EU’s Harmonization of National Criminal Law: Between Punitiveness and Moderation

Abstract:

At a time when the Treaty of Lisbon has expanded and reinforced EU’s competence to harmonize national criminal law, this article aims to shed further light on the past and future influence of harmonization measures upon national criminal law. It argues that although EU’s harmonization of substantive criminal law is leading to more formal criminalization at national level (more ‘law in the books’) there are moderating elements which increasingly nuance the repressive emphasis of these measures. The article first examines framework decisions and directives aiming at harmonizing national substantive criminal law and suggests that these measures are leading to a more severe criminal law at national level. It then turns to discuss these findings in light of three main questions: why is this expansion in criminal law taking place, whether this increase in formal criminalization necessarily leads to more punishment, and whether there are alternative effects that can be derived from EU’s harmonization.