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

Moreover, other realms of interaction between EC and domestic criminal law were
being shaped. Since very early on, the CJEU began to influence national criminal law in
the context of some cases. At first, the Court’s influence upon national criminal law
differed from the legislative one seen above in that, instead of permitting or encouraging
the introduction of penal provisions, it rather sought to remove them or tone them down
when they would run counter to an EC provision or policy goal. Later on in the chapter
it will be shown that, over time, the CJEU also began to set some positive obligations on
Member States. Ultimately, the aim of the CJEU was to guarantee the effectiveness of
EC policies and the completion of the common market regardless of any penal options
Member States chose to pursue.
Sporadic examples of the Court’s influence on national legal orders can be found quite
early on. 122 The CJEU influenced, for instance, the definition of national criminal
offences. This took place in relation to the offence of ‘smuggling’ in the case
Redmond. 123 A Northern Ireland regulation prohibited the transport of bacon pigs unless
to specific purchasing centres and required the transporter to be in possession of a
document authorising the transport to those centres. The Court found that this
prohibition on transport was incompatible both with freedom of trade between Member
States and with the common organisation of the market in pig meats. Thus, it could not
be justified (not even as a means of frontier control against certain fraudulent
operations). And therefore, it found that the national regulation amounted to a measure
having the equivalent effect of a quantitative restriction on exports, hence violating the
free movement of goods. Similarly, in relation to smuggling pornographic materials, the
Court held in Henn and Darby that a ban to import pornographic materials into the UK
could be authorised only in so far as the articles imported would be considered obscene
under domestic law hence restricting the scope of the national offence. 124 This
understanding was later on confirmed in Conegate. 125 Hence, material not considered
obscene should not be covered by the national criminal law provision.
The Court also weighed in on the type and level of penalties found at the national level,
often finding them incompatible with the effectiveness of EC goals and with the
principle of proportionality. In relation to the free movement of persons and services, for
example, the Court held in Watson—a case concerning an Italian law which obliged
nationals to report non-nationals staying in the country within three days of their entry to
122 For a comprehensive overview and analysis of the influence of the CJEU on national criminal
law from very early on until approximately the mid-1990s see inter alia E. Baker, “Taking
European criminal law seriously” (1998) Criminal Law Review 361.
123 Case 83/78 Pigs Marketing Board v Raymond Redmond ECR 2347 [1978].
124 Case 34/79 Regina and Maurice Henn and John Darby ECR 3797 [1979].
125 Case 121/85 Conegate v HM Customs & Excise ECR 1007 [1986].
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