‘Exit, Voice and Consensus - A Legal and Political Analysis of the Emergency Brake in EU Criminal Policy’

Abstract

This article presents a political and legal analysis of the emergency brake in criminal law in Articles 82(3) and 83(3) TFEU. It suggests that the emergency brake offers a powerful discretionary prerogative for Member States seeking to protect the integrity of their criminal justice systems. This strong legal shield for Member States in the form of a ‘quasi-veto’ is contrasted with a tendency to decision-making under the ‘shadow of the vote’, cautiously moving towards supranationalism. On the basis of general theories of Council decision-making and a comprehensive review of EU criminal law legislation adopted to date, the article argues that majority rule rather than general agreement appears to be the current driving force behind decision-making in EU criminal policy.