The difference between torture and other ill-treatment: Cestaro v. Italy and the “prohibited purpose” requirement

 

Christina Kosin (LL.M. Edinburgh) Ph.D. candidate and academic assistant at the German Police University

What is the central element which distinguishes torture from inhuman or degrading treatment or punishment? Some scholars claim that the “prohibited purpose” requirement of the torture definition is the most central as well as the only criterion which is decisive in differentiating between that crime and other forms of ill-treatment.. However, in my view this is incorrect, and indeed the recent judgment of the European Court of Human Rights in Cestaro v. Italy shows (once again) that the “prohibited purpose” component of torture is not the only decisive criterion in distinguishing the crime from other inhuman or degrading treatment or punishment.

The judgment

Mr Cestaro was among the protesters surrounding the G-8 summit in Genoa, Italy from 21^st to 22^nd July 2001 (para. 7). On the first day of the summit of the world’s leading industrial States around 100,000 protesters gathered and demonstrated against globalisation (para. 19). Various radical groups such as the so-called “black blocks” were amongst the peaceful anti-globalisation protesters and engaged in violent and/or criminal conduct such as the looting of the city (para. 12). During the two days of incidents, hundreds of protesters and police forces were injured and one young person died (paras. 18-21). From the 21^st to 22^nd July 2001, Mr Cestaro and other protesters were housed in a school, which was stormed by the Italian police at that time. Mr Cestaro and others were brutally ill-treated while peacefully and legally lodging in the school (para. 182). The actual aim of the police mission was to search the school for evidence that could lead to the identification and possible arrest of members of the “black blocks” (para. 182). Mr Cestaro was subjected to repeated kicks and beatings with the tonfa, which is considered a potentially lethal weapon. As a result, Mr Cestaro suffered multiple fractures and a permanent impediment in his right arm and right leg (para. 178). The ECtHR ruled that the treatment by the police amounted to torture.

Ultimately he challenged the Italian state before the European Court of Human Rights (ECtHR), which issued its judgment in the case on 7 April. He alleged that Italy had committed a material and procedural breach of Article 3 of the ECHR, which states that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Neither torture nor the terms “inhuman or degrading treatment or punishment” are defined in the Convention. The Court’s practice has shown that it understands torture as defined in Article 1 (1) in the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). According to this definition, torture needs to be inflicted on a person

“for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind”.

This is the so known “prohibited purpose” requirement. Next to this, there are four more elements of the UNCAT torture definition namely (1) the act must be inflicted intentional, (2) the act must cause severe, physical or mental, pain or suffering, (3) the treatment must be inflicted by or at the instigation of or with the consent of or acquiescence of a public official or other person acting in an official capacity and (4) pain arising out of lawful sanctions is not included.

The issue at hand is that the prohibited purpose requirement is mistaken for the only criterion which is able to differentiate between torture and less serious ill-treatment. This confusion arose because of various reasons. The European Commission on Human Rights, which used to rule on cases together with the ECtHR, stipulated in the 1969 Greek case that torture “is often used to describe inhuman treatment, which has a purpose, such as the obtaining of information or confessions, or the infliction of punishment” (p. 186). This was interpreted to mean that the purpose requirement is the distinguishing element between torture and inhuman or degrading treatment or punishment while the other elements remain static. Further, the ECtHR has never classified a treatment which lacked the purpose requirement as torture. In addition, some scholars claim that the drafting history of the UNCAT, the travaux préparatoires, indicates that this criterion is the sole distinguishing factor between the two forms of ill-treatment. Although these reasons sound compelling, the interpretation was wrong and the prohibited purpose requirement is not the sole decisive factor as is shown below.

In section “Aperçu de la jurisprudence en matière de « torture » “, the Court provided a brief overview of its jurisprudence concerning Article 3. In the subsequent section “Application en l’espèce”, the ECtHR applied the facts to the case. Both sections elucidate that the prohibited purpose criterion is a vital but not the only requirement to differentiate torture from inhuman or degrading treatment or punishment.

In the former section, the Court did not highlight the ostensible uniqueness of the prohibited purpose requirement. Rather, the Court showed that different criteria of the treatment can be decisive in classifying an act as torture. The Court highlighted that torture can be distinguished from other ill-treatment by the special stigma which is attached to the crime – torture implies very serious and cruel pain and suffering as well as the deliberate/intentional infliction of such pain. In the Court’s words, “[o]utre la gravité des traitmens, la « torture » implique une volonté délibérée.”  (para. 171).

Then, the Court referred to cases in which it found a combination of the gravity of the treatment and the intentional element such as in Aksoy v. Turkey and Yaman v. Turkey (para. 172). In this context the ECtHR noted that all these cases contained a purpose to obtain information, to punish somebody or to intimidate the person (para. 172). This is the first time the ECtHR mentioned the element of the prohibited purpose. The ECtHR further elucidated that it put a special weight on the severity of the pain in some cases such as Aslan v. Turkey or on the arbitrariness of the violence in other cases such as in Romanov v. Russia(para. 173-174). Towards the end of this section the Court explained that it did not classify some police actions as torture such as in Krastanov v. Bulgaria as the prohibited purpose element was missing and because the pain was inflicted for a short duration only (para. 175). This constitutes the second time when the Court mentioned the purpose criterion. Lastly, the Court stipulated that some cases such as Gäfgen did not constitute torture because the level of cruelty required was not reached (para. 176).

The ECtHR clearly revealed that various components can determine whether a particular treatment constitutes torture or inhuman or degrading treatment or punishment: the gravity of the treatment, the intentional infliction of the treatment, the severity of the pain, the arbitrariness of the violence, the prohibited purpose, the duration of the treatment and the level of cruelty of the act. The Court did not classify these examples as exhaustive and one can assume that other factors of the treatment as well can trigger a distinction between torture and other forms of ill-treatment. The prohibited purpose criterion of the UNCAT torture definition is not the only decisive factor.

In the section “Application en l’espèce”, the ECtHR provided reasons for classifying the treatment by the police as torture. In its reasoning, the Court did not explicitly state which element of the conduct by the police was decisive for classifying the violence as torture and not inhuman or degrading treatment. The arguments by the ECtHR suggest that a variety of characteristics of the treatment contributed to the Court’s decision.

The Court put forward that the pain was inflicted by the police with the purpose to punish and to retaliate and with the aim to cause pain and suffering (para. 177). The prohibited purpose by the police was hence to punish and retaliate. This is the first and last time that the ECtHR referred to the purpose requirement in this section. The Court noted that there is no denying that the pain and suffering was of particular seriousness and cruelty (para. 179). As mentioned above, the applicant suffered from a permanent impediment resulting out of the beatings he received. Further, it was stated that there was no link between the applicant’s conduct and the force used by the police. The Court emphasised that Mr Cestaro did not resist in any way and that the infliction of pain was thus disproportionate (para. 180).

Although the mission of the police was to search the school, the public officials immediately used force (paras. 180-182). Instead of trying to enter the building peacefully and negotiate with the protesters, the police stormed the building by breaking down the gates and promptly used violence against the protestors (para. 183). The Court then went on and stressed that the police tried to justify its actions by arguments such as the protection of the nation was at stake (para.184-185). It is indeed true that the 21^st July was marked by heavy violence through the looting and devastation of the city of Genoa (para. 20). One can imagine that the police was under paramount pressure and strain throughout the whole day. The Court, however, correctly observed that the situation in the school was entirely different as the protesters were calm and did not resist the violence of the police (para. 186). Based on these grounds the Court reached the conclusion that the treatment by the police amounted to torture as understood in Article 3 ECHR (para. 190). The ECtHR put forward several reasons for classifying the treatment by the police as torture but it did not single out one specific factor. It seems that the immediate, disproportionate and serious infliction of pain was vital for the Court to arrive at its decision. The prohibited purpose criterion was not the triggering criterion in this case.

Comments

The Cestaro v. Italy case shows that the prohibited purpose element in the UNCAT definition is not the sole criterion which distinguishes torture from other inhuman or degrading treatment or punishment. The presumption that the purpose requirement is the most important feature of torture does not automatically mean that it is the only one.

As indicated at the outset, Cestaro v. Italy is not the first case which revealed that the prohibited purpose requirement is not the sole factor able to distinguish between both crimes in the UNCAT. In the case Ireland v. the UKin 1978, the ECtHR ruled that the five techniques employed by the British forces did not constitute torture because they did not reach the level of cruelty and intensity as implied by the term (para. 167). In Selmouni v. France 1999 the Court reached a judgment on similar grounds. The ECtHR stated that the victim was subjected to torture because the pain and suffering was of particular seriousness and cruelty (para. 101-105). In Romanov v. Russia 2002, the Strasbourg Court found a multitude of reasons why the treatment by the prison wards constituted torture. However, it put a special emphasise on the arbitrariness of the beatings the victim received (para. 70).

These cases already revealed that other factors than the purpose requirement can make a difference between torture and inhuman or degrading treatment or punishment. Nevertheless, some still claim that only the purpose requirement can be decisive. They base their arguments on the travaux préparatoires of the UNCAT as well as old case law from different treaty bodies. The Cestaro v. Italy case reiteratesthat the prohibited purpose criterion is not the sole element which is capable of differentiating between torture and other ill-treatment.

One can now assume that the consequences flowing from this case and other similar jurisprudence of the ECtHR, will mainly concern theoretical discussions among legal scholars. The consequence could, however, have negative effects beyond that. The Strasbourg Court is not the only organ which uses the UNCAT definition of torture in its cases concerning violations of Article 3 ECHR. The Committee Against Torture (CAT) as well as the Human Rights Committee (HRC) provide decisions on the basis of Article 1 (1) UNCAT. The former body applies and interprets the UNCAT and the latter body enforces the International Covenant for Civil and Political Rights (ICCPR). If the ECtHR, the CAT and the HRC use different grounds for distinguishing torture from other ill-treatment, this could shed a negative light on the consistency and the trustworthiness of these bodies. Considering that the ban on torture is international, the jurisprudence should be consistent as well – at least with regard to the most important and international bodies which decide on torture cases, should it not? In the worst case scenario, the victims of torture could additionally suffer from legal uncertainty.

 

Barnard & Peers: chapter 9

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Childhood’s End: EU criminal law in 2014

 

Steve Peers

With the elections to the European Parliament, the installation of a new European Commission, and a number of important legislative and case-law developments, 2014 was an important year for the European Union. This is the first in a series of blog posts reviewing the year in selected fields of EU law.  

The most significant change to EU criminal law came on December 1^, when the five-year transitional period relating to EU criminal law measures adopted before the entry into force of the Lisbon Treaty (‘pre-Lisbon EU criminal law measures’, also known in practice as the ‘third pillar’) came to an end. From this date on, pre-Lisbon EU criminal law measures are subject to the normal rules of EU law (except that they maintain their previous limited legal effect, in particular the lack of direct effect). More specifically, this change (discussed generally here) has three main impacts.

Firstly, the UK was entitled to opt out of all pre-Lisbon EU criminal law measures, and then apply to opt back in to some of them again. The UK indeed exercised these possibilities, opting back in to 35 such measures as of 1 December 2014 (see discussion of the details here), following an unnecessarily convoluted process in the House of Commons (discussed here). In a nutshell, since the UK has opted back into a large majority of the pre-Lisbon measures which have any significant importance, the whole process has had barely reduced the UK’s actual degree of participation in EU criminal law.

Secondly, the end of the transitional period means that the EU Commission can now bring infringement actions against Member States that failed to correctly implement pre-Lisbon EU criminal law measures - or that failed to implement such measures at all. The relevance of this is obvious in light of the Commission reports issued this year, regarding: legislation on the transfer of prisoners, probation and parole and supervision orders (discussed here); hate crime and Holocaust denial (discussed here); and conflicts of jurisdiction and the recognition of prior convictions (discussed here).  

Thirdly, all courts in all Member States can now send references to the CJEU on the interpretation pre-Lisbon EU criminal law. For the EU as a whole, the impact of this change will probably be limited in practice, because (a) two-thirds of Member States allowed such references anyway, and (b) there were no such limits regarding EU criminal law adopted after the entry into force of the Lisbon Treaty. On the former point, the CJEU decided two cases this spring on the EU’s double jeopardy rules (discussed here), in which it finally developed the relationship between those rules and the double jeopardy provisions of the ECHR and the EU Charter of Fundamental Rights. A final reference to the CJEU on the basis of the old rules, sent just a month before the end of the transitional period (Kossowski), now asks the Court to clarify whether Member States’ derogations from the Schengen rules violate the EU Charter.

On the second point, the first reference from national courts on post-Lisbon EU criminal law was referred this year: the Covacicase, on the Directive on interpretation and translation in criminal law proceedings and the Directive on the ‘letter of rights’. So far, there is no sign of the predicted avalanche of cases on EU suspects’ rights legislation (the deadline to apply the letter of rights Directive passed in June). Of course, there could still be an increase of such cases in future, perhaps after the 2016 deadline to apply the third suspects’ rights Directive (on access to a lawyer). And in the meantime, Member States must apply the victims’ rights Directivetowards the end of 2015. Hopefully the CJEU’s case law on that measure will be more convincing than its ruling earlier this year (criticised here) on the scope of the Directive on compensation for crime victims.

Another important CJEU judgment in the criminal law field this year (discussed here) ruled that policing information measure actually fell within the scope of EU transport law. The immediate impact of this judgment was a rush to adopt replacement legislation (the text of which is already agreed), which will apply to all Member States (the UK, Ireland and Denmark had opted out of the prior measure). More broadly, the judgment shows that the CJEU is not inclined to interpret the EU’s criminal law powers broadly – at least as compared to the EU’s other powers.

The end of the transitional period did not lead to a general review of pre-Lisbon EU criminal law measures, with the Commission proposing only a very limited repeal of some obsolete measures (I’ll blog on these proposals in the new year). In particular, the new Justice Commissioner appears to have no significant agenda to suggest criminal law proposals, whether to amend prior measures or to adopt new ones (for an argument as to what the Commission should do, see here).

However, some of the pre-Lisbon criminal law measures have been amended or replaced, or will be amended or replaced by proposed legislation now under discussion. In particular, during 2014, the EU adopted legislation concerning: the European Investigation Order (discussed here); the counterfeiting of the euro (discussed here); the confiscationof criminal assets; and the European Police College (moving its seat from the UK to Hungary). The EU also adopted legislation on criminal sanctions for market abuse (discussed here).

There are also proposals under discussion to replace pre-Lisbon EU criminal law measures concerning: fraud against the EU (see the state of play here); the police agency, Europol (see discussion of negotiations here); the prosecutors’ agency, Eurojust (there was a partial agreement on this proposal); and data protection in criminal law cases (see the state of play here). The latter issue is increasingly important, as indicated by the related CJEU judgment invalidating the data retention directive (discussed here), which gave rise to questions as to whether Member States could adopt or retain their own data retention laws (on this point, see generally here, and here as regards the UK in particular).

In fact, the CJEU will soon be ruling on data protection and criminal law issues as such, since the European Parliament has asked it to rule on the validity of the EU/Canada draft treaty on passenger name records (see discussion here). The pending Europe v Facebook case (discussed here) raises questions about the impact of the Snowden revelations upon the EU and US arrangements on data protection. In the meantime, the proposed Directiveon passenger name records still remains on ice (having been put there by the European Parliament), with EU leaders’ attempt to set a deadline to adopt this proposal by the end of 2014 proving futile.

 

Other proposals are also under discussion: a more general overhaul of the European Police College; the creation of a European Public Prosecutors’ Office (see the state of play here); and the adoption of three more suspects’ rights measures, concerning child suspects (agreed by the Council), presumption of innocence (also agreedby the Council) and legal aid (see the state of play here). However, the Commission’s proposal for new rules relating to the EU’s anti-fraud body, OLAF, soon melted in the heat of Council opposition. 

 

Conclusion

Taken as a whole, the year 2014 showed how the European Parliament, the CJEU and the Commission are already playing a significant role in the development of EU criminal law. Following the final demise of the third pillar, the year 2015 is likely to see further important developments in this area, which will make the pre-Lisbon measures even less important: the adoption of new legislation on Europol, the European Police College and possibly Eurojust, as well as revised legislation on fraud against the EU budget. There will likely be two or three further Directives on suspects’ rights and the victims’ rights Directive will begin to apply. The rules on the new European Public Prosecutors’ Office might also be agreed, and there could be significant developments in the area of data protection. Overall, the longer-term trends toward greater parliamentary and judicial control and greater focus on individual rights in this area accelerated significantly in 2014 and could well do so again next year.

 

Barnard & Peers: chapter 25

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The UK opts back in to the European Arrest Warrant - and other EU criminal law

 

Steve Peers

After much controversy, the UK today completed the process of opting out of EU criminal law measures adopted before the entry into force of the Treaty of Lisbon, and opting back in to some of them. This blog post looks as the legal framework for this process and the consequences of opting back in. It’s an updated version of a previous Statewatch analysis written this summer.

The Legal Framework

 

Before the entry into force of the Treaty of Lisbon, the UK was a full participant in almost all EU policing and criminal law measures. The exception was a small part of those measures ‘building on the Schengen acquis’, ie measures set out in, or amending, implementing or closely related to the Schengen Convention on the abolition of border controls. Most of those Schengen-related criminal law and policing measures applied to the UK from the start of 2005, except for the rules on cross-border hot pursuit by police officers (which the UK did not opt into) and the rules on the Schengen Information System (SIS) database (because the UK wanted to wait until a second-generation SIS was operational first, and this didn’t happen until 2013).

The Treaty of Lisbon changed the legal framework for the adoption of EU policing and criminal law, applying to this field the normal jurisdiction of the Court of Justice of the European Union (CJEU) and, for the most part, the ordinary legislative procedure of the EU, which entails joint powers for the European Parliament and no vetoes for Member States in the Council.

The UK would only agree to these major changes in return for two forms of opt-out. The first opt-out relates to policing and criminal law measures adopted after the entry into force of the Treaty of Lisbon. This opt-out allows the UK to decide on a case-by-case basis, after each proposal is made, whether it seeks to opt in or out. If the UK initially decides to opt-out, it can always seek to opt in again (needing the Commission’s approval) at any time after the measure is adopted.

 

The second form of opt-out takes the form of a ‘block’ opt-out for those measures adopted before the entry into force of the Treaty of Lisbon. This was intrinsically linked to a five-year transition period concerning those measures, which is applicable to all Member States. That transitional period finally expired today.

 

This second opt-out is set out in Article 10 of Protocol 36 to the Treaties, which is set out in full in the Annex. The Article states first of all that the normal powers of the Court of Justice of the European Union (CJEU) and the Commission did not apply for five years after the entry into force of the Treaty of Lisbon, to pre-Lisbon third pillar measures. This meant that the Commission did not have power to bring infringement procedures against Member States to the CJEU regarding these laws until today.

Nor did the CJEU have jurisdiction over questions from national courts concerning EU law in this area, except where Member States had chosen to opt in to this jurisdiction (18 Member States opted in, and the Court delivered a number of judgments in this field). Also, the transitional rules cease to apply to an act which is amended after the Treaty of Lisbon comes into force, and a number of such acts were indeed amended.

Secondly, Article 10 of Protocol 36 set out a potential opt-out for the UK (but not for any other Member States) at the end of this five-year period. If the UK notified the Council by 1 June 2014, all the pre-Lisbon third pillar acts ceased to apply to it as of 1 December 2014, unless those acts have been amended and the UK has opted in to those amended measures. In this event, the Council could decide the ‘necessary consequential and transitional arrangements’, and could also decide that the UK has to ‘bear the direct financial consequences, if any, necessarily and unavoidably incurred’ as a result. In both cases, the Council acts by a qualified majority vote on a proposal from the Commission. The UK does not participate in the first of these measures (consequential arrangements), but would participate in the second (financial consequences).

Thirdly, the UK can seek to opt back into to some of the measures it has opted out of ‘at any time afterwards’. If it does so, then the rules for opting into Justice and Home Affairs measures in either the Protocol on the Schengen acquis or the Protocol on Title V (JHA measures) apply. In practice, that means that the Council, acting unanimously, decides on re-admission of the UK to measures building on the Schengen acquis (ie measures set out in, or amending, implementing or closely related to the Schengen Convention on the abolition of border controls), while the Commission (with no role for the Council, unless the Commission refuses the UK’s request) decides on readmission of the UK to pre-Lisbon third pillar measures which do not build on the Schengen acquis. The Protocol concludes by stating that in such a case, the EU institutions and the UK ‘shall seek to re-establish the widest possible measure of participating of the [UK] in the acquis of the Union in the area of freedom, security and justice, without seriously affecting the practical operability of the various parts thereof, while respecting their coherence’.

 

The block opt-out in practice

 

The UK government indicated in 2012 that it was inclined to invoke the block opt-out, and then seek to opt in to a number of measures. In 2013, it officially invokedthe block opt-out (well before the deadline of 1 June 2014), and indicated the 35 measures which it wished to opt back into. Informal negotiations then took place between the UK, the Council and the Commission, in particular during the Greek Council Presidency in the first half of 2014. The discussions were complicated somewhat by the UK’s request to begin participation in the second-generation SIS (known as SIS II) shortly before 1 December 2014, along with its request to amend the rules relating to SIS II alerts on the European Arrest Warrants in accordance with new EU legislation. Ultimately, the UK’s attempts to start applying the SIS this autumn were rejected, and it remains to be seen when it will begin to apply the system.

These negotiations were ultimately successful, and the Council Decision and Commission decision on the UK’s opt back in were adopted and published today.  The Council Decision amends the original Council Decision admitting the UK to participate in parts of the Schengen acquis, as well as the later Council Decision putting part of the Schengen acquis into force in the UK. The Council has published a codified textof the amended Decisions.

The crucial substantive point here is that the UK will continue to be committed to participating in the Schengen Information System, which provides for exchange of information on European Arrest Warrants, wanted persons and missing objects. It will also continue to be bound by the main criminal law and police cooperation provisions of the Schengen acquis.

As for the other measures, the Commission Decision approves the UK’s opt back in to almost all of the EU measures on mutual recognition in criminal matters (most notably the European Arrest Warrant), the creation of EU agencies (Europol, Eurojust) and exchange of information or databases, with a few exceptions: the Framework Decisions on mutual recognition of probation and parole decisions and the so-called ‘Prum’ Decisions on cross-border exchange of information on DNA, licence plate information and fingerprints.

On the latter issues, the transitional Decision(adopted last week) requires the UK to consider opting back in to the Prum Decisions by the end of 2015. If it does not do so, the financial consequences Decision(also adopted last week) requires the UK to pay back the money it received from the EU budget to prepare for putting the Prum rules into force. The UK agreed informally to consider opt back in to the Framework Decision on mutual recognition of probation and parole measures later. It will fall to the next UK government to decide on these issues (the next general election will be in May 2015), and it will always be open to the UK government to opt back in to more measures if it wishes.

There was some negotiation on the lists of measures which the UK sought to opt out of. As regards the Council Decision, one measure on the operational functioning of the SIS was added to the list. The Commission’s Decision included a decision to opt in to three measures implementing the Europol Decision, as well as the Decision establishing the European Judicial Network. These additional measures which the UK agreed to opt in to are essentially technical, except for the European Judicial Network, which the UK government believes is essentially a useless talking shop.

Also, it should be noted that some pre-Lisbon measures were amended while discussions were going on, in particular the EU’s Convention on mutual assistance in criminal matters and its amending Protocol. The UK did not want to opt back in to these measures, but this objection is now moot, since the UK participates in the EU Directive on the European Investigation Order (discussed here), which has replaced some of the corresponding provisions of those measures. So this means that it continues to participate in the Convention and Protocol, without having to opt back in.

However, the UK government withdrew its request to participate in two measures (a Decision on a hate-crime network, and a Decision on special police intervention units) during the discussions. This decision may well have been taken so that the government can still claim that it is only opting back in to a total of 35 measures.

It should also be noted that the UK’s opt back in to some of the pre-Lisbon measures concerned could be very short-lived, since there are proposals to replace these measures which the UK has opted out of, but which have not yet been agreed. This is the case particularly with Europol and Eurojust. Negotiations are further advanced on the Europol proposal (see discussion here), where it looks as if the UK’s concerns may have been addressed, with the consequence that the UK would opt in to the future Europol Regulation after its adoption. However, it is too early to say if the UK might eventually opt in to the future Eurojust Regulation.

Other transitional issues

Finally, the EU institutions have tried to clarify the new legal position which applies from today. They have published in the EU Official Journal a list of ‘Lisbonised’ measures, ie pre-Lisbon third pillar acts which have been amended since the Treaty of Lisbon entered into force. There is also a list of acts which have just ceased to apply to the UK.

Following an analysis of which pre-Lisbon measures could now be considered obsolete, and which therefore could be repealed. just last week the Commission made three proposals to repeal 24 pre-Lisbon acts. I’ll come back to these proposals in the near future – but suffice it to say that they don’t go nearly far enough to simplify the very complex legal framework that applies in this area.

Further on the issue of transparency, it would be useful to have a list of post-Lisbon measures which apply to the UK. It would not unduly task the Council and/or Commission to make the effort to publish online a constantly updated list of the measures which do or not apply to the UK (as well as Ireland and Denmark, which also have opt-outs), so that the public and practitioners in the UK and elsewhere can easily discover which EU laws in this field apply to the UK, and which do not.

 
 Annex

Protocol 36, Article 10

1. 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: the powers of the Commission under Article 258 of the Treaty on the Functioning of the European Union shall not be applicable and the powers of the Court of Justice of the European Union under Title VI of the Treaty on European Union, 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 Treaty on European Union.

 

2. The amendment of an act referred to in paragraph 1 shall entail the applicability of the powers of the institutions referred to in that paragraph as set out in the Treaties with respect to the amended act for those Member States to which that amended act shall apply.

3. In any case, the transitional measure mentioned in paragraph 1 shall cease to have effect five years after the date of entry into force of the Treaty of Lisbon.

4. At the latest six months before the expiry of the transitional period referred to in paragraph 3, the United Kingdom may notify to the Council that it does not accept, with respect to the acts referred to in paragraph 1, the powers of the institutions referred to in paragraph 1 as set out in the Treaties. In case the United Kingdom has made that notification, all acts referred to in paragraph 1 shall cease to apply to it as from the date of expiry of the transitional period referred to in paragraph 3. This subparagraph shall not apply with respect to the amended acts which are applicable to the United Kingdom as referred to in paragraph 2.

5. 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. A qualified majority of the Council shall be defined in accordance with Article 238(3)(a) of the Treaty on the Functioning of the European Union.

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.

6. 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 paragraph 4, first subparagraph. In that case, the relevant provisions of the Protocol on the Schengen acquis integrated into the framework of the European Union or of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, as the case may be, shall apply. The powers of the institutions with regard to those acts shall be those set out in the Treaties. When acting under the relevant Protocols, the Union institutions and the United Kingdom shall seek to re­establish the widest possible measure of participation of the United Kingdom in the acquis of the Union in the area of freedom, security and justice without seriously affecting the practical operability of the various parts thereof, while respecting their coherence.

 

 

Barnard & Peers: chapter 25

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