In This Issue

• DOI: http://doi.org/10.1111/eulj.12161
• Published date: 01 November 2015
• Author: Agustín José Menéndez
• Date: 01 November 2015

In This Issue

One of the most worrying features of contemporary European political and legal

discourse is the ubiquity of ‘emergencies’. In the article that opens this issue, Gearty

analyses the two ‘emergencies’that have shocked (and shaken) the European Union

in the last long decade: the ‘national secu rity’emergency following the terrorist attacks

of September 2001 in New York and the ‘economic’emergency rapidly declared

after the collapse of Lehmann Brothers in September 2008. Gearty calls the atten-

tion of the reader to the contrast between the subdued supranational response to

the wave of terrorism that hit several European states in the 1970s and 1980s

and the hyperactive involvement of supranational institutions in counterterrorism

policy after 2001. Making sense of that contrast requires, according to the author,

taking stock of the transformation of the purpose, scope and breadth of European

integration in the last four decades. Gearty argues that counterterrorism (and the

same could perhaps be said about the government of the economic crises) has

played the role of Trojan horse packed with centralising warriors in its belly.

Similarly, the shape of the supranational responses to both the ‘national security’

and ‘economic crisis’‘emergencies’have been largely shaped by three major

structural changes in the very essence of the European political project: the

growing tolerance towards the naked defence of interests depicted as ‘national’,

the ‘fear’of religious fundamentalism and the peculiar blend of policies that goes

by the name of neoliberalism. Gearty’s article is both a clarion call and a

reminder of the normative possibilities of European law and of the European

project that have resisted this transformation.

De Bondt and Miettinen scrutinise the ad vocacy on the side of the European

Commission of minimum penalties for the crimes that are most obviously cross-national.

The Treaty of Lisbon has created the legal basis for the European Union to act on the

matter (and in the process, the extent of the influence the EU can exert over what

remains a core state power, the right to punish, has grown considerably). Still, European

institutions are committed not only to exert its new powers to harmonise criminal law

within constitutional boundaries, but also to justify the use they make of such powers

by reference to good arguments, including facts-based evidence. The authors show that

it is unfortunately the case that good intentions are not matched by deeds. The evidence

that is being put forward to justify legislative proposals does not add up to the facts

(even if the subject matter is a rather different one, this finding adds up to the train of

reasoning of Bart’s piece in the previous issue of the journal). De Bondt and Miettinen

show that empirical studies indicate that deterrence is related to both (1) the subjective

perception of the likehood of being caught red handed and (2) an objective set of factors

determining the actualpenalty likely to be imposed, something that does not only depend

on minimum statutory penalties but also on rules on mitigation and aggravation.

Moreover, even if we lack hard evidence on whether the formal severity of criminal law

influences the choice of the location from which the crime is committed, the authors find that

there are very good reasons why this is very unlikely to be the case. Italian law is formally

harsh on currency counterfeiters, still 60% of false coins circulating in Europe seem to be

manufactured in the outskirts of Naples. Furthermore, formal minimum penalties as

European Law Journal, Vol. 21, No. 6, November 2015, pp. 703–705.

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