Memorandum by Professor John A Usher[105]
1. OVERALL ASSESSMENT
Whether or not the Lisbon Treaty will constitute
a lasting settlement may be considered in the context of three
issues: its structure, its institutional provisions, and its substantive
scope.
So far as structure is concerned, while the
Constitutional Treaty included all three "pillars" of
the EU in a single Treaty (though Euratom would have remained
separate), the Reform Treaty takes the form of amendments to the
existing Treaties (Euratom still remaining separate). However,
the Reform Treaty will rename the EC Treaty the "Treaty on
the Functioning of the Union", the word "Community"
will be replaced by the word "Union", and the European
Union will have a single legal personality. While this effectively
creates a single European Union, and to a large extent the same
institutional processes will apply in the current first pillar
(EC) and the current third pillar (police and judicial cooperation
in criminal matters—subject to transitional arrangements,
and to special arrangements for the UK, Ireland and Denmark),
the current second pillar (Common Foreign and Security Policy)
remains subject to distinctive institutional procedures, and for
the most part continues to escape judicial review. This arrangement
no doubt reflects the wishes of the current members of the EU,
but it does leave scope for further Treaty amendments at some
stage in the future.
However, while representation and voting rights
may have been at the heart of the discussion which led to the
Amsterdam and Nice Treaties, it may be suggested that the Reform
Treaty does considerably reduce the need for future Treaty amendments
with regard to these issues, by removing specific numbers from
the Treaty texts. So far as qualified majority voting in the Council
is concerned, once the transitional arrangements expire there
will no longer be weighted numerical votes; instead, a qualified
majority will be represented by 55% of the Council's members representing
65% of the EU's population. With regard to the Parliament and
Commission, the Treaty sets out the parameters governing their
membership, leaving the detailed decision to the European Council;
other institutions (eg the ECJ and the Court of Auditors) comprise
one member from each Member State, or have memberships set out
in Statutes which can be amended without amending the Treaties
(eg the CFI and the ECB), and the composition of the Economic
and Social Committee and of the Committee of the Regions are to
be determined by the Council. It may therefore be concluded that
the relevant Treaty provisions will no longer require frequent
amendment.
So far as the substantive scope of the Treaties
is concerned, the Reform Treaty largely represents a consolidation
of the current position, ie the position reached after the Treaties
of Maastricht and Amsterdam. This in turn perhaps indicates that
a plateau has been reached, though it is highly unlikely that
there will never be a future issue which it is felt appropriate
to deal with at Union level. However, the revised texts of what
are currently arts.94 and 308 of the EC Treaty will continue to
allow a considerable degree of flexibility even without Treaty
amendments.
Overall therefore, it may be suggested that
although the Reform Treaty should not be regarded as set in stone,
it should considerably reduce the need for frequent Treaty amendments.
2. PEOPLE'S
RIGHTS AND
RESPONSIBILITIES
As under the Treaty establishing a Constitution
for Europe, the Union will be given express power to become a
party to the European Convention on Human Rights, although it
may be suggested, as evidenced in the dispute between Spain and
the UK over voting rights in European Parliament elections in
Gibraltar, that the ECJ already recognises that obligations under
the ECHR prevail over substantive EU law. On the other hand, whereas
the Treaty establishing a Constitution for Europe included the
text of the Charter of Fundamental Rights as part of the Treaty,
the Reform Treaty article on fundamental rights contains a reference
to the Charter, declaring it to have the same legal value as the
Treaty, but not setting out its text. However, there is a special
Protocol on its justiciability in the UK and Poland, under which
the Charter does not extend the ability of the ECJ or of UK or
Polish courts to find that UK and Polish laws and practices are
inconsistent with its terms. It is further declared that nothing
in Title IV of the Charter (entitles "Solidarity" and
essentially concerned with social rights) creates justiciable
rights in the UK or Poland except insofar as provided for in the
national law of UK/Poland. Furthermore, references to national
laws and practices only apply to the extent that they are recognised
in Polish or UK law—which begs the question of what happens
to national laws and practices which have evolved into general
principles of EU law and therefore already have to be observed
by the UK in the context of EU law.
3. POWERS AND
NATIONAL SOVEREIGNTY
Despite the more fanciful comparisons with the
United States when the Treaty establishing a Constitution for
Europe was negotiated, a fundamental difference from the US (whose
civil war not just about slavery but rather about whether States
could secede) is that the EC/EU has always allowed withdrawal
(although the only example is that of the territory of Greenland),
and the Reform Treaty will introduce an express provision enabling
a Member State to withdraw from the Union—even if other
Member States oppose it.
While the Treaty text will contain no express
statement of the primacy of EU law, there will be a declaration
recalling the existing case-law of the European Court of Justice
on primacy. Indeed this case-law was well-known when the UK first
became a member of the then EEC, and it was reflected in the drafting
of the European Communities Act 1972.
With regard to "red lines", in part
these have been protected by obtaining special treatment for the
UK. Indeed, far from being monolithic, the Reform Treaty not only
retains the existing opt-outs from EU policies and opt-ins to
EU policies but it takes the matter further: the Third Pillar
provisions on police and judicial cooperation in criminal matters
will be moved to the same part of the Treaty on the Functioning
of the Union as the current title on asylum, immigration and visas,
and will become subject to the same "opt-in" arrangements
for the UK and Ireland—and indeed it is envisaged the Denmark
will be able to opt-in as well (currently the relevant provisions
are simply not binding on Denmark). However the relevant Protocol
also deals expressly with the consequences of this extension with
regard to Third Pillar legislation currently binding on eg the
UK. It envisages both substantive and institutional issues which
might arise. Substantively, existing measures continue, but if
they are later amended, and the UK does not participate in the
amendment, the Council may determine that this non-participation
makes application of the measure inoperable for other MS, and
the original measure will no longer be binding on or applicable
in the UK. So far as institutional issues are concerned, the relevant
Protocol to the Reform Treaty envisages a 5 year transition during
which the existing 3rd pillar rules apply (ie a limited role for
the Commission, and references to the ECJ only if the Member State
concerned allows them). However, if a former 3rd pillar measure
is amended during that period, the new rules apply (ie the normal
institutional rules)—though the UK would only be affected
if it opted-in to the amended measure. Six months before the end
of the transitional period, UK may give notice that it does not
accept normal powers of institutions with regard to "old"
acts still binding on it. The result of this is that those acts
will cease to apply to UK from the end of the transitional period—and
Council (without the participation of the UK) will determine the
consequences, including financial ones. Since the Third Pillar
measures currently binding on the UK include matters such as the
European Arrest Warrant, the consequences could be serious.
Other methods of protecting "red lines"
involve ensuring the continuation of a requirement of unanimity
in the Council, or simply ensuring that the treaty does not extend
the EU's powers, as in the case of taxation. However, it may be
suggested that the failure eg to give the EU any express power
to legislate in the area of direct taxation has a downside. In
a series of recent cases, the ECJ has found that discriminatory
national rules on direct taxation may breach the Treaty "freedoms",
notably freedom of establishment, freedom to provide services
and free movement of capital, and such rules may also conflict
with the provisions governing citizenship of the Union. Thus a
Member Sate may be required to give tax relief for pension contributions
paid in another Member State, or to give credit for tax paid on
dividends in another Member State, or to give tax relief for losses
made in another Member State, and it may be suggested that the
situation has now been reached where it would be sensible to agree
some basic rules at Union level. However, the Treaty gives the
Union no competence in this area, other than through a broad interpretation
of what is currently art 94 of the EC Treaty, allowing approximation
of such laws as affect the functioning of the common market (to
be referred to as the internal market under the Reform Treaty).
4. OUR NATIONS
AND REGIONS
As someone who spent a total of 14 years working
in Scotland, I had several discussions with SNP politicians as
to whether Scotland would automatically remain a member of the
EU if it became independent. Without getting involved in the niceties
of State succession, a simple answer used to be that a new Treaty
would have to be negotiated to deal with issues eg of representation
and voting rights. However, it was suggested in the first section
of this Evidence that the Reform Treaty considerably reduces the
need for future Treaty amendments with regard to these issues,
by removing specific numbers from the Treaty texts. To that extent,
the Reform Treaty may be said to strengthen the arguments in favour
of Scotland automatically remaining a member of the EU if it were
to become independent.
5. OUR NATIONAL
PARLIAMENT
In many respects the Reform Treaty, following
the pattern set in the Constitutional Treaty, provides greater
opportunities for national parliaments to play an active role
in the EU context. They are given a formalized role in the context
of subsidiarity, being empowered to ensure compliance with the
principle of subsidiarity. in accordance with the procedure
set out in the revised text of the Protocol on Subsidiarity and
Proportionality. The Reform Treaty amends this Protocol, which
was originally introduced by the Treaty of Amsterdam, so as to
require the Commission to forward its draft legislative acts and
its amended drafts to national Parliaments at the same time as
to the Union legislator. It also requires the European Parliament
to forward its draft legislative acts and its amended drafts to
national Parliaments, and it states that the Council must forward
draft legislative acts originating from a group of Member States,
the Court of Justice, the European Central Bank or the European
Investment Bank (and amended drafts) to national Parliaments.
Furthermore, upon adoption, legislative resolutions of the European
Parliament and positions of the Council must be forwarded by them
to national Parliaments. It will however be for each national
Parliament or each chamber of a national Parliament to consult,
where appropriate, regional parliaments with legislative powers.
Under art 6 of the Protocol, any national Parliament
or any chamber of a national Parliament may, within eight weeks
from the date of transmission of a draft legislative act, send
to the Presidents of the European Parliament, the Council and
the Commission a reasoned opinion stating why it considers that
the draft in question does not comply with the principle of subsidiarity.
The European Parliament, the Council and the Commission, and,
where appropriate, the group of Member States, or other EU institutions
and bodies if the draft legislative act originates from them,
are then required "take account" of the reasoned opinions
issued by national Parliaments or by a chamber of a national Parliament.
It is further provided in art 7 that where reasoned
opinions on a draft European legislative act's non-compliance
with the principle of subsidiarity represent at least one third
of all the votes allocated to the national Parliaments, "the
draft must be reviewed". In calculating such a vote, each
national Parliament would have two votes, shared out on the basis
of the national Parliamentary system. In the case of a bicameral
Parliamentary system, each of the two chambers would have one
vote.
This threshold would be a reduced to a quarter
of the allocated votes in the case of a draft legislative act
submitted on the basis of art 68 of the Treaty on the functioning
of the Union on the area of freedom, security and justice. After
carrying out such a review, the Commission or, where appropriate,
the group of Member States, the European Parliament, the Court
of Justice, the European Central Bank or the European Investment
Bank, if the draft legislative act originates from them, may decide
to maintain, amend or withdraw the draft, but reasons must be
given for this decision.
National Parliaments are also given a right
of action. before the European Court. Art 8 declares that
the Court of Justice of the European Union shall have jurisdiction
in actions on grounds of infringement of the principle of subsidiarity
by a legislative act, brought in accordance with the rules laid
down in art 230 of the Treaty on the Functioning of the Union
(which governs actions for annulment) by Member States, or notified
by them in accordance with their legal order on behalf of their
national Parliament or a chamber of it.
The national parliaments are also expressly
involved in the revised text of the current art 308 of
the EC Treaty. It provides that if action by the Union should
prove necessary, within the framework of the policies defined
in the Treaties, to attain one of the objectives set in the Treaties,
and the Treaties have not provided the necessary powers, the Council
of Ministers, acting unanimously on a proposal from the European
Commission and after obtaining the consent of the European Parliament,
may adopt the appropriate measures. However, a new art 308(2)
then adds that using the procedure for monitoring the subsidiarity
principle, the Commission must draw Member States' national Parliaments'
attention to proposals based on this provision.
Similarly, the Protocol on the Role of National
Parliaments., originally annexed to the Treaty of Amsterdam,
has been considerably reinforced. In the version annexed to the
Reform Treaty, not only must Commission consultation documents
(green and white papers and communications) be forwarded directly
by the Commission to national Parliaments upon publication, but
the Commission must also forward the annual legislative programme
as well as any other instrument of legislative planning or policy
to national Parliaments, at the same time as to the European Parliament
and the Council. It would also be required that draft legislative
acts sent to the European Parliament and to the Council must be
forwarded to national Parliaments; "draft legislative acts"
are defined as proposals from the Commission, initiatives from
a group of Member States, initiatives from the European Parliament,
requests from the Court of Justice, recommendations from the European
Central Bank and requests from the European Investment Bank for
the adoption of a legislative act.
Art 3 of the Protocol then provides that National
Parliaments may send to the Presidents of the European Parliament,
the Council and the Commission a reasoned opinion on whether a
draft European legislative act complies with the principle of
subsidiarity, in accordance with the procedure laid down in the
Protocol on the application of the principles of subsidiarity
and proportionality mentioned above.
Expanding the timescale of the original text,
art 4 would require that an eight week period should elapse between
a draft legislative act being made available to national Parliaments
in the official languages of the Union and the date when it is
placed on a provisional agenda for the Council for its adoption
or for adoption of a position under a legislative procedure. Exceptions
would however be possible in cases of urgency, the reasons for
which would have to be stated in the act or position of the Council.
The Protocol would expressly lay down that save in urgent cases
for which due reasons have been given, no agreement may be reached
on a draft legislative act during those eight weeks. Furthermore,
save in urgent cases for which due reasons have been given, a
ten day period would have to elapse between the placing of a draft
legislative act on the provisional agenda for the Council and
the adoption of a position. Under art 5, the agendas for and the
outcome of meetings of the Council, including the minutes of meetings
where the Council was deliberating on draft legislative acts,
would have to be forwarded directly to national Parliaments, at
the same time as to Member States' governments.
There is however a direct link to what is termed
the simplified revision procedure in art 6 of the Protocol,
which provides that when the European Council intends to make
use of the simplified revision procedure, national Parliaments
must be informed of the initiative of the European Council at
least six months before any decision is adopted. The simplified
revision procedure would introduce a general power for the European
Council, acting unanimously, to adopt a decision allowing the
Council to move from acting by unanimity where it would still
be required in a specific area to qualified majority voting in
that area, without amending the Treaty, though it would still
have to be approved by the Member States in accordance with their
respective constitutional requirements. However, any initiative
taken by the European Council on this basis must be notified to
the national Parliaments of the Member States, and if a national
Parliament made known its opposition within six months of the
date of such notification, the European decision could not be
adopted. It would only be in the absence of opposition that the
European Council could adopt the decision. It may be observed
that in this context no distinction is made between the parliament
of eg Germany and the parliament of eg Malta or Luxembourg.
Finally, arts 9 and 10 of the Protocol take
inter-Parliamentary cooperation. beyond the previous version.
It is provided that the European Parliament and national Parliaments
shall together determine the organisation and promotion of effective
and regular interparliamentary cooperation within the Union. Furthermore,
what is renamed a "Conference of Parliamentary Committees
for Union Affairs" may submit any contribution it deems appropriate
for the attention of the European Parliament, the Council and
the Commission. That conference may in addition promote the exchange
of information and best practice between national Parliaments
and the European Parliament, including their special committees.
It may also organize interparliamentary conferences on specific
topics, in particular to debate matters of common foreign and
security policy, including common security and defence policy.
However, contributions from the conference would not bind national
Parliaments and would not prejudge their positions.
It may be suggested that these provisions considerably
strengthen the position of national Parliaments in the EU legislative
process, provided national parliaments have in place machinery
to enable them to take advantage of these opportunities.
6. COURTS AND
THE JUDICIARY
A notorious gap in the current system of judicial
review under the EC Treaty is that it is virtually impossible
for non-privileged litigants directly to seek the annulment of
general legislation before the ECJ/CFI since the current art 230
of the EC Treaty requires applicants to show that the act is of
individual concern to them. The Reform Treaty will alleviate this
problem when applicants are challenging "regulatory"
acts (presumably meaning implementing or delegated legislation),
though the problem will remain with regard to acts adopted under
a legislative procedure.
Two other jurisdictional issues will also be
tackled. The first is that the requirement under the current Title
IV of the EC Treaty that references from national courts to the
ECJ for a preliminary ruling may only be made by courts of final
appeal is abolished, though this is of concern to the UK only
in so far as it opts in to Title IV measures. The second is that
while references under the third pillar may currently only be
made if a Member State decides to allow its courts to make such
references (and the UK does not allow such references), they will
in principle be subject to the normal rules on references under
the Reform Treaty—though it must be said that although a
UK court may not itself make such a reference, the House of Lords
in the Dabas.case last year followed the case-law of the
ECJ arising from references from other Member States. Be that
as it may, this change is subject to the special arrangements
for the UK discussed in section 4 of this Evidence: there will
a 5 year transition during which the existing 3rd pillar rules
apply but if a former 3rd pillar measure is amended during that
period, the new rules apply (ie the normal institutional rules)—though
the UK would only be affected if it opted-in to the amended measure.
Six months before the end of the transitional period, UK may give
notice that it does not accept normal powers of institutions with
regard to "old" acts still binding on it. The result
of this is that those acts will cease to apply to UK from end
of the transitional period.
In essence therefore, the Reform Treaty will
remove certain anomalies in the system of references, but these
changes will be of relevance to the UK only to the extent the
UK opts-in to the relevant legislation.
February 2008
105 Professor of European Law and Head of the School
of Law, University of Exeter. Back
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