INTRODUCTION

The preceding chapters have shown the gradual establishment of a federal dimension in the area of EU criminal law. Still, many would argue that this approach reads too much into the Lisbon Treaty provisions and the recent communications of the EU institutions. It is true that only recently have EU authorities used the word “federal” to refer to actual developments regarding criminal law. Therefore, it is worth examining whether current, routinely applied European instruments contain federalizing elements. The aim, as throughout the book, is to call attention to the fact that the more reluctant the EU is to clearly acknowledge existing European federal interests that deserve EU federal criminal law protection, the more an ineffective federalization will be taking place.

The analysis starts by examining the hallmark of EU criminal law: the European Arrest Warrant. Initially devised to simply replace existing extradition proceedings between Member States, it has a far broader impact. A comparative approach shows that this instrument is truly federal in nature. Moreover, the current EU system is more federal (in horizontal federalism terms) than its US counterpart, interstate extradition. The mandatory nature and the extensive catalogue of offenses to which the EAW applies stands in contrast to the US system. Reluctance to acknowledge the federal nature of this EU instrument reduces the possibility for a transparent discussion on the rationale for establishing such a system.

Similarly, the EU currently has a powerful (horizontal) federal institution related to the well known principle of double jeopardy. Article 54 of the Schengen Treaty bars EU Member States from prosecuting the same facts and offender in their own jurisdiction after acquittal, dismissal or conviction by another EU Member State. On the contrary, the dual sovereignty exception in the US system enables other states and the federal government to prosecute the same facts and offender in their respective jurisdiction, regardless of any outcome in another jurisdiction. The horizontal federalization throughout the EU of the decision reached by one EU Member State thus provides for a harmonization across borders which goes far beyond the US system.

Finally, the harmonization of both substantive and procedural law taking place in the EU is reviewed.