The Question of 'Communautaire' Reasoning in the Third Pillar - The Judgment in Segi and Beyond

Abstract

The aim of the present analysis is to explain why the notion of EU criminal law cannot simply be regarded as a Community policy among others. In doing so, this paper seeks to examine critically the principle of fidelity as the motor of the Union's cross-pillar integration path by focussing on the judgment of Segi as the starting point. More specifically, this contribution asks whether it is wise to extend such a loyalty principle into to the murky landscape of the third pillar in general. Moreover, this paper intends to confront (and recall) the famous EC effective enforcement discourse in the context of the third pillar and argues that one cannot envisage clear cut use of this enforcement doctrine outside its traditional setting, at least not without also paying attention to the accompanying theory of the `implementation imbalance' and the difficulties inherent in negative integration. This is why `loyalty creep' in EU criminal law as the Treaties currently stand is alarming and deserves to be not only discussed, but also scrutinized extensively.