European Union Fundamental Rights and Member States Action in EU Criminal Law

Abstract

This article tries to pin down the conditions under which Member States act within the scope of application of EU law when the Union has exercised its competence in the criminal ‘Area of Freedom, Security and Justice’. With the Treaty of Lisbon, Member States have transferred important powers to the EU in the field of judicial cooperation in criminal matters, which has become more supranational. One witnesses the emergence of a European criminal justice. In the meantime, EU fundamental rights have developed, in particular with the Charter of Fundamental Rights of the EU, which has become a clearer and binding source of law. EU fundamental rights have to be combined with multiple other sources of fundamental rights, both at international and national level. On one hand, the application of EU fundamental rights may provide a minimum protection of citizens in criminal justice, but on the other hand, it may also affect the powers of Member States to maintain high standards of protection. However, applying EU fundamental rights to Member States' actions is subject to the condition that Member States are acting within the scope of application of EU law. This article shows that there is no clear-cut criterion to establish when Member States are acting within the field of EU criminal law for the purpose of applying EU fundamental rights.