Memorandum by Andrew Duff MEP
1. The Sub-Committee may be aware of my
recent oral evidence to the European Union Committee, now published
in the 35th Report of Session 2006-07. Since then I have also
submitted a memorandum of evidence to Sub-Committee E on the UK
opt-outs from Schengen, Justice and Home Affairs and the Charter.
This memorandum supplements that.
2. To recall my own interest in these matters,
I served on both of the European Union's Conventions on the Charter
of Fundamental Rights and on the Constitution, and was the Parliament's
co-rapporteur on the Charter. Lately, I represented the Parliament
in the Intergovernmental Conference (IGC).
3. This memorandum concerns the UK government's
particular attitude towards Title IV, headed "Solidarity",
of the Charter of Fundamental Rights. My views on the juridical
value and political wisdom of the British and Polish opt-out on
the Charter as a whole are set out at some length in my previous
submission to Sub-Committee E.
4. The UK signed up to making the Charter
binding as part of the package deal on the constitutional treaty,
signed in October 2004. The UK's subsequent decision to opt out
of the justiciable Charter was taken during the "period of
reflection", apparently because of a sudden revelation that
the mandatory Charter would lead to the demolition of Britain's
flexible labour markets. That anxiety needs therefore to be addressed
head on.
5. No change was made to the Charter in
the course of this year's IGC. Title IV of the Charter, containing
the social principles of the Union, is supported by 26 of the
27 member states, as well as by the European Commission and Parliament.
The Charter is still wholly consistent with the European Convention
on the Protection of Human Rights (ECHR), but superior to it,
with a wider scope to address the needs, anxieties and aspirations
of contemporary European society. It draws not only on the ECHR
but also on the European Social Charter (1961), the Community
Charter of the Fundamental Social Rights of Workers (1989), on
standard ILO norms reflected by collective bargaining agreements
at national and EU level, and on case law of the European Court
of Justice.
6. One recalls that the Charter confers
no new competences on the Union, and is relevant only within the
area of competence as conferred on the Union by the member states
and in relation to the explicit powers of the EU institutions.
The Treaty of Lisbon, like the 2004 constitutional treaty, makes
the Charter binding on member states only in respect of the application
of EU law and subject to the principles of subsidiarity and proportionality.
7. The Charter's principles in respect of
social policy become significant only if, as and when articulated
in terms of EU legislation or executive action. Article 137.5
of the Treaty on the Functioning of the European Union (TFEU)
specifically precludes EU interference in matters of pay, the
right of association, the right to strike and the right to impose
lock-outs. Article 137.4 already lays down that no social policy
provision of the EU shall affect the right of a member state to
establish its own social welfare system or to affect the financing
thereof.
8. The constraints on the scope of the Charter
and its field of application are set out very clearly indeed in
the horizontal Articles 51-54. In addition, an innovation of the
2004 Constitutional Treaty—now carried over into the Treaty
of Lisbon—was to assert that the EU can only be governed
in harmony with national practices and constitutional traditions.[3]
Under no conceivable circumstances, therefore, will the Charter
give rise to direct claims for positive action by the EU or member
states in the matter of pay, trade union law, strikes or social
security.
9. Contrary to some scare-mongering, one
can safely conclude that UK labour market policy is unlikely to
be directly affected by the decision to make the Charter binding.
Attempts to approach the European Court of Justice either directly
or indirectly by an aggrieved somebody who is unemployed, strike-prone
or homeless will certainly fail. The Court of Justice will be
assuredly conservative in its treatment of these issues unless
a case can be shown to concern directly and individually an employee
of one of the EU institutions.
10. One word about Poland. It became clear
in the course of the IGC that the then Polish government was concerned
to sign up to the UK Protocol for reasons quite distinct, and
even opposed, to the purposes of the UK government. The Polish
foreign minister, indeed, insisted on the central role that the
concept of solidarity had played in recent Polish history. She
affirmed her government's strong support for Title IV of the Charter.
That Poland joined the Protocol, therefore, seems to have been
rather an eccentric move, motivated more by a fear of German litigation
on property restitution than by anything else. And as we know,
the new Polish government has expressed regret at having to join
the UK Protocol.
11. While Poland was at pains to justify
to the IGC its attachment to the Protocol, the UK government made
no such effort to explain its change of mind since Mr Blair signed
the constitutional treaty. I hope your inquiry can shed light
on the motivation behind the opt-out, why the Protocol was drafted
as it was, and what precisely it is that ministers expect it to
achieve.
12. Finally, the Sub-Committee will have
noted the recent statement by the re-elected Danish prime minister,
Anders Fogh Rasmussen, that his new government wishes to jettison
all of Denmark's opt-outs. That, surely, points to the future
direction for the Union as a whole. It seems a pity that the UK
insists on putting itself on the margins.
26 November 2007
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