The evolution of European Union criminal law (1957-2012)

2. The features of the new supranationalisation: Lisbon and after
The pattern of expansion of ECL is most likely to be continued and facilitated under the
new institutional framework set in place by the Treaty of Lisbon. Indeed, the TEU(L)
and TFEU entered into force on 1 December 2009 and significantly changed the
institutional framework under which ECL has operated since the 1990s. 540 Some of these
changes were considerable, such as the creation of conditions for the merger of first and
third pillar, whereas others were limited to a formalisation and solidification of many
developments taking place over the previous years. In general, the TFEU further
supranationalised the field by empowering EU actors, facilitating decision-making and
creating further possibilities of expansion of ECL’s scope.
Changes were envisaged both at an institutional and material level. In relation to the
former, the post-Lisbon Treaties brought about a clearer and more dynamic framework.
They created the conditions for the elimination of the “pillar structure” which kept
criminal law outside the EC framework. Hence, the former third pillar, institutional
home to criminal law matters, was moved to the realm of the previous first pillar – the
‘Community legal order’ merging the different frameworks into a single one (this is an
ongoing process). This brought about a number of formal changes.
Criminal law matters rest now on Chapter 4 of Title V, 541 which contains five Articles
on criminal law (Articles 82-86 TFEU) and chapter 5, which contains three Articles on
policing (Article 87-89 TFEU). Rights of initiative now belongs to the Commission or to
a quarter of Member States. 542 This full association of the Commission and EP with
criminal matters is further complemented by the general jurisdiction of the CJEU. 543
Furthermore, measures in police and judicial cooperation matters are no longer to be
adopted by unanimity in the Council. Instead they will now be adopted by qualified
majority voting and co-decision between Council and EP (ordinary legislative
540 OJ C 306/1 (2007). See also Protocol on Transitional Provisions, Article 10 for the stipulation
of a five year transition period, OJ C 306/163 (2007).
541 Title V contains provisions on border checks, asylum and immigration, judicial cooperation in
civil matters, judicial cooperation in criminal matters and police cooperation.
542 Article 76 TFEU.
543 Article 267 TFEU. However, the provisional arrangements determined that the exercise of
new enforcement procedures by the Commission and generalised preliminary competences of the
CJEU shall not apply during the first five years to the instruments already adopted which also
retain their former status (unless they are amended). For more details on the jurisdiction of the
Court after the Treaty of Lisbon see, for example, V. Hatzopoulos, “Casual but Smart: The
Court’s new clothes in the Area of Freedom, Security and Justice (AFSJ) after the Lisbon
Treaty”, Research Papers in Law, 2/2008 (European Legal Studies, College of Europe).
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