Testing the Principle of Subsidiarity in EU Criminal Policy: The Omitted Exercise in the Recent EU Documents on Principles for Substantive European Criminal Law

Abstract

In their recent European criminal policy documents, the Institutions have highlighted the relevance of subsidiarity for European criminal law. In this paper we demonstrate that such principle, in its current institutional understanding, cannot adequately address issues related to the distribution of criminalisation powers between the EU and the Member States. Article 5(3) TEU describes subsidiarity as an efficiency based-criterion aimed at tackling technical competence-exercise issues (instrumental subsidiarity). Such a restricted perspective is not desirable for the penal field. As a matter of fact, when shifting criminal issues up to the Brussels agenda, aspects related to democracy, legitimacy, internal coherence of the criminal law system, and risks of hyper-repressive developments must also be considered along with efficiency concerns. Moreover, such interpretation cuts off from the discussion all normative competence-attribution issues (substantive subsidiarity), which are raised by the most relevant criminal law provisions, such as Article 83(1) TFEU and Article 83(2) TFEU.