Lisbon Treaty – Opt-Outs, Opt-Ins and a Useless Protocol

-- Margarida Vasconcelos. Full text from The European Journal --

The House of Commons European Scrutiny Committee (ESC) produced its second report at the end of last year, European Union Intergovernmental Conference: Follow-up. The Committee concentrated the bulk of its work on the Government’s red lines as they were deemed by the Government as prerequisites for agreement to the Reform Treaty. The Committee has stressed the lack of transparency on the IGC convening. According to the Committee, “the process could not have been better designed to marginalise the role of national parliaments and to curtail public debate, until it has become too late for such debate to have any effect on the agreements which have been reached.” The ESC remains concerned that a “legal obligation can be inferred” from provisions on the role of national parliaments and “given its constitutional significance, this is not an issue where any ambiguity is acceptable.”

In concerns over the Protocol on the application of the Charter of Fundamental Rights to the United Kingdom, the Minister for Europe, Jim Murphy, has made clear that the Protocol is not an opt-out from the Charter and the Foreign Secretary, David Miliband, confirmed that the Charter would be legally binding. According to the ESC the Protocol will not prevent the courts of being bound by the ECJ’s interpretations based on the Charter. Hence, “if the ECJ gives a ruling in a case arising outside the UK on a measure which also applies in the UK, the duty to interpret the measure in accordance with that ruling arises, not under the Charter, but under the UK’s other Treaty obligations.” According to the ESC “the only way of ensuring that the Charter does not affect UK law in any way is to make clear, (…), that the Protocol takes effect “notwithstanding the Treaties or Union law generally.” In what concerns, Justice and Home Affairs the new transitional measures introduced in the draft Reform Treaty in October, the Committee believes they “weaken the UK’s position by making decisions not to opt into a measure the subject of unpredictable consequences and risk.”

The Minister for Europe as well as the Foreign Secretary has explained to the ESC that “the new transitional provisions on the UK’s opt-in arrangements concerning amendments and Schengen building measures as well as the right of the United Kingdom to “opt out” of measures under Article 10 of Protocol 10 were included at the UK’s “express insistence.” Under Article 4a of the Protocol, on the position of the UK and Ireland with respect to the area of freedom, security and justice, if the Council decides, by QMV and without the participation of the UK, that an existing measure becomes “inoperable” and if the UK does not participate in its amendment, the existing measure will not be binding or applicable to it. As the ESC has asserted “the UK retains the final right to choose, but it seems us that the risk of losing the benefit of an existing measure, because of a choice not to participate in its amendment, by virtue of a decision in which the UK cannot take part, must put at least some pressure on the UK to opt in.” Moreover, the Council acting by QMV may determine that the UK shall bear the direct financial consequences incurred as a result of the cessation of its participation in a measure. The ESC has also pointed out “This must import some measure of financial risk, not present before, into a decision not to opt in and we question whether it is in the UK’s interests to be exposed to such risk.”

The UK ‘opt-in’ only ensures protection when the UK chooses not to opt in. If the UK decides to opt-in there is no right to opt-out and in some cases, prevent the use of the ‘emergency brake.’ The ESC has noticed that the UK will lose protection “every time jurisdiction is transferred from UK courts to jurisdiction by the European Court of Justice and the Commission.” The ESC considered that all these matters “should be debated on the Floor of the House before the Treaty is signed.” Bill Cash, MP, has stressed in his minority report, published alongside the Committee report, that “the Reform Treaty, as compared to the Original Constitutional Treaty, requires a referendum of the electorate of the United Kingdom because it is the equivalent to the Constitutional Treaty, even if not the same.”