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Constructing Europe's Area of Freedom, Security, and Justice through the Framework of “Regulation”: A Cascade of Market-Based Challenges in the EU's Fight Against Financial Crime

This article builds upon the idea that the EU's regulatory efforts in the EU Area of Freedom, Security, and Justice (AFSJ) are embedded with difficulties. The article argues that the current strains in the EU-AFSJ policy-making regime are caused by two things in particular. First, the EU's tactic in the AFSJ appears to depart from the classic internal market-based formula of the removal of obstacles for market creation and thereby ventures into the EU criminal law domain with all of its inherent complexities, without an adequately matured legal framework to endorse its policies from within. Second, to the extent that the EU adopts the market theory template in the AFSJ, there are global elements to the EU's sanction policies, These features confirm a hybridity in which legal sources are interacting within the AFSJ field. There is a clear complexity to the EU's fight against financial crimes and its interaction with the multiple sources of EU law where the meanings of “regulatory” and “risk assessment” need to be clarified. This article suggests that the current approach by EU's institutions to push forward the market theory model is a mistake, and that the AFSJ needs to be analyzed within the context of “regulatory powers,” which would lead to a better understanding of the AFSJ framework. This article aims to do so by using the political science concept of “regulatory” to critique the EU's current strategy and thereby argue that the legal debate on the development of the AFSJ could benefit from a more nuanced reading of the definition of “regulatory,” and thereby help to construct the AFSJ and increase its effectiveness.