Memorandum by Professor Steve Peers, University
of Essex
1. I welcome this chance to comment on the
important questions concerning the EU institutions and the Treaty
of Lisbon. Below I address all of the specific issues mentioned
by the call for evidence in turn.
The Structure of the Treaties/Legal Personality
2. The merging of the Community and the
Union is a useful simplification of the Treaty structure, but
it is unfortunate from the point of view of transparency and public
comprehensibility that the content of the future TEU and TFEU
(existing TEU and TEC) could not be further divided between the
basic rules appearing in the TEU and the detailed rules appearing
in the TFEU. To that end, it would have been preferable if the
detailed rules on foreign policy instead had been placed in the
external relations Part of the TFEU (since there is no legal distinction
any more between placing them there and keeping them in the TEU),
and if some of the provisions on the EU's legal instruments, the
concept of legislative procedures and the rules on delegated and
implementing acts had been placed in the TEU. Some further rules
on the nature of EU competences should also have been placed in
the TEU, rather than the TFEU.
3. As for the EU's legal personality, the
concern about this issue from some quarters is simply misplaced.
The EC already has legal personality and has used it to conclude
a large number of international treaties. The EU has no express
legal personality, but has been widely understood by EU institutions,
Member States and non-Member States to have an implied legal personality
for a number of years, and has signed and concluded a significant
number of treaties in its own name since 2001. There appears to
be some degree of consensus among EU specialists that the EU meets
the criteria expressed by the International Court of Justice some
years ago for the implied conferral of legal personality. It should
be emphasised that the existence and exercise of legal personality
is not a badge of statehood, as many other international organisations
have express and implied legal personality (there is even an international
treaty dating from 1986 concerning the law of treaties as applicable
to international organisations), as of course do natural and legal
persons. Nor is there any reason to suppose that an express legal
personality increases the EU's competence as regards the Member
States.
The European Council
4. It would probably have been preferable
not to alter the role of the European Council, for the (re-)creation
of the European Council as a new formal legal institution with
its own formal decision-making powers simply adds a new feature
to the EU's institutional framework, which should instead have
been simplified. But since the European Council has been given
formal decision-making powers, it was essential to ensure that
the Court of Justice has jurisdiction over its actions, so the
provisions of the Treaty of Lisbon to that end can only be welcomed.
5. It is also unfortunate that the European
Council will as a default act by "consensus", a decision-making
rule that is not defined in the Treaties. This is a particular
problem when the European Council takes decisions by consensus
as part of the decision-making process (when it requests a foreign
policy proposal from the High Representative, or is asked to settle
disputes relating to social security or policing and criminal
law when a veto is applied or an "emergency brake" is
pulled in certain areas).
6. There seemed to be no particularly pressing
need for the creation of a full-time post of President of the
European Council. The impact of this post as regards the external
representation of the EU and its relations with the other EU institutions
have not been thought through, although hopefully a workable modus
operandi will soon develop in practice. The role would seem
to lack the accountability of the individual members of the European
Council or of the Commission, and there does not seem to be enough
work for the President to do. Any attempt to rival the Commission's
role as the detailed agenda-setter for the EU (as distinct from
the established role of the full European Council as the general
agenda-setter for the EU) would entail duplication of resources
and pointless power struggles.
The Council
7. The changes to the Council's Rules of
Procedure in 2006 already anticipate the creation of team Presidencies
in a slightly less formal way than the Treaty of Lisbon. It is
hard to see how such team Presidencies, as defined in the Treaty,
will differ much from the status quo. The only significant change
to the existing Presidency system would appear to be the loss
of the Presidency role as regards foreign policy.
8. The Treaty does not foresee any specific
relationship between the Council Presidencies and the European
Council Presidency, and nor should there be one. There is no reason
to alter the existing framework in which the EU agenda is set
very generally at the level of the full European Council and this
agenda is then implemented in detail by the Council, Commission
and EP, within the context of their specific roles in the decision-making
procedure. In other words, the European Council President should
concentrate on his or her relationship with the Member States'
leaders, and his or her external relations role, rather than spend
time "chasing up" the Council Presidencies, which after
all are held by elected governments with rather more legitimacy
(and, as regards the sectoral Council formations, with greater
understanding of detailed issues) than the European Council President.
9. The new Council voting system will modestly
increase the possibility of the adoption of legislation and other
measures subject to it. There did not seem any pressing reason
for this change, since the existing system has not deadlocked
EC decision-making in practice, but neither would the new system
appear to constitute a massive change in the nature of decision-making
by qualified majority, taking into account the possibilities for
delays in the vote in the event of concerns by a significant number
of Member States provided for by the new Treaty. It is unfortunate
that the Treaty requires the negative vote of four Member States
to block a measure, as this rule constrains the ability of the
UK to participate in blocking minorities (although of course the
rule will work to the UK's favour when it is participating on
the side of the majority).
10. In the medium term, it would be desirable
to consider whether a clearer distinction between the Council's
legislative and non-legislative role could be developed, in the
interests of greater public comprehension of the Council's role.
The extension of public meetings of the Council is welcome, and
this principle should be implemented by the publication of the
proceedings of the Council's public meetings in a form of Hansard
(which could be online only).
The European Parliament
11. The new Treaty will not have a significant
impact on the composition or membership of the European Parliament,
but it will impact significantly on the EP's powers. Broadly speaking,
it is appropriate to extend the co-decision powers of the EP to
all areas where the Council adopts legislation by QMV, and to
extend the EP's budget powers and powers over the conclusion of
international treaties in parallel. It is unfortunate that the
new Treaty does not identify general competition and state aids
measures as acts which should be considered legislative (and therefore
subject to co-decision), and also the new Treaty missed the opportunity
to set out general rules to govern the accountability of other
EU institutions to the EP when they adopt non-legislative acts.
12. Obviously the number of acts adopted
by co-decision will increase. In order to maintain the efficiency
of the EU's decision-making procedures, it will be necessary to
adopt more acts by first-reading co-decision deals between the
EP and the Council. This is not objectionable in principle, but
what is objectionable is the current lack of rules of any kind
on the transparency and accountability of such first-reading deals.
There should be clear rules agreed to ensure that the public can
ascertain whether a proposal is subject to the first-reading procedure,
what stage discussions are at, and the content of the latest drafts
under discussion as far as possible. Equivalent rules should apply
whenever there are informal co-decision negotiations.
The European Commission
13. There is a risk that the reduction in
the number of Commissioners below the number of Member States
will create a perception that the Member States without a Commissioner
are not "represented" on the Commission at any given
point and that therefore the Commission (further) lacks legitimacy,
even though the Commissioners are supposed to be independent of
Member States and the Member States' governments and electorates
will still be represented fully in the Council and the EP.
14. There is no formal change as regards
the Commission's accountability to the EP once elected, and the
changes to the procedure of selecting the Commission President
(there are no real changes to the procedure of selecting the rest
of the Commission) at first appear cosmetic as compared to the
existing rules. However, the requirement to take account of EP
election results when selecting the nominee for President could
be important in practice, although this already appeared to be
a factor when selecting a nominee in 2004 and there appears to
be nothing to prevent it becoming a factor on a regular basis
under the present system, since the largest party in the EP, having
just been elected, will be reluctant to support a nominee with
a different political background. An express rule to this effect
would likely cement the significance of this factor, however.
15. This development is wholly appropriate
on democratic grounds, as it would ensure a stronger link between
direct elections to the EP and the nomination of the Commission
President. In fact, it would be appropriate to go further, and
to accept in principle not only that the nominee for Commission
President should come from the same background as the largest
party in the EP, but also that the EP parties should nominate
their own preferred candidates for Commission President in the
run-up to the elections. The public would therefore know who they
were "voting for" as Commission President. There would
be a risk of deadlock if the European Council refused afterward
to nominate the candidate preferred by the largest party, but
it would be unreasonable for EU leaders to refuse to nominate
someone whose sponsoring party had won more seats in the EP than
any other party. It would, in fact, be possible already under
the existing Treaty framework for EP parties to nominate preferred
candidates for Commission President and to try to insist that
EU leaders select the candidate whose party secured the biggest
number of votes in elections.
16. This leaves open the question of the
party affiliation of the other members of the Commission, and
the degree of collaboration between parties in the EP, particularly
between the two biggest parties. This collaboration is an anomaly
given that it is rare for the largest conservative and social
democratic parties to enter into coalitions at the national level,
and so in effect the collaboration prevents voters from having
the choice at EU level between two broadly different approaches
to social and economic regulation that they usually exercise at
national level.
17. To this end, it would be preferable
in the medium term to accept that the political composition of
the Commission should broadly reflect the political composition
of the largest party in the EP and its closest ally or allies,
regardless of the political orientation of Member States' governments
(this orientation will still be reflected in Council voting, of
course). It would also be desirable to abolish the requirement
to have a special majority for second-reading co-decision votes,
since this has the effect of forcing the largest two parties to
collaborate. This effect could, however, be abolished de facto
under the current institutional framework, if there were a
higher turnout for EP plenary votes.
18. It might be argued that this change
could lead to deadlock in the EU, but this would only be result
of voters' choices at the national and EU level. It is common
for voters to vote for different parties at different levels of
government on some occasions anyway, whether within federal systems
or non-federal systems like the UK (as regards regional or local
governments as compared to Westminster), and it is rare for total
deadlock to result from such "split tickets". In any
case, it might be no bad thing if the EU legislated somewhat less
frequently. The point is that a political system more closely
tied to voters' preferences is more democratic, legitimate, transparent,
accountable and comprehensible.
The Court of Justice
19. The role, functioning and jurisdiction
of the Court of Justice would change in particular as regards
Justice and Home Affairs, where all national courts and tribunals
would be able to refer questions relating to immigration, asylum
and civil law (in place of final courts only), as well as policing
and criminal law (in place of final courts only in two Member
States, and an opt-out for 11 Member States; for other 14, this
would mean no change except a clearer obligation for the final
courts to send references). The effect of the latter change would
be limited for five years as the Court's current third pillar
jurisdiction would be retained in force for pre-existing third
pillar cases, unless they were amended in the meantime.
20. This change would obviously result in
more cases reaching the Court of Justice, although it should be
pointed that only a modest number of criminal law references reach
the Court under the current system (an average of two to three
a year), even though a majority of Member States, including four
of the five largest Member States, have given the Court jurisdiction
over national court references. The effect of widening the Court's
jurisdiction should not therefore be overwhelming, taking account
of the five-year transitional period.
21. There will be some impact of extending
the Court's infringement proceeding powers to the area of criminal
law and policing, although again the effect will be limited by
the five-year transitional period. The effect should be modest,
though, given that in practice the EU has adopted only 21 Framework
Decisions in 8.5 years (an average of two per year), as compared
to about 100 Directives each year.
22. The impact of extending the full Court
jurisdiction over references to immigration, asylum and civil
cases could well be greater, although it is impossible to be certain
in the absence of any evidence what the likely caseload will be.
Some of the extra workload could be addressed by adopting the
proposed emergency procedure for JHA cases currently under discussion,
and this procedure could be amended in future (more easily under
the Treaty of Lisbon) if necessary to take account of a large
increase in the Court's workload in this area. But it should not
be assumed that national courts or tribunals will find it necessary
to refer every asylum appeal to the Court, any more (say) than
national labour Courts find it necessary to refer every case that
falls within the scope of EC labour or discrimination law to the
Court.
23. The greater facility to adapt the EU
judicial system provided by the Treaty of Lisbon (due to majority
voting on the Statute of the Court and the creation of new third-level
tribunals) should be welcomed. The EU should seek as soon as possible
to address the current workload of the Court of First Instance
(the future General Court) by creating new third-level tribunals
(particularly dealing with trademark cases) and appointing more
judges to the Court. It will then be possible to relieve some
of the workload of the Court of Justice by transferring to the
General Court some or all infringement actions and references
over commercial law issues such as intellectual property, agriculture,
competition, state aid and internal market cases, taking account
of the General Court's existing specialisation in commercial law
issues.
24. The expanded jurisdiction for individuals
to bring direct actions before the EU courts is welcome, but does
not go far enough to address the concern that access to judicial
review of EU measures by individuals is too limited under the
existing system.
25. The speedier application of Article
228 to bring proceedings for enforcement of prior ruling is welcome,
but the possibility of imposing fines for the initial breach of
the obligations to transpose a Directive under Article 226 is
not. This amendment is unnecessary in light of the speedier application
of Article 228; if the Commission frequently applies for fines
within the context of Article 226 it will take more time for the
Court to adjudicate these frequent cases as Member States will
contest them more, and the Commission will have to spend much
time arguing about the collection of the fines. It would have
been better to replace the existing Article 226 system as regards
the initial transposition of Directives by means of a system whereby
the Commission could take a decision finding a failure to transpose
a Directive by a Member State, which could then be subject to
annulment actions by a Member State, and which could subsequently
be enforced by proceedings under Article 228. This would speed
up the process of determining failures to transpose EU legislation
and encouraging transposition by means of Article 228 proceedings
and would reduce the burden on the EU judiciary, without compromising
Member States' power to defend themselves. A Member State like
the UK, with a relatively good record of transposing EU legislation,
should welcome such a move.
26. As for the EU Charter, it seems unlikely
that it will have much impact on the Court of Justice, on the
assumption, as the Charter declares and as the Court as stated
on several occasions, that it simply reaffirms the human rights
upheld at present as general principles of EU law, including (although
the Court has not yet confirmed this as regards the Charter, it
is expressly stated in the Charter) the requirement of a link
to EU law for the general principles or the Charter to apply.
For that reason, the Protocol relating to the UK (and Poland)
and the Charter is simply irrelevant, since it does not restrict
the application of the existing general principles to the UK and
Poland, and the general principles have the same content as the
Charter.
27. This interpretation is quite clearly
confirmed by the judgment of the Court of 11 December 2007 in
Viking Line, a reference from the UK about a planned trade
union action which would restrict the freedom of establishment.
The Court stated that the existing general principles of law include
the right of trade unions to strike, a right which the Charter
merely reaffirmed. So since the right to strike forms part of
the general principles, the Protocol concerning the UK and Poland
and the Charter cannot prevent the continued application of that
general principle to the UK and Poland. But the Court also stated
that the Charter reaffirmed that the right to strike is subject
to conditions as defined by national and EU law, and deferred
to the national (in this case, Finnish) definition of the scope
of trade union powers. The Court also pointed out that the right
to strike could be limited in the public interest and discussed
in some detail the extent to which the right to strike could justify
derogations from the freedom of establishment; it is clear that
the possible derogation for these purposes is not unlimited.
28. As for the ECHR, the Court of Justice
has stated for many years that the ECHR is the main source of
the general principles, and has moreover stated several times
in recent years that it should or must take account of the jurisprudence
of the European Court of Human Rights. Since the EU's accession
to the ECHR can only take place within the limits of the EU's
competences, and since the ECHR and the Strasbourg case law is
already taken into account as regards the interpretation and validity
of EU acts and Member States' acts linked to EU law, it is hard
to see how accession will lead to more cases for the Court of
Justice or a different approach to the application of the ECHR
within the scope of EU law. There may be a greater impact upon
the functioning of the Strasbourg organs, but the sub-committee
has focussed upon the impact of the Treaty of Lisbon on the institutions
of the EU.
National parliaments
29. The enhanced role of national parliaments
is welcome, although it would have been preferable to go further
and provide national parliaments with the power (following sufficient
objections) to block a proposed EU act entirely, without being
limited to specified grounds for their action. It is unfortunate
that the new Treaty does not provide more generally for national
parliaments to be informed of EU measures and proposed measures.
30. It should not be forgotten that the
powers of national parliaments as regards EU matters can always
be enhanced as regards each Member State's government by commitments
made by governments to their parliaments within each national
legal system. The upcoming bill to amend the European Communities
Act will therefore be a welcome opportunity to re-examine the
powers of the Westminster Parliament as regards the government's
conduct of EU affairs, and I hope that our parliament's powers
will be enhanced significantly so that parliamentary democracy
can be strengthened in this area.
Enlargement
31. Obviously the criteria of Article 49
TEU are essentially political. Absorption capacity is already
taken into account in the timing of enlargement and Treaty amendments,
and national parliaments already take a close interest in the
issue—although a formal information requirement does no
harm. But it is hard to see what practical impact the amendments
to Article 49 could have. They are a political gesture to those
Member States where there is a greater degree of concern about
enlargement—without raising in themselves any new practical
barrier to enlargement (thereby still satisfying those Member
States who remain broadly in favour of enlargement).
Revision procedures
32. It should not be forgotten that there
are already passerelles in the Treaty as regards JHA (including
family law), the environment and social policy. The general passerelle
clauses in the new Treaty, including the specific passerelle
clause on family law, are not objectionable since they retain
the requirement of unanimous voting by Member States' governments
as well as the possibility of blocking the application of the
clause by any national parliament. In the case of the specific
passerelle clause on family law, the powers of national
parliaments are actually enhanced as compared to the existing
legal framework.
33. The specific foreign policy passerelle
is objectionable, however, to the extent that it does not
provide for such a role for national parliaments. Equally it is
objectionable that the existing passerelles on social and
environmental law, and the new passerelle on the multi-annual
financial framework, are not subject to any form of control by
national parliaments.
34. Of course, there is nothing to prevent
Member States from providing for greater control by national parliaments
than the Treaty provides for. The existing UK law requiring national
parliamentary assent for any increase in the powers of the EP
would in any event protected the position of Westminster whatever
the wording of the new Treaty as regards national parliaments
in respect of much of the new or old passerelles, and it
will be essential to ensure when amending the European Communities
Act that all the passerelles in the new Treaty
will equally require national parliamentary assent in the UK.
35. As for the simplified revision procedures,
any amendments resulting from them are expressly subject to national
ratification procedures. It need simply be set out in the amendments
to the European Communities Act that this would always entail
national parliamentary assent in the UK.
36. In both cases it is misleading the public
to suggest that the Treaty would be "self-amending"
in future. The word "self-amending" implies that the
Treaty can literally amend itself, or at least be amended without
any involvement of Member States. But the requirement of national
government unanimity in all cases and the application of national
ratification procedures or a parliamentary blocking power in almost
all others—which the UK Parliament can easily extend to
require full national parliamentary assent in absolutely all cases—indicates
clearly that national governments and parliaments quite rightly
will retain control of any Treaty amendments. The new Treaty will
dispense with the formal trapping of formal intergovernmental
conferences in some cases, but not with the essential requirements
of national control of Treaty amendments.
14 December 2007
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