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

enforcement agencies were keen to expand police cooperation amongst Member States
in order to combat the increasing fears of organised crime and illegal immigration
although data on this possible increase were scarce. It will show how organised crime
was, for the first time, endorsed as a concept underlying Member States’ embryonic
common field in law and order matters. Finally, this section will show how the nature of
the arrangements created and their corresponding dynamics raised important
apprehension regarding the lack of accountability and lack of transparency of EC’s
action in this field.
1. The EC and criminal law: the neutrality of the early years
Criminal law was initially not envisaged as being part of the European integration
process and none of the three initial founding Treaties focused on matters of law and
order. The ESCC (European Coal and Steel Community) Treaty, signed in Paris in 1951,
aimed solely at establishing a common market in coal and steel and to supervise the
conditions of production across Europe. The Euratom Treaty (European Atomic Energy
Community) and the EC Treaty (European Economic Community), both enforced in
1957, aimed respectively at fostering the peaceful use of nuclear energy in Europe and at
creating a common market by regulating issues such as a common union, the four
freedoms (free movement of goods, persons, services and capital), commercial policy
and a general degree of fiscal and economic coordination between Member States.
Besides creating a common market the ECT also established a Common Agricultural
Policy. The three Treaties were thus silent regarding criminal matters and did not
attribute any competence to the EC to act in this field. This was further reasserted by the
European Commission who noted in 1974, that penal law was a subject which did not
enter the Community sphere 95 and by the CJEU who held in 1981 that
“in principle, criminal legislation and the rules of criminal procedure are matters for
which the Member States are still responsible.” 96
This is not to say that there was no room for criminal law or criminal law related matters
within the process of EC integration. First and foremost, one provision in criminal law
related matters could be found in the Treaties. Article 194 (1) Euratom Treaty imposed
an obligation of professional secrecy and required Member States to treat an
infringement of this obligation as falling within their jurisdiction and therefore to
prosecute the civil servant in question. This Article imposed a duty to prosecute upon
95
European Commission, 8th Report of Activities, Brussels, Luxembourg, February 1974, 79.
96 Case 203/80 Criminal proceedings against Guerrino Casati [1981] ECR 2595, para 27.
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