A primer on the EU's Reform Treaty

By: Andrew Duff, MEP

THE MANDATE OF THE INTERGOVERNMENTAL CONFERENCE

The European Council of 21-23 June agreed on the mandate for a new Intergovernmental Conference (IGC) to renegotiate the European Union’s constitutional treaty. The Portuguese presidency of the Council want the IGC to conclude at a summit meeting on 18-19 October so that the new treaty can be signed before the end of the year.

Although the main lines of the revision are clear, and the mandate tighter and more precise than usual, the IGC will have a serious job to do in eliminating political uncertainty, clarifying and confirming agreement, and ensuring legal coherence. A successful IGC should also prepare the Union's institutions and its member states for the ratification of the final treaty in time for the European Parliamentary elections in June 2009.

In recognition of its growing constitutional authority, the European Parliament is to have an unprecedented three representatives (note, not 'observers') in the IGC. Parliament is asked to come up with a proposal by October for the redistribution of seats in either 2009 or 2014.[1]

Both the Commission and Parliament will give their formal opinions, without which the IGC could not start, on 10 and 11 July, respectively. The IGC itself will open on 23 July.

'Constitution plus'

Firmly to the credit of the European Council are its decisions to mandate the IGC to:

ü      include new provisions on the security and interconnectivity of energy supply and the need for energy solidarity among member states,

ü      add the fight against climate change to the objectives of environmental policy,

ü      insert a new article codifying the role of national parliaments,

ü      refer to the Copenhagen criteria and other conditions of eligibility for membership as laid down from time to time by the European Council[2].

Simplification or complication?

The European Council agreed to restructure entirely the constitutional treaty of 2004w Reform Treaty will amend (and not replace) the existing treaties: first, the Treaty on European Union (comparable to Parts I and IV of the constitutional treaty) and, second, a Treaty on the Functioning of the Union (formerly the Treaty establishing the European Community and comparable to Part III of the constitutional treaty). Both newly amended treaties have the same legal status and will come into force simultaneously (or never).

The Union will have a single legal personality. It will accede to the European Convention on Human Rights.

The Union's 'third pillar' in justice and home affairs, established at Maastricht (1992), is fully embraced by the Community method (the 'first pillar').

The assertion of the primacy of EU law is relegated from Article I-6 of the constitutional treaty but long-standing jurisprudence on the matter is reaffirmed in a declaration.

Importantly, the greater part of the changes to the budgetary, legislative and decision making procedures of the Union laid down in the 2004 constitutional treaty will be carried forward into one or other of the two amended treaties.

The preamble of the constitutional treaty is largely suppressed, along with most of Article 1 on the principles establishing the Union, and Article 8 on the symbols.

The Charter

The Charter of Fundamental Rights (Part II of the constitutional treaty) will be published as an annex to the treaties. But the Charter will have a cross-reference in the reformed Treaty on European Union which will accord it legally binding force subject to the previously agreed limitations on its scope of application.

The United Kingdom, however, wins itself a Protocol which seeks to minimise the effect of the Charter by barring the European Court of Justice and national courts from treating the Charter as directly justiciable in cases brought against the UK government, with an especially heavy prejudice against the spread of social rights. This is bad news for the British people and EU citizens resident in Britain.

The Protocol also looks flawed juridically.[3] Regardless of the UK’s exclusion clause, the EU courts will be bound to develop jurisprudence in fundamental rights matters which steadily evolve into general principles of EU law which all member states must respect. Moreover, the European Court of Justice will be blind to the nationality of an EU citizen who chooses to invoke the Charter under EU jurisdiction.

Poland makes a unilateral declaration that seeks to prevent the Charter being used to influence national legislation in public morality or family law. It has also expressed an interest in joining the UK in trying to opt out of the Charter.

Foreign policy

The 'Union Minister for Foreign Affairs' proposed in the constitutional treaty retains both his functions and standing, including the external action service, but loses his name. He will now be HRUFASP, 'High Representative of the Union for Foreign Affairs and Security Policy'.

The arrangements for common foreign and security policy, including those for permanent structured cooperation in defence, remain substantively unaltered from the constitutional treaty. However, for the sake of the United Kingdom, a declaration is to be added giving a minimalist interpretation of common foreign and security policy obligations, seeking among other things to protect the UK's permanent seat on the UN Security Council.

Also at a British request, a specific legal base will be created for data protection in security matters.

Terminology

Apart from HRUFASP, other, apparently necessary changes in vocabulary extinguish the terms 'Constitution' and 'Community'.

'Law' and 'framework law' will be abandoned in favour of the existing 'regulations', 'directives', and 'decisions'. The hierarchy of instruments will have to be adapted accordingly ‑ yet carefully in order to fully maintain the gains made by the Parliament in 2004 with respect to parity with the Council in the choice of instrument, the delegation of powers to the Commission and the scrutiny thereof.

National parliaments

At the request of the Netherlands and France, the time given to a third of national parliaments to raise an objection to a draft law on the grounds of a breach of the principle of subsidiarity is extended from six to eight weeks.

This early warning mechanism ‑ the 'yellow card' ‑ is to be supplemented by a new procedure. If the Commission still wishes to maintain a proposal in the teeth of opposition of over half the national parliaments, its own justification and the reasoned opinion of the parliaments will be referred to the legislature (European Parliament and Council) for a specific decision during first reading on compatibility with subsidiarity.[4] (This may be termed the oranje card.)

Courtesy of the eurosceptics, any single national parliament is given the power to veto EU legislation in the field of family law.

Voting in Council

In reaction to the demand of Poland for the square root algorithm to be introduced in order to determine voting weights in the Council, the following arrangements are now foreseen:

• until 2014 the Treaty of Nice system plus the 'Ioannina compromise' (invented in 1994 to allow a further recourse to negotiation if states representing three quarters of the population or three quarters of the states object to QMV);[5]
• 2014-2017 the double majority system as laid down in the constitutional treaty (that is, 55% of states representing 65% of population) plus the ability to use the Nice blocking system plus Ioannina;
• 2017 onwards, the double majority system plus Ioannina.

The Council will live to regret this unwonted delay and obfuscation in the introduction of its new voting system. One recalls that the constitutional treaty was supposed to have entered into force already on 1 November 2006.

Competences and powers

The Czech Republic, Netherlands, Poland and the United Kingdom won a declaration on the stricter delimitation of competences to the effect that a future IGC may return competences to member states as well as confer more competences on the Union.

There will also be a Protocol in an attempt to stop the alleged spread of EU competence, in areas where competency is shared between the EU and member states, beyond the specific scope of the legislation in force.

It will be made explicit that national security remains the sole responsibility of the states. A new clause will be added to ensure that national security prevails over EU obligations in the field of administrative cooperation.

For the sake of the Netherlands and the Czech Republic, the so-called flexibility clause will be amended and supplemented by declarations to ensure that its deployment does not stretch excessively the powers of the Union, particularly in the field of foreign policy.[6]

For the sake of the United Kingdom, an 'emergency brake' clause was added to the provision on social security for migrant workers in the constitutional treaty. This is now toughened up so as to allow the European Council to take no action whatsoever.[7]

The United Kingdom already 'enjoys' many opt-outs from the EU norm in justice and home affairs and Schengen. As a direct consequence of the amalgamation of the 3^rd pillar into the 1^st, the IGC will be tasked with expanding the scope of the British derogation to the remaining areas of judicial and police cooperation.[8] However, where the UK chooses to derogate, the rest of the Union will be propelled into using the provisions for enhanced cooperation (involving at least nine member states), specifically with reference to Eurojust and police operations.

For the sake of France and the Netherlands, a Protocol will be added with the intention of protecting national services of general economic interest from the rigours of the European single market regime. It is uncertain how this helps to clarify matters beyond the assertion that services of non-economic general interest, such as public health, belong to national competency. Doubtless the wisdom of elevating protectionism into the primary law of the Union will become evident over time.

For the sake of France, a proposed new article on the objectives of the Union will be redrafted to exclude the concept of 'free and undistorted' competition. However, a Protocol is to be added so that the Commission may continue to ensure that 'competition is not distorted', and the case law confirming competition policy as a central objective of the Union remains intact.

 

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