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

want to be talking about a simple abstract legal entity. This, accordingly, is an enquiry
reachable only via an historical review. 52
In historicising the evolution of ECL, its broader context has to be taken into account.
Indeed, although the norms enacted under the goals of ‘harmonisation of national
criminal law’ and ‘mutual recognition in criminal matters’ will be the main focus of this
dissertation, they need to be contextualised, for their existence was influenced by other
norms, actors, practices and institutions. As it will be shown, the institutional framework
of the EC and EU and of the ‘third pillar’ has always strongly influenced the scope and
shape of the ECL. In particular, it has strongly limited the areas in which the EU could
intervene in criminal matters. Furthermore, within this institutional framework,
particular areas of development have influenced ECL. This is the case, prima facie, of
police cooperation in criminal matters and of the CJEU. As seen earlier, many studies in
European Union criminal law have brought developments relating to police cooperation
into their scope. Indeed, police cooperation has been a central axis of development of
criminal matters in the EU and has significantly influenced the scope of ECL. This was
predominantly the case during the first stages of ECL’s development. Another important
axis of development has been the case law of the CJEU. The Court has influenced the
scope of ECL by strengthening one of its mains rationales of intervention and has
influenced its shape by providing guidance on the modus operandi of ECL as well as on
national criminal law. Equally, political developments in EU criminal matters have
deeply influenced the scope of ECL. In general, these different domains of interaction
with criminal matters provide the general context of the development of ECL and are
important to the understanding of the EU’s own criminalisation process. Hence, these
and other related developments that have provided context to the development of ECL
will be referred to throughout the thesis when they are necessary to fully explain the
nature of ECL. Their use will not be comprehensive, but merely accessory to the aim of
providing context to ECL.
The historical perspective and the political and institutional context of ECL are used as a
means to give context and shape to the present dynamics of ECL. Chapter 4 and 5 will
then look at the qualities of ECL, through the analysis of the two main mechanisms:
harmonisation and mutual recognition in criminal matters. The approach in these two
chapters will be more legal and analytical than the previous chapters. The focus will be
on the mode and intensity of ECL as well as on how criminalisation operates within
ECL. In relation to harmonisation of national criminal law, which covers matters related
to ‘substantive criminal law’, the emphasis of the research enquiry will be on the main
52 RA Duff, L. Farmer, SE Marshall, M. Renzo and V. Tadros, “Introduction: The Boundaries of
the Criminal Law”, supra note 48, 1, 7, 9-10.
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