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

previously initiated ‘depilarisation’ with the case Commission v. Council, 553 recognising
the EC’s competence for the adoption of criminal law measures in relation to
environmental policy. This decision, however, was not without controversy, and further
stirred the discussion regarding the EC’s competence to adopt criminal law measures to
protect its own policies and interests. Potentially, the new TFEU provision allows for the
use of criminal law to ensure the implementation of any EU policy (in areas where
harmonisation had taken place) as long as this proved essential to ensure the
effectiveness of their implementation:
“If the approximation of criminal laws and regulations of the Member States proves
essential to ensure the effective implementation of a Union policy in an area which has
been subject to harmonisation measures, directives may establish minimum rules with
regard to the definition of criminal offences and sanctions in the area concerned. Such
directives shall be adopted by the same ordinary or special legislative procedure as was
followed for the adoption of the harmonisation measures in question, without prejudice
to Article 76.”
This provision allows for an expansion of criminal law as a regulatory tool to the large
majority of EU policies to guarantee their effectiveness. This raises a number of difficult
questions from a policy perspective. As Mitsilegas notes, this approach portrays the use
of criminal law by the EU as a “means to an end”:
“Criminal law is thus treated not as a separate Community policy or objective, but
rather merely as yet another field of law (along with civil law, administrative law, etc.)
which is there to serve the achievement of Community policies.” 554
Such provision clearly raises questions about the role, limits and impact of the use of
criminal law in and by the European Union. The idea of criminal law as ultima ratio
seems alienated from these arrangements whilst efficiency of EU policies becomes the
prima facie goal to be pursued. As the author further argues:
“This approach towards criminal law may be of concern to the extent it disregards the
special place of criminal law in domestic legal systems and the extensive safeguards
surrounding criminal law at the national level. (…) In this constitutional game, the
553 See supra note 464.
554 V. Mitsilegas, EU Criminal Law, supra note 14,110-111. For an argument that the Article
does not attribute a general power to regulate the single market via criminal sanctions, namely
because most criminal sanctions would not be ‘essential’ for the effective implementation of
Union policies, see J. Oberg, “Union Regulatory Criminal Law Competence after the Treaty of
Lisbon” (2011) 19 European Journal of Crime, Criminal Law and Criminal Justice 289.
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