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

procedure). 544 This will imply de facto that Member States will have to accept measures
in criminal matters to which they do not necessarily agree to (although an ‘emergency
brake’ mechanism was introduced).
Indeed, the veto power did not disappear completely as the TFEU creates an ‘emergency
brake mechanism’. The emergency brake is not a veto in the strict sense but it balances
the use of ordinary legislative procedure (pre-QMV) in a domain of political sensitivity:
“Where a member of the Council considers a draft directive referred to (…) would affect
fundamental aspects of its criminal justice system, it may request that the draft directive
be referred to the European Council. In that case, the ordinary legislative procedure
shall be suspended. After discussion, and in the case of consensus, the European
Council shall, within four months of this suspension, refer back to the Council, which
shall terminate the suspension of the ordinary legislative procedure.” 545
In the TFEU the role of domestic criminal justice systems and their interaction with ECL
is particularly acknowledged. This is seen in Article 67 TFEU, which replaced the
former Article 29 TEU(A) and provides the general goals for the entire Title V. As
Noted by Herlin-Karnell Article 67 “sets the scene and tells us what values the Union
seeks to enforce: freedom, security and justice and respect for fundamental rights”. 546
Article 67 TFEU, contrary to the former Article 29 TEU, places Member States’
traditions and legal systems (together with fundamental rights) at the centre of its
concerns:
“1. The Union shall constitute an area of freedom, security and justice with respect for
fundamental rights and the different legal systems and traditions of the Member States.
2. It shall ensure the absence of internal border controls for persons and shall frame a
common policy on asylum, immigration and external border control, based on solidarity
between Member States, which is fair towards third-country nationals. For the purpose
of this Title, stateless persons shall be treated as third-country nationals.
3. The Union shall endeavour to ensure a high level of security through measures to
prevent and combat crime, racism and xenophobia, and through measures for
coordination and cooperation between police and judicial authorities and other
competent authorities, as well as through the mutual recognition of judgments in
544 See Articles 82 (1) and 83 (1) TFEU.
545 See both Article 82 (3) where the part in brackets in our quotation reads ‘paragraph 2’; and
Article 83 (3) in which it refers to ‘paragraph 1 or 2’.
546 E. Herlin-Karnell, “Waiting for Lisbon… Constitutional Reflections on the Embryonic
General Part of EU Criminal Law” (2009) 17 European Journal of Crime, Criminal Law and
Criminal Justice 234.
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