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Citation for the original published paper (version of record): Öberg, J. (2021)
‘Exit, Voice and Consensus- A Legal and Political Analysis of the Emergency Brake in EU Criminal Policy’
European Law Review, 46
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EXIT, VOICE AND CONSENSUS- A LEGAL AND POLITICAL ANALYSIS OF THE EMERGENCY BRAKE IN EU CRIMINAL POLICY
Jacob Öbergi
Lund University
I Introduction
A Member State’s previously unchallenged competence to determine its criminal laws is no longer a question outside the influence of EU law.Treaty amendments in Maastricht and a strong political commitment by the European Council in Tampere, Hague and Stockholm have contributed to making EU criminal law a central field of EU policy. This evolution culminated with ratification of the Lisbon Treaty where the Union was explicitly conferred competence to harmonize national criminal procedure1 and a competence to harmonize
national substantive criminal law.2 Lisbon Treaty thereto involved the abolition of the former
pillar system suggesting that the EU criminal law-making process now partly operate inside the traditional ‘Community ‘decision-making structure.3 The expansion of qualified majority
voting in the Council, enhanced powers for the supranational EU institutions (Commission, European Parliament and Court of Justice) as well as the extension of direct effect to EU criminal law measures is evidence for this proposition. The powers delegated to the supranational EU institutions from the Member States are furthermore significant by
providing for a competence to criminalize in a number of different areas, a general regulatory criminal law competence as well as powers to harmonize domestic criminal procedure in the field of individual rights.4 Given all this, it is widely taken for granted among scholars that
EU criminal law has made the transformation from an ‘intergovernmental’ to an essentially ‘supranationalised’ policy field after Lisbon.5
1 Art 82(2) TFEU. 2 Art 83 TFEU.
3 S Peers ‘Mission Accomplished? EU Justice and Home Affairs Law after the Treaty of Lisbon’ (2011) 48
Common Market Law Review 661, 692-693; S Wolff, ‘Integrating in Justice and Home Affairs A Case of New Intergovernmentalism Par Excellence?’ in C J Bickerton, D Hodson, and U Puetter (eds), The New
Intergovernmentalism: States and Supranational Actors in the Post-Maastricht Era (Oxford University Press, 2015) 140-142.
4 Arts 82 and 83 TFEU.
5 Peers (n 3); F Trauner and A Ripoll Servent’ The Communitarization of the Area of Freedom, Security and
Justice: Why Institutional Change does not Translate into Policy Change’, 54 (2016) Journal of Common Market Studies 1417. See Wolff (n 3), however, 130-131, 136-138 contesting this assumption.
The strongest objection to reading supranationalism in the field of EU criminal policy is the fact that decision-making in the AFSJ has not been fully redesigned to the ‘Community’ mode of decision-making.6 It is arguable that the special arrangements for criminal law cooperation,
including the Member State initiative7 and agenda-setting role of the European Council8 in
conjunction with the strong limits on EU competence in Article 82 and 83 TFEU reflects the Member States’ intention to reassert control over the policy development in this area.9 At this
stage, the EU legislator can only adopt ‘minimum rules’ and by means of ‘directives’ under Article 82 and 83 TFEU. The ‘essentiality’ condition in Article 83(2) TFEU, the obligation in Article 82(2) TFEU to only legislate in matters having a ‘cross-border dimension’ and ‘to the extent necessary’ to ‘facilitate mutual recognition’ were other important substantive limits inserted in the final Treaty text.10Most importantly for our purposes, the ‘communitarisation’
of decision-making in criminal under Article 82 and 83 TFEU has been tempered by the introduction of an emergency brake in Article 82(3) and Article 83(3) TFEU.11 Those
provisions read in identical wording as follows:
‘Where a member of the Council considers that a draft directive as referred to in paragraph 2 would affect fundamental aspects of its criminal justice system, it may request that the draft directive be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended...’ The legal and political implications of the emergency brake are potentially significant. A reference to the European Council makes reaching agreement on a measure very cumbersome. European Council decides by unanimity and it would need the Head of State to agree to an EU measure which her own government has claimed affects ‘fundamental aspects’ of the national criminal justice system.12 If Member States are willing to use the emergency brake or
threat to employ it, EU action in the field of criminal law may be seriously compromised.13
Notwithstanding the importance of this provision for the pursuit of an effective EU criminal
6 Unanimity still applies in certain areas of criminal law which touch on the core functions of the Member States:
eg operational police cooperation (Art 87(3) TFEU), operation of law enforcement in foreign jurisdictions (Art 89 TFEU) and the decision to create the EPPO (Art 86(1) TFEU).
7 Art 76 TFEU. 8 Art 68 TFEU.
9 J Öberg, ’The Legal Basis for EU Criminal Law Legislation—A Question of Federalism?’ 43 (2018) European
Law Review 366 elaborates on this point in detail.
10 See CONV 727/03, ‘Draft sections of Part Three with comments’, Brussels, 27 May 2003, 31-32; European
Convention Secretariat, ‘Reactions to draft text CONV 802/03 – Analysis’, Brussels, 27 June 2003, CONV 821/03, 88-89 for the history of the drafting of these provisions.
11 There is also a similar emergency brake provision in Article 48 TFEU on social security and Article 31 TEU
on implementation of CFSP policies which, however, falls outside the scope of this contribution.
12 D Chalmers, G Davies and G Monti, European Union Law (Cambridge University Press, 2010) 635-636. 13 ‘House of Lords’ European Union Committee, ’The Treaty of Lisbon: an impact assessment, Volume II:
Evidence ‘10th Report of Session 2007–08, HL Paper 62-II (Stationery Office Limited, 2008), Memorandum by JUSTICE, E 156.
policy, it has not yet been subject to comprehensive scholarly attention.14 This article intends
to make such a contribution by critically analysing the legal ramifications and political operation of the emergency brake.
The first section of the article offers a contextual and legal analysis of the emergency brake (I). In the first part of the section the discussion tries to unravel the obscure rationale behind the provision and how it fits into the general overhaul in the structure of the AFSJ. Thereafter it is examined how the different concepts in the provision should be construed followed by a careful analysis of the judicial enforcement of the emergency brake. It is argued that the emergency brake offers a strong discretionary prerogative for individual Member States which is unlikely to be overruled by the Court of Justice and other Member States. The second section offers a political analysis of the emergency brake (II). It first provides for a comprehensive analysis of legislation adopted so far in the area of EU criminal policy. Subsequently, it analyses to what extent the emergency brake is a driving force in decision-making practice in the field of EU criminal policy. On the basis of general decision-decision-making theories and a close analysis of the track-record of legislation post-Lisbon, the article argues that the window to use the brake has become very limited suggesting a move towards ‘supranational’ decision-making in this area. The conclusions summarize the argument and offer some wider reflections on the findings (III).
II The Legal Dimension of the Emergency Brake A The Rationale behind the Emergency Brake
At the outset, this section sets out and reflects on the reasons for introducing the emergency brake into the Treaties. Answering this requires a deepened analysis of the pre-Lisbon development of EU criminal law. It is apparent that the third pillar contained contested policies, criminal law, the use of force, transnational criminal enforcement and so forth which touched upon the heart of the sovereign state. This suggested a strong need for Member States to be in the driving seat of this development. The Member States, however, believed that some form of cooperation would be beneficial for resolving collective action problems in the JHA. Setting up ad hoc meetings to discuss such matters was burdensome and involved heavy ‘transaction costs’. The sensitive nature of the area, meant, however, that Member States
14 K Rosin and M Kärner, ’The Limitations of the Harmonisation of Criminal Law in the European Union
Protected by Articles 82(3) and 83(3) TFEU’ (2018) 4 European Journal of Crime, Criminal Law and Criminal Justice 315 for a shorter analysis focussing particularly on the meaning of ‘fundamental aspects’.
preferred an ‘intergovernmental’ governing structure to retain maximum control in their own hands.15
The third pillar framework was, however, criticized as being ineffective and intransparent. One of the central objectives in the negotiations of the Constitutional Treaty (which later became the Treaty of Lisbon) was, thus to extend the general institutional framework for EU integration to third pillar matters by applying the ‘Community method’ to this area of law, in place of intergovernmentalism.16 Working Group X, who were responsible for the drafting of
the relevant provisions in the European Convention, argued strongly in favour of extending qualified majority to the fields of harmonization of national criminal procedure and the definition of criminal laws which was to become the standard legislative procedure of the new Constitutional Treaty. It was contended that the pre-Lisbon situation where unanimity
governed all decision making in co-operation in criminal matters could not endure if the Union was to strengthen its capacity to protect the citizens against serious cross-border crime. The unanimity rule slowed down negotiations and impoverished considerably the content of the adopted legislative acts.17
Working Group X, did not, however, mention any special safeguard for Member States wishing to object to EU criminal law legislation. Hence, there was no emergency brake included in the summer 2003 when the Convention presented the final drafts of the European Constitution.18 A first version of the emergency brake was, however, inserted prior to the
December European Council in Brussels in 2003.19 The Italian presidency tabled a proposal to
the Constitutional Treaty including an amendment which allowed concerned states to send the issue to the European Council for further negotiations in reaching consensus. While not changing the substance nor the voting procedure, the original intention of the emergency brake was to give assurances to Member States that they could specifically raise their
concerns through adequate procedures before an act was adopted.20 The initial wording of the
provision allowed states to object to framework laws if they infringed ‘fundamental principles
15 P Craig and G De Búrca, EU Law: Text, Cases and Materials (Oxford University Press, 2015) 966-967; J
Weiler, U Haltern and F Mayer, ‘European Democracy and its Critique’ in J Hayward (ed), The Crisis of Representation in Europe (Frank Cass, 1995), 29-30.
16 CONV 426/02, ‘Final report of Working Group X "Freedom, Security and Justice" ‘, Brussels, 2 December
2002, 3-6, 13-15.
17 CONV 426/02 (n 16), 13-14; P Craig, The Lisbon Treaty: Law, politics and Treaty reform (Oxford University
Press, 2011) 373-374.
18 CONV 850/03, ‘Draft Treaty establishing a Constitution for Europe’, 18 July 2003. 19 CIG 52/1/03, ‘IGC 2003- Naples Ministerial Conclave’, Brussels, 25 November 2003, 8.
20 CIG 52/1/03 8 (n 19), 8; See F Laursen, The Treaty of Nice: Actor Preferences, Bargaining And Institutional
of its legal system’. Whilst the initial wording, only provided for a prolongation of the time limits for negotiation in case of disagreement21, subsequent drafts had a wording which
allowed suspension of the legislative procedure. In the latter instance the European Council could decide to completely terminate the legislative procedure.22The final version of the
Constitutional Treaty was, in principle, identical to Article 82(3) and 83(3) TFEU with some minor modifications.23
It is difficult to divine the exact reasons for why the emergency brake was inserted as such a late stage of the negotiations. The most credible explanation is that a number of delegations that were not closely involved in the drafting of the Constitutional Treaty considered that the general move to qualified majority in criminal law was premature.24 The fact that decisions
can be adopted by QMV instead of by unanimity leads to the situation that decisions concerning sensitive matters are more easily approved entailing that an opposing minority would have to accept changes that would seriously harm their national systems of criminal law.The emergency brake was thus a political compromise by those states wishing to streamline decision-making in the area and those who wished to maintain maximum control over the sensitive area of criminal law.25
It is arguable that the increased supranationalism and reduced ‘voice’ in decision-making called for a possibility for ‘selective exit’26 in the form of the emergency brake.27 The gravity
of the concerns of the Member States suggests that the introduction of the emergency brake was indispensable for certain states to accept the move to supranational decision-making in the very delicate area of criminal justice. Member States have thus given up their sovereignty
21 CIG 52/03 ADD 1, ‘IGC 2003– Naples Ministerial Conclave: Presidency proposal’, Brussels, 25 November
2003, 19-20.
22 See CIG 60/03, ‘IGC 2003- Intergovernmental Conference (12-13 December 2003)Addendum 1 to the
Presidency proposal’, Brussels, 9 December 2003.
23 Concerning the possibilities to submit a new draft, and the changes to the number of Member States needed
for enhanced cooperation: Treaty Establishing a Constitution for Europe [2004] OJ C 310/01, Arts 271-3 and 4.
24 See above nn 19-21 for tentative evidence supporting this account.
25 Trauner and Ripoll Servent (n 5), 1418-1425; Craig, The Lisbon Treaty (n 17), 368-374; House of Lords’
European Union Committee, ’The Treaty of Lisbon: an impact assessment: Volume II: Evidence‘,10th Report of Session 2007–08, HL Paper 62-II, (The Stationery Office Limited, 2008) ‘Memorandum by the Law Society of England and Wales’, E 100.
26 See J H H Weiler, ’The Transformation of Europe’ (1991) 100 The Yale Law Journal 2403, 2412-2413, for
this expression.
27 A O Hirschmann, Exit, Voice, and Loyalty- responses to decline in firms, organizations, and states( Harvard
on the condition that they are able to protect their legitimate concerns about the integrity of its criminal justice system.28
B Fundamental Aspects of a National Criminal Justice System
This section considers the scope of the Member States’ right to employ the emergency brake. As a first question of discussion, the meaning of a ‘criminal justice system’ in Article 82(3) and 83(3) TFEU is considered. ‘Criminal justice system’ for this purpose must be conceived as a complex social institution, which regulates, governs, and controls social disorder. It does not only include a normative framework of principles of law, principles of justice, due process, and equality. It further encompasses important characteristics of the criminal justice system pertaining to the operation and structure of the criminal justice institutions including the practice of their courts, prosecution, or police. It thus seems that the concept of ‘criminal justice system’ covers a wider spectrum than criminal law rules.29 A comparison of the
different language version of the Treaties - which use all very similar expressions- provides support for this reading.30 The absence of language such as ‘constitutional principles’ also
signals a broader meaning to the provision compared to Article 4(2) TEU protecting national constitutional identity. The national provision at issue need not be of constitutional character nor need it be unique for the Member State. Furthermore, it is not necessary that a feature that one Member State considers being a ‘fundamental aspect’ of its criminal justice system is viewed as such by other Member States.31
28 House of Lords’ European Union Committee, ’The Treaty of Lisbon: an impact assessment: Volume II:
Evidence ‘10th Report of Session 2007–08, HL Paper 62-II (The Stationery Office Limited, 2008) Written evidence by Maria Fletcher, E 151; House of Lords’ European Union Committee, The Treaty of Lisbon: an impact assessment: Volume II: Evidence,10th Report of Session 2007–08, HL Paper 62-II (The Stationery Office Limited, 2008) Oral Evidence by Jaqueline Dutheil de la Rochère, E 139.
29 See Herbert Packer, ‘Two Models of the Criminal Process’ (1963) 113 University of Pennsylvania Law
Review 1, 2; Estella Baker, ‘Governing Through Crime – the Case of the European Union’ (2010) 17 European Journal of Criminology 187, 190-192.
30 The German, ‘grundlegende Aspekte seiner Strafrechtsordnung’, English ‘the fundamental aspects of the
criminal justice system’, French, ‘aspects fondamentaux de son système de justice pénale’, Spanish, ‘aspectos fundamentales de su sistema de justicia penal’, Danish, ‘grundlæggende aspekter af den pågældende
medlemsstats strafferetlige system’, Swedish, ‘grundläggande aspekter av dennes straffrättsliga system’, Italian, ‘aspetti fondamentali del proprio ordinamento giuridico penale’ Treaty versions translates in principle to “fundamental aspects” of their “criminal justice system” . Whilst the Estonian version refers to the narrower concept of ‘fundamental principles of law’ (‘aluspõhimõtteid’) it seems on the basis of the other language versions that the broader concept of ‘fundamental aspects’ should be employed when construing the provision.
31 A von Bogdandy and S Schill, ‘Overcoming Absolute Primacy: Respect for National Identity under the Lisbon
Treaty’, 48 (2011) Common Market Law Review 1417, 1428-32; Case C-213/07 Michaniki [2008] ECR I-9999, Opinion of AG Maduro, para 33.
However, the concept of ‘fundamental aspects’ connotes rules or features of the system that has a particular importance for the national criminal justice system.32 More trivial provisions
or aspects of the national criminal justice systems cannot be qualified as ‘fundamental aspects’. Without such restriction, all national specificities of a Member States’ criminal justice system would be a ‘fundamental aspect’ usurping the concept of any practical significance.33 The word ‘fundamental’ in the linguistic meaning signifies something that
‘forms the necessary base’, i.e. an issue of ‘central importance’ or an aspect that affects the ‘essential nature’ of something.34 ‘Fundamental aspects’ would in legal strictures
consequently denotean aspect or rule of such importance that its existence is indispensable to the functioning and structure of the criminal justice system. The latter could thus not operate as intended by the national legislature if those features were affected adversely.35 This narrow
reading of the term ‘fundamental aspects’ suggests that the purpose of the emergency brake is to only apply in exceptional instances of conflict between EU law and fundamental principles of national criminal law.36
It may be useful to illustrate the meaning of the concept of ‘fundamental aspects’ by linking it to certain EU-wide common principles of criminal law. In fact, it appears that many core features of the Member States’ criminal justice systems are tied to criminal law principles that are protected by the Charter of Fundamental Rights and (the European Convention of
Fundamental Rights) which the EU institutions are bound to respect when proposing legislation.37 The most obvious candidates for ‘fundamental aspects’ are, in principle,
common to the Member States.It includes in particular principles that limit the intervention through criminal law (principle of legality, principle of retroactivity and principle of proportionality).38 Furthermore, ‘fundamental aspects’ also encompass central principles of
criminal procedure protecting the right of the defence in criminal proceedings, including the
32 A Kaczorowska-Ireland, ‘What Is the European Union required to Respect under Article 4(2) TEU?: The
Uniqueness Approach’ 25 (2019) European Public Law 57, 73-74; Rosin and Kärner (n 14), 322-326.
33 FX Millet, ‘The Respect for Constitutional Identity in the European Legal Space: An Approach to Federalism
as Constitutionalism’ in L Azoulai (ed), The Question of Competence in the European Union (Oxford University Press, 2014), 264; P Asp, The Substantive Criminal Law Competence of the EU—Towards an Area of Freedom, Security & Justice—Part 1 (Jure, 2013) 139-140.
34 Lexico Dictionary: https://www.lexico.com/definition/fundamental (accessed 3 April 2020);
http://dictionary.cambridge.org/dictionary/english/fundamental (accessed 3 April 2020).
35 Kaczorowska-Ireland, (n 32), 74-77; G Di Federico, ‘ The Potential of Article 4(2) TEU in the Solution of
Constitutional Clashes Based on Alleged Violations of National Identity and the Quest for Adequate (Judicial) Standards’ 25 (2019) European Public Law 347.
36 Von Bogdandy and Schill (n 31) 1432.
37 Art 51(1) of the Charter of Fundamental Rights of the European Union [2010] OJ C 83/389; Art 6 TEU. 38 ibid, Art 49.
right to be heard and the right to contradiction39, the right to remain silent and protection
against self-incrimination40, the right to human dignity41 and so forth. All those criminal law
principles are based on rights which are well-entrenched in the Member States’
constitutions.42 It thus seems that the principles are likely to be invoked for the purpose of
Article 82(3) and Article 83(3) TFEU will be distinctive for the Member States’ criminal justice system. Alternatively, the general principle may be protected by EU law, but the Member State at issue provide for a higher standard of protection than under EU law in its criminal justice system.43
The distinctive feature of a ‘fundamental aspect’ of a national criminal justice system is, however, its place in the national hierarchy of legal sources. The rule which is claimed to be affected by an EU directive should thus be ascribed a certain value within the legal order of that Member State. The norm hierarchy in EU law illustrates the point.44 In this hierarchy,
there is the constituent Treaties, the protocols45 and the Charter of Fundamental Rights46 at
the top of the hierarchy (the primary law) which mirrors the national constitution. At the second tier of the hierarchy, comes general principles of law, as developed by the Court of Justice, which sit below the constituent Treaties but above secondary EU law acts (mirroring national general principles of law). They may thus be used as a ground of invalidation of a particular legislative act if it contravenes those principles. Thirdly, comes secondary law, i.e. directives, regulations and decisions as adopted by means of Article 289 TFEU as well as international agreements concluded by the EU.47 Delegated and implementing acts of the EU,
sit even further below in the hierarchy as their legal basis must be derived from a secondary
39 ibid, Art 47. 40 ibid, Art 48. 41 Ibid, Art 1.
42 These principles are clearly present in the Nordic constitutions: B Langsted, P Garde and V Greve, Criminal
Law in Denmark, (Kluwer Law International, 2014), Part I- chs 1-2; E Havansi, P Koskinen, Finlands Straff- och processrätt (Kauppakari, 2002), 14-17; P Asp och M Ulväng, Kriminalrättens Grunder, (Iustus Förlag, 2013), 30-55. As the Nordic criminal justice systems have taken inspiration from the German legal culture, it is unsurprising that these principles are also fundamental aspects in the German criminal justice system: M Hadding, Strafrechtliche Aspekte des Unionsrechts. Eine kritisch-systematische Analyse (Logos Verlag Berlin, 2017).
43 Melloni is an example of the latter example which will be discussed below: Case C-399/11 Melloni, EU:C:
2013:107.
44 Craig and De Búrca (n 15), 110-121; M Horspool, M Humpreys, and M Wells-Greco, European Union Law
(Oxford University Press, 2016), 92-118.
45 Art 51 TEU. 46 Art 6(1) TEU. 47 Art 218 TFEU.
EU law act.48 Whilst there is no binding doctrine of precedent, the case law of the Court of
Justice is also conventionally considered a source of EU law.49
Whilst national hierarchies of law may be less complex than the EU law hierarchy of norms, equal divisions (between primary constitutional law, secondary legislation, ordinances from the Government, ordinances from the Government and regional or administrative agencies as well as case law from the courts) among the sources exist in national criminal justice system.50 It is thus suggested that the higher up a rule stand in the national hierarchy of norms
the stronger the argument is for qualifying it as a ‘fundamental’ feature.51 From this
perspective it appears that criminal law rules of a constitutional value stands in a privileged position when being invoked by Member States under the emergency brake.52 The claim for
using the emergency brake would be particularly compelling if an EU measure would have implications for the Member States’ fundamental political and constitutional structures (‘constitutional identity’).53 The German Constitutional Court contended in its Lisbon
judgment that the whole sphere of criminal law belongs to the Member States’ constitutional identity as it anchors the social and moral values of the state and affects in an especially sensitive manner democratic self-determination.54 It is, however, implausible that such an
argument would stand up before the other Member States and the Court of Justice. If such an argument would be accepted, the move to qualified majority in criminal law would seem practically meaningless.55
It is beyond the scope of this contribution to discuss exhaustively what type of rules might be considered to belong to the ‘fundamental aspects’ of the criminal justice systems in different Member States. However, it is appropriate to account for some selected examples to illuminate the point argued so far.
48 Arts 290 and 291 TFEU.
49 See Horspool and others (n 44), 104.
50 By way of example, there are four levels of laws in the Swedish legal system following this hierarchy: (1)
Constitutional Acts; (2) Ordinary Acts enacted by the Parliament; (3) Ordinances enacted by the Government; and (4) Statutory Instruments enacted by administrative agencies and local authorities: see Ch 8 of Instrument of Government of 1974 (Kungörelse (1974:152) om beslutad ny regeringsform).
51 There seems to be a common view in the literature on this point: Asp, (n 33) 139-140; Rosin and Kärner (n
14), 323-327.
52 The Court’s case law on derogations from the fundamental freedoms on the basis of national constitutional
interests, discussed below in Section II (D) is illustrative for this point- see Case C-208/09 Wittgenstein [2010] ECR I-13693 for a particularly compelling example .
53 Art 4(2) TEU.
54 Judgment of German Federal Constitutional Court of 30 June 2009, Lisbon Judgment, Case 2 BvE 2/08, BvE
5/08, 2 BvR 1010/08, BvR 1022/08, BvR 1259/08, BvR182/09 (2009), paras 251, 355, 356, 358.
55 L Besselink, ‘National and constitutional identity before and after Lisbon’, (2010) 6 Utrecht Law Review 36,
The Taricco judgment illustrates an example of a rule which arguably would not affect ‘fundamental aspects’ of a national criminal justice system. In Taricco there was an Italian rule that allowed the limitation period to be extended, following an interruption. However, it could only be extended by a quarter of its initial duration thus being tantamount to not
interrupting the limitation period in most criminal proceeding.56 The point here is that rules on
limitation periods, such as the Italian one, which do not define the offences or the penalties could not be regarded as a ‘fundamental aspect’ to the functioning of a criminal justice system. Additionally, it may be argued that a Member State should be consistent in its conduct as to the importance it attaches to a feature for it to qualify as a ‘fundamental
aspect’.57 In Taricco, the Italian law provided for longer limitation periods in respect of cases
of fraud affecting the financial interests of the Member State concerned than in respect of those cases affecting the financial interests of the EU.58 Given all this, it is arguable that the
Italian rules on limitation periods did not reach the threshold of Articles 82(3) and 83(3) TFEU.
The contested Melloni judgment from the Court of Justice is conversely enlightening as an illustration of a national criminal law principle (as interpreted by national courts) which would qualify as a ‘fundamental aspect’.59 In this case the Spanish national court in charge of
executing the arrest warrant considered refusing the surrender of a person on the ground of a different constitutional standards of protection in the issuing Member States’ legislation compared to the executing state. The Spanish Constitution as interpreted by the Spanish Constitutional Court provided for an unconditional opportunity for a convicted party to challenge a decision of surrender followed by a conviction in absentia to safeguard his rights of defence. It was undisputed that the proceedings in the Italian national courts were in conformity with the conditions for delivering in absentia judgments in the Framework Decision on the European Arrest Warrant.60 The Court of Justice rejected, however, the
possibility of conferring additional powers on the executing judicial authority to apply the standard of protection of fundamental rights guaranteed by its constitution when that standard
56 Case C-105/14 Taricco EU:C:2015:555, paras 18-25 for the circumstances of the case. 57 Kaczorowska-Ireland, (n 32), 74-77 makes this point in relation to the judgment. 58 Case C-105/14 Taricco (n 56) paras 46-48.
59 L F M Besselink, ‘The Parameters of Constitutional Conflict after Melloni’ (2014) 39 European Law Review
531; A Torres- Pérez, ‘Melloni in Three Acts: From Dialogue to Monologue’, 10 (2014) European
Constitutional Law Review 308 for comprehensive analysis and criticism of the judgment and the Court’s stance to protection of fundamental rights.
60 Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures
was higher than that deriving from the Charter and to give it priority over the application of provisions of EU law.61
Notwithstanding the Court of Justice’s conclusion, it is arguable that the Spanish rules in Melloni, as interpreted by the Spanish Constitutional Court, on ‘in absentia’ trials constitutes a ‘fundamental aspect’ of the Spanish criminal justice system. The fact that the contested rule was derived from the constitution and the fact that no exceptions from the bar to ‘in absentia’ trials is allowed suggests that the rule at issue is of significant importance in the Spanish legal system. The fact that the Spanish Constitutional Court furthermore had gone to great lengths to protect this principle was further evidence of its importance in the national legal systems. The idea behind the emergency brake is thus that fundamental rules of national criminal law systems must be protected also where they may interfere with commonly agreed EU rules such as the principle of mutual recognition.
It is useful to identify some additional criminal law principles which meet the requirement of constituting ‘fundamental aspects’ of a criminal justice system. Because of the similarity between their legal cultures and national criminal justice systems, Denmark, Sweden, and Finland provide appropriate illustrations for this purpose. As the point already was made that rules finding support in a national constitution in principle qualifies as a ’fundamental aspect’, the following identifies three selected principles which do not have this privileged place in the national hierarchy.
One of the central principles in all the Danish, Swedish and Finnish systems which clearly qualify as a ‘fundamental aspect’ is the principle of proportionality in relation to
sanctioning.62 This principle is expressed in the relevant Swedish rule as follows: ‘punishment
shall…. be determined…according to the penal value of the crime... In assessing the penal value, special consideration shall be given to the damage, wrong or danger occasioned by the criminal act, to what the accused realized or should have realized about this, and to the intentions or motives he may have had.’63 The principle thus entails that there must be
correlation between the gravity of the offence and the seriousness of the punishment. The key rationale why this principle meets the requirement of ‘fundamental aspect’ is that the
61 Case C-399/11 Melloni (n 43), paras 55-63. 62 Art 49 of the Charter of Fundamental Rights.
63 Ch 29, Section 1 of the Swedish Criminal Code (Brottsbalk, 1962:700); Ch 10, Section 80 (2) of the Danish
Criminal Code, Order No 909 of September 27, 2005, as amended by Act Nos. 1389 and 1400 of December 21, 2005; Finnish Criminal Code (Strafflagen) of 1889, Ch 6, Section 4.
proportionality principle is envisaged by both the Swedish, Danish, and Finnish legislator to be the leading principle for the entire criminal sanctioning system.64
Another principle common for the Swedish, Finnish, and Danish criminal justice system is the free assessment of evidence. The principle is expressed in the relevant Finnish rules on evidence which prescribes that ‘after having carefully evaluated all the facts that have been presented, the court shall decide what is to be regarded as the truth in the case’.65 The
principle of free assessment of the evidence requires the court to carefully review all the evidence presented in the case without regard to issues of admissibility. Given this, there are no rules or clear guidelines on the weight to be attached to evidence and on what basis evidence should be assessed.66
The principle of culpability is also a central principle of Finnish and Swedish criminal law.67
This principle is seemingly contested as certain jurisdictions provide for some form of strict liability which allows attaching criminal responsibility to a person without having to prove fault.68 The principle of culpability entails that an act can only be punishable if it was
committed by intent or negligence.69 The consequence of the principle is that an offender who
was not capable of conforming to the law should not be punished (‘principle of conformity’). The principle of culpability even comprises an aspect of proportionality in relation to sentencing, namely that a punishment may not exceed the level of guilt.70
Beyond principles which find support in the national constitutional framework, the analysis so far suggest that it is intrinsically difficult (given the diversity of criminal justice systems in
64 Greve and others (n 42), Part I- Ch 7; T Lappi-Seppälä, ‘Imprisonment and Penal Policy in Finland’, 54 (2009)
Scandinavian Studies in Law 333; J Zila och N Jareborg, Straffrättens Påföljdslära (Norstedts Juridik, 2014), 65-73.
65 Ch 17, Sections 1 and 2 of the Finnish Code of Judicial Procedure (Oikeudenkäymiskaari 4/1734); Ch 35,
Sections 1 and 6 of the Swedish Code of Judicial Procedure (Rättegångsbalk, 1942:740); Section 871 of the AJA.
66 Langsted and others (n 42), Part II, Ch 1; Asp (n 33), 139-141; PH Lindholm, ‘Civil and Criminal Procedure’
in M Bogdan (ed) Swedish Law in the New Millennium (Norstedts Juridik, 2000), 216.
67 The German Constitutional Court held in its Lisbon judgment (n 53) that this principle was a part of the
German Constitutional identity, para 364.
68 The Danish criminal justice system is a case in point Case 326/88 Hansen [1990] ECR I-02911. See Langsted
and others (n 42), 58 for discussion.
69 The principle is so strong that an act referred in the Swedish and Finnish Criminal Code is punishable only as
an intentional act, unless expressly stated that it could be committed by negligence: Ch 1, s 2 of the Swedish Criminal Code (n 63); Ch 3, Section 5 of the Finnish Criminal Code (n 63).
70 Langsted and others (n 42), 54-59; Asp and Ulväng (n 42), 269–71. There is a similar understanding of the
the Member States and the different legal cultures71) to distil the nature of the concrete
principles that should be defined as ‘fundamental aspects’. The three examples of Sweden, Denmark and Finland show a certain commonality in the features qualifying as ‘fundamental aspects’. The discussion suggests that a feature must have strong support in legislation, case law or the preparatory works to reach the threshold. Proportionality, free assessment of evidence and culpability are principles which fund support in primary legislation adopted by the national parliaments in the examined jurisdictions. In addition, these are principles which inform the whole design of the national criminal justice system and the national courts’ case law.72
C Judicial Review of the Emergency Brake
Having considered how the provision of the emergency brake should be construed, the following consider the closely related question of the provision should be enforced. Since the triggering of the emergency brake is an issue of interpreting the Treaties, the Court is formally empowered to adjudicate on the use of the provision.73 In order for the Court to be capable of
reviewing the provision the Commission or a Member State would need to commence an infringement proceeding against the Member State pulling the brake.74 The basis for this
would be that the Member State breached its obligations under the Treaties by illegally pulling the brake acting in contravention of Article 83(3) TFEU and the principle of sincere cooperation.75 Since the action for failure to fulfil obligations is objective in nature, any
shortcoming of a Member State in respect of its obligations under Union law would constitute a basis for an infringement proceeding.76 The obligation breached is that a Member State does
not adhere to one of the provisions of the Treaties, i.e. that it pulls the brake although a draft directive does not concern ‘fundamental aspects’ of that Member State’s criminal justice system.77
71 R Colson and S Field (eds.), EU Criminal Justice and the Challenges of Legal Diversity. Towards A
Socio-Legal Approach to EU Criminal Policy (Cambridge University Press 2016) offers an extensive analysis of legal diversity in the field of EU criminal justice.
72 See the literature in n 64, n 66 for support of this proposition. See further P Asp, Internationell Straffrätt
(Norstedts Juridik, 2011), 137; Havansi and Koskininen (n 42), 14-17, 40-48, 240, 294; Langsted and others (n 42), 53-57, 113-120; 137-144. .
73 Art 19 (1) TEU. 74 Art 258 and 259 TFEU. 75 Art 4(3) TEU.
76 Case 275/08 Commission v Germany [2009] ECR I-00168; Case 465/05 Commission v Germany [2010] ECR
I-01885.
As things stands, the burden of proving that the conditions of the emergency brake are present lies with the Member State. The Member States is thus required to substantiate that (I) a draft measure would ‘affect’ aspects of its ‘criminal justice system’, (II) and that those aspects are ‘fundamental’. The Member State must thus give specific reasons outlining the conflict with national criminal system. It, however, appears, however, that this test would be readily satisfied. Whilst the Member State must frame their argument within the ‘discourse’ of the emergency brake, the subjective language of the Treaty, ‘Member State considers’ suggests that it may be very difficult for the Court and other Member States to overrule the Member States’ unilateral decision to trigger the emergency brake.78 It appears thus unlikely that an
activist Court would impose a requirement of proportionality on a Member State’s assessment of whether a proposal affected fundamental aspects of its criminal justice system.79Such a test would inhibit and even negate the purpose of the emergency brake procedure.80
Conversely, it is proposed that the space for judicial review of the emergency brake is very limited. The situations where the Court would feel compelled to exercise this power would, as discussed below, be of a more exceptional character (‘abuse’ situations).
As Article 83(2) TFEU equally as the identity clause in Article 4(2) TEU concerns the Court’s review of national determinations of their own fundamental rules, it is useful to draw an analogy to this discussion. Drawing on this debate, it is arguable that Court of Justice’s authority only extends to determining the conceptual framework of what a Member State can determine to form part of ‘fundamental aspects’ of their national criminal justice system. The Court is not well-placed to determine the content of those aspects. Member States will have a much better understanding of what EU criminal law rules may have disruptive effects on national criminal justice systems than other EU actors.81 If the Court would commence to
assess the content of ‘fundamental aspects’, it would overstep its jurisdictional mandate in Article 19(1) TEU, which limits the Court’s jurisdiction to the interpretation of EU law.82
78 House of Commons, European Scrutiny - Fourteenth Report, Aspects of the EU's Constitutional Treaty,
Volume II: Oral and written evidence, Session 2004-2005 (The Stationery Office Limited, 2005), Written answers by the Rt Hon Jack Straw MP.
79 QC Martin Howe expressed this concern: House of Commons- European Scrutiny - Fourteenth Report,
Aspects of the EU's Constitutional Treaty, Volume II Oral and written evidence, Session 2004-2005 (The Stationery Office Limited, 2005), Memorandum of Evidence by Martin Howe QC, Ev 53-55.
80 S Peers, ‘EU Criminal Law and the Treaty of Lisbon’ (2008) 33 European Law Review 507, 526-528. 81 Conseil Constitutionnel Decision 2006–540 DC, 27 July 2006; Lisbon judgment (n 54), paras 208, 216, 218,
219, 235, 239-241, 267, 358, 413.
The Court’s case law on fundamental freedoms and derogations pertaining to sensitive national or constitutional policies, offers support for this argument. In Omega, Schmidberger, Dynamic Medien and Wittgenstein, the Court of Justice adopted a generous approach to Member State deviating from their Community obligations based on ‘constitutional’
justifications from the fundamental freedoms. Wittgenstein was most explicit in recognizing more confined judicial review of national measures based on constitutional values. The Court held in Wittgenstein that the Austrian Law on the abolition of the nobility - as an element of national constitutional identity - was a legitimate justification for derogating from the right of free movement of persons. The Court subsequently conducted a light proportionality review and opined that the refusal to recognize the noble elements of a name on the basis of the constitutional principle of equality was considered a proportionate derogation from the freedom to provide services.83 The lenient proportionality review in Wittgenstein is in line with the rulings in Schmidberger, Omega and Dynamic Medien where the Court in its
proportionality assessment where it did not enquire in depth on the presence of alternative less onerous measures to achieve the stated public policy objective. Whilst the Court briefly mentioned alternative measures, it underscored the importance of the rights at issue and the wide discretion enjoyed by the national authorities in choosing an appropriate course of action to ultimately clear the national measures.84
The point here is that Omega, Wittgenstein, Dynamic Medien and Schmidberger departs from the Court of Justice’ general approach in the field of the fundamental freedoms.As a rule, the Court of Justice imposes exacting and meticulous proportionality review of Member State derogations from the fundamental freedoms.85The line of case law discussed above suggests, however, that Member States are allowed a broader margin of discretion when their
derogation is based on rights and principles protected in the national constitution. There is thus a strong argument to be made that the Court of Justice’s review standard must be
markedly deferential in terms of the and ‘Member State tailor-made’ Treaty safeguard such as the emergency brake.
83 Case C-208/09 Wittgenstein (n 52), paras 82-94.
84 Case C-112/00, Schmidberger [2003] ECR I-5659, paras 72-92; Case C-244/06 Dynamic Medien [2008] ECR
I-505, paras 39-51; Case C-36/02 Omega [2004] ECR I-9609, paras 31-39.
85 See eg Case C-442/02 CaixaBank France [2004] ECR I-8961; Case C-341/05, Laval un Partneri [2007] ECR
I-11767 for two paradigmatic examples of such review. See for a more comprehensive discussion: J Öberg, ‘The Principle of Proportionality in Union Law - a legal safeguard of federalism’ in L Azoulai, F-X Millet and L Boucon (eds), Deconstructing EU Federalism through Competences, (European University Institute, 2012) EUI Working Paper 2012/06.
In case of the concrete test for judicial intervention, it is proposed that an infringement action must be founded on a manifestly disloyal use of the emergency brake procedure. In this respect, it is useful to draw an analogy from the Court’s case law on the ‘misuse of powers’ plea in Article 263(2) TFEU to illustrate the limited scope for judicial review.86 This case law
suggests that ‘misuse of powers’ can be used as a ground for annulment if an act appears ‘on the basis of objective, relevant and consistent indications to have been adopted to achieve purposes other than those for which it was intended or evading a procedure specifically prescribed by the Treaty’.87 The hurdle for having success with this principle is significant.
First, the test is one of bad faith, namely, whether the EU institution intentionally used a power for another purpose than which it should be used for. The threshold is further raised by the requirement that the decision challenged must have been directed primarily by the
motivation to use the power for purposes other than those for which they were conferred. Outside two staff cases, the principle has only been successfully invoked once.88 Giuffrida is a
paradigmatic example of a successful plea. In this case the applicant had contested a decision to appoint an official for a vacancy on the basis that the announcement had been made for the sole purpose of promoting a specific official. The defendant admitted that the internal
competition was organized by the appointing authority for the sole purpose of remedying the status of a specific official and of appointing that official to the post declared vacant. The pursuit of a such specific objective was, however, contrary to the aims of any recruitment procedure which must be to find the most qualified candidate for the position and
consequently a misuse of powers.89
On the basis of the case law on misuse of powers, it is proposed that the Court should only be able to intervene when it has been substantiated that the Member State uses the mechanism for purely political reasons and falsely triggered the emergency brake. This reading is supported by the wording of the Treaty which requires the Member State to persuade other Member States that legislation affects ‘fundamental aspects of their criminal justice system’.90
Illegality on this basis would be based on the fact that a Member State employing the
86 D Chalmers, G Davies and G Monti, European Union Law (Cambridge University Press, 2014) 432-433;
Craig and de Búrca (n 15) 576.
87 Case C-48/96P Windpark Groothusen v Commission [1998] ECR I-2873; Case C-407/04P Dalmine v
Commission [2007] ECR I-829, para 99; Joined cases C-274 and 295/11 Spain and Italy v Commission EU:C:2013:240, para 33.
88 Joined Cases 351/85 and 360/85 Fabrique de Fer de Charleroi v Commission [1987] ECR 3639. 89 Case 105/75 Giuffrida [1976] ECR 1395 paras 7-17.
emergency brake for predominantly political reasons would not have any ‘genuine’ concerns about the impact of the proposal upon the fundamental aspects of its criminal justice system.91
Given the argument so far, it may be considered whether the Court, on the basis of the ‘political question’ doctrine, should be entirely excluded from the realm of judicial review in an infringement proceeding. The ‘political question’92 doctrine in US legal scholarship
postulates that there are certain issues of constitutional law which are more effectively resolved by the political branches of government than the judiciary. This doctrine suggests that the Court is inappropriate for decision-making in certain contexts given the place they have in the overall structure and functioning of the government system. Possible areas of such non-justiciability including national security and foreign relations as conventional examples93
where society may wish that review of the executive decision-making is the responsibility a politically more accountable legislature.94 In this respect it appears that Article 82 (3) and
Article 83(3) TFEU with the wording ‘Member State considers’ in explicit terms suggest that the Member State pulling the brake should be the primary decision-maker in determining whether the conditions for triggering the brake are satisfied.
There are nonetheless strong arguments supporting that the use the emergency brake is justiciable. Even if the power to pull the emergency brake is vested with the Member States, it does not perforce follow that the exercise of this power is insulated from judicial review. First, the enshrinement of the emergency brake in the Treaties suggests that the Court is mandated to review to what extent the Member State lawfully pulled the emergency brake if the issue is raised in a proceeding.95 Otherwise the Court would fail to perform its
foundational task of interpreting and enforcing the law of the Treaties.96 The second argument
against accepting non-justiciability is that such an approach falls short of upholding the rule of law. If the judiciary declines to resolve sensitive constitutional disputes, the Union is effectively left in a state of nature, in which the constitutional position that prevails is the one that is the politically most powerful. Whilst the argument here dictates a degree of very substantial deference in assessing the legality of the Member State’s use of the emergency
91 F Geyer and S Carrera, ‘The Reform Treaty & Justice and Home Affairs: Implications for the common Area
of Freedom, Security & Justice’(2007), CEPS Policy Brief, No 141, August 2007. 141 August 2007o. st 2
92 F Scharpf, ‘Judicial Review and the Political Question: A Functional Analysis’ 75 (1966) Yale Law Journal
517.
93 Crockett v Reagan, 720 F.2d 1355 (D.C. Cir. 1983) (per curiam) for an example.
94 M H Redish, ‘Judicial Review and the “Political Question” ’ 79 (1985) Northwestern University Law Review
1031; B V Harris, ‘Judicial Review, Justiciability and the Prerogative of Mercy’ 62 (2003) Cambridge Law Journal 631.
95 Art 258 TFEU. 96 Art 19(1) TEU.
brake, the moral and social posture of the Court would be endangered if it would allow unconstitutional Member State action to go unchecked.97
This section suggests overall that the emergency brake is in formal terms a powerful vehicle for Member States wishing to safeguard the integrity of their national criminal justice systems. Whilst not strictly speaking a veto- which can be used without giving reasons and cannot be challenged- the deployment of the emergency brake is a discretionary prerogative of a Member State which is highly unlikely to be overruled by other Member States or the Court.98
III The Political Dimension of the Emergency Brake
This section offers a political analysis of the emergency brake examining decision-making practice in the field of criminal law after Lisbon. Commencing with a theoretical introduction into decision-making in the Council, the latter part of the section is devoted to a
comprehensive review of all legislative acts adopted and their negotiation history. In the final part of the section, there is a broader reflection upon the findings for decision-making practice in the field of EU criminal policy.
A Decision-making in the Council under the Majority Rule- Theory and Practice Article 82 and 83 TFEU sets out that decision-making takes place by means of qualified majority voting (QMV) unless the emergency brake is pulled. It is thus appropriate to consider decision-making more broadly in the Council under the QMV rule.
The important starting point for the discussion is that Council-decision-making in most areas of EU policies (including the field of EU criminal policy) is governed by consensus politics.99
The high proportion of legislative decisions taken by consensus is indeed a remarkable trait of Council decision-making. There is evidence that rates of contestation (either as ‘no’ votes or abstentions) are consistently low also in fields where the majority rule applies - approximately 20-25 per cent of all legislative acts.100 In fact, it appears that the systemic practices of
97 Redish (n 94), 1041, 1047-1050, 1054.
98 See Peers, ‘EU Criminal Law and the Treaty of Lisbon’ (n 80) 522-525; House of Commons European
Scrutiny Committee, Aspects of the EU's Constitutional Treaty, Volume II: Oral and written evidence, Fourteenth Report of Session 2004–05 (Stationery Office Limited, 2005), Written evidence submitted by Gráinne de Búrca, Ev 28.
99 F Scharpf, ‘The Joint-Decision Trap Revisited’ (2006) 44 Journal of Common Market Studies 845 discusses
here the problems of consensus culture.
100 W Van Aken, Voting in the Council of the European Union: Contested Decision-Making in the EU Council of
consensus-seeking have become so ‘internalized’ in the Council’s organizational culture that it has survived all Treaty reforms, the expanded scope for qualified majority voting and the rounds of enlargement.101
The next issue to consider is in what way consensus is achieved. One intriguing account for consensus politics can be derived from the literature on social influence. This literature suggests that consensus politics is partly an outcome of ‘social’ influence and the fact that national actors ‘internalize’ an organizational culture of ‘normative’ conformity in their conceptions of their identity. Social influence functions as a powerful behavioural incentive because participants need to appear to adhere to the rules, standards, and values of their society.102 Perhaps more importantly for the present purposes, one central account for the
consensus culture in the Council is based on voting rules as drivers of decision-making. Coherent with a strong body of literature in the field of EU politics, it is argued that formal access to voting has a significant influence on the consensus culture in the Council. It is a deeply ingrained strategic logic among the Council actors that the surest way to reach consensus is under the ‘shadow of the vote’. The implicit threat of voting helps to identify emerging majority views and generally serves as a deterrent against acts of opportunism and the parameters of instrumentalism. The Council’s preparatory networks here serve as an
important early warning device for pro-norm behaviour. It alerts the community that ‘implicit voting’ might occur and allows pressure to be placed on minority views to justify their positions or request special understanding.From this ‘implicit voting’ practice onecould infer that Council consensus-seeking is never ‘taken for granted’ in sociological institutionalist terms.103
On the basis of this general account, the following discusses the significance of the
emergency brake for carting out consensus politics. The Hirschmanian terminology of ‘Exit’
101 J Lewis,’ The Council of the European Union and the European Council,’ in J M Magoned (ed.) Routledge
Handbook of European Politics (Routledge, 2014), 219; F Hayes-Renshaw, W Van Aken and H Wallace, ‘When and Why the EU Council of Ministers Votes Explicitly’ (2006) 44 Journal of Common Market Studies 161, 163-164; Van Aken (n 100).
102 PH Gulliver, Disputes and Negotiations: A Cross Cultural Perspective (Academic Press, 1979); AI Johnston,
Social States: China in International Institutions, 1980–2000 (Princeton University Press, 2008); R Adler-Nissen, ‘The Diplomacy of Opting Out: A Bourdieudian Approach to National Integration Strategies’ 46 (2008) Journal of Common Market Studies 663.
103 Lewis (n 101), 223, 225-226, 228; F Deloche-Gaudez, and L Beaudonnet, ‘Decision-Making in the Enlarged
EU Council of Ministers: A Softer Consensus Norm as an Explanation for Its Apparent Adaptability?’ (2010), Paper prepared for the 5th Pan-European Conference on EU Politics, 3-6, 24; S Novak, ‘The Silence of Ministers: Consensus and Blame Avoidance in the Council of the European Union’ (2013) 51 Journal of Common Market Studies 1091;D Heisenberg, ‘Informal Decision-Making in the Council: The Secret of the EU’s Success?’ in S Meunier and K McNamara (eds), The State of the European Union: Making History: European Integration and Institutional Change at Fifty (Oxford University Press, 2007).
and ‘Voice’ illustrates appositely the decision-making dynamics in this respect. The emergency brake could along these lines be conceived of as a ‘voice’ mechanism in the absence of a proper ‘exit’ option.104It is also perceived as politically unfeasible among
Member States to retain membership but withdraw from certain Treaty obligations, e.g. in the field of criminal law (‘selective exit’). Since ‘unanimity’ as an option for Member States under the Third Pillar was ‘closed’ after Lisbon, the introduction of the emergency brake must be viewed in the light of the Member States’ appeal for an ‘enhanced voice’ in important substantive outcomes of which they would have to live with and adhere to.105
In the present Voice and Exit discussion, it is important to distinguish between consensus politics in the area of qualified majority (which relies on permanent informal voting practice106) from a ‘veto’ or an informal agreement, such as the Luxembourg accord or the
Ioannina compromise107, amounting to a veto. The Luxembourg accord, which resolved the
empty chair crisis caused by France in 1965 conferred every state procedural reassurance with respect to the right to continue discussions when ‘very important interests are at stake’. It de facto entailed that each and every Member State could veto proposed Community legislation in areas where majority voting rules applied.108 If voting patterns followed member states’
self-centred interests with regularity, there should be an increase in Voice and growing reliance on guarantees such as the Ioannina Compromise and the Luxembourg Compromise or an increased use of the emergency brake.109It will be argued, in the following, however,
that the ‘emergency brake’ in Article 82(3) and 83(3) TFEU does not amount to a
Luxembourg compromise or other veto-style informal agreement as discussed in the previous paragraph. Consistent with Novak’s findings it is instead argued that qualified majority (the ‘shadow of the vote’) and not general agreement is the driving force in the decision-making process in the field of EU criminal policy.110
B Decision-making Practice in EU Criminal Policy since Lisbon Treaty
104 Whilst Member States formally are capable of withdrawing from the Treaties pursuant to Article 50 TEU, this
is generally (Brexit constituting the significant exception) considered as a politically too costly option for the States.
105 Weiler (n 26), 2411, 2428-2431, 2449; Hirschmann (n 27), 4-5, 14-16.
106 S Novak ‘Qualified Majority Voting from the Single European Act to Present Day: An Unexpected
Performance’ (2011) Notre Europe, November.
107 The Ioannina Compromise was a rarely invoked voting safeguard innovated at an informal meeting of the
foreign ministers in 1994 designed to raise the comfort level of a near-blocking minority to avoid being outvoted by invoking a request for additional time to consider alternatives first.
108MJ Palayret, H Wallace, and P Winand, (eds), Visions, Votes and Vetoes: The Empty Chair Crisis
and the Luxembourg Compromise Forty Years On (P.I.E. Peter Lang, 2006); Heisenberg (n 101).
109 Lewis (n 101), 227-229.
This section considers the interplay between the emergency brake, the QMV rule and consensus politics in the field of EU criminal policy. To this effect, the following analysis all legislative measures adopted under Article 82(2) TFEU and 83 TFEU after Lisbon Treaty. The initial finding from the review is that Member States overall have tended to find compromises in relation to a substantial portion of EU criminal law legislation. The legislative packages can be divided into three clusters based on their controversy ranging from simple and consensus-based negotiations to lengthy, complex, and contested legislative debates. The first and largest cluster contains in total seven EU directives in the areas of criminal procedure and substantive criminal law that have been subjected to limited controversy among the Member States.111 In these instances, consensus was -despite certain
disagreements among Member States- comparatively easily achieved. Based on the negotiation history, it is argued that the Directive on Attack against Information Systems equally could be encompassed within this category.112 This is notwithstanding the fact that
Germany formally abstained in the voting procedure.113
111 A case in point for very smooth negotiations is the Directive 2014/57/EU of the European Parliament and of
the Council of 16 April 2014 on criminal sanctions for market abuse [2014] OJ L 173/79. Council Docs
14598/12, 16820/12 are evidence of negotiation history in this respect. The Directive of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims and replacing Council Framework Decision 2002/629/JHA [2011] OJ L 101/1, which was adopted by means of consensus, equally falls within this category of legislation. Council Docs 8151/09, 8802/10, 10845/10 bear witness of a frictionless negotiation history. Given the relatively smooth negotiation procedures, the Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings, [2010] OJ L 280/1, the Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA [2012] OJ L 315/57 and the Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings [2012] OJ L 142/1, also fall within this category. With respect to the Right of Information in Criminal Proceedings Directive it is worth noting with respect to the ‘emergency brake’ discourse that it was particularly underlined by the Presidency that the Directive had to accommodate the different legal traditions of the Member States and not touch upon the structure of the national criminal proceedings – see Council Docs 15618/10; 13683/10; 10114/11; 10978/11; 18702/11; 18410/11 for the negotiation history of this Directive. The Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings [2016] OJ L 132/1, was an equally uncontested piece of legislation adopted by consensus. Council Docs 15272/15 and 5096/16 are evidence of effortless negotiations. The Netherlands House of Representatives, however, issued a yellow card asserting that the draft legislative act did not comply with the principle of subsidiarity- Council doc 7607/16.
112 Directive 2013/40/EU of the European Parliament and of the Council of 12 August 2013 on attacks against
information systems and replacing Council Framework Decision 2005/222/JHA [2013] OJ L 218/8. See furthermore Council docs 8795/11, 10751/11, 11566/11 for the negotiation history of this directive.
113
The second middle category concerns legislative packages which were subject to comparatively more controversy. The Directive on Sexual Abuse of Children114 was initially
subject to some debate pertaining inter alia to the rules on participation and preparatory acts to the offences, the length of sentences, the blocking of websites and the criminalization of intentional access to child pornography by computerized means.115 Those disagreement were,
however, subsequently resolved and the Directive was adopted by consensus.116 In terms of
the Counterfeiting Directive117 there were particular criticism in relation to the introduction of
minimum penalties. Member States argued that such penalties were contrary to the principle of proportionality118 and the national judicial discretion to impose less stringent sanctions.119
In addition, Germany issued an ‘emergency brake’- type of statement expressing concerns about not interfering with ‘fundamental aspects’ of their national criminal justice system.120
The statement referred to the German Federal Constitutional Court’s Lisbon judgment recalling that the transfer of criminal law competences to the Union, given its far-reaching implications for individuals’ fundamental rights and strong repercussions on democratic decision-making would only be allowed on the condition that the emergency brake was properly enforced.121 However, despite this critique, Germany voted in favour making it a
consensus vote. The Directive on Legal Aid122 also belongs to this category. Poland offered
the strongest critique of the earlier drafts and issued a statement reminiscent of the ‘emergency brake’ discourse. The statement referred to the Member States’ divergent views on the balance between rights for suspects and the states’ need to effectively combat crime criticizing in particular the far-reaching scope of the provisions on temporary legal aid and legal aid in states issuing an EAW.123 Ultimately the disagreements among Member States
114 Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on combating the
sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA [2011] OJ L 335/1.
115 Council Doc 10287/10; Council Doc 14279/10; Council Doc 17583/10; Council Doc 11987/11; Council Doc
10335/10.
116
https://www.consilium.europa.eu/en/general-secretariat/corporate-policies/transparency/open-data/voting-results/ (search word sexual abuse).
117 Directive 2014/62/EU of the European Parliament and of the Council of 15 May 2014 on the protection of the
euro and other currencies against counterfeiting by criminal law and replacing Council Framework Decision 2000/383/JHA [2014] OJ L 151/1.
118 Art 47 of the Charter of Fundamental Rights. 119 Council Doc 7609/13.
120 Council Doc, 6996/18, Annex Ad “B” item 12. 121 Lisbon Judgment (n 54), paras 352-366.
122 Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for
suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings [2016] OJ L 297/1.
