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

The dissociation between formal and substantive criminalisation is further accentuated
in the context of the European Union, as ECL relies entirely on Member States to
translate EU standards into their national criminal justice systems. This was particularly
significant under the post-Amsterdam treaties which provided for a rather limited
institutional framework in criminal matters which could at times compromise correct
implementation of ECL (decision-making was to be done by unanimity, framework
decisions lacked direct effect, the Commission had no enforcement powers or specific
control over the implementation of ECL into national legal orders). 684
The Lisbon reforms nevertheless will strengthen the ‘post formal criminalisation
process’ as it will significantly improve the EU’s capacity to adopt directly effective
legislation and to police its implementation (decision making will be done by qualified
majority, framework decisions will be replaced by directives which have direct effect,
enforcement mechanisms will be available to the Commission and the Court will have
full jurisdiction). 685 The new TFEU will also leave open doors to further expansion of
the scope of EU Law. 686 This might suggest that criminalisation trends are likely to be
continued or further exacerbated as expansion in some domains, namely in relation to
EU policies is bound to push ECL into further domains of regulatory criminal law.
Conclusion
This chapter shed light on the nature of harmonisation of national criminal law. It noted
how the Treaties envisaged harmonisation as minimal in its range and depth but how in
fact it was taken considerably beyond these boundaries. Measures were adopted in
relation to Euro-crimes and these were defined through broad and catch-all concepts.
Organised crime in this regard continues to be a clear example of EU’s flexible and
broad approach to criminality. The chapter went on to show how harmonisation in
criminal matters is facilitating the expansion of the domestic punitive framework. This
was seen in three different ways: first, through the adoption of broad definitions of
crime by the EU which led some Member States to introduce new criminal offences in
their legal systems or to extend the scope of pre-existing ones; second, by requiring that
liability for criminal actions be extended to legal persons which led several Member
States to expand their domestic accountability framework; finally, by establishing
minimum maximum penalties to be applied by Member States which led at times to a
harshening of sentences at national level even beyond the threshold required by the EU
norm. Overall thus, it was shown that harmonisation of national criminal law is
684 Chapter 3, section 2.1.
685 Chapter 3, section 3.
686 Chapter 3, section 3.
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