(By Steve Peers)
The Treaty of Lisbon offers the possibility that the UK can decide, as of 1 June 2014, to opt-out of all EU policing and criminal law measures adopted before the ToL. The option to opt-out is set out in the Protocol to the EU Treaties on transitional measures, Art 10.
The legal framework
Art 10 – takes the form of transitional rule relating to the Court of Justice’s jurisdiction. Until 1 December 2014:
a) The Court of Justice has no jurisdiction over infringement actions brought by the Commission against MSs as regards pre-Lisbon 3P acts;
b) The Court of Justice only has jurisdiction as regards references from national courts on the interpretation and validity of pre-Lisbon 3P acts where the MS concerned chose to opt-in to that jurisdiction. MS which didn’t opt-in: UK, Ireland, Denmark, Poland, Bulgaria, Slovakia, Malta and Estonia.
The end of the transitional period will mean the application of the normal rules on the Court’s jurisdiction in a uniform manner from all MSs.
Art 10(4) – by 1 June 2014 ‘at the latest’, the UK ‘may’ decide that it does not want to accept the Court’s jurisdiction in which case none of the pre-Lisbon 3P acts will continue to apply to it, as from 1 December 2014.
This ‘block opt-out’ cannot apply where the acts in question have already been amended after the entry into force of the ToL.
In the event that UK decides to opt-out, the Council can, by QMV, adopt transitional arrangements and decide that the UK will have to bear the ‘direct financial consequences’ of the mass opt-out.
The UK will retain the option ‘at any time afterwards’, to opt back in to the pre-Lisbon 3P acts which it has opted out of (Art 10(5)) – but not until the measures concerned ‘have ceased to apply to it’, ie after 1 December 2014. If the measure builds upon the Schengen acquis, the Council will decide by unanimity on whether to re-admit the UK. In all other cases the Commission will decide. Once the measure applies in the UK again the Court of Justice will have its usual jurisdiction.
The Impact
The possible block opt-out would not apply to all pre-Lisbon JHA measures, but only to pre-Lisbon policing and criminal law measures. It would not apply to measures concerning immigration, asylum or civil law.
It could only apply to measures adopted prior to the entry into force of the ToL, not ones adopted after its entry into force. I will also not apply to measures which have been amended since the entry into force of the ToL.
It would only apply to EU measures (‘acts of the Union’ – Art 10(1)) rather than international treaties.
Opting back in
The UK government could announce its intention to opt back in to certain or even most of the pre-Lisbon 3P measures before, at the same time or shortly after it makes the formal decision to opt out of all of them- so in effect, it would only be opting out of some of them. Since the UK could not officially apply to opt back in to any EU measures until 1 December 2014, there would be a formal gap of at least a few months before the Commission’s and/or the Council’s decision on the UK’s opt-in could be formally adopted. (NB: as regards criminal procedural law, there is no bar to the retroactive application of the opt-in decision. However, it would not be possible to provide for any retroactive application of measures concerning substantive criminal law because of a ban on retroactivity of criminal liability set out in the ECHR and the EU’s Charter of Fundamental Rights).
Approval of the Commission to opt back in shouldn’t be a problem, however in the past the Council has been reluctant to approve UK participation in Schengen measures relating to border controls, unless the UK takes part in Schengen fully, but it has approved the UK’s participation in the criminal law and policing aspects of Schengen.
CONCLUSION
The main practical impact of the block opt-out would be to end the UK’s access to policing databases and other forms of exchange of police information (access to these sources would not be available in the period between the 01.12.2014 and the dated that the UK formally opts back in, since the exchange of personal data can only take place on the basis of a formal, detailed legal act, according o the ECHR and the EU Charter), and to terminate the UK’s involvement in some aspects of criminal law judicial cooperation, in particular the European Arrest Warrant and the transfer of prisoners.
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