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

Framework Decision on trafficking in human beings have thresholds of penalties of
equal severity for offences against goods and against persons. 681
4.2. The distinction between formal and substantive criminalisation
Second, harmonisation and the increase in criminalisation seen earlier might not
translate in similar levels in prosecution and punishment in national legal systems. This
is so as harmonisation of national criminal law focuses on legislative measures alone
and it does not account for the functioning of criminal justice systems at national level
(a domain largely ignored by ECL). Consequently, police and judicial norms,
guidelines and practices, for example, remain outside the scope of EU harmonisation
measures. However, whilst these are not harmonised, they determine strongly policing
or prosecution and ultimately the levels of punishment of a legal system. Hence, even if
Member States would all implement equally the same framework decision divergence
could still occur. As Lacey notes, a distinction between formal criminalisation
(legislation, treaties, statutes – ‘law in the books’) and substantive criminalisation
(actual application of the law) ought to be made for
“Substantive criminalisation might increase or decrease in a world of stable formal
criminalisation, while expanded criminalisation will not necessarily lead to greater
substantive criminalisation unless certain other conditions – notably an increase in the
resources available to enforcement agencies, and/ or the changes in their incentives –
are met.” 682
Hence, a wider scope of criminalisation in the law will contribute to but not always
translate into actual harsher practices of punishment. 683
681 A. Weyembergh, “Approximation of Criminal Law”, supra note 617, 1585-88.
682 N. Lacey, “Historicising Criminalisation: Conceptual and Empirical Issues” (2009) 72 The
Modern Law Review 936, 946.
683 An interesting example of mismatch between a high level of formal criminalisation and a
comparably low substantive criminalisation is the case of Italy during the Mussolini’s regime.
The Rocco Code adopted in 1930 laid down very severe maximum sentences, throughout
statutory minimum sentences and imprisonment as the primary method of punishment.
Nonetheless, sentencing practice during those years was much more lenient than such code would
suggest, thus toning formal criminalisation down; see V. Ruggiero, “Flexibility and intermittent
emergency in the Italian penal system”, in V. Ruggiero, V. Ryan and J. Sim (eds) Western
European Penal Systems: A Critical Anatomy (London: Sage Publications, 1995) 46, 51-52. For
more examples of mismatch between formal and substantive criminalisation mainly due to the
practices of judges and prosecutors in France and Germany respectively, see M. Cavadino and J.
Dignan, Penal Systems, supra note 78, 338. Chapter 5 will also point out how different States
make radical different use of prosecution instruments.
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