Memorandum by Professor Takis Tridimas
This submission contains a brief overall assessment
of the impact of the Lisbon Treaty and more specific comments
on the following areas: the changes made in the Area of Freedom,
Security and Justice; the question whether the Treaty of Lisbon
is likely to provide a lasting settlement; the EU Charter of Fundamental
Rights; the UK Protocol on the Charter; the role of national Parliaments;
the principle of subsidiarity; and the jurisdiction of the Court
of Justice in matters of Common Foreign and Security Policy and
in the Area of Freedom, Security and Justice.
OVERALL ASSESSMENT
The Treaty of Lisbon is substantially similar
to the aborted Treaty establishing a Constitution for Europe and
makes a number of significant changes to the Treaty on European
Union (TEU) and the Treaty establishing the European Community
(EC Treaty). It abolishes the European Community which is succeeded
and replaced by the European Union as the single vehicle of European
integration.
The Union is founded on the TEU, as amended,
and the Treaty on the Functioning of the European Union (TFEU)
which organises the functioning of the Union and contains more
detailed provisions for the delimitation and exercise of its competences,
effectively replacing the current EC Treaty. The TEU and the TFEU
have the same legal value.[78]
The Treaty of Lisbon abolishes the three pillar
structure of the EU but retains the distinct nature of the Common
Foreign and Security Policy (CFSP). The existing third pillar
becomes part of the Area of Freedom, Security and Justice, which
also retains some distinct features in relation to other Union
policies.
Overall, the changes made by the Treaty of Lisbon
should be seen in a positive light and receive a cautious welcome.
Whilst, inevitably, its provisions give rise to problems of interpretation
and leave grey areas, they modernise the Union institutions, provide
for more efficient and democratic decision-making structures,
have the potential to enhance democracy and accountability, and
increase legal certainty, whilst providing for reasonable safeguards
for national sovereignty.
The Treaty extends the jurisdiction of the ECJ
to third pillar matters, which enhances judicial protection and,
on this basis, is to be welcomed. It codifies the general principles
pertaining to the division of competences between the EC and the
Member States, which have been developed in the case law. This
increases transparency by making the rules more visible and, to
some extent, increases legal certainty but does not avoid intricate
problems of interpretation nor does it necessarily provide bright
lines between the powers of the Union and those of the Member
States.
The most important changes made by the Treaty
of Lisbon pertain to the institutional architecture. They provide
for a smaller, streamlined Commission, formalise the role of the
European Council, establish the office of the President of the
European Council, and also provide for the office of the High
Representative of the Union for Foreign Affairs and Security Policy.
TRANSFER OF
SOVEREIGNTY AND
UK ARRANGEMENTS IN
THE AREA
OF FREEDOM,
SECURITY AND
JUSTICE
The Treaty of Lisbon effects some further transfer
of sovereignty from the Member States to the European Union. It
does so mainly through the introduction of qualified majority
voting in areas in which under the existing treaties decisions
are taken by unanimity. Qualified majority voting is introduced,
in particular, in the field of freedom, security and justice which
is expanded to include cooperation in criminal justice and police
cooperation.
The effect of these changes on the United Kingdom
is heavily conditioned by two legal mechanisms in the form of
an opt-out and an opt-in.
Under a Protocol attached to the Treaty,[79]
the provisions of Title V of Part Three of the TFEU and measures
adopted under them are not binding upon or applicable in the United
Kingdom unless the Government agrees to be bound under the procedure
provided therein (opt-in mechanism).
Furthermore, under the Protocol on transitional
provisions, in relation to Union acts in the field of police cooperation
and judicial cooperation on criminal matters which were adopted
before the entry into force of the Lisbon Treaty, the Commission
will not enjoy the power to bring enforcement proceedings and
the powers of the ECJ will be governed by the existing Treaties.
This transitional arrangement will cease to have effect five years
after the entry into force of the Lisbon Treaty. Within five years
from the entry into force of the Treaty of Lisbon, the United
Kingdom may notify the Council that it does not accept the powers
of the Commission and the ECJ in relation to the above acts in
which case such acts will cease to apply to it from the date of
the expiry of the transitional period (transitional opt-out mechanism).[80]
The extent to which an incumbent government
will avail itself of these possibilities is obviously a matter
of political discretion. The Government has already declared that
it intends to opt-in in relation to measures for the prevention
of terrorism under Article 75 TFEU.[81]
IS THE
TREATY OF
LISBON LIKELY
TO PROVIDE
A LONG-LASTING
SETTLEMENT?
In the last 30 years, the Community Treaties
have been amended no fewer than nine times. There have been five
waves of accessions and four substantive changes.[82]
In addition, there have been three major constitutional developments
in the form of the EU Charter for the protection of Fundamental
Rights, the unsuccessful Constitutional Treaty, and the Lisbon
Treaty. There is no precedent of a nation state having amended
its constitution with such frequency within such a short period
of time. This shows the quest for optimum structures of government
at the European level and may not augur well for the longevity
of the Lisbon Treaty in its current form. However, whilst it is
impossible to second guess political and legal developments in
the medium to long term, it is not unreasonable to suggest that
the Treaty of Lisbon has a higher life expectancy. This is for
the following reasons.
First, it introduces reforms which are further
reaching than those of the Treaty of Amsterdam and the Treaty
of Nice and, most notably, it overhauls the institutional structure
and the decision-making procedure of the Community making the
most important institutional reforms since the establishment of
the EEC in 1958. The intention is therefore to provide a long
term settlement. This is countenanced by the fact that some amendments
do not in fact come into force until 2014 or 2017.[83]
Secondly, as the troubled history of the Constitutional
Treaty suggests, agreement for further changes in sensitive areas
such as the composition of the political institutions and voting
arrangements will not be easy to reach.
Thirdy, the Lisbon Treaty introduces flexible
procedures, including a new simplified procedure for the amendment
of the Treaties,[84]
through which adjustments can be made within the overarching constitutional
framework of the TEU and the TFEC without the need to convene
an intergovernmental conference.
THE CHARTER
OF FUNDAMENTAL
RIGHTS OF
THE EUROPEAN
UNION
Article 6(1) TEU, as amended by the Lisbon Treaty,
makes the Charter legally binding and grants to it the same legal
value as the Treaties. It is submitted however that, contrary
to widespread perceptions, the Charter is unlikely to be a major
threat to national sovereignty or a vehicle for the introduction
of social legislation. This is for the following reasons:
First, it is expressly stated in the Treaty itself
and the Charter that the Charter does not extend in any way the
competences of the Union as defined by the Treatis.[85]
The Charter therefore may not by itself confer competence to the
EU nor may provide the legal basis for the adoption of Community
legislation.
Secondly, insofar as provisions of the Charter
seek to recognise rights which do not exist under the European
Convention for the Protection of Human Rights or under existing
Community law, it is highly uncertain whether they create enforceable
rights. This applies in particular in relation to Charter IV of
the Charter which, under the title solidarity, provides for social
and economic rights.
Finally, in any event, the UK Protocol has a
limiting effect on the capacity of the Charter to provide enforceable
rights.
The following point may further be made in relation
to the Charter.
Article [II-111(1)] provides as follows:
"The provisions of this Charter are addressed
to the institutions, bodies, offices and agencies of the Union
with due regard for the principle of subsidiarity and to the Member
States only when they are implementing Union law. They shall therefore
respect the rights, observe the principles and promote the application
thereof in accordance with their respective powers and respecting
the limits of the powers of the Union as conferred on it in the
Treaties".
Article II-111(1) gives rise to problems of
interpretation as regards the scope of application of the Charter
on national measures. On the face it, it suggests that the Charter
applies on Member States only when they implement Union law. This
makes its scope of application narrower than the application of
fundamental rights as developed by the ECJ since, under the case
law, Member States are bound to respect fundamental rights not
only when they implement Community law but also when they act
within its scope of application, a condition which the Court has
progressively interpreted more broadly.
Insofar as the Charter and the case law protect
the same rights, the limitation of Article [II-111(1)] is ineffective
since, by virtue of the case law, these rights apply to a wider
category of national measures. This is countenanced by Article
[II-113] which states that the protection afforded by the Charter
may not fall below the protection guaranteed by other provisions
of Community law. Insofar as the Charter incorporates rights not
expressly acknowledged in the case law, by virtue of Article [II-111(1)],
such rights will have a narrower scope of application. This will
give rise to inconsistency and confusion. In any event, given
that the Charter and the case law draw inspiration from the same
sources, it is possible that the ECJ might endorse a new right
provided for in the Charter as a general principle of law, assuming
that there is a sufficient degree of support in the constitutions
or other laws of the Member States, in which case it will apply
to all national measures falling within the scope of Community
law.
THE UK PROTOCOL
ON THE
CHARTER
On the assumption that the Lisbon Treaty comes
into force, Article 6 TEU in its new version will be included
in the definition of "Treaties" in section 1(2) of the
European Communities Act 1972 and, thus, the provisions of the
Charter will become enforceable under UK law as a measure "arising
by or under" one of the Treaties.
In accordance with the terms of section 2(1)
itself, the extent to which the provisions of the Charter will
be directly enforceable will then be a matter of interpretation
of the relevant Community instruments, ie Article 6 TEU, the Charter
itself and the UK Protocol on it. The ultimate arbiter of such
questions, in accordance with section 3 of the 1972 Act, will
be the ECJ.
Article 1 of the Protocol states as follows:
"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.
"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."
Article 1(1) is intended to ensure that the
Charter does not directly or indirectly expand the jurisdiction
of the ECJ or of the UK courts in so far as they are applying
its terms. The expression "The Charter does not extend the
ability" suggests that the Protocol does not seek to reduce
or curtail the ability of the ECJ or UK courts to assert
a fundamental rights jurisdiction by reference to the provisions
of the Charter. This is fully in conformity with Article 6 TEU,
which remains binding on the UK, and the preamble to the UK Protocol.
It thus remains open to the ECJ and UK courts to develop the fundamental
rights jurisprudence of Community law, taking into account the
terms of the Charter. A UK court may have recourse to the Charter
in order to inform the interpretation of a provision of Community
law or a general principle of Community law.
The Charter however may not expand the scope
of fundamental rights jurisdiction of the ECJ or UK courts beyond
the scope of application of Community law.
Article 1(1) of the Protocol may also be taken
to mean that the provisions of the Charter may not produce direct
effect in relation to the United Kingdom. Given, however, the
general jurisdiction of the ECJ in relation to fundamental rights
under Community law and its jurisdiction to apply general principles
of Community law, which are fully binding on the UK, it is not
easy to see what is the practical significance of this limitation.
Article 1(2) is more limited in scope, simply
stating that Title IV of the Charter does not create rights justiciable
in the United Kingdom "except in so far as the United Kingdom
has provided for such rights in its national law".
Title IV, Articles [II-87] to [II-98], concerns
a number of economic and social rights, the inclusion of which
has proved particularly controversial in the United Kingdom. The
effect of this provision is clearly intended to be to preserve
the autonomy of the United Kingdom in this field.
Article 1(2) is more peremptory than Article
1(1) and excludes the possibility of independent reliance on Title
IV in respect of the United Kingdom in any legal proceedings.
Whereas Article 1(1) does not suggest that the Charter is non-justiciable
in relation to the United Kingdom but merely curtails the powers
of the ECJ and the UK courts and tribunals, Article 1(2) renders
Title IV rights non-justiciable without UK implementation. Notwithstanding
this legal distinction, it is not easy to envisage circumstances
in which Article 1(2) would be likely to make a practical difference.
Article 1(2) does not appear to exclude reliance on the Charter
as an aid to interpretation.
The derogation of Article 1(2) is subject to
the qualification "except in so far as the United Kingdom
has provided for such rights in its national law". "National
law" in this context includes Community law: this follows
from the European Communities Act 1972. Thus, to the extent that
the provisions of Title IV are incorporated into Community law
either by secondary legislation or as a guide to interpretation
of the Treaties themselves, the United Kingdom will be bound by
those provisions as an integral part of Community law.
ROLE OF
NATIONAL PARLIAMENTS
A novel feature of the Lisbon Treaty is that
it strengthens the role of national Parliaments in the governance
of the EU and, especially, in monitoring compliance with the principle
of subsidiarity.[86]
Article 12 TEU (Article 8C of the Lisbon Treaty) provides for
a number of ways by which national parliaments contribute actively
to the functioning of the European Union. It is supplemented by
two protocols attached to TEU and the EC Treaty by the Final Act,
namely, a Protocol on the role of national Parliaments in the
European Union and a Protocol on the application of the principles
of subsidiarity and proportionality.
The provisions of the Lisbon Treaty on national
Parliaments derive from the aborted Constitutional Treaty and
implement one of the key objectives of the Constitutional Convention
which was to increase democracy by enhancing "the contribution
of national Parliaments to the legitimacy of the European design".[87]
Essentially, the Lisbon Treaty provides that national parliaments
are to be consulted in relation to proposed Community legislation,
may monitor compliance with the principles of subsidiarity and
proportionality, may block certain decisions, and participate
in monitoring certain Union bodies in the exercise of their functions.
The following points may be highlighted.
National parliaments are involved, inter alia,
in exercising political monitoring of Europol activities, evaluating
the activities of Eurojust and evaluating the mechanisms for the
implementation of Union's policies in the area of freedom, security
and justice.[88]
The Treaty of Lisbon introduces, in addition
to the ordinary procedure for the revision of the Treaties, simplified
revision procedures in relation to certain aspects of the founding
Treaties.[89]
Under Article 48(7), where the TFEU or Title V of the TEU, which
contains provisions on external Union action and CFSP, provides
for the Council to act by unanimity, the European Council may
authorise it to act by qualified majority. This covers all areas
of Community internal policies and external action, save for decisions
with military implications or those in the area of defence.
Also, where the TFEU provides for legislative
acts to be adopted by the Council in accordance with a special
legislative procedure, the European Council may adopt a decision
allowing for the adoption of such acts in accordance with the
ordinary legislative procedure.
It is clear that these provisions are far reaching
since they enable decisions which are taken by unanimity, and
in which therefore national Governments retain the power of veto,
to be taken in the future by majority without the need to go through
the full procedure for the revision of the Treaties.
The safeguards which are provided for this transfer
of sovereignty are the following: the European Council must act
by unanimity, after obtaining the consent of the European Parliament.
In addition, any initiative taken by the European Council to employ
the simplified revision procedure of Article 48(7) must be notified
to the national Parliaments. If a national Parliament makes known
its opposition within six months the European Council may not
adopt a decision.
The power of a national Parliament to block
a simplified revision of the Treaties is an important one. Member
States enjoy discretion as to how national Parliaments may exercise
that power. In particular, it will be up to each Member States
to decide whether a decision to oppose a Treaty revision should
be taken by a simple or any other kind of majority.
SUBSIDIARITY
The Protocol on the application of the principles
of subsidiarity and proportionality gives to national Parliaments
both political and judicial means to challenge Commission legislative
proposals.
Political control is exercised collectively
by all national Parliaments acting through a novel voting system.
Any national Parliament, or any Parliamentary chamber in the case
of countries which have a bicameral system, may object to a Commission
legislative proposal by submitting a reasoned opinion stating
why it considers that the proposal does not comply with subsidiarity.[90]
National Parliaments of Member States with unicameral parliamentary
systems are allocated two votes whilst each of the chambers of
a bicameral parliamentary system has one vote.[91]
Where reasoned opinions against a Commission proposal represent
at least one third of all the votes allocated to the Member States'
national Parliaments and their chambers, the Commission is required
to review its proposal.[92]
After such review, the Commission may decide to maintain, amend
or withdraw its proposal, giving reasons for its decision.[93]
The Protocol does not specify the way by which
the national Parliaments may take the decision to object to a
Commission proposal. The majority required is for the national
laws to determine as is the involvement of regional assemblies.
On the latter issue, the Protocol merely states that it is for
each national Parliament or each chamber to consult, where appropriate,
regional Parliaments with legislative powers.[94]
Judicial control is provided in paragraph 7
of the Protocol. This provision grants the Court jurisdiction
to hear actions for judicial review on grounds of infringement
of the principle of subsidiarity brought "by Member States,
or notified by them in accordance with their legal order on behalf
of their national Parliament or a chamber if it." Such actions
can be brought against legislative acts of the Union in accordance
with the rules of Article 263 (currently Article 230). A similar
right of action is also granted to the Committee of the Regions
as regards legislative acts for the adoption of which it must
be consulted.
Although the language of paragraph 7 does not
make it clear, the intention of the provision is to require Member
States to make available the right of action to national Parliaments
and not simply to allow them to do so. The Constitutional Convention
Preasidium notes attached to the original Protocol suggest that
the national Parliaments are given the right to challenge measures
before the ECJ.[95]
What is left to the Member States is to determine the arrangements
for the exercise of that right, including the question whether
it will be granted to each Parliamentary chamber in States with
a bicameral system. These arrangements can be made by ordinary
law and need not have the status of constitutional rules.[96]
Thus, it is for each Member State to decide
the proportion of votes by which the Parliament needs to act to
authorise the initiation of litigation before the ECJ. Many models
are here conceivable. A Member State may, for example, require
the Parliament to act by majority in which case the democratic
value of the right of action is considerably reduced. Where the
government controls the majority, it is unlikely that the Parliament
will vote for the initiation of litigation if the government itself
does not consider it appropriate.[97]
In such a case, the Parliament's right of action is tantamount
to the right of action of Member States which is already granted
under Article 263 EC. At the other extreme, national law may enable,
say, a certain cross-party minority of parliamentarians to authorise
litigation. Such an arrangement would enhance the power of the
Parliament to question Union legislation, acting independently
of the government's interests.
Granting to national parliaments their own political
and judicial means to monitor compliance with subsidiarity may
be seen as an indication of respect to representative democracy.
The Protocol seeks to promote national Parliaments as centres
of political power with a say in the exercise of Community competence
independently of their national governments. These newly founded
rights may in some cases bring national Parliaments in a collision
course with their respective governments. But they also juxtapose
the national Parliaments with the European Parliament. Now that
the latter is elevated, at least in most areas, to a co-legislator
with the Council, an action on grounds of subsidiarity initiated
by a national Parliament is as much a denial of Community competence
as a refusal to heed to the supremacy of the European Parliament.
These new provisions of the Lisbon Treaty may
be seen as enhancing dialogue, democracy, and decentralisation.
They view Community competence not as a bi-polar exchange between
the Union institutions, on the one hand, and the Member States,
on the other hand, but as a pluralistic dialogue among various
political actors at national and Union level. It should be noted
however that these rights are very likely to have more impact
in Member States with weak majorities or coalition governments
where it is easier for parliamentarians to assert themselves as
a political force independent from the government.
What is the likely impact of the Parliament's
new right of action? So far, the impact of subsidiarity on judicial
review has been benign and indirect. In no case has the Court
annulled a measure on the ground that it contravenes the principle.
Where the Court has annulled measures, it has preferred to do
so on grounds of competence or proportionality rather than on
grounds of subsidiarity even though the principle may have influenced
the judgment.[98]
By increasing the number of potential plaintiffs, the Protocol
increases the justiciability of subsidiarity. Clearly the Protocol
brings the Court of Justice closer to the political game. By transferring
to the courtroom what are essentially political issues, it risks
the politicisation of the judiciary, not in the sense of making
the Court a partisan institution but of involving it more directly
in issues of European governance. Judicial control of subsidiarity
is bound to become more complicated and possibly also more intense
as the Court will have available at its disposal a lot more material
from the Commission and national central and regional authorities
on the basis of which to assess whether a measure meets the requisite
test.[99]
A final point relates to the scope of the action.
It appears that, where an application for judicial review is made
pursuant to the Protocol, the only ground that can be invoked
is breach of the principle of subsidiarity. A national Parliament
may not ask its Member State to challenge a Community measure
on any other ground. This may give rise to problems since, in
practice, some grounds of review may be closely intertwined. In
the Tobacco Directive case[100]
the Court annulled the contested directive on ground of lack of
competence and formally, at least, did not address the argument
of the German Government based on subsidiarity. Would the Court
have reached the same result if it examined the issue on the basis
of subsidiarity? Also, since the existence of Community competence
is a condition precedent to its valid exercise, and therefore
to the application of the principle of subsidiarity, can the ECJ
examine arguments based on competence in actions brought under
the Protocol? Such problems will not arise where a Member State
brings an action not only on behalf of its Parliament but also
on its own behalf under Article 263 of the Constitution, in which
case all grounds of review are invokable.
THE JURISDICTION
OF THE
COURT OF
JUSTICE UNDER
CFSP
A result of the abolition of the three pillars
is that the jurisdiction of the ECJ is extended.
The Treaty of Lisbon repeals current Article
46 TEU which imposes limitations on the jurisdiction of the ECJ
in relation to matters covered by the TEU. The special preliminary
reference procedures provided for by Article 68 EC for matters
falling into Title IV and by Article 35 TEU for the Third Pillar
are abolished, and the jurisdiction of the Court becomes unified.
This is to be welcomed as the fragmentation of the preliminary
reference procedure gives rise to problems and compromises the
right to judicial protection.
This is not to say that the ECJ acquires full
jurisdiction. Under the Lisbon Treaty, the Court's jurisdiction
continues to be excluded from matters falling under the Common
Foreign and Security Policy.[101]
Such exclusion applies both with respect to the provisions relating
to the common foreign and security policy and "with respect
to acts adopted on the basis of those provisions". It is
not clear whether this provision excludes jurisdiction only in
relation to acts adopted wholly under the CFSP or also in relation
to acts adopted under a dual legal basis ie based both on the
CFSP and another Union policy, for example, freedom, security
and justice. Such dual basis may be used, for example, for anti-terrorist
measures. Since restrictions on the right to judicial protection
are to be interpreted restrictively, it is more likely that the
ECJ will be willing to review measures based partly on CFSP.
The above rule excluding the jurisdiction of
the ECJ on CFSP matters is subject to the following exceptions.
1. The ECJ has jurisdiction to police the
boundaries of CFSP, namely, to ensure that, in adopting measures
under CFSP, the Union institutions do not exceed the bounds of
their competence under Title V of the TEU and encroach upon the
other competences of the Union.[102]
Such jurisdiction to monitor the scope of CFSP
powers already exists under the EU and EC Treaties as they are
currently in force.[103]
However, with the abolition of the three pillars, the rules which
govern the separation between the CFSP and other Union policies
under the Lisbon Treaty are different in a material respect. Article
47 TEU as it currently stands, grants priority to the Community
pillar by stating that, subject to the TEU provisions which amend
the Treaty establishing the EC, nothing in the TEU shall affect
the EC Treaty or its subsequent treaties and acts modifying or
supplementing them. By contrast, Article 40 TEU, as amended by
the Lisbon Treaty abolishes this rule of priority and places CFSP
and the other competences of the Community on an equal footing.
2. Pursuant to Article 275, second paragraph,
TFEU the Court has jurisdiction to review the legality of decisions
providing for restrictive measures against individuals or entities
adopted by the Council under CFSP. The purpose of this exception
appears to be to safeguard the right to judicial protection in
relation to decisions imposing sanctions against individuals.
Article 215(2) TFEU expressly grants the Council power to adopt
restrictive measures against individuals on the basis of a CFSP
decision. Although Article 215(2) is not clear on this issue,
it appears that the Council may adopt both economic sanctions
(eg freezing of assets) and non-economic sanctions (eg visa bans).
Article 275 enables individuals to make a challenge only by way
of direct action before the ECJ under Article 263 TFEU and subject
to the conditions of that article. It follows that the applicant
must overcome the hurdle of direct and individual concern. The
possibility of an incidental challenge in preliminary reference
proceedings is not expressly provided and it would seem that it
is excluded.[104]
If that is correct, English courts therefore
would not be able to make a preliminary reference to the ECJ to
rule on the validity of restrictive measures against individuals
adopted under CFSP. This may create a gap in the right to judicial
protection where a CFSP sanctions is adopted against a natural
or legal person who is not able to prove direct and individual
concern in relation to that measure.
JURISDICTION IN
RELATION TO
THE AREA
OF FREEDOM,
SECURITY AND
JUSTICE
The Lisbon Treaty extends the presence of the
ECJ in the field of freedom, security and justice. The jurisdictional
restriction imposed by Article 68 EC in the fields of visas, asylum
and immigration is not maintained. Thus, the ECJ now acquires
jurisdiction to deliver preliminary rulings on matters pertaining
to Title V of Part 1 of the TFEU on freedom, security, and justice
which encompasses judicial cooperation on criminal matters and
police cooperation, which are currently covered by the third Pillar
of the TEU.
However, in the areas of judicial cooperation
in criminal matters and police cooperation, judicial powers are
restricted. Article 276 TFEU provides that, in those areas, the
ECJ has no jurisdiction to review the validity or proportionality
of operations carried out by the police or other law enforcement
agencies of a Member State or the exercise of the responsibilities
incumbent upon Member States with regard to the maintenance of
law and order and the safeguarding of internal security. Thus,
Article 276(3) maintains the restriction on the jurisdiction of
the Court currently provided by Article 35(5) TEU in relation
to Third Pillar matters.
It follows that, in relation to the matters
stated above, it is the national courts that have the final say.
Still, it is submitted that, since these areas fall within the
scope of Union law, in exercising their power of judicial review,
national courts must do so applying the principles of Community
law, eg the principle of proportionality and respect for fundamental
rights as recognised by Community law. In other words, the limitation
of Article 276 TFEU is only jurisdictional and not substantive
in scope.
February 2008
78 See TEU, Article 1, para 3, and TFEU, Article 1(2). Back
79
See Protocol on the position of the United Kingdom and Ireland
in respect of ther Area of Freedom, Security and Justice. Back
80
See Protocol on Transitional Provisions, Article 10. Back
81
See Declaration No 65 added to the Final Act accompanying the
Treaty of Lisbon. Back
82
These are the Single European Act, the Treaty on European Union,
the Treaty of Amsterdam and Treaty of Nice. Back
83
See the provisions pertaining to the calculation of qualified
majority voting in the Protocol on Transitional Provisions. Back
84
See Article 48 discussed below. Back
85
See Article 6(1), subparagraph 2, TEU; Charter, Article [II-111(2)];
the same point is made once more in the Declaration concerning
the Charter of Fundamental Rights of the European Union (Declaration
No 1) annexed to the Final Act accompanying the Treaty of Lisbon. Back
86
See Article 5(3), sub-paragraph 2. This derives from Article I-11(3)
of the aborted Constitutional Treaty. Back
87
See the Preface to the Constitution. Back
88
Article 12(c) TEU. Back
89
See Article 48(6) and 48(7) TEU. Back
90
Protocol, para 5. Under the Protocol, the Commission must transmit
all its legislative proposals to the national Parliaments at the
same time as it transmits them to the Union legislator. National
Parliaments may submit their reasoned opinions within six weeks
from the date of transmission by sending them to the Presidents
of the EP, the Council of Ministers and the Commission. Back
91
Para. 6. Back
92
Ibid. The threshold of one third is lowered to a quarter
in the case of a Commission proposal or an initiative emanating
from a group of Member States under the provisions of Article
76 of the Constitution on the area of freedom, security and justice. Back
93
Ibid. Back
94
Protocol, para 5. Back
95
CONV 724/1/03 REV 1, p. 144 Back
96
Ibid. Back
97
Unless the government allows the issue to be put in Parliament
on a free vote or a sufficient majority of the ruling party considers
the issue to be worth a rebellion. Back
98
See eg C-376/98 Germany v Parliament and Council (Tobacco case)
[2000] ECR I-8419. Back
99
The Protocol views subsidiarity as a cost effectiveness exercise
carried out on the basis of a detailed substantive and financial
assessment of the Union-wide, national and regional implications
of each proposal: see Protocol, para 4. Back
100
Op.cit. Back
101
See Article 24(1) TEU and Article 275 TFEU. Back
102
See Article 24(1) TEU and Article 275 TFEU. Back
103
Case C-170/96 Commission v Council (Transit Visas case),
12 May 1998. Back
104
Argument for this can be derived from Case C-354/04 P Gestoras
Pro Amnistia v Council, judgment of 27 February 2007. Back
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