Written evidence from Jean-Claude Piris,
Director-General of the Legal Service, Legal Adviser to the European
Council
LETTER TO
THE CLERK
OF THE
COMMITTEE
Thank you for your e-mail of 17 November 2010 regarding
the European Union Bill and the invitation to give evidence to
the European Scrutiny Committee of the House of Commons on the
Bill. As I will not be able to travel to London, owing to a busy
schedule before I retire on 30 November from my present functions
of Legal Counsel, Director General of the Council Legal Service,
I take up your suggestion to furnish a brief written response.
This response is made in a personal capacity. It does not represent
the views of the Council of the European Union or of its Legal
Service.
You suggest that my response could usefully focus
on the possible effect which Part 1 of the Bill could have on
the future relationship between the UK and the EU. I would also
like to make a comment on Part 3 of the Bill.
Part 1 of the Bill
In the Lisbon Treaty, as in previous Treaties, the
Contracting Parties agreed to insert, in addition to ordinary
revision procedures which require ratification procedures by all
Member States "in accordance with their respective constitutional
requirements", other specific provisions which provide
for easier procedures in certain cases. These provisions enable
the European Council or the Council, for example, to adopt a decision
changing a given area or case from unanimity to qualified majority
voting (QMV).[32]
They were inserted in the Treaty in order to achieve a balance
between the different views of the Contracting Parties. The Parties
ratified the Treaty of Lisbon, thereby mutually committing to
implement it bona fide - a principle of overriding importance
under international law[33]
- which implies preserving the purpose and effect of all its provisions.
It is undoubtedly for each Member State to determine
the constitutional mechanisms through which it gives effect to
those legal obligations. It will be for the other Member States
to assess whether the Bill, and more particularly Clauses 4 and
6 thereof, which introduce a referendum requirement with regard
to the triggering of most of the passerelles, respects
those obligations. If they were to consider that the national
legal constraints of the UK were to lead to the practical impossibility
of taking certain steps within the Union which would be perceived
as necessary or desirable by many or all other Member States,
it could not be ruled out that the compatibility of the referendum
requirement with international and EU law might become an issue.
Furthermore, if, in a specific case, the requirement to hold a
referendum were to result in an impasse in the future, this might
lead to the UK being sidelined on certain issues. This is because
it could trigger a tendency among other Member States to circumvent
this situation, either by engaging in enhanced cooperation among
themselves without the participation of the UK, or by concluding
intergovernmental agreements outside the framework of the EU.
Part 3 of the Bill
The coexistence of the principle of the sovereignty
of Parliament and the principle of the primacy of EU law is assured
in the UK by the fact that the recognition and availability of
directly applicable and directly effective EU law stems from the
European Communities Act 1972. As long as the 1972 Act remains
on the statute book, EU law applies in the UK in full with the
consequence that no further legal step is necessary to ensure
the recognition and availability in law of directly applicable
or directly effective EU law. Clause 18 is presented as being
declaratory of that situation. It states the doctrine of UK constitutional
law whereby, in application of the principle of the sovereignty
of Parliament, EU law has effect in the UK by virtue of an act
of the UK Parliament. That interpretation is confirmed by
some of the Explanatory Notes to the Bi11[34].
Similarly, the EU Bill Factsheet[35]
states: "This is a declaratory provision and does not
change the existing relationship between EU and UK law or the
rights and obligations applying to the UK as a Member State of
the EU." And, in answer to the question whether the Bill
will affect the primacy of EU law, the Factsheet states categorically:
"No. ... The principle of primacy was established prior
to the UK joining the European Communities. By approving UK membership
of the European Communities Parliament accepted this."
Against that background, the intention behind the
second sentence of paragraph 104 of the Explanatory Notes is not
crystal clear : "The words 'by virtue of an Act of Parliament'
cover UK subordinate legislation made under Acts, and because
of the particular context of this clause, also covers [sic] Acts
and Measures of the devolved legislatures in exercise of the powers
conferred on them by the relevant UK primary legislation. "
My understanding is that it is section 2 of the European Communities
Act 1972 that gives effect in the UK to directly applicable and
directly effective EU law. The 1972 Act has been amended from
time to time, in particular to take account of new treaties, but
the far-reaching effect of section 2 is such that it has not been
necessary, for directly applicable and directly effective EU law
to continue to have effect, to pass other legislation in the UK
to take account of developments in EU law.
So long as Clause 18 does not change the present
situation, which I assume to be the case, it is therefore consistent
with Declaration No. 17 annexed to the Final Act of the Intergovernmental
Conference which concluded the Treaty of Lisbon, and with the
case law of the Court of Justice of the European Union.
Brussels
November 2010
32 There are 21 such provisions in the Treaties. Eight
of these are so-called passerelles which enable the European
Council or the Council to decide to switch from unanimity to QMV,
two of these passerelles (the so-called general passerelles
in Article 48(7) TEU) providing for a six month period during
which any national parliament can oppose the draft decision. Out
of these eight passerelles, three already existed in the
previous EC Treaty (Articles 67(2), second indent (family law),
137(2), second subpara., (social policy) and 175(2), second subpara.,
(environment), renumbered Articles 81(3), second subpara., 153(2),
second subpara. and 192(2), second subpara., TFEU).
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33
The International Court of Justice has held that bona fide
is "one of the basic principles governing the creation
and performance of legal obligations", see Case Border
and Transborder Armed Actions, Rep. (1988), p. 105.
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34
For example:
- Paragraph 104: "Clause 18
is a declaratory provision which confirms that directly applicable
or directly effective EU law only takes effect in the UK as a
result of the existence of an Act of Parliament."
- Paragraph 109: "This clause
does not alter the existing relationship between EU law and UK
domestic law; in particular, the principle of the primacy of EU
law. The rights and obligations assumed by the UK on becoming
a member of the EU remain intact."
- Paragraph 110: "This clause
is declaratory of the existing common law position ... "
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35
http://www.fco.gov.uk/resources/en/pdf/3052790/2010/fivepage-factsheet.
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