Memorandum by Professor Damian Chalmers,
London School of Economics and Political Science
THE MOVE
TO QUALIFIED
MAJORITY VOTING
AND CO-DECISION
IN AREAS
OF CRIMINAL
LAW AND
POLICING
Considerable evidence exists to suggest that
the differences between qualified majority and unanimity voting
in the Council is, in the round, overstated. Unanimity voting
does not appear to slow down the pace of legislation or prevent
salient or contentious measures from being adopted (Golub, "In
the Shadow of the Vote? Decision Making in the European Community"
(1999) 53 International Organisation 733-64; R. Schütze,
"Organized Change towards an `Ever Closer Union' Article
308 EC and the Limits To the Community's Legislative Competence"
(2003) 22 Yearbook of European Law 79 ). This is almost
certainly due to the culture of consensus and compromise that
operates in the Working Groups that precede the formal vote (
Wallace et al. "When and Why the EU Council of Ministers
Votes Explicitly" (2006) 44 Journal of Common Market Studies
161). Nevertheless, there are occasional measures where a member
State would wish to exercise its veto, which it will not be able
to do where there is qualified majority voting.
The British position with regard to the new
provisions in the Reform Treaty is here not a completely easy
one. On the one hand, the "opt-in" secures a situation
whereby EU legislation cannot be imposed on the United Kingdom
against the British Government's wish. The United Kingdom will
simply not participate. On the other hand, the reality confronting
the British Government is that most choices are a little more
nuanced. It will be faced by a Commission proposal with possibly
some supranational qualities and some substantive provisions with
which it is not comfortable, but which also carries some benefits.
It can now choose to secure legislation that maximises the latter
or it can refuse to participate. Experience of Title IV on immigration
and asylum is that the British Government has usually adopted
the former strategy. However, this has been against a backdrop
of predominantly unanimity voting in these fields. Other governments
are aware of the shadow of the British veto and this provides
incentives for them to listen, whilst the British Government is
aware that if the discussion does not go its way it can always
not participate. This dynamic is not available where there is
qualified majority voting. There is no shadow of the veto and
other governments have less incentive to listen as they can argue
there is always the possibility of British non-participation.
There is, therefore, a real risk of diminution of influence.
The other danger of the opt-in is in regard
to the British exercise of the emergency brake provision. Probably,
the legal availability for the British Government to refer a matter
to the European Council is there. The political costs are, however,
significant. Other States might challenge this before the Court
of Justice on the grounds that the opt-in somehow restricts this
right as if the matter was so fundamental right, the British Government
could choose not to act. As the action would be something that
would not be taking place on British territory, there would also
certainly be a frosty reception in the European Council.
The use of co-decision also raises the question
of the new role of the European Parliament. Experience suggests
that there will be very little exercise of the veto by the Parliament
but that it will successfully introduce significant numbers of
amendments. The degree of influence enjoyed by the European Parliament
in this can be overstated. Many are put at the behest of national
governments; some are trivial; and many are accepted only in a
qualified form by the Council. That said, the expression in freedom,
security and justice is that the European Parliament does, at
times, see itself as the guardian of civil liberties against the
Member States and the Commission. There has thus been litigation
about both PNR and the Family Reunification Directive (Joined
Cases C-317/04 and C-318/04 Parliament v Council [2006]
ECR I-4721; Case C-540/03 Parliament v Council (family
reunification) [2006] ECR I-5769. This could translate into greater
use of the veto in this field than elsewhere.
PROVISIONS ON
EUROJUST AND
THE CREATION
OF A
EUROPEAN PUBLIC
PROSECUTOR
The bringing of Eurojust and Europol within
supranational structures will make them more accountable to both
national and supranational actors. They will be able to be taken
before the Court of Justice, which is not currently the case,
and subject to greater evaluation by both the European Parliament
and national parliaments (Article 69h1 TEU). This is to be welcomed.
In terms of possible concerns about greater intrusion, the new
Article 69h(1) TEU makes clear that Eurojust's mission is to support
and strengthen cooperation between national investigating and
prosecuting authorities. Its role is further confined by the new
provision that internal security is exclusively the responsibility
of the Member States. That said, the duty of cooperation and assistance
required of national authorities may be stronger than is currently
the case. Such a duty does apply currently in the third pillar
(C-105/03 Pupino [2005] ECR I-5285), but it is arguably
not as strong as the duties under Article 10 EC, which will probably
apply on ratification of the Reform Treaty. In particular, Member
States are required to assist EU institutions to meet their obligations
under the Treaty. This requirement could be interpreted as tempering
the degree of discretion national authorities currently have with
regard to joint investigations, duties to provide information
and Eurojust requests to carry out investigations on their territory.
THE LEGAL
BASE FOR
CRIMINAL MEASURES
The current point of contention is that Article
47 TEU was used by the Court of Justice to expand the EC Treaty
over the other two pillars in Case C-176/03. This will no longer
be possible because the new Article 1 TEU gives equal legal value
to all parts of the Treaty. The test will therefore be whether
the predominant aim and content of a measure falls within a particular
legal base (the current test within the EC pillar). This will
undoubtedly open the question of whether criminal legislation
currently adopted under the EC pillar (eg firearms, money laundering,
transport offences) should now be given a different legal base,
namely Article 69f TEU. Indeed, the new Article 69f(2) TEU suggests
this to be the way forward by providing a procedure for areas
currently subject to harmonisation measures. For many governments,
subject to my comments above, there may paradoxically be an attraction
to this. It allows the use of the emergency brake procedure and
gives the British Government the possibility of non-participation.
THE COURT
OF JUSTICE
AND THE
THIRD PILLAR
I would refer to my oral evidence to the House
on this point. Research carried out by myself in 2000 suggests
that the policy fields in which there is both heavy use of EC
law by national courts and use of the preliminary reference procedure
to be very limited indeed (Chalmers, "The Positioning of
EU Judicial Politics within the United Kingdom" (2000) 23
West European Politics 169). Most EC law is market regulation
and, typically, these fields do not involve significant judicial
activity. This is not true of the new Title IV—immigration,
asylum and crime. These are the very heartlands of national judiciaries,
and one would expect in due case significant deployment of EC
law in national courts in these fields and considerable references.
This may well change significantly the profile of the docket of
the Court of Justice and perceptions of it. High-profile judgments
in these fields will inevitably be highly contentious. There is
also a danger because of the sheer quantity of judicial activity
in these fields crowding out other fields of law, particularly
as a priority is given to these fields via the requirement that
a precedence be given to references where a party is in custody.
20 November 2007
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