72
2.2.5. Territorial scope
73
Overview of the institutional framework
Art 5, revised TEU, and 2.5 below.
Schengen integration, see 2.2.2.3 above. For the text ofthe Prum Convention, see Council
10900,'0') 7 July 2005. On its integration into the EU legal framework, see 12.6.2, 12.6.3, and
the general issues regarding the integration ofthe Schengen acquisinto the EU legal order,
above.
Distinctions in the territorial scope of JHA measures have to some extent
been created outside the EU legal framework, most prominently as regards the
development of the Schengen acquis from 1985 onward, and also as regards the
negotiation of a later treaty largely concerning police cooperation, the 'Prum
Convention', among a group of Member States in 2005.
437
Since the Treaty of Lisbon abolished the third pillar and applied normal EU
rules on decision-making, legal instruments, and judicial control to all JHA
matters, the question of the territorial scope ofJHA measures remains the only
issue that dearly differentiates JHA issues from most of the rest of EU law. The
complexity ofthis issue results from the reluctance ofseveral 'old' Member States
to participate fully in EU integration in this area for various reasons, the unwill-
i
llgness
of all 'old' Member States to apply the full Schengen acquis immediately
to new Member States, and the interest among several non-Member States
in adopting the relevant EU measures.438
The following overview addresses in
turn issues specific to: the UK and Ireland; Denmark; the Member States which
.joined the EU in 2004 and 2007; and finally Norway, Iceland, Switzerland, and
J..,iechtenstein. Finally, it examines the general rules in the Treaties concerning
'enhanced cooperation', which in principle allow for the adoption of measures
across most areas ofEU law, indudingJHA law, without the full participation of
l]'y1ember States. These latter rules also apply whenever the UK or Ireland (and
ssibly in future Denmark) wish to opt in to a JHA measure that they initially
ted out of.
It should also be recalled that the discretion to opt in (or out) of the Court
JJ.lStice's jurisdiction over preliminary rulings as regards third pillar measures,
lJ.ich still applies for a five-year transitional period as regards third pillar acts
before the Treaty of Lisbon entered into force, results in a different terscope
of that jurisdiction (as distinct from a different territorial scope of
criminal law, and policing law), since the possibility offull harmonization in areas
of shared competence still applies to those parts of Title V as well.
Finally, it should be noted that the exercise of the EU's JHA competences is
subject to the principles of subsidiarity and proportionality, which are discussed
further elsewhere in this chapter.
436
When the Treaties confer on the Union a com et h
a specific area the Union and th M b S pence s ared with the Member States
· ' e em er tates may I . I d
mg acts in that area The M b S h egls ate an adopt legally
. em er tates s all e . heithat the U' h . . xercise t err competence to the
. mon as not exercised Its competence Th M b .
ctse their competence to the extent that th U·' h em. er States shall agam
competence. e mon as decided to cease exercising
It follows from the second sentence that in areas of shared corn eten
could In principle 'occupy the field' b f 11 h . . . p ce, theHow A' Y u Y armornzmg the Issue concerned.
ever, rticle 2(6) TFEU also points out that the precise 'scope' ofth
tence concerned IS set out in th .f T ein Title V ofth TFEU .. e speci lC reaty provisions related to each area,
. . 11 e . , It IS expressly stated that EU rules relating to substantive
crrmina aw and dom sti .. 1 o r
Furth . e IC CrImIna procedure set 'minimum' standards
ermore, competence related to certain aspects of .rul d 431 d h . economIC migration
e out, an arrnonization of national law I'S ruled t d. . ,. ou as regar s m(~aSUf(~S
~~nc~rn:gIntegr~tion ofthird-country nationals and crime p;evention 432
th: a~:. onzonta reserves of national competence in the general pr'oy"isilorls
th J TItle and In the ;rEU, discussed in detail above.P" On the other
e EU has the power to frame a common polic on as 1
external border control' 434 hi h . .. y ,y urn, immigration
. . ' W IC In principle suggests that the Union
more ambitious as regards harmonization ofsuch areas without ..
to harmoni th 1 . h ' requmngze e aw In t ese areas fully 435 But th fin thes .fi . e re erence to a common
· e speCI lC areas does not mean a contrario that full harmonization
IS excluded III other areas (In particular, civil law, mutual recognition measures
:~: Art 4(2)0) TFEU. m Art 2(2) TFEU.
- On the question of t Ibelow. ' ex erna competence, see Art 3(2) TFEU and the discussion
43J Art 79(5) TFEU. See also Art 77(4) d 430 Arts 82(2), 83(1),
borders. " as regar s Member States' competence to
43' A 7- rt 9(3) and 84 TFEU. The EU instead is limi , . . .
supportmg Member States' action . th ted to providing mcentrves, promoting;
I
. s m ese areas See Art 2(5) TFEU OddI h
are not istcd in Art 6 TFEU which a .' . " . y, t ese areas
EU can only 'support coordin t ppe;rs pnl~a facie to be an exhaustive list
433 Arts 72 and 73 T' a e or supp ement Member States' action.
FEU and Art 4(2) revised TEU di d '434 Art 67(2) TFEU , . , iscusse m 2.2.3.2 above.
435 Alth h h T' See further Arts 77(2)(a), 78(1), and (2)(a)-(d), and 79(1) TFEU
· oug t e reaty states that the Union 'sh 11' d , . , , .
m these areas, this must be reconciled ith h a a opt umform and common'
competence of the EU and th M b W
s
I t e express allocation ofJHA matters to
e ern. er tates.
Institutional Framework
those disgruntled Member States that d ho not ave an opt-out or bl
use an 'emergency brake' i th . . were not a e ton e area In question
It should be noted that the Tr t f L' b . .
general horizontal rules concerni:ag~~ . IS on has Introduced into the Treaties
'sh d competence. JHA matters are described
as a s are competence' between the EU d i M b
d fi
an ItS em er State 427 Th
e me this concept as follows.F" s. e
72
2.2.5. Territorial scope
73
Overview of the institutional framework
Art 5, revised TEU, and 2.5 below.
Schengen integration, see 2.2.2.3 above. For the text ofthe Prum Convention, see Council
10900,'0') 7 July 2005. On its integration into the EU legal framework, see 12.6.2, 12.6.3, and
the general issues regarding the integration ofthe Schengen acquisinto the EU legal order,
above.
Distinctions in the territorial scope of JHA measures have to some extent
been created outside the EU legal framework, most prominently as regards the
development of the Schengen acquis from 1985 onward, and also as regards the
negotiation of a later treaty largely concerning police cooperation, the 'Prum
Convention', among a group of Member States in 2005.
437
Since the Treaty of Lisbon abolished the third pillar and applied normal EU
rules on decision-making, legal instruments, and judicial control to all JHA
matters, the question of the territorial scope ofJHA measures remains the only
issue that dearly differentiates JHA issues from most of the rest of EU law. The
complexity ofthis issue results from the reluctance ofseveral 'old' Member States
to participate fully in EU integration in this area for various reasons, the unwill-
i
llgness
of all 'old' Member States to apply the full Schengen acquis immediately
to new Member States, and the interest among several non-Member States
in adopting the relevant EU measures.438
The following overview addresses in
turn issues specific to: the UK and Ireland; Denmark; the Member States which
.joined the EU in 2004 and 2007; and finally Norway, Iceland, Switzerland, and
J..,iechtenstein. Finally, it examines the general rules in the Treaties concerning
'enhanced cooperation', which in principle allow for the adoption of measures
across most areas ofEU law, indudingJHA law, without the full participation of
l]'y1ember States. These latter rules also apply whenever the UK or Ireland (and
ssibly in future Denmark) wish to opt in to a JHA measure that they initially
ted out of.
It should also be recalled that the discretion to opt in (or out) of the Court
JJ.lStice's jurisdiction over preliminary rulings as regards third pillar measures,
lJ.ich still applies for a five-year transitional period as regards third pillar acts
before the Treaty of Lisbon entered into force, results in a different terscope
of that jurisdiction (as distinct from a different territorial scope of
criminal law, and policing law), since the possibility offull harmonization in areas
of shared competence still applies to those parts of Title V as well.
Finally, it should be noted that the exercise of the EU's JHA competences is
subject to the principles of subsidiarity and proportionality, which are discussed
further elsewhere in this chapter.
436
When the Treaties confer on the Union a com et h
a specific area the Union and th M b S pence s ared with the Member States
· ' e em er tates may I . I d
mg acts in that area The M b S h egls ate an adopt legally
. em er tates s all e . heithat the U' h . . xercise t err competence to the
. mon as not exercised Its competence Th M b .
ctse their competence to the extent that th U·' h em. er States shall agam
competence. e mon as decided to cease exercising
It follows from the second sentence that in areas of shared corn eten
could In principle 'occupy the field' b f 11 h . . . p ce, theHow A' Y u Y armornzmg the Issue concerned.
ever, rticle 2(6) TFEU also points out that the precise 'scope' ofth
tence concerned IS set out in th .f T ein Title V ofth TFEU .. e speci lC reaty provisions related to each area,
. . 11 e . , It IS expressly stated that EU rules relating to substantive
crrmina aw and dom sti .. 1 o r
Furth . e IC CrImIna procedure set 'minimum' standards
ermore, competence related to certain aspects of .rul d 431 d h . economIC migration
e out, an arrnonization of national law I'S ruled t d. . ,. ou as regar s m(~aSUf(~S
~~nc~rn:gIntegr~tion ofthird-country nationals and crime p;evention 432
th: a~:. onzonta reserves of national competence in the general pr'oy"isilorls
th J TItle and In the ;rEU, discussed in detail above.P" On the other
e EU has the power to frame a common polic on as 1
external border control' 434 hi h . .. y ,y urn, immigration
. . ' W IC In principle suggests that the Union
more ambitious as regards harmonization ofsuch areas without ..
to harmoni th 1 . h ' requmngze e aw In t ese areas fully 435 But th fin thes .fi . e re erence to a common
· e speCI lC areas does not mean a contrario that full harmonization
IS excluded III other areas (In particular, civil law, mutual recognition measures
:~: Art 4(2)0) TFEU. m Art 2(2) TFEU.
- On the question of t Ibelow. ' ex erna competence, see Art 3(2) TFEU and the discussion
43J Art 79(5) TFEU. See also Art 77(4) d 430 Arts 82(2), 83(1),
borders. " as regar s Member States' competence to
43' A 7- rt 9(3) and 84 TFEU. The EU instead is limi , . . .
supportmg Member States' action . th ted to providing mcentrves, promoting;
I
. s m ese areas See Art 2(5) TFEU OddI h
are not istcd in Art 6 TFEU which a .' . " . y, t ese areas
EU can only 'support coordin t ppe;rs pnl~a facie to be an exhaustive list
433 Arts 72 and 73 T' a e or supp ement Member States' action.
FEU and Art 4(2) revised TEU di d '434 Art 67(2) TFEU , . , iscusse m 2.2.3.2 above.
435 Alth h h T' See further Arts 77(2)(a), 78(1), and (2)(a)-(d), and 79(1) TFEU
· oug t e reaty states that the Union 'sh 11' d , . , , .
m these areas, this must be reconciled ith h a a opt umform and common'
competence of the EU and th M b W
s
I t e express allocation ofJHA matters to
e ern. er tates.
Institutional Framework
those disgruntled Member States that d ho not ave an opt-out or bl
use an 'emergency brake' i th . . were not a e ton e area In question
It should be noted that the Tr t f L' b . .
general horizontal rules concerni:ag~~ . IS on has Introduced into the Treaties
'sh d competence. JHA matters are described
as a s are competence' between the EU d i M b
d fi
an ItS em er State 427 Th
e me this concept as follows.F" s. e
75Overview of the institutional framework
The Treaty ofLisbon amended this article to update the cross-reference to the general
cooperation rules" On the substance ofthose rules, see 2.2.5.5 below.
further detail, see s 2.5 of chs 3-12.
opting out ofmeasures which amend acts which the UK and Ireland are already
pound by (see discussion below). It has become evident from the case law of the
Court ofJustice that this Protocol does not apply to measures which build upon
the Schengen acquis, which are governed by different rules on participation by
the UK and Ireland.v"
Ireland (but not the UK) also has an option to denounce the Protocol altogether,
which it has not invoked.v" An Irish Declaration to the Final Act of the
':treaty ofLisbon referred to its 'firm intention to exercise its right ... to take part
in the adoption of [JHA] measures ... to the maximum extent it deems possible',
stated that 'Ireland will, in particular, participate to the maximum possible extent
'11measures in the field of police cooperation', and in the context ofthe possibility.of
relinquishing the opt-out, announced that Ireland 'intends to review the
peration of these arrangements within three years of the entry into force of the
reaty ofLisbon' (so by 1 December 2012).445
While the default position pursuant to the Title V Protocol is that the UK
d Ireland opt-out of each individualJHA proposal.r" the UK and Ireland can
stead choose to 'opt-in' to each measure. To do this, they must tell the Council
ithin a period of three months of receiving an initial proposal for a JHA act
t they wish to take part in it. If one or both ofthese Member States opts in to
roposal, the Council then tries to agree the proposal with their participation.
the Protocol provides that ifit is not possible to obtain the agreement
the participation of the UK and Ireland after 'a reasonable period of time',
,--~)UJ"lLJll may go ahead and adopt the measure without them."? The UK and
may then join in later under the general conditions applying to enhanced
I)pt~ration in the Treaties.l'" alternatively, if they decide to opt out in the first
they can opt in after the proposal is adopted, by the same method.
practice."? the UK and Irish governments have opted into: almost all civil
)ol)eration measures; most or all of the first-phase measures establishing the
'ommon European Asylum System, but only a few of the second-phase measnumber
ofmeasures on irregular migration; but again only a few measures
border controls, or legal migration. In the first few months after the
C-77/05 UK v Council [2007] ECR 1-11459 and C-137/05 UK v Council [2007] ECR
See 2.2.5.1.3 below.
8 (not amended by the Treaty ofLisbon).
Declaration 56 in the Final Act of the Treaty ofLisbon.
1 and 2. The Treaty ofLisbon amended these articles only to update the cross-reference
voting rules which apply in the event of an opt-out (now Art 238(3) TFEU).
3. The Treaty of Lisbon amended this article to (again) update the cross-reference to the
voting rules which apply in the event of an opt-out (see ibid) and to provide for a special
relating to ]HA evaluations for the UK and Ireland (Art 70 TFEU, discussed in 2.2.3.2
Institutional Framework74
2.2.5.1. United Kingdom and Ireland
The UK and Ireland are both covered by a specific protocol on border controls,
a specific protocol on the possibility ofopting in to any Title IV measure,
specific rules as regards the Schengen acquis. Since the Treaty of Lisbon,
alone also has an option to opt out ofall third pillar measures adopted before
entry into force of the Treaty of Lisbon, with effect from the end of a trve-vear
transitional period in 2014. These various opt-outs will be considered in
439 See 2.2.3.3 above. 440 See 3.2.5 below.
441 The Treaty of Lisbon gave this Protocol a new name: the 'Protocol on the
United Kingdom and Ireland in respect ofthe area offreedom, security and justice'.
to it more simply as the 'Title V Protocol' throughout. All references in this subsection
Protocol, unless otherwise indicated.
442 Art 9, as inserted by the Treaty ofLisbon. The UK made a unilateral declaration to
of Lisbon asserting that it 'intends to exercise its right' to opt in to such measures (Declaratioi
in the Final Act).
The UK and Ireland were granted an opt-out from all of the JHA issues
ferred to Title IV of the EC Treaty (immigration, asylum, and civil
another Protocol attached to the EC Treaty by the Treaty of Amsterdam,
Protocol was extended in scope by the Treaty ofLisbon to cover allJHA
within the scope of Title V TFEU,441 so now including policing and
law, except that Ireland has no opt-out as regards anti-terrorist sanctions,
Treaty of Lisbon also made changes to the Protocol as regards the procedure
third pillar acts).439 Also, it should be recalled that even though an opt-out
that the representatives of the UK, Ireland, or Denmark respectively do
participate in the Council as regards the relevant measure, the MEPs from
states nevertheless vote on the relevant measures during the EP's proceedings;
the Commissioners and Court ofJustice judges from those Member States
play their normal role.
2.2.5.1.2. Title V TFEU
2.2.5.1.1 Border controls
A Protocol attached to the Treaties by the Treaty ofAmsterdam entitles the
and Ireland to maintain the 'Common Travel Area' in force between
to check individuals coming from other Member States, no matter what
Member States do and no matter what interpretation the Court
give to Article 14 EC (now Article 26 TFEU) or to anything else. This
also specifically exempts the UK and Ireland from any EC (now EU) legislatic#
requiring the abolition of border controls, thus overlapping with their
exemption from Title IV of the EC Treaty (now Title V TFEU). The
Lisbon made no substantive amendments to this Protocol; the interpretation
the Protocol is discussed further in Chapter 3.440
75Overview of the institutional framework
The Treaty ofLisbon amended this article to update the cross-reference to the general
cooperation rules" On the substance ofthose rules, see 2.2.5.5 below.
further detail, see s 2.5 of chs 3-12.
opting out ofmeasures which amend acts which the UK and Ireland are already
pound by (see discussion below). It has become evident from the case law of the
Court ofJustice that this Protocol does not apply to measures which build upon
the Schengen acquis, which are governed by different rules on participation by
the UK and Ireland.v"
Ireland (but not the UK) also has an option to denounce the Protocol altogether,
which it has not invoked.v" An Irish Declaration to the Final Act of the
':treaty ofLisbon referred to its 'firm intention to exercise its right ... to take part
in the adoption of [JHA] measures ... to the maximum extent it deems possible',
stated that 'Ireland will, in particular, participate to the maximum possible extent
'11measures in the field of police cooperation', and in the context ofthe possibility.of
relinquishing the opt-out, announced that Ireland 'intends to review the
peration of these arrangements within three years of the entry into force of the
reaty ofLisbon' (so by 1 December 2012).445
While the default position pursuant to the Title V Protocol is that the UK
d Ireland opt-out of each individualJHA proposal.r" the UK and Ireland can
stead choose to 'opt-in' to each measure. To do this, they must tell the Council
ithin a period of three months of receiving an initial proposal for a JHA act
t they wish to take part in it. If one or both ofthese Member States opts in to
roposal, the Council then tries to agree the proposal with their participation.
the Protocol provides that ifit is not possible to obtain the agreement
the participation of the UK and Ireland after 'a reasonable period of time',
,--~)UJ"lLJll may go ahead and adopt the measure without them."? The UK and
may then join in later under the general conditions applying to enhanced
I)pt~ration in the Treaties.l'" alternatively, if they decide to opt out in the first
they can opt in after the proposal is adopted, by the same method.
practice."? the UK and Irish governments have opted into: almost all civil
)ol)eration measures; most or all of the first-phase measures establishing the
'ommon European Asylum System, but only a few of the second-phase measnumber
ofmeasures on irregular migration; but again only a few measures
border controls, or legal migration. In the first few months after the
C-77/05 UK v Council [2007] ECR 1-11459 and C-137/05 UK v Council [2007] ECR
See 2.2.5.1.3 below.
8 (not amended by the Treaty ofLisbon).
Declaration 56 in the Final Act of the Treaty ofLisbon.
1 and 2. The Treaty ofLisbon amended these articles only to update the cross-reference
voting rules which apply in the event of an opt-out (now Art 238(3) TFEU).
3. The Treaty of Lisbon amended this article to (again) update the cross-reference to the
voting rules which apply in the event of an opt-out (see ibid) and to provide for a special
relating to ]HA evaluations for the UK and Ireland (Art 70 TFEU, discussed in 2.2.3.2
Institutional Framework74
2.2.5.1. United Kingdom and Ireland
The UK and Ireland are both covered by a specific protocol on border controls,
a specific protocol on the possibility ofopting in to any Title IV measure,
specific rules as regards the Schengen acquis. Since the Treaty of Lisbon,
alone also has an option to opt out ofall third pillar measures adopted before
entry into force of the Treaty of Lisbon, with effect from the end of a trve-vear
transitional period in 2014. These various opt-outs will be considered in
439 See 2.2.3.3 above. 440 See 3.2.5 below.
441 The Treaty of Lisbon gave this Protocol a new name: the 'Protocol on the
United Kingdom and Ireland in respect ofthe area offreedom, security and justice'.
to it more simply as the 'Title V Protocol' throughout. All references in this subsection
Protocol, unless otherwise indicated.
442 Art 9, as inserted by the Treaty ofLisbon. The UK made a unilateral declaration to
of Lisbon asserting that it 'intends to exercise its right' to opt in to such measures (Declaratioi
in the Final Act).
The UK and Ireland were granted an opt-out from all of the JHA issues
ferred to Title IV of the EC Treaty (immigration, asylum, and civil
another Protocol attached to the EC Treaty by the Treaty of Amsterdam,
Protocol was extended in scope by the Treaty ofLisbon to cover allJHA
within the scope of Title V TFEU,441 so now including policing and
law, except that Ireland has no opt-out as regards anti-terrorist sanctions,
Treaty of Lisbon also made changes to the Protocol as regards the procedure
third pillar acts).439 Also, it should be recalled that even though an opt-out
that the representatives of the UK, Ireland, or Denmark respectively do
participate in the Council as regards the relevant measure, the MEPs from
states nevertheless vote on the relevant measures during the EP's proceedings;
the Commissioners and Court ofJustice judges from those Member States
play their normal role.
2.2.5.1.2. Title V TFEU
2.2.5.1.1 Border controls
A Protocol attached to the Treaties by the Treaty ofAmsterdam entitles the
and Ireland to maintain the 'Common Travel Area' in force between
to check individuals coming from other Member States, no matter what
Member States do and no matter what interpretation the Court
give to Article 14 EC (now Article 26 TFEU) or to anything else. This
also specifically exempts the UK and Ireland from any EC (now EU) legislatic#
requiring the abolition of border controls, thus overlapping with their
exemption from Title IV of the EC Treaty (now Title V TFEU). The
Lisbon made no substantive amendments to this Protocol; the interpretation
the Protocol is discussed further in Chapter 3.440
77Overview of the institutional framework
See 2.2.2.1 and 2.2.3.1 above.
this issue, see further the report ofthe EU Select Committee ofthe House ofLords on the
II' proposal (8th Report, 2003-04), paras 80-81.
See the example of the European protection order proposal, discussed above.
Art 4a, as inserted by the Treaty ofLisbon.
However, in cases where the Council, acting on a proposal from the Commission,
determines that the non-participation of the United Kingdom or Ireland in the amended
of an existing measure makes the application ofthat measure inoperable for other
Member States or the Union, it may urge them to make a notification under Article 3
For the purposes of Article 3, a further period of two months starts to run as from
of such determination by the Council.
at the expiry of that period of two months from the Council's determination the
Kingdom or Ireland has not made a notification under Article 3 or Article 4, the
measure shall no longer be binding upon or applicable to it, unless the Member
concerned has made a notification under Article 4 before the entry into force of the
Ill.c:nc11ll.g measure. This shall take effect from the date ofentry into force ofthe amending
or of expiry of the period of two months, whichever is the later.
the purpose ofthis paragraph, the Council shall, after a full discussion ofthe matter,
a qualified majority of its members representing the Member States participating
provisions of this Protocol apply for the United Kingdom and Ireland also to
measures proposed or adopted pursuant to Title V of Part Three of the Treaty on the
Functioning of the European Union amending an existing measure by which they are
satisfied particular concerns which the UK had about the proposal, and particiactively
(albeit informally) in the negotiations to that end. On those two
occasions, this tactic (which is not as such provided for expressly in the Title V
Protocot) was successful.
With the application ofQMV to most areas ofJHA,455 it is clear that, in the
ofany contrary provisions in the Title V Protocol, a British or Irish opt-in
a proposal will entail the possibility that those Member States could be outvoted
therefore required to apply a proposal which they disagree with.t'" If one or
Member States form part of a blocking minority in the Council, either the
'-J'JUULU could offer sufficient concessions to the other dissenting Member States
then adopt the legislation with British and/or Irish participation, or it could
the legislation without one or both of those Member States if, after a 'reaperiod
oftime', their opposition is partly or wholly blocking the adoption
proposal."? This may have resulted already in a greater reluctance by these
to opt in to JHA proposals, with further reluctance in future following the
extension of QMV to more areas ofJHA law pursuant to the Treaty ofLisbon.
A significant new provision in the Title V Protocol introduced by the Treaty
concerns the position of the UK and Ireland when a proposal is made
amend a measure which they are already bound by.458 This rule provides as
Institutional Framework76
Treaty of Lisbon, they opted in to most initial proposals for legislation concerning
criminal law and policing and criminal law treaties. The approach ofthe
governments has been largely, but not entirely, consistent. There have been
cases where the Council went ahead and adopted JHA measures without
Member State's participation even though they had opted in to discussions, but
June 2010, the Spanish Council Presidency threatened that it would exclude
UK from participation in the proposed Directive establishing a European
tion order (despite the UK's opt-in to discussions), because the UK was opposing
the proposal, and terminating the UK's participation in negotiations would
that there were no longer enough votes against the proposal to form a blocking
minority in the Council.v" This raises the question as to how much time has
pass before the UK's or Ireland's participation in discussions on a proposal can
terminated on the grounds that a 'reasonable period of time' has passed
which one or both Member States have blocked the proposal, or participated
a blocking minority.
Furthermore, there were three cases where the UK attempted to opt in
proposal, but was rebuffed; each of these decisions was challenged by the
before the Court ofJustice. While the UK lost the first two of those UldUc;U:~c;~
on the grounds that the measures concerned fell instead within the scope
rules in the Schengen Protocol, at the time ofwriting the third challenge is
pending.":
There have been three occasions when Ireland initially did not participate
in a proposal, but then opted in after its adoption.t'" and two other occasions
when the UK did the same,453 in each case pursuant to the enhanced cooperation
rules which applied before the entry into force of the Treaty
should be noted that in the latter two cases, the UK opted out of the proposaf
but nevertheless indicated an intention to opt in if the final text ofthe legislation
450 See the press release of the JHA Council, 3-4 June 2010. The UK and the other dissenting
Member States were objecting to this proposal due to (well-founded) concerns about its
see 9.2.4 below. On the substance of the proposal, see 9.7.6 below; for the text, see [2010]
69/5.
451 Cases C-77/05 and C-137/05 UK v Council (n 443 above) and C-482/08 UK v Council,
ing. An Advocate-General's opinion of 24 June 2010 recommends dismissing the UK's
in the latter case.
452 Dir 2001/55 on temporary protection ([2001] OJ L 212/12), Reg 1030/2002 ([2002]
157/1), and the Decision establishing a Migration Network ([2008] OJ L 131/7). The Commissio
approved Irish participation by means of Decisions, respectively: [2003] OJ L 251/23;
C(2007)4589/F of 11 Oct 2007 (not published in the OJ); and [2009] OJ L 138/53. See
Commission opinions on Irish participation in: SEC (2003) 907, 6 Aug 2003; COM
7 Sep 2007; and [2009] OJ Cl/I.
45; Regs 593/2008 on conflict of law in contract (Rome I Reg) and 4/2009 on maintenanc
(respectively [2008] OJ L 177/6 and [2009] OJ L 7/1). The Commission approved UK participatio
by means ofDecisions ([2009] OJ L 10/22 and [2009] OJ L 149/73). See also the Commission opir
ions on UK participation in COM (2008) 730, 7 Nov 2008 and COM (2009) 181, 21
454 Art l l a EC, which has been replaced by Art 331(1) TFEU; see further 2.2.5.5 below.
77Overview of the institutional framework
See 2.2.2.1 and 2.2.3.1 above.
this issue, see further the report ofthe EU Select Committee ofthe House ofLords on the
II' proposal (8th Report, 2003-04), paras 80-81.
See the example of the European protection order proposal, discussed above.
Art 4a, as inserted by the Treaty ofLisbon.
However, in cases where the Council, acting on a proposal from the Commission,
determines that the non-participation of the United Kingdom or Ireland in the amended
of an existing measure makes the application ofthat measure inoperable for other
Member States or the Union, it may urge them to make a notification under Article 3
For the purposes of Article 3, a further period of two months starts to run as from
of such determination by the Council.
at the expiry of that period of two months from the Council's determination the
Kingdom or Ireland has not made a notification under Article 3 or Article 4, the
measure shall no longer be binding upon or applicable to it, unless the Member
concerned has made a notification under Article 4 before the entry into force of the
Ill.c:nc11ll.g measure. This shall take effect from the date ofentry into force ofthe amending
or of expiry of the period of two months, whichever is the later.
the purpose ofthis paragraph, the Council shall, after a full discussion ofthe matter,
a qualified majority of its members representing the Member States participating
provisions of this Protocol apply for the United Kingdom and Ireland also to
measures proposed or adopted pursuant to Title V of Part Three of the Treaty on the
Functioning of the European Union amending an existing measure by which they are
satisfied particular concerns which the UK had about the proposal, and particiactively
(albeit informally) in the negotiations to that end. On those two
occasions, this tactic (which is not as such provided for expressly in the Title V
Protocot) was successful.
With the application ofQMV to most areas ofJHA,455 it is clear that, in the
ofany contrary provisions in the Title V Protocol, a British or Irish opt-in
a proposal will entail the possibility that those Member States could be outvoted
therefore required to apply a proposal which they disagree with.t'" If one or
Member States form part of a blocking minority in the Council, either the
'-J'JUULU could offer sufficient concessions to the other dissenting Member States
then adopt the legislation with British and/or Irish participation, or it could
the legislation without one or both of those Member States if, after a 'reaperiod
oftime', their opposition is partly or wholly blocking the adoption
proposal."? This may have resulted already in a greater reluctance by these
to opt in to JHA proposals, with further reluctance in future following the
extension of QMV to more areas ofJHA law pursuant to the Treaty ofLisbon.
A significant new provision in the Title V Protocol introduced by the Treaty
concerns the position of the UK and Ireland when a proposal is made
amend a measure which they are already bound by.458 This rule provides as
Institutional Framework76
Treaty of Lisbon, they opted in to most initial proposals for legislation concerning
criminal law and policing and criminal law treaties. The approach ofthe
governments has been largely, but not entirely, consistent. There have been
cases where the Council went ahead and adopted JHA measures without
Member State's participation even though they had opted in to discussions, but
June 2010, the Spanish Council Presidency threatened that it would exclude
UK from participation in the proposed Directive establishing a European
tion order (despite the UK's opt-in to discussions), because the UK was opposing
the proposal, and terminating the UK's participation in negotiations would
that there were no longer enough votes against the proposal to form a blocking
minority in the Council.v" This raises the question as to how much time has
pass before the UK's or Ireland's participation in discussions on a proposal can
terminated on the grounds that a 'reasonable period of time' has passed
which one or both Member States have blocked the proposal, or participated
a blocking minority.
Furthermore, there were three cases where the UK attempted to opt in
proposal, but was rebuffed; each of these decisions was challenged by the
before the Court ofJustice. While the UK lost the first two of those UldUc;U:~c;~
on the grounds that the measures concerned fell instead within the scope
rules in the Schengen Protocol, at the time ofwriting the third challenge is
pending.":
There have been three occasions when Ireland initially did not participate
in a proposal, but then opted in after its adoption.t'" and two other occasions
when the UK did the same,453 in each case pursuant to the enhanced cooperation
rules which applied before the entry into force of the Treaty
should be noted that in the latter two cases, the UK opted out of the proposaf
but nevertheless indicated an intention to opt in if the final text ofthe legislation
450 See the press release of the JHA Council, 3-4 June 2010. The UK and the other dissenting
Member States were objecting to this proposal due to (well-founded) concerns about its
see 9.2.4 below. On the substance of the proposal, see 9.7.6 below; for the text, see [2010]
69/5.
451 Cases C-77/05 and C-137/05 UK v Council (n 443 above) and C-482/08 UK v Council,
ing. An Advocate-General's opinion of 24 June 2010 recommends dismissing the UK's
in the latter case.
452 Dir 2001/55 on temporary protection ([2001] OJ L 212/12), Reg 1030/2002 ([2002]
157/1), and the Decision establishing a Migration Network ([2008] OJ L 131/7). The Commissio
approved Irish participation by means of Decisions, respectively: [2003] OJ L 251/23;
C(2007)4589/F of 11 Oct 2007 (not published in the OJ); and [2009] OJ L 138/53. See
Commission opinions on Irish participation in: SEC (2003) 907, 6 Aug 2003; COM
7 Sep 2007; and [2009] OJ Cl/I.
45; Regs 593/2008 on conflict of law in contract (Rome I Reg) and 4/2009 on maintenanc
(respectively [2008] OJ L 177/6 and [2009] OJ L 7/1). The Commission approved UK participatio
by means ofDecisions ([2009] OJ L 10/22 and [2009] OJ L 149/73). See also the Commission opir
ions on UK participation in COM (2008) 730, 7 Nov 2008 and COM (2009) 181, 21
454 Art l l a EC, which has been replaced by Art 331(1) TFEU; see further 2.2.5.5 below.
79Overview of the institutional framework
See 2.2.5.1.5.
5, Title V Protocol. The Treaty of Lisbon amended this Art to provide that the Council
decide, acting with the unanimity of all Member States, to charge these costs to the UK or
nonetheless. Obviously the latter Member States are unlikely to agree to this.
6a, Title V Protocol, inserted by the Treaty of Lisbon. See more generally 12.2.4 and
below.
For example, the Council of Europe Convention on extradition and its Protocols would
between those States if the Framework Decision on the European Arrest Warrant were
disapplied between them.
For example, the Schengen Convention provisions on extradition would arguably apply ifthe
Framework Decision were disapplied, and the Dublin Convention would arguably apply if
"W'V'UOllIl II Reg were disapplied.
Art 4, Schengen Protocol. This provision has not been amended by the Treaty ofLisbon.
Decisions 2000/365/EC ([2000] OJ L 131/43) and 2002/192/EC ([2002] OJ L 64120).
1.3. Schengen Protocol
Protocol on the Schengen acquis (the 'Schengen Protocol') gave the UK and
?lreland the possibility of applying to participate in only part of the Schengen
subject to a decision in favour by the Council, acting with the unanimous
approval of the Schengen States."! The Council accepted the UK's application
participation in Schengen in 2000, and the parallel Irish application
472 although the partial participation of these Member States in the
lchen~;en rules only took effect (for the UK) or will take effect (for Ireland)
entrrelv objective test, applying not only if the UK or Ireland are reluctant to be
excluded from the relevant pre-existing measure but also if those Member States
enthusiastic about the prospect ofreleasing themselves from their pre-existing
obligations. The separate question ofwhether the UK and Ireland remain bound
a measure which they originally participated in, but which is repealed by a later
measure which they did not participate in, is considered further below.i'"
The Protocol also specifies that non-participation in JHA measures exempts
UK and Ireland from the costs related to those specific measures.i'" and
nrrn,i,r1p< that the UK and Ireland are not bound by the general rules on data
protection that may be adopted pursuant to Article 16 TFEU to the extent that
are not bound by the underlying policing or criminal law measure to which
general rules relate.t'"
forced termination ofparticipation in prior EU measures will presumably
the impact (as regards criminal law in particular) that any Council ofEurope
Conventions which had been disapplied in relations between Member States by
EU measures would then re-apply in relations between the UK and/or
W:"'UlU, on the one hand, and the other Member States, on the other, since the
basis for disapplying those measures as between those States would no longer
in force.t"" It is even possible that earlier EU measures which had been repealed
disapplied as between those States by the prior EU act which no longer applied
also come back into application.f"
Institutional Framework78
459 Art 4a(1). The following analysis ofthese new rules draws upon S Peers, 'In a World
Own? Justice and Home Affairs Opt-outs and the Treaty ofLisbon' (2008-09) 10 CYELS
460 The Council acts only with the votes of the participating Member States: Art
sub-paragraph. For the applicable voting rules, see Art 238(3) TFEU. There is no role for
461 Art 4a(2), first sub-paragraph. 462 Art 4a(2), second sub-paragraph.
463 Art 4a(3). Note that in this case, the UK and Ireland will participate in the vote. Again
is no role for the EP.
464 Art 4a(4). Read literally, the UK or Ireland could opt in to either the original act or
amending it, but this would undercut the purpose of Art 4a(2) and so is presumably ruled
by analogy Cases C-77/05 and C-137/05, n 443 above).
465 For details ofthe measures concerned, see 5.2.5 below.
or having participated in the adoption ofthe amending measure. A qualified majority
the Council shall be defined in accordance with Article 238(3)(a) of the Treaty on the
Functioning of the European Union.
3. The Council, acting by a qualified majority on a proposal from the Commission,
may determine that the United Kingdom or Ireland shall bear the direct financial
sequences, if any, necessarily and unavoidably incurred as a result of the cessation
participation in the existing measure.
4. This Article shall be without prejudice to Article 4.
It can be seen that in principle the Protocol applies as usual to such cases.
However, it is possible for the Council, acting by QMV on a
proposal.v" to determine that the non-participation of the UK or Ireland in
proposed amended measure makes the application ofthe existing measure
erable' for other Member States or the EU, to urge the UK or Ireland to notify
intention to opt in to the proposal while under discussion or after its adoption.
Ifthe UK or Ireland fail to do so, the existing measure ceases to apply to them.
The Council, acting by QMV, may also impose financial sanctions on the UK
Ireland subject to certain conditions.i'" However, it is always open to the UK
Ireland to opt in to the original act and its amending measure after the
adopted."?" These provisions have not yet been applied in practice, although
UK and Ireland have opted out of several measures which would amend
legislation in which they already participate.r"
The key question as regards these provisions is the definition ofwhen the
participation of the UK or Ireland in a measure should be considered to
that measure 'inoperable' as regards other Member States or the Union, for
in that case could the UK or Ireland be excluded from the existing measure
subjected to sanctions. Given that the EU has been able to tolerate prolonged
periods when different versions ofthe same measure apply to most Member
on the one hand, and to Denmark or associated States on the other hand, the
interpretation ofthis rule is that it only applies where the non-participation
UK or Ireland would make it genuinely and objectively impossible for the measure
to apply in different forms in the UK or Ireland on the one hand and the
Member States on the other hand. It is not sufficient that it is more difficult to
the two different sets ofrules. Also, it should be noted that the high threshold.is
79Overview of the institutional framework
See 2.2.5.1.5.
5, Title V Protocol. The Treaty of Lisbon amended this Art to provide that the Council
decide, acting with the unanimity of all Member States, to charge these costs to the UK or
nonetheless. Obviously the latter Member States are unlikely to agree to this.
6a, Title V Protocol, inserted by the Treaty of Lisbon. See more generally 12.2.4 and
below.
For example, the Council of Europe Convention on extradition and its Protocols would
between those States if the Framework Decision on the European Arrest Warrant were
disapplied between them.
For example, the Schengen Convention provisions on extradition would arguably apply ifthe
Framework Decision were disapplied, and the Dublin Convention would arguably apply if
"W'V'UOllIl II Reg were disapplied.
Art 4, Schengen Protocol. This provision has not been amended by the Treaty ofLisbon.
Decisions 2000/365/EC ([2000] OJ L 131/43) and 2002/192/EC ([2002] OJ L 64120).
1.3. Schengen Protocol
Protocol on the Schengen acquis (the 'Schengen Protocol') gave the UK and
?lreland the possibility of applying to participate in only part of the Schengen
subject to a decision in favour by the Council, acting with the unanimous
approval of the Schengen States."! The Council accepted the UK's application
participation in Schengen in 2000, and the parallel Irish application
472 although the partial participation of these Member States in the
lchen~;en rules only took effect (for the UK) or will take effect (for Ireland)
entrrelv objective test, applying not only if the UK or Ireland are reluctant to be
excluded from the relevant pre-existing measure but also if those Member States
enthusiastic about the prospect ofreleasing themselves from their pre-existing
obligations. The separate question ofwhether the UK and Ireland remain bound
a measure which they originally participated in, but which is repealed by a later
measure which they did not participate in, is considered further below.i'"
The Protocol also specifies that non-participation in JHA measures exempts
UK and Ireland from the costs related to those specific measures.i'" and
nrrn,i,r1p< that the UK and Ireland are not bound by the general rules on data
protection that may be adopted pursuant to Article 16 TFEU to the extent that
are not bound by the underlying policing or criminal law measure to which
general rules relate.t'"
forced termination ofparticipation in prior EU measures will presumably
the impact (as regards criminal law in particular) that any Council ofEurope
Conventions which had been disapplied in relations between Member States by
EU measures would then re-apply in relations between the UK and/or
W:"'UlU, on the one hand, and the other Member States, on the other, since the
basis for disapplying those measures as between those States would no longer
in force.t"" It is even possible that earlier EU measures which had been repealed
disapplied as between those States by the prior EU act which no longer applied
also come back into application.f"
Institutional Framework78
459 Art 4a(1). The following analysis ofthese new rules draws upon S Peers, 'In a World
Own? Justice and Home Affairs Opt-outs and the Treaty ofLisbon' (2008-09) 10 CYELS
460 The Council acts only with the votes of the participating Member States: Art
sub-paragraph. For the applicable voting rules, see Art 238(3) TFEU. There is no role for
461 Art 4a(2), first sub-paragraph. 462 Art 4a(2), second sub-paragraph.
463 Art 4a(3). Note that in this case, the UK and Ireland will participate in the vote. Again
is no role for the EP.
464 Art 4a(4). Read literally, the UK or Ireland could opt in to either the original act or
amending it, but this would undercut the purpose of Art 4a(2) and so is presumably ruled
by analogy Cases C-77/05 and C-137/05, n 443 above).
465 For details ofthe measures concerned, see 5.2.5 below.
or having participated in the adoption ofthe amending measure. A qualified majority
the Council shall be defined in accordance with Article 238(3)(a) of the Treaty on the
Functioning of the European Union.
3. The Council, acting by a qualified majority on a proposal from the Commission,
may determine that the United Kingdom or Ireland shall bear the direct financial
sequences, if any, necessarily and unavoidably incurred as a result of the cessation
participation in the existing measure.
4. This Article shall be without prejudice to Article 4.
It can be seen that in principle the Protocol applies as usual to such cases.
However, it is possible for the Council, acting by QMV on a
proposal.v" to determine that the non-participation of the UK or Ireland in
proposed amended measure makes the application ofthe existing measure
erable' for other Member States or the EU, to urge the UK or Ireland to notify
intention to opt in to the proposal while under discussion or after its adoption.
Ifthe UK or Ireland fail to do so, the existing measure ceases to apply to them.
The Council, acting by QMV, may also impose financial sanctions on the UK
Ireland subject to certain conditions.i'" However, it is always open to the UK
Ireland to opt in to the original act and its amending measure after the
adopted."?" These provisions have not yet been applied in practice, although
UK and Ireland have opted out of several measures which would amend
legislation in which they already participate.r"
The key question as regards these provisions is the definition ofwhen the
participation of the UK or Ireland in a measure should be considered to
that measure 'inoperable' as regards other Member States or the Union, for
in that case could the UK or Ireland be excluded from the existing measure
subjected to sanctions. Given that the EU has been able to tolerate prolonged
periods when different versions ofthe same measure apply to most Member
on the one hand, and to Denmark or associated States on the other hand, the
interpretation ofthis rule is that it only applies where the non-participation
UK or Ireland would make it genuinely and objectively impossible for the measure
to apply in different forms in the UK or Ireland on the one hand and the
Member States on the other hand. It is not sufficient that it is more difficult to
the two different sets ofrules. Also, it should be noted that the high threshold.is
81Overview of the institutional framework
borders agency.?" A further case is pending on the question of whether
to the Visa Information System by UK law enforcement officials can be
restricted."?
C-77/05 UK v Council and C-137/05 UK v Council (n 443 above).
C-482/08 UK v Council, pending (opinion of24 June 2010).
of the approach ultimately adopted by the Court, see the second edition of this
58-59.
Schengen Protocol. The previous Art 5(2) of the Protocol was repealed by the
the Court's view, the Commission and Council were correct: in order to
....,..'·<p'r"p the 'effectiveness' of the rules on the UK and Ireland's participation in
Schengen acquis, there was a necessary link between the question of their
participation in the original acquis and their participation in measures building
it. Moreover, the Court adopted in these cases a broad interpretation of
measures building upon the acquis, ruling that both measures built upon the acquis
though they did not actually amend it, because they were sufficiently linked
control of external borders.t'"
Treaty ofLisbon did not amend the provisions ofthe Schengen Protocol
with this issue, so presumably the Court's prior case law continues to
On the other hand, the Treaty of Lisbon did amend the rules governposition
if the UK and Ireland wish to opt out of a measure building
a provision of the acquis which they are already bound by.484 These rules
provide that the UK and Ireland can opt out of a proposal measure which
on the parts of the Schengen acquis in which they already participate,
notify the Council of their position within three months. In that case,
and Ireland will not be bound by the proposal, but the procedure to
will be suspended until that notification is withdrawn (ie the UK or
decides that it wishes to opt in after all) or until the end of a separate
(\rl'ch,rp to remove the UK or Ireland from their participation in aspects of
Schengen acquis, 'to the extent considered necessary by the Council' by a
a Commission proposal. The Council shall 'seek to retain the widpossible
measure of participation of the Member State concerned without
affecting the practical operability of the various parts ofthe Schengen
respecting their coherence', and must 'act within four months of
Comrmssron proposal'.
Council has not acted within that period, any Member State 'may' refer
to the European Council, which must then, at its next meeting, acton
a Commission proposal, take a decision pursuant to the same
apply to the Council. If that process fails, the decision-making
concerning the original proposal resumes, but in the event that the
measure is adopted, then the Commission must decide to terminate the
I~""~,n""'o participation in the Schengen acquis by the time that measure is
Institutional Framework
when the Council approved or later approves it separately.f" Both Member
participate (or will participate) in almost all of the criminal law and policing
provisions ofSchengen,"?" as well as the provisions on control ofirregular
tion.!" However, they do not, or will not, participate in any of the rules relating
to visas, border controls, or freedom to travel. Following this distinction,
will participate in the SIS to the extent that it applies to policing and .J _._~_~... ,
cooperation, but not as it applies to immigration. The Decision on UK
pation sets out a more limited list of Schengen rules that will apply to Cibraltari
and provides that the UK may request the partial participation of the '--"',H''''_'
Islands and Isle of Man in some Schengen rules (subject to unanimous approval
of the Schengen States)."?"
Both Decisions initially also purported to require UK and Irish parttcipation
in measures building on the Schengen acquis which were adopted after
integration of the Schengen acquis into the EC and EU legal order. This
to certain measures concerning the SIS,477 to three other adopted measures
Irelandj.f" and to all proposals and initiatives which build upon those pornons
of the Schengen acquis which the UK and Ireland participate in (each
'shall be deemed irrevocably' to have notified its intention to 'take part in'
measuresj.f"
As regards measures building on the Schengen acquis which the
Ireland are not purportedly obliged to opt into, the Schengen Protocol
'[p]roposals and initiatives to build upon the Schengen acquis shall be
the relevant provisions ofthe Treaties'."? The UK and Ireland took the view
the Title IV Protocol (as it then was) therefore applied if they wished to
such measures-ie they did not need the Council's approval to opt in. Converser
the Council and Commission took the view that the UK and Ireland could
in to Title IV proposals where these measures built upon those provisions
acquis which the UK and Ireland had not opted into. This dispute was UH.J.UJl""'.J.
settled by the Court ofJustice, when the UK challenged its exclusion
EU legislation on security features for EU passports and the creation
473 See Art 6 of Decision 2000/365/EC and Art 4 of Decision 2002/192/EC (both
Council decided that the UK can participate in the Schengen acquis which it has opted
as regards the SIS (which will be subject to a later decision), from 1Jan 2005 ([2004] OJ L
but no such decision has yet been adopted as regards Ireland.
474 Art 1 ofeach Decision. The exceptions are cross-border hot pursuit by police (for
cross-border police hot pursuit and surveillance (for Ireland).
47S Arts 26 and 27 ofthe Convention; see further 7.5.1 and 7.5.3 below.
476 Art 5, Decision on UK participation.
m Art 5(1), Decision on Irish participation; Art 7(1), Decision on UK participation.
478 Art 2(2), Decision on Irish participation.
479 Art 6(2), Decision on Irish participation; Art 8(2), Decision on UK participation.
of application of measures building on the Schengen acquis, see Art 6(3) and 8(3)
Decisions. On the practical application of these provisions, see s 2.5 of chs 3-7.
480 Art 5(1), Schengen Protocol, not amended by the Treaty ofLisbon.
80
81Overview of the institutional framework
borders agency.?" A further case is pending on the question of whether
to the Visa Information System by UK law enforcement officials can be
restricted."?
C-77/05 UK v Council and C-137/05 UK v Council (n 443 above).
C-482/08 UK v Council, pending (opinion of24 June 2010).
of the approach ultimately adopted by the Court, see the second edition of this
58-59.
Schengen Protocol. The previous Art 5(2) of the Protocol was repealed by the
the Court's view, the Commission and Council were correct: in order to
....,..'·<p'r"p the 'effectiveness' of the rules on the UK and Ireland's participation in
Schengen acquis, there was a necessary link between the question of their
participation in the original acquis and their participation in measures building
it. Moreover, the Court adopted in these cases a broad interpretation of
measures building upon the acquis, ruling that both measures built upon the acquis
though they did not actually amend it, because they were sufficiently linked
control of external borders.t'"
Treaty ofLisbon did not amend the provisions ofthe Schengen Protocol
with this issue, so presumably the Court's prior case law continues to
On the other hand, the Treaty of Lisbon did amend the rules governposition
if the UK and Ireland wish to opt out of a measure building
a provision of the acquis which they are already bound by.484 These rules
provide that the UK and Ireland can opt out of a proposal measure which
on the parts of the Schengen acquis in which they already participate,
notify the Council of their position within three months. In that case,
and Ireland will not be bound by the proposal, but the procedure to
will be suspended until that notification is withdrawn (ie the UK or
decides that it wishes to opt in after all) or until the end of a separate
(\rl'ch,rp to remove the UK or Ireland from their participation in aspects of
Schengen acquis, 'to the extent considered necessary by the Council' by a
a Commission proposal. The Council shall 'seek to retain the widpossible
measure of participation of the Member State concerned without
affecting the practical operability of the various parts ofthe Schengen
respecting their coherence', and must 'act within four months of
Comrmssron proposal'.
Council has not acted within that period, any Member State 'may' refer
to the European Council, which must then, at its next meeting, acton
a Commission proposal, take a decision pursuant to the same
apply to the Council. If that process fails, the decision-making
concerning the original proposal resumes, but in the event that the
measure is adopted, then the Commission must decide to terminate the
I~""~,n""'o participation in the Schengen acquis by the time that measure is
Institutional Framework
when the Council approved or later approves it separately.f" Both Member
participate (or will participate) in almost all of the criminal law and policing
provisions ofSchengen,"?" as well as the provisions on control ofirregular
tion.!" However, they do not, or will not, participate in any of the rules relating
to visas, border controls, or freedom to travel. Following this distinction,
will participate in the SIS to the extent that it applies to policing and .J _._~_~... ,
cooperation, but not as it applies to immigration. The Decision on UK
pation sets out a more limited list of Schengen rules that will apply to Cibraltari
and provides that the UK may request the partial participation of the '--"',H''''_'
Islands and Isle of Man in some Schengen rules (subject to unanimous approval
of the Schengen States)."?"
Both Decisions initially also purported to require UK and Irish parttcipation
in measures building on the Schengen acquis which were adopted after
integration of the Schengen acquis into the EC and EU legal order. This
to certain measures concerning the SIS,477 to three other adopted measures
Irelandj.f" and to all proposals and initiatives which build upon those pornons
of the Schengen acquis which the UK and Ireland participate in (each
'shall be deemed irrevocably' to have notified its intention to 'take part in'
measuresj.f"
As regards measures building on the Schengen acquis which the
Ireland are not purportedly obliged to opt into, the Schengen Protocol
'[p]roposals and initiatives to build upon the Schengen acquis shall be
the relevant provisions ofthe Treaties'."? The UK and Ireland took the view
the Title IV Protocol (as it then was) therefore applied if they wished to
such measures-ie they did not need the Council's approval to opt in. Converser
the Council and Commission took the view that the UK and Ireland could
in to Title IV proposals where these measures built upon those provisions
acquis which the UK and Ireland had not opted into. This dispute was UH.J.UJl""'.J.
settled by the Court ofJustice, when the UK challenged its exclusion
EU legislation on security features for EU passports and the creation
473 See Art 6 of Decision 2000/365/EC and Art 4 of Decision 2002/192/EC (both
Council decided that the UK can participate in the Schengen acquis which it has opted
as regards the SIS (which will be subject to a later decision), from 1Jan 2005 ([2004] OJ L
but no such decision has yet been adopted as regards Ireland.
474 Art 1 ofeach Decision. The exceptions are cross-border hot pursuit by police (for
cross-border police hot pursuit and surveillance (for Ireland).
47S Arts 26 and 27 ofthe Convention; see further 7.5.1 and 7.5.3 below.
476 Art 5, Decision on UK participation.
m Art 5(1), Decision on Irish participation; Art 7(1), Decision on UK participation.
478 Art 2(2), Decision on Irish participation.
479 Art 6(2), Decision on Irish participation; Art 8(2), Decision on UK participation.
of application of measures building on the Schengen acquis, see Art 6(3) and 8(3)
Decisions. On the practical application of these provisions, see s 2.5 of chs 3-7.
480 Art 5(1), Schengen Protocol, not amended by the Treaty ofLisbon.
80
485 For a detailed discussion ofthese provisions, see Peers, n 459 above.
486 See 2.2.3.3 above. 487 Art 10(4), first sub-paragraph, transitional
488 Art 10(4), second sub-paragraph, transitional protocol.
83Overview of the institutional framework
10(4), third sub-paragraph, transitional protocol.
transitional protocol. 491 Reg 53912001, [2001] OJ L 81/1.
UK and Ireland participated in the first-phase legislation concerning asylum procedures
'qualification' of refugees and persons needing subsidiary protection, and the UK particifirst-phase
legislation on reception conditions for asylum seekers, but they have opted
proposals which would repeal those measures. For more detail, see 5.2.5 below.
1.5. Opt-out by repeal?
issue as regards the JHA opt-ours of the UK and Ireland (which is
)tentially also relevant to Denmark) is the question ofwhat happens when the
Ireland are bound by an existing JHA measure, but when that measure is
ftI'ea.led (not simply amended) by a later measure in which those Member States
participate. Can it be argued that since the original JHA measure has
rescinded as regards most Member States, its repeal is also effective to those
States which did not participate in its repeal? This has already happened
case of the original measure establishing the EU's visa list,"?' and it might
as regards much of the EU's first-phase asylum legislation.t'"
Kingdom shall bear the direct financial consequences, if any, necessarily and
unavoidabtv incurred' by its ceased participation."?
However, the UK may 'at any time afterwards' notify the Council that it
to participate in pre-existing third pillar measures which it has opted
of.490 Presumably the word 'afterwards' refers to a time after the initial
notitication of the opt-out, so it would be possible for the UK to opt back in
some pre-existing third pillar measures already during the six-month time
before the opt-out takes effect. In that case, the UK would in effect only
opting out of part of its pre-existing third pillar commitments. But as the
wording of this provision makes clear ('at any time'), the UK could wait until
future date to embark upon this volte-face. Implicitly, it would be possible
UK to opt back in to such measures in stages. The Protocol explicitly
connrrns that if the UK does opt back in to any measures, the jurisdiction of
Court ofJustice and the Commission's powers over infringement actions
be applicable.
the UK did wish to opt back in to participate in pre-existing third pillar
rnc~aSll1n~s it had opted out of, the relevant provisions of the Title V Protocol and
Schengen Protocol would apply, with the addition of a requirement that the
institutions and the UK 'shall seek to re-establish the widest possible measure
otparticipation of the United Kingdom in the acquis of the Union in the area of
tfeedonl, security and justice without seriously affecting the practical operability
various parts thereof, while respecting their coherence'.
will tell whether this option appeals to the UK in 2014. In any case, this
OP[-()ll[ will only be relevant to the extent that pre-existing third pillar measures
not been amended in the meantime.
Institutional Framework
adopted, applying the same criteria, unless the UK and Ireland decide to opt
to the proposal after all.
It can be seen that these rules have effectively replaced the previous purported
obligation to opt in to any measure building upon those provisions of the
which the UK and Ireland already participate in. These rules also apply to
policing and criminal law provisions of the Schengen acquis, which the UK
Ireland currently participate in widely. Unlike the revised provisions ofthe
Protocol, the process ofexcluding the UK and Ireland from the underlying
ures is intended to be automatic, with the Council, the European Council,
the Commission called upon in turn to adopt the measure necessary to terminate
part ofthe UK's or Ireland's participation in the Schengen acquis.t"
82
2.2.5.1.4. Pre-existing third pillar measures
The fourth and final JHA opt-out applies, unlike the others, to the UK
not also to Ireland. It was inserted into the Treaties for the first time by
Treaty of Lisbon, and appears in the transitional Protocol which governs
ous aspects of the transition between the previous Treaty rules and the
the Treaty ofLisbon. This Protocol was already considered above as
rules on the legal effect of third pillar measures adopted before the entry
force of the Treaty of Lisbon ('pre-existing third pillar measures'), as
the Court ofJustice's jurisdiction over such acts,486 but it also contains a
rule permitting the UK to opt-out of the application of all pre-existing
pillar measures which have not been amended at the end of the five-year
sitional period applying to the Court's jurisdiction-so by 1 December
There is no possibility for the UK to invoke such an opt-out before or
that date."?
In order to invoke this opt-out, the UK would have to notify the '-"\.'UIJI\.l1
the latest' six months before the end ofthe transitional period (so by 1June
that it objects to the powers ofthe EU institutions (ie the Court ofJustice
Commission, as regards infringement proceedings) becoming applicable to
measures. This would trigger the non-application ofthe acts concerned.
opt-out would not apply to any post-Lisbon policing and criminal law acts,
any pre-existing third pillar measures which had been amended after the
into force of the Treaty ofLisbon, in which the UK participates.
As a consequence, the Council, by QMV on a Commission proposal
UK participation, 'shall determine the necessary consequential and transition,
arrangements'rt'" Also, the Council, acting by QMV on a Commission
with UK participation, 'may also adopt a decision determining that the
485 For a detailed discussion ofthese provisions, see Peers, n 459 above.
486 See 2.2.3.3 above. 487 Art 10(4), first sub-paragraph, transitional
488 Art 10(4), second sub-paragraph, transitional protocol.
83Overview of the institutional framework
10(4), third sub-paragraph, transitional protocol.
transitional protocol. 491 Reg 53912001, [2001] OJ L 81/1.
UK and Ireland participated in the first-phase legislation concerning asylum procedures
'qualification' of refugees and persons needing subsidiary protection, and the UK particifirst-phase
legislation on reception conditions for asylum seekers, but they have opted
proposals which would repeal those measures. For more detail, see 5.2.5 below.
1.5. Opt-out by repeal?
issue as regards the JHA opt-ours of the UK and Ireland (which is
)tentially also relevant to Denmark) is the question ofwhat happens when the
Ireland are bound by an existing JHA measure, but when that measure is
ftI'ea.led (not simply amended) by a later measure in which those Member States
participate. Can it be argued that since the original JHA measure has
rescinded as regards most Member States, its repeal is also effective to those
States which did not participate in its repeal? This has already happened
case of the original measure establishing the EU's visa list,"?' and it might
as regards much of the EU's first-phase asylum legislation.t'"
Kingdom shall bear the direct financial consequences, if any, necessarily and
unavoidabtv incurred' by its ceased participation."?
However, the UK may 'at any time afterwards' notify the Council that it
to participate in pre-existing third pillar measures which it has opted
of.490 Presumably the word 'afterwards' refers to a time after the initial
notitication of the opt-out, so it would be possible for the UK to opt back in
some pre-existing third pillar measures already during the six-month time
before the opt-out takes effect. In that case, the UK would in effect only
opting out of part of its pre-existing third pillar commitments. But as the
wording of this provision makes clear ('at any time'), the UK could wait until
future date to embark upon this volte-face. Implicitly, it would be possible
UK to opt back in to such measures in stages. The Protocol explicitly
connrrns that if the UK does opt back in to any measures, the jurisdiction of
Court ofJustice and the Commission's powers over infringement actions
be applicable.
the UK did wish to opt back in to participate in pre-existing third pillar
rnc~aSll1n~s it had opted out of, the relevant provisions of the Title V Protocol and
Schengen Protocol would apply, with the addition of a requirement that the
institutions and the UK 'shall seek to re-establish the widest possible measure
otparticipation of the United Kingdom in the acquis of the Union in the area of
tfeedonl, security and justice without seriously affecting the practical operability
various parts thereof, while respecting their coherence'.
will tell whether this option appeals to the UK in 2014. In any case, this
OP[-()ll[ will only be relevant to the extent that pre-existing third pillar measures
not been amended in the meantime.
Institutional Framework
adopted, applying the same criteria, unless the UK and Ireland decide to opt
to the proposal after all.
It can be seen that these rules have effectively replaced the previous purported
obligation to opt in to any measure building upon those provisions of the
which the UK and Ireland already participate in. These rules also apply to
policing and criminal law provisions of the Schengen acquis, which the UK
Ireland currently participate in widely. Unlike the revised provisions ofthe
Protocol, the process ofexcluding the UK and Ireland from the underlying
ures is intended to be automatic, with the Council, the European Council,
the Commission called upon in turn to adopt the measure necessary to terminate
part ofthe UK's or Ireland's participation in the Schengen acquis.t"
82
2.2.5.1.4. Pre-existing third pillar measures
The fourth and final JHA opt-out applies, unlike the others, to the UK
not also to Ireland. It was inserted into the Treaties for the first time by
Treaty of Lisbon, and appears in the transitional Protocol which governs
ous aspects of the transition between the previous Treaty rules and the
the Treaty ofLisbon. This Protocol was already considered above as
rules on the legal effect of third pillar measures adopted before the entry
force of the Treaty of Lisbon ('pre-existing third pillar measures'), as
the Court ofJustice's jurisdiction over such acts,486 but it also contains a
rule permitting the UK to opt-out of the application of all pre-existing
pillar measures which have not been amended at the end of the five-year
sitional period applying to the Court's jurisdiction-so by 1 December
There is no possibility for the UK to invoke such an opt-out before or
that date."?
In order to invoke this opt-out, the UK would have to notify the '-"\.'UIJI\.l1
the latest' six months before the end ofthe transitional period (so by 1June
that it objects to the powers ofthe EU institutions (ie the Court ofJustice
Commission, as regards infringement proceedings) becoming applicable to
measures. This would trigger the non-application ofthe acts concerned.
opt-out would not apply to any post-Lisbon policing and criminal law acts,
any pre-existing third pillar measures which had been amended after the
into force of the Treaty ofLisbon, in which the UK participates.
As a consequence, the Council, by QMV on a Commission proposal
UK participation, 'shall determine the necessary consequential and transition,
arrangements'rt'" Also, the Council, acting by QMV on a Commission
with UK participation, 'may also adopt a decision determining that the
85Overview of the institutional framework
3, Schengen Protocol: see discussion below. The Treaty of Lisbon amended this Art
instead to the Danish Protocol as regards Danish participation in acts building upon the
acquis. 498 Arts 1-3.
4, which was subsequently renumbered Art 6 (but not amended) by the Treaty of
See 2.2.5.1.2 above, mutatis mutandis. 495 [1992] OJ C 348/1.
Danish Protocol also contains an opt-out relating to defence (originally Art 6 of the
renumbered Art 5 and amended by the Treaty of Lisbon), which is not further considAll
further references in this subsection are to the Danish Protocol unless otherwise
Denmark
non-participation of Denmark in JHA matters did not begin, as is often
thought, when a Decision of the Heads of State and Government (known as the
Edinburgh Decision) was adopted in 1992 to attempt to persuade Danish votto
support the Maastricht Treaty."?' In fact, Section D of this Decision stated
and without exception that 'Denmark will participate fully in
cooperation on justice and home affairs on the basis of the provisions of Title VI
Treaty on European Union' (referring to the original third pillar, which
the basis for most JHA cooperation at the time of the Maastricht Treaty).
Denmark did not object to JHA cooperation in principle, but rather to the idea
cooperation should take place within the framework of supranational
law (as it then was). This view was to have a substantial effect on the posiof
Denmark as regards JHA cooperation in the Treaty of Amsterdam, and
subsequently the Treaty of Lisbon.
order to exempt Denmark from JHA matters that were transferred to EC
by means ofthe Treaty ofAmsterdam, a general 'Protocol on the position on
(the 'Danish Protocol') governed Denmark's status as regards measures
concerning, inter alia, immigration, asylum, and civil law (the former Title IV
496 while the Schengen Protocol originally set out special rules for Denmark
the integration of that acquis into the EU legal order."? However, folthe
Treaty ofLisbon, all ofthe special rules relating to Denmark as regards
Schengen acquis appear in the Danish Protocol.
According to the Danish Protocol in its original form, Denmark was exempted
almost all Title IV EC measures.i'" except for measures determining a list
countries whose nationals require visas to cross the external borders of
Member States, or of measures determining a common visa forrnat,''?" as
of these issues were already within EC competence prior to the Treaty of
In the event that the following analysis is not correct, it should be noted
regards criminal law measures that any Council of Europe treaties which
been disapplied by the EU measures being repealed would then re-apply as
between the UK, Ireland, and the other Member States following the repeal of
EU measure."?'
Institutional Framework84
There is no express provision of the relevant Protocols addressing this issue.
However, it is strongly arguable that in this scenario, the measure concerned
would not be repealed as regards the UK or Ireland, and would therefore also
continue to bind the other Member States as regards their relations with
UK and Ireland. The drafters of the Treaty of Lisbon specifically considered
the issue of the termination of the participation of the UK and Ireland in
measures in which they already participate, and provided for two routes for
EU institutions to terminate the participation ofthose Member States in existmg
JHA measures, and one route for the UK to terminate its participation in
JHA measures unilaterally. Moreover, since the termination of participation
a Member State in an EU measure in which it already participates is a profound
departure from the priniciple of the uniform application of EU law, any
sibility of terminating that participation must be expressly and unambiguouslv
provided for. It will still remain open for the EU institutions to terminate
UK or Ireland's participation in a pre-existing measure which has been repealed
pursuant to the specific provisions ofthe revised Schengen and Title V Prot(DC(D!S,
or for the UK to terminate its participation in pre-existing third pillar measures
as from 1 December 2014, as discussed above, where the relevant conditions
met. But there is no additional unwritten rule allowing the UK or Ireland to
their participation in existing measures which have been repealed.
In one case, the Council has agreed to repeal an existingJHA measure
regards the Member States which participate in the measure repealing it,
the existing measure in force as regards the UK.493 If the interpretation
correct, this is not the exercise of an option for the participating Member
but merely a confirmation of their obligation, given that they presumably
wish to terminate the UK's participation in the prior legislation oh the grounds
that the application of two different regimes is 'inoperable'. The
appears to accept this interpretation.v'" It might be argued that it is not practical
leave one measure in force in only one or two Member States. But in fact the
ure concerned will still be in force as between the UK or Ireland and all
Member States, since the latter can only repeal their obligations to each
repealing the existing measure, unless they validly invoke the special rules
Title V or the Schengen Protocol to terminate the UK's or Ireland's partrcipation
in the prior measure. Those special rules were designed precisely to deal
practical issues that might result from the non-participation ofthe UK and
in a JHA measure, in light of their previous participation in a measure.
49J See the Council first-reading position on the proposed Reg on social security
country nationals (Council doc 11160/10,26July 2010). This measure must still be
EP before adoption.
493, 'Given that the United Kingdom will not take part in this proposal but will continue
[the prior Regulation], it is not possibleto repeal the latter completely.' (COM (2010) 448, 2 Sep
emphasis added).
85Overview of the institutional framework
3, Schengen Protocol: see discussion below. The Treaty of Lisbon amended this Art
instead to the Danish Protocol as regards Danish participation in acts building upon the
acquis. 498 Arts 1-3.
4, which was subsequently renumbered Art 6 (but not amended) by the Treaty of
See 2.2.5.1.2 above, mutatis mutandis. 495 [1992] OJ C 348/1.
Danish Protocol also contains an opt-out relating to defence (originally Art 6 of the
renumbered Art 5 and amended by the Treaty of Lisbon), which is not further considAll
further references in this subsection are to the Danish Protocol unless otherwise
Denmark
non-participation of Denmark in JHA matters did not begin, as is often
thought, when a Decision of the Heads of State and Government (known as the
Edinburgh Decision) was adopted in 1992 to attempt to persuade Danish votto
support the Maastricht Treaty."?' In fact, Section D of this Decision stated
and without exception that 'Denmark will participate fully in
cooperation on justice and home affairs on the basis of the provisions of Title VI
Treaty on European Union' (referring to the original third pillar, which
the basis for most JHA cooperation at the time of the Maastricht Treaty).
Denmark did not object to JHA cooperation in principle, but rather to the idea
cooperation should take place within the framework of supranational
law (as it then was). This view was to have a substantial effect on the posiof
Denmark as regards JHA cooperation in the Treaty of Amsterdam, and
subsequently the Treaty of Lisbon.
order to exempt Denmark from JHA matters that were transferred to EC
by means ofthe Treaty ofAmsterdam, a general 'Protocol on the position on
(the 'Danish Protocol') governed Denmark's status as regards measures
concerning, inter alia, immigration, asylum, and civil law (the former Title IV
496 while the Schengen Protocol originally set out special rules for Denmark
the integration of that acquis into the EU legal order."? However, folthe
Treaty ofLisbon, all ofthe special rules relating to Denmark as regards
Schengen acquis appear in the Danish Protocol.
According to the Danish Protocol in its original form, Denmark was exempted
almost all Title IV EC measures.i'" except for measures determining a list
countries whose nationals require visas to cross the external borders of
Member States, or of measures determining a common visa forrnat,''?" as
of these issues were already within EC competence prior to the Treaty of
In the event that the following analysis is not correct, it should be noted
regards criminal law measures that any Council of Europe treaties which
been disapplied by the EU measures being repealed would then re-apply as
between the UK, Ireland, and the other Member States following the repeal of
EU measure."?'
Institutional Framework84
There is no express provision of the relevant Protocols addressing this issue.
However, it is strongly arguable that in this scenario, the measure concerned
would not be repealed as regards the UK or Ireland, and would therefore also
continue to bind the other Member States as regards their relations with
UK and Ireland. The drafters of the Treaty of Lisbon specifically considered
the issue of the termination of the participation of the UK and Ireland in
measures in which they already participate, and provided for two routes for
EU institutions to terminate the participation ofthose Member States in existmg
JHA measures, and one route for the UK to terminate its participation in
JHA measures unilaterally. Moreover, since the termination of participation
a Member State in an EU measure in which it already participates is a profound
departure from the priniciple of the uniform application of EU law, any
sibility of terminating that participation must be expressly and unambiguouslv
provided for. It will still remain open for the EU institutions to terminate
UK or Ireland's participation in a pre-existing measure which has been repealed
pursuant to the specific provisions ofthe revised Schengen and Title V Prot(DC(D!S,
or for the UK to terminate its participation in pre-existing third pillar measures
as from 1 December 2014, as discussed above, where the relevant conditions
met. But there is no additional unwritten rule allowing the UK or Ireland to
their participation in existing measures which have been repealed.
In one case, the Council has agreed to repeal an existingJHA measure
regards the Member States which participate in the measure repealing it,
the existing measure in force as regards the UK.493 If the interpretation
correct, this is not the exercise of an option for the participating Member
but merely a confirmation of their obligation, given that they presumably
wish to terminate the UK's participation in the prior legislation oh the grounds
that the application of two different regimes is 'inoperable'. The
appears to accept this interpretation.v'" It might be argued that it is not practical
leave one measure in force in only one or two Member States. But in fact the
ure concerned will still be in force as between the UK or Ireland and all
Member States, since the latter can only repeal their obligations to each
repealing the existing measure, unless they validly invoke the special rules
Title V or the Schengen Protocol to terminate the UK's or Ireland's partrcipation
in the prior measure. Those special rules were designed precisely to deal
practical issues that might result from the non-participation ofthe UK and
in a JHA measure, in light of their previous participation in a measure.
49J See the Council first-reading position on the proposed Reg on social security
country nationals (Council doc 11160/10,26July 2010). This measure must still be
EP before adoption.
493, 'Given that the United Kingdom will not take part in this proposal but will continue
[the prior Regulation], it is not possibleto repeal the latter completely.' (COM (2010) 448, 2 Sep
emphasis added).
87Overview of the institutional framework
508 Art 8(1), inserted by the Treaty of Lisbon, referring to an Annex inserted by the Treaty of
This option is expressly 'without prejudice' to the possibility that Denmark can invoke Art 7
Protocol in order to relinquish any form ofJHA opt-out entirely.
509 Art 8(2), inserted by the Treaty ofLisbon.
510 Compare Art 3 of the Title V Protocol to Art 3 of the Annex to the Danish Protocol.
Art 6(1) of the Annex.
Art 6(2) of the Annex. Presumably the concept of 'building upon' such an act has the same
as 'building upon' the Schengen acquis (see 2.2.5.1.3 above).
513 Declaration 48 in the Final Act.
different set of rules, which is almost identical to the Title V opt-outs for the UK
and Ireland.t'" The only differences between the two opt-out rules are that first, if
Denmark chooses this option, the previous Schengen acquis and prior acts building
upon the Schengen acquis will apply fully to Denmark as EU law, rather than
international law, six months after the Danish decision takes effect.509
Second,
is no special rule on evaluations relating to Denmark.l" Also, the Annex to
Danish Protocol differs from the Protocol concerning the UK, Ireland, and
Schengen in that Denmark must make a decision on whether to apply measures
buudmg upon the Schengen acquis six months after their adoption; ifit does not,
participating Member States and Denmark 'will consider appropriate measto
be taken'i"! Furthermore, once Denmark opts in to a measure building
the Schengen acquis, it must opt in to any future measures that build upon
act to the extent that those future measures also build upon the Schengen
512 In practice, Denmark has not yet notified the other Member States that
wishes to apply the new opt-out rules. Ifit does so, obviously the new Danish
should be interpreted consistently with the UK and Irish opt-out rules,
mutandis.
In any event, there is a declaration to the Treaty of Lisbon concerning the
adoption ofacts which are partly applicable to Denmark and partly not applicable
that country, because they have a 'legal base' partly regarding JHA, pursuant
the Danish Protocol. In that case, 'Denmark declares that it will not use its
right to prevent the adoption of the provisions which are not applicable
Denmark'i'!'
One peculiarity of the Danish position is that in the absence of a possibilfor
Denmark to opt in to Title IV measures (now extended to all JHA
measures), the EC (as it then was) and Denmark were nevertheless willing in
cases to negotiate international treaties regarding Danish participaThese
treaties concern participation in measures concerning responsibilfor
asylum applications, civil and commercial jurisdiction, and service of
documents, which Denmark had applied or agreed to before the adoption of
Community acts on these subjects. The treaties require Denmark to apply the
Community acts, with minor amendments to the civil jurisdiction rules (but
to the other two measures); moreover the relevant jurisdiction of the Court
is applicable to Denmark, and has therefore been expanded pursuant
Institutional Framework86
500 On the interpretation of this clause in practice, see 4.2.5 below.
501 Arts 1-3. The Treaty of Lisbon amended Arts 1 and 2 to this end, and updated the
reference to the Council voting rules which apply when Denmark does not participate in
ures (see Art 238(3) TFEU). It also added a new Art 2a concerning data protection,
equivalent to a clause inserted into the Title V Protocol for the UK and Ireland (see
above).
502 Art 2, final sentence. Presumably the word 'amended' means amendments which are
after the Treaty of Lisbon entered into force, and also has the same meaning as it does in the
V Protocol relating to the UK and Ireland (2.2.5.1 above) and in the transitional Protocol to
Treaty ofLisbon (2.2.3.3 above). 50} Previous Art 3, Schengen
504 Art 5(1), renumbered Art 4(1) and amended by the Treaty of Lisbon as regards its
refer to all JHA measures which build on the Schengen acquis, not just measures within the
of the previous Title IV EC.
505 Art 5(2), renumbered Art 4(2) and amended by the Treaty ofLisbon to refer also to Denmark's
participation in any such decision. There is no indication of the voting rule applicable or
'appropriate measures' might entail. 506 See s 2.5 of chs 3-4 and
507 Art 7, not amended by the Treaty ofLisbon.
Amsterdam.v" In conjunction with the termination of the third pillar by the
Treaty of Lisbon, the Protocol was enlarged in scope by that Treaty to exempt
Denmark from policing and criminal law measures adopted after the entry into
force of that Treaty.r'" Third pillar acts adopted before the entry into force of the
Treaty of Lisbon 'which are amended shall continue to be binding upon and
applicable to Denmark unchanged'.502
There are special rules relating to Denmark's continued connection with the
Schengen acquis. First ofall, the Schengen Protocol originally provided that those
provisions of the acquis that were allocated to Title IV of the EC Treaty following
the Treaty of Amsterdam (ie immigration provisions of the Schengen acquis)
still continued to have the effect ofpublic international law, rather than EC
in Denrnark.t'" However, this rule was deleted by the Treaty of Lisbon. As for
measures which build upon the Schengen acquis and also fall within the scope
Title V TFEU, Denmark has six months to decide whether to apply each
measure within its national Iaw.r'" If it does so, this decision creates 'an
tion under international law' between Denmark and the other Member
participating in the measure. IfDenmark fails to apply such a measure, the
Schengen States and Denmark 'will consider appropriate measures to be taken'.
In practice, Denmark has consistently opted into all such measures building
the Schengen acquis.i'"
Otherwise, unlike the UK or Ireland, Denmark does not have the ability
opt in to specific JHA measures, either when they are initially adopted or
later date. If Denmark wishes to change this position, initially, the Protocol
gave Denmark the possibility of denouncing 'all or part' of the Danish Protocol,
in which case it has to immediately apply all measures adopted in the relevn nt
field without any need for the Commission or Council to approve its intention
to apply those measures.r'" The Treaty of Lisbon now gives Denmark a
option: it may decide to replace the rules concerning its JHA opt-out
87Overview of the institutional framework
508 Art 8(1), inserted by the Treaty of Lisbon, referring to an Annex inserted by the Treaty of
This option is expressly 'without prejudice' to the possibility that Denmark can invoke Art 7
Protocol in order to relinquish any form ofJHA opt-out entirely.
509 Art 8(2), inserted by the Treaty ofLisbon.
510 Compare Art 3 of the Title V Protocol to Art 3 of the Annex to the Danish Protocol.
Art 6(1) of the Annex.
Art 6(2) of the Annex. Presumably the concept of 'building upon' such an act has the same
as 'building upon' the Schengen acquis (see 2.2.5.1.3 above).
513 Declaration 48 in the Final Act.
different set of rules, which is almost identical to the Title V opt-outs for the UK
and Ireland.t'" The only differences between the two opt-out rules are that first, if
Denmark chooses this option, the previous Schengen acquis and prior acts building
upon the Schengen acquis will apply fully to Denmark as EU law, rather than
international law, six months after the Danish decision takes effect.509
Second,
is no special rule on evaluations relating to Denmark.l" Also, the Annex to
Danish Protocol differs from the Protocol concerning the UK, Ireland, and
Schengen in that Denmark must make a decision on whether to apply measures
buudmg upon the Schengen acquis six months after their adoption; ifit does not,
participating Member States and Denmark 'will consider appropriate measto
be taken'i"! Furthermore, once Denmark opts in to a measure building
the Schengen acquis, it must opt in to any future measures that build upon
act to the extent that those future measures also build upon the Schengen
512 In practice, Denmark has not yet notified the other Member States that
wishes to apply the new opt-out rules. Ifit does so, obviously the new Danish
should be interpreted consistently with the UK and Irish opt-out rules,
mutandis.
In any event, there is a declaration to the Treaty of Lisbon concerning the
adoption ofacts which are partly applicable to Denmark and partly not applicable
that country, because they have a 'legal base' partly regarding JHA, pursuant
the Danish Protocol. In that case, 'Denmark declares that it will not use its
right to prevent the adoption of the provisions which are not applicable
Denmark'i'!'
One peculiarity of the Danish position is that in the absence of a possibilfor
Denmark to opt in to Title IV measures (now extended to all JHA
measures), the EC (as it then was) and Denmark were nevertheless willing in
cases to negotiate international treaties regarding Danish participaThese
treaties concern participation in measures concerning responsibilfor
asylum applications, civil and commercial jurisdiction, and service of
documents, which Denmark had applied or agreed to before the adoption of
Community acts on these subjects. The treaties require Denmark to apply the
Community acts, with minor amendments to the civil jurisdiction rules (but
to the other two measures); moreover the relevant jurisdiction of the Court
is applicable to Denmark, and has therefore been expanded pursuant
Institutional Framework86
500 On the interpretation of this clause in practice, see 4.2.5 below.
501 Arts 1-3. The Treaty of Lisbon amended Arts 1 and 2 to this end, and updated the
reference to the Council voting rules which apply when Denmark does not participate in
ures (see Art 238(3) TFEU). It also added a new Art 2a concerning data protection,
equivalent to a clause inserted into the Title V Protocol for the UK and Ireland (see
above).
502 Art 2, final sentence. Presumably the word 'amended' means amendments which are
after the Treaty of Lisbon entered into force, and also has the same meaning as it does in the
V Protocol relating to the UK and Ireland (2.2.5.1 above) and in the transitional Protocol to
Treaty ofLisbon (2.2.3.3 above). 50} Previous Art 3, Schengen
504 Art 5(1), renumbered Art 4(1) and amended by the Treaty of Lisbon as regards its
refer to all JHA measures which build on the Schengen acquis, not just measures within the
of the previous Title IV EC.
505 Art 5(2), renumbered Art 4(2) and amended by the Treaty ofLisbon to refer also to Denmark's
participation in any such decision. There is no indication of the voting rule applicable or
'appropriate measures' might entail. 506 See s 2.5 of chs 3-4 and
507 Art 7, not amended by the Treaty ofLisbon.
Amsterdam.v" In conjunction with the termination of the third pillar by the
Treaty of Lisbon, the Protocol was enlarged in scope by that Treaty to exempt
Denmark from policing and criminal law measures adopted after the entry into
force of that Treaty.r'" Third pillar acts adopted before the entry into force of the
Treaty of Lisbon 'which are amended shall continue to be binding upon and
applicable to Denmark unchanged'.502
There are special rules relating to Denmark's continued connection with the
Schengen acquis. First ofall, the Schengen Protocol originally provided that those
provisions of the acquis that were allocated to Title IV of the EC Treaty following
the Treaty of Amsterdam (ie immigration provisions of the Schengen acquis)
still continued to have the effect ofpublic international law, rather than EC
in Denrnark.t'" However, this rule was deleted by the Treaty of Lisbon. As for
measures which build upon the Schengen acquis and also fall within the scope
Title V TFEU, Denmark has six months to decide whether to apply each
measure within its national Iaw.r'" If it does so, this decision creates 'an
tion under international law' between Denmark and the other Member
participating in the measure. IfDenmark fails to apply such a measure, the
Schengen States and Denmark 'will consider appropriate measures to be taken'.
In practice, Denmark has consistently opted into all such measures building
the Schengen acquis.i'"
Otherwise, unlike the UK or Ireland, Denmark does not have the ability
opt in to specific JHA measures, either when they are initially adopted or
later date. If Denmark wishes to change this position, initially, the Protocol
gave Denmark the possibility of denouncing 'all or part' of the Danish Protocol,
in which case it has to immediately apply all measures adopted in the relevn nt
field without any need for the Commission or Council to approve its intention
to apply those measures.r'" The Treaty of Lisbon now gives Denmark a
option: it may decide to replace the rules concerning its JHA opt-out
to the Treaty of Lisbon.514 Denmark may refuse to apply subsequent measures
amending or implementing the EC acts, but in such cases, the relevant treaty
will be terminated.
89Overview of the institutional framework
519 Art 3(4), Act ofAccession. 520 Art 5(2), Act ofAccession.
For details on these treaties, see 2.7.2 below.
For ratification details, see Appendix I. 523 Art 34, Act ofAccession.
Art 35, Act ofAccession. 525 Art 39, Act ofAccession.
Protocol 3 to the Act ofAccession.
See Art 20 of the Act ofAccession, which gives effect to Annex 11.
[2007J OJL 323/34.
indicated whether it applied immediately or after a delay to the new Member
The Act ofAccession also provided that the new Member States had to accede
JHA conventions or instruments 'which are inseparable from the attainment
the objectives of' the EU Treaty.?" whether those measures were opened for
signature by the old Member States or drawn up by the Council in accordance
Title VI of the EU Treaty (ie the old third pillar); the new Member States
had to take the administrative and other measures necessary to facilitate JHA
Similarly, the new Member States had to accede to Conventions
up on the basis ofArticle 293 EC (since repealed by the Treaty ofLisbon)
those inseparable from the objectives of the EC Treaty.F" They also had to
to treaties established on the basis of Article 38 EU (external third piltreatiesj.F'
In practice, the new Member States quickly ratified a significant
number of Conventions and Proto cols, although this ratification process is not
complete.Y'
the Act of Accession provided that until the end of 2006, there were
transinonal funds to assist with the application of EU law including, inter alia,
.;tSSlst;ln(;e to implement JHA obligarions.v" along with a specific facility to assist
Member States with external land borders to apply their Schengen obligaby
funding buildings, equipment, and training.F"
specific JHA safeguard is set out in the Act, providing that for three years
the date of accession (so up until 1 May 2007), the Commission could have
'appropriate measures' if there had been insufficient application of a measconcerning
mutual recognition in civil law or criminal law by a new Member
525 In practice, this safeguard clause was not applied. Also, a Protocol relating
UK's military base on the island ofCyprus contains specific rules on border
."""u.v,.526 Finally, Annex II to the Act of Accession contains a list of technical
to existing measures made necessary by accession.v" Point 18 of
lists amendments to JHA civil law measures; the Common Consular
nstructions (concerning Schengen visa applications); the Border Manual (for use
101I."Cl.U'" border guards); and the EC's visa list Regulation.
Iltirnatelv nine ofthe ten Member States to join the EU in 2004 participated
full Schengen system as from December 2007, and from March 2008 as
air borders.v" Only Cyprus was left out ofthe extension ofthe Schengen
because of the practical difficulties controlling the borders as long as the
Institutional Framework88
2.2.5.3. Accession States
The Schengen Protocol specifies that all future Member States were to be
by the entire Schengen acquisi" This was implemented first of all by the
Accession Trcaty.?" which specifies that the ten new Member States
the EU pursuant to that Treaty applied as from the date ofaccession (1 May
the measures in the acquis as integrated into the EC and EU Treaties 'and
building on it or otherwise related to it', as referred to in Article 3(1) of the
of Accession and listed in Annex 1 to the Act, along with other such measures
adopted between agreement of the Accession Treaty and the date of accession..
However, there was a delay in applying the remaining provisions ofthe Scheng;en
acquis (or measures building upon it).517 Those measures were binding on the
Member States as from 1 May 2004, but did not apply until a unanimous r >:••• _.~"
decision by the representatives ofthe Member States fully applying the Schengen
acquis at that time and the Member State(s) seeking to participate fully. The
and Ireland participated in that decision to the extent that they had opted in
the acquis. The Act of Accession further provides that the agreements associating
Norway and Iceland with the Schengen rules, as referred to in the Schengen
Protocol, were binding on the new Member States as from the date
accession to the EU.5IB
More precisely, the provisions ofthe Schengen acquis and the measures
ing upon it which applied as from 1 May 2004 in the new Member States are
rules on: external border controls (except for checks in the SIS); certain
of visas (particularly the visa list and visa format); irregular migration; poucmg
(other than hot pursuit and surveillance); criminal law cooperation (except
references to the SIS); drugs; firearms; and data protection (to the extent that
other Schengen rules apply).
Conversely, the rules on abolition of internal border controls; other
of the common visa policy; freedom to travel; cross-border hot pursuit and
veillance by police officers; and the SIS did not apply in practice until the
Council decision. As for Schengen-related measures adopted after agreement
the Accession Treaty, and subsequently adopted after accession, each measure
514 For the text of the treaties, see [2006J OJ L 66/38 (asylum responsibility); [2005J OJ
(jurisdiction rules); and [2005] OJ L 300/53 (service of documents). The asylum treaty
into force on 1 Apr 2006 ([2006] OJ L 96/9), and the civil law treaties entered into force
2007. 515 Art 8, Schengen Protocol, renumbered Art 7 by the Treaty
516 [2003J OJ L 236/33 (Act ofAccession). 517 Art 3(2), Act ofAccession, ibid.
518 Art 3(3), Act of Accession.
to the Treaty of Lisbon.514 Denmark may refuse to apply subsequent measures
amending or implementing the EC acts, but in such cases, the relevant treaty
will be terminated.
89Overview of the institutional framework
519 Art 3(4), Act ofAccession. 520 Art 5(2), Act ofAccession.
For details on these treaties, see 2.7.2 below.
For ratification details, see Appendix I. 523 Art 34, Act ofAccession.
Art 35, Act ofAccession. 525 Art 39, Act ofAccession.
Protocol 3 to the Act ofAccession.
See Art 20 of the Act ofAccession, which gives effect to Annex 11.
[2007J OJL 323/34.
indicated whether it applied immediately or after a delay to the new Member
The Act ofAccession also provided that the new Member States had to accede
JHA conventions or instruments 'which are inseparable from the attainment
the objectives of' the EU Treaty.?" whether those measures were opened for
signature by the old Member States or drawn up by the Council in accordance
Title VI of the EU Treaty (ie the old third pillar); the new Member States
had to take the administrative and other measures necessary to facilitate JHA
Similarly, the new Member States had to accede to Conventions
up on the basis ofArticle 293 EC (since repealed by the Treaty ofLisbon)
those inseparable from the objectives of the EC Treaty.F" They also had to
to treaties established on the basis of Article 38 EU (external third piltreatiesj.F'
In practice, the new Member States quickly ratified a significant
number of Conventions and Proto cols, although this ratification process is not
complete.Y'
the Act of Accession provided that until the end of 2006, there were
transinonal funds to assist with the application of EU law including, inter alia,
.;tSSlst;ln(;e to implement JHA obligarions.v" along with a specific facility to assist
Member States with external land borders to apply their Schengen obligaby
funding buildings, equipment, and training.F"
specific JHA safeguard is set out in the Act, providing that for three years
the date of accession (so up until 1 May 2007), the Commission could have
'appropriate measures' if there had been insufficient application of a measconcerning
mutual recognition in civil law or criminal law by a new Member
525 In practice, this safeguard clause was not applied. Also, a Protocol relating
UK's military base on the island ofCyprus contains specific rules on border
."""u.v,.526 Finally, Annex II to the Act of Accession contains a list of technical
to existing measures made necessary by accession.v" Point 18 of
lists amendments to JHA civil law measures; the Common Consular
nstructions (concerning Schengen visa applications); the Border Manual (for use
101I."Cl.U'" border guards); and the EC's visa list Regulation.
Iltirnatelv nine ofthe ten Member States to join the EU in 2004 participated
full Schengen system as from December 2007, and from March 2008 as
air borders.v" Only Cyprus was left out ofthe extension ofthe Schengen
because of the practical difficulties controlling the borders as long as the
Institutional Framework88
2.2.5.3. Accession States
The Schengen Protocol specifies that all future Member States were to be
by the entire Schengen acquisi" This was implemented first of all by the
Accession Trcaty.?" which specifies that the ten new Member States
the EU pursuant to that Treaty applied as from the date ofaccession (1 May
the measures in the acquis as integrated into the EC and EU Treaties 'and
building on it or otherwise related to it', as referred to in Article 3(1) of the
of Accession and listed in Annex 1 to the Act, along with other such measures
adopted between agreement of the Accession Treaty and the date of accession..
However, there was a delay in applying the remaining provisions ofthe Scheng;en
acquis (or measures building upon it).517 Those measures were binding on the
Member States as from 1 May 2004, but did not apply until a unanimous r >:••• _.~"
decision by the representatives ofthe Member States fully applying the Schengen
acquis at that time and the Member State(s) seeking to participate fully. The
and Ireland participated in that decision to the extent that they had opted in
the acquis. The Act of Accession further provides that the agreements associating
Norway and Iceland with the Schengen rules, as referred to in the Schengen
Protocol, were binding on the new Member States as from the date
accession to the EU.5IB
More precisely, the provisions ofthe Schengen acquis and the measures
ing upon it which applied as from 1 May 2004 in the new Member States are
rules on: external border controls (except for checks in the SIS); certain
of visas (particularly the visa list and visa format); irregular migration; poucmg
(other than hot pursuit and surveillance); criminal law cooperation (except
references to the SIS); drugs; firearms; and data protection (to the extent that
other Schengen rules apply).
Conversely, the rules on abolition of internal border controls; other
of the common visa policy; freedom to travel; cross-border hot pursuit and
veillance by police officers; and the SIS did not apply in practice until the
Council decision. As for Schengen-related measures adopted after agreement
the Accession Treaty, and subsequently adopted after accession, each measure
514 For the text of the treaties, see [2006J OJ L 66/38 (asylum responsibility); [2005J OJ
(jurisdiction rules); and [2005] OJ L 300/53 (service of documents). The asylum treaty
into force on 1 Apr 2006 ([2006] OJ L 96/9), and the civil law treaties entered into force
2007. 515 Art 8, Schengen Protocol, renumbered Art 7 by the Treaty
516 [2003J OJ L 236/33 (Act ofAccession). 517 Art 3(2), Act ofAccession, ibid.
518 Art 3(3), Act of Accession.
country is divided. However, Cyprus has expressed an intention of applying the
provisions of the Schengen acquis relating to visas; the Council has not yet acted
on this request.F? Specific issues relating to northern Cyprus have also arisen as
regards the territorial scope of the EU's civil law legislation.F"
The model set out in the 2003 Treaty ofAccession was largely copied in the
2005 Treaty of Accession with Romania and Bulgaria, in force from 1 January
2007, except that this time most JHA Conventions applied to the new Member
States from a date decided by the Council, acting unanimously.531 Again the special
JHA safeguard was not applied within its three-year period of applicability.532
91Overview of th.e institutional framework
upon the acquis, the treaty is terminated regarding them, although the Mixed
Committee may decide to retain it in force. 538 The parties must keep the judgments
of the Court ofJustice, and of Norwegian and Icelandic courts, under
review.F" If a 'substantial difference' develops in judicial interpretation
national application of the agreement, and the Mixed Committee cannot
a measure to ensure uniform interpretation or application of the treaty,
if a dispute relating to the agreement otherwise develops, then the Mixed
has a fixed period to settle the dispute, otherwise the agreement
terminated.v'?
It is striking that this treaty, in accordance with the Schengen Protocol, was
negotiated by the Council, not the Commission, which normally negotiates treaon
behalf of the EC. Moreover, although the treaty was concluded by the
,-,'JU"U', it is not clear whether the treaty also binds the EU as such, although the
does state that it creates obligations for the Community and its Member
541 It is not clear whether the Court ofJustice has jurisdiction to interthe
agreement as far as the Community, the Union, or both is concerned,
in one judgment the Court's jurisdiction as regards the third pillar
provisions of the treaty was assumed.v"
practice, the treaty has entailed Norwegian and Icelandic acceptance ofmost
IXJ.,ea~;U1:es concerning visas, border control, and irregular migration, and certain
concerning policing and criminal law. 543 Also, Norway and Iceland
a similar treaty on asylum responsibility, paralleling the EU Member
Dublin Convention, which entered into force in March 2001 at the same
that their Schengen association agreement was applied.r" Furthermore,
States ultimately agreed to further treaties associating them with the EU's
assistance Convention and Protocol.-" the surrender of fugitives (a verof
the EU's European arrest warrant);546 the 'Prum Decision' relating to
cooperation.>" the borders agency (Prontexj.>" the EU's borders funds
Art 8 of the treaty. 539 Art 9 of the treaty. 540 Arts 10 and 11 of the treaty.
8(3) and 15(4) ofthe treaty. On the issue ofEU legal personality, see 2.7 below.
C-436/04 Van Esbroek[2006] ECR 1-2333.
See s 2.5 of chs 3-4,6-7, and 9-12 below. 544 [2001] OJ L 93/38. See 5.2.5 below.
OJ L 26/1. The treaty has not yet entered into force. The Commission proposed its
the entry into force of the Treaty ofLisbon (COM (2009) 704,17 Dec 2009). See
9.2.5 below.
[2006] OJ L 292/1. The treaty has not yet entered into force. The Commission proposed its
.conclusion after the entry into force of the Treaty of Lisbon (COM (2009) 705,17 Dec 2009). See
.turther '~.'2." below.
OJ L 353/1. The treaty has been signed and applies provisionally, but has not yet entered
(the EU concluded the treaty in July 2010, but the associated states have not ratified it
12.2.5 below.
L 188/19. The treaty has not yet entered into force, but is being applied
Institutional Framework90
2.2.5.4. Norway, Iceland, Switzerland, and Liechtenstein
As noted above, Norway and Iceland are in a distinct position as non-EU
whose participation in the Schengen rules was necessary if Sweden, Denmark,
and Finland were to be able to participate in Schengen, because none of these
States wished to relinquish the existing Nordic Passport Union. In fact, I"J()TVITOV
and Iceland had already agreed to an association agreement with the Scnengen
States before the Treaty of Amsterdam was signed.v" The Schengen Protocol
therefore provided for conclusion of a replacement association agreement
Norway and Iceland, as well as for a separate agreement with those States
cerning UK and Irish participation in the Schengen rules.>" These treaties
agreed in 1999,535 and the Schengen area was extended to Norway and Iceland
March 2001, at the same time it was extended to Nordic EU Member States.
The Schengen association treaty requires Norway and Iceland to
the Schengen acquis, including EC measures related to the acquis, as it
in spring 1999. A Mixed Committee established by the treaty is a
for discussions about implementation of the acquis and concerning measures
building upon it. 537
If Norway or Iceland do not accept a measure buudmg
529 See 4.2.5 below.
530 Case C-420/07 Apostolides[2009] ECR 1-3571; see further 8.2.5 below.
531 Art 3 and Annex I to Act of Accession ([2005] OJ L 157/203). In practice, the
extended the application ofall relevant Conventions to Romania and Bulgaria by the end
[2007] OJ L 200/47 (Europol); [2007] OJ L 307/20 (CIS); [2008] OJ L 9/23 (anti-fraud Convention);
[2007] OJ L 304/34 (corruption); [2008] OJ L 9/21 (Naples Il); [2007] OJ L 307/18 (mutual
ance); [2007] OJ L 307/22 (driving disqualification); and [2007] OJ L 347/1 (Rome Convention)
532 Art 38 ofthe Act ofAccession (ibid). There were regular reports from the Commission on
application by Romania and Bulgaria of, inter alia, standards regarding judicial reform. The
recent reports are in COM (2010) 112 and 113, 23 Mar 2010.
533 Council doe 11780/97, 28 Oct 1997.
534 Art 6, Schengen Protocol. The Treaty of Lisbon made a minor amendment to this
delete a reference to the pre-Amsterdam association treaty with Norway and Iceland (ibid).
535 See respectively [1999] OJ L 176/35 and [2000] OJ LIS/I; both treaties entered into
on 26 June 2000 ([2000] OJ L 149/36). See also a Decision on implementation of the first
(Decision 1999/437/EC, [1999] OJ L 176/31). 536 Decision 2000/777 ([2000] OJ L
537 Arts 2-5 of the treaty; and see Decision 1/99 of the Mixed Committee, adopting its rules
dure ([1999] OJ C 211/9). These rules were later amended by Decision 1/2004 ([2004] OJ C
country is divided. However, Cyprus has expressed an intention of applying the
provisions of the Schengen acquis relating to visas; the Council has not yet acted
on this request.F? Specific issues relating to northern Cyprus have also arisen as
regards the territorial scope of the EU's civil law legislation.F"
The model set out in the 2003 Treaty ofAccession was largely copied in the
2005 Treaty of Accession with Romania and Bulgaria, in force from 1 January
2007, except that this time most JHA Conventions applied to the new Member
States from a date decided by the Council, acting unanimously.531 Again the special
JHA safeguard was not applied within its three-year period of applicability.532
91Overview of th.e institutional framework
upon the acquis, the treaty is terminated regarding them, although the Mixed
Committee may decide to retain it in force. 538 The parties must keep the judgments
of the Court ofJustice, and of Norwegian and Icelandic courts, under
review.F" If a 'substantial difference' develops in judicial interpretation
national application of the agreement, and the Mixed Committee cannot
a measure to ensure uniform interpretation or application of the treaty,
if a dispute relating to the agreement otherwise develops, then the Mixed
has a fixed period to settle the dispute, otherwise the agreement
terminated.v'?
It is striking that this treaty, in accordance with the Schengen Protocol, was
negotiated by the Council, not the Commission, which normally negotiates treaon
behalf of the EC. Moreover, although the treaty was concluded by the
,-,'JU"U', it is not clear whether the treaty also binds the EU as such, although the
does state that it creates obligations for the Community and its Member
541 It is not clear whether the Court ofJustice has jurisdiction to interthe
agreement as far as the Community, the Union, or both is concerned,
in one judgment the Court's jurisdiction as regards the third pillar
provisions of the treaty was assumed.v"
practice, the treaty has entailed Norwegian and Icelandic acceptance ofmost
IXJ.,ea~;U1:es concerning visas, border control, and irregular migration, and certain
concerning policing and criminal law. 543 Also, Norway and Iceland
a similar treaty on asylum responsibility, paralleling the EU Member
Dublin Convention, which entered into force in March 2001 at the same
that their Schengen association agreement was applied.r" Furthermore,
States ultimately agreed to further treaties associating them with the EU's
assistance Convention and Protocol.-" the surrender of fugitives (a verof
the EU's European arrest warrant);546 the 'Prum Decision' relating to
cooperation.>" the borders agency (Prontexj.>" the EU's borders funds
Art 8 of the treaty. 539 Art 9 of the treaty. 540 Arts 10 and 11 of the treaty.
8(3) and 15(4) ofthe treaty. On the issue ofEU legal personality, see 2.7 below.
C-436/04 Van Esbroek[2006] ECR 1-2333.
See s 2.5 of chs 3-4,6-7, and 9-12 below. 544 [2001] OJ L 93/38. See 5.2.5 below.
OJ L 26/1. The treaty has not yet entered into force. The Commission proposed its
the entry into force of the Treaty ofLisbon (COM (2009) 704,17 Dec 2009). See
9.2.5 below.
[2006] OJ L 292/1. The treaty has not yet entered into force. The Commission proposed its
.conclusion after the entry into force of the Treaty of Lisbon (COM (2009) 705,17 Dec 2009). See
.turther '~.'2." below.
OJ L 353/1. The treaty has been signed and applies provisionally, but has not yet entered
(the EU concluded the treaty in July 2010, but the associated states have not ratified it
12.2.5 below.
L 188/19. The treaty has not yet entered into force, but is being applied
Institutional Framework90
2.2.5.4. Norway, Iceland, Switzerland, and Liechtenstein
As noted above, Norway and Iceland are in a distinct position as non-EU
whose participation in the Schengen rules was necessary if Sweden, Denmark,
and Finland were to be able to participate in Schengen, because none of these
States wished to relinquish the existing Nordic Passport Union. In fact, I"J()TVITOV
and Iceland had already agreed to an association agreement with the Scnengen
States before the Treaty of Amsterdam was signed.v" The Schengen Protocol
therefore provided for conclusion of a replacement association agreement
Norway and Iceland, as well as for a separate agreement with those States
cerning UK and Irish participation in the Schengen rules.>" These treaties
agreed in 1999,535 and the Schengen area was extended to Norway and Iceland
March 2001, at the same time it was extended to Nordic EU Member States.
The Schengen association treaty requires Norway and Iceland to
the Schengen acquis, including EC measures related to the acquis, as it
in spring 1999. A Mixed Committee established by the treaty is a
for discussions about implementation of the acquis and concerning measures
building upon it. 537
If Norway or Iceland do not accept a measure buudmg
529 See 4.2.5 below.
530 Case C-420/07 Apostolides[2009] ECR 1-3571; see further 8.2.5 below.
531 Art 3 and Annex I to Act of Accession ([2005] OJ L 157/203). In practice, the
extended the application ofall relevant Conventions to Romania and Bulgaria by the end
[2007] OJ L 200/47 (Europol); [2007] OJ L 307/20 (CIS); [2008] OJ L 9/23 (anti-fraud Convention);
[2007] OJ L 304/34 (corruption); [2008] OJ L 9/21 (Naples Il); [2007] OJ L 307/18 (mutual
ance); [2007] OJ L 307/22 (driving disqualification); and [2007] OJ L 347/1 (Rome Convention)
532 Art 38 ofthe Act ofAccession (ibid). There were regular reports from the Commission on
application by Romania and Bulgaria of, inter alia, standards regarding judicial reform. The
recent reports are in COM (2010) 112 and 113, 23 Mar 2010.
533 Council doe 11780/97, 28 Oct 1997.
534 Art 6, Schengen Protocol. The Treaty of Lisbon made a minor amendment to this
delete a reference to the pre-Amsterdam association treaty with Norway and Iceland (ibid).
535 See respectively [1999] OJ L 176/35 and [2000] OJ LIS/I; both treaties entered into
on 26 June 2000 ([2000] OJ L 149/36). See also a Decision on implementation of the first
(Decision 1999/437/EC, [1999] OJ L 176/31). 536 Decision 2000/777 ([2000] OJ L
537 Arts 2-5 of the treaty; and see Decision 1/99 of the Mixed Committee, adopting its rules
dure ([1999] OJ C 211/9). These rules were later amended by Decision 1/2004 ([2004] OJ C
93Overview of the institutional framework
revised TEU, first sub-paragraph. AllJHA matters are shared competences, and so
non-exclusive: see Art 4(2)U) TFEU and the discussion in 2.2.4 above.
20(2), revised TED.
Art 20(1), revised TEU, second sub-paragraph, and Arts 326 and 327 TFEU.
See Arts 11 and 11. EC and Arts 43-45, previous TEU. There were specific rules for the third
in the prior Arts 40, 40a, and 40b TED. 559 See 2.2.5.1 above.
See 2.2.3.4.1 above. 56! On the substance of the Rome III proposal, see S.6 below.
20, revised TEU and Arts 326-334 TFED. There remain some distinct rules for foreign
enhanced cooperation, which are not considered further here (Arts 32S(2), 329(2), and 331(2)
General rules on enhanced cooperation
'J'.U'-L'U provisions on 'enhanced cooperation', ie the process of some Member
'participating in EU measures without some other Member States, were first
introduced in the Treaty of Amsterdam, and these provisions were amended by
Treaty of Nice.558 These rules were never in fact used, except in the context
UK and Ireland opting in to immigration, asylum, and civil law measures
those measures had already been adopted.i" However, it is striking to note
there were two attempts to use these provisions in the JHA area: as regards a
proposal on criminal suspects' rights, where enhanced cooperation failed because
were insufficient votes in the Council to support authorization ofenhanced
cooperation when the issue was raised informallyr''" and as regards the 'Rome Ill'
proposal for choice oflaw on divorce, because the Commission did not respond,
the Treaty ofLisbon entered into force, to a group ofMember States which
requested authorization for enhanced cooperation.t'"
The Treaty of Lisbon subsequently amended the enhanced cooperation rules
inter alia, in order to merge the separate rules governing the former first
pillars.r'" The basic rule is that a group ofMember States may establish
enhanced cooperation among themselves, within the context of the EU's non"""rlll"i",,,
competences, by 'applying the relevant provisions of the Treaties'Y" In
words, once enhanced cooperation has been approved, the normal rules on
competence and decision-making (for example, unanimity as regards family law
will apply. Enhanced cooperation is authorized by the Council 'as a
resort, when it has established that the objectives of such cooperation cannot
attained within a reasonable period by the Union as a whole', and at least nine
States must participate.t'" Furthermore, enhanced cooperation must:
to further the objectives of the Union, protect its interests and reinforce its
rntegration process'; 'comply with the Treaties and Union law'; not 'undermine'
rnternai market or 'distort' competition, etc; and 'respect the competences,
and obligations ofthose Member States which do not participate in it'. But
the non-participants 'shall not impede its implementation by the parncipating
Member States'.565The Treaties are silent on the question of enhanced
cooperation outsidethe EU legal framework, but of course there are prior examtaking
place (the Schengen and Prum Conventions). It should follow
Institutional Framework92
549 [2010] OJ L 169122. The treaty has been signed, but is not yet in force.
550 COM (2009) 605 and 606, 30 Oct 2009. The Council has agreed to sign this treaty, but it
not yet entered into force.
551 [200S] OJ L 53/13 and 52. On the date of entry into force, see [200S] OJ L 53/1S.
5S2 [200S] OJ L 327/15 (Decision on full extension ofSchengen acquis). For the rules ofprocedure
of the Mixed Committee, see [2004] OJ C 30S/2.
553 As regards asylum responsibility, the EC (now EU) also had to be party to this parallel
alongside Switzerland and Liechtenstein. This treaty is in force as between the EU and Switzerland
([2009] OJ L 191/6).
554 Arts 7(5) 13, 15, 16, and 18 ofthe Schengen treaty and Arts 11 and 14-16 ofthe asylum
sibility treaty. On the specific legislation which Switzerland applies, see s 2.5 of chs 3-7 and
555 COM (2006) 752-754, 1 and 4 Dec 2006. The Protocols were signed in 200S
L 83/3 and 5 as regards the Schengen Protocols; the signature relating to the Protocol on
responsibility was not published). Following the entry into force of the Treaty of
Protocol will be approved in the form of two revised Council decisions: see Council doc
26 Apr 2010. See also the amendment to the EU/Switzerland (Schengen) Mixed Committee
of procedure ([200S] OJ L S3/37).
556 COM (2009) 255, 4June 2009. The treaty entered into force between the EU and Switzerland
on 1 Aug 2010, but has not yet entered into force between the EU and Liechtenstein.
557 [2010] OJ L 169122 and COM (2009) 605 and 606 (nn 549 and 550 above).
legislation.v'" and participation in comitology committees connected to the
Schengen acquis.55o
As for Switzerland, it agreed a treaty associating itself with the Schengen
acquis in 2004, along with a parallel treaty on its application of the EU's asylum
responsibility rules; these treaties entered into force on 1 March 200S,551 and
were applied as from 12 December 200S (29 March 2009 as regards Schengen
air bordersl.Y" These two agreements are essentially identical to the Schengen
and asylum responsibility agreements with Norway and Iceland, except that:
the Schengen treaty is expressly with the Community and Union (and creates
obligations for the EC, the EU, and Member States); Liechtenstein may accede
to either treaty; there is an obligation to negotiate parallel treaties with Denmark
(as regards matters within the scope of the former Title IV of the EC Treaty),553
Norway, and Iceland; Switzerland is not obliged to apply a particular rule relating
to mutual criminal assistance; and the Schengen and asylum responsibility
treaties are linked (denunciation of one will terminate the application of the
other one).554 A Protocol concerning accession of Liechtenstein to these treaties
was agreed in 2006, but is not yet in force. 555Also, Switzerland and Liechtenstein
have agreed a treaty with the EC concerning their relationship with Frontex
(paralleling the agreement with Norway and Iceland on this subject),556 and are
also parties to the treaties concerning association with the Borders Funds
comitology committees.v" However, unlike Norway and Iceland, Switzerland
and Liechtenstein have not agreed any further treaties relating to mutual assistance,
the surrender procedure, or the Prum Decision on police cooperation
with the ED.
93Overview of the institutional framework
revised TEU, first sub-paragraph. AllJHA matters are shared competences, and so
non-exclusive: see Art 4(2)U) TFEU and the discussion in 2.2.4 above.
20(2), revised TED.
Art 20(1), revised TEU, second sub-paragraph, and Arts 326 and 327 TFEU.
See Arts 11 and 11. EC and Arts 43-45, previous TEU. There were specific rules for the third
in the prior Arts 40, 40a, and 40b TED. 559 See 2.2.5.1 above.
See 2.2.3.4.1 above. 56! On the substance of the Rome III proposal, see S.6 below.
20, revised TEU and Arts 326-334 TFED. There remain some distinct rules for foreign
enhanced cooperation, which are not considered further here (Arts 32S(2), 329(2), and 331(2)
General rules on enhanced cooperation
'J'.U'-L'U provisions on 'enhanced cooperation', ie the process of some Member
'participating in EU measures without some other Member States, were first
introduced in the Treaty of Amsterdam, and these provisions were amended by
Treaty of Nice.558 These rules were never in fact used, except in the context
UK and Ireland opting in to immigration, asylum, and civil law measures
those measures had already been adopted.i" However, it is striking to note
there were two attempts to use these provisions in the JHA area: as regards a
proposal on criminal suspects' rights, where enhanced cooperation failed because
were insufficient votes in the Council to support authorization ofenhanced
cooperation when the issue was raised informallyr''" and as regards the 'Rome Ill'
proposal for choice oflaw on divorce, because the Commission did not respond,
the Treaty ofLisbon entered into force, to a group ofMember States which
requested authorization for enhanced cooperation.t'"
The Treaty of Lisbon subsequently amended the enhanced cooperation rules
inter alia, in order to merge the separate rules governing the former first
pillars.r'" The basic rule is that a group ofMember States may establish
enhanced cooperation among themselves, within the context of the EU's non"""rlll"i",,,
competences, by 'applying the relevant provisions of the Treaties'Y" In
words, once enhanced cooperation has been approved, the normal rules on
competence and decision-making (for example, unanimity as regards family law
will apply. Enhanced cooperation is authorized by the Council 'as a
resort, when it has established that the objectives of such cooperation cannot
attained within a reasonable period by the Union as a whole', and at least nine
States must participate.t'" Furthermore, enhanced cooperation must:
to further the objectives of the Union, protect its interests and reinforce its
rntegration process'; 'comply with the Treaties and Union law'; not 'undermine'
rnternai market or 'distort' competition, etc; and 'respect the competences,
and obligations ofthose Member States which do not participate in it'. But
the non-participants 'shall not impede its implementation by the parncipating
Member States'.565The Treaties are silent on the question of enhanced
cooperation outsidethe EU legal framework, but of course there are prior examtaking
place (the Schengen and Prum Conventions). It should follow
Institutional Framework92
549 [2010] OJ L 169122. The treaty has been signed, but is not yet in force.
550 COM (2009) 605 and 606, 30 Oct 2009. The Council has agreed to sign this treaty, but it
not yet entered into force.
551 [200S] OJ L 53/13 and 52. On the date of entry into force, see [200S] OJ L 53/1S.
5S2 [200S] OJ L 327/15 (Decision on full extension ofSchengen acquis). For the rules ofprocedure
of the Mixed Committee, see [2004] OJ C 30S/2.
553 As regards asylum responsibility, the EC (now EU) also had to be party to this parallel
alongside Switzerland and Liechtenstein. This treaty is in force as between the EU and Switzerland
([2009] OJ L 191/6).
554 Arts 7(5) 13, 15, 16, and 18 ofthe Schengen treaty and Arts 11 and 14-16 ofthe asylum
sibility treaty. On the specific legislation which Switzerland applies, see s 2.5 of chs 3-7 and
555 COM (2006) 752-754, 1 and 4 Dec 2006. The Protocols were signed in 200S
L 83/3 and 5 as regards the Schengen Protocols; the signature relating to the Protocol on
responsibility was not published). Following the entry into force of the Treaty of
Protocol will be approved in the form of two revised Council decisions: see Council doc
26 Apr 2010. See also the amendment to the EU/Switzerland (Schengen) Mixed Committee
of procedure ([200S] OJ L S3/37).
556 COM (2009) 255, 4June 2009. The treaty entered into force between the EU and Switzerland
on 1 Aug 2010, but has not yet entered into force between the EU and Liechtenstein.
557 [2010] OJ L 169122 and COM (2009) 605 and 606 (nn 549 and 550 above).
legislation.v'" and participation in comitology committees connected to the
Schengen acquis.55o
As for Switzerland, it agreed a treaty associating itself with the Schengen
acquis in 2004, along with a parallel treaty on its application of the EU's asylum
responsibility rules; these treaties entered into force on 1 March 200S,551 and
were applied as from 12 December 200S (29 March 2009 as regards Schengen
air bordersl.Y" These two agreements are essentially identical to the Schengen
and asylum responsibility agreements with Norway and Iceland, except that:
the Schengen treaty is expressly with the Community and Union (and creates
obligations for the EC, the EU, and Member States); Liechtenstein may accede
to either treaty; there is an obligation to negotiate parallel treaties with Denmark
(as regards matters within the scope of the former Title IV of the EC Treaty),553
Norway, and Iceland; Switzerland is not obliged to apply a particular rule relating
to mutual criminal assistance; and the Schengen and asylum responsibility
treaties are linked (denunciation of one will terminate the application of the
other one).554 A Protocol concerning accession of Liechtenstein to these treaties
was agreed in 2006, but is not yet in force. 555Also, Switzerland and Liechtenstein
have agreed a treaty with the EC concerning their relationship with Frontex
(paralleling the agreement with Norway and Iceland on this subject),556 and are
also parties to the treaties concerning association with the Borders Funds
comitology committees.v" However, unlike Norway and Iceland, Switzerland
and Liechtenstein have not agreed any further treaties relating to mutual assistance,
the surrender procedure, or the Prum Decision on police cooperation
with the ED.