Do We Really Need Criminal Sanctions for the Enforcement of EU Law?

This article examines how the ‘essentiality’ requirement can limit the exercise of the EU's criminal law competence under Article 83(2) TFEU. Building on criminological research, and contextual and principled considerations, it argues for an evidence-based approach to the ‘essentiality’ criterion. It sustains that the Union legislator must show by empirical proof that criminal laws are more ‘effective’ than non-criminal sanctions in the implementation of a specific EU policy. The article proposes that judicial enforcement is a key mechanism for implementing the ‘essentiality’ criterion. On the basis of the Court's rulings in Kadi II and Tetra Laval a strict procedural test for review of criminal law legislation is suggested. It entails that the EU legislator must show that the justification for exercising the EU's criminal law competence is substantiated by relevant evidence. Because criminal penalties entail severe consequences for individuals and potentially breach their fundamental freedoms such a stringent test is justified.