The Legitimacy of EU Criminal Law

Criminal Law

The Legitimacy of EU Criminal Law

By Irene Wieczorek
Hart Publishing July 2020

Specifications

ISBN-13
9781509919741
Publisher
Hart Publishing
Publication
July 2020
Format
Hardback
Jurisdiction
U.K. ? Countri(es) for reference only

Also available as

Paperback

Details

This book traces the history of the EU competence, EU policy discourse and EU legislation in the field of criminalisation from Maastricht until the present day. It asks “Why EU Criminal Law?” looking at what rationales the Treaty, policy document and legislation put forth when deciding a certain behaviour should be a criminal offence. It reads the EU approach to criminalisation relying on a modern and post-modern criminal legal theory framework, read jointly with the theories on the function of EU Harmonisation of national law. On these basis, it demonstrate that while EU constitutional law leans towards an effectiveness-based, enforcement-driven understanding of criminal law, the EU has in fact in more than one instance adopted symbolic EU criminal law, that is criminal law aimed at highlighting what values are important to the EU, but which is not fit to actually deter individuals from harming such values. It questions whether this approach is consistent or in contradiction with the values-based constitutional identity the EU has set for itself.

Table of Contents

Introduction
I. The Emerging Debate on the Legitimacy of EU Criminal Law
II. How to Theorise on the Legitimacy of EU Criminal Law
III. The Practical Importance of (EU Criminal Law) Theory
IV. The Broader Reach of the Discussion on the Legitimacy of EU Criminal Law
1. Why Criminal Law? The Question of, and Models for, the Legitimacy of Criminal Law
I. Why is Criminal Law Special? A Consequence-Based Approach
II. The Need to Legitimate Criminalisation Choices
III. A (Liberal) Deontological Approach to the Legitimacy of Criminal Law
IV. A (Liberal) Utilitarian Approach to the Legitimacy of Criminal Law
V. A Joint Deontological-Utilitarian Approach to the Legitimacy of Criminal Law?
VI. The Doctrinal Character of the Debate on the Legitimacy of Criminal Law
VII. Conclusions
2. Why EU Criminal Law? The Question of, and the Models for, the Legitimacy of Supranational Criminal Law
I. Is the Debate on the Legitimacy of Criminal Law Relevant to the EU Legal Order?
II. What Do EU Constitutional Values and Principles Tell Us about the Legitimacy of EU Criminal Law?
III. Conclusions
3. Rationales for the Harmonisation and Legitimacy of EU Criminal Law
I. A Definition of Harmonisation as a Legal Process
II. Does Harmonisation Have an Inherent, Values-Based Dimension?
III. Harmonisation of National Criminal Law within the EU Legal Order
IV. The 'Values-Based' Criminalisation Rationale for Harmonisation: Deontological EU Criminal Law
V. The 'Justice', 'Free Movement' and 'Cooperation' Rationales for Harmonisation: Utilitarian EU Criminal Law
VI. The Socialising Rationale for Harmonisation: Utilitarian EU Criminal Law
VII. The 'Regulatory' Rationale for Harmonisation: Utilitarian EU Criminal Law
VIII. Conclusions
4. EU Competences on Securitised Criminalisation: From a Utilitarian to an Integrated Approach to EU Criminal Law
I. EU Criminalisation Competences: Securitised V Functional Criminalisation
II. A Utilitarian Legitimacy for EU Criminal Law under the Maastricht and Amsterdam Third Pillar
III. Integrated Legitimacy for EU Criminal Law under the Treaty of Lisbon
IV. Conclusions
5. EU Competences on Functional Criminalisation: The Route to Utilitarian EU Criminal Law
I. The Scope of EU Functional Criminalisation
II. The Early Case Law: Sanctioning Obligations and an Integrated Approach to Criminal Law
III. The Case Law in the 2000S: Criminalisation Obligations and an Integrated Approach to EU Criminal Law
IV. The Treaty of Lisbon: The Final (Utilitarian) Word
V. Conclusions
6. From Tampere to Stockholm: The Path towards Integrated Legitimacy
I. The Utilitarian Approach to Criminal Law in Pre-Lisbon Justice and Home Affairs Programmes
II. The Integrated Approach in the 2009 Stockholm Justice and Home Affairs Programme
III. The Silence in the 2014 Justice and Home Affairs Strategic Guidelines
IV. The EU Criminalisation Policy Documents: The Core of the Discussion
V. The Shift from a Utilitarian to an Integrated Approach in Policy Documents
VI. Conclusions
7. Legitimating EU Criminal Law in Practice: The Case of Racism and Xenophobia, Market Abuse and PIF Crimes
I. The Patchwork Structure of EU Criminal Law and the Choice of Case Studies
II. The 2008 Framework Decision on Racism and Xenophobia: Symbolic EU Criminal Law under Amsterdam
III. The 2014 Market Abuse Directive: Symbolic EU Criminal Law under Lisbon?
IV. The 2017 PIF Directive: An Integrated Legitimacy for EU Criminal Law?
V. Conclusions
8. Conclusions
I. The Long-Standing Doctrinal Debate on the Legitimacy of Criminal Law
II. The Relevance and Legal Dimensions of the Debate on the Legitimacy of EU Criminal Law
III. The EU Constitutional Values and Principles and the Legitimacy of EU Criminal Law
IV. The Specifics of the EU Criminalisation Process
V. The Main Argument of the Book: Symbolic EU Criminal Law in a Bureaucratic Criminal
Law Institutional Framework
VI. The Dangers of an Expansion of Non-legitimate EU Criminal Law
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