The Legitimacy of EU Criminal Law

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The Legitimacy of EU Criminal Law

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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 whether a certain behaviour should be a criminal offence. To interpret the EU approach to criminalisation, it relies on both modern and post-modern theoretical frameworks on the legitimacy of criminal law, read jointly with the theories on the functions of EU harmonisation of national law. The book demonstrates 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, ie 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. The book then questions whether this approach is consistent or in contradiction with the values-based constitutional identity the EU has set for itself.

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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