Do We Really Need Criminal Sanctions for the Enforcement of EU Law?
| DOI | 10.1177/203228441400500307 |
| Date | 01 September 2014 |
| Author | Jacob Öberg |
| Published date | 01 September 2014 |
| Subject Matter | Article |
370 Intersentia
DO WE REALLY NEED CRIMINAL SANCTIONS
FOR THE ENFORCEMENT OF EU LAW?
J Ö*
ABSTRACT
is article examines how the ‘essentiality’ requirement can limit the exercise of the
EU’s criminal law competence under Article83(2) TFEU. Building on criminological
research, and contextual and princ ipled considerations, it argues for an evide nce-based
approach to the ‘essentiality’ criterion. It sustains that the Union legislator must show
by empirical proof that criminal laws are more ‘e ective’ than non-criminal sanctions
in the implementation of a speci c EU policy. e article proposes that judicial
enforcement is a key mechanism for implementing the ‘essentiality’ criterion. On the
basis of the Court’s rulings in Ka di II and Tetra Laval a strict procedural test for review
of criminal law legislation is suggested. It entails that the EU legislator must show that
the justi cation for exercising the EU’s criminal law competence is substantiated by
relevant evidence. Bec ause criminal penalties entail severe consequ ences for individuals
and potentially breach their fundamental f reedoms such a stringent test is justi ed.
Keywords: Article 83(2) TFEU; e ectiveness of criminal law; enforcement of EU
policies; essential ity of criminal laws; judicial rev iew
1. INTRODUCTION
is article examines the ‘essentialit y’ condition in Article83(2) of the Treaty of the
Functioning of the Eu ropean Union (TFEU).1 In particul ar, it tries to respond to the
question whether thi s criterion can act as a check on the exercise of EU competences
on the basis of the e ectiveness rationale.2 While Article83(2) TFEU has been subject
* Doctoral researcher at the European University In stitute and Visiting Lectu rer at Örebro University.
Special tha nks to Sakari Melander, Anni ka Suominen and Giorgio Monti for their very us eful
comments on previous d ra s.
1 Consolidated Version of the Treaty on t he Functioning of the Eu ropean Union [2010] OJ C 83/47.
2 See Maria F letcher, Bill Gilmore a nd Robin Lööf, EU Crimi nal Law and Justic e (Edward Elgar 2 010) 175.
Do We Really Need Cri minal Sanct ions for the Enforcement of EU Law?
New Journal of Eu ropean Crimina l Law, Vol. 5, Issue 3, 2014 371
to examination by other commentators, the current academic literature has not yet
provided substantive criteria for how to interpret thi s provision.3 e key point of t his
article is that t he ‘essentiality’ criterion provide for one of the most important limits
to the competence in Article83(2) TFEU. In order to articulate the structure of this
article, it is appropriate to restate t he rst part of the wording of A rticle83(2) TFEU:
‘(I)f the approximation of criminal laws and regulations of the Member States proves
essential to ensure the e ective implementation of a Union poli cy in an area which has b een
subject to harmonis ation measures, directives may e stablish minimum rules w ith regard
to the de nition of crimina l o ences and sanc tions in the area concerned…’4
is article comprehensively analyses the requirement that criminal sanctions must
be ‘essential’ for the ‘e ective implementation of Union policies’ and also attempts to
determine what is meant by ‘e ective implementation of Union policies’. e rst
section considers the histor ical context of Article83(2) TFEU. is section part icularly
justi es, in the light of the e volution of EU criminal law, the relevance of examining
the conditions for the exercise of EU legislative powers under this provision. e
second section asks more speci ca lly, in terms of Article83(2) TFEU, what e ectiveness
means for the purpose s of EU regulatory crim inal law. e third sect ion then considers
the meaning of t he ‘essentialit y’ requirement. In this regard, a speci c focus is put on
the issue of the interpretation of t he ‘essentiality ’ condition, the question of evidence
needed for satisfying this condition and the nature and standard of judicial review
under this provision. It is also analysed how the proposed interpretation of the
‘essential ity’ condition ts with the Court ’s existing juri sprudence. Finally, the article
summarises t he ndings of the exam ination.
2. THE DEVELOPMENT OF EU CRIMINAL LAW
COMPETENCES
Before entering into the analy sis of Article83(2) TFEU it is, appropriate to set out the
historical backg round to the evolution of the EU’s criminal law competence and the
new provision of Article83(2) TFEU. If we take a short departure to t he history of EU
criminal l aw, it is clear that while the EU today ha s a far-reaching competence in the
eld of EU criminal law, this was not always the case. Prior to the Environmental
3 See Steve Peers, EU Ju stice and Home A airs Law (OUP 2011) 762–766, 774–777; Paul Craig, e
Velvet Glove to the Iron Fist: Cri minal Sanctions for the Enforcement of Union L aw’ in Marise
Cremona (ed.), Compliance and the E nforcement of EU Law (OUP 2012) 108–113; Christa Tobler,
4 I added emphasis to pinpoint the two conditions which are the subjec t matter for the present
enquiry.
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