AbstractsLaw & Legal Studies

How is EU criminal legislative competence regulated after the Lisbon Treaty? The European Union has always had powers which affect national criminal law. Classic internal market judgments consider whether national criminal law measures are justified restrictions of freedom of movement. The Union s direct legislative powers in this field have developed more slowly through international agreements, Treaty revision and the case law of the Court of Justice on implied powers. This study asks what powers have been conferred on the Union in the field of substantive criminal law and how the exercise of its powers may be reviewed after the entry into force of the Lisbon Treaty. The questions raise a wide range of issues relevant to EU criminal law, but also to EU constitutional, administrative and institutional law. A state-centric view of European integration holds that EU criminal law powers were framed to preserve core areas of national sovereignty. Scholarship in the field of EU criminal law is often ambivalent or critical of centralized powers in this field. Addressing the Union s competence creep was at the heart of constitutional reforms incorporated by the Lisbon Treaty. This sentiment explains some unusual features of the field after those revisions: the emergency brake , the special position of the UK, Ireland and Denmark, limits to Court of Justice jurisdiction, the unanimity requirement for states participating in the European Public Prosecutor s office, more sensitive ex ante subsidiarity control, and limiting express criminal law powers to directives. Nevertheless, these limits are constructed from the reference point of EU institutional law. The survey of those elements shows that the foundations of these structures are unreliable. If codification was intended to limit creeping competence , the framers have failed. Case law of the Court of Justice of the European Union after December 2009 suggests that Article 83 TFEU, or even the complete set of legal bases in the Union s area of freedom, security and justice , is not an exhaustive codification of the Union s criminal law powers. The central question in the calculus, the Court s rules on choice of legal bases , has been susceptible to creative drafting and suffers from weak judicial oversight. Legislative practice suggests that the new safeguards can be sidelined in this process. Thus, the central, and important debates in EU criminal law on the meaning of specific concepts like minimum rules , what crimes can be included in the 83(1) list, and how the European Public Prosecutor should operate may be gradually sidelined by the incoming tide , or at least creeping competence in other estuaries. At the same time, Member States cling to pre-Lisbon practices that restrict the exercise of competence but which seem disconnected from the post-Lisbon legal framework. A detailed examination of this field finds anomalies in the external relations law of the Union, where pragmatism prevails. Small elements that have criminal law implications may be included…