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

the threshold demanded by EU law. This however, was not without limitations, as it
will be seen further below.
3.3. Pressure on more lenient systems
In addition to the trend of increasing criminalisation, harmonisation - as envisaged in
ECL - places more pressure on more lenient legal systems than on more severe ones.
This is so as Member States are required to criminalise at least the conduct defined in
the Framework Decisions but can criminalise further if they choose to do so. They are
required to introduce liability of legal persons in certain cases but allowed to introduce
criminal liability in relation to more conducts. Finally, Member States are asked to
introduce minimum maximum sentences but yet again given freedom to retain or
introduce higher minimum maximum penalties than the ones set by the framework
decisions. In fact, no framework decision establishes a ceiling of punishment, liability or
criminalisation. This implies that Member States with more lenient criminal laws will
more likely be required to introduce new higher standards in order to comply with the
minimum EU standard. On the contrary, less lenient States are less likely to have to alter
(or to alter more significantly) their national provisions, for they are more likely to
already meet the minimum standard set by the EU’s legal acts. This was seen throughout
the chapter. Member States whose national criminal law provided for definitions of
criminal offences which were narrower than those proposed by the Framework Decision
had to broaden the scope of behaviours covered by the national norm in order to meet
the requirements of the EU framework decisions. On the contrary, Member States whose
national criminal law already provided for the criminalisation of those conducts did not
have to alter national law as national provisions already criminalised the behaviour at
stake. Likewise, it was also seen how some Member States who did not envisage the
liability of legal persons had to expand national rules on liability in order to meet the
requirements of the diverse framework decisions. Conversely, national legal orders
which already provided for the liability of legal persons did not have to expand the
scope of their national liability provisions as these already met the minimum
requirement of the framework decisions.
Moreover, because most measures until the entry into force of the Treaty of Lisbon
focused primarily on criminalisation and facilitation of prosecution (and less so on
procedural rights, for example), the bias towards an upper trend in severity of the
criminal law is further accentuated. This suggests that EU criminal law sets in motion a
dynamic where harmony between different domestic legal systems is sought through a
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