House of Lords - EU police and criminal justice measures: The UK's 2014 opt-out decision

EU police and criminal justice measures: The UK's 2014 opt-out decision - European Union Committee Contents

CHAPTER 2: background

11. The UK has a complex history of involvement in EU justice and home affairs cooperation, which includes police and criminal justice measures. In order to put the opt-out decision in its proper context, an overview of the main developments is provided in this chapter, which ends by considering the origins of Article 10, Protocol 36. Box 2 provides a timeline of EU cooperation in this area (the acronyms and titles are explained in Appendix 8).

BOX 2

Evolution of EU Justice and Home Affairs/Police and Criminal Justice cooperation

1957-Treaty of Rome establishing the European Economic Community (EEC)-commitment to free movement of people; adoption of Council of Europe Convention on Extradition

1973-UK accedes to the European Communities

1975-TREVI group of Interior Ministers and officials established

1985-Schengen Agreement

1986-Single European Act-commitment to remove internal border controls

1990-Schengen Implementing Convention

1992-Target date for establishing the Single Market (therefore increasing the free movement of goods, workers, capital and services)

1993-Treaty of Maastricht enters into force-creation of JHA (Third) Pillar covering asylum, immigration, border controls and cooperation between customs, police and judicial authorities

1995-Creation of the Schengen Area and the removal of internal border controls between participating states

1999-Treaty of Amsterdam enters in force-police and judicial co-operation on criminal matters remains in the Third Pillar; UK and Irish opt-in begins to apply in relation to migration, asylum and border controls in First Pillar; Schengen Area incorporated into the EU Treaties and provision made for the UK and Ireland to apply to participate in Schengen-building measures; Europol becomes operational; adoption of Tampere Programme

2001-CEPOL established

2002-Eurojust established

2004-EAW entered into force; adoption of Hague Programme

2007-Protocol on transitional provisions (Protocol 36) inserted into the Treaty of Lisbon

2009-Treaty of Lisbon enters into force on 1 December 2009; abolition of Third Pillar; UK and Irish opt-in widened to apply to all JHA matters, including provision to opt out of Schengen-building measures. Adoption of the Stockholm Programme

31 May 2014-deadline for any opt-out decision to be made by the UK under Protocol 36

1 December 2014-end of transitional provisions under Protocol 36; CJEU assumes jurisdiction over old Third Pillar measures and Commission enforcement powers apply

Early European cooperation

12. Following a number of terrorist acts, including the hostage taking during the 1972 Munich Olympic Games, the TREVI group was established during the December 1975 European Council meeting in Rome by Member States' ministers of justice and the interior.[5] It was an intergovernmental committee, or forum, which met and deliberated outside the formal framework of the European Economic Community (EEC). TREVI met biannually at the ministerial level, with more frequent meetings of the relevant government officials and law enforcement authorities in a number of working groups. While it initially focused on coordinating effective counter-terrorist responses among its members, it gradually began to consider wider cross-border policing and security issues. It continued to meet regularly until it was superseded by the Third Pillar arrangements under the Treaty of Maastricht.

The Schengen Area

13. In 1985, five of the then 10 EEC Member States, not including the UK or Ireland, signed the Schengen Agreement,[6] which provided for the gradual abolition of internal border controls and a common visa policy. The Agreement was supplemented by the Schengen Implementing Convention in 1990, which eventually led to the creation of a borderless Schengen Area in 1995.[7] The main purpose of the Convention was to provide for greater freedom from border controls of movements of goods, persons and services, alongside compensatory measures to enhance customs and police cooperation. It also contained provision for the pursuit of criminals across Member States' borders, cooperation on asylum and immigration, joint action against drug-trafficking and terrorism and the establishment of a computer database—the Schengen Information System (SIS)—for the exchange of information between law enforcement agencies. Until 1999, Schengen operated outside the EU Treaties, and the lack of democratic and judicial oversight was the subject of frequent criticism. It was formally incorporated into EU law by the Treaty of Amsterdam.

Treaty of Maastricht

14. Justice and home affairs cooperation first became part of the formal EU agenda with the entry into force of the Treaty of Maastricht in November 1993, which created the pillar system. The European Community (EC) became the First Pillar, and the Second and Third Pillars were the Common Foreign and Security Policy (CFSP) and Justice and Home Affairs (JHA) respectively. Unlike the First Pillar, under which action generally required decisions of the Council on the basis of proposals from the Commission, with the participation of the European Parliament and qualified majority voting (QMV) in the Council of Ministers, the Second and Third Pillars were "intergovernmental" in nature. Measures adopted within the Third Pillar required unanimity in the Council and the European Parliament had only a limited consultative role. The Commission's right to bring infringement actions against Member States for failure to fulfil their obligations under the Treaties, for example by incorrectly transposing legislation, and the jurisdiction of the European Court of Justice (ECJ), did not apply to the Second and Third Pillars.

Treaty of Amsterdam

15. With the entry into force of the Treaty of Amsterdam on 1 May 1999, the concept of an Area of Freedom, Security and Justice (AFSJ), covering all aspects of JHA, was born. One of the principal changes it introduced was the transfer of immigration and asylum measures, border controls and the areas of civil and family law, from the Third Pillar into the First Pillar (which became Title IV TEC). The Third Pillar was renamed Police and Judicial Cooperation in Criminal Matters, to reflect the change, becoming Title VI TEU. Thereafter, the Commission's enforcement powers and ECJ's jurisdiction applied to all Title IV TEC measures, broadly in line with the existing measures under the First Pillar. This was not the case with respect to the Third Pillar, which remained intergovernmental in nature, unless Member States made a declaration accepting the ECJ's jurisdiction (which a number of Member States did).

16. The UK and Ireland negotiated an opt-in arrangement in a Protocol which allowed them to control their level of participation in AFSJ measures (under the provisions transferred from the Third Pillar to the First).[8] Article 3 of the Protocol permitted the UK to choose, on a case-by-case basis, whether to opt in to measures proposed by the Commission under Title IV TEU within three months, by notifying the Council of its intention to participate. If it did not choose to opt in it was also entitled, under Article 4, to opt in at any time after its adoption by the Council (but was unable to renegotiate its terms at that stage) by notifying and securing the agreement of the Commission. The unanimity requirement[9] for the agreement of measures (Framework Decisions, Council Decisions and Conventions) under the Third Pillar obviated the need for any opt-in to be negotiated in this area; if the UK did not like a proposal, it could block it by voting against it.

17. The Schengen Protocol integrated the Schengen acquis (body of law) into the EU Treaty framework.[10] When this Protocol was agreed the UK and Ireland did not participate in any aspect of the Schengen acquis. Accordingly, Article 4 of the Protocol confirmed that both the UK and Ireland were not bound by the Schengen acquis but might at any time "request to take part in some or all of the provisions of the acquis", with the Council deciding such requests by unanimity. Article 5 set out provisions on "Schengen-building measures", which the UK and Ireland were also given the option of applying to the Council to participate in. Following the entry into force of the Treaty of Amsterdam, the Council approved a request from the UK to participate in some aspects of the Schengen acquis and a Decision was adopted in 2000, followed by an implementing Decision in 2004.[11] The UK now participates in the policing and criminal justice aspects of the Schengen acquis, but not the immigration aspects.

Treaty of Lisbon

18. The Treaty of Lisbon entered into force on 1 December 2009 and merged the First and Third Pillars. Title IV TEC and Title VI TEU became Title V of Part Three of the Treaty on the Functioning of the European Union (TFEU), and almost all JHA matters are now dealt with by QMV, with the European Parliament enjoying equal rights with the Council in the Ordinary Legislative Procedure (formerly known as co-decision).[12] However, measures concerning operational police cooperation and the establishment of a European Public Prosecutor's Office (EPPO) are subject to a Special Legislative Procedure, which continues to require unanimity in Council, with the European Parliament being consulted in the first case[13] but having to consent in relation to an EPPO proposal.[14]

19. Under the old Title VI TEU the right to initiate proposals was shared by the Commission and the Member States (whereas the Commission had the sole right of initiative in the majority of other EU measures). As a result some Framework Decisions were initiated by Member States. The Treaty of Lisbon retained the shared right of initiative but required that at least a quarter of the Member States would have to initiate a proposal for it to be valid.

OPT-INS

20. The UK and Ireland negotiated a new Protocol in the Treaty of Lisbon (Protocol 21) on the position of the UK and Ireland in respect of the whole AFSJ under Title V TFEU, which extended the opt-in procedure to include proposals under what had been Third Pillar provisions. Since the adoption of post-Lisbon PCJ measures no longer requires unanimity, they cannot be blocked by the UK alone; but if the government of the day do not like them, they need not opt in to them.

SCHENGEN OPT-OUTS

21. In line with the new Protocol 21, the Schengen Protocol was amended to permit the UK (and Ireland) complete freedom to decide whether to participate in Schengen measures. Article 5(2) of the 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 already participates. In such cases, there is a presumption that the UK will participate, but the UK may notify the Council within three months that it does not wish to take part in the Schengen-building measure in question, by opting out of the requisite proposal.

COURT OF JUSTICE OF THE EUROPEAN UNION JURISDICTION AND COMMISSION ENFORCEMENT POWERS

22. Under the TFEU the CJEU will have the same jurisdiction in relation to all AFSJ (Title V) measures as it does for any other measure. This however is subject to a 5-year transitional provision—by virtue of Article 10 of Protocol 36—which expires on 30 November 2014. Until then, the powers of the CJEU in relation to Third Pillar measures adopted before the coming into force of the Treaty of Lisbon remain as under the former TEU, that is, so far as concerns the UK, it has no jurisdiction to make preliminary rulings. Article 10 also provides that the Commission cannot initiate infringement proceedings (under Article 258 TFEU) in relation to those measures.

POST-LISBON POLICE AND CRIMINAL JUSTICE MEASURES

23. The CJEU's jurisdiction and the Commission's enforcement powers have, however, automatically applied to new or amending PCJ measures, which have been adopted since the entry into force of the Treaty of Lisbon. To date the Government have opted into the majority of these PCJ measures—many of which replace pre-Lisbon Third Pillar measures.

The origins of Protocol 36

24. The circumstances surrounding the negotiation and agreement of Article 10, Protocol 36, as part of the Treaty of Lisbon remain obscure. What is clear is that the previous Government negotiated its inclusion in the draft Treaty of Lisbon during the second half of 2007[15] and that it was agreed by the other Member States.[16]

25. Following the rejection of the Constitutional Treaty by French and Dutch voters in referendums in 2005, the Member States negotiated the Treaty of Lisbon which, in contrast to the Constitutional Treaty, consisted of a series of amendments to the existing EU Treaties. Ahead of the June 2007 European Council, which was to agree to convene an Intergovernmental Conference to negotiate a new Treaty, the Government set out four conditions—its "red lines"—which any new Treaty would have to reflect fully. These included the protection of the UK's common law systems, and its police and judicial processes. A Command Paper, which the Government published the following month, set out their negotiating aims in more detail. This did not mention securing a block opt-out option as a negotiating objective.[17] The Treaty was concluded under the Portuguese EU Presidency in Lisbon on 19 October 2007 by the Member States meeting as an Inter-governmental Conference. It was in the final stages of this meeting that agreement was reached for the UK to have the option of exercising a block opt-out from the pre-Lisbon PCJ measures.

26. At the time the Treaty of Lisbon was agreed there appeared to be an expectation that many of the PCJ measures subject to the opt-out decision would be replaced by post-Lisbon PCJ measures. Hugo Brady, from the Centre for European Reform (CER), noted this and referred to the negotiation of the opt-out as an "insurance policy" for the UK in this respect.[18] A Declaration was annexed to the Treaty of Lisbon, inviting the European Parliament, Council and Commission "to seek to adopt, in appropriate cases and as far as possible within the five-year period referred to in Article 10(3) of the Protocol on transitional provisions, legal acts amending or replacing" the police and criminal justice measures.[19]

27. In our report on the Treaty of Lisbon, we also anticipated that this would be the case, saying that

"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 … 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".[20]

28. The Minister for Immigration, Mark Harper MP, told us "Arguably, the way the previous Government negotiated that arrangement is not the best way, where we have to opt out of everything in order to opt back into the things we want to opt back into. A more sensible arrangement might have been to allow us to opt out of the things that we did not want to be in, but that is the way that it is set up".[21] The Lord Chancellor[22] echoed this point, saying that "it would have been much easier and much more straightforward if we had been able to deal with one issue at a time".[23]

29. Articles 10 (4) and (5) of Protocol 36 only apply to the UK. Ireland did not seek to have the option of opting out of the pre-Lisbon PCJ measures. Dr Gavin Barrett, an expert in JHA matters from University College Dublin, told us that the greater role that the Treaty of Lisbon envisaged for the CJEU and for the Commission regarding the former Third Pillar "did not sound the same alarm bells in Ireland, either politically or officially, that it might have in the UK. The prospect of the involvement of both institutions has been regarded with some equanimity in Ireland".[24] Hugo Brady suggested that Ireland had not signed up to the opt-out in order to avoid the risk of uncertainty.[25] Denmark has its own Protocol to the Treaties, which governs its relationship with the EU in this area.[26] We discuss this further in Chapter 5.

A decision for the UK alone

30. None of our witnesses disputed the UK's right to exercise the opt-out. Jean-Claude Piris, the former Director General of the Council Legal Service,[27] emphasised that the decision was entirely at the discretion of the UK Government, without any need for the consent or consultation of the other Member States or the Commission.[28] The Government were also clear that the "UK would be exercising a Treaty right if we choose to opt out and seek to rejoin certain measures. The EU institutions and its Member States are all bound to respect the obligations and choices that flow from the Treaties".[29]

31. In the event that the Government were to choose not to exercise the block opt-out, and then seek to rejoin particular measures that would become subject to Commission infringement procedures and the CJEU's jurisdiction, it is the Government's view, with which we concur, that this would not require a referendum under the European Union Act 2011.[30]

32. It is clear that it is the right of the United Kingdom to exercise the opt-out decision under Article 10, Protocol 36 to the Treaty of Lisbon. This right was recognised by the other Member States when they chose to ratify the Treaty of Lisbon.

5 ^{TREVIstandsforTerrorisme,Radicalisme,ExtrémismeetViolenceInternationalebutthenamederivedfromitsfirstmeetinginRome,whichtookplaceclosetotheTreviFountain.} Back

6 ^{Germany,France,Belgium,LuxembourgandtheNetherlands} Back

7 ^{Itnowincludes26Europeancountries,includingalloftheEUMemberStates,excepttheUKandIreland,andfournon-EUcountries:Iceland,Liechtenstein,NorwayandSwitzerland.Bulgaria,RomaniaandCyprushaveyettobeadmittedasfullmembersoftheSchengenArea.} Back

8 ^{Protocol(No21)onthepositionoftheU}nited ^{KingdomandIreland}in respect of the Area of Freedom, Security and Justice Back

9 ^{Underunanimity,allMemberStatescoveredbythemeasuremustbeinagreementbeforeaproposalcanbeadopted.Abstentiondoesnotpreventagreementbeingreached.} Back

10 ^{Protocol(No19)ontheSchengenacquisintegratedintotheframeworkoftheEuropeanUnion} Back

11 ^{CouncilDecision2000/365/ECof29May2000concerningtherequestoftheU}nited ^{KingdomofGreatBritainandNorthernIrelandtotakepartinsomeoftheprovisionsoftheSchengenacquis(OJL131,1June2000,p.43)andCouncilDecision2004/926/ECof22December2004ontheputtingintoeffectofpartsoftheSchengenacquisbytheU}nited ^{KingdomofGreatBritainandNorthernIreland(OJL395,31December2004,p.70)} Back

12 ^{UndertheOrdinaryLegislativeProcedure,boththeEuropeanParliamentandtheCouncilmustbeinagreementbeforeaproposalcanbeadopted.} Back

13 ^{Article87(3)TFEU} Back

14 ^{Article86(1)TFEU} Back

15 ^{GordonBrownMPbecamePrimeMinisteratthebeginningoftheperiodinquestion,on27June2007,andJacquiSmith}MP ^{wasappointedHomeSecretaryonthefollowingday.} Back

16 ^{DuringitsratificationbytheUKParliamentin2008,bywayoftheEuropeanUnion(Amendment)Bill,Protocol36attractednosubstantivediscussionintheHouseofLords.IntheHouseofCommonsthethenShadowChiefSecretarytotheTreasuryintroducedanamendmentattheCommitteeStage,on29January2008,whichwouldhaverequiredtheGovernmenttonotifytheCounciloftheirdecisiontoopt-outbeforetheexpiryofthetransitionalperiod.Thisamendmentwasultimatelywithdrawn.} Back