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CIG 2007. The terms of the compromises of the legal experts

(B2 - archives) The solutions found by legal experts from the 27 Member States in the face of British questions on Justice and Home Affairs issues are complex. "That's kind of the goal" says a diplomat. “Having the most complex device, the most difficult to use, so that it is never used”. This text aims, in fact, to allow the United Kingdom (and Ireland if it so wishes) to no longer participate in certain measures in which it already participates (Sis, arrest warrant, asylum, etc.). In European jargon, it is a “opt-out on opt-in”, associated with a Community mechanism for reviewing the acquis. We managed to have the main detailed elements which still need to be approved by all Member States and could evolve.

Three procedures have been put in place, varying according to the type of subject under discussion.

For the Schengen measures, the United Kingdom could, within three months after presentation of a Commission proposal modifying an existing text (development measure), indicate that it does not wish to participate. In this case, the Commission would immediately study the consequences of this non-participation for existing measures and make a proposal to the Council. The Council should study this proposal within four months, by qualified majority, taking into account several criteria (operationality of the acquis, maximum participation of the United Kingdom). In the absence of a majority, a Member State could appeal to the European Council, which would decide at its next meeting, by qualified majority. In the absence of a decision by the European Council, the power to arbitrate would then revert to the European Commission. During this procedure, the vote on the development measure would be suspended. At any time, the United Kingdom may indeed reconsider its opt-out decision. The financial consequences of this decision could be studied (point specified in a statement). Example: if one day a version III of the Schengen Information System (SIS) is prepared, the United Kingdom could decide to remain in SIS II; but the other Member States could decide to abolish its total participation in the SIS.

For non-Schengen measures (civil cooperation for example), the procedure would be similar except for a few variations: no real assessment criteria, no recourse to the European Council or the European Commission. On the other hand, the fact that the United Kingdom can bear the “direct, necessary and unavoidable financial consequences, if any” of its non-participation are, here, expressly indicated.

On criminal and judicial cooperation, the debate focused mainly on control by the Court of Justice of the EC and infringement proceedings (prejudicial appeals follow a different logic). This control would thus be suspended for a "transition period" five years for all Member States (several countries were not very enthusiastic about the idea of ​​seeing their poor application of existing texts revealed). At the end of this period, only the United Kingdom (and possibly Ireland) would retain the possibility of refusing this control. But in this case, all the measures in which he already participates would no longer apply to him (for example, for the arrest warrant, we would return to the extradition procedure).

The form of this compromise is currently contained in a working document of about five pages. But it will be distributed in the various protocols (on the Schengen acquis, on the position of the United Kingdom and Ireland, on the transitional measures, etc.) and declarations of the amending treaty.

The political lesson of this compromise is complex. In fact, the UK can be satisfied. Her " Red line " has been respected. But it's actually a sword of Damocles hovering. “Everything is done to put pressure on the British to participate – explains a specialist in the file – but also (and above all) so that the Commission or the Member States – when they prepare or discuss a measure – think of the particular British situation”. This thus gives the United Kingdom leverage to, a posteriori, withdraw from certain measures, which it considers no longer correspond to these interests. At the same time, he is so "politically costly to leave" from these measures it is difficult to assess whether this device could be used one day.

Ireland could benefit from the same system. This country has until midnight October 12, according to our information, to indicate whether or not it intends to join the United Kingdom (the decision could be taken at the Irish Cabinet of Ministers on Tuesday 9).

Denmark benefits from a significantly different system, the acts which bind it to the European Union are indeed international acts and not Community acts. It should thus be mentioned that none of the measures adopted in Title IV part III (visas, asylum, immigration, free movement of persons) binds Denmark. In particular, the acts of judicial cooperation and criminal cooperation adopted before the amending treaty remain applicable in Denmark in an unchanged manner, as do the methods of control by the Court.

(Nicolas Gros-Verheyde and Jim Brunsden)
article published in Europolitics on 4 October 2007


Bill of Rights. On the Charter of Fundamental Rights, the derogatory British protocol will apply to Poles. But these should in an attached unilateral declaration affirm: “(that they) express their attachment to respecting the standards of social and labor law” as laid down by Community law and the Charter of Fundamental Rights "recognizing (thus) the importance of the contribution of the Solidarnosc movement" respect for these rights. Disguised modality for the Poles to use only part of the British derogation. It is also the first time that a trade union is mentioned by name in the Treaty.


 

Nicolas Gros Verheyde

Chief editor of the B2 site. Graduated in European law from the University of Paris I Pantheon Sorbonne and listener to the 65th session of the IHEDN (Institut des Hautes Etudes de la Défense Nationale. Journalist since 1989, founded B2 - Bruxelles2 in 2008. EU/NATO correspondent in Brussels for Sud-Ouest (previously West-France and France-Soir).

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