EFFETTIVITÀ DEL DIRITTO DELL¿UNIONE EUROPEA E POTERI SANZIONATORI: GLI OBBLIGHI DI CRIMINALIZZAZIONE COME STRUMENTO DI ENFORCEMENT DELLE POLITICHE SOVRANAZIONALI.

The EU legal system can be considered a phénomène nouveau in the international setting. It has felt, since the time immediately following its foundation, the need to affirm its effectiveness and, over the years, the institutions – thanks to the decisive role played by the Court of Justice – have sought the tools able to ensure their policies the highest degree of enforcement. Among those tools, the affirmation of obligations to protect, at national level, the Community rights is of course included. The structural asymmetry that characterizes the European Union, endowed with regulatory powers but not equipped with its own administrative-judicial structure, requires Member States to de facto realize what EU law provides. Thus, each national system is called, considered the principle of sincere cooperation (Article 4, paragraph 3, TEU), to make their substantial and procedural means available for the implementation of the discipline emanating from the European Union, within the constraints of equivalence and effectiveness imposed by the Court of Justice. In order to make any legal system effective, it is necessary, in addition to its ability to protect citizens’ rights, that it can adopt preventive and repressive measures, so that it can avoid the risk of non-compliance with the rules deriving from it. Without the ability to impose sanctions, a legal system would be deprived of one of the essential tools to prove itself authentically effective. Within the broad genus labelled “sanctions” – which includes different types of measures – a prominent role has been attributed to criminal law, considered as a preventive and dissuasive tool. Since the Maastricht Treaty, the European Union has been given progressively more extensive powers in criminal matters, today enshrined by Article 83 TFEU. The second paragraph of this provision allows the institutions to adopt directives containing minimum rules concerning offences and sanctions when the approximation proves essential to ensure the effective implementation of a Union policy, already subject to harmonisation measures. This provision clearly shows the possibility to use criminalization as a tool to ensure better enforcement of the regulatory system adopted by supranational institutions. At present, only two directives have been adopted based on Article 83, paragraph 2, TFEU. The former, approved in 2014, concerns sanctions for market abuse; the latter, adopted in 2017, deals with the fight against fraud to the Union’s financial interests. These directives allow an initial analysis on the ability of criminal offences to ensure a deeper degree of effectiveness of the European legal system. The use of directives based on Article 83, paragraph 2, TFEU has been invoked in further areas: among these, the protection of the environment and competition. The objective, in this sense, consists in verifying the prospects for intervention by the European Union and investigating the effects that this could achieve.