Freer than we were

In order to understand the UK’s opt-outs and other special rights in the field of justice and home affairs, it is important to know how the Treaty of Lisbon 2007 will reform this sector for the EU as a whole.

The new rules on the Area of Freedom, Security and Justice (AFSJ) would significantly reform the existing provisions on police and judicial co-operation in criminal matters (PJC) in the Maastricht Treaty, and on border checks, asylum, immigration and judicial co-operation in civil matters in the Treaty of Rome.

First, EU action under the new AFSJ would be conducted through a unified set of legal instruments — ordinary regulations, directives and decisions — thereby abolishing the special legal instruments currently used for PJC under the Maastricht Treaty.

Secondly, the new AFSJ would see a significant enhancement of the powers of the European Parliament, and the use of qualified majority voting within the Council of Ministers: co-decision (the ‘ordinary legislative procedure’) would become the standard decision-making process across the entire AFSJ.

Thirdly, the new AFSJ would strengthen the supervisory powers of the European Court of Justice to give interpretative rulings on AFSJ acts at the request of national judges, and to annul AFSJ measures found to be in breach of the Treaties.

Nevertheless, the new AFSJ would still differ from other fields of EU action. First, the Commission would have to share with the member states its power to make legislative proposals as regards PJC.

Secondly, certain EU competences under the new AFSJ would remain subject to a ‘special legislative procedure’ requiring unanimity within the Council of Ministers, and thus preserving the national veto: for example, family law with cross-border implications, operational co-operation between national law enforcement services or establishing a European Public Prosecutor’s Office.

Thirdly, as regards judicial co-operation in criminal matters and the definition of criminal offences and sanctions, the Treaty of Lisbon introduces a novel ‘emergency brake’ mechanism: every member state effectively retains its national veto over such measures, where it considers that a draft directive would affect fundamental aspects of its criminal justice system.

Fourthly, it will be easier for national parliaments to show a ‘yellow card’ to an EU legislative proposal in the field of PJC on the grounds that it breaches the principle of subsidiarity.

Finally, the European Court of Justice is excluded when exercising its powers in the field of PJC from reviewing the validity or proportionality of the activities of national law enforcement agencies, the maintenance of law and order, or the safeguarding of internal security.

Furthermore, certain special transitional provisions will apply to the new AFSJ. For a period of five years after the entry into force of the Lisbon Treaty, the Commission will not be able to bring enforcement actions against member states for failing to fulfil their obligations under pre-existing PJC acts. For the same period, the European Court of Justice will continue to exercise only limited jurisdiction over pre-existing PJC acts — including the total exclusion of jurisdiction to hear preliminary references from national courts in member states (such as the UK) which have refused voluntarily to accept the Court’s involvement.

The UK’s special rights

Those are the main reforms on justice and home affairs which will apply to the EU as a whole. Taken together, they mean that the EU’s power to act within the AFSJ will be significantly strengthened as compared to its competences under the existing Treaties. Moreover, most observers agree that the quality of the Union’s new powers will considerably improve, for example, as regards democratic accountability and the protection of individual rights while still taking into account the sensitivities surrounding EU involvement in the field of criminal law.

However, the UK has negotiated numerous special rights under the new AFSJ which make its position unique.

Status of pre-existing PJC acts

At least six months before the expiry of the general five-year transitional period for pre-existing PJC acts, the UK may decide that it does not accept the full enforcement powers of the Commission and the jurisdiction of the European Court of Justice. In that case, all pre-existing PJC acts will cease to apply to the UK upon expiry of the five year transitional period. However, the UK may subsequently choose to opt back into specific re-existing PJC acts (for example, the European Arrest Warrant legislation).

This is the first time a reform treaty has offered a particular member state not just the right to opt-out from the adoption of future measures in a given field but also the right to repudiate its obligations under an entire corpus of pre-existing measures. These provisions effectively give the UK a right to pick-and-chose which aspects of pre-existing PJC law it will continue to participate in.

Amendments to the Schengen Protocol

This protocol contains the UK’s existing opt-out/opt-in rights as regards the so-called ‘Schengen acquis’ on the abolition of border controls between member states. The UK’s special rights remain fully intact; most of the amendments to the protocol are purely technical.

However, one more substantive reform affects the provisions concerning new measures to build upon the Schengen acquis. In particular, the Lisbon Treaty clarifies that, where the UK has already opted into an existing Schengen measure and a new proposal is made to build on that act, the UK may still decide to opt-out of that new proposal.

However, there is a quid pro quo in such situations: the Council of Ministers may decide that the UK’s original opt-in shall cease to apply in whole or in part — taking into account the need to retain the widest possible measure of participation by the UK without seriously affecting the practical operability of the Schengen acquis and while respecting the latter’s coherence.

The Lisbon Treaty clearly anticipates that this ‘expulsion mechanism’ may give rise to difficult political negotiations: if the Council of Ministers fails to reach a decision within the applicable deadline, the matter may be referred to the European Council for resolution; if the European Council also fails to reach a decision, the Commission itself is empowered to take appropriate action.

Amendments to the Protocol on the UK and Ireland

This protocol contains the rest of the UK’s existing opt-out/opt-in rights. The main change here will be that the UK’s special rights are extended beyond their current field of application (border checks, asylum, immigration and judicial co-operation in civil matters under the Treaty of Rome) so as to cover the new AFSJ as a whole. As a result, the UK will acquire rights to opt-out/opt-in across several fields where it currently fully participates in EU legislation. First, the UK’s opt-out/opt-in will extend to all measures in the field of PJC. Under the existing Maastricht Treaty, such measures are currently fully binding on the UK.

Secondly, the UK’s opt-out/opt-in will also extend to EU directives on the definition of criminal offences and sanctions in fields already subject to harmonisation measures (for example, environmental policy or internal market issues like product safety). Under the existing Treaty of Rome, such measures are again fully binding on the UK. In addition, the UK’s opt-out/opt-in will apply to any new competences conferred upon the Union as regards the AFSJ: for example, the special power to adopt measures concerning passports, ID cards and residence permits to promote the free movement of Union citizens.

As well as those changes to the scope of the opt-out/opt-in system, it is worth noting three further reforms as regards the actual substance of the UK’s special rights.

First, new provisions make clear that the opt-out/opt-in system also applies to proposals for amending an existing measure already binding on the UK. As with the parallel provisions of the Schengen Protocol, however, if the UK chooses to opt-out of a proposal to amend an existing binding act, the Council of Ministers may decide to expel the UK from the existing act, where the measure would otherwise be rendered inoperable for the other member states.

Secondly, the UK will not be bound by any special data protection rules adopted by the EU in respect of PJC, as regards acts in respect of which the UK does not participate.

Thirdly, whereas Ireland has waived any right to opt-out from Union measures imposing restrictive measures against natural and legal persons/groups pursuant to the new AFSJ (for example, freezing the funds of suspected terrorists), the UK has merely declared its intention (voluntarily) to opt into all such acts.

It is worth noting the criticism sometimes voiced of the UK’s rights under this protocol, that the UK, having opted into a given proposal, is then unable to re-assert its opt-out at a later stage, before a measure is finally adopted by the Council of Ministers. This, it is argued, creates the possibility that a proposal may be amended during the EU’s legislative process in a manner which adversely affects the UK’s fundamental interests. That criticism is not particularly persuasive, and the fact that it remains unaddressed by the Lisbon Treaty should not give cause for particular concern.

In the first place, institutional practice clearly suggests that it is possible, on the basis of any given legislative proposal, to ascertain from the outset whether one’s fundamental interests are likely to be adversely affected. Subsequent amendments are unlikely to change that original proposal so drastically as to create any such threat.

In the second place, even allowing for the theoretical possibility that subsequent amendments might in themselves adversely affect the UK’s fundamental interests, it remains the case, as regards the most sensitive fields of AFSJ activity — such as family law with cross-border implications, operational co-operation between national law enforcement services and establishment of a European Public Prosecutor’s Office — that the UK (like every other member state) retains its ordinary veto powers within the Council of Ministers. Thanks to the ‘emergency brake’ procedure, the UK may also impose a veto over measures in the fields of judicial co-operation in criminal matters and the definition of criminal offences and sanctions.

In the third place, it is common knowledge that other member states refused to countenance any demand for the UK’s special rights to be extended throughout the entire duration of the EU’s legislative process. For them, that raised the risk of the UK being able to opt into an initial proposal, fully participate in negotiations concerning its detailed content, and then opt out again just before the final measure was adopted.

No doubt such a scenario also seems highly unlikely — but in a situation where one member state invokes a fanciful risk to press its claims, it is perhaps unsurprising that other member states rely on an equally fanciful risk to counter them.

Conclusion

The combined effect of those provisions would be that the UK participates in the AFSJ to a lesser degree under the Lisbon Treaty than it does even under the existing Treaties. Certainly, the UK’s ‘red lines’ in the area of freedom, security and justice are, from a legal perspective, perfectly watertight: although the drafting may sometimes be difficult for non-specialists to fathom, and some of the detailed technical implications of the opt-out/opt-in systems will be clarified only by further practical experience, the UK’s basic position is nevertheless clear and enshrined in the primary law of the Union. As such, it is amenable to amendment only with the UK’s consent through the revision procedures envisaged under the Treaties.

Michael Dougan, Professor of European Law & Jean Monnet Chair in EU law, Liverpool Law School, University of Liverpool.