The emerging role of the EU as a primary normative actor in the EU Area of Criminal Justice

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.