Making EU Legislation in the Area of Criminal Law : A Swedish Perspective

Abstract: This dissertation discusses the essential criticisms against the use of EU criminal law from the point of departure that criminal law should ideally be negotiated with a high degree of respect for essential criminalisation principles. The purpose of this is to minimize the risk of over-criminalisation. The dissertation studies four legislative proposals which were submitted by the European Commission in the years between 2006 and 2010 in order to determine to what extent these, as well as the subsequent preparatory legislative materials by the decision-making EU institutions, respected the principles of ultima ratio and the ‘criminal law version’ of the proportionality principle. The ‘criminal law version’ of the proportionality principle requires there to be proportionality between the offence and the penalties, thus it is different from the EU’s general principle of proportionality.The case study review is based on the materials which were produced by the European Commission in the preparation of the proposals, as well as on reports by the European Parliament which summarizes its position on the legislative proposals. Finally, the documents which summarize the Council meetings during which the proposals were discussed are reviewed.The dissertation also discusses the level of transparency in the European legislative process.The dissertation includes a chapter on some essential parts of the Swedish criminal justice system, including a description of how legislation is prepared in Sweden. Another chapter sheds light on the EU’s legislative process, including the amendments made to it in the past decades. This is provided to create a platform for discussion on the ‘status’ of a criminal law which has been negotiated in an international process, although the author mainly leaves it to others to identify possible weaknesses in the system from a criminal justice point of view.The dissertation discusses strengths and weaknesses in the EU’s legislative process from the point of departure that the EU legislator has only recently gained a clear competence to adopt substantive criminal law using the ordinary legislative procedure. In view of this, the dissertation focuses on whether or not the EU is responsive to the criticism it receives.