Exploring the interface between EU and national criminal law
| Author | Joanna Beata Banach-Gutierrez,Christopher Harding |
| Published date | 01 March 2020 |
| Date | 01 March 2020 |
| DOI | 10.1177/2032284420901597 |
| Subject Matter | Editorial |
Editorial
Exploring the interface
between EU and national
criminal law
Any kind of legal ordering involves of course both the formulation and enactment of rules and also
their subsequent application, and it is well to remember that the latter is significant and deserves as
much attention as the former. With the complex evolution of the multilayered arrangement of EU
law, and then more recently criminal law at the European level, matters of legal transfer, coordina-
tion, implementation, application and enforcement are especially significant and sometimes (per-
haps even frequently) problematical. The emergence of policy and law at the European level can in
itself be complex, and there is then in the nature of this legal order a necessary and not always
transparent or knowable reverse legal transfer of European normativity to a Member State and
local level. There is a large number of Member States and a corresponding diversity of historical
experience and legal culture, and this is the context for what may be termed the reverse reception of
EU policy and rules. Easy implementation and enforcement should not be taken for granted, and
again particularly in the context of what is now commonly referred to as EU criminal law. The
discussion collected together here forms part of an important ongoing process of understanding and
assessing the actuality of law application in this context.
Sufficient time has now passed to attempt now some meaningful assessment of how EU
criminal law fares in practice. Over the past 20 years or so, there has been a critical mass of
lawmaking, much of it in the form of framework decisions and then directives through which
policy and law has been sent back to the State level, and therein lies the meat of finding out how
well the EU criminal law project is working. The principles and theory underlying this process of
law application are deceptively simple – the need for consistent and integrated outcomes and the
mantra of effet utile
1
and effective, proportionate and dissuasive enforcement.
2
But discovering
the actuality of such law application across all the Member States, whether that is a matter of
gaining data or understanding what may appear as an untidy and variable mess of reality is often
not easy for researchers. Even if information is available, its analysis and comparison may well
present both theoretical and methodological challenges of a distinctive kind. Moreover, this is a
matter of reporting on a dynamic process – through such channels as enforcement agency
1. For an analysis of the dynamic of the doctrine of effet utile, see Urska Sadl, ‘The Role of Effet Utile in Preserving the
Continuity and Authority of European Union law’ (2015) 8 European Journal of Legal Studies 18, viewing the doctrine
as a ‘rhetorical instrument used to persuade Member States to accept judicial doctrines and the ensuing powers of the
Court without having to compromise the coherence and authority of law in the process’ (at p. 21).
2. The oft-repeated legislative and judicial mantra originating in the ruling in Case 68/88, Commission v Greece (1989)
ECR 2965.
New Journal of European Criminal Law
2020, Vol. 11(1) 3–6
ªThe Author(s) 2020
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DOI: 10.1177/2032284420901597
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