Faculty Journal Articles and Book Chapters


Over the last decade, the European Union has begun actively legislating in the area of criminal justice. The 2009 Treaty of Lisbon expressly acknowledged the EU’s authority to pass criminal laws with respect to certain serious offenses with a cross-border dimension. This explicit grant of powers is the culmination of a remarkable evolution in the European Union’s identity — from an organization devoted primarily to economic integration to a political union that increasingly resembles a federal state.

This Article argues that the EU has used its powers to criminalize not only to address practical needs, but also to reaffirm its core values and strengthen its political identity. An example of this phenomenon is the decision to harmonize definitions of racist and xenophobic crime across the Union. A review of the text and the drafting history of EU measures against racist and xenophobic crime suggests that they are best understood as a tool to express the Union’s commitment to human rights and equal treatment, rather than as a response to pressing practical needs.

The Union’s use of the criminal law for such purposes, while symbolically powerful, raises some questions about the limits to EU intervention in criminal justice. The Article discusses the difficulties with establishing a legal basis for EU intervention in criminal justice when no demonstrable transnational dimension is present. Policy considerations — respect for state sovereignty, deference to democratic decision-making, and a concern for the effective implementation of EU laws — also recommend a cautious approach to legislating in this field. Above all, the EU should actively engage national parliaments in decisions to expand its reach over criminal law. While this approach might reduce the frequency with of EU legislation, it could strengthen the legitimacy and effectiveness of EU criminal law and better serve the political goals to which Europe and its peoples aspire.

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American Journal of Comparative Law

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