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

question of ‘why criminal law’, or whether criminal law is actually necessary in specific
EC instruments appears to be sidelined.” 555
Furthermore, the opportunities for expansion of ECL do not end in the effectiveness of
EU policies. Indeed, the last paragraph of Article 83 (1) mentions the possibility of
further harmonisation beyond the list of the ten Euro-crimes mentioned. The door for the
adoption of further measures harmonising minimum elements of crimes and sanctions is
thus left open, subject to the criteria of the seriousness of the offence and its crossborder
dimension (both loose concepts):
“On the basis of developments of crime, the Council may adopt a decision identifying
other areas of crime that meet the criteria specified (…). It shall act unanimously after
obtaining the consent of the European Parliament.”
In addition, Article 82(2) on harmonisation of criminal procedure rules to support
mutual recognition, also allows for the possibility of adoption of further measures than
those referred to directly in the Treaties as long as these are adopted by unanimity and
with the consent of the EP. Indeed, competence is clearly granted to establish “minimum
rules”, which take “into account the differences between the legal traditions and systems
of the Member States”, when “necessary” to facilitate mutual recognition, in criminal
matters with a cross-border dimension, in matters of admissibility of evidence, rights of
individuals in criminal procedure and rights of victims of crime and:
“any other specific aspects of criminal procedure which the Council has identified in
advance by a decision; for the adoption of such a decision, the Council shall act
unanimously after obtaining the consent of the European Parliament.” 556
The provisions of the TFEU seem to follow a pattern of providing a sense of limitation
of competence and then immediately providing for the possibility to surpass such
restrictions. This pattern is considered to be compensated by the emergency brake
clause. However, a closer look at this mechanism shows how the same pattern is
repeated. Indeed, in the case a Member State makes use of this safeguard and an
agreement is not reached in the European Council after four months, the TFEU opens
the possibility for a limited number of Member States to adopt the measure among
themselves only – an enhanced cooperation mechanism:
555 Ibid., 111.
556 Article 82 (1) (d) TFEU.
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