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

competence of the EC to legislate in criminal matters. The different EC Treaties did not
afford a competence to the EC to legislate in criminal matters and the fact that the third
pillar provided for such competence was often understood as proof that the legislator
intended to keep criminal law outside the realm of the EC. Regardless, concerns with the
effectiveness of EC policies began to be felt very strongly and criminal law was
increasingly envisaged by the Commission and the CJEU as a tool that could play an
important role in improving the effective implementation and enforcement of EC goals.
The raison d’être for the criminalisation of behaviour detrimental to EC policies and
goals was (and is) very different from that initially offered for the existence of a criminal
law of the EU. The initial EU criminal law was a direct consequence of the removal of
internal borders and of a perceived crime increase and the opportunities for crime that
could come with it. Accordingly, it was concerned with organised and other types of
related criminality. Criminal law as a means to protect EC policies, however, began to
be developed based on an idea of effectiveness of EC policies 937 and this competence is
acknowledged today by the TFEU. On the one hand, it seems natural that the Union
would, sooner or later, seek the protection of its own goals via criminal law. This need
could be said to be a natural urge of any legal order. On the other hand, however, this
raises two sets of questions about the development of ECL. The first question relates to
the expansion of criminal law from a substantive point of view. The EU is concerned
prima facie with building and regulating a single market and securing the rights of free
movement within that market. The use of criminal law to protect those values thus
entails an expansion in the scope of ECL itself. Whilst substantive ECL was initially
concerned with criminality associated with organised crime, now ECL is also concerned
with other types of domains—those related to EU policies.
The potential future increase in the scope of ECL reflects, to some extent, tendencies
also at the national level. Indeed, as seen in the introduction of this dissertation, national
criminal law has, in the past century, moved from the protection of core fundamental
values of society to assume a more regulatory role today and cover a significantly
broader range of topics within its scope. This expansion of national criminal law has
also revived normative debates on the criminal law about the functions of criminal law
and the criteria for criminalisation. For example, if criminal law is increasingly being
used as a regulatory tool, how can this accommodate principles such as the use of
criminal law as ultima ratio. This leads to another question–that of the justification for
the use of criminal law to protect EU policies. Before Lisbon, the effectiveness of EC
937 E. Herlin-Karnell, “Commission v. Council: Some Reflections on Criminal Law on the First
Pillar”, supra note 479; E. Herlin-Karnell, The Constitutional Dimension of European Criminal
Law (Oxford and Portland: Hart Publishing, 2012).
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