Professor Damian Chalmers (London School of Economics and Political Science (OIA0001)—Written evidence

Introduction

  1. I have been asked to submit evidence on the position of the United Kingdom government that EU law measures which contain ‘JHA content’ do not bind the United Kingdom unless it has exercised its ‘opt –in’ under article 3 of the Protocol on the Position of the United Kingdom and Ireland in respect of the area of freedom, security and justice (hereafter the Protocol).  It will not challenge the validity of these measures when this content goes to either the principal purpose or one of the two main purposes of the measure but does not see itself as bound where the content forms part of an ancillary purpose to the measure.

 

  1. The term ‘JHA content’ is not a term of EU law, and there is, therefore, obscurity as to its meaning. However, if it is taken to include EU measures which regulate the rights and responsibilities of non EU nationals, then, independently of the debate about where the balance of EU competencies should eventually lie, I find the Government’s position legally unconvincing in the extreme. It rests on two legal propositions. The first, a conferred powers argument, is that article 3 of the Protocol enjoys a special position within the Treaty whereby only when it is met do other Treaty provisions kick in and the Union acquire a competence with regard to non EU nationals, at least in respect of the United Kingdom. The second argument, a legal base argument is that all Union measures on non EU nationals have to be enacted on the basis of the provisions set out in Title V of Chapter 3 of the TFEU. No measure affecting the rights and responsibilities of these can, therefore, be taken which bind the United Kingdom unless it exercises it opt-in under article 3.

 

  1. I shall explain why I find neither of these positions legally sustainable, then explain the particular complications present in the case of international agreements.

Article 3 as a Condition Precedent for the European Union having Powers over the Rights and Responsibilities of Non EU Nationals

  1. The Government’s position sees article 3 as occupying a privileged position vis-à-vis other Treaty provisions. There would be a two-fold test for determining Union competence. As a trigger provision, article 3 be considered first to ascertain whether it had been met. If that was the case, one would secondly look at the rest of the Treaty to see whether the Union was doing something which it was granted the powers to do. There is simply no evidence in the Treaties suggesting such a hierarchy, and quite a bit of evidence suggesting the converse.

 

  1. If article 3 was a trigger provision, one would expect this to be mentioned in the catalogue of competences at the beginning of the TFEU which set out a statement of the Union powers. This catalogue was introduced by the Lisbon Treaty to provide clarity and its place at the forefront of the Treaty would under traditional canons of EU legal interpretation grant it a certain pre-eminence. However, there is nothing there about the United Kingdom opt-in being a condition precedent for EU competences. Instead, the area of freedom, security and justice is treated identically to any other EU shared competence (article 4(2)(j)) as a competence in  which the Union can legislate, and  Member States can exercise competence to the extent that it does not clash with this. This silence is replicated, furthermore, in the special provisions in Title V of Chapter 3 of the TFEU on the area of the freedom, security and justice. One would, in particular, expect to see something in the general provisions in this Title, articles 67-72 TFEU, if the Government’s position was plausible. There is nothing.

 

  1. The Government’s position, moreover, does not fit with the wording of the Protocol. The Protocol makes no mention of the Union not having competence on matters concerning the area of freedom, security and justice with regard to the United Kingdom unless article 3 is exercised. There is no mention of the word ‘competence’. Instead, the Protocol states that the United Kingdom will not be bound by legislation (article 2) unless it ‘takes part’ (article 1).  This is a very different thing. The Union has competence within this field of activity but the Protocol goes to the modalities of legislation. In making these laws, the United Kingdom is not to participate unless it triggers article 3. And it is not bound by legislation in whose making it did not participate.

 

  1. Finally, the judgment of the Court of Justice in Case C-137/12 Commission v Council, Judgment of 22 October 2013 paragraphs 72-74 also suggests that the inverse is the case, namely that consideration of Treaty provisions must precede consideration of Protocol provisions. The reasoning is very brief in this judgment and addresses points in the hearing rather than the substance of the case. It also does not sit well with other judgments where the Court has looked first at the provisions of a Protocol (Case C-77/05 United Kingdom v Council [2007] ECR I‑11459; Case C-482/08 United Kingdom v Council [2010] ECR I-10413)) I put only limited store by it. However, as indicated, there are other (in my view) stronger arguments countering the Government position.

Title V of Chapter 3 enjoys a monopoly of law-making

  1. It might be possible for the Government to argue that no EU measures bind it if EU legislation on non-EU nationals were governed exclusively by the area of the freedom, security and justice, and therefore by the legislative procedures set out in Title V of Chapter 3 TFEU. For this to be the case, one have to make the far-fetched argument that a significant amount of Court of Justice case law and institutional practice over many years, most notably Directive 2004/38/EC, on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, which grants a number of rights to non EU national family members of EU citizens, was ultra vires. However, even that would not be sufficient. There is nothing in Title V which claims such a monopoly. More importantly, it simply contradicts the Treaty. There are, in particular, two provisions outside that Title, which explicitly provide a legislative power to regulate the rights of non EU nationals, Article 56 TFEU which allows for the possibility of these being granted rights to provide services and Article 153(1)(g) TFEU which provides for it to regulate conditions of employment for those lawfully resident within the Union. The Treaty, thus, envisages a number of legal bases to regulate non EU nationals’ rights. The question as to which legal base governs which of this rights and the extent of the legislative remit protected by the Protocol is considered next.

The remit of Article 79 TFEU

  1. Article 79 TFEU is the central legislative provision governing immigration of non EU nationals within Title V as it sets out the legislative procedures for establishing a common immigration policy. The United Kingdom does not participate within such legislation unless, under article 3 of the Protocol, it notifies the other Member States of its wish to do so. The quest to secure a broad interpretation has been at the heart of the Government’s (unsuccessful) litigation strategy that involves the case law mentioned in its letter of 3 June 2014 to the Committee and the Committee’s call for evidence. Judgment was given in the case mentioned in the Government’s letter (Case C-377/12 Commission v Council, Judgment of 11 June 2014). Whilst the judgment marks an interesting development in ascertaining the remit of EU competences in the field of development cooperation, it follows an extremely established line of reasoning for determining which legal base can be used for adopting particular EU legislation. It is, nevertheless, an authoritative and recent restatement of the law. I set out the relevant paragraph in full:

 

‘According to settled case-law, the choice of the legal basis for a European Union measure, including the measure adopted for the purpose of concluding an international agreement, must rest on objective factors amenable to judicial review, which include the aim and content of that measure. If examination of a European Union measure reveals that it pursues a twofold purpose or that it has a twofold component and if one of those is identifiable as the main or predominant purpose or component, whereas the other is merely incidental, the measure must be founded on a single legal basis, namely, that required by the main or predominant purpose or component. By way of exception, if it is established that the measure pursues several objectives which are inseparably linked without one being secondary and indirect in relation to the other, the measure must be founded on the various corresponding legal bases. However, no dual legal basis is possible where the procedures required by each legal basis are incompatible with each other.’ (paragraph 34)

 

The central determinant is, it will be seen, the dominant aim and content of a measure. The aim and content is to be read conjunctively and not disjunctively, as is implied by the government letter. Regard must be had to both aim and content in determining whether a measure falls within Article 79 TFEU.

  1. In this regard, the Court of Justice has indicated that a measure is likely to fall within Article 79 TFEU if its main aim and content does one of three things: efficient management of migration flows, fair treatment of non EU nationals, and combatting illegal immigration and trafficking in human beings (Case C-431/11 United Kingdom v Council, Judgment of 26 September 2013, para 63). It is possible that this is not exhaustive but it clear that measures which regulate non EU nationals in a number of other ways will not be covered by Article 79 TFEU and the protections of the Protocol. These include measures which seek to liberalise free movement of persons between the third State and the Union. These must be based on Article 48 TFEU (workers); Article 50 TFEU (establishment) and Article 59 TFEU (services) (Case C-431/11 United Kingdom v Council, Judgment of 26 September 2013; Case C-656/11 United Kingdom v Council, Judgment of 27 February 2014). Readmission measures forming part of a joint development strategy between the Union and a third State (usually the basis for agreeing these) must be based on Article 208(1) TFEU (development cooperation) (Case C-377/12 Commission v Council, Judgment of 11 June 2014). It is possible to think of a whole host of other bases, in addition to Articles 56 TFEU and 153 TFEU mentioned above, which could be used as a basis for EU action: transport, non-discrimination, fisheries, neighbourhood policy and citizenship.

 

  1. It will be seen from the above that the scope of Article 79 TFEU is thus quite limited. It only applies to measures concerned with entry, residence, movement and expulsion. To be sure, Article 79(1) TFEU mentions the fair treatment of non EU nationals. However, this is likely to be read in the light of Article 79(2) TFEU which sets out that part of the competence as defining the rights of third-country nationals residing legally in a Member State, including the conditions governing freedom of movement and of residence in other Member States. ‘Fair treatment’ could be confined to these matters with other issues (access to social benefits, workplace related matters, access to supply of goods and services) being governed by other EU competences.

 

  1. It is for that reason that the judgment in Case C-377/12 was so significant as it suggests that readmission agreements, a central plank of much migration policy, are not to be governed by Article 79 TFEU but by the development cooperation competence for agreements with many States and, one assumes, the neighbourhood policy competence for agreements with others. It is a significant restriction on the ambit of the Protocol. I believe the Court of Justice was pushing the envelope here. It gives a wide interpretation of development cooperation which allows it to subsume other policies (see paragraphs 44-59 of the judgment), and this results, in my view, in insufficient attention being given to other policies, and whether a central purpose of a ‘development’ measure goes to realising these. By contrast, the judgments in the other cases mentioned in the call for evidence seemed balanced and uncontentious to me (Case C-43/12 Commission v European Parliament and Council, Judgment of 6 May 2014; Case C-137/12 Commission v Council, Judgment of 22 October 2013)

 

The Particular Challenges of International Agreements

  1. There are particular legal and political challenges for the Government in the case of international agreements. Prior to the negotiation of an international agreement or, in my view, to adoption of a measure under it, Member States, are by virtue of Article 4(3) TFEU, under a duty to cooperate strongly with EU Institutions in the negotiation and conclusion of a measure and in meeting commitments under it. The Court has held that unilateral action dissociating a State from a common agreed strategy which grants a mandate to the EU Institutions to negotiate violates that duty, (Case C-246/07 Commission v Sweden [2010] ECR I-3317). It will be evident that the United Kingdom Government would be flirting with breaching that duty if it to-ed and fro-ed on whether to support a common front depending on whether the measure was perceived to have ‘JHA content’. The political challenges are simply that it is likely to undermine EU strategy and annoy non EU States as it will be unclear what they are securing from the Union if they enter into an agreement with it. This will make negotiations harder for all parties.

22 September 2014

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