Confronting the ‘opt-out club’

Accommodating the UK and Ireland’s opt-outs in justice and home affairs was one of the most difficult issues that legal experts from member states and the EU institutions had to confront when preparing the ground for a deal on the reform treaty.

In June, EU leaders agreed to grant the two countries opt-outs from legislation on the Schengen border-free travel area and the possibility to opt out from police and judicial co-operation.

But some member states, including Spain, Belgium and Luxembourg, as well as the three members of the European Parliament taking part in negotiations to fine-tune the treaty text, insisted that the UK and Ireland should not be able to exploit their position by opting in when new legislation is being negotiated, watering it down and then opting out of the legislation when it is implemented.

After a series of negotiating sessions devoted entirely to this issue, the legal experts found a compromise last Tuesday (3 October) which sets a three-month deadline for the UK and Ireland to confirm their wish to opt out from new Schengen legislation. The two countries can also be excluded from deciding new legislation by a qualified majority vote. Decisions on excluding the UK and Ireeland from so-called Schengen building measures, to ease travel across borders, can be referred to the European Council, but they are still taken by qualified majority. If the European Council fails to take a decision on allowing the two countries to take part in such decisions, the European Commission will decide on the matter. The UK and Ireland could also be forced to pay the costs if their opting out of measures had financial consequences.

The reform treaty would end the special character of most justice and home affairs legislation by doing away with the existing ‘pillar structure’ under which decisions are taken by governments with little involvement from the European Parliament and no scrutiny role for the European Court of Justice (ECJ). Existing legislation such as the European arrest warrant and law relating to the Europol police office will be brought into the mainstream EU decision-making process. This would mean that laws would be adopted on the basis of a proposal from the Commission with co-decision with the Parliament and under the competence of the ECJ.

The UK resisted this move, arguing that it had signed up to the measures on the basis that they were third pillar instruments. Under the compromise found by the legal experts last week, there will be a five-year transition period before existing legislation agreed under the third pillar moves to the community pillar. Even after this transition period, the UK can choose to have an indefinite opt-out from the application of such measures as community laws, which means that it can opt not to recognise the ECJ’s scrutiny of these rules. But again the UK will have to bear the financial consequences of such an opt-out.

Commission officials have said that this five-year delay might not have as much effect as it first appeared because once the new treaty comes into force the Commission will be able to make new proposals to repeal laws adopted under third pillar decision-making procedures and replace them with laws adopted under the mainstream community pillar. This would have to be agreed by qualified majority with co-decision with the European Parliament and with the ECJ being able to rule on the legality of decisions.

Accommodating the UK and Ireland’s opt-outs in justice and home affairs was one of the most difficult issues that legal experts from member states and the EU institutions had to confront when preparing the ground for a deal on the reform treaty.