Expl=
anation:
These provisions concern the
Court’s jurisdiction and Commission competence over third pillar matt=
ers
before the Lisbon Treaty enters into force, such as, for example, the notor=
ious
Framework Decision on the European arrest warrant.
According to Article 10 of this Proto=
col,
the Court’s limited jurisdiction over police and judicial cooperation=
in
criminal matters is retained for existing measures for five years after the
Lisbon Treaty enters into force. Under present Article 35 TEU, the ECJ has
jurisdiction to give preliminary rulings on interpretation and validity of
framework decisions, decisions and conventions adopted under Title VI (poli=
ce
and judicial cooperation in criminal matters). However, this applies only to
the Courts of a Member
State which have
expressly accepted such jurisdiction. The UK has not submitted a declar=
ation
under Article 35 TEU and therefore it does not accept the jurisdiction of t=
he
Court to give preliminary rulings on such matters. Moreover, the Commission
will not have the powers to initiate infringement procedures against Member
States concerning the implementation of these matters in their national law=
for
a five year period.
However, during the five year period,=
the
European Court of Justice will have full jurisdiction, interpretation of
measures over an existing act which is amended. Presently, unanimity in the=
Council
is required to amend such acts but under the Lisbon Treaty, the amendment o=
f such
acts can be achieved through QMV in the Council and then subject to co-deci=
sion
procedure. In this way, the UK
is excluded from the process of amending existing acts. It is of only margi=
nal
relief that the UK
has an opt-out on amended acts. It would be more suitable for the UK to h=
ave a
real input into the process. The terms of our input are completely
unacceptable.
The <=
st1:place
w:st=3D"on">UK will also encounter diffic=
ulties
in that it will have no power of initiative over amending the third pillar
measures and it will be for the European Commission to decide the transposi=
tion
process. There is a Declaration on Article 10 of the Protocol on transition=
al
provisions which states that “The Conference invites the European
Parliament, the Council and the Commission, within their respective powers,=
to
seek to adopt, in appropriate cases and as far as possible within the five-=
year
period referred to in Article 10(3) of the Protocol on transitional provisi=
ons,
legal acts amending or replacing the acts referred to in Article 10(1) of t=
hat
Protocol.” However, given that not all the third pillar measures will=
be
amended, replaced or repealed by the end of the transitional period, the UK will=
have no
power of initiative and it will be for the European Commission to decide the
transposition process.
At the end of the transitional period,
any third pillar measures which have not been transposed will be subject to=
ECJ
jurisdiction. The UK, it is said, will notify the Council (at the latest 6
months before the expiring of the transitional period) that it does not acc=
ept
the Commission and ECJ’s powers over exis=
ting
EU measures which have not been amended under the Lisbon Treaty. However, in
this case, all third pill=
ar
legislation which has not been amended will cease to apply to the UK as f=
rom the
date of expiry of the transitional period. The UK must, at the end of the
transitional period either confirm the Commission and =
ECJ’s
powers over un-amended EU measures or it must face the consequences. The
consequences are not described in the Lisbon Treaty.
The status quo will not be maintained if the UK decides not to participate=
in an
amended measure. Moreover, the UK
will not be entitled to continue its current EU agreements.
The Council, acting by QMV, on a prop=
osal
from the Commission, may determine “the necessary consequential and
transitional arrangements” but the UK will be excluded from the
adoption of such decision. Moreover, the Council acting by QMV “may a=
lso
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.”
The <=
st1:place
w:st=3D"on">UK cannot win in this unscrup=
ulous
process. The UK
may, at any time, notify the Council of its wish to participate in acts from
which it was previously excluded. However, in that case, it will have to ac=
cept
the Court’s full jurisdiction and the Commission enforcement powers. =
The
Provisions of the Schengen Protocol or of the Protocol on the position of t=
he United Kingdom and Ireland
in respect of the area of freedom, security and justice shall apply which, =
in
fact, provide tougher conditions for the UK to meet. The re-participat=
ion of
the UK in those matters is subject to the approval of the Council but it sh=
ould
be mentioned that according to Article 10 (5) “the Union institutions=
and
the United Kingdom shall seek to re-establish 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.”
The UK has a flawed ‘right to
choose’ – as the European Scrutiny Committee has said, “<=
span
style=3D'mso-bidi-font-weight:bold'>the risk of losing the benefit of an ex=
isting
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 pressur=
e on
the UK to opt in.” Moreover, the possibility of the Council deciding =
by
QMV that the UK
should bear the direct financial consequences necessarily and unavoidably
incurred if it ceases to participate in a measure. It is as the ESC argued,
that “this must import some measure of financial risk, not present
before, into a decision not to opt in.” Therefore, it is not in
“the UK’s
interests to be exposed to such risk.”