PP937
Analítico de Periódico
NEUMANN, Laura Katharina Sophia
The shared competence for criminal law / Laura Katharina Sophia Neumann
European Criminal Law Review, Munich, v.5 n.3 (2015), p.325-336
DIREITO COMUNITÁRIO, DIREITO PENAL, ESPAÇO DE LIBERDADE, SEGURANÇA E JUSTIÇA, REPARTIÇÃO DE COMPETÊNCIAS
As part of the area of freedom, security and justice the criminal law has explicitly been assigned to the “shared competences” in the sense of Art. 2 II TFEU by Art. 4 II lit. j TFEU. Thus, the Union and the Member States may both legislate and adopt legally binding acts in the area of criminal law, according to Art. 2 II 1 TFEU. Clause 2 and 3 of the provision further specify that the Member States shall exercise their competence only to the extent that the Union has not exercised its competence and shall again exercise it to the extent that the Union has decided to cease exercising its competence. Thereby a preemptive effect of Union law for national law is described. The meaning of this preemptive effect triggered by the assignment of an area of legislation to the shared competences of the EU and the Member States has been discussed controversly by many scholars in general, but so far it has not attracted scholarly attention specifically with regard to the area of freedom, security and justice and with it, the criminal law. This article, therefore, first poses the general question of the correct understanding of shared competences in the sense of Art. 2 II, 4 I, II TFEU and, in a further step, tries to identify the implications that the classification of criminal law competences, as shared ones, has for the development of a criminal law system on the basis of the Treaty of Lisbon.