Proportionality of Criminal Offences and Penalties in EU Law

Lorenzo Grossio is Research Fellow at the University of Turin, Italy.

• Foreword, Valsamis MitsilegasAcknowledgementsTable of CasesTable of LegislationTable of AbbreviationsIntroductionI. Proportionality in EU Criminal Law: Two Different UnderstandingsA. The Conceptualisation of Proportionality in EU LawB. Proportionality of Offences and Penalties in the Criminal Law DiscourseII. Developing an EU Law Perspective on the Proportionality of Criminal Offences and Penalties: The Aim of the BookIII. The Concepts of Offences and Penalties in EU Criminal Law: The Scope of the BookIV. The Multiple Facets of Proportionality: Two DichotomiesA. Positive and Negative ProportionalityB. Proportionality in Abstracto and in ConcretoV. The MethodologyVI. The Structure of the Book1. Proportionality in EU Law: A Multidimensional General PrincipleI. IntroductionII. The Emergence of Proportionality in the EU Legal OrderIII. Proportionality as a General Principle of EU Law: Assessing Its Multiple DimensionsA. Proportionality as a Limit to the Exercise of EU PowersB. Proportionality as a Legitimacy Condition for Obstacles to Internal Market FreedomsC. The Fundamental Rights Dimension of Proportionality1. 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 Charter3. Proportionality of Criminal Sanctions: The Uneasy Nature of Article 49(3) of the CharterIV. Multiple Dimensions, One Common Proportionality Matrix in EU LawA. The Threefold Structure of Proportionality as Fine-grained by the ECJ Case-law1. 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’ ParadigmB. Proportionality of What to What? A Matrix Principle and the Need for a Contextual ApproachV. Concluding Remarks2. Proportionality of Criminal Offences and Penalties as a Hybrid Principle of EU LawI. IntroductionII. The Multiple Normative Foundations of the Proportionality of Criminal Offences and PenaltiesIII. A Double-layered TheorisationA. Applying the Threefold Proportionality Test to Criminal Offences and Penalties: The Principle’s Primary Scheme1. The Opposing Interests Underlying Proportionality of Offences and Penalties in EU Criminal Law2. A Hybrid EU and Criminal Law PrincipleB. At the Intersection Between the EU and Criminal Law Understandings of Proportionality: Two Secondary Schemes1. Prospective Proportionality vis-à-vis the Attainment of a Non-Retributive Penological Aim2. Retrospective Proportionality vis-à-vis the Seriousness of the Wrongdoing3. Prospective and Retrospective Proportionality as Complementary Secondary Schemes of the PrincipleIV. The Structure of the Principle: Assessing the Different Prongs of the Proportionality of Criminal Offences and PenaltiesA. Proportionality of Criminal Offences1. In Abstracto: From the Definition of the Proscribed Action or Omission to Its Criminalisation2. In Concreto: The Clash Between Domestic Criminal Law Enforcement and EU LawB. Proportionality of Criminal Penalties1. In Abstracto: The Definition of Sanctions’ Type and Scale2. In Concreto: The Individualisation of SanctionsV. The Hybrid Principle Between the Law of the EU and ECHR: The Relevance of a Combined Analysis for the Purposes of this BookVI. Concluding Remarks3. Proportionality of Offences and Penalties in EU Substantive Criminal LawI. IntroductionII. The Objectives of EU Substantive Criminal Law: From a Functional Rationale to the Slow Emergence of a Constitutional Value-based DimensionIII. Assessing the EU Legislative Approach: Proportionality in the Definition of Harmonised Criminal OffencesA. Two Competing Declinations of the Principle in the Legislative Practice1. From Proportionality of the Content of Union Action to Proportionality of Union Criminalisation: The Nuanced Influence of Article 5(4) TEU2. The Rising Role of the Fundamental Rights Dimension of Proportionality under Article 52(1) of the CharterB. Prospective and Retrospective Proportionality in the Definition of Harmonised Criminal Offences1. Prospective Proportionality of Harmonised Criminal Offences and Its Intersection with Censure and General Prevention2. Retrospective Proportionality of Harmonised Criminal Offences Between Harmfulness and Ordinal ProportionalityIV. Assessing the EU Legislative Approach: Proportionality in the Definition of Harmonised Criminal PenaltiesA. The Neglected (With Good Reason) Role of Article 49(3) of the CharterB. The Role of Prospective and Retrospective Proportionality of Criminal Penalties in the Legislative Practice1. Harmonised Penalties Shall Be the Lowest Possible Entailing a Sufficient Deterrent Effect2. Harmonised Penalties Shall Reflect the Seriousness of the OffenceV. A Consistent EU Legislative Practice with Limited Room for ECHR Proportionality StandardsVI. Proportionality in the Judicial Review of Harmonised Offences and PenaltiesA. The Reasons for the Lack of Proportionality Pleas Against EU Substantive Criminal Law Before the Kinsa CaseB. The ECJ (Potential) Scrutiny Over Retrospective Proportionality: A Standard of Review Difficult to GraspC. The ECJ (Potential) Scrutiny Over Prospective Proportionality: Two Alternative Options1. The Argument for a ‘Manifestly Disproportionate’ Standard of Review2. The Argument for a Strict Necessity Review3. Discussion: Why a Strict Necessity Review Would Be AdvisableVII. Concluding Remarks4. Proportionality of Member States’ Criminal Offences and Penalties in the ECJ Case-lawI. IntroductionII. The Twofold Domestic Interface of the EU Principle of Proportionality of Criminal Offences and PenaltiesA. When EU Law Requires Domestic Ius Puniendi: Proportionality of Criminal Offences and Penalties under the Greek Maize ParadigmB. Proportionality of Domestic Offences and Penalties Interfering with Individual Rights Secured by EU LawIII. The ECJ Proportionality Review of Domestic Offences and Penalties Under the Greek Maize ParadigmA. A Partial Proportionality Limit to Member States’ Criminalisation ChoicesB. The Directly Enforceable Greek Maize Proportionality Requirement of Penalties1. The Prominence of Prospective Proportionality in the ECJ Review2. 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 LegalityC. A Look at the Broader European Context: Upper and Lower Limits to the Domestic Ius Puniendi Between the ECJ and ECtHR Case-LawIV. The ECJ Proportionality Scrutiny of Domestic Criminal Offences and Penalties vis-à-vis Fundamental Rights and Internal Market Freedoms A. The ECJ Reticent Approach Towards Prospective and Retrospective Proportionality of OffencesB. The Emergence of Prospective and Retrospective Schemes in the ECJ Review of Domestic Penalties1. Retrospective Proportionality as a Tool for Providing Domestic Courts with Broad Guidance 2. The Leading Role of Prospective Proportionality3. The Enhancement of Retrospective Proportionality of Criminal Penalties in the Ne Bis in Idem FrameworkC. Towards the Direct Effect of Article 49(3) of the Charter: Prospects and ImplicationsD. A Look at the Broader European Context: The ECtHR Approach Towards Criminal Measures Clashing with the Enjoyment of Fundamental Rights1. The Enhancement of Retrospective Proportionality in the ECtHR Review of Domestic Criminal Measures vis-à-vis Conditional Rights2. The ECtHR Review of ‘Manifestly Disproportionate’ Penalties Under Article 3 ECHRV. Proportionality of Non-Criminal Penalties: The Spill-Over Effect of the Hybrid PrincipleVI. The Uneasy Place of the Proportionality of Penalties in EU Judicial Cooperation in Criminal MattersVII. Concluding Remarks: A Systematisation of the ECJ Approach in the Proportionality Review of Domestic Criminal Offences and PenaltiesA. The ECJ Nuanced Assessment of the Proportionality of Criminal OffencesB. The Shifting Balance Between Prospective and Retrospective Proportionality in the ECJ Review of Domestic Criminal Penalties5. Conclusion: Reconstructing the Proportionality of Criminal Offences and Penalties in EU LawI. The Principle in TheoryA. A Hybrid Principle of the EU Legal OrderB. Differentiation from and Osmosis with the EU General Principle of ProportionalityII. The Principle in Action: How the Institutional Characteristics of the EU Legal Order Shape the Interaction Between Prospective and Retrospective ProportionalityBibliographyIndex