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


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,[72] which we summarise as follows:

·  The 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.[73] 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:

·  If 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 conclusion.[74]

·  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 Decision—a 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."[75]

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 beyond doubt."

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 measures.

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.[76] The Home Secretary said that "most people … would assume" 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."[77]

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."[78]

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".[79] 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."[80]

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."[81]

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.[82] 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."[83]

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."[84] 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.[85]

78.  Janice Atkinson MEP (UK Independence Party) concluded that the Protocol was "the handmaiden of the treaty and not the equal".[86]

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[87] concerned a Council Decision to exclude the UK from participating in the EU borders agency, FRONTEX,[88] 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."[89]

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

73   See, for example, the written evidence from the Home Office and Ministry of Justice, paras 11 and 12 (OIA0009) Back

74   Written evidence from the Home Office and Ministry of Justice, paras 13-20 (OIA0009) Back

75   Written evidence from the Home Office and Ministry of Justice, para 15 (OIA0009) Back

76    Q43 (Chris Grayling MP) Back

77    Q43 Back

78   The case concerned the EEC-Turkey Association Agreement. It is explained at paras 156-162. Back

79   Written evidence from Professor Chalmers, para 2 (OIA0001) Back

80    Q2 Back

81   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

82   Written evidence from the Law Society of England and Wales and the Law Society of Scotland, para 15 (OIA0004) Back

83     Q21.  Back

84    Q2 Back

85   Ibid. Back

86   Written evidence from Janice Atkinson MEP (UKIP) (OIA0003) Back

87   Case C-77/05 UK v Council Back

88   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

89    Q34 Back

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