From facts and political objectives to legal bases and legal provisions: Incremental European integration in the criminal law field

• Published date: 01 November 2021
• Author: Nicholas Franssen,Anne Weyembergh
• Date: 01 November 2021
• DOI: http://doi.org/10.1111/eulj.12449

ORIGINAL ARTICLE

From facts and political objectives to legal bases

and legal provisions: Incremental European

integration in the criminal law field

Nicholas Franssen | Anne Weyembergh

*

Abstract

This contribution intends to show that normative foundations, in the sense of foundations prescrib-

ing norms or expressing prescriptions, have been rather limited in determining or defining the legal

bases, legal provisions and their evolution in EU criminal law. EU primary and secondary law in penal

matters has indeed been adopted mainly in reaction to the need to adjust to reality, to face chal-

lenges, react to facts, incidents and threats and to implement overwhelmingly political objectives,

which themselves follow most of the time from the said factual or operational needs resulting from

practice. This thus calls for an assessment of the advantages and risks of the relatively decisive role

of external factors on the development of criminal justice in the EU.

‘Never let a good crisis go to waste’(Winston Churchill)

1|THE MAKING OF EU CRIMINAL LAW: DEFINING DRIVING FACTORS

Since the launch of the EU efforts to build and develop an EU area for criminal justice, there appears to have been

very little ‘normative ’political guidance at the highest political level of the EU, i.e., the European Council. By

means of illustrati on, let us look at the so -called Stockholm Programme for instance, the last in a series of three

multi-annual programmes that started with the famous Tampere conclusions in 1999: the invitation to the Com-

mission to follow up o n its conclusions, on 1 De cember 2009, after f irst repeating the lis t of serious offences i n

Article 83 (1) TFEU, con tains rather self-evident element s such as the following sentence: ‘Crimina l law provisions

should be introduced when they are considered essential for the interests to be protected and, as a rule, be used

only as a last resort’.

1

*

Respectively, Counsellor at the Ministry of Justice and Security, The Hague, Netherlands; and Professor at the Université Libre de Bruxelles (Institut

d'Etudes européennes), Brussels, Belgium. The views expressed in this article are personal and do not reflect any official position of the Dutch

Government.

1

The Stockholm programme—an open and secure Europe serving and protecting citizens, OJ C 115/1 of 4 May 2010, 15.

DOI: 10.1111/eulj.12449

368 © 2023 John Wiley & Sons, Ltd. Eur Law J. 2021;27:368–377.wileyonlinelibrary.com/journal/eulj