Examination of Witnesses (Questions 460
- 474)
WEDNESDAY 9 JANUARY 2008
Ms Julia Bateman, Ms Jane Golding and Mr Scott Crosby
Q460 Chairman:
When you say "they might all lapse", what do you mean
by "lapse", because if they remain in force then at
the end of five years the ECJ acquires jurisdiction over them,
does it not?
Mr Crosby: The question in the Legal Service
of the Commission is what happens when this Treaty comes into
force: should all the Third Pillar measures be re-adopted as something
else or should they stay as they are? If they stay as they are
there is no problem. If they are re-adopted there may be a gap.
Q461 Chairman:
If they are re-adopted are you not concerned with Article 9 of
the Transitional Protocol, which says that the legal effects of
acts of the institution shall be preserved until those acts are
repealed, annulled or amended, and one reading is that if they
are repealed, annulled or amended they operate as new acts subject
to the jurisdiction of the European Court of Justice.
Mr Crosby: That may be the answer.
Q462 Chairman:
The alternative is the one that Lord Blackwell was putting to
you, that if they are simply amended you have the situation where
the original act is not subject to the jurisdiction but the amendment
is, which is one view we have heard, which would be an interesting
situation.
Ms Bateman: Tortuous.
Mr Crosby: Yes. I think it is one that in an
ideal world one would wish to avoid.
Q463 Chairman:
I do not know whether you have any view as to whether in practice
existing measures are likely to be re-adopted, re-amended and
made appropriate for being subjected to the jurisdiction.
Mr Crosby: I am not privy to that sort of information.
Q464 Chairman:
Do you have a view about the jurisdiction of the European Court
which will be expanded, at least at the end of five years, to
cover all areas of freedom, security and justice and subject to
the points you just made about the UK's right to opt out of everything
and then opt back in to individual bits of the existing acquis
if it chose to? The European Court is going to have to have an
expanded jurisdiction over a wider workload covering different
areas from those it is already involved in. Does that create any
problems?
Ms Golding: My Lord Chairman, I think this question
falls to me to answer, and we have also taken views from other
members of the EU Committee on it. I think that in terms of civil
justice and judicial co-operation in civil matters, eg, asylum
and immigration, it is important. It is good because in terms
of consistency and interpretation there will be a change from
the current situation where you have some Member States which
have granted jurisdiction to the ECJ and others which have not.
You therefore can have variances of interpretation between different
Member States and also between Member States and the Member States'
courts and the ECJ currently. We also generally think that it
is an improvement in terms of granting similar treatment to cross-border
litigation matters, such as taking of evidence in cross-border
cases, service of documents, Rome I and Rome II, compared to the
treatment that currently other areas of European law, such as
employment and competition law, benefit from. Also, there is another
advantage, we think, in terms of a unified judicial architecture.
What I mean by that is that currently under the Treaty only courts
of last instance must refer. This obviously would change.
Q465 Lord Lester of Herne Hill:
What about the Protocol on Subsidiarity which allows either House
of a bicameral Parliament like ours under Article 8 to refer to
the Luxembourg Court a question as to whether a legislative measure
complies with subsidiarity? Is there a danger, if that is used,
of a high degree of politicisation of the political issue by a
judicial body?
Ms Golding: That is a question that, I must
say, we have not really considered.
Q466 Lord Lester of Herne Hill:
Nor have I because I only discovered it this afternoon. It is
in Article 8 on page 165 of the version we have got.
Mr Crosby: If I may interject, I believe that
the principle of subsidiarity is, as we speak, justiciable.
Q467 Lord Lester of Herne Hill:
I understand that, but nevertheless we know that if national parliaments,
or one chamber of them, decide to argue about the matter and refer
it to the court, although, of course, I perfectly understand that
it is a legal question, it is a legal question with a high political
content since it involves drawing a line between what is proper
within competence on the basis of a very loose criterion. My only
point is, when thinking about the jurisdiction of this court,
should we not also have in mind this expanded jurisdiction? That
is the point really. We may have to ask the Minister about that.
Ms Golding: It may be something that we can
think about and come back to you in writing on as well.
Mr Crosby: If I may say so, the issue will only
arise after the event. In other words, whether or not the principle
of subsidiarity has been infringed can only be put to the court
after the act in question has been adopted, so it is not going
to delay the legislative process.
Q468 Lord Lester of Herne Hill:
No. I am talking about the danger of politicising the court itself.
Mr Crosby: To an extent that it is not politicised
already?
Lord Lester of Herne Hill: Yes.
Q469 Chairman:
Does any of you have any view as to whether the Court needs itself
any restructuring to cater for the enhanced, increased, expanded
and different workload?
Ms Golding: I think, my Lord Chairman, that
our general feeling was that we did not see the floodgates of
cases being opened by this extension of jurisdiction.
Q470 Chairman:
Even though one is having potentially references from first instance
criminal courts from any country?
Ms Golding: I think perhaps, my Lord Chairman,
that they may think quite carefully before they make the preliminary
reference in view of timescale.
Q471 Chairman:
It depends on the criteria. Unless the criteria are changed they
may not have any option.
Ms Golding: Yes.
Q472 Chairman:
We are very short of time, and, obviously, I want to thank you,
but if there is anything you want to say on the final question,
the Charter of Fundamental Rights, which is absolutely fundamental,
then do. We are well aware of the complexities of the Charter,
and indeed of the interpretation of the protocol.
Ms Golding: Again, it falls to me to answer
this question and I have thought about it in quite a lot of detail.
Q473 Chairman:
I do not think we will stop you, but be very quick!
Ms Golding: I will try to be as quick as possible.
I believe that Article 6 will have an impact on the protection
of fundamental rights in this area. Although in principle I could
see that there ought to be little difference of substance since
the Charter is a declaration of existing rights so it does not
actually introduce any new substantive rights, the manner in which
these rights will now apply in EU law will, of course, change
because currently the ECJ can refer to the Charter for inspiration
when interpreting general principles of EU law in the same way
as it can refer, for example, to the European Convention on Human
Rights, but the source of law remains the general principles,
of course. What the Treaty of Lisbon will do is give the same
status to the Charter as the Treaties and as such it will constitute
primary law of the EU, and this means the rights enshrined in
it can be applied directly. They will be directly justiciable
before the EU courts, and at the very least this will allow a
body of case law to develop based on direct application of Charter
rights, so I think perhaps there is not a change of substance
but a change in the way the rights will be applied. It is quite
similar to the position of the European Convention on Human Rights
before the Treaty of Lisbon and post the Treaty of Lisbon. It
is the same situation that currently the European Court can refer
to the European Convention on Human Rights as inspiration for
interpreting the general principles of EU law but cannot apply
articles of the convention as such directly in EU law. For example,
this difference was highlighted in the competition law field,
which is an area in which I practise, in the Mannesmannröhren-Werke
AG case, where the Court made it quite clear, when the applicant
tried to raise two articles of the European Convention on Human
Rights before the Court, that it was not possible to do so because
the European Convention did not apply directly as such. I think
that will be a change. We do not know exactly what effect that
will have in the future but there will be a change in the application.
Q474 Chairman:
So will the Protocol cut back the effect of that change in relation
to the UK significantly or at all?
Ms Golding: As far as the opt-out is concerned,
this in my view seems to be a case in which the UK wished to be
100 per cent certain that it had covered all the angles and that
it was clear exactly how the Charter would be interpreted in UK
law. We understand that there was some concern that certain general
rights would be created as a result of recognition of the Charter
as having the same status as the Treaties. The first point I would
say about that is that it should be remembered always that the
application of the Charter is limited to the activities of the
EU institutions and also only where EU Member States are implementing
EU law. I know that there was some concern that a general right
to strike might be created under the Charter, but I think if one
looks at Article 28 of the Charter, first of all, Article 28 itself
does not provide for a general right to strike. The right to strike
is just one of the rights of collective action which are provided
for in Article 28 and they are limited by the words that they
should be interpreted "in accordance with Union law and national
laws and practices", and there is extremely recent case law,
which I had a look at before I came, decided on 11 December and
18 December 2007, two cases before the ECJ, the ITWF case
and the Laval un Partneri case, which make it quite clear
that Article 28 is subject to national laws and practices, so
there is no general unlimited right to strike. That is one point.
I do not know whether other rights were of concern but it is also
worth pointing out that a number of the rights that might become
important under the Charter are actually analogous to rights that
exist in the European Convention on Human Rights and must be interpreted
in accordance with it, so again there we do not see any great
problems.
Chairman: Thank you very much. I think
we ought to draw a line and thank you very much indeed for very
clear evidence. If there is anything you want to add by way of
afterthought when you have seen the transcript please do.
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