Taking the normative foundations of EU criminal law seriously: The legal duty of the EU to criminalise failure to rescue at sea

Abstract

This contribution argues in favour of the use of Article 83(2) TFEU to adopt a Directive criminalising failure of rescue at sea. We explain how and why the EU's legal duty to comply with its obligations under Article 98 of the UN Convention on the Law of the Sea ought to translate into the adoption of a Directive requiring Member States to criminalise all action contrary to Article 98 UNCLOS on the basis of Article 83(2) TFEU. The criminalisation of failure to rescue at sea would not only allow for the EU to abide by the fundamental legal rules that shape its order but also be consistent with the two rationales that have guided European integration so far: a functional rationale, whereby the Union has competence to adopt criminal offences and impose criminal sanctions where approximation proves essential to ensuring the effective implementation of a Union policy in an area which has been subject to harmonisation measures, and a constitutional rationale, according to which criminal law is key to ensuring respect for EU common values and fundamental rights.