Principles of EU criminalisation and their varied normative strength: Harm and effectiveness

Abstract

AbstractThe increasing legislative activity of the Union in the field of criminal law highlights the need for a normative justification of EU action in this area. The article first examines and compares the existing EU legislative grounds for criminalisation, coupled with EU criminal policy orientations, with the well‐established criminalisation grounds recognised in criminalisation theory in order to distil what the underlying substantive criminalisation principles behind EU criminal law may be. This article then scrutinises ‘effectiveness’ as the potential normative principle of EU criminalisation. It is submitted that, within EU criminal law and policy, effectiveness has become a sort of ‘hybrid criminalisation principle’, joining pragmatic with seemingly normative criminalisation‐legitimising considerations. However, the article argues that effectiveness should remain primarily conceptualised as a pragmatic criminalisation consideration, not as a normative substantive criminalisation principle that acts as the first and most important criminalisation criterion determining the content of what may be criminalised.