The ‘battle of the pillars’: does the European Community have the power to approximate national criminal laws?

Abstract:

This article shows that criminal law is not, as is often assumed, a matter that falls exclusively within the realm of the "third pillar" (Title VI "Police and Judicial Co-operation in Criminal Matters" of the Treaty on European Union), thereby being excluded from the scope of Community law. It argues that the Community legislator's powers under the Treaty establishing the European Community can encompass, to a limited extent, certain criminal law measures, if these are necessary to achieve a Community objective, and that these powers have precedence over the third pillar. Recent legal disputes between the institutions such as Case C-176/03 Commission v. Council, which illustrates the "battle of the pillars" for competencies to harmonise/approximate national criminal laws, have emphasised the importance of this question and the urgent need for a clear-cut answer.