The present thesis dwells on the challenges, problems and perspectives of a (new) criminal law intervention model in the European Union, mostly based on the (possible) creation of a European Union Public Prosecutor’s Office.
Within the extent of this path and reflecting about the innovations and the shift in paradigm of modern criminal law, the author attempts to shed light on the ideas of a rupture with the current monopoly of the State over the exercise of criminal law jurisdiction and, the inoperability of state sovereignty as a means to substantiate the criminal law jurisdiction of the State in scrutinizing the legitimacy of the evolution of criminal law in the EU.
In the context of the State’s (and Member-State’s) ius puniendi, taking into consideration the (ample) effects of the principle of legality of criminal law intervention, with special regard to the exercise of its competencies by the Public Prosecutor’s Office and directly relating to the scope of actuation of the European Public Prosecutor’s Office, the content of this principle is analysed. On the one hand, taking into consideration the Portuguese legal-criminal framework and on the other hand, taking into consideration the “European perspective”. Particular attention is afforded to the re-reading of the material legality principle of the relation between the national criminal law legislator and the European criminal law legislator.
Based on the legality principle as the material actuation limit of the European Public Prosecutor’s Office, the problems and perspectives in the “EU’s criminal justice system” are analysed, reflecting upon the challenges of the construction of a free, safe and just space, and upon the (classical) principle of legality.
Special consideration is afforded to the reflection over the matter of the best form in which to define the scope of the material actuation of the European Public Prosecutor’s Office contemplated in article 86. º of the TFEU, in light of the principle of the legality of penal intervention. Specifically, in regards to combating the “infractions that are damaging to the financial interests of the Union”, it is understood that a formulation should be rendered of the legal types that these crimes befit within a regulation that is immediately effective in the Member-States. In fact, in these “European crimes” legal interests “belonging” to the European Union are at stake and these lack a supranational guardianship in the form of EU-defined clear and concise infractions. It is necessary to attain the maximum degree of approximation through unification, so that there exists an exercise of supranational penal law. Failing to do so comes under penalty of frustrating the principle of legality and of changing the “paradigm” of classical criminal law that is seen as a “criminal law”.
In what concerns “grave criminality with a trans-frontiers dimension” (n. º 4 of article 86 of the TFEU) the only viable path appears to be the one trodden in the scope of the development of the EU’s criminal code. Which is a model that is mostly predicated on cooperation and normative harmonization. Even so, we believe that the role of the Public Prosecutor’s Office could be essential to constructing a “fair and just Europe”.
Furthermore, we expound the viability and prospects of the existence of a “mixed” model for penal intervention in the EU for the criminality that protects “common values” whose nature is yet to be determined and not “own interests”. A model that combines elements of supranationality (the exercise of penal action for unified, legally defined, types of crimes) with a model of cooperation, Notwithstanding, it is important to reflect upon the existence of a “self-interest” of the Union
Given the preceding considerations, it is possible to conclude that there is a need to create a new (piecemeal) model for criminal intervention within the EU in regards to the guardianship of legal interests, fundamental interests of the EU, sc., “the Union’s financial interests”.
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Law School of University of Minho
Campus de Gualtar - Universidade do Minho, 4710 – 057 Braga
Campus de Gualta