Supplementary memorandum by Martin Howe,
QC
Following the Sub-Committee's oral evidence
session, I thought that it might be useful if I were to supplement
my oral evidence on two of the issues which were covered.
UK opt-ins and international agreements
In my oral evidence, I drew attention to the
relationship between the UK's "opt-in" protocol provisions
and the expanded power of the Union to enter into international
agreements outside the field of the CFSP under new Article 188L
TFEU. That Article will authorise the Union to conclude an agreement
with third countries or international organisations "where
the Treaties so provide or where the conclusion of an agreement
is necessary to achieve, within the framework of the Union's policies,
one of the objectives referred to in the Treaties, or is provided
for in a legally binding Union act or is likely to affect common
rules or alter their scope."
The ECJ has developed in its case law a doctrine
that the European Community has, in addition to a number of fairly
limited explicit competences to conclude external agreements,
an "implied" competence to do so in certain circumstances.
One circumstance in which, according to the ECJ, the EC has an
implied competence is where the conclusion of an international
agreement "is essential to ensure a uniform and consistent
application of the Community rules and the proper functioning
of the system which they establish in order to preserve the full
effectiveness of Community law" (Op. 1/03 of 7 Feb 2006 on
The Lugano Convention, para 128: that Opinion contains a fairly
full recapitulation of the Court's previous case law on implied
external competence.)
In my view the new Article 188L is significantly
broader than the implied competence under the existing case law
since the final words relating to "common rules" will
be stripped of the present requirement that the conclusion of
the international agreement must be directly linked to the integrity
of the internal system of rules. (In the Lugano Convention case,
the Court was of opinion that the Convention "would affect
the uniform and consistent application of the Community rules
as regards both the jurisdiction of courts and the recognition
and enforcement of judgments and the proper functioning of the
unified system established by those rules"—para 172.)
Instead, demonstrating some kind of effect would be enough to
give competence to the EU under the new Article 188L. The doctrine
of implied external competence is itself an example of the ECJ
expanding the powers of the EC under the guise of "interpretation"
of the Treaty when the Treaty itself confers no such power, and
Article 188L would take this process of expansion of external
competence considerably further.
Under the Lisbon Treaty, the incorporation of
the Justice and Home Affairs "third pillar" areas into
what is at present the "first pillar" EC structure means
that Article 188L will also apply to those areas. The EU will
be able to conclude international agreements relating to those
areas in its own name, exercising its newly conferred international
legal personality.
Where the United Kingdom has opted into or is
already bound by internal EU measures, it appears that Article
188L will provide the EU with a competence to enter into external
agreements which relate in some way to that system of common rules:
for example, the European Arrest Warrant provides an internal
EU system for extraditing alleged offenders between member states
and therefore the EU would have competence to conclude extradition
agreements with third countries since those rules would to some
extent interface with and affect the internal rules.
Such an international agreement would be concluded
under the Treaty base of Article 188L and not under a Treaty base
within Title IV of Part III of TFEU. It appears to follow that
the "opt-in" Protocol (the Protocol originally adopted
at Amsterdam, whose new title will be "Protocol on the position
of the United Kingdom and Ireland in respect of the area of freedom,
security and justice") would not cover the exercise of that
competence. Accordingly, the United Kingdom could be forced to
accept the international agreement by QMV where the corresponding
Title IV Treaty base provides for QMV for internal measures. Under
Article 188N(8), QMV is the normal rule under Article 188L unless
the agreement covers a field for which unanimity is required.
A further question is whether Article 188L would
apply so as to bind the United Kingdom in a situation where the
common rules concerned had been adopted by the other member states
but the United Kingdom had not "opted in" to the common
rules under the Protocol. Common sense might indicate that it
ought not to do so. However, neither the wording of the Treaty
nor of the Protocol makes provision for this situation as far
as I can see. In a real situation, it might be argued that the
UK's participation in an agreement by the EU with third countries
is necessary or desirable to make fully effective the system of
common rules within the other EU states. In this way the UK could
be forced to participate in the external aspects of common EU
policies within this area even if the internal application of
those policies is within the opt-in Protocol and the UK chooses
to stay out of them. This appears to be a dangerous loophole in
the protection given by the Protocol.
EU Charter of Fundamental Rights and the Poland
and UK Protocol
The Sub-Committee's original question was:
"What is the effect of the Protocol on the
application of the Charter of Fundamental Rights to Poland and
to the United Kingdom?"
In order to address this issue, one first needs
to ask what would be the effect of the Charter in the absence
of that Protocol, and then ask to what extent, if at all, the
Protocol modifies that effect either in relation to Poland and
the UK specifically, or possibly even in relation to the EU generally.
The effect of the Charter is regulated by the
so-called "horizontal" clauses in Articles 51 to 54.
The most important of these is Article 51(1), which reads:
"1. The provisions of this Charter are
addressed to the institutions and bodies of the Union with due
regard for the principle of subsidiarity and to the Member States
only when they are implementing Union law. They shall therefore
respect the rights, observe the principles and promote the application
thereof in accordance with their respective powers."
Since the Charter is addressed to the institutions
and bodies of the Union, the ECJ will be able to use the Charter
(once it has been given legal effect at Treaty level by amended
Article 6(1) EU) as a legal basis for the invalidation of acts
of the institutions including Union legislation. I cannot see
that the Protocol would affect or restrict this aspect of the
legal effect of the Charter from operating within the UK and Poland
in the same way as in all other Member States.
The Charter will also legally bind the Member
States when they are implementing Union law. The most obvious
mechanism by which this will be achieved is through the ECJ interpreting
Treaty provisions or EU legislation in accordance with the Charter.
Depending on the nature of question at issue, the effect of such
an interpretation could be either to restrict or to extend the
scope of the Treaty provision or EU legislation.
A recent example which illustrates how the Charter
could affect the scope of other rules of EC law is Case C-438/05
ITWF v. Viking Line ABP (11 Dec 2007). That case involved
a conflict between the right of a shipping line to establish in
another Member State under Article 43 EC and the right of workers
to take collective action which interferes with that right. The
ECJ observed (at paras 43-45 of the judgment):
"43. In that regard, it must be recalled
that the right to take collective action, including the right
to strike, is recognised both by various international instruments
which the Member States have signed or cooperated in, such as
the European Social Charter, signed at Turin on 18 October 1961—to
which, moreover, express reference is made in Article 136 EC—and
Convention No 87 concerning Freedom of Association and Protection
of the Right to Organise, adopted on 9 July 1948 by the International
Labour Organisation—and by instruments developed by those
Member States at Community level or in the context of the European
Union, such as the Community Charter of the Fundamental Social
Rights of Workers adopted at the meeting of the European Council
held in Strasbourg on 9 December 1989, which is also referred
to in Article 136 EC, and the Charter of Fundamental Rights of
the European Union proclaimed in Nice on 7 December 2000.
44. Although the right to take collective
action, including the right to strike, must therefore be recognised
as a fundamental right which forms an integral part of the general
principles of Community law the observance of which the Court
ensures, the exercise of that right may none the less be subject
to certain restrictions. As is reaffirmed by Article 28 of the
Charter of Fundamental Rights of the European Union, those rights
are to be protected in accordance with Community law and national
law and practices. In addition, as is apparent from paragraph
5 of this judgment, under Finnish law the right to strike may
not be relied on, in particular, where the strike is contra
bonos mores or is prohibited under national law or Community
law.
45. In that regard, the Court has already
held that the protection of fundamental rights is a legitimate
interest which, in principle, justifies a restriction of the obligations
imposed by Community law, even under a fundamental freedom guaranteed
by the Treaty, such as the free movement of goods . . . or freedom
to provide services."
Once the Charter is given direct legal effect,
it is likely that the ECJ will give greater weight to the rights
which it contains in that kind of balancing exercise. Although
in the Viking case the impact of the "fundamental right"
to take collective action was at least potentially to restrict
a Treaty right, there are likely to be instances where the impact
of the Charter could be to expand the scope or application of
EU law. For example, one can envisage that derogations from the
Working Time Directive could be interpreted more narrowly in the
light of Article 31(2) of the Charter, which provides that: "Every
worker has the right to limitation of maximum working hours, to
daily and weekly rest periods and to an annual period of paid
leave." Conceivably, exceptions or derogations in the Directive
might even be struck down as invalid because they contravene the
Charter.
Would the Protocol then prevent such an interpretation
or partial invalidation having legal effect within the UK and
Poland? Article 1 of the Protocol provides that the Charter does
not extend the ability of the ECJ or any national court to find
that the laws or administrative practices of the UK or Poland
are inconsistent with fundamental rights in the Charter, and states
that nothing in Title IV of the Charter creates justiciable rights
except insofar as the UK or Poland has provided for such rights
in national law.
In the example given, the UK's national law
would have been found to have been inconsistent not with the Charter
as such, but with another EU legal norm (ie the Working Time Directive)
when interpreted by reference to the Charter or when partially
invalidated by reference to the Charter. I consider it unlikely
that Article 1 of the Protocol would be interpreted so as to prevent
this kind of indirect but real effect of the Charter. The ECJ
would strive strongly to preserve the uniform interpretation and
application of EU laws across the EU and would be hostile to an
interpretation of the Protocol which would undermine that principle.
It would be fortified in this interpretation by the preamble of
the Protocol, which notes the wish of Poland and the UK to "clarify
certain aspects of the application of the Charter", and would
hold that a wider interpretation of Article 1 of the Protocol
would go beyond clarification.
The upshot is that on the above interpretation,
the Protocol does no more than reiterate the provision of Article
51(1) of the Charter restricting its application to member states
only when implementing Union law, and has no substantive legal
effect.
22 January 2008
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