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

the EU sought to extend liability to legal persons and focused solely on laying down
minimum maximum penalties primarily regarding imprisonment. This, it will be
suggested, equally led some Member States to extend the class of subjects who can
attract criminal liability at the national level and to secure minimum maximum sentences
for harmonised offences, often increasing national levels of punishment. 83 These three
features of harmonisation of national criminal law led to an increase in formal
criminalisation at the national level by requiring States to introduce new crimes or to
extend the scope of pre-existing offences and by requiring them to extend liability to
legal persons as well as establish minimum maximum punishment. Furthermore, it will
also be argued that minimum harmonisation placed more pressure on more lenient States
as these are more likely to have to amend their national provisions in order to meet the
EU standard. 84 However, the chapter will also outline how minimum harmonisation and
this trend towards more severity in ECL encounters several limitations. First and
foremost, it does not create harmony amongst national legislation, since definitions
offered are too broad and vague; 85 second, the increase in criminalisation suggested is
merely formal as ECL does not account for practices of policing, prosecution and
punishment in each Member State. Hence, whilst it can be argued that ECL is leading to
a trend of increased formal criminalisation (the ‘law in the books’), the same cannot be
said of substantive criminalisation (‘actual levels of criminalisation’ which are also
dependent on the practices of criminal justice in each Member State--which remain
unpredictable and substantially untouched by EU law). 86
Chapter 5 will provide an analysis of the legal mechanisms of ECL and focus on the
principle of mutual recognition in criminal matters as the cornerstone of judicial
cooperation. It will suggest that although the principle was thought to be politically more
feasible than harmonisation, it has brought about deep and controversial changes to
criminal justice across the European Union. It has done so by granting Member States
enhanced tools for investigation, prosecution and punishment beyond their own national
borders in relation not only to Euro-crime but also in relation to other serious criminality
or, even in some cases, any criminality. 87 By doing so, the principle particularly benefits
more ‘active’ States–those who more readily prosecute—as they will be more likely to
make use of these tools. This punitive bias is further accentuated by the abolition of the
principle of dual criminality in most mutual recognition instruments. The principle
required an act to be considered a criminal offence in both legal systems involved in
order for cooperation to be operated. The abolition of this principle thus clearly favours
83 Chapter 4, section 3, 3.1 and 3.2.
84 Chapter 4, section 3.3.
85 Chapter 4, section 4.1.
86 Chapter 4, section 4.2.
87 Chapter 5, section 1.
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