CHAPTER 12: SUMMARY OF CONCLUSIONS
Chapter 1: Introduction
12.1. We make this report for debate. We suggest
that, exceptionally, it might be debated alongside Second Reading
of the European Union (Amendment) Bill. We expect a Government
response within the usual two months from publication, and ideally
in time to inform Report stage of the bill (see paragraph 1.16).
Chapter 2 General provisions: foundations of the
Union
The structure of the Treaties
12.2. The division of material between the TEU—principles
and objectives, provisions on the institutional framework, general
provisions and the CFSP—and the TFEU, containing the details
on how the Union is to function, is clear. The provisions of the
two Treaties will have equal value. The Protocols will have the
same legal status as the articles of the Treaties. The Lisbon
Treaty itself is, however, a complex document, not easily accessible
to the people whom it affects, and this is likely to be an obstacle
to informed debate as to the merits of the Treaty (see paragraph
2.6).
Values and objectives
12.3. The statement of Values in Article 2 TEU
closely follows the statement of "principles" set out
in Article 6(1) of the current TEU. "Respect for human dignity"
and general "equality" have been added, and the Values
are placed in the context of other values assumed to prevail in
the Member States, such as tolerance and justice. We agree that
these other values are accepted among the Member States. Respect
for human dignity and equality have been recognised as general
principles of EC law in the case-law of the European Court of
Justice, so their addition does not, in our view, amount to a
significant change (see paragraph 2.15).
12.4. The statement of objectives in Article
3 TEU replaces the one found in the current TEU. While the new
statement covers much of the same ground, the formulation of the
objectives differs from the present provisions, and some objectives
are removed and some are added, such as references to the development
of "a highly competitive social market economy" and
to promoting "social justice and protection". The differences
are likely to have some effect on the way in which other provisions
of the Treaties are interpreted, not only by the European Court
of Justice but also by the other institutions when undertaking
their tasks. In certain cases, notably Article 352 TFEU (the revised
version of the current Article 308 TEC, sometimes known as the
"flexibility clause"), the statement of objectives will
be directly relevant to the scope of Treaty provisions. In other
cases the effects of the change will be felt only at the margins,
in particular, to resolve uncertainty in interpretation of other
Treaty provisions. Whether the changes will mean that proposals
that would not be made under the existing Treaties will be brought
forward, or that potential proposals will not emerge, remains
to be seen (see paragraph 2.16).
Citizenship
12.5. We note two changes of significance: the
citizens' initiative, and (though other competences currently
exist in these areas) the new explicit competence for measures
on social security and social protection linked to rights of movement
and residence. Some will see symbolic significance in the additional
references to citizenship and its role in the amended TEU (see
paragraph 2.20).
Competences
12.6. The TEU sets out for the first time a clear
statement that the Union may only exercise such competences (powers)
as the Member States have conferred on it—the principle
of conferral (Articles 4 and 5). All other competences remain
with the Member States, which may decide to reduce the competences
of the Union (see Article 48(2) TEU). The significance of these
provisions lies in the articulation of these principles; their
content has always been implicit in the Treaties (see paragraph
2.42).
12.7. The TFEU sets out, for the first time,
categories of competences—exclusive, shared and supporting
(Articles 2 to 6 TFEU)—and refers to competences in the
descriptions of each category by more or less broadly-defined
areas. The categories reflect the provisions of the TEC setting
out the competences and the conclusions of the ECJ as it has examined
those provisions over the years. Most areas of EU activity are
defined as shared competences, where the list is illustrative,
not exhaustive. In the case of the supporting competences, Union
action "shall not entail harmonisation of Member States'
laws or regulations". The listing of areas of competences
should not be regarded as determining the precise nature of the
competences. For the detailed provisions relating to every competence,
reference must be made to the subsequent provisions of the TFEU
(see Article 2(6)) (see paragraph 2.43).
12.8. The TFEU (Article 2(2)) sets out that when
the Treaties confer on the Union a competence that is shared with
Member States, the Member States may only exercise their competence
"to the extent that the Union has not exercised its competence"
(see paragraph 2.44).
12.9. We consider that setting out the categories
and the listing of areas of competence is a useful clarification
(see paragraph 2.45).
Legal personality
12.10. The Lisbon Treaty confers legal personality
expressly on the EU, giving it the capacity to enter into legal
relationships with other parties in its own right. But the European
Community (in relation to the first pillar) has always had express
legal personality and the European Union implicitly has had legal
personality to the extent that it has the power to enter into
international agreements under Articles 24 and 38 of the current
TEU. Conferring legal personality expressly on the Union will
have the effect that the other attributes of such status, such
as the ability to join international organisations or to take,
or be subject to, proceedings in international tribunals, will
apply to the EU in the areas currently covered by the second and
third pillars (see paragraph 2.58).
12.11. The conferral of legal personality does
not itself affect the EU's competences, including its powers to
enter into international agreements, or the relative competences
of the EU and its Member States (see paragraph 2.59).
Size of the Union
12.12. The amended TEU provides expressly for
the European Council to set conditions of eligibility for states
aspiring to become members of the EU. This codifies existing practice
under which the current "Copenhagen criteria" were agreed
(see paragraph 2.67).
12.13. It is significant that the Lisbon Treaty
adds to the Treaties a clause confirming the right of a Member
State to withdraw from the Union, and also sets out the procedure
it could use to negotiate a withdrawal (see paragraph 2.68).
Chapter 3 Simplified Treaty revision and the passerelles
12.14. 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 (see paragraph 3.15).
12.15. 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 (see paragraph 3.16).
Chapter 4: The Impact of the Treaty in the European
Institutions
European Council
12.16. The Lisbon Treaty makes highly significant
changes to the European Council, the purpose of which is to make
the European Council work better. It will become part of the EU's
formal institutional framework and expressly subject, for the
first time, to the jurisdiction of the ECJ. It will be given a
more explicit leadership role in the EU (see paragraph 4.33).
12.17. The creation of a full-time European Council
President, in place of a six-monthly rotation among heads of government,
is a significant move, and is likely to make the European Council
more effective at creating direction and action. This could mean
a more active/activist European Council—a consequence which
would be welcomed in some quarters but not in others (see paragraph
4.34).
12.18. The European Council President will have
two broad roles: the primary one of leading the European Council,
and also ensuring the external representation of the Union on
issues concerning the CFSP at his or her level and without prejudice
to the High Representative (see paragraph 4.35).
12.19. Concerns have been raised about the relationship
between the European Council President and the other senior leaders
of the Union, particularly the High Representative, the rotating
presidency of the Council of Ministers, and the President of the
Commission. There is little in the Lisbon Treaty itself to indicate
how these relationships will work; only experience will show.
While some progress towards clarifying this may be made before
the Treaty's provisions come into operation, much will depend
on practice (see paragraph 4.36).
Council of Ministers
12.20. The extension of the use of qualified
majority voting (QMV) to more than 40 new areas is a significant
change. Qualified majority voting becomes the default voting method
in the Council of Ministers. Where there is a move from unanimity
to QMV, if the UK wishes to block legislation it will have to
construct a blocking minority rather than use a veto; the UK's
share of a blocking minority goes from 32 per cent to 35 per cent.
Equally, the extended use of QMV may help to advance UK interests
in some cases. The extension of QMV, because it does not depend
on consensus, may result in faster decision-making (see paragraph
4.69).
12.21. The new system for calculating a qualified
majority is more equitable and takes more account of population
than the current QMV rules, and the revision is significant. The
UK's voting weight increases from 8 per cent to 12 per cent (see
paragraph 4.70).
12.22. The provision requiring the Council of
Ministers to meet in public when it legislates is important. The
Council of Ministers will continue to meet in private when it
is discussing and voting on non-legislative matters. We believe
that the proceedings of the public meetings of the Council of
Ministers should be recorded and published for public consumption
(see paragraph 4.71).
European Commission
12.23. The Commission will have a clearer role
in justice and home affairs following the merger of the first
and third pillars. The Commission retains its near-monopoly of
legislative initiative (see paragraph 4.107).
12.24. The reduction in the size of the College
of Commissioners is an important change, and is intended to enable
the Commission to function more effectively. If this is not the
outcome, the European Council will be able to rethink its composition.
The provision that seats be allocated on a strict rotation basis
will mean that each Member State will not have a Commissioner
of its nationality in the College for five years out of every
15. Although Commissioners ought not to be regarded as national
representatives, the concern that a Member State without a Commissioner
is disadvantaged will undoubtedly be raised, whether or not it
is justified. The rotation rule will also be an arbitrary influence
on the College's membership, and will restrict the candidates
available for the posts of President of the Commission and High
Representative (see paragraph 4.108).
12.25. The Treaty states that the European Council
will need to take into account the elections to the European Parliament
in nominating its candidate for election by the European Parliament
to the post of Commission President. One consequence of this is
that the European Parliamentary parties are more likely to go
into European Parliamentary elections with proposed candidates
for Commission President as well as their parliamentary candidates
and programmes. The need for the European Council to take into
account the results of the parliamentary elections is not a bar
to the European Council coming to its own decision as to its preferred
candidate, but the Council will continue to be unlikely to nominate
a candidate who could not command the parliamentary majority necessary
for election. In that sense there is no fundamental change from
the current system which requires the Parliament's approval of
the European Council's nominee, but the practical consequences
of the Treaty provisions are as yet unclear (see paragraph 4.109).
12.26. The Treaty adds little to the formal powers
of the Commission President. A more effective Commission could
strengthen the Commission President's position in the balance
of power among the institutions. This should be seen in the context
of other factors affecting this balance (see paragraph 4.110).
European Parliament
12.27. The Lisbon Treaty considerably increases
the powers of the European Parliament—in particular because
of the extension of co-decision to a substantially larger range
of areas, including agriculture, fisheries, transport and structural
funds, in addition to the whole of the current "third pillar"
of justice and home affairs—to the extent that the European
Parliament will become co-legislator for most European laws. This
will have an effect on the balance of power between the institutions
(see paragraph 4.138).
12.28. The number of MEPs will be reduced from 785
to 751. (The number of UK MEPs will increase by one from 2009.)
Also, Members of the European Parliament will be described as
"representatives of the Union's citizens" instead of
"representatives of the peoples of the States brought together
in the Community", which has a symbolic significance for
some. The Treaty will not otherwise have a significant impact
on the composition or membership of the European Parliament (see
paragraph 4.139).
12.28. Oversight by the European Parliament and
Council of Ministers of the Commission's delegated legislation
powers will be reinforced (see paragraph 4.140).
European Court of Justice
12.29. The Treaty significantly expands the role
of the ECJ. The Treaty's most important impact on the ECJ is that
it will gain jurisdiction over the justice and home affairs area
as a result of the merger of the third pillar with the first.
The impact of the Court's jurisdiction on the UK will differ from
that on other Member States to the extent that the UK uses its
opt in/out from all justice and home affairs legislation (see
paragraph 4.175).
12.30. The ECJ's jurisdiction will not be extended
to the Common Foreign and Security Policy except in two clearly
defined areas. However, in exercising its oversight in a case
of conflict of competence involving foreign and security policy,
a decision that the competence lay elsewhere, bringing it into
the Court's jurisdiction, might lead to charges that the Court
was extending its role (see paragraph 4.176).
12.31. The new provision on actions for failure
to fulfil obligations is likely to place extra pressure on Member
States to implement directives. In addition, the Treaty provides
that action for failure to act will be able to be brought against
not just the European Parliament, the Council of Ministers or
the Commission, but also against the European Council, European
Central Bank or any other body or agency of the Union. The Treaty
also provides for a slight widening of the right of individuals
to challenge EU acts (see paragraph 4.177).
Overall impact on institutional balance
12.32. The Treaty's effects on the balance of
influence between the various EU institutions will only be observable
over time. The European Parliament gains significant extra influence,
which is seen by some as being at the expense of the Commission
and the Council. The addition of a full-time President of the
European Council introduces a rival pole of influence to the Commission
President. The position of High Representative is significantly
enhanced by the Treaty. But a smaller Commission may be a more
effective Commission. The ECJ's jurisdiction is significantly
extended. The opportunities for national parliaments to exercise
their role are enhanced (see paragraph 4.187).
Chapter 5: Fundamental Rights
Protection of fundamental rights in the existing
EU legal framework
12.33. Notwithstanding the Charter's current
lack of legally binding status, it is already an instrument of
some importance to EU institutions and bodies and the Member States
when taking action in the area of EU law. It is likely that, quite
apart from the Treaty of Lisbon, references would increasingly
be made to the Charter both before and by the ECJ (see paragraph
5.9).
Fundamental rights protection under the Treaty
of Lisbon
12.34. It is now clear that under the adapted
Charter a distinction exists between rights (which are directly
enforceable) and principles (which are only justiciable in the
circumstances identified in Article 52(5)). The introduction of
Article 52(5) recognises this and gives a clear indication as
to its effect. But there is obscurity about how and where the
distinction is to be drawn, and, in particular, a failure in the
Charter and its Explanations to spell out clearly which of the
Charter articles involve rights and which principles. The distinction
will in practice have to be worked out in future cases before
the ECJ (see paragraph 5.22).
12.35. Reference to national laws and practices
prevents Article 35 itself from being held to establish a minimum
right of access to medical treatment. Such a right could only
be established (if at all) by reference to other international
instruments and constitutional practices (see paragraph 5.28).
12.36. Article 28 of the Charter does not create
a free-standing right to strike: it is clear that within the Community
framework, the right to collective action, including the right
to strike, is already recognised as a general principle of law.
Furthermore, Article 28 clearly stipulates that workers and employers
have the right to collective bargaining "in accordance with
Union law and national laws and practices" and the ECJ, in
its December judgments, has indicated the significance of this
limitation (see paragraph 5.36).
12.37. To the extent that Article 13 (freedom
of the arts and sciences) is indeed an enforceable "right"
and not merely a guiding "principle" it is difficult
to assess whether it is a new right without further clarification
as to its content. The language of Article 13 is vague and one
could conclude from the Explanations that the right is limited
to freedom of artistic and scientific expression. If it extends
further than freedom of expression itself, then, given that the
rights in the Charter are derived from international obligations
binding on the Member States, Article 1 of Protocol 1 to the ECHR,
which provides a right to protection of property, Article 19(2)
of the ICCPR and Article 15 of the ICESCR will very probably be
important in ascertaining the scope of the right in practice (see
paragraph 5.47).
12.38. While there is not an exact symmetry between
the terms of Article 14 of the Charter and those of the three
instruments from which the Explanations indicate that this article
is principally derived, it seems clear from the language used
that the Charter right to education does not either create a new
right or extend by its terms the existing right. The various components
of the right to education set out in Article 14 derive from aspects
of the right to education expressly included in international
agreements which are legally binding on the United Kingdom (see
paragraph 5.53).
12.39. The origins of the right to a free placement
service are clearly set out in the Explanations. The language
of the Charter does not indicate that a new right has been created
here (see paragraph 5.55).
12.40. In summary, we have examined articles
of the Charter which are regarded as the most controversial. On
that basis, and taking account of the comments of the majority
of our witnesses, we are not persuaded by suggestions that the
Charter itself creates or contains new rights which differ from
those in the underlying national and international instruments
and documents from which it indicates that its provisions are
derived. The scope of the Charter rights, as is the case with
the scope of all rights, will ultimately be a matter for the courts.
However, the broad rights and the language in which they are expressed
in the Charter reflect existing national, EU and international
obligations (see paragraph 5.56).
12.41. It is clear from Article 51(1) of the
Charter that it does not apply to situations involving purely
domestic law. For the Charter to be directly relevant, there must
be a link to Union law. It remains of course quite conceivable
that national courts applying domestic law might, in some cases,
find an analogy or some inspiration in EU law, but that would
not be an unusual process (paragraph 5.60).
The Charter's new status
12.42. It may appear somewhat anomalous to give
legally binding status to an instrument which self-avowedly records
rights deriving from other sources. However, whatever the legal
effect of this change, declaring the Charter to be legally binding
will send a clear message to all institutions and citizens within
the Union about the EU's commitment to uphold the rights set out
in the Charter (see paragraph 5.68).
12.43. Leaving aside the UK/Polish Protocol,
the effect of declaring the Charter to have the same legal value
as the Treaties is likely to preclude any argument that the rights
and principles "reaffirmed" do not already exist as
fundamental rights and principles in the area of EU law. We doubt
whether this represents any great change from the position as
it is and would anyway prove to be, having regard to current and
emerging ECJ jurisprudence. Declaring the Charter to be legally
binding will of course be likely to encourage and probably to
speed the development of such jurisprudence (see paragraph 5.72).
12.44. Since we consider that the Charter reaffirms
rights and principles which already substantially exist, albeit
in many cases only at an international level, we expect the effect
of the change in the Charter's status to be limited. Courts at
both national and EU level will continue to refer to international
treaty obligations to interpret the scope of fundamental rights
and identify those fundamental principles which are general principles
of EU law, whether or not the Charter becomes legally binding.
We expect that reference to the Charter would, if the Treaty of
Lisbon enters into force, be likely to become more frequent, as
the Charter's legally binding force would make it more straightforward
for individuals to enforce rights which they are guaranteed under
international law (see paragraph 5.80).
12.45. Accession of the Union to the ECHR would
greatly reduce the risk of inconsistencies, and provide a means
of redress if they did occur, by making the Union and its institutions
subject to the jurisdiction of the European Court of Human Rights.
(see paragraph 5.83).
The UK and Polish Protocol
12.46. The Protocol is not an opt-out from the
Charter. The Charter will apply in the UK, even if its interpretation
may be affected by the terms of the Protocol (see paragraph 5.87).
12.47. We see the broad legal effect of the Protocol
as follows:
(a) Article 1(1) reflects the fact that the
Charter does not create new rights—if a national law is
inconsistent with a provision of the Charter then it is also inconsistent
with an EU or international norm. This also reflects Article 51
of the Charter.
(b) Article 1(2) is in line with the frequent
references in the Title IV rights to national laws and practices
and also with Article 52(5) of the Charter which sets out the
approach which should be taken to "principles" in the
Charter. But it also brings some welcome clarity to Title IV.
Article 52(5) read in the light of the Explanations could have
led to a conclusion that some Title IV "rights", such
as Article 33, represent enforceable rights which could be relied
upon directly before British courts. The Protocol appears to put
beyond doubt that this would not be possible. In these circumstances
it must be regarded as very unlikely that the ECJ would, in interpreting
the Charter, hold that Title IV involved justiciable rights in
relation to any Member State, but Article 1 paragraph 2 of the
Protocol would in our view preclude it making such a ruling in
relation to the United Kingdom. However, Title IV reflects principles
which could, we think, still bear on the interpretation, or even
the validity, of legislative and executive acts under Union law,
as provided by the last sentence of Charter Article 52(5), and
so indirectly affect individual rights. We have also noted that,
to the extent that the Union legislates in areas which are within
its competence quite apart from the Charter, national legislators
and courts will anyway be subject to that legislation.
(c) Article 2 reflects a common-sense interpretation
of those articles in the Charter which refer to national laws
and practices and of Article 52(6) of the Charter, which stipulates
that "full account" is to be taken of national laws
and practices where there is a reference to them. But it is a
useful clarification of what might otherwise have been open to
argument. Again, however, we think it unlikely that Article 2
of the Protocol precludes the use in relation to the United Kingdom
and Poland of any relevant Charter articles in the way contemplated
by the last sentence of Charter Article 52(5), when interpreting
or ruling on the validity of legislative or executive acts taking
place under Union law on the basis of a Union competence not connected
with the Charter.
(d) The Protocol should not lead to a different
application of the Charter in the United Kingdom and Poland when
compared with the rest of the Member States. But to the extent
that the Explanations leave some ambiguity as to the scope and
interpretation of the Charter rights, and as to the justiciability
of the Title IV rights especially, the Protocol provides helpful
clarification. We would not be surprised if, in considering the
scope of the Charter in future, EU and domestic courts had regard
to the terms of this Protocol in order to assist interpretation
of the Charter's horizontal articles, even in cases where the
United Kingdom and Poland were not involved. Indeed, given that,
despite media reports, it is an interpretative Protocol rather
than an opt-out, it is perhaps a matter of regret, and even a
source of potential confusion, that it was not expressed to apply
to all Member States (see paragraph 5.103).
12.48. Ultimately, the interpretation of the
Protocol is a matter for the courts and, in both the national
and EU contexts, we do not think it is possible at this stage
to predict precisely what courts would decide if faced with the
task of interpreting the Protocol's language. Clearly, European
and domestic courts could not ignore the text of the Protocol
but it is likely that the ECJ will develop a tendency to refer
to Charter rights and their origins, as well as new Article 6(3)
TEU on the general principles of EU law, and would develop its
fundamental rights jurisprudence on that basis (see paragraph
5.105).
12.49. One effect of the Protocol will be to
discourage the ECJ from basing its analysis of fundamental rights
solely on the Charter. British courts are therefore generally
unlikely to be faced with the problem of deciding, in the light
of the Protocol, how they should treat case-law of the ECJ interpreting
EU law on the basis of the Charter alone (see paragraph 5.109).
12.50. The Protocol may have the effect of reassuring
those who have concerns about giving the Charter legally binding
status (see paragraph 5.110).
12.51. British courts already refer to the Charter
in identifying the scope of fundamental rights. Nothing in the
Protocol will prevent them from continuing to do so in future,
drawing on the Charter in the same way as they draw on many international
human rights instruments, when interpreting the content of fundamental
rights (see paragraph 5.111).
Accession to ECHR
12.52. We have in the past identified strong
reasons for supporting EU accession to the ECHR. The
Strasbourg Court would then be recognised as the final authority
in the field of human rights. This would assist to avoid any risk
of conflict between European Union law and the European Convention
on Human Rights as interpreted in Strasbourg, by placing fundamental
rights on a single consistent foundation throughout the EU. We
continue to be of the view that the Government should encourage
Member States to pave the way for accession by the Union to the
ECHR at the earliest opportunity (see paragraph 5.118).
Chapter 6: Area of Freedom, Security and Justice
The Pillar Structure
12.53. The merging of the First and Third Pillars
will establish a more coherent and more easily understood and
applied scheme of EU competence in the areas covered. The changes
in legislative procedure will at the same time facilitate the
passing of EU legislation by removing the need for unanimity.
Whatever view may be taken about the merits of extending QMV,
there will, in respect of any EU legislation that is passed, be
increased scrutiny and accountability through the European Parliament
and an extended role for the ECJ (see paragraph 6.19).
12.54. The merging of the Pillars will have the
effect of bringing criminal law and policing within the new Title
V TFEU framework. This is clearly a significant change (see paragraph
6.20).
Changes to legislative procedure
12.55. The move to QMV in almost all areas of
FSJ is a significant change. Notwithstanding the already existing
spirit of compromise in the JHA Council, the move is likely to
speed up decision-making in the Council and prevent legislation
being adopted at the level of "lowest common denominator".
It is likely that one effect of the change will be an increase
in Union activity and the volume of legislation agreed in this
area (see paragraph 6.27).
12.56. The change will remove Member States'
vetoes in respect of criminal law and policing and legal migration.
This means that it will be possible for the UK, in some cases,
to be bound by a measure in the area of criminal law or policing
against its will, although the likelihood of this happening will
be greatly reduced by the existence of a general right not to
opt in for the UK. The corollary of this is that one Member State,
or a small group, will no longer be able to block measures supported
by the UK, subject to the possibility of using the emergency brake
(see paragraph 6.28).
12.57. The involvement of the European Parliament
in new areas of FSJ is likely to impact on the adoption of measures
in this field. We would expect the European Parliament to focus
on protection of citizens' rights and to take an active role in
shaping measures in the area of criminal law and policing (see
paragraph 6.35).
12.58. We welcome the steps being taken by the
European Parliament to address the issues raised by first reading
deals. We stress the need for transparency particularly in an
area of such considerable interest to citizens as FSJ (see paragraph
6.36).
12.59. The retention of unanimity in matters
of family law will provide an important safeguard to ensure that
family law measures agreed at EU level do not negatively impact
on UK law. However, it is not always clear what constitutes family
law and this is likely to be a matter for some debate. We expect
that an assessment would have to be made in each case. This is
likely to be more important for other Member States as the UK
will be able to choose whether to opt in to any civil or family
law measure in any case (see paragraph 6.42).
12.60. The passerelle provision in Article
81(3) TFEU is stronger than the existing passerelle in
Article 67(2) TEC in providing that national parliaments can directly
veto a proposal to make use of it. As discussed in Chapter 3,
thought will have to be given as to how this right of veto will
be implemented in the UK. A further protection is provided by
the European Union (Amendment) Bill as the approval of both Houses
is required before a Minister can vote in favour of the use of
the passerelle in the Council of Ministers (see paragraph
6.43).
The emergency brake and enhanced cooperation
12.61. The introduction of an emergency brake
is a noteworthy development which is of particular importance
to Member States which do not have the right not to opt in to
FSJ measures. Although it is unlikely to be frequently used in
practice, it is likely to impact on negotiations in the Council
through the possibility of its use (see paragraph 6.53).
12.62. We see no reason why the UK should not
be able to use the emergency brake but in practice the UK's right
not to opt in to individual measures is likely to diminish the
occasions where use of the emergency brake will even arise for
consideration in the United Kingdom (see paragraph 6.54).
12.63. The emergency brake is provided for in
the Treaty itself and has the same legal value as any other Treaty
provision. We consider the prospect of a challenge before the
ECJ to a Member State's use of the emergency brake to be remote
(see paragraph 6.55).
12.64. The Treaty of Lisbon facilitates enhanced
cooperation in relation to judicial cooperation in criminal matters
within Articles 82(2) and 83, the creation of a European Public
Prosecutor (Article 86) and police cooperation within Article
87(3). It is not clear whether this will have a significant impact
in practice. The procedure has not been used to date despite circumstances
arising in which it may have been appropriate. However, there
are diverging views on the extent of the need for cooperation
in this area across the Member States and the negotiation of this
flexible procedure suggests that some, at least, anticipate having
recourse to it (see paragraph 6.61).
12.65. Enhanced cooperation may lead to a patchwork
of legislation but is a necessary element of flexibility in a
Union of 27 Member States (see paragraph 6.62).
12.66. The Union would have external competence
derived from a measure which had been adopted internally under
the enhanced cooperation provisions but this would only extend
to those Member States party to the enhanced cooperation (see
paragraph 6.66).
Jurisdiction of the European Court of Justice
12.67. The increase in the jurisdiction of the
ECJ is a significant development. It replaces the complex existing
regime of jurisdiction with a clear and uniform rule and is likely
to increase consistency and legal certainty in the application
of EU law. If the Lisbon Treaty enters into force, the ECJ will
have jurisdiction over all new Title V TFEU measures (see paragraph
6.88).
12.68. For the first time, Member States will
be able to be taken to the Court for failure to implement properly
EU legislation in the area of criminal law and policing. This
is likely to encourage them to implement more effectively measures
agreed in this area. Ultimately, the question of the interpretation
of an EU instrument will be a matter for the Court and its rulings
will be binding on the United Kingdom. As a result it is important
that any special features of UK law in this area be taken into
account by the Court and in this regard, the right of Member States
to intervene in any action before the Court is significant (see
paragraph 6.89).
12.69. The ability of the ECJ to handle its existing
workload, and in particular the time taken to dispose of preliminary
references by national courts, is already a matter of concern.
The CILFIT criteria established by the ECJ give national courts
and the ECJ no real scope for declining to make or hear a reference
in any case open to any doubt (see paragraph 6.94).
12.70. The existing preliminary reference jurisdiction
under Title IV and Title VI has not given rise to a large volume
of cases. But the Treaty of Lisbon would open the way, even though
probably only over a period, for an increase in the volume of
preliminary references which could prove detrimental to both European
and national legal systems and to individual litigants. The new
accelerated procedure for cases where an individual is in custody
represents only a limited amelioration in one particular sphere.
This may not be sufficient to resolve the problems that arise
in jurisdictions with limitations regarding the time spent in
custody before trial or limitation periods for the conclusion
of criminal proceedings. The question of delay is a general one
relevant to all criminal and civil proceedings in the area of
FSJ. Member States are bound under Article 6 of the ECHR to ensure
that both criminal and civil proceedings are determined fairly
and within a reasonable time (see paragraph 6.95).
12.71. The expansion of the ECJ's jurisdiction
over criminal and civil matters is over time bound to be matched
by an expansion in the range of the legal issues coming before
it. The ECJ to date has had limited experience of ordinary criminal
and civil proceedings and it has not been necessary for Member
States to nominate judges with any such experience (paragraph
6.99).
12.72. The Treaty of Lisbon will continue to
provide for one judge per Member State (which in practice means
nominated as a candidate by that Member State) and for any judge
to be "appointed by common accord of the governments of the
Member States" for a six-year, renewable period. The creation
of the new panel under Article 255 "to give an opinion on
candidates' suitability" is a welcome step, but it is unclear
how far, if at all, such a panel will be able to influence Member
States to nominate for consideration candidates having particular
expertise or experience which it would benefit the ECJ to have
(paragraph 6.100).
12.73. Further, the unchanged six-year, renewable
tenure appears in principle undesirable. The manner and tenure
of appointments and the general working of the ECJ are all matters
which may require revisiting (paragraph 6.101).
12.74. It is unlikely that the change to the
standing rules will itself result in a flood of asylum cases.
New Article 263 TFEU allows challenges to the legality of EU legislation,
but challenges in domestic asylum cases tend to relate to how
asylum laws are interpreted or applied in practice. Challenges
on these grounds would come before the ECJ in the form of preliminary
references under new Article 267 and not under new Article 263.
In any event, Article 263 still requires that an individual show
that an act of an EU institution or body is of "direct concern"
and this is likely to remain a significant limitation in practice
(see paragraph 6.103).
Passerelles in FSJ
12.75. Given that all the FSJ passerelles
require unanimity in the Council or the European Council,
there is no possibility that changes will be made without the
consent of the United Kingdom government (see paragraph 6.106).
National parliaments and devolved administrations
12.76. There is a need to ensure that the Scottish
administration is fully engaged with relevant UK Government departments
and with the UK Parliament on matters of civil and criminal justice
and policing at EU level (see paragraph 6.111).
Borders, asylum, immigration and visas
12.77. There have been important changes to the
provisions on border controls, asylum and immigration. In many
cases, the changes appear to reflect existing practice, for example,
the new express power to conclude readmission agreements (see
paragraph 6.129).
12.78. The use to which new Article 77(3) can
be put is not clear. To the extent that it provides a legal basis
for measures concerning identity cards, this could have important
implications for States which do not have identity cards. However,
Article 77(3) is subject to unanimity which provides protection
for Member States and the UK also has the right to choose whether
to opt in (see paragraph 6.130).
Civil justice
12.79. The power under the current Article 65
to adopt measures of judicial cooperation in civil matters is
itself potentially broad, since the list of areas of potential
action given is non-exclusive. Article 81 contains a more extensive
list of areas of potential action. However, these in practice
are areas in which cooperation has already been undertaken under
the current Article, and the list given is exhaustive (see paragraph
6.140).
12.80. In lieu of the present absolute requirement
that measures taken be necessary for the proper functioning of
the internal market, Article 81 provides that measures may be
taken "particularly when" so necessary. But, under both
existing Article 65 and new Article 81, such measures are only
permissible in civil measures "having cross-border implications",
itself a significant limitation. Both the existing and the new
articles are capable of giving rise to differences of view regarding
the scope of their application in particular situations, and we
doubt whether this is much affected by the changes in Article
81. This is an area where the new powers of national parliaments
to police the subsidiarity principle may be particularly important
(see paragraph 6.141).
Police and judicial cooperation in criminal matters
12.81. The new Article 82(1) confers a more specifically
defined power to adopt measures of judicial cooperation in criminal
matters in a more extensive but exhaustive list of areas. In particular,
the new Article makes specific reference for the first time to
measures to settle as well as prevent conflicts of jurisdiction
and to measures to support the training of national judiciaries
and their staff. The new Article replaces an existing power under
Article 31(1)(a) to (d) which is of uncertain and controversial
width, not least because the list of areas of potential action
given is both vague and non-exclusive. Overall, the clarification
and definition of power in this field by the Lisbon Treaty is
unlikely to involve any significant expansion of jurisdiction,
although it may encourage a more active role for the EU in the
listed areas (see paragraph 6.152).
12.82. The extent of the Union's existing competence
in the area of criminal procedure under the existing Article 31
with its non-exhaustive list of areas of potential action is one
of the matters of uncertainty and controversy already mentioned.
The new Article 82(2) contains a specific and exhaustive list
of three areas of potential action (concerning evidence, procedure
and victims' rights). Other areas can only be added by unanimous
Council decision after obtaining the European Parliament's consent
(see paragraph 6.160).
12.83. Action in any of these areas is for the
first time expressly limited to the extent necessary to facilitate
mutual recognition of judgments and decisions and police cooperation
in criminal matters "having a cross-border dimension".
The three specific areas listed are all areas where in practice
the Union has been seeking in recent years to promote measures
(see paragraph 6.161).
12.84. The new Article 83(1) contains an exhaustive
list of areas of particularly serious crime with a cross-border
dimension, which is on its face more extensive than the existing
non-exhaustive list of three areas (organised crime, terrorism
and illicit drug trafficking) in which Article 31(1)(e) currently
gives the Union power to adopt minimum rules concerning the definition
of criminal offences and penalties. However, the new exhaustive
list reflects areas in which the Union has in practice already
adopted measures under the current Article with its non-exhaustive
list and may therefore be regarded as simply recognising the status
quo. While the Treaty of Lisbon clarifies and defines the
Union's power to harmonise criminal offences and sanctions in
a manner which will preclude further expansion, there is room
for argument and uncertainty about the scope of some of the offences
now for the first time specifically mentioned, e.g. sexual exploitation,
corruption and computer crime (see paragraph 6.175).
12.85. Different views were expressed to us on
the question whether the new Article 83(2) in Title V supersedes
the competence to establish minimum rules relating to criminal
offences recognised, to date only in environmental contexts, by
the Court in Cases C-176/03 and C-440/05. The answer is important
because it is only in respect of measures proposed under Title
V that the United Kingdom has a right not to opt in (see paragraph
6.187).
12.86. Our view is that Article 83(2) constitutes
a lex specialis, which is framed and apt to subsume and
supersede any competence which would otherwise exist under articles
outside Title V. Its language is the language of conferral of
competence ("directives may establish minimum rules …"),
not the language of procedure. Further, since the competence recognised
in Cases C-176/03 and C-440/05 did not extend to the power to
set minimum sanctions, Article 83(2) must in that respect go beyond
procedure, and it seems implausible to suggest that the Treaty
drafters intended there to be two overlapping articles conferring
differing degrees of criminal competence, according to which was
chosen as the base. The emergency brake introduced by Article
83(3) with express reference to Article 83(2) also seems clearly
designed to apply to the exercise of criminal competence such
as that recognised in Cases C-176/03 and C-440/05. The natural
meaning of the language is, in short, that the competence recognised
in those cases is being subsumed within Title V. On that basis
the UK's right not to opt in is preserved (see paragraph 6.188).
12.87. In the last analysis, even if we were
to be held wrong in the views expressed about the UK's opt-in
in the previous paragraphs, it is clear from the language of Article
83(3) that the United Kingdom would retain the benefit of an emergency
brake, in the event that a draft directive were promoted adopting
minimum rules with regard to the definition of criminal offences
and sanctions outside Title V in terms the UK considered would
affect fundamental aspects of its criminal justice system (see
paragraph 6.189).
12.88. There are already moves to reform Eurojust
and to grant it a greater role in enhancing cooperation between
national authorities. New Article 85 may facilitate more ambitious
developments in the longer term (see paragraph 6.196).
12.89. Proposals for a European Public Prosecutor
are not new, but this is the first time the structure for implementing
this idea has been included in the Treaties. The inclusion of
Article 86 in the TFEU makes it more likely that this post will
one day be created. Any proposal to establish an EPP or subsequently
extend its scope would require unanimity, and the UK's opt-in
would apply to such a measure. In the absence of unanimity, a
group of Member States could proceed by enhanced cooperation (see
paragraph 6.209).
12.90. If the UK were not to participate in the
creation of the EPP, then it should not be affected by it. Although
UK citizens living abroad could be subject to the EPP's jurisdiction,
the EPP could have no jurisdiction in the UK itself. Any obligation
on Member States to recognise European Arrest Warrants issued
by the EPP would have to be provided for in EU legislation under
Title V, and the UK's right to opt in would apply. If it did not
opt in, then it would not be obliged to recognise European Arrest
Warrants issued by the EPP (see paragraph 6.210).
12.91. The inclusion of an express reference
to the principle of mutual recognition in the criminal field by
the Treaty of Lisbon lends some support to the view that cooperation
is, wherever possible, to be preferred to harmonisation. But the
new Article 82(1) includes within mutual recognition the approximation
of laws and regulations under Articles 82(2) and 83. In reality
and in the light of the Union's activity to date in the criminal
field, we doubt whether the introduction of general and unexplained
references to mutual recognition will prove to have much significance
(see paragraph 6.218).
12.92. The new provisions on police cooperation
in Article 87 TFEU reflect the existing provisions in Article
30 TEU (see paragraph 6.221).
12.93. The reason for urgently continuing the
current negotiations on the proposed Decision on Europol is, we
assume, to prevent the European Parliament having powers of co-decision
in relation to the constitution and functions of Europol as an
agency. We regard it as unfortunate that the Member States should
be attempting to override the effect of a provision of a Treaty
they have just signed (see paragraph 6.226).
Issues of "cross-border"
12.94. Attempts by the Commission to use the
existing Treaty competence in respect of cross-border measures
to affect purely internal procedures have been rejected by the
Member States. It seems clear that there is no support for an
expansive construction of "cross-border" in EU legislation
at present. There is no reason why the Lisbon Treaty should add
any impetus to such an expansion (see paragraph 6.233).
12.95. There are, however, difficulties in defining
"cross-border". As we highlighted in our Report on the
European Small Claims Procedure, this will be a matter to be resolved
on a case-by-case basis. We reiterate our conclusion that any
definition of "cross-border" must be suited to the aim
and requirements of the particular proposal. In the event of a
dispute, the ECJ will be the final arbiter, but this is another
area in which the new powers of national parliaments to police
the subsidiarity principle may be particularly important (see
paragraph 6.234).
National security and internal security
12.96. It may be significant that the Treaties
for the first time make clear that national security is a matter
solely for the Member States (see paragraph 6.242).
12.97. It is unfortunate that a number of provisions
of the Treaties refer to "internal security" when the
meaning of that expression is unclear (see paragraph 6.243).
The UK opt-ins
12.98. The opt-ins in the amended FSJ and Schengen
Protocols will together apply to the whole area of FSJ, including
those matters which currently fall within the Third Pillar and
require unanimity. The right given to the UK to choose whether
or not to opt in is, in certain respects, more flexible than the
existing opt-in arrangements (see paragraph 6.257).
12.99. The extension of the FSJ Protocol to the
entire area of freedom, security and justice will allow the UK
to decide, on an individual basis, whether to opt in to any proposed
measure in the field. The inclusion of Article 4a confirming that
the opt-in provisions will apply also to amending measures is
a welcome clarification (see paragraph 6.261).
12.100.The amended FSJ Protocol differs significantly
from its predecessor insofar as it permits the other Member States
to eject the United Kingdom from an existing measure where it
declines to participate in an amending measure. However, the right
to eject the UK is subject to an important restriction: the UK's
non-participation in the amending measure must render the system
"inoperable". This is intended to set a high threshold
and we would expect that some form of technical inoperability
would, in practice, be required. We expect such cases to be rare
(see paragraph 6.267).
12.101.The test for requiring the UK to bear costs
of non-participation is a strict one: costs must be "necessarily
and unavoidably" incurred as a "direct" consequence
of the cessation of UK participation (see paragraph 6.269).
12.102.The extension of the opt-in arrangements puts
the UK (and Ireland) in a special position. For those who support
full UK participation in EU FSJ measures, this is likely to be
viewed as an undesirable development. Those who have fears regarding
the effect of a move to QMV in this area on national sovereignty,
on the other hand, can see the opt-in as providing some reassurance.
An extended right not to opt in for the UK is different from a
veto under unanimity and, where the UK chooses not to opt in,
other Member States will be able to adopt measures without UK
participation. This may change the negotiating dynamic in the
Council (see paragraph 6.274).
12.103.At present there is no systematic parliamentary
scrutiny of UK decisions on whether or not to opt in to particular
FSJ measures. The House of Commons European Scrutiny Committee
has recently drawn attention to this, in the context of the Lisbon
Treaty. We do so too, and we intend to give the matter further
consideration (see paragraph 6.275).
12.104.Like the FSJ Protocol, the Schengen Protocol
increases the UK's flexibility to choose whether to participate
in Schengen-related measures. It is clear that the UK will no
longer be bound, as it is at present, to take part in Schengen-building
measures where it participates in the underlying acquis.
However, nothing in the Lisbon Treaty changes the position as
regards the UK's right to opt in to Schengen-building measures
where it has not opted in to the underlying acquis. In
such cases, the Council may continue to refuse the UK's request
to participate (see paragraph 6.279).
12.105.Article 5(3) of the Schengen Protocol is an
important new addition as it provides for a mechanism whereby
the UK can be ejected from participation in parts of the underlying
Schengen acquis which it has accepted if it declines to
participate in a Schengen-building measure. This is the understandable
quid pro quo of the UK's new freedom to choose not to participate
in such measures. Again, we expect such cases to be rare in practice
(see paragraph 6.282).
12.106.In order for costs to be imposed on the UK
as a result of the cessation of its participation in a Schengen-building
measure, such costs must be "direct financial consequences"
which are "necessarily and unavoidably incurred". This
is a strict test (see paragraph 6.283).
12.107.Under the FSJ and Schengen Protocols the UK
cannot be forced to participate in an FSJ measure against its
will. If the UK takes the view that a proposed measure has features
which cannot be accommodated within a Common Law system or are
otherwise unsuitable for application to the UK, the UK is free
both to refuse to opt in and, if it wishes, to play no further
part at all in relation to the proposal. However, as outlined
above, a decision by the UK not to participate in an amending
measure or a Schengen-building measure may have particular consequences
for the UK. In a case where the UK is threatened with ejection
from an existing measure, the Government will have to make a judgment
as to which course of action best serves the UK interest. As we
have already said, we do not expect such cases to arise frequently
(see paragraph 6.287).
12.108.The apparent success of the UK approach to
the Rome I negotiations should not be regarded as a one-off or
non-repeatable occurrence. It seems likely that there will be
further cases where the other Member States have a clear interest
in securing UK involvement and will be prepared and willing for
the UK to take an active part in negotiations into which the UK
has for the time being not opted (see paragraph 6.292).
12.109.The suggestion that the UK, having opted in
to a proposal, could argue that its opt-in did not extend to fundamental
amendments of the proposal during negotiations raises an interesting
legal question. But the question is unlikely to arise since the
Government appear to accept that this would not be possible. In
some areas of criminal law and policing, a dramatic change during
negotiations may permit the UK to use the emergency brake to halt
a measure's progress. In other cases, the UK may end up bound
by a measure with which it does not fully agree; this is the nature
of QMV. The risk of this situation arising will presumably be
considered before the UK electes to opt in (see paragraph 6.296).
12.110.It is important to maintain a proper balance
between liberty and security. We share witnesses' concerns that
a pick-and-choose approach by the UK might result in the UK participating
in the bulk of coercive security-based measures while eschewing
rights-based measures and urge the Government to take a balanced
approach to participation in this area (see paragraph 6.305).
12.111.We note the possibility that the Commission
may propose coercive and rights-based measures in one instrument
thus requiring the UK, if it wishes to participate in the coercive
measure, to participate in the rights-based measures as well.
Packaging measures in this way is unlikely to be possible in most
cases but it may be feasible in some areas and would require the
United Kingdom to take a view on whether this was desirable and
acceptable (see paragraph 6.306).
12.112.Decisions by the UK to opt in to measures
in the areas of civil and criminal law and policing will impact
in a special way on devolved administrations, but particularly
Scotland. The extension of the opt-in under the Lisbon Treaty
to cover criminal law and policing is significant. The need for
cooperation between administrations is clear. We expect the Government
to consult closely with the Scottish Executive when deciding whether
to opt in to measures in these areas, and we understand that this
already occurs (see paragraph 6.308).
12.113.If concerns regarding a possible West Lothian
question arising in the EU parliamentary context develop, they
will no doubt receive further consideration by Member States and
the European Parliament itself. If the question is seen as raising
a real problem here, it will also exist in cases of enhanced cooperation.
But we do not consider that the UK should or will be likely to
be influenced by such concerns in its decision whether to opt
in (see paragraph 6.311).
Transitional arrangements
12.114.We would expect the Commission to introduce
measures to convert some of the more significant Title VI instruments,
such as the European Arrest Warrant, soon after the Treaty of
Lisbon enters into force. We would not be surprised if the Commission
adopted a "repeal and replace" approach in order to
ensure legal certainty (see paragraph 6.323).
12.115.It seems unlikely that the Commission will
seek to convert all Title VI measures. We urge the Government
to liaise closely with the Commission to ensure that measures
which require redrafting or renegotiating are the subject of amendment
measures before the end of the transitional period (see paragraph
6.324).
12.116.Any proposals brought forward to convert existing
Third Pillar instruments into First Pillar measures would have
to be made under Title V of the amended TFEU. Upon adoption, such
proposals would come within the ECJ's jurisdiction immediately
and would not be subject to a five-year transitional period. The
United Kingdom would be able to use its opt-ins and could, if
it wished, choose not to participate in an amendment or a "repeal
and replace" measure (see paragraph 6.325).
12.117.The question of what constitutes an "amendment"
under the Transitional Protocol proved controversial among our
witnesses. But in our view it will be clear which proposed measures
are "amendments" and Article 10(2) is unambiguous: any
amendment, however small, will bring the amended act under the
ECJ's general jurisdiction and within the Commission's enforcement
powers (see paragraph 6.330).
12.118.We do not share the Commission's interpretation
of Article 9 of the Protocol. Article 9 says that the acts' legal
effects are "preserved until those acts are repealed, annulled
or amended". The obvious conclusion is that when those acts
are repealed, annulled or amended, their legal effects are no
longer preserved. It is difficult to understand how Article 9
can be read as meaning that only the amended parts of the act
will have direct effect. If that were the meaning of Article 9
then the qualification in that article regarding repeal, annulment
or amendment would be obsolete: insofar as amendments are introduced
on a new Title V TFEU legal base they will be capable of having
direct effect by default (see paragraph 6.331).
12.119.In practice, both of these issues will be
circumvented if the Commission adopts a "repeal and replace"
approach (see paragraph 6.332).
12.120.The Transitional Protocol leaves unclear from
what date an amendment has the effect described in the Protocol.
This ambiguity may be a reason for the Commission to prefer a
"repeal and replace" approach whenever an amendment
is contemplated (see paragraph 6.334).
12.121.The possibility under Article 10(4) of the
Transitional Protocol of exercising a block opt-out protects the
UK's right to choose whether to participate in new measures in
the FSJ field. However, we expect that the Government will be
fully engaged with the Commission and other Member States to ensure
that measures which might prompt them to use the block opt-out
are amended before the expiry of the transitional period. Article
10(4) provides an emergency exit for the UK where the amendment
of a controversial measure has not proved possible within the
available time (see paragraph 6.339).
12.122.Provided that the Government undertake the
task of sifting through existing Title VI measures in good time,
they will be less likely to find themselves in the position of
having to use the block opt-out and the question of costs will
not arise. If the block opt-out is used, then, as with the costs
provision in the FSJ and Schengen Protocols, we consider that
the test for imposing costs is set at a high level (see paragraph
6.342).
12.123.The right under Article 10(5) of the Transitional
Protocol for the UK to opt back in to measures will ensure that,
if the UK at the end of the five-year transitional period uses
its block opt-out in relation to those Title VI measures which
are not by then amended or re-enacted, the UK may immediately
thereafter choose to opt back in to particular Title VI measures
covered by that block exemption (see paragraph 6.344).
12.124.But the Treaty does not leave open the option
of retaining the status quo in respect of Title VI measures
after the transitional period. At the end of that period at the
latest, the UK must either accept the Commission's enforcement
powers and the ECJ's jurisdiction in respect of such measures
or exercise its block opt-out, again accepting that if it chooses
to opt back in to any particular existing measure, the Commission's
enforcement powers and the ECJ's jurisdiction will apply (see
paragraph 6.345).
Civil Protection
12.125.The Solidarity Clause does not seem to us
to have any legal significance; it does not enable Member States
to do anything which they could not do without it. It does however
serve to emphasise the political will of the Member States to
stand together in the face of adversity (see paragraph 6.349).
Chapter 7: EU Foreign, Defence and Development
Policies
External action of the EU
12.126.The changes to the structure of the Treaties
serve to consolidate, streamline and clarify the provisions on
the EU's external relations. They do not change the overall objectives
of the EU's external policies (see paragraph 7.16).
The Common Foreign and Security Policy (CFSP)
12.127.The Treaty will not change the scope of the
CFSP or transfer any additional powers to the EU in this area.
The new provisions in the Treaty could lead to a more active role
for the EU in the area of CFSP, but much will depend on the degree
of consensus among Member States regarding such a role (see paragraph
7.20).
12.128.The new procedure allows for decisions defining
an EU action or position on a proposal from the High Representative
to be adopted by qualified majority voting. However, the European
Council must unanimously agree to request a proposal for a decision
in a specific policy area (see paragraph 7.28).
12.129.The evidence is that the Lisbon Treaty has
preserved the independence of the UK's foreign and defence policy,
subject to the constraints arising when unanimous agreement does
prove possible. The fundamental principles of the CFSP will not
change under the new Treaties. In particular, the principle of
unanimity and the search for consensus in decision-making will
continue to apply to the CFSP (see paragraph 7.36).
12.130.We conclude that the Lisbon Treaty will provide
for safeguards against encroachment of other areas of EU activities
into the area of CFSP. This should protect the intergovernmental
character of the CFSP. The Lisbon Treaty will also strengthen
the system for upholding and protecting the rights of persons
who are subject to restrictive measures adopted under the CFSP
(paragraph 7.41).
12.131.The new data protection provision in the CFSP
field is significant because of its possible repercussion on the
area of EU home affairs. Article 39 TEU is conspicuously different
from Article 16 TFEU as a Treaty basis for data protection measures
because it does not govern the activities of the EU institutions
and bodies, and excludes oversight by the European Parliament
and the Court of Justice. Clarity is needed as to the scope and
purpose of Article 39 (paragraph 7.50).
Development Cooperation and Humanitarian Aid
12.132.The Lisbon Treaty reforms in the area of development
policy will make clear that the primary objective of development
cooperation is to reduce and eliminate poverty. This is in line
with current UK policy and legislation. The Lisbon Treaty will
have implications for the internal organisation of the Commission
and its Directorates-General in relation to development policy.
The creation of a specific legal basis for the EU's existing humanitarian
aid activities aims to improve the efficiency of decision-making
in this area and ensure that the EU's humanitarian aid respects
international humanitarian principles (paragraph 7.58).
Consular protection
12.133.The Lisbon Treaty will allow the EU to adopt
directives to facilitate the implementation of the Treaty provisions
on consular protection. However, the requirement for Member States'
missions in third countries to assist each others' nationals on
the same conditions as they would their own nationals already
exists under the current Treaties, and this is not, therefore,
a significant change (see paragraph 7.60).
The High Representative
12.134.The creation of a High Representative for
Foreign Affairs and Security Policy/Vice-President of the Commission
represents an important institutional innovation of the Lisbon
Treaty, which could have a significant impact on the way the EU
formulates and implements its external policies. In light of the
evidence, the post could bring additional coherence and effectiveness
to the EU's external action, but much will depend on the way the
High Representative exercises his powers, as well as his working
relationships with the Member States, the President of the European
Council, and the President of the Commission (see paragraph 7.75).
12.135.The post brings together three functions that
exist under the current Treaties (the Council Presidency, the
Commissioner for External Relations and the High Representative).
The chairing of the Foreign Affairs Council by the High Representative
is a key innovation which will give the incumbent a further degree
of influence over decision-making in the area of CFSP. This could
lead to a change in the way the Member States interact with the
High Representative and contribute to EU policy-making in this
area (see paragraph 7.76).
12.136.It is clear that the Treaty changes nothing
in the UK's right to retain its seat on the UN Security Council,
its role as a permanent member, its right to speak, and its individual
vote and veto. Where the EU has a unanimous common position, the
UK will be required to request that the High Representative present
that position; but that possibility does not displace the UK's
right to speak and vote (see paragraph 7.82).
The European External Action Service
12.137.The creation of an External Action Service
is an important institutional innovation of the Lisbon Treaty.
The Service is intended to provide the High Representative and
the EU with analysis and support, as well as improve the consistency
of the EU's representation in third countries and at international
organisations (see paragraph 7.98).
12.138.The Treaty of Lisbon leaves most of the details
on the structure and functioning of the External Action Service
to be decided upon by the Council acting unanimously after entry
into force of the Treaty. The UK has the experience to play a
leading role in elaborating a concept for the Service in a methodical
and systematic way. And we would expect the Diplomatic Service
and the EAS to work closely together (see paragraph 7.99).
12.139.Parliament should have an opportunity to scrutinise
the draft concept for this Service well in advance of any political
agreement being reached on its structure, functioning and financing.
It is a matter that the Committee may want to come back to at
a later date. In the meantime, we look forward to being kept informed
by the Government of progress being made in the negotiations on
the establishment of the Service (see paragraph 7.100).
12.140.The Government are committed to engage positively
with the UK's EU partners in building an effective External Action
Service. We would welcome assurances from the Government that,
where it is in line with UK policy, they will contribute to providing
the Service with high quality personnel with the necessary language
skills, including secondees, and adequate financial resources
(see paragraph 7.101).
12.141.Effective mechanisms should be put into place
at the appropriate time to exercise parliamentary oversight over
the Service at the national level (see paragraph 7.103).
12.142.The Lisbon Treaty states that the Union delegations
will work closely with the missions of the Member States, and
not replace them. The Government should encourage the Diplomatic
Service to engage positively with the External Action Service
(see paragraph 7.105).
The Common Security and Defence Policy
12.143.The central role of NATO in the defence policy
of certain Member States such as the UK will continue to be recognised
under the new Treaties (see paragraph 7.111).
12.144.Under the new Treaties all the EU Member States,
including the six Member States of the EU which are not also members
of NATO, will have an obligation to come to each others' aid and
assistance if one of them is attacked on their territory. However,
this obligation will fall on each EU Member State individually,
and not on the EU and its institutions. As regards the EU Member
States, such as the UK, which are also members of NATO, the Lisbon
Treaty will not change the current situation with regards to their
collective defence, which will continue to be organised and implemented
in the framework of NATO (see paragraph 7.117).
12.145.Permanent Structured Cooperation is a form
of enabling framework allowing the Member States who so wish to
cooperate more closely in the area of defence capabilities development.
Permanent Structured Cooperation is not a major departure from
current practice. Rather, it represents a continuation and deepening
of current forms of cooperation. Its objective is to create a
political dynamic among Member States towards the improvement
of European defence capabilities. Most of these new capabilities
should be available to both NATO and the EU and could therefore
serve to strengthen both organisations. While recognising that
under Permanent Structured Cooperation some decisions will be
taken by qualified majority voting, all decisions of substance
will be taken unanimously by the participating Member States.
Furthermore, the new Treaties will provide that "national
security remains the sole responsibility of each Member State"
(new Article 4 TEU) (see paragraph 7.126).
12.146.The provisions on the European Defence Agency
and on crisis management missions are a codification of current
practice and will therefore have little impact on the European
Security and Defence Policy/Common Security and Defence Policy
(see paragraph 7.129).
Chapter 8: Social Affairs
Employment and Social Affairs
12.147.The "emergency brake" negotiated
by the UK Government as regards social security measures for migrant
workers and their dependants is significant and we are satisfied
that, if required, it will achieve the purpose for which it is
designed (see paragraph 8.14).
12.148.The increased emphasis on social dialogue
is also significant, but we are concerned that there is insufficient
involvement of UK small business. We trust that UK small business
organisations along with their colleagues in Brussels can resolve
this matter to their mutual satisfaction and thereby ensure the
proper involvement of the UK small business sector (see paragraph
8.15).
Education, Vocational Training and Youth
12.149.The inclusion amongst the Treaty's objectives
of the protection of children's rights will have an important
impact by making future legislative instruments subject to an
assessment of their impact on children's rights (see paragraph
8.28).
12.150.The new Articles 9 and 10 TFEU may be of particular
assistance to children (see paragraph 8.29).
12.151.The inclusion in the Treaty of a specific
provision on the participation of young people in democratic life
in Europe does not amount to a significant extension of EU competence
beyond action that is already taking place (see paragraph 8.30).
12.152.The new provision relating to vocational training
does not amount to a significant extension of EU competence (see
paragraph 8.31).
Sport
12.153.The inclusion of a legal base for sport builds
on action already undertaken by the Community, which has recognised
the role of sport in forging identity and bringing people together.
It is nonetheless significant (see paragraph 8.45).
12.154.The provision of a legal base for sport within
the Treaty is intended to permit the special nature or "specificity"
of sport to be recognised by the European institutions (see paragraph
8.46).
12.155.The provision of a legal base for sport is
also intended to ensure that EU legislation does not impose unintended
consequences upon sporting activities and that the ability of
sport to play an important role in European society is recognised
(see paragraph 8.47).
12.156.A legal base for EU action on sport is intended
to provide a transparent basis for EU-level funding of sporting
projects (see paragraph 8.48).
12.157.Action in this area cannot go further than
supporting, coordinating or complementing Member States' actions
and we urge the Government to ensure that the European institutions
adhere to this provision (see paragraph 8.49).
Culture
12.158.The move from unanimity to QMV in the area
of culture is a small but significant step. In the view of the
DCMS, this will have a positive effect (see paragraph 8.54).
Public Health
12.159.The Lisbon Treaty strengthens the provision
on the limits of EU action in the field of public health policy.
However, in practice, the application of this provision could
be influenced by differing perceptions across the EU of the scope
of public health policy (see paragraph 8.62).
12.160.The new measures on which action can be taken
do not represent an extension of EU competence beyond action that
is already taking place. However, the explicit reference to mental
health in the Lisbon Treaty is significant, reflecting the importance
of the issue and the work undertaken on it by the European Commission
and Member States (see paragraph 8.63).
Consumer Protection
12.161.The new prominence given to consumer protection
by the Lisbon Treaty is of limited significance (see paragraph
8.68).
Chapter 9: Finance and the Internal Market
Finance
12.162.The formalisation of the Eurogroup has historical
significance but no impact on the operation of ECOFIN. We are
content that the Lisbon Treaty has no significant impact in the
area of financial affairs or trade policy (see paragraph 9.12).
Internal Market and Competition
12.163.We would be concerned if any possible symbolic
downgrading of the principle of undistorted competition were translated
into efforts to depart from the principles of free competition
that have formed the cornerstone of the internal market. However,
Article 51 of the TEU gives equal weight to the Treaty Articles
and Protocols and Articles 81-83 of the TEC will remain the same
as Articles 101-103 of the TFEU. Therefore, the change does not
appear to be significant (see paragraph 9.18).
Intellectual Property
12.164.The new Article 118 of the TFEU is a restatement
of existing powers. Although the Treaty of Lisbon would not confer
addition intellectual property powers on the EU, it marks a statement
of political intent and a commitment to achieving the Community
patent. The move to QMV, in itself, is not significant (see paragraph
9.24).
Energy
12.165.The new provisions in the Lisbon Treaty may
raise the profile of the issue of energy but they do not constitute
a major innovation. However the extension of QMV may be seen as
significant (see paragraph 9.33).
12.166.The insertion of Article 194(2) is important
as it helps to define the boundaries between EU and Member States'
competence by making clear that Member States retain sovereignty
over national energy resources and have the right to determine
their energy mix and the structure of their energy supply (see
paragraph 9.34).
Services of General Interest
12.167.The impact of the Treaty of Lisbon on Services
of General Interest is not significant (see paragraph 9.40).
12.168.Given that Article 51 of the TEU, as amended
by the Treaty of Lisbon, gives Protocols and Annexes equal weight
to the Treaty Articles, the split between Article 14 and the Protocol
on Services of General Interest is not one of significance (see
paragraph 9.41).
Tourism
12.169.The Treaty amendment in the area of tourism
represents a small but significant expansion of competence. We
see the tourism industry as an area of commercial enterprise in
which individual Member States need to establish, to the degree
that suits their own circumstances, the extent to which the activities
of the industry are supported by government intervention (see
paragraph 9.48).
12.170.The Treaty excludes the power to harmonise
national laws in this area but we nevertheless urge the European
institutions to ensure that the principle of subsidiarity is fully
respected when drawing up any policy framework in relation to
tourism (see paragraph 9.49).
General conclusion
12.171.The impact of the Treaty of Lisbon on the
Single Market will be limited (see paragraph 9.50).
Chapter 10: Environment, Agriculture and Fisheries
Environment
12.172.The introduction into the Treaty of a specific
reference to climate change is of strategic rather than legal
significance (see paragraph 10.11).
12.173.The provision to support, coordinate and supplement
the action taken by Member States in the field of civil protection
may have some significance in reducing the vulnerability of the
Member States to environment-related disasters (see paragraph
10.12).
12.174.Under the European Union (Amendment) Bill,
Ministers will have to secure the approval of both Houses of Parliament
before agreeing to any change of procedure affecting a nationally
sensitive environmental policy measure (see paragraph 10.13).
Agriculture, Fisheries and Animal Welfare
12.175.The move to co-decision in agriculture and
fisheries is significant. It will bring more transparency and
accountability to the policy-making process, allowing third parties
to raise concerns more easily with policy makers and facilitating
national parliamentary scrutiny of agricultural and fisheries
decision-making (see paragraph 10.36).
12.176.We urge the European institutions to ensure
that the application of the ordinary legislative procedure does
not unduly extend the length of the decision-making process. As
regards fisheries, particular efforts may need to be made to ensure
that the more complex procedure does not hinder the timely management
of fisheries (see paragraph 10.37).
12.177.The future policy impact of the move to co-decision
is not clear. Much depends on the European Parliament itself,
but the weight of the evidence suggests that the agriculture and
fisheries committees of the European Parliament will in future
represent, and be closely overseen by, a wider range of interests
than the narrow producer interests that have historically dominated
those committees. For these reasons, we expect that the change
is likely to assist rather than impede further reform of both
the common agricultural and fisheries policies (see paragraph
10.39).
12.178.Maintaining the various exceptions to co-decision,
while justified in the light of the required timescales, may be
significant as important decisions will continue to rest solely
with the Council. We would urge the Commission to publish its
annual proposals on the fixing and allocating of fishing opportunities
as early as possible each year in order that the European Parliament
can be informally consulted and allowing time for national parliaments
to scrutinise the proposals more effectively (see paragraph 10.40).
12.179.The abolition of the distinction between compulsory
(agricultural) and non-compulsory expenditure is a significant
step alongside the application of the ordinary legislative procedure
to agriculture policy. The change will make the agricultural budget-setting
process more transparent, open and balanced (see paragraph 10.45).
12.180.The clause on exclusive competence for the
conservation of marine biological resources under the Common Fisheries
Policy represents a codification of ECJ case-law (see paragraph
10.48).
12.181.The new Article 13 TFEU re-affirms the European
Union's commitment to animal welfare. It will help to ensure greater
consistency across the EU as regards animal welfare (see paragraph
10.55).
12.182.We acknowledge the concerns of the fishing
industry and draw attention to the potential consequences of applying
the provisions on animal welfare to commercial fisheries given
the nature of death to which netting and landing can lead (see
paragraph 10.56).
12.183.We note that the possibility of allowing exemptions
from animal welfare rules on grounds of religion, cultural tradition
and regional heritage is included in the current animal welfare
Protocol. The new Treaty article does not therefore amend the
status quo in this regard (see paragraph 10.57).
Chapter 11: National Parliaments—The Democratic
Challenge
Obligations on national parliaments
12.184.Following the deletion of "shall"
from three of the four places where it occurred, we regard it
as settled that the Lisbon Treaty places no obligations on national
parliaments. Even if a sense of obligation can be construed from
some of the other languages, it is inconceivable that anyone would
seek to enforce these obligations. In any case, national parliaments
will in our view be under a strong political obligation to take
seriously the new opportunities created by the Treaty (see paragraph
11.49).
Yellow and orange cards
12.185.The yellow and orange card procedures are
a useful innovation. It may be that they will seldom be invoked,
but this is true of many of the sanctions available to scrutineers
in a democracy. The existence of a sanction gives scrutiny teeth,
while making it less likely that the sanction will need to be
deployed. The Commission can disregard adverse votes from national
parliaments and maintain its proposal; but this may be politically
difficult, and if an orange card has been played the proposal
is unlikely to find the necessary majority in the Council (see
paragraph 11.50).
12.186.The extension of the period allowed for scrutiny
from six to eight weeks makes the yellow and orange card procedures
significantly easier for national parliaments to operate than
would otherwise be the case. In practice this Parliament may have
even longer, since English is usually the first language to emerge
from the Commission translators, and it is typically another month
before the last language emerges and the formal scrutiny period
begins. Nonetheless it will be challenging even for this Committee
to reach a considered view on subsidiarity within this time, particularly
if, in the case of an adverse opinion, time needs to be factored
in to put a motion to the House, and particularly if much of the
period falls in recess (see paragraph 11.51).
12.187.A well-founded reasoned opinion may be ineffective
for lack of the necessary supporting votes from other chambers
within the eight weeks. The success of the card procedure will
depend on coordination between national parliaments (see paragraph
11.52).
12.188.The increasing trend towards "first reading
deals" makes it all the more important that there should
be a period for parliamentary scrutiny. It has consequences for
parliamentary scrutiny beyond the question of subsidiarity, making
it more important for national parliaments to make their views
known upstream. The burden is on national parliaments; those which
leave it to the end of the eight weeks to express a view, or even
later, risk being too late to make any difference. We do not however
consider that this undermines the yellow and orange card procedures:
during the eight weeks allowed for playing the card, no formal
legislative step can be taken, save in case of urgency (see paragraph
11.53).
12.189.The card procedures apply only to the principle
of subsidiarity, and not to proportionality. National parliaments
will continue to police the proportionality principle by the other
means at their disposal (see paragraph 11.54).
12.190.We expect the playing of a yellow or orange
card to be a rare event. That being so, we caution the Commission
and the European Court of Justice against drawing any inference
from the non-playing of the cards. The absence of a yellow or
orange card will not signify that national parliaments support
a proposal (see paragraph 11.55).
12.191.Article 352(2) TFEU, which applies the yellow
card procedure expressly to measures under Article 352 (the "flexibility
clause", currently Article 308 TEC), does not add anything
of substance. Proposals adopted on the basis of Article 308 are
no different from other proposals and fall under the subsidiarity
monitoring procedures without any special article. Article 352(2)
seems chiefly political, because of the sensitivity of Article
308 proposals (see paragraph 11.56).
12.192.The novelty of the card procedures, and their
prominence in the Treaty, should not give rise to overestimation
of their importance. Breaches of the subsidiarity principle in
draft legislative acts are quite rare. National parliaments will
no doubt take the new procedures seriously, but they should not
distract attention from scrutiny of policy. Nonetheless, a beneficial
consequence of the new procedures will be an intensification of
day-to-day cooperation between national parliaments. This will
bring advantages in areas wider than the monitoring of subsidiarity
(see paragraph 11.57).
ARTICLE 308
12.193.The reformulation of Article 308 to exclude
the reference to "the operation of the common market"
makes clear that, in future, new Article 352 can be applied to
any area of the EU's activity—except the CFSP (see paragraph
11.58).
IMPACT ON THE PROCEDURES OF THIS HOUSE
12.194.The Lisbon Treaty will have consequences for
the procedures of this House and our Committee. The Committee's
terms of reference and the Scrutiny Reserve Resolution will require
amendment; the House will need to decide whether to delegate its
vote in the yellow and orange card procedures to the Committee;
and a solution will be needed to the problem which will arise
if most of the time allowed by those procedures for parliamentary
scrutiny falls in recess. More broadly, we will need instructions
from the House as to how far and how formally we should widen
our focus, from the traditional dialogue with UK Ministers in
Whitehall, to engagement with other national parliaments, EU institutions
and the UK's devolved assemblies. There may be resource implications;
and it will be desirable to consult the House of Commons. If the
European Union (Amendment) Bill is passed, we will put these matters
to the Procedure Committee (see paragraph 11.59).
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