Margarida Vasconcelos: the Government should consider introducing a unilateral veto

The House of Lords EU Committee has recently published a report on The UK’s opt-in Protocol: implications of the Government’s approach, calling upon the Government to abandon its unilateral approach to EU Justice and Home Affairs Measures, as it raises concerns about the UK’s commitment to the “uniform application of EU law”. However, the Government should consider introducing a unilateral veto instead.
Following the entry into force of the Lisbon Treaty, in 2009, Member States’ sovereignty over police and judicial cooperation in criminal matters was substantially limited as this area has been subject to the Community method, the ordinary legislative procedure and qualified majority voting are the rule, and, consequently, there is no veto power. The UK’s veto right has then been replaced by an opt-in Protocol. However, it is important to stress that an opt out does not work as a veto but it allows the UK to decide whether to be bound by a particular JHA measure.

The UK already had an opt out over visas, asylum, immigration, judicial cooperation in civil matters and the Lisbon Treaty amended it in order to cover police and judicial cooperation in criminal matters. Hence, the UK’s participation in EU measures relating to justice and home affairs is governed by Protocol (No 21). It gives the UK the right to opt in of measures relating to JHA therefore the Government is not required to inform the Council if it decides not to opt in to a legislative proposal but it is required to communicated in writing, within three months, its decision to opt in.

Article 1 of Protocol 21 provides that “Subject to Article 3, the United Kingdom and Ireland shall not take part in the adoption by the Council of proposed measures pursuant to Title V of Part Three of the Treaty on the Functioning of the European Union.” According to the Government the phrase “pursuant to” does not limit the ambit of the opt in to measures which cite a Title V legal base. The Government believes that is the content of a given measure, rather than its legal basis, that decides whether or not the UK opt-in is applicable. Hence, according to the Government Protocol 21 is applicable to a measure in the absence of a Title V legal base, as it believes the opt-in is triggered by the JHA content included in a proposal, rather than by the legal base that the Commission had chosen for the proposal.

The Government makes a distinction between whole, partial, and incidental JHA. Hence, if a measure just pursues a JHA purpose, it only requires a JHA legal base, but if it is “a partial JHA measure”, meaning that pursues both a JHA and another objective with neither being incidental, then it requires two legal bases, but if it pursues two objectives, a JHA objective which is incidental to the non-JHA objective, then the relevant measure only requires the legal base that corresponded to the non-JHA objective. The Government believes the UK is not legally bound by the JHA content of an incidental JHA measure, just by whole and partial JHA measures, if it decides to opt in. As regards international agreements the Government particularly said, to the House of Lords European Union Committee, that any agreement “which includes relevant JHA content triggers the opt-in”, whether or not a Title V legal base is cited.

However, according to House of Lords EU Committee the Government’s approach is “misconceived”. It concluded that the expression “pursuant to [Title V]” in the opt-in Protocol means that a Title V legal base is required before the opt-in can be triggered. The House of Lords EU Committee takes the view that the opt-in Protocol cannot be interpreted, as the government asserts, to mean that it is the content of an EU measure which determines its application, rather than a legal base under Title V. The European Scrutiny Committee also does not agree with the Government asserting that the JHA opt-in protocol applies to a measure in the absence of a Title V legal base. It believes that the UK opt-in is engaged only where there is a JHA legal basis for the EU measure.

The European Commission said to the House of Lords EU Committee that the determination of a legal base is not affected neither by the opt-in Protocol or the fact that an EU measure was thought by the UK to contain JHA content. It stated “To determine whether a legislative proposal constitutes a measure ‘pursuant to Title V of Part Three of the Treaty on the Functioning of the European Union’ regard must be had to its legal basis. Whether a measure must have a provision in Title V of Part Three of the Treaty as its legal basis must, in turn, be determined by reference to established case-law that focuses on objective factors.” Then, the Commission stressed that “this interpretation of Protocol No 21 is borne out by the judgment of 18 December 2014 in Case C-81/13 United Kingdom v Council.” In fact, it is important to recall that the European Court of Justice ruled that Protocol 21 is irrelevant to determine a legal base.
The CJEU held in the so called conditional access services case ( Case C-137/12, European Commission and the European Parliament v the Council of the European Union) that Protocol (No 21) is “not capable of having any effect whatsoever on the question of the correct legal basis for the adoption of the contested decision.” The Court then stressed “it is the legal basis for a measure – the appropriateness or otherwise of which falls to be assessed, by virtue of the case-law recalled in paragraphs 52 and 53 above, on the basis of objective factors such as main or predominant purpose of the measure and its content – which determines the protocols to be applied, and not vice versa.” In fact, the Government has lost all the cases brought before the CJEU related to Title V and the application of the opt-in Protocol.

The Government voted against two decisions agreeing on a Council position on amendments to social security provisions in the EEA and Swiss Agreements which were adopted under Qualified Majority Voting by the Council. Then, the UK sought the annulment of these decisions which have extended the EU’s acquis on access to social security schemes to the EFTA’s states and Swiss nationals, arguing that they were wrongly adopted under Article 48 TFEU legal base (free movement of workers) as they should have been adopted under Article 79 TFEU  (immigration policy) to which the UK’s opt-in applies. However the Court rejected the UK’s arguments for a JHA legal base. In cases C-431/11 and C-656/11, UK v Council of the European Union, the so called EEA case and Swiss case respectively, the CJEU held that the Decisions were rightly adopted under Article 48 TFEU as they were aimed at ensuring the free movement of workers between the EU and EFTA states and the EU and Switzerland, based on the close association between the EU and those states. Nonetheless, according to the Government the CJEU’s judgments were “narrowly focused on the specific issues of the cases and did not consider in detail wider issues relating to the application of the UK’s JHA opt-in”.

The Government also voted against the Council Decision on the position to be taken on behalf of the EU with regard to the coordination of social security systems between the EU and Turkey which was adopted under Article 48 TFEU, arguing that the appropriate legal basis for adopting such decision was Article 79(2)(b) of Title V TFEU, under the common immigration policy, but the Council did not agreed as it argued the Decision aim was securing freedom of movement for workers and not the development of a common immigration policy. Hence, the Government has decided to launch an action of annulment of the Council Decision before the CJEU. However, unsurprisingly, in the so called Turkey case (Case C-81/13, the UK v The Council of the European Union ) the CJEU agreed with the Council and the European Commission that the aim of the Decision in question was not the development of a common immigration policy, but securing freedom of movement for workers by providing for the partial coordination of social security systems between the EU and Turkey. First the Council then the CJEU denied the UK the right that it derives from Protocol No 21 not to take part in the adoption of that decision and not to be bound by it. The CJEU not only stressed that “The legal basis which has been used for the adoption of other European Union measures which might, in certain cases, display similar characteristics is irrelevant in that regard, as the legal basis for a measure must be determined having regard to the measure’s own aim and content” but it also reiterated that “Protocol No 21 is not capable of having any effect whatsoever on the question of the correct legal basis for the adoption of the contested decision”.

The European Commission put forward a proposal for a decision providing for the signing of a Framework Agreement on Partnership and Cooperation between the EU and the Philippines under Article 207 TFEU, relating to the common commercial policy, and Article 209 TFEU, on development cooperation, but the Council unanimously adopted the Decision adding a range of additional legal bases. The Commission challenged the addition of these legal bases, and asked for the annulment of this decision, arguing that most of the provisions of the Agreement were intended to pursue the development of the Philippines and did not impose extensive obligations covering other goals. The Council, supported by the UK, and other member states, particularly argued that the section of the Agreement addressing readmission required a specific legal base, namely Article 79(3) TFEU (readmission agreements with third countries). However, the CJEU agreed with the European Commission that the Council was wrong in adding the legal bases relating to readmission, transport and the environment as a development co-operation legal base was enough. The Court held that the provisions of the agreement relating to readmission, transport and the environment contributed to the pursuit of the objectives of development cooperation and did not provide extensive obligations that could establish different objectives in order to justify the use of different legal bases.
It is important to note that the UK’s previous opt-in decision in relation to Philippines agreement is null and void, as the Court considered Article 209 development co-operation legal base as sufficient the JHA opt-in did not apply.

The CJEU’s approach to determine the legal base of international agreements clearly undermines the opt-in safeguards. The Government stated that it “accepts that for agreements in respect of which the predominant purpose is development cooperation, additional legal bases in the accompanying Council Decisions will not be required unless: the JHA content is capable of falling outside the development cooperation legal base; or the JHA provisions are more extensive than those in the Philippines agreement so that they constitute objectives distinct from those of development cooperation.” Nonetheless, the Government believes that this judgement cannot be applied more widely to other agreements with third countries where there is no predominant development co-operation aim. Hence, the Government believes it may continue to assert the opt-in to JHA content for other types of third-country agreements. It stressed, “For third country agreements without an Article 209 TFEU development co-operation legal base, the Government will continue to seek citation of a JHA legal base where there is JHA content being entered into by the EU, and will continue to assert the JHA opt-in to those obligations.”

The CJEU also annulled the directive facilitating cross-border exchange of information on road safety related traffic offences on the grounds of an incorrect legal basis. The European Commission originally proposed this directive using as a legal basis the EU’s competence for transport policy however the UK, as well as other Member States, noting that several aspects of the proposal fell under the then third pillar, argued that the proposal should have been adopted by the justice and home affairs council, unanimously, and under the consultation procedure. In fact, following a unanimous agreement, the member states were able to change, during negotiations, the legal basis from transport policy to police co-operation. However, as the Lisbon Treaty had entered into force the proposal was no longer subject to the consultation procedure and unanimity in the Council but to the ordinary legislative procedure and QMV. Nonetheless, the change of legal basis has allowed the UK Government to opt out from the proposal. Unsurprisingly, the Commission brought an action of annulment before the CJEU on the ground that the directive had been adopted on the wrong legal basis. The European Court of Justice agreed with the European Commission as it ruled, “Directive 2011/82 is a measure to improve transport safety within the meaning of Article 91(1)(c) TFEU” and “it should have been adopted on the basis of that provision.” Following the CJEU’s ruling, which annulled the Directive, the Commission put forward the same proposal with the exception of the legal base, which is now Article 91(1)(c) TFEU (transport policy), and no longer provides for the non-application of the Directive to the UK, Ireland and Denmark. This ruling has therefore overturned the UK opt in. The Government has not opted into the original directive because it was concerned about the measure set up and implementation costs. However, due to the ordinary legislative procedure and QMV, the Government has been forced to accept this measure against the national interest.

According to the Government the above-mentioned CJEU’s judgements did “not have a significant impact” on its opt-in policy, as the Court did not address the UK’s main argument on the application of the opt-in Protocol to the determination of the legal base of a measure with JHA content. Particularly, the Government stressed that the CJEU has not considered yet its arguments on incidental JHA content. The Home Secretary said “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.” Hence, as the CJEU has failed so far to address the UK’s arguments, the Government has explained to the House of Lords EU Committee that it would continue to bring challenges before the Court till a definitive judgment is delivered.

Nonetheless, the Government’s interpretation is not consistent with the CJEU’s rules for determination of a measure legal base. The CJEU has been determining the legal base of an EU measure according to its main or predominant object, considering the presence of incidental provisions irrelevant. An incidental JHA provision cannot change the legal base of a measure. The UK may opt out of a measure whose JHA content is a predominant purpose. However, the UK would be bound by incidental JHA measures as the lack of a Title V legal base prevents it from opting out of it. Moreover, the CJEU held that it is a legal base for a measure which determines whether the Protocol applies and not the Protocol that has an effect on the question of the correct legal base.

According to the Government the CJEU had not ruled yet on the interpretation of “pursuant to” in the opt-in Protocol, consequently, the government believes that it is entitled to maintain its interpretation until the CJEU rules otherwise. However, as the House of Lords EU Committee noted a ruling from the CJEU on the interpretation of “pursuant to” is likely to give the EU more powers to increase its competence in other areas. In fact, the CJEU is likely to further limit the application of the UK’s opt in by ruling that it does not apply to a measure in the absence of a Title V legal base. The CJEU is likely to further limit the UK ability to determine whether to be part of measures related to justice and home affairs, whilst such decision should rest with the UK.

The House of Lords EU Committee also pointed out in its report that the Government has argued that the European Commission has been deliberately “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 Justice Secretary said to the Committee that he had “no doubt” that “some” were “looking at alternative routes to dilute that protocol and our opt-outs, and to limit our room for manoeuvre”. He was able to give a specific example where the Commission has tried to circumvent a legal base in Title V with the aim of limiting the application of the UK’s JHA opt-in. Viviane Reding specifically said that the Commission put forward a measure introducing common criminal penalties for fraud against EU institutions on a legal base outside Title V so it could apply to the whole EU, circumventing in this way the UK’s opt-in.
The House of Lords EU Committee could not find “persuasive evidence” of the Commission’s policy of “legal base shopping”, in order to undermine the UK’s opt-in rights. However, even if we accept that the European Commission has no intention to circumvent the UK’s opt in rights one cannot forget that the European Commission puts forward legislation that serves the EU’s interests. The Commission tries to find the common denominator that best satisfies most national interests. In fact, in the EU decision-making process, the common interest prevails over the national interest. The text ultimately adopted by the legislative bodies takes into account the EU’s interest and objectives as a whole, and this is not in the UK’s national interest. Consequently, the European Commission, as well as the other member states, would not take into consideration the UK’s opt in when choosing a legal base.

The House of Lords EU Committee recommended that the Government should “focus on addressing any concerns over the choice of legal base through the existing mechanisms in the legislative process, particularly within the Council.” It noted that “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.” The UK has in fact been able, in some cases, to convince the Council to accept its view and change the legal base for one in Title V. However, it is important to note that under the ordinary legislative procedure the European Parliament has also to agree to it. The European Parliament and the Council both agreed to change, during the negotiations, the road traffic offences legal basis. However, unsurprisingly, the Commission did not agree with this change and brought an action of annulment before the CJEU which then annulled the directive on the ground of wrong legal basis, overturning the UK’s opt in rights. Hence, even if the Government is able to convince the Council, and the Council and the European Parliament both agree to change the legal basis there is always the risk of the Commission bringing an action of annulment before the Court, which, so far, has been deciding against the UK. On the other hand, if the Government fails to convince other member states to change the legal basis so that the UK’s opt-in applies, it may bring an annulment action before the CJEU, however, as shown by the cases abovementioned, it is very unlikely to succeed.

It is important to recall that the EU has already adopted, and the Commission is planning to put forward further proposals, on the definition of criminal offences and sanctions to ensure EU policies, such as road transport, data protection, customs rules, environmental protection, fisheries policy and internal market policies, are effectively implemented and properly enforced. In these cases national legislation would have to provide for the types and levels of sanctions that Brussels considers necessary to enforce EU policies. However, the UK’s opt in does not cover measures which contain JHA content but whose main aim is considered to be covered by another EU policy, outside Tittle V, as the legal basis likely to be chosen concerns the policy in question, which is out of the Protocol 21. Ultimately, it would be for the CJEU to decide on the appropriateness of a legal basis and whether it may trigger Protocol 21, and it will do so with the objective of the uniform application and effectiveness of EU law. The CJEU has already set a precedent by ruling that the road traffic offences directive, due to its aim and content, should have had a transport legal base rather than a police co-operation one. This clearly shows that Protocol 21 is unlikely to apply to such measures even if they contain content considered to be an exercise of the EU’s competence under Title V.

The opt-in Protocol might provide the UK with a safeguard against participating in legislation which has a legal base in Title V, as it has been argued by the House of Lords EU Committee, yet it is not effective against measures with JHA content but not covered by Title V legal basis, as the UK is not able to opt out from such measures even if it considers it to be in the national interest to do so. As above mentioned, there are cases where the Commission, the Council and the CJEU have denied the UK the right not to take part in the adoption of measures with JHA content and not to be bound by them.

The House of Lords EU Committee, as well as the European Scrutiny Committee, does not agree with the Government’s assertion that the JHA opt-in protocol applies to a measure in the absence of a Title V legal base. The opt-in Protocol cannot be interpreted, as the government stresses, to mean that it is the content of an EU measure which determines its application rather than a legal base under Title V. According to the Government’s own analysis, if it decides not “opt in”, it would not consider the UK bound by the JHA content in question. However, as abovementioned, the UK is not bound by JHA measures, which have Title V legal basis, and the Government has decided not to opt in, but it is bound by the so called incidental JHA measures as the lack of a Title V legal base prevents it from opting out of it. The Government approach is likely to breach EU law consequently the UK is likely to be subject to infringement procedures launched by the European Commission and being brought before the CJEU and, ultimately, to face fines if it fails to comply with a Court’s judgment.

The Chairman of the EU Justice Sub-Committee, Baroness Quin said “The weight of the evidence left us in no doubt of three things: that the Government’s interpretation of the opt-in Protocol was legally unsustainable; that its litigation strategy ignored the case law of the Court; and that its stance could run counter to the UK’s own interests as well as undermine its good standing among other Member States.” Nevertheless, the Government is absolutely right by saying that its interpretation would ensure a widest possible freedom of choice in relation the EU measures on JHA, protecting, in this way, the national interest. As the Government stated, it “wants to take all opt-in decisions on a case-by-case basis, whilst putting the national interest at the heart of the decision making process.” In response to the House of Lords EU Committee’s report, a Home Office spokesperson said: “The UK will defend our right to opt in or out of EU justice and home affairs measures. It is an important right which ensures we participate only in those justice and home affairs laws that are in the national interest.”

The House of Lords EU Committee has recommended the Government to reconsider its approach and comply with the EU law. However, the Government should consider introducing a unilateral veto instead as well as displaying EU law. It is important to recall that the European Scrutiny Committee has recommended the Government to put forward primary legislation introducing a unilateral veto over EU legislative proposals and disapplication of EU legislation, notwithstanding the ECA 1972, which are not in Britain’s national interest.

This is a policy area that must be decided by the Westminster Parliament not by the EU. However, the EU has been taking away from Parliament its sovereign power to legislate over these matters. The CJEU has been deeply interfering with the UK legal system, overriding national rules as regards a wide range of EU policies and legislation, which will get worse now that the CJEU has full jurisdiction over measures in the field of police and judicial cooperation in criminal matters. The European Court of Justice can override British courts. In fact, the European Court of Justice and UK Courts might strike down Acts of Parliament that are passed according to voters’ democratic wishes.

The House of Lords EU Committee also recommended the Government to “give careful consideration to the feasibility of an inter-institutional agreement on the scope of Title V”. It then stressed “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.” However, as Bill Cash has been saying it is now imperative to move away from the EU legal framework and to insist on fundamental re-negotiation based on European trade, political co-operation and the re-establishment of parliamentary sovereignty. As Bill Cash stressed “The imperative is a change in the structure of the treaties.”