Annex
MEMORANDUM OF UNDERSTANDING ON IMPLEMENTING ARTICLE
8 OF THE PROTOCOL ON THE APPLICATION OF THE PRINCIPLES OF SUBSIDIARITY
AND PROPORTIONALITY
Her Majesty's Government, the European Union Committee
of the House of Lords and the European Scrutiny Committee of the
House of Commons (the "Scrutiny Committees") have agreed
the following arrangements regarding the implementation of Article
8 of the Protocol on the Application of the Principles of Subsidiarity
and Proportionality. This provides :
"The Court of Justice of the European Union
shall have jurisdiction in actions on grounds of infringement
of the principle of subsidiarity by a legislative act, brought
in accordance with the rules laid down in Article 263 of the Treaty
on the Functioning of the European Union by Member States, or
notified by them in accordance with their legal order on behalf
of their national Parliament or a chamber thereof."
1. Under Article 263 TFEU, actions must be brought
within two months of the publication of the measure. An
additional ten days are allowed under the Court of Justice's rules
of procedure, but no further extension of time is permitted.
2. When either of the Scrutiny Committees is proposing
to recommend to the House concerned that an action be brought
pursuant to Article 8, the Committee will, at the earliest opportunity,
notify the UK Agents to the Court of Justice of the proposed recommendation.
3. Where either the House of Lords or the House of
Commons decides that an action should be brought pursuant to Article
8, the Government will lodge an application at the Court of Justice.
Such an action will be brought in the name of the United Kingdom
and the application will state that the action is brought on behalf
of the House concerned or of Parliament, as the case may be, pursuant
to Article 8.
4. The action will be conducted by the UK Agents
to the Court of Justice, in the EU Litigation Team of the European
Division of the Treasury Solicitor's Department, who act under
the oversight and authority of the Attorney General. As with
all UK actions before the Court of Justice, the Agents will ensure
that the UK's submissions are presented as effectively as possible,
in order to maximise the prospects of success before the Court.
5. For all communications with the UK Agents, each
Committee will be represented by its Legal Adviser or such other
person who may be notified to the Agents.
6. The Scrutiny Committee concerned will notify the
UK Agents as soon as possible of the decision referred to at paragraph
3. The Committee's representative will at the earliest opportunity
discuss choice of Counsel with the UK Agents. The Committee will
provide all information and documentation available to it that
is relevant to the conduct of the proceedings.
7. The application and other submissions to the Court
of Justice will be made in accordance with the decision referred
to at paragraph 3. All matters concerning the conduct of the
proceedings, including the choice of Counsel, instructions to
Counsel, the written statements to be submitted to the Court and
the submissions to be made at any hearing, will be agreed between
the UK Agents and the Committee concerned. In order to protect
the good standing of the United Kingdom before the Court of Justice,
the conduct of proceedings will avoid anything which could adversely
affect the reputation of the United Kingdom before the Court of
Justice.
8. If the UK agents consider that the conduct of
proceedings could undermine the United Kingdom's wider policy
interests in relation to the European Union, and these concerns
cannot be resolved in discussion with the representative of the
Committee concerned, they shall convene a meeting of the Minister
and the Chairman of the Committee concerned to resolve the disagreement.
9. The UK Agents will undertake
the conduct of proceedings.
This includes instructing Counsel on
the basis of written instructions,
approving the text of the UK's pleadings and speech for any oral
hearing, determining whether to request an oral hearing, and instructing
Counsel in person at any hearing. The UK Agents may consult the
lead UK Government Department or Departments with responsibility
for the subject matter of the measure at issue in the proposed
challenge with a view to drawing on their expertise and knowledge
of the measure concerned.
10. This memorandum is not intended to create legal
obligations.
[Signed by the two Chairmen and the Minister]
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