Examination of Witnesses (Questions 360
- 379)
WEDNESDAY 9 JANUARY 2008
Mrs Claire-Françoise Durand and Dr Clemens
Ladenburger
Q360 Lord Lester of Herne Hill:
I hope this is not too complicated a question, in which case please
do not answer it. It is envisaged that the EU will become a party
to the European Convention on Human Rights, so suppose that under
these provisions most states want to get their procedures more
in line with European Convention requirements but a particular
state says, "No. This is fundamental. It will not change
our system". Will the fact that the EU is party to the European
Convention affect that process in any way? For example, you will
be able to argue to the naughty state, because it is holding out,
"We are now bound by the Convention directly and therefore
we had better get a better system across the Member States; otherwise
you will find yourself in trouble in Strasbourg or Luxembourg".
Do you understand my question? Is it going to be helpful in this
area that you will be a party to the European Convention?
Dr Ladenburger: The crucial point here is that
accession of the European Union to the European Convention on
Human Rights will be needed in order to bind the action of the
institutions to the system of Strasbourg whereas Member States
are already bound by Strasbourg. That is why I do not think that
after accession there will be an additional argument for the Union
legislator to say, "We must further harmonise your systems.
Otherwise we get into trouble in Strasbourg".
Lord Lester of Herne Hill: I understand.
Thank you.
Q361 Chairman:
Can we move on to civil justice? Current Article 65 envisages
co-operation in civil matters "in so far as necessary for
the proper functioning of the internal market", and the new
article envisages the adoption of measures "particularly
when necessary for the proper functioning of the internal market".
Was this is a deliberate change which was intended to cut co-operation
in civil matters free from precise restriction to the requirement
for the proper functioning of the internal market and to enable
its use in any case which had cross-border implications?
Mrs Durand: Yes.
Q362 Chairman:
Can you give us some examples of situations which would therefore
in your view potentially be covered under the new wording which
would not have been covered under the old?
Mrs Durand: We were searching for concrete examples
and I must tell you we did not find any. In legal terms it is
clear that "particularly when" means a larger scope
than "in so far as", there is no doubt about it. The
impact it will have is very difficult to assess, especially given
that this whole provision is still governed by paragraph 1 of
65, which indeed foresees that co-operation will occur in matters
having a cross-border dimension. Therefore, as for the effect
of it, frankly, we could not think of any concrete examples.
Q363 Lord Blackwell:
My Lord Chairman, on this point can I just ask a question about
the linkage between cross-border and domestic legal issues? There
is a list of areas here where, in pursuit of cross-border co-operation,
the European Parliament can adopt measures to ensure, for example,
co-operation in taking of evidence, effective access to justice,
support of training judiciary and judicial staff, et cetera, and
the same applies on the criminal side. Do you think in reality
it will be possible to develop measures that are strictly limited
to cross-border legal issues or inevitably will not measures that
you adopt for cross-border legal issues have an impact on domestic
issues?
Mrs Durand: The issues that should be the subject
of harmonisation are civil matters having cross-border implications.
Therefore, as long as they have cross-border implications they
can be the subject of harmonisation. As to whether then you can
have a double system for managing that, one for cross-border action
and one for national, this I think should be decided on a case-by-case
basis. We cannot decide in abstract that a double system could
be maintained. I can imagine certain areas where it is possible
and certain where it is not, but it has been a recurrent problem;
we knew it already, and this criterion, the cross-border dimension,
was already there.
Q364 Chairman:
Can we move on, and obviously we have looked quite closely at
the new opt-out which is a general opt-out in relation to all
aspects of Title IV? Are there any particular points you want
to highlight in relation to the scope of the opt-out and any respects
in which it is either broader or narrower than the existing position?
Mrs Durand: The existing opt-outs have been
modified by the Lisbon Treaty and I think one could say that they
offer more freedom to the United Kingdom and Ireland to decide
whether or not to participate. I can highlight several aspects
of change in relation to the present situation. First of all,
the scope of the general UK Protocol obtained on Title IV is considerably
extended with this new Treaty because it concerned only the areas
of asylum, immigration and civil law, and now it is extended to
the whole of Title IV including police and criminal matters. There
has been a change from the state of the Constitution to the present
state of the Lisbon Treaty on this aspect and now criminal matters
are included in the Protocol. The second change where the UK has
gained more flexibility is regarding the Schengen-building measures.
A new mechanism has been created which allows the United Kingdom
not to participate in measures which have been the subject already
of an Article 4 decision and this is something which leaves more
freedom of decision. The third aspect concerns amendments to existing
measures not related to Schengen. The legal situation was not
very clear as to whether, once the UK had opted in to a measure,
it could opt out of an amendment to the measure. Now this is made
clear in the Protocol. Even if the UK has opted into for one measure
which has been adopted it still can opt out of the amendment to
this measure. The fourth item I would mention is the provisions
on transitional measures, because at the end of the transitional
period the United Kingdom has the freedom to decide whether to
accept the general competence of the Court and the general competence
of the Commission. Therefore, there is a decision to be made in
that the freedom is offered and if the UK does not accept this
competence the existing measures will cease to apply to this State
but there is still the possibility on a case-by-case basis to
re-enter and re-accept and re-participate in these measures. Those
are the four items which have been the subject of the last discussions
and the subject of a compromise and which present a balance between
the different objectives and interests of the Member States.
Q365 Chairman:
Can I ask one other question about Schengen? Is the recent case,
which the United Kingdom lost, affected as you see it, or may
it be affected in any way, or reversed in particular by the new
Treaty or not?
Mrs Durand: This case bears on the interpretation
of Article 4 which remains totally unchanged and therefore it
is not affected. In order to participate—and this is even
more so, I would say, under the wording of the new Article 5—in
order to participate in a Schengen-building measure a decision
of the Council under Article 4 has first to be made, and on the
basis of this decision of the Council there is then the possibility
to go on.
Q366 Chairman:
Can I ask you then a further question about the practical position
if the UK opts into a measure and takes part in the negotiations,
but the proposal changes during negotiations? What happens then?
At what point can the United Kingdom, if at all, argue that the
measure is a different measure from the one it opted into?
Mrs Durand: The decision to opt in has to be
taken within the three months following the presentation of the
proposal and then all Member States are at the same level and
they have to negotiate with each other and obtain the kind of
act which they can agree with.
Q367 Chairman:
So it is for better or for worse, is that what you are saying?
Once you opt in you accept the result of the negotiations?
Mrs Durand: Yes.
Lord Blackwell: Subject to the emergency
brake.
Q368 Chairman:
Subject to the emergency brake in criminal areas.
Mrs Durand: Yes, or the other option is not
to opt in and to decide later on to opt in if the proposal for
this act is suitable.
Q369 Chairman:
Our next question is related to the European Court of Justice.
I do not know whether this is a question on which you want to
say anything. It is not directly a legal question; it is more
a question relating to the organisation of the Court. Unless there
is anything you want to say perhaps we should simply leave it.
Mrs Durand: I think it is important to say that
this was the question which affected in the past the decision
whether to give more competence to the Court or not and therefore
the question is now whether the Court will cope with the new competence
which is given by this Lisbon Treaty. I think it is very important
to say that the answer is certainly yes. The Court has made a
lot of efforts to go faster with the referrals which are put in
front of it. It has also—and this is very important—put
forward a new procedure enabling it to deal very quickly with
references which may be made in the area of justice, freedom and
security, and therefore the Court is really trying to show in
advance that there is every possibility of dealing with the possible
increase in cases coming to it. In practice you should know that
for the last years when these matters were also the subject of
Court jurisdiction there were very few cases in front of the Court.
Q370 Chairman:
I think there are some other aspects which interest us but probably
we will not pursue them now in view of the shortage of time. Transitional
provisions: I do not know whether you can help us as to the Commission's
view as to what may happen relating to the conversion of existing
Third Pillar measures into directive amendments within the five-year
period. Is that likely on a wholesale basis or do you think it
will be done very selectively?
Mrs Durand: It is difficult to anticipate the
future policy of the Commission and I am not in a position to
take a detailed position on that. What I wish to recall is that
there is a Declaration number 50 which invites institutions to
seek to adopt in appropriate cases legislation converting Third
Pillar acts into normal Community acts.
Q371 Chairman:
This is Declaration number 50, I think.
Mrs Durand: Declaration number 50, and this
language "in appropriate cases" in fact was proposed
by the Commission itself in order to fix some parameters as to
what kinds of proposals the Commission should make. Again, that
is fairly vague language but at least one can draw the conclusion
that it does not cover all existing measures, only those in appropriate
cases. The other point to mention is that this Declaration is
not only addressed to the Commission but is also addressed to
all the institutions which should make this effort to try to convert
these acts before the end of the period and therefore some sort
of agreement should be found between the institutions on what
kinds of acts are those for which conversion is "appropriate".
Q372 Chairman:
Where amendment is appropriate what happens? Does a framework
decision become a directive if it is amended? If it does not become
a directive when amended is it capable of having direct effect
in any circumstances?
Mrs Durand: Framework decisions can be transformed
into either directives or regulations unless the Treaty specifies
what kind of act should be used. As long as it remains a framework
decision it keeps the effect of the framework decision and therefore
does not have direct effect. Once it is replaced you have two
possibilities. One is a total replacement of the framework decision,
in which case it has the effect of a normal directive or regulation,
or you have the amendment solution, in which case you would have
the perhaps strange situation of the main act being governed by
the current rules under the Transitional Provisions Protocol and
the amendment being a new act. One thing which is clear is that
the amendment is going to be clear on the point that it is an
amendment. I think it has to be clear, that the amendment would
be an amendment to a particular act; otherwise there would be
legal uncertainty, and, secondly, our rules on legislative drafting
oblige us to mention whether an act is an amendment or not to
a previous act.
Q373 Lord Blackwell:
If the route is taken to replace the existing agreement with an
amended version which becomes a Pillar I directive, what is the
legislative process for doing that?
Mrs Durand: I am not sure I have understood.
Q374 Lord Blackwell:
If we have an existing Pillar III measure and the decision is
taken to replace it with a new version by an incorporating amendment,
what is the legislative procedure to replace it?
Mrs Durand: The new legal basis offered by the
Lisbon Treaty, that is the legal basis offered by the Treaty on
the Functioning of the European Union. Of course it has to be
done on the basis of the new provision.
Q375 Lord Blackwell:
So the UK would have the opt-out or opt-in decision at that point?
Mrs Durand: Yes.
Q376 Chairman:
Can I just go back to the question of framework decisions because
under the present Treaty they do not entail direct effect? The
transitional provisions provide that the legal effects of acts
of the institutions shall be preserved until those acts are repealed,
annulled or amended.
Mrs Durand: Yes.
Q377 Chairman:
So that, if you had an amendment of a framework decision, on the
face of it the whole framework decision, as amended, would cease
to have the same legal effect as before and it would become subject
to the jurisdiction of the European Court, would it not, even
though previously it did not have direct effect and was outside
the jurisdiction of the European Court?
Dr Ladenburger: My Lord Chairman, direct effect
is a different question from the question of the jurisdiction
of the Court.
Q378 Chairman:
I see, so you say it would become subject to the jurisdiction
but it would not have direct effect?
Dr Ladenburger: Exactly.
Q379 Chairman:
Although there is now no provision saying that it does not have
direct effect, or there will not be under the Lisbon Treaty?
Dr Ladenburger: But Article 9 of the Protocol
on Transitional Provisions is very clear, that these existing
acts adopted under the old Third Pillar preserve their legal effects
until they are amended or replaced.
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