Recent Developments in the Area of European Criminal Law
| Published date | 01 March 2007 |
| Author | Ester Herlin-Karnell |
| Date | 01 March 2007 |
| DOI | 10.1177/1023263X0701400102 |
| Subject Matter | Article |
14 MJ 1 (2007) 15
RECENT DEVELOPMENTS IN THE AREA
OF EUROPEAN CRIMINAL LAW
E H-K*
ABSTRACT
is contribution trie s to highlight and scrutinize recent developments in the dyn amic area
of European criminal law at both the EC and EU level . In so doing the paper focuses on
three judgments each providing new pe rspectives on, in particular, but not only, how far
the Court of Justice is prepared to go in it s role as integration activist; by identif ying the
principle of e ectivene ss as forming the leitmotif in the chase for const itutional evolution of
Euro pean cri minal law. e paper concludes , a er also having di scussed current legislative
initiatives presented by the Commis sion, by asserting the need for caut ion and critical
assessment.
Keywords: EU crim inal law; European law; Competence and e ectiveness; Crimina l law
§1. I NTRODUC TION
Fo r a ny on e in te re s te d i n cr i mi n al l aw at th e EU le ve l, t he no t io n o f E u ro pe a ni z ed cr i m in a l
law is far from a new phenomenon although it has come to the fore of the harmoni zation
program me in recent years.1 Natur ally so, taking into consideration t he great expansion
of the European project; a fa mous tale which has far exceeded the domain of economic
interests, yet without conquering the t horny terrain of criminal law. is has, of course,
* DPhil candidat e, Somerville C ollege, Oxford. I am g rateful to Stephen Weatheri ll for very helpful
comments on thi s paper; I would also like to th ank the anonymous reviewers a nd the editor of this
journal for use ful suggestions (need less to say, the usual disc laimer applies). e paper was complet ed
in mid-Septembe r 2006 and slight ly updated in December 20 06.
1 For early anal ysis as regards t he relationship b etween EC law and nat ional crim inal law, see H. Se venster,
‘Crimina l Law and EC law’, 29 Common Market Law Review 29 (1992), J. Dine, ‘European Crimin al
Law?’, Criminal Law Review 246 (1993) and H. Hugger, ‘ e European Community ’s Competence to
Prescribe Nation al Criminal S anctions’, 3 European Journal of Crime, Criminal Law and Criminal
Justice 241 (1995).
Ester Herlin-Karnell
16 14 MJ 1 (2007)
made crimina l law one of the hottest topics currently dominating t he Union’s scene. Still,
criminal law, because of its peculiar relationship to the nation state, is the branch of law
which seems to be the most delicate, f rom a national perspective, in terms of adaptation
to the supranational level. A nd the EC has no explicit competence in this a rea.2 Not even
the EU has a general power to produce crim inal legislation – a lthough it is true that
European criminal matters found their formal e xpression within the th ird pillar and
intergovernme ntal cooperat ion. 3 Nonetheless, this ha s not meant that the EC lacked
interest in the cri minal law. On the contrary, the Community has for a long ti me shown
a fascinating appetite for this sphere and imposed various dut ies on the Member States
to include sanctions when enforcing EC law.4 In fact, t his eld has in ma ny ways o ered a
prime example of expand ing Community powers where the crimina l law has frequently
been brought within t he realm of EC law via the dynam ic provision of Article 10 EC5
or camou aged as ‘admi nistrative sanctions’ – the EC’s own quasi-penal system of
sanctions of a ‘non-crimina l law nature’, without many protests being raised (at least,
not loudly enough).6
Nevertheless, historical developments (normally) do not occur in the form of
sudden changes, but rather as a continuous ow which may be speeded up by particular
circumstances.7 In the context of European c riminal law, these changes came gr adually
with the Maast richt and Amsterdam Treaties, accompanie d by the Tampere conclusions.8
ey later escalated in the a ermath of various terrorist attack s, and were taken a step
further in the so-called Hague programme.9 But the developments were all, generally
speaking, i n the form of intergovernmental cooperation. What is a new pattern is,
accordingly, a recent and rather remarkable ac tivism by the Court of Justice; a n activism
which has funct ioned as an EC law lever for legislative initiatives.10
2 See however, Case 176/03 Commission v. Council [2005] ECR I-7879, discussed more f ully below.
3 See generall y, G.M. Corstens & J. Pradel, European Criminal Law, (Kluwer L aw International, 200 2).
4 is fol lows from Art. 10 EC. An earl y example is, of course, Case 6 8/88 Commission v Greece [198 9]
ECR I-2965.
5 Art. 10 EC states, in short, that the Member States shall take all appropriate measures to ensure the
ful lment of the obligation s arising out of the Treat y and facilit ate the achievement of t he Community ’s
tasks. ey shall a lso abstain f rom any measure which c ould jeopardise t he attainment of t he objectives
of the Treaty.
6 See in particular Case 240/90 Commission v. Germany [1992] ECR I-05383 and Case 210/00 Käserei
Champignon Hofmeister [2002] ECR I-06453 and C. H arding, ‘Explori ng the intersection of Eu ropean
law and national c riminal law’, 25 European Law Review 374 (2000).
7 As regards the h istorical dimension of Europe an criminal law, see e.g. H. Ju ng, ‘Criminal Justic e – A
European Perspective’, Criminal Law Review 237 (1993), C. Harding, ‘ e Identit y of European Law:
Mapping out the Europe an Legal Space’, 6 European Law Journal 128 (200 0), and K. Nuotio, ‘ e
Emerging Dimension of Europ ean Crimi nal law’, in P. Asp et al. (ed s.), Flor is, Juris et legu me, festskri
till Nils Jareborg, (Iustus, 2002).
8 European Cou ncil Tampere 1999.
9 e Hague progr amme: Strengthe ning Freedom, Secur ity and Justice in t he EU, adopted in November
2004, [2005] OJ.C 53/1.
10 See especia lly Case 176/03 Commission v. Council [2005] ECR I-7879, considered more fully b elow.
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