries, also in light of the exchange of opinions and experiences that took place at two meetings attended by Italian, German and Spanish judges, prosecutors and local administrators.

These workshops were held in February 1999 (Palermo) and September 1999 (Freiburg im Breisgau). The meetings were organized in such a way as to promote the best possible exchange of different viewpoints. In preparation for the first meeting, the research units drafted texts containing questions and suggestions for the judges and prosecutors. On this basis, the latter delivered their lectures during the first workshop and then discussed them with the participating researchers, together with other experts called upon to complement the discussion. Then, in consideration of the commentaries and the suggestions that emerged during the first meeting, each research unit prepared a report to be discussed during the second meeting. This was organized the other way round, i.e., researchers' reports were critically commented upon by the judges and prosecutors, who considered also the interests of the comparative inquiry under a practitioners' point of view. The results of the research carried out in phase I of the Project were collected in two volumes and published in 2000 in Italian and German under the titles "Il crimine organizzato come fenomeno transnazionale" and "Organisierte Kriminalität als transnationales Phänomen" in the series "Interdisziplinäre Untersuchungen aus Strafrecht und Kriminologie" of the Max Planck Institute for Foreign and International Criminal Law in Freiburg im Breisgau. Law-Publisher Giuffrè (Milano) was entrusted with the distribution in Italy.

2.2 Proposition of European Model-Norms (2000-2001)

The analysis carried out in the first part of the Project was supplemented by research focusing on a Europe-wide criminal policy perspective. A new research unit consisting of Italian, German and Spanish scholars and judges studied the possibility of drafting some common provisions at the European level to establish a legal basis for a more effective fight against organized crime. In a preparatory meeting held in Palermo in December 1999, the participants agreed to focus attention in the second phase on the following topics:

• participation in a criminal organization as a European model criminal offence;
• a European model criminal sanction of "extended confiscation" against organized crime;
• European model laws on the use of technical means for interception of communications;
• European model laws on the status of government witnesses.

Proposals put forward on these topics were discussed from a comparative perspective during a third workshop attended by researchers, judges and prosecutors, held in Madrid in June 2000. Although during the meeting critical positions emerged, the view prevailed in favour of the proposition of a restricted nucleus of basic norms to be adopted at the European level for fighting organized crime more fairly and effectively. These normative proposals in their English, German, Italian and Spanish versions and the explanatory reports revised after the commentaries of the Madrid workshop, have now been published in a third volume under the title "Towards a European Criminal Law Against Organised Crime" also in the series "Interdisziplinäre Untersuchungen aus Strafrecht und Kriminologie" of the Max Planck Institute for Foreign and International Criminal Law in Freiburg im Breisgau. This volume also contains summaries of selected contributions already published in the above-mentioned Italian and German books.