23 The UK's 2014 block opt-out decision
| Committee's assessment
| Legally and Politically important |
| Committee's decision | Not cleared from scrutiny; further information requested; drawn to the attention of Home Affairs and Justice Select Committees
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| Document details | Commission staff working document: Revised preliminary list of the former third pillar acquis
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| Legal base | —
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| Department | Home Office
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| Document number | (36117), 9883/14, SWD(14) 166
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Summary and Committee's conclusions
23.1 This Commission staff working document contains a list of
police and criminal justice measures — 'the former third
pillar acquis' — agreed before the Lisbon Treaty
entered into force on 1 December 2009. Its purpose is to identify
the measures which are subject to Article 10 of Protocol No. 36
on Transitional Provisions, annexed to the EU Treaties. Article
10 sets out transitional arrangements for EU police and criminal
justice measures adopted before the Lisbon Treaty entered into
force on 1 December 2009. From 1 December 2014, following the
expiry of a five-year transitional period, all Member States participating
in these measures will be bound to accept the full jurisdiction
of the Court of Justice and the enforcement powers of the Commission.
The Commission document establishes which measures will be subject
to these powers.
23.2 The UK has a right, set out in Article 10(4) of Protocol
No. 36, to opt out en masse of all of these pre-Lisbon
police and criminal justice measures. On 24 July 2013, the Prime
Minister formally notified the EU institutions that the UK had
decided to exercise its block opt-out. The Commission document
also establishes which measures are subject to the UK's block
opt-out and will cease to apply to the UK from 1 December 2014.
23.3 The actual number of measures subject to Article 10 of Protocol
No. 36 will continue to evolve until the five-year transitional
period expires and the UK's block opt-out takes effect on 1 December
2014. This is because pre-Lisbon police and criminal justice measures
which are amended, or repealed and replaced — a process
referred to as "Lisbonisation" — immediately become
subject to the full jurisdiction of the Court of Justice and Commission
enforcement powers once they take effect. As regards the UK, pre-Lisbon
police and criminal justice measures cease to be subject to the
block opt-out if the UK has opted into a subsequent (post-Lisbon)
amending or replacement measure.[104]
23.4 In our Fifth Report, agreed on 2 July 2014, we highlighted
some discrepancies in the list of measures included in the Commission
document and in the Government's own list of measures subject
to the UK's block opt-out which it made available to Parliament
in June 2013. The Minister for Modern Slavery and Organised Crime
(Karen Bradley) informed us that the Government had published
a revised list in September 2013 in which many of the discrepancies
with the Commission's list of measures had been resolved.[105]
Our Ninth Report, agreed on 3 September, noted that some discrepancies
remained and sought further information from the Minister regarding
the status of nine Council Decisions authorising the conclusion
of Agreements with various third countries on security procedures
governing the exchange of classified information. These Decisions
concern both justice and home affairs matters and the EU's Common
Foreign and Security Policy.
23.5 Our Ninth Report also noted that the Government intended
to seek to rejoin 35 pre-Lisbon EU police and criminal justice
measures subject to the UK's block opt-out. We reminded the Minister
of the Government's commitment to a further debate and vote in
both Houses before making a formal application to rejoin these
measures, and added that the debate and vote should ensure that
there is a genuine opportunity for the House to determine the
measures the UK will seek to rejoin. This, in our view, means
that there should be a separate motion for each measure the Government
proposes to rejoin.
23.6 The Minister is only able to tell us that the Government's
position — that the police and criminal justice elements
of the Agreements attached to the Council Decisions are subject
to the UK's block opt-out — "has not been challenged
by others". We ask her to clarify whether a definitive list
of measures subject to Article 10 of Protocol 36, accepted by
the Commission and all Member States, will be published by 1 December
2014. Such a list is essential to ensure transparency in determining
which measures become subject to the jurisdiction of the Court
of Justice and Commission enforcement powers from that date and
which, in the UK's case, will cease to apply to it.
23.7 We consider that the approach advocated by the Minister
— to treat the provisions of the Agreements, to the extent
that they concern police and criminal justice matters, as severable
— raises both legal and practical difficulties. First, the
obligations contained in the Agreements only bind the EU (the
Council, the High Representative for Common Foreign and Security
Policy, the Council General Secretariat and the Commission) and
the relevant third country contracting party. Unlike mixed agreements
to which the EU and Member States are parties, the UK is unable
to assume the obligations contained in the Agreements on the exchange
of classified information in its own capacity. We ask the Minister
to explain the legal basis on which the police and criminal justice
elements of the Agreements may be treated as severable without
affecting the legal validity of the Agreements.
23.8 Second, we note that the UK will continue to participate
in a significant number of EU police and criminal justice measures
after the block opt-out takes effect on 1 December 2014. We ask
the Minister to explain the how the UK's opt-out of these Agreements
would affect the exchange of classified information between the
EU and a third country contracting party relating to measures,
such as human trafficking, online child pornography, and other
forms of serious crime, in which the UK continues to participate.
23.9 We are drawing our observations to the attention of the
Home Affairs and Justice Select Committees. Meanwhile, pending
the Minister's reply, the Commission staff working document remains
under scrutiny.
Full details of
the documents: Commission staff working
document: Revised preliminary list of the former third pillar
acquis: (36117), 9883/14, SWD(14) 166.
Background
23.10 Our Fifth Report, agreed on 2 July 2014, describes
the content of the Commission document and the Government's Explanatory
Memorandum, as well as the broader context concerning the UK's
2014 block opt-out decision. More detailed information is available
in the Reports of the European Scrutiny, Home Affairs and Justice
Committees listed at the end of this chapter.
23.11 Our Ninth Report of 3 September 2014 sought
further information from the Minister concerning the inclusion,
in the Government's list of measures subject to the block opt-out,
of nine Council Decisions authorising the conclusion of Agreements
with various third countries on security procedures governing
the exchange of classified information. We noted the Government's
position, restated by the Minister, that these measures were subject
to the UK's block opt-out. The Minister did not, however, indicate
whether other Member States also accepted that these Decisions
were within the scope of the UK's block opt-out and whether the
Commission's list would be revised accordingly. Nor did she clarify
the scope of the UK's opt out in relation to the Decisions, as
requested in our Report on The UK's block opt-out of pre-Lisbon
criminal law and policing measures,[106]
given that the Agreements concern the EU's Common Foreign
and Security Policy (CFSP) as well as justice and home affairs.
Moreover, the Minister also appeared to suggest that the
Decisions might be considered obsolete and formally repealed as
part of the Commission's broader REFIT programme. We therefore
asked her:
· whether
or not the Government considered the Decisions to be obsolete;
· whether
the Commission and other Member States agreed with the Government
that the Decisions were subject to the block opt-out; and
· to
clarify the scope of the block opt-out, in particular whether
it would only take effect as regards the policing and criminal
law elements of the Decisions and whether the UK would continue
to remain bound as regards CSFP and CSDP matters.
The Minister's letter of 26 September 2014
23.12 The Minister (Karen Bradley) explains that
one of the nine Council Decisions, relating to Croatia, has been
superseded following Croatia's accession to the EU on 1 July 2013.
She continues:
"The Government has opted out of the police
and criminal justice elements of the other third country agreements
that you refer to but acknowledges the unique position of these
measures given the joint legal base cited. The UK's opt-out does
not extend to CFSP matters and as such the UK is unable to opt-out
of these elements under the Protocol 36 arrangements. However,
it is important to note that there are restrictions on European
Court of Justice jurisdiction over CFSP as set out in Article
275 of the Treaty on the Functioning of the European Union.
"You also asked whether the European Commission
and other Member States agree with the Government that the Council
Decisions are subject to the block opt-out. These measures are
not included on the Commission's list but as we explained in the
original Explanatory Memorandum, the Commission Staff Working
Document has indicative value only. The list of measures may continue
to change up until 1 December 2014 and ultimately, in the event
of a dispute, only the Court of Justice of the European Union
(ECJ) will be able to determine whether a measure is part of the
relevant former third pillar acquis. To date, the Government's
position with respect to these measures has not been challenged
by others."
23.13 The Minister concludes by "noting"
our view on the forthcoming Parliamentary debate on the 35 measures
the Government proposes to rejoin and "looks forward to engaging
further [..] on this important matter".
Previous Committee Reports
Ninth Report HC 219-ix (2014-15), chapter 17 (3 September
2014); Fifth Report HC 219-v (2014-15), chapter 8 (2 July 2014).
The following Reports are also relevant: Thirty-seventh Report
HC 798 (2012-13), 22 March 2013; Eighth Report HC 605 (2013-14),
31 October 2013; Ninth Report HC 615 (2013-14), 31 October 2013;
Twenty-first Report HC 683 (2013-14), 7 November 2013; First Joint
Report from the European Scrutiny, Home Affairs and Justice Committees
HC 1177 (2013-14), 26 March 2014.
104 The same is true if the UK has chosen not to opt
out of a post-Lisbon measure amending or replacing a pre-Lisbon
Schengen measure. Back
105
The revised list is available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/352262/Protocol36Measures.pdf Back
106
See para 541 of HC 683, 7 November 2013. Back
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