The Expressive Dimension of EU Criminal Law

This Article argues that the European Union has used its powers to criminalize not only to address practical needs, but also to reaffirm its core values and strengthen its political identity. An example of this phenomenon is the decision to harmonize definitions of racist and xenophobic crime across the Union. A review of the text and the drafting history of EU measures against racist and xenophobic crime suggests that they are best understood as a tool to express the Union’s commitment to human rights and equal treatment, rather than as a response to pressing practical needs.

The Union’s use of the criminal law for such purposes, while symbolically powerful, raises some questions about the limits to EU intervention in criminal justice. The Article discusses the difficulties with establishing a legal basis for EU intervention in criminal justice when no demonstrable transnational dimension is present. Policy considerations—respect for state sovereignty, deference to democratic decision-making, and a concern for the effective implementation of EU laws—also recommend a cautious approach to legislating in this field. Above all, the European Union should actively engage national parliaments in decisions to expand its reach over criminal law. While this approach might reduce the frequency of EU legislation, it could strengthen the legitimacy and effectiveness of EU criminal law and better serve the political goals to which Europe and its peoples aspire.