The Criminalisation Power of the European Union after Lisbon and the Principle of Democratic Legitimacy

Abstract

This article proposes to scrutinise the process of enacting substantive criminal law under the new competence of the Lisbon Treaty, namely under article 83 in light of the notion of legitimacy as endorsed by the principle of legality. The article focuses in a first part on the scope of the competence under article 83 TFEU and concludes that this criminal law competence is broad and still tainted by uncertainty. In a second part, the paper looks at the theoretical implementation of the competence regarding subsidiarity and proportionality tests and concludes that these principles seem to play as an insufficient safeguard. However proportionality could constitute an adequate safeguard to the use of criminal law competence if rearticulated to incorporate the principle of ‘ultima ratio’.