Opting in or opting out? : The EU’s variable geometry in the area of freedom, security and justice

The EU’s provisions on cooperation in criminal matters have long allowed for greater flexibility than in other (less sensitive) policy areas. Despite their formal integration into the realm of supranational law under the Lisbon Treaty, they remain subject to some intergovernmental features which are being preserved from the previous pillar structure pre-Lisbon. In particular, this includes opt-outs from certain measures for Member States on the one hand, as well as the possibility of “opt-ins” by means of agreements concluded with non-Member States on the other hand, thus leading to a rather fragmented European landscape in matters of criminal law cooperation. This Chapter analyses the specific legal bases allowing for differentiated integration in the area of freedom, security and justice as well as the advantages and disadvantages of the various approaches and how these may or may not achieve the overarching objectives of the Union in this area. One of the main questions will be whether the current legal framework would allow for a more harmonised approach, thus providing a discussion of overlapping legal bases and the resulting legal basis litigation