The European Union's Policy on Criminal Procedure - European Union Committee Contents

CHAPTER 3: The Lisbon Treaty and Subsequent Developments

The general Lisbon Treaty changes

26.  Impetus was given to legislation in the areas of criminal procedure law by the Lisbon Treaty which came into force on 1 December 2009. It amended the former third pillar and incorporated it into the mainstream EU framework. The resulting institutional changes are set out in Box 3.


The institutional changes of the Lisbon Treaty on mutual recognition and criminal procedure law
  • The European Parliament must act with the Council in adopting legislation. The European Parliament encourages more to be done at EU level for defendants and victims.[43]

  • The Council acts by qualified majority voting.

  • The Commission's role as the initiator of legislation is enhanced whilst that of Member States is reduced.[44]

  • The EU can adopt legislation which is capable of having direct effect.[45]

  • The Commission assumes its normal role of "guardian of the Treaty" with a power to bring infringement proceedings which can, ultimately, lead to fines for recalcitrant Member States.

  • The Court of Justice assumes its usual powers to rule on the validity and meaning of EU legal instruments.

27.  The Treaty embedded the principle that judicial co-operation in criminal matters was to be based on the principle of mutual recognition and conferred an express power for the EU to legislate to prescribe the rules and procedure for ensuring mutual recognition of all forms of judgments and judicial decisions.[46] There is currently only one further mutual recognition proposal on the table, for a European Investigation Order. This would be issued by a judicial authority in order to have investigative measures, such as searches of premises, carried out in another Member State. It would replace the European Evidence Warrant. This proposal is still under discussion in the Council and awaits its first reading by the European Parliament.[47]

28.  In respect of criminal procedure, power is now expressly conferred upon the EU to legislate on—

  • the mutual admissibility of evidence between Member States,
  • the rights of individuals in criminal procedure,
  • the rights of victims of crime, and
  • any other specific aspects of criminal procedure which the Council has identified in advance, acting unanimously and with the consent of the European Parliament.[48]

29.  However the sensitive nature of EU competence in this area is still recognised by the following safeguards built into the Treaty:

  • The scope of EU competence remains narrowly circumscribed. The EU may legislate using only directives[49] to "establish minimum rules" in defined areas of criminal procedure "to the extent necessary to facilitate mutual recognition of judgments and judicial decisions and judicial and police co-operation in criminal matters having a cross-border dimension" and such legislation "shall take into account the differences between the legal traditions and systems of the Member States".[50]
  • There is an "emergency brake" enabling a Member State which considers its criminal justice system to be fundamentally affected by proposed EU legislation to suspend the legislative procedure and bring the matter before the European Council which, by consensus only, can remit the matter back to the Council to continue the legislative procedure. In the event of there being no consensus, at least nine Member States can proceed amongst themselves by way of enhanced co-operation.[51]
  • The Court of Justice may not "review the validity or proportionality of operations carried out by the police or other law-enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security".[52]
  • There are transitional provisions[53] retaining the existing limitations on infringement proceedings and Court of Justice jurisdiction in relation to pre-Lisbon legal instruments until December 2014, with a specific power for the UK to opt out of any subsisting pre-Lisbon legislation by May 2014.

30.  The Lisbon Treaty changes have facilitated and given impetus to the adoption of EU criminal procedure legislation.

The UK opt-in

31.  Moving the former third pillar measures into the part of the new Treaty on the functioning of the European Union which deals with the areas of freedom, security and justice, also means that these Treaty provisions do not, in principle, apply to the UK, Ireland and Demark, but, in accordance with Protocol 21, the UK and Ireland may opt in to proposals and legislation.[54]

32.  This opt-in may be exercised at either of two stages:

  • Within three months of a new proposal being presented to the Council, in which case the UK participates fully in the adoption of the proposal. The opt-in takes automatic effect and the UK is able to vote on the proposal. Once such legislation is adopted it applies in the UK, even if it voted against.[55]
  • At any time after the adoption of legislation the UK may apply to opt in, in which case the Commission can confirm the participation of the UK and set out any necessary transitional provisions. If the Commission does not do so the UK can ask the Council (with the UK not participating) to decide the matter.[56]

33.  The Coalition Agreement commits the Government to assessing all measures in this area on a case by case basis, with a view to maximising the country's security, protecting Britain's civil liberties and preserving the integrity of our criminal justice systems.[57]

34.  The Rt Hon Kenneth Clarke MP QC, Secretary of State for Justice and Lord Chancellor, outlined how the opt-in works in practice. If the opt-in to a proposal is exercised then the UK fully participates in negotiations. If it does not opt in at this stage then the UK can still negotiate to achieve an acceptable text to which it can opt in once the legislation has been adopted, although its influence in the negotiations would be diminished by the fact that the UK does not have a vote and cannot therefore form part of a blocking minority. Its negotiating power depends on the likelihood of actually opting in to the adopted legislation and the extent to which other Member States want the UK to do so.[58]

35.  Witnesses were generally sympathetic to the UK exercising the opt-in in relation to criminal procedure legislation. Professor Spencer asserted that the UK should be pushing hard for the criminal procedure Roadmap measures and characterised the UK's case by case policy on the opt-in as being "essentially opportunistic". Both he and the Bar Council made a specific link to the high standards in the UK which means not only that there is unlikely to be significant disruption to UK law, but also that we can bring a beneficial influence in creating a sufficiently high pan-EU standard.[59]

36.  Professor Mitsilegas, Professor of European Criminal Law and Director, Criminal Justice Centre, Queen Mary, University of London, considered it difficult for the UK to argue that it can continue to participate in mutual recognition if it refuses to participate in measures which are deemed necessary for its operation.[60] Vice-President Reding and the CCBE similarly emphasised the deleterious effect of non-participation by the UK on European integration and mutual trust.[61] It appears to us that an advantage of the UK opting in to EU legislation prescribing minimum rights is that this legislation, which is translated into all EU languages and readily available throughout the EU, would make it clear that these rights applied in the UK. If the UK does not participate in the EU legislation a judge of another Member State asked to operate mutual recognition involving the UK, but unfamiliar with UK law, would have to use more difficult means to obtain assurance that UK domestic law does indeed provide these rights.

37.  Whilst there were a number of suggestions that failure to opt in could adversely affect UK citizens travelling abroad,[62] such a consequence would not arise directly from the UK's non-participation, because the other Member States (except Denmark and possibly Ireland) would still be applying the EU prescribed minimum rules.[63] Such disadvantage could, however, arise indirectly from the fact that the UK's non-participation in negotiations led to lower minimum standards.

38.  Baroness Ludford cautioned the UK against an inconsistent and haphazard approach resulting from individual decisions conditioned mainly by political considerations, and also cautioned against the UK using its opt-in as a negotiating tactic. She thought that UK non-participation in negotiations, arguably, denied UK MEPs their voice. She favoured a presumption that the UK should opt in, rebuttable by manifest incompatibility with, or disruption to, the UK criminal law system.[64] The Lord Chancellor reflected this in his evidence: "Assuming that the general objective of the proposal is one with which we are perfectly comfortable, I would prefer to opt in because I think that it gives a greater role and influence at an early stage of the subsequent negotiations and you have a vote in the course of any decisions on drafting, so you can be in a better position to remedy any queries you have about it".[65]

39.  The UK has, on the whole, opted in to proposals relating to criminal procedure at the earlier stage of negotiations. The exceptions are the proposal for access to a lawyer and the proposal for human trafficking. We look at the former in more detail in Chapter 6. The UK did eventually opt in to the latter having refrained from doing so earlier for reasons which this Committee in the course of its scrutiny considered were unjustified.[66]

40.  In practice the case by case approach to the UK opt-in set out in the Coalition Agreement has resulted in the Government opting in to proposals for criminal procedure legislation. We agree that the UK should opt in to proposals for criminal procedure legislation at an early stage unless there is clear justification for not doing so.

41.  Professor Peers mooted the point that the existence of the "emergency brake" could have an impact on the decision by the UK whether or not to opt in, on the grounds that we could take the risk of having to negotiate away an unacceptable provision, in the knowledge that if this did not succeed then we could invoke the emergency brake. He accepted, however, that doing so would look particularly odd.[67]

42.  It is notable that the emergency brake has not yet been used by any Member State in relation to criminal procedure legislation.

The Victims Roadmap

43.  The explicit competence for measures on the rights of victims of crime introduced by the Lisbon Treaty is now supported by a Roadmap setting out general objectives for future legislation in this area, highlighting five specific measures to be pursued.[68] These are set out in Box 4.


The Roadmap for strengthening the rights and protection of victims, in particular in criminal proceedings
  • Measure A: a new directive on the standing of victims in criminal proceedings which would apply to a broader category of victims, extend the rights previously available and give them more detailed and concrete expression. This has been agreed in the Council and is awaiting a first reading by the European Parliament.[69]

  • Measure B: recommendations providing guidance and best practice to facilitate implementation of the new Directive on the standing of victims in criminal proceedings. No proposal has yet been published by the Commission.

  • Measure C: mutual recognition of protection measures for victims in civil matters. The original Commission proposal for a "European Protection Order" has now been limited to protection granted in the course of criminal proceedings. It has been agreed in the Council and is awaiting a first reading by the European Parliament. It is now complemented by a proposal for the mutual recognition of protection measures in civil matters which is under negotiation in the Council.[70] Separate instruments were needed because the mutual recognition sought covered orders by both civil and criminal courts and distinct Treaty bases are required.

  • Measure D: a review of the 2004 Directive on compensation to crime victims. This review has not yet been undertaken, but the Commission's Work Programme for 2012 envisages bringing forward legislation to ensure that victims of crime receive fair and appropriate compensation in all Member States.

  • Measure E: recommendations, guidance and best practice in implementing EU legislation concerning vulnerable victims.

44.  The protection of victims is also enhanced by the recently adopted provisions to protect victims of human trafficking and victims of child sex abuse and sexual exploitation included in directives intended to combat these crimes.[71] We have supported, in principle, the proposals that have been brought forward.[72]

43   Q 50 (Vice-President Reding); Baroness Ludford, para 1.  Back

44   At least a quarter of Member States must take the initiative to propose legislation whereas previously any one Member State could do so. Back

45   Direct effect is the principle that a directive may, in appropriate circumstances, confer on individuals rights and obligations which must be recognised by national courts. Back

46   Article 82(1) TFEU. Back

47   The proposal was made at the initiative of seven Member States, not including the UK. Back

48   Article 82(2) TFEU. Back

49   Which accord a degree of flexibility, as Member States need only ensure that their national legislation achieves the results required by the Directive. Back

50   Article 82(2) TFEU. Back

51   Article 82(3) TFEU. Back

52   Article 276 TFEU. Back

53   Title VII of Protocol 36. The UK opt-in and the implications of Protocol 36 are considered at Chapter 6. Back

54   Protocol 21 deals with the UK and Ireland opt-in. Back

55   Article 3. Back

56   Article 4.  Back

57   Ministry of Justice, para 2. Back

58   QQ 68 and 69. Back

59   QQ 2 and 23; Bar Council, para 3.1, Q 19. Back

60   Professor Mitsilegas, para 10. Back

61   QQ 45 and 46; CCBE, para 32. Back

62   Fair Trials International, para 5, Q 46 (Vice-President Reding). Back

63   Denmark does not participate at all in any of these matters, and Ireland has the same arrangement for opting in as the UK.  Back

64   Baroness Ludford, paras 17-19. Back

65   Q 68. Back

66   Relevant correspondence concerning this proposal is found at and  

67   Q 23. Back

68   Council Resolution of 10 June 2011, OJ C 187, 28.6.2011, p1. Back

69   COM(2011) 275. Back

70   COM(2011) 276. This is based on the civil judicial co-operation provisions of the TFEU. Back

71   Directive 2011/36 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629; and Directive 2011/92/ JHA on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA. Back

72   Relevant correspondence concerning these proposals is found at and Back

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