Ester Herlin-Karnell

The Development of EU Precautionary Criminalisation

In this paper, I will investigate three concepts which currently play a significant constitutional role in the development of EU criminal law. In doing so, this paper seeks to demonstrate that the driving notions behind the EU’s agenda in this area are risk, security and effectiveness concerns. The paper will thereafter try to give a systematic account of how these concepts are illustrated in EU law and in criminal law respectively. It will be argued that the EU’s approach in this area leads to precautionary criminalisation at the EU level.

Effectiveness and Constitutional Limits in EU Criminal Law

This introductory article offers an account of how the principle of ‘effectiveness’ in EU law has shaped the development of EU criminal law. I will try to explain why effectiveness reasoning has played an important function in the development and formation of EU criminal law as well as the dangers and merits with effectiveness in EU context.

Enhanced Cooperation and Conflicting Values: Are New Forms of Governance the Same as 'Good Governance?'

This chapter aims to explore the concept of enhanced cooperation and its possible renaissance within the Lisbon Treaty. After all, the former EC Treaty regulation of enhanced cooperation has never been used owing to the fact that the restrictions regulating the establishment of such a regime were so numerous that almost nothing met the criteria in question. Nevertheless, it is sometimes pointed out that regional forms of enhanced cooperation may provide tailor-made responses to particular problems instead of the ‘one size fits all’ template provided by a programme of harmonization. The purpose of this chapter is to examine the impact of the establishment of enhanced cooperation in the context of the principle of subsidiarity and hence explore conflicting rationalities between ‘moving forward’ – in terms of closer cooperation – within the framework of the Treaty and restricting EU action in line with the principle of subsidiarity. Criminal law will be used as an example of where this tension is particularly significant.

Waiting for Lisbon...Constitutional Reflections on the Embryonic General Part of EU Criminal Law

This article seeks to explore what it means to refer to the acquis communautaire in the context of EU criminal law after Lisbon. This paper examines institutional developments within the area of EU criminal law, interpreted broadly and focuses in particular, on the possible impact of the so-called general provisions in the area of freedom, security and justice as introduced by the Lisbon Treaty in title V of the Treaty of the Functioning of the Union.

Recent Developments in the Area of European Criminal Law

This contribution tries to highlight and scrutinize recent developments in the dynamic area of European criminal law at both the EC and EU level. In so doing the paper focuses on three judgments each providing new perspectives on, in particular, but not only, how far the Court of Justice is prepared to go in its role as integration activist; by identifying the principle of effectiveness as forming the leitmotif in the chase for constitutional evolution of European criminal law. The paper concludes, after also having discussed current legislative initiatives presented by the Commission, by asserting the need for caution and critical assessment.

The Question of Trust in EU Criminal Law Cooperation: A Constitutional Perspective

This contribution discusses the importance of trust for cooperation in criminal justice in the European Union. As a result of Schengen and the open borders within Europe, the freedom of movement comes sometimes in conflict with the fight against crime and terrorism. Political considerations often favour mutual recognition and criminal-justice cooperation over legislative harmonisation of national laws and regulations. Increasing trust between the EU member states in criminal law is difficult because criminal justice systems have remained nationally anchored. Herlin-Karnell recommends that the EU give greater weight to the proportionality principle in criminal justice cases. The EU Charter of Fundamental Rights and the European Convention on Human Rights represent the minimum requirements for EU legislation and greater attention to those documents increase trust in the system.

The EU as a Promoter of Preventive Criminal Justice and the Internal Security Context

ABSTRACT This paper discusses the current tendency in the EU to promote a criminal justice model focusing on prevention. In doing so, I examine the EUs internal security agenda with regard to criminal law and assess the extent to which this strategy fits the picture of an European Area of Freedom, Security and Justice placing equal value on freedom, security and justice. I also consider the external dimension to the EUs security program by examining the extent to which the EU benefits from the dual layer of security action provided for in the Treaty on the Functioning of the European Union and the Treaty of the European Union, or whether such double action creates unnecessary complexity. I contrast the current aspirations for more security and prevention in EU criminal law with the Commissions recent communication on the effective implementation of EU policies through criminal law. This communication stresses the importance of ensuring coherence in EU criminal law, while also respecting national diversity and serving the citizens. In addition, I discuss the extent to which the EUs promotion of preventive criminal justice risks turning the EU into a disintegrator instead of an agent of European values (depending on what these values are intended to mean in practice).

Between flexibility and disintegration in EU criminal law

The idea of flexibility seems to provide an attractive European model to aim for, not least to avoid the accusation of a ‘one-size’ fits all approach to the highly complicated project of an EU of 28 Member States. Yet, as this chapter will try to show, as much as the notion of flexibility seems to be an attractive concept, it is also a rather vague one. Specifically, this chapter sets out to explore the notion of ‘flexible’ integration in the concrete area of EU criminal law. The phenomenon of EU criminal law is traditionally meant to capture cross border criminality where the EU is taking multilateral Member State action to combat particularly serious criminality such as terrorism, organized crime and cyber-crime related criminality. However, in recent years, the EU has acquired a more freestanding competence to legislate on criminal law proper.