The Future of EU Substantive Criminal Law

3.2 Rechtsgut

Whereas the principles of harm and wrong formulate the problem – i.e., the conduct that infringes the legal interest or Rechtsgut -, the Rechtsgut identifies which ‘legal interest’ or ‘legal good’ should be protected – i.e., the ratio legis or the aim of the criminal prohibition. The Rechtsgut principle prescribes that criminalisation competences are solely exercised in order to protect fundamental interests.30 The Rechtsgut principle is therefore naturally bound to the principles of harm and wrong: criminalisation is legitimate where it is aimed at protecting a legal good (Rechtsgut) from wrongful conduct that causes some (risk) of harm.31 Ideally criminal law protects a limited number of legal goods, such as life, health, property, freedom and reliability of monetary transactions. Their protection does not need legitimisation. Rechtsgüter that fall within the scope of ‘core’ EU criminal law are for example the financial interest of the Union and the environment.

Accordingly, legal goods that fall outside the scope of ‘core’ criminal law require legitimisation of the need of criminal protection.32 The Rechtsgüter outside of the scope of ‘core’ EU criminal law, could be derived from the primary law of the EU.33 As a starting point, one could look at the aims of the Union to identify the different EU Rechtsgüter. According to Article 3 teu the general aim of the Union is ‘to promote peace, its values and the well-being of its peoples’.34 Thereinafter, Article 3 teu provides for more specific aims, namely the creation of the asfj and the establishment of the internal market.35 Article 3 (2) teu determines that the afsj is an area ‘without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.’36 It has been argued that by its aim to ensure free movement of people, the asfj has a direct link to the internal market, which – according to article 26 teu – is an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured.37 As stated above, the criminalisation competences are part of the Area of Freedom, Security and Justice, and are – thus – directly linked to the internal market. In other words, one could argue that the Rechtsgüter that fall outside of the scope of ‘core’ EU criminal law, may be protected if they are connected to the good functioning of the internal market.

However, EU criminalisation has a broader aim than solely economic integration.38 The EU also aims to promote its values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.39 These values have a predominantly normative character and form the fundaments of a modern democratic society.40 Human and fundamental rights as laid down in the EU Charter, the echr and the human and fundamental rights as they result from the constitutional traditions common to the Member States, further outline the scope of these EU values.41 In that light, human and fundamental rights could be seen as Rechtsgüter that may deserve protection under EU criminal law as well. Accordingly, the Commission has proposed to add hate speech and hate crime to the scope of Article 83 (1) tfeu, since these offences ‘run counter to EU common values and fundamental rights, as enshrined in Article 2 and 6 of the teu, as well as in the Charter’ and they ‘violate the victims’ fundamental right to dignity and equality’.42

The EU Charter recognises six categories of fundamental rights: dignity (e.g. the right to life, the right to personal integrity), freedoms (e.g. right to liberty and security, right to property), equality (e.g. non-discrimination, rights of the child), solidarity (e.g. right of collective bargaining and action, fair and just working conditions), citizens’ rights (e.g. right to vote, right to good administration), and justice (e.g. right to a fair trial, presumption of innocence). There are already various examples of EU criminal law measures protecting certain specific EU fundamental rights, for example:

  1. -Directive 2011/36/EU prohibits human trafficking and falls within the scope of the prohibition of slavery and forced labour (article 5 EU Charter);
  2. -Council Framework Decision 2008/913/jha of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law, oj 2008, L 328 protects the fundamental right to non-discrimination (article 21 EU Charter);
  3. -Directive 2017/541/EU of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/jha and amending Council Decision 2005/671/jha, oj 2017, L 88 protects the right to life (article 2 EU Charter), and the right to liberty and security (article 6 EU Charter).

Considering these human and fundamental rights as EU Rechtsgüter, will dramatically extend the scope of protected EU legal interests. The EU Charter does not solely cover conduct directly linked to the EU or its internal market, such as the EU financial interests, the environment, the protection of fair competition and the integrity of the public administration. It also includes other rights, which are less obviously linked to the EU, such as the protection of personal data (article 8) and the right to property (article 17). It raises the question of whether such an interpretation of EU Rechtsgüter would exceed the scope of ‘core’ EU criminal law.43 To prevent the scope of ‘core’ EU criminal law from being exceeded, the requirement of a ‘cross-border element’ could play an important limiting role.

In light of these aims and the instruments adopted at EU level so far, the following Rechtsgüter can be determined, which are based on the identified areas of EU criminal law by Klip:44

  1. -financial interests of the Union;
  2. -environment;
  3. -integrity of the public administration;
  4. -fair competition;
  5. -(integrity of) the financial sector;
  6. -information society;
  7. -public health;
  8. -human dignity;
  9. -democratic society;
  10. -fair administration of justice; and
  11. -human and fundamental rights.

Based on this overview the following conclusions could be drawn. An EU Rechtsgut exists if it concerns an EU legal interest at its core, such as the financial interest of the European Union or the environment. If such is not the case, it should be determined whether the identified Rechtsgut legitimises protection via EU criminal law. A common denominator could then be found in the link to the internal market,45 or the protection of EU human and fundamental rights.46 It should be noted that the further the Rechtsgut is outside of the scope of ‘core’ EU criminal law, the more evidence is needed to legitimise EU criminal law protection of the Rechtsgut at hand.