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

More notably, the most significant development towards the protection of EC interests
and policies via the criminal law was made by the CJEU when adjudicating on a dispute
regarding the competence of the EC (not the EU) to directly adopt measures of a
criminal nature. Indeed, despite the silence of the ECT(A) in relation to Community
competence on criminal matters as well as the existence of the third pillar, the
furtherance of EC goals via criminal law, in the context of the first pillar, was becoming
a pressing point in the Commission’s agenda. As Borgers and Kooijmans point out, the
importance of the legal basis for adopting criminal measures had everything to do with
the characteristics of Community law and EU law relating to police and judicial
cooperation in criminal matters. Under the first pillar, measures would be adopted within
the Community’s competences and by means of a directive and not of a framework
decision. This would imply that
“(…) the legislative procedure designated in the EC Treaty has to be followed – usually
the co-decision procedure in which decisions can be taken ‘only’ by qualified majority –
and the Court of Justice can rule in an infringement action on the way in which the
relevant directive is to be implemented, as well as give interpretation of the rules of that
directive in a preliminary ruling procedure.” 460
As the authors go on to argue, and as seen earlier in this chapter, under the third pillar
framework decisions were adopted by unanimity and the role of the CJEU was limited.
This suggested that, in principle, legal acts to protect EC interests and policies could be
more easily adopted under the first pillar than under the third and that they would further
benefit from the role of the Court syndicating the enforcement of these measures in
national legal orders.
In this context, the Commission made several attempts during the Amsterdam era to deal
with issues of criminal law within the first pillar itself. This was the case, for example,
of a proposal for a Directive on fraud against the Community Financial Interests 461 as
well as a proposal for a Directive on the protection of the environment via criminal law,
both made in 2001. 462 The Council opposed the Commission’s view that criminal
measures could be adopted under the first pillar and rejected the Commission’s
proposals. Furthermore, the Council went ahead and followed through on an initiative by
460 M. J. Borgers and T. Kooijmans, “The Scope of the Communities Competence in the Field of
Criminal Law” (2008) 16 European Journal of Crime, Criminal Law and Criminal Justice 380.
461 European Commission, ‘Proposal for a Directive of the European Parliament and of the
Council on the criminal law protection of the Communities’ financial interests’,
COM(2001)272final, Brussels, 23 May 2001.
462 Ibid..
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