Introduction

The need to enhance the effectiveness of the process for the exchange of data from national criminal records is now widespread. However, proposals for a European Criminal Record (ECR) as a tool for achieving such effectiveness have been criticised mainly for an alleged lack of feasibility. Having discussed the legal, political and human rights requirements for feasibility of the ECR both at the EU and the national levels in previous chapters of this book, this chapter aims to focus on aspects of the ECR proposal that guarantee legitimacy and consequently feasibility of the proposal both as a legislative form and as legal substance.

Feasibility of the ECR proposal: The Sutherland criteria

Assessment of any legislative measure at the EU level is undertaken on the basis of the five Sutherland criteria: need for action, choice of the most effective course of action, proportionality of the measure, consistency with existing measures, and wider consultation of the circles concerned during the preparatory stages.

The need for action in this area derives from the ineffectiveness of current mechanisms for mutual legal assistance in criminal matters at an international level. National criminal records have proven ineffective as inadequate, inaccurate and incomplete, especially with reference to crimes committed by foreigners in the jurisdiction or own nationals abroad, even though mobility of persons, services and, consequently, crime in the EU has increased. The problem presents itself in two dimensions.