Schengen, the European Court of Justice and flexibility under the Lisbon Treaty: Balancing the United Kingdom's Ins and outs

European Constitutional Law Review

Volumn 5, Issue 1, 2009, Pages 71-98

  Fletcher, Maria ^a  

^a UNIVERSITY OF GLASGOW   (United Kingdom)

Author keywords

Area of Freedom, Security and Justice; Differentiation; Duty of loyal cooperation; European Court of Justice; European Integration; European Union; Opt in; Opt out; Schengen Protocol; Treaty of Amsterdam; Treaty of Lisbon; Treaty of Maastricht; United Kingdom

Indexed keywords

EID: 71949121107     PISSN: 15740196     EISSN: 17445515     Source Type: Journal    
DOI: 10.1017/S1574019609000716     Document Type: Article

References (121)

1. See for instance S. George, An awkward partner: Britain in the European Union (Oxford, Oxford University Press 1998).
2. See for instance S. Wall, Stranger in Europe: Britain and the EU from Thatcher to Blair (Oxford, Oxford University Press 2008).
3. See Wall, supra n. 2.
4. See Wall, supra n. 2. Ibid.
5. Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 Dec. 2007, OJ [2007] C 306/1, 17.12.2003.
6. Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union can be found at OJ [2008] C 115/1, 9.5.2008.
7. ECJ 18 Dec. 2007, Case C-137/05, United Kingdom v. Council and ECJ 18 Dec. 2007 Case C-77/05, not yet reported.
8. The terms of this challenge come from S. Weatherill, Law and integration in the European Union (Oxford, Oxford University Press 1995) p. 53.
9. See S. Besson, 'From Integration to European Integrity: Should European Law Speak with Just One Voice?', 10 No.3 European Law Journal (May 2004) p. 257-281.
10. The concept of solidarity has been evoked by the European Court of Justice as an interpre tative legal principle.
11. W. Van Gerven, The Economic Union: A Policy of States and Peoples (Oxford, Hart Publishing 2005) p. 31-32.
12. W. Van Gerven, The Economic Union: A Policy of States and Peoples. Ibid., p. 28-29.
13. F. Tuytschaever, Differentiation in European Union Law (Oxford, Hart Publishing 1999) p. 176 'implies that a given policy objective binds only the MS which are willing to pursue that objective'.
14. See for instance R. Harmsen, 'A European Union of Variable Geometry: Problems and Per spectives', 45 Northern Ireland Legal Quarterly (1994) p. 109-133.
15. Described by Tuytschaever, supra n. 12, at p. 174 'multi-speed integration implies that com mon objectives are pursued by all Member States, but not at the same time and in the absence of a pre-determined timetable.'
16. The concept of a core or pioneer group is commonly used as a threat by politicians at times of political crisis in the EU. For instance President Chirac and Chancellor Schröder threatened to move forward with a 'core' Europe if talks on the draft of the Constitutional Treaty were not finished by the end of 2004. A form of enhanced co-operation comes into being each time a new measure is built upon the Schengen acquis, without the participation (which is optional) of the United Kingdom, Ireland or even Denmark, in accordance with the Protocol integrating the Schengen acquis into the framework of the European Union.
17. E.g., Art. 95(4) EC and Article 39(3) EC.
18. E.g., Art. 306 EC which specifically allows for the Benelux Union.
19. For instance minimum harmonisation of national law through directives or processes that establish an open method of co-ordination in relation to specific policy areas.
20. H. Kortenberg, 'Closer Cooperation in the Treaty of Amsterdam', 35 Common Market Law Review (1998) p. 833 at p. 835.
21. G. Majone, 'Unity in Diversity: European Integration and the Enlargement Process', 33 European Law Review (2008) p. 457 at p. 458.
22. Specifically on the enhanced co-operation procedure see for instance, G. Gaja, 'How Flexible is Flexibility under the Amsterdam Treaty?', 35 Common Market Law Review (1998) p. 855-870.
23. It is worth noting that a form of enhanced co-operation comes into being each time a new measure is built upon the Schengen acquis, without the participation (which is optional) of the United Kingdom, Ireland in accordance with the Protocol integrating the Schengen acquis into the framework of the European Union. See later discussion. Specifically on the enhanced co/operation procedure see for instance, G. Gaja, 'How Flexible is Flexibility under the Amsterdam Treaty?', 35 Common Market Law Review (1998) p. 855-870.
24. See S. Peers, EU Justice and Home Affairs Law (Oxford, Oxford University Press 2006) at p. 45.
25. Austria, Belgium, France, Germany, Luxembourg, the Netherlands and Spain.
26. Indeed the Council of the EU published the Treaty (Council Secretariat, Brussels, 7 July 2005, 10900/05).
27. Significant progress has been made to incorporate the contents of the Prüm Treaty into the EU legal framework through the adoption of a decision.
28. For an excellent discussion on the extent to which membership of the EU does involve certain constraints on the discretion of states to conclude international agreements between themselves see B. de Witte, 'Old-fashioned Flexibility: International Agreements between Member States of the European Union', in G. de Búrca and J. Scott (eds.), Constitutional Change in the EU: From Uniformity to Flexibility? (Oxford, Hart Publishing 2000) p. 31.
29. T. Balzacq et al., 'Security and the Two -Level Game: The Treaty of Prüm, the EU and the Management of Threats', No.234 Centre for European Policy Studies (2006)
30. E. Guild and F. Geyer, 'Getting local: Schengen, Prüm and the dancing procession of Echternach', Centre for European Policy Studies (2006).
31. To be discussed further below.
32. N. Walker, 'Flexibility within a Metaconstitutional Frame: Reflections on the Future of Legal Authority in Europe', in G. de Búrca and J. Scott (eds.), Constitutional Change in the EU: From Unifor mity to Flexibility? (Oxford, Hart Publishing 2000) p. 9 at p. 10
33. Although, as we have noted the EU's attempt to encourage a more generalised and not prede termined avenue for differentiation through the enhanced co-operation procedure has yet to bear fruit.
34. Walker offers an excellent definition of ad hoc by describing the pattern of differentiated integration in the EU as 'not the product of a single fixed or even evolving vision. Rather, it has unfolded in a sequence of strategic negotiations and gambits, of policy-driven initiatives within discrete sectors, and of accommodations of new geopolitical forces.' N. Walker, supra n. 29 at p. 11.
35. This argument was first made in N. Walker, 'Sovereignty and Differentiated Integration in the European Union', 4 European Law Journal (1998) p. 355-388.
36. See for instance the 1984 paper by Ehlermann in which he provides criterion for distinguish ing between admissible and inadmissible exceptions in favour of particular member states; C. Ehlermann, 'How Flexible is Community law? An Unusual Approach to the Concept of "Two Speeds"', 3 Michigan Law Review (1984) p. 1274.
37. See R. Harmsen, supra n. 13.
38. See also van Gerven who suggest that the limits are two-fold: 'psychological' and 'manageability', Van Gerven, supra n. 10 at p. 32.
39. D. Chalmers and G. Monti, European Union Law Text and Materials - Updating Supplement (Cam bridge, Cambridge University Press 2008) at p. 13.
40. Such a commitment might be made at the national level or EU level. For an example of the latter, see Declaration (No.56) by Ireland annexed to the Lisbon Treaty on Art. 3 of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom security and justice in which Ireland commits to participating in AFSJ measures to the maximum extent it deems possible, in particular in measures in the field of police co/operation. It also commits to review the derogatory position as laid down in the Protocol within 3 years of the entry into force of the Lisbon Treaty. CIG 3/1/07 Rev 1.
41. Shortly after taking up office as UK Prime Minister in Autumn 2007, Gordon Brown ruled out membership for the foreseeable future, saying that the decision not to join had been right for Britain and for Europe. The Government published the assessment of the five economic tests; 'UK Membership of the single currency: An assessment of the five economic tests', 9 June 2003 (Cm 5776) , visited 6 Dec. 2008.
42. Note that Ireland's motivation for participating in these negotiated opt-outs results from practical necessity rather than political desire, i.e., wishing to maintain the Common Travel Area with the UK.
43. The remaining tranche of the AFSJ is constituted by the third pillar of the EU known as 'police and judicial cooperation in criminal matters'. The UK does not have a specifically negotiated exemption in relation to the third pillar although it has expressed some reticence to developments and therefore contributed to another position of variable geometry by not exercising its right to accept the jurisdiction of the ECJ in the criminal law field pursuant to Art. 35 EU.
44. Art. 3 of the Art. 14 Protocol. Note that the UK Government, in partnership with the Irish Government have announced proposals to further strengthen the Common Travel Area as part of a wider reform of border security and the immigration system. See Home Office, UK Border Agency, 'Strengthening the Common Travel Area: Consultation Paper', 24 July 2008 , visited 6 Dec. 2008.
45. Art. 3 Title IV Protocol.
46. See Art. 4 Title IV Protocol and Art. 11a EC.
47. Art. 3(1) Title IV Protocol.
48. Art. 7 Title IV Protocol.
49. Ireland (but not the UK) may notify the President of the Council in writing that it no longer wishes to be covered by the terms of the Protocol pursuant to Art. 8.
50. Note the recent experience of the Rome I Regulation where the UK was allowed to be in volved in the negotiation process without being required to formally opt-in. This informal agree ment presumably would be abandoned if there was any hint or suspicion of abuse by the UK. See House of Lords European Union Committee 10th Report of Session 2007/2008, 'The Treaty of Lisbon: an impact assessment' (28 Feb. 2008), points 6.288 to 6.292.
51. G. Clayton, Textbook on Immigration and Asylum Law, 3rd edn. (Oxford, Oxford University Press 2008) p. 149.
52. A. Geddes, 'Getting the best of both worlds? Britain and the EU and migration policy', 81(4) International Affairs (2005) p. 723 at p. 724
53. citing A. Geddes, The European Union and British politics (London, Palgrave Macmillan 2004).
54. A. Geddes, The European Union and British politics. Ibid.
55. See Art. 67 EC and note the important agenda setting role of the European Council in this field.
56. Protocol Integrating the Schengen Acquis into The Framework of the European Union.
57. F. Tuytschaever, supra n. 12 at p. 75. The other opt-outs and Denmark's opt-out in relation to the Schengen Acquis were 'decided behind closed doors at the Amsterdam summit itself'.
58. The acquis comprises the Agreement and Convention on the gradual abolition of checks at common borders signed by five member states on 14 June 1985 and on 19 June 1990 respectively and all related measures and the rules adopted on the basis of those agreements, including accession agreements.
59. Art. 4 Schengen Protocol. Interestingly, a declaration on Art. 4 was annexed to the Final Act of the Amsterdam Treaty which invites the Council to seek the opinion of the Commission before deciding on a request and undertake to use their best efforts to allow the UK and Ireland, if they wish, to use Art. 4. According to F. Tuytschaever, supra n. 12 at p. 101, this declaration was added following a 'diplomatic incident' when the UK refused to believe that it had accepted that the re quest to participate in Art. 4 required the unanimous approval of the Schengen states.
60. Decision 2000/365/EC, OJ [2000] L 131/43, 1.6.2000.
61. Decision 2002/192/EC, OJ [2002] L 64/20, 7.3.2002.
62. For the UK this essentially includes rules relating to irregular migration and policing and criminal law, with the exception of cross-border 'hot pursuit' by police officers.
63. Art. 8(2) of the UK Decision supra n. 55 and Art. 6(2) of the Irish Decision supra n. 56.
64. According to the House of Lords EU Select Committee, 'Article 8 dispenses with the requirement, set out in Article 5 of the Protocol Integrating the Schengen Acquis into the Framework of the European Union, for the UK to notify the President of the Council if it wishes to take part in measures building on the Schengen acquis. The UK will be "deemed" to have given such notice, but only in relation to proposals or initiatives building on the acquis [which it has requested and been permitted to participate in]', House of Lords Select Committee on European Union, Fifth Report, 15 Feb. 2000 at para. 33.
65. Although these cases were not formally joined, the same arguments are submitted and the same legal reasoning is applied by the ECJ.
66. Council Regulation (EC) No. 2007/2004 of 26 Oct. 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, OJ [2004] L 349/1, 25.11.2004.
67. Council Regulation (EC) No. 2252/2004 of 13 Dec. 2004 on standards for security features and biometrics in passports and travel documents issued by Member States, OJ [2004] L 385/1, 29.12.2004.
68. The Council's position was supported by the Commission, Spain and the Netherlands.
69. The UK was supported by Ireland and the Slovak Republic in both cases and by Poland in the case concerning the European Borders Agency Regulation.
70. ECJ, Case C-77/05, supra n. 6, at para. 62.
71. This finding arguably casts doubt upon the validity of Art. 8(2) of the UK Decision supra n.
72. and Art. 6(2) of the Irish Decision supra n. 56.
73. ECJ, Case C-77/05, supra n. 6, at paras. 66 and 67. The Court said that the goal of maximum participation was implicit in the terms of Declaration No.45 relating to the Schengen Protocol which reads: 'The Conference declares that whenever the United Kingdom or Ireland indicates to the Council its intention not to participate in a measure building upon a part of the Schengen acquis in which it participates, the Council will have a full discussion on the possible implications of the non-participation of that Member State in that measure. The discussion within the Council should be conducted in the light of the indications given by the Commission concerning the relationship between the proposal and the Schengen acquis.'
74. ECJ, Case C-77/05, supra n. 6, at paras. 66 and 67. The Court said that the goal of maximum participation was implicit in the terms of Declaration No.45 relating to the Schengen Protocol which reads: 'The Conference declares that whenever the United Kingdom or Ireland indicates to the Council its intention not to participate in a measure building upon a part of the Schengen acquis in which it participates, the Council will have a full discussion on the possible implications of the non-participation of that Member State in that measure. The discussion within the Council should be conducted in the light of the indications given by the Commission concerning the relationship between the proposal and the Schengen acquis.' Ibid.
75. ECJ, Case C-137/05, supra n. 6, at paras. 32-36.
76. and ECJ, Case C-77/05 supra n. 6, at paras. 37-41.
77. ECJ, Case C-77/05 supra n. 6, at para. 40.
78. ECJ, Case C-77/05 supra n. 6, at para. 73
79. ECJ, Case C-137/05 supra n. 6, at para. 52.
80. Art. 3(1) Title IV Protocol.
81. ECJ, Case C-77/05 supra n. 6, at para. 77
82. ECJ, Case C-137/05 supra n. 6, at para. 56.
83. See, J. Monar, 'Justice and Home Affairs in a Wider Europe: The Dynamics of Inclusion and Exclusion', ESRC, 'One Europe or Several?', Programme Working Paper 07/00, visited 12 Dec. 2008. In order to allay the UK's and Ireland's concerns that the unanimity requirement could block indefinitely their participation in some or all of the Schengen acquis Declaration 45 on Art. 4 of the Protocol was added. This Declaration provides that the Council shall seek the Commission's opinion before deciding on a request by the United Kingdom and/or Ireland. The Schengen States undertake 'to make their best efforts' to allow either or both of them to participate.
84. An argument made prior to the delivery of the judgments under consideration here S. Peers, supra n. 22 at p. 58-59.
85. J.J. Rijpma, 'Case C-77/05 United Kingdom v Council, judgment of the Grand Chamber of 18 December 2007, not yet reported, and Case C-137/05 United Kingdom v Council, Judgment of the Grand Chamber 18 December 2007, not yet reported', 45 Common Market Law Review (2008) p. 835 at p. 848.
86. Opinion in ECJ, Case C-77/05, supra n. 6, at para. 59.
87. Ibid., at para. 107.
88. The Advocate-General went on to find that neither of the two contested Regulations could be applied autonomously. See Rijpma, supra n. 75 at p. 846-847 for why this is more persuasive in respect of FRONTEX than in respect of the biometric passports Regulation.
89. The amendments made to the Schengen acquis by the Lisbon Treaty are discussed in full later in the paper.
90. See J.J. Rijpma, supra n. 75 at p. 836.
91. House of Lords Select Committee on European Communities, 31st Report, Session 1997- 1998, 28 July 1998 at para. 85.
92. See further below.
93. S. Giubboni, 'Free Movement of Persons and European Solidarity', 13 European Law Journal (2007) p. 360 at p. 376.
94. The then Home Secretary, Jack Straw said that the UK's aim was to co-operate in the Treaty reform negotiations 'to the maximum extent consistent with our national interests'. Those interests were expressed in terms of 'red lines' - which became a mantra recognised across Europe at this time. House of Lords European Union Committee, supra n. 46, at para. 6.310.
95. See Art. 20(1) EU and Art. 329 Treaty on the Functioning of the European Union (hereafter, TFEU).
96. On this see S. Kurpas et al., 'The Treaty of Lisbon: Implementing Institutional Innovations', Joint Study of CEPS, EGMONT and EPC (2007), p. 100, , visited 29 Nov. 2008.
97. For a comprehensive account of the implications of the Lisbon Treaty on AFSJ matters see S. Carrera and F. Geyer, 'The Reform Treaty and Justice and Home Affairs: Implications for the Common Area of Freedom, Security and Justice', Policy Brief No. 141, CEPS (2007), , visited 29 Nov. 2008.
98. C. Ladenburger, 'Police and Criminal Law in the Treaty of Lisbon - A New Dimension for the Community Method', 4 European Constitutional Law Review (2008) p. 20 at p. 31.
99. Arts. 83(3) and 69B(3) TFEU.
100. A similar, easier 'acceleration' mechanism is provided in the event that a proposal concerning the European Public Prosecutor or aspects of police co-operation is vetoed. See Arts. 86(1) and 87(3) TFEU.
101. Renamed Protocol (No.15) on certain provisions relating to the United Kingdom of Great Britain and Northern Ireland.
102. Renamed Protocol (No.20) on the application of certain aspects of Art. 26 of the Treaty on the Functioning of the European Union to the United Kingdom and Ireland.
103. Protocol (No.19) on the Schengen Acquis Integrated into the Framework of the European Union.
104. This would confirm the invalidity of Art. 8(2) of the UK Decision, supra n. 55 and Art. 6(2) of the Irish Decision, supra n. 56 which require those member states to opt in to measures building upon parts of the Schengen acquis which they have already opted in to.
105. The UK can withdraw its opt-out notification at any time before the adoption of the measure in accordance with a Declaration annexed to the Final Act of the Lisbon Treaty.
106. M. Dougan, 'The Treaty of Lisbon 2007: Winning Minds, Not Hearts', 45 Common Market Law Review (2008) p. 617 at p. 684.
107. S. Peers' Statewatch Analysis, 'EU Reform Treaty Analysis no. 4'. (26 Oct. 2007) p. 9. .
108. Protocol (No.21) on the position of the UK and Ireland in respect of the Area of Freedom, Security and Justice.
109. What follows is largely taken from M. Fletcher et al., EU Criminal Law and Justice (Cheltenham, Edward Elgar Publishing Ltd 2008) see Annex.
110. What follows is largely taken from M. Fletcher et al., EU Criminal Law and Justice (Cheltenham, Edward Elgar Publishing Ltd 2008) see Annex. Ibid.
111. See House of Lords European Union Committee supra n. 46, at para. 5.86.
112. For instance see evidence submitted by Professor Dashwood to the House of Lords Euro pean Union Committee supra n. 46. He saw the Protocol as part of the 'belt-and-braces' approach of the Government.
113. M. Dougan, supra n. 94 at p. 665.
114. The Charter became one of the UK's 'red lines' - not that the Charter should remain non-binding, but that it should have no impact on UK law. While the UK's concerns related to Title IV economic and social rights, Poland's late decision to be included in the Protocol related to concerns about the impact of the Charter on issues such as abortion and same-sex marriage. See Declaration No.61 annexed to the final act.
115. Ibid., p. 670.
116. The 'horizontal' provisions aim to avoid a situation where the Charter imposes more limita tions on fundamental rights than the ECHR and at preserving the level of protection which is already ensured by international law, including EU law, and by national Constitutions.
117. M. Dougan, p. 667, supra n. 94.
118. Note that the Lisbon Treaty confers a legally binding status upon a revised EU Charter and imposes an obligation upon the Union to accede to the European Convention on Human Rights.
119. S. Carrera and F. Geyer, supra n. 85.
120. S. Carrera and F. Geyer, supra n. 85. Ibid.
121. A. Geddes, supra, n. 48 at p. 740.