Memorandum by Professor A. A. Dashwood,
University of Cambridge
I shall respond to the questions in order, while
dealing with some of them only briefly. The numbering of Articles
is that found in the text signed on 13 December 2007. The Treaty
establishing a Constitution for Europe will be referred to (where
occasionally relevant) as "the Constitutional Treaty".
1. OVERALL ASSESSMENT
(a) The Treaty and Union structure
1. The Treaty of Lisbon (TL) will reorganise
the existing Treaty on European Union (TEU) and EC Treaty (to
be renamed "Treaty on the Functioning of the European Union"
or TFEU). The evident intention is to place within the amended
TEU the provisions that define the essential character of the
EU, while consigning to the TFEU the legal bases for concrete
policies, as well as more detailed institutional and procedural
provisions. This may be seen as contributing to the transparency
of the Union's primary law. However, the symmetry of the design
is somewhat compromised by the retention in Title V TEU of detailed
provisions relating to the common foreign and security policy
(CFSP); the explanation doubtless lies in the wish to emphasise
the particularity of the CFSP. In contrast, the provisions relating
to police and judicial cooperation in criminal matters (PJC),
which are presently found in Titles VI TEU, are to be transferred,
with amendments, to Title IV of Part Three of the TFEU.
2. The Union is described in Article 1 TEU,
as amended, and in Article 1a TFEU as being "founded"
on the TEU and the TFEU, which are to "have the same legal
value". The EURATOM Treaty is the subject of a Protocol,
which leaves it with an uncertain statusnot a foundational
Treaty, though subject to the same institutional arrangements,
and the same ordinary amending procedure and accession procedure,
as the TEU and the TFEU.
3. A significant change is that "the
Community method" will no longer enjoy primacy in the system
of the amended Treaties. The reference in the present Article
1 TEU to the Union's being "founded on the European Communities"
will disappear. So too will the references in the present Articles
2 and 3 TEU to "building upon the acquis communautaire".
Article 25b TEU makes clear that CFSP competences and the Union's
other competences are to enjoy equal protection against mutual
encroachment. Contrast the present Article 47 TEU, which has been
interpreted by the European Court of Justice (ECJ) as preventing
the Union's competences under that Treaty from encroaching upon
the Community's competences under the EC Treaty.
4. In broad terms, it can be said that the
TL will reduce the "three pillars" of the Union's present
structure to two, while reinforcing the particularity of the Second
(b) Whether the TL is a "lasting
5. This is a political rather than a legal
question. The reference to "ever closer union among the peoples
of Europe" is preserved in the second paragraph of Article
1 TEU, as amended. So the European integration process retains
its dynamic character, in principle. However, there can be no
further step towards a closer union without amending the Treaties.
The TL will not remove Member States' control over such developments:
the "simplified revision procedures" in Article 48 (6)
and (7) of the TEU, as amended, respectively require unanimity
in the European Council or give each national parliament a veto.
6. The fundamental rights enjoyed by individuals
in the United Kingdom under the common law and the Human Rights
Act will not be affected by the TL. This follows from the preservation
as sources of rights, by the new Article 6 (3) TEU, of the European
Convention and Member States' constitutional traditions, which
are to be protected as general principles of EU law.
7. I have published a short article in the
February 2008 issue of Parliamentary Brief (pp. 9 to 10)
on my understanding of the implications of conferring the
status of primary Union law on the Charter of Fundamental Rights,
and of the significance of the Protocol on the application of
the Charter to Poland and the UK. I argued that the change in
the Charter's status was unlikely to amount to much more than
a formality. The European Courts can be expected to refer to the
Charter more regularly than at present, but only by way of confirmation,
once the existence of a right has been established in the traditional
way, by pointing to the European Convention or to constitutional
traditions common to the Member States. On a true view of the
Charter, interpreted in the light of the "horizontal provisions"
contained in its Title VII, and with due regard to the officially
recognised "Explanations", there would not be any need
for the Protocol. It has been provided just in case the paper
tiger, that is the Charter, should acquire teeth through an aberrant
interpretation treating its provisions as capable in themselves
of giving rise to enforceable rights. In that unlikely event,
the United Kingdom would be able to invoke the Protocol, to resist
any challenge to its law or practices.
8. In my opinion, the expansion of
the rights associated with Union citizenship is set to continue
in the case law of the Court of Justice, but this will have little
or nothing to do with the TL. I cannot see that the Treaty will
have any impact on present or future trends in the notion of British
citizenship or Britishness.
4. POWERS AND
(a) The EU as "a constitutional
order of sovereign States"
9. The TL will do nothing to change the
sui generis nature of the EU. I characterise the Union
as "a constitutional order of sovereign States", or
in bolder moments "a federation of sovereign States",
to bring out the paradox on which it rests. On the one hand, the
Member States of the Union retain their character as sovereign
States (as distinct from the States of the USA or the German Lander):
nobody questions their standing as full subjects of the international
order; while they remain the principal focus of their citizens'
collective loyalty and the principal forum of democratic political
activity. On the other hand, the Member States have come together
in a constitutional relationship which obliges them, during membership
of the Union, to accept the discipline of acting under the institutional
and procedural arrangements established by the Treaties, and in
accordance with the rules resulting from them.
10. I would point to the following novel
elements of the TL as indicating, even more clearly than the present
Treaties, that the Union has no vocation to become a State:
The addition to Article 1 TEU of
the phrase "on which the Member States confer competences
to attain objectives they have in common". This asserts the
primacy of the Member States in two ways: they are the source
of the Union's competences; and the Union exists to enable them
to pursue common objectives.
The statement in Article 3a (1) TEU,
as amended, which is repeated in the definition of the principle
of conferral in Article 3b (2) TEU, as amended, that "competences
not conferred upon the Union in the Treaties remain with
the Member States" (emphasis added). The use of the indicative
mood shows that this is a statement of fact. Member States do
not derive their competences from the Treaties but from their
The statement preserving Member States'
"national identities", which is more muscular than the
statement in the existing Article 6 (3) TEU.
The express right of withdrawal that
will be recognised in Article 49a TEU, as amended. Under the existing
Treaties, there would be no way of preventing a Member State from
withdrawing from the Union. However, explicit acknowledgement
that this is a right Member States enjoy in accordance with their
own constitutional arrangements underlines the fact that the measure
of sovereignty that was pooled, as a result of accession to the
Union, is in principle fully recoverable.
(b) Categories of Union competences
11. The main categories of the Union's competencesexclusive,
shared and supportingare usefully defined by the new Title
I TFEU. This is by way of a clarification: the definitions reflect
distinctions found in the detailed provisions of the present EC
Treaty. It would have been misleading to have provided a catalogue
of Union competences, without highlighting these distinctions.
Particularly striking is the limited range of competences that
are a priori exclusive (Article 2b (1) TFEU).
12. The Protocol on the Exercise of Shared
Competence cures an ambiguity that existed in the Constitutional
Treaty. It makes clear that the curtailment of Member States'
competence resulting from the adoption of a Union act in areas
where competence is shared, as provided for by Article 2a (2)
TFEU, "only covers those elements governed by the Union act
in question and therefore does not cover the whole area".
(c) Primacy of Union law
13. The TL has no provision corresponding
to Article I-6 of the Constitutional Treaty, which stated that
"[t]he Constitution and law adopted by the institutions of
the Union in exercising competences conferred on it shall have
primacy over the law of the Member States". That provision
could have been read as extending the principle of primacy (and,
by implication, that of direct effect) over the whole field of
Union law, including to the CFSP. The omission of the principle
from the TL means that primacy remains a principle developed in
the case law of the ECJ, which has only a very limited jurisdiction
in CFSP matters.
(d) UK powers in respect of labour
and social legislation
14. There has been concern that new "social
rights" derived from the Charter of Fundamental Rights, once
it acquires the force of primary Union law, may undermine relevant
UK law, especially regarding collective action by trade unions.
For the reasons indicated in paragraph 7, above, and in the article
there cited, I do not share that concern. The relevant provisions
of the Charter preserve any limitations imposed by national law,
as the ECJ recently acknowledged in its Viking judgment.
(d) An independent foreign and defence
15. I do not believe that the changes in
the organisation of the Union's external relations, which are
envisaged by the TL, would be liable to inhibit the United Kingdom
in pursuing an independent foreign and defence policy. Decisions
on new policy initiatives in the CFSP framework can only be taken
by the Council acting unanimously; QMV remains confined to implementing
decisions, except where a proposal is made by the High Representative
in response to a specific request by the European Council, acting
for this purpose by consensus.
16. If, as is hoped, the new-style High
Representative succeeds in promoting more effective external action
by the Union, the scope for independent action by the UK will
only be restricted in a given situation, because the Government
judges it to be in the nation's interest to proceed collectively,
in that instance.
(e) Protection of "red lines"
17. The opt-in/opt-outs secured by the Government
in the area of justice and home affairs are, in my view, perfectly
adequate to prevent any damaging encroachment on the common law,
as a result of the "communitarisation" of the Thrd Pillar".
A system, which has proved unproblematic since it was brought
in by the Amsterdam Treaty, is to be extended to the new chapters
of Title IV of Part Three TFEU on criminal law and police cooperation.
18. On taxation, so-called "own resources"
must still be established by a unanimous Council decision and
ratified at Member State level (Article 269, second paragraph
TFEU); while tax harmonisation will also still require unanimity
(Article 93 and re-numbered Article 95 TFEU).
5. OUR NATIONS
19. I can think of no way in which the internal
organisation of the United Kingdom will be affected by the TL.
6. OUR NATIONAL
20. One of the key reforms introduced by
the TL will be the enhanced role of national Parliaments in the
legislative process of the Union. This is to be achieved by improving
the flow of information from the Union institutions and by the
new "subsidiarity mechanism", which will provide a way
of forcing reconsideration of legislative proposals on matters
that should arguably have been left for the Member States to deal
with. The two relevant Protocols create real opportunities for
national Parliaments, if only they are willing to grasp at them,
to strengthen democratic accountability in the EU.
7. COURTS AND
21. I am not aware of changes envisaged
by the TL that would significantly alter the existing relationship
between UK courts and the European judicature, which has always
been a model of cooperation and mutual respect.
8. LEGAL PERSONALITY
22. Under existing arrangements, the Community
has legal personality explicitly conferred by Article 281 EC,
and international capacity in the matters for which competence
has been conferred on it; while the Union has de facto
legal personality (accepted in practice by our principal international
partners, including the United States), and international capacity
for the matters covered by Titles V and VI TEU. The replacement
of this strange dual personality by a single legal personality
for the EU will be a purely technical change having no effect
on the division of competences between the Union and the Member
19 February 2008