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

6. A renewed challenge for coherence
Whilst ECL architecture seems now to be more balanced with the changes brought about
the Treaty of Lisbon and the post Lisbon reforms, a closer look at the most recent
developments in ECL highlights the future challenge in the field – that of avoiding
fragmentation. As seen in chapter 3, the Treaty of Lisbon provides for emergency
brakes, opt-outs and enhanced cooperation in ECL. At the time of this writing, Ireland
and the UK have already exercised their right not to opt in to the Directive on access to a
lawyer, for example. 1039 The UK in particular has objected that the proposal would be
disruptive to its criminal justice systems as it provides for the right to access to a lawyer
too soon in the course of criminal proceedings, limits evidence admissible and allows no
exceptions to the confidentiality of communications even in cases when the lawyer was
involved in criminal activity, amongst other issues. 1040 The UK and Irish opt-outs on this
measure are the first practical examples of the Lisbon trade-off between further
cooperation and maintaining ECL’s coherence. Furthermore, there are increasing signs
that the UK might choose to opt out of all previously adopted in criminal matters under
Protocol 36 of the Lisbon Treaty. 1041 The exercise of these rights of non participation
however does not necessarily prevent other States from going ahead and adopting the
measure amongst themselves. 1042
Hence, Lisbon appears to leave ECL at the heart of several divides, yet again. A first
divide between calls for more criminal law (and its increasing severity) and some
moderation in its adoption, particularly by affording a more significant role to the
protection of fundamental and individual rights and by the articulation of criteria for
criminalisation such as the principle of subsidiarity and ultima ratio in the adoption of
ECL measures. However, the compromise that Lisbon proposes to overcome this tension
between punitiveness and individuals rights, appears to be one that leaves significant
room for fragmentation in ECL, in particular by leaving behind States which see no
conditions to pursue further integration. This second divide between fragmentation and
1039 Proposal for a Directive COM(2011)326 final, supra note 1012.
1040 See, for more details House of Lords, The European Union’s Policy on Criminal Procedure,
supra note 1013, 31-34. Belgium, France and The Netherlands have also voiced serious
reservations about the Commission’s proposal, noting it would present “substantial difficulties
for the effective conduct of criminal proceedings by their investigating, prosecuting and judicial
authorities”, Note from Belgium, France, Ireland, The Netherlands and the United Kingdom to
the Proposal for a Directive of access to a lawyer in criminal proceedings and on the right to
communicate upon arrest, Doc 14495/11, Brussels, 22 September 2011, 2.
1041 A. Hinarejos, J.R. Spencer and S. Peers, “Opting Out of EU Criminal Law: What is actually
involved”, CELS Working Papers, University of Cambridge, New Series, Nº1, September 2012;
See also, The Guardian, “Theresa May takes first step to opting out of EU law and order
measures”, on 14 October 2012: http://www.guardian.co.uk/uk/2012/oct/14/theresa-may-lawand-order-measures
1042 See chapter 3.
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