The European Union frequently requires Member States in legal instruments to criminalise also conduct concerned with the participation in a criminal offence. Unfortunately it does so in a rather haphazard and inconsistent manner. Article 4 of the Directive 2008/99/EC on the protection of the environment for instance holds that “Member States shall ensure that inciting, aiding and abetting the intentional conduct […] is punishable as a criminal offence”. Other instruments such as Directive 2005/60/EC on the protection of the use of the financial system for the purpose of money laundering and terrorist financing seem to adopt a more fine-grained approach by holding that the intentional participation in, association to commit, attempts to commit and aiding, abetting, facilitating and counseling the commission of an offence outlined in the directive shall trigger criminal liability. Already from these different wordings it can be deducted that a coherent definition of participatory conduct is yet to be found in European Criminal Law. None of these concepts are further defined and it is left to the implementing Member States to lay down the conditions under which one of these forms of participation will be applicable. However, the approaches taken regarding participation in crime in different Member States are divers and can lead to varying scopes of liability, a situation which is undesirable in a “Common Area of Freedom, Security and Justice”. More importantly maybe, a European concept of perpetration which will influence the scope and guise of all other forms of participation has not yet emerged. This can be considered striking, given the fact that the European
Court of Justice (ECJ) has frequently held that provisions in EU legislation must be given an autonomous and uniform interpretation throughout the Union in order to assure a uniform application of European Union Law.