Annex B
CHARTER OF
FUNDAMENTAL RIGHTS
Red line: Protection of the UK's existing labour
and social legislation
The Government pledged that nothing in the Charter
of Fundamental Rights would give national or European courts any
new powers to strike down or reinterpret UK law, including labour
and social legislation. This sets out what will be the legal consequences
of the Lisbon Treaty concerning the Charter of Fundamental Rights.
A reference to the Charter in the Lisbon Treaty
(new Article 6 TEU) will make the Charter legally binding once
the Lisbon Treaty comes into force. The Charter will be addressed
primarily to the EU institutions who will be required to recognise
the rights, freedoms and principles in the Charter. The Charter
simply records existing rights which already bind Member States
when they implement EU law. The Charter creates no new enforceable
rights.
The text of the Charter and explanations will
include the amendments made in the Constitutional Treaty. Courts
will have to give due regard to the horizontal articles in the
Charter, and to the accompanying explanations. These confirm that
the Charter does no more than to reaffirm rights, freedoms and
principles already recognised in EU law, and restates the circumstances
in which courts can already take them into account. The Lisbon
Treaty reference to the Charter sets out how the ECJ should use
them to interpret the Charter. Furthermore, the Lisbon Treaty
also includes a declaration, agreed by all Member States, underlining
that there is no extension of the EU's powers to act, and a specific
UK Protocol. The Protocol guarantees that the Charter does not
create any greater rights than already apply in EU law nor extend
the powers of any court to strike down UK laws. This package of
safeguards guarantees that the charter would not give national
or European courts any new powers to strike down or reinterpret
UK law, including our labour and social legislation.
The mandate notes that the reference to the
Charter is to "the version of the Charter as agreed in the
2004 IGC which will be re-enacted by the three Institutions in
[2007]. It will be published in the Official Journal of the European
Union.
The Charter does not create any new rights,
freedoms or principles. It simply records rights, freedoms and
principles that are already recognised in EU and national law,
and makes them more visible. This is made clear by the horizontal
provisions in Title VII of the Charter, as amended by the 2004
IGC, and by the accompanying explanations.[41]
In particular, the horizontal provisions say:
— The Charter applies to Member States
"only when they are implementing Union law".
— The Charter does not extend or modify
the Union's powers or tasks.
— Rights deriving from EU law or the
ECHR are the same (ie the rights in the Charter are not more extensive).
— Rights resulting from the common
constitutional traditions of the Member States "shall be
interpreted in harmony with those traditions".
— Acts of the Union may implement provisions
of the Charter that contain principles, but these principles "shall
be judicially cognisable only in the interpretation of such acts
and in the ruling on their legality".
— "Full account shall be taken
of national laws and practices as specified in this Charter".
As is well-established in the case law of the
ECJ, courts already have the power to strike down national legislation
that is incompatible with a fundamental right constituting a general
principle of EU law, if the legislation implements or derogates
from EU law.[42]
After the Charter is made legally binding, that will remain the
case. The Charter does no more than to restate the fundamental
rights to which courts have always had regard, and the circumstances
in which they may take those fundamental rights into account.
The Charter also includes "principles",
that—as the Horizontal Articles explain—do not have
legal effect independently of the legislation that gives them
effect. Their purpose is to guide the EU legislature, rather than
to give justiciable rights to individuals. For instance, the Charter
records that when the EU legislates, it should do so in a way
that will ensure a high level of human health protection. But
that does not create an individual right to health care. And a
court may only have regard to such principles when considering
whether the EU legislature has taken them sufficiently into account
when acting.
INCORPORATING THE
CHARTER INTO
THE TREATIES
Article 1, point 8 of the Lisbon Treaty states
that current Article 6 TEU which deals with fundamental rights
will be replaced with the following:
Article 6
1. The Union recognises the rights, freedoms
and principles set out in the Charter of Fundamental Rights of
7 December 2000, as adapted [at . . ., on . . . 2007], which shall
have the same legal value as the Treaties.
The provisions of the Charter shall not extend
in any way the competences of the Union as defined in the Treaties.
The rights, freedoms and principles in the Charter
shall be interpreted in accordance with the general provisions
in Title VII of the Charter governing its interpretation and application
and with due regard to the explanations referred to in the Charter,
that set out the sources of those provisions.
2. The Union shall accede to the European
Convention for the Protection of Human Rights and Fundamental
Freedoms. Such accession shall not affect the Union's competences
as defined in the Treaties.
3. Fundamental rights, as guaranteed by the
European Convention for the Protection of Human Rights and Fundamental
Freedoms and as they result from the constitutional traditions
common to the Member States, shall constitute general principles
of the Union's law.
Commentary: This article makes the Charter
legally binding, giving it the same legal value as the Treaties.
The text of the Charter does not however form part of the Lisbon
Treaty. There is also a clear provision that the Charter does
not extend the competences of the Union beyond what is provided
in the Treaties. The article also confirms that the Charter must
be interpreted in the light of the Horizontal Articles (as set
out in Title VII of the Charter) and the Explanations. Additionally,
the Union will accede to the ECHR—again this will not affect
the Union's competences.
Protocol no: 7 on the application of the Charter
of Fundamental Rights to Poland and to the United Kingdom
Commentary: The protocol specifies what an
incorporated Charter does and does not do, bearing in mind that
it does not create new rights and principles but simply records
those that already exist. The protocol is intended to guarantee
for the UK that the new reference to the Charter in Article 6
EU does not increase the extent to which courts applying EU law
may already have regard to fundamental rights, freedoms and principles.
Article 1
1. The Charter does not extend the ability
of the Court of Justice, or any court or tribunal of the United
Kingdom, to find that the laws, regulations or administrative
provisions, practices or action of the United Kingdom are inconsistent
with the fundamental rights, freedoms and principles that it reaffirms.
Commentary: This makes clear on the face
of the Treaty that the Charter cannot have the effect in the UK
of `extending' the ability of any court to strike down UK law,
because it does not `extend' any aspect of EU law. Therefore if,
despite what the Charter provisions say, someone tried to argue
that the Charter creates new rights, the argument would fail:
the Protocol makes it clear that the Charter does not give national
or European courts any new powers to strike down or reinterpret
UK law, including labour and social legislation.
2. In particular, and for the avoidance
of doubt, nothing in [Title IV] of the Charter creates justiciable
rights applicable to the United Kingdom except in so far as the
United Kingdom has provided for such rights in its national law.
Commentary: This paragraph applies "in
particular" to the social and economic provisions in Title
IV of the Charter. Some of those provisions contain principles
rather than rights. Other provisions expressly say that they apply
in accordance with national law. It follows that, as this paragraph
guarantees, those articles either do not reflect any rights at
all, or do no more than reflect the rights that already exist
in UK law. As the words "in particular" indicate, the
same is also true of other provisions in the Charter that either
contain principles rather than rights, or expressly give no rights
going beyond those provided for in national law.
Article 2
To the extent that a provision of the Charter
refers to national laws and practices, it shall only apply in
the United Kingdom to the extent that the rights or principles
that it contains are recognised in the law or practices of the
United Kingdom.
Commentary: This applies to provisions in
the Charter that refer back to national law and practice. It reinforces
the point—as provided for in Article 52(6) of the Charter—that
those provisions are limited in the same way as national law.
Declaration on the Charter of Fundamental Rights
1. The Charter of Fundamental Rights,
which has legally binding force, confirms the fundamental rights
guaranteed by the European Convention on Human Rights and Fundamental
Freedoms and as they result from the constitutional traditions
common to the Member States.
2. The Charter does not extend the field
of application of Union law beyond the powers of the Union or
establish any new power or task for the Union, or modify powers
and tasks defined by the Treaties.
Commentary: This Declaration, agreed by all
Member States, underlines the fact that a legally-binding reference
to the Charter does not extend the application of Union law or
modify existing tasks or powers in any way.
Annex C
17 January 2008
Lord Grenfell
European Union Committee
Committee Office
House of Lords
London
SW1A 0PW
I am replying to Susannah Street's letter of
4 January requesting additional evidence on the impact of the
Lisbon Treaty on EU Institutions, following my appearance before
the Committee in December. Please find attached the replies, which
I hope you will find helpful.
During the evidence session I promised to provide
you with information on the number of FCO staff seconded to the
Commission. There are currently 5 FCO Seconded National Experts
to EU Institutions, only one of whom is seconded to the Commission.
There are 112 Seconded National Experts in total in all EU Institutions
from all Whitehall Departments.
Finally, the Government will publish a consolidated
version of the EU Treaties as amended by the Lisbon Treaty later
this week, following your request. I hope this will help the Committee's
inquiry into the impact of the Lisbon Treaty on the EU Institutions.
Jim Murphy MP
Minister for Europe
REPLIES TO THE LORDS EU SELECT COMMITTEE
ON THE INQUIRY INTO THE IMPACT OF THE LISBON TREATY ON THE EU
INSTITUTIONS
QUESTION 1
How comprehensive are the lists of competences
provided by the Lisbon Treaty amendments? Are the lists a matter
of codification?
The Lisbon Treaty for the first time provides
a clear and explicit classification and list of the EU's competence.
The categorisation of competences reflects the rules and practices
under the current Treaties and provide helpful clarification—for
example, by making clear that the EU may cease to exercise shared
competence, and setting out as a distinct category competence
areas where EU action is limited to supporting, co-ordinating
and supplementing the action of Member States.
The lists of competences are comprehensive.
They reflect the current position under the Treaties together
with the limited extensions provided for in the Lisbon Treaty.
In almost all of these areas, the EU already takes action under
other legal bases.
A list of the extended competences is set out
below.
New competences or extensions to competence established
by a new Treaty Article
Energy
The Article creates a distinct legal basis for
shared competence on energy policy although measures in the sphere
of energy is already listed as part of the Community's activities
and the EU has already agreed a number of pieces of legislation
in this field (from energy efficiency and renewables to market
liberalisation).
Member States retain the right to determine
the conditions for exploiting its energy resources, its choice
between different energy sources, the general structure of its
energy supply and all measures of a fiscal nature.
Tourism
Tourism is already listed as an area of Community
activity under the current Treaties, and existing EC action has
taken the form of encouraging training for staff working in the
tourism sector and Communications, studies and publications highlighting,
for example, national good practice on sustainable tourism.
This Article creates a specific legal base for
EU support for Member States action to promote competitiveness
and best practice in the tourism sector. The EU's competence is
limited to supporting, coordinating or supplementing the action
of Member States. EU support can complement national action, for
example on upgrading skills in the tourism sector and building
links between national or regional tourism initiatives.
Civil Protection
This creates a specific legal base for EU action
to encourage co-operation between Member States in order to improve
the effectiveness of systems for preventing and protecting against
natural and man-made disasters. The EU's competence is limited
to supporting, coordinating or supplementing the action of Member
States.
The existing Treaties already list civil protection
as an area of EU activity. EU action to date in this area has
primarily involved measures to enhance EU disaster response by
facilitating information sharing and financial support within
the EU.
Space policy
This Article creates a new shared competence
to draw up a European space policy and—potentially—a
European space programme. It would promote joint initiatives,
support research and technological development, and co-ordinate
the efforts needed for the exploration and exploitation of space.
The treaty also explicitly states that the exercise of EU competence
does not prevent Member States from exercising their own powers
in this area.
Administrative Co-operation
This Article creates a new competence to introduce
measures to improve the administrative capacity of Member States
to implement EU legislation—it is implicitly aimed at the
newer Member States. This competence is again limited to supporting,
coordinating or complementary action to Member States' activities.
There is no obligation on Member States to make use of EU support,
and any harmonisation of laws and regulations is explicitly excluded.
Action envisaged would include information and staff exchanges,
and training schemes.
European Research Area
The Treaty includes in the existing provisions
of the EC Treaty dealing with activities in the area of research
and technological development, the objective of achieving a "European
research area". The treaty also explicitly states that the
exercise of EU competence in the area of research and technological
development does not prevent Member States exercising their own
powers in this area.
Sport
The Lisbon Treaty includes the promotion of
European sporting issues in the existing provisions on education,
vocational training and youth. The EU's competence in these areas
is limited to supporting, coordinating or supplementing the action
of Member States.
Travel and residence documents
The Lisbon Treaty extends the current provision
for the adoption of legislation necessary to facilitate the exercise
of the rights of free movement and residence to cover provisions
on travel and residence documents and social security and social
protection.
Common safety concerns in health
Article 152 TEC provides for the adoption of
measures in certain areas of health policy. The Lisbon Treaty
adds that such measures must be adopted "in order to meet
common safety concerns". The changes to Article 152 ("Public
Health") of the Treaty clarify, in summary, that:
— Measures may be brought forward,
under co-decision procedures, which will enable the EU to seek
to harmonise standards of quality and safety in relation to medicinal
products and devices.
— Proposals may be brought forward,
under co-decision procedures, in relation to cross-border health
threats and the protection of public health regarding tobacco
and alcohol. Such proposals would be "incentive measures"
to protect and improve human health, but would not involve harmonisation
of Member State laws in relation to these areas of public health
policy.
New proposals in relation to the above areas
of public health will therefore be brought forward in accordance
with existing QMV procedures.
Intellectual property
The EC has already adopted a range of measures
on legislation on intellectual property using existing powers.
The Lisbon Treaty provides a specific legal basis for measures
in relation to European intellectual property rights.
Crime Prevention
The Lisbon Treaty provides for EU measures to
promote and support Member State activity on crime prevention.
SGEIs (Services of General Economic Interest)
This Treaty provides a specific legal base for
legislation defining the general EU-level principles and conditions,
which apply to the provision of services of general economic interest.
This can already be done on a sectoral basis under the existing
Treaty.
Diplomatic and Consular Protection
The current Treaties provides for Member States'
missions in third countries to assist each others' national on
the same conditions as they would their own nationals and to establish
necessary measures amongst themselves. The Lisbon Treaty enables
the EU to adopt coordination and cooperation arrangements to facilitate
such measures.
Solidarity Clause
The Lisbon Treaty includes a "solidarity
clause" providing for action by Member States and the Union
in the event of a terrorist attack or natural or man-made disaster.
Provision is made for the Council to adopt a decision defining
the implementation arrangements by the Union.
Humanitarian Aid
The EC can already adopt measures relating to
humanitarian aid under existing development cooperation and other
powers. The Lisbon Treaty introduces a specific legal base for
humanitarian aid. The treaty also explicitly states that the exercise
of EU competence in this field does not prevent the Member States
exercising their own powers in this area.
Common Commercial Policy
The Lisbon Treaty amends the existing provisions
on the common commercial policy to refer to foreign direct investment.
QUESTION 2
Why does the Treaty apply the yellow and orange
card procedures to subsidiarity but not to proportionality?
Subsidiarity involves the assessment of whether
the objectives of a particular measure can be sufficiently achieved
by Member States, either at central level or regional and local
level. It is therefore particularly important, and appropriate,
that National Parliaments are given a direct role in relation
to this assessment.
Compliance with the principle of proportionality
is assessed and enforced on the same basis of other general principles
of EU law.
QUESTION 3
Will any decision by the EU to sign an international
agreement or treaty have to be taken by unanimity under the amended
Treaties, or will Qualified Majority Voting apply in policy areas
other than the CFSP?
As at present, the voting rules for the negotiation
and conclusion of international agreements will be determined
by the subject-matter of the agreement concerned.
Unanimity will apply where the agreement covers
a field for which unanimity is required for the adoption of EU
measures as well as in certain other cases such as Association
Agreements. Unanimity is not therefore limited to agreements relating
to the Common Foreign Security Policy.
In other cases, qualified majority voting applies.
For example, as now, agreements relating to international trade
in goods under the common commercial agreement will continue to
be concluded by QMV.
QUESTION 4
Do the new arrangements on Permanent Structured
Cooperation in defence mean that the UK will be faced with the
prospect of either being outvoted under Qualified Majority Voting
if it did join a group of countries making use of this facility,
or be left on the sidelines of EU defence if it did not decide
to join such a group?
The Permanent Structured Co-operation (PSC)
is a new provision that only addresses capability development
as set out in the Protocol on PSC which is an integral part of
the Treaty on European Union as amended by the Lisbon Treaty.
It provides a mechanism to help develop more effective military
capabilities amongst EU Member States and is in line with UK objectives
for improving the capabilities available for EU-led operations.
Article 28E of the Lisbon Treaty sets out when
the Council would adopt a decision by QMV:
— establishing PSC and determining
the list of participating Member States (QMV amongst the whole
of the Council);
— confirming participation of a Member
State that subsequently wishes to participate (QMV amongst those
members of Council already participating in PSC); and
— suspending participation of a Member
State should it no longer fulfil the criteria or its commitments
(QMV amongst those members of Council already participating in
PSC excluding the Member State in question).
The use of QMV is therefore in UK interests
since it prevents an individual Member State from blocking PSC
establishment, from blocking another Member State from subsequently
joining or from blocking the suspension of a non-performing Member
State.
Since improved capability development amongst
Member States is a key UK objective, and because the UK already
provides a significant proportion of European capability, it is
likely that we would hope to launch PSC as soon as practicable
after the entry into force of the Reform Treaty, in co-operation
with other like-minded Member States. If the UK were to decide
not to be in the first wave of PSC members, QMV would help to
ensure that any another Member State could not block any subsequent
UK application. Any decisions regarding the substantive implementation
of PSC would be by unanimity of those Member States participating
in PSC.
QUESTION 5
Do you expect that under the new Treaty arrangements,
the Political and Security Committee will prepare for meetings
of the Foreign Affairs Committee, and COREPER will prepare for
meetings of the General Affairs Council?
Once the Lisbon Treaty comes into legal force,
the revised Article 16(7) of the Treaty on European Union and
Article 240 of the Treaty on the Functioning of the European Union
will set out that COREPER shall be responsible for preparing the
work of the Council in its various formations. This includes the
General Affairs Council and the Foreign Affairs Council.
Article 38 of the Treaty on European Union states
that the Political and Security Committee shall exercise, under
the responsibility of the Council and of the High Representative,
the political control and strategic direction of crisis management
operations.
We therefore expect the Political and Security
Committee's role to remain broadly the same as it is now. COREPER
will have overall responsibility for preparing the work of all
Council formations, but where the dossiers have a European Security
and Defence Policy focus, the Political and Security Committee
will do the bulk of the detailed preparation.
QUESTION 6
Does the article on mutual assistance in case
of armed attack imply that the EU is becoming a military alliance?
What is the exact difference between the mutual defence obligations
introduced by the Lisbon Treaty and those contained in the North
Atlantic Treaty and the Brussels Treaty (art. 5)? Will this clause
reduce the relevance of NATO in the long term?
The mutual defence provision is in accordance
with Article 51 of the UN Charter, which recognises the inherent
right to individual and collective self-defence. The provision
reflects the reality that EU Member States would come to the aid
of other Member States in the unlikely event that they were the
victim of armed aggression on their territory. EU Member States
who are not also members of NATO are now committed to the defence
of their fellow Member States, to the potential benefit of the
UK.
The provision does not provide a basis for the
development of an EU collective defence organisation to rival
NATO. The obligation to provide assistance falls on individual
Member States, not the EU. It goes on to provide that for Member
States which are also NATO members, NATO remains the foundation
of their collective defence and the forum for the implementation
of the mutual defence provision. It therefore confirms NATO's
role as Europe's only collective defence organisation. It provides
furthermore that commitments and co-operation under this provision
shall be consistent with NATO commitments and that the provision
does not prejudice the specific character of the security and
defence policy of Member States, which are also NATO members.
It should be recalled that the parties to the
Brussels Treaty decided, shortly after the creation of NATO, that
NATO would be responsible for the implementation, in military
terms, of the mutual defence commitment of the Brussels Treaty.
The Lisbon Treaty clause only refers to armed
aggression on the territory of a Member State, ie a limited and
relatively unlikely scenario. NATO's Article 5 commitment ("
. . . an attack against one or more . . . shall be considered
an attack against them all . . . ") is more extensive in
its applicability, as demonstrated by its invocation following
the 9/11 attack.
QUESTION 7
What is the rationale for the creation of a European
External Action Service, and how will the Service be structured?
Will it work closely with the diplomatic services of the Member
States?
The External Action Service (EAS) will support
the new High Representative for Foreign Affairs and Security Policy.
So the rationale is the same as for the High Representative—the
change will mean better, more coherent policy implementation and
delivery of all of the EU's external policies.
As set out in the Lisbon Treaty, the EAS will
bring together staff currently working on external issues in the
Council Secretariat and the Commission—it is therefore a
sensible rationalisation of existing machinery. The Lisbon Treaty
also sets out that the EAS will benefit from some additional expertise
from Member States' secondees. It also states quite categorically
that the EAS will work in `cooperation with the Diplomatic Services
of the Member States', and it is in everyone's interests that
this is a close cooperation.
The Treaty leaves all further details on the
organisation and functioning of the EAS to a decision of the Council,
after the Treaty comes into force. And there have not yet been
any detailed discussions on the EAS in preparation for that decision.
We anticipate that these discussions will take place under both
the Slovenian and French Presidencies of the European Union. We
will keep Parliament informed of their progress. The council decision
will be subject to Parliamentary scrutiny in the usual way.
QUESTION 8
Can you explain to us the significance, in legal
terms, of adding, for the first time, a specific section on Energy
in the Treaty?
The EU already has an energy policy, but a specific
energy article removes the need to make use of other articles
such as 95 (approximation of laws for the internal market) and
175 (environment) to achieve that policy. Differences between
the new energy article and the articles that have previously been
used for energy related matters mean that the new energy article
is likely to have resulted in some small and technical extensions
of EU competence and qualified majority voting. For example, some
measures in relation to security of energy supply have been based
on article 100(1) which is limited to measures appropriate to
the economic situation, in particular if severe difficulties arise
in supply. There is no such limitation in the new energy article,
thereby potentially lowering the threshold for EU action.
The inclusion of a new Title on energy in the
Treaty will help to ensure that policies on energy markets, energy
security and energy efficiency are coherent and mutually reinforcing.
It also makes clear that measures adopted shall not affect a Member
State's right to determine the conditions for exploiting its own
energy resources. The UK Government welcomes the inclusion of
the provision, which reflects the growing importance of energy
as a political and economic issue in the EU and of the connected
policy areas of climate change, sustainability, and the environment.
QUESTION 9
How will the Protocol on Services of General Interest
impact on the making of EU policy in this area?
The Protocol on Services of General Interest
(SGI) confirms the existing position in relation to services of
general interest.
The first article confirms the (existing) principles
applicable to services of general economic interest.
The second article confirms that the Treaties
do not effect in any way the competence of Member States in relation
to non-economic services of general interest.
QUESTION 10
To what extent is it important that the EU's commitment
to "undistorted competition" is contained in a Protocol
rather than as part of the Treaty itself?
There is no change to the legal position under
the existing Treaty. The substantive Treaty provisions setting
out the powers and rules governing regulation of competition in
the EU remain the same.
The words used in that Protocol are substantively
the same as the words used in the current EC Treaty. Paragraph
1(g) of Article 3 of the current EC Treaty lists one of the Community's
activities as "a system ensuring that competition in the
internal market is not distorted". Article 3 is not retained
in the amended Treaties. Instead, Article 2 (renumbered 3) of
the amended Treaty on European Union provides for the establishment
of an internal market. The Protocol states that this reference
to the internal market "includes a system ensuring that competition
is not distorted". The Protocol is legally binding and an
integral part of the Treaty.
In addition, the new list of EU competences
in Article 2B (renumbered 3) of the Treaty on the Functioning
of the European Union includes "the establishing of the competition
rules necessary of the internal market". The substantive
Treaty provisions setting out the powers and rules governing regulation
of competition in the EU remain the same.
The Commission, as the guardians of the Treaty,
have explicitly confirmed that the position remains unchanged.
"To avoid any risk of uncertainty as to
settled law and to make fully clear that competition will continue
to be one of the main policies aiming at the good functioning
of the internal market, the European Council decided to provide
for the protocol . . . which paraphrases the current EC Treaty
provisions . . ..a protocol forms an integral part of the Treaty
to which it is annexed and has the same legal value as Treaty
provisions".
QUESTION 11
What view does the Government have of the implications
of the Treaty for the UK labour market if the Protocol on the
application of the Charter of fundamental rights of the European
Union to the UK (and Poland) had not been included?
The Protocol on the application of the Charter
of Fundamental Rights of the European Union to Poland and to the
United Kingdom is annexed to the Treaty of Lisbon.
The Charter simply reaffirms the rights and
principles, which apply to the EU institutions and to Member States
when implementing EU law. The Charter creates no new enforceable
rights and provides no new basis for challenging UK legislation
including that relating to the UK labour market.
The UK Protocol puts that matter beyond doubt
for the UK guaranteeing, in particular, that the Charter does
not extend the powers of any court—European or domestic—to
strike down UK law.
QUESTION 12
In written evidence submitted to our inquiry,
the Scottish Parliament European and External Relations Committee
expressed concern that in the Government's White Paper and July
Explanatory Memorandum (11625/07) there was no reference to discussions
of the UK Government with the devolved administrations, or reference
to a separate Scottish legal system or to the fact that aspects
of justice and home affairs are devolved. The Scottish Government
was unable to explain why the UK Government did not make explicit
reference to the representations that it had made or the interests
of the devolved administrations. What is the Government's response?
The Devolved Administrations were involved in
discussions on the preparation of the UK position for the IGC
legal group, as the Scottish First Minister recognised in a letter
to the Foreign Secretary of 23 July. The Scottish Executive were
also consulted on the Government's 23 July White Paper on the
IGC, along with Whitehall Departments.
Agreement on extending the UK's Justice and
Home Affairs Protocol (the opt-in) takes into account Scotland's
distinctive legal system. The Treaty will also recognise the role
of regional and local self-government in Member States for the
first time. On both these issues, the Government has supported—and
secured—the concerns of Devolved Administrations.
The issue of fisheries has also been raised
by the Scottish First Minister. The Treaty of Lisbon makes no
substantive changes to the allocation of competence for the Common
Fisheries Policy or the conservation of marine biological resources
under it. Community competence over fisheries is shared with Member
States, except for conservation measures, where it has been exclusive
since the UK's Treaty of Accession to the EC. The Treaty of Lisbon
does not change that.
Europe Directorate
Foreign and Commonwealth Office
January 2008
Annex D
COMMON FOREIGN
AND SECURITY
POLICY
Red line: maintenance of the UK's independent
foreign and defence policy
Lisbon Treaty Article 1, point 27
Article 11 shall be amended as follows:
(a) paragraph 1 shall be replaced by the
following two paragraphs:
"1. The Union's competence in matters
of common foreign and security policy shall cover all areas of
foreign policy and all questions relating to the Union's security,
including the progressive framing of a common defence policy that
might lead to a common defence.
Commentary: This provision sets out the scope
of CFSP in the same terms as are already used in the existing
Treaty. It reiterates that all areas of foreign policy and matters
relating to the Union's security continue to fall within the intergovernmental
provisions of CFSP. CFSP continues to be defined and implemented
in accordance with the EU Treaty and as such is kept distinct
from other EU policies which are contained in the Treaty on the
Functioning on the European Union. The distinct character of CFSP
is reinforced against encroachment by non-CFSP matters by the
improved provisions of Article 25 (formerly Article 47).
The common foreign and security policy is subject
to specific rules and procedures. It shall be defined and implemented
by the European Council and the Council acting unanimously, except
where the Treaties provide otherwise.[43]
The adoption of legislative acts shall be excluded. The common
foreign and security policy shall be put into effect by the High
Representative of the Union for Foreign Affairs and Security Policy
and by Member States, in accordance with the Treaties. The specific
role of the European Parliament and of the Commission in this
area is defined by the Treaties. The Court of Justice of the European
Union shall not have jurisdiction with respect to these provisions,
with the exception of its jurisdiction to monitor the compliance
with Article 25 of this Treaty and to review the legality of certain
decisions as provided for by the second paragraph of Article 240a
of the Treaty on the Functioning of the European Union.
Commentary: This new overarching provision
sets out explicitly the distinctive legal and procedural character
of CFSP. It sets out the separate framework within which the CFSP
is carried out, emphasising its distinctive intergovernmental
nature and the fact that there is limited Commission and EP participation.
In particular it is clear that legislative acts can not be adopted,
and that ECJ jurisdiction is excluded other than in two defined
areas.
Lisbon Treaty Article 2, point 223
The following two new Articles 240a and 240b
shall be inserted:
"Article 240a
The Court of Justice of the European Union shall
not have jurisdiction with respect to the provisions relating
to the common foreign and security policy nor with respect to
acts adopted on the basis of those provisions.
However, the Court shall have jurisdiction to
monitor compliance with Article 25 of the Treaty on European Union
and to rule on proceedings, brought in accordance with the conditions
laid down in the fourth paragraph of Article 230 of this Treaty,
reviewing the legality of decisions providing for restrictive
measures against natural or legal persons adopted by the Council
on the basis of Chapter 2 of Title V of the Treaty on European
Union.
Commentary: The powers of the Court are listed
in the Treaty on the Functioning of the European Union. This provision
makes absolutely clear that the ECJ will have no jurisdiction
over either provisions relating to CFSP or any acts based on such
provisions.
There are only two specific exceptions.
The reference to Article 25 TEU relates to
the power of the Court to adjudicate, as now, on the boundary
between the CFSP and the Treaty on European Union and other Union
policies contained in the Treaty on the Functioning of the European
Union (TOFU).
However, in contrast to the existing provision
(Article 47 TEU) which simply provides that nothing in the EU
Treaty shall affect matters in the EC Treaty, the new Article
25 TEU also explicitly provides that the implementation of policies
under the Treaty on the Functioning on the European Union shall
not affect the procedures and extent of the powers of institutions
provided for under CFSP. The Court must therefore protect the
distinct character of CFSP against encroachment from non-CFSP
provisions.
Article 230 allows individuals and groups,
in limited circumstances, to challenge legal acts which affect
them directly. ie The ECJ is currently is already able to review
Community regulations imposing sanctions on individuals and groups
under the TEC (and has done so on a number of occasions)—sanctions
that will have followed from a CFSP decision. This judicial protection
of individuals' rights is reinforced by allowing those directly
affected to seek review of a CFSP Council Decision listing them
as a target for sanctions.
Lisbon Treaty Declaration 30 concerning the common
foreign and security policy
The Conference underlines that the provisions
in the Treaty on European Union covering the Common Foreign and
Security Policy, including the creation of the office of High
Representative of the Union for Foreign Affairs and Security Policy
and the establishment of an External Action Service, do not affect
the responsibilities of the Member States, as they currently exist,
for the formulation and conduct of their foreign policy nor of
their national representation in third countries and international
organisations.
The Conference also recalls that the provisions
governing the Common Security and Defence Policy do not prejudice
the specific character of the security and defence policy of the
Member States.
It stresses that the EU and its Member States
will remain bound by the provisions of the Charter of the United
Nations and, in particular, by the primary responsibility of the
Security Council and of its Members for the maintenance of international
peace and security.
Commentary: This Declaration confirms that
nothing in the provisions relating to CFSP affect Member States'
own responsibilities in relation to foreign policy.
Lisbon Treaty Declaration 31 concerning the common
foreign and security policy
In addition to the specific rules and procedures
referred to in paragraph 1 of Article 11 of the Treaty on European
Union, the Conference underlines that the provisions covering
the Common Foreign and Security Policy including in relation to
the High Representative of the Union for Foreign Affairs and Security
Policy and the External Action Service will not affect the existing
legal basis, responsibilities, and powers of each Member State
in relation to the formulation and conduct of its foreign policy,
its national diplomatic service, relations with third countries
and participation in international organisations, including a
Member State's membership of the Security Council of the UN.
The Conference also notes that the provisions
covering the Common Foreign and Security Policy do not give new
powers to the Commission to initiate decisions nor do they increase
the role of the European Parliament.
The Conference also recalls that the provisions
governing the Common Security and Defence Policy do not prejudice
the specific character of the security and defence policy of the
Member States.
Commentary: This Declaration reaffirms that
the CFSP does not interfere with Member States powers in the conduct
of their own independent foreign policies nor affect their national
diplomatic services, membership of international organisations,
including the UN Security Council, or relations with third countries.
It also confirms the limited role of the Commission and European
Parliament.
Annex E
JUSTICE AND
HOME AFFAIRS
Red line: protection of the UK's common law system,
and our police and judicial processes
Lisbon Treaty—Protocol 10 on Transitional
Measures on Transitional Provisions
Commentary: this section of the protocol
on transitional measures sets out the legal arrangements for measures
agreed under the existing third pillar following the entry into
force of the Reform Treaty.
Article 9
The legal effects of the acts of the institutions,
bodies, offices and agencies of the Union adopted on the basis
of the Treaty on European Union prior to the entry into force
of the Treaty amending the Treaty on European Union and the Treaty
establishing the European Community shall be preserved until those
acts are repealed, annulled or amended in implementation of the
Treaties. The same shall apply to agreements concluded between
Member States on the basis of the Treaty on European Union.
Commentary: This Article confirms that the
legal effect of existing "third pillar" measures does
not change for as long as they are left unamended. In particular,
this means that existing third pillar measures will continue not
to have direct effect which means that an individual cannot rely
in a national court on any rights set out in a third pillar measure
unless it has been implemented by national law.
Article 10
1. As a transitional measure, and with respect
to acts of the Union in the field of police cooperation and judicial
cooperation in criminal matters which have been adopted before
the entry into force of the Treaty amending the Treaty on European
Union and the Treaty establishing the European Community, the
powers of the institutions shall be the following at the date
of entry into force of that Treaty: the powers of the Commission
under Article 226 of the Treaty on the Functioning of the European
Union shall not be applicable and the powers of the Court of Justice
of the European Union under Title VI of the Treaty on European
Union, in the version in force before the entry into force of
the Treaty amending the Treaty on European Union and the Treaty
establishing the European Community, shall remain the same, including
where they have been accepted under Article 35(2) of the said
Treaty on European Union.
Commentary: This Article states that for
a transitional period there shall be no extension of ECJ jurisdiction
or right for the Commission to initiate infraction proceedings
for measures agreed under existing "third pillar" intergovernmental
arrangements.
2. The amendment of an act referred to in
paragraph 1 shall entail the applicability of the powers of the
institutions referred to in that paragraph as set out in the Treaties
with respect to the amended act for those Member States to which
that amended act shall apply.
Commentary: This confirms that if in future
existing third pillar legislation is amended, full ECJ jurisdiction
along with the right for the Commission to initiate infraction
proceedings will apply. However, in the case of amendments to
existing legislation the UK's opt-in would apply, so we would
be able to choose whether to accept the amended proposal with
ECJ jurisdiction and Commission powers.
3. In any case, the transitional measure
mentioned in paragraph 1 shall cease to have effect five years
after the date of entry into force of the Treaty amending the
Treaty on European Union and the Treaty establishing the European
Community.
Commentary: This states that the transitional
period for which ECJ jurisdiction and Commission infraction proceedings
will not apply to existing third pillar measures will run for
five years after the Reform Treaty has entered into force.
4. At the latest six months before the expiry
of the transitional period referred to in paragraph 3, the United
Kingdom may notify to the Council that it does not accept, with
respect to the acts referred to in paragraph 1, the powers of
the institutions referred to in paragraph 1 as set out in the
Treaties. In case the United Kingdom has made that notification,
all acts referred to in paragraph 1 shall cease to apply to it
as from the date of expiry of the transitional period referred
to in paragraph 3. This subparagraph shall not apply with respect
to the amended acts which are applicable to the United Kingdom
as referred to in paragraph 2.
Commentary: This paragraph allows the UK
to decide to opt out en bloc of all remaining "third pillar"
measures that are unamended (ie haven't been repealed and replaced
or amended) at any time up to six months before the end of the
five year transitional period. Where the UK decides to opt out,
the remaining third pillar measures will cease to apply to the
UK once the five year transitional period has ended.
The Council, acting by a qualified majority
on a proposal from the Commission, shall determine the necessary
consequential and transitional arrangements. The United Kingdom
shall not participate in the adoption of this decision. A qualified
majority of the Council shall be defined in accordance with Article
205(3)(a) of the Treaty on the Functioning of the European Union.
Commentary: This paragraph provides that
a decision shall be taken by qualified majority (without UK participation)
on any necessary arrangements that should be made following the
UK's decision to opt out of the remaining measures. This might
for instance include administrative arrangements necessary following
the UK's decision to opt out (eg how to amend existing processes
for information exchange to take into account of the UK's intention
not to participate).
The Council, acting by a qualified majority
on a proposal from the Commission, may also adopt a decision determining
that the United Kingdom shall bear the direct financial consequences,
if any, necessarily and unavoidably incurred as a result of the
cessation of its participation in those acts.
Commentary: This paragraph provides for a
decision to be taken by qualified majority (with UK participation)
on any "direct" financial consequences, which are "necessarily
and unavoidably" incurred as a result of the UK's decision
to opt out of existing measures. There may be cases where our
non-participation in a measure incurs costs, and where it would
be reasonable to expect the UK to bear those costs. For instance,
in the unlikely event that the UK were to cease to participate
in Eurojust (the EU's agency responsible for co-ordinating investigations
into serious crime), it would be reasonable to expect the UK to
bear the costs of bringing UK staff home from Eurojust, and settling
their contracts.
5. The United Kingdom may, at any time afterwards,
notify the Council of its wish to participate in acts which have
ceased to apply to it pursuant to paragraph 4, first subparagraph.
In that case, the relevant provisions of the Protocol on the Schengen
acquis integrated into the framework of the European Union or
of the Protocol on the position of the United Kingdom and Ireland
in respect of the area of freedom, security and justice, as the
case may be, shall apply. The powers of the institutions with
regard to those acts shall be those set out in the Treaties. When
acting under the relevant Protocols, the Union institutions and
the United Kingdom shall seek to reestablish the widest possible
measure of participation of the United Kingdom in the acquis of
the Union in the area of freedom, security and justice without
seriously affecting the practical operability of the various parts
thereof, while respecting their coherence.
Commentary: This paragraph enables the UK
to apply to opt back in to any JHA measures under the relevant
provisions of the Schengen and opt-in protocols. This means that
the UK can choose to accept ECJ jurisdiction and Commission powers
to initiate infraction proceedings for individual measures where
it is willing to do so. The provision sets out clearly that the
Union institutions should accede to any UK request to participate
so far as is possible without affecting the operability of the
relevant parts of the JHA Acquis.
Lisbon Treaty—Schengen Protocol
Commentary: The UK currently participates
in the police and judicial co-operation aspects of the Schengen
Acquis as set out in Council Decision 2000/365/EC.
The Protocol integrating the Schengen acquis
into the framework of the European Union shall be amended
as follows:
Article 5 shall be replaced by the following:
1. Proposals and initiatives to build upon
the Schengen acquis shall be subject to the relevant provisions
of the Treaties.
Commentary: This reflects the existing provision
that a proposal building on an aspect of the Schengen Acquis will
have a legal base from the relevant part of the Treaties.
In this context, where either Ireland or the
United Kingdom has not notified the Council in writing within
a reasonable period that it wishes to take part, the authorisation
referred to in Article 280d of the Treaty on the Functioning of
the European Union shall be deemed to have been granted to the
Member States referred to in Article 1 and to Ireland or the United
Kingdom where either of them wishes to take part in the areas
of cooperation in question.
Commentary: This clarifies that where the
UK/ Ireland have decided not to opt in to a Schengen building
measure, permission to proceed on the basis of enhanced co-operation
is deemed to have been granted to the other Member States.
2. Where either Ireland or the United Kingdom
is deemed to have given notification pursuant to a decision under
Article 4, it may nevertheless notify the Council in writing,
within 3 months, that it does not wish to take part in such a
proposal or initiative. In that case, Ireland or the United Kingdom
shall not take part in its adoption. As from the latter notification,
the procedure for adopting the measure building upon the Schengen
acquis shall be suspended until the end of the procedure set out
in paragraphs 3 or 4 or until the notification is withdrawn at
any moment during that procedure.
Commentary: This paragraph makes clear that,
notwithstanding Council Decision 2000/365/EC (which sets out the
parts of the Schengen Acquis in which the UK participates), the
UK has the right to decide whether or not to opt in to a Schengen
building measure. This safeguards the UK's red line by ensuring
that the UK should not be automatically bound to participate in
any measure proposed as part of the Schengen Acquis.
3. For the Member State having made the
notification referred to in paragraph 2, any decision taken by
the Council pursuant to Article 4 shall, as from the date of entry
into force of the proposed measure, cease to apply to the extent
considered necessary by the Council and under the conditions to
be determined in a decision of the Council acting by a qualified
majority on a proposal from the Commission. That decision shall
be taken in accordance with the following criteria: the Council
shall seek to retain the widest possible measure of participation
of the Member State concerned without seriously affecting the
practical operability of the various parts of the Schengen acquis,
while respecting their coherence. The Commission shall submit
its proposal as soon as possible after the notification referred
to in paragraph 2. The Council shall, if needed after convening
two successive meetings, act within four months of the Commission
proposal.
Commentary: This provision allows for a Council
Decision (taken on the basis of a qualified majority on a proposal
from the Commission) to limit UK participation in some parts of
the Schengen Acquis as a whole, should the UK's non-participation
in the Schengen building measure "seriously affect . . .
the practical operability of the various parts of the Schengen
Acquis". This decision shall take effect only when the proposed
measure that the UK has not participated in comes into force.
This allows other Member States to safeguard the coherence of
the Acquis as a whole, whilst ensuring that any limitation on
UK participation is subject to robust and objective criteria.
4. If, by the end of the period of four
months, the Council has not adopted a decision, a Member State
may, without delay, request that the matter be referred to the
European Council. In that case, the European Council shall, at
its next meeting, acting by a qualified majority on a proposal
from the Commission, take a decision in accordance with the criteria
referred to in paragraph 3.
Commentary: This enables any Member
State to refer the matter to the European Council if no decision
has been adopted within four months. The European Council may
then take a decision by qualified majority. This allows the UK
to escalate the decision on the UK's ongoing participation in
the relevant parts of Schengen, should there be disagreements
at the JHA Council.
5. If, by the end of the procedure set out
in paragraphs 3 or 4, the Council or, as the case may be, the
European Council has not adopted its decision, the suspension
of the procedure for adopting the measure building upon the Schengen
acquis shall be terminated. If the said measure is subsequently
adopted any decision taken by the Council pursuant to Article
4 shall, as from the date of entry into force of that measure,
cease to apply for the Member State concerned to the extent and
under the conditions decided by the Commission, unless the said
Member State has withdrawn its notification referred to in paragraph
2 before the adoption of the measure. The Commission shall act
by the date of this adoption. When taking its decision, the Commission
shall respect the criteria referred to in paragraph 3".
Commentary: This provision states that where
there has been no decision on whether to limit UK participation
in the Schengen Acquis at Council or European Council level, the
Commission shall take a decision, respecting the objective criteria
for determining the extent of UK participation—namely that
the decision should retain the widest possible participation of
the Member State concerned, whilst also preserving the coherence
and operability of the Schengen Acquis. This means that there
is no prospect of the UK's participation in the Schengen Acquis
being limited automatically. Comprehensive discussion must take
place at Council level at least twice, with the matter elevated
to European Council level if necessary. The UK has the right to
withdraw its opt-out at any point up to the adoption of the Schengen
building measure.
Lisbon Treaty—Protocol on the position of
the United Kingdom and Ireland in respect of the area of freedom,
security and justice
The Protocol on the position of the United Kingdom
and Ireland shall be amended as follows:
Commentary: This extends the UK's existing
Title IV opt-in protocol to cover all justice and home affairs
matters and makes minor technical changes.
(a) at the end of the title of the Protocol,
the words "in respect of the area of freedom, security and
justice" shall be added;
(b) in the second recital of the preamble,
the reference to Article 14 shall be replaced by a reference to
Articles 22a and 22b of the Treaty on the Functioning of the European
Union;
(c) in Article 1, first sentence, the words
"pursuant to Title IV of the Treaty establishing the European
Community" shall be replaced by "pursuant to Title IV
of Part Three of the Treaty on the Functioning of the European
Union"; the second sentence shall be deleted and the following
paragraph shall be added:
"For the purposes of this Article, a qualified
majority shall be defined in accordance with Article 205(3) of
the Treaty on the Functioning of the European Union.";
(d) at the beginning of Article 2 the words
"provisions of Title IV of the Treaty establishing the European
Community" shall be replaced by "provisions of Title
IV of Part Three of the Treaty on the Functioning of the European
Union"; at the end of the Article, the words "acquis
communautaire" shall be replaced by "Community or Union
acquis";
(e) Article 3(1) shall be amended as follows:
(i) in the first sentence of the first subparagraph,
the words "pursuant to Title IV of the Treaty establishing
the European Community" shall be replaced by "pursuant
to Title IV of Part Three of the Treaty on the Functioning of
the European Union" and the second sentence shall be deleted;
(ii) the following new subparagraphs shall
be added after the second subparagraph:
"Measures adopted pursuant to Article 64
of the Treaty on the Functioning of the European Union shall lay
down the conditions for the participation of the United Kingdom
and Ireland in the evaluations concerning the areas covered by
Title IV of Part Three of that Treaty.
For the purposes of this Article, a qualified
majority shall be defined in accordance with Article 205(3) of
the Treaty on the Functioning of the European Union.";
(f) in Articles 4, 5 and 6, the words "pursuant
to Title IV of the Treaty" shall be replaced by "pursuant
to Title IV of Part Three of the Treaty on the Functioning of
the European Union";
(g) in the second sentence of Article 4,
the reference to Article 11(3) shall be replaced by a reference
to Article 280f(1) of the Treaty on the Functioning of the European
Union;
(h) the following new Article 4a shall be
inserted:
"Article 4a
1. The provisions of this Protocol apply
for the United Kingdom and Ireland also to measures proposed or
adopted pursuant to Title IV of Part III of the Treaty on the
Functioning of the European Union amending an existing measure
by which they are bound.
Commentary: This confirms that the UK has
the right to choose whether to opt in to proposals for amendments
to existing measures in which it already participates.
2. However, in cases where the Council, acting
on a proposal from the Commission, determines that the non-participation
of the United Kingdom or Ireland in the amended version of an
existing measure makes the application of that measure inoperable
for other Member States or the Union, it may urge them to make
a notification under Article 3 or 4. For the purposes of Article
3 a further period of two months starts to run as from the date
of such determination by the Council.
Commentary: This provides for a decision
to be taken by qualified majority in the Council to urge the UK
to participate in the amended measure should UK participation
in the unamended measure without amendment make application of
the amended measure "inoperable" (a very high threshold).
It also confirms that there is an additional two months for the
UK to consider its position in this case.
If at the expiry of that period of two months
from the Council's determination the United Kingdom or Ireland
has not made a notification under Article 3 or Article 4, the
existing measure shall no longer be binding upon or applicable
to it, unless the Member State concerned has made a notification
under Article 4 before the entry into force of the amending measure.
This shall take effect from the date of entry into force of the
amending measure or of expiry of the period of two months, whichever
is the later.
Commentary: This confirms that the original
measure shall cease to apply to the UK where it has chosen not
to opt in to the amendment and the Council has decided that the
UK's non-participation makes the measure inoperable.
For the purpose of this paragraph, the Council
shall, after a full discussion of the matter, act by a qualified
majority of its members representing the Member States participating
or having participated in the adoption of the amending measure.
A qualified majority of the Council shall be defined in accordance
with Article 205(3)(a) of the Treaty on the Functioning of the
European Union.
Commentary: This ensures that a full discussion
takes place and that the decision is taken by a qualified majority
representing all the Member States participating in the amendment.
3. The Council, acting by a qualified majority
on a proposal from the Commission, may determine that the United
Kingdom or Ireland shall bear the direct financial consequences,
if any, necessarily and unavoidably incurred as a result of the
cessation of its participation in the existing measure.
Commentary: This provides that should the
Council may take a decision by qualified majority on whether the
UK should bear any "direct financial consequences . . . necessarily
and unavoidably incurred" as a result of its non-participation.
The UK participates in this decision-making process, and the test
for bearing financial consequences is robust.
4. This Article shall be without prejudice
to Article 4."
(i) at the end of Article 5, the following
shall be added: ", unless all members of the Council, acting
unanimously after consulting the European Parliament, decide otherwise";
(j) In Article 6, the words "the relevant
provisions of that Treaty, including Article 8," shall be
replaced by "the relevant provisions of the Treaties";
(k) the following new Article 6a shall be
inserted:
"The United Kingdom and Ireland shall not
be bound by the rules laid down on the basis of Article 15a of
the Treaty on the Functioning of the European Union which relate
to the processing of personal data by the Member States when carrying
out activities which fall within the scope of Chapter 4 or Chapter
5 of Title IV of Part Three of that Treaty where the United Kingdom
and Ireland are not bound by the rules governing the forms of
judicial cooperation in criminal matters or police cooperation
which require compliance with the provisions laid down on the
basis of Article 15a."
Commentary: This ensures that where the UK
has chosen not to participate in a JHA measure, the relevant rules
relating to data protection shall not apply for the UK.
Lisbon Treaty Declaration 39b on Article 5 of
the Protocol on the Schengen acquis integrated into the framework
of the European Union
The Conference notes that where a Member State
has made a notification under Article 5(2) of the Protocol on
the Schengen acquis integrated into the framework of the European
Union that it does not wish to take part in a proposal or initiative,
that notification may be withdrawn at any moment before the adoption
of the measure building upon the Schengen acquis.
Commentary: This confirms that the UK has
the right to notify its intention to participate in a measure
building upon the Schengen Acquis at any time before adoption.
Lisbon Treaty Declaration 39c on on Article 5(2)
of the Protocol on the Schengen acquis integrated into the framework
of the European Union
The Conference declares that whenever the United
Kingdom or Ireland indicates to the Council its intention not
to participate in a measure building upon a part of the Schengen
acquis in which it participates, the Council will have
a full discussion on the possible implications of the non-participation
of that Member State in that measure. The discussion within the
Council should be conducted in the light of the indications given
by the Commission concerning the relationship between the proposal
and the Schengen acquis.
Commentary: This Declaration confirms that
there should be full discussion on the implications for the Schengen
Acquis if the UK chooses not to participate in a Schengen building
measure. This discussion should be based on the Commission proposal,
which must respect the objective criteria set out in Article 5(3)
of the Schengen protocol; "shall seek to retain the widest
possible measure of participation of the Member State concerned
without seriously affecting the practical operability of the various
parts of the Schengen acquis, while respecting their coherence".
Lisbon Treaty Declaration 39d on Article 5(3)
of the Protocol on the Schengen acquis integrated into the framework
of the European Union
The Conference recalls that if the Council does
not take a decision after a first substantive discussion of the
matter, the Commission may present an amended proposal for a further
substantive re-examination by the Council within the deadline
of 4 months.
Commentary: this confirms that should the
Council fail to take a decision based on a first Commission proposal,
a second proposal may be examined within the four month period.
Lisbon Treaty Article 1, point 5
Article 3, renumbered 4, shall be replaced by
the following:
"Article 4
1. In accordance with Article 5, competences
not conferred upon the Union in the Treaties remain with the Member
States.
2. The Union shall respect the equality of
Member States before the Treaties as well as their national identities,
inherent in their fundamental structures, political and constitutional,
inclusive of regional and local self-government. It shall respect
their essential State functions, including ensuring the territorial
integrity of the State, maintaining law and order and safeguarding
national security. In particular, national security remains the
sole responsibility of each Member State.
Commentary: the final sentence of paragraph
2 explicitly confirms for the first times in the Treaties that
matters relating to national security are the sole responsibility
of Member States.
Annex F
TAX AND
SOCIAL SECURITY
Red line: Protection of the UK's tax and social
security system
Social Security brake (Lisbon Treaty Article 1,
point 51)
"Where a member of the Council declares
that a draft legislative act referred to in the first subparagraph
would affect important aspects of its social security system,
including its scope, cost or financial structure, or would affect
the financial balance of that system, it may request that the
matter be referred to the European Council. In that case, the
ordinary legislative procedure shall be suspended. After discussion,
the European Council shall, within four months of this suspension,
either:
(a) refer the draft back to the Council,
which shall terminate the suspension of the ordinary legislative
procedure; or
(b) take no action or request the Commission
to submit a new proposal; in that case, the act originally proposed
shall be deemed not to have been adopted.".
Commentary: Under the terms of the provision,
where any Member State assesses that it would affect important
aspects of its social security system (including cost, scope,
financial balance or structure) it may refer the proposal to the
European Council. In that case the legislative procedure is suspended.
The European Council then takes a decision by consensus on how
to proceed. If no action is taken within four months the proposal
will fall.
Declaration 33 on the second paragraph of Article
42 of the Treaty on the Functioning of the European Union
The Conference recalls that in that case, in
accordance with Article 9b(4), the European Council acts by consensus.
Commentary: This Declaration (agreed by all
Member States) confirms that any decision taken the European Council
under the above brake must be by consensus—ie all Member
States must agree. So once the brake is activated, any Member
State can block a proposal and it falls.
<ANNEX
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