EU, staten och rätten att straffa: Problem och principer för EU:s straffrättsliga lagstiftning
Sammanfattning: This is a thesis in Criminal Law, with the overall purpose to present an analysis of the legitimacy of the development in the criminal law area that has occurred within the framework of the European Union (EU). More specifically, the thesis will focus on the question of legitimacy of legislative power in criminal matters at the EU level – a question which ultimately is one concerned with the legitimacy of the penal rules founded upon decisions (and competence) at EU-level. The theoretical issue that underlies this thesis is the problem of legitimacy of criminal law. In this thesis, the problem of legitimacy will be approached as a problem concerning legal competence or the right to exercise penal power. The legitimacy of criminal law depends much on the answers to questions on what grounds and within which limits a certain person or group of persons (as legal authorities) rightfully could claim penal power over individuals; in the context of the EU, one must address the questions on what grounds and within which limits the EU institutions rightfully can claim penal legislative power. The context, and motivation, for the thesis is an intensive development at the EU-level on matters of criminal law. This development has shown a tendency to establish supranational penal powers at EU level. It appears that even penal legislative power is being transferred from the Member States to the Union, as a part of the general trend of the expansion of the area of legal competence of the EU. It is therefore paramount to discuss the crucial question whether the legitimacy of penal law can be reconciled with the establishment of a penal legislative power at the EU level, a power that is – at least partly – independent from the institutional framework of the Member States. The main focus of this thesis is if, and how, traditional criteria and concepts of legitimacy (primarily criteria of democratic legitimacy and rights protection) could be re-interpreted in the criminal law context of the EU. More precisely, the core questions bear reference to the problem how an institutional and legal framework of an EU criminal law should be framed. What institutions should be competent to enact penal legislation at the EU-level? To what extent should these institutions be competent to define the content of criminal law? How should the division of competence between the EU and its Member States be set in the area of criminal law? As a basis of the analysis of these questions, the thesis supports an autonomy-centred perspective of legitimacy that is anchored in the deep legal structures of the constitutional paradigm of the EU, and in the hegemonic ideological approach in European criminal law. The thesis is – in addition to an introduction with a presentation of the subject, purposes and methodology – divided into three parts. Part I provides a description and analysis of the development of criminal law within the European Union. The primary focus is on the discussion of the extent to which one could speak of legislative penal power at EU-level. Part II provides a description of the problems of legitimacy of EU criminal law and problems arising from the tendency to develop penal legislative power at EU-level. Part III is, finally, concerned with the main discussion of the questions of the legitimacy of EU criminal law.
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