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


Legal Certainty


85.  In its written evidence the Government said it was important that other Member States, the EU Institutions and third countries should be clear on whether or not the UK (and Ireland and Denmark) were taking part in particular provisions of international agreements and relevant EU measures which might be required to implement them.

86.  In relation to mixed agreements, a recital was usually included in such agreements, which indicated to the third country in question that the UK, Ireland and Denmark have a special position in EU law in relation to JHA provisions of this agreement. The recital made it clear that the UK, Ireland and Denmark were each bound as individual Member States where not participating in provisions as part of the EU.

87.  In addition, when a Decision containing a negotiating mandate or to sign or conclude an agreement, which the Government considered triggers the opt-in, was adopted without a JHA legal base, the Government made it clear whether or not the UK had opted in and was bound by the measure.

88.  If the Government had opted in, it would send a letter to the Council to this effect, to put its opt-in "beyond doubt", and would also seek the addition of recitals in the text of the Decisions to sign and conclude the agreement, setting out the position of the UK. In some cases, the UK was not able to secure the addition of recitals to the text and so resorted to laying a unilateral statement, attached to the minutes of the relevant Council meeting, setting out the position of the UK. The UK's position in the Council was an EU matter. In mixed agreements, the UK would either be bound as a Member State or as part of the EU.

89.  In its letter of 3 June 2014, the Government explained that, 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 committed to going through the opt-in process post-adoption.

90.  In evidence the Home Secretary said that the Government's interpretation of the opt-in Protocol had not, in practice, led to legal uncertainty:

    "I do not think we are aware of any case in practice where this has been a real problem. We always seek to ensure that our position in relation to the relevant international agreement is clear, and that can be by agreeing recitals, as you have suggested … or by laying unilateral statements setting out our position. That would happen whether or not a Title V legal base was cited. We are very aware, as you say, of the importance of ensuring that our position is clear, but we would always take steps to make that position clear and to provide that legal certainty as far as we can. As I say, we are not aware of any case where there has been a particular problem in relation to this."[90]


91.  The Commission, in contrast, concluded that the Government's interpretation of the opt-in Protocol would create considerable uncertainty:

    "It would create considerable uncertainty as to when and whether Protocol No 21 applies. Such uncertainty is particularly problematic in the context of international agreements, as it would mean that third countries might be unable to assess, when they conclude an agreement with the European Union, to what extent the Union assumes liability with respect to the United Kingdom. This will ultimately affect the correct implementation of the pacta sunt servanda principle, a cornerstone of international law."[91]


92.  All witnesses agreed that the potential for legal uncertainty was great, not only for the third country, but also for the Danish and Irish positions, and for individuals seeking to enforce their rights under international agreement once entered into force. Prof Peers said that one of the purposes of the Protocol, and the formal processes for opting in and out of it, was to create legal certainty on what applied to the UK, Ireland and Denmark.[92] This was reflected by the Council's practice of using recitals to clarify the positions of these States, as explained in the Government's evidence. He also thought that legal certainty was just as important for third states and individuals:

    "They [Member States] ought to know exactly who they are signing up to. That is perfectly reasonable. It is very important for individuals, too. If you are a Swiss person who moves to the UK, it is important that you know what exactly is happening with your social security contributions and whether they count when you go back to Switzerland. The same is true of a British citizen moving to Switzerland. It is important for them to be able to know what is happening, and important for the people who run the social security system in terms of national administrations. Those are complex enough without adding some great degree of uncertainty over whether they apply to the UK, Ireland or Denmark. It is important to people advising them such as lawyers or other types of advisers."[93]

93.  Prof Cremona agreed that the unilateral declaration by one Member State that it did not regard itself as bound by a particular provision of an agreement, without any basis for this in the concluding decision, created "an unacceptable level of uncertainty for third countries".[94]

94.  Prof Barrett distinguished between actual and potential uncertainty. He was unaware of whether actual legal uncertainty had been caused, because the Government's policy was not taken seriously and so had attracted little attention; but he thought that the potential uncertainty which the policy could cause in practice was "enormous". The Government "seemed to be asserting the right on the part of any Member State to regard individual provisions of measures to be inapplicable to them". If that were so, it had "implications for the rule of law in the European Union, and also for legal certainty and uniformity in the EU legal order".[95]

95.  He explained the more practical consequences with reference to previous correspondence between the Committee and the Government:

    "That situation was perfectly summarised in the letter in December 2011 from Lord Roper to the Home Secretary[96], in which he hypothesises—I quote him because it is as well put as I have seen it put: 'The Government would assert that it does not participate unless it opts in, so it will do nothing and will presumably not vote in the Council. The Commission and the other members of the Council will consider that the UK is participating in negotiations and will be bound by the result. There will be no recital recording that the measure does not apply to the UK. On the adoption of the measure, how would a citizen decide what the law in the UK is?'"

96.  Prof Barrett added that the same uncertainty would apply to the Irish and Danish positions, because they would have the right not to opt into JHA measures, and might have exercised that right in relation to any given proposal: "One just would not know."[97] He also thought the policy would create uncertainty for parliamentary committees in knowing how far the opt-in Protocol applied[98] and knowing what to review.[99]

97.  We accept there is a distinction between actual and potential legal uncertainty. But the potential of the Government's policy to create real legal uncertainty is very considerable indeed. The unilateralism of the Government's approach also raises serious questions about the UK's acceptance of the uniform application of EU law, the defining trait of the rule of law in the European Union. We are concerned by this, and by the possible implications for the UK's reputation as a negotiating partner among other Member States

98.  The Government's policy is creating actual legal uncertainty for the purposes of parliamentary scrutiny, as the two examples in the introduction to this report show. This is particularly so when it decides a proposal contains JHA content after the initial three-month opt-in period has passed. We confirm our view that the enhanced opt-in procedures apply only to draft legislation that is either proposed with a Title V legal base, or to which a Title V legal base is added by the Council. We invite the Government to agree.

99.  We urge Government departments to inform us sooner when a Title V legal base is added by agreement of the Council.

Compliance with the duty of sincere cooperation

100.  Article 4(3) of the Treaty on European Union defines the EU legal principle of "sincere cooperation":

    "Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.

    "The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.

    "The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives."

101.  Prof Chalmers drew our attention to the case of Commission v Sweden,[100] in which the CJEU found that there were "duties of cooperation that were legal duties—they are not just duties of what is politically desirable—in the negotiating process that bind all member states".[101] These were "special duties of action and abstention that bind all member states to ensure that there is a concerted strategy". Once the mandate was there, states were under a duty to ensure coherence, consistency of action and representation.


102.  The Government said the duty of sincere cooperation did not oblige it to agree with other Member States and the EU institutions on a policy that undermined the UK's opt-in safeguards. The Home Secretary said:

    "Obviously there is the duty of sincere cooperation. That requires member states to work together to implement the EU's lawful objectives and decisions, but it is not intended to prevent a member state from exercising its lawful rights. We would say that that is what we would be doing if we were effectively saying that incidental JHA content was not binding on us unless we opted into it."[102]

103.  The Justice Secretary agreed: "It would be a nonsense if we were bound by treaty not to disagree with the majority of member states or with the institutions. No, we are absolutely certain that this does not impact on the duty of sincere cooperation."[103]


104.  Prof Cremona said that the overall legal reasoning underpinning the Government's opt-in policy appeared to ignore the fundamental duty of sincere cooperation.[104] While interpretations of the opt-in Protocol differed, the EU Treaties provided mechanisms to resolve such differences and the Government's litigation reflected that. The assumption behind the Government's letter of 3 June, on the other hand, seemed to be that, if those strategies had failed, it could still insist it was right and could refuse to accept that it was bound by a measure by which, on its face, it was bound. This was contrary to the principle of sincere cooperation.

105.  Prof Chalmers agreed:

    "Member States, are by virtue of Article 4(3) TFEU, under a duty to cooperate strongly with EU Institutions in the negotiation and conclusion of a measure and in meeting commitments under it. The Court has held that unilateral action dissociating a State from a common agreed strategy which grants a mandate to the EU Institutions to negotiate violates that duty[105] … It will be evident that the United Kingdom Government would be flirting with breaching that duty if it to'd and fro'd on whether to support a common front depending on whether the measure was perceived to have 'JHA content'. The political challenges are simply that it is likely to undermine EU strategy and annoy non EU States as it will be unclear what they are securing from the Union if they enter into an agreement with it. This will make negotiations harder for all parties."[106]

106.  The Government's policy puts it at risk of breaching the duty of sincere cooperation, the importance of which was made clear by the CJEU in Commission v Sweden. We recommend the Government reconsider its opt-in policy in the light of the evidence we received, and that case.

90    Q47 Back

91   Written evidence from the European Commission, para 10 (OIA0010) Back

92    Q7 Back

93   Ibid. Back

94    Q26 Back

95     Q2 Back

96   Letter from Lord Roper, Chairman of the European Union Committee, to the Rt Hon Theresa May MP, Home Secretary, Home Office, 14 December 2011 Back

97    Q2 Back

98    Q3 Back

99    Q7 Back

100   Case C-246/07 Commission v Sweden Back

101    Q35 Back

102    Q47 Back

103   Ibid. Back

104    Q25 Back

105   Case C-246/07  Back

106   Written evidence from Professor Chalmers, para 13 (OIA0001) Back

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