Examination of Witnesses (Questions 122
- 139)
WEDNESDAY 28 NOVEMBER 2007
Professor Elspeth Guild and Mr Florian Geyer
Q122 Chairman:
Professor Guild and Mr Geyer, thank you very much for coming to
give evidence to the Sub-Committee. Perhaps I ought to say what
I said before you came in: there are no declarations of interest
except, possibly, that I have myself an interest, a rather remote
one, as a member of the Lord Chancellor's advisory committee on
private international law, which has something to do with Title
IV. The purpose of this session is to look at the proposed Treaty.
As a first question I would like to ask about the UK opt-ins.
The UK has a general opt-in in the area of freedom, security and
justice, and it has a further opt-in provided under the protocol
on the Schengen acquis, integrated into the framework of the European
Union. Perhaps I should have offered you the opportunity of making
a preliminary statement, but the first question I would like to
ask when you have done that is what the effect of those opt-ins
will be and how that may change the present position. If you would
like to say something in opening, please do.
Professor Guild: My Lord Chairman, it is indeed
a pleasure to be here and to appear before this Committee regarding
the Reform Treaty. I understand that Professor Steve Peers gave
evidence last week and I am sure that he has provided very substantial
detail on the wording of the various different aspects of the
protocols. While I have not seen his evidence, I very much suspect
that I would agree with the positions which he has taken. I would
like to take a rather larger perspective on your first question,
if I may. It seems to me that, in the opt-ins which we have, the
objective of the UK Government in the negotiations and in respect
of which it has succeeded is to obtain wider opt-outs and opt-ins
than it had under the Amsterdam Treaty, so that the possible flexibility
for the United Kingdom to participate or not to participate in
the area of freedom, security and justice has become more flexible
rather than less flexible—and, of course, the most important
aspect is in respect of judicial cooperation in criminal matters/policing
and civil cooperation. The objective, as I understand it, of the
UK Government in the protocol to opt-in and opt-out in respect
of the Schengen acquis was drafted very carefully in order to
achieve the objective of avoiding the possibility of being excluded
which has happened in respect, so far, of the European Union Border
Agency. Taking these two objectives together—on the one
hand, seeking greater flexibility and, on the other hand, the
point at which the most substantial conflict has occurred in this
area has been where the UK has not been able to participate—one
wonders whether we need an awful lot more capacity to stay out
when we really want to be more engaged in. Is it worth diminishing
the negotiating capacity, regarding the form which Directives
may take in the end, through insisting on this very wide capacity
to opt in and out? Is it worth the effort, when in fact we want
primarily to be in? Of course, in any negotiations, the more space
which one party demands and the wider the rules have to be for
that one party in comparison with the others, the less force the
voice of that party is likely to have.
Q123 Chairman:
I understand your point about the Schengen acquis and the solution
of the problem raised by the current litigation, but it is not
really a wider opt-out in respect of judicial cooperation in respect
of criminal matters, is it? The present position is that they
are dealt with, largely, subject to the Environmental and
Ship Pollution cases, under the third pillar, so that there
is a unanimity principle anyway.
Professor Guild: Indeed. However, I would say
that it is one thing to participate in a framework decision on
an aspect of criminal law/judicial cooperation in criminal matters,
the legal effect of which is perhaps more subdued than a Directive
or regulation in the first pillar, in comparison with deciding,
"We don't think we will have anything to do with that"
and opt right out of it, and that puts us in quite a different
position in terms of our ability to participate generally in the
field.
Q124 Chairman:
You mean it is going to go ahead anyway under Title IV, and if
we are seen as the one person who does not participate at all
that will be detrimental.
Professor Guild: I think one could put it that
way. I think there is also another angle on it that we will probably
come back to a bit later, which is that, while there may not be
agreement in the Council, it may be better for negotiations to
go on longer to achieve agreement than for a small number of Member
States to go ahead on their own. If there is not agreement, that
means there are profound difficulties, that there are Member States
that have positions which, for their own reasons, they see as
being very important. It seems to me, as a principle of European
law and the effectiveness of European law and its coherence, 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 with rather than to leave some Member States behind.
Q125 Chairman:
Of course, very often—and we have not had a great deal of
experience of not opting in—the purpose of not opting in
is in fact to achieve a better deal into which you feel you can
opt. That is clearly what is intended in relation to the current
Rome I negotiations, for example. Is that not an effective approach?
Professor Guild: My Lord Chairman, whether something
is effective depends upon the objective you seek to achieve. I
am sure that is an effective approach in respect of certain objectives.
In terms of the smooth operation of the European Union, it may
be slightly less effective. It might be better to lower the sights
of the overall proposal and decide on something which is perhaps
less extensive in order to deal with the objections of one or
two Member States.
Q126 Lord Burnett:
Are you suggesting that the other members of the EU should lower
the hurdle in order to achieve agreement with others?
Professor Guild: My Lord Chairman, I think that
is how the European Union has operated. In order to achieve agreement
among 27 Member States/25 Member States/15 Member States—or
however many you have from five onwards—there are always
some things that some Member States will want and to which others
are opposed and it will always be a matter of negotiating to achieve
an outcome which satisfies the parties which everybody can live
with. If one says, "We don't want to do that anymore. That's
too complicated, we can't live by that rule anymore, and we are
now going to say we will not participate in that" then one
achieves a very different result and a different kind of European
Union than if one proceeds by the traditional mechanism.
Q127 Lord Burnett:
May I add one more point, My Lord Chairman on that. If we did
adopt the proposal you are making and go through it in that way,
could we be therefore bound by qualified majority rules to accept
terms and conditions which we would find unacceptable?
Professor Guild: We do live in democracies and
qualified majority vote is a lot more than 50%. We have made a
number of choices about how we want to proceed with lawmaking
and there is always the possibility of insisting on unanimity
in certain fields which are particularly sensitive, as has happened
in a number of different areas.
Q128 Chairman:
There is, of course, the "emergency brake" in the proposed
criminal area, but, coming back to that point, there are still
respects in which different European countries focus on different
things and that is particularly true, perhaps, in the area of
civil and criminal law. To take civil law, London is an international
legal centre and we have interests—for example, in the derivatives
markets and so on—which are perhaps not shared throughout
Europe. Again drawing on the Rome experience, there were particular
points which might not have met with sympathy on a majority basis.
There is the other factor that the common law, although it is
a very strong world legal system, is to some extent an odd man
out in Europe: there are only three and a half common law countries
and most of them are very small and perhaps some of our concerns
are not fully understood. Is that not a valid reason for having
quite a general opt-out with the intention of opting in whenever
possible?
Professor Guild: My Lord Chairman, one and a
half of those common law systems do not have any difficulty being
part of the system. A second one probably would not if the UK
was not having a lot of difficulty with it. So we are down to
one really! On the basis, "Good grief, we do not want to
be bound by anything coming from anywhere but our own Parliament,"
one really ought not to enter into any international treaties
at all.
Q129 Lord Burnett:
Could I add to what My Lord Chairman said: there are certain financial
industries and businesses which are not of important concern to
our country but which are vitally important. I think you said
that sometimes these things are not properly understood and the
markets in which our City of London operates are not properly
understood and there is not sufficient sympathy with them among
many other members of the European Union. Or am I completely wrong
about that?
Professor Guild: My Lord Chairman, I would certainly
not suggest that Lord Burnett is wrong on anything! Certainly
every Member State has terribly important interests which are
central national interests and which they are very anxious to
protect. We have seen this, for instance, in telecoms. This has
been a terribly sensitive issue. We have seen it again on the
Directive on Services—the infamous Bolkenstein Directive—where
very central issues of concern to the Member States in terms of
protection of their services markets were at stake. In those two
cases, the United Kingdom was on the other side of the fence,
in saying, "Well, actually, we don't think this is quite
so central," nonetheless, if we take the Services Directive
as an example, the interests of those Member States which were
particularly sensitive were, of course, taken into account. And
perhaps we do not have a Directive that we wanted but we have
a Directive that everyone can live with.
Chairman: I think perhaps we ought to
move on. I want to give Mr Geyer a moment, but let us have Lord
Lester's question first.
Q130 Lord Lester of Herne Hill:
I should just say where I am coming from. I, on the whole, favour
as few opt-ins and opt-outs and as much integration as possible,
so that explains my slightly strange question. You slightly dismissed
My Lord Chairman's question about protecting the common law, so
I just want to give you one example, declaring an interest, because
I was counsel for the Cyprus Government in a case called Kyprianou
in the European Court of Human Rights which concerned the common
law contempt jurisdiction—the kind of jurisdiction where
you throw an egg at a judge and he or she is able to lock you
up immediately. Out of the 47 judges of that court—and I
suppose you would call them, in your idea, two and a half or three
and a half—only four judges were from a common law background
and the concern of Malta and of Ireland and of Cyprus and of the
United Kingdom was that those judges would show very little regard
for that common law jurisdiction. They all came in and made their
representations in that case. Does that not indicate that there
is a common interest among common law jurisdictions—including,
for this purpose, Scotland because they also were affected—in
a system which, if one is not careful, will adopt a strongly Napoleonic
civil tradition and therefore we should pay attention to that?
I apologise for the length of the question but I wanted to give
you a real example, albeit on the Strasbourg side and not on the
Luxembourg side?
Professor Guild: There are a number of different
legal traditions in the European Union. We have a strong Roman
Dutch tradition in some areas; we have a Napoleonic code system
in others; we have common law systems; and we have other parts
of systems which have come in particularly with the newer Member
States. From what I have seen so far, it seems to me that there
has been tremendous respect for the different systems which apply
and, certainly, if one looks at the decisions of the European
Court of Justice on enforcement of, for instance, time limit systems
by which legal systems operate, there has been quite substantial
deference to the differences in the national systems. Yes, of
course this is something of an adventure. It is a route we chose
to go down, starting from about 1993 with increasing integration
of our systems. Either we have confidence in our partners in this
regard or we do not. I think that is the problem. At the moment
we are saying, "We do and we don't"
Q131 Chairman:
Mr Geyer, do you have anything you would like to say on the subjects
which we have been touching on?
Mr Geyer: My Lord Chairman, thank you very much.
We had divided up the questions and we decided that it might be
wise to leave Professor Guild the questions that are more related
to UK specificities. I can only agree and join in with what Professor
Guild said.
Q132 Chairman:
Then perhaps we can move on. I think you touched on the effect
of the new Treaty in relation to Schengen and the question of
locking in and locking out. Would you move to consider the proposed
new redefinition of the area of criminal competence and may I
ask you to compare it to the existing jurisdiction under Title
VI of the Treaty on the European Union. Do you see the grounds
as differently expressed/more wide in the competence afforded?
Mr Geyer: When looking at the mere provisions
in the new Reform Treaty one might get the impression that, in
fact, there is an extension of the criminal law provisions and
there are more detailed rules or more substantial rules. We have
new elements in this Treaty, including the European public prosecutor.
It seems as if there is something completely new coming up on
the horizon. Especially when looking at the question on the substantive
criminal law provisions, the harmonisation or approximation, or
however one might define this process of finding common definitions
and common sanctions of criminal offences. In the existing Treaty
it is only mentioned that we can do that on terrorism; in trafficking
in drugs; and in organised crime. This is Art. 31 (1)(e) of the
Treaty on European Union. When looking at Article 69f in the new
Treaty, there is a much wider field of possible criminal offences.
However, when we look at what has been adopted already by Member
States, and most often on the initiative of Member States as framework
decisions under the third pillar, we see that we have a framework
decision defining criminal offences and penalties in the areas
of fraud and counterfeiting of non-cash means of payment; trafficking
in human beings; unauthorised entry or residence; private sector
corruption; and attacks on computer systems. All these are things
where we have harmonisation and approximation contained in framework
decisions which do not fall, under my understanding, in those
three limited cases of drug trafficking; organised crime; or terrorism
so that we have already this extension under the existing framework.
The new Treaty does, however, make it clearer. It clarifies and
structures this area which seems a bit broad and upright now and
brings in checks and balances on top by involving more actors,
by involving the European Court of Justice, by involving the European
Parliament. In the end, a virtually uncontrolled area which has
often been labelled as an interior minister's "playground"
is in fact constrained and tamed and does not necessarily extend
in substantive what has not been happening before.
Q133 Chairman:
Could I suggest two possible differences which I would like your
comments on. One is that the Ship Pollution case establishes
that the determination of the type and level of the criminal penalties
to be applied does not fall within the Community sphere of competence,
the competence under the existing Title VI; whereas Article 69f
of the proposed Treaty provides expressly that by a qualified
majority in the areas you have mentioned—the core areas:
terrorism, drug trafficking, visa crime—the European Parliament
and the Council may establish minimum rules concerning the definition
of criminal offences and sanctions. Is that not an extension?
Mr Geyer: It is so far no extension. In those
framework decisions we have also those penalties and sanctions.
The main question we have in the Ship Source Pollution
and in the Environmental case is not: Does it exist? The
question is: Who is deciding on it? In framework decisions we
have Member State governments under the EU Treaty agreeing on
sanctions and penalties and the question is only: Is it the Community
competence or is it the Union competence? It is only the question
under which procedure and who, and not so much what.
Q134 Chairman:
The answer is that my question is put on a false premise because
it is not comparing like with like. Essentially what is happening
under the third pillar at the moment is the setting of minimum
sanctions, so this is a reproduction. The other question is in
the opposite sense. The Ship Pollution and the Environmental
cases show that there is a criminal competence under the first
pillar, not extending to the setting of sanctions. Do you have
a view as to whether that would now have to be exercised under
Article 69f with the consequent right not to opt in or would this
Environmental/Ship Pollution jurisdiction still continue
independent of the opt-in?
Mr Geyer: This is one of the questions that
is wide open to speculation. It is very difficult to predict how
it will proceed. One might argue that with the coming into force
of the new Reform Treaty we have a specialised system, a special
detailed ruling how this should happen: how it should happen that
we provide criminal sanction and penalties in a field of, then,
Union policy and, now, Community policy when it is harmonised,
and this would provide an end to jurisprudence of the court.
Q135 Chairman:
The argument is the lex specialis, that you have a special
provision.
Mr Geyer: Exactly, we have a special provision
so we do not have the supposed gap any more in the Treaties and
we have to rely on the new provision. On the other hand, one might
argue and say that it is still as you have mentioned, there is
a difference between the court's jurisprudence and what will be
written in the Treaty, so under the Ship Source Pollution
and under the Environmental crime we have it limited
mainly to the aspect of environmental policy. Even the Ship
Source Pollution did not go along the way in opening up to
all Community policies but took it from transport and said, "But
in the end it is an environmental measure". We have the Ship
Source Pollution not opening up the field, as many argued
and as, also, the Advocate-General opined, we have it still limited
to the environment, and we have, as you said, the missing criminal
penalty provision, so one might argue that there is a difference
and, as there is a difference, the case law can still continue
to apply. The question would then be: Would it be wise, would
it be practical and what would be the outcome with the opt-out?
Q136 Chairman:
Theoretically, could you get a problem? If the matter was pursued
under Title IV with an opt-in, could it be said that it should
be pursued under the other provisions? Or would that argument
no longer apply? The argument in the Ship Pollution case
and the Environmental case was that it had to be pursued
under the first pillar.
Mr Geyer: This is the point. If it has to be
pursued under the first pillar and Article 175 is the proper legal
base for doing this, then one might argue: Why should this stop
being the proper legal base in the future? We might see that limited
and restricted to environmental policy, this case law will continue,
but it will not be broadened out to the other fields. It might
also not be advisable or practical to propose this because this
case law has major faults. It does not provide for the specification
of sanctions and it is limited. Therefore it might be that, even
though there is a theoretical legal possibility to continue, in
practice it will not be recalled upon by the Commission or other
Member States when initiating new proposals.
Q137 Baroness O'Caithan:
Is that because the case is going on at the moment?
Mr Geyer: The case has finished.
Q138 Baroness O'Caithan:
If we did opt in under Article 69f and a similar case occurred,
what would happen?
Mr Geyer: A similar case that is already existing
or a new measure?
Baroness O'Caithan: A similar case to
the one that has already finished on marine pollution.
Lord Burnett: But new circumstances.
Q139 Baroness O'Caithan:
New circumstances. It would not be identical but similar.
Mr Geyer: My Lord Chairman, may I ask in which
direction the question is going?
Baroness O'Caithan: The question is:
If you go and opt in on this one, everything that has gone before
would not apply? Is that right? You would not refer back to that
case law. Is that it? I am trying to clear my own mind.
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