Do we really need criminal sanctions for the enforcement of EU law?
(2014) In New Journal of European Criminal Law 5(3). p.370-387- Abstract
- This article examines how the ‘essentiality’ requirement can limit the exercise of the EU’s 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 Court’s rulings in Kadi II and Tetra Laval a strict procedural test for review of criminal law legislation is suggested. It entails... (More)
- This article examines how the ‘essentiality’ requirement can limit the exercise of the EU’s 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 Court’s 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 EU’s 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. (Less)
Please use this url to cite or link to this publication:
https://lup.lub.lu.se/record/9e00b4b4-2d7b-4039-aa6e-1d6bde101991
- author
- Öberg, Jacob LU
- organization
- publishing date
- 2014-08-15
- type
- Contribution to journal
- publication status
- published
- subject
- in
- New Journal of European Criminal Law
- volume
- 5
- issue
- 3
- pages
- 18 pages
- publisher
- SAGE Publications
- external identifiers
-
- scopus:85024857022
- ISSN
- 2032-2844
- language
- English
- LU publication?
- yes
- id
- 9e00b4b4-2d7b-4039-aa6e-1d6bde101991
- date added to LUP
- 2018-09-05 11:33:29
- date last changed
- 2023-06-26 06:36:38
@article{9e00b4b4-2d7b-4039-aa6e-1d6bde101991,
abstract = {{This article examines how the ‘essentiality’ requirement can limit the exercise of the EU’s 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 Court’s 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 EU’s 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.}},
author = {{Öberg, Jacob}},
issn = {{2032-2844}},
language = {{eng}},
month = {{08}},
number = {{3}},
pages = {{370--387}},
publisher = {{SAGE Publications}},
series = {{New Journal of European Criminal Law}},
title = {{Do we really need criminal sanctions for the enforcement of EU law?}},
volume = {{5}},
year = {{2014}},
}