European Law Journal最新文献

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.

This article explores the role and justifications for EU action in the EU Area of Criminal Justice, also relying on a comparison with the justifications for EU action in the internal market. It distinguishes between a role for the EU as a subsidiary policy actor and as a primary policy actor. By substantiating both models, the article illustrates how the model of the EU as a subsidiary policy actor has been challenged by legislative and judicial developments in the internal market and how these trends were particularly accentuated in the EU Area of Criminal Justice. The EU increasingly regulates areas of non-cross-border crime, as can be appreciated by the shape and the implementation of the competence to harmonise definitions of crimes. And the Court of Justice has unequivocally extended the application of EU criminal law, both substantive and procedural, to internal cases. The article argues that such developments, which build on pre-existing trends in the internal market field, are inevitable in the EU Area of Criminal Justice due to the inherent fundamental rights' sensitive nature of criminal law. A subsidiary, piecemeal approach in criminal justice might safeguard national regulatory autonomy but is hardly affordable as it would challenge general principles of criminal law. Relying only on “legal cross-borderness” as a criterion to justify EU definition of crimes would neglect the harm principle and the legal interest principle. Legal creativity that would stem from limiting EU intervention and safeguarding regulatory competition can be fostered by enlarging EU regulatory tools in this area codifying also decriminalisation competences. Moreover, limiting the application of EU criminal law to only cross-border cases is at odds with the principle of legality in criminal matters and of equal treatment.

EU policy-making in criminal law is a matter of significant public concern for EU citizens and the Member States. The exercise of EU public powers in the fields of criminal law and law enforcement have tangible and adverse consequences for the liberties and well-being of individuals. Furthermore, EU cooperation in the area of criminal law touches upon core functions of statehood including ‘core state powers’ such as the safeguarding of internal security and law enforcement. This raises several questions regarding the rationale underpinning EU criminal policy and its legitimacy within the context of a multi-level polity. This article sketches out a normative argument for legitimate justifications for some particular areas of EU criminal law on the basis of the transnational criterion enshrined in the subsidiarity principle. The article claims that there is a compelling justification for EU action in criminal law to protect European public goods and other key transnational interests.

This contribution intends to show that normative foundations, in the sense of foundations prescribing norms or expressing prescriptions, have been rather limited in determining or defining the legal bases, legal provisions and their evolution in EU criminal law. EU primary and secondary law in penal matters has indeed been adopted mainly in reaction to the need to adjust to reality, to face challenges, react to facts, incidents and threats and to implement overwhelmingly political objectives, which themselves follow most of the time from the said factual or operational needs resulting from practice. This thus calls for an assessment of the advantages and risks of the relatively decisive role of external factors on the development of criminal justice in the EU.

The increasing legislative activity of the Union in the field of criminal law highlights the need for a normative justification of EU action in this area. The article first examines and compares the existing EU legislative grounds for criminalisation, coupled with EU criminal policy orientations, with the well-established criminalisation grounds recognised in criminalisation theory in order to distil what the underlying substantive criminalisation principles behind EU criminal law may be. This article then scrutinises ‘effectiveness’ as the potential normative principle of EU criminalisation. It is submitted that, within EU criminal law and policy, effectiveness has become a sort of ‘hybrid criminalisation principle’, joining pragmatic with seemingly normative criminalisation-legitimising considerations. However, the article argues that effectiveness should remain primarily conceptualised as a pragmatic criminalisation consideration, not as a normative substantive criminalisation principle that acts as the first and most important criminalisation criterion determining the content of what may be criminalised.

Although the place of EU criminal law in the European construction has become incontestable today, it has historically been a far from obvious one. In its origins and development, two different rationales can be distinguished: a functional one aimed at using criminal law instruments to address specific cross-border crime challenges generated or enhanced by the progress of EU integration in other fields, and a constitutional one implying the use of criminal law also to further enhance the respect and promotion of EU common values. While the first rationale has been dominant from the outset, the second has emerged only gradually. For the sake of effectiveness, legitimacy and mutual trust, both rationales should equally drive the further development of EU criminal law. Yet prospects for a stronger affirmation of the constitutional rationale are weakened by current EU rule of law and democratic leadership challenges.

Ever since the establishment of EU competence to legislate in criminal matters, legal scholarship has been devoting a fair amount of attention to the scope of these powers as well as to their proper exercise. The many scholarly contributions this has led to make a commendable and laudable body of knowledge with respect to the matter at hand. Yet, as will be argued, its capacities to shape the normative foundations of EU criminal law remain limited, with the main reason being that normative limits of EU-level criminalisation have so far predominantly been articulated in terms of principles. For the reasons set out below, this article proposes to supplement the ongoing debate with another conceptual lens, i.e., the lens of legal interests (Rechtsgüter). The purpose of this article is to substantiate the point of view that the concept of legal interests offers essential opportunities to further shape the normative foundations of EU criminal law.

The European Union is blighted by a style of governance, EU police, which holds that the Union better balances different interests and values than other arenas but which is, in practice, distorted by anti-redistribution and status quo biases. To combat it, this article proposes a principle of European democratic authority that would found EU legal authority and condition domestic legal authority. This principle holds that, to warrant authority, measures should satisfy the values, goods and processes associated with liberal social democracies and the particular democratic commitments Union membership requires: democratic imagination, political belonging and mutual betterment. This principle would be institutionalised by two further principles. Justified disobedience would set out the conditions when EU laws without European democratic authority could be disobeyed. Democratic regard would require all domestic actors to be guided by the European democratic authority principle and to disregard domestic obligations that had failed to address it.

The aim of the article is to fill a gap in the literature on the externalisation of immigration control by focusing not on practices of extraterritorial immigration control but on the externalisation of immigration control at the EU external border. The article will examine four parallel and inter-related trends of preventive injustice on the border: the denial of law and pushbacks, and their handling by judicial authorities and EU institutions and agencies; the emerging framework of the instrumentalisation of migration; the normalisation of border procedures based on the fiction of ‘non-entry’; and detention of third-country nationals at the border, to back up non-entry policies. The article will highlight the rule of law deficit such externalisation entails.