Insofar as immigration detention should not perform functions traditionally associated with criminal sanctions, the utilisation of migration law within the criminal justice system poses several challenges. Compared with the standards set by Directive 2008/115, the Proposal for an EU Return Regulation expands both the grounds for detention and the maximum permitted duration of this measure. In doing so, the European Commission not only risks making personal freedom the exception rather than the rule, but it also sidelines the Luxembourg case law and the recommendations of civil society actors. Furthermore, despite the fact that pre-removal detention should be carried out in facilities specifically designated for that purpose rather than in prisons, the Proposal permits irregularly staying third-country nationals to be detained in ordinary prisons without consistently guaranteeing their full separation from ordinary prisoners. By examining the proposed Regulation in the light of the principles developed by the CJEU and the ECtHR, this paper argues that, more than a decade after the humanitarian crisis faced by Europe, the Union appears to have drawn few lessons: migration continues to be perceived not as a human reality to be governed through rights, but as a threat to be neutralised through the instruments of criminal law.
Directive (EU) 2019/1937 establishes minimum standards for the protection of persons reporting breaches of EU law, including misconduct affecting the EU’s financial interests. Yet the Directive leaves Member States wide discretion in institutional design and enforcement architecture. This raises a constitutional question under Article 325 Treaty on the Functioning of the European Union (TFEU): can whistleblowing serve as an effective instrument for protecting the EU’s financial interests when reporting systems remain institutionally diverse? Adopting a functional comparative methodology, this article examines the post-transposition regimes of Italy, France and Ireland across five dimensions: scope of protection, reporting channels, institutional arrangements, anti-retaliation safeguards and enforcement capacity. The analysis identifies three dominant regulatory logics: a centralised supervisory model (Italy), a compliance-oriented integrity model (France) and a labour protection rights and remedies model (Ireland). While baseline convergence in protective guarantees has been achieved, significant divergences persist in how disclosures are assessed, prioritised and transmitted into administrative and criminal enforcement pathways, including those involving the EU’s Anti-Fraud Office (OLAF) and European Public Prosecutor’s Office (EPPO). Minimum harmonisation of safeguards is necessary, but insufficient on its own to secure the effectiveness requirement under Article 325 TFEU. Whistleblowing becomes a genuinely European instrument only where robust individual protection is complemented by institutional capacity ensuring timely triage, credible follow-up and coordinated escalation in cases affecting EU financial interests.
