Mitior lex in national and international case-law – (second-hand) fundamental principle of criminal law?

Abstract

Several recent rulings by the Court of Justice of the European Union, the Romanian Constitutional Court and the High Court of Cassation and Justice raise the issue of the supremacy/primacy of European Union law over national law, especially with regard to criminal or constitutional provisions in respect to mitior lex principle and its influence over criminal responsibility towards crimes against the financial interests of the European Union. The national courts supported the view that the legality and mitior lex principles constitute fundamental principles of constitutional law and also criminal law, barring, when applicable, prosecution irrespective of crime. However, the European Court ruled that limitation period has no connection whatsoever with these principles at EU level and as national standards, only the legality principle outweighs the effectiveness of criminal law measures in combating fraud against the financial interests of the European Union, while the mitior lex principle, despite being recognised as a fundamental principle stemming from the common traditions of Member States and also the Charter of Fundamental Rights of the European Union, falls short in comparison. In the following we will analyse the evolution of the problem, but also possible solutions.