Limits to EU Powers: A Case Study of EU Regulatory Criminal Law by Jacob Oberg (Hart Publishing 2017, ISBN 9781509903368) £64.99
By Christopher Harding
In these days of burgeoning specialist discussion and publication of what is now firmly embedded under the title ‘EU criminal law’, Jacob Oberg’s book stands out as a distinctive contribution to the debates, with some real potential to drive forward policy and law. Broadly speaking, this work presents a strategy for a project which is in some respects bold and inventive – the legal (and hence constitutional) testing of policies and legal measures of criminalisation. And here we are talking about criminalisation in a novel and different context, that of EU policy and law. It is also a response to the significant, but still unheralded and poorly appreciated entry of the EU into that domain. So there is a real need for outward looking and engaging accounts of a subject on which debate is still really confined to a small quarter.
In this respect, for instance, the public position of the present UK Government on the matter is symptomatic of the general level of awareness and engagement. In its ’future partnership paper’ on Security, law enforcement and criminal justice (2017), the British Government, while determinedly espousing disengagement from the EU (Brexit…), also argues for a continuing and robust engagement with the EU on these matters – a ‘deep and special partnership’ to sustain ‘deep, broad and dynamic cooperation’, without any mention of how EU criminal law might or might not fit within that scheme. That might be deliberate obfuscation, since the idea of EU criminal law would be the proverbial red flag to wave at the bull of British Eurosceptic opinion, ready to be outraged at the violation of that last bastion of national sovereignty represented by criminal law.
But for those, in the UK or elsewhere, who have some awareness and may have concerns about the ‘creep’ of EU competence, it is worth looking at Oberg’s book. There are some nice tips about how to control the rampant beast of EU-led criminalisation – if that is a matter of concern. But, then, perhaps after all it is only a matter of concern for academic commentators, specialist lawyers, and other ‘experts’, the like of Oberg.
The author, rightly enough, is motivated by the observation that EU competence in relation to some not insignificant crime matters is now firmly established, is poised to develop further, and so we should ask: who is able to monitor and indeed regulate this ‘creep’ of competence (‘creep’ is an appropriate term, suggesting a low profile and even obscure enhancement of legal powers)? The answer given here to that question is: perhaps the EU judiciary, and the Court of Justice serving to judge the constitutionality and legality of the exercise of competence, and in particular competence to criminalise. Conceptually and politically this is an exciting prospect, broaching the feasibility and justiciability of policies and measures of criminalisation. In short, if we are concerned about and wish to test the wisdom and legitimacy of EU-led criminalisation, can this be achieved via judicial review?
Oberg points out that the potential is there, although the prospect may be, at least for the present, pessimistic. He stresses the hurdles to overcome: a weak legal content in the main principles of legal control, and a strong telos of further EU integration in the EU legal order (conceptual weaknesses), and the fact that the Court of Justice is institutionally ill equipped to carry out substantive review, which may be more a matter of political, economic and empirical rather than legal analysis. Not surprisingly, therefore, there is a history of judicial deference to the integrationist project in the EU context. So, whatever exists in theory and on paper, it is likely to prove a tough call, and Oberg backs up that prediction from his analysis of some of the case law to date.
Nonetheless, he suggest a canny legal strategy – to exploit the potential of review on procedural grounds, which in legal terms could more feasibly raise convincing objections to either substantive or procedural developments. The framework for such a process of procedural judicial review is based first of all on the crucial criteria for EU legislative competence laid down in Article 5(1) TFEU – conferral, subsidiarity, and proportionality. Oberg actually confines his analysis largely to the first two of these criteria, since experience of judicial review to date suggests that ‘conferral and subsidiarity (are) meaningful heads of review, (but) the judgment on proportionality was more sceptical’ (p 44). But his analysis of conferral and subsidiarity is sufficient to show how the process might work. So, let us take the Article 83(2) TFEU competence (the ‘functional’ basis for EU criminalisation, what Oberg refers to as ‘regulatory criminal law’) as an example. First, in relation to conferral – there being a legal basis for taking action – the EU legislator would need to show, from what is laid down as the basis for taking action under Article 83(2), that the criminalising measure would be both essential and effective for achieving the policy objective, and part of a harmonising process. This could be done by demonstrating adequate reasoning, underpinned by sufficient and relevant evidence. These are matters which could, it is argued, be legally assessed through the judicial process. And then, in relation to subsidiarity, it would be determined whether it was essential to take action at the EU level – the transnational or supranational element could only be addressed there – and again that would have to be substantiated by adequate reasoning and sufficient and relevant evidence. Oberg then demonstrates how such criteria could be applied to some actual examples of legislative initiatives – for instance, the Environmental Crimes Directive, the Market Abuse Crimes Directive, the (at the time of writing the book) proposed ‘PIF’ Directive (i.e. on the fight against fraud to the Union’s financial interests by criminal law), which meanwhile has been adopted – and demonstrates how sometimes the legislative initiatives and proposals would have failed his proposed testing. In short, he shows how a convincing case for criminalisation would not have been made according to the terms of this more stringent process of procedural review.
At the very least this is an interesting strategy for an effective and meaningful process of legal and constitutional control, and one that appears to side-step the tricky problem of the feasibility of judging the substance of conferral, subsidiarity and proportionality. Surely enough, there is a real problem regarding the sufficiency of legal content, or to put it slightly differently, the ‘legal hollowness’ of those concepts as criteria for assessment. At a certain point, it seems that judgment about those matters must become political, economic and empirical, and then judges will defer to the assessment of policy-makers and legislators. As a legal strategy, Oberg’s argument would seem to possess some real political value.
The justification for this strategy of legal control is encapsulated in the following section of Oberg’s argument:
‘There is obviously a risk that courts, in identifying the procedural steps to be followed, might make value judgments similar to those expressed by substantive review courts. Procedural review, nonetheless, poses less of a challenge to democratic political theory and the principle of institutional balance than substantive review. To the extent that intense process-based review requires normative judgments, they are judgments about how it should be made rather than substitutions of the democratic legislator’s policy choices. The aim of this review is to refine rather than to frustrate democratic decision-making.’ (pp 51-2)
In such a way, procedural review is allocated a measure of legitimacy, as well as feasibility. But there are (as the author concedes) still some lurking doubts. Oberg argues that his criteria do allow for rigorous monitoring, and to back up that assertion, he shows how some existing legislation would have failed the test supplied by the ‘Oberg criteria’. But at the end of the day it is a matter of what counts as ‘adequate’ and ‘sufficient’, and there is a tendency to fall back on a quantitative testing of such matters – so that at least one proffered reason or justification is adequate, but just one proffered piece of evidence, such as an expert report, would not count as sufficient. Thus to assert that it is necessary to have in place deterrent measures to ensure compliance is an adequate reason, but just one report asserting that criminal but not administrative sanctions would have a deterrent effect is insufficient as convincing evidence.
At a certain level, that appears fair enough, and it is difficult to argue against either of those conclusions. But does that amount to much more than ticking a number of boxes, leaving outstanding the very important questions that criminologists and therefore policy-makers should be interested to pursue – is an aimed-for deterrent effect a convincing justification (deterrence at any cost?) and how much evidence is needed to show that deterrence is likely to come about and who can convincingly supply this evidence? In other words, how much is a quantitative count worth and is such a count meaningful without some further (and really, substantive) penetration of the need for and meaning of deterrence? And that last question is a matter of social scientific assessment and expertise rather than normative evaluation. On the other hand, perhaps a quantitative count is better than nothing at all, so that the policy and law-makers at least need to show that they have given some thought to these matters.
That is not to deny or challenge the value of the exercise – it is important to move towards some kind of monitoring of this policy and law-making activity, and to keep talking about it.
The book stands (as its title indicates) as a case study, moving some way around a testing ground. The focus of discussion is the Article 83(2) TFEU competence, that area of ‘not real’ or ‘regulatory’ criminal law, often distinguished from ‘core’ criminal law (covered more by Article 83(1) TFEU competence), and administrative sanctions (quasi-criminal law?) as used for instance to deal with EU competition violations. But the same method could be applied in those other domains of prohibition and sanctions, and these other regimes appear comparatively in any case when applying such tests as essentiality and subsidiarity. Moreover, for his immediate purposes of argument, Oberg decides to put proportionality questions to one side, but does include an interesting study of the experience and effectiveness of political control on the part of national Parliaments under Protocol 2 to the Lisbon Treaty (the ‘yellow card’ system), again suggesting some imperfect understanding of this area on the part of the member State Parliaments. Nonetheless, as a case study, and a testing of possible strategy, the book works very well. And the book does not just serve as a strategy document, but also conveys some critical and convincing argument, that:
‘the current way of drafting EU legislation, which is supported and confirmed by the Court of Justice, is based on unproven assumptions regarding the existence of certain problems and the predicted positive consequences of EU action’ (p 191).
‘the EU will endanger its legitimacy if it keeps enforcing its policies through criminal sanctions on such grounds’ and should thus ‘adopt a conservative approach and refrain from harmonising criminal laws in the absence of a real practical need and firm legal basis’ (p 193).
That is a strong critical argument and it can have a wider application. In a broader cultural and philosophical context, Oberg’s argument may be set in the longstanding European tradition and preference for a sparing use of criminal law and sanctions (last resort, or ultima ratio). More especially, it is part of the growing call for a more convincingly evidence-based justification for policy and legal action. In a number of ways, therefore, the book merits attention and careful reading. And it suggests that there is some good work ahead for criminal jurisprudence and criminology.