Old wine in a new bottle: Shaping the foundations of EU criminal law through the concept of legal interests (Rechtsgüter)

• Published date: 01 November 2021
• Author: Jannemieke W. Ouwerkerk
• Date: 01 November 2021
• DOI: http://doi.org/10.1111/eulj.12447

ORIGINAL ARTICLE

Old wine in a new bottle: Shaping the foundations

of EU criminal law through the concept of legal

interests (Rechtsgüter)

Jannemieke W. Ouwerkerk

*

Abstract

Ever since the establishment of EU competence to legislate in criminal matters, legal scholarship

has been devoting a fair amount of attention to the scope of these powers as well as to their

proper exercise. The many scholarly contributions this has led to make a commendable and laud-

able body of knowledge with respect to the matter at hand. Yet, as will be argued, its capacities

to shape the normative foundations of EU criminal law remain limited, with the main

reason being that normative limits of EU-level criminalisation have so far predominantly been

articulated in terms of principles. For the reasons set out below, this article proposes to supple-

ment the ongoing debate with another conceptual lens, i.e., the lens of legal interests

(Rechtsgüter). The purpose of this article is to substantiate the point of view that the concept of

legal interests offers essential opportunities to further shape the normative foundations of EU

criminal law.

1|INTRODUCTION

Ever since the establishment of EU competence to legislate in criminal matters, legal scholarship has devoted a

fair amount of attention to the scope of these powers as well as to their proper exercise. The issue has received

increased attention over the past decade, most likely to respond to the reshaped, extended criminalisation

powers under the current EU legal framework, which provides for both express and implied competences. The

many scholarly contributions this has led to make a commendable and laudable body of knowledge with respect

* Full Professor of European Criminal Law at Leiden University, Institute of Criminal Law & Criminology.

Received: 29 April 2022 Revised: 28 September 2022 Accepted: 7 October 2022

DOI: 10.1111/eulj.12447

This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which

permits use and distribution in any medium, provided the original work is properly cited, the use is non-commercial and no

modifications or adaptations are made.

© 2022 The Author. European Law Journal published by John Wiley & Sons Ltd.

426 Eur Law J. 2021;27:426–440.

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