Letter from Mr Jack Straw MP, Secretary
of State for Foreign and Commonwealth Affairs, answering further
questions put by the Committee on the 5 November 2003.
As you will recall, when my appearance at your
Committee on 5 November was cut short by a division, I promised
to respond in writing to any outstanding issues. Your Committee
Clerk therefore forwarded, in a letter of the same day, a list
of the remaining questions to which the Committee wanted answers.
I have set these out below, with my response beneath each one.
1. In what ways does the Government have
doubts about the formulation of Article I-10 concerning the primacy
of Union law (CIG 37-03, p.3)?
The jurisprudence of the European Court of Justice
since the case of Costa v ENEL (case 6/64) has clearly
established the principle that no provision of national law may
be invoked to override Community law. Parliament accepted this
principle when it passed the European Communities Act of 1972.
In the interests of transparency, the Convention sought, for the
first time, to codify the principle in the European Treaties through
draft Article I-10. As Mr Heathcoat-Amory noted, we raised the
drafting of the Article with the Presidency, as we did in the
Convention, in the context of the discussion of non-institutional
issues. This was to seek clarification that the article does indeed,
as intended, simply reflect existing case-law. Jean-Claude Piris,
Head of the Council Legal Service, has confirmed that this is
the case.
2. Article 53(4) of the draft treaty provides
for all "modalities relating to the Union's resources"
to be decided by QMV. What is meant by "modalities",
and can you provide an assurance that there is no prospect of
the UK's budget rebate falling within the scope of Article 53(4)?
Will maintaining unanimity in respect of the budget rebate be
a red-line issue for the UK?
We take "modalities" to mean terms
and conditions. The Government's position on unanimity in respect
of the budget rebate is set out in paragraph 53 of the White Paper
on the IGC:
"The Government will insist on preserving
arrangements which ensure that revenues remain a matter for Member
States and decisions on them subject to unanimity and national
ratification."
This will entail amendment of paragraph 4 of
Article 53 to ensure that QMV is not extended to the area of own
resources.
3. Why has the UK indicated opposition to
the extension of co-decision to agriculture?
As we said in our White Paper, it is right that
the European Parliament should have an appropriate role in the
adoption of most European legislation. So we agree that co-decision
is sensible as a general rule, but want to look at the pros and
cons of it on a case-by-case basis. The crucial point in the case
of agriculture is to be sure that any changes do not interfere
with the necessary speed of decision in managing agriculture regimes.
4. The Committee understands that the UK
has been arguing in the Working Group of Legal Experts against
extending the subsidiarity early-warning mechanism to later stages
of the legislative process. Can you confirm this, and, if so,
explain it?
We have not opposed any proposal of this kind.
We are and have been through the Convention, strong supporters
of the early-warning mechanism.
ECJ JURISDICTION
OVER CFSP
I also promised to send a note about ECJ jurisdiction
over CFSP. As the Committee knows, the Government's objective
is to ensure that the new Treaty retains the existing special
arrangements for the Common Foreign and Security Policy in order
to keep foreign and defence policy as the province of the Member
states. That means we want to keep the existing situation whereby
the European Court of Justice does not have jurisdiction over
CFSP.
Article III-282 of the Convention's draft states
that the ECJ shall not have jurisdiction with respect to Article
I-39 (Common Foreign and Security Policy), I-40 (European Security
and Defence Policy) and the provisions of Chapter II of Title
V of Part III concerning the CFSP. The Government welcomes the
inclusion of this language in the draft Treaty. The detail of
the Part III Articles, including Article III-282, is under discussion
in the Working Group chaired by the Council Legal Service which
continues to meet in Brussels several times a week. If, as a result
of those discussions, there is any change to the language of Article
III-282 that is not purely technical, I will of course inform
the Committee.
At our evidence session on 5 November, Michael
Connarty MP asked whether Article I-15 would be justiciable by
the European Court of Justice. Article I-15 is the introductory
statement of the Union's competence in CFSP and duty of loyal
cooperation. I undertook to check that our Legal Advice accorded
with the explanation given by my official last week. Our Legal
Advisers have confirmed their understanding that this Article
could only be implemented by the provisions in Articles I-39 and
I-40, which in turn are "the specific provisions for implementing
common foreign and security policy" and "the specific
provisions for implementing the common security and defence policy".
As both Articles I-39 and I-40 are specifically excluded from
ECJ jurisdiction (Article III-282), we are satisfied that Article
I-15 itself would not be justiciable by the European Court of
Justice.
I hope that the Committee finds this useful.
17 November 2003
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