Letter to the Chairman of the Committee
from the Minister for Europe
Thank you for inviting me to appear before the
Committee on 12 September. I promised to come back to you on a
number of points which were raised during the discussion.
COMMON FOREIGN
AND SECURITY
POLICY
You asked for a note on the External Action
Service (EAS) that explains where we are at the moment. As I set
out in front of the Committee, the draft EU Reform Treaty provides
for the creation of an External Action Service. That is set out
in Article 1, point 30, which amends Article 13 of the Treaty
on European Union. Paragraph 3 of that new article states that:
"In fulfilling his or her mandate, the High
Representative shall be assisted by a European External Action
Service. This service shall work in cooperation with the diplomatic
services of the Member States and shall comprise officials from
the relevant departments of the General Secretariat of the Council
and of the Commission as well as staff seconded from national
diplomatic services of the Member States."
Member States will not discuss the possible
scope, remit or operation of the External Action Service, together
with the Commission, until a Treaty has been agreed and signed.
This is made clear in a Declaration on the EAS which will be attached
to the Reform Treaty. This states that:
"following the signature of the Treaty modifying
the Treaty on European Union and the Treaty establishing the European
Community, the Secretary General of the Council/ High Representative
for the Common Foreign and Security Policy, the Commission and
the Member States should begin preparatory work on the External
Action Service".[1]
Decisions on the functioning and organisation
of the EAS will be taken by the Council, acting by unanimity,
on the basis of a proposal from the new High Representative for
Foreign Affairs and Security Policy, once the Treaty has entered
into force. This too is clear from the draft Treaty text. That
decision will be subject to Parliamentary scrutiny in the usual
way, and I will update on the Committee on the progress of this
issue.
You also queried whether the High Representative
and the EAS "will take on a persona and a role whereby they
will have a dynamic that grows over time." The role of the
High Representative is very clearly set out in the Treaty. He
or she will be tasked by Member States on foreign policy, and
it is Member States who decide CFSP policy, by unanimity. Equally,
as the new Treaty makes clear, it is Member States, acting by
unanimity, who will decide on the role, scope and operation of
the External Action Service. So no evolution of this role unless
we agree.
On the subject of European Court of Justice
(ECJ) jurisdiction over the Common Foreign and Security Policy
(CFSP), as I said before the Committee, the Reform Treaty will
expressly exclude ECJ jurisdiction over the CFSP, except in two
limited areas. The first relates to the power of the ECJ to monitor
the boundary between the CFSP (which will be contained in the
new Treaty on European Union) on the one hand, and other EU policies
under the Treaty on the Functioning of the European Union (presently
called the Treaty establishing the European Community) on the
other. The ECJ already has this task under the current treaties.
The second limited area of ECJ jurisdiction relates to the right
of natural or legal persons to ask the ECJ to review the legality
of a CFSP decision which imposes sanctions on them. New text in
the Reform Treaty will set out, more clearly than before, that
ECJ jurisdiction is otherwise excluded from CFSP. This, of course,
was a key objective for the UK. The new text (Article 1, point
27—amending Article 11 (1) of the Treaty on European Union),
reads:
"The Court of Justice of the European Union
shall not have jurisdiction with respect to these provisions [ie
the CFSP] . . ."[2]
THE ABANDONMENT
OF THE
"CONSTITUTIONAL" CONCEPT
IN THE
EU REFORM TREATY
Eric Illsley MP asked for further details of
the process of discussion leading up to the June European Council,
where all Member States agreed to abandon the "constitutional"
concept. Following the rejection of the Constitutional Treaty
in France and the Netherlands, two founding Member States, it
was clear that a fundamentally different approach was needed.
At the June 2005 European Council Member States agreed on a period
of reflection in their countries on the best way forward. The
June 2006 European Council agreed to extend the period of reflection
for a further 12 months. The Government set out its general approach
to agreeing a new Treaty in the then Minister for Europe's Written
Ministerial Statement of 5 December 2006. During the German Presidency
of the EU, as the Committee is aware, there were a series of meetings
of "focal points"—two officials from each Member
State—at which UK officials repeated the Government's publicly
stated position. These meetings took place on 24 January and on
2 May. No text was provided or discussed at these meetings—the
first draft text of an IGC Mandate was not provided until 19 June.
On 25 March, the German Presidency, along with the Presidents
of the European Commission and European Parliament, signed a "Berlin
Declaration", setting out the aspiration of "placing
the EU on a renewed common basis" before the European Parliament
elections in mid-2009. There was no mention of the old Constitutional
Treaty in this political declaration. There followed a series
of unilateral statements by a number of Member States, in public.
For example, the Dutch Prime Minister Jan Peter Balkenende meeting
the Prime Minister in London on 16 April said at the press conference
afterwards:
"we should work with the idea of having
an amending treaty . . . it shouldn't have the characteristics
of a constitution."
The then Prime Minister echoed that position,
at the same press conference.
And Nicolas Sarkozy said at the G8 on 7 June:
"It should be a new treaty and not a small
constitution".
This public approach was not surprising, given
the clear signal already delivered by the French and Dutch electorates.
In bilateral contacts with each Member State, the German Presidency
had asked for their general position on the nature of any new
Treaty. The Prime Minister had set out the UK's general approach
to any new Treaty before the Liaison Committee on 18 June. Foreign
Ministers had a discussion of the issues around drawing up a new
Treaty on Sunday 17 June, ahead of the General Affairs and External
Relations Council on 18 June. As the Committee is aware, for that
discussion the German Presidency produced a short note summarising,
broadly, the well-known positions of those Member States who had
ratified the Constitutional Treaty on the one hand and of those
who had not, on the other. They stated that this reflected the
bilateral consultations they had had with Member States. In drawing
up a draft Mandate for discussion at the June European Council,
the German Presidency took account of Member States' positions,
which were public, on the nature of a new Treaty. A draft Mandate
was circulated, for the first time, at the third and final meeting
of focal points on 19 June. Fundamentally, that draft Mandate
reflected the political reality that the "constitutional"
approach had been rejected. There was then an intensive negotiation
at the European Council itself on the main terms of a new, amending
Reform Treaty, which was reflected in the final IGC Mandate agreed
by all EU leaders.
THE LIKELY
BILL ON
THE EU REFORM
TREATY
Paul Keetch MP and Andrew Mackinlay MP asked
whether "the draft legislation consequent upon this treaty,
when it comes before the House of Commons, will be framed so that
such an amendment [ie for a referendum on the Reform Treaty] can
be tabled?" As I said in front of the Committee, once a final
Reform Treaty is agreed, the Government will introduce a Bill
to implement it through Parliament. We have not yet considered
the content of that Bill; that will be done once a Treaty has
been agreed.
As the Prime Minister has made clear, if the
final Reform Treaty respects the UK's red lines and is fully in
line with the IGC Mandate agreed at the June European Council,
the Government will seek to implement it in our national law through
Parliament, as with all previous EU amending Treaties. Therefore,
I do not anticipate any provision relating to a referendum being
included in the Bill. It will be open to all Parliamentarians,
as with any Bill, to propose amendments. Again, as with any Bill,
amendments need to be within the scope of the Bill. While scope
is a matter for the Speaker, I would not expect it to be difficult
to draft a selectable amendment raising the issue of a referendum
on the Treaty.
THE NATURE
OF THE
2004 CONSTITUTIONAL TREATY
Gisela Stuart MP argued that the Constitutional
Treaty was, in fact, an amending Treaty, not a "refounding"
of the EU. In my opinion this is simply incorrect. Her argument
appeared to rest on the basis that the Constitutional Treaty did
not repeal and replace the Euratom Treaty, which established the
European Atomic Energy Community. That is correct. However, the
Euratom Treaty deals only with a very limited and discrete area—atomic
energy cooperation. The Constitutional Treaty would have repealed
and replaced the existing EC and EU Treaties, completely collapsing
the pillar structure, and creating a new Union based on a single,
"constitutional" Treaty. So the Constitutional Treaty
was not an "amending" Treaty. In contrast, the Reform
Treaty will amend the existing Treaties on European Union and
on the European Community and it will leave us with two Treaties—including
a separate Treaty governing CFSP—not with one constitution.
THE EQUAL
STATUS OF
MEPS
On whether UK MEPs might be excluded from voting
on EU issues on which the UK did not participate, such as elements
of JHA, I said before the Committee that we believe that there
should only be one class of MEP, with full rights to participate
in all debates and discussions in the European Parliament. That
is in fact the position at the moment. Various national opt outs
have existed since 1993—in no case have they affected the
equal status of MEPs from those countries. For example, UK, Danish
and Swedish MEPs sit on and participate fully in all aspects of
the work of the EP's Economic and Monetary Affairs Committee,
although the UK, Denmark and Sweden are not members of the eurozone.
I hope this is helpful. I know that the Foreign
Secretary is looking forward to providing further evidence on
10 October.
Jim Murphy MP
Minister for Europe
2 October 2007
1 Unofficial FCO translation of the French text. Back
2
Unofficial FCO translation of the French text. Back
|
