Consequences of Brexit for European Union criminal law
| Published date | 01 September 2017 |
| DOI | 10.1177/2032284417721286 |
| Date | 01 September 2017 |
| Author | Anne Weyembergh |
| Subject Matter | Analysis/Opinions |
Analysis/Opinion
Consequences of Brexit for
European Union criminal law
Anne Weyembergh
Universite
´Libre de Bruxelles (ULB), Institute for European Studies, Brussels, Belgium
Abstract
The United Kingdom has almost always been a fierce defender of its insularity and its national
sovereignty. It has been a fervent advocate of the intergovernmental method and has put up stiff
resistance to more integration in the field of police cooperation and judicial cooperation in criminal
matters. Since the entry into force of the Treaty of Lisbon and the communitarization of the
sector, it has benefited from an exceptional status in the European criminal justice area and from an
unusual pick and choose capacity, leading to risks of deep imbalances in the sector. Consequently,
the departure of the United Kingdom from the EU could, at first sight, generate a certain amount of
relief. However, a deeper analysis about the future of criminal cooperation within the EU without
the United Kingdom leads to temper such positive feeling, particularly because of the United
Kingdom’s high level of expertise in the field and because of the sensitive questions Brexit raises.
One of these is to know what mechanisms will replace the existing ones. Depending on the answer,
Brexit might be hard or soft, which will be crucial in terms of maintaining (or not) the effectiveness
of the fight against crime and preservation of the superior interest of criminal justice. Another issue
is to determine who will negotiate: the EU, the Members States or both? The obvious risk here is
that of diluting European criminal law and the danger of some parts of this law being sucked out of
the EU’s institutional framework.
Keywords
Brexit, European area of criminal Justice, Judicial cooperation in criminal matters, Police
cooperation, Mutual recognition
Introduction
Since the 90s, the European area of criminal justice has moved ahead in spectacular fashion. It was
in particular since the entry into force of the Treaty of Amsterdam in 1999 that this area has
Corresponding author:
Anne Weyembergh, Universite
´Libre de Bruxelles (ULB), Institute for European Studies, 39 av. Franklin Roosevelt, 1050,
Brussels, Belgium.
E-mail: aweyembe@ulb.ac.be
New Journal of European Criminal Law
2017, Vol. 8(3) 284–299
ªThe Author(s) 2017
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DOI: 10.1177/2032284417721286
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gradually developed and become concrete via, for example, the principle of mutual recognition and
the adoption of instruments such as the Framework Decision of 2002 on the European Arrest
Warrant.
1
While up until then cooperation in the criminal domain had been intergovernmental in
nature, the Treaty of Lisbon marked a sea change as it did away with the third pillar and commu-
nitarized police and judicial cooperation in criminal matters, making it subject to the traditional
community method. As spectacular as that may be, this step certainly does not mark the end of the
evolution of the sector. Indeed, it still bears the indelible mark of its historically intergovernmental
nature
2
and its highly sensitive nature in terms of national sovereignty.
The departure of the United Kingdom from the European Union (EU) is certainly one of the
major challenges for the future of the area of European criminal justice.
The result of the referendum on Brexit held on 23 June 2016 was 51.9%of votes in favour of
leaving the EU. As we know, this result sent shockwaves around the United Kingdom, the EU and
beyond. While some people were sceptical about the United Kingdom actually leaving the EU for a
while, this is barely the case now and in particular since 29 March 2017, the date on which the
British government ‘activated’ Article 50 of the Treaty on the European Union (TEU).
3
It is thus a
relevant time to reflect on the consequences of Brexit for the police and judicial cooperation sector
in criminal matters. This is precisely the purpose of this contribution.
(I) We will recall the specific status of the United Kingdom in this area. (II) We will then
continue with an analysis of the future of criminal law of the EU without the United Kingdom.
The United Kingdom, a Member State unlike the others in terms of
criminal cooperation
In terms of the Area of Freedom, Security and Justice (AFSJ), the United Kingdom has almost
always been a fierce defender of its insularity and its national sovereignty. For example, we would
like to point to its opposition to the founding principle of Schengen cooperation, namely the
elimination of controls within the EU’s internal borders.
The United Kingdom has almost always been a fervent advocate of the intergov ernmental
method and has put up stiff resistance to more integration. Here, we would point out its views
on the establishment of a European prosecutor, for example.
4
It has often resisted the
1. Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender pro-
cedures between Member States, OJ L 190, 18 July 2002, p. 1–20.
2. Despite the communitarization achieved by the Treaty of Lisbon, several rules still depart from the ordinary legislative
procedure (see for instance Article 86 TFEU about the EPPO or Article 87 (3) TFEU about operational police coop-
eration). The CJEU’s jurisdiction remains limited by Article 276 TFEU.
3. This provision was inserted by the Treaty of Lisbon. See especially P. Nicolaides, ‘Withdrawal from the European
Union: A Typology of Effects’, Maastricht Journal 20 (2013), pp. 209–219; A Łazowski, ‘Withdrawal from the Eur-
opean Union and Alternatives to Membership’, European Law Review 37(5) 2012, pp. 523–540; H. Hofmeister,
‘‘Should I Stay or Should I Go?’ – A Critical Analysis of the Right to Withdraw from the EU’, European Law Journal
16(15) (2010), pp. 589–603.
4. See the European Union Act 2011 which provides for a ‘‘referendum lock’’,to which the United Kingdom participation
to the EPPO is submitted (s. 6(5)(c)). See J.R. Spencer, ‘The United Kingdom and EU Criminal Law: Should we be
Leading, Following or Abstaining?’ in V. Mitsilegas, P. Alldridge and L. Cheliotis, eds., Globalisation, Criminal Law
and Criminal Justice. Theoretical, Comparative and Transnational Perspectives (Oxford: Hart Publishing, 2015), pp.
135–152; J. Spencer, ‘Who’s Afraid of the Big, Bad European Public Prosecutor?’ in Cambridge Yearbook of European
Legal Studies, 14(2011-2012), pp. 363–380.
Weyembergh 285
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