European Criminal Law and Resistance to Communautarisation after Lisbon
| Published date | 01 December 2010 |
| Author | Valsamis Mitsilegas |
| Date | 01 December 2010 |
| DOI | 10.1177/203228441000100406 |
| Subject Matter | Article |
458 Intersentia
eURoPeAn CRIMInAL LAw AnD
ResIstAnCe to CoMMUnAUtARIsAtIon
AFteR LIsbon
V M*1
ABSTRAC T
e abolition of the third pillar can rightly be consid ered as one of the most sig nicant
constitutional developments brought about by the Lisbon Treaty. e Treaty has to a
great extent ‘normalised’ European cr iminal law, by placing legisl ation in the eld (its
proposal, nature, negoti ation, agreement and scrutiny) in principle und er the ordinary
supranational constitutional framework of the Union. However, this ‘communitarisation’
of European criminal law ha s been met with resistance by Member States , concerned
about their potential loss of sovereignty in the eld of criminal law. e aim of the article
is to provide an overview of the many levels of resistance to communautari sation as
reected in the tex t of the Lisbon Treaty, and as applied aer the entry into force of the
Treaty in the process of adoption of EU criminal law post-Lisbon. e comple xity of the
post-Lisbon constitutional framework related to criminal matters and the ch allenges
such complexity poses to the future development of EU criminal law will be highlighte d
in this context.
1. INTRODUCTION
e abolition of the third pillar can rightly be considered as one of the most signicant
constitutional developments broug ht about by the Lisbon Treaty. e Treaty has to a
great extent ‘normalised’ Europea n criminal law, by placing legislation in the eld (its
proposal, nature, negotiation, agreement and scrutiny) in principle under the ordinary
supranational constitutional framework of the Union. is c ommunitarisation of
European crimi nal law has not been without controversy, raising concerns in a
number of Member States with regard to the p otential impact of the move to a more
* Professor of European Cr iminal Law at Queen M ary, University of London.
European Cri minal Law and Resi stance to Communauta risation aer Lisb on
New Journal of Eur opean Crimina l Law, Vol. 1, Issue 4, 2010 459
supranational crimina l law at EU level on state sovereignty in the eld. ese concerns
have led to a certain resistance to commun autarisation, reected in both the
negotiations and t he eventually agreed text of the L isbon Treaty. Resistance to
communautarisation can be encountered at both the institutional and the substa ntive
level. At the ins titutional level, there are st ill in the Lisbon Treaty a number of limits
to the full communautaire involvement of EU institutions in the negotiat ion and
scrutiny of EU criminal law, coupled wit h a renewed emphasis on Member States as
actors in the eld . At the substantive level, sovereignty concern s remain prevalent by
the emphasis on respect for the diversit y of nat ional legal systems, but also by the
limits to the conferral of competence to the EU to legislate in cri minal matters. I have
rst analysed elements of resistance to communautarisation before the entr y into
force of t he Lisbon Treaty.1 By focu sing on the legislative cycle for the proposal,
adoption and scruti ny of EU crimi nal law, this a rticle wi ll build upon this ea rlier
analysis with t he aim to provide a detai led overview of re sistance to the
communautarisation of EU criminal law bot h in the Lisbon Treaty a nd in legislative
developments since its entry into force.
2. HIGHLIGHTING THE DIVERSITY OF NATIONAL LEGAL
SYSTEMS
e rst, horiz ontal, element revealing resista nce to communautarisation is t he
emphasis of the Lisbon Treaty in the respect for the diversity of the legal systems of the
Member States. Re spect for national di versity occupies a centra l place from the very
outset in Title V TFEU on t he Area of Freedom, Security and Justic e. Its opening
provision, Article 67(1), st ates that the Union will constitute an area of f reedom,
security and justice ‘with respect for fundamental rights and the dierent legal systems
and traditions of Member States’. e emphasis on maintaining the d iversity of
national legal systems is furt her reected in a number of choices made in t he Treaty
with regard to the method of law-making in EU crimina l law. e Lisbon Treaty places
great emphasis on mutual recognition as a method of European integration in criminal
matters, and, as wi ll be seen further in the a rticle, extends Union competence in
crimina l procedure only by subordinating harmonisation i n the eld to mutual
recognit ion2 – this choice is signic ant as mutual recognition does not involve in
principle the adoption of harmonis ed EU standards and is p erceived, at least prima
facie, by Governments as les s threatening to state sovereignty a s they would not have
to c hange their law.3 e need to respect national d iversity is also reected in the
1 V. Mitsilegas, EU Cr iminal Law, Hart Publi shing, 2009, chapter 1.
2 Part 3 below.
3 I have develo ped this point further in V. M itsilegas, ‘e Constitution al Implica tions of Mutual
Recognition in Criminal Matters in the EU’, in Common Market Law Rev iew, vol.43, 2006, pp.
1277–1 311.
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