The Extraterritorial Reach of EU Substantive Criminal Law: How EU Harmonisation Measures Stretch the Member States’ Criminal Jurisdiction

This paper analyses some key issues related to EU secondary law provisions regarding extraterritorial exercise of criminal jurisdiction by Member States over EU-harmonised offences. Two main research objectives have been examined: firstly, a theoretical systematisation of the phenomenon at stake; secondly, an assessment of its actual reach. The analysis firstly deals with the classical taxonomy of prescriptive, adjudicative and enforcement jurisdiction. It is then suggested that the extraterritorial application of EU criminal law entails a peculiar overlap between original and vicarious jurisdiction, as well as an intersection between territorial extension and effects-based jurisdiction. The paper then analyses the criteria used by the EU legislature to stretch Member States’ criminal jurisdiction beyond the EU’s external borders in light of Scott’s taxonomy, with a view to highlighting the emerging trends. Secondly, the paper underlines the emergence of an EU-own scope for extraterritorial jurisdiction, wider than the one designed by both International Crime Control Treaties and pre-Lisbon Framework Decisions. Finally, the paper calls upon an in-depth assessment of the practice related to the prosecution of EU-harmonised offences. Such an analysis would reveal if potential deal-breaking conflicts of jurisdiction between Member States and third States could lead to a reconsideration of the EU’s extraterritorial approach in criminal law.