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

account as a reference. Indeed, several authors have preferred an approach that takes the
particular institutional framework under which criminal matters in the EU were placed,
as a starting point. Mitsilegas, for example, includes five main areas of development of
EU action in criminal matters in his ‘EU Criminal Law’ textbook: ‘harmonisation and
competence’, ‘mutual recognition’, ‘bodies, offices and agencies’, ‘databases’ and the
‘external dimension of EU criminal law’. 24 Similarly, Fletcher, Lööf and Gilmore
assemble the domains of ‘police cooperation in criminal matters’, ‘judicial cooperation
in criminal matters’, ‘substantive criminal law’ (which corresponds to harmonisation of
national criminal law) and the ‘external dimension of EU action in criminal matters’
under the title of ‘EU Criminal Law and Justice’. 25 These headings correspond largely
(but not only) to the three main dimensions that criminal matters might assume within
the EU legal order. The first dimension—that of harmonisation of national criminal law
(also referred to, on occasion, as ‘substantive criminal law’)—concerns the EU legal
measures adopted with the purpose of approximating national substantive criminal law,
in particular the minimum elements constituent of crimes and penalties. 26 The second
dimension, corresponds to the principle of mutual recognition which has been, since
1999, the cornerstone of judicial cooperation in criminal matters in the EU and aims at
ensuring that judicial decisions of one Member State should, as far as possible, be
recognised in other Member States. 27 Finally, the third dimension—police cooperation
in criminal matters—concerns a wide range of norms which vary from measures
concerning crime prevention, the collection and exchange of data relating to policing
and other forms of cooperation between national law enforcement authorities, as well as
the functioning of EU bodies with a role on policing and cross-border police
operations. 28 The approaches to the study of ECL that follow this institutional
dimension, rather than concerning themself with finding a definition of what ECL is
exactly, consider the different ‘criminal law dimensions’ within EU’s legal order.
Facing the difficulty in determining what ECL is and the different approaches to its
study and analysis, it is useful to look at national definitions of the ‘criminal law’ for
some guidance. In doing so, one finds that the definition of ‘criminal law’ at a national
level is also complex. Indeed, it will be seen, defining criminal law at national level has
proven difficult and has led to the emergence and prevalence of formal definitions. As
Sanders and Young suggest, there is no universal definition of ‘criminal law’ and what
24 V. Mitsilegas, EU Criminal Law, supra note 14.
25
M. Fletcher, R. Loof and B. Gilmore, EU Criminal Law and Justice (Cheltenham-
Northampton: Edward Elgar, 2008).
26 Harmonisation of national criminal law finds its legal base today under Article 83TFEU and
partly under Article 82(2)TFEU. ‘Partly’ as Article 82(2)TFEU refers to harmonisation of
criminal procedure for the purposes of facilitating mutual recognition only.
27 Mutual recognition finds its legal base today under Article 82 TFEU.
28 Police cooperation in criminal matters rest today under Article 87-89 TFEU.
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