The Subsidiarity Principle in the Adoption of EU Criminal Law: Appraisal of the Legislator's Justifications

The subsidiarity principle under Art. 5 para. 3 TEU involves two conditions for the EU to act in shared areas of competence: material and procedural subsidiarity. The first requires demonstrating why the Union’s objective(s) cannot be sufficiently achieved by individual actions of Member States, but rather by a measure taken at the EU level due to its scale or impact. The latter involves providing sufficient evidence supporting this claim. This article examines how the legislator justified the adoption of four EU criminal instruments to demonstrate compliance with the subsidiarity principle, using these requirements as a framework. It identifies and questions the grounds used to establish the material subsidiarity requirement across the instruments, such as the cross-border nature and dimension of the phenomenon, “safe-haven” or “forum shopping” scenarios, obstacles to judicial cooperation, slowness and complexity of the surrender system, and the existence of a fragmented approach. Additionally, it is found in various instances that the legislator offers inadequate evidence to support these grounds and justify the necessity of EU action in line with the procedural subsidiarity requirement.