Memorandum by The Right Hon Sir Francis
Jacobs KCMG, QC[71]
THE REFORM
TREATY
Introduction
1. I have sought to address several, but
not all, of the questions referred to me by the Select Committee
and Sub-Committee E. It seems sensible to submit a combined reply
to both sets of questions. I have not dealt with questions relating
to special arrangements negotiated by the United Kingdom, in the
form of opt-ins, opt-outs, etc, the effect of which must remain
obscure until they are applied in practice. Nor have I dealt here
with the Charter of Fundamental Rights.[72]
Although the Charter does not confer new rights, it could have
some effect on the interpretation of existing rights, but the
outcome is not easy to predict, and again may be affected as regards
the UK, in ways difficult to foresee, by the special arrangements
which the UK has negotiated.
Competences of the Union and the Member States
2. In my view, the Reform Treaty contains
valuable provisions on the competences of the Union and the Member
States.
3. In the first place, the Treaty inserts
into the EC Treaty (re-named the Treaty on the Functioning of
the European Union (TFEU)), new Articles 2A to 2E, which contain
a full statement of the respective competences of the Union and
the Member States. It is helpful to have, at the outset of the
Treaty, a clear statement on this. There is no such statement
of competences in the present treaties, and the subject sometimes
requires an analysis of the case-law of the Court of Justice.
4. Moreover, these new articles of the Treaty
also specify whether the Union's competence in each case is exclusive,
or shared with the Member States. This too is helpful.
5. The Reform Treaty, by the amendments
it makes to the Treaty on European Union, also sets out some important
and helpful principles on the Union's competences.
6. The new Articles 3a and 3b of the Treaty
on European Union make it clear that the Union has competences
only where they are conferred upon it by the Member States; and
that such conferral can take place only in the Treaties, and only
in order to attain the objectives set out in the Treaties.
7. The new Article 3b(2) states explicitly
that competences not conferred upon the Union in the Treaties
remain with the Member States.
8. Article 3b also sets out limits on the
exercise by the Union of the competences conferred upon
it. All Union action is subject to the principle of proportionality:
it must not exceed what is necessary to achieve the objectives
of the Treaties. And where competence is shared by the Union and
the Member States, action by the Union must comply with the principle
of subsidiarity: the Union shall act only if and insofar
as the objectives of the proposed action cannot be sufficiently
achieved by the Member States and can be better achieved at Union
level.
9. The institutions of the Union are to
apply the principle of subsidiarity as laid down in a Protocol
to the Treaty; the Protocol gives national Parliaments a significant
role in ensuring compliance with the principle.
10. The Court of Justice, while not substituting
itself for political assessments by the political institutions
of the Union, can be expected in my view to be called upon more
often to address the requirements of the Treaty in this regard,
and perhaps to do so more stringently than hitherto, so that there
may well be successful challenges to Union measures on these grounds.
What will be the practical effect of expressly
conferring legal personality on the Union?
11. The concerns which have been expressed
about conferring legal personality on the Union are at least in
part based on misunderstandings. It has evoked anxiety about the
development of the EU as a "super-State", substituting
itself, in international relations, for the Member States.
12. While it is useful to distinguish legal
personality under international law from that under domestic law,
it is therefore the former which causes concern. The most important
attribute of legal personality under international law is a treaty-making
power.
13. In that regard, the following points
should be considered.
14. First, although there is at present
no provision in the EU Treaty formally conferring such personality
on the Union, Article 24 already confers a treaty-making power,
which has frequently been used, and has been accepted by third
States.
15. Second, the European Communities also
have treaty-making powers: the European Economic Community (now
the "European Community") had had such powers under
the original Treaty of Rome of 1957 (notably for external trade,
under the then Article 113, now Article 133 of the EC Treaty).
In the exercise of their existing treaty-making powers, the Communities
have concluded many hundreds of treaties and other international
agreements.
16. Third, if the question is raised about
the practical effect of conferring legal personality on the Union,
it may also be asked what would be the practical effect of denying
the Union treaty-making power. Since under the Reform Treaty the
Communities would be replaced by the Union, the effect of denying
treaty-making power to the Union would be to remove the Community's
existing treaty-making power, as well as disabling the Union from
exercising its existing power.
The jurisdiction of the European Court of Justice
in relation to Freedom, Security and Justice
17. Under the "three-pillar" system
introduced by the Maastricht Treaty, the jurisdiction of the ECJ
was excluded, with narrow exceptions, under the then new Second
Pillar (Common Foreign and Security Policy) and limited under
the then new Third Pillar (Justice and Home Affairs).
18. The position became more complex under
the Amsterdam Treaty, with some matters being transferred from
the Third Pillar to the First (Community) Pillar but being made
subject to variable systems of jurisdiction, dependent on different
forms of "opt-ins" by Member States, while the remainder
of the Third Pillar continued under the title "Provisions
on police and judicial cooperation in criminal matters".
The resulting patchwork system was widely regarded as opaque,
incoherent and generally unsatisfactory.
19. The Reform Treaty does away with the
much-criticised three-pillar structure. On the jurisdiction of
the Court, the Treaty still broadly excludes the jurisdiction
of the Court on the Common Foreign and Security Policy (with the
very limited exceptions specified in Article 240a of the TFEU),
but it extends the normal system of jurisdiction to the area of
freedom, security and justice, which is fully integrated into
the TFEU and now comprises the following subjects:
— Policies on border checks, asylum
and immigration.
— Judicial cooperation in civil matters.
— Judicial cooperation in criminal
matters.
(The Court will not however have jurisdiction
to review "the validity or proportionality of operations
carried out by the police or other law-enforcement services of
a Member State or the exercise of the responsibilities incumbent
upon Member States with regard to the maintenance of law and order
and the safeguarding of internal security": see Article 240b
of the TFEU.)
20. In my view the revisions affecting the
jurisdiction of the Court of Justice have several advantages and
some possible disadvantages.
21. A first advantage is that the Treaty
establishes a clear and coherent system of jurisdiction to replace
the present confusing jumble.
22. Substantively, it is valuable that there
will be available in these important areas the normal methods
of judicial review and the normal jurisdiction to interpret the
Treaty and Union measures. Thus the Commission will be able to
take enforcement action before the Court of Justice against Member
States; actions for judicial review will be available against
Union measures; and the Court will have jurisdiction to rule on
the interpretation of the Treaty and on the interpretation and
validity of Union measures in these areas. Experience has shown
that there is often little benefit in international measures if
there is no mechanism for enforcement and no method of securing
uniform interpretation.
23. The availability of uniform interpretation
is also likely to promote legal certainty.
24. There are also broader considerations.
The European Union is unique among all international organisations
in the extent to which it is based on the rule of law. It provides
a model in this regard to the outside world and is widely respected
on that account—as has been illustrated, for example, by
the respect shown to it by the recent case-law of the European
Court of Human Rights, and more generally by attempts to establish
similar judicial systems in other continents. It would be paradoxical,
and perhaps unacceptable, if the Union's actions in fields impinging
most seriously on civil liberties were to remain immune to the
jurisdiction of the European Court of Justice.
25. Possible objections to the Court's jurisdiction
being exercised in these areas are, first, that these are subjects
of considerable national sensitivity where the Court would be
entering areas at the heart of national sovereignty; and second,
as far as the UK in particular is concerned, that the impact of
Union measures and of Court decisions might not take full account
of the special features of UK arrangements in these areas: one
size does not fit all.
26. On the first point, part of the answer
may be that it is precisely because of the importance of these
areas that full judicial review and jurisdiction should be available.
On the second point, leaving aside the UK's special arrangements
for opt-ins and opt-outs, with which I do not attempt to deal,
there is scope for the UK to intervene in all proceedings before
the ECJ in order to explain the special features of its own procedures.
The decisions of the ECJ may nevertheless have an adverse impact.
So too, however, may decisions of UK courts. Moreover a balance
has to be struck between the possible disadvantages of ECJ decisions
for the UK, and the wider interest, both for the EU and for the
UK, of having an effective system of judicial review for the other
Member States and for the Union as a whole. This wider interest
does not seem to be much recognised in the UK.
27. A final possible disadvantage of extending
the jurisdiction of the ECJ is that the Court may be over-burdened
and may be unable to decide cases within the required time-scale.
The difficulties in that regard are already being experienced
under the existing treaties. The extension of the Court's jurisdiction
may raise serious problems, and may very soon make it necessary
to undertake a full review of the Union's judicial system. The
Committee might wish to consider making such a recommendation
in its report.
Other changes in the jurisdiction of the Court
28. Other changes are relatively minor,
but they include some which significantly strengthen the capacity
of the Court to review Union measures for illegality across the
whole field of measures subject to the jurisdiction of the Court,
including the area of Freedom, Security and Justice.
29. In particular:
(1) Article 230 of the EC Treaty as amended
by the TFEU extends review of the acts of the Union institutions
to include acts of the European Council.
(2) Article 230 as amended extends review
beyond acts of the institutions. Such review will also include
review of the legality of acts of bodies, offices or agencies
of the Union intended to produce legal effects. That extension
is significant as there is an increasing number of entities with
power to take decisions directly affecting the interests of individuals
but which are at present not subject to the jurisdiction of the
Court.
(3) The scope for protection of individuals
and companies against regulatory acts will be increased by removing
the condition in Article 230 of the EC Treaty that the act should
be of individual concern to the applicant. That condition has
often made it difficult or impossible for individuals and companies
to take cases to the Court. Instead there will only be a requirement,
far easier to satisfy, that the act is of direct concern to the
applicant and does not entail implementing measures. (In the latter
event, the implementing measures themselves would be likely to
be open to challenge.) Although the scope of the term "regulatory
acts" is not clear, and the term is not defined, this reform
will be widely welcomed.
30. Taken together, these changes can be
seen as providing substantially greater judicial protection against
European Union measures and as strengthening the rule of law in
the Union.
31. Finally, mention should also be made
of the innovation in the appointment of members of the Court of
Justice and the General Court. Under the new Article 224a of the
TFEU, a well qualified panel will be set up to give an opinion
on candidates' suitability to perform the duties of Judges and
Advocates General before the candidates are appointed by the governments
of the Member States. This is likely to ensure the high quality
of members of the Courts and to reinforce their independence.
December 2007
71 Professor of Law, King's College London; Advocate
General, Court of Justice of the European Communities, 1988-2006. Back
72
See however the substantial reservations which I have expressed
about the Charter in my Hamlyn lectures: The Sovereignty of Law:
The European Way (Cambridge University Press 2007), pp 150-151. Back
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