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


CHAPTER 3: THE MEANING TO BE GIVEN TO "PURSUANT TO" IN ARTICLES 1 AND 2 OF THE OPT-IN PROTOCOL


The Government's view

38.  In its written evidence, the Government said that Articles 1 and 2 of the opt-in Protocol:

    "Are not restricted to provisions in agreements concluded under a Title V legal base, but to those adopted or concluded 'pursuant to' Title V. This is a broader test which, in the Government's view, extends to any provision in an international agreement that contains content where the EU competence for negotiating, signature and conclusion of that agreement flows from Title V of the Treaty on the Functioning of the European Union or TFEU, that is, JHA content".[35]

39.  As a consequence, the Government stated that any agreement "which includes relevant JHA content triggers the opt-in",[36] whether or not a Title V legal base is cited. The Government explained that this content might range from specific obligations to implement certain measures, including possibly criminal sanctions or civil law measures, to specific requirements on the police or other law enforcement services to co-operate in the prevention, detection and investigation of criminal offences, to requirements on the UK in relation to immigration rules.

40.  In the Government's view the opt-in Protocol formed an integral part of the fundamental structure of the EU Treaties, and gave express rights to the UK and Ireland which could not be undermined by secondary sources of EU law, such as Regulations, Directives and Decisions, including those on negotiating mandates, and on the signature and conclusion of international agreements entered into by the EU.[37]

41.  In practice, this meant that where, in the case of international agreements, the Decisions containing negotiating mandates, or on signature and conclusion of that agreement, did not cite a JHA legal base, the Government would consider whether a measure contained JHA content, and if it did, the Government would assert that the opt-in applied and then decide whether or not to opt in, within the three-month period set out in the Protocol. The Government would seek the citation of a JHA legal base to make it clear that the measure contains JHA content.[38]

42.  We questioned the Home and Justice Secretaries about the Government's interpretation in evidence. Both commented that the CJEU had not ruled on the interpretation of "pursuant to" in the opt-in Protocol. Until it did, the meaning was unclear and the Government was entitled to maintain its interpretation: "The question that we are discussing today is whether the words 'pursuant to' entitle us to take the view that we have, and unless and until we get such a view, which as I say generates a political discussion, I see no likelihood of the Government changing their position."[39]

43.  We asked the Ministers whether the Government's interpretation of "pursuant to" would have implications for the interpretation of the term in the other 98[40] places it is used in the EU Treaties. The Justice Secretary said that this "might be the case", but that it would not be a problem for the UK: "My issue, as Secretary of State for this Government, is looking after the interests of the United Kingdom."[41] John Ward, Deputy Director, EU & International Team, in the Legal Adviser's Branch of the Home Office, said that "pursuant to" had to be read in the specific context of the opt-in Protocol: "Protocol 21, we say, is different because of the particularly sensitive nature of justice and home affairs matters. But it is clear, looking at the context of the rest of the treaty, that it is fully recognised that justice and home affairs matters are difficult and sensitive, which helps to interpret Protocol 21."[42] The Home Secretary agreed, saying you had to look at the specific context within which "pursuant to" was used; it was not possible to give it one meaning throughout the Treaties.[43]

The European Commission's view

44.  In its written evidence the Commission said that "pursuant to" meant "that the measure in question must have a provision in Title V of Part Three of the Treaty as its legal basis."[44] The opt-in Protocol drew:

    "A logical connection between not taking part in the adoption of a measure and not being bound by it (Article 2 of the Protocol describes the one as the 'consequence' of the other). Yet, the Government's position implies that the United Kingdom, after having taken part in the adoption of a measure, may subsequently consider itself not to be bound by some of its provisions."

45.  In more general terms, the Commission stated that the correct legal base was necessary to determine whether and to what extent the EU had competence to conclude an international agreement, as well as the internal EU procedures for conclusion. Citing the Opinion of Advocate General Kokott, the Commission concluded that "the legal base also paves the way for application of the UK and Ireland's opt-out rights."[45]

The views of expert witnesses

OVERVIEW

46.  We invited a wide range of expert witnesses to contribute to our inquiry, and in particular asked them whether they thought the Government's interpretation of "pursuant to" was legally reasonable. None did. Professor Steve Peers of the University of Essex said there were "overwhelming reasons" to conclude that the Government's interpretation was "unconvincing".[46] Professor Damian Chalmers, Professor of European Law at the London School of Economics, concluded that the Government's interpretation was "particularly challenging".[47] Professor Gavin Barrett, Professor of European Constitutional and Economic Law at University College Dublin, thought it a "singularly unlikely interpretation".[48]

47.  The only partial exception was Dr Anna Bradshaw, Member of the Law Society of England and Wales' EU Committee, who said initially that the Government's reading of "pursuant to" was "certainly a possible interpretation",[49] but who later concluded that "'pursuant to' should be interpreted as requiring a legal basis."[50]

THE PRINCIPLE OF CONFERRAL

48.  Professor Marise Cremona, Professor of European Law, European University Institute, Florence, thought the Government approach was "misconceived, legally speaking".[51] Echoing the views of the Commission, she said:

    "The legal basis is the power-conferring basis of a measure. It is important precisely because of the principle of conferral, the EU only having powers that have been conferred on it by provision in the treaties, so the legal basis is the source of the EU's power. 'Adopted pursuant to Title V' of Part 3 of the TFEU refers precisely, it seems to me, to the legal basis, to the source of the power pursuant to which the EU can act. So, in my view, 'pursuant to' cannot be a synonym for 'relevant' or 'related to'." [52]

THE ORDINARY MEANING OF "PURSUANT TO"

49.  Prof Peers said that the expression "pursuant to" had an obvious legal meaning: it required a direct link with a parent measure. If the drafters of the Protocol had intended the broad notion of the words advocated by the Government, they would have made it clear with different wording.[53]

50.  Two witnesses looked at how "pursuant to" was expressed in other EU language versions of the opt-in Protocol (all of which have equal legal status as aids to interpretation). Prof Cremona thought that the French version, en application de ce titre, and the Italian version, a norma di detto titolo, "clearly expressed the concept of being based on or adopted according to that title",[54] and were therefore inconsistent with the Government's interpretation. Prof Chalmers found the German version (nach dem Dritten Teil Titel V) the most helpful in construing the correct meaning: "I do not see nach as 'flowing from' at all; I see it as 'according to' or 'in accordance with' particular procedures, and that is how it has been used in case law by the Court of Justice."[55]

51.  Prof Cremona referred to a recent case[56] in which the CJEU decided that the expression "agreements [that] relate exclusively to the Common Foreign and Security Policy" meant a legal base in the Common Foreign and Security Policy was required.[57] She commented: "It is in a different context, of course, but even where the word is 'relate' and not 'pursuant to' the court is using the legal basis test as a test of the procedural rules to apply, the reason for that being, among others, legal certainty."[58]

Use of "pursuant to" elsewhere in the EU Treaties and Protocols

52.  Prof Barrett noted that "pursuant to" appeared in 99 places in the EU Treaties, Protocols and Declarations.[59] Prof Chalmers thought it appeared 100 times.[60] Prof Chalmers expected "some consistency when the same term is used throughout the treaty".[61] If there were no such consistency, the consequences for the UK would not necessarily be welcome:

    "If you look at where 'pursuant' is used in some cases, the provision does not make sense if you give it the interpretation accorded by the Government … I would refer in particular to Article 60 on services, which allows states to liberalise services more beyond EU legislation … There is a similar problem of repetition in Article 169 on consumer protection. I think the British Government would have to explain the implications, some of which I do not think they would like as they are normally used to enlarge EU competencies, for other parts of the treaty."[62]

53.  Prof Peers also thought the Government's interpretation was "one they might regret": there might be other circumstances in which the words "pursuant to" "ought to be interpreted more narrowly from the UK Government's point of view".[63]

UNILATERAL INTERPRETATION OF A PROTOCOL

54.  Prof Cremona said that the opt-in Protocol had to be "capable of objective determination".[64] It was not simply a matter of the individual judgment of a Member State:

    "The protocol … is not a unilateral declaration by the United Kingdom and Ireland. It is not a matter for their interpretation alone, but needs to be interpreted as a matter of EU law and on which the court has ultimate authority. The letter [of 3 June] seems to regard the application of the protocol as, ultimately, a matter of UK prerogative and I think this is fundamentally misconstruing the legal status of the protocol."[65]

55.  Dr Bradshaw agreed that the opt-in Protocol did not merit "a separate layer of interpretation",[66] while Prof Chalmers said that the Government's interpretation of the opt-in Protocol afforded it a primacy over other provisions of the Treaties and Protocols that lacked any evidential basis at all.[67]

SUPPORT FOR THE GOVERNMENT'S INTERPRETATION

56.  None of the witnesses was able to identify an academic lawyer, Member State or EU institution that shared the Government's interpretation of "pursuant to". Prof Barrett, was "not aware of anyone other than the Government taking this view".[68] He said that Ireland had "never publicly pronounced on this issue", but that it had "never once attempted to opt into any measure on the basis of such an interpretation".[69]

57.  It may also be, as Prof Barrett said, that the Government's policy is not being taken very seriously, and so has "not attracted an awful lot of attention".[70] Prof Peers made the point more starkly: "There is so little support for the Government's position that I do not think anyone seriously believes it."[71]

58.  None of the written or oral evidence we received in the course of this inquiry supported, or referred to others supporting, the Government's interpretation of "pursuant to".

59.  We note in particular that Ireland, which would seem to stand to gain the most were the UK's interpretation to be right, does not follow the UK's practice of asserting the application of the opt-in Protocol in the absence of a Title V legal base.

60.  We conclude that the phrase "pursuant to" has an accepted legal meaning, namely that a Title V legal base is required before the opt-in can be triggered. A link to a legal base is also necessary to define the source of the EU's power to act, and this is consistent with the principle of conferral. We agree that the opt-in Protocol, as with any Protocol to the EU Treaties or Treaty Article, has to be viewed objectively, rather than subjectively.

61.  The Government's interpretation leads to anomalous consequences that further undermine its argument. It automatically renders the position of Ireland and Denmark legally uncertain—are they presumed not to participate in a measure if the UK has asserted that it has JHA content? It is striking that the very broad interpretation of "pursuant to", on which the Government seeks a ruling from the CJEU, would give the EU wide powers to increase its competence in other fields. There is a potential irony to this to which the next Government should pay particular heed.

62.  It follows that we are unpersuaded by the Government's interpretation of "pursuant to". We found the argument that "pursuant to" in the opt-in Protocol should be singled out for different interpretation from elsewhere in the Treaties equally unconvincing.

63.  We recommend that the Government reconsider its interpretation of "pursuant to".


35   Written evidence from the Home Office and Ministry of Justice, para 5 (OIA0009) Back

36   Ibid. Back

37   Written evidence from the Home Office and Ministry of Justice, para7 (OIA0009) Back

38   Written evidence from the Home Office and Ministry of Justice, para 8 (OIA0009) Back

39    Q45 (Chris Grayling MP) Back

40   See para 52 of this report Back

41     Q45 Back

42   Ibid. Back

43    Q46 Back

44   Written evidence from the European Commission, para 5 (OIA0010) Back

45   Ibid. The Commission's evidence cites the Opinion of Advocate General Kokott in Case C-81/13 at paragraph 41. Back

46    Q1 Back

47    Q34 Back

48     Q1 Back

49    Q12 Back

50    Q13 Back

51    Q23 Back

52   Ibid. Back

53    Q1 Back

54    Q23 Back

55    Q32 Back

56   Case C-658/11 Back

57    Q23 Back

58   Ibid. Back

59    Q1  Back

60    Q32 Back

61    Q33 Back

62    Q32 Back

63    Q1 Back

64    Q23 Back

65    Q25 Back

66     Q12 Back

67    Q32; and written evidence from Professor Chalmers, paras 4-7 (OIA0001) Back

68    Q1 Back

69   Ibid. Back

70    Q7 Back

71   Ibid. Back


 
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