The EU Bill and Parliamentary sovereignty - European Scrutiny Committee Contents

Written evidence from Jean-Claude Piris, Director-General of the Legal Service, Legal Adviser to the European Council


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.

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).


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.


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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