Jacob Öberg

Union Regulatory Criminal Law Competence after Lisbon Treaty

This article analyse the scope of the Union’s regulatory criminal law competence subsequent to the ratification of the Lisbon Treaty. The article is primarily focused on examining what legal limitations that can be imposed on the Union’s competence to impose criminal penalties under the new legal basis in Article 83(2) TFEU. The examination will also analyse and scrutinize the scope of the Union’s criminal law competence in the light of the principle of democracy. In particular, the article will examine in detail whether criminal sanctions are “essential” for the effective implementation of Union policies. It will be discussed if the “essentiality” requirement implies that the ECJ should review EU criminal law legislation in the light of the principle of proportionality in Union law. In this regard, it will be analysed what standard that the ECJ should adopt in relation to judicial review of EU criminal law enactments. This implies that the article will particularly scrutinize whether the principle of proportionality can provide an argument against conferring a criminal law competence to the European Union. The article will as a case study discuss whether criminal sanctions are “essential” for effective implementation of Union competition policies. In this regard it will be considered whether criminal sanctions are suitable and necessary for the effective implementation of Union competition policies. Finally, the article will discuss the procedural requirements for adopting criminal law legislation. In particular it will be analysed how much harmonisation is needed for the adoption of Union criminal law legislation and whether the Union need to adopt a prior harmonisation measure in order to enact criminal law measures on the basis of Article 83(2) TFEU.It is firstly submitted in the article that the “essentiality” requirement in Article 83(2) TFEU includes a strict proportionality requirement. Further, when the proportionality test is applied to the case of criminal sanctions in Union competition law it is claimed that criminal sanctions are not “essential” for the effective implementation of Union competition policy. It is finally contended that the Union could not use the previous harmonisation measure in Regulation 1/2003 to justify the use of Article 83(2) TFEU given that Regulation 1/2003 had been adopted on the basis of Article 83 EC (now 103 TFEU) which only provides for the consultation procedure. In order to respect the democratic principle, the Union therefore needs to adopt two directives in order to enact criminal law legislation on the basis of Article 83(2) TFEU.

Is it 'Essential' to Imprison Insider Dealers to Enforce Insider Dealing Laws?

Drawing on general criminological research and literature on enforcement, this article comprehensively examines whether it is “essential” to employ imprisonment sanctions in the enforcement of market abuse regulations. The article takes an evidence-based and comparative approach to the question of sanctions and compares the effectiveness of criminal laws with other types of sanctions. It is envisaged that imprisonment sanctions should not be employed to sanction violations of insider dealing laws unless two conditions are fulfilled. First, it must be established that imprisonment sanctions are “effective” for the implementation of insider dealing laws. Secondly, it must be demonstrated that other alternative sanctions are not equally effective as custodial sanctions in the enforcement of insider dealing laws. Because of the expressive function of imprisonment sanctions and because insider dealers generally are rational calculators, it is submitted that imprisonment does have a deterrent effect and is therefore an effective sanction. Furthermore, because of the failure of alternative sanctions such as civil liability, fines and disqualification orders to express sufficiently strong moral condemnation and therefore deter insider dealing, imprisonment is argued to be “essential” for the enforcement of insider dealing laws.

EU Criminal Law, Democratic Legitimacy and Judicial Review of Union Criminal Law Legislation in the Wake of the Lisbon Treaty

EU criminal law is a controversial area of Union law. It is quite clear that the founding fathers of the Rome Treaty conceived the Union to primarily constitute an economic space where Member States originally had no intention to transfer their sovereignty in the field of criminal law. Despite this, it is clear that the Union subsequent to the Lisbon Treaty have gained a specific competence to legislate in criminal matters. There are however constraints as to how this power should be exercised. The constraints primarily concern the Union’s struggle to overcome Member States’ strong sovereignty claims and a perceived lack of legitimacy on the part of the Union in the field of criminal law.In terms of legitimacy, it appears that democratic participation by Union citizens is not self-evident in the shaping of the Union’s criminal policy. It is therefore essential to analyse how the Union legislator can legitimately exercise a criminal law power if the citizens of the Union do not participate in the legislative procedure. Further, do Union law and the constitutional traditions of the Member States recognise the existence of a democratic principle implying that the European Parliament shall be involved in the adoption of Union criminal law legislation? And, if so, can the democratic principle constitute a ground for judicial review of Union criminal law legislation?

Criminal Sanctions in the Field of EU Environmental Law

The core aim of this Article is to analyse whether it was an appropriate decision from a criminal policy perspective to adopt the Environmental Crime Directive. The Article asks the basic question whether the Union should enforce Union environmental law by means of criminal sanctions. In this regard it is claimed that, according to the principle of ultima ratio, the Union legislator may only require that an act is criminalised if it is necessary to protect a fundamental European interest, and only on the condition that all other measures have proved insufficient to safeguard that interest. The Article therefore examines whether criminal law measures is suitable for the enforcement of Union environmental rules and secondly if there are other measures which are equally effective in enforcing Union environmental law as criminal sanctions.

The Rise of the Procedural Paradigm: Judicial Review of EU Legislation in Vertical Competence Disputes

The Court of Justice’s role in controlling the exercise of Union legislative powers is a longstanding topic in EU legal scholarship. Observers have criticised the Court’s accommodating approach to the EU legislator’s broad interpretation of its powers and contended that the Court cannot be trusted to enforce the distribution of competences between the Union and the Member States (the ‘federal dimension’). Other commentators have emphasised that the Court’s limited legitimacy and expertise make it institutionally ill-equipped to engage in proper substantive judicial review of EU legislation. On the basis of such analyses, this article makes a proposal on how competence review of EU legislation could be improved. The article rejects substantive review and argues, on the basis of the Court of Justice’s judgments in Spain v Council and Kadi II, for an intense form of procedural review in the form of a standard of ‘adequate’ reasoning’ and ‘relevant evidence’. Such a standard strikes an appropriate balance between safeguarding the political prerogatives of the EU political institutions and the Court’s task of ensuring proper judicial safeguards of federalism.

Do We Really Need Criminal Sanctions for the Enforcement of EU Law

This article examines how the ‘essentiality’ requirement can limit the exercise of the EUs criminal law competence under Article 83(2) TFEU. Building on criminological research, and contextual and principled considerations, it argues for an evidence-based approach to the ‘essentiality’ criterion. It sustains that the Union legislator must show by empirical proof that criminal laws are more ‘effective’ than non-criminal sanctions in the implementation of a specific EU policy. The article proposes that judicial enforcement is a key mechanism for implementing the ‘essentiality’ criterion. On the basis of the Courts rulings in Kadi II and Tetra Laval a strict procedural test for review of criminal law legislation is suggested. It entails that the EU legislator must show that the justification for exercising the EUs criminal law competence is substantiated by relevant evidence. Because criminal penalties entail severe consequences for individuals and potentially breach their fundamental freedoms such a stringent test is justified.

The Definition of Criminal Sanctions in the EU

This Article reviews how we should define criminal sanctions in EU law. The debate on the proper meaning of ‘criminal sanctions’ has in the first place received strong impetus in EU law, due to the newly gained competences of the Union in criminal law after the ratification of the Lisbon Treaty. The second reason for the fuelling of a debate on the meaning of criminal sanctions is related to the EU’s envisaged accession to the European Convention of Human Rights (ECHR). It is obvious that the EU would need to adopt such procedural safeguards to conform to Article 6 of the Convention when they impose a sanction that can be properly defined as a criminal charge within the meaning of said provision. The article first analyse and clarify the distinction between the concept of criminal sanctions for the purposes of procedural guarantees and the concept of criminal sanctions for the purposes of EU competence in Article 83(2) TFEU. In the second place, the article develops a proper concept of criminal sanctions that can be applied both to determine the Union’s competence under Article 83(2) TFEU and also a definition that can be employed more generally to determine, for example, whether Member States indeed have complied with their obligations under EU law directives.