مشروعیت حقوق کیفری اتحادیه اروپا (مطالعات هارت در حقوق کیفری اروپا)

This book traces the history of the EU competence, EU policy discourse and EU legislation in the field of criminalisation from Maastricht until the present day. It asks ‘Why EU Criminal Law?’ looking at what rationales the Treaty, policy documents and legislation put forth when deciding whether a certain behaviour should be a criminal offence. To interpret the EU approach to criminalisation, it relies on both modern and post-modern theoretical frameworks on the legitimacy of criminal law, read jointly with the theories on the functions of EU harmonisation of national law. The book demonstrates that while EU constitutional law leans towards an effectiveness-based, enforcement-driven, understanding of criminal law, the EU has in fact in more than one instance adopted symbolic EU criminal law, ie criminal law aimed at highlighting what values are important to the EU, but which is not fit to actually deter individuals from harming such values. The book then questions whether this approach is consistent or in contradiction with the values-based constitutional identity the EU has set for itself. Volume 10 in the series Hart Studies in European Criminal Law Acknowledgements 8 Contents 10 Table of Cases 16 Table of Legislation 20 Introduction 28 I. The Emerging Debate on the Legitimacy of EU Criminal Law 31 II. How to Theorise on the Legitimacy of EU Criminal Law 32 III. The Practical Importance of (EU Criminal Law) Theory 40 IV. The Broader Reach of the Discussion on the Legitimacy of EU Criminal Law 42 1. Why Criminal Law? The Question of, and Models for, the Legitimacy of Criminal Law 48 I. Why is Criminal Law Special? A Consequence-Based Approach 49 II. The Need to Legitimate Criminalisation Choices 55 III. A (Liberal) Deontological Approach to the Legitimacy of Criminal Law 57 IV. A (Liberal) Utilitarian Approach to the Legitimacy of Criminal Law 60 V. A Joint Deontological-Utilitarian Approach to the Legitimacy of Criminal Law? 62 VI. The Doctrinal Character of the Debate on the Legitimacy of Criminal Law 67 VII. Conclusions 70 2. Why EU Criminal Law? The Question of, and the Models for, the Legitimacy of Supranational Criminal Law 71 I. Is the Debate on the Legitimacy of Criminal Law Relevant to the EU Legal Order? 72 II. What Do EU Constitutional Values and Principles Tell Us about the Legitimacy of EU Criminal Law? 89 III. Conclusions 101 3. Rationales for the Harmonisation and Legitimacy of EU Criminal Law 103 I. A Definition of Harmonisation as a Legal Process 103 II. Does Harmonisation Have an Inherent, Values-Based Dimension? 105 III. Harmonisation of National Criminal Law within the EU Legal Order 109 IV. The ‘Values-Based’ Criminalisation Rationale for Harmonisation: Deontological EU Criminal Law 111 V. The ‘Justice’, ‘Free Movement’ and ‘Cooperation’ Rationales for Harmonisation: Utilitarian EU Criminal Law 112 VI. The Socialising Rationale for Harmonisation: Utilitarian EU Criminal Law 118 VII. The ‘Regulatory’ Rationale for Harmonisation: Utilitarian EU Criminal Law 119 VIII. Conclusions 120 4. EU Competences on Securitised Criminalisation: From a Utilitarian to an Integrated Approach to EU Criminal Law 122 I. EU Criminalisation Competences: Securitised v Functional Criminalisation 123 II. A Utilitarian Legitimacy for EU Criminal Law under the Maastricht and Amsterdam Third Pillar 125 III. Integrated Legitimacy for EU Criminal Law under the Treaty of Lisbon 133 IV. Conclusions 146 5. EU Competences on Functional Criminalisation: The Route to Utilitarian EU Criminal Law 148 I. The Scope of EU Functional Criminalisation 149 II. The Early Case Law: Sanctioning Obligations and an Integrated Approach to Criminal Law 150 III. The Case Law in the 2000s: Criminalisation Obligations and an Integrated Approach to EU Criminal Law 153 IV. The Treaty of Lisbon: The Final (Utilitarian) Word 162 V. Conclusions 166 6. From Tampere to Stockholm: The Path towards Integrated Legitimacy 168 I. The Utilitarian Approach to Criminal Law in Pre-Lisbon Justice and Home Affairs Programmes 169 II. The Integrated Approach in the 2009 Stockholm Justice and Home Affairs Programme 171 III. The Silence in the 2014 Justice and Home Affairs Strategic Guidelines 174 IV. The EU Criminalisation Policy Documents: The Core of the Discussion 175 V. The Shift from a Utilitarian to an Integrated Approach in Policy Documents 191 VI. Conclusions 194 7. Legitimating EU Criminal Law in Practice: The Case of Racism and Xenophobia, Market Abuse and PIF Crimes 195 I. The Patchwork Structure of EU Criminal Law and the Choice of Case Studies 196 II. The 2008 Framework Decision on Racism and Xenophobia: Symbolic EU Criminal Law under Amsterdam 199 III. The 2014 Market Abuse Directive: Symbolic EU Criminal Law under Lisbon? 208 IV. The 2017 PIF Directive: An Integrated Legitimacy for EU Criminal Law? 219 V. Conclusions 235 8. Conclusions 238 I. The Long-Standing Doctrinal Debate on the Legitimacy of Criminal Law 238 II. The Relevance and Legal Dimensions of the Debate on the Legitimacy of EU Criminal Law 239 III. The EU Constitutional Values and Principles and the Legitimacy of EU Criminal Law 240 IV. The Specifics of the EU Criminalisation Process 241 V. The Main Argument of the Book: Symbolic EU Criminal Law in a Bureaucratic Criminal Law Institutional Framework 242 VI. The Dangers of an Expansion of Non-legitimate EU Criminal Law 245 Bibliography 248 Index 262 Présentation de l'éditeur : "This book traces the history of the EU competence, EU policy discourse and EU legislation in the field of criminalisation from Maastricht until the present day. It asks 'Why EU Criminal Law?' looking at what rationales the Treaty, policy document and legislation put forth when deciding whether a certain behaviour should be a criminal offence. To interpret the EU approach to criminalisation, it relies on both modern and post-modern theoretical frameworks on the legitimacy of criminal law, read jointly with the theories on the functions of EU harmonisation of national law. The book demonstrates that while EU constitutional law leans towards an effectiveness-based, enforcement-driven, understanding of criminal law, the EU has in fact in more than one instance adopted symbolic EU criminal law, ie criminal law aimed at highlighting what values are important to the EU, but which is not fit to actually deter individuals from harming such values. The book then questions whether this approach is consistent or in contradiction with the values-based constitutional identity the EU has set for itself." "This book traces the history of the EU competence, EU policy discourse and EU legislation in the field of criminalisation from Maastricht until the present day. It asks 'Why EU Criminal Law?' looking at what rationales the Treaty, policy document and legislation put forth when deciding whether a certain behaviour should be a criminal offence. To interpret the EU approach to criminalisation, it relies on both modern and post-modern theoretical frameworks on the legitimacy of criminal law, read jointly with the theories on the functions of EU harmonisation of national law. The book demonstrates that while EU constitutional law leans towards an effectiveness-based, enforcement-driven, understanding of criminal law, the EU has in fact in more than one instance adopted symbolic EU criminal law, ie criminal law aimed at highlighting what values are important to the EU, but which is not fit to actually deter individuals from harming such values. The book then questions whether this approach is consistent or in contradiction with the values-based constitutional identity the EU has set for itself"-- Provided by publisher