HARMONIZATION OF CRIMINAL LAW: IMPLEMENTATION OF EUROPEAN UNION POLICIES THROUGH CRIMINAL LAW

Abstract

This article addresses the nature of European Union criminal law (ECL). It
claims that ECL has evolved along two main expanding dynamics, both with a
significant punitive emphasis. The first dynamic of ECL focuses on the fight against
a particular type of criminality that the European Union perceives as threatening to
its goals - ‘Euro-crime’ - a criminality with particular features (complex in structure
and which attempts primarily against public goods) that reflects the nature of
contemporary societies. This focus was brought about by rationales such as the
fight against organized crime, the protection of EU interests and policies, and
recently, the protection of the victim. In turn, the second dynamic of ECL reinforces
the State’s capacity to investigate, prosecute and punish beyond its own national
borders. It does so, not only in relation to Euro-crime, but also in relation to a
broader range of criminality.
This article will further argue that these two dynamics have contributed to
a more severe penalty across the European Union by increasing levels of formal
criminalization; by facilitating criminal investigation, prosecution and punishment;
and by placing more pressure on more lenient States. Furthermore, it will claim
that this punitive emphasis of ECL has, more recently, begun to be nuanced. This
has taken place at the national level as some Member States have shown
reluctance to fully accepting the enhanced punitive tone of ECL instruments. It has
also taken place at EU level as the punitive emphasis of EU legal instruments was
modulated and the protection of fundamental rights has taken a more central place
in the ‘post Lisbon’ framework. Thus, at this later stage of ECL dialectic between
punitiveness and moderation began to surface. Having set the main dynamics of
European Union criminal law (ECL), this article will turn to the mechanisms or
principles through which ECL is developed
Having set the main dynamics of European Union criminal law (ECL), this
article will reflect the mechanisms or principles through which ECL is developed.
Hence, it will be focused on the harmonization of national criminal law. It will be suggested that harmonization of Euro-crimes is potentially bringing about a harsher
penalty across the European Union by increasing levels of formal criminalization.