Where do we stand with harmonization of substantive criminal law in EU? : remarks on the changes introduced by the Lisbon Treaty

Abstract

Since the entry into force of the Maastricht Treaty in 1993 the harmonization1 of substantive penal law has been an essential but sensitive element of the European Union (hereinafter: the EU) Member States’ cooperation in criminal matters. Up till now, in the discussions on criminal law emphasis is laid down on the significance of the values of national sovereignty and cultural identity, especially in the EU integration context. In result, it traditionally has been dealt through intergovernmental cooperation within so called third pillar – Justice and Home Affairs. After entering into force of the Amsterdam Treaty it found its place among the objectives of ‘an area of freedom, security and justice’2. There are many changes introduced in the sphere of criminal law by the Lisbon Treaty3. As ‘the area of freedom, security and justice’ encompasses various aspects of the criminal cooperation in the EU it would be impossible to present all of them in this short contribution. The particular aim of this article is to present the latest regulations relating to the harmonization of substantive criminal law. Before discussing them one additional comment is needed. As is generally known, the harmonization of criminal laws in the EU is not restricted to the questions of crimes and penalties but it deals with general principles of criminal law, criminal procedure and legislation relating to the operational and practical cooperation in criminal matters as well4. Limiting this article to the harmonization of substantive criminal law has a principal reason: in the opinion of the author these are material law’s provisions that have the primary role in providing for smooth and effective collaboration in practice. Therefore, their harmonization constitutes basic and necessary prerequisite for the creation of ‘the area of freedom, security and justice’.