Written evidence submitted by Grinne de
Búrca, Professor of European Union law at the European
University Institute, Florence
1. THE PRACTICAL
CONSEQUENCES OF
THE NEW
REFERENCES (IN
ARTICLES 2 AND
3) TO THE
UNION'S
VALUES AND
OBJECTIVES
The existing EC treaty (TEC) does not list the
"values" of the Community, but Article 6 of the Treaty
on European Union (TEU) declares that the Union is founded on
the principles of liberty, democracy, respect for human rights
and fundamental freedoms, and the rule of law. In terms of objectives,
Articles 2 and 3 TEU list the task and objectives of the EU and
Articles 2-4 of the EC treaty list the tasks and activities (but
not the objectives) of the EC.
Under the constitutional treaty, Article I-2
lists the Union's values, and Article I-3 lists its objectives.
The new values (which are added to those currently mentioned as
(principles in Article 6 TEU) include respect for human dignity,
equality, and the rights of persons belonging to minorities. Reference
is also made in a more general way to "a society in which
pluralism, non-discrimination, tolerance, justice, solidarity
and equality between women and men prevail." The newly added
objectives include the promotion of "peace, its values and
the well-being of its peoples", also "a highly competitive
social market economy, aiming at full employment and social progress",
"scientific and technological advance", "social
justice and protection, equality between women and men, solidarity
between generations and protection of the rights of the child",
and "territorial cohesion". The need to "respect
its rich cultural and linguistic diversity" and to "ensure
that Europe's cultural heritage is safeguarded" are also
mentioned. In international relations, the new objectives include
contributing to "the sustainable development of the Earth,
solidarity and mutual respect among peoples, free and fair trade,
eradication of poverty", protection of "the rights of
the child", and to contribute to the "strict observance
and the development of international law, including respect for
the principles of the United Nations Charter" (re the latter,
Article 11 of the TEU had previously stipulated only that the
EU would act in accordance with the principles of the UN Charter,
whereas the new objective is phrased in more mandatory and stronger
terms).
In terms of the practical consequences of the
expanded list of the Union's values in Article I-2, and of its
objectives in Article I-3 , two possibilities come to mind. The
first concerns the role of the Union legislature, and the second
the role of the Court of Justice.
As far as lawmaking is concerned, the values
and objectives could, without conferring new powers, influence
the kind of policies which the institutions choose to promote.
The new provisions could give impetus to the Commission (or Member
States, where they are empowered under the constitution to make
proposals) to propose legislation which is different in nature
and orientation from the kind of measures it might otherwise have
felt legitimately able to propose. To give an example, protection
of the rights of the child is quite a novel aspect of the new
values and objectives, since there is no mention of children anywhere
in the current EC or EU treaties; meaning that existing legal
powers (which will be contained in part III of the constitutional
treaty, if enacted) in fields such as citizenship, consumer protection,
education etc, could more legitimately be aimed strongly at the
protection of children in the future.
More significantly, perhaps, the combination
of the new values and objectives might have the effect of conferring
a new kind of power on the EU. This is because of the effect of
Article I-18 of the constitutional treaty (which is a slightly
amended version of the current Article 308 EC). Article I-18 states
that if action by the EU should prove necessary, within the framework
of its policies in part III of the constitution, and the necessary
powers have not been provided, the Council acting unanimously
on a proposal from the Commission and after consulting the Parliament
shall adopt appropriate measures. This provision—sometimes
called the "implied powers" or "residual powers"
clause, but now called the flexibility clause under the new constitution—means
that if the EU has an objective but has not been given the necessary
powers, the Council can confer the necessary powers to act on
the EU. The only limit is that the action should be envisaged
within the framework of the policies in part III, which includes
all of the EU's policies. The way in which Articles 2 and 3 of
the new constitution together with Article 18 might have the effect
of creating potentially new or expanded powers is that "promoting
the values of the Union" will become an objective of the
Union according to Article 3. Since amongst the values listed
in Article 2 is the promotion of respect for human rights, this
suggests that the Union's competence to adopt legislation under
its residual powers/flexibility clause to promote and protect
human rights may be clearer and less contestable under the new
constitution than at present. At present, the protection of human
rights is not an express objective of the EC or EU, and so it
is rather unclear whether Article 308 EC could be used for this
purpose (eg as an implicit/unstated objective). By the same token,
Article 18 of the constitution taken together with Article 3 suggests
that the EU under the new constitution could be empowered to adopt
legislation to promote solidarity between generations, to promote
social justice etc (which, once again, are not currently express
objectives of the EC/EU), provided that unanimous political will
exists.
As far as the Court of Justice is concerned,
the listing of values and objectives may influence the Court in
its interpretation of other parts of the constitutional treaty,
or of legislation and other secondary measures. When there is
a contested interpretation of an EU law, the ECJ has occasionally
drawn on the preamble to the treaty for support; but the express
listing of values is likely to provide a stronger source of interpretative
guidance/inspiration of this kind. While it could not easily be
claimed that the ECJ would in the future be required to change
or adapt a particular interpretation in a given case, given the
fluid and multifaceted nature of judicial interpretation, the
Court would certainly be given an incentive or opportunity, where
it is inclined to do so, to read and interpret legislative and
other measures in the light of the new values, and indeed of the
new objectives.
6. THE EFFECTIVENESS
OF THE
EMERGENCY BRAKES
IN CRIMINAL
JUSTICE AND
OTHER MATTERS
The new emergency brake provisions introduce
a "Luxembourg veto" kind of element into the area of
criminal procedure, the definition of criminal offences, and social
security for migrant workers, since they allow a Member State
to plead "fundamental aspects of its criminal justice system"
or "fundamental aspects of its social security system"
in order to suspend the ordinary (co-decision) legislative procedure
outline in Article III-396 of the constitution. However, the emergency
brake provisions are not in themselves a full power of veto, since
they do not necessarily enable a Member State to block the proposed
legislation in a definitive way. However, in the criminal justice
field they enable a state which is adamantly opposed to a particular
proposal ultimately to avoid the application of such legislation
in its territory, by pushing the other states towards use of the
"enhanced co-operation" provisions. The emergency brake
provisions enable a State to have the legislative procedure suspended,
and to have the draft legislation referred to the European Council.
A time limit is imposed on the European Council's consideration
of the draft, so that if it has not acted after four months, it
must either refer the proposed legislation back to the Council
(which has the effect of ending the suspension of the ordinary
legislative procedure and allowing the co-decision procedure to
continue) or it must request the Commission or the group of Member
States which proposed the legislation to submit a new draft. In
either of these two cases, therefore, the normal legislative procedure
will continue and the Member State which expressed its concerns
will be bound by any measure which is eventually adopted, assuming
that sufficient agreement can be reached on the new draft.
Provision is also made for the situation where
the European Council fails to pursue either of these two routes
after four months has passed, or where no agreement is reached
after 12 months following the new submitted draft. In either of
these situations, where the legislation concerns criminal justice,
a de-facto-veto-through-deadlock is prevented by allowing the
Member States—where at least one third of the states wishes
to do so—to move ahead by the use of enhanced co-operation.
Authorisation for enhanced co-operation—which would otherwise
have to be obtained under Article III-419 by a qualified majority
of the Council on a proposal from the Commission with the assent
of the European Parliament—is deemed to have been given.
In the social security field under Article III-136, there is no
provision which would encourage or facilitate the use of enhanced
co-operation—perhaps this omission was because this is seen
as a policy field which might not satisfy the substantive conditions
for enhanced co-operation under Article III-416, including the
requirement that neither the internal market nor social, economic
and territorial cohesion should be undermined by its operation—but
it would be open to the relevant group of Member States to seek
to initiate the enhanced co-operation procedure under the normal
mechanism provided for in Article III-419 and see whether authorisation
would be granted. Otherwise, presumably if after 12 months no
agreement has been reached on the newly submitted social security
draft legislation, the ordinary legislative procedure would continue,
and the objecting member state would either be outvoted if part
of a sufficiently small minority, or might succeed in blocking
the legislation if part of a sufficiently large minority.
A number of commentators have suggested that
the emergency brake procedure is unlikely to be used often, because
of its complexity. This is probably true, although the very existence
of the possibility of the procedure may well have something of
the effect that the "shadow of the Luxembourg veto"
had for years, ie inducing caution and compromise into the operation
of the "ordinary legislative procedure" in these fields,
so as to avoid the risk of any Member State pulling the brake.
7. THE EFFECT
OF THE
"HORIZONTAL" CLAUSES
WHICH GOVERN
THE APPLICATION
OF THE
CHARTER OF
FUNDAMENTAL RIGHTS
Article II-111(1) [formerly Article 51(1) of
the Charter] indicates that the Charter is addressed to the institutions
and bodies of the EU, and to the Member States only when they
are implementing Union law. Given that the "explanatory notes"
to the Charter which were prepared by the legal service to the
Convention have been given constitutional status both in Article
II-112(7) and in Declaration no 12, the meaning of the phrase
"implementing Union law' will in all probability be wider
than its literal wording suggests, and more in line with the existing
case law of the Court of Justice on the circumstances in which
member States are bound to observe fundamental human rights under
EU law. In other words, the Charter applies to member States when
they are acting "within the scope of EU law", including
when they are derogating from EU law (and recent cases such as
Carpenter and Akrich involving UK immigration law suggest that
this is not narrowly construed by the ECJ) and is not limited
only to when they are actually implementing an EU measure. The
explanatory notes also indicate something which is not made explicit
in the language of the Charter but which is an established part
of EC law and jurisprudence, ie that in its application to the
Member States, the Charter provisions also apply to local and
regional authorities within states.
Mention of the principle of subsidiarity is
also made in Article II-111(1), although its meaning is not easy
to discern, other than as an invocation of the spirit of that
principle (ie that the EU should be careful not to take action
to pursue goals which can be better achieved by the member States
acting alone) in any case where the Charter is considered to impose
positive obligations on the EU to act using its competences under
the constitutional treaty. [note that many provisions of the ECHR—some
of which correspond to provisions of the EU Charter—have
been held by the ECtHR to confer positive obligations on States
to take action, and according to Article II-112(3) provisions
of the Charter which correspond to provisions of the ECHR are
to have "the same" meaning and scope] Article II-111
goes on to specify that the EU and the Member States shall "respect
the rights, observe the principles and promote the application
thereof in accordance with their respective powers". This
obligation to "promote" the application of the rights
and principles in the Charter forms a kind of counter-balance
to the more negative phrasing of paragraph 2, and arguably establishes
a tension between this positive obligation to promote the Charter
provisions and the strong statement that the Charter confers no
new powers on the EU and does not modify the powers and tasks
set out in the rest of the constitutional text. How that tension
will be resolved in the practice of the institutions (including
the ECJ) remains to be seen and can only be the subject of speculation
for now.
Article II-112(1), which draws on the jurisprudence
both of the ECHR and of the ECJ, contains a general "derogation"
clause, indicating the nature of the restrictions on Charter rights
which will be acceptable. Any limitation on the exercise of rights
and freedoms contained in the Charter must be "provided for
by law" (echoing the familiar "prescibed by law"
requirement of the ECHR) and must respect the essence of those
rights and freedoms. Limitations must meet the requirements of
proportionality and must be "necessary and genuinely meet
objectives of general interest recognised by the Union or the
need to protect the rights and freedoms of others". Article
II-112(2) then addresses the question of overlap between existing
provisions of EC law and the new provisions of the Charter, providing
that rights recognised by the Charter which are "based on"
the EC or EU Treaties "shall be exercised under the conditions
and within the limits defined by those Treaties". This seems
intended to avoid any potential differences in the interpretation
of similarly worded provisions of the Charter and of the EC/EU
treaties, although the phrase "based on" is perhaps
somewhat ambiguous. The explanatory notes however take a fairly
clear view on this, saying that rights recognised in the Charter
which were "already expressly guaranteed" in the EC
and are now found in other Parts of the Constitution (the obvious
example of citizenship rights is given) remain subject to the
conditions and limits applying to the EU law on which they are
based.
The tricky relationship between the ECHR, other
international human rights instruments, national constitutional
provisions and the new Charter is addressed in Articles II-112(3)
and II-113. Article 112(3) relates specifically to the ECHR and
is evidently intended to promote harmony between the "corresponding"
rights of the European Convention and those of the Charter (and
the explanatory notes set out a list of the rights in the two
texts which can be said to be corresponding; as well as indicating
when there are differences in the scope of the respective limiting
clauses in each of the two), while at the same time not preventing
the EU from developing more extensive protection than is provided
for under the Convention.
This provision does not address more specifically
the question of the relationship between the two European Courts,
the ECtHR in Strasbourg and the ECJ in Luxembourg, although it
seems likely to be intended to promote a degree of deference on
the part of the ECJ to the ECtHR in relation to the interpretation
of the meaning of the various rights and of the limitations on
those rights. The explanatory notes declare that the EU legislator
"in laying down limitations to those rights, must comply
with the same standards as are fixed by the detailed limitation
arrangements laid down in the ECHR" but "without thereby
adversely affecting the autonomy of Community and that of the
Court of Justice", but it also indicates that the meaning
of the rights are determined in part by the ECtHR (and obviously
in part by the ECJ).
[I have already commented, in the previous written
material submitted to the European Scrutiny Committee, on paragraphs
4 and 5 of Article II-112, previous Article 52(4) and (5) of the
Charter]
Article II-113 of the Constitution is a more
general "non-regression" clause—that the Charter
cannot be used as a reason or excuse for lowering standards which
are required under national or international law—which is
similar in ways to that in Article 53 of the ECHR, but Art II-113
refers not only to the ECHR but also to national constitutions
and international agreements. The general wording of this provision
seems to preserve the existing tension between the autonomy of
the EU/EC legal order on the one hand, and the claims of Member
States to the authority of their fundamental constitutional provisions
on the other, without pointing in the direction of the supremacy/primacy
of either over the other within their respective spheres of authority.
Finally, Article II-114 (formerly Art 54 of
the Charter) contains a clause modelled on Article 17 of the ECHR,
which provides that no provision of the Charter shall imply the
right to engage in any activity aimed at the destruction or excessive
limitation of any of the rights contained therein. In the ECHR
context the parallel provision has been used a number of time
in cases involving so-called "hate speech", so that
those seeking to use the right to freedom of expression in order
to undermine the dignity or equal worth of others were not entitled
to invoke the right for that purpose.
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