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

etween police forces in matters of hot pursuit and cross border observation, on mutual
assistance in criminal matters, extradition, protection of personal data, transport and
movement of goods, transfer and execution of criminal judgments, the fight against
drugs, and the coordination of fire arms legislation. It also established the Schengen
Information System (SIS). The Convention entered into force on 26 March 1995 among
seven Member States of the EU – France, Germany, Belgium, the Netherlands,
Luxembourg, Portugal and Spain - and was probably the measure which further pushed
for a deepening in police cooperation between Member States. This was particularly so
with the introduction of mechanisms of cross border observation 291 or pursuit of
criminals across borders and into the territory of other signatory States (the so-called
‘hot pursuit’). 292 Adding to these two mechanisms the Convention also contained
provisions on the facilitation of extradition 293 or the transfer of the execution of
judgements between the signatory States, 294 among others.
2.2. Beyond the letra legis of the Treaty: harmonisation of national criminal law
The TEU(M) only made express reference to judicial and police cooperation. Yet, a
significant bulk of measures was adopted with the intent of harmonising minimal
elements of national criminal law and penalties. Swart, for example, argued that
harmonisation could be derived from the TEU(M), as “cooperation” could be given a
wider meaning including the coordination and accommodation of the differences
between diverse national legislation and policies, which was to be addressed by different
forms of cooperation, including harmonisation. Certainly, harmonisation had been
mentioned and attempted in the past but such initiatives had always been unsuccessful
for political reasons, as one or more countries found difficulties in engaging in such
deep form of cooperation. 295
According to Anderson and Den Boer, harmonisation was, at the time, felt to be
necessary at least at two levels: first, to prevent so-called “jurisdiction shopping”, where
291 Article 40, ibid..
292 Article 41, ibid..
293 Article 59, ibid..
294 Article 67, ibid..
295 For example in the Palma document – “The Palma Document on free movement of persons”,
supra note 175, Section III. To be sure, more attempts at harmonisation were made since the
sixties. In 1962, a working party of government representatives was formed to analyse the
possibility of harmonisation of national law mainly in relation to fraud caused by loopholes in
legislation although an agreement was not possible as France did not agree with some
extraterritorial options. In 1972, a new group was formed and two draft Treaties were submitted
to the Council, one regarding the criminal liability of EC civil servants and the other one the
protection of EC financial interests, but these two projects also fell through. See Sevenster,
“Criminal Law and the European Community”, supra note 113, 36.
81