Europeanization of Penal Law: New Sources of Legality

Extract

[...] The Europeanisation of criminal law has allowed the development of new sources of legality in domestic law. Thus, within the framework of an exception to illegality in criminal law, the judge has competence as to a potential control of conventionality. II- The exception of illegality in in law penal : the competence of the judge in the control of conventionality On the foundation of the article 111-5 of the Code penal, the est possible de faire a exception of illegality. [...]

[...] Following this, the traffic and location data of the applicant were exploited, after finding his identity via the IP address of the society. On June after being placed under investigation on December the defendant filed a petition with the investigating chamber to annul the records of the exploitation of his connection data. The Court of Cassation's ruling dated July states that Article R.10-13 of the Postal and Electronic Communications Code is contrary to European Union law. Thus in in principle, the conservation generalized and undifferentiated of data of connection to until of struggle against the criminality is interdite, except exception. [...]

[...] The high court of appeal criticizes a lack of precision, of clarity, of explanation to the Court appeal, here affirm without explicitly. Finally, the Court of cassation rejects the argument of the Court appeal, and affirm « that it neither results of none piece that the magistrate instructor, who has issued a letter rogatory in general terms, has authorized the judicial police officers to to proceed to the mandatory addressed to the operators ». The court of cassation affirm so that access to the data was made in a manner non-compliant with the law of the European Union. [...]

[...] » The judgment refers to different sources of law, which come into conflict here. ; in the case the it is a matter of of a decree and of a directive. This last is a act of the institutions of the the European Union, which sets objectives that member states must achieve, by transposing the directive into French law and taking measures. Thus, on the political level, European law influences the principle of internal legality in French law, because France being a member state of the European Union, she if retrouve constraint to adopt the directives of the Union européenne. [...]

[...] » The defendant requested in this case to make an exception of illegality of the decree under the directive European. The competence of the judge penal for interpreter the act administrative Therefore, the judge is thus led to carry out a conventionality control of the decree, that is to say, to examine the legality of the administrative act in relation to European law. In this case, in order to carry out this conventionality control, the court on appeal a firstly avoided in if referring to a stop you Council d'Etat, before that the Court of Cassation does not render the judgment of 25 October 2022. [...]