Implied ancillary criminal law competence after Lisbon
Does the European Union have the competence to enact criminal law without relying on Article 83 of the Treaty on the Functioning of the European Union? An analysis of documents from the Convention on the Future of Europe suggests the provision was intended to be both strictly interpreted and exhaustive. However, the opposite is implied by the Commission's choice of legal basis for a directive on the protection of the financial interests of the Union proposed in 2012. Its original legal basis also implies that the Union could eventually establish directly applicable criminal law. The 2012 proposal has proven nearly as controversial as its 2001-2002 predecessors. Nevertheless, analogous post-Lisbon case law from the Court of Justice of the European Union further supports a broad implied ancillary criminal law competence. This will cause difficulties in some Member States. Several common objections can be identified from a close reading of the Bundesverfassungsgericht Lisbon judgment. The concerns of the German Federal Constitutional Court could be taken into account by the Court of Justice if it selects a more nuanced approach when applying the choice of legal basis rules within the field of EU criminal law.
The paper also links to two pending cases before the General Court, T-303/13 and T-395/13 which concern access to Council Legal Service opinions involved in the reserach.
Journal/Publisher: European Criminal Law Review, 3(2)
Publication type: Article
Number of pages/Page range: 194-219
Language/s (content): English
Date of publication: 01-11-13
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Full name Samuli MIETTINEN
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University/Institution University of Helsinki
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