The emerging role of the EU as a primary normative actor in the EU Area of Criminal Justice

• Published date: 01 November 2021
• Author: Irene Wieczorek
• Date: 01 November 2021
• DOI: http://doi.org/10.1111/eulj.12450

ORIGINAL ARTICLE

The emerging role of the EU as a primary

normative actor in the EU Area of Criminal

Justice

Irene Wieczorek

*

Abstract

This article explores the role and justifications for EU action in the EU Area of Criminal Justice, also

relying on a comparison with the justifications for EU action in the internal market. It distinguishes

between a role for the EU asa subsidiary policy actor and as a primary policy actor. By substantiating

both models, the article illustrates how the model of the EU as a subsidiary policy actorhas been chal-

lenged by legislativeand judicial developments in the internal market and how these trends were par-

ticularly accentuated in the EU Area of Criminal Justice. The EU increasingly regulates areas of non-

cross-border crime, as can be appreciatedby the shape and the implementation of the competence to

harmonise definitions of crimes. And the Court of Justice has unequivocally extended the application

of EU criminal law, both substantive and procedural, to internal cases. The article argues that such

developments, which build on pre-existing trends in the internal market field, are inevitable in the EU

Area of Criminal Justice due to the inherent fundamental rights' sensitive nature of criminal law. A

subsidiary, piecemeal approach in criminal justice might safeguard national regulatory autonomy but is

hardly affordable as it would challenge general principles of criminal law. Relying only on “legal cross-

borderness”as a criterion to justify EU definition of crimes would neglect the harm principle and the

legal interest principle. Legal creativitythat would stem from limiting EU intervention and safeguarding

regulatory competition can be fostered by enlarging EU regulatory tools in this area codifying also

decriminalisation competences. Moreover, limiting the application of EU criminal law to only cross-

border cases is at odds withthe principle of legality in criminal mattersand of equal treatment.

*Associate Professor in EU Law, Durham Law School. The author would like to thank Claudia Candelmo and Päivi Neuvonen for their comments on earlier

versions of the article, Valsamis Mitsilegas and Jacob Öberg for the kind invitation to contribute to this special issue and Karine Caunes for the excellent

editing job and support. The errors remain solely mine.

Received: 9 May 2022 Revised: 22 December 2022 Accepted: 22 December 2022

DOI: 10.1111/eulj.12450

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.

378 Eur Law J. 2021;27:378–407.

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1|INTRODUCTION

As a supranational organisation born after its constituent entities, the EU has always needed to justify its legitimacy

to act as a policy actor in the eyes of its Member States and EU citizens. When designing and implementing suprana-

tional policies, the EU necessarily restricts Member States' corresponding autonomy. Moreover, EU action can both

enhance and also restrict individuals' liberties.

A vast literature exists on the various dimensions on which legitimacy of EU action is in fact grounded or should

be grounded.

1

Sticking to the rationales the EU has set for itself, a traditional one, which is enshrined in the Treaties

and EU Institutions' policy documents, is that of acting as ‘subsidiary policy actor’only. This means that the EU is

justified in stepping in to regulate specific phenomena in the pursuit of a policy goal only when Member States fail

to reach it autonomously. As later illustrated, a good indicator of when Member States are likely to fail, and EU

action is thus needed, is when the relevant phenomenon has a cross-border dimension.

Evidence of theEU as a subsidiary policy actor canbe directly or indirectly foundin key provisions of EU constitu-

tional law alreadyin the first and core field of EU action,namely the internal market.

2

Through the years, the EU range

of action has expandedbeyond its economic core. But it arguablyreproduced variations of the ‘EU as a subsidiary pol-

icy actor’modelfor its justifications, including in the EU Area of CriminalJustice,

3

the main focus of thiscontribution.

This article, however, argues that such a model of the EU as a ‘subsidiary policy actor’has progressively been

challenged. There are more and more instances in which the EU acts instead as a ‘primary policy actor’pursuing a

normative agenda in areas in which Member States are capable of acting on their own.

This contribution thus illustrates the limits of the model of the EU as a secondary policy actor when applied to

the field of criminal law. This model neither accounts for nor explains some of the legal developments in this area.

This points to the complementarity of the alternative model of the EU acting as a primary policy actor in order to

assess the normative foundations of EU criminal law.

The following section clarifies the theoretical framework for the analysis. It provides definitions of the key con-

cepts. It illustrates how the ‘EU as a subsidiary actor’model is enshrined in the Treaties, including in the field of crim-

inal justice and police cooperation. And it clarifies the tools through which it has been challenged. The following two

sections develop the first argument of this contribution, namely that the EU is progressively acting as a primary pol-

icy actor in criminal justice. The third section focuses on the challenges that the criterion of legal cross-borderness is

facing, while the fourth deals with the challenges to material cross-borderness. The fifth section develops the second

argument, namely that the trend towards the EU acting as a primary policy actor in criminal justice is an inevitable

one for normative reasons.

In terms of scope of the analysis, it is worth clarifying from the outset that the expression the ‘EU as a policy

actor’is used in this discussion to capture EU action in a broad sense. This includes both EU law-making action set-

ting substantive standards and defining the scope of application of EU law, as well as EU action aimed at

implementing EU policies by means of operational agencies.

4

Furthermore, this contribution develops its core arguments with respect to the field of criminal justice and police

cooperation. To further illustrate its points, it nonetheless compares trends in this area with those in the field of the

1

See, among many others: F.W. Scharpf, Governing in Europe: Effective and Democratic? (Oxford University Press, 1999); G. Majone, Regulating Europe

(Routledge 1996); J.H.H. Weiler, ‘In the Face of Crisis: Input Legitimacy, Output Legitimacy and the Political Messianism of European Integration’, (2012)

34(7) Journal of European Integration, 825; V.A. Schmidt, Europe's Crisis of Legitimacy: Governing by Rules and Ruling by Numbers in the Eurozone (Oxford

University Press, 2020).

2

See the next section for further elaboration on each of these points.

3

This expression refers to all the instruments adopted by the EU in the field of criminal justice including measures on police cooperation. The expression is

admittedly not to be found in the Treaties but is commonly used in literature. V. Mitsilegas, ‘The Symbiotic Relationship between Mutual Trust and

Fundamental Rights in Europe's Area of Criminal Justice’, (2015) 6(4) New Journal of European Criminal Law, 457.

4

See Marianne Wade, who speaks with respect to EU actions in criminal justice matters as going largely beyond just the adoption of repression

conventions, but as being constitutive of a complete governance level with considerable expertise which includes a wide range of institutional frameworks

and agencies, as well as flanking measures ensuring that Member States would implement their obligations in thefield of criminal justice. M. Wade, ‘Cross-

Border Crime’, in K. Ambos and P. Rachow, The Cambridge Companion to European Criminal Law (Cambridge University Press, 2023), forthcoming.

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