EU Criminal Law and Its Legitimation: In Search for a Substantive Principle of Criminalisation

Abstract

The increasing legislative activity in the field of eu criminal law has highlighted the need for a coherent and consistent approach to criminalisation, which has been acknowledged by the eu institutions themselves. One of the basic questions all legislators need to tackle, however, is what sorts of conduct can be (legitimately) criminalised. The aim of this article is, firstly, to examine the prevailing substantive criminalisation principle(s) in the eu Member States’ criminal law theories; secondly, to sketch an ideal criminalisation process, which although applicable at national level can be useful also at eu level, and thirdly, to inspect the existing criminal law grounds for criminalisation and the criminal policy orientations at eu level in order to find out what the underlying substantive criminalisation principle behind eu criminal law is or ought to be, alongside other principles that may act as ‘limiting factors’ within the criminalisation process.