Examination of Witnesses (Questions 80-99)
PROFESSOR PIET
EECKHOUT AND
PROFESSOR GRINNE
DE BÚRCA
8 DECEMBER 2004
Q80 Mr Heathcoat-Amory:
Surely not?
Professor de Búrca: What
it is loaded with I do not know. One of the purposes of a constitution
is to clarify and limit powers but there are many other purposes.
I think this whole Constitution exercise is one which is serving
many different masters and mistresses. For example, the UK placed
a lot of emphasis on the fact that it was a consolidatory Constitution
which was not introducing a lot of innovation. Obviously, there
are some new elements but the emphasis was on consolidation and
simplification. You cannot simplify without radically changing
a system that is as complex and intricate as this, so if the idea
is to incorporate and codify the existing body it could not be
clear because it is very complex and even lawyers cannot agree
on the meaning of things, let alone explain them to the ordinary
person. That fundamental tension is not resolved by the Constitution.
I think in some aspects it simplifies it a little if, for example,
the listing of categories and competences at least gives you a
list of five different types, even if we do not understand exactly
what they are until we look at Part 3, but nonetheless you broadly
get a sense of it. Similarly, the Charter on its face is clarifying
because it gives you a list of certain rights. It is then made
very complex by the horizontal clauses and the reason for that
is that the horizontal clauses were designed to maintain as much
of the status quo as possible and the status quo is very complicated.
Yes, maybe you are right, but if you do not want a Constitution
that changes things radically then I cannot see an alternative
other than to maintain some of the complexity that characterises
the EU.
Q81 Mr Cash: Professor
Eeckhout, you made the point just now in passing, but it seemed
rather an important point, that you thought that the Constitution
clarified the issue of primacy. Could I ask you a simple question?
Do you take the view that the European Constitution will take
precedence over the laws of the United Kingdom Parliament and
if the Constitution comes into effect the European Court of Justice
will disapply any enactment which has been passed by the UK Parliament
and is expressly inconsistent with EU law?
Professor Eeckhout: Here again
I would say that the Constitution clarifies in the sense of codifying
the case law of the European Court of Justice, which in this area,
of course, dates from 1964, the first case, Costa v ENEL,
where the Court affirmed the primacy or the supremacy of EU law.
I know there are different views on that but I see the Constitution
merely as expressly confirming that principle which has been there
for a very long time and which has been applied. The European
Court of Justice technically cannot disapply national legislation,
an act of parliament, because it can only interpret EU law, but
it has clarified to national courts that if there is a conflict
between a provision of EU law and a provision of national law,
of whatever order, the national court is obliged to disapply,
in a bad English term, the national legislation and I gather that
the Constitution will be interpreted as simply confirming that.
What I would like to add, and that is, I think, where you see
the limit to that principle, is that it is a principle which only
works within the scope of Union law and I think we come back to
the same point as the Charter—and it is a rather difficult
point because what is the scope of Union law?—because it
is very much emphasised also in the provision Article I-5 that
primacy applies within the limits of the powers of the European
Union. It is only in so far as the Union acts within the limits
of its powers that any law which it produces prevails over domestic
law, but that is clearly the principle.
Q82 Mr Cash: If I may
follow that up, the fact remains that under the I-5 principle,
which is set out, it now says (and there were some amendments,
as you recall, before the final text) that the laws of the Constitution
will take precedence over the laws of the Member States, and the
interpretation which is being placed on that by our Foreign Secretary
is that that would include any Acts of Parliament which were passed
by the United Kingdom Parliament itself. The fact remains that
the issue of primacy is a central question for the United Kingdom
Parliament and you have not quite answered my question, which
is, if there were to be an expressly unambiguous, inconsistent
enactment subsequent to the European Communities Act 1972 after
the Constitution has gone through, do you not think that the Court
under I-5 would be likely, if not bound, to say that such an enactment
can now be struck down by the European Court? After all, so long
as it is within the conferring of competences, it is then an issue
which falls to the European Court under other provisions and the
Treaty as well.
Professor de Búrca: Just
to add to what Professor Eeckhout has said, there are two things
about that question. One is that it assumes that the European
Court can directly strike down a domestic Act, which it cannot
do—
Q83 Mr Cash: At the moment.
Professor de Búrca: There
is nothing in this Constitution that gives it power to do so either.
The powers of the Court that are set out do not include a direct
power of review of domestic law. The question would be more appropriate
directed to what the British courts, the English, Welsh and Scottish
courts, will do following that because until now the answer many
people would have given to your question would be that probably,
even if a statute of the British Parliament was in deliberate
contravention of European Community law, the European Court of
Justice would have said, "That violates EC Law, that should
be disapplied". I do not think it would have had a problem
in saying that despite the direct conflict, but a domestic court
might well have justified it, saying, "We must apply the
law of Parliament and not this because within the way in which
this supremacy principle is understood in the 1972 Act we must
follow the Act of Parliament which is very explicit". Now
I think the question will be, "What would a court do in this
jurisdiction in that case?", and I think you can say that
the fact that the Foreign Secretary has said, "We intend
by this Constitution to allow for the overriding of Acts of Parliament",
might make a court more likely to say, "Okay, we will disapply
it". On the other hand, the Foreign Secretary does not speak
for Parliament and therefore a court might decide to follow the
later act of Parliament. I think that question is one that is
more appropriately addressed to the role of domestic courts than
the European Court.
Q84 Mr Cash: So it is
not really quite as clear as Professor Eeckhout may have suggested
in his passing remarks?
Professor de Búrca: I think
I would agree with him as far as the European Court of Justice
is concerned. The European Court of Justice would certainly say,
"This violates EC Law. You as the domestic court ought to
disapply or set aside the conflicting national law", but
I do not know that a national court would necessarily agree. It
depends on the stage that the courts have reached in this jurisdiction
as to whether they feel honour bound to respect the Constitution
as Jack Straw would have to or whether they feel that that is
still not quite what the intention of Parliament is under the
Constitution.
Professor Eeckhout: In any event
the authority for the UK courts to apply the constitutional treaty
will be an Act of Parliament so, to the extent that there is agreement
that the constitutional treaty within the UK domestic context
does not in any way amend the sovereignty of Parliament compared
to the current position, then I think it is agreed that nothing
changes and then courts are likely to give effect to the Act of
Parliament which overrides the act which approves of the constitutional
treaty, as would be the same with the European Communities Act.
Q85 Mr Cash: Including
striking down the Constitution itself?
Professor Eeckhout: It would be
giving no effect to the Constitution in the United Kingdom by
virtue of the primacy of Parliament.
Chairman: Thank you for clearing that
matter up for us!
Q86 Angus Robertson: Professor
Eeckhout, in your article on the EU Charter and the Federal Question
you have argued that "the concept of European citizenship
is likely to pull the Charter in the direction of an ever-expanding
field of application, and to turn it into a Charter not merely
directed towards the EU institutions but containing rights on
which European citizens can more generally rely". Why do
you think the concept of EU citizenship will ultimately prove
more important in defining the scope of the Charter than the horizontal
clauses?
Professor Eeckhout: Can I just
add that in the article I also identified another principle which
I think could constrain the effect of the Charter, which is the
principle of conferral, which the Constitution also very much
confirms, and I think it was one of the starting points of the
constitutional process to try to clarify and limit EU competences.
In a sense I see in terms of the case law of the Court of Justice
two kinds of legal principle having a potential effect on the
case law of the court which is affecting fundamental rights. As
we have got EU citizenship the reason I refer to that is that
that is of course a concept which is already in the treaties and
is already given effect to by the European Court it is one of
the primary rights of a European Union citizen to reside freely
in and to move freely to other Member States, and so we have cases
concerning free movement coming before the Court, where I think
there will indeed be pressure to bring in the fundamental rights
issue and to some extent I think we have already seen that in
the case law. There is a case which came from the UK, Carpenter,
decided a couple of years ago, about the right to family life
in the context of an immigration issue. The wife of a UK citizen
came from the Philippines and was not a legal resident but because
she was the wife of someone providing services in another Member
State the Court felt that there was a fundamental right issue,
namely, the right to family life, which it could not look into.
That is my personal perception of what kinds of factors exercise
an influence on the Court of Justice's case law with respect to
fundamental rights. I do not think the Constitution as such really
moves it in either direction. If anything, again, the fact that
so much emphasis has been put on this debate about in which cases
Member States are bound by fundamental rights, namely, only when
implementing EU law, might make the Court a bit careful about
not going too far in that respect.
Q87 Mr Heathcoat-Amory:
Could I continue with the issue of the horizontal clauses? We
are constantly told that the EU law will effectively limit and
closely define the Charter rights and their application. Professor
de Búrca, you have written that you think they may have
some effect but in time will be overridden by other considerations.
Certainly I as a layman cannot make head nor tail of, for instance,
the distinction between rights and principles. Perhaps you can
throw some light on that. In general terms is this simply window
dressing to satisfy politicians and will they in any sense constrain
what is obviously a highly activist court in this area?
Professor De Búrca: I would
be tempted to say yes, they are just window-dressing, but I do
not think that would be quite fair. I would say that there is
a certain amount of satisfying or mollifying of the British and
the Irish contingent within the Charter working-group, undoubtedly
because that was the real crux issue during that working-group
on the Charter. Certain members of the working-group would not
agree to the Charter being incorporated in the constitutional
text unless some distinctions were introduced between the language
of rights and principles. I think I tried to explain in my written
evidence that distinction was seen as corresponding broadly to
what people see as more programmatic rights requiring positive
action on social expenditure, which are usually grouped under
the name "economic and social rights" and rights which
mainly require restraint from interference by the State, which
we usually refer to as "civil and political rights".
The problem is even that distinction is a very hazy one in international
human rights law and in domestic human rights law, but I think
the idea was certainly, on the part of those arguing for this
clause, to try to say that the Court of Justice cannot directly
enforce rights which were intended to require further action before
they crystallised, and economic and social rights are very often
seen in that category. In other words, the right to health does
not mean anything in itself because it calls into question so
many complex distributive questions until there is further implementation
of that guarantee. What the Charter says—in what was Article
52(5), it is now Article 112(5)—is those provisions of the
Charter which contain principles will not be judiciably cognisable
until they are implemented in some Act of a Member State or of
the EU. I would find it extremely difficult going through the
Charter to know which of the provisions will be treated as principles
and which will be treated as rights, although I have a sense of
what the aim was of putting that provision in. I can take some
examples, like environmental protection or consumer protection,
which are phrased in an extremely weak way in the Charter and
say, "Clearly those could not give rise to any justiciable
rights without further implementation". I find it more difficult
with some of the others, even the examples given in the Explanatory
Memorandum like the rights of the elderly and so on. I can imagine
circumstances in which interpreting a piece of secondary legislation
that was not intended to implement the rights of the elderly but
nonetheless is relevant to it. The idea that the right of the
elderly to respect and so on—I cannot remember the language—could
be used in judicial proceedings to say that should influence the
interpretation of another piece of legislation. I do not find
the distinction helpful and I do not find it clear as between
rights and principles, although I can see what was broadly intended
by it. I think it will give rise to complex litigation and to
a lot of debate.
Q88 Mr Heathcoat-Amory:
It was intended to make the whole thing palatable and from what
you are saying, it is just a smoke screen. The rights of the elderly
are described as a principle, but in fact is an enforceable right
if the EU legislates in this area. This seems to me to be a highly
regressive move, we are simply confusing the issue and of course
the Court will then do what it likes.
Professor De Búrca: I think
it is really confusing. I do not think it is entirely a smoke
screen because if the Court is acting responsibly, in the same
way that Professor Eeckhout suggested, it will know that that
distinction was intended to demarcate certain rights as insufficiently
sharply crystallised in international and domestic law to give
rise directly to judicial application without some implementing
measure. To my mind it is a guide that is not a very clear one.
It is an indication of something which the Court should take into
account without saying rights A,B,C,D and E are principles and
rights and F,G and H are enforceable rights. In the end it does
not give a sharp clarification, it gives an indication, a signpost
of the kinds of concerns the Court of Justice should have when
rights are invoked before it. It should be very careful about
directly applying rights which are expressed in a way that does
not seem to have any clearly understood content, but that is something
which requires further implementation before it can have an agreed
content.
Q89 Mr David: I think
it is fairly clear what you are explaining there. Also, can you
explain to us how what you have just said squares with the statement
you have made in one of your articles, that the Charter expresses
" . . . the clear values of Europe . . . "? It does
not seem to me that clear and as straightforward as your answer
just suggested. Secondly, I wonder if you can explain to us what
you mean by this phrase "constitutional patriotism"?
It seems quite an all-embracing and significant term which I have
not come across before.
Professor De Búrca: On
the first one—you can correct me if I am wrong—I would
be surprised if I said that the Charter expresses "the clear
values", maybe I have forgotten what I wrote.
Q90 Chairman: The "shared
values" of Europe?
Professor De Búrca: Okay.
Certainly, I think the Charter expresses values that those who
signed the Charter and who drafted it wanted to express as shared
values, the values which are contained in the European Convention
and in the European social charter. These are all texts which
all of the States have long signed and many of them have similar
provisions in their Constitution. The fact that people can agree
on values does not necessarily mean that in conflict situations
they can agree on the outcome of that particular dispute, that
is the nature of life as we all know it. Broadly speaking, I do
think yes, there was a high degree of consensus behind the actual
drafting of the Charter itself. I have never heard a seriously
strong sense of opposition expressed to it other than in the sense
that it may give too much power to a particular institution, like
the Court of Justice, for example. As an expression of values,
I have not heard anyone say: "This is ludicrous", apart
from maybe the right to a paid vacation, which comes from the
International Labour Organisation. In any case there are some
provisions which have been criticised, but it is more that they
are trivial rather than objectionable in value terms. I would
maintain that yes, it does express common values in so far as
we can agree on those. The other point was about "constitutional
patriotism". "Constitutional patriotism" is not
my phrase, it is the phrase of a German philosopher called Jürgen
Habermas. It is an interesting idea, but it is an idea that it
is possible in a Europe that is very culturally, nationally and
territorially diverse to create a sense of loyalty to political
principles and values which do not require any commitment to a
common culture or to ethnic, linguistic or other pre-political
categories like that, the sort of social communities that people
strongly belong to which are expressed by nationhood and common
language and so on. It is possible to imagine a thin sense of
what he calls "constitutional patriotism", that is thick
enough to support a constitutional document which is more than
just a Treaty, through the idea of commitment to these common
principles. In that sense it links with the question you asked
about the Charter which is that something like a commitment, at
its broadest, to democracy, the Rule of Law or the protection
of human rights, but in a slightly more elaborate version expressed
in the objectives of the Treaty and the values in the Charter,
over time might emerge through a debate in each country over the
meaning of the Constitution itself.
Q91 Mr Tynan: Professor
De Búrca, you argued that the Charter may strengthen the
political legitimacy of the EU. Can you explain your reasons for
this view when many of the Charter rights fall outside the scope
of EU law, even as defined by the Constitutional Treaty? Bearing
in mind that the ECJ judges interpreting the Charter could be
said to lack both legitimacy and the social and political support
enjoyed by the US Supreme Court and the German Constitutional
Court?
Professor De Búrca: Firstly,
one thing I want to say, which hopefully will not complicate matters
further, but I suspect it will—it is not that I see my role
as complicating things, it is a complicated system—is it
is true that many of the rights contained in the Charter fall
outside the scope of EU law in so far as the legislative power
and political power of the institutions or the adjudicating power
of the Court is concerned. But, currently there is a provision
existing in the Treaty of the European Union which is justicable
in procedural terms and allows for the institutions to respond
to a serious violation of human rights by any Member State regardless
of the area, whether it falls inside or outside the scope of EU
law. This was in part a response to what was known as the Jörg
Haider affair in Austria, when the rise of the extreme right gave
rise to a sense on the part of the EU that it should be able to
respond to a serious violation of fundamental rights in a Member
State. Most recently, Members of the European Parliament have
begun to try to invoke this in relation to Italy because of the
concentration of media power in the hands a certain powerful political
figure in Italy. I think for all that the EU's competence is limited,
the EU has clearly staked a claim in extreme situations to be
able to interest itself politically in the human rights system
in any area of social and political life of a Member State. There
was clear political agreement to that and I think that is something
which has to be taken into account alongside the Charter and the
express powers of law-making and the judicial powers of the Court.
Your other question was about in what sense can the Charter be
said to strengthen political legitimacy. There are many different
factors that affect the lack of legitimacy of the EU, especially
social legitimacy. One of them has been expressed quite often
as "its emphasis on the market" in that it enshrines
and constitutionalises market freedoms, pursuing a kind of neo-liberal
agenda. Economic and Monitory Union restrains the power of States
to pursue certain kinds of social welfare policies or even economic
policies domestically. This emphasis of the EU on the market is
one of the factors that has been cited often as a reason why citizens
would not identify with it and would not see it as a protector
of their welfare. In that sense, the Charter, when it was drafted,
was explicitly drafted as a kind of counter-balance when the European
Council in Cologne asked for the Charter to be drafted, to show
that the EU does concern itself with other aspects of social life,
with public welfare and so on and that it is not simply a Charter
for businessmen. Obviously it raises a whole series of other legitimacy
questions which you have pointed to, but in the sense of what
ordinary citizens who are not interested in legal intricacies
would think about, the idea that there is a Bill of Rights which
protects their rights at all levels of government, including at
the EU level, in my view would be more inclined to endear them
to this level of government than for example, being told that
abortion is a market service, a commercial service, under EC law.
This was one of the most criticised aspects of the Court of Justice's
case law, that even fundamental social issues like the choice
to terminate a pregnancy are considered as market values because
the only language the EU has is the language of the market, the
only way it can conceive of citizens is as consumers and the only
way it can conceive of rights is as commercial services. In that
sense I think the Charter does redress that particular aspect
of the legitimacy deficit.
Q92 Mr Tynan: Your view
is that the Charter will strengthen the human face, if you like,
of the European Union?
Professor De Búrca: Yes.
That is a much nicer way of putting it.
Q93 Mr Tynan: And because
of that there will be closer identification as regards the people
of the European Union at the present time because, as I say, it
is not just the market forces, it is about doing a job for the
people it is representing?
Professor De Búrca: I think
that is right. The Charter is more likely to appeal to the ordinary
person than to know that there is a Stability and Growth Pact
or that there are rules contained in the Maastricht Treaty relating
to some other aspect of Economic and Monetary Union.
Q94 Mr Tynan: Do you think
we will get that message across to the people in the European
Union?
Professor De Búrca: It
depends on how well the job is done.
Q95 Mr Bacon: When we
were in Brussels with the European Commission, they all looked
at us in astonishment—and they were the ones cooking this
stuff up—and said: "It is your job to get it across",
as if it was nothing to do with them. I will pass on because that
was not my question. My question is, Professor De Búrca,
where do you think political legitimacy comes from?
Professor De Búrca: Political
legitimacy in general?
Q96 Mr Bacon: Yes. Where
does it come from?
Professor De Búrca: I suppose
political legitimacy in the modern democratic systems lies in
the fact of self-government, the idea that government is accountable
and ultimately people themselves can in some way affect, if not
control, the system that governs their lives. I would say that
is where political legitimacy resides ultimately.
Q97 Mr Bacon: What do
you think about the shared values of Europe?
Professor De Búrca: I think
the shared values of Europe include a commitment to democracy.
For example, democracy and the rule of law are fundamental elements
of a system that ensures self-government. Beyond that, in the
more substantive sense of the shared values, there are fundamental
rights and the various rights contained in the Charter. That is
a very important commitment, and the hope is that in a system
where people are involved in governing themselves, those are the
fundamental values they would express.
Q98 Mr Bacon: When you
referred to the shared values of Europe and the Charter being
a potential vehicle for, and an expression of "constitutional
patriotism"—and I have only got the quote from your
book that you wrote and contributed to on the EU Charter—were
you simply quoting Habermas or were you agreeing with him?
Professor De Búrca: I am
trying to figure out how this constitutes evidence on the Constitution,
but I will come around to that.
Q99 Mr Bacon: I thought
it was directly related to it because, as far as I understand
it, the whole concept of a Verfassungspatriotismus is very
much a German one because after certain events in the middle of
the century they decided they probably could not have the traditional
nationalism and patriotism that most nation states have had. When
I was in Germany in September, I found a rather unwilling audience
for the idea that that nation perhaps needed just a soupçon
more nationalism. It is a message they find very difficult, to
this day, for obvious reasons. Therefore, I understand the whole
concept of "constitutional patriotism" to be very much
a German one and not one that necessarily has application more
widely, but he and possibly you appear to be saying it does. I
am merely asking you are you merely quoting Habermas or is it
also your view that the Charter is a potential vehicle for "constitutional
patriotism"?
Professor De Búrca: A bit
of both, in the sense that Habermas's views on "constitutional
patriotism" have been picked up and are very much a part
of the academic discourse on Europeanisation and globalisation.
More generally on the idea of constitutional patriotism outside
the context of the nation state—which has been the shared
political community for centuries—how one would create some
sense of community beyond the nation state is difficult to imagine.
Particularly within market-based systems as the EU was when it
began, and as the WTO and various other systems seem now to be,
it is very difficult to see how they can ever engage the citizen
in a way that could lead to a political Community.
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