The evolution of European Union criminal law (1957-2012)

progressive harmonisation of the minimum elements constituent of crimes and penalties
in the fields of organised crime, terrorism and illicit drug trafficking:
“Common action on judicial cooperation in criminal matters shall include:
(a) facilitating and accelerating cooperation between competent ministries and
judicial or equivalent authorities of the Member States in relation to
proceedings and enforcement of decisions;
(b) facilitating extradition between Member States;
(c) ensuring compatibility in rules applicable in the Member States, as may be
necessary to improve such cooperation;
(d) preventing conflicts of jurisdiction between Member States;
(e) progressively adopting measures establishing minimum rules relating to the
constituent elements of criminal acts and to penalties in the fields of organised
crime, terrorism and drug trafficking.”
Whilst the TEU(A) article mentions judicial cooperation in general, in 1999, the
Tampere European Council introduced the principle of mutual recognition as the
cornerstone of judicial cooperation in criminal matters. 391
1.2. A timid empowerment: limitations to the framework created
Despite its great dimensions, the role of the EU in criminal matters had significant
limitations. As the TEU(A) itself stated, Member States remained responsible for the
“maintenance of law and order and safeguarding of internal security.” 392 Indeed,
mechanisms were envisaged to facilitate cooperation among Member States but not as
an absolute transfer of competencies and responsibilities in criminal law.
Therefore, the new institutional arrangements were limited and conveyed a multifaceted
criminal matters reality within the EU. Decision-making arrangements, for example,
continued to raise accountability and transparency concerns similar to those during the
Maastricht period. On the one hand, the secrecy of some negotiations and the lack of
proper debate around important measures continued to be an issue. Douglas-Scott
commented on this in relation to the adoption of the Framework Decision on the EAW.
391 Presidency Conclusions, Tampere European Council, supra note 54. Tampere also envisaged
the creation of Eurojust, a body aimed at improving the fight against serious organised crime
through a more efficient judicial cooperation between Member States; Eurojust was officially
established in 2002 by the Council Decision of 28 February 2002 which set up Eurojust with a
view to reinforce the fight against serious crime, OJ L 63/1 [2002].
392 Article 33 TEU(A).
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