Constitution and development of the European Union's penal jurisdiction: Responsibility, self‐reference and attribution

• Published date: 01 November 2021
• Author: Pedro Caeiro
• Date: 01 November 2021
• DOI: http://doi.org/10.1111/eulj.12443

ORIGINAL ARTICLE

Constitution and development of the European

Union's penal jurisdiction: Responsibility, self-

reference and attribution

Pedro Caeiro

*

Abstract

This article looks at how and why the EU has been/can be endowed with powers over criminal mat-

ters, within the framework of the theory of jurisdiction. It examines the extent to which the specific

responsibility of the EU for the protection of certain legal interests justifies the establishment of a

(peripheral) jurisdiction. Member States (MS) can confer such powers upon the EU, but this attribu-

tion must be consistent with their domestic obligations and limitations on state action. A crucial dis-

tinction is established between exclusive and shared responsibility: the former concerns the

protection of ‘institutional legal interests’exclusive to the EU, whereas the latter relates to

‘functional legal interests’, which also fall within the remit of Member States but are moulded or

significantly affected by EU policies. It is argued that this differentiation should translate into the

type of acts adopted, which may require some adaptations to traditional guarantees such as the

legality principle.

‘il faudra bien apprendre à ordonner le multiple

il n'y a pas de modèle préexistant’

Mireille Delmas-Marty

1|INTRODUCTION

Can a non-sovereign entity such as the EU pass legislation that establishes criminal offences and penalties, thereby

restricting fundamental rights and freedoms? On what basis can such legislative power be deemed legitimate?

* Associate professor, integrated researcher, Univ Coimbra, UCILeR, Faculty of Law.

I wish to thank the anonymous reviewers and Karine Caunes for their invaluable comments on the first submitted manuscript. I also thank Miguel França

for his knowledgeable indications on the (general) law of the European Union and Raquel Cardoso for her kind help with the bibliography. Mistakes and

contradictions are my own.

Received: 22 April 2022 Revised: 5 September 2022 Accepted: 7 September 2022

DOI: 10.1111/eulj.12443

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and

reproduction in any medium, provided the original work is properly cited.

© 2022 The Author. European Law Journal published by John Wiley & Sons Ltd.

Eur Law J. 2021;27:441–462. wileyonlinelibrary.com/journal/eulj 441

What is the scope and content of such a power? What role is played by Member States (MS) in the process, and

what kind of interaction develops between them and the EU in this respect?

This article addresses those questions in three steps. Section II sets out a general theoretical framework that

helps to understand why and how a non-state entity can bear jurisdiction in criminal matters. It is argued that the

fundamental premise of penal jurisdiction lies in the responsibility of an entity for the security of a given community,

rather than sovereignty. It is observed that the density and scope of such responsibility can vary, leading to a

qualitative distinction between ‘central’and ‘peripheral’jurisdictions, whereby the latter depend on the recognition

or indeed an instatement by the former. Section III provides a brief account of the rather tumultuous process of

assertion/recognition/attribution of penal jurisdiction of/to the EU up to the current positive legal situation, contra-

sting the stances taken by EU bodies and MS. It also looks at how this process instantiates the abstract framework

drafted in the previous section, pointing out possible original features. Section IV engages with the core notion of

responsibility and examines how it can form a suitable basis for the EU's penal jurisdiction. Given the dialogical struc-

ture of the process, it is recalled that the responsibility of MS vis-à-vis their national communities also plays a role.

The piece proceeds to examine the contents and scope of the responsibility of the EU for the security of the

European polity, building on the need to protect two strains of legal interests: ‘institutional’and ‘functional’legal

interests.

1

It is argued that differences in the holdership of those two types of interests reflect on the exclusive or

shared nature of the responsibility for their protection, which in turn calls for a differentiated approach regarding the

reach of EU intervention and the type of legislative procedure/act adopted.

2|PENAL JURISDICTION OUTSIDE THE STATE: A THEORETICAL

FRAMEWORK

2.1 |Jurisdiction and responsibility

In this piece, ‘penal jurisdiction’equates to prescriptive jurisdiction

2

in criminal matters and can be defined, in its

subjective dimension, as the legitimate power to establish criminal law norms within a plurality of autonomous holders.

The justification of such power should not be confounded with the ‘internal’foundations of the ius puniendi: jurisdic-

tion is not about the legitimacy of the right to punish vis-à-vis the individuals subjected to the holder's authority

(why punish and to what purpose), but rather the legitimation of the holder as such in the context of a plurality of

holders (whois entitled with the right to punish). In thissense, plurality is embedded in the veryconcept of jurisdiction.

The exercise of that power (relying on either a right or a duty) results in the creation of a system of substantive

norms (prohibitions) together with the rules that define their scope, or ambit of applicability, i.e., ‘the circle of individ-

uals to whose acts the substantive norms apply’.

3

In its objective dimension, the expression ‘penal jurisdiction’indicates the entity that bears such power. The

coming into being of a penal jurisdiction takes place through dialogic processes, through either a combination of

assertion/recognition

4

or attribution by entities vested with appropriate jurisgenetic powers (international organisa-

tions and states).

5

1

G. Grasso, Comunità Europee e diritto penale (Giuffrè, 1989), 12 et seq.

2

Building on the distinction between prescriptive, adjudicative and executive jurisdiction: see F. Mann, ‘The Doctrine of Jurisdiction in International Law’,

in Académie de Droit International. Recueil des Cours 111 (I), 1964, 1, 6 et seq.

3

G. Stratenwerth and L. Kuhlen, Strafrecht. Allgemeiner Teil, I, (C.H. Beck, 5th edn, 2004), 53 (‘[…]wem gegenüber die Normen […] gelten, auf wessen Taten

sie angewendet werden sollen’).

4

E.g., the states assert and recognise each other's jurisdiction under the common framework of international law; the Federation of the United States of

America recognises the jurisdiction asserted by Native American tribes in the terms agreed in the Treaties, as interpreted by the Supreme Court, subject to

destitution by Congress in the exercise of its overriding, unilateral ‘plenary power’.

5

E.g., the attribution of penal jurisdiction to the United Nations Interim Administration Mission in Kosovo (UNMIK) (Security Council Resolution

S/RES/1244 (1999) 10.06.1999), which passed the Provisional Criminal Code of Kosovo of 6 July 2003 (UNMIK/REG/2003/25, 06.08.2003); the

attribution of legislative powers on criminal law to the EU.

442 CAEIRO