APPENDIX 3: CALL FOR EVIDENCE |
The House of Lords European Union Committee, chaired
by Lord Boswell of Aynho, is launching an inquiry into the UK's
opt-in policy and its application to international agreements.
We invite you to contribute evidence to this inquiry. Written
evidence is sought by Tuesday 30 September 2014. The inquiry will
be conducted by the Justice, Institutions and Consumer Protection
Sub-Committee, chaired by Baroness Corston.
Protocol (No.21) of the Treaties on the Functioning
of the European Union (TFEU) allows for the United Kingdom and
Ireland to opt into any measure under Title V (which is in relation
to the area of freedom, security and justice) before or after
the measure has been adopted.
The European Union Committee has considered a large
number of EU international agreements over the last few years
where the Government has asserted that the opt-in Protocol applies
to certain provisions within those agreements, despite a legal
base in Title V TFEU not being cited in the enabling legislation.
The Committee has repeatedly questioned this interpretation
of the opt-in Protocol. The principles of conferral of power,
and of legal certainty, require EU legislation to state the legal
base on which the EU has power to act. Citing the legal base reflects
what has been agreed between the EU institutions to be the scope
of the legislation; without it Member States could decide the
scope of a provision unilaterally, based on a subjective view
of its content, as the Government contends. This would lead to
uncertainty and inconsistency in the application of EU law.
The Government has responded by explaining that it
considers the opt-in Protocol to be engaged wherever a measure
covers a matter that falls within Title V, but that this is not
dependent on the citation of a Title V legal base. In other words,
it is the content that matters, subjectively assessed, rather
than the legal base.
The Government has continued to assert its right
not to opt into provisions of international agreements based on
their content, including unsuccessfully challenging two agreements
over the last 12 months where a Title V legal was not addedC-431/11
on the EEA Agreement and C-656/11on the EC-Switzerland Agreement
on the Free Movement of Personsbefore the Court of Justice.
This has led to confusion about the domestic effect of the agreement
in the UK, and about whether the UK Parliament's enhanced opt-in
The Committee believes that this is a timely opportunity
to assess the Government's policy, and to seek the views of others
on a disagreement that has largely been limited to the UK Government
Particular questions raised to which we invite you
to respond are as follows (there is no need for individual submissions
to deal with all of these issues):
consistency of the policy with Treaty provisions and general principles
of EU law;
Is the UK Government's opt-in policy, most recently
reflected in its letter to Lord Boswell of 3 June, a correct interpretation
of Protocol (No.21)? (The letter of 3 June is available on the
inquiry page of the Sub-Committee's website.)
view of the institutions and other Member States of the policy,
particularly Ireland and Denmark;
Is the opt-in policy similarly applied in Ireland,
or does Ireland accept that a legal base in Title V is necessary?
How do other Member States and the EU institutions
view the UK's assertion that its opt-in rights can apply in the
absence of a Title V legal base?
impact of the policy on other Member States;
Does the Government's assertion that its opt-in rights
apply in the absence of a Title V agreement have an impact on
the UK's credibility in the negotiation of the draft legislation
in question, or rather are Member States untroubled by it?
consequences of the policy for legal certainty in international
What has been the impact of this policy, in terms
of legal certainty in international agreements, since the adoption
of the Treaty of Lisbon?
Government's litigation strategy;
Is the Government's opt-in policy sustainable in
the light of the decisions of the Court of Justice in C-137/12,
C-431/11 and C-656/11?
Court of Justice's interpretation of the scope of Title V TFEU;
In each of the cases above, and also in cases C-43/12
and C-377/12, has the Court of Justice correctly interpreted the
scope of Title V, or has its interpretation of the scope been
on a question of procedure, if a Title V legal base is added in
the course of negotiations, from when should the three-month period
provided for in the opt-in Protocol run?