Supplementary memorandum by Mr John Palmer
1. What will be
the impact of the Reform Treaty on the structure of the Treaties?
Is the revision of the content of the TEU significant?
I regret the form chosen in the Reform Treaty
of substituting amendments to existing treaties for a new but
integrated text. This does, indeed, make the resulting documents
virtually unreadable. I would much have preferred a new comprehensive
treaty. Leaving aside issues of content, I found the Constitutional
Treaty a more coherent document and accessible to the interested
public.
Taken in their totality the contents of the
Reform Treaty represent a modest reform of the EU institutions
and decision making processes. My reservation is that the preservation
of the national veto in critical areas of policy—notably
the economy and foreign policy—will not be in the best interests
of the Member States in the longer run.
2. What will be the practical effect of conferring
legal personality on the Union?
A legal personality has been conferred on the
European Community since its foundation. This has enabled it to
conclude hundreds of agreements with third countries and international
organisations. Giving the EU a legal personality will enable the
Union to operate more effectively internationally. Giving the
EU a legal personality will enable to it to accede to the European
Convention on Human Rights.
3. The Treaties will contain the statement
of competences (Arts 3-6 of TOFU). Will this be helpful, and in
what contexts? Are there significant extensions of legislative
competence?
The new statement will provide a clearer definition
of the competences of the EU without adding any new fields of
responsibility. Indeed an additional declaration added to the
RT underlines the limitations on the EU's competences. The new
language to describe decision making terminology "laws"
and "framework laws" is helpful. Of course under the
principle of "conferred powers" the Union only has the
competencies which have been bestowed on it by the Member States.
The only significant area for the extension
of competencies are Climate Change—something strongly advocated
by the UK government—and in immigration, security and cross
border crimes—where regrettably—the UK has retreated
to a right to "opt in."
4. What will be the main changes relating
to the European Council? What will be the relationship between
the President of the European Council and team Presidencies in
the Council of Ministers?
The appointment of the new President of the
European Council is not a completely new development. The extension
of the period of office of the President from the traditional
rotating Presidency term of six months to two possible terms of
2½ years should help with the preparation of the European
Council, the identification of its priorities and—critically—with
follow up implementation of decisions by Heads of Government.
However, there are no clear answers at present
to how this will function in practice. This is something one would
expect to be the subject of a subsequent decision by the Council
of Ministers. One particularly sensitive questions relates to
the international representation of the Union where the new Team
Presidencies (responsible for the running of most Councils), the
President of the European Council, the President of the Commission
and the new High Representative for Foreign and Security Policy
have international roles. In my view—in the longer run it
may be sensible to create a single President in the same way as
the High Representative has been created—that is to say
with a "double accountability"—depending on the
issue in question—to the Commission or to the Member States
for matters of inter-governmental cooperation.
5. What will be the impact of the Reform Treaty
on the role and functioning of the Council of Ministers? Is the
new system of qualified majority voting (double majority 55-65%)
likely to be significant in practice? How do you see the new "double-hatted"
post of High Representative working?
Within the context of its basically modest provisions
the Reform Treaty should help make the work of the European Council
more effective. Much depends on what support the new President
has at his/her disposal. All forms of QMV have been shown to assist
in decision making—even where, formally, unanimous consensus
is still the final outcome. The delay in introducing the "double
majority" reform to possibly 2017 is greatly to be regretted.
In the longer run the Square Root principle might prove be the
optimum system for a final resolution of voting weights.
As far as the High Representative is concerned,
much depends on the quality of who is appointed but, above all,
on the degree of political will among Member States (notably the
largest) to make the CFSP objectives a reality. The development
of the External Action service should improve the quality of the
information and analysis available to the High Representative
in preparing CFSP proposals.
6. What will be the impact of the Reform Treaty
on the European Parliament? How extensive are the Parliament's
new legislative and other powers? What might the impact of those
powers be on the EU and in particular the UK? (with particular
reference to (a) the move to co-decision in agriculture and fisheries,
and (b) the amendment to the budgetary procedure)
The European Parliament has emerged with greater
powers and potentially greater influence. However there remains
a worrying "grey area" in terms of democratic accountability
where neither the European Parliament nor national Parliament
at present exercise adequate effective control. These areas include
CFSP, external security, some important aspects of police and
judicial cooperation and defence). This is a consequence of the
continued use of "inter-governmental cooperation"—rather
than the supra-national "Community method"—in
these areas.
The extension of co-decision to agriculture
and fisheries should strengthen those working for reform and greater
environmental sustainability. The impact of the European Parliament
on the wider budget is more difficult to predict. It is likely
to support those arguing for substituting a more transparent EU
tax for existing Own Resources on the revenue side and for an
increase in the current revenue ceiling.
7. What will be the impact of the Reform Treaty
on the role, functioning and membership of the European Commission?
The reduction in the size of the Commission
will be politically sensitive but it should improve the cohesion
of the "College" of Commissioners. However a much bigger
issue—the de facto trends "politicising" the Commission
is not dealt with in the Reform Treaty. Given the enhanced need
for a strong President in these circumstances it is essential
that the democratic legitimacy of the Commission President is
strengthened. The RT makes it possible for the emerging European
political parties to contest the next EP direction election in
June 2009 with their own candidates (and programmes) for the Commission
Presidency. Of course the successful candidate could not secure
office without a consensus commanding an EP majority after the
election.
8. Are there any major changes affecting the
jurisdiction of the European Court of Justice? What is the Court
likely to make of the UK Protocol on the Charter of Fundamental
Rights?
The abolition of the pillar system and the "communitarisation"
of aspects of justice and home affairs will increase the scope
of the ECJ's jurisdiction. As far as the Charter of Fundamental
Rights is concerned the UK government's stance lacks credible
justification. Of course British citizens living in other Member
States will be able to make full use of the Charter in recourse
to the ECJ. Moreover it seems inevitable that the ECJ will over
time develop jurisprudence in the field of fundamental rights
by reference to the Charter. In this context the UK protocol may
not be as water tight as is suggested.
9. How significant is the role given by the
Reform Treaty to national parliaments, and in particular to this
Parliament and this House?
The provision allowing one third of national
Parliaments to force the Commission to reconsider a proposal (and
one half of national Parliaments to force the Commission to justify
its proposal under "subsidiarity" to the Council of
Ministers and the European Parliament) is important and the extra
time for consideration of proposals useful.
The capacity of national Parliaments to exploit
this opportunity will critically depend on the speed and expertise
of their own capacity to hold governments to account and the strength
of the network linking national Parliaments where questions of
subsidiarity and proportionality may be in question. More worrying
is the dubious capacity of all Parliaments to hold the executive
to account when Member States act through inter-governmental cooperation.
This capacity can only be improved by a greatly enhanced cooperation
between the European Parliament and National Parliaments. Both
houses of the UK Parliament may wish to consider admitting British
MEPs as non voting members of scrutiny committees to strengthen
available expertise. This has been successfully implements in
some EU Member States (ie Belgium and Germany).
10. Will the Reform Treaty have any impact
on future enlargement of the EU?
Not directly. I do not anticipate further accession
decisions much before the middle of the next decade (with the
possible exception of Croatia). That is when decision will have
to be taken about the potential applicant states of the western
Balkans and Turkey. The big issue is what the eventual limits
of accession should be in future. The Foreign Secretary seems
to think that eventually the EU might offer membership to counties
in the Mediterranean and the Middle East. To the east states still
hope for eventual accession as far as the Caucasus. The issue
of Russia's final relationship with the EU remains completely
uncertain. In my view neither full membership for all these possible
candidates nor the relationships envisaged by the current European
Neighbourhood policies provide an adequate route map for the future.
I have suggested a possible third alternative at a previous hearing
of this Committee on the proposed Constitutional Treaty.
11. How important are the simplified revision
procedure, and the other passerelles included in the Reform Treaty,
likely to be?
The simplified revision procedure and the passerelles
are not very important since they all depend, at some stage, on
decisions taken on the basis of unanimity (therefore subject to
a national veto). I regret this and would have preferred a simpler
process for deciding future institutional reforms which would
have left on a limited number of clearly constitutional matters
to unanimity.
12. In your opinion, which of these institutional
changes are most significant for the UK?
The strengthening of Common Foreign and Security
Policy through the new "double hatted" High Representative
and the creation of the European External Action Service are significant.
But these institutional developments still critically depend on
the political will and the political unity of Member States in
making the CFSP and the new CSDP are reality. The decision to
"communitarise" climate change decisions and some areas
of Freedom, Security and Justice is also very important.
13. Can you explain to us the significance,
in legal terms, of adding, for the first time, a specific section
on Energy in the Treaty?
It is recognition of the critical priority which
will probably have to be given to this issue in future. My belief
is that there will be support to bring at least some key aspects
of energy security into the Community legal process in future.
14. How will the Protocol on Services of General
Interest impact on the making of EU policy in this area?
I have no clear view on this. It may strengthen
those who wish to better balance concerns about social and competitiveness
issues involved in the regulation and liberalisation of such services.
15. To what extent is it important that the
EU's commitment to "free and undistorted competition"
is contained in a protocol rather than as part of the treaty itself?
I do not see this is significant in any legal
sense.
22 November 2007
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