The constitutional dimension of European criminal law /
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| Author / Creator: | Herlin-Karnell, Ester. |
|---|---|
| Imprint: | Oxford ; Portland, Or. : Hart Pub., 2012. |
| Description: | xxi, 261 p. ; 25 cm. |
| Language: | English |
| Series: | Modern studies in European law ; v. 30 Modern studies in European law ; v. 30. |
| Subject: | |
| Format: | Print Book |
| URL for this record: | http://pi.lib.uchicago.edu/1001/cat/bib/8850535 |
Table of Contents:
- Preface and Acknowledgements
- Table of Cases
- Table of Treaties, Conventions and other Legislative Instruments
- 1. Introduction
- I. Introduction
- II. Brief Comment on the History of EU Criminal Law
- III. Structure of the Book
- A. Effectiveness as Enforcement
- B. Constitutional Effectiveness
- C. The Development of EU Precautionary Criminalisation and the Fight against Money Laundering
- D. The Libson Treaty and Criminal Law: Old Problems and New Challenges
- IV. Final Remarks
- 2. The Journey of Criminal Law in the EU
- I. Introduction
- II. What is at Stake?
- A. The Framework of EU Criminal Law prior to the Lisbon Treaty
- B. The Search for Effective Sanctions
- i. Positive Effect
- ii. Negative Effect
- iii. The Principle of Legality
- iv. Legality: The Fundamentals
- III. The Historic Third Pillar Web and the Concept of Mutual Recognition
- A. Pupino and the Quest for 'Depillarisation'/Effectiveness
- B. Advocaten voor de Wereld and the EAW
- C. Dell'Orto and the Wider Constitutional Question
- IV. Supranational Criminal Law
- A. Effectiveness Revised: Commission v Council
- B. The Commission's Communication
- C. The Ship Source Pollution Ruling
- D. The Failed Attempt to Transfer the Third Pillar via a Bridging Clause
- E. The Changes brought by the Lisbon Treaty: Introduction
- i. Article 82 TFEU: Procedural Criminal Law
- ii. Article 83 TFEU: Substantive Criminal Law
- iii. Enhanced Cooperation and Emergency Brakes
- F. Extended Jurisdiction
- G. The Stockholm Programme
- H. The ECHR and the Legally Binding Status of the Charter of Fundamental Rights: Comment
- I. Criminal Law and the Autonomous European Legal Order
- V. Conclusion
- 3. Chasing (Traditional) Effectiveness
- I. Introduction
- II. The Principle of Effectiveness
- A. The Concept of Effective Enforcement
- B. What is EU Effectiveness?
- C. The Fundamentals of Enforcement
- i. Short Comment on Non-discrimination and Uniformity
- ii. The Enforcement Debate
- III. Effective Enforcement outside the EU's Traditional Borders
- A. The Renaissance of the 'Implementation Imbalance' in EU Law
- IV. Effectiveness as a General Principle of Criminal Law
- A. The Ultimate Legal Threat - Is it Effective?
- B. Effectiveness in the Context of Case C-176/03
- V. Conclusion
- 4. Constitutional Effectiveness: An Exegesis
- I. Introduction
- A. The Effectiveness Criteria, Article 83(2) TFEU: No Limits to Criminalisation?
- II. Conferred Powers and the Objectives of the EU
- A. Introduction
- B. How it all Began
- i. Are Effect Utile and 'Effectiveness' the Same Concept?
- ii. And 'Necessity'?
- C. Article 352 TFEU - How Flexible is 'Flexibility'?
- D. 'Effectiveness' and the History of the acquis communautaire
- i. The Curious Case of ex Article 47 TEU
- ii. The Objectives of the EU and Pre-emption
- E. The New Article 40 TEU
- i. Centre of Gravity Post Lisbon
- ii. Articles 67 and 75 TFEU: Setting the Scene of Crime Prevention in the EU
- iii. (In)Security as the New Acquis Communautaire?
- F. The Final Word goes to Article 13 TEU: Institutional Balance and the Effectiveness of EU Law
- G. Conclusion
- III. Criminal Law and Market Integration
- A. Introduction
- B. The Establishment and Functioning of the Internal Market
- C. The Market Concept: Obstacles to Trade and Distortion of Competition
- D. Disparities between Laws of Member States as Obstacles
- E. Obstacles and Market Access
- F. Preventive Market Creation
- G. Distortion of (Appreciable) Competition
- H. Normative Concerns or Why Article 114 TFEU is Difficult to Reconcile with the Attribution of Powers Axiom
- i. Centre of Gravity and Article 114 TFEU
- ii. Article 114 TFEU in Relation to ex Article 47 EU
- iii. Non-market Values as Reasons for Harmonisation
- I. Confidence in the Market is as Slippery as Effectiveness
- J. Conclusion
- IV. Subsidiarity and Proportionality
- A. Introduction
- B. Subsidiarity and Proportionality: The Basics
- i. The Classic Effectiveness Criteria
- ii. The Concept of Subsidiarity Proper
- iii. Why Subsidiarity?
- iv. National Identity as the New 'Safeguard Clause'
- C. The Concept of Proportionality
- i. The Court and Proportionality
- D. Will the National Parliaments do the Trick?
- E. Subsidiarity and Proportionality in EU Criminal Law
- i. The ultima ratio of Criminal Law and the Principle of Subsidiarity
- ii. Subsidiarity and EU Criminal Law: The Paradoxes of Efficiency and Legitimacy
- iii. The Impact of Proportionality in EU Criminal Law
- iv. The Bigger Question of Balancing in the AFSJ
- v. Will the Participation of National Parliaments in Subsidiarity Monitoring increase Penal Populism?
- F. Conclusion
- V. Enhanced Cooperation and Loyalty
- A. Introduction
- B. The Concept of Enhanced Cooperation
- C. Emergency Brakes and Accelerators
- D. Loyalty, Yes but in What Direction?
- E. Conclusion
- VI. The Constitutional Debate In Brief
- A. Introduction
- B. On the Preservation of Broad Competence Provisions
- C. The Beginning of de lege feranda
- D. Conclusion
- VII. General Conclusion
- 5. Case Study I: EU Financial Crimes
- I. Introduction
- II. Money Laundering
- A. Introduction
- B. Tainted Money
- i. The History of Anti-money Laundering Legislation
- C. Directive 2005/60/EC
- i. Regulation No 1889/2005
- D. The Financing of Terrorism and the Link with Money Laundering
- i. Short Comment on the Former Third Pillar Dimension
- E. The Multifaceted Threat of Organised Crime and its Relationship with Money Laundering
- i. The Tangled Web of EU Anti-corruption Policy
- F. Why is 'Risk' Important in EU Anti-Money Laundering? Beyond Suspicious Reporting
- i. Risk-based Approach to Money Laundering and Terrorist Financing
- ii. What is Risk in EU Law?
- iii. Risk Assessment from an EU Criminal Law Perspective
- G. Risk as Security
- H. The Intersection of Risk, Security and Effectiveness: The Development of Precautionary Criminal Law at the EU Level
- i. Recent Initiatives: Final Test Case
- III. The Counterfeiting and Piracy Directive
- A. An Aspiration to Create EC Criminal Law prior to the Lisbon Treaty
- i. Criminal Liability for Legal Persons
- IV. The Confidence Path - Supranational Criminal Law
- A. Paternalism and Market Failure
- i. Protective Regulation, for Whom?
- V. Conclusion
- 6. Case Study II: What Happens in Practice? The Implementation of the Third Money Laundering Directive in the UK and Sweden
- I. Introduction
- II. The UK's Implementation of the EU Money Laundering Directives
- A. Introduction
- B. A Brief History of the EU's Anti-money laundering Rules in the UK
- C. The PoCA 2002
- D. The 2005 Directive and the UK
- i. The UK and a Risk-based Approach
- E. Gold Plating, Money Laundering and Suspicious Reporting
- F. The Ever-expanding Anti-terrorism Network in the UK
- i. Judicial Review
- G. Conclusion: the UK
- III. Sweden's Implementation of the Anti-money Laundering Directives
- A. Introduction
- B. The Swedish Legislature
- C. The Money Laundering Directives in Sweden
- i. The 1991 and 2001 Directives
- D. The 2005 Directive - Confidentiality and Swedish Law
- i. Corporate Criminal Liability, the Swedish Problem
- ii. Risk-based Approach
- E. Sweden and the Financing of Terrorism
- F. Brief Overview of Denmark and Finland
- G. Conclusion: Sweden
- IV. General Conclusion
- 7. The Lisbon Treaty: Anything New Under the Sun?
- I. Introduction
- II. The Emergency Brake - It Looks Safer
- A. A European Public Prosecutor?
- III. The Embryonic Concept of a 'General Part' of EU Criminal Law
- IV. The Court of Justice and Criminal Law
- A. Expedited Procedure
- B. Accession to the ECHR and the Legally Binding Status of the Character of Fundamental Rights
- V. Citizenship and Citizen Initiative
- VI. Conclusion
- 8. Conclusion
- I. Conclusion
- II. EU Supranational Criminal Law, the (Grand?) Finale
- Bibliography
- Other sources
- Web-links
- FATF Country reports:
- Index
