Explanatory Memorandum to COM(2014)596 - Arrangements concerning the cessation of participation of Great Britain in Union acts on police and judicial cooperation adopted before the Treaty of Lisbon - Main contents
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| dossier | COM(2014)596 - Arrangements concerning the cessation of participation of Great Britain in Union acts on police and judicial cooperation ... |
|---|---|
| source | COM(2014)596  |
| date | 26-09-2014 |
Protocol (No 36) on transitional provisions annexed to the Treaty on European Union (TEU), to the Treaty on the Functioning of the European Union (TFEU) and to the Treaty on the European Atomic Energy Community confirms in its Article 9 that the legal effects of the acts of the Union adopted on the basis of the TEU prior to the entry into force of the Treaty of Lisbon shall be preserved until those acts are repealed, annulled or amended.
Article 10 i of Protocol (No 36) provides that as a transitional measure, and with respect to acts of the Union in the field of police cooperation and judicial cooperation in criminal matters which have been adopted before the entry into force of the Treaty of Lisbon, the powers of the institutions shall be the following at the date of entry into force of that Treaty, 1 December 2009: the powers of the Commission under Article 258 TFEU shall not be applicable and the powers of the Court of Justice of the EU under Title VI of the TEU, in the version in force before the entry into force of the Treaty of Lisbon, shall remain the same, including where they have been accepted under Article 35(2) of the said TEU.
Article 10(3) of Protocol (No 36) provides that the transitional measure mentioned in Article 10 i shall cease to have effect five years after the entry into force of the Treaty of Lisbon, on 1 December 2014.
Article 10 i, first subparagraph of Protocol (No 36) provides that at the latest six months before the expiry of the transitional period referred to in Article 10(3), the United Kingdom may notify to the Council that it does not accept, with respect to the acts referred to in Article 10 i, the powers of the institutions referred to in Article 10 i as set out in the Treaties. In case the United Kingdom has made that notification, all acts referred to in Article 10 i shall cease to apply to it as from the date of expiry of the transitional period referred to in Article 10(3), that is from 1 December 2014.
The United Kingdom has made the notification mentioned in the first subparagraph of Article 10 i of Protocol (No 36) on 24 July 2013.
Article 10 i, second subparagraph of Protocol (No 36) provides that the Council, acting by a qualified majority on a proposal from the Commission, shall determine the necessary consequential and transitional arrangements. The United Kingdom shall not participate in the adoption of this decision.
Article 10 i, third subparagraph of Protocol (No 36) provides that the Council, acting by a qualified majority on a proposal from the Commission, may also adopt a decision determining that the United Kingdom shall bear the direct financial consequences, if any, necessarily and unavoidably incurred as a result of the cessation of its participation in those acts. A proposal in this respect is submitted to the Council today.[1]
Article 10(5) of Protocol (No 36) provides that the United Kingdom may, at any time afterwards, notify the Council of its wish to participate in acts which have ceased to apply to it pursuant to Article 10 i, first subparagraph.
It is expected that the United Kingdom will notify its wish to participate in 35 acts of the former third pillar acquis which will cease to apply to it on 1 December 2014. Any disruption in the implementation and application of these acts should be avoided. It should therefore be provided that these acts will continue to apply to the United Kingdom for a limited transitional period until the decisions of the Council and the Commission authorising the participation of the United Kingdom take effect.
The United Kingdom announced that it does not intend to notify the Council at this stage of its wish to participate in Council Decision 2008/615/JHA of 23 June 2008 on stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime,[2] in Council Decision 2008/616/JHA of 23 June 2008 on the implementation of Council Decision 2008/615/JHA on stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime[3] and in Council Framework Decision 2009/905/JHA of 30 November 2009 on accreditation of forensic service providers carrying out laboratory activities i (hereafter the 'Prüm Decisions').
As a consequence of the notification of 24 July 2013 and of the non-notification of a wish to participate, the Prüm Decisions will cease to apply to the United Kingdom from 1 December 2014.
The non-application of the Prüm Decisions to the United Kingdom from 1 December 2014 has as a consequence that the United Kingdom cannot access for law enforcement purposes fingerprints contained in the Eurodac database. The reason for this consequence is contained in Article 20 and recital (32) of Regulation (EU) No 603/2013.[5] This has no bearing on the application of the remainder of Regulation (EU) No 603/2013 to the United Kingdom.
In view of the practical and operational significance of the Prüm Decisions to the Union for public security, and more particularly for law enforcement and the prevention, detection and investigation of criminal offences, the following arrangements have been made: the United Kingdom will undertake a full business and implementation case to assess the merits and practical benefits of the United Kingdom re-joining the Prüm Decisions and of the necessary steps for it to do so, the results of which will be published by 30 September 2015. It will do so in close consultation with operational partners in the United Kingdom, all other Member States, the Commission, Europol and Eurojust. If this business and implementation case is positive, the United Kingdom will decide, by 31 December 2015, on whether to notify, within the following four weeks, its wish to participate in the Prüm Decisions, in accordance with Article 10(5) of Protocol 36. The United Kingd om has indicated that a positive vote in its Parliament will be required before such a decision.
Financial consequences should be attached to the non-respect of those arrangements, as well as to the possible non-participation of the United Kingdom in the Prüm Decisions. A proposal in this respect is presented to the Council today.[6]
Summary of the proposed measures The proposal provides for consequential and transitional arrangements in the meaning of Article 10 i, second subparagraph of Protocol (No 36).
Legal basis Article 10 i, second subparagraph of Protocol (No 36).
Principle of subsidiarity Only the Council is authorised, on the basis of Article 10 i, second subparagraph of Protocol (No 36), to adopt consequential and transitional arrangements. The principle of subsidiarity is therefore not applicable.
Principle of proportionality The proposal complies with the principle of proportionality.
Proposed instrument: Council decision.
Article 10 i, second subparagraph of Protocol (No 36) provides for the Council, acting by a qualified majority on a proposal from the Commission, 'determining the necessary consequential and transitional arrangements'. A decision is the correct form of act to implement this provision of primary law.
The proposal has no impact on the European Union budget.