Approximation of criminal sanctions in the European Union: A wild goose chase?

Abstract

The era when criminal law was solely a matter of national legislation is long gone. In the European Union, the approximation of substantive criminal norms and procedural rights has not escaped the attention of the European legislator. Inevitably, the move towards supranational criminal law has affected the field of sentencing and criminal sanctions. This paper seeks to discuss the changes that the development of EU criminal law brings on sentencing. The focus lies on the approximation of criminal sanctions within the EU, in an attempt to understand the scope and the added value of the EU’s approach in the field. First, the legal basis of article 83 TFEU is presented and analyzed, in order to define the limits of the Union’s competence in the field of sentencing. Subsequently, the approach of the European legislator when adopting minimum rules on the approximation of criminal sanctions is unravelled, and the relationship between functional approximation and mutual recognition is discussed. Finally, this paper concludes with some critical reflections upon the approximation of criminal sanctions in the EU, with an eye towards the future of Europe’s Area of Freedom, Security and Justice (AFSJ).