BELGIUM:The Government could be excluded from taking part in EU justice measures to which it has already signed up under the proposed EU reform treaty.
A draft protocol offering the Republic and the UK the ability to "opt out" from future EU justice laws gives other EU states the ability to exclude both states from existing EU measures. The Republic and the UK could also face financial penalties for not opting to take part in EU justice measures under tough new rules laid down in the treaty.
"If other states feel that, by dining a la carte on the justice menu, Ireland and Britain are distorting existing EU measures, they can exclude them," said one EU diplomat, who said pro-EU states such as Spain had argued that the Republic's existing "opt out" was too flexible.
The new rules have been written into a protocol that offers the Republic and the UK the ability to retain their "opt out" from EU justice laws and the Schengen border control system. They are likely to severely restrict the Government's ability to opt out of future EU proposals, as any opt out could have serious repercussions for existing legislation. For example, the Republic has already signed up to join a new EU border management database known as SISII, which is considered essential to tackle terrorism and crime. But if the EU decides to enhance the database in the future and the Republic uses its "opt out", a majority of other states could force the Government to leave the SISII system altogether.
A host of other measures ranging from civil law procedures to police co-operation may also be affected if the Republic adopts the protocol.
The Government is due to make a formal decision on the reform treaty at next Tuesday's Cabinet meeting.
The reform treaty will change how the EU makes decisions and set new policy priorities for the 27-member union. A decision to adopt the "opt-out" protocol would bind the Republic closer to the UK in justice matters rather than following EU states that are keen to co-operate more closely in this sensitive field.
The draft protocol, which has been seen by The Irish Times, also enforces a transitional period of five years before the European Court of Justice can extend its jurisdiction over EU justice measures introduced prior to the ratification of the reform treaty in 2009. This means that EU citizens will not be able to appeal to Europe's highest court against controversial measures such as the European arrest warrant until 2014.
The UK has negotiated its own infinite derogation from the court oversight for existing EU justice measures, although many of these measures will be amended in coming years. The UK and the Republic have in recent years been sceptical about giving the court and the European Parliament oversight in justice and policing. But it is understood that the Republic will not be able to apply for the post-2014 derogation from the court oversight.
London has spent the past three weeks negotiating the protocol as one of its "red lines" on the reform treaty, to enable it to avoid holding a referendum. British prime minister Gordon Brown is expected to laud the "opt out" on justice as a key measure to protect British sovereignty.
However, it has become something of a headache for the Government, which wants to maintain its common travel area with Britain but also stay close to the European mainstream.
Meanwhile, the Government has informed the EU that it will not opt out of the Charter of Fundamental Rights.