{"title":"The emerging role of the EU as a primary normative actor in the EU Area of Criminal Justice","authors":"Irene Wieczorek","doi":"10.1111/eulj.12450","DOIUrl":"10.1111/eulj.12450","url":null,"abstract":"<p>This article explores the role and justifications for EU action in the EU Area of Criminal Justice, also relying on a comparison with the justifications for EU action in the internal market. It distinguishes between a role for the EU as a subsidiary policy actor and as a primary policy actor. By substantiating both models, the article illustrates how the model of the EU as a subsidiary policy actor has been challenged by legislative and judicial developments in the internal market and how these trends were particularly accentuated in the EU Area of Criminal Justice. The EU increasingly regulates areas of non-cross-border crime, as can be appreciated by the shape and the implementation of the competence to harmonise definitions of crimes. And the Court of Justice has unequivocally extended the application of EU criminal law, both substantive and procedural, to internal cases. The article argues that such developments, which build on pre-existing trends in the internal market field, are inevitable in the EU Area of Criminal Justice due to the inherent fundamental rights' sensitive nature of criminal law. A subsidiary, piecemeal approach in criminal justice might safeguard national regulatory autonomy but is hardly affordable as it would challenge general principles of criminal law. Relying only on “legal cross-borderness” as a criterion to justify EU definition of crimes would neglect the harm principle and the legal interest principle. Legal creativity that would stem from limiting EU intervention and safeguarding regulatory competition can be fostered by enlarging EU regulatory tools in this area codifying also decriminalisation competences. Moreover, limiting the application of EU criminal law to only cross-border cases is at odds with the principle of legality in criminal matters and of equal treatment.</p>","PeriodicalId":47166,"journal":{"name":"European Law Journal","volume":"27 4-6","pages":"378-407"},"PeriodicalIF":1.9,"publicationDate":"2023-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/eulj.12450","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47081629","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Normative justifications of EU criminal law: European public goods and transnational interests","authors":"Jacob Öberg","doi":"10.1111/eulj.12451","DOIUrl":"10.1111/eulj.12451","url":null,"abstract":"<p>EU policy-making in criminal law is a matter of significant public concern for EU citizens and the Member States. The exercise of EU public powers in the fields of criminal law and law enforcement have tangible and adverse consequences for the liberties and well-being of individuals. Furthermore, EU cooperation in the area of criminal law touches upon core functions of statehood including ‘core state powers’ such as the safeguarding of internal security and law enforcement. This raises several questions regarding the rationale underpinning EU criminal policy and its legitimacy within the context of a multi-level polity. This article sketches out a normative argument for legitimate justifications for some particular areas of EU criminal law on the basis of the transnational criterion enshrined in the subsidiarity principle. The article claims that there is a compelling justification for EU action in criminal law to protect European public goods and other key transnational interests.</p>","PeriodicalId":47166,"journal":{"name":"European Law Journal","volume":"27 4-6","pages":"408-425"},"PeriodicalIF":1.9,"publicationDate":"2023-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/eulj.12451","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45817391","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"From facts and political objectives to legal bases and legal provisions: Incremental European integration in the criminal law field","authors":"Nicholas Franssen, Anne Weyembergh","doi":"10.1111/eulj.12449","DOIUrl":"10.1111/eulj.12449","url":null,"abstract":"<p>This contribution intends to show that normative foundations, in the sense of foundations prescribing norms or expressing prescriptions, have been rather limited in determining or defining the legal bases, legal provisions and their evolution in EU criminal law. EU primary and secondary law in penal matters has indeed been adopted mainly in reaction to the need to adjust to reality, to face challenges, react to facts, incidents and threats and to implement overwhelmingly political objectives, which themselves follow most of the time from the said factual or operational needs resulting from practice. This thus calls for an assessment of the advantages and risks of the relatively decisive role of external factors on the development of criminal justice in the EU.</p>","PeriodicalId":47166,"journal":{"name":"European Law Journal","volume":"27 4-6","pages":"368-377"},"PeriodicalIF":1.9,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48771690","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Principles of EU criminalisation and their varied normative strength: Harm and effectiveness","authors":"Nina Peršak","doi":"10.1111/eulj.12445","DOIUrl":"10.1111/eulj.12445","url":null,"abstract":"<p>The increasing legislative activity of the Union in the field of criminal law highlights the need for a normative justification of EU action in this area. The article first examines and compares the existing EU legislative grounds for criminalisation, coupled with EU criminal policy orientations, with the well-established criminalisation grounds recognised in criminalisation theory in order to distil what the underlying substantive criminalisation principles behind EU criminal law may be. This article then scrutinises ‘effectiveness’ as the potential normative principle of EU criminalisation. It is submitted that, within EU criminal law and policy, effectiveness has become a sort of ‘hybrid criminalisation principle’, joining pragmatic with seemingly normative criminalisation-legitimising considerations. However, the article argues that effectiveness should remain primarily conceptualised as a pragmatic criminalisation consideration, not as a normative substantive criminalisation principle that acts as the first and most important criminalisation criterion determining the content of what may be criminalised.</p>","PeriodicalId":47166,"journal":{"name":"European Law Journal","volume":"27 4-6","pages":"463-476"},"PeriodicalIF":1.9,"publicationDate":"2022-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41941672","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Reflections on the place of criminal law in the European construction","authors":"Jörg Monar","doi":"10.1111/eulj.12446","DOIUrl":"https://doi.org/10.1111/eulj.12446","url":null,"abstract":"<p>Although the place of EU criminal law in the European construction has become incontestable today, it has historically been a far from obvious one. In its origins and development, two different rationales can be distinguished: a functional one aimed at using criminal law instruments to address specific cross-border crime challenges generated or enhanced by the progress of EU integration in other fields, and a constitutional one implying the use of criminal law also to further enhance the respect and promotion of EU common values. While the first rationale has been dominant from the outset, the second has emerged only gradually. For the sake of effectiveness, legitimacy and mutual trust, both rationales should equally drive the further development of EU criminal law. Yet prospects for a stronger affirmation of the constitutional rationale are weakened by current EU rule of law and democratic leadership challenges.</p>","PeriodicalId":47166,"journal":{"name":"European Law Journal","volume":"27 4-6","pages":"356-367"},"PeriodicalIF":1.9,"publicationDate":"2022-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"109166759","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Old wine in a new bottle: Shaping the foundations of EU criminal law through the concept of legal interests (Rechtsgüter)","authors":"Jannemieke W. Ouwerkerk","doi":"10.1111/eulj.12447","DOIUrl":"10.1111/eulj.12447","url":null,"abstract":"<p>Ever since the establishment of EU competence to legislate in criminal matters, legal scholarship has been devoting a fair amount of attention to the scope of these powers as well as to their proper exercise. The many scholarly contributions this has led to make a commendable and laudable body of knowledge with respect to the matter at hand. Yet, as will be argued, its capacities to shape the normative foundations of EU criminal law remain limited, with the main reason being that normative limits of EU-level criminalisation have so far predominantly been articulated in terms of <i>principles</i>. For the reasons set out below, this article proposes to supplement the ongoing debate with another conceptual lens, i.e., the lens of <i>legal interests</i> (<i>Rechtsgüter</i>). The purpose of this article is to substantiate the point of view that the concept of legal interests offers essential opportunities to further shape the normative foundations of EU criminal law.</p>","PeriodicalId":47166,"journal":{"name":"European Law Journal","volume":"27 4-6","pages":"426-440"},"PeriodicalIF":1.9,"publicationDate":"2022-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/eulj.12447","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43760771","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The European Union and the re-establishment of democratic authority","authors":"Damian Chalmers","doi":"10.1111/eulj.12448","DOIUrl":"10.1111/eulj.12448","url":null,"abstract":"<p>The European Union is blighted by a style of governance, EU police, which holds that the Union better balances different interests and values than other arenas but which is, in practice, distorted by anti-redistribution and status quo biases. To combat it, this article proposes a principle of European democratic authority that would found EU legal authority and condition domestic legal authority. This principle holds that, to warrant authority, measures should satisfy the values, goods and processes associated with liberal social democracies and the particular democratic commitments Union membership requires: democratic imagination, political belonging and mutual betterment. This principle would be institutionalised by two further principles. Justified disobedience would set out the conditions when EU laws without European democratic authority could be disobeyed. Democratic regard would require all domestic actors to be guided by the European democratic authority principle and to disregard domestic obligations that had failed to address it.</p>","PeriodicalId":47166,"journal":{"name":"European Law Journal","volume":"30 3","pages":"329-348"},"PeriodicalIF":1.4,"publicationDate":"2022-11-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/eulj.12448","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46956028","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The EU external border as a site of preventive (in)justice","authors":"Valsamis Mitsilegas","doi":"10.1111/eulj.12444","DOIUrl":"10.1111/eulj.12444","url":null,"abstract":"<p>The aim of the article is to fill a gap in the literature on the externalisation of immigration control by focusing not on practices of extraterritorial immigration control but on the externalisation of immigration control <i>at</i> the EU external border. The article will examine four parallel and inter-related trends of preventive injustice on the border: the denial of law and pushbacks, and their handling by judicial authorities and EU institutions and agencies; the emerging framework of the instrumentalisation of migration; the normalisation of border procedures based on the fiction of ‘non-entry’; and detention of third-country nationals at the border, to back up non-entry policies. The article will highlight the rule of law deficit such externalisation entails.</p>","PeriodicalId":47166,"journal":{"name":"European Law Journal","volume":"28 4-6","pages":"263-280"},"PeriodicalIF":1.9,"publicationDate":"2022-10-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/eulj.12444","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46165022","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"A theory of justice? Securing the normative foundations of EU criminal law through an integrated approach to independence","authors":"Leandro Mancano","doi":"10.1111/eulj.12442","DOIUrl":"10.1111/eulj.12442","url":null,"abstract":"<p>This paper raises the question as to whether a theory of justice exists in EU law. The focus is on justice as a system. The assumption is that the independence of institutional actors involved in the administration of criminal justice (mainly judges and prosecutors) vis-à-vis each other, and other State powers, is key to that system achieving justice as a value. Against the benchmark of judicial and prosecutorial independence developed in European law, the paper assesses the role for independence in investigative, prosecutorial and adjudicating functions as it emerges from the current state of EU criminal law. The conclusions reveal that the EU's idea of justice remains underdeveloped, and that there is a need for systemic coherence to better protect the rule of law and enhance the legitimacy of EU criminal law.</p>","PeriodicalId":47166,"journal":{"name":"European Law Journal","volume":"27 4-6","pages":"477-501"},"PeriodicalIF":1.9,"publicationDate":"2022-10-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/eulj.12442","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42241878","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Constitution and development of the European Union's penal jurisdiction: Responsibility, self-reference and attribution","authors":"Pedro Caeiro","doi":"10.1111/eulj.12443","DOIUrl":"10.1111/eulj.12443","url":null,"abstract":"<p>This article looks at how and why the EU has been/can be endowed with powers over criminal matters, within the framework of the theory of jurisdiction. It examines the extent to which the specific responsibility of the EU for the protection of certain legal interests justifies the establishment of a (peripheral) jurisdiction. Member States (MS) can confer such powers upon the EU, but this attribution must be consistent with their domestic obligations and limitations on state action. A crucial distinction is established between exclusive and shared responsibility: the former concerns the protection of ‘institutional legal interests’ exclusive to the EU, whereas the latter relates to ‘functional legal interests’, which also fall within the remit of Member States but are moulded or significantly affected by EU policies. It is argued that this differentiation should translate into the type of acts adopted, which may require some adaptations to traditional guarantees such as the legality principle.</p>","PeriodicalId":47166,"journal":{"name":"European Law Journal","volume":"27 4-6","pages":"441-462"},"PeriodicalIF":1.9,"publicationDate":"2022-10-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/eulj.12443","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"63242374","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}