Effectiveness and Functionality of Substantive EU Criminal Law
| Published date | 01 September 2014 |
| Date | 01 September 2014 |
| Author | Annika Suominen |
| DOI | 10.1177/203228441400500308 |
| Subject Matter | Article |
388 Intersentia
EFFECTIVENESS AND FUNCTIONALITY OF
SUBSTANTIVE EU CRIMINAL LAW
A S*
ABSTRACT
is article analyses the e ectiveness and function ality of substantive EU criminal law
legislation. With the Lisbon Treaty criminal law has been includ ed as a general branch
of EU law. E ective enforcement of EU law is a general principle. As a starting point it
is also easy to agree on the fact that EU cr iminal law should be e ective. But what does
this really mean? Can criminal law be use d just as any other measure, or does criminal
law still have a speci c nature, where some speci c principles apply and restrict the use
of criminal law instruments? ese are the core questions of this article. Firstly, both
e ectiveness and func tionality in relation to substantive EU criminal law har monisation
are de ned. Secondly, the question on how to measure e ectiveness in substantive EU
criminal law is discussed . irdly, the limits for using e ectiveness as an argument for
new criminal law legislation are analysed. Some concluding remarks are done in the
nal chapter.
Keywords: EU c ri m in al la w; e ect iveness; functionalit y; harmonisation of substantive
crimina l law; limits of e ectiveness
1. INTRODUCTION
With the Lisbon Treaty and the abolition of the third pillar, criminal law has been
included as a branch of general EU l aw. Most crimina l lawyers would nevertheless state
that regard less of this shi , criminal law is st ill not a branch among all others, but has
some restrictions due to its charac ter and close relation to state sovereignty.1 At the same
time, e ective enforcement of EU law is a general EU pri nciple. It is easy to agree on the
* Postdoctoral re search fellow, Faculty of Law, Univers ity of Bergen. is article is w ritten under the
functiona lity of the crim inal justice syst em project at the facult y of law in Bergen.
1 See Asp, e subst antive criminal law comp etence of the EU (Skr i er utgivna av Ju ridiska faku lteten
vid Stockhol ms Universitet 2012) pp. 73–78.
E ectiveness and Func tionality of Substa ntive EU Crimina l Law
New Journal of Eu ropean Crimina l Law, Vol. 5, Issue 3, 2014 389
fact that EU criminal law also should be e ective. What does this mean? In brief it
means that the ght against crime and i llegal activities is e ective, t hat it does not allow
the creation of loop-holes in di erent Member States’ criminal law systems and that it
prevents criminals f rom escaping or bene ting from a lack of common criminal laws.
Also, this mea ns that the sanctions impose d are e ect ive, proportionate and dissuasive.
E ective EU crimi nal law especial ly combats cross-border cr ime. For this e ectiveness,
the functioning of the criminal law systems of the Member States is essential. is
fun ction alit y mea ns, in brief , that the cr imin al ju stice syste m as su ch fu nctio ns wel l and
that the parts of the system together form a cohesive unit. E ectiveness is considered
pa r t o f t hi s fu nc t io na l it y. A d e ni t io n of b ot h e ectiveness and functionality is necessary
for understanding the relev ance of these within EU crim inal law.
In the Stockholm prog ramme, it was stated that ‘[t]here has to be an evaluation of
the e ectiveness of the legal instruments adopted at Union level. Evaluation is also
necessary to determine any obstacles to the proper functioning of the European
judicial area.’2 is shows that e ectiveness and functionality are intertwined and
both are necessar y for evaluating EU crimina l law.
is ar ticle focuses on e ective ness in s ubstant ive EU cri mina l law, and es pecial ly
in relation to the possible limits to such e ectiveness. E ectiveness is o en cited by
the EU legislator as a motivator for initiat ing new criminal legislation.3 How far ca n
this be used as a motivator for harmonising EU substantive criminal law? It is o en
unclear how this e ectiveness is measured. Although e ectiveness is easier to talk
about in relation to cooperation in crim inal matters, the focus in this a rticle is solely
on harmonisation of substantive EU criminal law. is article examines the
criminalisation aspect of legislative EU powers. e discussion on sanctions more
generally wil l therefore not be discussed in detail.
e article is structured as follows. Chapter 2 will give us a view of the di erent
categories of EU criminal law, relevant for e ectiveness. E ectiveness will be de ned
in chapter 3 and funct ionality in chapter 4. Chapter 5 wi ll deal with how e ectiveness
can be measured tod ay and chapter 6 deals with the limit s of e ectiveness. ese can
be considered the main chapters of this article. Concluding remarks are given in t he
nal chapter.
2. DIFFERENT CATEGORIES OF EU CRIMINAL LAW
EU criminal law consists of many di erent parts, which can have di erent roles in
relation to e ectiveness and functionality. To narrow the scope of this article, some
comments on e ect iveness and functionality a re necessary before embarking f urther.
2 e Stockholm Programme – An Open a nd Secure Europe Serving a nd Protecting Citizens, OJ
2010 C115/01, point 1.2.5.
3 E ectiveness, or ine ectiveness and its relat ion to the functions of crimi nal law were already
discussed i n Steinert, ‘On the f unctions of crim inal law’, in Contemporary Crises 2 (1978) pp. 168 .
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