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

contemporary societies that primarily affects public goods and is complex in structure. It
will be suggested that this focus on Euro-crime was brought about by rationales such as
the fight against organised crime, the protection of EC interests and policies and, later,
on the protection of fundamental rights (mainly, victims’ rights). In this sphere of ECL,
the EU deploys a specific legal apparatus to secure the criminalisation and punishment
of these offences. It will be contended that the intensity of the EU’s criminalisation of
Euro-crime is high and has the potential to bring about harsher criminal law across the
European Union. This is so as the EU tends to adopt very broad definitions of criminal
offences (which potentially lead domestic legal orders to introduce new crimes or
enlarge the scope of pre existent criminal offences); seeks to extend liability not just to
natural persons but also to legal persons (often expanding the type of liable subjects at
national level); and seeks to harmonise the minimum levels of maximum penalties (but
not maximum levels). This severity in the criminalisation of Euro-crime is further
emphasised by the way that criminalisation is envisaged through minimal
harmonisation, which places added pressure on more lenient criminal justice systems.
This potentially affects the latter more as these are more likely to have to amend their
national provisions in order to meet the minimum EU standard. On the contrary, more
severe legal orders will more likely already meet such a minimum standard of
criminalisation and punishment.
The second dynamic of ECL engages the State as a penal actor and seeks to enhance the
national punitive apparatus by creating new tools that are at the disposal of Member
States for investigation, prosecution and punishment beyond national borders. This
dimension of ECL reinforces the ius puniendi of the State. It no longer necessarily
follows the thematic narratives of Euro-crime, focusing rather on a broader range of
criminality (potentially any criminality) and engages with a variety of domains in
national criminal justice systems (from evidence to custodial sentences or financial
penalties, among others). This second dimension is more recent in the history of ECL
and was enhanced particularly by the introduction of the principle of mutual recognition
in criminal matters in 1999. 54 This principle requires Member States to recognise and
enforce each other’s judicial decisions in criminal matters. In particular, mutual
recognition largely restricts the capacity of the executing State to refuse or set conditions
for cooperation, by imposing swift procedures and limiting grounds for refusal to
cooperate. In doing so the principle acquires a clear punitive bias, potentially favouring
more ‘active’ States - those who more readily prosecute - as these will more likely make
use of these EU tools for enhanced investigation, prosecution and punishment. Certain
features of mutual recognition further emphasise this punitive impetus, particularly the
54
Presidency Conclusions, Tampere European Council, 15 and 16 October 1999, para 33.
25