Examination of Witnesses (Questions 75-79)
PROFESSOR PIET
EECKHOUT AND
PROFESSOR GRINNE
DE BÚRCA
8 DECEMBER 2004
Q75 Chairman: Can I welcome
Professor Eeckhout and Professor de Búrca to the European
Scrutiny Committee. It is nice to have you here for what is going
to be a very interesting session. As you will find from the questions,
the Committee are really keen on looking into this. How will the
new reference to the Union's values and objectives in Articles
2 and 3 of the Constitutional Treaty assist the Court in interpreting
EU law?
Professor de Búrca:
I think I suggested in my evidence that the references might work
in two different ways in relation on the one hand to the legislative
institutions and on the other hand to the Court. As far as the
legislative institutions are concerned, I think the listing of
values and objectives is something that could influence or give
an impetus or opportunity to, for example, the Commission initiating
legislation to re-orient legislation in rather a new direction
which it might have had more difficulty doing before these values
were enunciated, and I gave the example of children's rights.
The protection of the rights of the child is very much up at the
front in the values and objectives that are listed in the treaty,
and I can imagine that legislation promoting consumer protection
could be directly oriented towards children in a way that might
have seemed odd or there might have been questions about subsidiarity
under the existing treaties, but the emphasis on some of these
new values and objectives would allow for legislation to be more
directly oriented towards the pursuit of one of these objectives
that was not previously listed as an EU goal. I suppose this is
a little bit more radical and it is possible that the listing
of objectives might indirectly create a new kind of power for
the EU and that would be through linking the objectives and values
in Articles 2 and 3 with what is called the flexibility clause
in Article 18 of the treaty. The flexibility clause is the one
that allows the EU, where it has been given an objective but not
the necessary powers to achieve that objective, to confer powers
on itself to pursue that objective. The promotion and protection
of human rights as a value of the EU in Article 2 is made an objective
in Article 3, and so if you link that with Article 18 it is possible
to say that the EU now can confer on itself by unanimous decision
of the Council the power to promote human rights, something that
has always been contested under the existing residual powers,
I suppose, of the EC Treaty. Do you want me to say a little bit
about the Court?
Q76 Chairman: I would
like to hear Professor Eeckhout's comments, but if you want to
come back please do.
Professor Eeckhout: I would definitely
largely agree with that analysis in terms of the effect of the
values and objectives on the case law of the European Court of
Justice. I think we can only try to see how that might work on
the basis of how in the past the Court of Justice has taken into
account the values and objectives of the EC and, of course, the
treaty language has changed over the course of the years through
the various treaty amendments, but I do not really see in the
case of the European Court of Justice a terribly great emphasis
on the objectives as they are stated in quite a general way in
the opening provisions. Also, the current treaty on the European
Union lists the objectives of the EU and the EC Treaty lists the
objectives of the Community. It is clearly a tool which can be
used in the interpretation of the powers of the EU as it may have
been in the past. I can also think of a couple of cases where
one could say that the values underlying European integration
were central to the Court's reasoning in quite an important way,
particularly in cases on remedies where the European Court in
the past has a couple of times created a remedy for the European
Parliament, for example, referring to respect for the rule of
law as underlying European integration, which the constitution
also confirms. One can also see that many of the objectives which
are listed here are already to some extent present in the current
treaty.
Q77 Chairman: Are there
any other practical effects which the aspirational language of
Articles 2 and 3 is likely to have?
Professor de Búrca: I would
not wish to add to what Professor Eeckhout has said other than
this. There is nothing mandatory about them, if you want to put
it like that, in relation either to the legislative or to the
judicial organs. In other words, they do not necessitate any change
in the way the Commission drafts legislation or the way the Court
interprets it, but they allow for that if those institutions are
so inclined. If they want to redirect the thrust of their proposal
or their interpretation in the case of the Court they can. Sometimes
they are looking for support to justify a particular conclusion,
so on that I think the objectives and values could be relevant.
Q78 Mr Connarty: Turning
to the Charter, the UK did make a number of amendments during
the drafting of the words in the Charter. In Article II-51 it
states that the Charter will apply to Member States "only
when they are implementing Union law". The Explanation to
Article II-51 states that "the requirement to respect fundamental
rights defined in a Union context is only binding on Member States
when they act in the scope of Union law". This seems wider
than just "implementing Union law" and suggests that
the Charter applies to any situation involving an issue of Union
law. What do you understand by the expressions "implementing
Union law" and "within the scope of Union law"
in this context?
Professor de Búrca: On
that I would say that if I were simply interpreting the words
literally, "implementing Union law" has a narrower meaning
than "within the scope of Union law". "Implementing
Union law" seems to imply enacting a Union policy into domestic
law. If the literal meaning were to be taken as the intended meaning
by those who drafted the Charter that would be a change. It would
be a restriction of the current situation of the position of fundamental
rights according to the European Court of Justice, which raises
the question: was that intended to be a change? What is interesting
is that the Explanatory Memorandum interprets it as not being
a change but simply using language taken out of a European Court
of Justice judgment, but if it is read in the context of the judgment
it was taken from it is clear that it was meant to be "within
the scope of Union law", which is considerably broader than
"implementing Union law". It includes where a state
is derogating from Union law, in other words, where it deliberately
does not intend to implement it, and also other situations. There
have been some recent immigration cases involving the UK which
were neither derogations nor implementations but where the Court
found that this could affect EC law in its application in a case
involving Community services, for example, and said that therefore
they were bound by the requirements of fundamental rights, including
the Convention. My sense is that the fact that that is how the
Explanatory Memorandum reads the clause, plus the fact that there
is a very important Article towards the end of the Constitutional
Treaty which says that the acquis of the Court of Justice,
the way in which the Court of Justice has ruled on and interpreted
EU law in the past, is to apply mutatis mutandis to comparable
provisions (not identical but comparable provisions), means that
it would incorporate that case law very clearly and make it applicable
to the Charter. My guess is that it would be the broader, not
the narrower, meaning if this comes into effect.
Professor Eeckhout: Again I fully
agree with what Professor de Búrca has said. I have followed
this particular issue quite closely (and she has as well) through
the debates in the Convention which drafted the Charter, and at
the time it was clear that the intention was not (or at least
it did not seem to me) to narrow the case law of the European
Court of Justice but simply to codify it in some way. Of course,
the expression "within the scope of Union law" as you
find it in the Explanatory Memorandum also leaves many questions
unanswered as to when a particular set of facts comes within the
scope of European Union law. It is a very important question with
which I think the European Court has already been struggling for
some time. If anything, I would be inclined to say that if the
Constitution is adopted and comes into force it will be very clear
to the Court that this was a very delicate issue in the negotiations
and that there was a lot of emphasis on trying to limit the scope
of the Charter in terms of its application to the Member States.
This I think may have some effect on the Court's case law in that
area. It is also fair to say that over the last couple of years
we have indeed seen a couple of cases where the Court has gone
quite far in giving effect to human rights in the context of cases
which did not fit so neatly into the old categories of case law.
Q79 Mr Heathcoat-Amory:
Is it not the purpose of a constitution to clarify the limits
of the powers of the institutions of the European Union? What
you seem to be telling us, both of you, is that there is no clarity
here and that there is a contradiction, a text that appears to
limit with an Explanation which then again widens it. Is this
not a fundamental criticism of the Constitution, that anyone reading
this will get no clear idea at all about what the Court is likely
to do in future? What do you make of a constitution like that,
and are there other examples in the text?
Professor Eeckhout: I would definitely
agree. I would also personally say that in the choice of words
of "implementing Union law" in the context of Article
II-51, if the intention was to qualify the existing case law—that
perhaps "within the scope of Union law" was a better
formulation. On that particular point I would agree. Whether that
means that one could criticise the entire Constitution for not
creating more clarity I am less certain about. To some extent
I find it quite useful that the Constitution as a written text
agreed by all the Member States does try to codify the important
bits of EU Constitutional law as they have been developed by the
European Court of Justice, like the principle of primacy and the
protection of fundamental rights. Also, there is much to be gained
by having at least an express catalogue of what the fundamental
rights are in the context of the European Union rather than what
we have at present, simply leaving it to the Court of Justice
in any case which comes along to discover as it were the fundamental
rights in the common law of the Member States or the national
instruments which have been signed. I would therefore not agree
with the general characterisation that in all respects the Constitution
does not create more clarity.
Professor de Búrca: I think
it is an interesting question but it is obviously a loaded question.
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