House of Commons - The UK's block opt-out of pre-Lisbon criminal law and policing measures

The UK's block opt-out of pre-Lisbon criminal law and policing measures - European Scrutiny Committee Contents

2 Why is there a block opt-out? — the legal regimes before and after the Lisbon Treaty

17. The block opt-out was agreed at the tail-end of negotiations on the Lisbon Treaty and forms part of the transitional provisions contained in Protocol No. 36 annexed to the EU Treaties.[12] The relevant part of that Protocol - Article 10 - sets out the procedures for exercising the block opt-out and is reproduced in Annex 2.

18. The block opt-out exists because the Lisbon Treaty has transformed the legal framework for agreeing EU police and criminal justice measures. Previously, under the intergovernmental or "Third Pillar" arrangements in place under earlier EU Treaties (notably the Maastricht Treaty) before the Lisbon Treaty took effect, these measures were agreed by unanimity, ensuring that a Member State could veto a proposal it opposed or use its blocking power to secure any necessary changes. The role and powers of the EU institutions were accordingly weaker than under the traditional "Community method" applicable in other areas of EU legislation. The European Parliament only had to be consulted, individual Member States had a right to propose legislation (independent of the Commission's right to do so), and the Commission lacked the power to bring infringement proceedings against Member States if they failed to transpose or implement Third Pillar measures correctly.

19. There were six types of legal instrument which the Council could adopt under the Third Pillar.[13] Unlike Regulations and Directives adopted under the Community method, however, none of them could entail direct legal effect in Member States, meaning they could not be relied upon by individuals in domestic court proceedings in the absence of implementing legislation (Article 34(2)(b) and (c) of the Treaty on European Union (TEU), as amended by the Amsterdam Treaty in 1999, specifically stated that Decisions and Framework Decisions could not "entail direct effect"). The instruments were:

Common Positions "defining the approach of the Union to a particular matter" — they were particularly relevant in the context of EU external relations: the TEU stated that the Member States must defend them in international organisations. The Court of Justice applied the duty of loyal cooperation[14] to Common Positions relating to the implementation of UN sanctions, thereby clarifying their status as legally binding; it also considered that they may produce legal effects in relation to third parties.[15]
Framework Decisions, intended for "the approximation of the laws and regulations of the Member States." As with Directives, they were "binding as to the result to be achieved but shall leave to the national authorities the choice of form and methods." Framework Decisions were the main form of Third Pillar legislation post-Amsterdam and Member States were legally bound to implement them into national legislation. In the UK this was done through primary legislation.
Decisions, intended "for any other purpose consistent with the objectives" of the Third Pillar, excluding the approximation of the laws and regulations of Member States. Decisions were legally binding on Member States, but did not need to be implemented into national law.
Conventions, adopted by Member States in accordance with their constitutional requirements. They were the main form of Third Pillar legislation under the Maastricht Treaty, and followed the traditional approach to international law-making in that they only came into force once adopted by a minimum number (usually a half) of the Member States. They had to be implemented through primary legislation in the UK before they could be relied upon by individuals in court proceedings.
Under the Maastricht Treaty, but repealed by the Amsterdam Treaty, the Council could adopt Joint Positions and Joint Actions. The legal status and implementation obligations of Joint Actions were unclear and contested.

20. The Government of the time was sufficiently concerned about the domestic effect of Third Pillar criminal justice measures that it ensured they could only be implemented by primary legislation — an Act of Parliament — with the full rigours of Parliamentary scrutiny which that entailed, rather than by secondary legislation under section 2(2) of the European Communities Act 1972. It did so by excluding Title VI TEU from the EU Treaties governed by the ECA 1972.[16]

21. A further category of instruments — Schengen Executive Committee Decisions and Declarations (abbreviated as SCH/Com-ex) — is included within the scope of the block opt-out. The Executive Committee was established as a Ministerial-level decision-making body by the 1990 Schengen Implementing Convention. Its purpose was to adopt (by unanimity) decisions necessary to implement the Convention. The 1990 Convention and various Decisions and Declarations adopted by the Executive Committee formed part of the Schengen acquis that was incorporated within the EU's legal and institutional framework by the Treaty of Amsterdam in 1999.[17] A number of Schengen Executive Committee Decisions and Declarations were included in the UK's application to participate in the law enforcement elements of Schengen, which was formally approved by the Council in 2000[18], and apply to the UK in the same way as to other Schengen States.

22. The jurisdiction of the Court of Justice, largely excluded for EU justice and home affairs measures under the Maastricht Treaty, was enhanced by the Amsterdam Treaty to include annulment actions brought by the Commission or a Member State challenging the legality of Framework Decisions or Decisions adopted by the Council. The Court also had jurisdiction to rule on any dispute between Member States concerning the application or interpretation of Third Pillar acts, as well as any dispute between Member States and the Commission on the application or interpretation of conventions agreed under the Third Pillar arrangements; individuals were not, however, entitled to bring proceedings before the Court.[19]

23. The most significant change effected by the Amsterdam Treaty concerned the Court's jurisdiction to give a preliminary ruling on the validity or interpretation of an EU police or criminal justice measure referred to it by a national court. The Treaty gave Member States the freedom to determine whether and, if so, which of their domestic courts should be able to request such a ruling by making a positive declaration to that effect. Most (around two-thirds) of Member States made a declaration accepting the Court's jurisdiction[20], but successive British Governments since May 1999 (when the Amsterdam Treaty came into force) have chosen not to do so.

24. By far the most important preliminary ruling of the Court under the Third Pillar was the Italian case of Pupino[21] concerning whether Italy's Code of Criminal Procedure should be interpreted in the light of the Framework Decision on the standing of victims in criminal procedure.[22] The Court held that the principle of conforming interpretation on national courts under Community law extended to Framework Decisions "irrespective of the degree of integration envisaged by the Treaty of Amsterdam"[23], because they were legally binding on Member States in a way which mirrored that of a Directive. To reinforce this conclusion the Court ruled that the principle of loyal cooperation, which obliged Member States faithfully to interpret and implement Community (now EU) law, and which until then had been limited to Community legislation, applied also to the Third Pillar. According to the Court, it would be difficult for the EU to carry out the core task of creating "an ever closer union" were the principle of loyal cooperation not to apply in the area of police and judicial cooperation. It concluded that the Framework Decision, as with a Directive, was indirectly effective, which meant that the Italian Code of Criminal Procedure should be interpreted "as far as possible in the light of the wording and purpose of a Framework Decision in order to attain the objectives it pursues."[24] By "as far as possible" the Court meant that the principle of conforming interpretation could not lead to criminal liability being imposed on individuals by a Framework Decision, nor could it lead to national law being interpreted in line with a Framework Decision where national legislation, reasonably interpreted, was unable to achieve an objective of a Framework Decision.

25. One commentator described the Court's decision as a:

landmark ruling from Luxembourg. The Court did not hesitate to transplant Community law to the Third Pillar, by stating that Framework Decisions entail indirect effect. This is notwithstanding the fact that the Third Pillar itself excludes the application of direct effect — the basic Community law principle whose limits are inextricably linked with the development of the indirect concept by the ECJ. It is also irrespective of the degree of integration the States signatory to the Amsterdam Treaty wished to achieve in criminal matters [..].[25]

26. Several commentators, including the Bar Council and Law Society in their submissions to the House of Lords opt-out inquiry, point out that the Court's preliminary rulings since Pupino have given more leeway to Member States in interpreting Framework Decisions, as, for example, in the cases of Gueye and Sanchez[26]and Giovanardi.[27]

27. The principle laid down by the Court of Justice in Pupino was subsequently applied by the House of Lords as one of two bases for interpreting Part 1 of the Extradition Act 2003 in the light of the European Arrest Warrant Framework Decision, the other being the common law rule of statutory interpretation that when Parliament legislates to give effect to an international law obligation it is presumed to do so in full.[28] In both cases, however, the House of Lords had been wrong to rely on Pupino. EU Treaties are given effect in national law through section 2 of the European Communities Act 1972, as defined by section 1. Section 1 incorporated Titles II, III and IV TEU, but not Title VI, the Third Pillar. Given the Third Pillar is not incorporated into national law, UK courts are not bound by decisions of the Court of Justice in this field. This misunderstanding is of some constitutional significance but, surprisingly, was only recently corrected by the Supreme Court in the Assange case[29], although because of the common law presumption that the UK legislates in compliance with its international obligations it did not have a material impact on the Court's decision to allow the European Arrest Warrant.

28. Under the post-Lisbon legal framework, most EU police and criminal justice measures are adopted by a qualified majority in the Council of Ministers (although unanimity continues to apply for some aspects of police cooperation and for any proposal to establish a European Public Prosecutor's Office) and the European Parliament, acting as a co-legislator with an ultimate right of veto, has far more extensive powers to shape the legislation. Moreover, all measures agreed since 1 December 2009 are subject to the full jurisdiction of the Court of Justice and the Commission's infringement powers, meaning that a Member State may be sanctioned by the Court if it has failed to transpose or implement correctly an EU police or criminal justice measure, and that courts in the UK are able to seek a ruling from the Court of Justice on how the measure should be interpreted and applied.

29. As a result of these changes, the post-Lisbon framework includes specific safeguards for the UK and Ireland (with whom the UK shares a Common Travel Area). All EU police and criminal justice measures are subject, in most cases, to an Opt-in Protocol (which previously only applied to EU asylum, immigration and civil law measures) or, if they are related to the Schengen free movement acquis, the Schengen Opt-out Protocol.[30] Both Protocols ensure that the UK and Ireland have the freedom to decide whether or not they wish to participate in a particular EU police and criminal justice measure on a case-by-case basis.[31] If they choose not to, then they are not bound by the measure or by any Court of Justice ruling given in relation to it.

30. The Lisbon Treaty preserves and strengthens a number of safeguards which apply to all Member States, though the meaning of these in practice is ultimately for the Court of Justice to determine. For example, the EU must "respect fundamental rights and the different legal systems and traditions of the Member States."[32] EU justice and home affairs measures "shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security" and the Court has no jurisdiction to review the exercise of those responsibilities or "the validity or proportionality of operations carried out by the police or other law enforcement services of a Member State."[33] Finally, a so-called "emergency brake" provision allows any Member State to refer a draft EU criminal law measure to the highest level of governance within the EU - the European Council - if it considers that it would affect "fundamental aspects of its criminal justice system."[34]

31. These safeguards were not needed to the same extent before Lisbon, because the UK had the power to veto any EU police or criminal justice measure which it considered to be contrary to the national interest. The post-Lisbon opt-in/opt-out arrangements ensure that the UK cannot be compelled to participate in any new EU police and criminal justice measures unless it chooses to do so. The block opt-out serves a similar purpose in relation to the pre-Lisbon EU police and criminal justice measures in which the UK currently participates. It enables the UK to turn the clock back and address the question left unanswered at that time: would the UK have chosen to participate in them on the terms agreed if it had known that the Court of Justice would, at some future date, be given jurisdiction to interpret them and to sanction the UK for any failure to implement them correctly? The impact of the Court of Justice's jurisdiction is one of the most important factors the Government should consider when deciding whether to rejoin any of the pre-Lisbon measures.

WHICH MEASURES ARE WITHIN THE SCOPE OF THE UK'S BLOCK OPT-OUT?

32. At the time of agreeing this Report, 129 EU police and criminal justice measures were within the scope of the UK's block opt-out. They establish a basis in EU law for cooperation between police, prosecuting and judicial authorities in the UK and other EU Member States or set down common rules on the content of Member States' criminal law. The UK, alone, has the right to opt out of these measures, but it must do so en masse — the UK cannot opt out of some and remain bound by others. The Government has until 31 May 2014 to decide whether to exercise the block opt-out. The Prime Minister notified the Presidency of the Council of the UK's intention to do so on 24 July 2013.[35] As a consequence, all measures subject to the block opt-out will cease to apply to the UK from 1 December 2014. The Government has indicated that it intends to seek to rejoin 35 measures. The conditions for doing so are described in chapter 4.

33. Exercising the block opt-out will diminish UK participation in existing EU police and criminal justice measures, but the limited scope of the block opt-out means that many areas of EU justice and home affairs cooperation will not be affected. In particular, the block opt-out does not apply to:

EU police and criminal justice measures in which the UK has chosen to participate since the Lisbon Treaty entered into force on 1 December 2009 — a full list of these measures is in Annex 1;
EU police and criminal justice measures agreed before the Lisbon Treaty entered into force which have been amended, or repealed and replaced, by new measures in which the UK has chosen to participate since 1 December 2009; and
EU measures on asylum, immigration and judicial cooperation in civil matters in which the UK has chosen to participate, whether adopted before or after 1 December 2009.

12 Protocol 36 on Transitional Provisions. Back

13 Article 34(2)(a)-(d) TEU. Back

14 Now enshrined in Article 4 TEU, and previously in Article 10 of the EC Treaty. Back

15 Case C-354/04 and C-355/04 (Gestoras and Segi), in which the Court applied its reasoning from the Pupino judgment (see footnote 21). Back

16 See further at para 27 of this Report. Back

17 The Schengen acquis that was integrated by the Amsterdam Treaty has been published and is available at http://consilium.europa.eu/uedocs/cmsUpload/SCH.ACQUIS-EN.pdf Back

18 See Council Decision 2000/365/EC, OJ No. L 131, 01.06.2000. Back

19 See Article 35 of the Treaty of European Union, as amended by the Amsterdam Treaty. Back

20 They are: Austria, Belgium, Czech Republic, Finland, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Netherlands, Portugal, Slovenia, Spain and Sweden. Back

21 Case C-105/03 Maria Pupino. Back

22 See Framework Decision 2001/220/JHA on the standing of victims in criminal proceedings. Back

23 See para 36 of the judgment. Back