Proportionality of Criminal Offences and Penalties in EU Law

Foreword, Valsamis Mitsilegas
Acknowledgements
Table of Cases
Table of Legislation
Table of Abbreviations

Introduction

I. Proportionality in EU Criminal Law: Two Different Understandings
A. The Conceptualisation of Proportionality in EU Law
B. Proportionality of Offences and Penalties in the Criminal Law Discourse
II. Developing an EU Law Perspective on the Proportionality of Criminal Offences and Penalties: The Aim of the Book
III. The Concepts of Offences and Penalties in EU Criminal Law: The Scope of the Book
IV. The Multiple Facets of Proportionality: Two Dichotomies
A. Positive and Negative Proportionality
B. Proportionality in Abstracto and in Concreto
V. The Methodology
VI. The Structure of the Book

1. Proportionality in EU Law: A Multidimensional General Principle

I. Introduction
II. The Emergence of Proportionality in the EU Legal Order
III. Proportionality as a General Principle of EU Law: Assessing Its Multiple Dimensions
A. Proportionality as a Limit to the Exercise of EU Powers
B. Proportionality as a Legitimacy Condition for Obstacles to Internal Market Freedoms
C. The Fundamental Rights Dimension of Proportionality
1. The ECHR Influence: The Equivalence Clause Enshrined in Article 52(3) and the Dichotomy Between Absolute and Conditional Rights
2. Proportionality in Fundamental Rights Adjudication Under Article 52(1) of the Charter
3. Proportionality of Criminal Sanctions: The Uneasy Nature of Article 49(3) of the Charter
IV. Multiple Dimensions, One Common Proportionality Matrix in EU Law
A. The Threefold Structure of Proportionality as Fine-grained by the ECJ Case-law
1. The Suitability of a Measure to Fulfil a Legitimate Aim
2. The Necessity Requirement: A Dividing Line Between EU and Domestic Measures
3. Proportionality Stricto Sensu Under EU Law and Its Relationship with the 'Essence of the Right' Paradigm
B. Proportionality of What to What? A Matrix Principle and the Need for a Contextual Approach
V. Concluding Remarks

2. Proportionality of Criminal Offences and Penalties as a Hybrid Principle of EU Law

I. Introduction
II. The Multiple Normative Foundations of the Proportionality of Criminal Offences and Penalties
III. A Double-layered Theorisation
A. Applying the Threefold Proportionality Test to Criminal Offences and Penalties: The Principle's Primary Scheme
1. The Opposing Interests Underlying Proportionality of Offences and Penalties in EU Criminal Law
2. A Hybrid EU and Criminal Law Principle
B. At the Intersection Between the EU and Criminal Law Understandings of Proportionality: Two Secondary Schemes
1. Prospective Proportionality vis-a-vis the Attainment of a Non-Retributive Penological Aim
2. Retrospective Proportionality vis-a-vis the Seriousness of the Wrongdoing
3. Prospective and Retrospective Proportionality as Complementary Secondary Schemes of the Principle
IV. The Structure of the Principle: Assessing the Different Prongs of the Proportionality of Criminal Offences and Penalties
A. Proportionality of Criminal Offences
1. In Abstracto: From the Definition of the Proscribed Action or Omission to Its Criminalisation
2. In Concreto: The Clash Between Domestic Criminal Law Enforcement and EU Law
B. Proportionality of Criminal Penalties
1. In Abstracto: The Definition of Sanctions' Type and Scale
2. In Concreto: The Individualisation of Sanctions
V. The Hybrid Principle Between the Law of the EU and ECHR: The Relevance of a Combined Analysis for the Purposes of this Book
VI. Concluding Remarks

3. Proportionality of Offences and Penalties in EU Substantive Criminal Law

I. Introduction
II. The Objectives of EU Substantive Criminal Law: From a Functional Rationale to the Slow Emergence of a Constitutional Value-based Dimension
III. Assessing the EU Legislative Approach: Proportionality in the Definition of Harmonised Criminal Offences
A. Two Competing Declinations of the Principle in the Legislative Practice
1. From Proportionality of the Content of Union Action to Proportionality of Union Criminalisation: The Nuanced Influence of Article 5(4) TEU
2. The Rising Role of the Fundamental Rights Dimension of Proportionality under Article 52(1) of the Charter
B. Prospective and Retrospective Proportionality in the Definition of Harmonised Criminal Offences
1. Prospective Proportionality of Harmonised Criminal Offences and Its Intersection with Censure and General Prevention
2. Retrospective Proportionality of Harmonised Criminal Offences Between Harmfulness and Ordinal Proportionality
IV. Assessing the EU Legislative Approach: Proportionality in the Definition of Harmonised Criminal Penalties
A. The Neglected (With Good Reason) Role of Article 49(3) of the Charter
B. The Role of Prospective and Retrospective Proportionality of Criminal Penalties in the Legislative Practice
1. Harmonised Penalties Shall Be the Lowest Possible Entailing a Sufficient Deterrent Effect
2. Harmonised Penalties Shall Reflect the Seriousness of the Offence
V. A Consistent EU Legislative Practice with Limited Room for ECHR Proportionality Standards
VI. Proportionality in the Judicial Review of Harmonised Offences and Penalties
A. The Reasons for the Lack of Proportionality Pleas Against EU Substantive Criminal Law Before the Kinsa Case
B. The ECJ (Potential) Scrutiny Over Retrospective Proportionality: A Standard of Review Difficult to Grasp
C. The ECJ (Potential) Scrutiny Over Prospective Proportionality: Two Alternative Options
1. The Argument for a 'Manifestly Disproportionate' Standard of Review
2. The Argument for a Strict Necessity Review
3. Discussion: Why a Strict Necessity Review Would Be Advisable
VII. Concluding Remarks

4. Proportionality of Member States' Criminal Offences and Penalties in the ECJ Case-law

I. Introduction
II. The Twofold Domestic Interface of the EU Principle of Proportionality of Criminal Offences and Penalties
A. When EU Law Requires Domestic Ius Puniendi: Proportionality of Criminal Offences and Penalties under the Greek Maize Paradigm
B. Proportionality of Domestic Offences and Penalties Interfering with Individual Rights Secured by EU Law
III. The ECJ Proportionality Review of Domestic Offences and Penalties Under the Greek Maize Paradigm
A. A Partial Proportionality Limit to Member States' Criminalisation Choices
B. The Directly Enforceable Greek Maize Proportionality Requirement of Penalties
1. The Prominence of Prospective Proportionality in the ECJ Review
2. The 'Prohibition on Adopting Disproportionate Penalties': Is There a Clear, Precise and Unconditional Standard of Review?
3. Direct Effect the Remedy of Disapplication: Squaring the Proportionality of Criminal Penalties with the Principle of Legality
C. A Look at the Broader European Context: Upper and Lower Limits to the Domestic Ius Puniendi Between the ECJ and ECtHR Case-Law
IV. The ECJ Proportionality Scrutiny of Domestic Criminal Offences and Penalties vis-a-vis Fundamental Rights and Internal Market Freedoms
A. The ECJ Reticent Approach Towards Prospective and Retrospective Proportionality of Offences
B. The Emergence of Prospective and Retrospective Schemes in the ECJ Review of Domestic Penalties
1. Retrospective Proportionality as a Tool for Providing Domestic Courts with Broad Guidance
2. The Leading Role of Prospective Proportionality
3. The Enhancement of Retrospective Proportionality of Criminal Penalties in the Ne Bis in Idem Framework
C. Towards the Direct Effect of Article 49(3) of the Charter: Prospects and Implications
D. A Look at the Broader European Context: The ECtHR Approach Towards Criminal Measures Clashing with the Enjoyment of Fundamental Rights
1. The Enhancement of Retrospective Proportionality in the ECtHR Review of Domestic Criminal Measures vis-a-vis Conditional Rights
2. The ECtHR Review of 'Manifestly Disproportionate' Penalties Under Article 3 ECHR
V. Proportionality of Non-Criminal Penalties: The Spill-Over Effect of the Hybrid Principle
VI. The Uneasy Place of the Proportionality of Penalties in EU Judicial Cooperation in Criminal Matters
VII. Concluding Remarks: A Systematisation of the ECJ Approach in the Proportionality Review of Domestic Criminal Offences and Penalties
A. The ECJ Nuanced Assessment of the Proportionality of Criminal Offences
B. The Shifting Balance Between Prospective and Retrospective Proportionality in the ECJ Review of Domestic Criminal Penalties

5. Conclusion: Reconstructing the Proportionality of Criminal Offences and Penalties in EU Law

I. The Principle in Theory
A. A Hybrid Principle of the EU Legal Order
B. Differentiation from and Osmosis with the EU General Principle of Proportionality
II. The Principle in Action: How the Institutional Characteristics of the EU Legal Order Shape the Interaction Between Prospective and Retrospective Proportionality

Bibliography
Index