European criminal law and European identity

Abstract This contribution aims to explain how European Criminal Law can beunderstood as constitutive of European identity. Instead of starting from Europeanidentity 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 theself-identity of those that share jurisdiction depends on and nourishes the legal tra-dition they adhere to and develop, while criminal jurisdiction is of crucial importancein this process of mutual constitution. This analysis will be complemented with adiscussion of the integration of the first and the third pillar as aimed for by theConstitutional Treaty (TE), which would bring criminal law under majority rule andEuropean democratic control. Attention will be paid to two ground breaking judg-ements of the European Court of Justice (ECJ) that seem to boil down to the fact thatthe Court actually manages to achieve some of the objectives of the CT even if this isnot in force. This gives rise to a discussion of how the CT (and related judgements ofthe ECJ) may transform European criminal law in the Union to EU criminal law ofthe Union, thus producing an identity of the Union next to the identities prevalent inthe Union. The contribution concludes with some normative questions about thekind of European identity we should aim to establish, given the fact that such identitywill arise with further integration of criminal law into the first pillar.

Keywords European criminal law Æ European identity Æ Legal tradition ÆJurisdiction Æ Sovereignty Æ Constitutional Treaty EU

Dr. Mireille Hildebrandt teaches law and legal theory at Erasmus University Rotterdam and worksas senior researcher at the Vrije Universiteit Brussels. An earlier version of this text was presented atthe special workshop ‘‘Toward a European Criminal Law’’, organised by Antony Duff and Christ-offer Wong at the world conference of the IVR (International Association of Legal Philosophy) inGranada on 25th May 2005.

M. Hildebrandt (&)Erasmus University Rotterdam, Rotterdam, The Netherlandse-mail: [email protected]

M. HildebrandtVrije Universiteit Brussel, Brussel, Belgium

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Crim Law and Philos (2007) 1:57–78DOI 10.1007/s11572-006-9006-x

ORI GI N A L P A PE R

European criminal law and European identity

Mireille Hildebrandt

Published online: 11 November 2006� Springer Science+Business Media B.V. 2006

Introduction

Could European Criminal Law in the broad sense (including criminal legislation,criminal procedure, mutual recognition of justice-related decisions and operationalcooperation) sustain a fluid and strong European identity that is at once coherentand diverse? This is the question I will attempt to at least raise in this contribu-tion. 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 willlook into the way the European Community, the European Union and the Con-stitutional Treaty involve the ius puniendi to reinforce and transform Europeanidentity. The subsequent question which identity should be supported by aEuropean criminal law will be touched upon, although it is not the focus of thisarticle.

To advance the argument I will presume two things: first, that Europe will notsurvive as Europe if it essentialises its identity as either monocultural or multicul-tural.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 criminallaw is one of the factors that is constitutive of the identity of a people in a strongsense: a people discriminates itself from other peoples in the way they criminalizebehaviour; in the way they treat suspects and defendants and in the way they treatthose 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 analysisof the relationship between self-identity, criminal law and legal tradition. As a startI will discuss the relation between identity and legal tradition. I will plead that theyare mutually constitutive, which means something more and something less than acausal or moral relationship. Next I will expound on criminal procedure and sub-stantive criminal law and the relationship between law and legal tradition, afterwhich I will discuss and counter two arguments against Europeanisation of criminallaw, based on a defence of the national character of criminal law: first the argumentthat criminal law is a matter of local justice and second the argument that criminaljustice is part of sovereignty. In the section on ‘‘A European criminal law to sustain afluid and strong European identity?’’ focuses on a legal–theoretical analysis ofEuropean criminal law, based on the idea that such a criminal law presumes andaffects our European identity. Next I will explain that the integration of the first andthe third pillar as aimed for by the Constitutional Treaty (TE), would bring criminallaw under majority rule and European democratic control. In a discussion of twoground breaking judgements of the European Court of Justice (ECJ)—given afterthe rejection of the CT by French and Dutch voters—I will argue that the Court has

1 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 assomething that completely determines their norms, values and actions. Propagators of a mono-cultural conception of society would be conservatives like Samuel Huntington, but – etonne de setrouver ensemble – also postmodern legal comparativists like Pierre Legrand who arrive at similarpositions 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 thecomparative legal perspective of a more intercultural conception of culture.

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in fact already began to move important aspects of criminal law from the third to thefirst pillar, thus achieving the same objectives as the CT. I will then discuss howthe CT and related judgements of the ECJ transform European criminal law in theUnion to EU criminal law of the Union. The final section ‘‘Closing remarks: whichidentity: what unity, which diversity?’’ will conclude with some normative questionsabout 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 claimthat the US and Australia are part of Europe, while others seek to demarcateEurope by drawing the border between the Latin and Byzantine spheres of influ-ence. The perspective of Europe being an idea rather than a territory has allowed thediscussion of European identity to move beyond naıve conceptions that rely on therhetoric of the national state with its fixed boundaries. However, this idea seemsincapable of explaining what European identity means for members and aspiredmembers of the EU. One can be an EU citizen without ‘‘feeling’’ European, and onecan be a Turkish citizen or a resident of Boston and ‘‘feel’’ distinctly European. Ifthe roots of Europe can be located—partly—in the grand Mediterranean Romanempire, what should stop the North African states from successfully applying formembership if we focus on ‘‘the idea of Europe’’? It may be tempting to seekcommon denominators or even one common denominator for a European identity,for instance referring to cultural traits that uniquely identify European culture fromother cultures. Even diversity itself could be termed such a common denominator. Inthis contribution I will follow another line of thought, less focused on the identifi-cation of inherently European attributes than on the process of identity constructionand the role that law and legal tradition can play in this context. My claim is thatthere is no ‘‘inherently European identity’’ other than the one we decide to constructwhile (re)building our complex transnational society.2 For this reason I will not usethe concept of culture to discuss European identity, but the concept of tradition, inthe sense used by the Canadian legal comparativist Glenn.3

2 The point is of course: who are we? For an interesting and relevant perspective on this question seevan Brakel (1999). When I state that we ‘decide’ to construct our identity or (re)build our society Ido not mean to endorse a naıve voluntaristic perspective, but rather a pragmatist approach in thetradition of Peirce and Dewey.3 About his choice for tradition instead of culture see Glenn (2004b). For a critical assessment ofGlenn’s ‘theory of tradition’ see Halpin (2006). Halpin understands Glenn’s ‘tradition’ in terms ofStanley Fish’s interpretive community and Wittgenstein’s language games. This is an interesting wayto 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 languagegames we may need more emphasis on what Wittgenstein calls forms of life. See also footnote 16 onthe fragility of rule interpretation and van Brakel (1999), especially section 4 on ‘first contact we’.

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In Legal Traditions of the World, Glenn proposes that ‘‘identity is a currentpreoccupation in the world, though it is probable that without contact betweensocieties, there would be no concern for identity’’.4 He goes on to say that ‘‘concernfor identity arises from external contact; identity is then constructed by explicit orimplicit opposition. The other becomes essential in the process of self-understand-ing. At the same time the other is an ongoing menace to internal cohesion’’. For theidea of a European identity this is a very interesting perspective, for two differentreasons.

First of all it may seem that a European identity as such does not really exist: theidentities of ‘‘European’’ citizens are tied to the national state rather than to theemergent European Union. Being European for a long time indicated nothing but ageographical orientation, without the strong connotations linked to a term likeidentity. For most of its history the EC did not meddle with sensitive issues likeforeign policy, education or criminal policy that were considered to be part of thedomain of the Member States. However it seems that some identification withEurope is around, even if it does not replace the strong bonds between citizen andnational state. Interestingly, art. I-10 of the CT confirms art. 17 of the Treaty of theEuropean Community (TEC), declaring every national of a Member State to be atonce a citizen of the Union (and a citizen of her Member State). This creates amixed, multiple and/or double identity that raises questions concerning the rela-tionship 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 isonly formal while the other is more substantive? While such dual identity confirmsGlenn’s observation that the issue of identity emerges as soon as one is confrontedwith another, it is all the more interesting, since this other would in this case be apart of one’s European self. The negative vote on the Constitutional Treaty (CT) inFrance and the Netherlands in 2005 can be interpreted in a variety of ways, butshould not too easily be read as a sign that voters discard their sense of beingEuropean. It may rather be the case that speaking of a European Constitutionsounds too much like transforming the EU into one huge national state, which doesnot appeal to and in fact seems to frighten citizens within Europe.5 Even though theimportant question why the French and the Dutch voted against the CT will not bethe 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 theEuropean tradition need to foster a complex, dynamic identity that allows a coherentplurality of shifting and overlapping identities in order to sustain continuity. Thisdemands a criminal law that adds to the constitution of a coherent European identitywithout altogether overruling national, regional or intercontinental identities. In the

4 Glenn (2004a), p. 33. See also idem pp. 156–161, on European identities. An extensive and criticalreview 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 ofthe World 2nd edition, Journal of Comparative Law 2006 (1), available at: http://www.wildy.co.uk/jcl/. http://www.wildy.co.uk/jcl/.5 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 willbe liberal ‘because it will have uncovered the freedom to explore the common good against the jointpretensions of the invisible hand of the markets and the visible hand of States to define the commongood without contestation and discussion’ [translation mh], Latour (2005).


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third part of this contribution I will elaborate the content of the CT, in so far as it isrelevant for criminal law in and of Europe, to demonstrate how the CT attempts towalk the tightrope between the imposition of unjustified unification on the one handand irresponsible fragmentation on the other. It could be that French and Dutchcitizens 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 identityto an as yet unknown European jurisdiction.

The second reason why Glenn’s perspective should interest us, is the fact thatEuropean identity is not only opposed to the national identity of the Member Statesbut also to identities outside the Union like those of the US or China. Europe wantsto assert its particular identity versus other nations, (con)federations or even broaderpolitical or cultural entities (de Burca, 2005). When discussing business models orresearch agendas the EU often refers to the importance of developing a Europeanmodel of doing things: less hegemonic, more social, less focussed on technology inisolation, more on interdisciplinary approaches. The EU Constitutional Treaty(CT)—like the Treaty of the European Community (TEC) and the Treaty of theEuropean Union (TEU)—comprises several references to European ways of doingthings. Safeguarding and enhancement of Europe’s cultural heritage presumes anexisting European identity with historical roots that must be preserved.6 The stresson respect for cultural, religious and linguistic diversity,7 is reinforced with a stresson unity in diversity,8 including the taking into account of the differences betweenthe legal traditions and systems of the Member States.9 All these references seem toemphasise diversity and difference as essential ingredients of a specific Europeanidentity 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 redistributionof the attributes of sovereignty between the Member States and the different organsof 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, itis important to find out how identities evolve: whether they are constructed, imposedor 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—beinterpreted by some as a rejection of a European identity.

6 Art. I-3 CT, as in Art. 151 TEC.7 Art. II-82 CT, as in Art. 149 and 151 section 4 TEU.8 Art. I-8 CT.9 Art. III-270, section 2 CT.10 See Weiler on this issue, who actually pleads against a formal European Constitution, fearing itwill in the end eliminate the ‘community of others’ that the Union still forms at this moment. Weiler(2001).11 Art. 2 of the TEU reads: ‘The Union shall set itself the following objections: (...) to assert itsidentity on the international scene, (....)’.12 About personal identity in relation to privacy, Hildebrandt (2006a), drawing a.o. on Ricoeur(1992).


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The term identity can refer to sameness and to selfhood. Identity in the sense ofsameness can refer to continuity: sameness between one’s face yesterday and one’sface today indicates that despite minor differences yesterday’s face is the same faceas today’s. Sameness can also refer to the fact that two different entities (like twohouses) can be identical (designed by the same architect, built according to the sameblueprint). So, identity can be connected with comparison and sameness, even if itidentifies 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 evenseems to presume it: the fact that I can identify you as the same person as yesterdaydoes not imply that you have not changed; the fact that two houses built on the basisof the same design are different in many small ways does not hinder my judgementthat they are indeed the same houses. The only time that sameness seems to excludedifference is when we say that something is always identical with itself. But onecould of course say that this is a rather trivial statement that is true for as long as oneignores the passing of time.

A second meaning of identity is selfhood. When I speak of my identity I refer tomy sense of self. Besides Glenn whole branches of philosophy and social psychologyhave built on the insight that the sense of self is born in the confrontation with theother (Ricoeur, 1992; Mead, 1934/1959). We can demonstrate this process of beingborn as a subject or a self by listening to a child that learns the use of the firstpersonal pronoun. If you tell a child ‘‘you are Peter and I am John’’, while pointingfirst 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 torealise the curious paradox that he is ‘‘you’’ to you, but ‘‘I’’ to himself. He has tolearn to take the perspective of the other—to move beyond imitation—to realise hissubjectivity and his sense of self.

On the one hand identity in the sense of sameness seems to refer to a differentcategory than identity in the sense of selfhood. Numerous things can be identified asthe same, without any reference to selfhood. A closer look brings out two linksbetween sameness and selfhood. First, to decide that things are the same we need aperspective from which they appear as the same: the objectification that designatesobjects in the world as the same, is unavoidably performed by a subject (a self). So tosingle out sameness presumes selfhood. Second, selfhood seems to presume (1)sameness over time, and (2) sameness over and against otherness.13 Both types ofsameness (over time and in relation to others) are dynamic (a person regards herselfas the same over time and in relation to others without denying changes) and theyboth presume a performative action on behalf of the person that claims this same-ness.

13 Selfhood and otherness are thus mutually constitutive. Otherness is a broad category and at somepoint 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 asstranger (as was pointed out to me by Lindahl, referring to Waldenfels, 1999). My point concerningthese highly relevant distinctions is that the borders between adversary and enemy, recognisableother and stranger are necessarily fluid and dynamic. An enemy can become an adversary, while afamiliar other can become a stranger, to face this possibility we need an epistemology of interculturalcommunication. See for a challenging example of such an epistemology in the case of ‘first contacts’Brakel (1999).


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If we now return to the topic of a European identity the stress on unity in diversityseems almost trivial: as seen above identity does not exclude difference but ratherpresumes it. It is difference that calls for a decision on what in the midst of all thediversity is still the same. If we take diversity to be given, the effort has to go into thelines along which similarity is established. As Wittgenstein has demonstrated thissimilarity is never given, but has to be decided upon time and again.14 So, how doesthis 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 tolegitimately and effectively anticipate each other’s actions. In other words, legalnorms provide common standards to which those that share jurisdiction will tunetheir behaviour. Crucial for the identity of a people is the fact that they sharejurisdiction in the broad sense (implying either a territory, kinship/descent, adher-ence to a certain religion or a mix of these that determines—and is determinedby—the competence to speak the law).15 Shared jurisdiction implies that courts areconstrained by the same legal rules, while at the same time it is also the courts thatdecide on the meaning of those rules on a case to case basis. Jurisdiction is alwayslimited regarding the people it concerns (rationa personae, based e.g. on the terri-torium they inhabit; the function they have been attributed or their descent) andregarding the subject matter that falls within its scope (rationa materiae, based onconstitutive distinctions between for instance science, religion, politics, morality andlaw). These limitations are historical artefacts: fruits of organic growth within aspecific environment; of the imposition of specific constraints by internal or externalpowers; of the imported features of other legal traditions or the fruit of a mix of suchinfluences. One could say that jurisdiction is thus constitutive of the identity of thosethat share its rule: by constraining them and not constraining others and by con-straining in a certain way and not in another way, law makes it possible for a peopleto identify as the same people, allowing them to speak of themselves as differentfrom other people. At the same time the law, the specific constraints that a peoplelive by, is a product of the identity of a people: because the Dutch for a long timebelieved that harsh punishments have little positive effect and are difficult tolegitimise, the courts—facilitated by the legislator—inflicted mild punishments.Even though the Dutch still think of themselves as having a mild penal climate thereality is quite different—in accordance with changed attitudes detected in public

14 Glock (1999): ‘‘(..) Wittgenstein does show that the identity of an object with itself does notprovide 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 doingthe same cannot provide an independent standard: whether my saying ‘16’ after ‘2,4’ counts as doingthe 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’’. Glockactually writes ‘6’ after ‘2,4’ but I take it that he meant either ‘16’ or ‘8’.15 Government presumes jurisdiction and taxation. But even in societies without a state jurisdictionis crucial for the survival of the society, especially since in that case jurisdiction is voluntary andconsensual in the end. For a comparative, historical and anthropological analysis of the importanceof criminal jurisdiction see Hildebrandt (2002). Also – in English – Hildebrandt (2006b, c).


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opinion. There is no chicken or egg here; legal tradition and the identity of those thatadhere to it determine each other. They are mutually constitutive—a shift in the onewill entail a shift somewhere in the other.

So far I have used the terms law and legal tradition in a rather loose way, as nearsynonyms. To understand the mutually constitutive relationship between the identityof a people within a certain jurisdiction and the legal tradition they adhere to, it isimportant to indicate how I use the terms law and legal tradition.16 Following Glenn Iwould like to stress that a tradition is a bran-tub of information on how to perceive theworld 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 toit, to decide how to act. While acting they add information, but to motivate newactions this new information will again have to be translated to the new situation. Alegal tradition is strong and vulnerable, like water: its historicity—or pastness inGlenn’s terms—is at once its strength and its weakness. The metaphor of the bran tubis salient because it indicates the rich abundance of information contained by thetradition, often allowing adherents to mine its contents for opposite purposes. Towork with the information it will have to be translated into the demands of thesituation that calls for a solution, because the information in the tub does not speakfor 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 thistranslation—interpretation—of the legal tradition. However, such a conclusion maybe too easy. We have a circle here: while the law is certainly the product of thelawyers’ translation it then becomes information and returns to the bran-tub. Toretain a hold on a people it will have to be edited, revised, and cultivated again andagain. So law is part of the information of a legal tradition and also its result. As itsresult it can be described as the specific normativity that authoritatively constrainspeople in their daily actions, telling them what they can do, what they must or shoulddo and what they cannot, must not or should not do (the differences stem from theway a legal tradition views the world, for instance in the Islamic tradition conduct isdivided into five classes: compulsory, rewarded, indifferent, disapproved and for-bidden) (Glenn, 2004a, p. 201). We may conclude that the law that rules in a specificjurisdiction, rooted in a specific legal tradition, thus constitutes the identity of those thatshare 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 differentfrom other traditions, like religion or modern science, that function within the realmof its jurisdiction. The normativity of the Western legal tradition is imperative rather

16 Glenn (2004a), pp. 13–16. Referring to Popper (1963), Glenn discusses the modernist distinctionbetween static traditional societies and progressive modern society, as a distinction that is itself partof the western rationalist tradition.17 A bran tub is ‘A lucky dip consisting of a tub filled with bran, paper or wood shavings, etc withprizes hidden in it’ (http://www.allwords.com). The metaphore emphasises the richness of theinformation available within a tradition and the fact that the development of a tradition depends onwhich information is actually chosen to be acted upon.


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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 toomuch on its imperative aspect).18 In principle the imperative aspect of legal normshas a strong impact on the identity of those that are ruled by them, since it meansthat in the end legal norms can be enforced. If this is the case, criminal law must havea particularly strong impact. After all criminal law is an expression of the legitimateviolence a state may exercise after establishing a violation of the criminal law, so theauthoritative aspect is unfolded publicly. This could mean that criminal law is con-stitutive of the identity of those that share its jurisdiction in a very strong sense, moreso than other branches of law.19 The constraints sanctioned by means of criminal laware apparently considered to be crucial for the survival of the polity that has crim-inalized them, thus reinforcing them as the core of what unites a people, of whatdemonstrates their sameness and selfhood. What is criminalized: prostitution or onlyforced prostitution and smuggling of illegal aliens; preparation of a crime or only thecrime itself; criminal intention or only accomplished crime (or only the attempt, oronly serious attempt); rape outside or also inside a marriage; animal abuse includingor excluding maltreatment in bio-industry; possession, selling and/or use of whichdrugs; euthanasia; abortion? If a European Criminal Law means that dual crimi-nality is dropped as a condition for international legal cooperation,20 does this meanwe trust other jurisdictions to have made the right choices or does it mean we give uppart 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 sus-tainable European identity demands mutual trust based on a shared understandingof punishable behaviour.

Criminal procedure

The same goes for criminal procedure: the process that prepares judgement in acriminal case is as much the embodiment of constraints specific for a particular legaltradition as substantive criminal law. The rules that govern criminal procedure con-strain the way a government can decide to punish: these rules indicate the relation-ship between a government and its people. What positions do prosecutor, judge anddefendant 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 incrim-ination; is the trial public; does the defendant have access to relevant information intime; which checks and balances have been incorporated to supply the defendant withequality of arms; is the trial contradictory or even adversarial; is the judge inde-pendent; how are judges recruited; which guarantees have been installed to safeguard

18 About the problematic effectiveness of administrative of the law, see my doctorate dissertationHildebrandt 2002.19 The fact that criminal law is thought of as a last resort does not mean that its importance ismarginal rather than crucial for the self-identity of a community. It indicates that the legal normsprotected by the criminal law have a tacit rather than explicit hold on us, which makes violation lesslikely because their normative appeal comes from within, from the core of who we think we are.20 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 to-gether (see art. 2 of the Council Framework Decision on the EAW (2002/584/JHA) and art. 16 and24 of the Commission’s Proposal for a Framework Decision on the EEW COM (2003) 688 final). Seethe verdict of the German Constitutional Court, discussed in footnote 47.


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the impartiality of the judge; is the prosecutor a crime-fighter or is he obliged todefend the possible innocence of the defendant? Do we wish to accept as evidence inour own legal procedure what has been obtained in a jurisdiction that has otherinvestigative methods and counts as evidence what would be excluded as illegal inours? Is the resistance we feel here due to the infringement of our sovereignty or ofour 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 andother legal actions—has a history, or rather a biography. The history is the sequenceof its pastness; the biography starts when one reflects on this history and translateswhat one finds important into a story that makes sense. As a person, to have anidentity one must be able to link and communicate ones pastness into an integratedstory, a narrative that explains the complex and contradictory person we have be-come in the course of our life. This story explains why we are this person and notanother, thereby claiming and confirming that we are the same self over the courseof time (the explanation is performative).22 The identity of a legal tradition is evenmore complex, contradictory and fluid because it has to be sustained beyond thepastness of a single person: necessitating a memory that survives the lifetime of ahuman person and somehow provides coherence to the diversities of and betweenthose that share its jurisdiction. The leading story of a legal tradition, the side-storiesas well as competing stories thus form a network of ever to be reconstructed biog-raphies that form the identity of the tradition. This again indicates the fragility ofidentity because it depends on these narratives: our pastness means nothing until weselect, link and translate the information from the bran tub to explain how we areconstrained today. Being part of a tradition means that we cannot invent just anystory because we will have to relate it to the information available within the tra-dition—even if we borrow from other traditions—but the information does notspeak 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 dohave a choice—as Member States—of which story to tell. If the prevailing biographyof our national legal tradition does not dictate terms because a biography itself is partof the bran-tub and depends on hard work to become or remain the leading version ofthe tradition, then it is up to us to claim or not to claim infringement of our identity bythe 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 groundsthat it is—and should be—part of the national legal tradition. The argument thatcriminal law should remain within the national jurisdictions is based ontwo—interrelated—presumptions: (1) as the constraints protected by means ofcriminal law are crucial for the identity of a people decisions on the criminality ofcertain actions should be left to the legislators and courts of that people (criminaljustice should be local justice); (2) as the sanctions imposed by the criminal law are

21 See section ‘‘Criminal law, local justice and sovereignty’’ below.22 Ricoeur (1992), pp. 113–169, on narrative identity.


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directly related to the state’s monopoly of violence the scope and application of thecriminal law fall within the domain of the sovereign national state (criminal justice ispart of sovereignty).

Both presumptions beg the question they intend to answer. Regarding the firstpresumption, if criminal justice should be local justice it may be very important toagree on a European criminal law, because it would install a form of local Europeanjustice and thus produce or strengthen European identity. The counterargument thatlocal justice refers to a smaller territory than that of the Union raises the question whycriminal justice in that case is regulated from the national level instead of the regionalor any other ‘‘local’’ level. One answer to that question could be that a unifiednational law does not stand in the way of localised differences in the interpretationand application of the law, while at the same time the system of judicial appeal willguarantee coherence at the national level, thus producing and protecting legal cer-tainty and equality before the law. In that case the presumption that criminal law is orshould be a matter of local justice does not necessarily plead against a Europeancriminal law; it rather pleads a specific arrangement in which both the unity of the lawand the diversity of its application are safeguarded (see Amstutz, 2005).

Regarding the second presumption the important question is to what extent wewould be willing to impair national sovereignty in favour of European sovereignty. Itdoes make rather a difference whether we are discussing a European Criminal Lawthat is limited to the financial interests of the Union (Corpus Iuris)23 and/or seriouscrime 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 policeauthorities in other Member States enough to hand over competences that are partof the monopoly of violence to the Union and/or other Member States (e.g. theEuropean Arrest Warrant; the proposed European Evidence Warrant; mutual rec-ognition of other judicial and extra-judicial decisions; minimum rules for the defi-nition of criminal offences and punishments).24 The question whether (and which)competences related to the monopoly of violence should be in the hands of thenational state, of other Member States and/or of the Union can, however, not beanswered out of context: it depends on the way particular national states use their iuspuniendi 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 ofthe 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?

Introduction

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 pu-niendi to sustain a fluid and strong European identity that is at once coherent anddiverse. Below I will first discuss the way the CT redistributes the attributes ofsovereignty in the field of criminal law, comparing it to the way this is done in the

23 About the Corpus Iuris, see Delmas-Marty (1998).24 See about the European Arrest Warrant footnote 47, for an example of imposed criminalizationof environmental offences see section ‘‘‘‘Reception’’ of the CT by the European court of justice’’below.


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Treaty of the European Union (TEU, the so called third pillar of the EU).25 To thisend 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 Iwill see how the further integration of the EC and the EU could indeed facilitateunity in diversity by looking at Europeanisation of substantive criminal law of and inthe Union; mutual recognition of decisions in the Member States and Europeani-sation 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. Forlawyers raised in the Western legal traditions the idea that their tradition consists ofa bran-tub of information will sound rather off-key. The high level of systemisationof the formal and informal sources of the law seems to rule out the use of a metaphorthat makes the available information seem like a bunch of unknown objects hiddenin a tub filled with woodshavings or bran. I would like to argue, instead, that themetaphor emphasises the fact that the systemisation and the resulting complexitydemand a continuous effort of maintenance. Like in physics, in order to survive thelegal order has to counter the forces in the direction of entropy and chaos (Prigogyne& Stengers, 1984). Systemisation cannot be taken for granted and demands con-tinuous 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 persistentfine-tuning.

Legal personality and redistribution of sovereignty

As Weiler writes ‘‘in many instances, constitutional doctrine presupposes the exis-tence of that which it creates: the demos which is called upon to accept the consti-tution is constituted, legally, by that very constitution, and often that act ofacceptance is among the first steps towards a thicker social and political notion ofconstitutional demos’’ (Weiler, 2001). The EU Constitutional Treaty could haveperformed this paradoxical constitution, even if the acquis of the European Com-munity implies an already existing unwritten constitution of the European Com-munity that emerged and developed on the basis of a series of ground breakingjudgements of the European Court of Justice in Luxemburg.26 Had the CT come

25 I will presume the reader to be familiar with the acquis communautaire and the present attri-bution of competences within the three pillars of the EU, for a detailed overview in relation tocriminal law see Pradel and Corstens (2002). Those less familiar with the state of the art of Europeancriminal law in and of the Union should be able to follow the general outline, as I will frequentlycompare the CT with the present situation.26 See Lindahl (2003), who discusses the relationship between the constituent and constituted powerof the legal order of the European Community as posited by the European Court of Justice in itsdecisions 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 innovationthat initiated a new supranational legal order sui generis, projecting its birth into a ‘new’ past. Whilethis 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.


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into force, this acquis would have been reinforced and transformed at the sameinstant, re-creating the European demos and the European legal order by means of awritten ‘‘constitution’’.

Art. I-7 CT attributes legal personality to the Union. One of the major reformstargeted by the CT is the transformation of the ‘‘pillared’’ structure of the EC andthe EU into one legal person (the European Union). In the present situation wehave a supranational EC and an intergovernmental EU that are strictly demarcatedby the fact of their different legal–political foundations.27 The particular attributionof legal personality proposed in the CT leads to a jurisdiction that is best understoodas a unity with federal, confederal and specific sui generis aspects.28 Such a ‘‘fuzzy’’definition of the legal–political nature of the Union allows a dynamic and preciseunderstanding of the attribution and distribution of competences between Unionand Member States.29 The intended reconstitution of legal competence of the Unionversus the Member States and between different organs within the Union wouldboth reinforce and transform the identity of the Union.

If we look into the explicit attribution and distribution of competences regardingthe area of freedom, security and justice—relevant for European criminal law—wefind that they fall within the ambit of shared competence between Union andMember States.30 Important is art. I-12 section 2, which attributes the competence tolegislate and adopt other legally binding acts in areas of shared competence to theUnion and leaves Member States competence in as far as the Union has not exer-cised its competences in the area concerned.31 Summarised this in fact means thatevery time the Union decides that certain measures could be better achieved atUnion level, the Member States would lose their competence to regulate the specificissues. For as far as the Union can decide by majority rule, sovereignty is thusredistributed (some national sovereignty is lost, to be reconstituted at Union level).

27 The first pillar regards the articulation and implementation of common policies, concerned withthe free movement of goods, persons, services and capital; agriculture; visas, asylum and immigra-tion; monetary issues; the environment and other issues deemed of importance for the realisation ofa common internal market. The first pillar is usually referred to as Community law; it has a juris-diction sui generis that has supremacy over national jurisdiction; and its legislative procedure is basedon co-decision of Council and Parliament. One could say that the first pillar represents a federalaspect within the European Union. The second pillar concerns a common foreign and security policyand it is entirely intergovernmental. The third pillar regards police and judicial cooperation incriminal matters, its jurisdiction is intergovernmental but Parliament, Commission and Court havemodest roles in the process of legislation and adjudication. The main competence is with the Councilthat has to decide unanimously to be able to act in this field; one could say the third pillar hasconfederal aspects.28 Jurisdiction is understood here in the sense discussed in section ‘‘Identity and legal tradition’’above.29 This redistribution is explicitly articulated in art. I-11 (principles of subsidiarity and proportion-ality; federal aspect), art. I-12 (definition of exclusive, shared and other competences; sui generis mixof federal and confederal aspects), art. I-13 (attribution of exclusive competences of the Union;federal aspect), art. I-14 (attribution of competences shared by the Union and the Member States;mix of federal and confederal aspects), art. I-15 (coordination economic and employment policy bythe Union; sui generis aspect confirming the Union’s original economic objectives), art. I-16 (com-mon foreign and security policy by the Union; confederal aspect), art. I-17 (Union competence forsupport, coordination or supplementary policy; intergovernmental aspect) and, finally art. I-18 (aflexibility clause for unforeseen issues that demand new competences for the Union).30 Art. I-14 section 2 CT.31 See also Art. I-11 section 3, which defines the principle of subsidiarity.


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‘‘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 notprohibit its ‘‘reception’’ by the European Court of Justice (ECJ). Two examples ofsuch ‘‘reception’’ will be briefly discussed to indicate the reshuffling of the attributesof sovereignty by the ECJ. One relates to substantial criminal law (imposing anobligation on Member States to criminalize certain behaviour), the other relates toprocedural 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 EUFramework Decision of the Council of the EU, brought to the Court by the Com-mission and the European Parliament.32 In the Framework Decision under scrutinythe Council obliged Member States to take action against offences posing a threat tothe environment. To be more precise, the Council imposed criminalization of anumber of environmental offences, demanding the penalties to be ‘‘effective, pro-portionate and dissuasive’’. The Council based its competence on the third pillar.33

The Commission and the European Parliament applied for annulment of theDecision, claiming that it infringed a first pillar competence,34 namely the compe-tence to criminalize offences against the environment. One of the main differencesbetween the procedure for legislation in the first and the third pillar, is the fact thatthe Council acting as part of the EC (first pillar) has to share its competence tolegislate with Parliament (co-decision procedure), while the Council acting asCouncil of the EU (third pillar) has to only consult with Parliament. The Courtdecided that the Framework Decision indeed infringed EC competence and ruledthat it must be annulled in its entirety. By thus deciding the Court seems to haveextended the scope of the TEC by transporting the competences to criminalizeenvironmental offences from the third to the first pillar. It may be that the Court wasinspired 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 thesame need for a more effective and a more legitimate instrument to implement thepolicies of the Community. The integration of the pillars in the CT implies that allFramework Laws have to follow the legislative procedure and are thus under thecontrol of the European Parliament.35 This means two things: (1) a loss of nationalsovereignty, because Framework Laws can be adopted by a (qualified) majority,which means that a Member State can be overruled and forced to criminalizebehaviour it deems non criminal, for instance the criminalization of (support for)illegal immigration (2) a gain of democratic legitimacy, or at least parliamentarycontrol. The same two consequences are at stake in the Court’s decision to bring thecompetence to oblige Member States to criminalize environmental offences underthe rule of the first pillar.

One of the things that strike one, when reading the case of this FrameworkDecision, is the emphasis on ‘‘effective, proportionate and dissuasive’’ penalties. TheDecision explicitly chooses criminal instead of administrative sanctions. For a longtime the idea has been that administrative sanctions are more effective, because

32 C-176/03, regarding EU Framework Decision 2003/80/JHA. On the implications of this crucialjudgement see Castillo Garcia (2005).33 Title VI TEU, especially Art. 34 section 2 (b) and Art. 39 TEU.34 Title XIX TEC, first pillar: supranational; primacy of Community Law art. 47 TEC.35 Art. I-34 and III-396 CT.


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more easily administered (and negotiated?), than criminal sanctions with theirburdensome safeguards like the presumption of innocence. The lack of stigmatisa-tion was supposed to ease possible resistance against the flood of administrativesanctions created to enforce the endless flow of administrative regulations, like thosein the field of environmental law. The sanctions should appeal to a homo economicusthat would abstain from undesirable behaviour because the sanctions raised the priceof such behaviour, without appealing to shared norms and values. One could claimthat such administrative sanctions do not touch the self-identity of a citizen, since sheis not really blamed for her actions, but rather ‘‘managed’’ into the right responses.The turn to criminalization implies recognition of the failure of this administrativeattitude, and it could indicate that we (need to) identify environmental offences as aserious violation of the values that constitute our identity as Europeans. However, tohave such an effect, the other side of criminalization should be taken serious: theeffective institutionalisation of due process as embodied in the constitutive princi-ples of the fair trial of art. 6 of the European Convention of Human Rights(ECHR).36

The second case concerns the protection of the interests of victims in criminalprocedure. The case raised the question to what extent the interpretation of a na-tional law that aims to implement a Framework Decision (third pillar), must be inconformity with the relevant Framework Decision. Standard case law of the Courtapplied the so called principle of interpretation in conformity with Community law tothe 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 thePupino case, the Court ruled that this principle should also be applied to theinterpretation of a law that implements a Framework Decision.37 Mrs Pupino wascharged with abuse of disciplinary measures taken against young children under hercare. The relevant issue concerned the fact that under Italian law it seemedimpossible to take testimony of these children out of court, while the CouncilFramework Decision on the standing of victims in criminal proceedings imposes aduty on the Member States ‘‘to protect victims—particularly those most vulnera-ble—from the effects of giving evidence in open court’’.38 The application of theprinciple of interpretation in conformity with Community law to national legislationthat implements Framework Decisions has raised some eyebrows, especially sincethis extension of first pillar interpretation strategies to the third pillar was decidedjust after the rejection of the CT by the French and Dutch voters. In a sense theintegration of the pillars realised in the CT, is endorsed by the Court’s active standon the need for an effective Union law.39 Even though interpretation in compliance

36 The CT incorporates a limited set of fundamental rights concerning criminal law, and links theinterpretation and application to the ECHR, see section ‘‘Human rights of European citizen’’.37 C-105/03.38 Art. 8 (4) of the EU Framework Decision 2001/220/JHA of 15 March 2001.39 This observation should be qualified in the sense that the Court maintained that FrameworkDecisions cannot have direct effect (art. 34 TEU), meaning they cannot be invoked by individualsbefore national courts, as is the case with Community legislation since the Van Gend en LoosJudgement, D-26/62 (1963) ECR1. One could say the Court introduced a notion of indirect effect inthe legislation of the third pillar. See Castillo Garcia (2005), p. 33 note 21. A second difference thatremains relevant between first and third pillar legislation is the fact that the Commission cannotinitiate infringement procedures against Member States that have not adequately transposedFramework Decisions into their national jurisdiction, see Castillo Garcia (2005), p. 30, 31.


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with Community law may seem reasonable and unsurprising, it was core business forthe demarcation of the first and the third pillar. One could argue that if the thirdpillar—other than the first—intends to leave national sovereignty intact, the inter-pretation of national law should be a national affair. Having decided otherwise theCourt seems inspired by the same logic of integration that is articulated in the CT,which does not contain Directives and Framework Decisions with different legalfoundations, but has only one regime for this type of legislation, being EuropeanFramework Laws.

Both cases indicate an implicit redistribution of legal competence betweenCommunity, Union and Member States regarding issues of criminal law. In bothcases this leads to a loss of sovereignty in criminal matters for Member States and areinstitution of such sovereignty at the level of the Union and/or the Community. Inthe first case criminalization of environmental offences is at stake, a matter thatdirectly touches reflects the self-identity of a people. One may even guess that byimposing an obligation to criminalize these types of offences the identity of Euro-pean citizens is targeted, hoping that the protection of the environment becomes ashared value of citizens instead of an administrative task of government. In the secondcase criminal procedure is at stake, namely the protection of victims that will changethe checks and balances of the fair trial, because the defence will have less chance tochallenge the testimony in open court. This attempt to create a shared regime ofprotection for victims again touches the identity of European citizens, as it demandseffective respect for victims, notwithstanding the fact that this should not impact thefairness of the trial. Apart from the fact that the rulings of the court directly impactthe identity of European citizens because of the values they aim to reinforce, theserulings 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 theset of rules that enables the European legislator to ‘‘Europeanise’’ a certain subset ofcriminal offences.40 One category of this subset is formed by crimes against thefinancial interests of the Union (these have already been Europeanised).41 The othercategory concerns particularly serious crime with a cross-border dimension. The caseof imposed criminalization of environmental offences, discussed above, supplies athird category: offences created to ensure ‘‘the full effectiveness of a Communitypolicy’’.42 In terms of the CT Europeanisation means (minimum rules for) a com-mon definition of both the crime and its punishment, executive competence forEuropol and Eurojust and—eventually—a European Public Prosecutor that caninitiate criminal investigation and prosecution.

40 Buruma (2002) speaks of federalisation.41 The Convention on the protection of the financial interests of the European Communities (1995).42 Castillo Garcia (2005), p. 30. He refers to the communication of the Commission to the EuropeanParliament 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 thatconcern criminal sanctions aimed to enforce common policies of the Community.


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Europeanisation of substantive criminal law produces European Criminal Law. Itdraws on two sources: (1) the legal tradition that evolved from EC jurisdiction forcrimes against its own interests and (2) the legal traditions of the Member States.43

The first is the criminal law of the EU; the second is criminal law in the EU.44 Aninteresting question is whether Europeanisation of the second category means thatparts of criminal law in the EU are transformed into criminal law of the EU. The CTconsiders as crimes of this second category: terrorism, trafficking in human beingsand sexual exploitation of women and children, illicit drug trafficking, illicit armstrafficking, money laundering, corruption, counterfeiting of means of payment,computer crime and organised crime. By attributing competence to enact minimumrules for the definition of these crimes and their punishment the ConstitutionalTreaty seems to identify these crimes as crimes against the Union itself and thus toreframe them as part of the Criminal Law of the Union. By redefining such crimes asan infringement of the legal tradition of the Union itself, both the identity and thelegal tradition of the Union would be redefined, extended and reinforced. Theunification that is provoked by establishing minimum rules for these criminal of-fences and their punishment would unify them in precisely this sense: from now onthey are considered as violations of the law of the Union itself. Note that theCommunity competence to impose the criminalization of offences that violateCommunity policies (case C-176/03 discussed above) has the same effect: the vio-lation 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 tosustain 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 thesame text on all Member States and (2) this approximation of substantive criminallaw would leave the executive competences of national authorities intact, so—even ifEuropol, Eurojust and eventually a European Public Prosecutor could initiateinvestigation and prosecution—cases would be brought to national courts and theapplication of the harmonised criminal law would still be national in the first in-stance. All this guarantees national diversity, to be cohered in the end by means ofjudicial review and prejudicial decisions of the ECJ.45

Mutual recognition of judicial and extra-judicial decisions

The second move towards a European Criminal Law in the CT is the mutual rec-ognition of judicial and extra-judicial decisions throughout the Union. Mutual rec-ognition seems the central principle of the area of freedom, security and justice,aiming at a situation whereas decisions taken within the jurisdiction of one MemberState have direct legal effect in other Member States. From the perspective of theCT such direct effect affects all criminal matters with a cross border dimension—notonly criminal offences against the financial interests of the Union and/or serious

43 Klip (2004) suggest two ways to determine how European Criminal Law should be given shapeand content: deriving it from the work already performed by the Union or inducting it from commontraditions in the Member States.44 Delmas-Marty (1998), p. 88. Community law has a major impact on criminal law in the EC inorder to prevent violation of one of the four freedoms (of movement for goods, persons, services andcapital), see idem on neutralisation and augmentation of national penal law, pp. 90–106.45 See section ‘‘Criminal law, local justice and sovereignty’’ above.


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crime. It intends to promote smooth cooperation at the level of criminal investiga-tion, prosecution, adjudication and sentencing (examples of competences in this fieldare the European Arrest Warrant46 and the draft European Evidence Warrant).

One of the most important aspects of mutual recognition is the tendency to restrictthe 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 breachof criminal law by the legislation of both the requesting state and the state receivingthe request)’’, but also requires the incriminated act ‘‘to be punishable in concreteterms (the author of the act should not be in a situation which rules out punishment)’’,in both jurisdictions.47 The principle thus puts quite a burden on the state receivingthe request, delaying and possibly frustrating decisions, because it requires researchinto 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 anarrest warrant for a person having committed abortion, euthanasia, possession ofsmall portions of soft drugs would have direct effect even in Member States that donot consider this criminal under all circumstances. As long as such actions arecriminal in the requesting state judicial support will have to be supplied. Likewisemutual recognition seems to indicate mutual trust to an extent that precludesinvestigation of anticipated human rights violations in the requesting or requestedstate (could a suspect face violation of art. 6 ECHR after surrender; could evidencehave been obtained violating art. 6 or 8 ECHR?). Should Member States trust eachother as far as the integration of the ECHR is concerned (even though violations areregularly established by the ECHR)? (Alegre & Leaf, 2004; Guild, 2004).

One can argue that dropping the condition of double criminality is a matter ofrespecting diversity, accepting that other Member States may have different legaltraditions, not identical to one’s own. A solution, suggested by Klip, could be to limitthe national criminal jurisdictions of Member States to acts committed on theirterritory (Klip, 2004, pp. 56–57). Klip argues this line of thought as an alternative forthe principle of double criminality. His suggestion to limit national criminal juris-diction is part of his proposal to make a clear distinction between substantivecriminal law of the European Union and national criminal law in the EuropeanUnion. He warns against moving ahead with mutual recognition, Europol andEurojust before the relevant choices have been made. One can easily agree on thelink between problems in the field of legal cooperation and the diversity of nationalsubstantive criminal law, but whether approximation will solve these problems isquestionable. Like many other writers Klip acknowledges that problems of inter-national legal cooperation in criminal matters are related to lack of psychologicalacceptance (Klip, 2004, p. 57), misunderstanding about competences and cultural

46 The fact that mutual recognition may diminish legal protection has already led to the annulmentof 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 Actinfringed Article 16.2 sentence 1 (a relative right to freedom from extradition, legal certainty) andart. 19.4 (recourse to court) of Germany’s Basic Law. The Constitutional Court did not denounce theCouncil Framework Decision of 13 June 2002 on the European arrest warrant and the surrenderprocedures between Member States (2002/584/JHA), they declared void the Act by which Germanyaimed to implement the Framework Decision, claiming there was room for the integration of thesaid protection.47 See European Parliament Resolution A5–0145/2001 on mutual recognition on final decisions incriminal matters, AA, about the difference between dual criminality and double criminalization.


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difference (Buruma, 2002, p. 668), rather than to a lack of harmonised substantialcriminal law. In other words the link between national identity and national sub-stantive criminal law may render a unified European criminal law ineffective ifnational identities do not change. At the same time one must admit that sharing thejurisdiction of such unified law is bound to have an impact on national identities. Ifthe change is a good one, this should be applauded. This brings in the normativequestion. After examining the extent to which Europeanisation is possible, weshould move on to the question what kind of Europeanisation is desirable. We willshortly 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 Europeanisationof criminal procedure. This is not done by establishing a European court of criminaljustice. Instead national criminal procedure is to be Europeanised along two lines.First by means of the incorporation of fundamental rights (effective remedy, fair trialand presumption of innocence) in the Charter of Fundamental Rights of the Union,while linking the interpretation and application of these rights to the ECHR.48 In away this should bring substantial changes, because all Member States are alreadyparty to the ECHR. However the relationship between Union and Council ofEurope concerning the ECHR has not been unambiguous and the explicit referencein the Charter could have impacted both the application and the interpretation ofsuch rights by the ECJ. Second the CT aims for Europeanisation of criminal pro-cedure by attributing competence to establish minimum rules for the rights ofindividuals in criminal procedure.49

In a discussion of the proposal to produce a single European legal area for theprotection of the EU budget, Delmas-Marty described three principles that shouldregulate criminal procedure (including investigation, prosecution and judgement):(1) the principle of European territoriality (European Public Prosecutor); (2) theprinciple of judicial control (juge de libertes) and (3) the principle of confrontationalproceedings (Delmas-Marty, 1998). If, as discussed above, parts of criminal law inthe Union become criminal law of the Union, the scope of such principles should beextended to those parts of substantive criminal law to be Europeanised. As a matterof fact, even the mutual recognition of judicial and extra-judicial decisions, whichconcern criminal law of and in the Union, calls for effective remedies in the field ofcriminal procedure. It may be the case that the trust required to give effect to mutualrecognition and other forms of judicial and police cooperation depends on the typeof procedural guarantees that will be established as minimum rules. In that case,adequate protection of human rights would benefit international cooperation. At thesame time, beyond such utilitarian arguments, mutual recognition should depend oneffective remedies for European citizens to protect their human rights.50 This is anormative argument, immediately related to the question which European identitywe should want to sustain and what kind of diversity we should want to include.

48 Art. II 107–108 and Art. II-112, section 3 and 113 CT.49 Art. III-270, section 2 sub b CT.50 The Council has drafted a Framework Decision on certain procedural rights in criminal pro-ceedings throughout the EU (COM (2004) 328 final), see on the issue of competence and scope ofthis Framework Decision Loof (2006).


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

As discussed in the section on ‘‘Biographies of a legal tradition’’ the identity of alegal tradition is closely related to its biography. To have an identity those that sharea tradition must claim sameness and selfhood over an extended period of time, insuch a way that the pastness of the tradition fits a narrative that opens a future that isneither completely determined nor lost in too much uncertainty. Identity builds onpastness to anticipate a future. Legal tradition(s) must be mined for information onhow to act, in other words, they must be mined for information on the sharedstandards by which those that share jurisdiction are constrained. Criminal law is animportant part of our legal traditions, because it entails constraints that we findcrucial for the survival of our sense of self. Thus criminal law is interwoven with ouridentity as members of a particular legal tradition, dependent on forms of localjustice and on the monopoly of violence (sovereignty) to be both effective andlegitimate.

Two themes emerge from a closer look at the legal design for European CriminalLaw as it was put forward in the EU Constitutional Treaty. First, imposedapproximation of criminal law in the Member States may produce some sharedidentity; second, recognition of relevant differences is needed for effective inter-national legal cooperation, even in the case of a Europeanised criminal law. Thecrucial issue here is the fact that the CT aspires the transformation of parts ofcriminal law in the Union into criminal law of the Union. To succeed, existingdifferences would have to be recognised and studied. Only on that basis can deci-sions about a mix of criminal law in and of the Union be effective. In some casesmutual respect for difference will be adequate, while in other cases it may be per-tinent to unify the law and to consider violation of such unified law to be aninfringement of the legal tradition of the Union.

Legal traditions are bran tubs of information. To decide what constraints thisinformation imposes on our actions, we have to choose the narrative that coheres theidentity of the tradition. The information does not speak for itself. It is up to uswhich biography we construct of the European legal tradition(s), what identity thisentails and what this teaches us for the future of European criminal law. Choices willhave to be made here. This brings us to the question what identity we should wantfor a European legal tradition. If transformation of criminal law in the EuropeanUnion into criminal law of the Union diminishes the protection of human rightscurrent 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 instru-mental and protective aspects of criminal procedure. This demands a Europeancriminal law—whether in or of the Union—that regulates an area of freedom,security and justice in which alleged criminals cannot use local criminal jurisdictionto avoid criminal censure, and in which justice authorities cannot avoid effectiverespect for human rights.

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


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