The Search for EU Criminal Law— Where is it Headed?

One of the most dynamic ! elds of EU law since the great changes brought to the EU constitutional order by the Amsterdam Treaty in 1999 has been cooperation in the ! elds of policing and criminal justice. Irrespective of whether the Reform Treaty is rati! ed by the member states, these two areas will continue to be high on the political and legislative agenda. Both ! elds have already been the subject of substantial legislative effort in the EU and an increasing amount of judicial activity in the European Court of Justice (ECJ). The original three treaties— creating the economic community, atomic energy community and steel and coal community—did not expressly anticipate the inclusion of policing and criminal law. Similarly, the objective of economic integration while requiring a mechanism of enforcement did not foresee the use of criminal law and the concomitant police involvement as a central part of the structure. In 2007, the Reform Treaty planned wide ranging changes to both EU police cooperation and judicial cooperation in criminal matters. In the meantime, the ECJ has found the use of criminal law sanctions in pursuit of Community law objectives to be lawful. 1 In order to understand these changes we must ! rst review how we got to the Reform Treaty, what have been the key struggles in competence and how the Reform Treaty changes ! t into the transformation of police and judicial cooperation in criminal matters in the EU. To seek for answers to these questions is one of the main objectives not only of this introductory chapter, but also of this entire volume. This book is in large parts the outcome of a doctoral training school that was held in April 2007 at the Centre for European Policy Studies in Brussels, organized within the framework of CHALLENGE—an integrated project funded by the Sixth Framework Programme for Research of the European Commission. Its task was to explore the question: “Police and judicial cooperation in criminal matters in the EU: Which future for the EU’s third pillar?” And in fact at the time of the Training School this future was rather bleak. Hardly anyone would have dared to take a bet that a couple of months later European heads of state and government would actually