Select Committee on European Scrutiny Written Evidence


APPENDIX 13

Memorandum from by Professor Trevor C Hartley, Professor of Law Emeritus, London School of Economics

WHAT THE CONSEQUENCES WOULD BE IF THE TREATY IS NOT RATIFIED

  The question addressed here is what would happen if the Treaty Establishing a Constitution for Europe—the treaty containing the draft Constitution—were not ratified by one or more Member States.

  The first point to make is that the draft Constitution, like the earlier Community treaties, is a treaty under international law. Its legal validity depends on a treaty; and the legal validity of that treaty depends on international law. The legal validity of the draft Constitution (and of the treaty establishing it) in the legal system of the Member States depends on the law—the constitutional law—of the State in question. There is no other source from which it can obtain legal validity. In the case of the existing (and earlier) Community treaties, this has been acknowledged by the courts of a number of Member States, including the United Kingdom. [20]There can be no doubt that the same is true with regard to the draft Constitution. [21]The fact that it is called a "Constitution" does not change things. In international law, the term "constitution" is often used for a treaty establishing an international organisation. [22]We must, therefore, consider the matter, first and foremost, in terms of international law, specifically the international law relating to treaties.

  In determining the consequences of non-ratification, two treaty provisions are relevant. The first is the provision at present in force on amendments to the Community treaties. This is relevant because the draft Constitution would clearly amend the present treaties—in fact, it would repeal two of them, the Treaty on European Union and the Treaty Establishing the European Community. [23]The relevant provision is Article 48 of the Treaty on European Union. This provides that amendments to it must be ratified by all the Member States in accordance with their respective constitutional requirements. [24]The second relevant provision is Article IV-447 of the Treaty Establishing a Constitution for Europe. It provides, in similar terms, that it must be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. It goes on to say that it will enter into force on 1 November 2006, "provided that all the instruments of ratification have been deposited".[25] If this does not happen, it would go into force after the last signatory did so. These provisions make absolutely clear that the draft Constitution can enter into force only if all the present Member States agree. Consequently, it follows that if one Member State fails to ratify the treaty, the draft Constitution will not go into force. In this event, the existing treaties would continue to apply, since their repeal depends on provisions of the draft Constitution. This is the legal position.

  Some Member States would not like this. What could they do? First of all, they could exert political pressure on the recalcitrant Member State to make it change its mind. In the case of Britain, at least, this could be withstood if there was the political will. If the other Member States felt strongly enough, they could, in theory, take a very drastic step: they could all withdraw from the Community and Union. The United Kingdom would then be the only one left. So the present Community and Union would cease to exist. The remaining 24 Member States could then establish a new Community based on the draft Constitution. The United Kingdom would then be faced with the option of joining on their terms or remaining outside.

  This, however, is mere fantasy. It would work only if the other 24 Member States were united, which they would not be. One could hardly believe that many, let alone all, would want, in effect, to expel Britain. We are a major importer of agricultural products, almost certainly the biggest in the EU. Where would the Common Agricultural Policy be if we were to leave and buy our food on the world market? Where would the embryonic European defence policy be without the United Kingdom? What would happen to economic growth in the Community if the Member State with the most dynamic major economy were to leave? The draft Constitution is not so important to any of the other Member States for them to want to expel us. There is nothing in it that touches their vital interests.

  What in fact would happen if the United Kingdom were not to ratify is that the others might ask us to negotiate with them on a mutually acceptable solution. They might ask us to accept certain elements in the draft Constitution in exchange for opt-outs from others. We could even demand opt-outs from parts of the existing treaties. Everything would be open to negotiation. The outcome would depend on the bargaining positions of the participants and on how determined they were.

  This is what the consequences would be if the treaty was not ratified.

6 December 2004











20   For the United Kingdom, see Thoburn v Sunderland City Council ("Metric Martyrs" case) [2002] 3 WLR 247; [2002] 1 CMLR 50; [2002] EWHC 195 ADMIN. (Div. Ct); for Germany, see Brunner v European Union Treaty (German Maastricht case) 89 BVerfGE 155; 20 EuGRZ 429; [1993] NJW 3047; English translations in: [1994] 1 CMLR 57; (1994) 33 ILM 388; Andrew Oppenheimer, The Relationship between European Community Law and National Law-The Cases (Cambridge University Press, Cambridge, 1994), p 526 (German Federal Constitutional Court (Bundesverfassungsgericht)); for Denmark, see Carlsen v Rasmussen (Danish Maastricht case), Judgment of 6 April 1998, [1999] 3 CMLR 854 (English translation) (Supreme Court of Denmark (H'jesteret)); for other EU States, see the decisions of the French Conseil Constitutionnel in Maastricht I, Decision 92-308 DC, 9 April 1992, Recueil, p 55; [1993] 3 CMLR 345 (English translation) and Amsterdam, Decision 97-394 DC, 31 December 1997, JORF No 2 of 3 January 1998; the decisions of the Italian Constitutional Court (Corte Costituzionale) in Frontini, Decision No 183 of 27 December 1973, [1974] RDI 154; [1974] 2 CMLR 372 (English translation) and Fragd, Corte Costituzionale, Decision No 168 of 21 April 1989, [1990] I Foro Italiano 1855 (English translation in Andrew Oppenheimer, above, p 653); and the decisions of the Greek Council of State in Vagias v DI KATSA, Decision No 2808/1997 of 8 July 1997, discussed in Maganaris, "The Principle of Supremacy of Community Law-The Greek Challenge" (1998) 23 ELRev. 179 and "The Principle of Supremacy of Community Law in Greece -From Direct Challenge to Non-Application" (1999) 24 ELRev. 426. Back

21   For a recent decision of the French Conseil Constitutionnel on this very point, see Decision No 2004-505 DC of 19 November 2004 on the Treaty Establishing a Constitution for Europe, paragraph 9 (available on http://www.conseil-constitutionnel.fr/). Back

22   For example, in one of the best known definitions, that originally proposed by Sir Gerald Fitzmaurice in his report on the Law of Treaties presented to the International Law Commission in March 1956, an international organisation is defined as "a collectivity of States established by treaty, with a constitution and common organs, having a personality distinct from that of its member-States, and being a subject of international law with treaty-making capacity" (italics added): see [1956] II Yearbook of the International Law Commission 104 at p.108. Another example is the official title of the treaty establishing the International Labour Organisation, which is the "Constitution of the International Labour Organisation". This was adopted in April 1919 by the Paris/Versailles Peace Conference convened after the First World War. The same usage applies in French: the French text of the definition quoted above of an international organisation uses the word "constitution" (Annuaire de la Commission du droit international (1956-II) at p 106) and the official French name for the treaty establishing the ILO is "Constitution de l'Organisation Internationale du Travail". Back

23   See Art IV-437(1) of the Treaty Establishing a Constitution for Europe (Article numbering in this memorandum is always according to CIG 87/1/04 Rev. 1). Back

24   Italics added. Back

25   Italics added. Back


 
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