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

Research output: Chapter in Book/Report/Conference proceedingBook chapter


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.


Research areas and keywords

Subject classification (UKÄ) – MANDATORY

  • Law


  • EU law, criminal law cooperation, variable geometry, opt-outs, legal basis litigation, Brexit
Original languageEnglish
Title of host publicationThe Governance of Criminal Justice in the European Union
Subtitle of host publicationTransnationalism, Localism and Public Participation in an Evolving Constitutional Order
EditorsRicardo Pereira, Annegret Engel, Samuli Miettinen
Place of PublicationCheltenham
PublisherEdward Elgar Publishing
ISBN (Electronic)9781788977296
ISBN (Print)9781788977289
Publication statusPublished - 2020 Dec 11
Publication categoryResearch