Legal Diversity, Subsidiarity and Harmonization of EU Regulatory Criminal Law

This chapter constructs an argument as to how legal differences should be addressed in the development of EU criminal policy. More particularly, it considers whether the internal market justification for harmonization of EU criminal law under Article 83 (2) TFEU is defensible. If legal diversity and subsidiarity are taken seriously there must be some limit to criminal law harmonization arguments founded on the need to remove distortion to competition. The internal market justification is challenged on two grounds. First, existing empirical socio-legal research on the nature of cultural differences is used to found an ideological argument for protecting legal diversity in EU criminal law and resisting excessive harmonization of national criminal laws. The greater competence and legitimacy of Member States puts them in a better position to decide what behaviour should be criminalized. Secondly, there are functional and legal grounds based on subsidiarity for challenging EU harmonization. The Edinburgh Guidelines, the Court of Justice’s ruling in Tobacco Advertising on the scope of EU powers and empirical research on the effects of regulations all suggest that the EU can only harmonise national criminal laws where it shows that this will make, in comparison to Member State action, a ‘significant’ contribution in correcting ‘market failures