Opting Out of EU Criminal Law: What is Actually Involved?

83 Pages Posted: 26 Sep 2012 Last revised: 27 Sep 2012

See all articles by Alicia Hinarejos

Alicia Hinarejos

McGill University, Faculty of Law

John R. Spencer

University of Cambridge - Selwyn College

Steve Peers

affiliation not provided to SSRN

Date Written: September 1, 2012

Abstract

Protocol 36 to the Lisbon Treaty gives the UK the right to opt out en bloc of all the police and criminal justice measures adopted under the Treaty of Maastricht ahead of the date when the Court of Justice of the EU at Luxembourg will acquire jurisdiction in relation to them. The government is under pressure to use this opt-out in order to “repatriate criminal justice”. It is rumoured that this opt-out might be offered as a less troublesome alternative to those are calling for a referendum on “pulling out of Europe”.

Those who advocate the Protocol 36 opt-out appear to assume that it would completely remove the UK from the sphere of EU influence in matters of criminal justice and that the opt-out could be exercised cost-free. In this Report, both of these assumptions are challenged. It concludes that if the opt-out were exercised the UK would still be bound by a range of new police and criminal justice measures which the UK has opted into after Lisbon. And it also concludes that the measures opted out of would include some – notably the European Arrest Warrant – the loss of which could pose a risk to law and order.

The Report makes a detailed assessment of the implications of the block opt-out, in which all of the 130 or so instruments that would be affected by it are examined. It concludes that, if the opt-out were exercised, practical considerations would force the UK to seek to opt back into many of them – and that the ones from which the UK could safely remove itself permanently are ones which impose no practical constraints on the UK, from which a UK opt-out would serve no practical purpose.

The Report also discusses the so-called “Danish option”. The Lisbon Treaty gives Denmark a special status whereby, when the Court of Justice at Luxembourg acquires jurisdiction in relation to these measures, Denmark has the right to remain exempt. However, exercising the Protocol 36 opt-out would not put the UK into this position. To do that, it would be necessary for the UK to negotiate a Treaty change, a step which is significantly different.

Keywords: Protocol 36, Lisbon, Criminal Law, Criminal Justice, European Arrest Warrant, Treaty of Maastricht

JEL Classification: K00, K14, K4, K49

Suggested Citation

Hinarejos, Alicia and Spencer, John R. and Peers, Steve, Opting Out of EU Criminal Law: What is Actually Involved? (September 1, 2012). University of Cambridge Faculty of Law Research Paper No. 25/2012 , Available at SSRN: https://ssrn.com/abstract=2152343 or http://dx.doi.org/10.2139/ssrn.2152343

Alicia Hinarejos (Contact Author)

McGill University, Faculty of Law ( email )

3644 Peel Street
Montreal, Quebec H3A 1W9
Canada

John R. Spencer

University of Cambridge - Selwyn College ( email )

Cambridge
United Kingdom

Steve Peers

affiliation not provided to SSRN

No Address Available

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