After much controversy, the UK today completed the process of opting out of EU criminal law measures adopted before the entry into force of the Treaty of Lisbon, and opting back in to some of them. This blog post looks as the legal framework for this process and the consequences of opting back in. It’s an updated version of a previous Statewatch analysis written this summer.
The Legal Framework
Before the entry into force of the Treaty of Lisbon, the UK was a full participant in almost all EU policing and criminal law measures. The exception was a small part of those measures ‘building on the Schengen acquis’, ie measures set out in, or amending, implementing or closely related to the Schengen Convention on the abolition of border controls. Most of those Schengen-related criminal law and policing measures applied to the UK from the start of 2005, except for the rules on cross-border hot pursuit by police officers (which the UK did not opt into) and the rules on the Schengen Information System (SIS) database (because the UK wanted to wait until a second-generation SIS was operational first, and this didn’t happen until 2013).
The Treaty of Lisbon changed the legal framework for the adoption of EU policing and criminal law, applying to this field the normal jurisdiction of the Court of Justice of the European Union (CJEU) and, for the most part, the ordinary legislative procedure of the EU, which entails joint powers for the European Parliament and no vetoes for Member States in the Council.
The UK would only agree to these major changes in return for two forms of opt-out. The first opt-out relates to policing and criminal law measures adopted after the entry into force of the Treaty of Lisbon. This opt-out allows the UK to decide on a case-by-case basis, after each proposal is made, whether it seeks to opt in or out. If the UK initially decides to opt-out, it can always seek to opt in again (needing the Commission’s approval) at any time after the measure is adopted.
The second form of opt-out takes the form of a ‘block’ opt-out for those measures adopted before the entry into force of the Treaty of Lisbon. This was intrinsically linked to a five-year transition period concerning those measures, which is applicable to all Member States. That transitional period finally expired today.
This second opt-out is set out in Article 10 of Protocol 36 to the Treaties, which is set out in full in the Annex. The Article states first of all that the normal powers of the Court of Justice of the European Union (CJEU) and the Commission did not apply for five years after the entry into force of the Treaty of Lisbon, to pre-Lisbon third pillar measures. This meant that the Commission did not have power to bring infringement procedures against Member States to the CJEU regarding these laws until today.
Nor did the CJEU have jurisdiction over questions from national courts concerning EU law in this area, except where Member States had chosen to opt in to this jurisdiction (18 Member States opted in, and the Court delivered a number of judgments in this field). Also, the transitional rules cease to apply to an act which is amended after the Treaty of Lisbon comes into force, and a number of such acts were indeed amended.
Secondly, Article 10 of Protocol 36 set out a potential opt-out for the UK (but not for any other Member States) at the end of this five-year period. If the UK notified the Council by 1 June 2014, all the pre-Lisbon third pillar acts ceased to apply to it as of 1 December 2014, unless those acts have been amended and the UK has opted in to those amended measures. In this event, the Council could decide the ‘necessary consequential and transitional arrangements’, and could also decide that the UK has to ‘bear the direct financial consequences, if any, necessarily and unavoidably incurred’ as a result. In both cases, the Council acts by a qualified majority vote on a proposal from the Commission. The UK does not participate in the first of these measures (consequential arrangements), but would participate in the second (financial consequences).
Thirdly, the UK can seek to opt back into to some of the measures it has opted out of ‘at any time afterwards’. If it does so, then the rules for opting into Justice and Home Affairs measures in either the Protocol on the Schengen acquis or the Protocol on Title V (JHA measures) apply. In practice, that means that the Council, acting unanimously, decides on re-admission of the UK to measures building on the Schengen acquis (ie measures set out in, or amending, implementing or closely related to the Schengen Convention on the abolition of border controls), while the Commission (with no role for the Council, unless the Commission refuses the UK’s request) decides on readmission of the UK to pre-Lisbon third pillar measures which do not build on the Schengen acquis. The Protocol concludes by stating that in such a case, the EU institutions and the UK ‘shall seek to re-establish the widest possible measure of participating of the [UK] in the acquis of the Union in the area of freedom, security and justice, without seriously affecting the practical operability of the various parts thereof, while respecting their coherence’.
The block opt-out in practice
The UK government indicated in 2012 that it was inclined to invoke the block opt-out, and then seek to opt in to a number of measures. In 2013, it officially invoked the block opt-out (well before the deadline of 1 June 2014), and indicated the 35 measures which it wished to opt back into. Informal negotiations then took place between the UK, the Council and the Commission, in particular during the Greek Council Presidency in the first half of 2014. The discussions were complicated somewhat by the UK’s request to begin participation in the second-generation SIS (known as SIS II) shortly before 1 December 2014, along with its request to amend the rules relating to SIS II alerts on the European Arrest Warrants in accordance with new EU legislation. Ultimately, the UK’s attempts to start applying the SIS this autumn were rejected, and it remains to be seen when it will begin to apply the system.
These negotiations were ultimately successful, and the Council Decision and Commission decision on the UK’s opt back in were adopted and published today. The Council Decision amends the original Council Decision admitting the UK to participate in parts of the Schengen acquis, as well as the later Council Decision putting part of the Schengen acquis into force in the UK. The Council has published a codified text of the amended Decisions.
The crucial substantive point here is that the UK will continue to be committed to participating in the Schengen Information System, which provides for exchange of information on European Arrest Warrants, wanted persons and missing objects. It will also continue to be bound by the main criminal law and police cooperation provisions of the Schengen acquis.
As for the other measures, the Commission Decision approves the UK’s opt back in to almost all of the EU measures on mutual recognition in criminal matters (most notably the European Arrest Warrant), the creation of EU agencies (Europol, Eurojust) and exchange of information or databases, with a few exceptions: the Framework Decisions on mutual recognition of probation and parole decisions and the so-called ‘Prum’ Decisions on cross-border exchange of information on DNA, licence plate information and fingerprints.
On the latter issues, the transitional Decision (adopted last week) requires the UK to consider opting back in to the Prum Decisions by the end of 2015. If it does not do so, the financial consequences Decision (also adopted last week) requires the UK to pay back the money it received from the EU budget to prepare for putting the Prum rules into force. The UK agreed informally to consider opt back in to the Framework Decision on mutual recognition of probation and parole measures later. It will fall to the next UK government to decide on these issues (the next general election will be in May 2015), and it will always be open to the UK government to opt back in to more measures if it wishes.
There was some negotiation on the lists of measures which the UK sought to opt out of. As regards the Council Decision, one measure on the operational functioning of the SIS was added to the list. The Commission’s Decision included a decision to opt in to three measures implementing the Europol Decision, as well as the Decision establishing the European Judicial Network. These additional measures which the UK agreed to opt in to are essentially technical, except for the European Judicial Network, which the UK government believes is essentially a useless talking shop.
Also, it should be noted that some pre-Lisbon measures were amended while discussions were going on, in particular the EU’s Convention on mutual assistance in criminal matters and its amending Protocol. The UK did not want to opt back in to these measures, but this objection is now moot, since the UK participates in the EU Directive on the European Investigation Order (discussed here), which has replaced some of the corresponding provisions of those measures. So this means that it continues to participate in the Convention and Protocol, without having to opt back in.
However, the UK government withdrew its request to participate in two measures (a Decision on a hate-crime network, and a Decision on special police intervention units) during the discussions. This decision may well have been taken so that the government can still claim that it is only opting back in to a total of 35 measures.
It should also be noted that the UK’s opt back in to some of the pre-Lisbon measures concerned could be very short-lived, since there are proposals to replace these measures which the UK has opted out of, but which have not yet been agreed. This is the case particularly with Europol and Eurojust. Negotiations are further advanced on the Europol proposal (see discussion here), where it looks as if the UK’s concerns may have been addressed, with the consequence that the UK would opt in to the future Europol Regulation after its adoption. However, it is too early to say if the UK might eventually opt in to the future Eurojust Regulation.
Other transitional issues
Finally, the EU institutions have tried to clarify the new legal position which applies from today. They have published in the EU Official Journal a list of ‘Lisbonised’ measures, ie pre-Lisbon third pillar acts which have been amended since the Treaty of Lisbon entered into force. There is also a list of acts which have just ceased to apply to the UK.
Following an analysis of which pre-Lisbon measures could now be considered obsolete, and which therefore could be repealed. just last week the Commission made three proposals to repeal 24 pre-Lisbon acts. I’ll come back to these proposals in the near future – but suffice it to say that they don’t go nearly far enough to simplify the very complex legal framework that applies in this area.
Further on the issue of transparency, it would be useful to have a list of post-Lisbon measures which apply to the UK. It would not unduly task the Council and/or Commission to make the effort to publish online a constantly updated list of the measures which do or not apply to the UK (as well as Ireland and Denmark, which also have opt-outs), so that the public and practitioners in the UK and elsewhere can easily discover which EU laws in this field apply to the UK, and which do not.
1. As a transitional measure, and with respect to acts of the Union in the field of police cooperation and judicial cooperation in criminal matters which have been adopted before the entry into force of the Treaty of Lisbon, the powers of the institutions shall be the following at the date of entry into force of that Treaty: the powers of the Commission under Article 258 of the Treaty on the Functioning of the European Union shall not be applicable and the powers of the Court of Justice of the European Union under Title VI of the Treaty on European Union, in the version in force before the entry into force of the Treaty of Lisbon, shall remain the same, including where they have been accepted under Article 35(2) of the said Treaty on European Union.
2. The amendment of an act referred to in paragraph 1 shall entail the applicability of the powers of the institutions referred to in that paragraph as set out in the Treaties with respect to the amended act for those Member States to which that amended act shall apply.
3. In any case, the transitional measure mentioned in paragraph 1 shall cease to have effect five years after the date of entry into force of the Treaty of Lisbon.
4. At the latest six months before the expiry of the transitional period referred to in paragraph 3, the United Kingdom may notify to the Council that it does not accept, with respect to the acts referred to in paragraph 1, the powers of the institutions referred to in paragraph 1 as set out in the Treaties. In case the United Kingdom has made that notification, all acts referred to in paragraph 1 shall cease to apply to it as from the date of expiry of the transitional period referred to in paragraph 3. This subparagraph shall not apply with respect to the amended acts which are applicable to the United Kingdom as referred to in paragraph 2.
5. The Council, acting by a qualified majority on a proposal from the Commission, shall determine the necessary consequential and transitional arrangements. The United Kingdom shall not participate in the adoption of this decision. A qualified majority of the Council shall be defined in accordance with Article 238(3)(a) of the Treaty on the Functioning of the European Union.
The Council, acting by a qualified majority on a proposal from the Commission, may also adopt a decision determining that the United Kingdom shall bear the direct financial consequences, if any, necessarily and unavoidably incurred as a result of the cessation of its participation in those acts.
6. The United Kingdom may, at any time afterwards, notify the Council of its wish to participate in acts which have ceased to apply to it pursuant to paragraph 4, first subparagraph. In that case, the relevant provisions of the Protocol on the Schengen acquis integrated into the framework of the European Union or of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, as the case may be, shall apply. The powers of the institutions with regard to those acts shall be those set out in the Treaties. When acting under the relevant Protocols, the Union institutions and the United Kingdom shall seek to reestablish the widest possible measure of participation of the United Kingdom in the acquis of the Union in the area of freedom, security and justice without seriously affecting the practical operability of the various parts thereof, while respecting their coherence.
Barnard & Peers: chapter 25
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