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

it makes sense to consider the domains under mutual recognition as part of ECL. First,
because the scope of mutual recognition at the EU level finds correspondence in the
broad scope of national ‘criminal law’ in Continental European jurisdictions. Second, as
mentioned earlier, domains of criminal procedure and substantive criminal law are
increasingly seen as two sides of the same coin. 37 In a similar line of reasoning, and
particular to the context of the ECL, Mitsilegas notes, in relation to the European Arrest
Warrant (EAW)—the central measure adopted thus far in the context of mutual
recognition in criminal matters—that although an EAW is not a decision determining
guilt and punishment, its execution certainly facilitates prosecution. Hence, a narrow
definition of the scope of criminal law, such as one which would exclude surrender from
its ambit, would overlook the punitive character of that instrument. 38 Finally, the
exclusion of mutual recognition from the concept of ECL would ill suit the EU’s
institutional framework for criminal matters, which has always grouped harmonisation
and mutual recognition in criminal matters. These ‘headings’ were previously placed
under the institutional framework of the third pillar and, more specifically, under the
context of judicial cooperation in criminal matters. After the entry into force of the
Lisbon Treaty, the two now lie under chapter 4, Title V, of the Treaty on the
Functioning of the European Union (TFEU).
Hence, if ones takes into account the institutional framework of ECL and the
correspondence between national ‘criminal law in a broad sense’ and ECL, it makes
sense to delineate the two headings of harmonisation of national criminal law and
mutual recognition as the core of ECL. Therefore, European Union Criminal Law, for
the purposes of this dissertation, consists of the legal measures adopted under the
mechanisms of ‘harmonisation of national criminal law’ (also referred to as
approximation of minimum elements constituent of crimes and penalties) and
‘mutual recognition in criminal matters’ (or, until 1999—the date of the
introduction of the principle in criminal matters—under the general goal of
‘judicial cooperation in criminal matters’).
The historical-legal approach to the study of ECL
In seeking to delineate the nature of ECL, this thesis will adopt a combined historicallegal
approach. The first part of the thesis (chapters 1, 2 and 3) will analyse legal
developments through recent history, building a road map of the evolution of ECL. In
doing so, this section will shed light on the patterns, assumptions, rationales and focus
37 Ibid..
38 V. Mitsilegas, “The Transformation of Criminal Law in the ‘Area of Freedom, Security and
Justice” (2007) 26 Yearbook of European Law 26-27.
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