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

derogations); 525 others proposed further rights to be added, such as a right to silence as
well as to the inclusion of ‘suspected persons’ and not only defendants. They found the
existent rights to be “too vague and set at too low a threshold”, 526 whilst in general the
question of whether the EU had competence to legislate in procedural matters was in
itself highly controversial. 527
The difficulties in the adoption of this latter instrument epitomise the greater emphasis
that was being been given to the discourse of criminalisation namely in relation to
organised crime and serious forms of criminality (and related ideas such as that of
victimhood). The latter had been favoured to the detriment of more procedural and
defendant-related approaches to criminal law. Indeed, even if the argument was to be
accepted that the TEU(A) did not provide a legal basis for the EU to enact measures
regarding procedural guarantees, such an argument could have been equally valid vis-àvis
the adoption of some harmonisation measures which sought the criminalisation of
behaviours of organised crime or EC interests and policies related, let alone victims’
rights on criminal procedure. However, as seen, the silence of the TEU(A) on these
matters suited diverse goals differently. On the one hand, the provisions of the TEU(A)
were interpreted broadly regarding criminalisation (and also victims’ rights), thus
allowing for the enactment of framework decisions in domains not directly mentioned in
Article 29 or 31 (e) TEU(A); on the other hand, however, they were interpreted narrowly
in relation to rights of suspects and defendants as some actors argued for EU’s lack of
competence. 528
2.2. Beyond Euro-crime and narratives: the ever-expanding scope of ECL
Whilst the hub of ECL continued to be Euro-criminality and these three justificatory
themes continued to play a central role in the preambles and texts of most legal acts,
other discrete themes were also present. The most important of these was the fight
against terrorism which after 2001 became quite visible in the EU’s political discourse
525 C. Morgan, “Proposal for a Framework Decision on certain procedural rights applying in
proceedings in criminal matters throughout the European Union”, in M. Leaf Cross-Border
Crime: Defence rights in a new era of international judicial co-operation (Justice, 2006) 93, 100.
526 House of Lords, European Union Committee, 9th Report of Session 2008-09, “Procedural
Rights in EU criminal proceedings – an update”, Authority of House of Lords, London, 11 May
2009, 5-6.
527 Lööf, for example, was of opinion that the EU could already legislate in areas of procedural
safeguards to the extent in which it was strictly necessary for the operation of the principle of
mutual recognition, R. Lööf, “Shooting from the Hip: Proposed Minimum Rights in Criminal
Proceedings throughout the EU” (2006) 12 European Law Journal 421, 428.
528 This scenario is now changing in the post Lisbon framework. See below in this chapter and
chapter 6.
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