The Challenges of EU Enforcement and Elements of Criminal Law Theory: On Sanctions and Value in Contemporary ‘Freedom, Security and Justice’ Law

This paper challenges established visions of EU legal enforcement by testing them in the context of criminal law theory and asks to what extent EU law can be enforced against non-compliant Member States via the use of criminal law. A main theme running through this article is the basic question as to what extent the EU legislator needs criminal law provisions for the enforcement of EU law. The paper does this by looking at the effect of administrative sanctions and their link to criminal law sanctions. In addition, the paper assesses the wider theoretical implications for the enforcement of EU law through criminal law and specifically when the values of the EU and those of the Member States are in conflict. Critically, the paper asks if the EU enforcement toolkit is sufficiently nuanced when applied in a criminal law context and sets out to chart the genesis of EU law enforcement through the use of criminal law theory. This seems particularly relevant to the discussion of enforcement in general, given that the operation of EU law essentially and chiefly concerns the values to be enforced in the national arena.