Testing the Principle of Subsidiarity in EU Criminal Policy – The Omitted Exercise in the Recent EU Documents on Principles for Substantive European Criminal Law

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Abstract

In their recent European criminal policy documents, the Institutions have highlighted the
relevance of subsidiarity for European criminal law. In this paper we demonstrate that
such principle, in its current institutional understanding, cannot adequately address
issues related to the distribution of criminalisation powers between the EU and the
Member States. Article 5(3) TEU describes subsidiarity as an effi ciency based-criterion
aimed at tackling technical competence-exercise issues (instrumental subsidiarity).
Such a restricted perspective is not desirable for the penal fi eld. As a matter of fact, when
shift ing criminal issues up to the Brussels agenda, aspects related to democracy,
legitimacy, internal coherence of the criminal law system, and risks of hyper-repressive
developments must also be considered along with effi ciency concerns. Moreover, such
interpretation cuts off from the discussion all normative competence-attribution issues
(substantive subsidiarity), which are raised by the most relevant criminal law provisions,
such as Article 83(1) TFEU and Article 83(2) TFEU.
Original languageEnglish
Pages (from-to)394-411
Number of pages17
JournalNew Journal of European Criminal Law
Volume3
Issue number3
Publication statusPublished - 1 Dec 2012

Keywords

  • Criminalization
  • European criminal law;
  • instrumental subsidiarity;
  • subsidiarity
  • substantive subsidiarity

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