Normative justifications of EU criminal law: European public goods and transnational interests

• Published date: 01 November 2021
• Author: Jacob Öberg
• Date: 01 November 2021
• DOI: http://doi.org/10.1111/eulj.12451

ORIGINAL ARTICLE

Normative justifications of EU criminal law:

European public goods and transnational interests

Jacob Öberg

*

Abstract

EU policy-making in criminal law is a matter of significant public concern for EU citizens and

the Member States. The exercise of EU public powers in the fields of criminal law and law enforce-

ment have tangible and adverse consequences for the liberties and well-being of individuals. Fur-

thermore, EU cooperation in the area of criminal law touches upon core functions of statehood

including ‘core state powers’such as the safeguarding of internal security and law enforcement.

This raises several questions regarding the rationale underpinning EU criminal policy and its legiti-

macy within the context of a multi-level polity. This article sketches out a normative argument

for legitimate justifications for some particular areas of EU criminal law on the basis of the transna-

tional criterion enshrined in the subsidiarity principle. The article claims that there is a compelling

justification for EU action in criminal law to protect European public goods and other key transna-

tional interests.

* Professor in European Union Law, University of Southern Denmark; Associate Professor in Law, Örebro University, Sweden; Visiting Fellow, Amsterdam

Centre for European Law and Governance, Netherlands; jacob.oberg@oru.se. This article is the outcome of discussions with many academic colleagues

and friends, particularly during presentations of early drafts of this article in Copenhagen and online seminars organised by the University of Oxford,

Örebro University, University of South Wales and Brunel University London. I would wish to particularly acknowledge the valuable comments,

suggestions and constructive criticisms from Valsamis Mitsilegas, Ermioni Xanthopoulou,Shai Dothan, Michal Krajewski, Gerard Conway, Isabella

Mancini, Nina Persák, Jannemieke Ouwerkerk, Helena Farrand Carrapico, Joana de Deus Pereira, Irene Wieczorek, Aikaterini Antoniou, Christian

Kaunert, Jörg Monar, Sarah Leonard and Michelle Pace. Karine Caunes and the two anonymous reviewers of European Law Journal deserve a special

acknowledgement, as their comments and proposals really helped in improving the final form of the article. Finally, I wish to acknowledge the generous

support by Riksbankens Jubileumsfond which has offered the financial opportunities through the RJ Sabbatical Grant, SAB21–0010 for pursuing part of

the research constituting the basis for this article.

Received: 14 April 2022 Revised: 9 January 2023 Accepted: 9 January 2023

DOI: 10.1111/eulj.12451

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.

© 2023 The Author. European Law Journal published by John Wiley & Sons Ltd.

408 Eur Law J. 2021;27:408–425.

wileyonlinelibrary.com/journal/eulj

1|INTRODUCTION

Criminal law has traditionally belonged to the realm of national competence and has thus been subject to ‘inter-

governmental’

1

governance at EU and international level.

2

The main reason is that criminal policies and law

enforcement are vehicles of social control which seriously restrict citizens' right to free movement and other fun-

damental rights. As such, criminal law reflects a value system which is also the source of its legitimacy in a given

society.

3

This also means that EU policy-making in criminal law is a matter of significant public concern for EU

citizens and the Member States alike. From a subjective standpoint, the exercise of EU public powers in the fields

of criminal law and law enforcement have tangible and adverse consequences for the liberties and well-being of

individuals.

4

From an objective standpoint, EU's cooperation in the area of criminal law touches upon essential

functions of statehood including ‘core state powers’

5

such as the safeguarding of internal security and law

enforcement.

6

Nonetheless, developments in this area over the last 30 years suggest that criminal law is no longer on the

periphery of European integration. Whilst some have claimed that the integration of criminal law as a ‘core state

power’

7

is indicative of the notion of ‘new intergovernmentalism’,

8

‘intensive transgovernmentalism’

9

or ‘new

institutionalism’,

10

none of these theories seems to explain satisfactorily the significant institutional and policy

changes that have taken place in the field of criminal law since the Lisbon Treaty. Paradoxically, in the field of crimi-

nal law, comprehensive integration driven by the EU institutions has taken place, embracing new substantive areas

and actors, despite the fact that the policy area embodies high sovereignty and national identity costs for the Mem-

ber States.

11

It is conversely proposed that supranational governance is the most apposite characterisation of developments

in this field. Drawing on insights from a body of literature in EU law

12

and political science,

13

the key criteria for

assessing the depth of supranational integration include the scope, type and nature of EU competences, the mode

and formal rules of decision-making, forms of oversight and implementation by supranational bodies, the effective-

ness of the decisions taken by EU institutions as well as the intensity of the legal measures adopted at EU level. Two

traits of development in this area particularly stand out as prima facie evidence of a gradual supranationalisation of

the field of criminal law. First, it appears clear that the supranational EU institutions have gained stronger powers

after the Lisbon Treaty and that today, decision-making in the area of criminal law as a whole is governed by the

1

See the seminal work on intergovernmentalism by S. Hoffmann, ‘Obstinate or Obsolete? The Fate of the Nation State and the Case of Western Europe’

(1966) 95 Daedalus, 862; A. Moravcsik, The Choice for Europe: Social Purpose and State Power from Messina to Maastricht (Cornell University Press, 1998).

2

C. Fijnaut, ‘Police Co-operation and the Area of Freedom, Security and Justice’, in N. Walker (ed.), Europe's Area of Freedom, Security, and Justice (Oxford

University Press, 2004), 242.

3

German Federal Constitutional Court 2009, Lisbon Judgment, Case 2 BvE 2/08, 5/08, 2 BvR 1010/08, 1022/08, paras. 249, 252–253, 355.

4

F. Trauner and A. Ripoll Servent, ‘The Communitarization of the Area of Freedom, Security and Justice:Why Institutional Change does not Translate into

Policy Change’(2016) 54 Journal of Common Market Studies, 1417; N. Walker, ‘In Search of the Area of Freedom, Security and Justice: A Constitutional

Odyssey’, in N. Walker (ed.), Europe's Area of Freedom, Security, and Justice (Oxford University Press, 2004), 3, 5–7.

5

P. Genschel and M. Jachtenfuchs, ‘From Market Integration to Core State Powers: the Eurozone Crisis, the Refugee Crisis and Integration Theory’(2018)

56 Journal of Common Market Studies, 178; P. Genschel and M. Jachtenfuchs, ‘More Integration, Less Federation: The European Integration of Core State

Powers’(2016) 23 Journal of European Public Policy, 42.

6

L. Besselink, ‘Sovereignty, Criminal Law and the New European Context’, in P. Alldridge and C. Brants (eds.), Personal Autonomy, the Private Sphere and

Criminal Law: A Comparative Study (Hart Publishing, 2001), 93; Lisbon judgment, above, n. 3.

7

Genschel and Jachtenfuchs, ‘More Integration, Less Federation’, above, n. 5.

8

See C.J. Bickerton, D. Hodson and U. Puetter (eds.), The New Intergovernmentalism: States and Supranational Actors in the Post-Maastricht Era (Oxford

University Press, 2015).

9

S. Lavenex, ‘Justice and Home Affairs: Communitarization with Hesitation’, in H. Wallace, M.A. Pollack and A.R. Young (eds.), Policy-making in the

European Union (Oxford University Press, 2010), 457.

10

Trauner and Ripoll Servent, above, n. 4.

11

Genschel and Jachtenfuchs, ‘More Integration, Less Federation’, n. 5; T.A. Börzel and T. Risse, ‘From the Euro to the Schengen Crises: European

Integration Theories, Politicization, and Identity Politics’(2018) 25 Journal of European Public Policy, 83; F. Schimmelfennig, ‘What's the News in “New

Intergovernmentalism”? A Critique of Bickerton, Hodson and Puetter’(2015) 53 Journal of Common Market Studies, 723.

12

R, Dehousse and J, Weiler, ‘The Legal Dimension’, in W. Wallace (ed.), The Dynamics of European Integration (Pinter, 1990), 242; P. Pescatore, Law of

Integration (Springer, 1974, English translation); Walker, above, n. 4; M. Cappelletti, M. Seccombe and J. Weiler, Integration Through Law: Europe and the

American Federal Experience (De Gruyter, 1986).

13

A. Stone Sweet and W. Sandholtz, ‘European Integration and Supranational Governance’(1997) 4 Journal of European Public Policy, 297.

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