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Documents considered by the Committee on 24 October 2018 Contents

5Participation of Iceland, Norway, Switzerland and Liechtenstein in the EU’s justice and home affairs IT agency, “eu-LISA”

Committee’s assessment

Legally and politically important

Committee’s decision

Not cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee, the Justice Committee and the Exiting the European Union Committee

Document details

(a) Proposal for a Council Decision on the signing on behalf of the European Union of the Arrangement with Norway, Iceland, Switzerland and Liechtenstein on participation by those States in the European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice

(b) Proposal for a Council Decision on the conclusion of the Arrangement with Norway, Iceland, Switzerland and Liechtenstein on participation by those States in the European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice

Legal base

(a) Articles 74, 77(2)(a) and (b), 78(2)(e), 79(2)(c), 82(1)(d), 85(1), 87(2)(a), 88(2) and 218(5) TFEU, QMV (b) Articles 74, 77(2)(a) and (b), 78(2)(e), 79(2)(c), 82(1)(d), 85(1), 87(2)(a), 88(2) and 218(6)(a)(v), EP consent, QMV

Department

Home Office

Document Numbers

(a) (40044), 11805/18 + ADD 1, COM(18) 607; (b) (40045), 11804/18 + ADD 1, COM(18) 606

Summary and Committee’s conclusions

5.1The proposed Council Decisions would authorise the EU to sign and conclude an “Arrangement” with Norway, Iceland, Switzerland and Liechtenstein setting out the terms of their participation in “eu-LISA” — the EU Agency responsible for the operational management of EU asylum, migration and law enforcement information systems. These four countries have already concluded agreements with the EU associating them with the Schengen rule book and are referred to collectively as “Schengen associated countries”. They have also concluded agreements associating them with the application of the EU’s “Dublin rules” and Eurodac database which establish a mechanism for determining the country responsible for examining an application for international protection. The 2011 Regulation setting up eu-LISA expressly provides for countries associated with Schengen and Eurodac-related measures to participate in the Agency based on a detailed set of rules which include provisions on financial contributions, staffing and voting rights.75

5.2Under the terms of the Arrangement, the four Schengen associated countries would participate fully in the activities of eu-LISA, be represented on eu-LISA’s Management Board and Advisory Groups and have limited voting rights on certain decisions concerning the EU information systems in which they participate. They would be required to make an annual financial contribution to the Agency (based on an agreed funding formula) and to recognise the jurisdiction of the EU Court of Justice on the basis set out in eu-LISA’s founding Regulation. The Arrangement is contingent on the Schengen associated countries’ continued participation in the Schengen rule book, Dublin rules and Eurodac database. It includes dispute settlement provisions which may lead to the Arrangement being terminated if a Mixed Committee meeting at Ministerial level is unable to resolve the dispute.

5.3Even though the proposed Council Decisions cite Title V (justice and home affairs) legal bases and concern EU information systems which are subject to the UK’s Title V opt-in and Schengen opt-out Protocols, the Commission does not consider that these Protocols apply, meaning that the UK has no choice but to participate in the adoption of the Decisions and will be bound by the Arrangement. This reflects the Commission’s view that, as the UK participates fully in eu-LISA’s founding Regulation, it is under an obligation to give effect to Article 37 of that Regulation which provides for the Schengen associated countries to participate in eu-LISA.

5.4In his Explanatory Memorandum of 3 October 2018, the Minister for Policing and the Fire Service (Nick Hurd) supports the terms of participation set out in the Arrangement and the formula to be used to calculate each Schengen associated country’s financial contribution.76 He accepts that the UK’s participation in eu-LISA’s founding Regulation “implicitly acts as consent” to participate in and be bound by the proposed Council Decisions and says that the UK’s Title V opt-in Protocol “is not engaged”.

5.5The Minister notes that negotiations are underway on a proposed Regulation which would repeal and replace eu-LISA’s founding Regulation, extending the Agency’s mandate to oversee new EU information systems and authorising it to undertake the necessary preparatory work to make the EU’s justice and home affairs information systems interoperable.77 He says it is “likely” that the participation of the Schengen associated countries in eu-LISA will remain effective under the new Regulation (if adopted).78

5.6Shortly after submitting his Explanatory Memorandum, Home Office officials informed us that the Justice and Home Affairs Council on 11/12 October was expected to adopt the proposed Council Decision authorising the EU to sign the Arrangement.

Our Conclusions

The UK’s position at the Justice and Home Affairs Council

5.7We understand that the October Justice and Home Affairs Council endorsed the terms of the Arrangement and adopted the proposed Council Decision authorising the EU to sign it. We ask the Minister to explain how the UK voted.

The application of the UK’s Title V opt-in Protocol

5.8We accept that there are strong grounds for extending participation in eu-LISA to Schengen associated countries. We are nonetheless concerned that the position taken by the Government on the non-application of the UK’s Title V (justice and home affairs) opt-in Protocol represents a significant departure from existing policy and established precedent.

5.9We draw the Minister’s attention to a letter dated 3 November 2011 from the then Home Secretary (Theresa May) in which she set out the Government’s policy on the interpretation and application of the Title V opt-in Protocol:

We have […] reviewed the UK position on the issue of exclusive external competence and have decided to depart from the policy we inherited from the previous Government. We consider that the opt-in does apply to all measures containing JHA obligations, even where the UK has exclusive external competence in relation to those obligations based on the adoption of internal JHA rules that bind the UK. This means that if an internal EU rule, to which the UK previously opted in, was subsequently extended to a third country we would consider that the opt-in applies to the extension of that measure and would reserve the right to decide whether or not to participate in the new agreement, even if the EU was exercising exclusive external competence. [Our emphasis]

5.10We also draw his attention to similar Council Decisions adopted in 2014 concerning the participation of the Schengen associated countries in the European Asylum Support Office.79 On that occasion, the Government was unable to secure a recital reflecting its position that the UK’s Title V opt-in Protocol applied, but said that it would “make our position clear by sending a letter to the Presidency indicating that we were opting in and putting our opt-in position on record by means of a minute statement”.80 Our predecessors endorsed the Government’s approach, observing that the Government had been vigilant in asserting its opt-in rights where it considered there to be “JHA content”, even in the absence of a Title V legal base, and so should be equally vigilant when Title V legal bases were cited.

5.11We ask the Minister to explain why he has departed from policy and precedent by accepting the Commission’s position that the UK is automatically bound by the proposed Council Decisions and is not entitled to opt out under the terms of the Schengen opt-out Protocol or to choose not to opt in under the Title V opt-in Protocol.

The UK’s relationship with eu-LISA post-exit

5.12The proposed Council Decisions are intended to give effect to Article 37 of the 2011 eu-LISA Regulation which provides for the participation of the Schengen associated countries in the activities of the Agency. We ask the Minister:

5.13Pending the Minister’s response, the proposed Council Decisions remain under scrutiny. We draw this chapter to the attention of the Home Affairs Committee, Justice Committee and the Exiting the European Union Committee.

Full details of the documents:

(a) Proposal for a Council Decision on the signing on behalf of the European Union of the Arrangement with Norway, Iceland, Switzerland and Liechtenstein on participation by those States in the European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice: (40044), 11805/18 + ADD 1, COM(18) 607.

(b) Proposal for a Council Decision on the conclusion of the Arrangement with Norway, Iceland, Switzerland and Liechtenstein on participation by those States in the European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice: (40045), 11804/18 + ADD 1, COM(18) 606.

Previous Committee Reports

None.

75 See Article 37 of Regulation (EU) No 1077/2011 establishing eu-LISA which provides: “Under the relevant provisions of their association agreements, arrangements shall be made in order to specify, inter alia, the nature and extent of, and the detailed rules for, the participation by countries associated with the implementation, application and development of the Schengen acquis and Eurodac-related measures in the work of the Agency, including provisions on financial contributions, staff and voting rights.”

76 As the formula for calculating the annual contribution is mainly based on each participating Schengen associated country’s GDP as a proportion of the GDP of all participating countries, it may have the effect of reducing the UK’s overall contribution to eu-LISA.

77 See our Thirty-second Report agreed on 20 June 2018, our Twenty-first Report agreed on 21 March 2018, our Eleventh Report agreed on 24 January 2018, our Seventh Report agreed on 19 December 2017 and our First Report agreed on 13 November 2017.

78 Article 38 of the proposed Regulation provides for participation in eu-LISA to be open to countries associated with the Schengen rule book and Eurodac-related measures on the same basis as Article 37 of the current (2011) Regulation establishing eu-LISA.

79 See our predecessors’ Thirtieth Report agreed on 15 January 2014 and Thirty-fourth Report agreed on 5 February 2014.

80 See the letter dated 30 January 2014 from the then Immigration Minister (Mark Harper) to the Chair of the European Scrutiny Committee.



Published: 30 October 2018