CHAPTER 3: SIMPLIFIED TREATY REVISION
AND PASSERELLES
Background
3.1. Article 48 of the current TEU prescribes
a procedure for revising the Treaties, including an intergovernmental
conference. New Article 48 TEU offers four possible procedures:
- "Ordinary revision procedure" involving
a Convention, to include representatives of national parliaments,
alongside representatives of governments, the European Parliament
and the Commission. The Convention which gave rise to the abandoned
Constitutional Treaty included parliamentary representatives,
but there was no requirement that it should do so; the Lisbon
Treaty will make this a requirement.
- Ordinary revision procedure with no Convention,
if the European Council and European Parliament decide that the
extent of amendment proposed does not warrant one. National parliaments
have no role in such a decision.
- "Simplified revision procedures" for
restricted classes of amendment. These are sometimes referred
to as the "ratchet" or "self-amending" clause.
Under Article 48(6) the European Council may amend
Part Three of the TFEU Union Policies and Internal Actions,[13]
in any way that does not increase EU competences. The European
Council must be unanimous, and Member States must approve "in
accordance with their respective constitutional requirements",
but the Treaty itself gives no set role to national parliaments;
Under Article 48(7) the European Council may change
the voting requirement for certain decisions[14]
from unanimity in the Council to qualified majority in the Council,
or may change the procedure for any action under the TFEU from
a special legislative procedure to the ordinary legislative procedure.[15]
The European Council must adopt any decision under this article
unanimously. In addition, national parliaments must be given six
months' notice of a proposal to use these procedures, during which
time any one of them may block it by indicating opposition (see
also Protocol on national parliaments Article 6).
3.2. Article 48(7) TEU is the first of the new
"passerelles" ("bridges"). Passerelles
are provisions enabling procedural requirements to be reduced,
or other adjustments made, without formal Treaty revision. They
invariably require unanimity, giving each national government
a veto. There are others, as follows.
- Article 31(3) TEU whereby the European Council
may change the voting requirement for certain measures under the
Common Foreign and Security Policy from unanimity to qualified
majority.
- Article 81 TFEU, whereby the Council may change
the requirement for measures for judicial cooperation in civil
matters concerning family law with cross-border implications
from special legislative procedure to ordinary legislative procedure.
A proposal to use this procedure must be notified to national
parliaments, and any of them may block it by indicating opposition
within six months. This is discussed in more detail in Chapter
6 below.
- New Article 312 TFEU, whereby the European Council
may change the requirement for the multiannual financial framework
from unanimity to qualified majority.
- New Article 333 TFEU, whereby the Council may
change the voting requirement for an action under enhanced
cooperation from unanimity to qualified majority, or from
special legislative procedure to ordinary legislative procedure.
Only Member States involved in the enhanced cooperation can vote.
3.3. The Lisbon Treaty also introduces passerelle-type
procedures in respect of judicial cooperation in criminal matters:
see Chapter 6.
3.4. Passerelles enabling procedural requirements
to be reduced are not new; there are already two, as follows.
To operate these passerelles the Council must act unanimously,
but the current Treaties give no veto to national parliaments.
- Article 137(2) of the TEC, whereby the Council
may change the requirement for decisions in certain fields of
social policy from special legislative procedure to ordinary
legislative procedure. This Article is amended by the Lisbon Treaty;
it will become Article 153(2) TFEU;
- Article 175(2) of the TEC, whereby the Council
may change the legislative procedure for certain environmental
measures from special legislative procedure to ordinary legislative
procedure. This Article is amended by the Lisbon Treaty; it will
become Article 192(2) TFEU.
3.5. There are also two existing passerelles
concerning the area of freedom, security and justice covered by
Title IV TEC, Visas, asylum, immigration and other policies
related to free movement of persons, and Title VI TEU,
Police and judicial cooperation in criminal matters: see Chapter
6.
3.6. The Lisbon Treaty offers national parliaments
a veto, as set out above, over the second simplified revision
procedure (Article 48(7)) and the family law passerelle.
The European Union (Amendment) Bill offers this Parliament additional
vetoes, in the Clause on parliamentary control of decisions, over
not only these, but also the first simplified revision procedure
(Article 48(6))[16] and
all the other passerelles which can be used to move from
unanimity to qualified majority voting or from special legislative
procedure to ordinary legislative procedure.
3.7. The European Parliament is also given an
enhanced role in future revisions of the Treaties. The Parliament
gains the right to initiate Treaty revision by submitting proposals
for amendment to the Council. It will play a role in any Convention
set up to discuss Treaty change proposed under the ordinary revision
procedure, and must give its consent to any move from the European
Council not to convene a Convention. It also has a role in the
simplified revision procedure, again with the right to initiate
Treaty revision.
Evidence
3.8. Margaret Wallström, Vice-President
of the Commission and Commissioner for Institutional Relations
and Communications Strategy, considered that the Lisbon Treaty
"does not fundamentally alter" the procedures for treaty
revision (p S162). Nonetheless, of all the issues raised
in submissions to this inquiry by members of the general public,
the simplified revision procedures were mentioned most frequently.
Mr J A Wheatley considered this the Treaty's "most dangerous
aspect for any democracy" (p S162). Christopher Mowbray
called it "a political 'open cheque'" (p S150).
3.9. The Coalition for the Reform Treaty made
the case for the simplified revision procedures. "This clause
brings flexibility and may prove useful when using EU policy to
respond to crisis situations" (p S130). Jens Nymand
Christensen of the Commission[17]
likewise welcomed the flexibility, but saw it being used for technical
amendments rather than crisis management. Following the current
protracted round of Treaty revision, he did not expect the procedures
to be used in the near future (Q S325).
3.10. The European Parliamentary Labour Party
observed that those who described the Lisbon Treaty as "self-amending"
ignored the fact that all the procedures for revision required
unanimity (p S150; see also p S156). They welcomed the
inclusion of national parliaments in Treaty Conventions under
the ordinary revision procedure. The Centre for European Policy
Studies, Egmont and the European Policy Centre (in "the Joint
Study")[18], considered
this "a significant increase in the capacity of national
parliaments to influence the negotiating process", but only
if there was a Convention; national parliaments could not force
one if the Council and European Parliament did not want it.
3.11. The increased role of the European Parliament
in Treaty revision was also welcomed in some quarters. The Parliament's
own Committee on Constitutional Affairs called the new procedure
"more open and democratic"[19].
The EPLP said it would produce "wider scrutiny and more public
debate" (p S150).
3.12. Professor Peers suggested that, where
the Treaties created a passerelle without a veto for national
parliaments, this Parliament should give itself a veto through
the ratification bill (p S156). Mr Heathcoat-Amory made
the same point with particular reference to the passerelle
for foreign and security policy (Q S105). The European Union
(Amendment) Bill offers both Houses a veto on this and other passerelles,
in the Clause on parliamentary control of decisions.
3.13. Sir Stephen Wall[20]
considered that the passerelles, by combining the requirement
for unanimity with a parliamentary veto which in the UK will extend
to all of them, added up to "a pretty strong democratic safeguard"
(Q S229). Others made the same point, but with a less positive
slant: John Palmer considered that the passerelles are
unimportant (p S15); Professor Chalmers expected the
procedure to be little used (Q S40); Brendan Donnelly expected
it to be used only for minor matters (p S134). The Joint
Study suggested that unanimity among national parliaments was
even less likely than unanimity among governments, and that therefore
the procedures might never be invoked at all. It noted that the
general passerelles introduced by the Amsterdam Treaty
had not been used to date.
3.14. Neil O'Brien and David Heathcoat-Amory MP
considered the passerelles an inadequate substitute for
conventional Treaty revision. Though they might give national
parliaments a vote on individual changes, rather than on unamendable
take-it-or-leave-it Treaties, the process would be less visible
to the citizen, and more likely to go through on the nod (QQ S103-7).
Conclusions
3.15. The simplified revision procedures and
passerelles could be used to alter significantly the provisions
on the face of the Treaties. But any Treaty revision by means
of simplified procedures, and any changes to decision procedures
by means of passerelles, will be subject to veto by the
Government in the European Council or Council of Ministers. And,
under the European Union (Amendment) Bill, government agreement
to any such move will be subject to approval by both the House
of Commons and the House of Lords.
3.16. In addition, two of the passerelles,
namely the second simplified revision procedure (Article 48(7)
TEU) and the passerelle for measures concerning family
law with cross-border implications (Article 81(3) TFEU), are subject
to a veto by each national parliament, exercisable within six
months. These vetoes are written into the Treaty and are independent
of government. If they were needed, a procedure would be required
to produce a single opinion from a bicameral Parliament. But in
the UK they may never be needed, given the situation just described,
viz. that both Houses will have a separate veto on government
agreement in the Council.
13 For what this part covers, see Appendix 3. It does
not cover the Common Foreign and Security Policy, external action
or institutional matters. Back
14
Decisions under the TFEU or Title V of the TEU (external action
and CFSP), except "decisions with military implications or
those in the area of defence". Back
15
The "ordinary legislative procedure" under the Lisbon
Treaty is what is currently known as co-decision. See Chapter
4 below, and the Glossary. Back
16
Note that the European Assembly Elections Act 1978, section 6(1),
already provides that "No treaty which provides for any increase
in the powers of the Assembly shall be ratified by the United
Kingdom unless it has been approved by an Act of Parliament." Back
17
Director of Directorate E of Secretariat-General. Back
18
The Treaty of Lisbon: Implementing the Institutional Innovations,
joint study by the Centre for European Policy Studies, Egmont
and the European Policy Centre, November 2007. Back
19
Report on the Treaty of Lisbon, rapporteurs Richard Corbett and
Íñigo Méndez de Vigo, 3 December 2007, point
2(i). Back
20
Vice-Chair, Business for New Europe. Back
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