The UK's opt-in Protocol: implications of the Government's approach - European Union Committee Contents

The UK's opt-in Protocol: implications of the Government's approach


The scope of the report

1.  This report concerns the precedent that is set by the UK seeking to decide unilaterally whether or not it is bound by particular EU legal measures. It considers the Government's interpretation of Protocol (No. 21) to the EU Treaties[1] (the opt-in Protocol), and analyses the judgments of the Court of Justice of the EU (the CJEU) in this area. Finally, it looks at the Government's handling and analysis of the cases that have come or may come before the CJEU. All the evidence before us demonstrates that the Government's interpretation of the opt-in Protocol has been incorrect and that it will remain so.

2.  In accordance with our call for evidence we express no view on the desirability or otherwise of the opt-in mechanisms introduced by the Lisbon Treaty. The function of this report is to examine the way in which the Government has sought to interpret those mechanisms. We have therefore confined ourselves to what has happened since the coming into force of the opt-in Protocol in December 2009.

3.  We have taken a great deal of detailed evidence from specialists in this field, which we analyse in the body of the report.

JHA legislation and the UK's opt-in

4.  In December 2009, as a consequence of the Lisbon Treaty coming into force, the EU's competence to propose legislation in the fields of asylum, immigration, civil and criminal justice, and police cooperation was consolidated under one 'Title' of the new Treaty on the Functioning of the European Union (TFEU), Title V. Title V formally concerns an "Area of Freedom, Security and Justice", known more commonly as Justice and Home Affairs (JHA).

5.  As part of the Lisbon Treaty negotiations the UK and Ireland negotiated a Protocol excluding them from participation in legislation proposed or adopted pursuant to Title V, unless they decided to opt into it. This became Protocol (No. 21) to the EU Treaties, the opt-in Protocol.

When should the opt-in apply?

6.  It is plain from the terms of the opt-in Protocol that when the European Commission proposes legislation founded on a legal base[2] (or competence) under Title V of the TFEU, the UK does not participate in it unless it exercises its right to opt into it.[3]

7.  Since 2010 the European Union Committee has, however, considered a large number of EU international agreements (used when the EU wants to create legal relations with a non-EU state or international organisation) where the Government has asserted that the opt-in Protocol applies to certain provisions within those agreements, despite the absence of a legal base in Title V. It argues that the opt-in Protocol applies when in its view an EU measure contains JHA content, in addition to when a Title V legal base is formally cited. While recognising the Government's concern to ensure that the safeguards in the opt-in Protocol are respected, the Committee has repeatedly questioned this interpretation of the opt-in Protocol. In 2010,[4] for example, we said in relation to the EU-Republic of Korea Free Trade Agreement: "It is stretching this provision and the terms of the opt-in Protocol to consider that an opt-in exists when the EU exercises its competence under the common commercial policy in respect of mode 4 services".[5]

Confusion over parliamentary procedures

8.  The Government's assertion of its right not to participate in provisions of international agreements and internal EU measures based on their content alone has also led to confusion over the application of Parliament's enhanced scrutiny procedures.[6] These procedures require the Government to take account of the views of Parliament within the three-month window for opting in to proposals with a Title V legal base; the same obligation applies to decisions to opt into Title V legislation once it has been adopted. The procedures include the right of the House of Commons and House of Lords scrutiny committees to call for a debate in advance of an opt-in decision; and, where there is strong parliamentary interest, the Government has undertaken to set aside Government time for such debates on its proposed approach. The examples below demonstrate both the legal uncertainty and the confusion to which the Government's policy in respect of the opt-in Protocol can give rise.

Box 1: Framework Agreement allowing Kosovo to participate in EU programmes
The Government deposited an Explanatory Memorandum on 9 May 2013 concerning Council Decisions to sign and conclude a Framework Agreement between the EU and Kosovo allowing Kosovo to participate in EU funding programmes.[7]

On 8 October 2013 the Government wrote to the Committee saying that, after "significant analysis and consideration involving a number of Departments", it considered that two of the programmes in which Kosovo would be able to participate, Fiscalis 2020 and Customs 2020, caused "the UK's JHA opt-in to be triggered, as these programmes are pursuant to Title V TFEU." The letter continued:

"Unfortunately, the opt-in deadline expired on 22 July 2013 and as such the UK has missed the opportunity to opt-into these measures pre-adoption. However, discussions remain on-going regarding the legal bases of these agreements and we do not expect these proposals to come forward for adoption for some time. We will continue to press for citation of all appropriate legal bases, including the relevant Title V legal bases.

"I regret that this notification that the JHA opt in was triggered comes so late to your Committee. It is an unfortunate circumstance and I wish to assure you that I and my officials will continue to work to ensure that this issue does not arise again."

If the Government were right that its opt-in applied, our enhanced scrutiny procedures for opt-in decisions would have been circumvented.

It transpired that the Government's view that the opt-in applied was not shared by other Member States, with the consequence that a Title V legal base was unlikely to be added. In a letter dated 3 April 2014 it said:

"If we do not secure the citation of Title V legal bases, which appears the most likely outcome given the position of other Member States, we will not seek to frustrate the progress of the measures. Instead we will register our objections and also take the position that we regard these as being 'partial JHA measures' where we do not consider ourselves bound as part of the EU by the JHA element of the measures. This is not an ideal outcome, but is one that I believe best protects our overall interests both in seeing Kosovo proceed on its EU path and in protecting the UK's JHA position."

The Committee asked whether it was legally sustainable for the Government to conclude that it was not bound by certain provisions of an international agreement in the absence of agreement from all Member States. The Government responded in a letter dated 29 May 2014 that in its view the situation did not give rise to legal uncertainty. It would enter a statement in the Council minutes at the time of adoption explaining the UK's position, which provided sufficient clarity on its position. Negotiations are still continuing.

Box 2: The Fourth Money Laundering Directive

The Government deposited an Explanatory Memorandum on this proposal,[8] which revises and replaces the Third Money Laundering Directive,[9] on 4 March 2013. The amendments reflect changes made to the international standards on anti-money laundering and counter terrorist financing as set by the Financial Action Task Force.

The legal base for the draft Directive is Article 114 TFEU, the internal market legal base. At no stage in the Explanatory Memorandum or in subsequent correspondence with the Committee had the Government suggested that a Title V legal base was necessary, until a letter of 10 June 2014.

In that letter the Government confirmed that its "policy of close engagement with the Commission, Council Presidency and other Member States" meant that it "would look to support this version of the proposal as a basis for trilogue discussions with the European Parliament."

But it also explained that it now took the view that one of the predominant purposes of the Directive was co-operation against criminal activity, particularly terrorist financing, which it considered to be JHA co-operation. Despite not having asserted the opt-in, and not opting in, the Government accepted the UK would be bound by the measure if it were to be adopted without a Title V legal base. In terms of Parliamentary scrutiny, the Government said:

"We recognise now that we should therefore have asserted the opt-in at the beginning of negotiations and provided the Committees with an opportunity to give an opinion on whether the UK should opt in, in line with standard practice. We did not do so as we did not identify the content as being JHA in nature at an early stage. I apologise to the Committee that we did not provide you with an opportunity to consider the opt-in in relation to these proposals. We have sought to negotiate the addition of a Title V legal base, or to split out the content into a separate measure with a Title V legal base, to make it clear that this is JHA content. However we can no longer expect to achieve these aims before the proposal is put to Council for a general approach by the end of the Greek Presidency. We will therefore consider ourselves bound by this measure on adoption, despite not opting in, until such a time as the CJEU were to strike down the measure."

The Committee replied on 18 June: "We cannot believe you are suggesting that the Government intends to challenge in the Court of Justice a measure which the Government has supported throughout its negotiation, solely on the ground that it should not apply to the UK because the Government has not opted in." It asked for a further explanation.

The Government replied on 4 December, confirming that "once the measure has been adopted, the Government will consider whether or not we wish to challenge the legal basis of the measure before the Court of Justice". It is therefore clear that the Government is considering challenging the legal basis of a measure it strongly supports solely to preserve its position on the application of Title V.

9.  To avoid uncertainty we have taken the view that the enhanced scrutiny procedures apply only to proposals that cite a Title V legal base, indicating the agreement of all the Member States, rather than where the Government unilaterally asserts the application of the opt-in Protocol.

Reason for the inquiry

10.  To date, the Government has often opted in to a proposal after it has asserted that the opt-in applies in the absence of a Title V legal base. This lessens the risk of legal uncertainty as, either way, the Government accepts that it is bound by the proposal. Greater legal uncertainty arises, however, when the Government asserts the opt-in applies and then claims that it is not opting in. On 3 June 2014, the Rt. Hon. Theresa May MP (Home Secretary) and the Rt. Hon. Chris Grayling MP (Lord Chancellor and Secretary of State for Justice) wrote to the Committee to set out a revised position on what the legal consequences of this would be.[10] The letter informed us that:

·  The opt-in was triggered by the inclusion in a proposal of any JHA content, rather than by the legal base that the Commission had chosen for the proposal.

·  Although the opt-in Protocol was clear that it applied in respect of measures 'pursuant to' Title V, this did not "explicitly restrict the ambit of the Protocol to measures which cite a Title V legal base".

·  Nevertheless, the Government would push for the addition of a Title V legal base in EU negotiations when it considered a measure had JHA content.

·  However, the Government recognised that "the principle of validity" meant that EU legislation must be assumed to be valid unless or until it was annulled by the CJEU. Accordingly the UK would be bound by a JHA measure without a Title V legal base once it was adopted.

·  This principle of validity, however, only applied where JHA policy was the whole purpose of a measure or was one of the two main purposes. It did not apply where JHA policy was not one of the main purposes, in other words where it was ancillary.

·  For proposals with a JHA content but where no Title V legal base was cited, the Government would make an opt-in decision within three months of the publication of the proposal. It would also give Parliament an opportunity to offer an opinion on whether the Government should opt in, in line with the enhanced scrutiny procedures.

·  The Government would consider bringing challenges before the CJEU where it believed there was JHA content but that this was not reflected in the choice of legal base for the adopted text.

·  Because of the difficulties inherent in identifying JHA content, there might be occasions where the Government failed to recognise JHA content in a proposal at the outset. In such circumstances, where the Government was successful in adding a Title V legal base, it was committed to going through the opt-in process post-adoption.

11.  The reasoning underpinning the Ministers' letter prompted us to hold a short inquiry into the Government's approach to the opt-in Protocol, in particular in relation to international agreements: we wanted to seek the views of legal experts on a disagreement that had up to this point largely been confined to the UK Government and Parliament. Chapters 3 and 4 assess the strength of the Government's legal arguments in the light of the expert evidence received. Chapter 5 looks at the consequences of the Government's opt-in policy on EU legal principles of legal certainty and sincere cooperation.

12.  We were also prompted by a series of recent judgments from the CJEU, which appeared to us to question the Government's opt-in policy. We wanted to seek the views of legal experts on these cases too. A summary of each of these judgments is set out in Chapter 7 of this report. Three of the cases concern unsuccessful legal challenges by the Government against international agreements where it considered that a Title V legal base should have been used.[11] In two further cases the Council had added a Title V legal base to the Commission's proposal, but the Commission successfully challenged the adopted legislation to have the Title V legal base removed.[12] The most recent case was decided on 18 December 2014.[13]

13.  Chapters 6, 7 and 8 assess the basis for the Government's concerns that the safeguards in the opt-in Protocol are being circumvented, and the strength of its litigation strategy to prevent further circumvention.

14.  The final chapter considers when the three-month opt-in period should start when the Council adds a Title V legal base in the course of negotiations.

15.  Although the inquiry terms of reference focused on the opt-in and EU international agreements, the evidence we took, and the conclusions we draw, relate in many instances as much to the opt-in and internal EU measures. It became clear, however, that determining whether an international agreement should have a Title V legal base was a more complex exercise.

16.  In reaching our conclusions we have been aided by the views of academic EU lawyers, the Law Societies of England and Wales and Scotland, and the European Commission. We are most grateful to all those who took the time and trouble to give us their views. The list of witnesses is contained in Appendix 2 of the report.

17.  We make this report to the House for debate.

The Government's cooperation with the inquiry

18.  The inquiry was launched on 28 July 2014. The call for evidence closed on 30 September without the Government's evidence being received. Our staff pressed Government officials for a date by which the Government would submit its evidence. At the end of October, they were told that Ministers were still considering the impact of the Philippines judgment[14] on UK opt-in policy (delivered on 11 June 2014), and that until those considerations had concluded it was unlikely the Government would be providing written evidence.

19.  This prompted a letter from our Chairman, dated 30 October, asking the Government to submit evidence and requesting Ministers to appear before the Committee on 10 December. No response to that letter was received. The Chairman sent a follow-up letter on 27 November.

20.  On 11 December the Home Secretary and Secretary of State for Justice replied to our letters, enclosing the Government's written evidence. They explained that the delay was a result of the complexity of the Philippines judgment:

    "The Government is of course absolutely committed to co-operating with any Parliamentary inquiries. Unfortunately, in this instance, the Government has been unable to provide evidence more quickly. This is because we have been considering some complex legal issues related to the outcome of recent judgments of the European Court of Justice. We have therefore been unable to provide written evidence that we felt adequately addressed the questions raised in the call for evidence for this inquiry. The Government is still considering some aspects of the impact of the Philippines judgment."[15]

21.  Four months elapsed from the launch of the inquiry before the Home and Justice Secretaries submitted written evidence and confirmed their readiness to attend to give oral evidence. Until December the cooperation from their departments was such that we contemplated having to report without the benefit of government evidence. Seven months was an excessive amount of time to consider the judgment of the CJEU in the Philippines case. The complexity of that judgment in no way justified the Government's failure to cooperate with a select committee inquiry. We urge future Governments to ensure such practice does not reoccur.

1   Protocol (No.21) to the EU Treaties is formally entitled: "On the Position of the United Kingdom and Ireland in Respect of the Area of Freedom, Security and Justice". Back

2   The legal base is the Treaty provision which gives the EU competence to act. All EU legislation has to be premised on a legal base in the EU Treaties: without one it has no competence to act. Back

3   Chapter 2 contains a summary of the most significant JHA legislation, proposed under Title V, which the UK has not opted in to since the Lisbon Treaty came into force. Back

4   Letter from Lord Roper, Chairman of the European Union Committee, to Edward Davey MP, Minister of State for Employment Relations, Consumer and Postal Affairs, Department for Business, Innovation and Skills, 27 July 2010 Back

5   "Mode 4 services" are commitments to admit service professionals from existing members of the World Trade Organisation. Back

6   The procedures derive from Written Ministerial Statements made to the House of Lords by Baroness Ashton of Upholland in June 2008 and to the House of Commons by David Lidington MP in January 2011. They are set out in Ministry of Justice and Home Office, Code of Practice on Scrutiny of Opt-In and Schengen Opt-Out Decisions in Justice and Home Affairs Matters: [accessed 10 March 2015] Back

7   Proposal for a Council decision on the signing, on behalf of the European Union, of a Framework Agreement between the European Union and Kosovo( on the general principles for the participation of Kosovo in Union programmes, COM(2013) 218 and Proposal for a Council decision on the conclusion of a Framework Agreement between the European Union and Kosovo( on the general principles for the participation of Kosovo in Union programmes COM(2013) 219 Back

8   Proposal for a Directive on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, COM(2013) 45 Back

9   Directive 2005/60/EC of the European Parliament and of the Council on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing: (OJ L 309, 25 November 2005) Back

10   Letter to the Chairman from the Rt. Hon. Teresa May MP, Home Secretary and the Rt. Hon. Chris Grayling MP, Secretary of State for Justice, 3 June 2014 Back

11   C-431/11 UK v Council; C-656/11 UK v Council; C-81/13 UK v Council  Back

12   C-43/12 Commission v European Parliament and Council; C-377/12 Commission v Council Back

13   C-81/13 UK v Council Back

14   Case C-377/12 concerned the legal basis for a Framework Agreement on Partnership and Cooperation between the EU and the Philippines. It is explained at paras 150-155 (of this report). Back

15   Letter from the Home Secretary and Justice Secretary to the Chairman of the European Union Committee, 11 December 2014 Back

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