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

of ECL was conditioned by the limitations of the EU institutional framework in this
domain. 564 Hence, the Amsterdam framework clearly brought to light the fact that the
consensus in penal matters across EU countries was thin and biased towards further
criminalisation. Generally speaking, agreement was reached in relation to certain themes
and goals only: the provision of ‘high level’ of ‘safety’ within an area of freedom,
security and justice; the enactment of criminalisation measures to fight new threats such
as organised crime in relation to which policy documents were portraying a distressing
picture, the enactment of more criminal law also for regulatory goals such as the
completion of the single market; the facilitation of States’ ius puniendi beyond national
boundaries; and the figure of the victim. Not surprisingly, some of these themes echo
emergent features of criminal justice in some western legal systems. The use of criminal
law into an increasing number of policy domains, 565 a politicised tone in discourses
around criminal justice, 566 a focus on criminalisation and less so on procedural rights or
issues of rehabilitation and ressocialisation of defendants, 567 the salience of the figure of
the victim 568 among other traits. 569 However, the chapter has also shown that the Lisbon
reforms brought about important changes to this framework. The TFEU introduced new
domains of competence in relation to criminal procedure for example and brought in a
more balanced institutional framework with the full participation of the EP and the
CJEU. Furthermore, it will also be seen in chapter 6 how measures in the domain of
criminal procedure have already been proposed or adopted. Nonetheless, the
identification and mapping of the themes, rationales, focus and institutional patterns of
ECL, however useful, still says little about the qualities of ECL. The next two chapters
will thus engage with those issues by analysing harmonisation of national criminal law
and mutual recognition in criminal matters, the two central legal mecanisms of ECL.
564 The most striking example of this was the failure of the adoption of measures on basic
procedural rights which was halted mostly due to the demading decision making criteria.
565 N. Lacey and L. Zedner, “Legal Constructions of Crime”, supra note 32, 184-185. See also
chapter 2 for more details on this point.
566 D. Garland, The Culture of Control, supra note 42, 10.
567 Ibid., 1-26.
568 J. Simon, Governing through Crime: How the War on Crime Transformed American
Democracy and Created a Culture of Fear (Oxford/ New York: OUP, 2007) 75-110; E. Baker,
“Governing Through Crime – the case of the European Union” (2010) 7 European Journal of
Criminology 187.
569 See chapter 6.
152