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

1.1 Expanding State power
The transferability of the principle from the single market to criminal matters
nonetheless has shown to be more complex than envisaged by the Commission. In fact,
it has been argued that the principle reaches further and is more demanding in the
criminal law context than in other policy areas. This is so because, whilst in other
domains mutual recognition ensures free movement of goods and persons, in criminal
matters mutual recognition ensures the free movement of judgments – the result of the
ultimate expression of national sovereignty. 694 As Lavenex argues, the applicability of
mutual recognition to criminal matters allows the principle to become an ‘instrument of
governmentalisation’ as it facilitates the free circulation of sovereign governmental acts.
This, the author suggests, enhances States’ sphere and capacity of intervention, in
contrast with mutual recognition in trade and consumption, which tends to enlarge the
freedom and rights of the individuals vis-à-vis the State. 695 Hence, mutual recognition
ensures that should a State choose to prosecute or punish someone the power to do so is
no longer limited to its own borders and law enforcement means but rather facilitated
across the European Union. National decisions can be deemed valid, recognised and
enforced beyond the domestic legal order and its physical and systematic boundaries.
Mutual recognition seems to lend a possibility of extraterritoriality to domestic judicial
decisions, consequently enhancing the State’s sphere of action. 696 Furthermore, mutual
recognition is more demanding in criminal matters as the type of recognition imposed is
not passive as in other domains. In fact, it requires States to lend their law enforcement
structures for the sake of the effectiveness of another State sovereign power. This is
ultimately a more demanding form of recognition – a form of ‘systems recognition’ as
Miguel Maduro labels it. 697 As Maduro explains, the mutual recognition of judicial
decisions is not based simply on the recognition of an applicable norm. Rather, it is
based on the assumption that the other State’s judicial and legislative decisions are
legitimate in systematic terms. This, the author continues,
694 For an overview and critique of the extension of the principle from other areas of EU
integration to criminal matters see S. Peers, “Mutual Recognition and Criminal Law in the
European Union: Has the Council Got it Wrong” (2004) 41 Common Market Law Review 5, 23-
28.
695 S. Lavenex, “Mutual recognition and the monopoly of force: limits of the single market
analogy” (2007) 14 Journal of European Public Policy 762, 765.
696 For more on the idea of mutual recognition as creator of extraterritoriality see K. Nicolaidis
and G Shaffer, “Transnational Mutual Recognition Regimes: Governance without Global
Government” (2005) 68 Law and Contemporary Problems 263, 267-268.
697 M. Maduro, “So Close and Yet So Far: the Paradoxes of Mutual Recognition” (2007) 14
Journal of European Public Policy 814, 823.
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