JURISDICTION OF THE COURT OF JUSTICE (11356/06)
Letter from the Chairman to Joan Ryan
MP, Parliamentary Under Secretary of State, Home Office
Thank you for your letter of 15 August 2006[99]
which was considered by Sub-Committee E at its meeting on 11 October.
It would seem that the Government are at a quite preliminary stage
in their analysis and assessment of the proposal. We look forward
to receiving a detailed analysis of the risks and benefits, as
promised in your letter. It would be helpful if at that time you
could indicate whether the Government support the Commission's
proposal.
You say that the Government could support a
measure which would improve the speed of cases referred to the
ECJ. As you will be aware, the Court has itself recently produced
a Discussion Paper on the treatment of preliminary rulings in
the area of freedom, security and justice. This proposes an "emergency
preliminary ruling procedure". The Government's response
to the Discussion Paper would seem to be relevant to their consideration
of the Commission's Communication—the two documents are
clearly related. We would be grateful therefore if you would include
that response in your reply to this letter.
Finally, we note that the Constitutional Treaty
would substantially remove the complexity surrounding the jurisdiction
of the ECJ over the area of freedom, security and justice and
that the preliminary reference procedure would be available to
all courts, the ECJ jurisdiction being limited only in respect
of national police operations and national measures concerned
with the maintenance of law and order and the safeguarding of
internal security. It appears that the Government were, and presumably
still are, prepared to accept this position.
The Committee decided to retain the proposal
under scrutiny.
12 October 2006
Letter from Joan Ryan MP to the Chairman
Thank you for your letter of 12 October 2006.
I apologise for the delay in replying. Since it submitted its
initial Explanatory Memorandum on the Commission Communication
on 19 July 2006, the Government has had the opportunity to consider
the potential implications of the proposal to extend the jurisdiction
of the European Court of Justice in Title IV TEC.
The Government was informed that the opt-in
deadline under the United Kingdom and Ireland protocol was 19
October 2006. The UK did not notify the Council of a decision
to opt in by that date. Ireland did not opt-in either.
However, the Government intends to engage in
negotiations on this proposal with a view to opting in at the
end if important amendments can be secured. These are to restrict
references to the ECJ to the equivalent of our Court of Appeal
(the Court of Session in Scotland), while in parallel securing
improvements to the working of the ECJ.
We regret the absence of an impact assessment
or estimate of the potential impact of the proposal on the time
taken by the ECJ to give a preliminary ruling. The Government
recognises the difficulties in accurately estimating the potential
numbers of cases that could be involved, especially because new
Community laws under Title IV will only come into effect over
the next year, but will raise the absence of an impact assessment
during working group discussions.
The potential benefits of the Commission proposal
are that in cases raising genuinely difficult questions of interpretation
of EC law, where it is evident that the ECJ will need to give
a preliminary ruling, it would remove unnecessary stages of referrals
through the domestic court system, increasing access to justice,
potentially speeding up decision-making and reducing costs.
However, the Government is concerned that allowing
all courts to refer cases for preliminary rulings could have an
adverse impact on the speed of decision-making at the ECJ and
consequently on the length of time it takes to resolve domestic
cases. Implementation of the proposal as it stands could result
in significant numbers of referrals from lower courts. We recognise
that even a relatively modest increase in referrals in each Member
State could create large backlogs of cases at the ECJ and consequential
delays in domestic decision-making, especially if similar domestic
cases were stayed pending an ECJ preliminary ruling. Delays would
not benefit our citizens or help us meet our domestic priorities.
This is why improving the efficiency of the ECJ must accompany
any extension of its competence.
The Government recognises that if adopted, the
proposal will affect the UK whether we opt in or not, because
of the potential increase in workload caused by changes to the
rules applicable to other Member States. It considers that there
would be merit in seeking to restrict the ability to refer cases
to the Court of Appeal and above, avoiding the need for cases
raising genuinely difficult questions of EC law to be referred
to the House of Lords. It will press this point in negotiations.
The Committee requested a reply to the ECJ discussion
paper on the introduction of an emergency procedure for preliminary
rulings in the area of freedom, security and justice. The Foreign
and Commonwealth Office has provided a separate explanatory memorandum
on that document.
The government acknowledges that the Constitutional
Treaty would have introduced the same changes to jurisdiction
of the Court. The Constitutional Treaty represented a finely balanced
package that was a good overall deal for the UK, but proposals
to implement individual elements should not be considered as a
direct parallel.
12 December 2006
Letter from the Chairman to Joan Ryan
MP
Thank you for your letter of 12 December which
was considered by Sub-Committee E at its meeting on 10 January.
We are most grateful for the information you have provided.
We were interested to learn that the United
Kingdom (and also Ireland) has elected not to opt in to the proposal
but will nonetheless participate in the negotiations with the
objective of restricting any increase in the jurisdiction of the
ECJ to references from the Court of Appeal or above. We would
be interested to learn whether such a limitation could be easily
reproduced in the jurisdictions of other Member States and how
likely it is that the Government can get agreement to amendments
which would enable the United Kingdom to opt in.
We share the Government's concern about the
absence of an Impact Assessment or an estimate of the potential
impact of the proposal on the ECJ. We welcome the steps being
taken by the Government. What progress have you made? Is the UK's
position weakened becuase it has not opted in to the proposal?
We are most interested to see that parallel
to restricting references to the ECJ to the Court of Appeal the
Government had the objective of "securing improvements to
the working of the ECJ". What proposals are the Government
advancing? To what extent can efficiency be achieved within the
existing Rules of the Court? Is there a case for the Court having
autonomy to determine its own Rules?
Finally, with regard to the Court's Discussion
Paper, we have now received the Explanatory Memorandum from the
Foreign Office and have written to the Minister for Europe drawing
attention to the relationship between the Commission's Communication
and the Discussion Paper. We would be grateful for your confirmation
that your officials will be liaising with Mr Hoon's in formulating
the Government's position on these two documents.
The Committee decided to retain the Communication
under scrutiny.
11 January 2007
Letter from Joan Ryan MP to the Chairman
Thank you for your letter of 11 January 2007.
At the last working group, a number of Member
States, including the UK, suggested that this proposal should
only be considered after consideration of the Court's discussion
paper on new expedited procedures for preliminary references concerning
the area of freedom, security and justice. Working group discussions
will proceed on that basis and focus on the Court's proposals
for the immediate future. I will keep you informed of the progress
of discussions on the Commission Communication once they resume.
You asked whether the objective of restricting
any increase in the ECJ's jurisdiction to references from the
Court of Appeal or above could be reproduced in other Member States
and how likely it was that the Government could get agreement
to amendments enabling the UK to opt in. The Government recognises
that differences between court systems and appeal structures across
the European Union mean that it is not simple. We are exploring
the feasibility of our proposal with other Member States and a
number have expressed an interest.
The decision on whether or not to opt in will
also depend on the outcome of discussions on the related discussion
papers from the ECJ. The Department is working closely with the
Foreign and Commonwealth Office and I will refer you to the explanatory
memoranda deposited by the Minister for Europe for details of
the proposals the Government will be advancing in relation to
improving the accelerated procedure for cases in the area of freedom,
security and justice. In response to your question about whether
the Court should have the autonomy to determine its own Rules,
the Court is represented at the ECJ working group in the Council
and makes proposals and contributes to any discussions on amending
the Rules of the court.
30 January 2007
Letter from the Chairman to Joan Ryan
MP
Thank you for your letter of 30 January which
was considered by Sub-Committee E at its meeting on 21 February.
We were most interested to learn that the Working Group will focus
its attention on the Court's Discussion Paper and accordingly
that discussions on the Commission Communication have been deferred.
We agree with the Government that this is the better way to proceed.
We are also pleased to learn that your officials are working in
close cooperation with FCO officials in these related matters.
Thank you for your undertaking to keep us informed
of the progress of discussions on the Commission Communication
when they resume. We would be grateful if on that occasion you
would take the opportunity to respond to the Committee's request
for clarification of what progress is being made as regards the
preparation of an Impact Assessment or some other estimate of
the potential impact of the Commission's proposal. We would also
expect to learn in more detail how the Government, in addition
to restricting references to the ECJ to the Court of Appeal, intend
to secure the objective of "securing improvements to the
working of the ECJ".
The Committee decided to retain the Communication
under scrutiny.
22 February 2007
99 Correspondence with Ministers, 40th Report of Session
2006-07, HL Paper 187, pp 376-377. Back
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