Select Committee on European Union Tenth Report

CHAPTER 6: AREA OF FREEDOM, SECURITY AND JUSTICE

ii. Position post-Treaty of Lisbon

6.132.  The substantive aspects of new Article 81 (which replaces existing Article 65) are in two parts. Article 81(1) sets out the general competence in civil matters, providing that the Union shall "develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of extra-judicial decisions". It explicitly allows for the adoption of harmonising measures.

6.133.  Article 81(2) provides that the Council and the European Parliament are to adopt measures "particularly when necessary for the proper functioning of the internal market" aimed at ensuring:

• the mutual recognition and enforcement of judgments and decisions in extra-judicial cases;
• cross-border service of documents;
• compatibility of Member States' rules on jurisdiction and conflicts of law;
• cooperation in the taking of evidence;
• effective access to justice;
• elimination of obstacles to the good functioning of civil proceedings, by promoting compatibility of civil procedure rules if necessary;
• development of alternative methods of dispute resolution; and
• support for the training of the judiciary and judicial staff.

6.134.  New Article 81 no longer contains any absolute requirement that measures adopted be "necessary for the functioning of the internal market". Mrs Durand was of the view that the change to this Article was a deliberate one to separate cooperation in civil matters from the proper functioning of the internal market and enable cooperation in any case which had cross-border implications. However, she noted that in practice, it was difficult to come up with examples of measures which would be excluded under the current wording but could fall within the new wording, particularly given that the overriding consideration here is the cross-border dimension (QQ E361-362). Ms Golding agreed that the change in wording appeared to reflect the recognition that it was not always appropriate to link cross-border issues in civil and family law with the internal market (QQ E444-445).

6.135.  When asked whether this change in language was significant, many witnesses thought not. Professor Peers pointed to the continuing requirement that the measures have cross-border implications which had, he said, been a "significant constraint" in practice (Q E103). Professor Guild agreed that this competence remained limited (Q E172) and the Law Society of England and Wales concluded that the principal limitation here was the need for "cross-border implications" (Q E443).

6.136.  James Flynn QC on the other hand, referred to the "fairly significant changes of wording" in the new Article 81, highlighting the change from "necessary" to "particularly when necessary" for the functioning of the internal market. Furthermore, he pointed out that the list of areas in Article 81(2) was longer than that in the current Article 65. He suggested in conclusion that "it is a more widely framed article, and I suppose therefore one can expect slightly more ambitious proposals from the Commission" (Q E326).

6.137.  Professor Peers, on the other hand, was of the view that the revisions in new Article 81 did not do very much. He noted that although it might seem easier to adopt measures because new Article 81 specified that they might harmonise national law, in practice measures adopted on the basis of the existing power entailed the harmonisation of national law in some cases, such as rules on conflicts of law and jurisdiction. He pointed to some new areas added to the Union's powers, such as effective access to justice, but noted that these "essentially reflect measures which the Union has adopted already under the existing powers" (Q E103).

6.138.  Similarly, the Law Society of England and Wales considered the provisions on civil justice and family law to have "changed the least" and concluded that the new provisions "restate much of what is in the current Treaties". Ms Bateman pointed to new specific reference in Article 81 to, for example, alternative dispute resolution and access to justice, but suggested that this was to some extent "window dressing" given that the Mediation Directive[130] has already been adopted on the basis of existing Article 65. She saw the increased specificity as "using the opportunity … to state the principles that have been relied on and pin them down into a Treaty article as opposed to a broad understanding" (QQ E439-442).

6.139.  Ms Ellis, for the Ministry of Justice, considered that Article 65 TEC had in the past been interpreted "in quite a broad way" and she saw the changes introduced by the Lisbon treaty, which would provide a closed list of areas for cooperation in civil matters, as "actually more helpful in clarifying what this [Article] covers" (Q E493).

6.140.  The power under the current Article 65 to adopt measures of judicial cooperation in civil matters is itself potentially broad, since the list of areas of potential action given is non-exclusive. Article 81 contains a more extensive list of areas of potential action. However, these in practice are areas in which cooperation has already been undertaken under the current Article, and the list given is exhaustive.

6.141.  In lieu of the present absolute requirement that measures taken be necessary for the proper functioning of the internal market, Article 81 provides that measures may be taken "particularly when" so necessary. But, under both existing Article 65 and new Article 81, such measures are only permissible in civil measures "having cross-border implications", itself a significant limitation. Both the existing and the new articles are capable of giving rise to differences of view regarding the scope of their application in particular situations, and we doubt whether this is much affected by the changes in Article 81. This is an area where the new powers of national parliaments to police the subsidiarity principle (see Chapter 11) may be particularly important. We consider the requirement that there should be "cross-border implications" or "a cross-border dimension" further below.

POLICE AND JUDICIAL COOPERATION IN CRIMINAL MATTERS

i. Arrangements under the existing Treaties

6.142.  Title VI sets out the objective of "preventing and combating crime, organised or otherwise, in particular terrorism, trafficking in persons and offences against children, illicit drug trafficking and illicit arms trafficking, corruption and fraud".[131] To achieve this aim, Article 29 envisages:

• closer cooperation between police forces, customs authorities and other competent authorities in the Member States both directly and through Europol;[132]
• closer cooperation between judicial and other competent authorities of the Member States, including cooperation through Eurojust;[133] and
• approximation, where necessary, of rules on criminal matters in the Member States.

6.143.  In the case of police cooperation, Article 30 TEU envisages operational cooperation between law enforcement authorities in the Member States; exchange of relevant information; joint training and secondments; common evaluation of investigative techniques; and promoting cooperation through Europol by enabling it to support the preparation of investigations and ensure coordination of investigating authorities where appropriate.

6.144.  As far as criminal cooperation is concerned, Article 31 TEU sets out that this "shall include":

• facilitating cooperation between competent ministries and judicial authorities;
• facilitating extradition between Member States;
• ensuring compatibility of rules where necessary to improve cooperation;
• preventing conflicts of jurisdiction between Member States;
• adopting minimum rules defining criminal offences and penalties in the fields of organised crime, terrorism and illicit drug trafficking; and
• encouraging cooperation through Eurojust (see below) by enabling it to facilitate coordination between national prosecuting authorities and support criminal investigations in cases of serious cross-border crime and by facilitating cooperation between Eurojust and the European Judicial Network.[134]

6.145.  Mutual recognition was expressly endorsed as the cornerstone of cooperation in criminal matters at the European Council in Tampere in 1999. This was re-stated in the Hague Programme.[135]

ii. Position post-Treaty of Lisbon

6.146.  The Treaty of Lisbon makes a number of changes to the provisions on police and judicial cooperation in criminal matters and the new provisions are set out in Articles 82-89 of the TFEU. Martin Howe QC saw the new provisions on criminal law as "in some respects … a widening and in other respects … a sort of intensification of the more broadly-defined definition" (Q E238).

6.147.  Mrs Durand, of the Commission Legal Services, was clear that the new criminal law cooperation Chapter "does not increase the competences but makes them more precise". She pointed for example to the replacement of the current non-exhaustive nature of the list of competences under Article 31 by the list of specific actions permitted under the Treaties (Q E338).

6.148.  Maria Fletcher welcomed the clarification brought by the Treaty of Lisbon of the Union's competence in the field of criminal law. She pointed to the lack of clarity in the existing Treaty and the "awkward legal wrangling" that had resulted from it. Clarification was particularly important in her view given the move to QMV in this field (pp E149-E150).

a. Rules regarding mutual recognition, judicial cooperation and criminal procedure

6.149.  Article 82 sets out the Union's competence in the area of mutual recognition, judicial cooperation and criminal procedure.

6.150.  Article 82(1) sets out measures to coordinate the criminal justice systems of the Member States, including measures to lay down rules and procedures for ensuring mutual recognition of all forms of judgments and judicial decisions;[136] to prevent and settle conflicts of jurisdiction; to support the training of the judiciary; and to facilitate cooperation between Member States' judicial authorities in criminal proceedings and the enforcement of judgments.

6.151.  Ms Fletcher suggested that the Article 82(1)(a) competence to lay down measures to ensure mutual recognition was a "catch-all" provision for the implementation of the mutual recognition principle. Approximation would therefore only be justifiable if mutual recognition proved inadequate. Ms Fletcher considered that this would "ensure maximum coordination while allowing maximum respect to national traditions". However, she pointed out that the new provisions gave no guidance as to whether mutual recognition was appropriate in any given circumstances, and as a result the argument as to whether a mutual recognition or approximation approach was to be preferred was unlikely to be resolved (p E149).

6.152.  The new Article 82(1) confers a more specifically defined power to adopt measures of judicial cooperation in criminal matters in a more extensive but exhaustive list of areas. In particular, the new Article makes specific reference for the first time to measures to settle as well as prevent conflicts of jurisdiction and to measures to support the training of national judiciaries and their staff. The new Article replaces an existing power under Article 31(1)(a) to (d) which is of uncertain and controversial width, not least because the list of areas of potential action given is both vague and non-exclusive. Overall, the clarification and definition of power in this field by the Lisbon Treaty is unlikely to involve any significant expansion of jurisdiction, although it may encourage a more active role for the EU in the listed areas.

6.153.  Specific measures on criminal procedure are envisaged by Article 82(2) and are to be adopted "to the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension". Such rules must take into account the differences between the legal traditions and systems of the Member States and shall concern: mutual admissibility of evidence; the rights of individuals in criminal procedure; the rights of victims of crime; and any other aspects of criminal procedure which the Council has identified in advance by a unanimous decision with the consent of the European Parliament.

6.154.  Professor Shaw considered the new language in the Treaty to be a "huge advantage". In particular, she welcomed the inclusion of a specific reference to "cross-border" in Article 82(2), which she suggested would come as a relief to several Member States. She explained that "rather than these rather airy references on a slightly uncertain basis to Article 31 plus Article 34(2)(c) as being the legal basis, you will be able to point to a specific provision … so you will be able to identify whether it concerns mutual admissibility of evidence, the rights of individuals, the rights of victims …" (Q E24)

6.155.  Mrs Durand highlighted some particular examples of the more defined competence in Article 82(2). As regards cooperation in criminal procedure, she noted that competence was currently governed by Article 31(1)(c) TEU which provided for measures to ensure the compatibility of applicable laws within Member States. She considered this to be a "wide" definition of competence, which, she suggested, taken together with the non-exclusive nature of Article 31, meant that one could "almost say that this competence is open-ended". Under the revisions introduced by the Lisbon Treaty, however, Article 82 listed three aspects of criminal law which could be subject to harmonisation: the mutual admissibility of evidence, the rights of individuals and the rights of victims of crime. Although this list could be extended under Article 82(2)(d), any extension would require unanimity in the Council and the consent of the European Parliament (Q E338).

6.156.  Professor Dutheil de la Rochère considered that Article 82 "provides a stronger and clearer legal basis to EU acts aiming at developing mutual recognition". She pointed to new limits introduced by Article 82(2) and (3), which restricted EU legislation agreeing minimum rules to that which was necessary to facilitate mutual recognition of judgments and police and judicial cooperation in criminal matters having a cross-border dimension. Any rules "must take into account the differences between the legal traditions and systems of the Member States" (p E138).[137] Baroness Ludford MEP also highlighted the limitation of competence to measures which "facilitate mutual recognition". She considered that the change would be "marginal" (Q E388).

6.157.  Mr Straw did not consider the new power in Article 82(2) was wider than under the existing Treaty. He thought it resolved the current dispute over competence in this field (Q E495).

6.158.  Ms Bateman commented on the specific reference in Article 82(2) to the rights of individuals, which she called "the main development" in procedural criminal law. She alluded to the difficulties faced by the Commission's 2004 proposed Framework Decision on procedural rights[138] and concluded that the Law Society welcomed the express reference in the amended Treaty because it resolved the question of whether the competence to adopt measures of this nature existed. Similarly, the express reference to admissibility of evidence clarified the legal base here, a subject of some discussion during the negotiations on the European Evidence Warrant[139] (Q E428). Dr Mitsilegas also considered that the Treaty of Lisbon "addresses the current controversy regarding the existence and extent of [criminal procedural] competence" (p E167).

6.159.  When asked whether the Treaty of Lisbon extended EU competence in the area of criminal law, Professor Peers said, "there has always been a dispute over the scope of the existing criminal powers of the European Union. That has never really been settled, and therefore it is difficult to say whether the [Treaty of Lisbon] is an expansion or even potentially a narrowing of the criminal law powers of the European Union". He explained that a "vague power to facilitate cooperation" had been replaced by a "very specific power … to deal with domestic criminal, procedural issues", but only to the extent necessary to facilitate mutual recognition. He noted that "depending on whether you think the existing power is very narrow or very broad, that is either an expansion or a narrowing". Professor Peers considered the existing power to be quite broad and therefore saw the provisions of the Lisbon Treaty as a narrowing of competence (Q E92).

6.160.  The extent of the Union's existing competence in the area of criminal procedure under the existing Article 31 with its non-exhaustive list of areas of potential action is one of the matters of uncertainty and controversy already mentioned. The new Article 82(2) contains a specific and exhaustive list of three areas of potential action (concerning evidence, procedure and victims' rights). Other areas can only be added by unanimous Council decision after obtaining the European Parliament's consent.

6.161.  Action in any of these areas is for the first time expressly limited to the extent necessary to facilitate mutual recognition of judgments and decisions and police cooperation in criminal matters "having a cross-border dimension". The three specific areas listed are all areas where in practice the Union has been seeking in recent years to promote measures.

b. Approximation of substantive criminal law

6.162.  The power to approximate definitions of criminal offences and sanctions is provided in Article 83.

6.163.  Developing existing Article 31(1)(e), new Article 83(1) provides for the adoption of EU legislation establishing minimum rules concerning the definition of criminal offences and sanctions in the areas of "particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis".

6.164.  The article goes on to list the areas of crime as:

• terrorism;
• trafficking in human beings and sexual exploitation of women and children;
• illicit drug trafficking;
• illicit arms trafficking;
• money laundering;
• corruption;
• counterfeiting of means of payment;
• computer crime; and
• organised crime.

6.165.  The Council may, after obtaining the consent of the European Parliament, adopt a unanimous decision to include other areas of crime. Maria Fletcher suggested that any additional areas of crime would have to fulfil the criterion mentioned in Article 83(1) of being "areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis" (p E150).

6.166.  Dr Ladenburger, of the Commission Legal Services, stressed that the new Article 83 restricted the existing competence by the reference to the fact that each area of crime to be subject to harmonisation must "not only be particularly serious but also have a cross-border dimension". This limitation, he suggested, might be obvious, but it was not explicitly included in the existing Treaty (Q E345). However, there is no mention here of mutual recognition and it would appear that this principle is not to be one of the governing criteria in this field (p E150).

6.167.  As Mr Howe indicated, it is clear that Article 83(1) provides a more extensive list of areas in which there is a competence to adopt minimum rules defining criminal offences than its predecessor, and Professor Kaiafa-Gbandi concluded that the Lisbon Treaty "clearly expands and deepens" EU competence in the area of substantive criminal law. She also pointed to the ambiguity of the terms involved (Q E239 & p E158). This was a matter also raised by Professor Shaw, who noted that there was no "uniform, unified, universal concept of computer crime or indeed organised crime" (Q E25).

6.168.  Mrs Durand emphasised that under the existing Treaty, Article 31(1)(e) set out the competence of the Union to adopt harmonisation measures in three domains: organised crime, terrorism and illicit drug trafficking. However, Article 31(1)(e) was, she noted, governed by the non-exclusive nature of Article 31(1) and also by Article 29, which set out the objective of preventing and combating crime and provided examples of the kind of crime envisaged, introduced by the words "in particular". The list of crimes under the existing Treaty was, in her view, open-ended but under the amended Treaty there would be an exhaustive list of nine areas of crime. Again, although the list could be extended, this would require a unanimous decision of the Council following consent of the European Parliament (Q E338).

6.169.  Despite the limited formulation of the Article 31(1)(e) power to adopt legislation defining criminal offences and penalties in the areas of organised crime, terrorism and illicit drug trafficking, Professor Dutheil de la Rochère pointed out that this article had been used to adopt legislation concerning environmental offences and sexual offences against children (p E138). Dr Ladenburger suggested that "one could probably point to a harmonising act for each of the areas of crime already" (Q E345). Ms Bateman agreed: "There is a reference [in Article 83(1)] to sexual exploitation and a specific reference to money laundering or computer crime (cyber crime), but I doubt this is as significant as it might appear because the EU has already taken action in these areas anyway" (Q E428).

6.170.  Mr Geyer, for CEPS, also addressed concerns that the competence of the Union in this area had been extended. He considered that much of the new Article simply reflected action already undertaken by Member States in the Third Pillar. The new Treaty, he said, clarified and structured this area of cooperation. He concluded: "In the end, a virtually uncontrolled area which has often been labelled as an interior ministers' 'playground' is in fact constrained and tamed", and the Treaty did not necessarily extend the substance of criminal law cooperation (Q E132).

6.171.  In Mr Straw's view, the scope for action under Article 83(1) was "similar to that envisaged in the existing Treaty" and he pointed out that with the exception of measures to tackle the illegal trafficking of arms or the sexual exploitation of women, measures had already been adopted by the Council in all the areas listed (Q E495).

6.172.  Relevant measures in each of these fields include:

• terrorism: Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism[140] and proposal for a Council Framework Decision amending Framework decision 2002/475/JHA on combating terrorism;[141]
• trafficking in human beings and sexual exploitation of women and children: Council Framework Decision 2002/629/JHA of 19 July 2002 on combating trafficking in human beings[142] and Council Framework Decision 2004/68/JHA of 22 December 2003 on combating the sexual exploitation of children and child pornography; [143]
• illicit drug trafficking: Joint Action 96/750/JHA adopted by the Council on the basis of Article K.3 of the Treaty on European Union concerning the approximation of the laws and practices of the Member States of the European Union to combat drug addiction and to prevent and combat illegal drug trafficking[144] and Council Resolution 97/C 10/02 of 20 December 1996 on sentencing for serious drug-trafficking;[145]
• illicit arms trafficking: Council Directive 91/477/EEC of 18 June 1991 on the control of the acquisition and possession of weapons[146] and Proposal for a Directive of the European Parliament and of the Council amending Council Directive 91/477/EC on control of the acquisition and possession of weapons;[147]
• money laundering: Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing[148] and Regulation (EC) No 1889/2005 of the European Parliament and of the Council of 26 October 2005 on controls of cash entering or leaving the Community;[149]
• corruption: Council Framework Decision of 22 July 2003 on combating corruption in the private sector;[150]
• counterfeiting of means of payment: Council Framework Decision of 28 May 2001 on combating fraud and counterfeiting of non-cash means of payment;[151]
• computer crime: Council Framework Decision 2005/222/JHA of 24 February 2005 on attacks against information systems;[152] and
• organised crime: Joint action 1998/733/JHA adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on making it a criminal offence to participate in a criminal organisation in the Member States of the European Union.[153]

6.173.  Professor Peers was of the view that the provisions on substantive criminal law "do bring about a fair amount of clarity as compared to the existing text", a clarity which he thought necessary in light of the introduction of QMV to this area (Q E92).

6.174.  In respect of these areas of "core" criminal law, Mr Stephen Hockman QC, for the Bar Council, concluded that given that these are particularly serious crimes with a cross-border dimension, "one can certainly see why the Community would want to have competence in those situations" (Q E318).

6.175.  The new Article 83(1) contains an exhaustive list of areas of particularly serious crime with a cross-border dimension, which is on its face more extensive than the existing non-exhaustive list of three areas (organised crime, terrorism and illicit drug trafficking) in which Article 31(1)(e) currently gives the Union power to adopt minimum rules concerning the definition of criminal offences and penalties. However, the new exhaustive list reflects areas in which the Union has in practice already adopted measures under the current Article with its non-exhaustive list and may therefore be regarded as simply recognising the status quo. While the Treaty of Lisbon clarifies and defines the Union's power to harmonise criminal offences and sanctions in a manner which will preclude further expansion, there is room for argument and uncertainty about the scope of some of the offences now for the first time specifically mentioned, e.g. sexual exploitation, corruption and computer crime.

6.176.  New Article 83(2) provides an alternative ground for approximating substantive criminal law by defining criminal offences and sanctions where this "proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures". The existing Community competence for such measures derives from ECJ cases C-176/03 Environmental Damages and C-440/05 Ship-source Pollution,[154] although the Court in its judgment in the Ship-source Pollution case limited the criminal law competence of the Community to definitions of criminal offences and held that the power did not extend to the setting of sanctions. It should be recalled, as Sir David Edward pointed out, that under Cases C-176/03 and C-440/05, it was not in dispute that there was a competence at EU/EC level to define criminal offences and sanctions (pp E142-143). The dispute related to whether that competence arose under the intergovernmental Third Pillar, which requires measures to be adopted by unanimity following consultation of the European Parliament, or whether it arose under the Community Pillar, under which measures are adopted by QMV in co-decision with the European Parliament.

6.177.  Article 83(2) goes on to specify that Directives under this Article are to be adopted by the same ordinary or special legislative procedure as was followed for the adoption of the harmonisation measure in question. Thus if an Article 192 TFEU legal base were used to adopt, by QMV and co-decision, measures harmonising standards in environmental protection, then any measures defining criminal offences and sanctions in respect of a breach of those standards would also have to be adopted by QMV and co-decision.

6.178.  Mr Hockman pointed out that this kind of "regulatory" criminal law was well-known in the UK jurisdiction and was employed to ensure that people comply with regulatory limits set. He did not consider that it should cause "major practical problems" (Q E318).

6.179.  The question arises whether, if the Treaty of Lisbon enters into force, the power to define criminal offences will continue to exist under substantive TFEU policy articles, such as new Article 192 TFEU on the environment, or whether Article 83(2) is lex specialis (a specific provision of law which supersedes a more general provision).[155] In other words, does Article 83(2) supersede the more general competence that would otherwise arise, or is it intended simply to set out the procedure for exercising a continuing criminal competence under other Treaty articles of the kind recognised under the current Treaties by the ECJ in cases C-176/03 and C-440/05? The answer is important for the UK's right not to opt in, which only applies to measures adopted by the Union under Title V. An example of the latter type of procedural provision can be found in existing Article 300 TEC, which sets out the procedure for negotiating international agreements on behalf of the Community where the competence of the Community to enter into the international agreement in question is derived from some other source. Article 300 itself does not contain a power for the Community to enter into international agreements in a particular field.

6.180.  Some witnesses considered that Article 83(2) resolved the ambiguities created by the Environmental Damages and Ship-source Pollution cases. In Professor Dutheil de la Rochère's view, in a future case similar to the Environmental Damages case, Article 83(2) would be combined with new Article 192 TFEU to provide the necessary legal base for the measure (pp E138, E140). Maria Fletcher said that Article 83(2) "provides a neat solution to the rather complex situation" created by the Environmental Damages case (p E150) and Professor Shaw assumed that the competence identified in the Environmental Damages and Ship-source Pollution cases was intended to be subsumed and encompassed by Article 83(2) (Q E26). Mr Scott Crosby, of Crosby, Houben & Aps, was quite clear that "[Article 83(2)] is a specific rule … the rule of construction is that where there is a specific rule or a specific legal basis, that prevents reverting to a more general legal basis …" He concluded: "I think that Article [83(2)] is a lex specialis. It would be very difficult for the EU to justify using a more general legal base. I think it would be extremely difficult, if not impossible, to sustain an argument supporting a different legal basis before the Court of Justice" (Q E437).

6.181.  Some witnesses were more equivocal. Mr Hockman said that "probably, but perhaps not definitely" the power to adopt harmonisation measures would derive exclusively from Article 83(2) once the Treaty of Lisbon had entered into force (Q E308). Although Mr Geyer considered it arguable that new Article 83(2) was lex specialis and therefore put an end to the line of ECJ jurisprudence on the question of definitions of offences and sanctions, he pointed out that there were differences in scope between Article 83(2) and the Court's jurisprudence—notably regarding the scope of the policy areas in which the power to define offences applied—and suggested that one could argue as a result that the Court's case-law might continue to be relevant to measures in the field of environmental policy (QQ E134-136).

6.182.  Dr Mitsilegas pointed out that the article did not clarify what was meant by "essential" to ensure the effective implementation of a Union policy. He considered that future litigation on this point was likely. He was also unsure whether Article 83(2) provided a stand-alone legal base for such measures, or whether a dual legal base involving the substantive policy article would be required. For Dr Mitsilegas, if the raison d'être of the proposed criminal measure was to ensure the effective implementation of a Union policy, then the effectiveness of Union law would be undermined by the non-participation of one or more Member States. This might have implications for the UK's right to opt in (p E167). Professor Shaw went further: "It is hard to see how the UK can opt out of that since it could not opt out from the underlying harmonisation measures" (Q E26).

6.183.  Professor Peers agreed with Professor Shaw. He considered that Article 83(2) did clarify that the Union had the competence to adopt measures defining offences and sanctions in any area which had been subject to harmonisation measures, noting that under the Environmental Damages and Ship-source Pollution cases it was not clear whether this competence was limited to environmental or environment-related issues. However, he said, "it is not entirely clear to me whether the British opt-in would apply to such measures. I think it probably would not, because such measures would presumably be adopted on the other legal base … It is not absolutely clear from the wording of the Treaty". What was clear in any case was that the emergency brake provisions would apply and would be available for all Member States, including the UK (Q E99).

6.184.  Both the Commission Legal Services and the relevant Committee of the European Parliament (JURI)[156] have yet to take a position on this question. Mrs Durand told us that the Commission Legal Services "are still in the process of analysing this particular legal question" and Mr Manuel Medina Ortega MEP, a member of the JURI Committee, said "We are discussing it in the Legal Affairs Committee and we do not yet know the answer". A number of the MEPs we met expressed the personal view that it would not be appropriate for EU measures defining offences to be brought forward on a legal base other than Article 83(2). Baroness Ludford suggested that even if it were legally possible, it would be "politically unwise" (QQ E340, E405, E413).

6.185.  Mr Straw was quite clear that measures defining offences would, if the Treaty of Lisbon entered into force, have to be adopted on the basis of Article 83(2). He pointed to the presumption under EU law that a specific legal base was to be preferred to a more general one. He concluded that there was no reason to expect measures of this nature to be brought forward on any legal base other than Article 83(2) and that the opt-in would therefore always apply (QQ E499-501).

6.186.  Mr Howe concluded that, given the lack of clarity, there might be a political impetus to bind the UK into a particular measure and in that case, there might be a temptation to use the policy legal base thus circumventing the UK right not to opt in. He acknowledged that such a move would be challengeable before the ECJ, but noted that such a challenge might not be upheld by the Court (QQ E212-213).

6.187.  Different views were expressed to us on the question whether the new Article 83(2) in Title V supersedes the competence to establish minimum rules relating to criminal offences recognised, to date only in environmental contexts, by the Court in Cases C-176/03 and C-440/05. The answer is important because it is only in respect of measures proposed under Title V that the United Kingdom has a right not to opt in.

6.188.  Our view is that Article 83(2) constitutes a lex specialis, which is framed and apt to subsume and supersede any competence which would otherwise exist under articles outside Title V. Its language is the language of conferral of competence ("directives may establish minimum rules …"), not the language of procedure. Further, since the competence recognised in Cases C-176/03 and C-440/05 did not extend to the power to set minimum sanctions, Article 83(2) must in that respect go beyond procedure, and it seems implausible to suggest that the Treaty drafters intended there to be two overlapping articles conferring differing degrees of criminal competence, according to which was chosen as the base. The emergency brake introduced by Article 83(3) with express reference to Article 83(2) also seems clearly designed to apply to the exercise of criminal competence such as that recognised in Cases C-176/03 and C-440/05. The natural meaning of the language is, in short, that the competence recognised in those cases is being subsumed within Title V. On that basis the UK's right not to opt in is preserved.

6.189.  In the last analysis, even if we were to be held wrong in the views expressed about the UK's opt-in in the previous paragraphs, it is clear from the language of Article 83(3) that the United Kingdom would retain the benefit of an emergency brake, in the event that a draft directive were promoted adopting minimum rules with regard to the definition of criminal offences and sanctions outside Title V in terms the UK considered would affect fundamental aspects of its criminal justice system.

c. Eurojust and a European Public Prosecutor

6.190.  New Article 85 builds on existing Article 31(2) TEU and provides that Eurojust's mission "shall be to support and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to serious crime affecting two or more Member States or requiring a prosecution on common bases, on the basis of operations conducted and information supplied by the Member States' authorities and by Europol". The European Parliament and the Council are empowered to adopt regulations to determine Eurojust's structure, operation, field of action and tasks. Tasks may include:

• the initiation of criminal investigations as well as proposing the initiation of prosecutions;
• the coordination of such investigations and prosecutions; and
• the strengthening of judicial cooperation, including by resolution of conflicts of jurisdiction and by close cooperation with the European Judicial Network.

6.191.  There are limitations to Eurojust's powers in Article 85(2): formal acts of judicial procedure are to be carried out by competent national authorities.

6.192.  Professor Dutheil de la Rochère described this as a more "ambitious" substitute to Article 31(2). She pointed out that Eurojust's competences would be strengthened under the new Treaty, which provided an express legal base for the Union to adopt legislation allowing Eurojust to initiate criminal investigations, to coordinate investigations and prosecutions conducted by competent national authorities and to strengthen judicial cooperation (p E139). The Centre for European Reform welcomed the proposals to strengthen Eurojust (p E126) but the Freedom Association was strongly opposed to any development of Eurojust (p E153).

6.193.  Professor Chalmers was of the view that bringing Eurojust within supranational structures would make it more accountable to both national and supranational actors. It would, for the first time, be subject to the jurisdiction of the ECJ, a move which Professor Chalmers welcomed (p E127). The Law Society of England and Wales were of the view that the European Parliament was best placed to provide oversight and public scrutiny of the actions of Eurojust, which was currently outside the normal institutional framework and as a consequence was in an accountability "limbo". The Law Society therefore welcomed the changes proposed by the Treaty of Lisbon (pp E99-100).

6.194.  Dr Mitsilegas suggested that the Treaty of Lisbon might result in significant changes in the nature and powers of Eurojust (p E168). However, Professor Shaw pointed to proposals already underway to reform Eurojust[157] and suggested that "the drivers of change are outside the Treaty reform process". She concluded: "I do not think that the Reform Treaty makes it more likely that it is going to be reformed than otherwise" (QQ E42-43).

6.195.  Eurojust suggested that while the substantive provisions introduced into the TFEU by the Treaty of Lisbon were unlikely to affect to any great extent its operations, the procedural changes (the move to QMV and co-decision, the greater role for the Commission and the extended jurisdiction of the ECJ) would "have a significant impact on Eurojust's structure and operations in the medium and longer terms". In Eurojust's view, some of the amendments being discussed in the context of proposals for reform under the existing Treaties might, if not adopted now, be brought forward again once the Treaty of Lisbon had entered into force (pp E144-145).

6.196.  There are already moves to reform Eurojust and to grant it a greater role in enhancing cooperation between national authorities. New Article 85 may facilitate more ambitious developments in the longer term.

6.197.  New Article 86(1) would allow a European Public Prosecutor (EPP) to be established in order to "combat crimes affecting the financial interests of the Union". The decision to set up an EPP would be taken by the Council acting by unanimity after obtaining the consent of the European Parliament. In the absence of unanimity, an EPP could be established by at least nine Member States acting under the enhanced cooperation provisions of the Treaties.

6.198.  Article 86(2) provides that the EPP's Office shall be responsible for "investigating, prosecuting and bringing to judgment … the perpetrators of, and accomplices in, offences against the Union's financial interests". The EPP shall exercise the function of prosecutor in the competent courts of the Member States in relation to such offences.

6.199.  Article 86(4) allows the European Council, acting unanimously and after consulting the Commission and obtaining the consent of the European Parliament, to adopt a decision extending the powers of the EPP to include serious crimes having a cross-border dimension.

6.200.  Professor Shaw explained that in the absence of an EPP, those suspected of committing fraud against the Community had to be prosecuted in the national system of one of the Member States, with recourse to mutual legal assistance instruments as required (Q E47). Professor Dashwood highlighted the policy underlying the initiative for an EPP: "in some Member States at least the authorities have not been very diligent in prosecuting offences that have to do with the interests of the Union because they do not have an impact on the national interests. The purpose of [the initiative] is to ensure that there will be somebody whose job it will be to get these cases before a judge" (Q E314). However, Professor Shaw suggested that developments in EU law had removed a number of the problems which the creation of an EPP would have solved. She called for a "thorough impact assessment" to judge whether or not there was a genuine need for an EPP's Office (Q E48). Eurojust also highlighted the uncertainty surrounding the creation of an EPP, raising the question of whether Eurojust was intended to be an alternative or a precursor to the EPP. They asked whether Eurojust's success would make an EPP more or less likely (pp E144-146).

6.201.  The CER were unsure about proposals for the establishment of an EPP, considering that the case had not been adequately or clearly made out. They would instead prefer a more incremental development of Eurojust, and they pointed to the loss of valuable cooperation which would result if Eurojust were to develop into an EPP's Office and the United Kingdom (as it almost inevitably would) chose not to opt in. However, they considered that adequate safeguards existed in the Treaty—notably the need for unanimity—to protect countries which were not in favour of an EPP at the moment. The CER remained concerned, however, that the Commission had not yet understood the need to make a clear evidence-based case for an EPP (p E126).

6.202.  The Law Society of England and Wales were opposed to the creation of an EPP, considering that the case for an EPP had not been made (p E100), and the Law Society of Scotland also expressed concerns. They saw three principal problems with the proposal:

• the EPP would cut across national prosecutors and the detail of how this would be achieved in the various national legal systems was "fraught with political and other implications";
• the experience of arriving at an agreed definition of particular crimes at EU level had not been wholly successful and the question of what constituted offences against the Union's financial interests was unlikely to be an easier one to agree;
• questions surrounded the prosecutorial system to be adopted and the role of the EPP within that system (pp E164-165).

6.203.  The creation of an EPP was vehemently opposed by the Freedom Association, which saw the moves as "transparent attempts to diminish national police and justice systems" (p E153).

6.204.  Professor Kaiafa-Gbandi was concerned that the EPP, a body which had the potential to infringe upon individual rights, would be established under a legislative procedure involving a democratic deficit given the limited consent role of the European Parliament. In her view, such a move favoured the achievement of security aims at the expense of the protection of civil rights and liberties (p E161).

6.205.  Professor Dashwood emphasised that the regulation had yet to be adopted: Article 86 merely provided a basis for a future regulation to be adopted (Q E314). Maria Fletcher suggested that the creation of an EPP was controversial and was unlikely to garner unanimous support in the short to medium term (p E151). Indeed, most witnesses commenting on this development accepted that any future EPP was likely to be created under the enhanced cooperation provisions and without the participation of the United Kingdom. Professor Shaw suggested that, with the facilitated enhanced cooperation provisions included in Article 86, "it does not seem inconceivable that such an office may be established for [a] group of nine or more Member States, I assume not including the United Kingdom" (Q E44).

6.206.  Mr Kevan Norris, for the Home Office, made it clear that if an EPP were established by enhanced cooperation, that development would not affect non-participating Member States. In his view, the UK, if it chose not to participate in the creation of an EPP, it would not be obliged to execute a European Arrest Warrant[158] issued by the EPP (Q E508).

6.207.  As regards the extension of the EPP's remit, Professor Shaw suggested that the phrase "serious crimes having a cross-border dimension" might reasonably be expected to be interpreted in line with new Article 83(1) second paragraph, which listed for the purposes of that article the areas of serious crime contemplated by the phrase "serious crimes with a cross-border dimension" (Q E52).

6.208.  There was some discussion of whether a decision to extend the scope of the EPP's Office would have to be taken by unanimity of all 27 Member States or whether a decision could be taken in the context of the group of Member States participating in the enhanced cooperation. Professor Shaw suggested that it would require unanimous support from all 27 Member States (Q E53).

6.209.  Proposals for a European Public Prosecutor are not new, but this is the first time the structure for implementing this idea has been included in the Treaties. The inclusion of Article 86 in the TFEU makes it more likely that this post will one day be created. Any proposal to establish an EPP or subsequently extend its scope would require unanimity, and the UK's opt-in would apply to such a measure. In the absence of unanimity, a group of Member States could proceed by enhanced cooperation.

6.210.  If the UK were not to participate in the creation of the EPP, then it should not be affected by it. Although UK citizens living abroad could be subject to the EPP's jurisdiction, the EPP could have no jurisdiction in the UK itself. Any obligation on Member States to recognise European Arrest Warrants issued by the EPP would have to be provided for in EU legislation under Title V, and the UK's right to opt in would apply. If it did not opt in, then it would not be obliged to recognise European Arrest Warrants issued by the EPP.

d. The role of mutual recognition

6.211.  The Lisbon Treaty enshrines the principle of mutual recognition in the Treaties for the first time in the area of judicial cooperation in criminal matters. Article 67(3) provides that "The Union shall endeavour to provide a high level of security through measures to prevent and combat crime, racism and xenophobia, and through measures for the coordination and cooperation between police and judicial authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws". Article 82(1) provides that "Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions". Article 82(2) refers to the adoption of measures "To the extent necessary to facilitate mutual recognition".

6.212.  Professor Dutheil de la Rochère highlighted the terms of Article 67(3), which she considered clearly showed that the approximation of criminal laws was intended to be subsidiary to other forms of action in the criminal law field, including administrative cooperation and mutual recognition of judgments (p E138). Ms Fletcher considered that the Article 82(2) reference to the facilitation of mutual recognition emphasised the hierarchical relationship between mutual recognition and approximation of laws (p E149).

6.213.  Professor Kaiafa-Gbandi highlighted the problems surrounding the principle of mutual recognition which, although appropriate in the area of free movement of goods, was not capable of smooth transposition to the area of criminal procedural law (p E159). This was a concern shared by Dr Mitsilegas (pp E167-168).

6.214.  Professor Peers, for Statewatch, noted that there was no consensus on exactly how the principle of mutual recognition should be applied in the areas of civil and criminal law. He noted that the content of the principle differed in the mutual recognition measures which had already been adopted. In some the need for dual criminality was abolished; in others it remained; in still others Member States could choose whether to abolish the need for dual criminality. Similar divergences could be seen in the grounds for non-recognition and non-execution of the different mutual recognition measures. He suggested that the question of what mutual recognition involved, and the extent to which it required some level of harmonisation of substantive criminal law, might become increasingly important as mutual recognition measures began to be more commonly applied (Q E93).

6.215.  As regards the ambiguous content of the principle of mutual recognition, Mr Geyer pointed to a Commission tender for a study to assess this principle. The tender's terms of reference note that, "During negotiations it often becomes clear that Member States have different perceptions of the principle of mutual recognition and its compatibility with certain grounds of refusal. In the absence of a clear concept of mutual recognition and its possible limits, the answers to certain fundamental questions had to be found during the negotiations of each of the different instruments. This has led to solutions that differ depending on the instrument concerned".[159]Mr Geyer considered that mutual recognition could not work in its "pure form" and required approximation of certain rules in order to establish the mutual trust necessary for mutual recognition to take place (QQ E142-144). The Law Society of England and Wales also recognised that mutual recognition depended on a certain degree of mutual trust, which was likely to require some minimum rules across the board (Q E431-433).

6.216.  JUSTICE stressed that in order for mutual cooperation measures to be effective, judges must be able to have trust in each others' criminal justice systems. In this regard they considered the imbalance between cooperation measures facilitating prosecution and measures protecting the rights of suspects particularly unfortunate (p E154).

6.217.  Maria Fletcher concluded that mutual recognition was set to remain "the key ordering principle" of the EU's criminal justice agenda following the entry into force of the Treaty of Lisbon (p E149). Dr Mitsilegas also commented on the "elevated" status of the principle of mutual recognition (p E167). Professor Peers did not consider that the specific reference to the principle in the new Treaty would make much difference, given that judgments of the ECJ had already clearly established that mutual recognition was an essential element of legislation in this area (Q E93).

6.218.  The inclusion of an express reference to the principle of mutual recognition in the criminal field by the Treaty of Lisbon lends some support to the view that cooperation is, wherever possible, to be preferred to harmonisation. But the new Article 82(1) includes within mutual recognition the approximation of laws and regulations under Articles 82(2) and 83. In reality and in the light of the Union's activity to date in the criminal field, we doubt whether the introduction of general and unexplained references to mutual recognition will prove to have much significance.

e. Police cooperation

6.219.  Police cooperation is dealt with under new Article 87 of the Treaty. It provides that the Union is to establish police cooperation involving all Member States' competent authorities. In particular, the European Parliament and the Council may adopt measures concerning:

• the collection, storage, processing, analysis and exchange of relevant data;
• support for the training of staff and cooperation on the exchange of staff, equipment and research into crime detection; and
• common investigative techniques in relation to the detection of serious forms of organised crime.

6.220.  Article 87(3) allows the Council, acting by unanimity following consultation of the European Parliament, to establish measures concerning operational cooperation between authorities. In the absence of unanimity, an accelerator mechanism facilitates enhanced cooperation except in the case of measures which develop the Schengen acquis.

6.221.  Witnesses did not identify any significant changes here. The new provisions on police cooperation in Article 87 TFEU reflect the existing provisions in Article 30 TEU.

f. Europol

6.222.  Europol, the European Police Office, was established in 1995 by a multilateral Convention between the Member States. For some years the possibility has been canvassed of turning it into an agency of the EU, if only because of the inconvenience of having to conclude and ratify a multilateral Protocol every time an amendment to the Convention is needed, however minor.[160] On 5 January 2007 the Commission brought forward a proposal for a Decision establishing Europol as an Agency of the EU. Negotiations have been proceeding since then. A general approach has been agreed on a number of Chapters, and the Slovenian Presidency hopes that political agreement on the whole Decision can be reached by the end of June 2008, so that it can be adopted before the end of 2008. If this deadline is missed, Article 88(2) TFEU will require it to be adopted by Regulation made by co-decision with the European Parliament.

6.223.  Under the 1995 Convention Europol's remit was limited to serious forms of transnational organised crime. The Council has a power under Article 2(2), which it has exercised a number of times, to increase the list of the "serious crimes" which fall within Europol's remit—but always provided that they are organised and transnational.

6.224.  Under Article 3 of the latest draft of the Decision, the objectives of Europol would be "to support and strengthen action by the competent authorities of the Member States and their mutual cooperation in preventing and combating organised crime, terrorism and other forms of serious crime affecting two or more Member States".[161] However Article 88(1) TFEU provides: "Europol's mission shall be to support and strengthen action by the Member States' police authorities and other law enforcement services and their mutual cooperation in preventing and combating serious crime affecting two or more Member States, terrorism and forms of crime which affect a common interest covered by a Union policy."

6.225.  The position therefore is that, so long as the current negotiations result in the adoption of a Decision before the end of 2008, that will be the constitution of Europol, even though it is likely to apply only from 1 January 2010. But a year earlier, on 1 January 2009, the entry into force of the TFEU will mean that Europol's structure, operation, field of action and tasks are in future to be established by Regulations adopted by co-decision, and within the context of a "mission" set out in the Treaty whose wording, and possibly meaning, are different from the objective set out in the Decision.

6.226.  The reason for urgently continuing the current negotiations on the proposed Decision is, we assume, to prevent the European Parliament having powers of co-decision in relation to the constitution and functions of Europol as an agency. We regard it as unfortunate that the Member States should be attempting to override the effect of a provision of a Treaty they have just signed.

ISSUES OF "CROSS-BORDER"

6.227.  There are a number of references in the new Treaty to '"cross-border" as a means of limiting action at EU level in sensitive fields of civil and criminal justice. One concern which arose was whether one could separate cross-border cases from purely domestic cases or whether such a division was, in practice, artificial and impossible to maintain.

6.228.  Mrs Durand, of the Commission Legal Services, thought that the question of whether it was feasible to maintain a double system, one for cross-border action and the other at national level, was one which ought to be decided on a case-by-case basis. She considered that one could imagine certain areas where such a practice would be possible (Q E363). Ms Bateman, for the Law Society, also considered it possible to legislate in the area of cross-border civil law without this becoming part and parcel of domestic law. However, she conceded that there might need to be some "tweaking" of domestic provisions to allow the cross-border legislation to come into effect. The example she highlighted was in relation to the European Enforcement Order[162] and the European Order for Payment[163] which required amendment to the English civil procedure rules in order to give effect to the new legislation (Q E446).

6.229.  When asked whether there was any political desire in the European Parliament to use cross-border legal bases to legislate beyond cross-border cases, Michael Cashman MEP responded with an emphatic "no". Philip Bradbourn MEP, however, expressed some concern about "competence creep". Baroness Ludford accepted that there was a danger of "spillover" into domestic law but emphasised the need to limit that spillover (QQ E414-416).

6.230.  Ms Ellis, for the Ministry of Justice, accepted that in attempting to ascertain which cases had cross-border implications and which did not, there would be grey areas. Mr Straw pointed out that it would be for the ECJ to define "cross-border" but emphasised that he did not have concerns that measures adopted for cross-border cases would ultimately be applied to domestic cases (QQ E482, E492).

6.231.  We recall in this regard our own inquiry into the proposal for a European Small Claims Procedure.[164] In that case, the original Commission proposal called for a procedure which would apply to both cross-border and internal cases. However, as we noted in our Report, Member States expressed overwhelming support for the view that the ESCP should be restricted to cross-border matters and should not cover cases which were purely internal to a Member State. The final scheme was limited to cross-border cases only.

6.232.  In our Report, we set out in some detail the Commission's reasoning in that case, which was based on the qualification in existing Article 65 that measures be "necessary for the proper functioning of the internal market". The Commission considered that the existence of small claims procedures in some Member States and not in others, and the different rules, led to distortions in the functioning of the internal market. This argument was criticised by a number of our witnesses and we concluded that the Commission's broad construction of Article 65 TEC would have "unacceptably wide implications for national laws and procedures".[165]

6.233.  Attempts by the Commission to use the existing Treaty competence in respect of cross-border measures to affect purely internal procedures have been rejected by the Member States. It seems clear that there is no support for an expansive construction of "cross-border" in EU legislation at present. There is no reason why the Lisbon Treaty should add any impetus to such an expansion.

6.234.  There are, however, difficulties in defining "cross-border". As we highlighted in our Report on the ESCP, this will be a matter to be resolved on a case-by-case basis. We reiterate our conclusion that any definition of "cross-border" must be suited to the aim and requirements of the particular proposal.[166] In the event of a dispute, the ECJ will be the final arbiter, but this is another area in which the new powers of national parliaments to police the subsidiarity principle (see Chapter 11) may be particularly important.

NATIONAL SECURITY AND INTERNAL SECURITY

6.235.  Article 4(2) TEU provides that "national security remains the sole responsibility of each Member State". While there is nothing novel about this, it has not previously been spelt out in the Treaties.

6.236.  It has not therefore been possible for the ECJ to interpret the meaning of the expression. We asked the Minister for Europe whether there was a danger that, in the unlikely event that it became necessary for the ECJ to rule on its interpretation, it might be given a narrower meaning than the Government might have wished. Mr Murphy thought that the ECJ would give full weight to the position of Member States regarding their own national security. He pointed to the new Article 73 TFEU which allowed Member States "to organise between themselves and under their responsibility such forms of cooperation and coordination as they deem appropriate between the competent authorities of their administrations responsible for safeguarding national security" (pp F1-2). We would have thought it hardly needed a Treaty provision to make this clear, given that "national security remains the sole responsibility of each Member State".

6.237.  There are at present a number of references in the Treaties to "internal security". In the amended Treaties these include Article 72 TFEU which contains a provision reading: "This Title 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." The Title there referred to is Title V, "Area of Freedom, Security and Justice". The existing TEU already contains in Article 33 a provision in the same terms relating to Title VI; and the TEC likewise in Article 64 relating to Title IV.

6.238.  Title V TFEU also contains a new provision, Article 71, setting up a standing committee within the Council "in order to ensure that operational cooperation on internal security is promoted and strengthened within the Union." There are a number of other Treaty provisions referring to "internal security". Mr Murphy explained that, like "national security", "internal security" had not been defined either in legislation or by the ECJ, but that a minimalist interpretation would be that "internal security relates to matters of public order within a Member State, and in particular matters falling within the responsibility of the police authorities" (p F1).

6.239.  On 12 July 2007 Mr Murphy gave oral evidence to this Committee on the June 2007 European Council. Discussing the distinction between national security and internal security, he said that the latter phrase was previously in common use but was in his view open to misunderstanding, since it had come to describe "two different but not mutually exclusive things. Internal security was the internal security within Member States but also internal security within the European Union, and we wished to move away from the possibility of misunderstanding, which is why we have now moved towards the description of national security, and the fact that it is for the first time explicit in the terms of this Treaty".[167]

6.240.  Mr Murphy told us that he now judged that the new TEU Articles 4 and 5 provided sufficient protection of the interests of the United Kingdom in this area. But he believed that further work would be necessary to define the precise meaning and scope of "internal security" in the implementation of the Treaty, notably in the establishment of the Article 71 committee. Its detailed remit had yet to be established, but "it will include promoting and strengthening operational cooperation in areas such as policing, data sharing, counter-terrorism and drugs" (pp F1-2).

6.241.  We appreciate that it is not easy to define precisely the meanings of either "national security" or "internal security", and that there may be some danger in defining them too narrowly. It would however be useful to have a list, though not an exhaustive one, of matters which fall within each of these two concepts. The Government may be able to give examples of such matters in the course of the debates on the Bill.

6.242.  It may be significant that the Treaties for the first time make clear that national security is a matter solely for the Member States.

6.243.  It is unfortunate that a number of provisions of the Treaties refer to "internal security" when the meaning of that expression is unclear.

The UK opt-ins

6.244.  When the decision was taken in the Amsterdam Treaty to transfer certain aspects of FSJ from the Third Pillar into the First Pillar, the UK, together with Ireland, negotiated an opt-in arrangement which allowed it to control its level of participation in this area.[168] The merging of the pillars has focussed attention on the UK opt-ins.

THE CURRENT POSITION AS REGARDS THE UK'S RIGHT TO OPT IN

6.245.  At present, in the Third Pillar (Title VI TEU) the unanimity requirement in criminal justice and policing matters obviates the need for any opt-in in this area. Any Member State may veto a proposal, which prevents the adoption of the measure.[169] As regards Title IV TEC, the UK has two separate opt-in protocols which regulate UK participation in such measures.

i. The current Title IV Protocol

6.246.  The Protocol on the position of the UK and Ireland (the Title IV Protocol) deals with the UK's right to participate in measures under Title IV. Article 1 establishes the "default" position—the UK's blanket opt-out from the whole of the Title IV area. Article 2 provides that measures adopted under Title IV in which the UK does not participate shall not apply to the UK.

6.247.  Article 3 of the Protocol permits the UK to choose, on a case-by-case basis, whether to participate in legislation proposed by the Commission under Title IV. The UK has three months from the presentation of the proposal by the Commission to notify the Council of its intention to participate. If the UK notifies its intention to participate, it is entitled to do so—other Member States cannot oppose the UK's participation in the measure.[170] In the event that the UK opts in and then opposes the adoption of the measure and a blocking minority is achieved, under Article 3(2) the Council can decide to exclude the UK in order to adopt the measure. In that case, the agreed measure will bind other Member States, including those in the original blocking minority, but it will not bind the UK.

6.248.  Under Article 4 of the Protocol, the UK may apply to participate in a Title IV measure following its agreement and adoption by the Council. In this case, it must notify the Commission, which takes a decision on the UK request and on any specific arrangements deemed necessary to allow the UK to adhere to the measure. An opt-in post-adoption of the measure is on a "take it or leave it" basis: there is no right for the UK to re-negotiate the measure (Q E37).

6.249.  Professor Peers thought that, currently, the UK had complete freedom to choose whether to participate in or remain outside proposals which fell under the Title IV Protocol (Q E90). However, this view was not universally accepted (Q E298). In particular, Mrs Durand stressed that the legal situation was "not very clear as to whether, once the UK had opted in to a measure [which has been enacted], it could opt out of an amendment to the measure" (Q E364). Kevan Norris, of the Home Office, also alluded to the lack of clarity surrounding the question of amendments but emphasised that the Government considered that there was freedom to decide whether or not to participate in a later amending measure (Q E510).

ii. The current Schengen Protocol

6.250.  The Schengen Protocol integrates the Schengen acquis into the framework of the European Union. The Schengen acquis comprises agreements covering the abolition of checks at common borders as well as related cooperation and coordination between the police and the judicial authorities. When the Protocol was agreed in 1997, the UK (and Ireland) did not participate in any aspect of the Schengen acquis. Accordingly, the Protocol's Article 4 provides that the UK (and Ireland) are not bound by the Schengen acquis and may at any time "request to take part in some or all of the provisions of the acquis". The Council decides on such a request by unanimity.

6.251.  Article 5 sets out provisions on "Schengen building measures", i.e. proposals and initiatives to build upon the Schengen acquis. The UK may, "within a reasonable period", indicate to the Council its desire to take part in such measures. Where it does not do so, the participating Schengen States may proceed without the UK.

6.252.  Following the incorporation of the Schengen acquis into the EU framework, the UK requested the right to participate in some aspects of Schengen. The Council approved the request and a Decision was adopted in 2000.[171] The UK now participates in police and judicial cooperation in criminal matters, the fight against drugs and the Schengen Information System (SIS).

6.253.  Professor Peers drew attention to the fact that under the current Schengen Protocol, the UK is obliged to participate in measures which build upon parts of the Schengen acquis into which it has previously opted (Q E90). Under Article 8(2) of the Decision the UK is "deemed irrevocably to have notified the … Council under Article 5 of the Schengen Protocol that it wishes to take part in all proposals and initiatives which build upon" aspects of the Schengen acquis into which it has opted.

6.254.  Similarly, Professor Peers explained that the Schengen Protocol also had a "lock-out" rule, which allowed the other Member States to refuse the UK permission to participate in measures which built upon measures into which it had not opted (Q E90). In recent cases before the ECJ,[172] the UK challenged the refusal of the other Member States to allow it to join measures establishing a borders agency (Frontex)[173] and setting biometric standards for passports.[174] The Court's judgment was handed down in December 2007 and it held that where the UK had not opted in to the underlying Schengen acquis, it could not rely on Article 5 of the Protocol to assert a right to participate in Schengen-building measures.

6.255.  As Professor Shaw clarified, the issue in these cases did not concern the extent to which the UK can be forced to participate in a measure in which it does not want to take part but the extent to which it is blocked from participating in a measure in which it does want to take part (Q E18).

THE POSITION UNDER THE TREATY OF LISBON

6.256.  Under the Treaty of Lisbon, the UK has secured the right to choose whether to opt in to all proposed measures in the field of freedom, security and justice. There are also clarifications and changes to the Protocols as regards the UK right to remain outside a measure. Professor Guild said that the position regarding UK participation in the area of freedom, security and justice has become more, rather than less, flexible under the new arrangements (Q E122). This view was accepted by many of our witnesses (QQ E364, E510).

6.257.  The opt-ins in the amended FSJ and Schengen Protocols will together apply to the whole area of FSJ, including those matters which currently fall within the Third Pillar and require unanimity. The right given to the UK to choose whether or not to opt in is, in certain respects discussed below, more flexible than the existing opt-in arrangements.

i. The amended FSJ Protocol

6.258.  The Protocol on the position of the UK and Ireland is renamed "The Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice" ("the FSJ Protocol"). The terms of the Protocol remain the same with two important differences which relate to the scope of the opt-in and the repercussions of non-participation in an amending measure.

a. Scope of the opt-in

6.259.  The Protocol has been extended to cover all aspects of FSJ under what will be the new Title V TFEU. Ms Bateman saw this as a "significant development" (Q E453). As Professor Dashwood and Mrs Durand indicated, the Protocol will have a broader scope than at present (QQ E298, E364).

6.260.  New Article 4a of the Protocol concerns measures amending existing measures in new Title V in which the United Kingdom participates and it confirms the right of the United Kingdom to choose whether to participate in proposed amending measures. While, as highlighted above, it has always been the position of the UK that it was not bound under the Title IV Protocol to participate in the amendment of measures into which it had previously opted, the matter is now clarified (Q E364).

6.261.  The extension of the Protocol to the entire area of freedom, security and justice will allow the UK to decide, on an individual basis, whether to opt in to any proposed measure in the field. The inclusion of Article 4a confirming that the opt-in provisions will apply also to amending measures is a welcome clarification.

b. Repercussions of non-participation in an amending measure

6.262.  Article 4a(2) of the Protocol provides that where the Council determines that non-participation by the UK in the amending measure makes the existing measure "inoperable" for other Member States or the Union, it may, by qualified majority, decide to "urge" the UK to indicate its desire to participate within two months. Where the UK chooses not to participate, the existing measure shall cease to apply to the UK at the expiry of the two month notification period or at the entry into force of the amending measure, whichever is the later. In short, this procedure allows other Member States to eject the UK from participation in a measure where its refusal to participate in an amending measure renders the system "inoperable".

6.263.  Article 4a(3) of the Protocol provides that the Council may, by qualified majority, determine that the UK shall bear the "direct financial consequences, if any, necessarily and unavoidably incurred" as a result of the cessation of its participation in the existing measure.

6.264.  As Professor Peers highlighted, the UK will, for the first time in the context of the FSJ Protocol, be put under pressure to participate in a measure, although, as witnesses stressed, the UK cannot be forced to participate (QQ E88, E97 & pp E151-152). He pointed out that the threat of ejection "would place greater pressure on [the UK] and would change the whole negotiating dynamics" (Q E98). In the case of the European Arrest Warrant (EAW), for example, if the UK refused to participate in an amending measure and the Council considered that the EAW would become inoperable if the United Kingdom were to continue participating in the system on the basis of the existing measure only, the Council could decide to eject the UK from the EAW mechanism. For this reason, Baroness Ludford MEP referred to the renegotiated opt-in as a "double-edged sword": if the UK chose to opt out of an amendment, it could be "pushed out" of existing measures (Q E390). Maria Fletcher hoped that all sides would "show political restraint in the use of these provisions to prevent a too significant fragmentation of EU criminal justice" (p E152).

6.265.  As both Maria Fletcher and Professor Peers pointed out, a Council decision that a measure had become "inoperable" would be open to challenge before the ECJ (p E152, Q E90). Professor Peers expected Article 4a(2) to be construed narrowly: the continued application of existing, rather than new, rules might make the operation of a measure more complex, but for a measure to be "inoperable" Professor Peers considered some sort of technical inoperability, which would mean the system would be unable to function without the UK's participation in the amending measure, would be required (Q E90). This was a view shared by Baroness Ludford, who envisaged a proposed measure to move to a "SIS III" database, where the UK would either have to move to a higher level along with the rest of the Member States or withdraw from SIS altogether (Q E390). Professor Dashwood also suggested that the word "inoperable" was intended to set a high threshold (Q E298) and Mr Straw was quite clear that in the Government's view, "inoperable" was "a high test" (Q E517).

6.266.  Professor Peers raised the interesting possibility that the UK itself might argue that a measure would become "inoperable" following an amendment in which the UK does not participate, in order to be ejected from an existing measure in which it no longer wished to participate (Q E98).

6.267.  The amended FSJ Protocol differs significantly from its predecessor insofar as it permits the other Member States to eject the United Kingdom from an existing measure where it declines to participate in an amending measure. However, the right to eject the UK is subject to an important restriction: the UK's non-participation in the amending measure must render the system "inoperable". This is intended to set a high threshold and we would expect that some form of technical inoperability would, in practice, be required. We expect such cases to be rare.

6.268.  In terms of the sorts of costs that might be "necessarily and unavoidably incurred" in terms of Article 4a, Professor Shaw suggested that where an EU database had to be redesigned in order to prevent it from accessing directly into the UK database, the UK might be expected to pay the costs (Q E21). The Centre for European Reform saw little danger to the UK here (p E126). In relation to a similar provision in the Protocol on Transitional Provisions (discussed below), Martin Howe QC agreed that the words "necessarily and unavoidably" introduced quite a restriction on the costs that the UK would be expected to pay (Q E273).

6.269.  The test for requiring the UK to bear costs of non-participation is a strict one: costs must be "necessarily and unavoidably" incurred as a "direct" consequence of the cessation of UK participation.

c. Views on the extended opt-in

6.270.  The CER saw the extended opt-in as the least bad option which reflected political and legal realities (p E126). However, Andrew Duff MEP was critical of the derogations negotiated by the UK (p E135). His view was shared by Baroness Ludford who considered it "very sad, and unnecessary" that the UK had negotiated an extended opt-in (Q E390). Professor Wallace regretted the Government's negotiation of a general opt-out here, concluding that there was a risk of "a good deal of legal complexity and confusion, which is not necessarily in the interests of British citizens and residents" (Q S191). At the other end of the spectrum, Michael Cashman MEP called it a "brilliant position to have bargained" (Q E389). The Brethren Christian Fellowship was also in favour of the retention and expansion of the opt-in Protocol (p E125).

6.271.  JUSTICE saw the UK opt-in as a retention of "an enhanced safeguard for national sovereignty in the light of the loss of the requirement of unanimity in Council". They "cautiously" welcomed the UK opt-in, considering that it was necessary to retain a safeguard in the field of criminal law and policing. They regarded the opt-in as particularly important in relation to Article 83(2) on the definition of criminal offences and sanctions (p E155).

6.272.  Sir David Edward accepted that with an EU of 27 Member States "some degree of variable geometry is almost inevitable". However, he was concerned that a combination of opt-outs and enhanced cooperation would be "bound to impair both prompt and efficient action and also the transparency, objectivity and impartiality of the system". He highlighted the problems that might in the future be faced by a local lawyer asked at short notice to represent a person affected by, or who might be entitled to rely on, an EU FSJ measure in attempting to understand what were the applicable provisions. Nonetheless, Sir David concluded that given the special characteristics of our systems of criminal justice, it might be safer that the UK had secured an opt-out here (pp E143-144).

6.273.  Professor Guild alluded to a disadvantage in trading a veto, under unanimity, for an opt-out under QMV. In her view, the right to opt out entirely from a measure would put the UK in a very different position in terms of its ability to participate generally in the field compared with the conclusion of a framework decision, which would perhaps be less ambitious than a directive, under unanimity. She said that where there was not unanimous agreement in the Council, it might be better to have a system under which negotiations took longer to achieve a consensus, rather than to permit a smaller group to go ahead on their own. Lack of consensus, in her view, meant that there were "profound difficulties" with the proposed legislation for some Member States. She concluded: "It seems to me … better to take a bit more time and to try to deal with the problems and resolve them and to wind up with legislation which all parties can agree rather than to leave some Member States behind" (QQ E123-125). Mr Howe also saw disadvantages in an opt-out rather than a veto: under the new Treaty, the UK would not be able to participate in criminal law measures "except by virtue of taking on board the whole shooting-match of measures which are fully, legally effective as part of the Community legal order" (Q E211).

6.274.  The extension of the opt-in arrangements puts the UK (and Ireland) in a special position. For those who support full UK participation in EU FSJ measures, this is likely to be viewed as an undesirable development. Those who have fears regarding the effect of a move to QMV in this area on national sovereignty, on the other hand, can see the opt-in as providing some reassurance. An extended right not to opt in for the UK is different from a veto under unanimity and, where the UK chooses not to opt in, other Member States will be able to adopt measures without UK participation. This may change the negotiating dynamic in the Council—but see paragraph 6.292 below.

6.275.  At present there is no systematic parliamentary scrutiny of UK decisions on whether or not to opt in to particular FSJ measures. The House of Commons European Scrutiny Committee has recently drawn attention to this, in the context of the Lisbon Treaty.[175] We do so too, and we intend to give the matter further consideration.

ii. The amended Schengen Protocol

a. Scope of the opt-in

6.276.  Like the amended FSJ Protocol, the Schengen Protocol is amended to permit the UK (and Ireland) complete freedom to decide whether to participate in Schengen measures. Article 5(2) of the amended Schengen Protocol provides additional flexibility for the UK to decide not to participate in measures which build upon aspects of the Schengen acquis in which it participates. In such cases, there is a presumption that the UK will participate, but Article 5(2) allows the UK to notify the Council within three months that it does not wish to take part in the Schengen-building measure.

6.277.  As Professor Peers pointed out, this is a significant change to the Protocol which operates to the UK's advantage: the UK will, from the entry into force of the Treaty of Lisbon, have full freedom to opt in or remain outside provisions building upon aspects of the Schengen acquis in which it participates; this is more flexible for the UK than the present arrangement (QQ E88, E90, also Dashwood and Durand QQ E306-307, E364).

6.278.  The amended Schengen Protocol does not address the question of the right of the UK to opt in to Schengen-building measures where it has not opted in to the underlying Schengen acquis, which was the subject of ECJ cases C-77/05 and C-137/05 discussed above. Mrs Durand explained that Article 4 of the Protocol remained unchanged and so the UK's right to opt in in these circumstances was unaffected by the Treaty of Lisbon revisions (Q E365). Professor Peers emphasised that, while the new Treaty made it easier to opt out of measures the UK did not want, it did not make it easier to opt into measures the UK did want (QQ E89, E91).

6.279.  Like the FSJ Protocol, the Schengen Protocol increases the UK's flexibility to choose whether to participate in Schengen-related measures. It is clear that the UK will no longer be bound, as it is at present, to take part in Schengen-building measures where it participates in the underlying acquis. However, nothing in the Lisbon Treaty changes the position as regards the UK's right to opt in to Schengen-building measures where it has not opted in to the underlying acquis. In such cases, the Council may continue to refuse the UK's request to participate.

b. Repercussions of non-participation in an amending measure

6.280.  Amendments to the Schengen Protocol reflect new Article 4a of the FSJ Protocol. New Article 5(3) provides that where the UK has notified the Council that it does not wish to participate in a Schengen-building measure, any previous decision taken by the Council to allow UK participation in aspects of Schengen shall "cease to apply to the extent considered necessary by the Council and under the conditions to be determined in a decision of the Council". The Council will act by qualified majority on a proposal from the Commission. Article 5(3) provides some guidance to the Council: it must seek to retain the widest possible measure of participation of the UK without seriously affecting the practical operability of the various parts of the Schengen acquis, while respecting their coherence. A mechanism is provided in Article 5(4) to allow the issue to be discussed by the European Council where the Council fails to adopt a decision. If the European Council fails to take a decision, then in the event that the Schengen-building measure is adopted, the Commission shall decide under Article 5(5) of the Protocol which aspects of the underlying Schengen acquis, if any, will cease to apply to the UK and under what conditions.

6.281.  While the Protocol itself does not contain an article along the lines of Article 4a(3) of the FSJ Protocol on costs, a similar mechanism is provided in the Declarations. Declaration 47 explains that the conditions to be determined under Article 5(3), 5(4) or 5(5) of the Schengen Protocol in a Decision on the application of parts of the underlying Schengen acquis to the UK may determine that the UK "shall bear the direct financial consequences, if any, necessarily and unavoidably incurred as a result of the cessation of its participation in some or all of the acquis".

6.282.  Article 5(3) of the Schengen Protocol is an important new addition as it provides for a mechanism whereby the UK can be ejected from participation in parts of the underlying Schengen acquis which it has accepted if it declines to participate in a Schengen-building measure. This is the understandable quid pro quo of the UK's new freedom to choose not to participate in such measures. Again, we expect such cases to be rare in practice.

6.283.  In order for costs to be imposed on the UK as a result of the cessation of its participation, such costs must be "direct financial consequences" which are "necessarily and unavoidably incurred". This is a strict test.

iii. The effectiveness of the opt-ins

a. Will the opt-ins be effective in practice?

6.284.  Professor Wallace thought that the impact of the Treaty in the area of FSJ was "less extensive than would otherwise have been the case" without the extension of the opt-out provisions under the FSJ Protocol (Q S192).

6.285.  As to whether the opt-ins would be effective in law, Philip Bradbourn MEP expressed some concerns. He suggested that the Protocols might "not stand the strength of judgments down the line" (Q E397). Professor Guild, on the other hand, had no doubt that the opt-ins would be effective, looking at the UK's exercise of its existing opt-out arrangements (QQ E154-156). Ms Bateman considered that the opt-in option secured by the UK "strongly protects the UK interest" and she concluded: "the opt-in arrangements do protect national interest and safeguard the legal systems in the UK, and obviously the particular common law interest or focus that goes with it" (Q E453).

6.286.  The UK has enjoyed opt-in arrangements in the FSJ area since the conclusion of the Amsterdam Treaty in 1997 and there has been no challenge to the UK's right to choose to remain outside proposed measures. The only point of contention which has arisen related to the UK's ability to participate in two Schengen-building measures in areas where it did not participate in the underlying acquis. The restriction on UK participation in these circumstances exists under the current Protocol and has not changed under the Lisbon Treaty.

6.287.  Under the FSJ and Schengen Protocols the UK cannot be forced to participate in an FSJ measure against its will. If the UK takes the view that a proposed measure has features which cannot be accommodated within a Common Law system or are otherwise unsuitable for application to the UK, the UK is free both to refuse to opt in and, if it wishes, to play no further part at all in relation to the proposal. However, as outlined above, a decision by the UK not to participate in an amending measure or a Schengen-building measure may have particular consequences for the UK. In a case where the UK is threatened with ejection from an existing measure, the Government will have to make a judgment as to which course of action best serves the UK interest. As we have already said, we do not expect such cases to arise frequently.

b. Not opting in and participating in negotiations

6.288.  For Professor Shaw, the main disadvantage of choosing not to opt in is the loss of the ability to participate in the shaping of the measure. However, she accepted that there might be a "gentlemen's agreement" among Member States to allow the UK to participate in some negotiations without first opting in (QQ E34-36). Recent experience in relation to the Rome I Regulation[176] negotiations has shown that a decision not to opt in may not preclude UK involvement.

6.289.  Diana Wallis MEP commented on the Rome I case. Here, the UK decided not to opt in but took part in discussions with a view to encouraging Member States to agree a measure into which the UK might later opt. Ms Wallis noted that this was a tempting option, but emphasised that there were negative aspects to this: the UK had no right to vote in the Council and its negotiating position was considerably weakened. She suggested that the patience of other Member States might wear thin and that such recourse to the Protocol was counter-productive in the long term, concluding that "you can pull that trick once". She also suggested that opting in to a measure once it had already been agreed sent a negative message to citizens in the UK given that it would have to opt in to a measure agreed by other Member States without full UK participation (pp E85-86 & QQ E394-395).

6.290.  The Minister did not agree that this strategy was a one-off. He pointed to the specific circumstances of the Rome I case which made the UK's approach particularly effective. First, the UK position had considerable weight because of the strength of its financial markets and the volume of financial business that took place in the UK. Second, the UK had a serious problem with one of the proposals in the draft Regulation which made it impossible for the UK to opt in at the outset. He concluded that there might be other occasions where Member States had a strong interest in trying to secure UK involvement (Q E519).

6.291.  The UK's approach in the case of the Rome I Regulation has been shown to have been effective. It seems likely that the UK will now opt into the agreed measure, subject to the results of a consultation exercise to be carried out later this year.

6.292.  The apparent success of the UK approach to the Rome I negotiations should not be regarded as a one-off or non-repeatable occurrence. It seems likely that there will be further cases where the other Member States have a clear interest in securing UK involvement and will be prepared and willing for the UK to take an active part in negotiations into which the UK has for the time being not opted.

c. Can the UK opt in and then opt back out again?

6.293.  It was accepted by most witnesses that the UK is not permitted, under either Protocol, to opt in to a measure and then opt back out again should it decide that the direction of negotiations is not to its liking. A decision to opt in is irreversible (p E135, QQ E34, E222). JUSTICE highlighted that the result of this might be that the UK ended up being bound by legislation with which, as a result of amendments during negotiations, it did not fully agree; decisions on whether to opt in would therefore have to be taken "very carefully" (p E156).

6.294.  Professor Shaw suggested that, although an opt-in decision could not be reversed, where the UK had opted in to a proposal but during the course of the negotiations the measure "changes dramatically" the UK might not be bound by its decision to opt in. It could argue that it had in fact opted in to something else (Q E39). Mr Howe was of the view that if the UK were to opt in to something which were subsequently amended to cause the UK problems, the UK would nonetheless be "stuck with it". However, he did accept that there might be a possible argument here (QQ E222-224).

6.295.  We put this possibility to the Commission and to the Government. Both denied that such an approach was permitted under the Protocols. Mrs Durand considered that an opt-in decision was "for better or for worse" and that once the UK had decided to opt in, it had to accept the result of the negotiations (Q E366). Kevan Norris, for the Home Office, explained that "If we opt in to a proposal, we cannot then opt out during the negotiating procedure. So having opted in we are then like all other Member States and if that measure is then adopted we are bound by it" (Q E515).

6.296.  The suggestion that the UK, having opted in to a proposal, could argue that its opt-in did not extend to fundamental amendments of the proposal during negotiations raises an interesting legal question. But the question is unlikely to arise since the Government appear to accept that this would not be possible. In some areas of criminal law and policing, a dramatic change during negotiations may permit the UK to use the emergency brake to halt a measure's progress. In other cases, the UK may end up bound by a measure with which it does not fully agree; this is the nature of QMV. The risk of this situation arising will presumably be considered before the UK elects to opt in.

d. How the UK uses its opt-in

6.297.  Mr Straw indicated that the UK's policy in relation to opting in was unlikely to change following the entry into force of the Lisbon Treaty. Thus the UK wished to cooperate in areas of justice and home affairs but retain control of its own borders (Q E509).

6.298.  Brendan Donnelly noted that the UK had made good use of its opt-out in areas such as legal migration and visas and borders but had opted in without exception to asylum and civil law matters. He suggested that on this basis, it might have been possible for the Government to negotiate a more limited opt-in protocol, covering only those areas where the UK would in fact wish to consider remaining outside EU measures (p E133). This was also seen as an issue by the NSPCC and Save the Children, who were concerned that the UK would lose negotiating power in the area of child rights in FSJ because the existence of the opt-in could lead other Member States to conclude that the UK was not fully engaged in this area (Q G18). This was a point alluded to by Professor Guild, who asked whether it was worth the UK diminishing its negotiating capacity by seeking such a wide opt-out when primarily it wanted to be in (Q E122).

6.299.  Diana Wallis MEP suggested that the UK had recently made "near-systematic" use of the Protocol by declining to opt in to three important instruments in the area of civil law (Rome I on the law applicable to contractual obligations; a proposed Regulation on maintenance obligations;[177] and Rome III on applicable law on divorce) on the basis that it might opt in once the measure had been agreed. She suggested that this represented a political trend which one could expect to continue and indeed expand into other policy areas (pp E84-85). The Law Society of Scotland supported the UK's decision to remain outside recent proposals on, for example, Rome III. However, they highlighted the danger of isolation which arose from repeated decisions not to participate in a particular area of EU cooperation. They commended the UK practice of continuing to be involved in discussions during the evolution of the measure, even where the UK had decided not to opt in (pp E164, E166).

6.300.  Professor Chalmers explained the choice which faced the UK in deciding whether to opt into a measure: "[The UK] will be faced by a Commission proposal with possibly some supranational qualities and some substantive provisions with which it is not comfortable, but which also carries some benefits. It can now choose to secure legislation that maximises the latter or it can refuse to participate". Experience in relation to use of the opt-in in existing Title IV was that the UK had generally adopted the former strategy (p E127). Professor Peers considered that, provided the UK made effective use of its opt-in to stay away from proposals which would impact on the British common law system, there was no reason why the integrity of the common law system would be threatened under the new Treaty (Q E94).

6.301.  Mr Palmer thought that the UK was likely to opt in to most of the justice-related agenda. Professor Chalmers agreed, although he suspected the UK would choose not to participate in measures relating to minimum rules and harmonisation of criminal law (Q S46). The CER were of the view that the UK was likely to opt in to most measures tackling terrorism, crime and illegal immigration. However, the Government would probably steer clear of measures to harmonise criminal procedure (p E126). This was a view shared by Professor Peers, though he warned that, although opting out of such measures would prevent a "threat" to the common law from the EU framework and the ECJ, this would not remove the risk that jurisprudence of the Strasbourg Court, under the Council of Europe's European Convention on Human Rights, would have an impact on British law and procedure in this area (Q E95).

6.302.  Dr Mitsilegas predicted, on the basis of the UK's conduct in Third Pillar negotiations, that the UK would probably opt in to legislation amending the European Arrest Warrant, but would choose not to participate in legislation on minimum rights for suspects in criminal proceedings. This could, in his view, lead to complex legal questions, given that the EAW legislation might depend on adequate minimum standards being guaranteed across the EU, and the UK's failure to participate could lead to other Member States concluding that the relevant standards were not in place here. The situation could be further complicated should the Commission choose to put forward the proposals as a package, or in the event of important cross-references to the minimum rights legislation in the EAW Directive. Dr Mitsilegas suggested that "the more integrated the 'area of freedom, security and justice' becomes, the harder it may prove for the UK to sustain its 'pick-and-choose' approach to EU home affairs" (p E169). This was a point also raised by the Law Societies (p E100). The Law Society of Scotland said, "It is essential that increasingly extensive measures being taken to increase the powers of police and prosecution authorities cross-border must be counterbalanced by measures applying at least basic minimum standards for suspects and the accused in criminal cases" (p E169). Ms Bateman expressed a concern that the Government would choose to opt in to "more prosecution-focused and investigatory powers rather than those measures that assist in terms of procedural safeguards for individuals or other matters in that field" (Q E453).

6.303.  The CER and JUSTICE agreed that the United Kingdom's partial participation could be problematic. However, as the CER pointed out, given the generally high standards in the UK as regards defendants' rights, pressure from other Member States on the UK to opt in to such measures was unlikely to go as far as threatening to eject the UK from security-based measures such as the EAW (pp E126, E156).

6.304.  It is not clear to what extent the Government will avail itself of its right to remain outside measures in the existing Title VI TEU once they are moved into new Title V TFEU. Mr Straw has suggested that the UK would seek cooperation to the maximum extent consistent with national interests and witnesses generally agreed that the UK was likely to participate in coercive measures in the area of criminal law and policing (Q E523). However, as outlined above, it has been suggested that UK participation in rights-based measures is less likely.

6.305.  It is important to maintain a proper balance between liberty and security. We share witnesses' concerns that a pick-and-choose approach by the UK might result in the UK participating in the bulk of coercive security-based measures while eschewing rights-based measures and urge the Government to take a balanced approach to participation in this area.

6.306.  We note the possibility that the Commission may propose coercive and rights-based measures in one instrument thus requiring the UK, if it wishes to participate in the coercive measure, to participate in the rights-based measures as well. Packaging measures in this way is unlikely to be possible in most cases but it may be feasible in some areas and would require the United Kingdom to take a view on whether this was desirable and acceptable.

e. The opt-in decision and devolved administrations

6.307.  The Law Society of Scotland highlighted the specific problems that the opt-in could cause for devolved administrations as the UK has a single right to opt in or not. They noted that civil and family law and criminal justice are devolved matters which therefore fall largely within the competence of the Scottish Parliament and Executive. Further, they are areas where the law differs significantly between Scotland and England and Wales. The Law Society of Scotland pointed to the possibility that different views on the desirability of the UK opting in could be taken north and south of the border. The protection afforded by the opt-in should, they said, be seen in that light (p E164).

6.308.  Decisions by the UK to opt in to measures in the areas of civil and criminal law and policing will impact in a special way on devolved administrations, but particularly Scotland. The extension of the opt-in under the Lisbon Treaty to cover criminal law and policing is significant. As discussed above, the need for cooperation between administrations is clear. We expect the Government to consult closely with the Scottish Executive when deciding whether to opt in to measures in these areas, and we understand that this already occurs.

f. The European West Lothian Question

6.309.  Ms Wallis said that an "untenable situation" was created for British MEPs by a UK decision not to opt in. This involved a European version of the West Lothian question, which asked why British MEPs should be entitled to participate in the negotiation of a measure which would, or might, not apply in the UK. She explained that neither Danish nor Irish MEPs participated in the work of the JURI Committee of the European Parliament and that Irish MEPs declined to vote in the plenary where Ireland had not opted in to a measure.[178] Ms Wallis indicated that, for the first time, some MEPs from other Member States had started questioning the right of UK MEPs to participate in these measures (p E86 & Q E394). Her concerns were shared by Baroness Ludford. Michael Cashman, on the other hand, suggested that there was support for UK MEP involvement in measures in which the UK was not participating, on the basis that a UK rapporteur in such a case was considered to be "objective" (QQ E391-394).

6.310.  Mr Straw considered that restrictions on the participation of MEPs in European Parliamentary activities on the basis that their governments had chosen not to participate in a measure would be "very, very odd". In any case, he concluded that, given the UK's aim was to "cooperate to the maximum extent consistent with our national interests", the European West Lothian question would be less of a problem than some might anticipate (QQ E521-523).

6.311.  If concerns regarding a possible West Lothian question arising in the EU parliamentary context develop, they will no doubt receive further consideration by Member States and the European Parliament itself. If the question is seen as raising a real problem here, it will also exist in cases of enhanced cooperation. But we do not consider that the UK should or will be likely to be influenced by such concerns in its decision whether to opt in.

Transitional arrangements

6.312.  The changes to the area of Freedom, Security and Justice proposed by the Treaty of Lisbon will have implications for existing legislation in this field. Framework decisions, such as the European Arrest Warrant, were negotiated and agreed on the basis that they do not have direct effect and that the Commission and the ECJ have limited powers of enforcement and oversight. A new Protocol on Transitional Provisions (the Transitional Protocol) sets out, among other things, the arrangements for moving existing Third Pillar instruments into the First Pillar. Articles 9-10 of the Protocol deal with acts adopted on the basis of Title VI TEU prior to the entry into force of the Treaty of Lisbon.

THE TERMS OF THE PROTOCOL

6.313.  Article 9 of the Protocol provides that the legal effects of the acts of the institutions adopted on the basis of the TEU prior to the entry into force of the Treaty of Lisbon "shall be preserved until those acts are repealed, annulled or amended".

6.314.  Article 10(1) limits the powers of the institutions in respect of existing Title VI measures. In particular, the Commission will have no jurisdiction to commence enforcement proceedings against Member States for failure to implement Framework Decisions and the powers of the ECJ will remain as set out in existing Title VI. Among other things, this means that the Court's preliminary reference jurisdiction will be limited to those States which have made a Declaration accepting the jurisdiction of the Court.

6.315.  Article 10(2) provides that the amendment of an existing Title VI measure "shall entail the applicability of the powers of the institutions … as set out in the Treaties with respect to the amended act for those Member States to which that amended act shall apply".

6.316.  Article 10(3) provides that the protection afforded by Article 10(1) will fall five years after the entry into force of the Lisbon Treaty subject to important further provisions discussed below.

6.317.  Broadly, Professor Dashwood saw these as "sensible" measures to allow Member States to get used to the idea that EU institutions would in future have powers in relation to acts adopted in a very different institutional and procedural framework (Q E330).

HOW THE PROTOCOL WILL WORK

i. Renegotiation of existing Title VI measures

6.318.  Professor Shaw thought that most of the existing Framework Decisions would probably be converted into Directives, although they might require some renegotiating, especially to improve the drafting given that once converted the measures would be capable of having direct effect. She favoured prompt renegotiation, to assist national judges in applying and interpreting the measures (QQ E62-63). Dr Mitsilegas also thought that the Protocol was likely to result in a new wave of EU criminal law measures, mostly directives replacing existing Third Pillar framework decisions (p E169).

6.319.  Professor Peers thought the opposite: "I think it is unlikely that they will readopt all of those measures, although it would be possible to do it quickly if they agreed not to change the text at all but simply to transpose them all as regulations and decisions". However, he noted that even this latter course of action would mean "flooding the legislative system of the Community for a year with 50 or 100 measures" (Q E105). His view was echoed by Professor Dashwood, who also thought it unlikely that any significant number of measures would be re-negotiated (Q E327).

6.320.  The Commission, who would principally be responsible for bringing forward proposals to convert existing Third Pillar measures, did not appear to envisage a wholesale conversion of framework decisions into Third Pillar instruments. Mrs Durand, for the Commission Legal Services, pointed to the difficulties in anticipating the future policy of the Commission but she highlighted Declaration 50 which provided that the institutions were invited to "seek to adopt, in appropriate cases …, legal acts amending or replacing" existing Third Pillar instruments. She indicated that the qualification "in appropriate cases" was introduced by the Commission itself in order to provide some parameters for the sorts of proposals that the Commission should make. She was of the view that, despite the vague language, it was possible to conclude that not all existing measures were expected to be converted (QQ E370-371).

6.321.  The Justice Secretary interpreted Declaration 50 in a slightly different way. He considered that it invited institutions to make "rapid progress in repealing and replacing existing Third Pillar measures to bring them under a First Pillar legal base". Mr Straw acknowledged that it was unlikely that all existing measures would be repealed and replaced but expected the Commission to table measures repealing and replacing some of the more significant Third Pillar measures, such as the European Arrest Warrant (Q E529).

6.322.  If measures were not renegotiated but simply became subject to the jurisdiction of the Court after the five years had expired, Professor Shaw suggested that they might not be capable of having direct effect (Q E63).

6.323.  We would expect the Commission to introduce measures to convert some of the more significant Title VI instruments, such as the European Arrest Warrant, soon after the Treaty of Lisbon enters into force. We would not be surprised if the Commission adopted a "repeal and replace" approach in order to ensure legal certainty.

6.324.  It seems unlikely that the Commission will seek to convert all Title VI measures. We urge the Government to liaise closely with the Commission to ensure that measures which require redrafting or renegotiating are the subject of amendment measures before the end of the transitional period.

6.325.  Any proposals brought forward to convert existing Third Pillar instruments into First Pillar measures would have to be made under Title V of the amended TFEU. Upon adoption, such proposals would come within the ECJ's jurisdiction immediately and would not be subject to a five-year transitional period. The United Kingdom would be able to use its opt-ins and could, if it wished, choose not to participate in an amendment or a "repeal and replace" measure.

ii. Identifying "amendments" and their effect

6.326.  The Transitional Protocol refers to the effect of "amendments" on existing Title VI measures. Professor Peers suggested that sometimes it would be very obvious when a measure was "amended" and thus became subject to the Commission's powers of enforcement and the Court's jurisdiction. He suggested that adding a further ground for non-recognition into the Framework Decision on the European Arrest Warrant would constitute an obvious amendment. In other cases, however, the question of whether there had been an amendment would not have such an obvious answer. He raised the example of an amendment to an implementing measure, rather than to the parent measure. Highlighting the example of Europol, he asked, "Would the adoption of a new implementing measure, even with the same text as a previous implementing measure relating to Europol, mean that everything to do with Europol is considered amended, including the main decision, or will it be only each individual implementing measure which would be considered amended?" Similarly, if a provision of the Schengen acquis was amended, would that bring the whole acquis within the jurisdiction of the Court (Q E105)?

6.327.  Mr Geyer, for CEPS, considered that the question of "amendment" would be a crucial one. He suggested that the consequences of amending an act might encourage the Commission to propose amendments solely in order to bring a measure under the jurisdiction of the Court (Q E175), although he concluded the Commission was likely to carry out a very careful assessment of all existing measures before deciding what action to take. Professor Dashwood thought that the question of deciding what would be the effect of an "amendment" was not straightforward. He did not consider that any amendment, however small, should have the effect of "neutralising" Article 10(1). This, he considered, would be a "very radical" consequence of amending an existing measure. But in his view it was clear what an amendment would be: even a deletion, he thought, "would clearly be an amendment" (Q E327).

6.328.  Sir David Edward thought that, in practice, the UK would be very careful to establish whether or not a proposal was an "amendment" for the purposes of this proposal and could therefore decide not to opt in where it wished to avoid the consequences of agreeing the amending measure (Q S135). Mrs Durand also thought that in practice it would be clear whether or not a proposal was an "amendment", not least because under the Commission's rules on legislative drafting there was an obligation to specify whether or not a proposal was an amendment to a previous act (Q E372).

6.329.  There was some disagreement among witnesses as to what would be the effect of an amendment to a framework decision in terms of the application of Article 9 of the Protocol. The Commission Legal Services considered that in this case, amendment would not affect the original Title VI measure. Mrs Durand accepted that this could result in the "strange situation" that the unamended parts of the original measure would not have direct effect but the amended parts would (QQ E372, E376-382). Ms Bateman, for the Law Society of England and Wales, suggested that the situation created by such a reading of Article 9 would be "tortuous" (Q E462).

6.330.  The question of what constitutes an "amendment" under the Transitional Protocol proved controversial among our witnesses. But in our view it will be clear which proposed measures are "amendments" and Article 10(2) is unambiguous: any amendment, however small, will bring the amended act under the ECJ's general jurisdiction and within the Commission's enforcement powers.

6.331.  We do not share the Commission's interpretation of Article 9 of the Protocol. Article 9 says that the acts' legal effects are "preserved until those acts are repealed, annulled or amended". The obvious conclusion is that when those acts are repealed, annulled or amended, their legal effects are no longer preserved. It is difficult to understand how Article 9 can be read as meaning that only the amended parts of the act will have direct effect. If that were the meaning of Article 9 then the qualification in that article regarding repeal, annulment or amendment would be obsolete: insofar as amendments are introduced on a new Title V TFEU legal base they will be capable of having direct effect by default.

6.332.  In practice, both of these issues will be circumvented if the Commission adopts a "repeal and replace" approach.

6.333.  Professor Peers identified a further ambiguity in the Protocol. In situations where the amendment of an act entailed consequences for the Commission's enforcement powers and the Court's jurisdiction, it was, in his view, not clear when these effects would take place. The new regime could apply as soon as the amending measure was adopted or alternatively it might only apply at the date of transposition of the measure, which might be some years after its adoption (Q E105).

6.334.  The Transitional Protocol leaves unclear from what date an amendment has the effect described in the Protocol. This ambiguity may be a reason for the Commission to prefer a "repeal and replace" approach whenever an amendment is contemplated.

iii. The procedure on expiry of the transitional period

6.335.  Article 10(3) declares that the transitional arrangements regarding the powers of the institutions will last for five years. Once the five year period has expired, all existing measures will fall within the ambit of the powers set out in the Treaties as amended by the Treaty of Lisbon.

6.336.  The UK has negotiated special arrangements to ensure that where measures have not already been converted from Third Pillar to First Pillar measures in circumstances which would permit the UK to opt out if desired, it can exercise a block opt-out of remaining unconverted measures. Under Article 10(4) the UK may, six months before the expiry of the transitional period, notify the Council that it does not accept the new extended competence of EU institutions over any outstanding Third Pillar legislation. In that case, all outstanding Third Pillar legislation will cease to apply to the UK from the date of the expiry of the transitional period. Martin Howe QC pointed out that the UK's right to opt out at this point was "unqualified" (Q E263). However, the article expressly states that this procedure does not involve amended acts under Article 10(2) (i.e. the UK cannot opt out of measures which have been amended and are as a result already subject to the jurisdiction of the ECJ). The blanket effect in other respects of exercising the opt-out is, however, mitigated by a right selectively to request to opt back in, which we discuss below.

6.337.  As Andrew Duff MEP pointed out, the UK cannot continue to participate in existing Title VI measures once the five-year transitional period has expired if it refuses to accept the competence of the Commission to bring enforcement proceedings against it or the jurisdiction of the Court (p E135). Mr Howe considered that the UK might find itself presented with some unsatisfactory choices at the end of the five-year period given that a number of measures in which it would wish to continue participating might not yet have been transposed into the First Pillar (Q E265).

6.338.  Mr Donnelly considered the possibility that the UK might choose at the end of the five-year period to exercise its right to a block opt-out from all remaining Title VI measures. He was highly critical of any future UK decision of this nature: "to abandon en masse British participation in all the intergovernmentally adopted JHA measures of the past decade as a protest against the jurisdiction of the European Court of Justice, and then inevitably to seek to opt back in to most of these measures, would expose the British Government to something little short of ridicule" (p E134).

6.339.  The possibility under Article 10(4) of the Transitional Protocol of exercising a block opt-out protects the UK's right to choose whether to participate in new measures in the FSJ field. However, we expect that the Government will be fully engaged with the Commission and other Member States to ensure that measures which might prompt them to use the block opt-out are amended before the expiry of the transitional period. Article 10(4) provides an emergency exit for the UK where the amendment of a controversial measure has not proved possible within the available time.

6.340.  The withdrawal of the UK from Third Pillar measures may necessitate consequential amendments to the measures in question. One example might be the withdrawal of the UK from the EAW, which would require Member States to amend legislation to exclude the UK from the ambit of the measure. The Council may adopt a decision to determine any necessary consequential and transitional arrangements by qualified majority and the UK will not participate in the decision. If there are direct financial consequences "necessarily and unavoidably" incurred as a result of the UK withdrawal, the Council may adopt a Decision determining that these should be borne by the UK. The Decision would be adopted by qualified majority on the basis of a Commission proposal.

6.341.  Mr Straw pointed to the existence of the block opt-out and indicated that the possibility of financial consequences would encourage the Government to go through the list of Third Pillar measures and ensure that any which were unamended at the expiry of the five year period were uncontroversial and would not require use of the opt-out (QQ E531, E533-534).

6.342.  Provided that the Government undertake the task of sifting through existing Title VI measures in good time, they will be less likely to find themselves in the position of having to use the block opt-out and the question of costs will not arise. If the block opt-out is used, then, as with the costs provision in the FSJ and Schengen Protocols, we consider that the test for imposing costs is set at a high level.

6.343.  Following a decision to exercise this block opt-out, the UK can notify the Council of its desire to opt in on a case-by-case basis to any of these measures under Article 10(5) of the Protocol. In this case, the provisions of the relevant opt-in Protocol will apply. The Article concludes that "the Union institutions and the United Kingdom shall seek to re-establish the widest possible measure of participation of the United Kingdom in the acquis of the Union in the area of freedom, security and justice without seriously affecting the practical operability of the various parts thereof, while respecting their coherence".

6.344.  The right under Article 10(5) of the Transitional Protocol for the UK to opt back in to measures will ensure that, if the UK at the end of the five-year transitional period uses its block opt-out in relation to those Title VI measures which are not by then amended or re-enacted, the UK may immediately thereafter choose to opt back in to particular Title VI measures covered by that block exemption.

6.345.  But the Treaty does not leave open the option of retaining the status quo in respect of Title VI measures after the transitional period. At the end of that period at the latest, the UK must either accept the Commission's enforcement powers and the ECJ's jurisdiction in respect of such measures or exercise its block opt-out, again accepting that if it chooses to opt back in to any particular existing measure, the Commission's enforcement powers and the ECJ's jurisdiction will apply.

Civil protection

6.346.  Part Five of the TFEU, External Action by the Union, includes a new Title VII entitled "Solidarity Clause" whose sole article, Article 222, provides that "The Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The Union shall mobilise all the instruments at its disposal, including the military resources made available by the Member States, to prevent the terrorist threat in the territory of the Member States" and for other similar purposes. The Member States are to "coordinate between themselves in the Council". Declaration 37 to the Treaty of Lisbon makes clear that it is for individual Member States to decide on the best way of complying with this solidarity obligation.

6.347.  Part Three has a Title XXIII on Civil Protection, also new, which overlaps considerably with Article 222. Its sole article, Article 196, provides that "The Union shall encourage cooperation between Member States in order to improve the effectiveness of systems for preventing and protecting against natural or man-made disasters". Details are then given, and the European Parliament and the Council are required to "establish the measures necessary to help achieve the objectives referred to in paragraph 1". Thus this Article does not in terms relate to terrorism, but encourages cooperation in prevention and protection against natural or man-made disasters. If a disaster does take place, it seems to be Article 222 which is more closely tailored to deal with the action to be taken.

6.348.  We asked the Minister for Europe whether these two new Treaty provisions were necessary, and what their effect would be. In the case of the Solidarity Clause, he told us that the United Kingdom was well equipped to deal with most emergencies without external assistance; nevertheless emergencies might develop in unpredictable ways, so the Clause might be of direct benefit to the United Kingdom (pp F3-5). Additionally, the Clause envisaged regular assessments by the European Council of threats facing the Union. This of course is something which the European Council already frequently does, without the need for an express Treaty provision.

6.349.  The Solidarity Clause does not seem to us to have any legal significance; it does not enable Member States to do anything which they could not do without it. It does however serve to emphasise the political will of the Member States to stand together in the face of adversity.

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130   Proposal for a Directive of the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters COM (2004) 718 of 22.10.2004. Political agreement on the proposal was reached at the JHA Council on 8-9 November 2007, 14617/07 (Presse 253). Back

131   Article 29, second paragraph. Back

132   Europol is the European Police Office, a European law enforcement organisation based in The Hague. Europol was established by Council Act of 26 July 1995 drawing up the Convention on the establishment of a European Police Office OJ C 316/1 of 27.11.1995 and Convention based on Article K.3 of the Treaty on European Union on the establishment of a European Police Office OJ C 316/2 of 27.11.1995.  Back

133   Eurojust is the European Judicial Cooperation Unit, an EU body established to stimulate and improve the coordination of investigations and prosecutions between competent authorities in the Member States. Eurojust was established by Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime OJ L 63/1 of 06.03.2002.  Back

134   The EJN is a network of judicial contact points aimed at improving the standards of cooperation between judicial authorities in criminal matters. The EJN was established by Joint Action 98/428/JHA of 29 June 1998 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on the creation of a European Judicial Network OJ L 191/4 of 07.07.1998.  Back

135   Communication from the Commission to the Council and the European Parliament 'The Hague Programme: Ten priorities for the next five years: The Partnership for European renewal in the field of Freedom, Security and Justice' COM (2005) 184 of 10.05.2005. Back

136   For discussion of the principle of mutual recognition in criminal matters, see below. Back

137   Article 82(2). Back

138   Proposal for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union COM (2004) 328 of 28.04.2004. Back

139   Proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects, documents and data for use in proceedings in criminal matters COM (2003) 688 of 14.11.2003. The Council agreed a general approach on this proposal on 1 June 2006 (10081/06 Presse 168). Back

140   OJ L 164/3 of 22.06.2002. Back

141   COM (2007) 650 of 06.11.2007. Back

142   OJ L 203/1 of 01.08.2002. Back

143   OJ L 13/44 of 20.01.2004. Back

144   OJ L 342/6 of 31.12.1996. Back

145   OJ C 10/3 of 11.1.1997. Back

146   OJ L 256/51 of 13.09.1991; Corrigendum OJ 54/22 of 05.03.1993. Back

147   COM (2006) 93 of 02.03.2006. Back

148   OJ L 309/15 of 25.11.2005. Back

149   OJ L 309/9 of 25.11.2005. Back

150   OJ L 192/54 of 31.07.2003. Back

151   OJ L 149/1 of 02.06.2001. Back

152   OJ L 69/67 of 16.03.2005. Back

153   OJ L 351/1 of 29.12.1998. Back

154   Referenced above. Back

155   The ECJ recognises and applies the principle of lex specialis: see for example case C-325/05 Ismail derin v Landkreis Darmstadt-Dieburg, judgment of 18 July 2007 at paragraph 55; and case C-252/05 Thames Water Utilities Ltd v South East London Division, Bromley Magistrates' Court, judgment of 10 May 2007 at paragraphs 39-41. Back

156   Committee on Legal Affairs. Back

157   Communication on the role of Eurojust and the European Judicial Network in the fight against organised crime and terrorism in the EU COM (2007) 644 of 23.10.2007; and Draft Council Decision on the strengthening of Eurojust amending Council Decision 2002/187/JHA of 28 February 2002, as amended by Council Decision 2003/659/JHA setting up Eurojust with a view to reinforcing the fight against serious crime, Council Doc. 5037/08 of 07.01.2008. Back

158   The European Arrest Warrant (EAW) replaces traditional extradition arrangements between Member States. It simplifies and speeds up extradition of suspects and those convicted of certain offences. The mechanism was established by Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States OJ L 190/1 of 18.07.2002. Back

159   Terms of Reference, Tender N° JLS/D3/2007/3 "Study: An analysis of the future of mutual recognition in criminal matters in the European Union" at pages 1-2. Back

160   Three Protocols have already been adopted, in 2000, 2002 and 2003. Back

161   Document 10327/07 of 4 June 2007. Back

162   Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims OJ L 143/15 of 30.4.2004 and Corrigendum OJ L 97/64 of 15.04.2005. Back

163   Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure OJ L 399/1 of 30.12.2006 and Corrigendum OJ L 18/11 of 25.01.2007. Back

164   Proposal for a Regulation of the European Parliament and of the Council establishing a European Small Claims Procedure COM (2005) 87 of 15.03.2005. Back

165   European Small Claims Procedure, 23rd Report of Session 2005-2006, HL Paper 118 at paragraphs 55-63. Back

166   Paragraph 70 of our Report. Back

167   Evidence from the Minister for Europe on the June European Union Council and the 2007 Inter-Governmental Conference, 28th Report, Session 2006-07, HL Paper 142, Q 29. Back

168   Denmark also negotiated special arrangements but they are different from those relating to the UK and Ireland. Denmark has a blanket opt-out from Title IV and cannot choose to opt into specific measures. It is expected that there will soon be a referendum in Denmark on relinquishing the opt-out in favour of full participation in FSJ. See the website of the Danish Ministry of Foreign Affairs: http://www.denmark.dk/en/servicemenu/News/DomesticPoliticalNews/Archives+2007/PMPromisesEUOptoutVote.htm.  Back

169   Although a group of Member States could choose to proceed by enhanced cooperation as discussed above. Back

170   Thus the UK has an opt-out and a right to opt in. The terms "opt-in" and "opt-out" are used in this Report as appropriate. Back

171   Council Decision of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis (2000/365/EC) OJ L 131/43 of 01.06.2000. Back

172   Cases C-77/05 United Kingdom v Council & C-137/05 United Kingdom v Council judgments of 18 December 2007. Back

173   Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union OJ L 349/1 of 25.11.2004. See European Union Committee, 9th Report (2007-08): FRONTEX: the EU external borders agency (HL 60).  Back

174   Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States OJ L 385/1 of 29.12.2004. Back

175   EU Intergovernmental Conference: Follow-up Report, 3rd Report (2007-08), HC 16-iii, paras 67 and 70. Back

176   Proposal for a Regulation of the European Parliament and the Council on the law applicable to contractual obligations (Rome I) COM (2005) 650 of 15.12.2005. Back

177   Proposal for a Council Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations COM (2005) 649 of 15.12.2005. Back

178   Both Member States have only a substitute member on the JURI Committee. Back