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


CHAPTER 8: THE GOVERNMENT'S LITIGATION STRATEGY


The Government's views

187.  In the course of our evidence session with the Government it became clear that the CJEU's failure to address the Government's arguments on incidental JHA content was the basis of its litigation strategy. The Home Secretary put it this way:

    "In none of the decisions on Turkey, the Philippines, road safety and Swiss social security conditional access did the court rule on whether JHA content alone could trigger the opt-in or whether incidental JHA content requires a JHA legal base. It has singularly so far avoided addressing what we feel is the fundamental issue of the correct interpretation of Protocol 21."[178]

188.  The Home Secretary thought that, in the light of the Turkey case, it was possible there were internal divisions within the CJEU on the Government's arguments on incidental JHA content:

    "The fact that the court actually failed to deal with the question of the application of Protocol 21 in its most recent decision suggests that there is at least some potential disagreement about the operation of Protocol 21, and the case may not be as clear from its point of view as might be being assumed from the judgments that it has made so far."[179]

189.  In light of the CJEU's failure to address the UK's arguments, the Government explained that it would continue to bring challenges before a definitive judgment was delivered: "We can have an interesting academic debate about whether we are right or wrong, but ultimately we will not know for certain until the European Court of Justice rules, and at the moment it is not doing so."[180] The Justice Secretary did "not expect the Government to change their policy"[181] until a "clear-cut" decision was delivered by the CJEU.

190.  If the CJEU rejected the Government's argument, the consequences were likely to be political, and might lead to a desire for renegotiation:

    "The Government would have to accept a ruling by the court, but that would generate a significant political issue that I suspect would form a significant part of any potential future renegotiation of the arrangements of our membership."[182]

The views of the expert witnesses

THE LIKELIHOOD OF THE RECENT CASE-LAW BEING REVERSED

191.  Our expert witnesses all drew the opposite conclusion to the Government: they thought the CJEU's case law on determining the legal base of a measure with JHA content was very unlikely to change. Prof Cremona said:

    "I think it is highly unlikely that the court will depart from its approach to the protocol. In other words, its application is determined by legal basis and the protocol is no reason to alter the standard tests for legal basis, so it seems to me highly unlikely that this will alter. In that case, it does not mean that legal basis cannot be argued or litigated, but my advice would be to do that only in cases where you can make a plausible case that Title V is either the predominant or an equally important purpose or where the Title V obligations in an agreement are such as to justify a separate legal basis".[183]

192.  Prof Chalmers' view was similar:

    "I have to be a little careful, but if I was betting money I would say that I would expect the current trajectory to remain stable. There are two reasons for that. The Court has cited itself on this, and once it has done that it is very unusual for it to reverse it. Also, a lot of that case law is quite recent. The Court has said three or four times, 'This is what we have done', and only one government are isolated on this—perhaps because it has a particular interest and situation because of Protocol 21—so I would expect the case law to remain pretty stable."[184]

193.  Prof Barrett agreed, and did not see it as at all likely that the case law would be reversed: "In so far as government policy involves pushing for the addition of Title V legal bases in EU negotiations on any measure it considers to have JHA content, I think it is really pursuing a lost cause."[185]

194.  The Law Societies of England and Wales and Scotland thought that the CJEU's case law on the opt-in had reached a point where it would not be reversed by further case law. They suggested the Government should reconsider its policy as a consequence.

THE CJEU'S FAILURE TO ADDRESS THE UK'S ARGUMENTS

195.  Three of our expert witnesses responded to the Government's claims that the CJEU had avoided the UK's arguments on ancillary JHA content. All thought they were without foundation. Prof Cremona, citing the Philippines, Conditional Access Services and Turkey cases, said: "It is difficult to see room for much further argument on whether Protocol 21 can apply to JHA content in a measure that does not cite a Title V legal basis."[186]

196.  Prof Barrett said of the Philippines case: "I do not agree with the argument that 'it did not give judgment on the UK's arguments'. It is more accurate to say that it did not accept them."

197.  Prof Chalmers agreed too. He refuted the Government's proposition that the Turkey judgment suggested there was a possible disagreement about the operation of the opt-in Protocol 21 within the CJEU. The consequences of that case for the Government's opt-in policy were, in his view, plain. The CJEU, following the Opinion of Advocate General Kokott, decided that "Protocol No 21 as such is not capable of having any effect whatsoever on the question of the correct legal basis for the adoption of the contested decision."[187]

ADVOCATE GENERAL KOKOTT'S OPINION IN THE TURKEY CASE

198.  Given the Government's claim, made repeatedly in oral evidence, that the CJEU had failed to address its arguments, we were surprised to see the following footnote to Advocate General Kokott's Opinion in the Turkey case:

    "In the present proceedings the United Kingdom and Ireland have expressly objected to such a strict interpretation of Protocol 21, but without putting forward any specific arguments to support their view."[188]

INTER-INSTITUTIONAL AGREEMENT

199.  Prof Chalmers suggested that an inter-institutional agreement on the scope of Title V might have more success than the UK's current litigation strategy:

    "It might be possible to get some—this would require a lot of negotiations between the United Kingdom and the other states—inter-institutional agreement on some of the things that would be covered by association and development and some of the things that would not. That might be one way of doing it, so that you structure expectations about what the Commission can go off and negotiate or seek to negotiate with other states."[189]

200.  The Government agreed to look at this possibility further.[190]

201.  All our expert witnesses agreed that there is now a significant body of case law which confirms that the CJEU's established approach to determining legal base applies to measures with possible Title V content. They also all agreed that it was highly unlikely that the CJEU would change its approach.

202.  We agree. The CJEU's judgments have rejected the UK's arguments on determining the legal base of a measure which it considers to contain JHA content. They have done so directly in the Conditional Access Services and Turkey cases, and by clear implication in the EEA, Swiss and Philippines cases.

203.  The Government's claim that the CJEU has failed to address its arguments on incidental JHA content is hard to reconcile with these views, to the extent that we conclude it is politically, rather than legally, driven. Its suggestion that there may be internal divisions within the CJEU in favour of the UK's arguments is unsupported by any evidence.

204.  We recommend that, in the future, the Government should challenge only those cases where it can make a plausible case that Title V is either the predominant or an equally important purpose, or where the Title V obligations in an agreement are such as to justify a separate legal basis.

205.  We were surprised to read in a footnote to Advocate General Kokott's Opinion in the Turkey case that, although the UK expressly objected to a strict interpretation of the opt-in Protocol, it did not put forward "any specific arguments to support its view". If this is so, it would contradict the essence of the Government's evidence to us. We ask the Government whether it can explain why the Advocate General should have made this comment.

206.  We recommend that the Government give careful consideration to the feasibility of an inter-institutional agreement on the scope of Title V, as suggested by Prof Chalmers. If Denmark decides to alter its opt-in arrangements to those of the UK and Ireland, three Member States will have an interest in an inter-institutional agreement on the scope of Title V.

207.  Beyond that, the only available recourse for the Government to ensure the opt-in Protocol is applied as it wishes, is to seek to renegotiate it.


178    Q49 Back

179    Q45 Back

180    Q44 (Chris Grayling MP) Back

181    Q44 Back

182    Q43(Chris Grayling MP); see also  QQ46, 47, 49 Back

183    Q29 Back

184    Q40 Back

185    Q10 Back

186   Supplementary written evidence from Professor Cremona, para 3 (OIA0013) Back

187   C-81/13, para 42. Back

188   Ibid., Opinion of Advocate General Kokott of 17 July 2014, footnote 74 Back

189    Q39 Back

190    Q50 Back


 
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