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


The Government's view

208.  The Government said that if a measure contained an exercise of JHA competence, the Government would assert the opt-in and take an opt-in decision, irrespective of whether a Title V legal base is cited. Therefore, the Government's view was that the three-month period provided for in the opt-in Protocol always commenced on the day of publication of the last language version of a proposal, regardless of the legal base. The later addition of a Title V legal base would confirm that applicability of the opt-in, but would not trigger (or re-trigger) it. It did not allow for a second opt-in decision to be taken.[191]

The Commission's view

209.  The Commission looked at this question in the context of international agreements, so excluding internal EU JHA measures. Article 3(1) of the opt-in Protocol provides that:

    "The United Kingdom or Ireland can notify the President of the Council in writing, within three months after a proposal or initiative has been presented to the Council pursuant to Title V of Part Three of the Treaty on the Functioning of the European Union, that it wishes to take part in the adoption and application of any such proposed measure, whereupon that State shall be entitled to do so."

210.  The Commission said that this provision, which appeared to have been drafted with the legislative process in mind, should be interpreted consistently with its wording and with the Protocol's rationale. In its "provisional view", therefore, the three-month period started to run when the Commission proposed to the Council the first formal act with a view to concluding the agreement, which was usually the Council decision on the signature of the agreement. The three-month period should not apply to the decision authorising the opening of negotiations, as such a decision is preparatory to the "adoption and application" of the international agreement.

211.  The Commission did not address the specific issue of concern to us, namely when the three-month period should commence if the Council adds a Title V legal base to an internal EU measure, as happened with the PIF Directive and the road traffic offences Directive.

The views of the expert witnesses

212.  Professor Peers thought that a strict interpretation of the opt-in Protocol would deprive it of its effet utile.[192] On this basis he concluded that a liberal interpretation should be applied, with the effect that the three months should run from the date of political agreement in the Council. Prof Barrett agreed:

    "If one takes the view that the protocol is engaged only when a Title V legal base exists, it makes sense that the three-month period should run from the time that the Title V legal base is added because otherwise one renders the protocol either partly or entirely ineffective in any case where a Title V legal base is added in the course of negotiations."[193]

213.  Prof Cremona[194] and Dr Bradshaw[195] agreed.

214.  In cases where the Council adds a Title V legal base to a proposal in the course of negotiations, we consider that the three-month period should run from the date the Council agrees to add the Title V legal base. We agree with the expert witnesses that the opt-in Protocol would otherwise be rendered either partly or entirely ineffective.

215.  We recommend that the Government seek the agreement of the EU institutions to this proposal.

191   Written evidence from the Home Office and Ministry of Justice, para 56 (OIA0009) Back

192   A term developed by the CJEU meaning that, amongst several possible interpretations, the one will prevail which best guarantees the practical effect of existing EU law. Back

193    Q11 Back

194    Q30 Back

195   Written evidence from the Law Society of England and Wales and the Law Society of Scotland, para 18 (OIA0004) Back

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