Evaluation and European Criminal Law: The Evaluation Model of the Commission

Abstract

The work of legislative evaluation developed by the Commission has, quite rightly, been subjected to significant criticism. In particular, objections have targeted the incongruency between the proposed evaluation criteria and the evaluation that is in fact performed, as well as evaluative imprecision and excessive formalism that is, quite frequently, limited to ensuring that the same words that appear in the European regulation in question have been introduced into the national criminal legislation, among other aspects. In view of this situation, this author seeks to show how the principles of proportionality and legality, in so far as they are common elements in the different European criminal legal orders, serve as common evaluation criteria. In relation to the principle of proportionality, the need to develop evaluation criteria is particularly urgent, given the extreme harshness of criminal Law drafted by the European criminal legislator. In view of the tendency to establish factual situation and legal consequence in an intuitive manner, a model is suggested that distinguishes between normative weight, degree of intervention/affectation, and the empirical basis of the factual situation and its legal consequence, following Robert Alexy’s weight formula. The purpose is to favor better equilibrium between one factor and another in the norm. In relation to the principle of legality, a model is suggested that allows continuous evaluation over time, following what has very recently been advanced by the Commission. In concrete, the proposed model allows control over the degree of certainty of European criminal laws, based on the distinction, coined by Philipp Heck, between core meaning and field of meaning, through control and evaluation of the semantic norms that the courts propose in their application. Along this same line, the advisability is underlined of considering, together with the precision of the semantic norms of the legal concepts, the degree of certainty permitted by the empirical confirmation of the objects referred to in those concepts. In this way, a dual model is formed that responds both to the degree of precision of the semantic norms and the empirical certainty of the object to which they refer, in the judgment of evaluation.