Examination of Witnesses (Questions 240
- 259)
WEDNESDAY 5 DECEMBER 2007
Mr Martin Howe QC
Q240 Chairman:
Potentially it has some effects, as you were explaining, in bringing
back within the opt-in certain areas which could be regarded as
under the general provisions of the Treaty not subject to the
opt-in, although, as you were saying, that could be arguable?
Mr Howe: Yes; it may have that effect.
Q241 Chairman:
What about the operation of the emergency brake followed by the
provision for enhanced cooperation, following its operation; is
that a change which you want to comment on?
Mr Howe: In a sense, I am broadly positive about
such measures, because it strikes me that you have a real political
difficulty if one Member State does not want to go along with
a particular measure. At the end of the day, in an organisation
of 25 States, you cannot necessarily expect to stop the whole
organisation from adopting a measure in a particular field because
you do not want it applied to yourself, and therefore the enhanced
cooperation provision is a logical corollary for greater freedom
of action.
Q242 Chairman:
Would enhanced cooperation count as a common rule for the purposes
of Article 188l and the external competence that you were referring
to again?
Mr Howe: It had not occurred to me. I would
have thought not because, under enhanced cooperation, by definition,
the legal instrument adopted is not a legal instrument of the
European Union, it is a legal instrument of a subset of States.
Q243 Chairman:
Shall we move to border checks, asylum and immigration: what are
the changes of significance introduced by the draft Treaty as
regards cooperation in those areas, and do they give rise to any
particular matters you want to mention?
Mr Howe: There is a general intensification
of the Union's policies in these areas. Article 69b provides:
"The Union shall develop a common immigration policy aimed
at ensuring, at all stages, the efficient management of migration
flows," and so on and so on. It is correct, of course, that
the development of such a common immigration policy we do not
have to participate in because of the provisions of the opt-in
Protocol
Q244 Chairman:
Is there anything you want to say about Article 69(3), in particular,
which is the possibility of the Council acting unanimously in
order to promote rights of free movement in the area of passports,
identity cards, residents' permits and any other such document?
Mr Howe: There is one point I want to check,
as to whether this would be within the scope of the opt-in Protocol,
as amended.
Q245 Chairman:
Is it not all part of Title IV?
Mr Howe: I think it is, yes. I just want to
check that point.
Q246 Chairman:
I think the Protocol applies to the whole of this?
Mr Howe: Yes; certainly.
Q247 Lord Wright of Richmond:
Is it your view that the Reform Treaty changes the British Government's
relationship with Frontex and with Frontex operations?
Mr Howe: I do not know.
Q248 Lord Wright of Richmond:
We have a rather anomalous relationship, as you probably know,
with Frontex at the moment. We sit on the management Board but
do not have a vote, and I just wondered whether you thought that,
on the border questions, the Reform Treaty affects that relationship?
Mr Howe: I cannot see that it should, no; anyway,
I have not seen that.
Chairman: Shall we move on to the next question
then, the European Court of Justice. Are there any major changes
affecting the jurisdiction of the Court of Justice and what effect
might they have on cooperation in the area of freedom, security
and justice? You have indicated that the jurisdiction would be
expanded substantially and I think we have covered to some extent
the second question. I might ask you, firstly, if there is any
more you want to say and, secondly, whether you have any view
as to whether the European Court of Justice, as presently organised,
is going to be a satisfactory forum for dealing with the expanded
jurisdiction?
Lord Burnett: Did you want to say something,
My Lord Chairman, about civil justice and family law?
Q249 Chairman:
I am sorry. I think I did miss a question. Take the question then
of civil justice and family law first: what are the most significant
changes introduced by the Reform Treaty as regards cooperation
in those areas and are the amended provisions likely to increase
the scope for cooperation here and, if so, what will be the likely
result?
Mr Howe: Again, I regard the most significant
change as being the change of the legal basis of measures from
broadly being intergovernmental into being Community law measures.
It is true that there are some measures which fall within that
field which are already directly Community-based, of which what
was originally the Convention on civil judgments is the major
example, later converted into the Brussels Regulation. Again,
the principal effect would be that all such measures would come
within the ambit of directly applicable Community law, instead
of being within the field of international cooperation.
Q250 Chairman:
There is, in fact, though a qualification, is there not, in respect
of family law, that insofar as one is talking of measures concerning
family law with cross-border implications, and there is a requirement
of unanimity, is there not?
Mr Howe: Yes, but I do not think that affects
the issue of the legal nature of the measures which will be adopted.
Q251 Chairman:
Or the jurisdiction in respect of issues arising in relation to
them of the European Court?
Mr Howe: Which would be the jurisdiction of
the European Court; yes.
Q252 Lord Burnett:
My Lord Chairman, I have not fully understood that, I am sorry.
It is an interesting point. Is there a chance therefore that our
own internal matrimonial law and property law would be subject
to European law?
Mr Howe: I think, not directly, but, of course,
obviously where it comes in is, first of all, allocation of jurisdiction
in cases having cross-border elements.
Q253 Lord Burnett:
That is more frequent, with people marrying; property law, and
so forth?
Mr Howe: Indeed; yes.
Q254 Chairman:
The reference to cross-border implications is because the whole
of the civil law competence is limited to judicial cooperation
in civil matters having cross-border implications, and so this
is simply a less wide competence which requires unanimity in relation
to family matters?
Mr Howe: Yes. The general rule in the field
will be QMV, under the Treaty.
Q255 Lord Burnett:
Where, for example, UK individuals are married, Mr Bloggs marries
Mrs Bloggs, both were born and brought up in the UK and married
in the UK but they have property in the EU, does that all this
affect, in other EU countries where they have property?
Mr Howe: That is an interesting point. There
are issues which certainly have surfaced at a political level
where, for example, British property owners in Spain have found
that they have been built without relevant planning permission
because of alleged corruption on the part of the local authorities.
It has been raised, certainly at a political level, by agitation
through Members of the European Parliament, that "the wicked
Spanish are depriving us of our property through their unfair
legal system." Looking years ahead, one can see that sort
of issue could lead to calls for some sort of intervention for
the protection of people's property in other countries. I would
say no more than that.
Q256 Chairman:
I can see that somebody might argue that was a family law matter
with a cross-border implication, but I think we will leave the
argument until it arises.
Mr Howe: No, I do not think that is a family
law matter; that is more a general civil law matter with cross-border
implications.
Q257 Chairman:
Shall we move on now to the next question, which I put prematurely,
are there any major changes affecting the jurisdiction of the
European Court and what effect might changes have on cooperation
in the area of freedom, security and justice? I think you have
answered that in large measure. I wanted to ask you a supplementary
question, whether you saw any problems in the European Court dealing
with this perhaps from a legal, technical viewpoint, and qualifications,
and so on, as well as load of work?
Mr Howe: Indeed, there are practical issues
to do with the background and experience of the judges at the
Court and, in a sense, those issues have already surfaced in other
fields, nothing to do with justice and home affairs.
Q258 Chairman:
Such as?
Mr Howe: A field I know well, the field of intellectual
property, where traditionally the jurisprudence of the Court of
Justice bearing on the intellectual property field was to do with
the free movement of goods, freedom to provide services, and therefore
was dealing primarily with economic questions rather than with
the substance of the rights. What has happened in that field of
law is that the substantive law has been progressively harmonised.
We have harmonised trade mark law, harmonised design law, in particular,
and indeed we have a whole European Community structure of the
Office for Harmonisation in the Internal Market, which is a trade
mark and design right Office with a system of appeal up to the
Court of First Instance to the Court of Justice. This has required
the Court of Justice, in fact, to take a lot of decisions about
substantive intellectual property laws which it has not had to
do in the past, because having harmonised the law the substance
of the law needs to be interpreted, and this has led to a Court
which perhaps does not have that much expertise in that particular
field to be taking substantive decisions on the law.
Q259 Chairman:
Do you know what the background of the Court is; can one generalise
about this? One knows that the appointment system is one judge
per country; is there any view you want to give us as to what
the present background is, the composition? They are specialists;
you were indicating not in this area?
Mr Howe: Yes. I think there is a great variety
in the way they are appointed in different States. Indeed, they
are appointed on perhaps a far more political basis in other States
than the people we tend to nominate. France appoints former officials
of the Ministry of Justice, and so on. I think, the point is,
if we look across to the area of freedom, security and justice,
there will be a requirement, presumably, for the Court of Justice
to be taking decisions on substantive matters of criminal law.
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