Select Committee on European Scrutiny Fourteenth Report

The 'emergency brakes'

105. The concept of an 'emergency brake' is not new. Article 23(2) EU, on implementation of CFSP measures, permits a Member State to declare that 'for important and stated reasons of national policy' it will oppose the adoption of a decision under that Article, in which event a vote is not taken. Instead, 'The Council may, acting by a qualified majority, request that the matter be referred to the European Council for decision by unanimity'. This rule applies also to a proposal for enhanced cooperation in the CFSP field (Article 27c EU).[161]

106. The emergency brake procedure in the Constitutional Treaty applies to social security measures under Article III-136 (measures relating to migrant workers), and to 'minimum rules' concerning criminal procedure under Article III-270 and criminal law under Article III-271. In the case of social security, where a Member State considers that a proposal 'would affect fundamental aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system, it may request that the matter be referred to the European Council'. In such a case the 'ordinary legislative procedure' under Article III-396 is suspended, and the European Council has four months in which to decide whether to refer the draft back to the Council, or to request the Commission to submit a new proposal.

107. The emergency brake for criminal law and procedure is similar, and is to be applied when a Member State considers that a proposal would 'affect fundamental aspects of its criminal justice system'. However, in this case the procedure also provides that authorisation for enhanced cooperation is deemed to have been granted if the European Council has taken no action within the four-month period, or if the new draft of the proposal has not been adopted within 12 months of its submission. There is no such provision for deemed authorisation in the case of social security.

108. The Foreign Secretary did not consider that the deemed authorisation for enhanced cooperation in criminal law and procedure would undermine the emergency brake mechanism. He added:

'The purpose of the accelerated procedure for launching enhanced cooperation is to ensure that, after it has been concluded through serious political debate, including at the European Council, [that] it is not possible to reach agreement on a law in this area, those who wish to proceed with the law can do so without binding others. It would be illogical to require the full procedures for launch of enhanced cooperation to then come into play, since all aspects of the issue will already have been fully debated'.[162]

109. He told us that the Government did not consider a similar provision appropriate or necessary for social security issues because it had been possible in practice to legislate in this area on the basis of unanimity. This was partly because 'the collective gains from legislation in this area depend very much on every Member State participating: the value of provisions which allow easier movement of workers from country to country is dramatically weakened if it does not apply across the EU. So, if it proves impossible to agree on a particular piece of legislation without a Member State pulling the emergency brake, it is right that the pros and cons of enhanced cooperation and its relationship with the single market be fully tested in accordance with the provisions in Articles [III-416 to 423]'.[163]

The effectiveness of the 'emergency brake' procedure

110. The Foreign Secretary stated the Government's view that 'the emergency brake is an effective mechanism to ensure the UK can participate fully in initiatives on criminal law and social security, whilst retaining flexibility not to be involved if the Government believes an initiative affects fundamental aspects of its system'. This was because pulling the emergency brake resulted in the matter being referred to the European Council, which, in accordance with Article I-21(4), would act by unanimity. He added that only the Member State concerned could judge whether a proposal would affect fundamental aspects of social security or criminal justice systems and that 'this judgment cannot be subject to any wider authorisation'. He concluded:

'The Government considers that as far as social security is concerned the breadth of the test for pulling the brake means that there is no practical difference between the new provisions and unanimity. Functionally, the same is true for criminal law. The practical difference [in] the latter is that, as far as this Government is concerned, there may well be some limited areas of criminal law on which it would make sense for there to be minimum rules. The advantage of QMV is that it becomes possible to agree reasonably expeditiously on legislation where no Member State including the UK has a problem of principle with the EU so acting, whilst the emergency brake makes it easy to ensure that the EU does not stray into more controversial areas, and protects our national interests.'[164]

111. The Government's commentary on the Constitutional Treaty states that Article III-136(2) on social security 'in effect provides a veto'. [165]

112. Some of our witnesses had doubts about the effectiveness of the emergency brake mechanism, and about whether it would be much used, mainly because they believed there would be a greater political cost from pulling the brake than from relying on a requirement for unanimity. Professor George Bermann speculated that Member States 'will only be able to apply the emergency brake a very limited number of times and the device … may fall out of use'.[166] Mr Chalmers believed that the procedure would be used 'in the context of a very small number of Member States pleading a case against a backdrop where they know other Member States can go forward without them in any case via enhanced cooperation'. He also commented that it assumed that the European Council was a more effective decision-taker than the Council of Ministers, whereas,

'Historically, the European Council has been strong at agenda-setting and less so at breaking of logjams. It would be operating in a position where negotiating positions are already strongly defined, and is limited by a couple of features. Member States may be wary about undermining their bargaining position on other matters important to them by being too adamant on something likely to be particular to that Member State and not easily understood by other Member States. Local publics are also likely to be suspicious of grand deals with criminal procedure negotiated away for some other unrelated matter, and this perception may complicate matters.'[167]

113. Professor Denza noted that the procedure 'would enable any Member State to block any unacceptable measure in the field of criminal justice'.[168] However, both she and Professor Edward considered that the emergency brake procedure was not as effective as the present unanimity rule in protecting vital national interests, even if in the sense of 'actually getting things done and providing a political mechanism for resolving the problem' the procedure was 'probably not bad'.[169] Professor Edward noted that the brake was 'not absolute', and that, at the point when the matter was raised in the European Council, 'politics would overcome law' and it would be important to negotiate a solution; 'to say it operates as a total brake is clearly not the case'.[170]

114. Professor Denza pointed to the difficulty of using the mechanism for resolving objections of a technical nature:

"If the objection is a rather technical one, then unanimity is better because that simply forces, at the technical level, people really understanding the issues to bang on until people really understand your problem and try to find a compromise around it. The difficulty about escalating it to political level is that in the nature of things those operating in the stratosphere do not really understand the minutiae and the whole background of the criminal justice system against which the problem has arisen. You may get some sort of a deal and then the technocrats are simply instructed that at Council they have to sort it out.'[171]

She noted that the European Council would also have the option of sending the text back to the Commission.

115. Martin Howe QC similarly observed that the emergency brake provisions reflected 'acceptance of the general rule that measures in these importance and sensitive areas will be taken by qualified majority vote', and that the procedure would only be invoked in 'exceptional circumstances deemed to be of sufficient political importance', with the consequence that 'undesirable measures of significant importance but not of such great importance as to justify invocation of the "emergency brake" procedure will, it is to expected, be passed through'.[172]

116. Mr Howe also raised the possibility that the ECJ might impose a requirement of reasonableness or proportionality on a Member State's assessment of whether a proposal affected fundamental aspects of its criminal justice system. Mr Howe considered that if the ECJ were to take such a view, or even if there were to be a perceived risk that it might do so, this would further inhibit the use of the emergency brake procedure.[173] JUSTICE also made the point that 'if the emergency brake provisions are to be justiciable in cases brought before the ECJ, this may, in the hands of an activist court, diminish the value of the emergency brake'.[174] The Foreign Secretary's view on this point was that 'The text says that the brake may be pulled "if a Member State considers" that these tests are met, and this judgment cannot be subject to any wider authorisation'.[175]

117. Other witnesses were less doubtful about the emergency brake. Statewatch considered that 'once the brake is "pulled" by a Member State, there is no way that the legislative machinery can begin moving again until that Member State can be assured within the European Council that its objections can be met'.[176] Professor de Búrca stated that although the emergency brake was unlikely to be used often, because of its complexity, 'the very existence of the possibility of the procedure may well have something of the effect that the "shadow of the Luxembourg veto" had for years, i.e. inducing caution and compromise into the operation of the "ordinary legislative procedure" in these fields, so as to avoid the risk of any Member State pulling the brake'.[177]

118. Professor Edward drew our attention to the special position of Scotland in relation to the emergency brake procedure, pointing out that the United Kingdom appeared to be unique in having within a single Member State the three clearly different and separate criminal judicial systems of England and Wales, Scotland and Northern Ireland. If, for example, a proposal seriously interfered with the Scottish system of prosecution, 'there is at the moment no formal mechanism for the Scottish Parliament to do anything about it'.[178] He gave as an example the '110-day rule', whereby, in principle, the maximum period during which a person may be held in custody in Scotland without going to trial is 110 days, and observed that 'If legislation were put forward which ignored that—and it is quite possible that it would be—then it creates a serious problem for the administration of justice in Scotland'.[179] He referred to efforts being made to make the Scottish Executive and MSPs aware of the need to find out early what was happening and to ensure that their point of view was known.[180]

119. We accept that the 'emergency brake' mechanism will provide clear protection to a Member State which believes a measure  affects fundamental aspects of its criminal justice or social security systems.  But it should be noted that it is, of course, a quite different procedure from straightforward unanimity and will mean that political considerations will come into play at the level of the European Council.

120. We believe that special care will be needed by Ministers to ensure that the special features of the different legal systems in the United Kingdom are fully taken into account when considering use of the emergency brake procedure. If the Treaty comes into force, we will expect Ministers to explain fully in their Explanatory Memoranda and other evidence to us the impact of EU proposals on such features and the consideration the Government has given to using the emergency brake to protect them.

161   However, for enhanced cooperation under the EC Treaty and in relation to justice and home affairs, the Council may nevertheless act by qualified majority after a matter has been raised in the European Council by a Member State (Article 11 (2) EC and Article 40b EU). Back

162   Ev 6. Back

163   Ev 6-7. Back

164   Ev 7. Back

165   Cm 6459, p. 91. Back

166   Ev 90. Back

167   Ev 104. Back

168   Ev 16. Back

169   Q 32. Back

170   Q 31. Back

171   Q 32. Back

172   Ev 55. Back

173   Ibid. Back

174   Ev 96. Back

175   Ev 7. See also Ev 123. Back

176   Ev 123. See also Ev 51. Back

177   Ev 28. Back

178   Q 37. Back

179   Q 40. Back

180   Q 37. Back

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2005
Prepared 6 April 2005