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

individual and the State and which, in consequence, should remain within the sphere of
the State; and, on the other hand, those who thought about criminal law as any other
field of law and therefore saw no particular reason why the EC should not be able to call
upon criminal law to attain its own goals and to safeguard the integrity of its own legal
order. 456
Indeed, a role for criminal law in the protection of EC interests and policies was
becoming more established even in the context of the first pillar. The CJEU was, once
again, a fundamental actor in this regard, reaffirming its long established case law on the
relationship between Community and national criminal law. The assimilation principle,
for example, was further elaborated in Nunes and de Matos, in which the Court held
that,
“Article 5 of the Treaty requires the Member States to take all effective measures to
penalise conduct harmful to the financial interests of the Community. Such measures
may include criminal penalties even where the Community legislation only provides for
civil ones. The penalty provided for must be analogous to those applicable to
infringements of national law of similar nature and importance, and must be effective,
proportionate and dissuasive.” 457
Moreover, the Court further elaborated on the limits of the influence of Community law
on national criminal law, restating that a Directive cannot, of itself and independently of
a national implementing act, determine or aggravate the criminal liability of persons
who act in contravention of a directive. 458 The Court also incorporated general principles
of national criminal law into its own interpretation, such as the principle of retroactive
application of a more lenient penalty. This was clear in Berlusconi, in which the Court
asserted that the principle, being part of the constitutional traditions common to Member
States, also forms part of the general principles of Community law which must be
followed by courts when applying legislation implementing Community law. 459
456 V. Mitsilegas, “Constitutional Principles of the EC and European Criminal Law”, supra note
454, 302-303; see also S. White, “Harmonization of Criminal Law under the First Pillar” (2006)
31 European Law Review 81; and M. Wasmeier and N. Thwaites, “The Battle of the Pillars:
Does the EC have the power to approximate national criminal laws” (2004) 29 European Law
Review 613.
457 Case C-186/98 Criminal proceedings against Maria Amélia Nunes and Evangelina de Matos
ECR I-4890 [1999] para 14.
458 Case C-457/02 Criminal proceedings against Antonio Nisselli ECR I-10853 [2004] para 29.
This limitation had already been elaborated upon in the earlier stages of the development of ECL,
see Cases C-80/86 Criminal proceedings against Kolpinghuis Nijmegen ECR 3969 [1987] para
13; and C-168/95 Criminal proceedings against Luciano Arcaro ECR I-4705 [1996] para 37.
459 Joint Cases C-387/02, C-391/02, C-403/02 Criminal proceeeings against Silvio Berlusconni
and others ECR I-3565 [2005] para 68-69.
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