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

domain. 961 This increased ‘policing power’ by the European Commission will very
likely encourage better domestic compliance - and hence more effective implementation
and functioning of the ECL mechanisms - given that implementation rates have been
generally poor in particular in relation to mutual recognition. 962 Furthermore, in relation
to the EAW, this might imply that the protectionist measures that some Member States
have adopted vis-à-vis dual criminality, the protection of human rights or the protection
of their nationals, can be brought into question by the Commission. It was shown in
chapter 5 how these national qualifications to mutual recognition brought about a degree
of moderation to the punitive emphasis of mutual recognition. Hence, if Member States
are forced to make these changes and withdraw these national qualifications mutual
recognition instruments will become more efficient, thus streamlining their punitive
features.
3. ECL’s punitiveness in context: national responses and specificities
It was seen in chapter 4 and 5 that the increase in scope of ECL is leading to more
formal criminalisation at national level and increasing the States capacity to investigate,
prosecute and punish. The trend in upwards punitiveness in ECL is, nevertheless, not
without important caveats and limitations. Although ECL has indeed set in motion the
conditions that can lead to a more severe criminal justice, its actual impact has
limitations and remains in flux. These limitations were point out earlier in the thesis and
remain valid in the post Lisbon framework. They were identified first in relation to the
harmonisation of national criminal law, particularly in the fact that there is a substantial
amount of national law that is left untouched by harmonisation measures—making the
ultimate outcome of national implementation uneven if not unpredictable. This takes
place because the focus on harmonisation is on legislative measures alone and does not
account for practices of policing, prosecution and practices of sentencing at the national
level. These, nonetheless, have a strong influence in the actual domestic levels of
substantive criminalisation. Hence, a wider scope of formal criminalisation, such as the
one set in motion by ECL, will not always translate into more substantive
criminalisation or harsher practices of punishment. These will be equally dependent on
national penal cultures and policies, which still vary significantly across the European
Union. 963
Likewise, in relation to mutual recognition, it was shown how domestic legal orders
reacted very differently to its introduction in criminal matters. This was particularly
961 Article 267 TFEU.
962 See chapter 5.
963 Chapter 4, section 4. See also below.
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