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

policies appeared as the main criteria for criminalisation. 938 In the post Lisbon
framework, the Commission is now trying to reconcile this goal with the principles of
subsidiarity and of criminal law as ultima ratio.
2.1.3. The emergence of criteria for EU’s criminalisation
The Commission issued a Communication in 2011 on the future of ECL and of a
‘European Criminal Policy’. 939 The Communication starts with the added value of
ECL. 940 This was something that thus far had not been addressed directly. According to
Klip, the Commission’s articulation of the need for a more consistent and coherent
criminal policy reflects the fact that ECL, thus far, was far from coherent and consistent
and that the necessity for certain measures in the field of criminal law was presented at
self-evident. 941 In the Communication, the Commission offers four particular elements
of added value of ECL, namely: the fostering of citizens’ confidence in their right to free
movement; the prevention of existence of ‘safe havens’ for criminals; the strengthening
of mutual trust for a better functioning of mutual recognition; and finally, the prevention
and sanction of serious offences against EU law in important policy areas. 942
Furthermore, the Commission also clarifies which principles, in its opinion, should
guide EU’s criteria of criminalisation. It mentions, first, the principle of subsidiarity,
noting that the EU should only legislate if, due to the scale and effects of a proposed
measure, its goals cannot be achieved more efficiently at a national or regional level.
Secondly, criminalisation should be in line with fundamental rights, as guaranteed in the
CFR and ECHR, particularly given the sensitivity of criminal law measures.
The Commission, taking these two principles into account, proposes a two-step
approach in criminal law legislation. A first stage when the EU should ask whether to
adopt criminal law measures at all. In this regard, the Commission suggests the
observance of the necessity and proportionality principles, i.e. the use of criminal law as
‘ultima ratio’. This requires the legislator to analyse whether measures other than
938 Ibid..
939 European Commission, Communication from the Commission to the European Parliament, the
Council, the European Economic and Social Committee and the Committee of Regions, Towards
an EU Criminal Policy: Ensuring the effective implementation of EU policies through criminal
law, COM (2011) 573 final, Brussels, 20 September 2011. This focus was further reasserted in
2012 by European Commissioner Viviane Reding, see her speech “Crime and Punishment: Using
criminal law to support growth and economic recovery”, Speech to the Expert Group on EU
Criminal Policy, Inaugural Meeting, Brussels, 19 June 2012.
940 European Commission, Communication ‘Towards and EU Criminal Policy’, ibid., 2-5.
941 A. Klip, “Editorial: European Criminal Policy” (2012) 20 European Journal of Crime,
Criminal Law and Criminal Justice 3.
942 European Commission, Towards an EU Criminal Policy, supra note 939. Klip argues that the
first three reasons given by the Commission are without merit, ibid., 5.
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