Subsidiarity, Proportionality and the Legitimacy of EU Criminal Law

This presentation discusses the impact of EU harmonisation of substantive criminal law, and notably of crimes’ definitions on individuals’ fundamental rights. In particular it argues that the EU enjoys de facto criminalisation powers and that as a result of EU law individuals’ liberty and dignity can be compressed. It further argues that this raises a question of legitimacy of criminal law, and it make a case for a normative approach to the matter, namely to the inclusion of values-based considerations in the decision on whether to resort to harmonisation of criminal law, next to effectiveness one. Finally, it tests whether either subsidiarity or proportionality represent an adequate EU constitutional law framework where to incorporate such values-based judgement.