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Legal Diversity, Subsidiarity and Harmonization of EU Regulatory Criminal Law

Öberg, Jacob LU (2016) p.106-124
Abstract
This chapter constructs an argument as to how legal differences should be addressed in the development of EU criminal policy. More particularly, it considers whether the internal market justification for harmonization of EU criminal law under Article 83 (2) TFEU is defensible. If legal diversity and subsidiarity are taken seriously there must be some limit to criminal law harmonization arguments founded on the need to remove distortion to competition. The internal market justification is challenged on two grounds. First, existing empirical socio-legal research on the nature of cultural differences is used to found an ideological argument for protecting legal diversity in EU criminal law and resisting excessive harmonization of national... (More)
This chapter constructs an argument as to how legal differences should be addressed in the development of EU criminal policy. More particularly, it considers whether the internal market justification for harmonization of EU criminal law under Article 83 (2) TFEU is defensible. If legal diversity and subsidiarity are taken seriously there must be some limit to criminal law harmonization arguments founded on the need to remove distortion to competition. The internal market justification is challenged on two grounds. First, existing empirical socio-legal research on the nature of cultural differences is used to found an ideological argument for protecting legal diversity in EU criminal law and resisting excessive harmonization of national criminal laws. The greater competence and legitimacy of Member States puts them in a better position to decide what behaviour should be criminalized. Secondly, there are functional and legal grounds based on subsidiarity for challenging EU harmonization. The Edinburgh Guidelines, the Court of Justice’s ruling in Tobacco Advertising on the scope of EU powers and empirical research on the effects of regulations all suggest that the EU can only harmonise national criminal laws where it shows that this will make, in comparison to Member State action, a ‘significant’ contribution in correcting ‘market failures (Less)
Please use this url to cite or link to this publication:
author
organization
publishing date
type
Chapter in Book/Report/Conference proceeding
publication status
published
subject
host publication
EU Criminal Justice and the Challenges of Diversity : Legal Cultures in the Area of Freedom, Security and Justice - Legal Cultures in the Area of Freedom, Security and Justice
editor
Field, Stewart and Colson, Renaud
pages
19 pages
publisher
Cambridge University Press
ISBN
9781107480247
9781316156315
language
English
LU publication?
yes
id
bb0f69ac-45a8-46a5-8171-44e5aa418c5a
date added to LUP
2018-09-05 11:16:38
date last changed
2022-02-24 09:54:42
@inbook{bb0f69ac-45a8-46a5-8171-44e5aa418c5a,
  abstract     = {{This chapter constructs an argument as to how legal differences should be addressed in the development of EU criminal policy. More particularly, it considers whether the internal market justification for harmonization of EU criminal law under Article 83 (2) TFEU is defensible. If legal diversity and subsidiarity are taken seriously there must be some limit to criminal law harmonization arguments founded on the need to remove distortion to competition. The internal market justification is challenged on two grounds. First, existing empirical socio-legal research on the nature of cultural differences is used to found an ideological argument for protecting legal diversity in EU criminal law and resisting excessive harmonization of national criminal laws. The greater competence and legitimacy of Member States puts them in a better position to decide what behaviour should be criminalized. Secondly, there are functional and legal grounds based on subsidiarity for challenging EU harmonization. The Edinburgh Guidelines, the Court of Justice’s ruling in Tobacco Advertising on the scope of EU powers and empirical research on the effects of regulations all suggest that the EU can only harmonise national criminal laws where it shows that this will make, in comparison to Member State action, a ‘significant’ contribution in correcting ‘market failures}},
  author       = {{Öberg, Jacob}},
  booktitle    = {{EU Criminal Justice and the Challenges of Diversity : Legal Cultures in the Area of Freedom, Security and Justice}},
  editor       = {{Field, Stewart and Colson, Renaud}},
  isbn         = {{9781107480247}},
  language     = {{eng}},
  month        = {{09}},
  pages        = {{106--124}},
  publisher    = {{Cambridge University Press}},
  title        = {{Legal Diversity, Subsidiarity and Harmonization of EU Regulatory Criminal Law}},
  year         = {{2016}},
}