¹ I named these awards in honour of the former UK Prime Minister, John Major, who was responsible for the first winner—the Maastricht Protocol on Social Policy. See Peers, S, ‘Who’s Judging the Watchmen? The Judicial System of the Area of Freedom, Security and Justice’ (1998) 18 YEL 337, 390Google Scholar.

² The text of the Treaty appears in [2007] OJ C306. This chapter is updated to 1 April 2008.

³ On these issues, see S Peers, ‘Finally “Fit for Purpose”? The Treaty of Lisbon and the end of the Third Pillar Legal Order’, forthcoming in YEL; ‘EU Immigration and Asylum Competence and Decision-Making in the Treaty of Lisbon’, forthcoming in EJML; ‘EU Criminal Law Competence and Decision-Making in the Treaty of Lisbon’, forthcoming in EL Rev; and ‘EU Policing Competence and Decision-Making in the Treaty of Lisbon’, forthcoming.

⁴ Also, this chapter does not examine the possible opt-out by the UK from continuing to participate in those third-pillar measures adopted before the entry into force of the Treaty of Lisbon, which it would be permitted to exercise five years after the entry into force of the new Treaty (see Art 10(4) of the transitional Protocol). Nor does it examine the possible application of TFEU Art 116 (ex-96) to Member States which do not participate in JHA measures (see Declaration 26 to the Final Act of the Treaty of Lisbon).

⁵ For more commentary on the current position, see (with further references) Robinson, M Hedemann, ‘The Area of Freedom, Security and Justice with Regard to the UK, Ireland and Denmark: the Opt-in/Opt-outs under the Treaty of Amsterdam’ in O’Keeffe, D and Twomey, P (eds), Legal Issues of the Amsterdam Treaty (Oxford, Hart, 1999) 289 Google Scholar; Toth, AG, ‘The Legal Effects of the Protocols Relating to the UK, Ireland and Denmark’ in Heukels, T et al (eds), The European Union after Amsterdam: A Legal Analysis (The Hague, Kluwer, 1998) 227 Google Scholar; and De Zwaan, J, ‘Opting in and Opting out of Rules Concerning the Free Movement of Persons: Problems and Practical Arrangements’ 1 (1998–1999) CYELS 107 Google Scholar.

⁶ Title IV Protocol Art 3(1). This right to participate without any condition other than compliance with the notification period has been confirmed by the Court of Justice: Case C-77/05, UK v Council, para 76; and Case C-137/05, UK v Council, para 55 (both judgments of 18 December 2007).

⁷ Title IV Protocol Art 3(2).

⁸ Art 4 of the Title IV Protocol, referring to TEC Art 11(3). Following amendments to these provisions made by the Treaty of Nice, the cross-reference should be to TEC Art 11a.

⁹ TEU Art 43b, as inserted by the Treaty of Nice. The Title IV Protocol makes no express reference to Art 43b or its predecessor Article, but it is logical to assume that the TEU Article is also applicable to a late opt-in under the Title IV Protocol, since it cross-refers to TEC Art 11a.

¹⁰ Commission Decision 2003/690 on Irish participation in Directive 2001/55 concerning temporary protection, [2003] OJ L251/23. Ireland has also applied to participate in Regulation 1030/2002 establishing a uniform residence permit, [2002] OJ L157/1; the Commission has released a favourable opinion on this application: COM(2007)506 final, 7 September 2007.

¹¹ The UK has opted out of a proposal for a ‘Rome I’ Regulation, concerning conflict of laws in contract (COM(2005)650 final, 15 December 2005), which was formally adopted in June 2008 (OJ 2008 L177/6). It appears that the UK’s concerns about the proposal have been alleviated, in particular due to the UK’s informal participation in the negotiations after opting out: see Report of House of Lords European Select Committee, ‘The Treaty of Lisbon: An Impact Assessment’ (10th report, 2007–8), points 6.288–92.

¹² For the current rules, see: TEC Arts 11 and 11a; and TEU 27a to 27e, 40–40b and 43–5. See Tuytschaever, P, Differentiation in EU Law: A Legal Analysis (Oxford, Hart, 1998), with further referencesGoogle Scholar.

¹³ For a list of the measures which the UK and Ireland have opted into as of 26 October 2007, see Annex IV to Statewatch EU Reform Treaty analysis no 4: <http://www.statewatch.org/news/2007/oct/eu-reform-treaty-uk-ireland-opt-outs.pdf> accessed 20 August 2008.

¹⁴ Title IV Protocol Art 7. The specific provisions concerned are Arts 3 and 4 of the Title IV Protocol (the process of opting in to a proposal when it is first made, or after its adoption).

¹⁵ Title IV Protocol Art 8.

¹⁶ See the current Annex to the Schengen Protocol.

¹⁷ See particularly the preamble and Arts 1 and 2 of the Protocol.

¹⁸ Schengen Protocol Art 4.

¹⁹ Decision 2000/365/EC, [2000] OJ L131/43 (hereinafter, ‘UK Decision’).

²⁰ [2004] OJ L395/70.

²¹ Decision 2002/192, [2002] OJ L64/20 (hereinafter, ‘Irish Decision’).

²² UK Decision Art 8(2); Irish Decision Art 6(2).

²³ Schengen Protocol Art 5(1).

²⁴ The distinction is also significant for Denmark (see below) and for non-EU states which are associated with the Schengen acquis, but not with Title IV (Norway, Iceland, Switzerland and Liechtenstein); but their position is not considered in this chapter.

²⁵ This is because Art 5(1) of the Schengen Protocol refers to the application of the general rules on enhanced cooperation if the UK or Ireland does not take part in a Schengen building measure. Arguably, it follows from this that the rules on subsequent participation in enhanced cooperation measures (which were discussed above) would be applicable; if so, this would mean that the Title IV and Schengen Protocols are identical on this point.

²⁶ Respectively Regulations 2007/2004, [2004] OJ L349/1; and 2252/2004, [2004] OJ L385/1.

²⁷ UK v Council, above n 6.

²⁸ Ibid, para 61; see also para 62 of the judgment.

²⁹ Ibid, para 63.

³⁰ Ibid, para 65.

³¹ Ibid, para 66.

³² Ibid, para 67.

³³ Ibid, para 75; see also para 76 of the judgment.

³⁴ Ibid, para 77.

³⁵ See the text accompanying n 25 above.

³⁶ These rules would apply to TFEU Arts 82(2) and 83(1) and (2) (ex-69A(2) and 69B(1) and (2)). See TFEU Arts 82(3) and 83(3) (ex-69A(3) and 69B(3)). For more on these emergency brakes, see ‘EU Criminal Law Competence and Decision-Making’, above n 3.

³⁷ See TEU Art 20 (ex-10) and TFEU Arts 326 to 329 (ex-280A to 280D).

³⁸ The ‘pseudo-veto’ would apply to TFEU Arts 86 (European Public Prosecutor) and 87(2) (police operations) (ex-Arts 69E and 69F(2)), except it could not apply where a police operations measure built upon the Schengen acquis. It would not apply to the other JHA provisions which would still be subject to a veto under the new Treaty: TFEU Arts 77(3) (passports and other documents), 81(3) (family law) and 89 (cross-border police operations) (ex-Arts 62(3), 65(3) and 69H).

³⁹ See, respectively, TFEU Arts 75 and 77(3) (ex-61H and 62(3)).

⁴⁰ See respectively the new Art 9, Title V (ex-Title IV) Protocol, and Declaration 65 to the Final Act of the Treaty of Lisbon.

⁴¹ Declaration 56 to the Final Act.

⁴² See my other articles on the JHA provisions of the Treaty, above n 3.

⁴³ See respectively TFEU Arts 82(1), 85, 87(1) and 88 (ex-Arts 69A(1), 69D, 69F(2) and 69G), and also TFEU Art 84 (ex-Art 69C), concerning crime prevention measures. Furthermore, in the Constitutional Treaty there was never an emergency brake or veto applicable to the adoption of anti-terrorist measures (TFEU Art 75 (ex-61H)).

⁴⁴ For a detailed analysis, see ‘EU Criminal Law Competence and Decision-Making’, above n 3.

⁴⁵ For example, the UK opted out of the ‘Rome I’ Regulation, above n 11, although it is bound by the current Rome Convention ([2005] OJ C334/1), and Ireland opted out of Regulation 334/2002 on visa formats ([2002] OJ L53/7), although it is bound by a prior regulation which that one amended (Regulation 1683/95, [1995] OJ L163/1).

⁴⁶ Title IV Protocol Art 4a(1).

⁴⁷ For details of these provisions (which would not be amended by the Treaty of Lisbon), see section II above.

⁴⁸ Title IV Protocol Art 4a(2), first sub-paragraph.

⁴⁹ Title IV Protocol Art 41(2), third sub-paragraph. The calculation of QMV is adjusted in such cases: see TFEU Art 238(3)(a) (ex-205(3)(a)).

⁵⁰ Title IV Protocol Art 4a(2), second sub-paragraph.

⁵¹ Title IV Protocol Art 4a(3). There is no requirement for the Council to act on a Commission proposal.

⁵² Title IV Protocol Art 4a(4).

⁵³ TFEU Art 331(1) (ex-280 F(1)); see also TEU Art 20 (ex-10), which reiterates the current rule that enhanced cooperation is open to non-participating Member States ‘at any time’, and TFEU Art 329(1) (ex-280C(1)), which restates the current rule that late-comers may participate in enhanced cooperation if they comply with the conditions of participation and with the acts which have been adopted.

⁵⁴ The Commission ‘shall adopt any transitional measures necessary with regard to the application of the acts already adopted within the framework of enhanced cooperation’.

⁵⁵ These rules are set out in TFEU Art 330 (ex-280E): only the participating Member States can vote; the voting rules are QMV or unanimity depending on the underlying subject matter (although note that the Member States participating in enhanced cooperation could change the relevant decision-making rules: see TFEU Art 333 (ex-280H); and a special QMV rule is set out in TFEU Art 238(3) (ex-205(3))).

⁵⁶ See the amendment to Art 3(1) of the Protocol, referring to the new TFEU Art 70 (ex-61C).

⁵⁷ See the amendment to Art 5 of the Protocol. This brings the rule on this point into line with the general rule applying to enhanced cooperation (see TFEU Art 332 (ex-280G)).

⁵⁸ As noted in section II above, the Treaty of Lisbon would not address the issue of ‘lock outs’ from the Schengen acquis for the UK and Ireland. In other words, those Member States would still have to obtain the Council’s approval for participation in the underlying Schengen acquis before they could participate in measures building upon that acquis.

⁵⁹ The current Art 5(2) of the Protocol would be deleted, presumably on the grounds that it is obsolete.

⁶⁰ Although, as pointed out in section II above, the Court of Justice has now cast doubt on the validity of the relevant provisions of these Decisions.

⁶¹ Declaration 44.

⁶² According to TEU Art 15(3) (ex-9B(3)), the European Council would meet twice every six months. Also, ‘[w]hen the situation so requires’, its President could convene a ‘special meeting’.

⁶³ Art 5(5) of the Schengen Protocol.

⁶⁴ For my interpretation of the relevant rules on this issue, opposing the interpretation later adopted by the Court, see Peers, S, EU Justice and Home Affairs Law 2nd edn (Oxford, Oxford University Press, 2006) 58–9Google Scholar.

⁶⁵ There would be a difference in that under the Title V (ex-Title IV) Protocol, the UK or Ireland would have to take positive steps to opt out during this period, while under the Schengen Protocol, they would have to take positive steps to opt in. In other words, the default position would be participation under the Schengen Protocol, but non-participation under the Title IV Protocol.

⁶⁶ See discussion in section II above.

⁶⁷ See discussion in section III.A above.

⁶⁸ See JHA Law, above n 64, particularly 72–7.

⁶⁹ This competence would be set out in TFEU Art 83(2) (ex-63B(2)). For a detailed analysis of this competence, see ‘EU Criminal Law Competence and Decision-Making’, above n 3.

⁷⁰ Under the Treaty of Lisbon, the co-decision procedure would be renamed the ‘ordinary legislative procedure’; other legislative procedures would be ‘special legislative procedures’. See TFEU Art 289 (ex-249A).

⁷¹ Title V (ex-Title IV) Protocol Art 9; Protocol on Denmark Art 6.

⁷² See Title V (ex-Title IV) Protocol Art 3(1).

⁷³ Declaration 26 to the Final Act.

⁷⁴ This assumes that the only legal bases providing for the adoption of criminal law measures after the entry into force of the Treaty of Lisbon would be in the JHA Title: see ‘EU Criminal Law Competence and Decision-Making’, above n 3.

⁷⁵ Title V (ex-Title IV) Protocol, Art 3(1).

⁷⁶ Art 4a(1) of the Protocol makes no distinction as to the legal base of the original measure (‘amending an existing measure by which they are bound’).

⁷⁷ COM(2007)51 final, 9 February 2007.

⁷⁸ See Joined Cases C-465/00 and 138 & 139/01, Rundfunk [2003] ECR I-6989; and Case C-101/01, Lindqvist [2003] ECR I-12971.

⁷⁹ COM(2005)475 final, 4 October 2005.

⁸⁰ See Council doc 16069/07, 11 December 2007, and generally <http://www.statewatch.org/eu-dp.htm> accessed 20 August 2008.

⁸¹ Above n 6.

⁸² See ‘Finally “Fit for Purpose”?’, above n 3.

⁸³ Compare CIG 2/07, 23 July 2007, to CIG 2/07 Rev 1, 5 October 2007.

⁸⁴ See ‘Finally “Fit for Purpose”?’, above n 3. There is a distinction between the Title V (ex-Title IV) Protocol and the transitional Protocol in that the former applies to all JHA measures whenever they were adopted, whereas the latter only applies to pre-existing thirdpillar measures, but there is no reason to suppose that this distinction should require different definitions of ‘amending’.

⁸⁵ In this case, I conclude (see ibid) that the repeal of part or whole of a prior act is not an amendment of that prior act for the purposes of the Court’s jurisdiction, because otherwise the intentions of the drafters as regards limiting the Court’s jurisdiction would be undermined.

⁸⁶ See the treaties with Norway and Iceland ([1999] OJ L176/35 and [2001] OJ L93/38) and Switzerland ([2007] OJ L53) as regards Schengen and Dublin. To some extent the same is true of Denmark, as regards the Schengen acquis: see Art 3 of the current Schengen Protocol and Art 5 of the current Protocol on Denmark.

⁸⁷ Art 4a(1) of the Protocol refers to acts which are ‘proposed or adopted pursuant to’ the JHA Title.

⁸⁸ See the discussion of the temporal scope in JHA Law, above n 64, 215–6, with further references.

⁸⁹ Section II.C above.

⁹⁰ Revised Schengen Protocol Art 5(2).

⁹¹ See the example of the proposed returns Directive, which would originally have repealed a measure in which the UK participates (COM(2005)391 final, 1 September 2005); following discussions in the Council, the latest Council text would not repeal that measure (Council doc 7774/08, 25 March 2008, available at <http://www.statewatch.org/news/2008/mar/eu-returnsdir-7774-08.pdf> accessed 20 August 2008. Conversely, a proposal could become an amending act during negotiations, or alternatively a proposal could end up amending additional, or fewer, and/or different measures as a result of negotiations.

⁹² See the example of the UK’s position in respect of the Rome I Regulation, above n 11.

⁹³ See Art 4a(3), second sub-paragraph, of the Protocol, which refers to expulsion only following the further two months period given to opt in before the adoption of the measure.

⁹⁴ See, for instance, Arts 4(2)–8, Dublin Treaty with Norway and Iceland and Arts 2–5 and 10–11, Schengen Treaty with Norway and Iceland, both above n 86.

⁹⁵ Above nn 19 and 21.

⁹⁶ The Dublin II treaty with Denmark ([2006] OJ L66/37) applied from 1 April 2006, whereas the Dublin II Regulation applied to other Member States as from 1 September 2003 (Art 29 of Regulation 343/2003, [2003] OJ L50/1). The Brussels treaty with Denmark ([2005] OJ L299/61) applied only from 1 June 2007, whereas the Brussels Regulation applied to the other Member States as from 1 March 2002 (Regulation 44/2001, [2001] OJ L12/1).

⁹⁷ The revised text of the Lugano Convention is still not in force yet (proposed conclusion of the Convention, COM(2008)116 final, 29 February 2008).

⁹⁸ See Art 2 of the EU’s mutual assistance Convention ([2000] OJ C197/1) and Art 15 of its Protocol ([2001] OJ C326/1). The full application of the Convention and Protocol will only be ensured after the entry into force of a subsequent treaty ([2004] OJ L26/1). However, the point remains that a partial application of the rules is operable in the meantime.

⁹⁹ [2006] OJ L292.

¹⁰⁰ See the Schengen treaty with Switzerland, above n 86.

¹⁰¹ For instance, see Art 3(2) of the 2003 Act of Accession ([2003] OJ L236/33). Again, the full application of the relevant rules was (or will be) secured at a later date, but the point remains that a partial application of the rules was (or is) operable in the meantime.

¹⁰² [2002] OJ L190/1, Arts 4 and 5.

¹⁰³ See generally JHA Law, above n 64, ch 9.

¹⁰⁴ See Arts 3(2) and 15 of Regulation 343/2003 (Dublin II), above n 96.

¹⁰⁵ See generally JHA Law, above n 64, ch 8.

¹⁰⁶ The latter situation could surely normally be overcome by technical means. For example, the UK and Ireland will have differential access to the second-generation SIS, since they will participate as regards policing and criminal law, but not immigration law (see Regulation 1987/2006, [2006] OJ L381/4 and the third pillar Decision, [2007] OJ L205/63).

¹⁰⁷ See Art 3(2) of the Title V (ex-Title IV) Protocol, which refers back to Art 2 of the Protocol, which would not be made subject to Art 4a of the Protocol.

¹⁰⁸ It might seem less unfair if the threshold for the application of sanctions turns out in practice to be set too low.

¹⁰⁹ For instance, the European Police College is based in the UK: see [2005] OJ L256/63.

¹¹⁰ Above n 6.

¹¹¹ Section III.B above.

¹¹² TFEU Art 331(1) (ex-280 F(1)).

¹¹³ TFEU Art 328(1) (ex-280 C(1)); and see TEU Art 20(1) (ex-10(1)).

¹¹⁴ Art 10(5) of that Protocol.

¹¹⁵ Schengen Protocol Art 4.

¹¹⁶ Above n 6.

¹¹⁷ This assumes, as argued above (section III.C), that Art 5(1) of the Protocol would also be applicable to Art 5(2) to (5).

¹¹⁸ Equally, although the Treaty of Lisbon would abolish the rule in the current TEU Art 43 that the rules on enhanced cooperation cannot override the Schengen Protocol, this would not by itself set out a sufficiently explicit rule that the rules on late-comers’ participation in enhanced cooperation would apply to participation in Schengen-building measures.

¹¹⁹ The latter Convention concerned, inter alia, police access to other Member States’ databases, and will largely be transposed into EU law pursuant to an agreed Council Decision: Council doc 9319/08, 15 May 2008.