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

suggests that mutual recognition will almost certainly continue to be an area of
development.
Similar to the case of harmonisation, directives have also been proposed in this domain,
such as the Proposal for a Directive on a European Investigation Order—which will
replace the Framework Decisions on the European evidence warrant (EEW) as well as
the execution of orders freezing property and evidence. 958 The European Investigation
Order will have a significantly wider scope than the previous two measures. First, the
Framework Decision on orders freezing property and evidence solely covers the freezing
of evidence or property and not its transfer; second, the Framework Decision on the
EEW only covers evidence that already exists and, in any case, only documents, objects
and data. The proposed European Investigation Order applies to nearly all investigative
measures, with the exception of the setting up and gathering of information within a
Joint Investigation Team and the interception with immediate transmission and
interception of satellite telecommunications. The European Investigation Order, should
it come into force, will represent a significant strengthening of the State’s capacity to
investigate beyond national borders. Similarly, the Proposal for a Directive on the
freezing and confiscation of proceeds of crime in the EU, should it come into force, will
also broaden the scope of existing instruments. 959 For example, it will introduce
provisions on non-conviction-based confiscation in limited circumstances, with a view
of addressing cases where criminal prosecution cannot be exercised; allow for thirdparty
confiscation; and introduce the possibility of freezing powers in urgent cases in
order to prevent asset dissipation in situations where, waiting for an order issued by a
court, would jeopardize the possibility of freezing. 960
2.3. A more effective implementation
Finally, another reason pressing towards the assertion of the features of the two present
dynamics of ECL is the fact that the Treaty of Lisbon has created the conditions for the
merger of the three pillars, bringing police and judicial cooperation in criminal matters
into the ‘mainstream Union framework’. This will have a direct impact in the field by
granting the European Commission the capacity to bring infringement proceedings
against Member States who do not implement or incorrectly implement directives in this
958 Initiative (...) for a Directive of the European Parliament and of the Council of... regarding the
European Investigation Order in criminal matters, OJ C 165/02 [2010]. Note that the Framework
Decision on the EEW was adopted but did not come into force. See chapter 5. Council
Framework Decision 2008/978/JHA, supra note 700.
959 European Commission, Proposal for a Directive of the European Parliament and of the
Council on the freezing and confiscation of proceeds of crime in the European Union,
COM(2012) 85 final, Brussels, 13.3.2012.
960 Articles 4, 5, 6 and 7 of the proposed draft, ibid..
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