EU criminal law is often misunderstood as an avant garde area of legal integration that lacks legal basis, consistency and legitimacy. This is not necessarily untrue. But any criticisms of that nature should be laid before the EU and national actors who have devised the relevant instruments in the manner observed so far. There is nothing ‘strange’, inconsistent or illegitimate about EU criminal law as a field of legal integration.

Consequently, research and analysis of aspects of EU criminal law is often presented as a risky business. This is true but again it must be attributed to the scattered, unimaginative and often borderline legitimacy of EU instruments. In an area where unanimity in decision making is often seen as a sanctification of any political and legal position that manages to reach consensus, commentators struggle with requirements of adherence to competence and data protection issues. The European Criminal Record is a paradigm of this state of affairs.

The Reform Treaty may contribute to the unlocking of this vicious circle. The abolition, finally, of the third pillar may, and in a way inevitably will, bring with it increased subsidiarity and proportionality tests and increased controls of competence and legitimacy issues. This is a very fluid, yet incredibly exciting time, for those promoting the EU ideal on a solid basis even in the field of EU criminal law.

This is a time when competencies in the field of criminal law will have to be revisited and defined clearly and concretely.

Recent developments

This book has examined in detail the proposal for the ECR and the conditions for its reception by the national legal orders of the Member States. The political feasibility of the ECR and its legitimacy from the point of view of human rights and civil liberties has also been explored. Recent developments in the area of mutual legal assistance and judicial cooperation in criminal matters have been presented and lessons from parallel relevant initiatives of the EU have been identified.

However, questions on the future of the ECR in legislative and political practice remain. In order to assess the future of the ECR one would have to provide updates on the current position with reference to relevant Commission initiatives. At the moment the Commission's proposal for a register of convictions is set aside. The indifference of Member States' delegations towards a central database, that would only include a mere listing of countries where convictions can be sought, has buried this proposal, hopefully for ever. It is very difficult to explain how the Commission possibly felt that Member States would undertake the expense of a centralised database for so little in exchange.

The ECR as a concept remains, albeit as a second stage solution, which will follow the initiative on the organisation and content of the exchange of information on criminal convictions. Member States find it difficult to subscribe to a central database, even one covering a limited range of crimes. At least at this stage.

The necessity of a European Criminal Records: gaps in national criminal records

The concept of a European Criminal Record (ECR) was put forward to the Commission by Dr Constantin Stefanou, serving as the political reviser and horizontal expert in the study on the use of criminal records as a means of preventing organised crime in the areas of money laundering and public procurement funded by the Commission as a Falcone study in 1999. Over a period of two years a multidisciplinary group of fifteen national and three horizontal/comparative experts joined forces to examine and comparatively evaluate the laws on national criminal records in the then fifteen Member States of the European Union (EU) as a means of assessing whether national criminal records are effective and adequate solutions to the problem of increased mobility of persons, services and, consequently, crime in the EU. This multinational, multidisciplinary research revealed that all older Member States maintain databases of convictions imposed on own nationals by national judicial and, at times, administrative authorities; however, the use of national criminal records for the purposes of adhering to the money laundering and public procurement provisions envisaged by the EU in the relevant Directives is not undertaken in a number of countries, including Spain and Sweden. More crucially, the study reveals discrepancies in national criminal records with reference to three main points: the level of information available in the records, the types of persons with entries in national criminal records and the ground covered in these records.

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.

Introduction

The details of the European Criminal Record are crucial for its legitimacy under EU law and for its acceptance by the national legal orders of the Member States. The aim of this chapter is twofold: firstly, to assess the current level of standardisation in the use of criminal records as a national means of combating organised crime; and secondly, to evaluate the conditions under which an ECR could be possible in EU law. In order to achieve these aims the chapter will assess the effectiveness of the current use of national criminal records with particular emphasis on their use and effectiveness in cases of cross-border crime; it will then explore the reception of the ECR in the structure of bodies in the area of justice and home affairs and it will, finally, assess which EU legislative instrument could be used for its introduction and under which conditions this introduction could be attempted.

The current position

Content, use, access and erasure

The end of 1999 saw extensive reviews of national laws on criminal records in a number of Member States, most notably Belgium, Denmark, Greece, the Netherlands, Sweden and the UK mainly as a result of EU law on data protection and the Schengen agreement. Moreover, many of the then candidate countries made extensive amendments to their relevant legislation as a means of complying with EU data protection laws. Examples of this practice can be traced in Cyprus, Hungary and Poland.