A legitimacy-based approach to EU criminal law: Maybe we are getting there, after all
| DOI | 10.1177/2032284420903386 |
| Author | Kimmo Nuotio |
| Date | 01 March 2020 |
| Published date | 01 March 2020 |
| Subject Matter | Articles |
Article
A legitimacy-based approach
to EU criminal law: Maybe
we are getting there, after all
Kimmo Nuotio
University of Helsinki, Finland
Abstract
European Union (EU) law is known for its strong emphasis on effectivity and more generally for its
instrumental character. This is not foreign even to European criminal law, a feature which creates
some tension between the EU criminal law and criminal law in the national setting. EU Framework
Decisions and Directives often require the Member States to criminalize certain forms of conduct
with sanctions that are ‘Effective, Dissuasive and Proportionate’. In this article, I try to show that it
would be timely to look at EU criminal law from an alternative point of view, as a more mature law.
I call this a legitimacy-based approach. Such a reading would ease some of these tensions. It would
also be helpful in developing a criminal policy for the EU, a policy which would be realistic and
pragmatic. And it would be easier to look at EU criminal law from the point of view of justice. In
order to get there, we need to see where the (current) narrow deterrence argument gets is wrong
or one-sided. Some social theory is needed in order to make the point.
Keywords
Deterrence, general prevention, justice, legitimacy, sense of justice, relative comparability
A thought experiment
The birth of European Union (EU) criminal law has not been an easy one. Since the drafting of the
Maastricht Treaty, the Member States of the EU have seen the necessity of increased collaboration
in that field, but they have been cautious in giving away legislative powers to decide on crime and
punishment. The story is well known and does not need to be retold here.
Nordic scholars in particular – including myself – have criti cized EU criminal law on the
grounds that it represents a far more instrumental approach than that which is characteristic of
the criminal policy of the Nordic countries, and that it would risk leading to increased repression if
Corresponding author:
Kimmo Nuotio, Faculty of Law, University of Helsinki, Yliopistonkatu 3, 00014 Helsinki, Finland.
E-mail: kimmo.nuotio@helsinki.fi
New Journal of European Criminal Law
2020, Vol. 11(1) 20–39
ªThe Author(s) 2020
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DOI: 10.1177/2032284420903386
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1
Raimo Lahti, for instance, has analysed the tension between EU and Nordic
criminal policy.
2
The point I wish to make in this article is rather simple. Maybe we could, even as a kind of
thought experiment, look at EU criminal law not only from the perspective of its shortcomings and
deficits, but from the point of view of its achievements and its potential. European criminal law is a
legal construct, and the way we construct or reconstruct it accordingly matters for what it is.
Instead of a merely critical analysis, this articlepresents an alternative view;an alternativevision.
Its pointis that we may have beenusing too simplistica model of how law works andbecomes effective
in a society.We might have to add a bit of idealismto our realism. Maybewe have not yet realized that
as criminalpolicy matures, it mustalso change substantially.We may need a bit of socialtheory to see
this point.Broadening our perspectiveon European criminallaw enables us to see more of its nuances.
The perspective that I wish to introduce is that of legitimacy, which I take to include some
symbolic aspects as well.
3
If it is our law, and not just something imposed on us, then such a
perspective makes sense. Legitimacy draws on a variety of sources: on democracy, human rights,
rule of law, decent and rational criminal policy and so on. This links to broader and deeper issues
concerning how we think about the role of the Area of Freedom, Security and Justice (‘AFSJ’) as
one of the constitutive, defining elements of the EU as a polity.
4
In this article, we will focus
mainly on just one aspect of the AFSJ, namely the narrow emphasis on effectiveness and deter-
rence – a core feature of European criminal law.
Hard deterrence
The belief in (hard) deterrence has been a meeting ground for different efforts and points of view at
the EU level. The use of criminal law has been a tempting option for the EU Commission, since it
represents something more than just administrative sanctioning. And for the EU Commission, the
main worry has constantly been the lack of effectiveness of EU law. The effet utile principle has
been characterized as a constitutional master principle of EU law. This, in turn, has led to an
instrumental view of criminalization: criminal law as a means to other ends.
5
I would like to invite
us to think about criminal law as an institution, in non-instrumental terms. Paradoxically, law
might work better when grasped this way.
The sanctioning force of criminal law is nothing new, since in some sense the coercive force
may even be regarded as a defining factor of legality. How we understand and read law is a matter
of choice. To my mind, we have too easily been denying a ‘legal’ reading of European criminal
law. I want to make a few remarks on this matter.
1. T Elholm, ‘Does EU Criminal Cooperation Necessarily Mean Increased Repression?’ (2009) 17 European Journal of
Crime, Criminal Law & Criminal Justice 191, 219.
2. Raimo Lahti, ‘Towards a Principled European Criminal Policy: Some Lessons from the Nordic Countries’ in J Banach-
Gutierrez and C Harding (eds), EU Criminal Law and Policy: Values, Principles and Methods (Routledge, London
2017) 56–69. See also K Nuotio, ‘The Rationale of the Nordic Penal Policy Compared with the European Approach’ in
K Nuotio (ed), Festschrift in Honour of Raimo Lahti (Publications of the Faculty of Law of the University of Helsinki,
Forum Iuris 2007) 157.
3. Whether to criminalize business cartels or not is a debate in which the symbolical effects of criminal law play a role as
well. See the discussion in Patrik S Gu
¨nsberg, ‘Exploring the Case for Criminalisation of Business Cartels in Europe’ in
Banach-Gutierrez and Harding (eds) (n 2) 212, 224.
4. See, eg, Massimo Fichera, The Foundations of the EU as a Polity (Edward Elgar, Cheltenham 2018).
5. K Tuori, ‘Ultima Ratio as a Constitutional Principle’ (2013) 3 O˜nati Socio-Legal Series 6, 18.
Nuotio 21
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