In this paper, I explore the connection between the notions of justice and justification in an European Union (EU) security-related context. I argue that a full comprehension of these notions enhances the legitimacy of the EU's 'Area of Freedom, Security and Justice' (AFSJ) project. However, we still need to go further when investigating justice's potential as a theoretical device for navigating the future of AFSJ law. This paper contends that we need to analyse justice in the AFSJ by starting from the position of security as domination. Only by doing so can we understand the capabilities of the EU for realising justice and freedom in a largely security-driven site. Marrying these abstract claims with the empirical reality of security regulation in contemporary European law helps to establish democratic credentials within the AFSJ and links the question of justice to that of justification and ultimately proportionality in AFSJ law.
The entry into force of the Lisbon Treaty has changed the framework and possibilities of the development of European Union (EU) criminal law. Gone is the long-lived and awkward cross-pillar character of EU criminal law, as mainly a third pillar EU ‘intergovernmental’ issue but also partly a first (EC) pillar question. The Lisbon Treaty marks a new era for the criminal law as it brings it within the core of the EU law project. Nevertheless, Article 10 of the transitional protocol as attached to the Lisbon Treaty stipulates a five-year transition period before former third pillar instruments will be treated in the same way as EU acts. This paper will focus on two issues in particular. The first question that will be addressed concerns what EU law principles drive or decide the EU's involvement in criminal law. After having identified these principles the second question is whether they should drive it and if so what implications will it have for the criminal law in the future.
The international arena is increasingly important in EU legal discourse. Using the word “global” is highly fashionable at present, but what does it mean to refer to this concept? It is not an exaggeration to claim that if “constitutionalism” is added to the picture you have a new catchphrase for understanding the EU legal architecture beyond the nation state and its interrelationship with the external sphere: “Global constitutionalism.” Much of the discussion on the normative dimension of EU powers is centered on the function of the EU as a promoter of values abroad. This is also what the Lisbon Treaty promises as set out in Article 3(5) and Article 21 in the Treaty of the European Union (TEU) by guaranteeing, inter alia, that the EU shall uphold its values in the relationship with the wider world and contribute to the protection of its citizens. As witnessed in the recent judgment on the validity of the EU's Emissions Trading System (ETS), the EU's values may sometimes spill over to the global level. In the ETS case, the Court of Justice set out to make a powerful statement on the importance of environmental protection, even when such concerns extend beyond the borders of Europe. Therefore, the question of global constitutionalism in the EU seems inextricably linked to the normative question of what values the EU should promote or conversely “borrow” from the outside world.
This paper discusses the current tendency in the EU to promote a criminal justice model focusing on prevention. In doing so, I examine the EU's internal security agenda with regard to criminal law and assess the extent to which this strategy fits the picture of an European Area of Freedom, Security and Justice placing equal value on freedom, security and justice. I also consider the external dimension to the EU's security program by examining the extent to which the EU benefits from the dual layer of security action provided for in the Treaty on the Functioning of the European Union and the Treaty of the European Union, or whether such double action creates unnecessary complexity. I contrast the current aspirations for more security and prevention in EU criminal law with the Commission's recent communication on the effective implementation of EU policies through criminal law. This communication stresses the importance of ensuring coherence in EU criminal law, while also respecting national diversity and serving the citizens. In addition, I discuss the extent to which the EU's promotion of preventive criminal justice risks turning the EU into a disintegrator instead of an agent of European values (depending on what these values are intended to mean in practice).
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