Between Flexibility and Disintegration in EU Criminal Law
Draft chapter to appear as a finalized version in B. de Witte, A. Ott & E. Vos (Eds.), Between Flexibility and Disintegration: The State of EU law today, (Edward Elgar 2017), Forthcoming
29 Pages Posted: 19 Jan 2017 Last revised: 12 May 2018
Date Written: March 1, 2014
The idea of flexibility seems to provide an attractive European model to aim for, not least to avoid the accusation of a ‘one-size’ fits all approach to the highly complicated project of an EU of 28 Member States. Yet, as this chapter will try to show, as much as the notion of flexibility seems to be an attractive concept, it is also a rather vague one. Specifically, this chapter sets out to explore the notion of ‘flexible’ integration in the concrete area of EU criminal law. The phenomenon of EU criminal law is traditionally meant to capture cross border criminality where the EU is taking multilateral Member State action to combat particularly serious criminality such as terrorism, organized crime and cyber-crime related criminality. However, in recent years, the EU has acquired a more freestanding competence to legislate on criminal law proper. Despite its novel nature in an EU context, or perhaps exactly because of it, criminal law offers a good example of limits, and varied meaning, to the concept of flexibility as a tool for European integration. But what then does it mean to refer to flexibility in EU criminal law? In answering this question, arguably we first need to know what flexibility means in EU law proper. While the notion of flexibility is far from a new concept and traditionally it has been defined as the possibility of one or more Member States to choose to remain outside the scope of certain activities pursued within the Union’s legal framework or conversely to move forward by heading a selective group of ‘Avant garde’ States wanting to go further through experiments of integration processes than others, the very notion of flexible integration poses some pertinent questions in the current financial (and constitutional) crisis of the EU.
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