Memorandum by Professor Jo Shaw, Salvesen
Chair of European Institutions, University of Edinburgh
INTRODUCTION AND
OVERALL ASSESSMENT
1. This Evidence concentrates on just two
aspects of the overall impact of the Treaty of Lisbon on the UK
Constitution:
— The development of the concept of
EU citizenship;
— The development of the scope and
nature of the EU's competences under the Treaty of Lisbon and
the consequences of the definition of categories of competences.
2. In order to put the discussion in context,
it is important to note that the appropriate starting point for
an assessment of the future impact of the Treaty of Lisbon
on the UK Constitution must be a sober assessment of the current
impact of EU law and the EU Treaties on the UK Constitution. This
impact is rather greater, and more systemic in character, than
is generally acknowledged in official UK government documentation.
This tends to emphasise the extent to which the UK "controls"
the process and progress of EU integration, rather than focusing
on how intergovernmental agreements such as the Treaties of Maastricht
or Amsterdam sometimes result on legal developments which were
not entirely predictable at the time when the agreements were
made. The approach of the Court of Justice in cases such as Pupino,[53]
which imposed a duty on national courts to interpret national
law in the light of relevant Framework Decisions in the field
of police and criminal justice cooperation, is a case in point.
A similar point could be made about the judicial evolution of
a limited competence to enact criminal law sanctions under EC
Treaty competences, at least in the sphere of environmental policy.[54]
On the other hand, as is frequently noted, when the UK acceded
in 1973 to what were then the European Communities, the basic
"constitutional" architecture of European Community
law, comprising doctrines such as direct effect and supremacy,
the concept of implied powers, and notions of fundamental rights
protection within the sphere of EC law, was already in place.
These doctrines and concepts were therefore part of the original
acquis communautaire to which the UK undoubtedly consented
when the government of the time signed the Treaty of Accession
and introduced the European Communities Act 1972. These constitutional
effects for the UK may have been amplified over the years as a
result of further judicial interpretations; they have not changed
in their essential character.
3. The Treaty of Lisbon contributes in substantial
ways to spreading these so-called "communautaire" doctrines
of the constitutionalised (EC) treaty across a wider range of
policy areas, suggesting that only foreign and security policy
can be expected to be (almost completely) insulated from the effects
of doctrines such as the interpretative obligation, direct effect
and state liability which grant to national courts a central role
in the enforcement of EC law obligations. This Treaty must therefore
be recognised as having an important impact upon the UK Constitution.
Subject to the complexities engineered by the UK opt-out in relation
to justice and home affairs matters, it is to be anticipated that
at least after a transitional period of five years there will
be an almost complete assimilation of the fields of police and
criminal justice cooperation to what has historically been called
the "Community method", both in terms of law making
and law enforcement. It is ironic that this historic re-unification
of the legal order of the European Union under the heading of
a barely modified Community method takes place just as the Heads
of State and Government decided to abolish the term "Community",
by renaming the EC Treaty as "the Treaty on the Functioning
of the European Union". The precise extent to which the Treaty
of Lisbon will accelerate a greater generalisation of the doctrines
which underpinned the constitutionalised (EC) Treaty will depend
largely upon the happenstance of references for preliminary rulings
coming before the Court of Justice from national courts in relevant
cases.
DEVELOPMENTS IN
THE FIELD
OF EU CITIZENSHIP
4. Relatively few changes have been introduced
to the EU and EC Treaty provisions which affect the nature and
scope of EU citizenship. For the most part, what changes there
are stem from the structural changes to the Treaty framework which
have been introduced. These concentrated on remodelling the Treaty
on European Union (TEU), to ensure that it would essentially fulfil
the same function and comprise the same core elements as Part
One of the ill-fated Constitutional Treaty. Thus one might have
anticipated a bare statement of the existence of EU citizenship
in the TEU, with further amplification in what will be the Treaty
on the Functioning of the European Union (TFEU) (ie the EC Treaty,
reworked and renamed). In fact, in the July 2007 version of the
Treaty[55]
the text of the provision which will become Article 9 TEU[56]
contained only a reference to democratic equality of citizens,
and no reference to citizenship of the Union. In fact, there was
no reference at all to "citizenship" in the TEU, although
there were manifold references to "citizens", without
these being defined. In contrast, Part One of the Constitutional
Treaty did contain such a reference (Article I-10 CT).
5. After amendment, Article 9 TEU will provide
that "Every national of a Member State shall be a citizen
of the Union. Citizenship of the Union shall be additional to
national citizenship and shall not replace it." It is understood
that this text was included in the Treaty of Lisbon at the insistence
of the European Parliament representatives in the IGC.[57]
The parliamentarians adopted citizenship of the Union as a political
priority because of its symbolic importance. The text in Article
9 TEU is then repeated verbatim in Article 20(1) TFEU, although
the latter provision also encompasses the sonorous statement:
"Citizenship of the Union is hereby established." It
is obviously clumsy to have textual repetition between the TEU
and the TFEU, and for the most part in other fields this has been
avoided.
6. The major difference between the EC Treaty
provisions and the Lisbon Treaty provisions concerns the wording
of the relationship between national citizenship and EU citizenship.
This is now articulated as "additionality" rather than
the earlier formulation of "complementarity". The inclusion
of this change was insisted upon by the Member States, in order
to reinforce the point that EU citizenship can only add
rights, and cannot detract from national citizenship. Conceptually
speaking, this makes the point that the development of different
layers of citizenship entitlements is not a zero sum game, in
which rights given at one level must necessarily detract from
those given at another level. Legally speaking, it seems unlikely
to make a substantial difference to the trajectory of EU citizenship.
Thus far, the cases in which the Court of Justice has placed weight
upon the status of EU citizenship, from Martnez Sala onwards,[58]
have in no way detracted from the status of national citizenship.
Moreover, since EU citizens and the citizens of the Member States
(pace some of the UK's peculiarities in this area which
have been in place since the UK accession) are exactly the same
people, the constant references to "citizens" in both
the TFEU and, especially, the TEU retain a nice ambiguity as to
whether what is referred to here is specifically citizens in their
EU guise or citizens in their national guise. Even
so, as noted in para. 9, it is the political aspect of citizenship
that the Treaty of Lisbon appears to affect to the greatest degree,
and consequently the question is inevitably going to be raised
whether this can impact, even indirectly, upon the national level.
7. Erroneously, the FCO document which purports
to offer a systematic comparison between the pre- and post-Lisbon
Treaties[59]
states, in its annotation of Article 20 TFEU, that this provision
"draws on Article 17 TEC, but . . . the reference to `duties'
is removed." This is incorrect. Article 20(2) picks up the
text of Article 17(2) TEC providing that "citizens of the
Union shall enjoy the rights and be subject to the duties provided
for in the Treaties." However, in terms of both legislative
or normative implementation, little attention has been paid to
the "duty" dimension of EU citizenship hitherto.
8. Article 24 TFEU contains an important
legislative power, permitting the European Parliament and Council,
acting by co-decision, to adopt the provisions necessary to implement
the new "citizens' initiatives" which allow citizen
power, especially via the internet, to be channelled into seeking
specific legislative initiatives to be put forward by the Commission.
Citizens' initiatives were originally included in the Constitutional
Treaty (allegedly at the behest of Giscard d'Estaing himself),
and they were retained in the new TEU provisions on "democratic
principles" (Article 11(4) TEU). Under the TFEU, the European
Parliament and the Council must together define what constitutes
a "significant number of Member States", for the purposes
of determining the minimum standard of cross-EU representativity
for any citizens' initiative which is to be taken up in legislative
format. These initiatives may develop into interesting cases of
transnational popular democratic pressure, without as such
detracting from the powers of national parliaments.
9. When reviewing the citizenship provisions
of the TEU and the TFEU, the conclusion should be drawn that it
is linking of citizenship to the provisions on democratic representation
in Title II of the reworked TEU which is the most important innovation
of the Treaty of Lisbon. However, emphasising once again that
political representation, like identity, does not have to involve
a zero sum game where rights at one level detract from rights
at other levels, there seems no reason to fear that an enhanced
political citizenship within the European Union will have a damaging
effect upon national political citizenship.
10. It is important to link these Treaty
developments to the judgments of the Court of Justice in the Gibraltar
and Aruba cases.[60]
It is implicit in the Court's important judgments in these politically
sensitive cases about the scope of voting rights in European Parliament
elections that the European citizens have a right, as a matter
of democratic principle, to vote for "their" parliament.
This emerges especially clearly from the Aruba case. While
the provisions of Article 22 TFEU (ex Article 19 TEC) only provide
explicitly for an equal treatment right, whereby nationals
of the Member States resident in other Member States have
the right to vote in European Parliament under the same conditions
as nationals, hitherto there has been no text in the EU Treaties
which states, in terms, that "the citizens of the Union shall
elect the members of the European Parliament." What is important
about the conclusion in the Aruba case that citizens of
the Union cannot be deprived of their right to vote in European
Parliament elections if the national legislation which excludes
them from the franchise fails a basic rationality test,[61]
is that this amounts to a recognition that the right to vote in
European Parliament elections is indeed a normal incident of EU
citizenship, even if this is not explicitly stated in the Treaties.
In fact, the Advocate General explicitly made this point in his
joint Opinion on the two cases and he argued that the right to
vote in European Parliament elections is the most important
EU citizenship right.[62]
This explicit recognition is given a stronger basis in the Treaties
by the text of Articles 10(2) and 10(3) TEU, which make the link
to democratic principles of universal suffrage rather more effectively
than does the current text of Articles 189 and 190 TEC. Thus Article
10(2) TEU provides that "Citizens are directly represented
at Union level in the European Parliament" and Article 10(3)
TEU states that "Every citizen shall have the right to participate
in the democratic life of the Union."
11. It is important to reiterate that these
provisions linking citizens and the European Parliament will only
have a constitutional impact upon the Member States within the
confines of the principle of "additionality" as laid
down in Article 9 TEU and Article 20(1) TFEU. This is all the
more evident when they are viewed in the light of the strengthening
of the role of national parliaments in EU decision-making instituted
by the Treaty of Lisbon.
THE SCOPE
AND NATURE
OF EU COMPETENCES
UNDER THE
EU TREATIES
12. Right back in 2000, in the Declaration
on the Future of the Union appended to the Treaty of Nice, the
Heads of State and Government committed themselves to pursuing
what they called "a more precise delimitation of powers between
the European Union and the Member States, reflecting the principle
of subsidiarity". This theme reappeared in the Laeken Declaration
of December 2001 which set up on the Convention on the Future
of the Union, and was pursued with enthusiasm by the members of
the Convention when they started meeting in 2002. The result was
a set of texts which have been substantially reproduced in the
Treaty of Lisbon. These focus in part on sharpening up what is
clumsily entitled the "principle of conferral" (Articles
4 and 5 TEU) and in part on identifying the facets of three "categories"
of competences:
— exclusive Union competence;
— competence shared between the Union
and the Member States;
— and Union actions to support, coordinate
or supplement the actions of the Member States.
13. The principle of conferral, along with
the enhanced provisions on subsidiarity and proportionality as
well as the rules involving national parliaments in decision-making,
is primarily intended to ringfence national competences against
so-called "competence creep", namely the perception
or reality that EU competences are inexorably eating away at national
competences. It is not clear how the new principles which have
been instituted will in fact provide any more effective protection
of national competences than exists at present. The provisions
are doubtless more concerned with sending signals containing certain
symbolic messages about European integration to key national interests,
not only those in the UK, but also in other Member States.
14. The decision to include a definition
of competences in the Treaty, and to ascribe different fields
of activity to those categories as defined, has been widely welcomed
by many commentators. It is said to make EU law simpler to understand.
However, there are a number of difficulties attendant upon the
introduction of these categories of competence, not least because
this has been done without in fact changing the existing conceptual
basis upon which powers are attributed and defined, under the
legal basis system of the existing Treaties. Thus the categories
will co-exist with the principle of legal basis, whereby an action
cannot be undertaken under the Treaties if it does not have an
adequate legal basis. This legal basis determines the legislative
procedure to be followed and also the types of instruments to
be adopted. It also co-exists with the limited attempts which
the Court of Justice has made, notably in the sphere of external
economic action, to define a distinction between shared and exclusive
competences. This does not ultimately appear to offer the promised
simplification for the benefit of citizens.
15. One by-product of the creating of these
categories, is that the drafters of new treaties (in this case
the drafters of the Constitutional Treaty, as these texts have
been lifted verbatim from the earlier instrument) searched high
and low across the existing Treaties to find examples to place
in each box. It was the exclusive competence box which proved
particularly hard to fill, and as a result two cases of exclusive
competence under Article 3 TFEU have proved particularly controversial:
— The first case concerns "the
establishing of the competition rules necessary for the functioning
of the internal market". Here it is hard to support the allocation
of this competence to the exclusive competences box on the basis
of evidence derived from the case law of the Court of Justice
on competition law. It is hard to see how the co-existence of
national and EU level competition laws can be neatly sub-divided
in such a way as to state with possibility of refutation that
all instances where the latter apply are focused on the
creation of the internal market and all those where the
former apply are not. On the contrary, in practice national competition
rules substantially support the maintenance of the internal market,
by creating norms which mirror in important ways the EU competition
rules themselves.
— The second case concerns "the
conservation of marine biological resources under the common fisheries
policy." Here there is stronger support from the case law
for making such a determination to start with. Yet there remains
an important question whether these are matters which should be
dealt with "constitutionally" through a rule in the
treaties, or matters which should be dealt with in the realm of
ordinary politics, where judicial rules are able to evolve in
order to reflect changed legislative and regulatory circumstances.
It is interesting to reflect whether, in the event that this "categories
of competence"-approach had been created twenty years ago
rather than in 2007, agricultural policies might have been placed
in the box marked "exclusive", rather than the box marked
"shared". This could have been said to accurately reflect
the then style and pattern of regulation. Yet such a conclusion
could have impeded the ongoing reform of the Common Agricultural
Policy to a very great extent. The point to be made here is that
it is not clear that what the Union really needs such a constitutional
settlement determining different categories of competence. On
the contrary, it may be that it simply needs more urgently a strengthening
of the political mechanisms which can ensure that "optimal"
policy outcomes more often actually occur.
February 2008
53 Case C-105/03 Pupino [2005] ECR I-5285. Back
54
Case C-176/03 Commission v. Council (Environmental Crimes) [2005]
ECR I-7879; Case C-440/05 Commission v. Council (Ship Source Pollution)
27 October 2007. Back
55
See proposed amendments to Article 8 TEU in CIG 07/1, 23 July
2007 at point 12; Back
56
Reference is made throughout this Evidence to the numbers of the
TEU and the TFEU as they will be after the entry into force of
the Treaty of Lisbon, and the consolidation and renumbering exercise
has been completed. For the purposes of ascertaining these numbers,
the consolidated version of the Treaties and the table of comparisons
produced by the FCO in January 2008 (Cm 7810 and Cm 7812 respectively)
have been used. Back
57
See the interviews at http://www.taurillon.org/IGC-on-the-Reform-Treaty-Interview-with-MEPs. Back
58
Case C-85/96 Martínez Sala v. Freistaat Bayern
[1998] ECR-I 2691. Back
59
Cm 7812, at p7. Back
60
Case C-145/04 Spain v. United Kingdom [2006] ECR
I-7917; Case C-300/04 Eman and Sevinger v. College van
burgemeester en wethouders van Den Haag [2006] ECR I-8055. Back
61
At issue was a national rule which excluded Arubans from voting
in EP elections so long as they were resident in Aruba, but allowed
them to vote under general Netherlands expatriate voting rules
when they moved to a third country. Back
62
Opinion of AG Tizzano of 6 April 2006, para. 67: "it can
be directly inferred from Community principles and legislation
as a whole, thus overriding any indications to the contrary within
national legislation, that there is an obligation to grant the
voting rights [in European elections] to citizens of the Member
States and, consequently, to citizens of the Union." Back
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