La comunitarizzazione della tutela penale ed il principio di legalità nell'ordinamento comunitario

The article deals with EU competences in the field of criminal law and thus on the relations among the different EU pillars. Indeed the ever growing activity of Community Institutions in criminal matters, either in third pillar’s competences as also in the field covered by communitarian method caused a few problems. Moving from the relevant ECJ case law, including the recent environmental crimes case, the paper casts a light on the relevant features of Community approach to criminal law regulation. Special attention is paid to the effect of EC acts requiring States to adopt measures (i.e. penalties) that are «effective, proportionate and dissuasive» and its effect on primary criminal principles of Member States’ traditions, i.e. the respect of the rule of law and of legality. Indeed, the drafting of EU rules – that might be regarded as having criminal nature insofar their violation implies a criminal penalty – raises several concerns for Member States fearing the so called EU democratic deficit. To avoid a clash between national principles and EU law primacy, the article suggest to review such assumption. Indeed the Author maintains that nowadays the decisional process within the EC system is greatly respectful of the principle of democracy while, on the national level, the principle of legality – as implying that criminal rules should be enacted only through a democratic assembly – suffer some inconsistency.