February 25

The Court of Justice and European Criminal Law

V. Mitsilegas, A. Di Martino and L. Mancano

review by

Daniel Sarmiento

For decades, criminal law was never much of an attraction for Community lawyers. The creation of an internal market was mostly the task of trade lawyers and economists at first. It was the success and breadth of the common market, muted in 1992 into an internal market, that changed the landscape and turned criminal law into a familiar topic in EU law literature. But however familiar it became, criminal law has always been a challenging domain, a legal discipline that sits with difficulty among the traditional areas of EU law.

In a recent book edited by V. Mitsilegas, A. Di Martino and L. Mancano, criminal law is the protagonist in the story of this marriage of convenience between the law of integration and criminal policy. The Court of Justice and European Criminal Law is a timely and thoughtful endeavour that provides an explanation of the rise and consolidation of criminal law as an ordinary part of the EU law landscape. And it does it by familiar means for EU lawyers: mapping the case-law of the Court of Justice and depicting the evolution of criminal law through individual and leading judgments of the Luxembourg court. The result is a success.

Throughout fifteen judgments that include seminal decisions like Berluconi, Pupino, Akerberg Fransson or Advocaten voor de Wereld, among others, the book scrutinizes each judgement from a dual perspective. First, an EU lawyer explores the judgment from the optics of integration, providing an explanation of how the judgment fits in the overall narrative of EU law. Second, a criminal lawyer provides the domestic and specialized perspective from the criminal context. The combination provides a rich overall view of how each judgment deploys a dual life of its own. In fact, it is striking to see how differently can EU and criminal lawyers can portray the same judicial decision.

However, the book also shows that there is a common narrative which EU and criminal lawyers share. The protection of fundamental rights and the development of common standards, particularly when it comes to procedural rights, emerges throughout the book, particularly in the chapters on ne bis in idem. Also, the concern with the appropriate balance between mutual recognition and the protection of rights is also an emergent topic common to several authors. Even when EU and criminal lawyers interpret the goals of EU law in different ways, the book is a powerful example of how the means and instruments in the lawyer’s toolbox can find common ground.

Of course, there are decisions which have been sacrificed for the sake of producing a manageable book. The Court of Justice is becoming an experienced criminal court, entering domains of enormous sensitivity. Its case-law on citizenship and extradition (see the recent judgments in Petruhhin, Pisciotti and Raugevicius) is good proof of how the terrain of criminal law is expanding into further fields of EU Law. Also, the fact that an urgent preliminary reference procedure came into force in 2008 is evidence of how relevant criminal law has become in Luxembourg. There is no better proof of this than the introduction to the book, authored by the President of the Court of Justice himself. Overall, the book confirms that we are witnessing the emergence not only of a new discipline in the rich tapestry of EU law, but also a new era in the process of integration through law in Europe.

You can find further information about the book here.


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