16. Memorandum submitted by Open Europe
1. Open Europe is an independent think tank
set up by some of the UK's leading business people to contribute
new thinking to the debate about the future of the EU. Open Europe
believes that the EU must embrace radical reform based on economic
liberalisation, a looser and more flexible structure, and greater
transparency and accountability if it is to succeed in the 21st
2. The EU Commission has proposed that member
states should agree to use the passerelle or "bridging"
clause in the current treaties.
If utilised it would mean that criminal justice and policing would
for the first time become a community competence. This decision
would be likely to abolish the national veto and would greatly
increase the powers of both the EU Commission and European Court
of Justice (ECJ) over a sensitive area of national policy.
3. We believe that the proposal represents
a significant shift of power from the national to the European
level, over a key area of policy. It is an area in which the UK
Government has been reluctant to cede control to Brussels in the
past and we believe that it should block these proposals now.
Majority voting would present particular problems for common law
countries such as the UK and Ireland which are likely to find
themselves in a minority and therefore unable to block new laws
which could cause problems for their legal systems.
4. If the passerelle clause is used
it would mean that for the first time in the UK's history criminal
laws would be passed through parliament as secondary legislation,
and would not receive full parliamentary scrutiny, as they will
be implementing EU legislation.
5. In this paper we argue that the UK's
opt-in clause is not as effective a safeguard as the veto. We
also argue that the UK's opt-in is seriously undermined by an
ECJ ruling from September 2005 (Case C-176/03).
6. If EU ministers agree to the Commission's
request the EU would gain even more significant powers over criminal
justice than it would have been given under the EU Constitution.
As the Government has acknowledged, the European Commission would
gain the sole right to propose new legislation, whereas under
the Constitution the right of initiative would have been shared.
The proposal would also sweep away some of the safeguards written
into the Constitution, such as the "emergency brake"
procedure, and the restrictions relating to the EU acting only
on "serious crimes with a cross-border dimension".
7. One of the European Commission's central
objectives for using the passerelle clause is to be able
to push through measures which are currently being blocked in
the European Council. We look at two of these, the proposal to
harmonise rights for suspects in custody, and the proposal to
harmonise criminal offences for racism and xenophobia across the
EU, both of which we argue could pose particular problems for
8. If the passerelle clause is used
the European Court of Justice would gain jurisdiction over criminal
law, which could create practical problems. It often takes up
to two years for the ECJ to give its interpretation of a particular
case. If it started ruling on criminal cases national governments
could be forced to hold suspects in custody for up to two years
before a final ruling is given.
9. Using the passerelle would also
give the EU external competence over criminal justice and policing
which would mean that the EU would begin to negotiate extradition
treaties on the UK's behalf and could even begin to assume control
over deportation agreements.
ARTICLE 42 TEU
(a) The "opt-in" is not an
10. Legal experts have warned that a ruling
by the European Court of Justice in September 2005 (Case C-176/03)
will undermine the UK's opt-in arrangement. As a result of the
case the EU is able to propose criminal sanctions in all areas
of "Community competence". When it does so, the UK has
no "opt-in" arrangement, and would therefore have to
participate in any criminal justice measure that the Commission
feels is necessary to "ensure the full effectiveness of a
11. Richard Plender QC, who represented
the UK in the case in question, told us that the ruling would
create "a problem" for the UK when attempting to use
its opt-in as "There is no opt-in or opt-out under this judgment".
12. The Court's ruling considerably widens
the scope of EC criminal action and allows EU laws to prescribe
criminal offences and penalties in a much greater level of detail.
13. This was a dramatic and unexpected rulingbut
its impact is currently limited, by the scope of community competence.
For example, the Commission can propose criminal legislation for
environmental crimes, which are under its competence, but not
criminal laws in general, as criminal law in general, is not in
14. However, if it is used in full, article
42 TEU would transfer much of criminal justice and police cooperation
into the first pillar, making them community competences. It has
been argued that only limited sections of criminal justice would
be transferred across: the Government argues that article 31(e)
TEU only allows the EU to harmonise criminal offences and penalties
in the fields of organised crime, terrorism and illicit drug trafficking.
However, the decision will move across all of Articles 29 to 32covering
such open-ended concepts as "ensuring compatibility in rules
applicable in the member states" and "preventing conflicts
of jurisdiction between member states."
15. Furthermore, in its communication "Implementing
the Hague programme: the way forward" the Commission specifically
stated that it wanted to harmonise crimes of racism and xenophobia
if and when article 42 TEU is used.
This proposal clearly does not fall into the categories mentioned
in article 31(e), which suggests that if the passerelle clause
were used the EU would gain competence over a large part of the
criminal justice field.
16. Thus if ministers agree to use the passerelle
clause the EU will be able to determine offences, penalties
and other "appropriate measures" across all areas of
criminal justice where it has competence, which would not be subject
to the opt-in procedure and would ultimately be interpreted by
the ECJ, not national courts.
17. Even without the court ruling, the opt-in
arrangement clearly would not give the UK as much control as a
veto. Member states have three months to opt-in to a new measure
once it has been proposed. If, as the legislation is drafted,
the UK or Ireland do not like the way it turns out, it is not
possible to opt back out again.
18. The UK and Ireland would also be bound
by any future amendments to that legislation. This is particularly
significant given that many EU measures, particularly if controversial,
have clauses which call for a review of the legislation in several
years time. For example, the current wrangles over the EU Commission's
attempt to abolish the UK's opt-out from the Working Time Directive
were started because of a 10-year revision clause.
19. Ireland is the only other EU country
which has an opt-in procedure apart from the UK. In evidence to
the House of Lords Irish Justice Minister Michael McDowell cast
doubt on the claim that the opt-in was like a veto.
20. "I am not clear that the opt-in
power gives us effectively the same outcomeit may or may
not. Politically obviously opt-in means that the other Member
States will go and be able to do their own thing, so to speak,
and politically that may be more difficult to resist and more
difficult to resist an opt-in rather than a unanimity requirement,
and that depends on the politics of any issue at the time it comes
to be decided." 
(b) Going even further than the EU
21. If EU ministers agree to use the passerelle
clause they would be accepting a shift of power over criminal
justice which is even more radical than that contained in the
22. It would give the EU Commission the
sole right of initiative over criminal justice. Under the Constitution
this right would have been shared between the member states and
23. Giving the EU Commission the sole right
of initiative could lead to a reduction in the flexibility and
effectiveness of actions in this area. Criminal justice policy
is generally conducted in a reactive manner, responding to new
issues as they happen and troubleshooting problems with existing
legislation as they become apparent.
24. National governments are clearly best
placed to be able to respond to new issues as and when they crop
up. In recent years the "big 6" member states have taken
the lead in responding to security incidents such as the 7/7 London
bombings, and the recent alleged plot to blow up planes on route
to the United States. If member states lost the right of initiative
their ability to respond and push new measures through quickly
would be severely curtailed.
25. Under the Constitution the EU would
only have been able to harmonise criminal penalties and offences
for a limited number of "serious crimes with a cross-border
dimension" but there would be no such restriction if the
passerelle clause is used. 
26. Unlike under the Constitution there
would be no "emergency brake" procedure available to
member states if the passerelle is used. The emergency
brake would have allowed member states to halt negotiations on
a proposal if it thought it "would affect fundamental aspects
of its criminal justice system." 
(c) Enabling the EU to push through
controversial laws which are currently being blocked
27. One of the EU Commission's central reasons
for wanting to use the passerelle clause is so that measures
which are being blocked can be pushed through in the European
Council. Several of the measures which it wants to pass are extremely
controversial and could cause particular problems in the UK.
28. One proposed measure attempts to harmonise
rights for suspects in custody across the EU. If
passed, every suspect across Europe would be handed a "Letter
of Rights" once arrested, which they are granted by "European
Union law". The House of Lords EU Select Committee has warned
that if this proposal is passed it could become impossible to
stop the "creeping competence" of the Commission, and
could lead to the "incremental unification of criminal procedure
throughout the EU." 
29. Another proposed measure criminalising
racism and xenophobia could overturn amendments made to the recent
Bill on Religious Hatred. After a campaign led by the comedian
Rowan Atkinson, an amendment was passed which safeguarded comedians
from prosecution for insulting behaviour. The EU Commission's
proposal could possibly overturn this amendment because it outlaws
"public insults". If a dispute arose, it would fall
to European judges to ultimately interpret the law.
(d) Increasing the powers of the European
Court of Justice
30. Using the bridging clause would hugely
increase the role of the European Court of Justice over member
state's criminal law. For the first time the Court would have
full jurisdiction over criminal law, something which has long
been resisted by successive UK Governments. The ECJ would become
the highest court in the UK's criminal law system and would begin
to determine the substantive criminal law for EU nations.
31. Apart from anything else this could
create practical problems. It often takes up to two years for
the ECJ to give its interpretation of a particular case. If it
started ruling on criminal cases national governments could be
forced to hold suspects in custody for up to two years before
a final ruling is given.
(e) Giving the EU exclusive "external
competence" over criminal justice
32. As the EU legislates in particular areas
it gains external competence over them. This means that it begins
to represent member states in international negotiations on these
33. If EU ministers agree to use the bridging
clause in the treaties and transfer criminal justice into the
first pillar the UK will lose its right to negotiate bilateral
extradition treaties with foreign countries. The EU might also
gain competence over member states' deportation agreements with
third countries. This could have serious consequences for the
UK's ability to negotiate robust deportation agreements for terror
suspects with non-EU countries.
1 October 2006
112 Article 42 TEU. Back
For more details see "Communication from the Commission
to the European Parliament and the Council on the implications
of the Court's judgment of 13 September 2005 (Case C-176/03) Commission
v Council". Back
Interview, 7 September. Back
In its communication on the implications of Case C-176/03 the
Commission states that the ruling gives it the ability to set:
"the definition of the offence-that is, the constituent element
of the offence-and, where appropriate the nature and level of
the criminal penalties applicable, or other aspects relating to
criminal law ... it is necessary to direct the action of the Member
States by specifying explicitly (i) the type of behaviour which
constitutes a criminal offence and/or (ii) the type of penalties
to be applied and/or (iii) other criminal-law measures appropriate
to the area concerned." Back
The Commission wants to pass the proposal for a Framework Decision
on combating racism and xenophobia which is currently blocked
in the Council. Back
"The Criminal Law Competence of the European Community",
House of Lords EU Select Committee, Q 187, July 2006. Back
Article III-271(1) Treaty Establishing a Constitution for Europe. Back
Article III-271(3) Treaty Establishing a Constitution for Europe. Back
Framework decision on certain procedural rights in criminal proceedings
throughout the European Union. Back
EU Committee, 1st Report, Procedural Right in Criminal Proceedings,
7 February 2005. Back