CHAPTER 4: DETERMINING THE LEGAL BASE
OF AN EU MEASURE WITH JHA CONTENT |
64. The question of how to determine the correct
legal base of EU measures has long been tussled over by EU Member
States and institutions, the legal base being the source of the
EU's power to act.
65. As a consequence, as far back as 1990, the
CJEU defined a test for determining legal base that it has applied
ever since. The test was set out in the Commission's written evidence,
which we summarise as follows:
legal base of a measure depends on the predominant purpose, which
can be objectively assessed by looking at the stated aim and content.
· If a
measure has several purposes, none of which is incidental to the
other (more often the case in international agreements), a legal
base for each objective is required, provided that the decision-making
procedures under each legal basis are compatible with each other.
· An incidental
objective does not require a legal base.
66. There is no disagreement between the Government
and our expert witnesses that this is the correct approach to
determining legal base.
At issue is whether this approach should be varied for determining
whether JHA legal bases are necessary under Title V TFEU.
The Government's views
67. The Government's written evidence divided
measures with JHA content into three categories:
an international agreement pursued solely a JHA purpose, which
it described as a "whole JHA measure", the normal legal
base rules would require just a JHA legal base for the relevant
Decision containing the negotiating mandate or on signature or
· If an
international agreement pursued both a JHA and another objective
with neither being incidental, what the Government called "a
partial JHA measure", two legal bases would be needed for
the relevant Decisiona JHA legal base and a legal base
corresponding to the other objective.
· If an
international agreement pursued two objectives, a JHA objective
and a non-JHA objective, with the JHA objective being incidental
to the non-JHA objective, an "incidental JHA measure",
then under the normal legal base rules the relevant Decision would
only require the legal base that corresponded to the non-JHA objective.
68. The Government advanced two possible arguments
as to why the UK would not be bound by the JHA content of an incidental
JHA measure. First, the absence of a JHA legal base would not,
under the normal legal base rules, render the measure invalidly
adopted (because there is no need to cite a legal base for incidental
matters). But, according to the Government, "the UK is nevertheless,
by virtue of Protocol 21, not bound by the JHA provisions of the
international agreement in so far as the agreement binds the EU."
69. Second, the normal legal base rules should
not apply to JHA matters:
"This is because the existing legal base
rules were established before the full implications of Protocol
21, as a matter of primary law governing the special position
of the UK and Ireland, had been addressed in the case law of the
CJEU. The special position of the UK and Ireland is recognised
by the fact that the UK only participates in the police and criminal
justice cooperation elements of the Schengen acquis
As a result, the citation of a JHA legal base in relation to incidental
JHA content is required and a separate Decision can be adopted.
The splitting of the Decisions helps clarify the situation and
the citation of a JHA legal base puts the operation of the opt-in
70. In sum, the Government argued that it was
legally bound by whole and partial JHA measures, unless they were
successfully challenged by the CJEU, but not by incidental JHA
71. Both Ministers cited public support for the
Government's interpretation of the opt-in Protocol, saying its
interpretation was consistent with what "this country [the
UK] thought it had signed up to" when the Protocol was drafted.
The Home Secretary said that "most people
that the intention of the opt-in Protocol was "that on any
matter that related to justice and home affairs, that ability
to determine whether to be part of that should rest with the UK."
The views of the Commission
72. The Commission concluded that neither the
advent of the opt-in Protocol nor the fact that an EU measure
was thought by the UK to contain JHA content affected the established
case-law on the determination of legal base, as had been recently
confirmed by the CJEU:
"To determine whether a measure constitutes
a measure 'pursuant to Title V of Part Three of the Treaty on
the Functioning of the European Union' regard must be had to its
legal basis. Whether a measure must have a provision in Title
V of Part Three of the Treaty as its legal basis must, in turn,
be determined by reference to established case-law that focuses
on objective factors. This interpretation of Protocol No 21 is
consistent with its wording, promotes legal certainty and foreseeability
in its application, and helps ensuring that no Member State or
institution can circumvent its provisions. Furthermore, this interpretation
of Protocol No 21 is borne out by the judgment of 18 December
2014 in Case C-81/13 United Kingdom v Council."
The views of the expert witnesses
73. None of the expert witnesses thought the
Government's analysis was consistent with either the opt-in Protocol
or the rules established by the CJEU for determination of the
legal base of a measure. They agreed that an incidental JHA provision
did not change the legal base of a measure. This meant that, unless
the legal base fell under Title V and the UK had opted out, it
was bound by the entirety of the measure.
74. Prof Chalmers said that the Government approach
was "unconvincing in the extreme".
Prof Peers said:
"I think the whole logic of that reasoning
is flawed from the outset, because the Court of Justice has always
said that, for ancillary provisions of EU legislation and international
treaties, you look to the predominant purpose of the legislation
for the international treaty. The legal base is determined by
the predominant purpose, not by the secondary purpose, and any
ancillary provisions which are marginal are ignored when determining
the legal base. Once you start using the word 'ancillary', it
necessarily leads you to that case law. If an international treaty
or an EU legislative measure has an ancillary JHA purpose, that
must mean that its main purpose is something else and that must
mean that the legal base of the treaty or legislation is that
something else, and it is not JHA at all. Therefore the Title
V protocol cannot be invoked: it is irrelevant."
75. Professor Basilien-Gainche, Professor of
Public Law at the University of Jean Moulin, Lyon, agreed that
the Government's interpretation of main and ancillary purposes
was not consistent with CJEU case law, although she was critical
of how the CJEU decided the correct choice of legal base:
"The determination of the legal base of
an EU norm must take into account its main or predominant object,
the presence of some ancillary or incidental provisions not having
any consequence on such a determination. Notwithstanding, such
a position of the [CJEU] can be criticised and must be questioned."
76. Dr Bradshaw also doubted the strength of
the Government's argument, given recent CJEU decisions in which
it held that the opt-in Protocol was not capable of having any
effect on the question of the correct legal base; rather it was
the legal base for a measure which determined whether the Protocol
applied. She did
agree, however, that it was not always clear that the CJEU got
the distinction between predominant and ancillary purposes right:
"The legal basis question is answered by
reference to what the primary content or purpose of the measure
is. It is quite clear from that case law that an ancillary content
or purpose would not be sufficient to found a legal basis."
77. Prof Barrett regarded the Government's approach
as "deeply problematic" and "a fairly fundamental
challenge to the EU legal order", which had "implications
for the rule of law in the European Union, and also for legal
certainty and uniformity."
He was puzzled as to how the UK Government intended to act on
its belief that it was not bound by JHA provisions it had not
opted in to. He thought this policy actively defied EU law and
was a recipe for Commission prosecutions, prosecution by other
Member States and fines under EU law.
78. Janice Atkinson MEP (UK Independence Party)
concluded that the Protocol was "the handmaiden of the treaty
and not the equal".
79. Prof Cremona and Prof Chalmers both noted
that the CJEU had applied the same predominant purpose test since
1990. Since then, it had not thought it necessary to change or
update the test. Neither thought it would do so now.
80. Prof Chalmers referred us in particular to
a case in which the UK had used the established approach to determining
legal base for a measure which it argued concerned JHA policy.
The case concerned
a Council Decision to exclude the UK from participating in the
EU borders agency, FRONTEX,
on the ground that it constituted a development of provisions
of the Schengen acquis in which the UK did not participate.
The UK wanted to participate in FRONTEX, and argued that the Regulation
establishing FRONTEX had been wrongly classified as a Schengen-building
measure. Prof Chalmers said that the UK "used the aim and
content rule for that. This was just as sensitive. It went to
a similar-style protocol that could apply to policing, judicial
co-operation and criminal matters."
81. All the evidence we received contradicted
the Government's approach to determining the legal base of a measure
with JHA content. We accept the weight of that evidence.
82. We conclude, therefore, that the Government's
distinction between whole, partial, and incidental JHA measures
is misconceived. Its effect is to make a clearly established legal
principle inordinately complex. A whole or partial measure should
have a Title V legal base in any event, as a matter of EU law,
because the JHA content is a predominant purpose. An incidental
JHA measure would bind the UK, because the absence of a Title
V legal base would prevent it from opting out of it.
83. The Government's citing of the public's
claimed perception of the opt-in Protocol to support its analysis
lacks legal credibility.
84. We recommend that the Government reconsider
its current approach to determining the legal base of a measure
with JHA content.
72 Written evidence from the European Commission,
paras 7 and 8 (OIA0010) Back
See, for example, the written evidence from the Home Office and
Ministry of Justice, paras 11 and 12 (OIA0009) Back
Written evidence from the Home Office and Ministry of Justice,
paras 13-20 (OIA0009) Back
Written evidence from the Home Office and Ministry of Justice,
para 15 (OIA0009) Back
Q43 (Chris Grayling MP) Back
The case concerned the EEC-Turkey Association Agreement. It is
explained at paras 156-162. Back
Written evidence from Professor Chalmers, para 2 (OIA0001) Back
Prof Basiien Gainche's criticism of the CJEU's approach to determining
whether a Title V legal base exists is considered in chapter 7,
para 180. Back
Written evidence from the Law Society of England and Wales and
the Law Society of Scotland, para 15 (OIA0004) Back
Written evidence from Janice Atkinson MEP (UKIP) (OIA0003) Back
Case C-77/05 UK v Council Back
Regulation 2007/2004 establishing a European Agency for the Management
of Operational Cooperation at the External Borders of the Member
States of the European Union, (OJ L 349, 25 November 2004) Back