Memorandum from Professor Piet Eeckhout,
Director, Centre of European Law, King's College London; associate
member, Matrix Chambers
OPENING STATEMENT
The comments below are based on my general expertise
as an academic working in the field of EU law, and on my experience
working in the European Court of Justice with Advocate General
Jacobs (1994-98). I have not been personally involved in the drafting
of the Constitutional Treaty, but have closely followed the drafting
process. The Centre of European Law at King's College puts the
current EU constitutionalisation process at the heart of its activities,
inter alia by organising various serious of academic lectures.
This memorandum offers some concise comments on the questions
subject to the inquiry. I am extremely grateful for the research
assistance by Ms Christina Eckes, PhD student at the Centre of
European Law.
1. THE PRACTICAL
CONSEQUENCES OF
THE NEW
REFERENCES (IN
ARTICLES 2 AND
3) TO THE
UNION'S
VALUES AND
OBJECTIVES
1. The references in Articles I-2 and I-3
to, respectively, the values and objectives of the Union correspond
to existing provisions in the EC Treaty (Articles 2 and 3) and
in the EU Treaty (Articles 2 and 6). The values in Article I-2
appear particularly significant for future accessions, since Article
I-1(2) requires that applicant States respect those values. They
are equally binding on current Member States, and can be enforced
through the suspensions-of-rights procedure in Article I-59 (which
corresponds to Article 7 EU Treaty). The wording of Article I-2
differs somewhat from Article 6 EU Treaty in the sense that certain
values are new, at least in terms of express identification. None
of the additions appear disputed, and it is therefore doubtful
whether the new provision differs much from the current law.
2. The Union's objectives listed in Article
I-3 also largely correspond to existing provisions on the EU's
objectives, which can be found in the Treaty provisions identified
above, but also in others. Article I-3 makes an attempt to reformulate
the essential objectives of the current and future EU. It may
also be noted that it is not the only provision doing so. In the
area of external action, for example, the EU's objectives are
set out in more detail in Article III-292(2).
3. The practical consequences of these new
references can be predicted only within the parameters of current
EU law and politics. The Court of Justice has occasionally referred
to the values and objectives of the EU, but I cannot recall many
cases where such references were vital to the Court's reasoning.
One could mention the very early judgments on the core constitutional
principles of direct effect (Van Gend en Loos) [1]and
primacy (Costa v Enel), [2]as
well as judgments on remedies before the Court (Les Verts[3]
and Chernobyl). [4]In
other, more frequent, cases the Court may use in particular the
objectives of the EU as a tool of interpretation. This is in accordance
with standard methods of international treaty interpretation,
which require interpretation in the light of a treaty's object
and purpose.
4. Within the scope of this memorandum it
is not possible to discuss the potential relevance of each and
every objective of the EU as listed in Article I-3, or indeed
in any other provisions. Let me perhaps give one specific example.
Article I-3(4) provides that the Union "shall contribute
to . . . the strict observance and the development of international
law, including respect for the principles of the United Nations
Charter". This provision may become relevant in the debate
about the legal effects, in EU law, of international law (in particular
international agreements concluded by the EU). At present the
Court of Justice does not recognise the direct effect of the law
of the World Trade Organisation (Portugal v Council). [5]That
case-law is not however completely settled yet, and the above
provision will no doubt be referred to by those arguing for direct
effect of WTO law. Such arguments may influence the Court of Justice.
5. The objectives of the EU seem to have
little relevance for the Member States. They are clearly not a
basis for reviewing the legality of any acts adopted by a Member
State.
2. WHETHER THE
TREATY MAKES
"ENHANCED CO
-OPERATION" MORE
LIKELY
6. The evolution of treaty provisions on
"enhanced co-operation" has hitherto been confined to
EU constitutional politics, where there has been a long-standing
debate about the core and the periphery, concentric circles, variable
geometry, and coalitions of the willing. Those provisions have
not as yet had any tangible effect on the EU's practice, as they
have never been used. The new provisions on enhanced co-operation
modify and expand the existing provisions, clearly with a view
to making such co-operation feasible in practice. In the light
of the current scope of EU competences and of the EU's expanding
membership the actual application of enhanced co-operation does
indeed appear more likely. One should in this respect highlight
the link with the emergency brakes (see question 6). Where those
brakes are used by a Member State, recourse to enhanced co-operation,
which in some cases becomes semi-automatic if the European Council
proves unable to break the deadlock, seems a generally convenient
resolution of the political crisis. It may well be often used
in such circumstances.
7. I am none the less of the view that enhanced
co-operation is subject to significant, inherent limitations.
It is for example less likely to be used in social, fiscal, and
economic policy areas, where there will generally be competitiveness
concerns: the Member States exploring enhanced co-operation may
in the end be concerned that the standards which they would like
to set affect the competitiveness of their companies in the internal
market. In some contexts there may be free-rider issues: non-participating
Member States may also benefit from policies developed under enhanced
co-operation. And enhanced co-operation is clearly difficult to
realise where there is a strong institutional dimension to a particular
policy.
3. HOW PUBLIC
MEETINGS OF
THE COUNCIL
WHEN LEGISLATING
WOULD WORK
IN PRACTICE—IN
PARTICULAR, HOW
MUCH WOULD
BE PUBLIC
8. According to Article I-24(6) the "Council
shall meet in public when it deliberates and votes on a draft
legislative act". This provision builds on previous attempts
to increase transparency, which can only be welcomed. How this
will work in practice does not appear to be too difficult to predict.
The formal, official sessions of the Council are clearly identifiable.
Those sessions will be split up in a legislative and a non-legislative
session. Members of the public may be given physical access to
the public deliberation, even if I am not certain that the buildings
and rooms currently used offer adequate facilities. It is however
relatively straightforward to broadcast the public deliberation,
even on the internet.
9. The requirement of public deliberation
does not however appear to extend to the preparatory work by the
Coreper or to the informal contacts and negotiations between delegations.
Whenever the Council wishes to deliberate away from the public
eye it will simply need to avoid having a formal meeting. It seems
difficult to scrutinise such practices.
4. HOW THE
NEW COUNCIL
PRESIDENCY AND
NEW FOREIGN
MINISTER WOULD
WORK, AND
THE RELATIONSHIP
BETWEEN THE
EUROPEAN COUNCIL
PRESIDENCY AND
THE PRESIDENCY
OF INDIVIDUAL
COUNCIL FORMATIONS
10. This question refers to some of the
most significant institutional modifications which the Constitution
for Europe seeks to introduce. There seem to me to be two general
tendencies. The first is that, in the absence of any consensus
for modifying the so-called "institutional balance"
in the direction of strengthening the position of one or two political
institutions to the detriment of others, the Constitutional Treaty
moves further along the path of strengthening each institution.
This, of course, may well be a zero-sum game, or, worse, a recipe
for interinstitutional conflict. The second tendency, which is
new, is to personalise (and thereby further politicise) the institutions.
To some extent this second direction is aimed at avoiding or overcoming
the above-mentioned interinstitutional conflict. The creation
of the position of a Union Minister for Foreign Affairs (UMFA)
can be read in this way.
11. It is very difficult to predict the
effects of this personalisation and politicisation. These phenomena
may well give rise to greater media attention (see for example
the recent appointment of the new Commission). Whether this will
be the kind of media focus which brings the EU closer to its citizens
is another matter. It may also lead to greater disenchantment
and loss of legitimacy.
12. The creation of the double-hatted UMFA
appears to attract most criticism. Most commentators seem to be
of the view that this person's divided loyalty will be very difficult
to manage and will itself lead to more interinstitutional strife
as the Council and the Commission will seek to turn the minister
into their agent.
13. I do not share such criticism. I think
it is essential to lift the institutional veil. In the current
EU there are, in the sphere of foreign policy and external relations,
two parallel administrations, which have developed an unhealthy
antagonism. The Council administration is said to be intergovernmental,
the Commission's administration supranational. Yet the Council's
administration in this area, headed by the CFSP Special Representative,
has clearly developed into something beyond a mere secretariat
of the Member States. It is wholly inevitable that a central administration
with policy input needs to define the common interest, and operate
from that platform, in order to be effective. The Council Secretariat
has clearly moved in that direction. Of course the national administrations
have greater weight in the CFSP than they have in first-pillar
external policies. But the function of the central administration
is similar, whether it is called Council Secretariat, or Commission,
or indeed External Action Service, as projected in the Constitutional
Treaty. That is why the merger of these parallel administrations
is a good idea.
14. It does not follow that in CFSP matters
the Union Minister will become more supranational than the current
High Representative: the unanimity rule prevents that. Even if
the Commission were able to "embed" the Union Minister
in its own political vision and conceptions, the Minister will
still need to have the Council on board, under unanimous decision-making.
The Minister will not be able to move too much ahead of the pack,
in particular as he or she will be accountable to the Council.
Nor is there a great risk that the Minister will infect what are
now supranational external policies (in the fields of trade, development
co-operation, etc) with intergovernmentalism. I cannot see incentives
for doing that. As a politician the Minister will be judged on
his or her political successes, and it is clearly more straightforward
to achieve such successes within the supranational mode of decision-making
than within the intergovernmental mode. There are further legal
constraints which prevent the moving around of policies (see Article
III-308).
15. The relationship between the Union Minister
and the President of the European Council may be somewhat more
difficult, because the latter will also, at his or her level,
ensure the external representation of the EU. As the European
Council is very active in foreign policy, there is clearly scope
for some tension. Those who hold these positions will need to
co-ordinate closely. The same goes for the relationship between
the European Council President and the rotating Council presidencies.
Here, however, the co-ordination is institutionalised, as it is
devolved to the General Affairs Council (see Article I-24(2)).
The rotating Council presidencies may well become much less significant,
in political terms, than the current Council presidencies, and
move in the direction of a pure chairing function.
16. This personalisation of the institutions'
chairs and presidencies may contribute to more effective decision-making.
Those who will find themselves in these positions will need to
realise that in the consensus-based EU system of checks and balances
all institutions need to co-operate, and that they need to take
on a mediating role in order to be effective.
5. THE EXTENT
TO WHICH
THE UK GOVERNMENT
HELD ITS
RED LINES
OVER QMV RELATING
TO TREATY
CHANGES, TAXATION,
SOCIAL SECURITY,
DEFENCE, CRIMINAL
PROCEDURAL LAW,
THE SYSTEM
OF OWN
RESOURCES AND
THE COMMON
FOREIGN AND
SECURITY POLICY
17. In the policy fields in question either
straightforward unanimity or some other system ensuring an effective
veto power have been maintained.
18. Treaty changes are governed by Articles
IV-443 to IV-445. The first concerns the ordinary revision procedure,
where unanimity is required as each Member State must ratify amendments
in accordance with its constitutional requirements. Articles IV-444
and IV-445 introduce simplified revision procedures, but unanimity
is not abandoned.
19. In the field of taxation Article III-171
maintains unanimity, and the general provision on internal market
harmonisation (Article III-172) excludes "fiscal provisions".
20. In the area of social security Article
III-136, regarding social security issues connected with the free
movement of workers, introduces QMV, where the EC Treaty currently
provides for unanimity. However, paragraph 2 contains the so-called
emergency brake. It permits any member of the Council to refer
the matter to the European Council, which decides by consensus.
The move to QMV is in any event of limited relevance, because
there has been a regulation on social security of migrant workers
since 1971 (Regulation 1408/71). More important is that Article
III-210, in the section on social policy, maintains the unanimity
requirement for "social security and social protection of
workers".
21. In the fields of CFSP and CSDP (foreign
policy and defence) Article III-300 maintains the voting system
as agreed in Nice: a rule of unanimity with very limited exceptions.
It introduces one new opportunity for QMV, namely where the decision
is adopted on a proposal from the Union Minister for Foreign Affairs
following a specific request from the European Council (Article
III-300(2)(b)). There is in any event a right of opposition for
any member of the Council, on the ground of vital and stated reasons
of national policy.
22. As regards criminal procedure Article
III-270 does introduce QMV, but again the emergency brake may
be pulled (see paragraph 3 of the provision).
23. With respect to the Union's own resources
Article I-54 maintains the unanimity rule, as well as the requirement
for approval in accordance with constitutional requirements.
24. The emergency brake system seems to
me equivalent to unanimity. Critics might argue that there is
a greater political cost to pulling that brake, compared to a
straightforward unanimity rule. I do not find such criticism persuasive.
In many areas the issues of unanimity and the opposition from
one or two Member States to certain policies are in any event
politicised. Where the emergency brake system permits semi-automatic
use of enhanced co-operation (such as in Article III-270) the
political cost of maintaining opposition may in fact be reduced,
as the opposing Member State may refer to the opportunity for
others to go ahead without it.
6. THE EFFECTIVENESS
OF THE
EMERGENCY BRAKES
IN CRIMINAL
JUSTICE AND
OTHER MATTERS
25. See comments in paragraph 24. To illustrate
this, an editorial in Common Market Law Review, the leading EU
law journal, characterised this as "game, set and match for
Mr Blair".[6]
7. THE EFFECT
OF THE
"HORIZONTAL" CLAUSES
WHICH GOVERN
THE APPLICATION
OF THE
CHARTER OF
FUNDAMENTAL RIGHTS
26. This questions raises many legally complex
issues, which cannot be examined in any depth within the scope
of this memorandum. I will limit my comments to three points,
ie the scope of the provisions of the Charter, their relationship
with the ECHR, and the distinction between rights and principles.
27. Article II-111 defines the scope of
the Charter, clarifying in particular that the Member States are
bound "only when implementing Union law". The provision
also emphasises that the Charter does not extend the scope of
application or the powers of the EU. The language has been strengthened
by the Convention on the Future of Europe. The Charter, it is
always said, is primarily binding on the EU institutions.
28. The phrase "only when implementing
Union law" is however difficult to interpret. The question
is essentially: when is there a sufficient link between national
law, or the facts of a particular case, and EU law, so as to trigger
the application of the Charter? The explanations attached to the
Charter clarify that the drafters sought to confirm the existing
case-law of the European Court of Justice. In that sense Article
III-111 contains nothing new. It may even serve to constrain the
Court of Justice, which under the present Treaties has a free
hand to develop the relevant principles. As the limited scope
of the Charter was such an intense topic of debate, both in the
Charter Convention and in the Convention on the Future of Europe,
a Court of Justice faithful to this legislative history may become
more reticent in cases involving national laws or practices. But
even if that is the case, the Charter will clearly to some extent
bind the Member States. As they are, in most policy areas, the
primary agents for implementing and applying EU law, that is unavoidable.
Again, however, the position is very much the same if the Charter
is not adopted. I am not convinced that the adoption of the Charter
will have much effect in the way of encouraging the Court of Justice
to become more proactive in the human rights field. There is movement
in that direction any way, for reasons which are more profound
than the sole existence of the Charter.
29. There has been much debate about the
relationship between the Charter and the ECHR. It is clear that
the drafters have taken every care to ensure that the application
of the Charter does not conflict with the ECHR. In practice, of
course, the question is whether the courts applying the Charter
and the ECHR are prevented from delivering conflicting rulings.
Judicial conflicts are very difficult to rule out and avoid, even
with the strongest constitutional language. It is none the less
clear to me that the European Court of Justice has for more than
a decade attempted to be as faithful to the case-law of the European
Court of Human Rights as possible.
30. At technical and procedural levels matters
will become more complex once the EU joins the ECHR, as is provided
in Article I-9(2). The ECHR will thereby become an international
agreement binding on the EU. The ECHR provisions will then have
a double legal basis in the EU legal order: the ECHR accession
agreement and the Charter. It is not clear what practical consequences
this will have, but one suspects that they will be limited. However,
I am rather critical of the fact that the Constitution in Article
I-9 defines three distinct sources for the protection of fundamental
rights: the Charter, the ECHR as such, once joined, and the constitutional
traditions of the Member States. In politics it is useful to emphasise
a point in different ways; in law this is less useful.
31. The third point I would like to address
is the distinction between rights and principles. The Convention
on the Future of Europe inserted a paragraph 5 into Article II-112,
according to which "[t]he provisions of this Charter which
contain principles may be implemented by legislative and executive
acts taken by institutions, bodies, offices and agencies of the
Union, and by acts of Member States when they are implementing
Union law, in the exercise of their respective powers. They shall
be judicially cognisable only in the interpretation of such acts
and in the ruling on their legality".
32. The distinction between rights and principles
is not straightforward. The substantive Charter provisions were
clearly not drafted with that distinction in mind, as the term
principle is hardly ever used. The only other reference to the
distinction is in Article II-111(1), which urges the Charter's
addressees to "respect the rights, observe the principles
and promote the application" of the Charter. The explanations
attached to the Charter, which are an official interpretative
tool even if they do not as such have the status of law, do give
some examples of what are principles. They are however very limited,
and there will no doubt be a lot of debate about classification.
33. I am not however convinced that the
distinction is crucial for the application of the Charter. Article
II-112(5) limits the powers of the courts to apply the Charter
where principles rather than rights are involved: it is only where
principles are implemented by legislative or executive action
that they are judicially cognisable. But the Charter is in any
event binding on the Member States only when implementing Union
law. The bottom line seems to be that a principle in the Charter
cannot be relied upon before a court unless it is that very principle
which is implemented by EU legislative or executive action. It
is doubtful whether, in the absence of this provision, there would
be many other cases in which one could rely on these principles.
8. THE TREATY'S
CRIMINAL JUSTICE
PROVISIONS (FOLLOWING
UP THE
COMMITTEE'S
REPORT OF
JULY 2003 ON
THE CONVENTION'S
PROPOSALS ON
CRIMINAL JUSTICE,
HC 63-XXVI, 2002-03)
34. Time has not permitted sufficient study
of this issue, and as my expertise in the criminal law field is
limited I would rather refrain from commenting upon this question
(but see also questions 5 and 6).
9. WHAT THE
CONSEQUENCES WOULD
BE IF
THE TREATY
IS NOT
RATIFIED
35. This is again a question which could
be analysed at great length, and which raises many complex legal
and political issues. The following comments are confined to some
of the legal issues.
36. There is already a lot of reflection
about how the Constitutional Treaty could be rescued, or how much
of it could be rescued, in the event of one or more Member States'
failure to ratify. It is clear that the Treaty can enter into
force only when ratified by all current EU Member States. There
are some who argue that Article IV-447, on ratification and entry
into force, provides some room for manoeuvre, but even if it did
there is the requirement in Article 48 EU Treaty for ratification
of Treaty revisions by all Member States. It is therefore clear
that any scenario involving partial ratification requires a new
negotiation between the Member States who wish to go ahead with
the Constitutional Treaty and those who do not wish to take part.
37. It is also clear that the new EU, established
by the Constitutional Treaty, and the current EU cannot as such
co-exist. The reason is that there are simply too many modifications
to the institutional structure to allow for parallel application
of the existing treaties and the new treaty. The solution of a
ratification crisis cannot therefore be that some Member States
apply the Constitutional Treaty, and others remain within the
current EU and apply the current Treaties.
38. If the ratification process fails, attempts
could be made to realise some of the innovations of the Constitutional
Treaty without modification of the current Treaties. The bulk
of the innovations and modifications, however, do require Treaty
amendment (most institutional innovations; QMV; making the Charter
binding; integrating the pillars; etc). There could of course
be an attempt to draft a more limited Treaty revision, or to revise
the Constitutional Treaty in ways which take into account the
reasons for rejection by the Member State(s) in question. There
is also the possibility to realise some of the innovations by
incorporating them in an accession treaty.
39. It is in any event very difficult to
predict the outcome of the political debate. On the whole this
seems to me a question of politics rather than law.
1 Case 26/62 [1963] ECR 1. Back
2
Case 6/64 [1964] ECR 585. Back
3
Case 294/83 Parti Ecologiste "Les Verts" v EP [1986]
ECR 1339. Back
4
Case C-70/88 EP v Council [1990] ECR I-2041. Back
5
Case C-149/96 Portugal v Council [1999] ECR I-8395. Back
6
"Editorial Comments-A Constitution for Europe", (2004)
CMLRev 906. Back
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