Research Handbook on EU Criminal Law
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Research Handbook on EU Criminal Law

Edited by Valsamis Mitsilegas, Maria Bergström and Theodore Konstadinides

EU criminal law is one of the fastest evolving, but also challenging, policy areas and fields of law. This Handbook provides a comprehensive and advanced analysis of EU criminal law as a structurally and constitutionally unique policy area and field of research. With contributions from leading experts, focusing on their respective fields of research, the book is preoccupied with defining cross-border or ‘Euro-crimes’, while allowing Member States to sanction criminal behaviour through mutual cooperation. It contains a web of institutions, agencies, and external liaisons, which ensure the protection of EU citizens from serious crime, while protecting the fundamental rights of suspects and criminals.
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Chapter 4: EU criminal law flexibility: what lessons from the UK Protocol No. 36 saga?

Maria Fletcher


Perhaps unsurprisingly in these difficult times for the EU, Europe’s leaders have recently reiterated their general commitment to differentiated integration: ‘Our diversity is an asset, our unity brings strength. In our Union, different degrees of cooperation and integration exist’. At the highest political level there is acknowledgement that ‘ever closer union’ can still be achieved by accommodating those who wish to deepen integration and those who do not. As the European Union has enlarged in terms of both members and policy competences, so the scope for resistance and disagreement has also grown. The EU has responded to this by embracing diversity within its constitutional arrangements in a variety of ways and in an increasing number of policy fields, but perhaps nowhere more so than in the field of EU crime and policing cooperation (Police and Judicial Cooperation in Criminal Matters, PJCC). In this chapter, the remarkable opt-out mechanism in Article 10 of Protocol No. 36 to the TFEU on transitional provisions (‘the Protocol 36 opt-out’), adopted in Lisbon in 2009 and which applied exclusively to the United Kingdom, will be put under the spotlight. Taking as a starting point that mechanisms which allow for a multi-speed Europe inherently exert pressures on the legal and conceptual coherence of any policy field to which they apply, this chapter demonstrates that the Protocol No. 36 opt-out magnifies this potential to fragment and undermine to a level never before seen in EU law.

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