The Lisbon Treaty Versus Standing Still: A View from the Third Pillar

(2009) 5 European Constitutional Law Review 99-116

18 Pages Posted: 31 Jan 2013

See all articles by Alicia Hinarejos

Alicia Hinarejos

McGill University, Faculty of Law

Date Written: February 1, 2009


Across national borders, voices against the Lisbon Treaty have argued that ratification of this document would bring about undesirable changes in the nature of the European Union and the way it operates. These voices believe that there is nothing wrong with the Union at present (‘if it ain’t broke, don’t fix it’) or that, although the Union is in fact broke, it cannot be fixed with the Lisbon Treaty. Either way, the result is a belief that not doing anything is preferable to ratifying the Lisbon Treaty. This paper shows that, contrary to such belief, it is precisely not doing anything that will allow the most undesirable changes to happen in what is arguably the most sensitive and fast-developing area of the EU, the third pillar.

The paper will argue that the way in which third pillar law is being considered and applied by national courts varies and that these discrepancies epitomize an evolution that is likely to culminate in third pillar law being treated in the same way as first pillar law, and more specifically allowing it to have primacy over national law as a matter of EU law. This may come as a result of changes in national judicial attitudes, ECJ case-law or a combination of both. Since, in the absence of the Lisbon Treaty, this evolution would not come paired with other necessary changes, it would be liable to cause a grave imbalance in the constitutional structure of the Union and would lead to gaps in judicial protection and, possibly, a re-ignition of the conflict between national constitutional courts and the European Court of Justice (ECJ). If, on the other hand, the change in the nature of third pillar law from ‘weak’ public international law to ‘strong’ EC law takes place as a result of an all-embracing treaty overhaul (as it would be the case were the Lisbon Treaty to be ratified), it will come together with an extension of the system of judicial protection that will ensure an unproblematic transition.

Keywords: EU Law, Third pillar, European Arrest Warrant, Nature of third pillar, Litigation before national constitutional courts, Primacy of EU law over national law, Differing national attitudes with regard to the status of third pillar law, Process of approximation, first pillar and third pillar

JEL Classification: K30, K33, K39

Suggested Citation

Hinarejos, Alicia, The Lisbon Treaty Versus Standing Still: A View from the Third Pillar (February 1, 2009). (2009) 5 European Constitutional Law Review 99-116, Available at SSRN:

Alicia Hinarejos (Contact Author)

McGill University, Faculty of Law ( email )

3644 Peel Street
Montreal, Quebec H3A 1W9

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