Abstract This article deals with the possibility of adopting criminal law provisions on a first pillar legal basis. The analysis focuses on two decisions of the European Court of Justice (ECJ) dealing with the matter, with specific emphasis on the second one. The main problems debated are the legality principle, the implicit competence of the Community legislator, the criteria for establishing when there is a need for adopting criminal law provisions on an EC legal basis and the scope and depth of this competence. Comparing the arguments of the Advocate General with the ECJ's approach to the matter, the author tries to establish whether the right decision has been adopted and what the solutions for the future are.