European integration in context: Questioning the normative foundations of European criminal law; In this issue

• Published date: 01 November 2021
• Author: Jacob Öberg,Valsamis Mitsilegas,Karine Caunes
• Date: 01 November 2021
• DOI: http://doi.org/10.1111/eulj.12453

EDITORIAL

European integration in context: Questioning the

normative foundations of European criminal law;

In this issue

Jacob Öberg | Valsamis Mitsilegas | Karine Caunes

*

* Respectively Professor of European Union Law at the Southern University of Denmark; Professor of European and Global Law and Dean of the School of

Law and Social Justice at the University of Liverpool; Editor-in-Chief ofthe European Law Journal.

1

E. Baker, ‘Governing through Crime: The Case of the European Union’, (2001) 17 European Journal of Criminology, 189, 190–192.

2

J. Öberg, ‘Guest reviewArticle: EU Agencies in Transnational Criminal Enforcement: From a Coordinated Approach toan Integrated EU Criminal Justice’,

(2021) 28 Maastricht Journal of European and Comparative Law, 155.

1|EUROPEAN INTEGRATION IN CONTEXT: QUESTIONING THE

NORMATIVE FOUNDATIONS OF EUROPEAN CRIMINAL LAW

With this special issue and as part of the ELJ's endeavour to foster collaborative research projects on European inte-

gration, two of its board members, Jacob Öberg and Valsamis Mitsilegas, threw down a challenge to fellow experts

in European criminal law: to reflect on the normative foundations of European criminal law. This challenge first took

shape with an online symposium organised by Jacob with the support of Örebro University and gathering together

the participants in the ELJ special issue. It continued with an exchange on the topic between Valsamis and Jacob

hosted by the EU Law Discussion Group at the University of Oxford. It will conclude, following the publication of

the special issue, with a conference organised by Valsamis at the School of Law and Social Justice at the University

of Liverpool. We hope, nevertheless, that such a challenge will emulate further research and publications on the

meaning of European integration through law in other specific fields of EU law as well as transversally.

The first question that could indeed come to mind is this: Why address the issue of “normative foundations”

with regard specifically to European criminal law? Answering this question requires addressing the first possible

meaning of the expression “normative foundations”in a legal context. Normative foundations first and foremost

refer to the legal rules that have shaped European criminal law. In this regard, criminal law is no longer on the periph-

ery of European integration. Treaty amendments in Maastricht and Lisbon, prolific legislative activity and a strong

political commitment by the European Council in Tampere, the Hague and Stockholm have helped push criminal jus-

tice to the centre stage of EU policy-making.

The conventionalaccount suggests that the creation of the ThirdPillar in the Maastricht Treaty (1992) was a con-

sequentialeffect of the construction of an internal marketand the gradual opening of national borderswhich facilitated

movement of criminals across borders andthe pursuit of transnational organised crime.

11

Since Lisbon (2007),there is

an explicit competencein Article 82 TFEU and Article 83 TFEU to harmonise national criminal procedureand substan-

tive criminal law, withfurther powers to engage in operational lawenforcement activities via the criminaljustice agen-

cies Europol, Eurojust and the European Public Prosecutor's Office (EPPO).

22

The Lisbon Treaty thereto provides for

important institutional reforms. The framework for criminal law, formerly embedded in a formal intergovernmental

structure, has now been“communitarised”. The introductionof qualified majority voting in the Council, a co-decision-

making power for the Parliament and full jurisdiction for the Court of Justice in relation to criminal law, currently

DOI: 10.1111/eulj.12453

350 © 2023 John Wiley & Sons, Ltd. Eur Law J. 2021;27:350–355.wileyonlinelibrary.com/journal/eulj