The journey of EU criminal law on the ship of fools – what are the implications for supranational governance of EU criminal justice agencies?
| Published date | 01 April 2021 |
| Author | Christopher Harding,Jacob Öberg |
| DOI | 10.1177/1023263X211005967 |
| Date | 01 April 2021 |
| Subject Matter | Articles |
Article
The journey of EU criminal law
on the ship of fools – what
are the implications for
supranational governance of
EU criminal justice agencies?
Christopher Harding* and Jacob O
¨berg**
Abstract
This article addresses supranational governance of EU criminal justice agencies from the per-
spective of the various agencies of policy and rulemaking who have contributed to the impressive
developments in the field of EU criminal law. Taking as a working hypothesis the happenstance and
haphazard character of this field of policy and law, it suggests that there is an absence of design. In
the discussion the article proposes the Platonic analogy of the ‘ship of fools’ (Plato, Republic, Book
VI) as an explanatory tool. The ship’s captain is the guiding spirit of criminal law, but the crew of the
ship, who have the power to take control, have diverse interests and ideas about how the ship
should be taken to sea and navigated. The article addresses thematically and chronologically the
development of EU criminal policy by means of this framework. Subsequently it discusses the
extent to which the ‘ship of fools’ analogy is relevant to the development of EU criminal justice
agencies, and to the emergence of a European Public Prosecutor. Underlying all this discussion is
the uneasy sense that the true pilot of EU criminal law and policy has been displaced, in particular
by ‘instrumental’ pilots of securitisation and effectiveness.
1. Introduction
The article here aims to better unde rstand the landscape of policy and ru le formation that is
packaged conveniently as ‘EU criminal law’, with a particular focus on EU criminal justice
* Aberystwyth University, Great Britain and Northern Ireland, UK
** O
¨rebro Universitet Institutionen fo
¨r juridik psykologi och socialt arbete, O
¨rebro, Sweden
Corresponding author:
Jacob O
¨berg, O
¨rebro Universitet Institutionen fo
¨r juridik psykologi och socialt arbete, Fakultetsgatan 1, 70182, O
¨rebro,
Sweden.
E-mail: jacob.oberg@oru.se
Maastricht Journal of European and
Comparative Law
2021, Vol. 28(2) 192–211
ªThe Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X211005967
maastrichtjournal.sagepub.com
MJ
MJ
agencies. The aim is to initiate an exploration of how these policies and rules come about, and
precisely who might be involved in this process. The importance of this exercise has been
rehearsed by Ian Loader and Richard Sparks, who have argued that the ‘distinct questions for a
European penology would ...include not just the established activities of tracking convergent and
divergent tendencies and their general and particular explanatory dynamics, but also which actors
in what kinds of networks and institutional se ttings are now influencing developments at the
European level?’
1
This question appears to be worth asking, because the answers are not evident or quickly found.
That is because the landscape is complex, comprising a large geographical and political space, with
a number of levels of institutional activity, and containing both intergovernmental and suprana-
tional structures. Moreover, it is a landscape which has chang ed over time,
2
and which may
continue to evolve. At the same time, this landscape is being described in a very oblique fashion
in formal constitutional terms.
3
Whilst the topic is difficult to penetrate, it may, however, be useful to note a few characteristics of
the area of activity under discussion, since this will provide the parameters for the exercise. ‘EU
criminal law’ is a convenient shorthand term rather than a formal descriptor. Thus, in his pioneering
work of 2009, Valsamis Mitsilegas used it as the title for a book,
4
but then described the scope of the
subject therein as ‘EU action in criminal matters’. EU criminal law would then cover all instances
where the EU has normative influence on either substantive criminal law/criminal procedure or on
judicial cooperation between the Member States.
5
Then, we might say for more formal purposes that
the TFEU provides for legal competences under the headings of ‘the Area of Freedom, Security and
Justice’ (AFSJ), ‘judicial co-operation in criminal matters’ and ‘police co-operation’. In substantive
terms, it contains the legislative competences in Articles 82–88 TFEU and those legal bases providing
for criminal law competence outside Title V.
6
EU criminal policy
7
covers all EU legislative actions,
policies/strategic directions (e.g. Commission Communications, Justice and Home Affair (JHA)
Council documents and strategic decisions by the European Council), as well as central legislative
actors (i.e. the European Council, the JHA Council and the Commission) relating to criminal proce-
dure and substantive criminal law on a domestic level, as well as at the EU level.
8
1. I. Loader and R. Sparks, ‘Knowledge Politics and Penal Politics in Europe’, in T. Daens, D. van Zyl Smit and S. Snacken
(eds.), European Penology? (Hart Publishing, 2013), p. 58. Loader and Sparks build on the previous work of Stanley
Cohen, Against Criminology (Transaction Publishers, 1988), p. 67, which originally reinforced the importance of this
exercise.
2. M. Chaves, The Evolution of European Union Criminal Law (1957–2012), (DPhil, London School of Economics, 2012),
chapter 1.
3. As a matter of fact, there is no clear reference in the EU Treaties or legislation to EU criminal law. The closest sum-
marizing labels would appear to be ‘judicial cooperation in criminal matters’, ‘police cooperation’, and ‘freedom,
security and justice’: see title V of the TFEU.
4. V. Mitsilegas, EU Criminal Law (Hart Publishing, 2009).
5. J. O
¨berg, Limits to EU Powers: A Case Study of EU Regulatory Criminal Law (Hart Publishing, 2017), p. 10; A. Klip,
European Criminal Law (Intersentia, 2012), p. 1.
6. See C. Harding and J. Banach-Gutierrez, ‘The Emergent EU Criminal Policy: Identifying the Species’ 37 European Law
Review (2012), p. 761.
7. See A. Weyembergh and I. Wieczorek, ‘Is There an EU Criminal Policy?’, in R. Colson and S. Field (eds.), EU Criminal
Justice and the Challenges of Legal Diversity (Cambridge University Press, 2016).
8. See E. Baker, ‘Governing Through Crime – the Case of the European Union’, 17 European Journal of Criminology
(2010), p. 190; J. Monar, ‘Decision-Making in the Area of Freedom, Security and Justice’, in A. Arnull and D. Wincott
(eds.), Accountability and Legitimacy in the European Union (Oxford University Press, 2002), p. 67.
Harding and O
¨berg 193
To continue reading
Request your trial