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Abstract: The distinction between negative and positive integration that has played a pivotal role in understanding the dynamics of the common market is also instrumental in explaining the dynamics of criminal law co-operation in the EU. Despite manifold differences between common market governance and criminal law cooperation, the introduction of mutual recognition as the lead principle has privileged the abolition of obstacles to cross-border law enforcement (negative integration) over the adoption of common standards (positive integration). As an analysis of the measures taken thus far demonstrates, criminal law cooperation has been biased towards law enforcement at the expense of individual rights.
Keywords: security/internal; governance; fundamental/human rights; negative integration; positive integration; qualified majority; Council of Ministers
Introduction1
The distinction between negative and positive integration has almost exclusively been used to explain the dynamics of economic governance. This article aims at demonstrating that the distinction also contributes to a more comprehensive understanding of the dynamics of criminal law co-operation in the EU. Complementing, rather than replacing existing explanations, the distinction between negative and positive integration in particular helps to explain the inbuilt bias towards law enforcement at the expense of individual rights.
The distinction between negative and positive integration has played a pivotal role in explaining the dynamics of the EU's common market. Fritz Scharpf in particular has argued that negative integration, i.e. the removal of obstacles to free and undistorted competition, has been systematically privileged over positive integration, i.e. the adoption of common regulatory standards.2 The 1979 ECJ Cassis de Dijon ruling has been a milestone in this regard. Until that ruling, negative integration required the harmonization of regulatory standards and was therefore severely hampered by cumbersome decision-making in the Council. 3 In the absence of harmonized European standards, member states remained free to restrict market access on the basis of national regulations. In Cassis de Dijon, the ECJ revolutionized common market governance by declaring that free movement did not require harmonized regulatory standards. Instead, a principle of mutual recognition would apply to the common market according to which all member states were generally obliged to open their markets for products that were lawfully marketed in one member state.4 The underlying assumption is that "member states' regulations present alternative solutions to the same underlying problem"...