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

It is beyond the scope of this thesis to draw comparisons between national and EU
trends. Yet, this short overview provides some context to ECL, which appears to share
some themes of this emerging ‘culture of control’: 974 the sheer volume of penal
measures, the emphasis on ‘safety’ and ‘security’ in the Treaty itself as well as
secondary legislation, the often nearly populist tone of some policy documents (mostly
the action plans on organised crime 975 ), the importance given to the victim, and the
secondary place given to the objective of rehabilitation, amongst some other
characteristics. 976 More significant to the main argument of this dissertation is the fact
that, as shown in chapters 4, 5 and above on this chapter, ECL, in its present form, is
capable of potentially accentuating some of the trends of increasing punitiveness at the
national level by contributing to more formal criminalisation and by facilitating
prosecution, investigation and sentence enforcement across the EU.
On the other hand, however, although trends towards increasing severity are seen
nowadays in many national penal orders, not all EU countries have taken that punitive
turn. Hence, some countries have managed to escape this rise in penal severity or at least
to maintain important levels of moderation and commitment to due process. Lacey
points out how some ‘coordinated market economies’ (in opposition to ‘liberal market
economies’ such as the US and the UK) although also enduring important
transformations, 977 have managed to sustain relatively moderate penal policies, and
974 Garland mentions twelve main indices of changes to crime control in the UK and USA in the
past 30 years, including the decline of rehabilitative ideal, the emergence of punitive sanctions
and expressive justice, changes to the emotional tone of crime policy, the return of the victim,
obedience to new mottos such as ‘above all, the public must be protected’ (this places emphasis
on imprisonment – incapacitation – and has led to a relaxation of concerns about the suspects’
civil liberties and prisoners’ rights), politicisation and populism of crime control, the reinvention
of the prison, the transformation of criminological thought, the expanding infrastructure of crime
prevention and community safety, the commercialisation of crime control in civil society, new
management styles and working practices, and a perpetual sense of crisis, D. Garland, The
Culture of Control, supra note 42, 5-26. For an analysis on how these new cultures of crime
control can help to explain some features of EU’s governance in the context of the area of
freedom, security and justice, see E. Baker, “Governing Through Crime – the case of the
European Union”, supra note 568.
975 See mostly chapter 3.
976 Possibly, the most striking commonalities are to be found in the domain of policing, not
covered by this thesis. Very briefly, the EU has built for the past decades, a significant apparatus
of databases for information sharing on individuals, between different national authorities and
national and EU authorities. For an overview of EU developments see V. Mitsilegas, “Databases
in the area of freedom, security and justice: Lessons for the centralisation of records and their
maximum exchange” in C. Stefanou and H. Xanthaki (eds) Towards a European Criminal
Record (Cambridge: Cambridge University Press, 2008) 311. This echoes US trends towards a
police culture of information gathering and information sharing which have been accentuated
particularly after the 9/11 attacks, see, for example, P. P. Swire, “Privacy and Information
Sharing in the War on Terrorism” (2006) 51 Villanova Law Review 951.
977 As noted in chapter 4, section 3.2. some of these changes were a result of the implementation
or direct influence of ECL harmonisation instruments, see in particular T. Elholm, “Does EU
Criminal Cooperation Necessarily Mean Increased Repression”, supra note 637.
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