The Definition of Criminal Sanctions in the EU

Abstract

This Article reviews how we should define criminal sanctions in EU law. The debate on the proper meaning of ‘criminal sanctions’ has in the first place received strong impetus in EU law, due to the newly gained competences of the Union in criminal law after the ratification of the Lisbon Treaty. The second reason for the fuelling of a debate on the meaning of criminal sanctions is related to the EU’s envisaged accession to the European Convention of Human Rights (ECHR). It is obvious that the EU would need to adopt such procedural safeguards to conform to Article 6 of the Convention when they impose a sanction that can be properly defined as a criminal charge within the meaning of said provision. The article first analyse and clarify the distinction between the concept of criminal sanctions for the purposes of procedural guarantees and the concept of criminal sanctions for the purposes of EU competence in Article 83(2) TFEU. In the second place, the article develops a proper concept of criminal sanctions that can be applied both to determine the Union’s competence under Article 83(2) TFEU and also a definition that can be employed more generally to determine, for example, whether Member States indeed have complied with their obligations under EU law directives.