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

There is a clear focus on harmonisation of ‘minimum maximum’ sentences but not
‘maximum’ sentences for example. 672 In fact, Elholm argues that on occasion some
Member States with a history of leniency, while implementing several framework
decisions, chose to upgrade their national penalties not only to the minimum imposed
by the framework decision but, on occasion, to penalties more severe than the ones
proposed by the European Union itself. In general, regarding penalties, the author finds
that,
“investigation of the Nordic countries shows that more than half the framework
decisions have led to extensions of the penalty scales in one or more of the Nordic
countries. In several cases the minimum and/ or maximum penalty for certain crimes
have even more than doubled in one or more countries.” 673
This implementation by the Nordic countries shows how the national implementation
often goes beyond the EU standard yet still complies with it. In the context of criminal
law and, in particular, in the context of the implementation of criminalising provisions,
such implementation can translate into an increase in the severity of the national
standard of criminalisation and punishment.
In fact, the examples of actual and potential extended criminalisation in the EU space
given throughout the chapter, reflect the paradox of minimum harmonisation in
criminal matters: whilst the harmonisation of criminal law envisaged was minimal,
focusing merely on minimum elements constituent of crimes and penalties, this was
sufficient to have a significant impact on national legal orders namely by increasing
their scope of formal criminalisation. In fact, it was seen how many Member States
introduced new criminal offences or expanded the scope of pre-existing ones,
introduced criminal liability to legal persons or expanded the pre-existing framework of
such accountability, and introduced minimum maximum sentences - at times beyond
672 Indirectly however the fact that most framework decisions set the condition that penalties
must be ‘proportional’ does add some limitation to the measure of punishment at national level.
Moreover, all EU Member States have abolished the death penalty, see, for example, E. Baker,
“The Emerging Role of the EU as a Penal Actor”, note 13 supra. Regardless of these two
elements, the EU does not engage in the definition of what it thinks should be the actual
maximum penalty applicable.
673 T. Elholm, “Does EU Criminal Cooperation Necessarily Mean Increased Repression”, supra
note 637, 207; for the details on specific examples see pages 193-203. To be sure however,
regardless of an increase in imprisonment rates in Nordic countries, rates have been relatively
stable when compared with other legal systems. See comparable data on ‘World Prison Brief’,
available at http://www.prisonstudies.org/info/worldbrief/search=europe&x=Europe.
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