Edited by Valsamis Mitsilegas, Maria Bergström and Theodore Konstadinides
Chapter 4: EU criminal law flexibility: what lessons from the UK Protocol No. 36 saga?
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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