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This study examines the legal and political implications of the forthcoming end of the transitional period for the measures in the fields of police and judicial cooperation in criminal matters, as set out in Protocol 36 to the EU Treaties. This Protocol limits some of the most far-reaching innovations introduced by the Treaty of Lisbon over EU cooperation on Justice and Home Affairs for a period of five years after the entry into force of the Treaty of Lisbon (until 1 December 2014), and provides the UK with special ‘opt out/opt-in’ possibilities. The study focuses on the meaning of the transitional period for the wider European Criminal Justice area. The most far-reaching change emerging from the end of this transition will be the expansion of the European Commission and Luxembourg Court of Justice scrutiny powers over Member States’ implementation of EU criminal justice law. The possibility offered by Protocol 36 for the UK to opt out and opt back in to pre-Lisbon Treaty instruments poses serious challenges to a common EU area of justice by further institutionalising ‘over-flexible’ participation in criminal justice instruments. The study argues that in light of Article 82 TFEU the rights of the defence are now inextricably linked to the coherency and effective operation of the principle of mutual recognition of criminal decisions, and calls the European Parliament to request the UK to opt in EU Directives on suspects procedural rights as condition for the UK to ‘opt back in’ measures like the European Arrest Warrant.

This document was originally commissioned by the European Parliament’s Committee on CIVIL LIBERTIES, JUSTICE AND HOME AFFAIRS (LIBE) and published in November 2014. It is available for free downloading on the European Parliament’s website. It is republished on the CEPS website with the kind permission of the European Parliament.

Prof. Valsamis Mitsilegas is Head of Department of Law and Professor of European Criminal Law at Queen Mary, University of London; Dr. Sergio Carrera is Senior Research Fellow and Head of Justice and Home Affairs Section at the Centre for European Policy Studies; Dr. Katharina Eisele is a researcher in the Justice and Home Affairs Section at the Centre for European Policy Studies.