Treaty deal delays ECJ powers over law enforcement legislation

Citizens will not be able to challenge controversial EU law enforcement legislation, like the directive creating the European arrest warrant, in the European Court of Justice (ECJ) until 2014, as part of a deal on the new reform treaty.

Under a compromise reached by EU legal experts on Tuesday (2 October), existing EU legislation on justice and home affairs will not come under the competence of the ECJ until five years after the entry into force of the new treaty. The measure was agreed at the insistence of the UK government, which does not want existing EU legislation in the field to fall under the European courts straight away. Even after this five-year transition, the UK will be allowed to ignore ECJ rulings on legislation that was adopted in this field before the entry into force of the new treaty.

The agreement on the fine detail of the reform treaty finalised yesterday also includes strict rules on how the UK and Ireland would opt in to decisions on police and judicial co-operation and on expanding laws relating to the Schengen passport-free travel zone.

After a proposal is presented, the UK and Ireland have three months to indicate that they do not want to take part in agreeing new legislation. This is designed to avoid what one EU diplomat described as the UK’s "having your cake and eating it" approach to justice and home affairs legislation, by opting in to shape a new law and then opting out of the final result.

The UK and Ireland also face financial penalties if they undermine existing initiatives, such as databases, by opting out of them.

UK Liberal Democrat MEP Andrew Duff, one of the three MEPs who are taking part in the drafting of the new treaty text, said that the draft treaty "permits this self-service approach that the Brits have to the EU, but regulates it".

The MEP added that the deal was "pretty tough on the Brits. They haven’t got all that they asked for". The Council of Ministers and the European Commission would be in a "strong position to refuse them access to the full raft of Schengen and justice and home affairs instruments", he said.

Duff added that the compromise reached with the UK would only survive for a limited period because it was "far too baroque to be a satisfactory system of government". He said that the deal went against the grain of "simplicity, transparency, democracy and the cohesion of the EU".

A UK government spokesman said: "The legal [experts] group has today agreed a package that fully protects our ‘red line’ on justice and home affairs."

The deal reached this week by legal experts means that most of the technical drafting work has been completed, leaving only difficult political issues for EU foreign ministers to discuss on 14-15 October and ultimately EU leaders to thrash out at their summit in Lisbon on 18-19 October.

The remaining issues include Poland’s request to include a new mechanism to delay decisions, known as the Ioannina compromise, in the new treaty, and not just in a declaration attached to it, as well as its bid to gain a permanent post of an advocate-general at the ECJ. Austria is expected to ask for legal clarification that it can limit the number of foreign students attending its universities following an influx of students from Germany. Bulgaria will ask to be able to use the Cyrillic name of the euro.

Duff said that Parliament’s requests to give more prominence to references to EU citizenship in the new treaty and to organise a solemn proclamation of the charter of fundamental rights had been resolved satisfactorily.

Citizens will not be able to challenge controversial EU law enforcement legislation, like the directive creating the European arrest warrant, in the European Court of Justice (ECJ) until 2014, as part of a deal on the new reform treaty.