CiNii Books - The legitimacy of EU criminal law

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.

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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The legitimacy of EU criminal law

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