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

Chapter 5 Mutual recognition in criminal matters: building a European Union
investigation, prosecution and punishment legal order
Introduction
The principle of mutual recognition was endorsed by the European Council as the
cornerstone of judicial cooperation in the EU in 1999. Regardless of not being written in
the Treaties at the time, it has ever since deeply reshaped European Union criminal law
(ECL) and its relationship with national legal orders. This chapter will restate how in its
light, ECL went beyond its focus on Euro-crime and became virtually applicable to any
type of criminality. Furthermore, it will show that, being the most dynamic area of
integration in criminal matters it allowed for yet a further expansion of ECL into
domains thus far left untouched. It will be suggested that the ultimate goal of mutual
recognition has been one of facilitating State investigation and prosecution, and securing
and managing punishment beyond national borders. In doing so, the principle re
empowers the ius puniendi of the the State. Furthermore, the features of the application
of the principle in criminal matters accentuate its punitive emphasis by favouring States
who more readily prosecute or which criminalise more broadly.
Looking at the principle in more detail, it will be suggested that it experienced two main
stages of development. The first one featured a powerfully built punitive impetus where
prosecution and sentence enforcement were highly enhanced and fundamental rights
considerations were largely absent. As national legal orders struggled to accept and
adapt to the deep changes that this first period of mutual recognition brought about
(changes of, at times, constitutional nature), the principle entered its second stage. The
latter saw the punitive emphasis of mutual recognition surviving, although in a nuanced
form. This was seen in the integration of other elements, namely fundamental rights
protection, a more assertive role to the executing State, and a more managerial approach
to mutual recognition.
The chapter will seek to develop this argument through four main sections. Section 1
will look at the introduction and development of the principle of mutual recognition in
the domain of criminal law. It will provide an overview of how the principle was
borrowed from other domains of EU integration and how this was reflected in an
expansionist and demanding shape in ECL – in fact its application grants
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