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

Conclusion
The introduction and development of the principle of mutual recognition in criminal
matters embodies a paradox. Mutual recognition was chosen as an alternative to
harmonisation as it was thought to be less demanding given that the measures adopted
do not aim to alter national criminal law (this is a task for harmonisation). However, this
perception does not match the impetus and reach of its influence. With mutual
recognition, ECL now reaches virtually any type of criminality as well as extensive
domains of criminal justice. Furthermore, it does so by facilitating and enhancing
criminal investigations, prosecution and punishment beyond national borders, adding yet
another punitive layer to ECL. The EAW is a stringent example of the punitive reach of
mutual recognition in practice.
However, these new developments of ECL were received with resistance by many legal
orders which struggled to accept some of the most fundamental changes brought about
by the EAW and mostly so the principle of non extradition of nationals and the abolition
of dual criminality. Many of these reactions were of no small importance and re-wrote in
part the constitutional dialogue between the EU and some Member States. This
resistance was novel to ECL and might signal that the limits of ECL were partly reached
for the time being. The lack of interest in the implementation of financial enforcement
measures and the moderation in the tone of the instruments adopted post EAW also so
suggests. Furthermore, the latest measures on mutual recognition show some moderation
in the punitive tone that characterised some of the first framework decisions adopted.
This modulation was done in particular via a partial or complete reintroduction of the
principle of dual criminality and by an acknowledgement, even if to a limited extent, of
the rights of individuals as defendants or prisoners.
Finally, it should be noted that mutual recognition was made to continue to be the
central area of development of ECL under the post-Lisbon settlement. Under the new
framework, implementation will be required and enforcement mechanisms to sanction
Member States will be in place. 905 These changes can interfere with the status quo, given
that so many Member States failed properly to implement the measures in force
(implementation is thus likely to improve under the post-Lisbon framework).
Furthermore, the passage of time will also shed light on how the more moderate
instruments are being implemented and or used (or not) by Member States. In fact, it
was seen in this chapter that mutual recognition tools are at the disposition of the States.
905 See chapter 3.
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