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

not subject to control or enforcement mechanisms. It was thus difficult to control their
implementation by Member States or to follow through on any steps taken at the
domestic level. Their exact legal value was also contested. The large majority of
Member States and the Council were of opinion that joint actions were
“obligatory in law and that the extent of the obligation on the Member States depends on
the content and the terms of each Joint Action.” 269
But other Member States such as the UK and Portugal disagreed with this view and had
the opinion that Joint Actions were not automatically binding and that this would depend
on the text of each measure. Such an understanding appeared to be shared by Calderoni
who notes,
“the lack of obligations on Member States made Joint Actions useful tools for political
purposes without any actual obligation upon governments.” 270
The heart of the matter was that, as Walker noted, these third pillar measures revealed
themselves to be rather weak as they
“tended to be ‘soft’ rather than ‘hard’- facilitative rather than compulsory – and did not
penetrate the national legal systems sufficiently to confer rights and obligations on
individuals”. 271
This section has shown how the TEU(M) empowered the EU as an actor in criminal law
related matters for the first time in the history of European integration. It did so by
attributing a rather limited role to the EU in such a field. However, it will be seen in the
following section how this restrained formal approach was in contrast with the wide and
fast political and legal narratives on crime which were particularly felt at a structural
level.
more details D. Chalmers, G. Davies and G. Monti, European Union Law (Cambridge:
Cambridge University Press, 2010) 268-300.
269 Outcome of proceedings of K.4 Committee of 7 April 1995, Council Document 6684/95 of 4
May 1995.
270 F. Calderoni, “A Definition that Could not Work: the EU Framework Decision on the Fight
Against Organised Crime” (2008) 16 European Journal of Crime, Criminal Law and Criminal
Justice 266.
271 N. Walker, “The pattern of transnational policing”, supra note 238, 127. It should also be
noted that the Council, in the JHA domain in general and especially in asylum and immigration
matters, also made a large use of soft law instruments such as decisions and recommendations
and that these were necessarily non-binding upon Member States, Peers, EU Justice and Home
Affairs Law (Oxford: OUP, 2011, Third Edition) 14.
75