European Criminal Law and Resistance to Communautarisation after Lisbon

Abstract

The abolition of the third pillar can rightly be considered as one of the most significant constitutional developments brought about by the Lisbon Treaty. The Treaty has to a great extent ‘normalised’ European criminal law, by placing legislation in the field (its proposal, nature, negotiation, agreement and scrutiny) in principle under the ordinary supranational constitutional framework of the Union. However, this ‘communitarisation’ of European criminal law has been met with resistance by Member States, concerned about their potential loss of sovereignty in the field of criminal law. The aim of the article is to provide an overview of the many levels of resistance to communautarisation as reflected in the text of the Lisbon Treaty, and as applied after the entry into force of the Treaty in the process of adoption of EU criminal law post-Lisbon. The complexity of the post-Lisbon constitutional framework related to criminal matters and the challenges such complexity poses to the future development of EU criminal law will be highlighted in this context.