EU Criminal Policy at a Crossroads between Effectiveness and Traditional Restraints for the Use of Criminal Law
| Author | Merita Huomo-Kettunen |
| DOI | 10.1177/203228441400500304 |
| Date | 01 September 2014 |
| Published date | 01 September 2014 |
| Subject Matter | Article |
New Journal of Eu ropean Crimina l Law, Vol. 5, Issue 3, 2014 301
EU CRIMINAL POLICY AT A CROSSROADS
BETWEEN EFFECTIVENESS AND
TRADITIONAL RESTRAINTS FOR THE USE OF
CRIMINAL LAW
M H-K*
ABSTRACT
e article studies EU criminal policy from a constitutional perspective. Since all EU
secondary law measures mu st be founded on a legal basis – on a speci c provision of the
Union’s constitution – EU criminal policy is also a constitutional matter in this sense.
Initially, the article clari es what EU criminal policy is, put ting it into a broader context
presenting it as a public policy issue in a multi-l evel constitutional framework. Secondly,
the article demonstrates the k ey elements of EU criminal policy. e article an swers the
questions of what the interrelationship between the choice of legal basis and the EU
criminalisation principl es is and whether the EU criminalisation principle s are e ective
in terms of limiting the use of EU-le vel criminal law.
Keywords: choic e of legal basis; E U crimi nal pol icy; e ecti veness; EU crimina lisation
principles; public policy
1. INTRODUCTION
Criminal law is a bra nch of law pregnant with constitutional sign i cance.1 EU criminal
law and policy are heavily in uenced by the constitutional setting of the Union and
the Member States. It is at a crossroads between e ciency-driven politics and the
constitutional restraints enshrined in the constitutions of the Union and the Member
* Doctoral Candidate in Criminal Law, University of Helsinki, Law in a Changing World Doctoral
Programme, merita .huomo-kettunen@helsink i. . I would like to tha nk the referees and t he editors
for their valu able comments.
1 Kent Roach, ‘ e Primacy of Liberty and Prop ortionality, not Human Dignit y, when Subjecting
Crimina l Law to Constitutiona l Control’, 44 Israel Law Review (2011), p.92.
Merita Huomo-Kett unen
302 Intersentia
States. Since all EU secondary law measures, including EU criminal law measures,
must be founded on a legal basis – on a speci c provision of the Union’s constitution2
– EU cr imin al poli cy is a lso a con stitu tional matter i n thi s sense . is a rticle discusses
EU criminal p olicy, concentrating main ly on substantive criminal law.
Initially, this article examines what EU cr iminal policy is, putting it i nto a broader
context. It is presented in the context of t he European public sphere as a public policy
issue in a multi-level constitutiona l framework. e concept of multi-level governance
is used here to illustr ate the dynamics between the EU level and nat ional measures.
Secondly, this article demonstrates the key elements of EU criminal policy. e
article asks what the interrelationship between the choice of legal basis and the EU
criminalisation principl es is and whether the EU criminalisation principles are e ective
in terms of limiting the use of EU-le vel criminal law. e r ules concerning the choice of
legal basis are rst brie y described. e choice of legal basis is above all a const itutional
matter but is also a matter of political debate. A er this, the Union’s criminal law
competence and the e ects of the choice of legal basis are exa mined together with EU
level crimina lisation principles. e se are the principles of subsidiar ity, proportionality
and ultima ratio, respect for fundamental r ights and respect for fundamental aspect s
of national crimina l justice systems, and the principle of legalit y.
e article’s perspective on the topic combines the EU law paradigm with the
criminal law paradigm. Whereas the criminal law paradigm concerning the (EU)
criminalisation principles is quite principled and normative, the EU law perspective
concerning the choice of legal basis i s rather technical.Even though the ar ticle makes
the rather fami liar conclusion that most of the so-ca lled EU crimina lisation principles
are toothless (except for the ultima ratio principle), the aim and contribution of this
article is to show to what extent the choice of legal basis and the EU criminalisation
principles are connected, and from where the ine ciency of the EU criminalisation
principles stems.
2. WHAT IS EU CRIMINAL POLICY?
2.1. THE EUROPEAN PUBLIC SPHER E
is article assumes that the EU has some kind of criminal policy since the EU
produces criminal legislation. Dissenting positions are presented also, arguing that
2 e EU c onstitution can be seen to c onsist of the Treaty of the Europea n Union (TEU), the Treaty
on the Functioni ng of the Europea n Union (TFEU), the Cha rter of Fundamental Rights of t he
European Union (the Cha rter), and the accession treatie s of the Member States. See, for example ,
Case C-294/83 Parti écologiste “Les Verts” v. European Parliament [1986] ECR I-01339, para. 23, in
which the CJEU de scribed the Treaties as t he basic constitutiona l charter based on the pr inciple of
rule of law. For more about constitutionalisat ion in the EU fra mework, see, for example, Allan
Rosas and Lorna A rmati, EU Constitutional Law: An Introduction (Hart Publishing, 2012).
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