“We must re create the European family in a regional structure called, it may be, the United States of Europe.”

Winston Churchill, 1946

INTRODUCTION

The lack of a United States of Europe (Winston Churchill's comment notwithstanding) has always made so much harder the task of conceptualizing a European criminal law. The current European model does not entail European criminal legislation enacted by a European Congress, enforced by European Agencies and applied by the European judiciary. The “European way” of criminal law has been much more complicated. A fear of losing too much sovereignty in an area that has traditionally been regarded as inherent to states’ sovereignty always impeded proposals for establishing a genuine European criminal law. Also important, the repeatedly cited democratic deficit of EU institutions, especially Parliament/Congress, has posed additional constraints in the criminal law field which is in constant need of valid justification. Furthermore, the unwillingness of the Member States to support the construction of a European jurisdiction, even for areas that are traditionally closer to EU interests, raises concerns whenever a proposal is put forward.

Notwithstanding the strong resistance to a system of European criminal law, the relentless development of EU law in general has exerted an increasing influence over criminal law. As noted below, from a law in action perspective there is, so far, no genuine European criminal law but rather a harmonizing effect over the national criminal legislation and jurisprudence of the EU Member States. However, the aftermath of the sovereign debt crisis of 2010 instigated EU institutions to adopt a harsher approach to enforcement. The proposal of a Directive on the fight against fraud to the Union's financial interests by means of criminal law and the Proposal for a Council Regulation on the establishment of the European Public Prosecutor's Office are clear examples of the new approach.

From an academic and policy perspective, there are some key areas that respond better to the logic of European criminal law. The establishment of the principle of mutual recognition as the pillar of judicial cooperation in criminal matters has been a key development in this field. Nevertheless, as it will also be elaborated, there is a new tendency to go beyond mutual recognition, propelled by the dramatic events of the EU sovereign debt crisis and increased need to protect the EU's financial interests.