Fundamental Rights Limits to EU Multilevel Criminalisation Choices: The Missed Opportunities and Constitutional Legacy of the Kinsa Case

The preliminary reference in Kinsa represented the first opportunity for the Court of Justice to rule on the validity of EU obligations to criminalise in relation to fundamental rights protection and on the compatibility of the relevant implementing provisions with the Charter. In particular, the case concerned the scope of the offence of facilitation of unauthorised entry in the territory of Member States as defined in Article 1(1)(a) of Directive 2002/90/EC and in the Italian substantive criminal law framework. Against these issues, not only did the Advocate General’s opinion and the Court’s ruling follow two radically different approaches, but they also gave rise to noteworthy issues from an EU constitutional law perspective. After recalling the key features of the Advocate General’s and Court’s respective reasoning, this contribution argues that their approach unveils missed opportunities for clarifying fundamental rights limitations to EU multilevel criminalisation. In particular, the analysis will show that key issues affect both the interpretation of the scope of the relevant EU obligation to criminalise and the review of the resulting offence’s legitimacy under Article 52(1) of the Charter. The final section advances some final reflections on the constitutional legacy of the Kinsa case.