European Criminal Law as an Exercise in EU ‘Experimental’ Constitutional Law
| Published date | 01 September 2013 |
| Date | 01 September 2013 |
| DOI | 10.1177/1023263X1302000307 |
| Subject Matter | Article |
442 20 MJ 3 (2013)
EUROPEAN CRIMINAL LAW AS AN
EXERCISE IN EU ‘EXPERIMENTAL’
CONSTITUTIONAL LAW
E H-K*
ABSTRAC T
is contribution expl ores the evolution of European criminal law through the pri sm of EU
constitutional law and its ex perimental elements. e pape r charts the history of European
criminal law by reecting on the question of to what degree criminal law as an EU policy
stands out from the other corners of EU law policies. e paper ex amines to what extent
use of EU law sources in the domain of criminal law has been used in an innovative way
and how, as well as to what extent, it diers from mainstream EU law. Furthermore, the
paper discusse s the issue of enforcement and how the enterprise of EU cr iminal law could
possibly be modernized from the perspective of fundamental r ights protection. e paper
concludes by looking at the incoming ti de of legislative proposals in the area of EU criminal
law and how it all adds up to an inc reased understanding of the AFSJ.
Keywords: EU c riminal law; eectiveness; enforcement; ex perimental; constitutional
§1. INTRODUCTION
I have been asked to reect on the developments of crimi nal law policies over the
last 20 years. erefore, it is likely that the present article sta nds out from the other
contributions in this ed ited collection in that it could be said t hat EU criminal law stricto
sensu existed for only about 10 years. In t he last decade, the concept of EU criminal law
has been transformed f rom being largely of an intergovernmental nature to becoming a
* Associate Profes sor of EU Law, Centre for European Lega l Studies and Facult y of Law, VU University
of Amsterdam . is paper was wr itten during my ti me as a Visiting Fellow (April-July 2013) in the
Law Depart ment at the European Universit y Institute, Italy, with t he kind support of the Net herlands
Scientic Rese arch Council (VENI g rant). anks go to the editors of t his special issue for th eir very
insightfu l comments on this piece , with the usual d isclaimer.
European Cri minal Law as an E xercise in EU ‘Experi mental’ Constit utional Law
20 MJ 3 (2013) 443
streamlined EU policy among others, albeit concerning sensitive nation state questions
at its core, such as the protection of human rig hts and national sovereignty. Hence, in the
last 20 years – the ti mespan and focus of th is Anniversary issue – EU criminal law has
gone from being a largely anonymous area of law to t hat of becoming a very dynamic test
eld for the credentials of the EU project and t he establishment of the Area of Freedom,
Security and Justice (AFSJ). While sanctions to protect EU interests always played a
crucial role in the bui lding and maintaining of the i nternal market, u ntil fairly recently
it was still at the discretion of the Member States to choose what ki nd of sanctions to
impose, as long as the sa nctions in question were eective, proportionate and d issuasive.1
e EU has now created its own crimina l law, and this contribution wil l explore this
process and what it tells us about t he EU integration project in a wider context.
In what follows, I will foc us on what I consider to be the most important developments
in European cri minal law, which turned it into one of the most forceful EU pol icy areas at
present. I will set out to ana lyse what have been the main sources of change i n this area as
well as the role played by the general principles of EU law here and t he cross-pollination
of those principles and the princ iples set out in the EU Charter of Fundamenta l Rights. In
addition the paper wil l look at to what extent the story of EU crimi nal law has contributed
to regulatory innovat ion for EU governance. In doing so the paper will ask to wh at extent
this debate on governance has been reec ted in the debate on the enforcement of EU law
with regard to EU crim inal law and procedure.
Specically, the contribution is s tructured as fol lows. Section 1 oers a brief introduct ion
of what it means to discuss EU criminal law in today’s Europe. Section2 oers a brief
exposé of how EU crimina l law came about, rstly by tracing the main Lisbon Treaty
changes and thereaer foc using on the innovative use of EU law principles and how they
have formed the concept of EU crimina l law. Section 3 addresses the i ssue of whether it
is justiable to speak about ‘EU regulatory innovation’ with rega rd to criminal law and
if the evolution of crimina l law could be linked to EU exper imentalist governance by
focusing on the exibil ity provisions in particular. ereaer, section 4 places the role
of criminal law in the context of the classic enforcement discussion in EU law and the
debate on its modernization. Fina lly, section 5 briey scans recent legislative practice in
EU criminal law as an illuminating example of the interaction of mai nstream EU law
policies and those pert aining to the AFSJ, and why it represents an import ant test case of
EU law and fundamental r ights protection when brought together.
Before proceeding to look at these issues i n further detail it seems t ting to begin by
briey setting out what it means to s peak about EU criminal law and how we got here in
the rst place.
1 Case C-68/88 Commission v. Greece [1989] ECR 1–02965.
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