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

given within three months. 397 The same could be said about the European Commission.
As Monar notes, although the Commission was given a shared right of initiative, it was
to assert it in
“the ‘climate’ of the intergovernmental framework which tends to limit its actual
possibilities of influencing decision making” at least in the earlier stages of its new
role. 398
Furthermore, the primary instrument of ECL introduced by Amsterdam – the framework
decision – was of limited strength. Article 34 (2) (b) TEU(A) held that framework
decisions were binding upon the Member States as to the result to be achieved, leaving
national authorities the choice of form and methods. The Article further noted that
framework decisions were not to have direct effect. This exclusion was a clear
differentiation from directives, the equivalent instrument in the context of the first pillar.
The fact that framework decisions could not entail direct effect was highly limiting in
legal force, even more so in a domain where individual fundamental rights are often at
stake, such as in criminal law. 399 Furthermore, the TEU(A) did not provide for any
mechanism of enforcement or control of Member States’ implementation of framework
decisions. This, once again, was in sharp contrast with the first pillar, under which the
Commission could lodge infringement actions under Article 226 ECT(A) if it found a
Member State had not implemented a directive correctly or had not implemented it at all
and it had failed to follow the Commission’s advice to do so. Likewise, conventions
remained weak as legal instruments mainly because they depended on the political
goodwill of Member States to be ratified and this process was not always expedited.
This difficulty was felt strongly - to the point that some mechanisms to compensate for
these limitations were created. Den Boer notes how the introduction of the ‘rolling
ratification’ procedure aimed precisely at avoiding the paralyses of a draft convention,
as it allowed their entry into force once adopted by at least half of the Member States (in
their territory only). 400
397 Article 38 TEU (A).
398 J. Monar, “Justice and Home Affairs after Amsterdam: The Treaty Reforms and the Challenge
of their Implementation”, supra note 385, 267, 283.
399 The principle of direct effect, briefly, allows individuals to invoke EU law provisions before a
national court against the State (vertical direct effect) or against another individual (horizontal
direct effect) when certain conditions are met; See for more details D. Chalmers et al., European
Union Law, supra note 268, 268-300.
400 M. den Boer, “An Area of Freedom, Security and Justice: Bogged Down by Compromise”, in
D. O’Keefe and P. Twomey (eds) Legal Issues After the Treaty of Amsterdam (Oxford/Portland:
Hart Publishing, 1999) 279, 317.
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