2 Draft Protocols to the EU Treaties
concerning Ireland and the Czech Republic
| (33340)
EUCO 91/11
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(33341)
EUCO 92/11
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| Draft Protocol on the application of the Charter of Fundamental Rights of the European Union to the Czech Republic
Draft Protocol on the concerns of the Irish people on the Treaty of Lisbon
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| Legal base | Article 48 (2)-(5) TEU; unanimity; consultation
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| Document originated | —
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| Deposited in Parliament | 15 November 2011
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | EM of 2 December 2011
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| Previous Committee Report | None
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| Discussion in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | For debate in European Committee B
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The documents
2.1 The draft Protocol on the concerns of the Irish People on
the Treaty of Lisbon was proposed following a meeting of the European
Council in June 2009; the draft Protocol on the application of
the Charter of Fundamental Rights of the European Union to the
Czech Republic following a meeting of the European Council in
October 2009. In both, Member States agreed that the European
Council would take steps to add these Protocols to the EU Treaties
at the time of the next accession by a candidate country to the
European Union. The Croatian Accession Treaty was signed on 9
December 2011. The ordinary Treaty revision procedure in Article
48(2)-(5) TEU has been initiated with a view to the draft Protocols
being ratified by EU Member States in time for the entry into
force of the Croatian Accession Treaty, on 1 July 2013.
2.2 The draft Czech Protocol simply extends the UK
and Polish Protocol No. 30 on the Charter of Fundamental Rights
to the Czech Republic.
2.3 The draft Irish Protocol contains safeguards
in relation to the right to life, family and education (Article
1); taxation (Article 2); and Irish neutrality (Article 3).
2.4 Article 1 provides as follows:
"Nothing in the Treaty of Lisbon attributing
legal status to the Charter of Fundamental Rights of the European
Union, or in the provisions of that Treaty in the area of Freedom,
Security and Justice affects in any way the scope and applicability
of the protection of the right to life in Article 40.3.1, 40.3.2
and 40.3.3, the protection of the family in Article 41 and the
protection of the rights in respect of education in Articles 42
and 44.2.4 and 44.2.5 provided by the Constitution of Ireland."
2.5 Article 2 provides as follows:
"Nothing in the Treaty of Lisbon makes any
change of any kind, for any Member State, to the extent or operation
of the competence of the European Union in relation to taxation."
2.6 Article 3 concerns Ireland's traditional policy
of military neutrality.
The Government's view
2.7 The Minister for Europe deposited an Explanatory
Memorandum on these documents on 2 December.
2.8 The Minister explains that Protocol 30 provides
that the Charter does not extend the ability of the Court of Justice
of the European Union or any UK Court or tribunal to find UK laws,
regulations or administrative provisions, practices or actions
of the UK inconsistent with the fundamental rights reaffirmed
in the Charter. On social and economic provisions, the Protocol
confirms that the rights are only applicable in the UK to
the extent already provided for in UK national law and the Charter's
references to national law only apply where that right is already
recognised in the laws and practices of the UK. The draft Czech
Protocol is helpful to the UK as it makes clear that that the
UK and Polish Protocol on the Charter of Fundamental Rights shall
also apply to a further Member State, the Czech Republic.
2.9 The draft Irish Protocol is helpful to the UK,
the Minister says, as it clarifies the limitations of the Lisbon
Treaty consistently with the UK's own interpretation. In particular,
it confirms that the Lisbon Treaty makes no changes to the powers
the EU has over any Member State in relation to taxation. "Writing
these guarantees into a Protocol provides an even stronger point
of reference in the event of any future disagreements than is
provided by the political declaration of the European Council,
as it is legally binding." As the European Council conclusions
made clear at the time however, the content of the guarantees
"will in no way alter the relationship between the EU and
its Member States" and is "fully compatible with the
Treaty of Lisbon and will not necessitate any re-ratification
of that Treaty".
2.10 In terms of the impact on UK Law, the Minister
says the draft Protocols do not transfer power or competence from
the UK to the EU and they do not change the content or application
of the Treaties. However, any amendment to the Treaties, once
adopted, has to be approved in accordance with the requirements
of the European Union Act 2011. This means approval of the Treaty
amendment by primary legislation, as well as a statement to be
laid by the Minister before Parliament under section 5 of the
Act as to whether the amendment falls within section 4 of the
Act, and therefore whether a referendum is required.
Conclusion
2.11 We thank the Minister for his Explanatory
Memorandum.
2.12 We note that the Minister says that writing
the taxation guarantees into a Protocol "provides an even
stronger point of reference in the event of any future disagreements
than is provided by the political declaration of the European
Council, as it is legally binding". This is a point the previous
Committee repeatedly made to the previous Foreign Secretary when
questioning whether the political declarations made in the June
2009 European Council could be described as "legal guarantees"
for Ireland. (Ireland had sought these guaranteed as a pre-condition
to putting the ratification of the Lisbon Treaty to a second referendum.)
The previous Committee was repeatedly told that they could: in
a letter of 14 October 2009, for example, the previous Foreign
Secretary wrote: "the [European Council] Decision is legally
binding on the Member States in international law".
2.13 It seems the Foreign and Commonwealth Office
has changed its view on this, which, though surprising given its
previous stance, is welcome.
2.14 We recommend these draft Protocols be debated
in European Committee B, such debate to include discussion of
the legal status of the Irish guarantees in the European Council
conclusions of 19 June 2009 as compared to in the draft Protocol,
and of how the draft Protocols will be helpful to the UK.
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