Towards a Transnational Application of the Legality Principle in the EU’s Area of Freedom, Security and Justice?

Abstract

The Treaty of Lisbon formulates ambitious goals for the European Union. It holds that the EU shall offer its citizens an area of freedom, security and justice, in which the free movement of citizens is guaranteed in combination with appropriate measures with respect to crime control. This wording – which explicitly establishes a relationship between citizenship, free movement and a common area of justice – raises certain expectations. Still, the promotion of free movement also induces conflicts of jurisdiction. EU law further encourages those conflicts by obliging Member States to establish extraterritorial jurisdiction, in order to prevent negative conflicts of jurisdiction. These types of conflict easily harm the position of the EU citizen. This contribution analyses this problem in light of the legality principle, a cornerstone of every criminal law system, which is also included in the EU Charter of Fundamental Rights. Its central argument is that with the transfer of powers from the national to the European level and the increasing horizontal intertwinement of national criminal justice systems and the resulting intensified cooperation, it is also increasingly difficult to protect EU citizens against arbitrary investigation, prosecution, conviction and punishment in Europe’s area of freedom, security and justice. EU Charter rights therefore need to be interpreted in light of their new, transnational setting. This contribution concludes with a series of recommendations for a revised European framework for choice of forum in criminal matters.