EU Criminal Law, Democratic legitimacy and judicial review of Union criminal law legislation in the wake of the Lisbon Treaty

Abstract

EU criminal law is a controversial area of Union law. It is quite clear that the founding fathers of the Rome Treaty conceived the Union to primarily constitute an economic space where Member States originally had no intention to transfer their sovereignty in the field of criminal law. Despite this, it is clear that the Union subsequent to the Lisbon Treaty have gained a specific competence to legislate in criminal matters. There are however constraints as to how this power should be exercised. The constraints primarily concern the Union’s struggle to overcome Member States’ strong sovereignty claims and a perceived lack of legitimacy on the part of the Union in the field of criminal law. In terms of legitimacy, it appears that democratic participation by Union citizens is not self-evident in the shaping of the Union’s criminal policy. It is therefore essential to analyse how the Union legislator can legitimately exercise a criminal law power if the citizens of the Union do not participate in the legislative procedure. Further, do Union law and the constitutional traditions of the Member States recognise the existence of a democratic principle implying that the European Parliament shall be involved in the adoption of Union criminal law legislation? And, if so, can the democratic principle constitute a ground for judicial review of Union criminal law legislation?