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

levelling up of formal criminalisation, potentially bringing about a harsher criminal law
across the European Union. 674
Furthermore, the setting of minimum maximum sentences and the extension of the
criminal liability to more subjects, namely legal persons, also contribute to this reality.
As Husak explains,
“Even when more behaviour is not punishable, the category of persons who face
criminal prosecution [is] widened. The most obvious examples are juveniles and whitecollar
offenders each of whom had relatively little to fear from the criminal justice
system until the last quarter of the 20th century, but recently have become more
common prosecutorial targets.” 675
This scenario of increased criminalisation at national level as a consequence of EU law
implementation is not without two important caveats. The first relates to the fact that
ECL still leaves Member States with significant room to manoeuvre; the second relates
to the need to distinguish between formal and substantive criminalisation, as will be
explored in the next section.
4. The limitations of minimum harmonisation in criminal matters: uneven
implementation and unpredictable outcomes
In fact, the trend set in place by harmonisation measures needs to be analysed carefully.
Indeed, the harmonisation set in place does not avoid significant dissonance between
national laws, nor does it ensure an equal standard of actual criminalisation and
punishment at national level. It sets in motion a process but it does not have the tools to
see it through entirely. First, because the setting of a minimum standard only falls short
674 Husak in this regard argues that more criminalisation leads necessarily to more punishment:
“it is patently clear that more criminalization produces more punishment in a straightforward
manner: by expanding the type of conducts subject to liability. The incidence of punishment is at
unprecedented levels partly because defendants are convicted of crimes that did not exist a few
generations ago.” However, a direct causation between EU legislation and increase in
criminalisation at national law is not clear-cut. In fact, the distinction between formal and
substantive criminalisation is here essential. Hence, as it will be seen below in the chapter, formal
criminalisation does not necessarily need to lead to more substantive criminalisation as it also
depends on numerous factors of national criminal policy (Husak refers to the US system in
particular but the theoretical reasoning can be applied to the EU framework or any other legal
system for that matter); D. Husak, Overcriminalization, The Limits of the Criminal Law (New
York: OUP, 2008) 19-20.
675 We have omitted “has” and replaced it by [is]. Again, the author is referring to the US but his
argument is being applied to the EU case, Husak, ibid., 20.
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