Unrevised

Members present

Baroness Quin (Chairman)

Lord Blair of Boughton

Lord Dykes

Baroness Eccles of Moulton

Viscount Eccles

Lord Elystan‑Morgan

Lord Hodgson of Astley Abbotts

Baroness O’Loan

Lord Richard

Lord Stoneham of Droxford

________________

Examination of Witness

Marise Cremona, Professor of European Law, European University Institute, Florence

Q23 The Chairman: Good afternoon, Professor Cremona. First of all, thank you very much indeed for giving evidence to us today. We very much appreciate that. I just want to make one or two points that I think you may be aware of in any case, but I just underline that the session is open to the public. A webcast of the session goes out live as an audio transmission and is subsequently accessible via the parliamentary website. As you know, a verbatim transcript will be taken of your evidence and this too will be put on the parliamentary website. Then, a few days after this session, you will be sent a copy of the transcript to check it for accuracy, and obviously at that point we would be very grateful if you could advise us of any corrections as quickly as possible. If, after this session, you wish to clarify or amplify any points made during your evidence or you feel you have additional points to make, you are very welcome to submit supplementary information, written evidence, to us.

Having said all that, perhaps you would like to introduce yourself for the record and, if you wish, before going on to the questions, please feel free to make some brief opening remarks before we proceed further.

Professor Cremona: Thank you very much. I am Marise Cremona. I am British. Until I came to the European University Institute I was teaching at the University of London, at Queen Mary, and I have been here at the European University Institute since 2006. I work on EU law in general, I suppose, but on EU external relations law in particular. I do not think I have any introductory comment to make, thank you.

The Chairman: Thank you very much for that. In that case, we will proceed immediately to the questions and I will ask the first one, if I may. It is about the statements made to us by the Home Secretary and the Secretary of State for Justice, particularly in their letter to us of 3 June. They say that the expression “pursuant to Title V” in Protocol 21 “does not explicitly restrict the ambit of the protocol to measures which cite a Title V legal base”. Do you feel that this a reasonable legal interpretation?

Professor Cremona: I think this approach is misconceived, legally speaking. The legal basis is the power‑conferring basis of a measure. It is important precisely because of the principle of conferral, the EU only having powers that have been conferred on it by provision in the treaties, so the legal basis is the source of the EU’s power. “Adopted pursuant to Title V” of Part 3 of the TFEU refers precisely, it seems to me, to the legal basis, to the source of the power pursuant to which the EU can act. So, in my view, “pursuant to” cannot be a synonym for “relevant” or “related to”.

I had a look at the French version of the protocol, of course, all these official languages having equal weight, and the French language that is used is perhaps even clearer, in the sense that it refers to measures and international agreements adopted or concluded “en application de ce titre”. The Italian uses the phrase “a norma di detto titolo”, again, like the French, clearly expressing the concept of being based on or adopted according to that title. So it seems to me that the phrase “pursuant to” precisely refers to legal basis. This is a kind of textual argument, if you like.

There is also the more systemic argument that the application of the protocol to a specific case must be capable of objective determination and not simply a matter of the individual judgment of a member state. One of the problems with an approach that is based on there being some or enough JHA—if we can use that abbreviation—content is that it is just not objective enough to provide us with a certain legal test of the application of the protocol. Obviously, legal basis can be the subject of disagreement and even the subject of litigation, but once you have chosen it then it is clear, it is on the record, it is open, it is available to the public, everybody knows what the legal basis is.

There is a third point I could mention here, which is that, if one is thinking about the likely approach of the Court of Justice to this question, in a recent case, Case C‑658/11, on an agreement with Mauritius on the transfer of pirates, the court was having to interpret the phrase “agreements [that] relate exclusively to the Common Foreign and Security Policy”. Now, the European Parliament put in a reading of this, which said that “relate” means that it has content relevant to the Common Foreign and Security Policy or other policies. The court said no, agreements that relate exclusively to the Common Foreign and Security Policy means agreements that have a legal basis exclusively of the Common Foreign and Security Policy. It is in a different context, of course, but even where the word is “relate” and not “pursuant to” the court is using the legal basis test as a test of the procedural rules to apply, the reason for that being, among others, legal certainty.

For those three reasons, but particularly perhaps the first two—the third point is merely an illustration of the likely approach of the court—I cannot see a basis for the interpretation that is being put forward in the letter of 3 June.

Q24 Lord Elystan‑Morgan: The same letter of 3 June, the joint letter that we are discussing, limits the principle of validity to measures where the JHA content is one of the main purposes rather than an ancillary purpose. Again, do you think this to be a valid and reasonable interpretation?

Professor Cremona: No. I disagree with this interpretation of this so‑called principle of validity. The argument, it seems to me, is that the Government would not regard the UK as being bound by a so‑called ancillary JHA provision even though there has been no legally binding mechanism to formalise that position. My argument would be that the principle of validity requires that a legal act is assumed to be valid unless and until the Court of Justice declares otherwise. This implies that all member states are bound by the whole of the instrument in the absence of a clear, formal decision that the protocol applies, such as can be provided by the legal basis of the instrument. It cannot, in my view, be argued that, where the JHA element is only ancillary—I am quoting from the letter here—asserting that we are not bound would not call into question the validity of the entire measure, because, it seems to me, it would call into question the application of part of the measure to one member state and this is just as undermining of legal certainty and the validity of the instrument. I cannot accept this distinction that is being made between ancillary and predominant for the purposes of the principle of validity test. Either the measure is binding on all member states or it is not. If it is not, then it needs to be clear on its face that it is not and this is the advantage of the legal basis approach, it seems to me.

Q25 Lord Blair of Boughton: If we put your two arguments together to the last two questions and then looked at the letter of 3 June as a whole, could you briefly just summarise, to assess the legal reasoning in the Home Secretary and Secretary of State for Justice’s letter?

Professor Cremona: Yes. I would make two points there. First, I would say that the protocol, we have to remember, is not a unilateral declaration by the United Kingdom and Ireland. It is not a matter for their interpretation alone, but needs to be interpreted as a matter of EU law and on which the court has ultimate authority. The letter seems to regard the application of the protocol as, ultimately, a matter of UK prerogative and I think this is fundamentally misconstruing the legal status of the protocol.

The second comment I would have on the overall legal reasoning is that it seems to ignore the fundamental duty of sincere co‑operation, which flows from Article 4, paragraph 3 of the TEU. Obviously, interpretations of the protocol may differ and of course judgments about legal basis may differ, but the point here is that the treaty provides mechanisms to resolve such differences and the Government’s litigation reflects that. The assumption behind the letter, on the other hand, seems to be that, if those strategies have failed, we can still insist we are right and we can refuse to accept that we are bound by a measure by which, on its face, we are bound. This is contrary to the principle of sincere co‑operation.

It seems to me that the approach, if you take the overall reasoning, is misconceived as regards the legal status of the protocol, but also as regards the way in which differences of interpretation are resolved in the EU system, which is not unilaterally but through, ultimately, litigation before the court.

Q26 Lord Stoneham of Droxford: How do you assess the impact of the Government’s opt‑in policy in relation to international agreements on legal certainty within the EU and in the EU’s relations with third countries?

Professor Cremona: I have already said that one of the fundamental problems with this approach based on ancillary content rather than legal basis is that there is no way of knowing, on the face of an instrument, whether or not the protocol applies, and the great advantage of the legal basis approach is precisely that. There is a serious issue of legal certainty, in the sense that it is very difficult for anyone to make a judgment as to whether and to what extent, in the approach that the Government seems to be taking on this, particular provisions would or would not fall within the protocol. I would say, when the measure in question is an international agreement, that third countries are entitled to assume that the agreement, as a whole, will bind the Union and all its member states. You will remember that there is a provision in the treaty which says that member states are bound by union agreements. The unilateral declaration by one member state that it does not regard itself as bound by a particular provision of an agreement, without any basis for this in the concluding decision, creates, I would say, an unacceptable level of uncertainty for third countries. Third countries must be able to see from the concluding decision exactly, if there is going to be an opt‑out, whether the right to opt out has been exercised. Normally, of course, as we know, when there is a JHA legal basis, there will be a clause in the preamble to the decision that says that the UK and/or Ireland have chosen to exercise their right to opt in or not, and this is normally stated. We are dealing with situations where there is no JHA legal basis, where there is no such declaration in the preamble and I think it is unacceptable for third countries, really, to have to rely on unilateral statements by one member state, which may then be disputed by the institutions of the Union. This is undermining of the position that the Union has, it seems to me, towards third countries, but also the interest that a third country has in the application of the agreement. In a sense, the position of a third country is going to be complicated by the very fact that there is a protocol, Protocol 21, that allows for an opt‑out in certain situations. This they have to live with, but we have to manage that in such a way as to be absolutely clear to the third country when the opt‑out applies and when it is being exercised.

Q27 Lord Dykes: The Government’s letter says that their opt‑in policy seeks to prevent the Commission from circumventing the opt‑in rights of the United Kingdom in measures that do not cite a Title V legal base. In your assessment, has the Commission sought to circumvent the UK or Ireland in its opt‑in rights?

Professor Cremona: It is difficult for me to second guess what the Commission’s motives are, but what I will say is that there is no evidence from the cases that the Commission is doing anything other than following standard legal basis arguments. Sometimes these arguments are supported by the UK. For example, in the case that I mentioned a few minutes ago involving the agreement with Mauritius, the UK intervened in support of the Council’s position that there was no need for a separate JHA legal basis and the CFSP legal basis was sufficient. Sometimes again, the institutions themselves agree that a separate JHA legal basis is required. For example, the recent signature of the association agreement with Ukraine had a separate decision on the signing of one provision of the agreement, Article 17, which was based on Article 79(2)(b), which is part of the JHA Title V, and the UK opted out of that decision. So there are cases where it is perfectly accepted that this is a measure that requires a separate legal basis and the UK is then able to exercise its opt‑out or not, as it decides, other cases not. It seems to me that we have here standard legal basis practice.

If you will allow me, I could just amplify that by making a couple of points about what this legal basis practice is and entails, because I think quite a lot of the confusion arises out of a lack of clarity as to what is really going on here.

The first point to make is one that I have already hinted at, which is that the approach that is being adopted is one that has been adopted consistently by the court over many, many years, both for internal measures and for international agreements. This is not new; it is not something especially crafted for the JHA and the protocol, it is the normal practice. That is the first point.

The second point is a little trickier. It is to explain that the implications of the legal basis approach of the court differ according to context. The court’s approach is based on predominant purpose; legal basis is a matter of identifying the predominant purpose. It may be the case that we have one measure and we have a choice between two single legal bases for a particular measure. The road traffic case that was one of the cases referred to is an example of that, where it is the choice of either a Title V legal basis or a transport legal basis. However, there are other cases, such as the agreement with the Philippines, where the measure, which could be an international agreement, contains a number of different elements, and the question is whether one general legal basis, such as development co‑operation or the Common Foreign and Security Policy, which everyone agrees is an appropriate legal basis, can be used alone or whether additional legal bases are required. Here, the approach will be to determine whether the specific element can be included under the primary legal basis—for example, whether a readmission clause can serve the purposes of development co‑operation; this is the Philippines case—and, secondly, whether it imposes such extensive obligations concerning the specific matter referred to that those obligations constitute objectives distinct from those of the primary legal basis. It would be a matter of weighing the objectives and the content of the specific clause against the agreement as a whole. These two contexts operate in different ways. In the second type of context, as in the Philippines, the approach of the court, the predominant purpose test, will have the effect of favouring broad express legal bases—trade, development, Common Foreign and Security Policy, et cetera—over sectoral legal bases. This means that Title V, the JHA, tends to be used as a legal basis only for those international agreements that are clearly sectoral in nature, such as a private international law agreement or a readmission agreement, and not for agreements that cover a multitude of different clauses and different provisions.

Now, it would be possible to argue that this approach of the court, based on predominant purpose, is somewhat reductionist. You could make this as a general point. You could say that the approach of the court is somewhat reductionist, it forces the decision‑maker to identify a predominant purpose and it means that the complexity of an agreement is not reflected in the resulting choice: that it renders somewhat invisible the ancillary or secondary objective. However, I would want to bear in mind a couple of things here.

First, we are talking about the legal basis for the conclusion of an agreement and not for its implementation. This is a critical distinction. In the Philippines case, the Advocate-General made the point absolutely clearly. He said, “I do not believe we need a separate Title V legal basis for the readmission clause”, but, when that clause is implemented, that cannot be done on a development co‑operation legal basis. That would need Article 79, paragraph 3, and at that point the opt‑out will kick in for the UK and Ireland. So we have to make a distinction between the conclusion of the agreement and the implementation of the agreement.

Secondly, and this is also important, the approach of the court, the predominant purpose approach and the approach that I have just outlined, reflects the reason for establishing legal basis. This is not just playing with words. As I said at the beginning, legal basis is necessary to ground competence to act. It is not intended to be a type of description of the content of the measure. It is appropriate to include the legal bases that are necessary and sufficient to ground competence and not to include legal bases that are not necessary, so it is a necessary and sufficient test, if you follow me.

That was a rather long answer, but the bottom line is that I do not think there is any evidence of circumvention. It is a standard legal basis approach and I added those points in order to explain a little bit how the legal basis approach works in practice and what the reasons for it might be.

Lord Dykes: That is very helpful, thank you very much.

The Chairman: Perhaps I could just ask a supplementary there. The reply has been very helpful, but you mentioned the traffic offences case, and given that the Council in the end took a particular view, do you think that the Commission, in asking the court to annul the traffic offences directive, was perhaps being a bit heavy‑handed in this instance?

Professor Cremona: In a way, this goes on to the question of whether we have the right approach to defining the scope of Title V, does it not, if I understand your question correctly? Legal basis is quite often litigated and there is quite often dispute and discussion. Sometimes it is very difficult to tell which side of the line a measure will fall. The road traffic case falls into this first category, where it could be one or it could be the other, and in this situation the court has sometimes gone for one, sometimes the other, sometimes both together. We have had some academic criticism, not of this particular case, I do not think, but other cases, particularly in other contexts—trade and environment, for example—where there has been criticism of the court’s approach in the sense that it is not always easy to predict. You get a number of cases and at the end of them you ask, “How could I advise a government client which would be the appropriate legal basis?” and it is not always easy to tell.

What I would say about the approach to Title V is that we have in Title V a very disparate group of provisions with a number of potential overlaps to other competences in the treaty, including the internal market, including other external legal bases, such as the Common Foreign and Security Policy. The impression that I have of the case law, including the road traffic case, is that the court is seeking to ensure that Title V does not end up by spreading over an increasing number of policy areas of the treaty, but is kept within proper bounds. For example, it is not every matter that involves a criminal offence that falls within Title V; it is only matters that are linked to the aim of achieving a high level of security in the Union. I think that is a legitimate approach to take and it is one that has been adopted in other contexts. The mere presence of criminal sanction does not necessarily call in a Title V legal basis. It is only where the criminality is the core target of the measure that Title V would apply.

Now, there are going to be cases that could fall either side of the line and people are going to disagree with certain judgments, no doubt, but I can see the rationality of the court’s approach, which seems to be that we cannot say that every matter involving a third country national falls within migration policy, every matter involving a criminal offence falls within police co‑operation. Rather, we should look at the specific objective of Title V, which is very much about borders, security, migration policy in that slightly narrower sense. I do not know whether that is helpful

The Chairman: It is helpful, yes, thank you.

Q28 Viscount Eccles: There is a further court decision pending on the application of the opt‑in to the EEC‑Turkey Association Agreement, which has a delivery date of 18 December. We understand that this case was assigned to a grand chamber of the court. Do you draw any conclusions from that?

Professor Cremona: I was very interested in this. Normally, we do not know just by looking at a case why a grand chamber has been assigned. In this case, we happen to know because Advocate-General Kokott mentions it herself in her opinion and what she says is that the court is sitting in grand chamber at the request of the United Kingdom. According to Article 16 of the Court Statute, “The court shall sit in a grand chamber when a member state or an institution … that is party to the proceedings so requests”. In this case, it is the request of the UK, which is a party to the proceedings, of course. This is not a decision of the President of the Court to assign it to a grand chamber; it is at the request of a member state. I would not like to speculate on why the Government are asking for a grand chamber, except to say that the Government, in pursuing the case, are clearly asking the court to reconsider the approach adopted by the first and third chambers in the two earlier cases. We could also see it as a signal to the court and, therefore, indirectly to the Commission and the Council that the UK takes this issue seriously. Requesting a grand chamber is a way of saying, “This is an issue that matters to us”, and I would imagine that that is part of what is going on here.

Lord Blair of Boughton: Professor, how likely do you think it is that the court will follow the opinion of Advocate-General Kokott in this case?

Professor Cremona: I think it is likely that the court will follow the Advocate-General on Article 79(2)(b), which is, I suppose, what is of primary interest, in so far as her opinion is based on the context of an association agreement. In other words, the court in the earlier cases seems to be taking the view—and this is the view that the Advocate-General espouses in her opinion—that, where a measure concerning third country nationals is part of the ongoing operation of a pre‑existing association agreement, then we should see it in that context and not as part of migration policy and border control and, therefore, falling within Article 79. Given the approach in the earlier cases, I think that it is quite likely the court will reject the idea of Article 79(2)(b) as an appropriate legal basis.

The Advocate-General takes the view that Article 79(2)(b) cannot be used to cover the treatment of EU citizens in a third country. If the court takes the view that I have just suggested, it will not need to take a view on that second point and it probably will not do so. I think that point is more arguable.

Then we have the question of whether the court would follow the Advocate-General in saying that Article 48 of the TFEU is not the appropriate legal base and that Article 217, which is the legal basis for association agreements, would be more appropriate. In other words, would the court follow its earlier two cases, the EEA case and the Swiss case, and say Article 48, or would it go for Article 217? This is trickier, I think. The court rejected the 217 argument in the earlier cases, but it is quite possible to say that the EEA and the Swiss agreements are special in this regard since the third countries involved are to be treated as closely as possible to member states for the purposes of free movement. That might justify the use of an internal legal basis, which is what Article 48 is, which is ostensibly applicable only to EU nationals. Turkey, on the other hand, is clearly not in this position with respect to the EU system. So it is not impossible that the court will follow the Advocate-General on the application of Article 217 and distinguish this case from the earlier two cases. These statements are always hostages to fortune, are they not? However, I think it unlikely that the court will say that Article 79(2)(b) is the appropriate legal basis, for the same reasons that the Advocate-General gives.

Q29 Baroness O'Loan: The Law Societies of England and Wales and of Scotland think that the court’s case law on the opt‑in protocol has reached a point where it will not be reversed by further case law. I wonder if you could give us your opinion on this.

Professor Cremona: I agree. I think it is highly unlikely that the court will depart from its approach to the protocol. In other words, its application is determined by legal basis and the protocol is no reason to alter the standard tests for legal basis, so it seems to me highly unlikely that this will alter. In that case, it does not mean that legal basis cannot be argued or litigated, but my advice would be to do that only in cases where you can make a plausible case that Title V is either the predominant or an equally important purpose or where the Title V obligations in an agreement are such as to justify a separate legal basis. As you will recall, I mentioned the case of the agreement with Ukraine, where it was clearly accepted that one provision in the Ukraine agreement was sufficiently substantial to require a separate Title V legal basis, and that was done. In cases like that, it is perfectly valid to put forward a legal basis argument.

Q30 Lord Richard: Professor, thank you very much for your evidence. I have to say that your last answer seems to be absolutely clear as to what your position is. May I deal with a relatively minor point? If, in fact, the Government are faced with a measure that is not expressed initially as being within Title V but it is then established that it is to be expressed in relation to Title V, when do you think the three‑month opt‑in period starts?

Professor Cremona: I would imagine and I think it should run from the time at which it is decided to insert a Title V legal basis. If you started from an earlier time, if you backdated the three‑month period to the time of presenting the original proposal, it would defeat the whole purpose of the provision in the protocol that gives the UK and Ireland three months to decide whether to opt in. In terms of the purpose of the provision, you would have to say that the clock should start from the time when it was formally decided to insert a Title V legal basis, because then you have clarity.

The Chairman: Thank you very much indeed, Professor Cremona. We have all appreciated the clarity of your evidence to us this afternoon. Perhaps we should congratulate you, too, on triumphing over the technological blips at the beginning, which you seemed to deal with with great aplomb. Thank you very much again and, in view of the season, can we also wish you a happy Christmas? Thank you.

Professor Cremona: Thank you very much. I am just about to go to our Christmas concert and party in the institute here, so seasonal good wishes to you as well and thank you for inviting me.

The Chairman: Thank you.