Criminal Law and Philosophy

, Volume 1, Issue 1, pp 57–78

European criminal law and European identity


    • Erasmus University Rotterdam
    • Vrije Universiteit Brussel
Original Paper

DOI: 10.1007/s11572-006-9006-x

Cite this article as:
Hildebrandt, M. Criminal Law, Philosophy (2007) 1: 57. doi:10.1007/s11572-006-9006-x


This contribution aims to explain how European Criminal Law can be understood as constitutive of European identity. Instead of starting from European identity as a given, it provides a philosophical analysis of the construction of self-identity in relation to criminal law and legal tradition. The argument will be that the self-identity of those that share jurisdiction depends on and nourishes the legal tradition they adhere to and develop, while criminal jurisdiction is of crucial importance in this process of mutual constitution. This analysis will be complemented with a discussion of the integration of the first and the third pillar as aimed for by the Constitutional Treaty (TE), which would bring criminal law under majority rule and European democratic control. Attention will be paid to two ground breaking judgements of the European Court of Justice (ECJ) that seem to boil down to the fact that the Court actually manages to achieve some of the objectives of the CT even if this is not in force. This gives rise to a discussion of how the CT (and related judgements of the ECJ) may transform European criminal law in the Union to EU criminal law of the Union, thus producing an identity of the Union next to the identities prevalent in the Union. The contribution concludes with some normative questions about the kind of European identity we should aim to establish, given the fact that such identity will arise with further integration of criminal law into the first pillar.


European criminal lawEuropean identityLegal traditionJurisdictionSovereigntyConstitutional Treaty EU


Could European Criminal Law in the broad sense (including criminal legislation, criminal procedure, mutual recognition of justice-related decisions and operational cooperation) sustain a fluid and strong European identity that is at once coherent and diverse? This is the question I will attempt to at least raise in this contribution. To arrive at the beginnings of an answer, I will explore the intricacies of (European) identity-construction in terms of the concept of legal tradition and will look into the way the European Community, the European Union and the Constitutional Treaty involve the ius puniendi to reinforce and transform European identity. The subsequent question which identity should be supported by a European criminal law will be touched upon, although it is not the focus of this article.

To advance the argument I will presume two things: first, that Europe will not survive as Europe if it essentialises its identity as either monocultural or multicultural. 1 What is needed is a sense of the intercultural both within Europe and beyond, without however discarding identity altogether. Second, I will presume that criminal law is one of the factors that is constitutive of the identity of a people in a strong sense: a people discriminates itself from other peoples in the way they criminalize behaviour; in the way they treat suspects and defendants and in the way they treat those that are judged and sentenced.

This contribution is divided in four parts. After this introduction, the section on “Identity, criminal law and legal tradition” has its focus on a philosophical analysis of the relationship between self-identity, criminal law and legal tradition. As a start I will discuss the relation between identity and legal tradition. I will plead that they are mutually constitutive, which means something more and something less than a causal or moral relationship. Next I will expound on criminal procedure and substantive criminal law and the relationship between law and legal tradition, after which I will discuss and counter two arguments against Europeanisation of criminal law, based on a defence of the national character of criminal law: first the argument that criminal law is a matter of local justice and second the argument that criminal justice is part of sovereignty. In the section on “A European criminal law to sustain a fluid and strong European identity?” focuses on a legal–theoretical analysis of European criminal law, based on the idea that such a criminal law presumes and affects our European identity. Next I will explain that the integration of the first and the third pillar as aimed for by the Constitutional Treaty (TE), would bring criminal law under majority rule and European democratic control. In a discussion of two ground breaking judgements of the European Court of Justice (ECJ)—given after the rejection of the CT by French and Dutch voters—I will argue that the Court has in fact already began to move important aspects of criminal law from the third to the first pillar, thus achieving the same objectives as the CT. I will then discuss how the CT and related judgements of the ECJ transform European criminal law in the Union to EU criminal law of the Union. The final section “Closing remarks: which identity: what unity, which diversity?” will conclude with some normative questions about the kind of identity, unity and diversity we should aim to establish.

Identity, criminal law and legal tradition

Identity and legal tradition

European identity?

The question of European identity is often articulated with reference to geographic, historical and/or cultural factors (Jansen, 1999; Pagdan, 2002.Some would claim that the US and Australia are part of Europe, while others seek to demarcate Europe by drawing the border between the Latin and Byzantine spheres of influence. The perspective of Europe being an idea rather than a territory has allowed the discussion of European identity to move beyond naïve conceptions that rely on the rhetoric of the national state with its fixed boundaries. However, this idea seems incapable of explaining what European identity means for members and aspired members of the EU. One can be an EU citizen without “feeling” European, and one can be a Turkish citizen or a resident of Boston and “feel” distinctly European. If the roots of Europe can be located—partly—in the grand Mediterranean Roman empire, what should stop the North African states from successfully applying for membership if we focus on “the idea of Europe”? It may be tempting to seek common denominators or even one common denominator for a European identity, for instance referring to cultural traits that uniquely identify European culture from other cultures. Even diversity itself could be termed such a common denominator. In this contribution I will follow another line of thought, less focused on the identification of inherently European attributes than on the process of identity construction and the role that law and legal tradition can play in this context. My claim is that there is no “inherently European identity” other than the one we decide to construct while (re)building our complex transnational society. 2 For this reason I will not use the concept of culture to discuss European identity, but the concept of tradition, in the sense used by the Canadian legal comparativist Glenn. 3

In Legal Traditions of the World, Glenn proposes that “identity is a current preoccupation in the world, though it is probable that without contact between societies, there would be no concern for identity”. 4 He goes on to say that “concern for identity arises from external contact; identity is then constructed by explicit or implicit opposition. The other becomes essential in the process of self-understanding. At the same time the other is an ongoing menace to internal cohesion”. For the idea of a European identity this is a very interesting perspective, for two different reasons.

First of all it may seem that a European identity as such does not really exist: the identities of “European” citizens are tied to the national state rather than to the emergent European Union. Being European for a long time indicated nothing but a geographical orientation, without the strong connotations linked to a term like identity. For most of its history the EC did not meddle with sensitive issues like foreign policy, education or criminal policy that were considered to be part of the domain of the Member States. However it seems that some identification with Europe is around, even if it does not replace the strong bonds between citizen and national state. Interestingly, art. I-10 of the CT confirms art. 17 of the Treaty of the European Community (TEC), declaring every national of a Member State to be at once a citizen of the Union (and a citizen of her Member State). This creates a mixed, multiple and/or double identity that raises questions concerning the relationship between these two identities: what happens if they conflict; do they overlap; do they influence each other; is their relationship hierarchical; could it be that one is only formal while the other is more substantive? While such dual identity confirms Glenn’s observation that the issue of identity emerges as soon as one is confronted with another, it is all the more interesting, since this other would in this case be a part of one’s European self. The negative vote on the Constitutional Treaty (CT) in France and the Netherlands in 2005 can be interpreted in a variety of ways, but should not too easily be read as a sign that voters discard their sense of being European. It may rather be the case that speaking of a European Constitution sounds too much like transforming the EU into one huge national state, which does not appeal to and in fact seems to frighten citizens within Europe. 5 Even though the important question why the French and the Dutch voted against the CT will not be the subject of this contribution, some answers may be derived from its main thesis. This thesis can be summarized as the proposition that large traditions such as the European tradition need to foster a complex, dynamic identity that allows a coherent plurality of shifting and overlapping identities in order to sustain continuity. This demands a criminal law that adds to the constitution of a coherent European identity without altogether overruling national, regional or intercontinental identities. In the third part of this contribution I will elaborate the content of the CT, in so far as it is relevant for criminal law in and of Europe, to demonstrate how the CT attempts to walk the tightrope between the imposition of unjustified unification on the one hand and irresponsible fragmentation on the other. It could be that French and Dutch citizens are uncertain about whether the CT strikes the right balance in this regard, preferring the present state of affairs to signing away part of one’s national identity to an as yet unknown European jurisdiction.

The second reason why Glenn’s perspective should interest us, is the fact that European identity is not only opposed to the national identity of the Member States but also to identities outside the Union like those of the US or China. Europe wants to assert its particular identity versus other nations, (con)federations or even broader political or cultural entities (de Búrca, 2005). When discussing business models or research agendas the EU often refers to the importance of developing a European model of doing things: less hegemonic, more social, less focussed on technology in isolation, more on interdisciplinary approaches. The EU Constitutional Treaty (CT)—like the Treaty of the European Community (TEC) and the Treaty of the European Union (TEU)—comprises several references to European ways of doing things. Safeguarding and enhancement of Europe’s cultural heritage presumes an existing European identity with historical roots that must be preserved. 6 The stress on respect for cultural, religious and linguistic diversity, 7 is reinforced with a stress on unity in diversity, 8 including the taking into account of the differences between the legal traditions and systems of the Member States. 9 All these references seem to emphasise diversity and difference as essential ingredients of a specific European identity that is inherently pluralist and has to be protected and advanced as such, even if the TC added an emphasis on unity and aimed for a consistent redistribution of the attributes of sovereignty between the Member States and the different organs of the European Union. 10

Considering what is at stake for Europe as a player in the international arena, 11 facing strong competition from both the US and parts of Asia and Latin America, it is important to find out how identities evolve: whether they are constructed, imposed or grow of themselves and what could be the role of (criminal) law in this process.

The concept of identity

To investigate this, some more thought should be given to the concept of identity, 12 especially relevant in the light of the rejection of the CT as this will—wrongly—be interpreted by some as a rejection of a European identity.

The term identity can refer to sameness and to selfhood. Identity in the sense of sameness can refer to continuity: sameness between one’s face yesterday and one’s face today indicates that despite minor differences yesterday’s face is the same face as today’s. Sameness can also refer to the fact that two different entities (like two houses) can be identical (designed by the same architect, built according to the same blueprint). So, identity can be connected with comparison and sameness, even if it identifies a unique entity—as long as this remains identical with itself over time. What is clear in all these instances is that identity does allow for difference and even seems to presume it: the fact that I can identify you as the same person as yesterday does not imply that you have not changed; the fact that two houses built on the basis of the same design are different in many small ways does not hinder my judgement that they are indeed the same houses. The only time that sameness seems to exclude difference is when we say that something is always identical with itself. But one could of course say that this is a rather trivial statement that is true for as long as one ignores the passing of time.

A second meaning of identity is selfhood. When I speak of my identity I refer to my sense of self. Besides Glenn whole branches of philosophy and social psychology have built on the insight that the sense of self is born in the confrontation with the other (Ricoeur, 1992; Mead, 1934/1959). We can demonstrate this process of being born as a subject or a self by listening to a child that learns the use of the first personal pronoun. If you tell a child “you are Peter and I am John”, while pointing first at the child and then at yourself, the child will start by confirming “you Peter” (pointing at himself) and “I John” (pointing at you). It takes time for the child to realise the curious paradox that he is “you” to you, but “I” to himself. He has to learn to take the perspective of the other—to move beyond imitation—to realise his subjectivity and his sense of self.

On the one hand identity in the sense of sameness seems to refer to a different category than identity in the sense of selfhood. Numerous things can be identified as the same, without any reference to selfhood. A closer look brings out two links between sameness and selfhood. First, to decide that things are the same we need a perspective from which they appear as the same: the objectification that designates objects in the world as the same, is unavoidably performed by a subject (a self). So to single out sameness presumes selfhood. Second, selfhood seems to presume (1) sameness over time, and (2) sameness over and against otherness. 13 Both types of sameness (over time and in relation to others) are dynamic (a person regards herself as the same over time and in relation to others without denying changes) and they both presume a performative action on behalf of the person that claims this sameness.

If we now return to the topic of a European identity the stress on unity in diversity seems almost trivial: as seen above identity does not exclude difference but rather presumes it. It is difference that calls for a decision on what in the midst of all the diversity is still the same. If we take diversity to be given, the effort has to go into the lines along which similarity is established. As Wittgenstein has demonstrated this similarity is never given, but has to be decided upon time and again. 14 So, how does this decision come about and what is the function of the law in all this?

Identity and legal tradition: Mutually constitutive?

Law can be understood as part of the normativity that holds together a people (Geertz, 1983), giving this normativity a kind of robustness that allows people to legitimately and effectively anticipate each other’s actions. In other words, legal norms provide common standards to which those that share jurisdiction will tune their behaviour. Crucial for the identity of a people is the fact that they share jurisdiction in the broad sense (implying either a territory, kinship/descent, adherence to a certain religion or a mix of these that determines—and is determined by—the competence to speak the law). 15Shared jurisdiction implies that courts are constrained by the same legal rules, while at the same time it is also the courts that decide on the meaning of those rules on a case to case basis. Jurisdiction is always limited regarding the people it concerns (rationa personae, based e.g. on the territorium they inhabit; the function they have been attributed or their descent) and regarding the subject matter that falls within its scope (rationa materiae, based on constitutive distinctions between for instance science, religion, politics, morality and law). These limitations are historical artefacts: fruits of organic growth within a specific environment; of the imposition of specific constraints by internal or external powers; of the imported features of other legal traditions or the fruit of a mix of such influences. One could say that jurisdiction is thus constitutive of the identity of those that share its rule: by constraining them and not constraining others and by constraining in a certain way and not in another way, law makes it possible for a people to identify as the same people, allowing them to speak of themselves as different from other people. At the same time the law, the specific constraints that a people live by, is a product of the identity of a people: because the Dutch for a long time believed that harsh punishments have little positive effect and are difficult to legitimise, the courts—facilitated by the legislator—inflicted mild punishments. Even though the Dutch still think of themselves as having a mild penal climate the reality is quite different—in accordance with changed attitudes detected in public opinion. There is no chicken or egg here; legal tradition and the identity of those that adhere to it determine each other. They are mutually constitutive—a shift in the one will entail a shift somewhere in the other.

So far I have used the terms law and legal tradition in a rather loose way, as near synonyms. To understand the mutually constitutive relationship between the identity of a people within a certain jurisdiction and the legal tradition they adhere to, it is important to indicate how I use the terms law and legal tradition. 16 Following Glenn I would like to stress that a tradition is a bran-tub of information on how to perceive the world and how to do things. 17 This information comes to us from past actions, decisions, texts and has to be translated into present actions by those that draw on it. A legal tradition is the bran-tub of information that is mined by those that adhere to it, to decide how to act. While acting they add information, but to motivate new actions this new information will again have to be translated to the new situation. A legal tradition is strong and vulnerable, like water: its historicity—or pastness in Glenn’s terms—is at once its strength and its weakness. The metaphor of the bran tub is salient because it indicates the rich abundance of information contained by the tradition, often allowing adherents to mine its contents for opposite purposes. To work with the information it will have to be translated into the demands of the situation that calls for a solution, because the information in the tub does not speak for itself. This process of translation reveils the crucial role played by the lawyers, who speak for what is hidden in the bran. Law could be defined as the result of this translation—interpretation—of the legal tradition. However, such a conclusion may be too easy. We have a circle here: while the law is certainly the product of the lawyers’ translation it then becomes information and returns to the bran-tub. To retain a hold on a people it will have to be edited, revised, and cultivated again and again. So law is part of the information of a legal tradition and also its result. As its result it can be described as the specific normativity that authoritatively constrains people in their daily actions, telling them what they can do, what they must or should do and what they cannot, must not or should not do (the differences stem from the way a legal tradition views the world, for instance in the Islamic tradition conduct is divided into five classes: compulsory, rewarded, indifferent, disapproved and forbidden) (Glenn, 2004a, p. 201). We may conclude that the law that rules in a specific jurisdiction, rooted in a specific legal tradition, thus constitutes the identity of those that share its jurisdiction by constraining them in a specific way that identifies them as such.

Criminal law, criminal procedure, the biography of a legal tradition

Substantive criminal law

The robustness of the normativity produced by a legal tradition makes it different from other traditions, like religion or modern science, that function within the realm of its jurisdiction. The normativity of the Western legal tradition is imperative rather than persuasive, even though this does not mean that it can do without persuasion (maybe one of its problems is that instrumentalist administrative law depends too much on its imperative aspect). 18 In principle the imperative aspect of legal norms has a strong impact on the identity of those that are ruled by them, since it means that in the end legal norms can be enforced. If this is the case, criminal law must have a particularly strong impact. After all criminal law is an expression of the legitimate violence a state may exercise after establishing a violation of the criminal law, so the authoritative aspect is unfolded publicly. This could mean that criminal law is constitutive of the identity of those that share its jurisdiction in a very strong sense, more so than other branches of law. 19 The constraints sanctioned by means of criminal law are apparently considered to be crucial for the survival of the polity that has criminalized them, thus reinforcing them as the core of what unites a people, of what demonstrates their sameness and selfhood. What is criminalized: prostitution or only forced prostitution and smuggling of illegal aliens; preparation of a crime or only the crime itself; criminal intention or only accomplished crime (or only the attempt, or only serious attempt); rape outside or also inside a marriage; animal abuse including or excluding maltreatment in bio-industry; possession, selling and/or use of which drugs; euthanasia; abortion? If a European Criminal Law means that dual criminality is dropped as a condition for international legal cooperation, 20 does this mean we trust other jurisdictions to have made the right choices or does it mean we give up part of our identity for the greater good of catching cross-border suspects? Short-term priorities may tempt one to settle for the last option, but a durable and sustainable European identity demands mutual trust based on a shared understanding of punishable behaviour.

Criminal procedure

The same goes for criminal procedure: the process that prepares judgement in a criminal case is as much the embodiment of constraints specific for a particular legal tradition as substantive criminal law. The rules that govern criminal procedure constrain the way a government can decide to punish: these rules indicate the relationship between a government and its people. What positions do prosecutor, judge and defendant have in the trial; who is being heard at what point; what counts as evidence; how is the burden of proof distributed; is a defendant protected against self incrimination; is the trial public; does the defendant have access to relevant information in time; which checks and balances have been incorporated to supply the defendant with equality of arms; is the trial contradictory or even adversarial; is the judge independent; how are judges recruited; which guarantees have been installed to safeguard the impartiality of the judge; is the prosecutor a crime-fighter or is he obliged to defend the possible innocence of the defendant? Do we wish to accept as evidence in our own legal procedure what has been obtained in a jurisdiction that has other investigative methods and counts as evidence what would be excluded as illegal in ours? Is the resistance we feel here due to the infringement of our sovereignty or of our identity? Is there a link between sovereignty and identity? 21

Biographies of a legal tradition

A legal tradition—the bran-tub of enacted statutes and codes, judicial decisions and other legal actions—has a history, or rather a biography. The history is the sequence of its pastness; the biography starts when one reflects on this history and translates what one finds important into a story that makes sense. As a person, to have an identity one must be able to link and communicate ones pastness into an integrated story, a narrative that explains the complex and contradictory person we have become in the course of our life. This story explains why we are this person and not another, thereby claiming and confirming that we are the same self over the course of time (the explanation is performative). 22 The identity of a legal tradition is even more complex, contradictory and fluid because it has to be sustained beyond the pastness of a single person: necessitating a memory that survives the lifetime of a human person and somehow provides coherence to the diversities of and between those that share its jurisdiction. The leading story of a legal tradition, the side-stories as well as competing stories thus form a network of ever to be reconstructed biographies that form the identity of the tradition. This again indicates the fragility of identity because it depends on these narratives: our pastness means nothing until we select, link and translate the information from the bran tub to explain how we are constrained today. Being part of a tradition means that we cannot invent just any story because we will have to relate it to the information available within the tradition—even if we borrow from other traditions—but the information does not speak for itself: most of the time we do have different options to construct a story.

This is interesting for European integration. It means that to some extent we do have a choice—as Member States—of which story to tell. If the prevailing biography of our national legal tradition does not dictate terms because a biography itself is part of the bran-tub and depends on hard work to become or remain the leading version of the tradition, then it is up to us to claim or not to claim infringement of our identity by the imposition of a European Criminal law (whether substantive or procedural).

Criminal law, local justice and sovereignty

For a long time the idea of a European criminal law was discarded on the grounds that it is—and should be—part of the national legal tradition. The argument that criminal law should remain within the national jurisdictions is based on two—interrelated—presumptions: (1) as the constraints protected by means of criminal law are crucial for the identity of a people decisions on the criminality of certain actions should be left to the legislators and courts of that people (criminal justice should be local justice); (2) as the sanctions imposed by the criminal law are directly related to the state’s monopoly of violence the scope and application of the criminal law fall within the domain of the sovereign national state (criminal justice is part of sovereignty).

Both presumptions beg the question they intend to answer. Regarding the first presumption, if criminal justice should be local justice it may be very important to agree on a European criminal law, because it would install a form of local European justice and thus produce or strengthen European identity. The counterargument that local justice refers to a smaller territory than that of the Union raises the question why criminal justice in that case is regulated from the national level instead of the regional or any other “local” level. One answer to that question could be that a unified national law does not stand in the way of localised differences in the interpretation and application of the law, while at the same time the system of judicial appeal will guarantee coherence at the national level, thus producing and protecting legal certainty and equality before the law. In that case the presumption that criminal law is or should be a matter of local justice does not necessarily plead against a European criminal law; it rather pleads a specific arrangement in which both the unity of the law and the diversity of its application are safeguarded (see Amstutz, 2005).

Regarding the second presumption the important question is to what extent we would be willing to impair national sovereignty in favour of European sovereignty. It does make rather a difference whether we are discussing a European Criminal Law that is limited to the financial interests of the Union (Corpus Iuris) 23 and/or serious crime and/or cross border crime. As is often repeated this is a matter of trust: do we (citizens of the different Member States) trust the Union and/or judicial and police authorities in other Member States enough to hand over competences that are part of the monopoly of violence to the Union and/or other Member States (e.g. the European Arrest Warrant; the proposed European Evidence Warrant; mutual recognition of other judicial and extra-judicial decisions; minimum rules for the definition of criminal offences and punishments). 24 The question whether (and which) competences related to the monopoly of violence should be in the hands of the national state, of other Member States and/or of the Union can, however, not be answered out of context: it depends on the way particular national states use their ius puniendi and the way the Union intends to use it. This raises normative questions: respecting and fostering local justice should not imply that the European heritage of the rule of law and the constraints it puts on sovereignty are up for grabs.

A European Criminal Law to sustain a fluid and strong European identity?


In this section I will move on to investigate the way the European Community (EC), the European Union (EU) and the Constitutional Treaty (CT) employ the ius puniendi to sustain a fluid and strong European identity that is at once coherent and diverse. Below I will first discuss the way the CT redistributes the attributes of sovereignty in the field of criminal law, comparing it to the way this is done in the Treaty of the European Union (TEU, the so called third pillar of the EU). 25 To this end I will look into two highly relevant judgements of the European Court of Justice (ECJ), which seem to achieve part of the objectives aimed for by the CT. After that I will see how the further integration of the EC and the EU could indeed facilitate unity in diversity by looking at Europeanisation of substantive criminal law of and in the Union; mutual recognition of decisions in the Member States and Europeanisation of criminal procedure.

The identity of the Union: what is at stake?

Introduction: the bran-tub of the European legal tradition

In this section we will move into the bran-tub of the European legal tradition. For lawyers raised in the Western legal traditions the idea that their tradition consists of a bran-tub of information will sound rather off-key. The high level of systemisation of the formal and informal sources of the law seems to rule out the use of a metaphor that makes the available information seem like a bunch of unknown objects hidden in a tub filled with woodshavings or bran. I would like to argue, instead, that the metaphor emphasises the fact that the systemisation and the resulting complexity demand a continuous effort of maintenance. Like in physics, in order to survive the legal order has to counter the forces in the direction of entropy and chaos (Prigogyne & Stengers, 1984). Systemisation cannot be taken for granted and demands continuous effort. Not only because without re-enactment the system loses its meaning, but also because it has to survive in a dynamic environment that demands persistent fine-tuning.

Legal personality and redistribution of sovereignty

As Weiler writes “in many instances, constitutional doctrine presupposes the existence of that which it creates: the demos which is called upon to accept the constitution is constituted, legally, by that very constitution, and often that act of acceptance is among the first steps towards a thicker social and political notion of constitutional demos” (Weiler, 2001). The EU Constitutional Treaty could have performed this paradoxical constitution, even if the acquis of the European Community implies an already existing unwritten constitution of the European Community that emerged and developed on the basis of a series of ground breaking judgements of the European Court of Justice in Luxemburg. 26 Had the CT come into force, this acquis would have been reinforced and transformed at the same instant, re-creating the European demos and the European legal order by means of a written “constitution”.

If we look into the explicit attribution and distribution of competences regarding the area of freedom, security and justice—relevant for European criminal law—we find that they fall within the ambit of shared competence between Union and Member States. 27 Important is art. I-12 section 2, which attributes the competence to legislate and adopt other legally binding acts in areas of shared competence to the Union and leaves Member States competence in as far as the Union has not exercised its competences in the area concerned. 28 Summarised this in fact means that every time the Union decides that certain measures could be better achieved at Union level, the Member States would lose their competence to regulate the specific issues. For as far as the Union can decide by majority rule, sovereignty is thus redistributed (some national sovereignty is lost, to be reconstituted at Union level).

“Reception” of the CT by the European Court of Justice?

The rejection of the CT by popular vote in some of the Member States does not prohibit its “reception” by the European Court of Justice (ECJ). Two examples of such “reception” will be briefly discussed to indicate the reshuffling of the attributes of sovereignty by the ECJ. One relates to substantial criminal law (imposing an obligation on Member States to criminalize certain behaviour), the other relates to procedural criminal law (protection of the interests of victims in a criminal trial).

On September 13th 2005 the Court decided on the action of annulment of an EU Framework Decision of the Council of the EU, brought to the Court by the Commission and the European Parliament. 29 In the Framework Decision under scrutiny the Council obliged Member States to take action against offences posing a threat to the environment. To be more precise, the Council imposed criminalization of a number of environmental offences, demanding the penalties to be “effective, proportionate and dissuasive”. The Council based its competence on the third pillar. 30 The Commission and the European Parliament applied for annulment of the Decision, claiming that it infringed a first pillar competence, 31 namely the competence to criminalize offences against the environment. One of the main differences between the procedure for legislation in the first and the third pillar, is the fact that the Council acting as part of the EC (first pillar) has to share its competence to legislate with Parliament (co-decision procedure), while the Council acting as Council of the EU (third pillar) has to only consult with Parliament. The Court decided that the Framework Decision indeed infringed EC competence and ruled that it must be annulled in its entirety. By thus deciding the Court seems to have extended the scope of the TEC by transporting the competences to criminalize environmental offences from the third to the first pillar. It may be that the Court was inspired by the reshuffling of the attributes of sovereignty, as planned in the CT, though one can also imagine that the Court and the CT are both inspired by the same need for a more effective and a more legitimate instrument to implement the policies of the Community. The integration of the pillars in the CT implies that all Framework Laws have to follow the legislative procedure and are thus under the control of the European Parliament. 32 This means two things: (1) a loss of national sovereignty, because Framework Laws can be adopted by a (qualified) majority, which means that a Member State can be overruled and forced to criminalize behaviour it deems non criminal, for instance the criminalization of (support for) illegal immigration (2) a gain of democratic legitimacy, or at least parliamentary control. The same two consequences are at stake in the Court’s decision to bring the competence to oblige Member States to criminalize environmental offences under the rule of the first pillar.

One of the things that strike one, when reading the case of this Framework Decision, is the emphasis on “effective, proportionate and dissuasive” penalties. The Decision explicitly chooses criminal instead of administrative sanctions. For a long time the idea has been that administrative sanctions are more effective, because more easily administered (and negotiated?), than criminal sanctions with their burdensome safeguards like the presumption of innocence. The lack of stigmatisation was supposed to ease possible resistance against the flood of administrative sanctions created to enforce the endless flow of administrative regulations, like those in the field of environmental law. The sanctions should appeal to a homo economicus that would abstain from undesirable behaviour because the sanctions raised the price of such behaviour, without appealing to shared norms and values. One could claim that such administrative sanctions do not touch the self-identity of a citizen, since she is not really blamed for her actions, but rather “managed” into the right responses. The turn to criminalization implies recognition of the failure of this administrative attitude, and it could indicate that we (need to) identify environmental offences as a serious violation of the values that constitute our identity as Europeans. However, to have such an effect, the other side of criminalization should be taken serious: the effective institutionalisation of due process as embodied in the constitutive principles of the fair trial of art. 6 of the European Convention of Human Rights (ECHR). 33

The second case concerns the protection of the interests of victims in criminal procedure. The case raised the question to what extent the interpretation of a national law that aims to implement a Framework Decision (third pillar), must be in conformity with the relevant Framework Decision. Standard case law of the Court applied the so called principle of interpretation in conformity with Community law to the interpretation of a national law that aims to implement a Directive (first pillar), except if this produces an interpretation contra legem. On 16th June 2005, in the Pupino case, the Court ruled that this principle should also be applied to the interpretation of a law that implements a Framework Decision. 34 Mrs Pupino was charged with abuse of disciplinary measures taken against young children under her care. The relevant issue concerned the fact that under Italian law it seemed impossible to take testimony of these children out of court, while the Council Framework Decision on the standing of victims in criminal proceedings imposes a duty on the Member States “to protect victims—particularly those most vulnerable—from the effects of giving evidence in open court”. 35 The application of the principle of interpretation in conformity with Community law to national legislation that implements Framework Decisions has raised some eyebrows, especially since this extension of first pillar interpretation strategies to the third pillar was decided just after the rejection of the CT by the French and Dutch voters. In a sense the integration of the pillars realised in the CT, is endorsed by the Court’s active stand on the need for an effective Union law. 36 Even though interpretation in compliance with Community law may seem reasonable and unsurprising, it was core business for the demarcation of the first and the third pillar. One could argue that if the third pillar—other than the first—intends to leave national sovereignty intact, the interpretation of national law should be a national affair. Having decided otherwise the Court seems inspired by the same logic of integration that is articulated in the CT, which does not contain Directives and Framework Decisions with different legal foundations, but has only one regime for this type of legislation, being European Framework Laws.

Both cases indicate an implicit redistribution of legal competence between Community, Union and Member States regarding issues of criminal law. In both cases this leads to a loss of sovereignty in criminal matters for Member States and a reinstitution of such sovereignty at the level of the Union and/or the Community. In the first case criminalization of environmental offences is at stake, a matter that directly touches reflects the self-identity of a people. One may even guess that by imposing an obligation to criminalize these types of offences the identity of European citizens is targeted, hoping that the protection of the environment becomes a shared value of citizens instead of an administrative task of government. In the second case criminal procedure is at stake, namely the protection of victims that will change the checks and balances of the fair trial, because the defence will have less chance to challenge the testimony in open court. This attempt to create a shared regime of protection for victims again touches the identity of European citizens, as it demands effective respect for victims, notwithstanding the fact that this should not impact the fairness of the trial. Apart from the fact that the rulings of the court directly impact the identity of European citizens because of the values they aim to reinforce, these rulings also change the balance between one’s national and one’s European identity, shifting attributes of sovereignty from the national to the European level.

European criminal law of and/or in the Union?

Approximation of the definition of certain criminal offences

One of the most striking moves towards a European Criminal Law in the CT is the set of rules that enables the European legislator to “Europeanise” a certain subset of criminal offences. 37 One category of this subset is formed by crimes against the financial interests of the Union (these have already been Europeanised) 38 the other category concerns particularly serious crime with a cross-border dimension. The case of imposed criminalization of environmental offences, discussed above, supplies a third category: offences created to ensure “the full effectiveness of a Community policy”. 39 In terms of the CT Europeanisation means (minimum rules for) a common definition of both the crime and its punishment, executive competence for Europol and Eurojust and—eventually—a European Public Prosecutor that can initiate criminal investigation and prosecution.

Europeanisation of substantive criminal law produces European Criminal Law. It draws on two sources: (1) the legal tradition that evolved from EC jurisdiction for crimes against its own interests and (2) the legal traditions of the Member States. 40 The first is the criminal law of the EU; the second is criminal law in the EU. 41 An interesting question is whether Europeanisation of the second category means that parts of criminal law in the EU are transformed into criminal law of the EU. The CT considers as crimes of this second category: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime. By attributing competence to enact minimum rules for the definition of these crimes and their punishment the Constitutional Treaty seems to identify these crimes as crimes against the Union itself and thus to reframe them as part of the Criminal Law of the Union. By redefining such crimes as an infringement of the legal tradition of the Union itself, both the identity and the legal tradition of the Union would be redefined, extended and reinforced. The unification that is provoked by establishing minimum rules for these criminal offences and their punishment would unify them in precisely this sense: from now on they are considered as violations of the law of the Union itself. Note that the Community competence to impose the criminalization of offences that violate Community policies (case C-176/03 discussed above) has the same effect: the violation of the legal norms they protect is a violation of the Community law.

One could claim that this unification is a demonstration of the possibility to sustain a fluid and strong European identity that is at once coherent and divers: (1) the Europeanisation would take place by means of European Framework Laws, demanding approximation, not by means of European Laws, that would impose the same text on all Member States and (2) this approximation of substantive criminal law would leave the executive competences of national authorities intact, so—even if Europol, Eurojust and eventually a European Public Prosecutor could initiate investigation and prosecution—cases would be brought to national courts and the application of the harmonised criminal law would still be national in the first instance. All this guarantees national diversity, to be cohered in the end by means of judicial review and prejudicial decisions of the ECJ. 42

Mutual recognition of judicial and extra-judicial decisions

The second move towards a European Criminal Law in the CT is the mutual recognition of judicial and extra-judicial decisions throughout the Union. Mutual recognition seems the central principle of the area of freedom, security and justice, aiming at a situation whereas decisions taken within the jurisdiction of one Member State have direct legal effect in other Member States. From the perspective of the CT such direct effect affects all criminal matters with a cross border dimension—not only criminal offences against the financial interests of the Union and/or serious crime. It intends to promote smooth cooperation at the level of criminal investigation, prosecution, adjudication and sentencing (examples of competences in this field are the European Arrest Warrant 43 and the draft European Evidence Warrant).

One of the most important aspects of mutual recognition is the tendency to restrict the application of the principle of double criminality. This principle concerns not only “double criminalization (requiring an act to be described in abstract terms as a breach of criminal law by the legislation of both the requesting state and the state receiving the request)”, but also requires the incriminated act “to be punishable in concrete terms (the author of the act should not be in a situation which rules out punishment)”, in both jurisdictions. 44 The principle thus puts quite a burden on the state receiving the request, delaying and possibly frustrating decisions, because it requires research into both the foreign law system and its application. Dropping this demand, however, presumes respect for the choices made by other jurisdictions: it could mean that an arrest warrant for a person having committed abortion, euthanasia, possession of small portions of soft drugs would have direct effect even in Member States that do not consider this criminal under all circumstances. As long as such actions are criminal in the requesting state judicial support will have to be supplied. Likewise mutual recognition seems to indicate mutual trust to an extent that precludes investigation of anticipated human rights violations in the requesting or requested state (could a suspect face violation of art. 6 ECHR after surrender; could evidence have been obtained violating art. 6 or 8 ECHR?). Should Member States trust each other as far as the integration of the ECHR is concerned (even though violations are regularly established by the ECHR)? (Alegre & Leaf, 2004; Guild, 2004).

One can argue that dropping the condition of double criminality is a matter of respecting diversity, accepting that other Member States may have different legal traditions, not identical to one’s own. A solution, suggested by Klip, could be to limit the national criminal jurisdictions of Member States to acts committed on their territory (Klip, 2004, pp. 56–57). Klip argues this line of thought as an alternative for the principle of double criminality. His suggestion to limit national criminal jurisdiction is part of his proposal to make a clear distinction between substantive criminal law of the European Union and national criminal law in the European Union. He warns against moving ahead with mutual recognition, Europol and Eurojust before the relevant choices have been made. One can easily agree on the link between problems in the field of legal cooperation and the diversity of national substantive criminal law, but whether approximation will solve these problems is questionable. Like many other writers Klip acknowledges that problems of international legal cooperation in criminal matters are related to lack of psychological acceptance (Klip, 2004, p. 57), misunderstanding about competences and cultural difference (Buruma, 2002, p. 668), rather than to a lack of harmonised substantial criminal law. In other words the link between national identity and national substantive criminal law may render a unified European criminal law ineffective if national identities do not change. At the same time one must admit that sharing the jurisdiction of such unified law is bound to have an impact on national identities. If the change is a good one, this should be applauded. This brings in the normative question. After examining the extent to which Europeanisation is possible, we should move on to the question what kind of Europeanisation is desirable. We will shortly return to this question in the last section “Closing remarks: which identity: what unity, which diversity?”

Human rights of European citizen

The third move towards a European Criminal Law in the CT is the Europeanisation of criminal procedure. This is not done by establishing a European court of criminal justice. Instead national criminal procedure is to be Europeanised along two lines. First by means of the incorporation of fundamental rights (effective remedy, fair trial and presumption of innocence) in the Charter of Fundamental Rights of the Union, while linking the interpretation and application of these rights to the ECHR. 45 In a way this should bring substantial changes, because all Member States are already party to the ECHR. However the relationship between Union and Council of Europe concerning the ECHR has not been unambiguous and the explicit reference in the Charter could have impacted both the application and the interpretation of such rights by the ECJ. Second the CT aims for Europeanisation of criminal procedure by attributing competence to establish minimum rules for the rights of individuals in criminal procedure. 46

In a discussion of the proposal to produce a single European legal area for the protection of the EU budget, Delmas-Marty described three principles that should regulate criminal procedure (including investigation, prosecution and judgement): (1) the principle of European territoriality (European Public Prosecutor); (2) the principle of judicial control (juge de libertés) and (3) the principle of confrontational proceedings (Delmas-Marty, 1998). If, as discussed above, parts of criminal law in the Union become criminal law of the Union, the scope of such principles should be extended to those parts of substantive criminal law to be Europeanised. As a matter of fact, even the mutual recognition of judicial and extra-judicial decisions, which concern criminal law of and in the Union, calls for effective remedies in the field of criminal procedure. It may be the case that the trust required to give effect to mutual recognition and other forms of judicial and police cooperation depends on the type of procedural guarantees that will be established as minimum rules. In that case, adequate protection of human rights would benefit international cooperation. At the same time, beyond such utilitarian arguments, mutual recognition should depend on effective remedies for European citizens to protect their human rights. 47 This is a normative argument, immediately related to the question which European identity we should want to sustain and what kind of diversity we should want to include.

Closing remarks: which identity: what unity, which diversity?

As discussed in the section on “Biographies of a legal tradition” the identity of a legal tradition is closely related to its biography. To have an identity those that share a tradition must claim sameness and selfhood over an extended period of time, in such a way that the pastness of the tradition fits a narrative that opens a future that is neither completely determined nor lost in too much uncertainty. Identity builds on pastness to anticipate a future. Legal tradition(s) must be mined for information on how to act, in other words, they must be mined for information on the shared standards by which those that share jurisdiction are constrained. Criminal law is an important part of our legal traditions, because it entails constraints that we find crucial for the survival of our sense of self. Thus criminal law is interwoven with our identity as members of a particular legal tradition, dependent on forms of local justice and on the monopoly of violence (sovereignty) to be both effective and legitimate.

Two themes emerge from a closer look at the legal design for European Criminal Law as it was put forward in the EU Constitutional Treaty. First, imposed approximation of criminal law in the Member States may produce some shared identity; second, recognition of relevant differences is needed for effective international legal cooperation, even in the case of a Europeanised criminal law. The crucial issue here is the fact that the CT aspires the transformation of parts of criminal law in the Union into criminal law of the Union. To succeed, existing differences would have to be recognised and studied. Only on that basis can decisions about a mix of criminal law in and of the Union be effective. In some cases mutual respect for difference will be adequate, while in other cases it may be pertinent to unify the law and to consider violation of such unified law to be an infringement of the legal tradition of the Union.

Legal traditions are bran tubs of information. To decide what constraints this information imposes on our actions, we have to choose the narrative that coheres the identity of the tradition. The information does not speak for itself. It is up to us which biography we construct of the European legal tradition(s), what identity this entails and what this teaches us for the future of European criminal law. Choices will have to be made here. This brings us to the question what identity we should want for a European legal tradition. If transformation of criminal law in the European Union into criminal law of the Union diminishes the protection of human rights current in some Member States we should not opt for such a European criminal law. The strength of a European identity should be located in the integration of instrumental and protective aspects of criminal procedure. This demands a European criminal law—whether in or of the Union—that regulates an area of freedom, security and justice in which alleged criminals cannot use local criminal jurisdiction to avoid criminal censure, and in which justice authorities cannot avoid effective respect for human rights.


 Both mono- and multi-cultural conceptions of society tend to define culture(s) as homogeneous, static, exclusive and incommensurable, thus locking people into their own cultural perspective as something that completely determines their norms, values and actions. Propagators of a mono-cultural conception of society would be conservatives like Samuel Huntington, but – étonné de se trouver ensemble – also postmodern legal comparativists like Pierre Legrand who arrive at similar positions because of their emphasis on the incommensurability of legal cultures. Taylor et al. (1994) and Kymlicka (1995) could be taken as prime examples of a multi-cultural conception of society, while e.g. van Brakel (1999) and Glenn (2004a) could respectively provide the epistemology and the comparative legal perspective of a more intercultural conception of culture.


 The point is of course: who are we? For an interesting and relevant perspective on this question see van Brakel (1999). When I state that we ‘decide’ to construct our identity or (re)build our society I do not mean to endorse a naïve voluntaristic perspective, but rather a pragmatist approach in the tradition of Peirce and Dewey.


 About his choice for tradition instead of culture see Glenn (2004b). For a critical assessment of Glenn’s ‘theory of tradition’ see Halpin (2006). Halpin understands Glenn’s ‘tradition’ in terms of Stanley Fish’s interpretive community and Wittgenstein’s language games. This is an interesting way to elaborate the epistemological underpinnings of Glenn’s practice of comparative law. However, Halpin’s focus is rather linguistic; to understand Glenn’s tradition and Wittgenstein’s language games we may need more emphasis on what Wittgenstein calls forms of life. See also footnote 16 on the fragility of rule interpretation and van Brakel (1999), especially section 4 on ‘first contact we’.


Glenn (2004a), p. 33. See also idem pp. 156–161, on European identities. An extensive and critical review of his prize winning Legal Traditions of the World can be found in: Nicholas HD Foster (ed.), A Fresh Start for Comparative Legal Studies? A Collective Review of Glenn’s Legal Traditions of the World 2nd edition, Journal of Comparative Law 2006 (1), available at:


See Latour’s proposition for an alternative preamble for the CT, that would appeal to the ‘becoming’ of a European people, in reference to the shared history of the European national states, aiming at a redistribution of the attributes of sovereignty in order to create a liberal Europe that will be liberal ‘because it will have uncovered the freedom to explore the common good against the joint pretensions of the invisible hand of the markets and the visible hand of States to define the common good without contestation and discussion’ [translation mh], Latour (2005).


Art. I-3 CT, as in Art. 151 TEC.


Art. II-82 CT, as in Art. 149 and 151 section 4 TEU.


Art. I-8 CT.


Art. III-270, section 2 CT.


See Weiler on this issue, who actually pleads against a formal European Constitution, fearing it will in the end eliminate the ‘community of others’ that the Union still forms at this moment. Weiler (2001).


Art. 2 of the TEU reads: ‘The Union shall set itself the following objections: (...) to assert its identity on the international scene, (....)’.


About personal identity in relation to privacy, Hildebrandt (2006a), drawing a.o. on Ricoeur (1992).


Selfhood and otherness are thus mutually constitutive. Otherness is a broad category and at some point in time it will be necessary to distinguish between the other as adversary and the other as enemy (see Mouffe (2000) who differentiates between the two as sharing or not sharing a symbolic space). Similarly it may be necessary to distinguish between the other as recognisable other and the other as stranger (as was pointed out to me by Lindahl, referring to Waldenfels, 1999). My point concerning these highly relevant distinctions is that the borders between adversary and enemy, recognisable other and stranger are necessarily fluid and dynamic. An enemy can become an adversary, while a familiar other can become a stranger, to face this possibility we need an epistemology of intercultural communication. See for a challenging example of such an epistemology in the case of ‘first contacts’ Brakel (1999).


Glock (1999): “(..) Wittgenstein does show that the identity of an object with itself does not provide us with an absolute paradigm of what counts as ‘doing the same’ in RULE-FOLLOWING. What counts as doing the same is determined only relative to the rule, and hence the notion of doing the same cannot provide an independent standard: whether my saying ‘16’ after ‘2,4’ counts as doing the same depends on whether I follow the series y = 2x or the series y = x². There is no single, context-free or purpose-independent way of determining what counts as doing the same”. Glock actually writes ‘6’ after ‘2,4’ but I take it that he meant either ‘16’ or ‘8’.


Government presumes jurisdiction and taxation. But even in societies without a state jurisdiction is crucial for the survival of the society, especially since in that case jurisdiction is voluntary and consensual in the end. For a comparative, historical and anthropological analysis of the importance of criminal jurisdiction see Hildebrandt (2002). Also – in English – Hildebrandt (2006b, c).


Glenn (2004a), pp. 13–16. Referring to Popper (1963), Glenn discusses the modernist distinction between static traditional societies and progressive modern society, as a distinction that is itself part of the western rationalist tradition.


A bran tub is ‘A lucky dip consisting of a tub filled with bran, paper or wood shavings, etc with prizes hidden in it’ ( The metaphore emphasises the richness of the information available within a tradition and the fact that the development of a tradition depends on which information is actually chosen to be acted upon.


About the problematic effectiveness of administrative of the law, see my doctorate dissertation Hildebrandt 2002.


The fact that criminal law is thought of as a last resort does not mean that its importance is marginal rather than crucial for the self-identity of a community. It indicates that the legal norms protected by the criminal law have a tacit rather than explicit hold on us, which makes violation less likely because their normative appeal comes from within, from the core of who we think we are.


Interestingly, the European Arrest Warrant (EAW) restricts the principle of dual criminality, while the proposal for a European Evidence Warrant (EEW) comes close to abolishing it all together (see art. 2 of the Council Framework Decision on the EAW (2002/584/JHA) and art. 16 and 24 of the Commission’s Proposal for a Framework Decision on the EEW COM (2003) 688 final). See the verdict of the German Constitutional Court, discussed in footnote 47.


See section “Criminal law, local justice and sovereignty” below.


Ricoeur (1992), pp. 113–169, on narrative identity.


About the Corpus Iuris, see Delmas-Marty (1998).


See about the European Arrest Warrant footnote 47, for an example of imposed criminalization of environmental offences see section ““Reception” of the CT by the European court of justice” below.


I will presume the reader to be familiar with the acquis communautaire and the present attribution of competences within the three pillars of the EU, for a detailed overview in relation to criminal law see Pradel and Corstens (2002). Those less familiar with the state of the art of European criminal law in and of the Union should be able to follow the general outline, as I will frequently compare the CT with the present situation.


See Lindahl (2003), who discusses the relationship between the constituent and constituted power of the legal order of the European Community as posited by the European Court of Justice in its decisions Van Gend & Loos (Case 26/62 Van Gend & Loos [1963] ECR, 1–30) and Costa v ENEL (Case 6/64 Costa v ENEL [1964] ECR, 585–615). He refers to the creative, transgressive innovation that initiated a new supranational legal order sui generis, projecting its birth into a ‘new’ past. While this innovation was not determined by the Treaty of the EEC, it was still congruent with its text. What is interesting here is the performative character of the unity that is posited and implied (represented) with the community that is claimed, idem p. 440, 448.


Art. I-14 section 2 CT.


See also Art. I-11 section 3, which defines the principle of subsidiarity.


C-176/03, regarding EU Framework Decision 2003/80/JHA. On the implications of this crucial judgement see Castillo Garcia (2005).


Title VI TEU, especially Art. 34 section 2 (b) and Art. 39 TEU.


Title XIX TEC, first pillar: supranational; primacy of Community Law art. 47 TEC.


Art. I-34 and III-396 CT.


The CT incorporates a limited set of fundamental rights concerning criminal law, and links the interpretation and application to the ECHR, see section “Human rights of European citizen”.




Art. 8 (4) of the EU Framework Decision 2001/220/JHA of 15 March 2001.


This observation should be qualified in the sense that the Court maintained that Framework Decisions cannot have direct effect (art. 34 TEU), meaning they cannot be invoked by individuals before national courts, as is the case with Community legislation since the Van Gend en Loos Judgement, D-26/62 (1963) ECR1. One could say the Court introduced a notion of indirect effect in the legislation of the third pillar. See Castillo Garcia (2005), p. 33 note 21. A second difference that remains relevant between first and third pillar legislation is the fact that the Commission cannot initiate infringement procedures against Member States that have not adequately transposed Framework Decisions into their national jurisdiction, see Castillo Garcia (2005), p. 30, 31.


Buruma (2002) speaks of federalisation.


 The Convention on the protection of the financial interests of the European Communities (1995).


 Castillo Garcia (2005), p. 30. He refers to the communication of the Commission to the European Parliament and the Council on the implications of the Court’s judgement of 13 September 2005 (C-176-03), in which the Commission assesses the need to revoke other Framework Decisions that concern criminal sanctions aimed to enforce common policies of the Community.


Klip (2004) suggest two ways to determine how European Criminal Law should be given shape and content: deriving it from the work already performed by the Union or inducting it from common traditions in the Member States.


Delmas-Marty (1998), p. 88. Community law has a major impact on criminal law in the EC in order to prevent violation of one of the four freedoms (of movement for goods, persons, services and capital), see idem on neutralisation and augmentation of national penal law, pp. 90–106.


See section “Criminal law, local justice and sovereignty” above.


The fact that mutual recognition may diminish legal protection has already led to the annulment of the German European Arrest Warrant Act, by the German Constitutional Court (18th July 2005 – 2 BvR 2236/04). The reason was that, according to the court, the European Arrest Warrant Act infringed Article 16.2 sentence 1 (a relative right to freedom from extradition, legal certainty) and art. 19.4 (recourse to court) of Germany’s Basic Law. The Constitutional Court did not denounce the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA), they declared void the Act by which Germany aimed to implement the Framework Decision, claiming there was room for the integration of the said protection.


See European Parliament Resolution A5–0145/2001 on mutual recognition on final decisions in criminal matters, AA, about the difference between dual criminality and double criminalization.


Art. II 107–108 and Art. II-112, section 3 and 113 CT.


Art. III-270, section 2 sub b CT.


The Council has drafted a Framework Decision on certain procedural rights in criminal proceedings throughout the EU (COM (2004) 328 final), see on the issue of competence and scope of this Framework Decision Lööf (2006).



I want to thank Antony Duff and Christoffer Wong for their invitation to join the workshop and all participants for their interesting comments. The paper was also discussed at the department of legal philosophy of Tilburg University, by the research group of Bert van Roermund and Hans Lindahl, which supplied challenging comments on the use of the concept of tradition and on the issue of identity. I thank two anonymous referees for their salient comments.

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© Springer Science+Business Media B.V. 2006