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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 enforcement have tangible and adverse consequences for the liberties and well-being of individuals. Furthermore, 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 legitimacy within the context of a multi-level polity. This book explores forensically the question whether a compelling normative justification for the EU to regulate criminal justice. It argues that the key justification for supranational action lies in demonstrating the existence of European public goods such as the internal market, the transnational protection of the environment and the provision of security for citizens and other important transnational interests deserving of protection by means of criminal law. It should also be shown that the Union is better placed (given its resources, expertise and incentives) than Member States to protect those interests. This offers a compelling case for EU action in criminal law to address or correct transnational market failures, collective action problems and other externalities arising from the economic and social interdependence between states in the EU

The seminal ruling of the Court of Justice in G.K. e.a (Parquet européen) addresses one of the key elements of the EPPO Regulation which is the mechanism for cross-border cooperation between European Delegated Prosecutors (EDPs). This mechanism is designed to enable prosecutors in different Member States to cooperate in an effective manner limiting judicial authorisation for investigation measures undertaken in a certain State at the request of an EDP in a different State to one instance only (‘single judicial authorisation’). However, the wording of the EPPO Regulation is far from conclusive on this aspect Article 31 being in reality awkward compromise balancing Member States’ views on the scope of judicial review of assigned investigation measures in cross-border cases. This significant provision of the new EPPO Regulation was put to test before the national courts at the case at hand. The CJEU's ruling suggests that the notion of single judicial authorisation has been dealt a blow as we now always will have two forms of judicial control in a cross-border EPPO investigation: one prior on the merits in the State of the handling EDP and one formal in the State of the assisting EDP. In principle, the Court largely followed the Opinion by AG Ćapeta to the extent that the review conducted in the State of the assisting EDP where a measure requires judicial authorisation may relate only to matters concerning the enforcement of that measure. The CJEU judgment requires us to think more broadly on the EPPO Regulation and the potential need for EU harmonisation in this area. While the establishment of the EPPO is a welcome step towards a ‘federalisation’ of EU criminal law in the specific area of crimes against the EU budget, the EPPO cannot function effectively with some degree of harmonisation of national criminal procedures. The judgment at hand highlights the implications of this incomplete centralisation of national criminal procedures which makes it more cumbersome

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 enforcement have tangible and adverse consequences for the liberties and well-being of individuals. Furthermore, 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 legitimacy 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 transnational 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 transnational interests.

With this special issue and as part of the ELJ's endeavour to foster collaborative research projects on European integration, two of its board members, Jacob Öberg and Valsamis Mitsilegas, threw down a challenge to fellow experts in European criminal law: to reflect on the normative foundations of European criminal law. This challenge first took shape with an online symposium organised by Jacob with the support of Örebro University and gathering together the participants in the ELJ special issue. It continued with an exchange on the topic between Valsamis and Jacob hosted by the EU Law Discussion Group at the University of Oxford. It will conclude, following the publication of the special issue, with a conference organised by Valsamis at the School of Law and Social Justice at the University of Liverpool. We hope, nevertheless, that such a challenge will emulate further research and publications on the meaning of European integration through law in other specific fields of EU law as well as transversally.

Den Europeiska åklagarmyndigheten (Eppo), som alldeles nyligen påbörjat sin verksamhet är en symbol för omvandlingen av unionens samarbete på det straffrättsliga området från ett mellanstatligt till ett överstatligt paradigm. Inrättandet av Eppo representerar inte bara en symbolisk handling utan är en enastående rättslig och politisk bedrift som sannolikt kommer innebära ett grundläggande systemskifte i vår syn på unionens samarbete på det straffrättsliga området. Den Europeiska Åklagarmyndigheten avviker markant från den konventionella uppfattningen bland medlemsstaterna som är att mellanstatligt samarbete är den dominerande principen på detta område. Genom att inrätta Eppo har ett överstatligt organ i praktiken antagit sådana exekutiva straffrättsliga befogenheter som traditionellt hör till den suveräna statens grundläggande uppgifter. Den övergripande frågan som analyseras i kapitlet är till vilken utsträckning Eppo är en eftersträvansvärd förebild för hur en framtida ’federal’ Europeisk straffrätt kan gestaltas. Kapitlet belyser frågeställningen genom att särskilt granska relationen mellan Eppo, statssuveränitet och legitimitet. Den första delen av detta kapitel analyserar räckvidden av Eppos befogenheter. Analysen handlar i första hand om karaktären av Eppos befogenheter samt typen av de verkställighetsbefogenheter som myndigheten åtnjuter. Den andra delen av kapitlet diskuterar i detalj på vilket sätt Eppos befogenheter och utövandet av dessa kan anses utgöra ett hot mot den statliga suveräniteten. Den tredje delen av kapitlet diskuterar Eppo utifrån ett legitimitetsperspektiv, med särskilt fokus på domstolsprövning och granskning av organets verksamhet. Särskilt diskuteras vilka krav som bör ställas på en centraliserad europeisk åklagare när den faktiskt utövar offentlig straffrättslig makt på en medlemsstats territorium. Kapitlet argumenterar för att Eppo – i syfte att stärka legitimiteten av dess verksamhet hos medlemsstaterna (och deras myndigheter) – behö

There has been a public debate among academics and politicians of whether Hungary should be required to join the European Public Prosecutor’s Office as a condition to receive EU funds according to the different milestones. As the EPPO is tasked with investigating fraud and mismanagement of EU funds, it is well-placed to address the allegations of serious corruption that the Hungarian Government is accused of. Joining the EPPO would thus send a clear message that Hungary takes ending public corruption seriously and a more general sign that it wishes to be a part of the European family. The analysis here, however, suggests that this proposal will not be legally possible to implement, thus illustrating the key problem with enhanced cooperation as a form of European integration. Under primary EU law, Hungary cannot be required to join the EPPO. Whilst Hungary generally benefits from the work of the EPPO as it receives EU funds recovered by the agency, it does not contribute with personnel our resources for the EPPO to function effectively.

This article critically examines the claim that EPPO is a proper federal supranational prosecutor. The article observes that the EPPO among policymakers and commentators appears to be a hallmark of the transformation of EU criminal law from an intergovernmental paradigm to a strong federal and supranational polity. The EPPO primarily stands out among other EU agencies by having been conferred with an independent competence to prosecute crimes relating to the common EU financial interest. By establishing the EPPO, the Union has practically assumed such competences that traditionally belong to the central government in a federal state. The article discusses comprehensively the scope, nature and limits to the EPPO’s powers as well as its operating structure in light of Article 86 TFEU and the recently adopted EPPO Regulation. It departs from the basic assumption that the EPPO stands in the midst of supranationalism and intergovernmentalism. Whilst the EPPO is envisaged to be independent from the Member States, the EPPO’s complicated, multifaceted and vertical structure entails that Member States maintain a certain direction of its activities. It, however, argues that a general assessment of the EPPO’s operational and strategic direction (where its operational activities are managed and supervised by centralised ‘European’ prosecutors), and the type (direct criminal enforcement powers) and nature of its powers (criminal prosecutorial powers) makes it distinctive as the most ‘integrated’ and ‘supranational’ EU agency.

This article addresses supranational governance of EU criminal justice agencies from the perspective of the various agencies of policy and rulemaking who have contributed to the impressive developments in the field of EU criminal law. Taking as a working hypothesis the happenstance and haphazard character of this field of policy and law, it suggests that there is an absence of design. In the discussion the article proposes the Platonic analogy of the ‘ship of fools’ (Plato, Republic, Book VI) as an explanatory tool. The ship's captain is the guiding spirit of criminal law, but the crew of the ship, who have the power to take control, have diverse interests and ideas about how the ship should be taken to sea and navigated. The article addresses thematically and chronologically the development of EU criminal policy by means of this framework. Subsequently it discusses the extent to which the ‘ship of fools’ analogy is relevant to the development of EU criminal justice agencies, and to the emergence of a European Public Prosecutor. Underlying all this discussion is the uneasy sense that the true pilot of EU criminal law and policy has been displaced, in particular by ‘instrumental’ pilots of securitisation and effectiveness.

As in other areas of social engineering, Sweden is considered as world-leading in creating systems that address social inequality. One of the cases in point is the Swedish day-fine system which has been considered as pioneering by systematically considering both the wealth of the offender and the seriousness of the offence when imposing the penalty. This chapter analyses in detail the Swedish day-fine system. The case study of Sweden sheds light on the pros and cons of day-fines by recalling the discussion in Sweden prior to introducing the system and the recent academic debates on extending the use of day-fines. The chapter also offers an account of the comprehensive prosecutorial guidelines as well as an analysis of the relevant case law, particularly in relation to adjustment of day-fines. The chapter argues that the Swedish day-fine system overall must be considered as a largely successful project which holds high esteem among courts and practitioners. The common view is that it is a merit of the system that it forces the courts to consider the economic circumstances of the accused and to articulate openly for the way in which such consideration has been done.

The articles in this special issue consider the institutional foundations of the Union’s criminalpolicy – a highly critical question for the future development of the Area of Freedom, Security andJustice. The ratification of the Lisbon Treaty and the subsequent legal and political developmentshave entailed an unprecedented reinforcement of the powers of the EU’s criminal justice agenciesEuropol, Eurojust and, recently, the establishment of a novel criminal justice body – the EuropeanPublic Prosecutor’s Office. On the basis of the Treaty mandate, the EU legislator has adoptedimportant reforms such as the EPPO Regulation, and new Europol and Eurojust regulations. In lightof these developments, this special issue explores via a multi-disciplinary investigation the extent towhich the increased competences of the EU and the stronger presence of EU criminal justiceagencies have transformed EU criminal law from an ‘intergovernmental’ regime to a ‘supranational’and ‘integrated’ framework. We expect that this special issue will enhance further debate on EUcriminal justice agencies, encourage novel paths to bridge the boundaries between disciplinaryepistemic communities in the study of EU criminal justice and more broadly contribute to anadvanced understanding of the role of law in social and political integration.

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 enforcement have tangible and adverse consequences for the liberties and well-being of individuals. Furthermore, 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 legitimacy 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 transnational 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 transnational interests.

European Law Blog. News and comments on EU law. 11 October 2021.

This post presents a political and legal analysis of the emergency brake in criminal law in Articles 82(3) and 83(3) TFEU. It suggests that the emergency brake offers a powerful discretionary prerogative for Member States seeking to protect the integrity of their criminal justice systems. This strong legal shield for Member States in the form of a ‘quasi-veto’ is contrasted with a tendency to decision-making under the ‘shadow of the vote’, cautiously moving towards supranationalism. On the basis of general theories of Council decision-making and a comprehensive review of EU criminal law legislation adopted to date, the post argues that majority rule rather than general agreement appears to be the current driving force behind decision-making in EU criminal policy.

This article addresses supranational governance of EU criminal justice agencies from the perspective of the various agencies of policy and rulemaking who have contributed to the impressive developments in the field of EU criminal law. Taking as a working hypothesis the happenstance and haphazard character of this field of policy and law, it suggests that there is an absence of design. In the discussion the article proposes the Platonic analogy of the ‘ship of fools’ (Plato, Republic, Book VI) as an explanatory tool. The ship's captain is the guiding spirit of criminal law, but the crew of the ship, who have the power to take control, have diverse interests and ideas about how the ship should be taken to sea and navigated. The article addresses thematically and chronologically the development of EU criminal policy by means of this framework. Subsequently it discusses the extent to which the ‘ship of fools’ analogy is relevant to the development of EU criminal justice agencies, and to the emergence of a European Public Prosecutor. Underlying all this discussion is the uneasy sense that the true pilot of EU criminal law and policy has been displaced, in particular by ‘instrumental’ pilots of securitisation and effectiveness.

The articles in this special issue consider the institutional foundations of the Union’s criminal policy – a highly critical question for the future development of the Area of Freedom, Security and Justice. The ratification of the Lisbon Treaty and the subsequent legal and political developments have entailed an unprecedented reinforcement of the powers of the EU’s criminal justice agencies Europol, Eurojust and, recently, the establishment of a novel criminal justice body – the European Public Prosecutor’s Office. On the basis of the Treaty mandate, the EU legislator has adopted important reforms such as the EPPO Regulation, and new Europol and Eurojust regulations. In light of these developments, this special issue explores via a multi-disciplinary investigation the extent to which the increased competences of the EU and the stronger presence of EU criminal justice agencies have transformed EU criminal law from an ‘intergovernmental’ regime to a ‘supranational’ and ‘integrated’ framework. We expect that this special issue will enhance further debate on EU criminal justice agencies, encourage novel paths to bridge the boundaries between disciplinary epistemic communities in the study of EU criminal justice and more broadly contribute to an advanced understanding of the role of law in social and political integration., Special Issue

This article closely analyses mutual recognition as a justification for EU legislative activity in the field of domestic criminal procedure. By looking at the structure, wording and purpose of the Treaties, the article first discusses the proper interpretation of the mutual recognition criterion in Article 82(2) TFEU. It argues for a narrow construction of Article 82(2) TFEU, suggesting that the expression ‘enabling mutual recognition’ is capable of substantially confining EU action on criminal procedure. The article challenges the justification for having EU competence in domestic criminal procedure on the basis that it enables mutual recognition. It advances the proposition that it is very difficult to defend on a conceptual and empirical basis that harmonisation has a positive effect on the operation on mutual recognition.

The analysis departs from the FCC’s stringent proportionality review to elaborate an argument on what intensity of review should be adopted when reviewing the ECB’s economic policies. Building on previous scholarly analyses (Öberg) and relevant Court case law( Spain v Council and Vodafone,) it suggests that the proper standard of proportionality analysis should primarily be guided by the nature of the actions by EU agencies and their relative discretion in taking such actions. This argument suggests that general legislative acts where EU agencies or institutions exercise some discretion should be subject to more deferential review whilst administrative decisions (being characterised by a more limited discretion on part of the institution or agency) should be subject to more intense judicial scrutiny. It concludes that the FCC was thus in principle right to criticise the Court of Justice’s approach to proportionality review of the ECB’s exercise of its discretion.

This chapter addresses the EU’s policy in the field of procedural criminal law. It sketches how issues similar to those discussed in the field of substantive criminal law can arise in the field of procedural law and argues that they should also be studied from within multiple disciplines. It tentatively proposes that a more evidence- based understanding of the exercise of competences in this field is a feasible model to restrain illegitimate ‘competence creep’ from the EU legislator.

EU criminal justice is a fast developing and challenging area of EU law and policy that requires scholars from different disciplines to join forces. This book is a first attempt to establish such synergies. Coming from different angles, the authors deal with questions in the area of EU substantive criminal law, such as when criminalisation of conduct is an appropriate choice; how the process of (de)criminalisation could be advanced; what the role of evidence could be in this regard; and what consequences criminalisation decisions at EU level have for national legal orders. The book concludes with a demonstration of how similar issues arise in the field of procedural criminal law.

This chapter addresses the EU’s policy in the field of procedural criminal law. It sketches how issues similar to those discussed in the field of substantive EU criminal law can arise in the field of procedural law and argues that they should also be studied from within multiple disciplines. It tentatively proposes that a more evidence- based understanding of the exercise of competences in this field is a feasible model to restrain illegitimate ‘competence creep’ from the EU legislator.

It is clear that the formal inclusion of the national parliament as a political actor within the EU decision-making process has been one of the most important innovations of the Lisbon Treaty. Their role, however, remains controversial. It is on the one hand disputed whether national parliaments enjoy sufficient powers to tame 'competence creep'. On the other hand, it is contested to what extent it is desirable that they should become involved as a legislative actor in the EU's decision-making procedure. This essay contributes to these debates by critically examining to what extent national parliaments can contribute to the enforcement of the subsidiarity principle. The article contends that national parliaments by having taken a too expansive view of their remit under Protocol No 2 appears to have 'misunderstood' their role within the EU-decision making procedure. Notwithstanding this, it is sustained that national parliaments could, in the absence of other trustworthy safeguards of federalism, be seen as a promising avenue for legitimate political control of the exercise of EU competences.

Article 83(2) TFEU, introduced by the Treaty of Lisbon, confers a power on the EU to harmonise Member States’ legislation to define criminal offences and criminal sanctions. Nonetheless, uncertainty persists as to whether this provision exhaustively determines the EU’s power to adopt criminal law to enforce its policies. The article outlines the core case for viewing art.83(2) TFEU as a lex specialis. It argues that the post-Lisbon constitutional design, alongside principled and teleological considerations, support a Member State centred approach for criminal law competence. This is particularly the case with regard to the adoption of harmonisation measures.

EU Law-Vertical competence review of EU secondary law-Court of Justice control of the exercise of EU legislative powers-Strict procedural review of EU legislation-Standard of judicial review and intensity of judicial review-Judicial review as a safeguard of federalism-Constitutional review of EU legislation-Proportionality, subsidiarity and principle of conferral-Balance between the EU legislator's prerogatives and the need to ensure that EU legislation conforms to the precepts of EU law-Distribution of competences between Member States and the EU.

This article examines how subsidiarity can limit the exercise of EU competence. It suggests that the problems of reconstructing subsidiarity cannot be seen in isolation from the issue of judicial review. In a substantive sense it contends that subsidiarity can be reconceptualised as a principle that challenges the internal market justification for exercise of Union competences. It argues for a narrow understanding of subsidiarity, suggesting the EU legislator to demonstrate the risk or the existence of a transnational market failure or a transnational interest in order to substantiate EU harmonization. From the perspective of judicial enforcement the key argument is to change the focus from ‘substantive review’ to ‘procedural review’ of subsidiarity in order to meet institutional concerns. The proposed standard of review suggests that the EU legislator must offer ‘adequate reasoning’ and ‘relevant evidence’ to maintain that EU legislation conforms to the subsidiarity principle., Subsidiaritetsprincipen och EU:s straffrätt

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