Examination of Witnesses (Quesitons 60-72)
MR CHRISTIAN
LEFFLER AND
MR MICHEL
PETITE
19 SEPTEMBER 2007
Q60 Baroness Cohen of Pimlico: The
procedures around the orange card and the yellow card differ in
as much as the orange card, as I understand the matter, is restricted
to Commission initiatives whereas the yellow card proposals can
be applied to proposals from other institutions. Why was the distinction
made?
Mr Petite: Frankly, I think nobody knows.
Mr Leffler: They were all very tired!
Mr Petite: My own explanation is that the final
draft was finalised very late. To my mind, that is the main explanation.
I am not sure it matters much because the difference between the
two is very minimal. Initiatives which do not come from the Commission,
in particular since 2004, are extremely rare cases coming from
the Central Bank or from the Court, on very specialised texts.
The only significant possibilities are initiatives from a group
of Member States. My personal explanation is that the issue has
probably been overlooked. The mass of initiatives simply come
from the Commission, so it covers the issue. I do not want to
think that it came out of suspicion from the Commission. This
is an interpretation which nobody on our side had in mind.
Baroness Cohen of Pimlico: No, no, no.
Q61 Lord Roper: Apart from the institutions
to which you have referred, are there not initiatives which in
terms of the second pillar, the CFSP, come from the Council, so
there is that group of initiatives under Pillar 2 to which this
does not apply.
Mr Petite: Yes, but they do not come from the
Council really.
Q62 Lord Roper: The working parties.
Mr Petite: They are not covered by transmission
to national parliaments, I believe.
Q63 Lord Roper: Not by the Commission
but, nonetheless, national parliaments become aware of them because
in a number of cases Member States have a responsibility to lay
them before national parliaments before decisions are made about
them. In that case you would say that because that is the responsibility
of national states and the relationship is between the national
parliament and the Member State rather than with the Community
institution. That is right, is it not?
Mr Petite: Probably so, yes.
Q64 Baroness Cohen of Pimlico: If
I could dig on. Who is to determine the exact number of votes
allocated to national parliaments? This question also applies
to the yellow card. Is it the Council?
Mr Petite: The text is pretty precise on this:
it allocates two points per Member State. It is precise enough
to exclude regional parliaments. It is national parliaments and
basically in a system where you have one national chamber you
score two points with that chamber, and if you have two there
is one point for each. I do not see much difficulty on the counting
of those. What might appear is an area of interpretation on issues
which we have not explored at all but we could probably anticipate
on, for example, when exactly you decide that there is a negative
opinion. When is an opinion negative? It is just when it is not
positive? Or has it got to formally state "this is the negative
opinion according to ..."? There might be some debate on
this, but on the actual mathematics I think it is pretty straightforward.
Q65 Baroness Cohen of Pimlico: When
you get to the stage where one nation has put up an orange card,
who submits the national parliament's reasoned opinions back to
the legislator? Do you do that? Does the Commission do that? Are
you the conduit?
Mr Petite: In the "orange card" system,
and that is one of the differences from the "yellow card"
the Commission is obliged to forward to the two branches of the
Legislative Council and the Parliament the national parliament's
opinions with its own opinion on their opinion, so the whole lot
will be transferred to the legislator for full review of the draft.
Chairman: That answers that one. Thank
you very much indeed. Do you want to go for one more before we
call your boat in?
Q66 Baroness Cohen of Pimlico: I
think really I got an answer to the question what dialogue does
the Commission envisage while all this procedure is going on.
You plan to talk to them, do you not?
Mr Leffler: Absolutely, all the time.
Q67 Baroness Cohen of Pimlico: I
suppose it is a general question of has much thought and consideration
been given to all the nuts and bolts, the procedural bits of this?
Mr Petite: I think not yet. A lot will have
to be done in each Member State. I have no doubt that when the
time comes the Commission will produce its own internal procedure
on how to cope with these national parliaments' opinions, how
to view them, to treat them, to decide on them, to communicate
on them. We will have to have internal rules on this, but not
yet.
Q68 Lord Roper: Will those internal
rules be discussed, for instance, with COSAC or some other body
which is representative of the national parliaments and the bodies
which are treating these issues within national parliaments?
Mr Leffler: If the Commission is allowed to
have its say on this, obviously when it comes to determining how
a Treaty is to be implemented that has to be agreed with Member
States and between institutions, but if we are allowed to have
our say on it it would seem pretty self-evident that we need to
discuss this with the body representing the community of national
parliaments. If we design a wonderful procedure between institutions
here in Brussels but which does not suit national parliaments
then it is not much good.
Chairman: I do not know whether it will
come as early as the French Presidency. Of course they are very
hot on this issue and maybe she will be invited to COSAC when
they are in the chair; we shall see. I think we have dealt with
the Schengen building measures. We have very few other issues
we would like to raise before we let you go. Lord Bowness on the
Charter. Lord Bowness was a member of the Convention on the Charter,
so he knows whereof he speaks.
Q69 Lord Bowness: Thank you, my Lord
Chairman. I gather from an answer we have already had this afternoon
that it has not been finally decided how the Charter is going
to be dealt with although the draft papers have it within the
Declarations. If it is a Declaration what will the effect of that
be? Perhaps I can just add to that question. Bearing in mind,
since Declarations are merely a political statement rather than
something that has got legal force, which is why I think the United
Kingdom opt-out to the Charter is actually in a Protocol, which
has legal force, if that is right what comfort can people draw
from the other Declarations regarding other important issues like
CFSP, which apparently will only have a political significance
and no legal force? Do you agree that to actually have a legal
force they would have to be in the Treaty or in a Protocol?
Mr Leffler: Maybe I can say a word, as I understand
it, about the broad consensus on how the Charter will be dealt
with and if Michel has any further comments on the issue of legal
force I will leave that to him. There has been a discussion, both
amongst the legal experts and ministers, on how best to bring
the updated Charter into effect. The conclusion of that discussion,
supported in principle by all Member States, and therefore likely
to be the final result, is that the revised Charter—I talk
of the revised one because the Charter already exists and was
updated in the course of the 2004 negotiations and the agreement
is it is that 2004 version which will now be brought into effect
one way or another—was felt less appropriate to do that
as a Declaration to the Treaty given that Declarations, as you
say, are mostly interpretative, they are a political interpretation
of what is in the treaty. Since the Charter is not in the treaty
it is difficult to have a Declaration which interprets it. Therefore,
the likely procedure is that the Charter will be adopted by proclamation
between the three institutions—the Council, the Commission
and the European Parliament—as was the case with the original
Charter, and there will be a reference in the Treaty which will
be adopted later referring back to the proclaimed Charter giving
it legal force except as set out in the Protocol that deals with
the specific British and Polish situation. Where the other Member
States agree to give it legal force and they refer to the proclaimed
Charter, which until the Reform Treaty enters into force will
have no legal force, only at that stage will it get that legal
effect with the circumscriptions set out in the Protocol. That
also makes it clearer that the other Declarations which are attached
to the draft Treaty are, indeed, interpretative Declarations of
provisions in the Treaty.
Q70 Lord Bowness: Certainly so far
as the Charter is concerned I think that is a very helpful answer.
I think it is just a little worrying to think that the Declarations
are political interpretations of what is in the Treaty bearing
in mind that the Declaration has no legal force. Who can make
governments, the European Court of Justice or anyone else, follow
a political interpretation if the Treaty itself does not guarantee
the position?
Mr Petite: If I may, it was always the case
that Declarations, which are not Declarations attached to the
Treaty but Declarations of the conference, are political Declarations.
They are acts of interpretation of the legal texts which are the
Treaty and its Protocols. For the Charter I would put the matter
in more trivial words than Christian Leffler. Basically the legal
status of the Charter derives from Article VI of the Treaty and
that is it, full stop. The next question, nevertheless, is which
text of the Charter? They needed to have an established text of
the Charter and that is why initially the Presidency thought of
putting the text in a Declaration to the Convention so you could
refer to it when there was the second text on the explanations
given to the Charter. In the Expert Group what happened was that
two different sources of uneasiness with that initial device arose.
One coming from those who—I have to be careful with the
words—were defining the new Treaty or the Reform Treaty
as a "simplified" Treaty: and a good way to simplify
the Treaty is to try and suppress 50 pages of annexes and Declarations,
so they were keen on having these Declarations, which are substantial,
out of the copy; and second, those who felt to put this Charter
as a mere Declaration to the conference was rather downgrading
the text and meanwhile there was the need to actually formalise
the text. The solution we suggested was to remove these two Declarations,
to re-proclaim the new Charter by the three institutions, because
it is not the 2000 text, but the 2004 text, which is the one to
which Article VI would refer. This meant that the proclamation
would have to be done between October and the signature of the
Treaty. That is it basically: you do not need to have these Declarations
attached. It would then be published in the same issue of the
OJ, both the Charter and the explanations attached to it.
That is the simplest device and it does not change the legal status.
Chairman: Thank you very much indeed.
There is a Eurostar getting up steam, if that is not an inappropriate
way of expressing it. We have just one last very quick question
from Lady Thomas, and that will be it.
Q71 Baroness Thomas of Walliswood:
We have heard that some Member States are concerned that they
would like to have a reduction in the role of the European external
relations service on the grounds that the Council Secretariat
will become more dominant in the Commission services. What sort
of concern is this really? Does it reflect a reality which concerns
you or is it a relatively minor matter?
Mr Leffler: As far as I know it is not
an issue which has been discussed at all in the current negotiations
in the IGC. That is something that will come in the implementation
phase. There is no questioning of the wording that establishes
the External Actions Service. It will come when we have to define
what it will be. We have, no doubt, a number of cross-cutting
concerns and aspirations for that new service. It is unusual to
hear a concern that the Council Secretariat will become too dominant
at the price of the Commission.
Q72 Baroness Cohen of Pimlico: It
is a little, is it not?
Mr Leffler: I think there are a number of Member
States which have the reverse concern. Of course, the institutions
themselves also have concerns and aspirations in this field. This
will be an area for very lively debate once we have a Treaty agreed
and signed. I am also fairly confident that in the end we will
find a practicable solution with a structure that brings together
the added value, the best from the Commission services as they
exist in Brussels and across the world, the Council Secretariat
and the services that they have built up since Javier Solana entered
these functions in 1999, and the experience and expertise of Member
States. We will all benefit from bringing those together.
Chairman: Thank you very much indeed.
I would like to thank you both very warmly on behalf of the Committee
for answering our questions so fully and so frankly, and in such
a friendly way. I leave you with this one thought: I heard on
the BBC this morning that there is one town in England which is
going to hold a referendum on the Treaty as soon as possible after
it has been published and signed, so you may get an early indication
as to whether all of your work has been in vain.
Baroness Cohen of Pimlico: Which town,
my Lord Chairman?
Chairman: I thought I heard Reading.
Anyway, thank you very much indeed. It has been a great pleasure
to see you again.
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