CHAPTER 6: ARE THE UK'S OPT-IN RIGHTS
BEING UNDERMINED BY THE EUROPEAN COMMISSION?|
The Government's view
107. In its written evidence the Government expressed
the view that the Commission may have been "choosing non-JHA
legal bases with the result of limiting the application of the
UK's JHA opt-in and requiring the UK to participate in measures".
The Government stated that it was strongly opposed to "'legal
base shopping', that is, attempts to include JHA content in non-JHA
It aired similar concerns in its letter of 3 June.
108. In evidence both Ministers underscored this
concern. The Home Secretary said:
"It surely cannot be right that there be
an interpretation of this that would allow the European Commission
to game this issueeffectively to decide to use its interpretation
of the measures in a way such that even if something was plainly
a justice and home affairs matter, it could put something else
into it and then say, 'Well, we won't give it a Title V legal
treaty. Therefore the UK's opt-in doesn't apply'. That would not
109. The Justice Secretary said there was "no
doubt" in his mind that "some" were "looking
at alternative routes to dilute that protocol and our opt-outs,
and to limit our room for manoeuvre", and that it was the
Government's policy to continue to try to uphold the principles
in that protocol.
He spoke of a "tactic" being "used to try to bypass"
the UK's opt-in rights,
and warned that "if we are put in a position where it is
possible to completely negate Protocol 21 by simply merging JHA
content into other measures, that would be a significant political
issue for this country".
110. He gave a first-hand account of the Commission
circumventing a legal base in Title V for the draft Directive
on the fight against fraud to the Union's financial interests
by means of criminal law
"Let me give you a very specific example.
The proposal brought forward by the Commission for a measure that
introduced common criminal penalties for fraud against EU institutions
should, in the view of the Council legal service and most member
states, have been brought forward on Title V legal base, and indeed
now has been. The Commission brought it forward on a different
legal base, and the previous Commissioner expressly said at a
Council meeting said that she had done so because she wanted to
ensure that there were no geographic areas of the EU where the
measure did not apply."
111. When questioned further, the Justice Secretary
explained that it:
"would be on the record that there was a
disagreement between the Council legal service and the Commission
legal service over the legal base. The Council effectively said
that the Commission was acting in a way that was not legally correct.
The Commission disagreed, but the Commissioner expressly said
that in her remarks to the Council."
112. The Home Secretary said that were a number,
"albeit a small number", of other examples where the
Government believed the legal base had been used "not in
a very clear, strict legal interpretation of what the legal base
should be but as a means of ensuring the coverage of the measure."
The Minister undertook to write to us with further examples.
LETTER FROM THE HOME AND JUSTICE
SECRETARIES OF 21 JANUARY 2014
The draft PIF Directive
113. The Ministers' letter
said the draft PIF Directive was "the most obvious example"
of circumvention by the Commission. The Commission had chosen
to propose the Directive under Article 325 TFEU, the legal base
for countering fraud against the Community's financial interests.
The Government's view was that the draft Directive was "clearly
focused on criminalising fraud against the Community's financial
interests", and so was "wholly JHA in nature".
At the JHA Council on 6 and 7 June 2013, the Commission opposed
changing the legal base to Article 83(2) TFEU, a Title V legal
base (concerning the approximation of national criminal laws).
The Ministers stated that "it was noted in that Council meeting
that preferring Article 325 for territorial coverage reasons was
on political and not legal grounds." The Government was successful
in securing a change to a Title V legal base, and it has not opted
into the draft Directive.
114. Officials subsequently provided us with
a link to the
webcast of the JHA Council meeting in June 2013. The webcast confirms
that Commissioner Viviane Reding stated, in French, that the Commission
had chosen Article 325 TFEU as a legal base because that way the
Directive would apply to the whole EU, which she regarded as very
important. The Council's Legal Adviser, responding in French,
said that this approach to the choice of legal base was contrary
to the case-law of the CJEU. He confirmed that the legal base
depended on the subject matter and purpose of a measure, and the
geographical extent was a consequence of the legal base and not
a criterion for choosing it.
Draft Regulation relating to New Psychoactive
115. A second example given by the Government
was the proposed Regulation relating to New Psychoactive Substances.
Previous legislation aimed at strengthening the EU's ability to
tackle New Psychoactive Substances had been agreed under the pre-Lisbon
equivalent of Title V TFEU. The Commission proposed this new Regulation
under an Article 114 TFEU (internal market) legal base, which
related to mitigating barriers to the internal market. However,
"the measure was aimed primarily at a co-ordinated EU-wide
approach to tackling illicit drugs, not barriers to trade".
A large number of Member States agreed with the UK that the appropriate
legal base was not Article 114 TFEU. The Ministers' letter states
that "we have no specific evidence that the Commission's
objective was to circumvent our opt-in, but, given the 2005 Decision
had a clear JHA legal base, it is odd that the Commission proposed
this measure under an Article 114 legal base and difficult to
see what purpose this would serve beyond circumventing the application
of our opt-in".
Council Decision on the coordination of social
security schemes in relation to the Agreement between the European
Community and Switzerland on the free movement of persons
116. The Ministers' letter explained that the
Commission initially proposed the Decision in 2010 on the basis
of Article 79(2)(b) TFEU (an immigration legal base under Title
V TFEU). The UK did not opt in but offered to reach a separate
agreement with Switzerland. Switzerland indicated that it could
not accept this and the Commission withdrew the original proposal
and produced a proposal with an Article 48 TFEU legal base (measures
in the field of social security necessary to provide freedom of
movement for workers). The Ministers explained that, "whilst
the CJEU eventually ruled in favour of the use of Article 48 in
this instance, it is clear to us that the legal base was amended
because of concerns about the geographical scope of the measure".
The views of the expert witnesses
117. Although none of our expert witnesses was
able to point to evidence of "legal-base shopping" by
the Commission, some saw the reason for the Government's concern.
Prof Peers said: "I do agree with the government's objective
to avoid circumvention of the UK's opt out".
But when asked about whether the Commission had circumvented the
UK's opt-in rights, he said:
"'Circumvention' is not necessarily the
right word to use because reasonable people can have different
approaches to the interpretation of what the legal bases are in
treaties. This issue of social security, for instance, has run
on for years about exactly what the legal base was for third-country
nationals. I do not think that the Lisbon treaty really settles
it very clearly or conclusively."
118. Prof Chalmers agreed that the term "legal-base
shopping" was "a little too pejorative and tendentious".
He did not have any sense that the Commission was "opportunistically
trying to destroy" the opt-in Protocol as part of "some
But he did say that the Commission would "push the envelope
and push at things that national Governments and the European
Parliament might not be comfortable with in some circumstances".
This was because the Commission would always "choose the
legal base that best suited its interests." He noted that
the Commission's right of initiative meant its choice of legal
base was influential. In the context of international agreements
he said the Commission:
"Traditionally likes big general bases,
such as development, that get maximum leverage vis-à-vis
non-EU states and give a sweeping mandate, so sometimes it will
push the envelope. Sometimes an agreement is made and then the
Council will challenge it. That is the push and pull."
119. Dr Bradshaw said that the Law Society had
no insight into the Commission's thinking, but noted that the
choice of legal basis was "a matter of profound disagreement
on occasion, not just between the EU institutions and the member
states, but also within and among the EU institutions."
120. Prof Cremona agreed that it was difficult
to second guess what the Commission's motives were, but she was
sure that there was no basis from the cases decided by the CJEU
for concluding that the Commission was doing "anything other
than following standard legal basis arguments".
She noted that sometimes these arguments (that a Title V legal
base was not necessary) were supported by the UK, for example
in the Mauritius case.
She also cited the signature of the EU Association Agreement with
Ukraine as an example of where a Title V legal base was included.
FURTHER WRITTEN EVIDENCE IN RESPONSE
TO THE HOME AND JUSTICE SECRETARIES LETTER OF 21 JANUARY 2014
121. We asked the expert witnesses whether they
wanted to submit further written evidence in the light of the
Government's letter of 21 January. Profs Cremona, Chalmers and
Barrett submitted supplementary evidence. Prof Cremona questioned
the accuracy of the Government's explanation of the negotiations
leading to the adoption of the Council Decision on the EC-Switzerland
Free Movement Agreement. She concluded from the record of the
negotiations that the Council, rather than the Commission, proposed
the Title V legal base, and that the Swiss had then refused to
conclude a separate agreement with the UK.
122. Prof Chalmers also questioned the Government's
claim that the Commission manipulated the legal base in the negotiations
on the EC-Switzerland Agreement:
"I take a very dim view of this argument
being put forward without the Government disclosing whether it
offered to opt-in if the measure was based on Article 79 TFEU,
and whether this was refused. If no such offer was made, it is
not right to claim that the Commission was being manipulative.
It initially did what the British Government wanted. The British
Government then obstructed pan-Union agreement even though there
was the possibility of doing this on the basis of Title V. Then,
without disclosing this context, an allegation of male fide
is made by it against a party (the Commission) whose position
is upheld by the Court."
123. He thought the draft Regulation relating
to New Psychoactive Substances could legitimately be based on
Article 114 TFEU. Accordingly, he saw "no evidence, therefore,
of Commission manipulation".
MECHANISMS TO ADDRESS THE GOVERNMENT'S
124. Several expert witnesses stated that mechanisms
existed to address the UK's concerns. According to Prof Barrett,
the first were political; and if they proved unsuccessful, the
second were legal.
Prof Peers agreed:
"The first recourse is political. You try
to convince the rest of the Council to back the UK's view.
That is sometimes successful, as it was in the case of the road
traffic offences directive, where the Parliament was ultimately
also convinced. However, the recourse is also legal; ultimately,
if the UK is not successful in convincing other countries to share
its point of view, you may have to bring annulment actions at
some point in the process."
125. Moreover, Prof Peers thought that the Government's
concerns about Commission circumvention were misdirected. Since
the Commission could not take binding decisions, it was only the
Council, in some cases with the consent of the European Parliament,
which would be in a position to circumvent it.
He said in evidence: "I do not think that you can really
talk about circumvention at the stage of a Commission proposal.
In any event, when the Commission states its view, the Council
and Parliament might not necessarily agree with that
is a bit premature to be terribly concerned about what the Commission
believes when it first makes its proposal."
126. A distinction should be drawn between
a Commission policy of circumventing the UK's opt-in rights, and
one of choosing a legal base that the Commission believes best
suits the EU's interests.
127. Choosing a legal base for an EU proposal
is complex. It is, as a consequence, often disputed between the
institutions in the course of negotiations, with recourse to the
CJEU as final arbiter. Nevertheless, as a point of principle,
we agree with the Council's legal service that geographical extent
is a consequence of the legal base and not a criterion for choosing
128. The Government alleges that the Commission
has actively pursued a policy of "legal base shopping",
in order to undermine its opt-in rights. In one specific casethe
draft PIF Directiveit has provided evidence that lends
some support to this allegation, in respect of the former Commission.
129. With this partial exception, the Government's
letter of 21 January provided no persuasive evidence of Commission
circumvention of the UK's opt-in rights. There is certainly no
evidence to support any allegation that such circumvention is
systemic. Moreover, we note that in in the specific case of the
draft PIF Directive the Council accepted the Government's view
and agreed to change the legal base for one in Title V. This is
an example of the institutional check on the Commission's role
as initiator working well.
130. We invite the new Commission to confirm
that the legal base of any individual proposal should be determined
by its subject matter and purpose, not its intended geographical
scope; and that geographical scope is a consequence of the choice
of legal base.
131. We recommend that the Government focus
on addressing any concerns over the choice of legal base through
the existing mechanisms in the legislative process, particularly
within the Council. We note that, in addition to the PIF Directive,
the UK succeeded in persuading the Council to add a Title V legal
base to the EU Decision concluding the Partnership and Cooperation
with the Philippines, and to the road traffic offence Directive.
107 Written evidence from the Home Office and Ministry
of Justice, para 29 (OIA0009) Back
See para 10 of this report Back
Q43; see also Q41 and Q51. Back
Q41; see also Q44. Back
Proposal for a Directive on the fight against fraud to the Union's
financial interests by means of criminal law, COM(2012) 363 Back
Q48; see also Q43 Back
Supplementary written evidence from the Home Office and Ministry
of Justice (OIA0012) Back
[accessed 26 February 2015]. Commissioner Reding's comments are
made at two hours 13 minutes into the webcast. Back
Proposal for a Regulation on new psychoactive substances, COM(2013) 619 Back
Written evidence from Professor Peers, para 2 (OIA0002) Back
Supplementary written evidence from Professor Chalmers (OIA0015) Back
The Council can amend a Commission proposal, but has to act by
unanimity (Article 293 TFEU). Back
Q8; see also Q6. Back
Written evidence from Professor Peers, para 2 (OIA0002) Back