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

“(…) in case of disagreement, and if at least nine Member States wish to establish
enhanced cooperation on the basis of the draft directive concerned, they shall notify the
European Parliament, the Council and the Commission accordingly. In such case, the
authorisation to proceed with enhanced cooperation referred to in Article 20(2) and
Article 329(1) of this Treaty shall be deemed to be granted and the provisions on
enhanced cooperation shall apply.” 557
This can lead to fragmentation. 558 Indeed, having a number of States harmonising
minimum rules concerning the definition of criminal offences and sanctions whilst the
other group (or one Member State alone) does not do so, hardly creates ‘harmony’
between different definitions and penalties. 559 Furthermore, the possibility of further
dissonance is accentuated by country specificities such as the UK and Ireland. The two
countries will have to decide whether they wish to opt in for every single measure to be
adopted. Some opt outs to specific measures have in fact already been decided by the
two countries. 560 Furthermore, the UK will be able to decide by the end of the 5 year
transitional period (the latest by 1 June 2014) if it wishes to opt out of all third pillar
measures adopted thus far. Finally, Denmark chose a general opt-out in criminal matters
altogether. 561
Not surprisingly, these wide and expansionist provisions raised concerns amongst some
Member States, who felt the core principles of their criminal justice systems could be
endangered by the potential implications of this new ECL framework. Both the German
and the Czech Constitutional Courts, for example, assessed the Lisbon Treaties seeking
to determine whether the new institutional framework could encroach upon national
sovereignty or not. More specifically, the German Constitutional Court made important
qualifications to further integration in European Union criminal matters, noting how it
would not be acceptable if the core of the German constitutional identity (whose
criminal law is based on the States’ social values and upon individual freedoms) would
557 Article 82(2) and 83(3) TFEU.
558 In general, Fletcher suggests that the degree according to which the Treaty of Lisbon “panders
to Member States interests” by introducing brake clauses, allowing for enhanced cooperation, etc.
increases the potential for fragmentation of the wider agenda in ECL, M. Fletcher, “EU Criminal
Justice: Beyond Lisbon” in C. Eckes and T. Konstadinides (eds) Crime within the Area of
Freedom, Security and Justice (Cambridge: Cambridge University Press, 2011) 10, 42.
559 For more on how harmonisation of national criminal law often does not lead to consonance
see chapter 4.
560 See chapter 6 for more details.
561 If the UK chooses to opt out of all third pillar measures, the Council by QMV or the
Commission without the UK’s participation will decide on the transitional arrangements and the
UK will have to bear the financial consequences of ceasing its participation. Article 10(4) of the
Transitional Protocol, supra note 540.
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