La compétence d'incrimination de l'Union européenne. Recherche sur le pouvoir pénal européen

The allocation by the Lisbon Treaty of a genuine criminalisation competence to the Union – article 83 TFEU – prompts the analysis of the existence and the exercice of European criminal law power. It raises the question of the promotion, through criminalisation choices, of essential values to the community. Analysing the criminal law power is interconnected to the question about the nature of the European project as a whole, true existential space of society (ethos) or simple functional space comprised of objectives (telos).
Despite the aspiration to clarify the delimitation of European penal power within the new treaty, its ambit remains unclear. An implicit criminalisation competence – an implied criminal law power – could still exist, allowing to overcome the minimum harmonisation provided for by article 83 TFEU. To admit such an implied power would mean revive competence creep.
The exercice of the criminalisation competence is progressively framed, beyond the classical principles of subsidiarity and proportionality, by the criminal law principles of ultima ratio as well as the principles of legality and proportionality of criminal offences and penalties expressed in the Charter of fundamental rights. However, these principles have not been taken into account according to the actions of the legislator who appear to follow a securitarian trend. It is to the Court, through an in-depth proportionality check, to determine if the Charter can become the marker of criminal law policy characterised by its moderation and liberalism, and henceforth contribute to a European criminal law identity.