Dr. Jacob Öberg (Örebro University)
When Ursula von der Leyen announced her new Commission last week, she nominated Ireland’s Michael McGrath for the post of Commissioner for Democracy, Justice, and the Rule of Law. Part of his responsibility will be to oversee the EU’s expanding role in the field of Criminal Justice. But how did the EU come to occupy this role, and is it justified? That is the subject of my new book, .
This book (which is freely available via Open Access) aims to more broadly discuss why the EU should be involved in criminal law and criminal justice. I suggest that it is possible to infer three principal drivers for EU criminal law and policy: ‘security’ for EU citizens; ensuring the effectiveness of EU policies; and subsequently a ‘rights-based approach’ to EU criminal policy. ‘Effectiveness’ and other ‘functional’ considerations have been the primary justifications for EU action in respect of the development of EU regulatory criminal law and the rise of a European Public Prosecutor. In the area of euro crimes in Article 83 TFEU and in respect of the development of EU criminal justice agencies such as Europol and Eurojust and the area of judicial cooperation, the justification for EU action has instead been driven by ‘security’-orientated rationales. In this instance, criminal law is employed to serve a more ‘repressive’ agenda of criminal enforcement. Finally, I also identify a stronger ‘fundamental rights’-based approach to EU criminal law post-Lisbon facilitated by a stronger Treaty mandate to enact legislation on procedural standards and individual rights.
All these justifications offer distinctive ways of understanding why the European Union wishes to take action in the area of criminal law and why the EU level might be a better venue than Member State level for undertaking those actions. As a way of integrating these different accounts, I argue that the justifications for EU criminal law must be sought in the general rationales for EU action. Following this line of argument, my central claim is that the EU should prima facie be justified to employ criminal law to address transnational market failures (internal market, EU financial market), transboundary externalities (transnational environmental protection, market abuse) or collective action problems (transnational organised crime, collective European security) where it is unlikely that Member States, because of perverse incentives, are capable of addressing the problem properly, or indeed willing to do so (see Chapter 2). The notion of European Public Goods includes a special category of intrinsic supranational interests such as the protection of the EU budget (or the currency) where the protection of the interest at stake is central for the existence of the Union (Chapter 4 and 5).
Taking the example of individual rights in criminal procedures with a cross-border dimension, I suggest that there is a compelling argument for EU intervention to confer ‘virtual’ political rights to foreigners. The underlying premise for this argument is that national democratic processes do not have comprehensive mechanisms to ensure that core collective European interests are sufficiently considered within their decision-making processes (Chapter 3). I further maintain that it is justified to confer EU agencies and bodies such as EPPO, Eurojust and Europol with operational powers for those crimes which are linked to the EU’s core supranational interests (e.g. crimes against the EU’s financial interests and counterfeiting of the euro). The common features for conferring jurisdiction to EU criminal justice agencies relate to institutional competence where relevant factors such as efficiency, incentives and expertise speak in favour of expanding those agencies powers further (Chapter 5 and 6).
In the concluding chapter I reflect on the future path of EU criminal policy since the choices of what to accept as justifications for policymaking in criminal law have important ramifications for the legitimacy of the Union legal order. One of the challenges is the notion that the EU political institutions use their powers in illegitimate ways, thereby usurping national powers (‘competence creep’). A broader ‘autonomous’ approach would accept that EU action in criminal law can be justified with reference to the Union’s need to reaffirm its core ‘common values’, and to strengthen its political identity—the expressive dimension of EU criminal law. If we acknowledge ‘autonomous’ justifications for EU harmonisation, and especially its role in establishing a European common sense of justice, this implies a comprehensive remit for legislative action. This flexible approach to the justification for EU action offers, nonetheless, ample opportunity for ‘competence creep’. If we conversely only recognize the ‘functional’ rationales for harmonisation, there will be a narrower scope for EU action, potentially impairing the EU’s ability to promote fundamental rights for individuals. Whilst the ‘autonomous’ justification model might have a strong political appeal; my argument does not fully endorse this approach. As the current Treaties provide no clear authorisation for justifying criminal law interventions on expressive grounds, I contend that the EU will endanger its legitimacy if it keeps adopting criminal law on this basis.
I consequently argue that the rights-based approach needs to be aligned with the idea of European public goods. There is nonetheless a normative basis in the Treaties for a less ‘functional’ approach to EU criminal law. This is the fact that one of the objectives of the EU is to create a common area of justice. Whilst the Treaties only mention the combat and repression of crimes and by judicial cooperation through mutual recognition, there is clearly a legitimate role for the EU to more actively pursue a rights-based approach on the basis that it protects European public goods and markedly transnational interests. This approach will accept EU involvement in matters where Member States—because of their perverse incentives or lacking capabilities—cannot address the problems of cross-border criminality and instances where the EU intervenes to protect transnational or supranational (e.g., EU budget and the currency) interests (Chapter 7). This approach entails in my opinion a more legitimate and resilient approach to supranational intervention in this area, which is something to build on when designing a future EU policy in the area of criminal law and criminal justice.
Dr Jacob Öberg is a Full Professor of European Union Law at the Law Department at the University of Southern Denmark and Guest Professor in EU Law at Örebro University where he as a Principal Investigator is managing a three-year research grant from the Swedish Research Council on the supranational transformation of the Area of Freedom, Security and Justice. He previously held positions as Associate Professor in EU law at Örebro University (where he acted as Deputy Head of Department) and as a Postdoctoral Fellow in law at Lund University. He earned his PhD in European Law from the European University Institute in Florence. His research interests lie primarily in EU constitutional law and EU criminal law, including: multidisciplinary and contextual perspectives on EU law, theories of EU integration, the federal dimension of EU law, and the Union’s criminal policy and its development under the Lisbon Treaty. His work has been cited by the European Parliament and he has been heard as an expert before the European Parliament’s LIBE and FEMM Committees. His recent monograph, The Normative Foundations for EU Criminal Justice: Powers, Limits and Justifications (Hart Publishing, 2024) examines to what extent there exists a compelling normative justification for the EU to regulate criminal justice.
The views expressed in this blog post are the position of the author and not necessarily those of the Brexit Institute blog.