The Legal Basis for EU Criminal Law Harmonisation: A Question of Federalism?
2018 (43) (3) European Law Review, 366-393
Posted: 11 Jul 2018
Date Written: June 20, 2018
Abstract
Article 83(2) TFEU, introduced by the Treaty of Lisbon, confers a power on the EU to harmonise Member States’ legislation to define criminal offences and criminal sanctions. Nonetheless, uncertainty persists as to whether this provision exhaustively determines the EU’s power to adopt criminal law to enforce its policies. The article outlines the core case for viewing art.83(2) TFEU as a lex specialis. It argues that the post-Lisbon constitutional design, alongside principled and teleological considerations, support a Member State centred approach for criminal law competence. This is particularly the case with regard to the adoption of harmonisation measures.
Keywords: Competence; Criminal Law; Criminal Procedure; EU Law; Fraud; Legal Basis; Lex Specialis Derogat Generali
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