Criminalisation as a Last Resort: A National Principle under the Pressure of Europeanisation?

Abstract

In the Netherlands, as well as in several other European countries, the last resort principle has long been considered to be a fundamental guideline in determining the scope of substantive criminal law. In the context of criminalisation of conduct, it requires the national legislator to take the path of criminalisation only as a last resort, and to consider alternatives to criminal law measures. Today, the criminalisation of conduct is no longer automatically the outcome of national law-making, but is increasingly imposed by the international and European legislator. This raises the question whether or not national principles on criminalisation are in harmony with the criminalising of conduct at the transnational level. This paper focuses on the influence of EU criminal law and Strasbourg case law.