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The general justification for the existence and use of European criminal law is the protection od human dignity. The ECHR regime imposes on the contracting parties an obligation to use criminal law measures and to ensure effective procedural rights to tackle crime that infringes the principle of human dignity. EU criminal law is more utilitarian and consequentialist from its surfacing premise as its justification is to enhance the Member States’ ability to tackle cross-border crime effectively. Subsequently EU criminal law enhances the Member States’ sovereignty this way. Naturally, EU criminal law should not contradict the general framework of the ECHR regime since all of the EU Member States are parties to the ECHR as well. Even though the ECHR regime aims to effective realization of Convention rights by utlizing the dynamic interpretation of the Convention, the regime ultimately protect the deontological reasons for the very existence of the Convention. The EU criminal law also needs to follow the EU-level criminalization principles in order to be legitimate.

Some principles and doctrines of the ECHR regime, the subsidiarity principle, the doctrine of margin of appreciation (and proportionality analysis) and the doctrine on equivalent protection, represent heterarchical flexible constitutional structures. Heterarchical constitutional structures between the national legal systems and the ECHR regime refer to constitutional structures that create an integrated and flexible constitutional system between the contracting parties and the ECHR regime.

Defining crime or criminal law is a difficult task. From a legalistic perspective, one could simply state that crime is conduct that is punishable by law. Building on such an approach, criminal law could be defined, in a circular manner, as ‘a branch of law which deals with those acts, attempts and omissions of which the state may take cognisance by prosecution in the criminal courts’. This kind of legalistic or positivistic definition does not say much about the nature of criminal law.

The approach adopted in the draft accession treaty is challenged by the CJEU in its recent Opinion 2/13 concerning the compatibility of the draft agreement with the EU’s founding Treaties. Opinion 2/13 differs from the previous Opinion 2/94 that also concerned the Union’s accession to the ECHR in that the latter mentioned Opinion concerned only the issue whether the Community had the competence to conclude an agreement on accession to the ECHR. Because the negotiations had not been started and a draft accession agreement was not available for the CJEU to evaluate, the CJEU could not assess the compatibility of the possible accession agreement with the Treaty. Opinion 2/13 however specifically evaluates the compatibility of the draft agreement with the Treaties. In the CJEU’s opinion, even though the Union now has express competence to accede to the ECHR, there still are several constitutional obstacles due to which the draft agreement is not compatible with the EU primary law and thus, in practice, prevents the EU from acceding to the ECHR under the terms set in the draft agreement.

The concept of European criminal law is used in a broad sense, referring to the influences the EU law and the ECHR regime have on criminal law. European criminal law consists of EU criminal law (directives, framework decisions, conventions, CJEU case law etc.) and ECtHR case law that is criminal law-related. In turn, the concept of EU criminal law is used to refer to the criminal law measures enacted within the EU framework. European criminal law is thus multileveled. Norms are created at the European level, either in the Council of Europe or the EU framework, and then implemented, applied and enforced at the domestic level. However the European Public Prosecutor’s Office will enforce EU criminal law directly within the limits of its competence.

The Court of Justice of the European Union has historically rejected references to preparatory work in the interpretation of EU Treaties. However, the preparatory work for the EURATOM, Maastricht, and Constitutional Treaties have played a role in recent judgments. The ‘explanations’ to the Charter of Fundamental Rights are expressly approved in the current Treaties. We examine the emerging case law on preparatory work. Reference to the drafters’ intent does not necessarily support dynamic interpretation, and may potentially even ossify historical interpretations. Even if the consequence of their introduction is a conservative interpretation, their use raises questions of transparency and democracy, and complicates the already difficult task of interpreting the EU constitution.