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


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 measures".[107] It aired similar concerns in its letter of 3 June.[108]

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 issue—effectively 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 be appropriate."[109]

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.[110] He spoke of a "tactic" being "used to try to bypass" the UK's opt-in rights,[111] 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".[112]

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[113] (the PIF-Directive):

    "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."[114]

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."[115]

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."[116] The Minister undertook to write to us with further examples.


The draft PIF Directive

113.  The Ministers' letter[117] 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[118] 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 Substances

115.  A second example given by the Government was the proposed Regulation relating to New Psychoactive Substances.[119] 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".[120] 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 grand scheme".[121] 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".[122] 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."[123]

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."[124]

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".[125] 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.[126] She also cited the signature of the EU Association Agreement with Ukraine as an example of where a Title V legal base was included.[127]


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".[128]


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.[129] Prof Peers agreed:

    "The first recourse is political. You try to convince the rest of the Council to back the UK's view.[130] 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."[131]

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.[132] 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 … it is a bit premature to be terribly concerned about what the Commission believes when it first makes its proposal."[133]

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 it.

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 case—the draft PIF Directive—it 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

108   See para 10 of this report Back

109    Q43; see also  Q41 and  Q51. Back

110    Q41; see also  Q44. Back

111    Q43 Back

112    Q47 Back

113   Proposal for a Directive on the fight against fraud to the Union's financial interests by means of criminal law, COM(2012) 363 Back

114    Q48; see also  Q43 Back

115    Q48 Back

116   Ibid. Back

117   Supplementary written evidence from the Home Office and Ministry of Justice (OIA0012) Back

118 [accessed 26 February 2015]. Commissioner Reding's comments are made at two hours 13 minutes into the webcast. Back

119   Proposal for a Regulation on new psychoactive substances, COM(2013) 619 Back

120   Written evidence from Professor Peers, para 2 (OIA0002) Back

121    Q38 Back

122   Ibid. Back

123    Q36 Back

124    Q17 Back

125    Q27 Back

126   C-658/11 Back

127    Q27 Back

128   Supplementary written evidence from Professor Chalmers (OIA0015) Back

129    Q8 Back

130   The Council can amend a Commission proposal, but has to act by unanimity (Article 293 TFEU). Back

131    Q8; see also  Q6. Back

132   Written evidence from Professor Peers, para 2 (OIA0002) Back

133    Q6 Back

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