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

“(… )involves the recognition of rules, goals and the processes and institutions through
which they are adopted and implemented in another system. Other forms of recognition
also entail some recognition of the other’s system, only the latter is, in reality, deduced
from the existence of policy coincidence or overcome if goal differentiation takes place
in a non-systematic area (a more limited and less sensitive policy).” 698
Finally, as Mitsilegas notes, mutual recognition is a true ‘journey into the unknown’ in
the sense that it requires national authorities of one State to accept, recognise and – in
criminal matters – execute a national standard from another Member State. Although
what is specifically being recognised is a specific national judicial decision, the latter is,
as just seen, the embodiment of a States’ policy choices. To be sure, in other domains, as
well as in criminal matters grounds for refusal to recognise have been introduced to
avoid the complete automaticity of mutual recognition. Hence, although a State is, in
principle, required to accept the other State’s national standard, it can still verify if
certain condition are met and, in case they are not, it can refuse such recognition. These
checks and safeguards however are being heavily contested in criminal matters as being
insufficient or inadequate as it will be seen below. 699
1.2 Expanding State power to any criminality
The principle of mutual recognition in criminal matters also has a broad scope. It was
seen so far in the thesis that ECL has been focusing for most of its existence on Eurocrimes
and that most of its measures have been adopted following an idea of need to
fight organised crime and protect EC interests and policies. However, with the adoption
of mutual recognition as the cornerstone of judicial cooperation in the European Union,
the previous focus of ECL unfolds into domains previously left entirely untouched by
the EU and in fact potentially to the entire realm of offences dealt with by domestic
criminal law. The influence of ECL on national law via mutual recognition has two
spheres. The first is composed of 32 serious criminal offence types in relation to which
recognition operates almost automatically. 700 This is achieved mostly by the abolition of
the principle of dual criminality in relation to those offences. Hence, States are required
to recognise and enforce judicial decisions of other States even when they refer to acts
which are not considered criminal offences by the law of the ‘recognising’ State.
698 Ibid., 823.
699 V. Mitsilegas “The Constitutional Implications of Mutual Recognition in Criminal Matters in
the European Union” (2006) 43 Common Market Law Review 1277, 1281-1282.
700 See, for example, Article 2(2) of the Framework Decision 2002/584/JHA, supra note 383.
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