In This Issue

Published date01 November 2015
Date01 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 emergenciesthat have shocked (and shaken) the European Union
in the last long decade: the national secu rityemergency following the terrorist attacks
of September 2001 in New York and the economicemergency 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’‘emergencieshave 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 fearof religious fundamentalism and the peculiar blend of policies that goes
by the name of neoliberalism. Geartys 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 inuence 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 nding adds up to the train of
reasoning of Barts 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
inuences the choice of the location from which the crime is committed, the authors nd 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. 703705.
© 2015 John Wiley & Sons Ltd. 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA

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