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

Hence, the Court, whilst recognising national autonomy and competency in criminal
matters, set limits to the scope of criminal offences and penalties, noting that these
should be compatible with the smooth functioning of the internal market and should not
hinder the efficacy of EC law provisions. In Guerrino Casati, a case on the free
movement of capital, the logic of the Court is spelled out quite clearly:
“In principle, criminal legislation and the rules of criminal procedure are matters for
which the Member States are still responsible. However, it is clear from a consistent line
of cases decided by the court, that Community law also sets certain limits in that area as
regards the free movement of goods and persons. The administrative measures or
penalties must not go beyond what is strictly necessary, the control procedures must not
be conceived in such a way as to restrict the freedom required by the Treaty and they
must not be accompanied by a penalty which is so disproportionate to the gravity of the
infringement that it becomes an obstacle to the exercise of that freedom.” 134
Indirectly and occasionally then, the CJEU began to ensure that national criminal law
was either not an obstacle or, when possible, facilitated the realisation of EC goals and
the protection of EC’s interests and policies. With this modus operandi, the Court
positioned itself to potentially influence any provision of national criminal law if it
would affect the effectiveness of Community norms and policies.
1.2. Beyond EC policies and the common market: reaching out against transnational
criminality
Besides this subtle emergence of a link between domestic criminal law and EC policies,
a different and more significant set of arrangements in criminal matters were secretly
taking place in Europe. After the Second World War, criminal matters at the
international level was dealt with mostly under the auspices of the United Nations, the
Council of Europe and the European Political Cooperation initiatives (EPC), 135 leading
to the adoption of numerous conventions and the creation of cooperation fora. Whilst
many of these initiatives were close to the EC through Member States memberships and
shared concerns, they could not be taken on board by the latter given its lack of
competence to engage in criminal matters and the delicate nature of such political issues.
134
Case 203/80, Casati, supra note 96, para 27.
135 EPC describes the initiatives taken from 1970 onwards among Member States on matters
outside the competence of EC’s institutions, namely in matters of defence and foreign affairs.
EPC was brought to the realm of the Treaties under the Treaty of Maastricht.
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