Current Developments of Criminal Law in the European Union

The substantive criminal law of the EU lacks a solid and well-defined theoretical foundation.

The European Union is most commonly known as an economic union with a single market and its associated freedoms, such as the free movement of goods, capital, services, and labor. However, the EU is more than just that. It is vested with far-reaching legislative powers by its member states, including limited legislative powers in criminal law.

Over the past year, the European legislator has issued three new directives in substantive criminal law based on Article 83 of the Treaty on the Functioning of the European Union (TFEU), which member states must implement into national law. These include directives on violence against women and domestic violence, environmental crime, and the circumvention of foreign trade sanctions. Additionally, three other directives address corruption offenses, the sexual abuse and sexual exploitation of children (including child sexual abuse material), and the prevention and countering of unauthorized entry, transit, and stay within the EU.

This development illustrates how the EU utilizes criminal law. It serves as an integrative factor, aiming to harmonize the criminal laws of member states, at least in areas where the EU has competence. Beyond harmonization, the EU has strengthened its influence by using criminal law as a mechanism to enforce its own policies. By expanding the scope of existing offenses and adding new ones, the EU uses criminal law to enforce its goals. Moreover, the EU often justifies new directives by claiming that previous directives were insufficient.[1] Unfortunately, the EU does not provide empirical evidence to support these claims of insufficiency; instead, it relies solely on the prerogative of the legislator. Legal scholars have criticized these developments. But is the criticism valid?

The goal of harmonization is rooted in Article 67(3) TFEU. Although there are limitations in Article 83 TFEU regarding what the EU is allowed to harmonize, the treaty clearly allows the use of criminal law as an integrative factor. In an entity with a single market, it makes sense to have minimum standards for crimes that could harm the economy, such as corruption, money laundering, cyber fraud, and insider trading. The legislator holds significant prerogative in this regard. In other words, harmonization is the price paid for a functioning market within the EU. That said, the rules themselves can, and should, be criticized for valid reasons, as they are always subject to legal debate.

The use of criminal law to enforce certain policies is not unique to the EU. National states do this as well. What differs, however, is that national states have adopted a coherent concept of criminal law, ideally grounded in a clear understanding of the purpose of criminal law. The EU, on the other hand, lacks such a theoretical foundation. It remains unclear on what theories substantive EU criminal law is based on. To be fair, the EU is not entitled to issue a full criminal code. However, this does not excuse the legislator’s unwillingness to substantiate its ever-expanding legislation with a solid theoretical framework.

Lastly, criticism has been directed at the vast prerogative of the legislator to issue new directives, claiming that previous ones were insufficient. Articles 67 and 83 TFEU are unclear on whether empirical evidence is required in addition to the normative prerogative. Nevertheless, basing directives on empirical data would strengthen their credibility and demonstrate the necessity for harmonization. It would also help resolve disputes regarding the need for new or revised directives. The member states explicitly sought a restrictive role for criminal law in the EU treaties.

Harmonizing criminal law within the EU is an important tool for achieving the broader objectives of the Union. However, its scope must be carefully constrained to achieve this goal. Developing a coherent theoretical framework for EU criminal law is crucial, and the EU should build upon the work already done by scholars in this field.[2]

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[1] See e.g. https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:L_202401203 recital (4)

[2]See https://www.zis-online.com/dat/artikel/2009_12_383.pdf