According to distinguished literature, not only democratic legitimacy but also subsidiarity is a quality of criminal law strictly related to the principle of legality, and namely to the corollary of nullum crimen sine lege parlamentaria as implemented in most EU member States. After the entry into force of the Treaty of Lisbon, the doctrine displays growing concerns that both of the qualities mentioned might be jeopardized in parallel with the transfer of criminal law competence from national legislators to the European Union, the legal system of which does not comply with the aforementioned corollary. The author disputes these concerns from a two-fold perspective: on the one hand, they seem to overestimate the capacity of national law-making procedures to respect, not just in theory but also in practice, the principles of the legality and subsidiarity of criminal law; on the other hand, they undervalue the aptitude of the EU institutional framework and legislative procedure, especially after the changes brought about by the Treaty of Lisbon, to adequately implement the same principles. Accordingly, the possibility that the democratic and subsidiary standards of EU criminal law might, on occasion, be higher than the corresponding standards of purely national criminal law should not be excluded.
The 'Qualities' of Criminal Law - Connected to National and European Law-making Procedures
GRANDI, Ciro
2011
Abstract
According to distinguished literature, not only democratic legitimacy but also subsidiarity is a quality of criminal law strictly related to the principle of legality, and namely to the corollary of nullum crimen sine lege parlamentaria as implemented in most EU member States. After the entry into force of the Treaty of Lisbon, the doctrine displays growing concerns that both of the qualities mentioned might be jeopardized in parallel with the transfer of criminal law competence from national legislators to the European Union, the legal system of which does not comply with the aforementioned corollary. The author disputes these concerns from a two-fold perspective: on the one hand, they seem to overestimate the capacity of national law-making procedures to respect, not just in theory but also in practice, the principles of the legality and subsidiarity of criminal law; on the other hand, they undervalue the aptitude of the EU institutional framework and legislative procedure, especially after the changes brought about by the Treaty of Lisbon, to adequately implement the same principles. Accordingly, the possibility that the democratic and subsidiary standards of EU criminal law might, on occasion, be higher than the corresponding standards of purely national criminal law should not be excluded.I documenti in SFERA sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
