January 21
2021

The Legitimacy of EU Criminal Law

Irene Wieczorek

review by

Francesco Rossi

This book by Dr Irene Wieczorek provides an autonomous and far-reaching theoretical analysis of the grounds that justify resort to criminalisation at EU level and the multifaceted understandings of harmonisation of Member States’ criminal laws. The goal of the investigation is to bring to light the foundational elements of EU criminal law in its evolving and sui generis constitutional dimension and to assess the degree of coherence of policy trends, primary and secondary EU criminal law, and ultimately the harmonisation in criminal matters with the constitutional roots of the EU.

By providing insights on the legitimacy of EU criminal law and its roots in the constitutional identity of the EU itself through a systematic approach to the subject, the analysis is addressed to both scholars and policy makers. The book has the merit of thoroughly investigating general EU criminal law issues of constitutional relevance to the EU criminal justice system and to restate the paramount importance of theorising about the transforming field of EU criminal law. As well as contributing to the academic debate in this field, the book is also intended to catch policymakers’ attention, who should find consistent guidance useful to narrow the gap between scholars’ critical analysis on criminal policy and actual trends in law making.

The author justifies the relevance of the investigation on the ground of the need for renewed doctrinal theories, categories and concepts in the field of EU criminal law. The well-structured introduction outlines the three research questions it addresses. The first concerns the constitutional foundation of (and resort to) EU criminal law: how do principles and values shape its legitimate use? The second shifts from theory to practice and wonders again how EU institutions justify the resort to secondary criminal law. The third concerns the relationship between such resort to criminal law and the above principle and values enshrined at EU level. The final goal of the research is to provide a thorough, integrated picture of EU criminal law and EU constitutional identity. From the methodological and analytical standpoint, the investigation adds value to the existing literature as it grounds the legitimacy of EU criminal law also on the cornerstones of some of the most distinguished criminalisation theories. Prominent doctrinal theories on supranationalism of criminal law are revised as well by drawing pertinent arguments from the said theories.

The investigation begins with an overall analysis of the legitimacy of criminal law. After an accurate literature review, the author builds the concept of criminal law around the deprivation of liberty and detrimental repercussions of the related stigma on human dignity. She argues that the traditional discourse on the legitimacy of criminal law theorises a rigid separation between a ‘deontological’ (based on pre-existing core values) and ‘utilitarian’ (a means to an end) approach to criminal law, whereas an integrated approach would be preferable, in that it arguably strikes a more measured balance between fundamental rights protection and effective crime prevention.

Observation is made of  the competence that the EU legislator is conferred by Article 83(1) TFEU reveals the integrated legitimacy (both deontological and utilitarian) of EU criminal law: minimum norms can be laid down for listed serious crimes with a cross-border dimension. According to the author, this state of affairs represents a significant change, as under the Treaty of Amsterdam the goal of the EU criminal law competence was chiefly to enhance EU judicial cooperation and mutual recognition of judicial decisions. In addition to Article 82(2) TFEU, the utilitarian setting of EU criminal law is maintained under Article 83(2) TFEU, which states that Directives for the effective implementation of EU policies that already gave rise to non-criminal harmonisation measures can be adopted, if regulatory criminalisation proves essential from a functional standpoint.

Then the author looks into the pre- and post-Lisbon EU policy documents on the EU harmonisation of criminal law in the Area of Freedom, Security and Justice. She maintains that the EU has shifted from a merely utilitarian to an integrated approach (deontological, harm-based, and utilitarian, possibly underpinned by empirical evidence) to the legitimacy of EU criminal law.

A case study on racism and xenophobia (Framework Decision 2008/913/JHA), Market Abuse (Directive 2014/57/EU) and the protection of the EU financial interests (PIF Directive 2017/1371/EU) provides the reader with more findings. The author maintains that the deontological, values-based rationale in criminal policy and law-making at EU level is predominant. Utilitarian reasons, namely ensuring effective judicial cooperation and punishment also via the European Arrest Warrant, were mentioned in order to justify the adoption of these three legal instruments. Nonetheless, this justification remained only on paper: their content does not provide valuable evidence of the need for such cooperation, nor of the added value of criminal proceedings and sanctions compared to the administrative field. Albeit with different degrees from one legal instrument to another, the EU legislator promotes values as the genetics of an identity that demand symbolic intervention at supranational level. Values are also seen as socialising elements which strengthen a common sense of justice. The author labels this state of affairs as being inconsistent with the constitutional design of the EU, especially with the principle of subsidiarity and the requirements laid down by the Lisbon Treaty for the exercise of the EU criminal law competence under Article 83 TFEU.

The key argument of the book is that, unlike the majority lines of thought in the subject of criminal law theory, the legitimacy of EU criminal law rests on both deontological and utilitarian bases. The author argues that, in the abstract, such an integrated approach ensures the highest respect of liberty and human dignity against criminalisation. These two constitutional values and rights are jeopardised insofar as the EU illegitimately resorts to criminalisation for merely symbolic or regulatory reasons. The book by Irene Wieczorek is ultimately justified by the erratic expansion of the criminal law, which urges not only the national but also the EU legislator to make a more responsible and coherent use of criminalisation powers. Against this background, the reader is provided with an original and consistent doctrine that deserves careful consideration and paves the way for further debate.

 

Francesco Rossi is a post-doctoral researcher in Criminal Law at the Faculty of Law, Economics and Finance of the University of Luxembourg and member of MacroCrimes (Centre for European Legal Studies on Macro-Crime).

 

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