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".
39. As a consequence, the Government stated that
any agreement "which includes relevant JHA content triggers
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.
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.
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."
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
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
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." 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.
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."
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
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."
The views of expert witnesses
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
Professor Damian Chalmers, Professor of European Law at the London
School of Economics, concluded that the Government's interpretation
was "particularly challenging".
Professor Gavin Barrett, Professor of European Constitutional
and Economic Law at University College Dublin, thought it a "singularly
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",
but who later concluded that "'pursuant to' should be interpreted
as requiring a legal basis."
THE PRINCIPLE OF CONFERRAL
48. Professor Marise Cremona, Professor of European
Law, European University Institute, Florence, thought the Government
approach was "misconceived, legally speaking".
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'." 
THE ORDINARY MEANING OF "PURSUANT
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.
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",
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."
51. Prof Cremona referred to a recent case
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.
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
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.
Prof Chalmers thought it appeared 100 times.
Prof Chalmers expected "some consistency when the same term
is used throughout the treaty".
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
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."
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".
UNILATERAL INTERPRETATION OF A PROTOCOL
54. Prof Cremona said that the opt-in Protocol
had to be "capable of objective determination".
It was not simply a matter of the individual judgment of a Member
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."
55. Dr Bradshaw agreed that the opt-in Protocol
did not merit "a separate layer of interpretation",
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
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".
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".
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".
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."
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
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
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
uncertainare 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
Written evidence from the Home Office and Ministry of Justice,
para7 (OIA0009) Back
Written evidence from the Home Office and Ministry of Justice,
para 8 (OIA0009) Back
Q45 (Chris Grayling MP) Back
See para 52 of this report Back
Written evidence from the European Commission, para 5 (OIA0010) Back
Ibid. The Commission's evidence cites the Opinion of Advocate
General Kokott in Case C-81/13 at paragraph 41. Back
Case C-658/11 Back
Q32; and written evidence from Professor Chalmers, paras
4-7 (OIA0001) Back