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

This dissertation seeks to advance our understanding of these issues by asking precisely
what the nature of European Union criminal law is. In doing so it will provide an overall
analysis of the field and look at the context and content of ECL, exploring its patterns,
rationales, focus and qualities.
Preliminary remarks: the scope, approach and context of the dissertation
Before engaging with the argument of this thesis, it is necessary to address some
preliminary points regarding the scope of this study. The first being: what is European
Union criminal law At present, regardless of the fact that criminal matters were
introduced in the EU’s agenda almost three decades ago, there are still several
approaches to its study and no clear or official definition of ECL exists yet. 16 The
definition and delimitation of the ‘criminal law’ has been discussed at the European
level without any definite conclusions being reached. Advocate General Mazák noted in
Commission v Council 17 that there is no uniform concept of ‘criminal law’ and Member
States may have very different ideas regarding the details, purposes and effects that
‘criminal law’ should have. He suggested that a way to define what should be included
in the concept of ‘criminal law’ could be the case law of the European Court of Human
Rights (EcHR), which has identified the possible application of a ‘criminal sanction’ as
the defining element of ‘criminal law’. In particular, in 1984 the EcHR held in the case
Öztürk, that the criminal nature of the penalty can be deducted from the general
character of the rule, the nature of the offence and the purpose and severity of the
penalty that could be applied, regardless of the formal classification that could have been
given to a norm. 18 In the case in question, the EcHR applied this reasoning to the
situation in which road traffic offences had been classified as mere ‘regulatory offences’
and not as ‘criminal offences’ in Germany. Consequently, the offender was not entitled
to a free interpreter during the so-called ‘administrative procedure’. In particular, the
EcHR held that
"there is in fact nothing to suggest that the criminal offences referred to in the
Convention necessarily imply a certain degree of seriousness" and that it would be
"contrary to the object and purpose of Article 6 (...), which guarantees to “everyone
charged with a criminal offence” the right to a court and to a fair trial, if the States
16
G.J.M. Corstens and J. Pradel, European Criminal Law (The Hague: Kluwer Law
International, 2002) 2; E. Herlin-Karnell, The Constitutional Dimension of European Criminal
Law (Oxford-Portland: Hart Publishing, 2012) 1.
17 Opinion of Advocate General Jan Mazak, Case C-440/05, supra note 11, para 69.
18 Judgement of the EcHR of 21 February 1984, Öztürk v. Germany, A 73, at paras. 47-49.
13