CMLR Dougan Treaty of Lisbon

Common Market Law Review 45: 617–703, 2008  Lisbon Treaty Treaty

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© 2008  Kluwer Law International. International. Printed Printed in the Netherlands

THE TREATY OF LISBON 2007: WINNING MINDS, NOT HEARTS

MICHAEL DOUGAN*

Introduction**

1.

It would be tempting to say of the Treaty of Lisbon 2007 (TL): 1 all’s well that ends well. Except, of course, that not everything is well, and matters are far from ended. This article seeks to provide an overview of the main reforms to the Union’s primary law contained in the TL, highlighting some of the problems those reforms create and some of the issues they are likely to generate in the future. For ease of reference within this admittedly lengthy piece, the article is structured as follows: 2. 3.   4.   5. 6. 7.   8. 9. 10. 11.

the long process of constitutional reform; the Union’s constitutional architecture; the Union institutions; decision-making instruments and procedures; decision-making powers; human rights and fundamental freedoms; the Union judiciary; the Area of Freedom, Security and Justice; accession, withdrawal and amendment; some overall reflections on the revised Treaties.

The TL obviously contains a great deal more amendments to the existing Treaties than that. However, space precludes analysis of the detailed reforms to various individual fields of Union activity (including the far-reac hing changes to the Union’s external competences in general and the CFSP in particular); 2 *

Professor of European Law and Jean Monnet Chair in EU Law, Liverpool Law School. This article draws upon work presented at the Universities of Durham, Swansea, Leiden and Malta. I am very grateful to participants for their comments and discussions. I am indebted to Eleanor Spaventa, and to my colleagues on the CML Rev Editorial Board, for their invaluable suggestions on previous drafts. ** The editorial board decided that the exceptional length of this article was warranted given the importance of the new treaty, despite – at the time of wr iting – the lack of complete certainty as to whether it will enter into force. 1. O.J. 2007, C 306. 2. See Title Title V TEU and and Part Five TFEU.

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and indeed other issues of broader constitutional importance (such as certain new flexibility features,3 and the revised rules on enhanced cooperation).4 Various amendments to the Treaty establishing the European Atomic Energy Community must also go unexplored, 5  though these are largely technical – concerning the alignment of Euratom’s institutional and financial provisions with those of the Union according to the revised Treaties, while still retaining Euratom’s separate legal status and personality – and do not significantly affect the substantive regime for the regulation of civil nuclear energy.6 Before proceeding, an important note on references, necessitated by the fact that the TL will implement another major renumbering exercise across the Union’s two main treaties. Provisions of the Treaties as they are revised by the TL will be referred to by their new numbers, in accordance with the table of equivalence provided for in the Annex referred to in Article 5 TL, in either the Treaty on European Union (TEU) or the Treaty on the Functioning of the European Union (TFEU).7 Provisions of the Treaties as they currently stand, before the entry into force of the TL, will be referred to by their existing num bers, explicitly identified as such where the context so requires, in either the Treaty on European Union (TEU) or the Treaty establishing the European Community (EC).

2.

The long process of constitutional reform

It might be helpful briefly to recall the main stages in the process of constitutional reform which eventually culminated in the TL. The IGC which was concluded in December 2000, as well as agreeing the Treaty of Nice, adopted a “Declaration on the Future of the Union”, highlighting the need for a more thorough reflection upon the Union’s constitutional framework.8 One year later, the Laeken European Council’s “Declaration on the Future of the European Union” laid down the detailed parameters for this

3. E.g. the provisions on closer integration between members of the Euro-group: see Chapt. 4, Title VIII, Part Three TFEU. 4. See Title Title IV TEU and Title Title III, Part Six TFEU. For consideration, see Dougan, “The unfinished business of enhanced cooperation: Some institutional questions and their constitutional implications” in Ott and Vos (Eds.), 50 Years of European Integration: Foundations and Per spectives (TMC Asser Press, forthcoming). 5. See Protocol No 2 annexed annexed to the TL. 6. In which regard, note Declaration No 54 annexed to the Final Act. 7. In fact, the author benefited greatly from a consolidated version of the Treaties Treaties published in January 2008 by the UK Foreign and Commonwealth Office: Cm 7310 (available via www. fco.gov.uk). 8. See Presidency Conclusions of 8 Dec. 2000.

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and indeed other issues of broader constitutional importance (such as certain new flexibility features,3 and the revised rules on enhanced cooperation).4 Various amendments to the Treaty establishing the European Atomic Energy Community must also go unexplored, 5  though these are largely technical – concerning the alignment of Euratom’s institutional and financial provisions with those of the Union according to the revised Treaties, while still retaining Euratom’s separate legal status and personality – and do not significantly affect the substantive regime for the regulation of civil nuclear energy.6 Before proceeding, an important note on references, necessitated by the fact that the TL will implement another major renumbering exercise across the Union’s two main treaties. Provisions of the Treaties as they are revised by the TL will be referred to by their new numbers, in accordance with the table of equivalence provided for in the Annex referred to in Article 5 TL, in either the Treaty on European Union (TEU) or the Treaty on the Functioning of the European Union (TFEU).7 Provisions of the Treaties as they currently stand, before the entry into force of the TL, will be referred to by their existing num bers, explicitly identified as such where the context so requires, in either the Treaty on European Union (TEU) or the Treaty establishing the European Community (EC).

2.

The long process of constitutional reform

It might be helpful briefly to recall the main stages in the process of constitutional reform which eventually culminated in the TL. The IGC which was concluded in December 2000, as well as agreeing the Treaty of Nice, adopted a “Declaration on the Future of the Union”, highlighting the need for a more thorough reflection upon the Union’s constitutional framework.8 One year later, the Laeken European Council’s “Declaration on the Future of the European Union” laid down the detailed parameters for this

3. E.g. the provisions on closer integration between members of the Euro-group: see Chapt. 4, Title VIII, Part Three TFEU. 4. See Title Title IV TEU and Title Title III, Part Six TFEU. For consideration, see Dougan, “The unfinished business of enhanced cooperation: Some institutional questions and their constitutional implications” in Ott and Vos (Eds.), 50 Years of European Integration: Foundations and Per spectives (TMC Asser Press, forthcoming). 5. See Protocol No 2 annexed annexed to the TL. 6. In which regard, note Declaration No 54 annexed to the Final Act. 7. In fact, the author benefited greatly from a consolidated version of the Treaties Treaties published in January 2008 by the UK Foreign and Commonwealth Office: Cm 7310 (available via www. fco.gov.uk). 8. See Presidency Conclusions of 8 Dec. 2000.

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 process of constitutional reflection. 9 Building on the perceived success of the Convention which had previously drafted the Charter of Fundamental Rights, the Laeken Declaration also established a “Convention on the Future of Europe” to prepare a set of proposals for presentation to the Member States at a future IGC. That Convention – composed of representatives of the Member States, the European Parliament, the national parliaments and the Commission  – commenced its work in February 2002 and presented pr esented a draft “Treaty establishing a Constitution for Europe” to the European Council in July 2003. 10 An intergovernmental conference was convened in autumn 2003 to deliberate on the Convention draft and agree on a new Treaty, as required under existing Article 48 TEU, leading to signature of the Treaty establishing a Constitution for Europe (Constitutional Treaty or CT) at a ceremony in Rome on 29 Octo ber 2004.11 According to Article IV-447 CT, the Treaty had to be ratified by the High Contracting Parties in accordance with their respective constitutional requirements, with a view to entering into force on 1 November 2006. At first, ratification by national parliaments (and, in the case of Spain, through a popular referendum) proved unproblematic. However, the ratification process descended into crisis following negative results in popular referenda in France (29 May 2005) and the Netherlands (1 June 2005). In the light of those events, the European Council meeting in June 2005 called for a “period of reflection” across all Member States.12 Opinion proved to be deeply divided about the best way forward.13 For example, some believed that the CT was effectively dead 9. See Presidency Conclusions Conclusions of 14 Dec. Dec. 2001. 10. O.J. 2003, C 169. See, for general analysis of the Convention draft, e.g. Dashwood, “The Draft EU Constitution: First impressions”, 5 CYELS (2002–2003), 419; Dougan, “The Convention’s Draft Constitutional Treaty: Bringing Europe closer to its lawyers?”, 28 EL Rev. (2003), 763; Kokott and Ruth, “The European Convention and its Draft Treaty establishing a Constitution for Europe: Appropriate answers to the Laeken Questions?”, 40 CML Rev. (2003), 1315; Lenaerts and Gerard, “The structure of the Union according to the Constitution for Europe: The emperor is getting dressed”, 2 9 EL Rev. (2004), 289. 11. O.J. 2004, C 310. See, for general analysis of the CT, CT, e.g. Dashwood, “The EU Constitution: What will really change?”, 7 CYELS (2004/2005), 33; Constantinesco, Gautier and Michel (Eds.),  Le Traité établissant une Constitution pour l’Europe (Presses Universitaires de Stras bourg, 2005); Arnull, Dashwood, Dougan, Ross, Spaventa and Wyatt, Wyatt, Wyatt & Dashwood’s EU  Law (Sweet & Maxwell, 5 th ed, 2006) Chapt. 11. 12. See the Declaration by the Heads of State or Government of the Member States of the European Union on the Ratification of the Treaty establishing a Constitution for Europe (18 June 2005). The “period of reflection” was extended by the European Council meeting in June 2006 (see Presidency Conclusions of 16 June 2006). N ote also the Commission’s “Plan D for Democracy, Dialogue and Debate”: COM(2005)494 and COM(2006)212. 13. See further: Editorial, “What now?”, 42 CML Rev. Rev. (2005), 905; Editorial, “What should replace the Constitutional Treaty?”, 44 CML Rev. (2007), 561. Also, e.g. Rossi, “En cas de nonratification… Le destin périlleux du ‘Traité-Constitution’”, 40 RTDE (2004), 621.

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and the best option was to make the existing post-Nice arrangements work as  best they could in the enlarged Union;14 possibly also “cherry picking” some of the more uncontroversial reforms proposed under the CT and adopting them (so far as possible) through secondary legislation, changes to institutional rules of procedure and new inter-institutional agreements.15 Others did not give up hope that the CT might still enter into force: Member States such as Belgium and Luxembourg pressed ahead with ratification and secured positive votes; it was possible that (as with the Danes over Maastricht and the Irish over Nice) a second referendum could eventually be held in France and the Netherlands, with changed political circumstances increasing the chances of popular ap proval. In the end, however, the outcome of the “period of reflection” was that the European Council, meeting in June 2007 under the presidency of Germany, agreed to declare the CT defunct; it approved the mandate for another intergovernmental conference charged with drafting a new “Reform Treaty”.16 That Reform Treaty was to shed the form, language and symbols of a “European Constitution”, in favour of having another amending Treaty, similar in nature to the Single European Act, Treaty of Amsterdam or Treaty of Nice; but within this new garb, to preserve as many as possible of the technical reforms  proposed under unde r the old CT which were intended to improve the Union’s effectiveness, efficiency and accountability acc ountability.. The IGC itself was convened by the Portuguese Presidency in July 2007, 17 and reached political agreement on the text in October 2007. The Reform Treaty was then signed by the Member States at a ceremony in Lisbon on 13 December 2007. Assuming that ratification proceeds without upset, the new Treaty should enter into force on 1 January 2009, before the European Parliament elections scheduled for June of that

14. In which regard, consider the findings of Wallace, Wallace, Adapting to to Enlargement Enlargement of of the EuroEuro pean Union: Institutional Practice Since May 2004 (Trans-European Policy Studies Association, December 2007) available at www.tepsa.be/TEPSA%20-%20Wallace%20Publication%20 www.tepsa.be/TEPSA%20-%20Wallace%20Publication%20 website.doc. 15. Consider, e.g. the Council’s Council’s moves towards greater transparency in its legislative delibdeliberations through amendments to its Rules of Procedure, and the European Parliament’s greater influence over Commission implementing powers thanks to amendments to the Second Comitology Decision: sections 4.2 and 5.3.3 (respectively). See further: Editorial, “In the meantime … Further progress in transparency and democracy while the Constitution is dormant”, 43 CML Rev. (2006), 1243. 16. See Presidency Conclusions Conclusions of 23 June 2007. 17. 12004/07. The IGC was formally based on a proposal submitted submitted by Germany (11222/07) reproducing the European Council mandate. Note the Commission’s generally positive opinion on the IGC mandate (COM(2007)412 Final); as well as the more ambivalent opinion of the European Parliament (Resolution of 11 July 2007). Note also the opinion of the European Central Bank (annexed to 11624/07).

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year.18 At the time of writing, only Ireland plans to hold a popular referendum on the TL; the remaining Member States will ratify by parliamentary votes alone.19

3.

The Union’s constitutional architecture

The most obvious difference between the CT and the TL concerns their respective approaches to the existing Treaties. Whereas the Laeken Declaration had posed the question whether reform of the current Treaties might eventually lead to the promulgation of some form of European constitution, the subsequent Convention decided to present its proposals already in the form of a “Treaty establishing a Constitution for Europe”. That ambiguous phrase acknowledged the international law basis of the text, but nodded towards a more fundamental status.20 For some, that more fundamental status was essentially a matter of simplification: a mere recasting of the ground rules governing the Union’s institutions and competences, based upon the existing Treaties as interpreted by the Court of Justice, which were anyway already acknowledged to enjoy a “constitutional character”.21 In particular, the CT would have re pealed and replaced the existing Treaties (including Rome, Maastricht, Amsterdam and Nice) in their entirety, brought an end to the current pillar structure, and abolished the European Community as a distinct legal entity. Instead, there would have been a unitary European Union, based upon a single Constitutional Treaty, and possessing its own legal personality. For others, however, the very idea of a “constitution” suggested something more far-reaching: accustomed to understanding political systems according to the model of the nation State, and unwilling or unable to conceive of a constitutional order which could indeed be “constitutional” without being “national”, the new European Union appeared either (to those who at least knew

18. See Art. 6(2) TL. 19. At the time of writing, the following Member States had already successfully ratified the TL: France, Hungary, Malta, Romania, Slovenia. For France, ratification required a constitutional amendment: see Décision no. 2007–560 DC of Le Conseil constitutionnel (20 Dec. 2007). 20. For broader discussion, see von Bogdandy, “The prospect of a European Republic: What European citizens are voting on”, 42 CML Rev. (2005), 913 ; Birkinshaw, “Constitutions, constitutionalism and the State”, 11 EPL (2005), 31; Dyèvre, “The constitutionalisation of the Euro pean Union: discourse, present, future and facts”, 30 EL Rev. (2005), 165. 21. See, e.g. Opinion 1/91,  Draft Agreement between EEC and EFTA, [1991] ECR I-6079,  para 21. See further, e.g. Piris, “Does the European Union have Constitution? Does it need one?”, 24 EL Rev. (1999), 557; Craig, “Constitutions, constitutionalism and the European Union”, 7 ELJ (2001), 125.

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something of its institutions and competences) as a rather poor imitation of a fully-fledged federal government, or (to those whose knowledge was rather less probing) as a purported “super-state” directly threatening the continued existence of their own national sovereignty. Unfortunately, such misperceptions were further fuelled by other proposals brewed up in the flush confidence of the Convention and adopted by the Member States at the 2004 IGC: trimmings such as the Union’s flag, motto and anthem, whose symbolic resonance attracted disproportionate attention; and terminologies such as the “Minister for Foreign Affairs”, and the renaming of regulations and directives as “laws” and “framework laws” (respectively), that wantonly encouraged comparisons to national political systems, seldom with favourable results. The Member States, during their “period of reflection”, seem to have concluded that failure to ratify the CT was attributable, at least in part, to the overambition of the Convention’s grand constitutional designs, and / or that salvaging the substantive reforms contained in the CT would be easier to achieve if they shed the form and language of a constitution. Accordingly, the Euro pean Council’s mandate for the 2007 IGC declared that “[t]he constitutional concept… is abandoned”:22  gone are the repeal-and-replace approach to the existing Treaties, the title “Constitution” and the various trimmings and terminologies referred to above.23 Instead, the TL simply amends the existing Treaties (albeit extensively) along the same lines as the Treaties of Amsterdam and  Nice. However, the Union still replaces and succeeds to the European Community,24 the Union as a whole will possess its own legal personality, 25 and most of the technical reforms proposed under the CT are reincarnated – though sometimes with important alternations – by way of insertion into the revised Treaties.26 The Treaty on European Union, which retains its present title, contains certain core “constitutional principles” such as those setting out the Union’s ob jectives, the limits of its competences, and respect for fundamental rights (Title I), those identifying the democratic principles upon which the Union is founded (Title II), those dealing with the Union’s institutions (Title III) and the pos-

22. Presidency Conclusions, Annex I. 11177/07 p. 15. 23. Though note Declaration No 52 annexed to the Final Act. Two further victims of abandoning the “constitutional concept” – the decision to incorporate the Charter of Fundamental Rights by reference rather than full text, and the deletion of any express clause affirming the  primacy of Union over national law in favour of a declaration recalling the supremacy of Community law according to the ECJ’s established case law – are dealt with in greater detail in sections 7 and 11.3 infra (respectively). 24. Art. 1, third para TEU. 25. Art. 47 TEU. 26. The latter providing the basis for the great majority of this article’s analysis.

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sibility of engaging in enhanced cooperation (Title IV). However, the bulk of the text of the TEU – in fact, Articles 21 to 46 – is found in Title V: general  provisions on external action and specific provisions on the CFSP. Title VI contains the final provisions dealing with issues such as legal personality, amendment of the Treaties and accession to / withdrawal from the Union. The Treaty of Rome is renamed the Treaty on the Functioning of the Euro pean Union and, according to Article 1(1), “organises the functioning of the Union and determines the areas, delimitation of, and arrangements for exercising its competences”. Part One contains certain other core “constitutional  principles” such as the various categories of Union competence, as well as the  provisions of general application intended to have pervasive effects throughout the Union’s activities (such as ensuring sex equality, safeguarding the environment and protecting personal data). Part Two concerns non-discrimination and Union citizenship, while Part Three contains the substantive provisions on Union policies and internal actions. Part Four continues to deal with the association of overseas countries and territories, and a new Part Five covers external action by the Union (other than the CFSP). Part Six contains more detailed provisions on the functioning of the Union’s institutions, the arrangements governing its finances and the detailed rules on enhanced cooperation. The general and final provisions make up Part Seven. As usual, the TL introduces a series of new protocols, as well as amending many of the existing protocols, which form an integral part of the Treaties;27 and the Final Act is accompanied by a series of declarations a dopted either by the entire IGC or by individual Member States. At first glance, it is difficult to identify any compelling reason why the Union should continue to be founded on two separate treaties, and the logic of apportioning provisions between the two texts is sometimes hard to fathom: for example, the principles of attributed powe rs, subsidiarity and proportionality are located in the TEU, whereas the provisions on exclusive, shared and complementary competences are found in the TFEU. However, the TL’s ap proach represents the price to be paid for jettisoning the “constitutional concept”: if two treaties are what we currently have, and the TL is merely amending those treaties in a technical fashion, then two treaties is what should emerge at the end; to repeal one of those treaties, and leave the other in places indistinguishable from the old CT, might be more difficult to sell to an already sceptical public. Moreover, it is possible to identify a rough-and-ready division of labour between the two texts: besides the detailed CFSP provisions, the TEU has more the character of a mission statement coupled with some basic organizing principles on issues such as the institutional architecture; the TFEU 27. Art. 51 TEU.

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seems more concerned with the nitty-gritty work of setting out the legal bases required to fulfil that mission statement, and fleshing out more of the details on the institutional framework. Indeed, the TEU contains no legal bases for the adoption of Union legislation; all Union legislative acts will be adopted pursuant to the TFEU. 28 Although that rough-and-ready division might suggest a de facto order of  precedence between the two texts, Article 1, third paragraph TEU and Article 1(2) TFEU each state that the Union is founded on both Treaties, which shall have the same legal value. In other words, the TEU and TFEU – together with their various protocols – should be read as a seamless ensemble of primary law for the Union. However, that does not render the existence of the two Treaties merely a matter of historical nostalgia, or political expediency. It raises some interesting legal issues, not least concerning the degree to which the CFSP remains distinct from the remainder of the Union legal order, and the nature of its relationship to other fields of Union action. It would surely be inappropriate, after the TL, to continue conceptualizing the Union in terms of distinct “pillars” each possessed of their own peculiar legal sub-orders. After all, the Community which makes up the existing First Pillar will be suppressed as an entity separate from the Union; the provisions on police and judicial cooperation in criminal matters (PJC) which make up the existing Third Pillar will be absorbed into Title V, Part Three TFEU on the Area of Freedom, Security and Justice (AFSJ).29 In fact, the degree of crossfertilization between the TEU and the TFEU, on issues such as the Union’s objectives, competences and institutional framework, is such that pillar-talk  becomes largely meaningless or even positively unhelpful. Across the great majority of legal bases on internal and external Union action, variations in the strength and scope of decision-making powers, the applicable decision-making procedures or the available legal instruments certainly exist – but they are not such as to call into question the essential unity of the underlying legal order. Exceptional treatment is reserved only for the CFSP, which is not only distinguished by its placement in the TEU rather than the TFEU, but is also more strongly differentiated from the rest of the Union’s policies: for example, by the continued predominance of unanimity within the European Council and the Council, the express exclusion of any competence to adopt legislative ac ts, the special role of the High Representative for Foreign Affairs, the more mar-

28. However, the TEU does provide for the adoption of certain non-legislative acts, especially as regards the functioning of the Union institutions and in the field of the CFSP. On legislation and non-legislation: section 5. 29. Section 9.

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ginal influence of the Commission and especially the European Parliament, and the virtual exclusion of the jurisdiction of the Court of Justice. 30 Moreover, although the peculiar legal instruments currently available under the Second Pillar (such as joint actions and common positions) will be replaced by decisions, as currently employed by the Community and now classified as a generic legal instrument for the entire Union, 31 it is arguable that any decisions adopted specifically pursuant to the CFSP will remain distinct, as regards their  potential effects within the national legal systems, from decisions adopted in any other field of Union activity. In particular, the deletion from the TL of any express provision that Union acts  per se  have primacy over national law,32 coupled with the IGC’s declaration recalling the principle of supremacy as developed in the case law of the Court of Justice, with particular reference to the Council Legal Service’s opinion on the supremacy of Community law,33 all support the view that CFSP acts should not generally be capable of having independent effects (such as direct effect and / or primacy) within the domestic legal orders.34  In any case, it is expressly provided that the “flexibility clause” currently found in Article 308 EC, and in the revised Treaties as Article 352 TFEU, cannot be used to attain CFSP objectives. 35 Physical separation and institutional differentiation hardly warrant continuing to treat the CFSP effectively as a separate “pillar”; to recognize the existence of such an autonomous sub-system would undermine the clear intention of the revised Treaties that the Union should constitute a unitary entity. But the special characteristics of the CFSP mean that certain problems will continue to arise, in particular, that of distinguishing between when the Union should act using its ordinary external relations powers, and when it should instead exercise its special CFSP powers. The pillars may have gone, but similar problems of cross-pillar coordination will persist, although they would now be better termed problems of determining the correct legal basis. What principles do the revised Treaties lay down for resolving this legal basis issue? In fact, no clear answer emerges from the texts. Currently, the choice between employing CFSP powers qua Union, or ordinary external action powers qua Community, is assisted by (existing) Article

30. See Art. 24(1) TEU. Also Art. 31 TEU. On the High Representative: section 4.5. On the ECJ’s CFSP jurisdiction: section 8.2. 31. Section 5.1. 32. Cf. Art. I-6 CT. See section 11.3. 33. Declaration No 17 annexed to the Final Act. 34. See further, e.g. Arnull at al. op. cit. supra note 11, para 11–013. 35. Art. 352(4) TFEU. See section 6.1. Note that the revised Treaties also envisage the adoption of specific data protection rules within the context of the CFSP: see Art. 39 TEU and Art. 16(2) TFEU.

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47 TEU, according to which nothing in the Treaty on European Union shall affect the EC Treaty. That provision has already been interpre ted by the Court to mean that, if a given initiative is possible under the First Pillar, then the Third Pillar provisions should not be used instead, as a means of encroaching upon the Community’s own criminal law powers. 36  It seems likely that the same “Community preference” approach will also determine the choice between the First and Second Pillars as the proper basis for external a ction.37 The  problem is that, according to the new provisions contained in Article 40 TEU, implementation of the CFSP should not affect other Union action under TFEU  powers, but conversely, implementation of other Union action under the TFEU should not affect the exercise of Union competences as regards the CFSP. Without an express presumption favouring one body of Treaty provisions over another, it will be left to the ECJ to establish an alternative set of criteria (such as a lex generalis / lex specialis rule) for allocating the exercise of the Union’s external relations powers between the CFSP provisions of the TEU and the ordinary external action powers of the TFEU.38

4.

The Union institutions

The main provisions on the Union institutions are contained in Title III TEU and Part Six TFEU. To the existing list of Union institutions, Article 13(1) TEU adds two newcomers: the European Central Bank;39 and the European Council. The latter’s position deserves considerable attention, as do various reforms to the Council, the European Parliament and the Commission. 40 The new High Representative also warrants brief attention, while the Court of Justice will be considered in greater detail later.41 36. See Case C-170/96, Commission v. Council , [1998] ECR I-2763; Case C-176/03, Commission v. Council , [2005] ECR I-7879; Case C-440/05, Commission v. Council , judgment of 23 Oct. 2007, nyr. 37. See A.G. Mengozzi Opinion of 19 Sept. 2007 in Case C-91/05, Commission v. Council ,  pending. 38. An issue discussed extensively by Marise Cremona and Alan Dashwood at a seminar on the Lisbon Treaty held at Durham University in December 2007. For an indication of how the ECJ might approach this issue, consider Case C-403/05,  European Parliament v. Commission,  judgment of 23 Oct. 2007, nyr. 39. Despite requests for amendments to the draft text so as to confer upon the ECB a special institutional status: see the Letter from the President of the European Central Bank to the Portuguese Presidency, “Clarification of the institutional status of the ECB” (2 Aug. 2007 ). 40. See, for analysis of the CT’s institutional provisions, e.g. Dashwood and Johnston, “The institutions of the enlarged EU under the regime of the Constitutional Treaty”, 41 CML Rev. (2004), 1481. 41. Section 8.

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European Council 

According to Article 15 TEU, the European Council shall provide the Union with the necessary impetus for its development and shall define the general  political directions and priorities thereof. That provision also states that the European Council shall not exercise legislative functions. However, numerous  provisions of the revised Treaties give the European Council power to take legally binding decisions of a “quasi-constitutional” or “high politics” nature: for example, on the Council’s future configurations and system of rotating  presidencies;42 the future composition of the European Parliament as regards the allocation of MEPs between Member States; 43 the future rotation of Commissionerships between the Member States (including the power to alter the number of Commissioners);44 proposing the candidate for Commission President and final appointment of the Commission after its nominees have received the consent of the European Parliament;45 appointing the High Representative for Foreign Affairs;46 defining the strategic interests and objectives of the Union in the field of external relations, 47 and its strategic guidelines for action within the Area of Freedom, Security and Justice.48 As we shall see further below, the European Council also plays an important role in issues such as mediating after the use by a Member State of an “emergency brake” within the Council,49 or in situations where lack of unanimity within the Council could lead to a group of Member States being exceptionally authorized to embark on an enhanced cooperation;50 and also as regards accession to / withdrawal from the Union,51  and amendment of the Treaties by the ordinary or various special revision procedures.52 The TL follows the approach of the CT in bringing to an end the current system of rotating the Presidency of the European Council among the Member States. That system was deemed to create problems of consistency and conti-

42. Art. 236 TFEU. Section 4.2. 43. Art. 14(2) TEU. Section 4.3. 44. Art. 17(5) TEU and Art. 244 TFEU. Section 4.4. 45. Art. 17(7) TEU. Section 4.4. 46. Art. 18(1) TEU. Section 4.5. 47. Art. 22(1) TEU. 48. Art. 68 TFEU. See also e.g. Art. 42(2) TEU on the decision to adopt a common defence  policy; Art. 86(4) TFEU on expanding the powers of a future European Public Prosecutor’s Office; Art. 7(2) TEU on determining that a Member State is guilty of a serious and persistent  breach of the Union’s core values. 49. Section 5.2.4. 50. Section 9.1. 51. Sections 10.1 and 10.2 (respectively). 52. Section 10.3.

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nuity in defining the Union’s political agenda; the tasks associated with the Presidency had become too demanding to be discharged effectively by a person who acts at the same time as his / her Head of Government; certain concerns were voiced about the potential for conflicts of interest between the President’s role as impartial chair of the European Council and his / her duty to protect the national interests of the relevant Member State; moreover, the  benefits of rotation in encouraging a sense of “ownership” by all Member States over the European Council had become tenuous in a Union of 27 countries. The European Council therefore acquires a more stable Presidency. Article 15(5) TEU provides that the President is to be elected by the European Council, acting by QMV, for a term of two and a half years (renewable once). According to Article 15(6) TEU, he / she will be responsible for chairing European Council meetings, ensuring the preparation and continuity of the Euro pean Council’s work, facilitating cohesion and consensus within the European Council, presenting reports to the European Parliament after European Council meetings, and representing the EU externally at his / her level as regards the CFSP. 53 Article 15(6) TEU expressly states that the President of the European Council may not hold a national office. While there is no explicit bar to his / her holding another office within the Union itself, one may discount the theoretical possibility for the same person to be President of the European Council and of the Commission: such an accumulation of offices would be inconsistent not only with the implicit assumption throughout the text of the revised Treaties that the two posts are to be occupied by different individuals, 54 but more fundamentally with the spirit of the Union’s inter-institutional balance, which entrusts such different responsibilities, and the representation of such different interests, to the European Council and the Commission. One assumes that the office of European Council President will be occupied  by an experienced politician who has previously attained high office in his / her country of origin.55 In the hands of such a figure, the European Council Presidency could become a formidable new fulcrum of power – less in a formal sense, since the revised Treaties give the Presidency itself no real decision-making powers independent of the other members of the European Council, but rather in providing a strong and focused nucleus at the very centre of Union policy-making with the opportunity to harness the European Council’s 53. Though without prejudice to the powers of the new High Representative for Foreign Affairs (see section 4.5). 54. And note also Declaration No 6 annexed to the Final Act. 55. At the time of writing, there is lively speculation about the prospects of appointing former UK Prime Minister Tony Blair: France’s Nicholas Sarkozy is reported to be in favour, Germany’s Angela Merkel to have serious reservations (see, e.g. The Guardian, 20 Feb. 2008).

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strategic influence, and thereby channel the activities of the Union’s other main political institutions too. However, much will depend not only on the ambitions and the abilities of the individual office-holder, but also on the precise latitude (and degree of administrative support) offered to the Presidency itself by the European Council under its own internal institutional arrangements;56 as well as the attitudes of the Heads of State or Government, many of whom may not take well to the idea of replacing a system based on the principle of primus inter pares with the conferral of significant imperative  powers upon a figure lacking any direct electoral mandate and (according to the revised TEU) largely unaccountable short of impediment or serious misconduct.57 Indeed, public criticism by a current Commissioner of the shady  backroom bargaining among Member States to identify the first new-style President of the European Council perhaps foreshadows the limits that such a shallow reservoir of legitimacy may in itself impose upon his / her effective  political power.58 Appointing someone with established Union-wide or even global recognition might well energize the workings of the European Council  – but it also carries the risk either of creating a Frankenstein’s Monster, or of trapping a very big fish within a rather small pond. 59 According to Article 15(4) TEU, except where otherwise provided, the European Council shall reach decisions by consensus. True enough, some decisions are to be adopted by unanimity, 60 certain others by QMV.61 Where relevant, Article 235(1) TFEU provides that the definition of a qualified majority within the European Council is based on that applicable to the Council (though, in that context, the European Council President and the Commission President do not vote).62 For those purposes, under Article 3 of the Protocol on Transitional Provisions, the definition of QMV within the European Council will, until 31 October 2014, be that derived from the Treaty of Nice and applicable also in respect of Council acts; as from 1 November 2014, the new definition of QMV contained in Article 16(4) TEU will be activated.63 However, unlike the situation within the Council, there does not appear to be any option, be-

56. See Art. 235(3) TFEU on adoption of the European Council’s Rules of Procedure. At the time of writing, the Presidency’s “job description” is being negotiated by the Member States. 57. Cf. Kokott and Ruth, op. cit. supra note 10, 1337–8. 58. As reported on www.euobserver.com (8 February 2008). 59. On the European Council President’s institutional role, see further section 11.2. 60. I.e. so that abstentions will not prevent adoption of the relevant decision. E.g. Arts. 14(2), 17(5), 42 TEU; Art. 86(4) TFEU. 61. E.g. Arts. 15(5), 17(7), 18(1) TEU; Art. 236 TFEU. 62. Section 4.2. 63. As with the Council, higher thresholds apply where the relevant proposal does not emanate from the Commission o r the High Representative: see Art. 238(2) TFEU.

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tween 1 November 2014 and 31 March 2017, for members of the European Council to pick-and-choose between the old and new definitions of QMV.64 4.2.

The Council

Article 16(6) TEU expressly refers to two Council configurations: General Affairs and Foreign Affairs. The European Council must establish a list of other Council configurations.65  Article 16(9) TEU states that the Presidency of Council configurations66 shall be held by the Member States on the basis of equal rotation, in accordance with conditions established by the European Council.67 The draft text of those conditions is to be found in Declaration No 9 annexed to the Final Act of the TL. The Presidency should be held by preestablished groups of three Member States for a period of 18 months. Groups are to be made up on the basis of e qual rotation, taking into account the diversity of Member States and their geographical balance. Unless they decide otherwise, each member of the group shall in turn chair for six months the relevant Council configurations, with the other members assisting the Chair on the basis of a common programme. It is anticipated that this arrangement, which should be adopted on the TL’s date of entry into force, will facilitate greater coherence and continuity in the Council’s activities – assuming, of course, that the relevant Member States work together in a cooperative and constructive manner. According to Article 16(3) TEU, the Council shall act by QMV, except where the Treaties provide otherwise. The definition of QMV was perhaps the thorniest issue to be addressed by the Convention and the subsequent IGCs. On the one hand, it was generally considered that the post-Nice definition of QMV, consisting of more and higher thresholds before a qualified majority is attained, constitutes an obstacle to efficient decision-making within the Council. On the other hand, the Member States were not prepared to swallow the Convention’s relatively straightforward proposal that a qualified majority should consist of a simple majority of Member States representing at least 60% of the Union population. 68 Negotiations were further complicated by the

64. Art. 3(2) of the Protocol on Transitional Provisions refers only to a member of the Council, not of the European Council. 65. Acting by QMV under Art. 236(a) TFEU; pending which, see Art. 4 Protocol on Transitional Provisions. 66. Other than Foreign Affairs, which is presided over by the High Representative for Foreign Affairs (section 4.5). 67. Acting by QMV under Art. 236(b) TFEU. 68. See Art. 24(1) of the Convention’s draft Constitutional Treaty; under Art. 24(2), higher thresholds were to apply in respect of proposals not emanating from the Commission or the

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determination of the incumbent Polish administration to preserve the highly favourable if disproportionate voting influence its country (together with Spain) had previously secured under the Treaty of Nice. The resultant provisions, which can be divided into three periods, and apply regardless of whether the Council is adopting legislative or non-legislative acts, 69  are hardly a triumph of simplification. Nevertheless, they succeed in consigning to the history books the idea of weighted votes, which gave disproportionate voting  power to the smaller Member States and were increasingly unsustainable in the enlarged and enlarging Union, while retaining safeguards against the possibility that the larger Member States might, by the sheer size of their populations, find it too easy either to steamroll or scupper decisions within the Council. The first period runs, according to Article 16(5) TEU and Article 3(3) of the Protocol on Transitional Provisions, until 31 October 2014: the definition of QMV as currently contained in Article 205 EC will continue to apply, i.e. the “triple threshold” introduced by the Treaty of Nice requiring a weighted ma jority of votes from a simple majority of Member States representing at least 62 percent of the actual Union population. The second period runs from 1  November 2014 until 31 March 2017. According to Article 16(4) TEU, a new definition of QMV will come into play, i.e. consisting of at least 55 percent of Member States, comprising at least 15 countries, representing at least 65 percent of the actual Union population; furthermore, a blocking minority must include at least 4 Member States, failing which the qualified majority shall be deemed attained (a provision intended to reassure the smaller Member States that a few very large countries cannot form an automatic blocking minority solely on the basis of their populations). 70 However, during this period, pursuant to Article 16(5) TEU and Article 3(2) of the Protocol on Transitional Provisions, any Member State may instead request that the vote be taken in accordance with the old “triple threshold” definition of a qualified majority as inherited from Nice. Finally, as from 1 April 2017, the new definition of QMV contained in Article 16(4) TEU alone will apply.71 To complicate matters further, Poland had lobbied with excruciating persistence that the text of the revised Treaties should contain a formal mechanism  – often referred to as “the Ioannina Compromise” – for protecting the interests of dissenting countries, where the qualified majority made up by the other  proposed Minister for Foreign Affairs. 69. On the distinction between legislative and non-legislative acts: section 5.1. 70. Higher thresholds apply where the Council does not act on a proposal from the Commission or the H igh Representative: see Art. 238(2) TFEU. 71. Again, with higher thresholds applicable where the proposal does not emanate from the Commission or the High Representative: see Art. 238(2) TFEU.

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Member States was relatively slim. In the end, the 2007 IGC agreed to the following package of reforms. First, Declaration No 7 annexed to the Final Act of the TL contains the text of a draft decision containing the Ioannina Compromise itself, to be adopted by the Council when the TL is signed, 72 with a view to entering into force on the same day as the TL. According to that decision,  between 1 November 2014 until 31 March 2017, if countries representing at least three-quarters of the Member States or of the actual Union population necessary to constitute a blocking minority resulting from the application of Article 16(4) TEU73 indicate their opposition to the adoption of an act by QMV, the Council must try to reach a satisfactory solution addressing their concerns, within a reasonable period and without prejudicing any mandatory deadlines. As from 1 April 2017, the same obligation will arise at the initiative of countries representing at least 55 percent of the Member States or of the actual Union population necessary to constitute a blocking minority under Article 16(4) TEU.74 Secondly, a new Protocol on the Council decision relating to the implementation of the QMV rules provides that, before examining any pro posal intended to amend or abrogate the Ioannina Decision or any of its provisions, or to modify indirectly its scope or meaning through the modification of another Union act, the European Council must reach a consensus on that pro posal. Thus, while Poland failed to secure for the Ioannina Compromise a formal basis in primary Union law, it nevertheless succeeded in conferring upon the Ioannina Decision a significant degree of constitutional protection against future alteration. It is worth noting that, under Article 16(8) TEU, the Council shall meet in  public when it deliberates and votes on a draft legislative act. 75 That is an im portant step towards countering widespread criticism of the Council’s perceived secrecy as a legislative chamber, and suspicions about cynical political horse-trading between Member States. In fact, thanks to reforms to the Council’s Rules of Procedure enacted during the “period of reflection”, the Council’s deliberations are already open to the public when it acts under the codecision procedure, as are its first deliberations on important new legislative  proposals to be adopted other than by co-decision; certain other debates may also be held in public, for example, on important (non-legislative) initiatives affecting the interests of the Union and its citizens. 76

72. O.J. 2007, C 306/250. 73. Or, where applicable, Art. 238(2) TFEU. 74. Or, where applicable, Art. 238(2) TFEU. 75. See also Art. 15(2) TFEU. 76. See Art. 8 of the Council’s Rules of Procedure, O.J. 2006, L 285/47. See further, e.g. Editorial, “In the meantime …” op. cit.  supra note 15.

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European Parliament 

In accordance with Article 2 of the Protocol on Transitional Provisions, the composition of the European Parliament during its 2004–2009 term shall not  be affected by the entry into force of the TL. However, in good time before the 2009 elections, Article 14(2) TEU and Article 2 of the Protocol on Transitional Provisions oblige the European Council, acting unanimously, on the Parliament’s initiative and with its consent, to adopt a decision establishing its composition. For these purposes, the number of MEPs shall not exceed 750,  plus the President, divided between Member States on a degressively proportional basis, with a minimum of six and maximum of 96 MEPs per Member State. This new system of allocating MEPs to Member States through secondary instruments is intended to offer greater flexibility, particularly in the light of future enlargements, as compared to the existing approach (whereby c hanges to the allocation of MEPs to Member States require formal amendment of the Treaty itself).77 The CT had proposed capping the number of MEPs in the future European Parliament at 750. On that basis, the European Council meeting in June 2007 requested that the European Parliament submit a draft decision on its future composition, which the Parliament did in October 2007, shortly before the final summit meeting to reach political agreement on the new TL.78 However, the Parliament’s proposal received a very frosty reception in Italy: its number of MEPs was projected to fall from 78 (the same as France and the United Kingdom) to 72 (compared to 74 for France and 73 for the British), reflecting the relative decline in the Italian population. To avert the real risk of an Italian refusal to conclude negotiations on the TL, the IGC therefore agreed to increase the number of MEPs in the future Europea n Parliament to 751; Declaration No 4 annexed to the Final Act states that the additional seat will go to Italy, and on that basis, Declaration No 5 signals the European Council’s political agreement to the revised draft decision.79 That compromise may well have restored Italian pride, but it hardly sits easily with the principle of degressively proportional representation proclaimed by the revised Treaties. Moreover, this episode serves as a portent of the difficult political problems likely to arise, should projections of significant population changes in various Mem ber States, even within the next few decades, prove to be accurate.80 But it is 77. Cf. section 10.3 on the “ordinary revision procedure”. 78. European Parliament resolution of 11 Oct. 2007 on the composition of the European Parliament (2007/2169(INI)). 79. See also Presidency Conclusions of 14 Dec. 2007, para 5. 80. See, e.g. Eurostat, Long-Term Population Projections at National Level (Issue Number 3/2006).

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 perhaps in that very context that the simplified procedure for de termining the composition of the European Parliament under Article 14(2) TEU will prove its true worth, i.e. by isolating the question of how to (re)allocate MEPs between Member States in a demographically evolving Union, from initiatives to reform other (unrelated) provisions of the Treaties, so that the latter amendment process is not held blackmail to a given country’s quest to protect its existing political weight within the European Parliament. Another interesting question concerns the subtle change in wording, from the current Treaties to the revised Treaties, concerning exactly who the Euro pean Parliament is meant to represent. In Spain v. United Kingdom, the ECJ was asked to clarify whether only  Union citizens were entitled to vote and stand in elections to the European Parliament, or whether those rights could also be extended to certain third country nationals. 81 The Court noted that the relevant provisions of the current Treaties neither expressly define who may vote / stand in the European Parliament elections, nor clearly exclude the possibility that a third country national might be entitled to do so. In particular, the reference in Articles 189 and 190 EC to the European Parliament representing the “peoples of the Member States” had different meanings in different countries and languages and could not be taken as determinative of the issue. The Court concluded that, in the current state of Community law, the definition of the persons entitled to vote / stand in the European Parliament elections falls within the competence of each Member State. 82 However, the relevant provisions of the revised Treaties seem more precise about the European Parliament’s democratic franchise. For example, Article 14(2) TEU states that the European Parliament “shall be composed of representatives of the Union’s citizens”; Article 10 TEU concerning the principle of representative democracy also refers repeatedly to “citizens”.83 It is therefore unclear whether the approach adopted by some Member States, of permitting certain third country nationals to vote in elections to the European Parliament, would remain compatible with Union law after the entry into force of the TL. One might feel somewhat uneasy at the prospect of disenfranchising whole classes of persons whose rights to vote / stand in the European Parliament elections have already been sanctioned under Community law. For its part, the Court may yet decide that, while the new Treaty text undeniably leaves less

81. Case C-145/04, Spain v.  United Kingdom , [2006] ECR I-7917. See further, e.g. Besselink, annotation of Spain v. United Kingdom , 45 CML Rev. (2008), 787–813. 82. Albeit that that competence must be exercised “in compliance with Community law”. For an indication of what this might require, see Case C-300/04,  Eman and Sevinger , [2006] ECR I-8055. 83. That is true not only of the English version, but also, e.g. the French, Italian, Spanish and German texts.

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room for manoeuvre, the changes agreed under the TL nevertheless fail to outweigh the other sorts of factor taken into consideration in reaching the conclusion in Spain v. United Kingdom: for example, that an express principle of  parliamentary representation for Union citizens does not necessarily exclude the recognition of limited electoral rights also for certain third country nationals; or that, given the territorial basis upon which MEPs are allocated across Member States, the decision by one country to confer electoral rights upon specific categories of third country nationals has no effect upon the choice or number of MEPs elected in any other Member State. 84 4.4.

European Commission

The composition of the Commission is dealt with by Articles 17(4)-(5) TEU. 85 The Commission appointed between the date of entry into force of the TL and 31 October 2014 will consist of one national per Member State. 86 However, subsequent Commissions shall consist of a number of members equal to twothirds of the number of Member States, 87 unless the European Council, acting unanimously, decides to alter this number. Those members are to be selected on the basis of equal rotation betwee n the Member States, and must reflect the demographic and geographical range of all Member States. The detailed rotation system is to be established by the European Council, acting unanimously, and subject to the rule contained in Article 244 TFEU, whereby the difference  between the total number of terms of office held by nationals of any given pair of Member States may never be more than one. 88 The procedure for appointing the Commission is contained in Article 17(7) TEU: the Commission President is to be proposed by the European Council (acting by QMV) and elected by the European Parliament (by a majority of its members); the Commissioners are to be proposed by the Council, by common accord with the Commission President-elect; the entire Commission 89 requires

84. Note Declaration No 64 annexed to the Final Act, in which the UK expresses its understanding that the revised Treaties are not intended to change the basis for the franchise for EP elections; though the rather cryptic Declaration No 57, made by Italy, might seem to express a contrary understanding. 85. Note that the impact of the entry into force of the LT upon the existing Commission (in  particular, the appointment of the first H igh Representative) is dealt with under Art. 5 of the Protocol on Transitional Provisions. 86. Including the President and the High Representative. 87. Including the President and the High Representative. 88. Note also Declaration No 10 annexed to the Final Act, intended to assuage Member State nerves about the balanced functioning of a Commission in which not all nationalities are represented. 89. Including the President and the High Representative.

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the consent of the European Parliament, before finally being appointed by the European Council (again acting by QMV). When proposing its candidate for Commission President, the European Council is expressly instructed to take into account the elections to the European Parliament – a reform which is meant both to increase the political influence of the MEPs and hence the incentive for citizens to vote at the European parliamentary elections, and also to bolster the Commission’s own legitimacy by linking its complexion more closely to the popular will as represented in the European Parliament. 90 4.5.

High Representative

One of the principal objectives of the reform process launched at Laeken was to furnish the Union with an institutional framework capable of executing its external policies more effectively and coherently. The Convention and CT  proposed creating the post of “Minister for Foreign Affairs” – an amalgamation of the existing functions of the High Representative for the CFSP and the Commissioner for External Relations. However, following the ratification c risis and the “period of reflection”, the title “Minister” was considere d unhelpful in conveying the true nature of this institutional reform to the wider public, and the post is now called “High Representative of the Union for Foreign Affairs and Security Policy”. According to Article 18 TEU, the High Representative shall conduct the Union’s CFSP.91 In particular, he / she will enjoy a power of initiative as regards CFSP proposals; and will be responsible for implementing the CFSP under mandate from the Council.92 The High Representative will, moreover,  preside over the Foreign Affairs Council, whether it is considering CFSP or other external relations matters such as the common commercial policy.93 But the chief constitutional novelty of the High Representative is that he / she will simultaneously be associated with the Council and  a member of the Commission (in fact, one of its Vice-Presidents). In the latter capacity, according to Article 18(4) TEU, the High Representative shall ensure the consistency of the Union’s external action, with responsibility within the Commission for external relations and coordinating other aspects of the Union’s external action. Under Article 15(2) TEU, the High Representative shall also take part in the

90. But see section 11.2 for reservations about this idea. 91. Cf. Art. 15(6) TEU on external representation of the Union by the President of the Euro pean Council, without prejudice to powers of the High Representative (section 4.1). 92. See the detailed provisions on external action in general and the CFSP in particular contained in Title V TEU. 93. Art. 18(3) TEU.

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work of the European Council, though without formally becoming a member thereof. When the Convention’s proposals were first published, doubts were ex pressed about whether the same person could really owe their institutional loyalty to both the Council and the Commission. However, the final text of the TL makes clear that the High Representative should be bound by the Commission’s procedures only when discharging his / her responsibilities under Article 18(4) TEU, and only to the extent that this is consistent with his / her position within the Council. In other words, the High Representative may well be “dou ble-hatted” – but his / her Council hat will sit on top of the Commission one at the final stage of decision-making by the Foreign Affairs Council.94 According to Article 18(1) TEU, the High Representative is to be appointed  by the European Council (acting by QMV) with the agreement of the Commission President.95 However, as one of the Vice-Presidents of the Commission, he / she must also be approved, collectively with the remainder of the College,  by the European Parliament.96 Moreover, in the event of a motion of censure  being passed by the European Parliament against the Commission, the High Representative must resign from his / her duties within the Commission (but will remain in post for those responsibilities associated with the Council). 97

5.

5.1.

Decision-making instruments and procedures

Legal instruments

As regards the Union’s legal instruments, the TL implements two main reforms aimed at greater simplification, democratic legitimacy and decisionmaking efficiency.98 The first is abolition of the various legal instruments used

94. As pointed out by Arnull et al., op. cit. supra note 11, para 11–010. On the High Representative’s responsibilities, see further “Editorial comments: Mind the Gap!”, 45 CML Rev. 317–322. 95. The European Council may end his / her term of office by the same procedure. This ap plies also in situations where the Commission President requests the High Representative to resign: see Art. 17(6) TEU. 96. Section 4.4. As regards the role of the European Parliament in the appointment of the very first High Representative, i.e. into the Commission already holding office on the date of entry into force of the TL, see Declaration No 12 annexed to the Final Act. 97. Art. 17(8) TEU and Art. 234 TFEU. 98. On the current position, see further, e.g. Bast, “Legal Instruments” in von Bogdandy and Bast (Eds.),  Principles of European Constitutional Law (Hart Publishing, 2006); Schütze, “The morphology of legislative power in the European Community: Legal instruments and the federal division of powers”, 25 YEL (2006), 91.

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in the existing Second and Third Pillars (such as joint actions, common positions, framework decisions and conventions) in favour of a unified set of legal acts for the Union as a whole. The second is the introduction, within that unified set of legal instruments, of a distinction between legislative acts and nonlegislative acts. A similar distinction was proposed in the CT, which divided the Union’s instruments into two discreet categories: legislative acts (taking the form of “laws” and “framework laws”); and non-legislative acts (in the form of “regulations” and “decisions”).99  However, the 2007 IGC was instructed by the European Council to jettison the language of “laws” and “framework laws” as part of the wider process of abandoning the “constitutional concept”, while still retaining the substantive idea of introducing a clearer hierarchy of norms into the Union legal order. The TL fulfils this mandate by means of a technically suave solution. On the one hand, the revised Treaties specify a unified set of legal acts based on those currently employed in the First Pillar: regulations, directives, decisions, 100 recommendations and opinions.101 On the other hand, those legal acts can then be divided into their discreet legislative and non-legislative categories, less according to some qualitative difference in the nature of the instruments themselves, and rather according to the decision-making procedure by which the Treaties specify they should be adopted. Thus, legislative acts  are regulations, directives or decisions adopted through the “ordinary” or a “special” legislative procedure as identified in the relevant legal basis. 102  Non-legislative acts  comprise all other legal instruments, i.e. adopted under or pursuant to the Treaties through a non-legislative procedure. This distinction between legislative and non-legislative acts has important consequences in several fields:103 for example, the national parliaments’ right to object to Union measures on the grounds of an alleged incompatibility with the principle of subsidiarity applies only as regards draft legislative acts; 104

99. See further, e.g. Dougan, op. cit.  supra note 10, 781–783; von Bogdandy, Arndt and Bast, “Legal Instruments in the European Union and their reform: A systematic approach on an empirical basis”, 23 YEL (2004), 91; Lenaerts and Desomer, “Towards a hierarchy of legal acts in the European Union? Simplification of legal instruments and procedures”, 11 ELJ (2005), 744. 100. The definition of which is amended so as expressly to acknowledge the possible adoption of decisions without a specific addressee. 101. See Art. 288 TFEU. 102. See Art. 289(1)-(3) TFEU. 103. See further, e.g. Liisberg, The EU Constitutional Treaty and Its Distinction between  Legislative and Non-Legislative Acts: Oranges Into Apples? , Jean Monnet Working Paper Series 01/06 (NYU School of Law). 104. Section 6.3. The possibility for national parliaments, and the Committee of the Regions, to seek judicial review on subsidiarity grounds is also limited to Union legislative acts: sections 6.3 and 8.3.

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similarly, the Council’s obligation to deliberate and vote in public applies only to draft legislative acts;105 the distinction between legislative and non-legislative measures may also prove crucial to the new rules on the standing of natural and legal persons to bring an action for annulment directly before the Union courts.106 5.2.

Adoption of legislative acts

5.2.1. Initiation of legislative procedures According to Article 17(2) TEU, Union legislative acts may be adopted only on the basis of a Commission proposal, except where the Treaties provide otherwise.107 The main exception to the general principle that the Commission enjoys a monopoly over the initiation of Union legislation is contained in Article 76 TFEU: in the field of police and judicial cooperation in criminal matters, acts may also be adopted on the initiative of a quarter of the Member States.108 In addition to the existing power of the Council and the European Parliament to request the Commission to consider submitting a proposal on any given issue,109 Article 11(4) TEU follows the CT by introducing a further innovation: at least one million citizens from a significant number of Member States may invite the Commission to submit appropriate proposals for the pur poses of implementing the Treaties. The detailed conditions for exercising this “citizens’ initiative” (including the minimum number of Member States whose citizens must be involved) are to be laid down by regulations adopted by the European Parliament and the Council under Article 24 TFEU. 5.2.2. Ordinary legislative procedure Article 10 TEU contains a concise statement of the Union’s dual basis of democratic legitimacy: citizens are directly represented at the Union level in the European Parliament; Member States are represented in the European Council and the Council, those representatives being themselves democratically accountable either to their national parliaments or their citizens. That dual democratic basis is best reflected in the “ordinary legislative procedure” – co-decision – since it is based on an equal say between the European

105. 106. 107. 108. 109.

Art. 16(8) TEU and Art. 15(2) TFEU. See section 4.2. Section 8.3. See also Art. 289 TFEU. But see the additional exceptions referred to in Art. 289(4) TFEU. See Arts. 241 and 225 TFEU (respectively).

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Parliament and the Council.110 The TL is therefore to be applauded for extending the ordinary legislative procedure across many more legal bases: for example, agricultural policy (currently subject to mere consultation of the Parliament by the Council);111 and the common commercial policy (as r egards which the Parliament is currently denied any formal right of participation).112 Perhaps most significantly, the ordinary legislative procedure will apply a cross most of the Area of Freedom, Security and Justice.113 Furthermore, variants of the codecision procedure which currently instruct the Council to act by unanimity will see QMV become fully applicable: for example, measures to facilitate the taking up and pursuit of self-employed activities; 114 and incentive measures in the field of culture.115  This extension of co-decision brings with it not only improvements in democratic legitimacy, but also greater consistency in decision-making procedures, thereby reducing the incentive for the Union institutions to engage in wasteful legal basis disputes. 5.2.3. Special legislative procedures and passerelle clauses However, the TL still does not bestow upon the Union a uniform legislative  process, nor eradicate completely the potential for inter-institutional wrangling over the correct legal basis. Despite the impressive expansion in the scope of the ordinary legislative procedure, certain legislative acts are still to  be adopted under so-called “special legislative procedures”. Special legislative procedures generally involve the Council acting by unanimity, sometimes after consulting, 116 sometimes with the consent of,117 the

110. The full procedure is described in Art. 294 TFEU. For these purposes, the Council acts  by QMV, save where Arts. 293 and 294 TFEU specifically provide otherwise. 111. Art. 43 TFEU. Cf. Art. 37 EC. 112. Art. 207 TFEU. Cf. Art. 133 EC. 113. See Title V, Part Three TFEU and section 9.1. 114. Art. 53 TFEU. 115. Art. 167 TFEU. 116. E.g. Art. 21(3) TFEU on social measures for migrant Union citizens; Art. 22 TFEU on electoral rights of Union citizens; Art. 64(3) TFEU on regressive measures on the free movement of capital to / from third countries; Art. 77(3) TFEU on border / residency documents for migrant Union citizens; Art. 81(3) TFEU on cross-border family law; Art. 87(3) TFEU on operational cooperation between national law enforcement agencies; Art. 89 TFEU on cross-border operation of national law enforcement agencies; Art. 113 TFEU on the harmonization of indirect taxation; Art. 115 TFEU on internal market harmonization; Art. 118 TFEU on language arrangements for European IPRs; Art. 311, third para TFEU on the initial decision on Union own resources. 117. E.g. Art. 19(1) TFEU on general anti-discrimination measures; Art. 86(1) TFEU on establishment of a European Public Prosecutor’s Office; Art. 312(2) TFEU on the Un ion’s multiannual financial framework; the flexibility clause con tained in Art. 352 TFEU.

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European Parliament;118 though a few such special legislative procedures permit the Council to act by QMV. 119 Nevertheless, the revised Treaties contain various “passerelle clauses” (simplified revision procedures) which may be used to alter some of those deviant legislative processes without recourse to the full-blown drama of a Treaty amendment.120 First, there are passerelle clauses which provide for the extension of the ordinary legislative procedure. In particular, Article 48(7) TEU states that, as regards legal bases contained in the TFEU which provide for legislative acts to  be adopted by the Council in accordance with a special legislative procedure, the European Council (acting unanimously and with the consent of the Euro pean Parliament) may decide to provide instead for the future application of the ordinary legislative procedure. Any such proposal must be notified to the national parliaments, each of which has an effective right to veto the proposal within a six month period. 121 Specific provisions of the TFEU are excluded from the scope of application of this passerelle clause.122 In addition, Article 81 TFEU contains a more specific passerelle clause whereby the Council may identify which aspects of family law having cross-border implications shall in the future be adopted by the ordinary legislative procedure (rather than by a special legislative procedure based on unanimity in the Council and consultation with the European Parliament); any such proposal to extend the ordinary legislative process must also shall be notified to the national parliaments, each of which has a right to veto the proposal within a six month period. 123 The Council also enjoys specific passerelle powers – based in part on the existing EC Treaty – to convert the applicable legislative procedure from “special” to

118. Note that the “cooperation procedure”, currently contained in Art. 252 EC, will be entirely abolished: in one area replaced by the ordinary legislative procedure (see Art. 99(5) EC / Art. 121(6) TFEU); in the rest by a non-legislative procedure involving mere consultation of the EP by the Council (Arts. 102(2) and 10 3(2) EC / Art. 125(2) TFEU; Art. 106(2) EC / Art. 128(2) TFEU). 119. E.g. Art. 23 TFEU on diplomatic protection of Union citizens (after consulting the EP); Art. 311, fourth para TFEU on implementing the Union’s own resources (with the EP’s consent). 120. See section 10.3 on the “ordinary revision procedure”. 121. Cf. Art. 6 of the Protocol on the role of national parliaments in the European Union. 122. See Art. 353 TFEU: the relevant provisions are Art. 311, third and fourth paras. on Union own resources; Art. 312(2), first para on the multiannual financial framework; and the Art. 352 flexibility clause. 123. Note also the enhanced cooperation passerelle clause in Art. 333 TFEU: if the legal  basis to which an enhanced cooperation relates provides for the Council to legislate according to a special legislative procedure, then the Council (acting unanimously and in its restricted enhanced cooperation formation, after consulting the European Parliament) may decide instead to apply the ordinary legislative procedure. The national parliaments have no role here: see Dougan, op. cit.  supra note 4.

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“ordinary” in respect of various aspects of the Union’s social and environmental policies, though in those situations, the national parliaments hold no right of veto.124 Secondly, there are passerelle clauses which provide for the extension of QMV within the Council. In particular, Article 48(7) TEU provides that, as regards legal bases contained in the TFEU under which the Council acts by unanimity within the context of a special legislative procedure, the European Council (acting unanimously and with the consent of the European Parliament) may authorize the future use of QMV. 125 By these means, the Member States may decide that the legislative procedure should become more efficient within the Council while remaining “special” as regards the participation of the European Parliament. Again, any such proposal must be notified to the national parliaments, each of which has an effective right to veto the proposal within a six month period;126 and again, specific provisions of the TFEU are excluded from the scope of application of this passerelle clause.127 Among the latter is Article 312(2) TFEU on the adoption of the Union’s multiannual financial framework by the Council, acting unanimously according to a special legislative procedure, with the consent of the European Parliament. However, that provision contains a specific passerelle clause of its own: the European Council may authorize the Council to a ct by QMV; that decision may be taken unilaterally, without the national parliaments having any right of veto.128 It is worth noting that other special legislative procedures under the revised Treaties involve different combinations of actors and decision-making rules. For example, legislative acts concerning the status of MEPs and the exercise of the European Parliament’s supervisory prerogatives are to be adopted by the Parliament with limited participation from the Council and the Commission.129 Such legal bases are not amenable to conversion into the ordinary legislative procedure by means of Article 48(7) TEU. Other legislative acts are to  be adopted by the Council according to a special legislative procedure, but

124. See Art. 153(2) TFEU (social policy) and Art. 192(2) (environment). Cf. Arts. 137(2) and 175(2) EC (respectively). 125. This passerelle clause may also be used in the context of certain legal bases for the adoption of non-legislative acts: section 5.3.1. 126. Cf. Art. 6 of the Protocol on the role of national parliaments in the European Union. 127. See Art. 353 TFEU: the relevant provisions are Art. 311, third and fourth paras. on Union own resources; Art. 312(2), first para on the multiannual financial framework; and the Art. 352 flexibility clause. 128. Note also the enhanced cooperation passerelle clause in Art. 333 TFEU: if unanimity applies under the legal basis to which an enhanced cooperation relates, then the Council (acting unanimously and in its restricted enhanced cooperation formation) may move instead to QMV. Again, the national parliaments have no role here: see Dougan, op. cit.  supra note 4. 129. See Arts. 223(2), 226 and 228(4) TFEU.

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may not enter into force until approved by the Member States in accordance with their own constitutional requirements. 130 Even where such legal bases can  be converted into the ordinary legislative procedure, or to the use of QMV,  pursuant to Article 48(7) TEU,131  the prescribed role of the Member States themselves will remain inviolate. 5.2.4. Emergency brakes Under a few legal bases, the CT proposed introducing a new “emergency  brake” procedure, based on the ordinary legislative procedure but deviating from the general rules applicable to QMV in Council, in pa rticular, by offering each Member State an effective right of veto, albeit one which is intended to  be used only in special circumstances. Those emergency brakes, which were then modified at the 2007 IGC, can now be divided into two variants. The first variant applies to the coordination of national social security systems. Whereas existing Article 42 EC uses co-decision, but with the Council acting unanimously throughout, the revised Article 48 TFEU employs the ordinary legislative procedure, with Council acting by QMV as normal. However, where a Member State declares that draft legislation would affect fundamental aspects, or the financial balance, of its social security system, it may refer the matter to the European Council, suspending the ordinary legislative  procedure. Within four months, the European Council may (by consensus) refer the draft back to the Council, permitting the ordinary legislative procedure to resume; or instead kill off the draft, by either taking no action or requesting the Commission to submit a new proposal. 132 The second “emergency brake” variant applies to various legal bases for Union action to promote judicial cooperation in criminal matters and the definition of criminal offences and sanctions.133 Here, where a Member State considers that draft legislation would affect fundamental aspects of its criminal  justice system, it may refer the matter to the European Council, again suspending the ordinary legislative procedure. This time, however, if the European Council fails to reach a consensus in favour of resuming the ordinary legislative procedure, and at least nine Member States wish to establish an enhanced cooperation on the basis of the draft act, authorization to proceed with that enhanced cooperation shall automatically be deemed to have been granted

130. E.g. Art. 25 TFEU on additional rights for Union citizens; Art. 223(1) TFEU on a uniform electoral procedure for the EP; Art. 262 TFEU on ECJ jurisdiction over European IPRs; Art. 311, third para TFEU on the initial decision on Union own resources. 131. I.e. other than in the case of Art. 311, third para TFEU: see Art. 353 TFEU. 132. Note Declaration No 23 annexed to the Final Act. 133. See the detailed provisions of Arts. 82(3) and 83(3) TFEU. On the AFSJ, see section 9.

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(without having to comply with the usual procedural requirements applicable to the initiation of an enhanced cooperation, such as obtaining Commission support, Council approval and European Parliament consent).134 Since all those legal bases are explicitly described as using the ordinary legislative process, and decision-making within the Council is at no point formally subject to a requirement of unanimity, one assumes that the specificities of the “emergency brake” mechanism – the de facto veto and (where applica ble) the extraordinary authorization to engage in enhanced cooperation – could not be suppressed pursuant to the passarelle clause contained in Article 48(7) TEU. 5.3.

Adoption of non-legislative acts

 Non-legislative acts – in particular, regulations, directives and decisions adopted other than by an ordinary or special legislative procedure – may be divided into three main categories: those adopted directly under the Treaties, where provided for by a specific legal basis; delegated ac ts in situations where the Commission has been authorized to supplement or amend “non-essential elements” of a legislative act; and implementing acts of the Commission or the Council which are required for the uniform application of Union law.135 5.3.1. Non-legislative acts adopted directly under Treaties Myriad legal bases across the Treaties directly authorize the adoption of nonlegislative acts: for example, the Commission adopts measures in the field of competition and State aids;136 the European Central Bank does so in the field of monetary policy.137 The Council also adopts various non-legislative measures directly under the Treaties: sometimes by unanimity (for example, rules governing the languages of the Union institutions, 138 and authorizing enhanced cooperation within the CFSP); 139 sometimes by QMV (as with administrative cooperation between Member States within the Area of Freedom, Security and Justice,140 and authorizing enhanced cooperation in other fields of non-exclusive Union competence).141 So too the European Council: for example, in es-

134. See Art. 20 TEU and Art. 329 TFEU. 135. Note also, on the adoption of recommendations, Art. 292 TFEU. Also, e.g. Arts. 60 and 97 TFEU. 136. Arts. 105 and 108 TFEU. 137. Art. 132 TFEU. 138. Art. 342 TFEU. 139. Art. 329(2) TFEU. 140. Art. 74 TFEU. 141. Art. 329(1) TFEU.

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tablishing the list of Council configurations, 142 or extending the powers of a future European Public Prosecutor’s Office.143 One of the most important categories of non-legislative acts adopted directly under the Treaties is measures of the European Council and the Council in the field of the CFSP (where the use of legislative instruments is precluded, and unanimity remains the general rule).144 As regards legal bases contained in the TFEU or Title V TEU which provide for the Council to adopt non-legislative acts by unanimity, the passerelle clause contained in Article 48(7) TEU empowers the European Council (acting unanimously, with the consent of the Europe an Parliament, and subject to a veto by each national parliament) to authorize the Council to act thenceforth by QMV.145  As before, specific provisions of the TFEU are excluded from the scope of application of this simplified revision clause; 146 so too are the remaining provisions of the TEU, and any decisions with military implications or those in the area of defence. But in addition, Chapter 2, Title V TEU on the CFSP seems to contain its own passere lle clause: under Article 31(3) TEU, the European Council may unanimously decide to extend the use of QMV by the Council within this field (though again excluding decisions with military or defence implications).147 The relationship between Article 48(7) TEU and Article 31(3) TEU gives rise to certain problems: the latter does not provide for the involvement of the European or national parliaments, making the procedural implementation of the two passerelle clauses significantly different; yet it is difficult to identify a coherent way of dividing their respective scopes of application without rendering one or other clause redundant. For example, one might think that Article 31(3) TEU is intended to act as a lex specialis within Chapter 2 as regards decision-making under the CFSP – but since the remainder of Title V TEU nowhere empowers the Council to adopt decisions by unanimity, that would make the relevant provisions of Article 48(7) TEU superfluous.148  It would

142. Art. 236 TFEU. 143. Art. 86(4) TFEU. 144. See Chapter 2, Title V TEU, esp. Art. 31 TEU. Further: section 3. 145. Note Art. 6 of the Protocol on the role of national parliaments in the European Union. 146. See Art. 353 TFEU: the relevant exclusions are non-legislative acts adopted under the Art. 352 TFEU flexibility clause; and decisions to suspend Member State rights under Art. 354 TFEU. 147. Art. 31(4) TEU. 148. Assuming that the specific provisions concerning the common security and defence  policy are intended to be an integral part of Chapter 2, Title V TEU. That seems correct, given that those provisions state explicitly when the Council shall act by QMV; where they remain silent, it must be on the u nderstanding that the relevant decisions will be taken b y unanimity in accordance with Art. 31(1) TEU.

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also deny the national parliaments any influence over future decisions to convert unanimity to QMV within such a sensitive area of Union competence, thereby contravening the spirit which underpins the various procedures for amending the Treaties.149 The alternative interpretation would be to treat the operation of Article 31(3) TEU as implicitly subject to the higher procedural requirements imposed under Article 48(7) TEU – which would not only render the more specific passerelle clause otiose, but also give the European Parliament a significant say in the future framework of decision-making within the CFSP, something which would arguably run counter to the peculiarities of the inter-institutional balance within that particular field. 150 Neither choice, therefore, seems ideal. Setting aside the CFSP, the European Parliament does exercise influence over the adoption of certain non-legislative acts directly under the Treaties. That influence tends to take the form of ex ante input into the decision-making  process through the consultation procedure;151  in a few cases, however, the European Parliament’s supervisory powers are strengthened by a requirement to obtain its consent to the proposed measures. 152 There are still legal bases where the European Parliament exercises no direct control over the adoption of executive acts, though these generally concern individual administrative measures,153 or the appointment of members to ancillary Union bodies. 154 So much for the institutional aspects of non-legislative acts adopted directly under the Treaties. More generally, the distinction between legislative and non-legislative acts drawn in the TL is clearly not based on the sort of institutional criterion familiar to national legal systems which are organized according to a traditional separation of powers: with an institutional structure as com plex as that of the EU, patently lacking a clear and stable legislature such as the UK’s “Queen in Parliament”, it would have been difficult to state (for example) that only acts of the Council and the European Parliament, or all   acts of the Council and / or the European Parliament, are to be considered legislative in nature. The TL settles instead on a purely formal criterion for distinguishing between legislative and non-legislative acts, i.e. based on the appli149. Section 10.3. 150. Section 3. 151. E.g. Art. 27(3) TEU on the organization and functioning of the European External Action Service; Art. 78(3) TFEU on emergency measures to cope with asylum influxes. 152. E.g. Art. 50(2) TEU on conclusion of agreements between the Union and withdrawing states; Art. 352 TFEU on non-legislative measures adopted un der the flexibility clause. 153. E.g. Art. 66 TFEU on urgent and exceptional safeguard restrictions on capital movements as regards third countries; Art. 75, second para TFEU on the implementation of restrictive measures against natural and legal persons / groups. 154. E.g. Arts. 257(4), 301 and 305 TFEU on members of specialized courts, the Economic and Social Committee and the Committee of the Regions (respectively).

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cable decision-making procedures for their adoption, as they are identified in specific legal provisions and on an ad hoc basis under the Treaties. But could such a criterion ever hope to reflect any coherent underlying constitutional  principle? It seems instead to emerge as a labelling exercise with an essentially pragmatic basis and some rather arbitrary consequences. 155 After all, from the point of view of process, many “special legislative procedures” (based on a Commission proposal, unanimity or QMV in Council, and consultation with or the consent of the European Parliament) appear identical to non-legislative procedures conducted in the same manner.156 Moreover, as regards their substance, many measures identified as “non-legislative” in nature will seem indistinguishable from “legislative” ones in terms of their scope of application (in general terms across the entire Union territory) and subject matter (regulating the rights and obligations of natural and legal persons). Consider, for example, regulations and directives adopted to give effect to the competition principles set out in current Articles 81 and 82 EC, which will become Articles 101 and 102 TFEU. 157 Is a measure such as Regulation 1/2003 on competition enforcement really any less “legislative” in nature – in terms of the procedure for its adoption, or its substantive content – than many of the “legislative acts” which would be adopted elsewhere under the Treaties? Or again, consider Council measures implementing agreements between the social partners falling within the fields of social policy competence entrusted to the Union under existing Article 137 EC, which will become Article 153 TFEU.158 Are directives enacting binding Union-wide rules on issues such as  parental leave,159 part-time workers160 or fixed-term workers161 really best categorized as “non-legislative” in character? The desire to bestow upon the Union a clearer hierarchy of norms, for the sake of enhancing the transparency of its activities, has therefore been undermined by a combination of shallow conce ption and poor execution. Of course, the system will work – but its operation will not be totally free from anomalies or controversies. In the first place, the lack of a coherent distinction between legislative and non-legislative acts will produce similarly arbitrary knock-on effects for other provisions premised on exactly the same distinction: for ex-

155. See further, e.g. Dougan, op. cit.  supra note 10, 783–784; Kokott and Ruth, op. cit.  supra note 10, 1341–1343. 156. Consider, e.g. Art. 74 TFEU on administrative cooperation within the Area of Freedom, Security and Justice. 157. I.e. adopted under Art. 83 EC / Art. 103 TFEU. 158. I.e. as provided for under Art. 139(2) EC / Art. 155(2) TFEU. 159. Directive 1996/43, O.J. 1996, L 145/4. 160. Directive 1997/81, O.J. 1998, L 14/9. 161. Directive 1999/70, O.J. 1999, L 175/43.

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ample, the national parliaments’ right to object to legislative proposals on subsidiarity grounds;162 the Council’s obligation to deliberate and vote on legislative acts in public;163 and the ability of natural and legal persons to bring actions for annulment without having to demonstrate “individual concern”. 164 In the second place, certain legal bases raise particular problems because they offer the Union institutions the option between adopting legislative or nonlegislative acts. Consider, for example, the flexibility clause contained in Article 352 TFEU, which empowers the Council to adopt measures either   by a special legislative procedure or  by a non-legislative procedure, in each case on the basis of a Commission proposal and with the consent of the European Parliament.165 Will the consequences of that choice – for issues such as subsidiarity monitoring, legislative openness and access to judicial review – effectively oblige the Court of Justice to develop objective criteria for identifying situations in which legislative acts must be used in preference to non-legislative ones, thus serving to circumscribe the otherwise apparently unlimited discretion of the Union institutions to pick for themselves? If so, the Court’s task is hardly enviable: the formalistic and arbitrary c riteria embodied in the Treaties themselves will surely militate against any judicial attempt to construct a more  persuasive substantive test for distinguishing legislative from non-legislative measures.166 5.3.2. Non-legislative acts adopted as delegated acts The second category of non-legislative Union instrument is governed by Article 290 TFEU: a Union legislative act may delegate to the Commission the  power to adopt non-legislative acts of general application to supplement or amend certain “non-essential elements” of the parent act. The latter must ex plicitly define the objectives, content, scope and duration of the Commission’s delegated powers. It must also lay down the conditions to which the delegation is subject: the possibility of the delegated powers be ing revoked by the Council and / or the European Parliament; or of the delegated act entering into forc e only in the absence of objection from the Council and / or the European Parliament within a pre-defined period.

162. And to seek the annulment of Union legislation on subsidiarity grounds. See sections 6.3 and 8.3. 163. Section 4.2. 164. Section 8.3. 165. Section 6.1. Similar problems apply to Art. 203 TFEU, which offers the Council a choice between adopting legislative or non-legislative measures for the association of overseas countries and territories. 166. Note that Art. 296(1) TFEU on the criteria for choosing between available legal instruments is of little practical assistance in this context.

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The primary aim of Article 290 TFEU is to encourage the Union legislature to concentrate on defining only the central tenets of legislation, in the hope that this will make it easier for the Council and / or European Parliament to agree on any given regulatory package, and permit the latter to be adapted more quickly and effectively to changes in market behaviour or scientific technology. The introduction of delegated acts is also a useful attempt to divide the Union’s executive activities more clearly between the quasi-legislative and the  purely administrative – subjecting the former category of powers to more direct scrutiny by the Union legislature itself, including a significantly enhanced role for the European Parliament. However, it is possible to foresee certain controversies arising in the detailed operation of the new regime on delegated acts. Concepts such as what amounts to the Commission supplementing or amending, rather than merely implementing, a legislative measure will play a crucial part in dividing the scope of application of delegated acts under Article 290 TFEU from that of implementing acts under Article 291 TFEU (discussed below): one assumes that these two categories of non-legislative measure are intended to be mutually exclusive, yet the criterion for distinguishing between them leaves much to the imagination.167 Similarly, what constitutes the essential, as opposed to non-essential, elements of a legislative measure, for the purposes of dividing the delegated powers of the Commission from the primary powers of the Council and / or the European Parliament, cry out for further clarification through institutional practice and judicial review. Other uncertainties relate to the scope of the Council and / or the European Parliament’s scrutiny powers: are the possibilities of revocation or veto explicitly identified in Article 290 TFEU intended to be exhaustive or pur ely indicative? On the one hand, the fact that the Treaty specifies (for example) that the Council shall exercise its enumerated scrutiny powers by QMV suggests that Article 290 TFEU is indeed intended to be prescriptive, at least to the extent that the Council should not be entitled to subject its own decision to revoke or veto the Commission’s delegated powers instead (say) to unanimous agreement among the Member States. On the other hand, what if the Council and / or European Parliament were to attempt to subject the exer cise of the Commission’s delegated powers (for example) to a system similar to comitology? That could well have certain advantage s: for example, in ensuring that the Commission’s decisions are based on the most reliable scientific and technical exper-

167. Though some situations will be clear, e.g. if implementation relates to a non-legislative  parent act, or is to be carried o ut by the Council, it must take the form of an implementing act under Art. 291 TFEU (since delegated acts under Art. 290 TFEU are only available as regards legislative parents acts and may only be adopted by the Commission).

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tise available, and reflect all relevant social and cultural differences between the Member States. But the possible intermediary of a system like comitology is not specifically envisaged by Article 290 TFEU. Furthermore, such a scenario could hamper any attempt to formulate a meaningful division between the new concept of delegated powers (apparently based on the direct scrutiny of Commission delegated powers by the Union legislature) a nd the alternative category of implementing acts under Article 291 TFEU (which does expressly envisage the continued operation of the comitology system). 5.3.3. Non-legislative acts adopted as implementing acts The third category of non-legislative Union instrument is governed by Article 291 TFEU: although Member States will generally adopt all national measures necessary to implement binding Union acts, 168 where uniform conditions for implementation are needed, those acts shall confer implementing powers (i.e. the ability to adopt non-legislative measures) upon the Commission or, in duly  justified specific cases, upon the Council.169 The revised Treaties also provide a new legal basis for the comitology system, including a greater role for the Parliament in setting out the relevant rules: regulations adopted by the ordinary legislative procedure shall lay down in advance the rules and general  principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers.170 The new provisions of Article 291 TFEU will perpetuate certain debates which already exist under Community law: for example, about precisely how to interpret the concept of “duly justified specific cases” in which the Council may reserve implementing powers directly to itself.171 However, Article 291 TFEU will also generate new questions of its own. Consider, for example, the role of the European Parliament in supervising the exercise of implementing  powers. In certain respects, the European Parliament has emerged a clear winner from the TL here: the necessary “rules and general principles” will be adopted in advance according to the ordinary legislative procedure (rather than mere consultation as currently provided for under Article 202 EC) as regards all situations in which the Commission exercises implementing powers (even under legislative acts originally adopted by a special legislative procedure, and non-legislative acts enacted without any participation by the European Parliament). In other respects, however, Article 291 TFEU threatens to under168. Cf. Art. 10 EC / Art. 4(3) TEU. 169. And in any case upon the Council within the field of the CFSP as provided for under Arts. 24 and 26 TEU. 170. Art. 291(3) TFEU. 171. E.g. Case 16/88, Commission v. Council , [1989] ECR 3457; Case C-257/01, Commis sion v. Council , [2005] ECR I-345.

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mine some of the recent gains made by the European Parliament, particularly as regards the daily supervision of the exercise of Union executive power. It will be recalled that recent amendments to the Second Comitology Decision introduced a “regulatory procedure with scrutiny” in respect of Commission  proposals implementing legislation adopted under the co-decision procedure. Those amendments offer the European Parliament much more extensive powers to veto a Commission measure even if approved by the regulatory committee; and (where the regulatory committee delivers a negative or no opinion) to veto the adoption of implementing measures by either the Council or the Commission (as the case may be). 172 Such extensive scrutiny powers for the Euro pean Parliament are fully consonant with the text of existing Article 202 EC,  but at first glance, they appear difficult to reconcile with the more restrictive wording of Article 291 TFEU: the latter refers to mechanisms for control of the Commission (not the Council), by the Member States (not the European Parliament). Are the revised Treaties intended to limit the European Parliament’s participation to the adoption in advance of general principles? If so, might the desire to engage in a more active and detailed supervision of the Commission’s executive activities lead the European Parliament to lobby for a very broad definition of “delegated acts” under Article 290 TFEU, so as to escape the restrictions now apparently imposed under Article 291 TFEU? Before leaving the subject of non-legislative acts, it is worth asking how far this package of reforms might affect the Commission’s competence to subdelegate implementing powers to autonomous regulatory agencies established  pursuant to the Treaties. As is well known, the existing position is governed by the Meroni principle, which places very strict limits on the degree to which Community institutions may sub-delegate their powers to other bodies not directly established by the Treaties.173 As a result, although the Community has indeed established numerous agencies charged with executive activities across a broad range of activities, those agencies rarely exercise meaningful discretionary powers, and are generally confined to the performance of purely technical or advisory functions.174 That situation has been criticized on the grounds that the Community administration, as it currently stands, is unable to make full use of the advantages potentially offered by a utonomous regulatory bodies (for example) in terms of expertise, political independence and output legiti-

172. See Decision 2006/512, O.J. 2006, L 200/11. 173. Case 9/56, Meroni, [1958] ECR 11; Case 10/56, Meroni, [1958] ECR 53. 174. See further, e.g. Chiti, “The emergence of a Community administration: The case of European agencies”, 37 CML Rev. (2000), 309; Geradin and Petit, “The development of agencies at EU and national levels: Conceptual analysis and proposals for reform”, 23 YEL (2003), 137; Craig, EU Administrative Law (OUP, 2006) Chapt. 5.

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macy.175 It is arguable that the TL now lays the basis for reconsidering the restrictive Meroni doctrine. After all, the revised Treaties provide a much more explicit primary law basis for the Union’s various offices and agencies, 176 including their amenability to investigation by the Ombudsman, 177 the possibility of bringing actions for annulment and for failure to act, 178 and of seeking  preliminary references in respect of their activities.179 5.4.  Budget Based on the previous CT proposals, the TL will alter the Union’s financial  principles and budgetary procedure in several important respects. Space precludes any detailed examination of the provisions to be found in Title II, Part Six TFEU, but some of the principal reforms are as follows. First, the system of “financial perspectives”, which in the existing practice form part of a “soft law” text (the current Inter-Institutional Agreement on budgetary discipline and improvement of the budgetary procedure) would be formalized under the revised Treaties as the Union’s “multiannual financial framewor k”.180 Secondly, the budgetary procedure itself would be simplified into a special legislative  procedure (modelled on the ordinary legislative procedure) with the Commission presenting a draft budget (rather than an initial draft) and the Council and Parliament engaging (where necessary) in a process of conciliation in accordance with strict deadlines. Thirdly, the existing distinction between compulsory expenditure and non-compulsory expenditure would be abolished. The European Parliament would thus obtain greater influence over the budget as a whole (though it would, incidentally, lose its existing power to have the final say over non-compulsory expenditure).

6.

Decision-making powers

The authors of CT and TL alike were keen to highlight that the Union is an organization of derived and limited powers, “on which the Member States confer competences to attain objectives they have in common”. 181

175. E.g. Majone, Dilemmas of European Integration: The Ambiguities and Pitfalls of Inte gration by Stealth (OUP, 2005). 176. E.g. Art. 9 TEU. See, in particular, Arts. 2(2)(f) and 2(6) TL. 177. Art. 228(1) TFEU. 178. Arts. 263 and 265 TFEU. 179. Art. 267 TFEU. 180. See section 5.2 on the voting rules applicable here. 181. Art. I-1(1) CT; Art. 1(1) TEU.

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Articles 2 and 3 TEU state, in a concise fashion, the Union’s basic values and objectives. On the one hand, the TL does not affect the fundamental principle that the Union can only take action to uphold its values and pursue its objectives where a specific legal basis contained in the Treaties empowers it to do so, and only under the particular conditions – institutional and otherwise – laid down in that legal basis.182 On the other hand, the precise wording of the Union’s values and objectives not only hold an important political symbolism,  but also provide a touchstone for interpreting the specific legal bases contained elsewhere in the Treaties. That symbiotic relationship is illustrated by the debate over the extent to which the 2007 IGC altered the proposals contained in the CT when using the latter text as its basis for the revised Articles 2 and 3 TEU. In particular, the Union’s offering to its citizens of an Area of Freedom, Security and Justice (under the CT) has been elaborated so as to include reference to ensuring the free movement of persons in conjunction with appropriate measures on external border controls, asylum, immigration and crime (under the TL). Conversely, the commitment to an internal market “where competition is free and undistorted” (under the CT) has been replaced by a reference to the internal market simpliciter ket simpliciter (under the TL) – though a new paragraph does expressly refer to the establishment of an economic and monetary union with the euro as it currency. That change was demanded by the new French President, elected in spring 2007, no doubt keen to address the fears of those French citizens who voted “non “non”” in the 2005 referendum out of concern that constitutional reform of the Union posed a serious threat to the future of the national social model. 183 However, Sarkozy’s demand caused equal concern in several Member States that, without a clear and fundamental commitment to free and undistorted competition, the legal framework for Union action in core fields such as State aids, or for the adoption of harmonizing measure s aimed at liberalizing certain economic sectors, might be appreciably weakened. The compromise is that, under a new Protocol on the Internal Market and Competition, the High Contracting Parties consider that the internal market referred to in Article 3 TEU includes a system ensuring that competition is not distorted; to that end, the Union shall, if necessary, take action under the provisions of the Treaties.184

182. See Art. 3(6) TEU. Cf. Case C-9/99, Echirolles  Echirolles Distribution Distribution, [2000] ECR I-8207; Case C-181/06, Deutsche Lufthansa Lufthansa, judgment of 5 July 2007, nyr. 183. Cf. the post-referendum opinion poll conducted at the request of the Commission Commission in France (Flash Eurobarometer Poll No 171). 184. Including under Art. 352 TFEU: see section section 6.1.

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In any case, the underlying legal framework governing the existence and exercise of Union competences has not changed; the TL’s amendments affect only the detailed application of that framework. 185 6.1.

Principle of conferral

According to Article 5(1) TEU, the limits of Union competences are governed  by the principle of conferral. Article 5(2) TEU then restates, in strengthened form, the idea currently contained in the first paragraph of Article 5 EC: the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties in order to attain the objectives set out therein. Articles 4(1) and 5(2) TEU further affirm that competences not conferred upon the Union in the Treaties remain with the Member States.186 There was much discussion before and during the Convention about how to overcome the problem of legal bases such as Articles 95 and 308 EC, whose open-ended nature (combined with a good dose of institutional connivance) have given rise to the problem of “competence creep”.187 In the end, Article 95 EC has become Article 114 TFEU but without any significant amendments. 188 Perhaps it was felt that the new judicial wind blowing since the first Tobacco  Advertising Directive judgment Directive  judgment was a sufficient safeguard for Member State competences.189 By contrast, Article 308 EC will be replaced by Article 352 TFEU, which provides that if action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council (still acting unanimously on a Commission proposal, though now with the Parliament’s consent) shall adopt the appropriate measures. Those measures may be legislative in character, in which case they are deemed to have been adopted according to a special legislative procedure. 190 On the one hand, the reference refere nce to action in furtherance of the Union’s objectoto  makes the potential scope of application of Article 352 TFEU tives in toto 

185. See, for analysis of the original Convention proposals, e.g. Davies, “The Post-Laeken division of competences”, 28 EL Rev. (2003), 686; Dougan, op. cit.  supra note 10, 763; Hanf and Baumé, “Vers “Vers une clarification de la répartition des compétences entre l’Union et ses Etats membres”, (2003) CDE 135; Craig, “Competence: Clarity, conferral, containment and consideration”, 29 EL Rev. (2004), 323. 186. See also Declaration No 18 annexed to the Final Final Act. 187. See further, e.g. Lenaerts Lenaerts and Desomer, “Bricks “Bricks for a Constitutional Treaty Treaty of the Euro pean Union: values, objectives and means”, 27 EL Rev. (2002), 377; Weatherill, Weatherill, “Competence creep and competence control”, 23 YEL (2004), 1. 188. Though its relationship to existing Art. 94 EC / new Art. 115 TFEU is revised. 189. Case C-376/98, Germany v. Parliament and Council , [2000] ECR I-8419. 190. On the problems this may cause, see section 5.3.1.

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much broader than that of Article 308 EC, which refers only to action in furtherance of the common market. On the other hand, the comparatively restrictive wording of Article 308 EC rarely acted in itself as a practical barrier to its liberal employment by the Community across a wide range of policy fields; it seems more likely that extensive recourse to Article 352 TFEU – and with it any further “competence creep” – will be rendered unnecessary by the sheer range of sector-specific legal bases under which the Union is now empowered to act. In that regard, it is significant that measures based on Article 352 TFEU shall not entail harmonization of national laws in cases where the Treaties exclude such harmonization – thus preventing Article 352 TFEU being used to undermine the distinction between shared and supporting competenc es.191 Furthermore, the 2007 IGC narrowed the scope of the flexibility clause as com pared to the version contained in the CT, by excluding the use of Article 352 TFEU as the basis f or attaining objectives pertaining to the CFSP, CFSP, or its use in the implementation of other Union policies so as to affect the exerc ise of CFSP  powers.192 In any case, it is expressly provided under Article 352(2) TFEU that the Commission must draw national parliaments’ attention to proposals made under the flexibility clause, using the new procedure for monitoring the subsidiarity principle.193 However, it is unclear whether this provision is intended to act merely as an explicit cross-reference to the “yellow card” system, which would in any case apply to all proposals for the adoption of legislative acts legislative acts under Article 352 TFEU; or whether it is instead meant materially to extend the national parliaments’ power to issue reasoned opinions, and the Union institutions’ obligation to take them into consideration, so as also to cover pro posals for the adoption of non-legislative measures non-legislative measures under Article 352 TFEU (proposals which would not otherwise fall within the scope of the “yellow card” procedure at all). The latter interpretation seems to be more in keeping with the restrictive spirit of the new “flexibility clause”, but it is far from obvious or compelling from the actual wording of Article 352 TFEU. 6.2.

Categories of Union competence

In what is arguably a rguably one of the TL’ TL’ss most successful exercises exerc ises in clarifying and explaining the nature of Union power, for the benefit of specialist practitioners and the interested public alike, Article 2 TFEU offers – for the first time – ge-

191. Art. 352(3) TFEU. See section 6.2. 192. Art. 352(4) TFEU. See section 3. Note also Declaration Nos 41 and 42 annexed to the Final Act. 193. Section 6.3.

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neric definitions of the meaning of exclusive, shared and supporting Union competences.194  Articles 3 (exclusive), 4 (shared) and 6 (supporting) TFEU then give an indicative list of the various fields of Union activity which are deemed to fall within each category of competence – though some of the TL’s TL’s choices, especially about what constitutes an exclusive Union competence, might seem to go beyond the pre-existing academic consensus (which was in turn based on the available case law). 195 In any event, the precise scope of, and arrangements for exercising, the Union’s competences are determined by the individual legal bases contained elsewhere in the Treaties.196 Those set out in greater detail the principles governing Union activity within the releva nt field, and more elaborate rules on the impact of Union competence upon national regulatory powers: for example, whether harmonizing measures adopted in fields of shared competence may be fully pre-emptive or should consist only in the setting of minimum standards; 197 and whether specific aspects of a field otherwise designated as one of shared competence do not in fact confer upon the Union any power to harmonize national laws, and thus exhibit the characteristics of a purely supporting competence.198 Most of the competences referred to in the revised Treaties already exist and are subject only to minor amendments – though some revisions are more significant, such as the explicit commitment, in the provisions on Union environmental policy, to promoting international action to combat climate change. 199 But there are some new legal bases for Union action: for example, shared competence as regards services of general economic interest200  and energy  policy;201  and complementary competences as regards space,202  tourism,203

194. Those definitions should be read in conjunction with the Protocol on the exercise exercise of shared competence; and also Declaration No 18 annexed to the Final Act. Note that the Union’s coordinating powers in relation to the Member States’ economic and employment policies, and in the field of CFSP, CFSP, are accorded a sp ecial status falling outside the scope o f those generic categories: see Arts. 2(3)-(4) and 5 TFEU. 195. In particular, the reference in Art. 3(1) TFEU to establishing establishing the competition rules necessary for the functioning of the internal market; and the rather shoddy definition of exclusive external competence contained in Art. 3(2) TFEU. 196. See Art. 2(6) TFEU. TFEU. 197. See, e.g. Arts. 153(4) TFEU (social policy), policy), 193 TFEU (environment) and 169(4) TFEU (consumer policy). 198. E.g. Arts. 79(4) and 84 TFEU on TCN integration integration and crime prevention measures (respectively). 199. Art. 191(1) TFEU. 200. Art. 14 TFEU. 201. Title XXI TFEU. 202. Art. 189 TFEU. 203. Title XXII TFEU.

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sport,204  civil protection205  and administrative cooperation for the effective implementation of Union law.206 6.3.

Principle of subsidiarity

According to Article 4(2) TEU, the Union must respect the national identities of the Member States, inherent in their fundamental political and constitutional structures, including regional and local self-government. Against the  background of that hortatory principle, Article 5 TEU recalls that the use of Union competences is governed by the principles of subsidiarity and proportionality, which are then restated in formulae based on, but more elaborate than, the terms of existing Article 5 EC. 207  However, the most significant changes enacted by the TL in this field concern the manner in which subsidiarity is to be monitored and enforced within the Union. Article 5(3) TEU states that the Union institutions shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality, and that national parliaments ensure compliance with that principle in accordance with the procedure set out in that Protocol. 208 Article 4 of the Protocol seeks to increase the flow of information about the Union’s legislative activities to the national parliaments. Thus, the Commission must notify all its legislative proposals to the national parliaments at the same time as to the Union institutions themselves. Similar obligations apply to the Union’s other institutions and bodies: for example, the Council is obliged to notify national parliaments of draft legislative acts originating from a group of Member States in the field of PJC. Legislative resolutions of the European Parliament and positions of the Council must also be forwarded to the national parliaments.209 In addition, Articles 6 and 7 of the Protocol implement the famous “yellow card” system first proposed by the Convention. Each national parliament (or chamber thereof) has the power to object to any given legislative proposal by means of a “reasoned opinion”, specifically on the grounds that it infringes the 204. Title XII TFEU. 205. Title XXIII TFEU. 206. Title XXIV TFEU. 207. E.g. in the principle of subsidiarity, there is an express reference to objectives being sufficiently achieved by the Member States “either at central level or at regional and local level”; the phrase “and can therefore”, which has grated on so many academic nerves, will be replaced with “but can rather”. 208. See further, e.g. Davies, op. cit. supra note 185; Weatherill, “Better competence monitoring”, 30 EL Rev. (2005), 23. 209. Note also the provisions on greater transmission of information about the Union’s activities, contained in the Protocol on the role of national parliaments in the European Union.

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 principle of subsidiarity, within a deadline of eight weeks from the date of transmission of the draft.210 The Union institutions (and other relevant bodies) would be obliged to consider all such reasoned opinions; but if one-third or more of the national parliaments object, then the draft legislation must be formally reviewed. That threshold is lowered to one-quarter, in the case of draf ts  proposed by the Commission or a group of Member States in the field of PJC.211 For these purposes, each national parliament has two votes: both votes may be used by a unicameral legislature; the votes are to be divided out between the chambers in a bicameral legislature.212 After the necessary review, the Commission (or other institution / body from which the draft legislation originated) must give reasons for its decision either to maintain, amend or withdraw the proposal. Despite support for the idea that a sufficient number of negative reasoned opinions from national parliaments should be capable of acting as a “red card”, the 2004 and 2007 IGCs refused to confer upon national parliaments any such formal veto powers over the progress of the Union’s own legislative processes. After all, one assumes that, if a sufficient number of national parliaments were to register serious objections to a given legislative proposal on subsidiarity grounds, the political costs for the Union institutions of simply ignoring that opposition – or at least, of doing so on any sort of regular basis – would be severe, particularly for those ministerial representatives who remain accountable to their national parliaments in respect of how they cast their Council votes.213 Nevertheless, the Protocol finally agreed in 2007 does go further than  previous versions of the “yellow card” system, in particular, as regards pro posals made under the ordinary legislative procedure, where negative reasoned opinions represent a simple majority of the votes cast by national parliaments. If, having carried out its formal review, the Commission nevertheless decides to maintain its proposal, the Commission must produce its own reasoned opinion, justifying why the draft does comply with the principle of subsidiarity. Before concluding the first reading of the ordinary legislative procedure, the Council and the European Parliament must consider the reasoned opinions of the national parliaments and the Commission. If 55 percent of Council mem bers, or a simple majority of voting MEPs, consider that the proposal does not

210. Under the CT, the deadline was 6 weeks; many thought this was too tight, so the Euro pean Council mandate for the 2007 IGC instructed that it be extended to 8 weeks. 211. Under Art. 76 TFEU. 212. National parliaments may arrange on their own account for the consultation of regional  parliaments with legislative powers: see Art. 6, first para of the Protocol. 213. Though note that the results of a Commission pilot study on operation of the “yellow card” system were hardly p romising: see Arnull et al., op. cit.  supra note 11, para 11–020.

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comply with the principle of subsidiarity, the ordinary legislative procedure will be terminated. The Protocol’s “yellow card” system reflects the widespread view that com pliance with the principle of subsidiarity would be more effectively achieved through a system of ex ante political input into the legislative procedure as it unfolds, rather than ex post   judicial review of legislation after it has already  been adopted. 214 More fundamentally, giving teeth to the principle of subsidiarity by entrusting national parliaments with responsibility for monitoring its application could increase the accountability and legitimacy of the EU’s lawmaking bodies, and enhance in an unprecedented way the sense of “ownership” of the European project at national level. In that regard, the “yellow card” system should be read in the broader context of Article 12 TEU, which summarizes the various ways in which national parliaments can actively contribute to the good functioning of the Union: not only through monitoring the  principle of subsidiarity, but also (for example) by participating in the evaluation of various Union policies within the Area of Freedom, Security and Justice,215 and taking part in the ordinary and simplified procedures for revising the Treaties.216 Indeed, it is arguable that the importance of the “yellow card” system itself is secondary to the more general goal of facilitating the fruitful engagement of national par liaments with the Union institutions, with a view to enhancing scrutiny of the Union’s activities by domestic as well as supranational representative assemblies.217  Nevertheless, there are doubts about just how well the “yellow card” system will work – even assuming that national parliaments take their new role seriously and actually exercise their power to issue reasoned opinions in practice.218 For example, although the TL extended the deadline for responses to eight weeks, rather than the six weeks originally proposed under the CT, it is still uncertain whether such a tight timetable will offer sufficient opportunity for the national parliaments to formulate (and if desired, coordinate) their subsidiarity objections. Moreover, the Protocol assumes that national par liaments will issue reasoned opinions specifically on grounds of subsidiarity. What hap pens if the grounds for objection actually relate to complaints a bout (say) the  principle of proportionality, or the simple desirability of the proposed regulatory standards?

214. Though see below on Art. 8 of the Protocol. 215. See Arts. 70, 71, 85 and 88 TFEU. 216. See Art. 48 TEU and Art. 81(3) TFEU. See section 10.3. 217. See Crum, “Tailoring representative democracy to the European Union: Does the Euro pean Constitution reduce the democratic deficit?”, 11 ELJ (2005), 452. 218. Something that cannot be taken for granted: see “Apathy undermines national parliaments’ EU power” (www.euobserver.com on 5 Nov. 2007).

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Another potential problem relates to the procedure for activating the system of heightened scrutiny, where negative reasoned opinions account for half the votes cast by national parliaments, which depends on the Commission “maintaining” rather than “amending” the relevant proposal. What if the Commission indeed amends its draft, but not in a way that materially affects, or substantially meets, the objections originally made by the national parliaments: would this nevertheless absolve the Commission from any obligation to produce its own reasoned opinion, and the Council and European Parliament from any need to carry out a preliminary subsidiarity vote? Further issues derive from the decision to limit the system of he ightened scrutiny to proposals made under the ordinary legislative procedure. At first glance, it may seem of little consequence that such heightened scrutiny does not apply to proposals made under a special legislative procedure: the latter generally require the Council to act by unanimity, thus ensuring de facto that national parliamentary objections will carry some political clout; in the few situations where the revised Treaties do permit the Council to act by QMV, the subject matter of the relevant Union competences is such as to raise no serious subsidiarity objections.219 However, the exclusion of heightened scrutiny may become more problematic if the passerelle clause contained in Article 48(7) TEU eventually sees the extension of QMV within the Council to other special legislative procedures.220 In that case, heightened scrutiny would be excluded under a special legislative  procedure which is comparable, in all releva nt respects, to the ordinary legislative procedure. Of course, if such problems arise, they a re likely to be resolved by political  pragmatism and mutual negotiation. But the new “yellow card” system does raise other interesting questions about the future role of the Court of Justice in subsidiarity disputes. As is well known, the Court for several years shied away from becoming engaged too deeply in assessing the substantive merits of actions for annulment against Community acts based on breach of the principle of subsidiarity;221  though more recent rulings suggest that the Court feels greater confidence about investigating whether the criteria for the legitimate exercise of Community competence contained in the second paragraph of Article 5 EC are in fact satisfied. 222 On the one hand, it could be argued that the

219. See Art. 23 TFEU on diplomatic protection of Union citizens; Art. 311, fourth para TFEU on implementing the Union’s own resources. 220. Section 5.2.3. 221. E.g. Case C-84/94, United Kingdom v. Council , [1996] ECR I-5755; Case C-233/94, Germany v. European Parliament and Council , [1997] ECR at I-2427. 222. E.g. Case C-377/98,  Netherlands v.  European Parliament and Council , [2001] ECR I-7079; Case C-491/01, ex parte British American Tobacco , [2002] ECR I-11453; Case C-154  –155/04, Alliance for Natural Health , [2005] ECR I-6451.

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emphasis placed by the TL on ex ante  political monitoring by the national  parliaments should be taken by the Court as an indication that it need no longer strain itself towards adopting a more rigorous substantive test for judicial review on grounds of subsidiarity. On the other hand, Article 8 of the Protocol expressly confers upon the Court of Justice jurisdiction to hear actions for the annulment of Union legislative acts based on the principle of subsidiarity,  brought by Member States or notified by them “in accordance with their legal order” on behalf of their national parliaments or a chamber thereof. 223 Overlooking the important interpretative question of whether national parliaments are thereby given an inalienable right of access to the Court, or remain dependent on the cooperation of their Member State to initiate action on their  behalf,224 this provision suggests that, if anything, ex post   judicial review on subsidiarity grounds may be poised to take on a whole new potency. After all, the Treaties have deliberately enlarged the possibilities for judicial scrutiny specifically on subsidiarity grounds; thanks to the “yellow card” system, the Court may be presented with a mass of “reasoned opinions” detailing the substantive objections held by national parliaments. With such a wealth of material, argumentation over subsidiarity could metamorphose from the politically subjective into the readily justiciable.

7.

Human rights and fundamental freedoms

At present, the Community / Union has a single, workable fundamental rights regime centred around the general principles of Community / Union law, as developed by the Court in its case law, drawing inspiration from the common constitutional traditions of the Member States and international instruments of which the most influential is the ECHR.225 The proclamation of the Charter of Fundamental Rights in December 2000 provided the basis for an alternative system centred around a future written bill of rights for the Union. 226 That idea was taken up by the Constitutional Treaty, which proposed fully incorporating the Charter into the Union’s primary law and conferring upon it binding legal status, subject to certain amendments (in particular) to its preamble and hori-

223. Art. 8 also permits the Committee of the Regions to seek annulment of Union legislative acts in respect of which the TFEU provides for its consultation, for alleged breach of the subsidiarity principle. On the Committee’s standing to bring annulment actions more generally: section 8.3. 224. See further, e.g. Dougan, op. cit.  supra note 10, 763, 768; Kokott and Ruth, op. cit.  supra note 10, 1335. 225. See further, e.g. Arnull et al., op. cit. supra note 11, Chapt. 8. 226. O.J. 2000, C 364/1.

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zontal provisions, while still expressly preserving the case law on fundamental rights as general principles of Union law.227 During the post-referenda “period of reflection”, perhaps in a judicial attempt to cherry-pick those parts of the Constitution that it seemed politically worthwhile and legally possible to salvage, the Court succeeded in conf erring an indirect legal status upon the Charter by referring to it as another valid source of inspiration for the Court’s own case law: in effect, if a right is contained in the Charter, this acts as an irrebuttable presumption that it is already protected under the general principles. 228 It is against that already complicated background that we must understand the TL’s approach to the Union’s future human rights regime. First, Article 6(1) TEU states that the Union recognizes the rights, freedoms and principles set out in the Charter, which shall have the same legal value as the Treaties. For these purposes, the Charter must be interpreted not only in accordance with the horizontal provisions contained in Title VII thereof, but also with due regard to the explanations drawn up by the original drafting convention. Secondly, however, the Charter is not incorporated into the Treaties by text, only  by reference – another victim of the European Council’s decision to abandon the “constitutional concept”. In fact, both the Charter and its accompanying explanations were re-proclaimed by the Commission, Council and European Parliament on 12 December 2007, incorporating the various revisions agreed earlier in the constitutional reform process, with a view to taking effect as from the date of entry into force of the TL itself. 229 Thirdly, Article 6(3) TEU states that fundamental rights, as guaranteed by the ECHR and resulting from the common constitutional traditions of the Member States, shall constitute general principles of Union law – thus offering a clear legal mandate for the Court to retain and develop its own case law, albeit to an unspecified degree. Fourthly, the TL introduces a special Protocol on the application of the Charter of Fundamental Rights to Poland and the United Kingdom – a text whose po-

227. See Art. I-9 and Part II CT. See, for analysis of the Convention draft and CT proposals, e.g. Williams, “EU Human Rights Policy and the Convention on the Future of Europ e: A failure of design”, 28 EL Rev. (2003), 794; Carruthers, “Beware of lawyers bearing gifts: A critical evaluation of the proposals on fundamental rights in the EU Constitutional Treaty”, (2004) EHRLR 424. 228. E.g. Case C-540/03,  Parliament v. Council , [2006] ECR I-5769; Case C-432/05, Unibet , [2007] ECR I-2271; Case C-303/05, Advocaten voor der Wereld , [2007] ECR I-3633; Case C-438/05, Viking Line , judgment of 11 Dec. 2007, n yr; Case C-341/05, Laval un Partneri, judgment of 18 Dec. 2007, nyr; Case C-450/06, Varec, judgment of 14 Feb. 2008, nyr. See further, e.g. Drywood, “Giving with one hand, taking with the other: Fundamental rights, children and the family reunification decision”, 32 EL Rev. (2007), 396. 229. O.J. 2007, C 303/1 (Charter) and C 303/17 (explanations).

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litical sensitivities and poor drafting confuse the potential legal effects of the revised Charter for those two Member States (and potentially beyond). 230 Detailed critical analysis of the revised Charter is a job best left to specialist commentators. Our attention will instead focus on some of the broader constitutional challenges created by the TL’s human rights package. In particular, the task of maintaining a coherent, workable fundamental rights regime for the Union is complicated by two main and intertwined issues: the relationship  between the revised Charter and the case law on general principles; and the  proper interpretation of the Protocol on Poland and the UK. 7.1.

The Charter and the case law on general principles

As is well known, the Charter itself suffers from various drafting deficiencies.231 Some of those deficiencies derive fr om the original 2000 version of the text. For example, according to Article 51(1) of the Charter, its provisions are addressed to the Member States only when implementing Union law. As has often been pointed out, this seems to contradict the well-established principle that fundamental rights bind the Member States whenever they act within the  scope of  Community law, which also includes derogating from the Treaty. 232 Other deficiencies result from the constitutional reform process itself and ha ve now found their way into the 2007 text. For example, Article 52(5) provides that Charter provisions containing “principles”, which may be implemented  by Union legislative and executive acts, and by Member State acts implementing Union law, “shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality”. That is a very clumsy a ttempt to ensure that exhortatory principles – usually embodying certain social and cultural aspirations, rather than conferring more traditional civil and political liberties, or concrete economic and social rights – cannot in themselves form the basis of directly effective individual rights, enforceable even in the absence of the necessary implementing measures at Union or national level; but should instead act merely as useful yardsticks against which to measure the relative success (or otherwise) of Union / national regulatory activity. The problem is that the task of identifying fully justiciable “rights” as opposed to partially  justiciable “principles” for the purposes of Article 52(5) is very far from

230. Another main reform – a legal basis for Union accession to the ECHR – is considered in section 7.3. 231. See further, e.g. Special Issue on the Charter of Fundamental Rights , 8 MJ (2001), Issue 1; Ward and Peers (Eds.), The EU Charter of Fundamental Rights: Politics , Law and Policy (Hart Publishing, 2004). 232. E.g. Case C-368/95,  Familiapress, [1997] ECR I-3689; Case C-60/00, Carpenter , [2002] ECR I-627 9. See further, e.g. Arnull et al., op. cit.  supra note 11, esp. para 9–023.

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straightforward, and neither the Charter nor its explanations offer any definitive guidance for these purposes.233 The situation becomes more complicated because resolving such problems cannot be based on an isolated interpre tation of the Charter text alone. In fac t, the solution is inextricably bound up with how we approach Article 6(3) TEU: what role does that provision now allocate to the Court’s case law on fundamental rights as general principles, and how will this interact with the legal effects of the revised Charter? After all, the potential exists for a very significant coincidence between the scope and content of the Charter and that of the general principles – especially taking into account the Court’s decision, during the interregnum between CT and TL, to begin treating the Charter as a valid source of inspiration for its own case law. How the Court negotiates the relationship between Charter and case law – perhaps mutually discreet but if so, where the demarcation line is drawn; perhaps overlapping but if so, which norm takes priority – is another of those post-TL challenges that may yet exercise as great an influence on this field of Union law as the TL reforms themselves. Several possibilities can be identified. For example, it would be theoretically possible for the Court to decide that its case law will continue to evolve much as it does now: the touchstone for protecting fundamental rights within the Union remains the general principles, and the Charter’s primary role is to act as a valid source of inspiration for their development, but its drafting deficiencies can safely be ignored because they are not directly relevant to determining the scope or legal effects of the case law itself. However, such an ap proach is surely unlikely to emerge in practice: it would be constitutionally indefensible for the Court to ignore the clear will of the Treaty drafters to furnish the Union with a written bill of rights, intended to act as the primary re pository of fundamental rights protection, and capable of having direct legal effects of its own, though only within the limits negotiated and agreed upon by the Union institutions and the Member States. Another possibility would be for the Court to manage two separate but parallel fundamental rights regimes: the Charter applying to the Union institutions and Member States implementing Union law (and subject to its various drafting deficiencies); the general  principles applying in all other situations, such as Member State derogations from the Treaties (and thus free from the Charter’s inherent limitations). But such a dual system might prove bothersome, where the range of rights pro-

233. The explanations do give some indications, but they are far from exhaustive: see O.J. 2007, C 303/35. See further, e.g. Dougan, “The Convention’s Draft Constitutional Treaty: a ‘Tidying-Up Exercise’ That Needs Some Tidying-Up of Its Own…”  Federal Trust Constitutional Online Essay 27/03 (available at www.fedtrust.co.uk/eu_constitution.htm).

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tected may be exactly the same in each situation, but the actual quality and  potency of those rights could differ in an almost arbitrary manner. Perhaps the best solution would be for the Court to treat the revised Charter for all practical purposes as the authoritative source of fundamental rights protection within the Union, and overcome its textual deficiencies by sheer inter pretative perseverance: for example, by construing the concept of Member States “implementing” Union law as equivalent to the broader case law notion of “acting within the scope of” Union law; and by allocating Charter provisions between the categories of “rights” and “principles” on a case-by-case  basis consistent with the spirit behind the bungled drafting. With the Charter serving as the Union’s primary and perfectly workable fundamental rights regime, the general principles as referred to in Article 6(3) TEU could perform a more modest role: lying dormant in most situations, they could nevertheless be called upon in the future to provide an effective legal basis for the flexible evolution of the Union’s human rights jurisprudence, lest the incorporated Charter have the unintended effect of constraining the Union’s response to new and unforeseen social and moral problems. 234 7.2.

The Protocol on Poland and the UK

If the poor drafting of the revised Charter, coupled with the preservation of the general principles, amounts to a recipe for uncertainty and perhaps incoherence, the situation becomes even more complex when another ingredient is added to the mix: the Protocol on Poland and the UK. The failure of the Constitutional Treaty, and the desire of the British Government to avoid having to hold a referendum on its replacement, led the UK to impose its infamous “red lines” upon the 2007 negotiations, satisfaction of which became a sine qua non for British signature of the Lisbon Treaty. In several cases, those “red lines” involved the UK wriggling out of reforms it had previously seemed content to sign up to at previous IGCs, and ultimately amounted to demands for special treatment compared to the other Member States, so that the new TL would appear sufficiently different from the previous CT as to make an ordinary parliamentary vote appropriate for its ratifica-

234. See, e.g. Weiler, “Does the European Union truly need a Charter of Rights?”, 6 ELJ (2000), 95. In this regard, however, Art. 6(3) TEU could have certain “chilling effects” of its own: by referring only to the ECHR as an “external” source for the general principles of Union law, is Art. 6(3) TEU implicitly ruling out reliance on other international human rights instruments (such as the UN Charter on the Rights of the Child, already cited by the ECJ as a valid source of inspiration for the general principles of Community law, in Case C-540/03,  Parliament v. Council , [2006] ECR I-5769)?

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tion. One such “red line” concerned the Charter.235  Even with its potential significance hemmed in by its revised horizontal provisions, the prospect of full legal status for the Charter provided the basis for an acutely paranoid, often embarrassingly childish and sometimes simply dishonest smear campaign (by sections of the media and various political parties alike). Prominent in that campaign was the accusation that the economic and social rights contained in Title IV of the Charter would provide the basis for a judicial assault upon the UK’s (neo-)liberal employment legislation: for example, overturning restrictions on the right to strike, limiting the ability of employers to hire-and-fire with relative ease, and generally undermining the UK’s supposed competitive advantage in the market for low-skilled, low-productivity labour.236 It is a de pressing fact of life in the arena of public political debate that, in the face of such forcefully put and simplistically appealing allegations, any attempt at careful and rational analysis to explain the actual limits and nuances of the Charter within their complex constitutional context falters and ultimately fails. It is against that heated political background that we must understand both the British desire to avoid a referendum on the new TL, and the tenacity with which the UK asserted the “red lines” it deemed essential to the success of that strategy – including the demand (in which it was subsequently joined by the incumbent Polish administration)237 for a special Protocol on the Charter. Article 1(1) of the Protocol provides that the Charter does not extend the ability of the Court of Justice, or any court or tribunal of Poland or the UK, to find that the laws, practices or action of Poland or the UK are inconsistent with the fundamental rights, freedoms and principles that it reaffirms. Article 1(2) then states that, in particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the UK except in so far as Poland or the UK has provided for such rights in its national law. Finally, according to Article 2, to the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the UK to the extent that the rights or principles it contains are recognized in the law or practices of Poland or the UK. To make matters even cloudier, the new Polish administration elected between the conclusion of the IGC in October 2007 and the final signature of the TL in December 2007, feeling unable formally to

235. Another concerns the status of pre-existing Third Pillar acts: section 9.2. 236. On the Title IV provisions, see further, e.g. Hervey and Kenner (Eds.),  Economic and Social Rights under the EU Charter of Fundamental Rights: A Legal Perspective (Hart Publishing, 2003). 237. Whose concerns seem to have centred not around the Title IV economic and social rights, but rather on issues such as abortion and same-sex marriage: note Declaration No 61 annexed to the Final Act.

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repudiate its predecessor’s adhesion to the Protocol, instead adopted a unilateral declaration: having regard to the tradition of Solidarity, Poland fully respects social and labour rights as established by Union law and, in particular, those reaffirmed in Title IV of the Charter.238 The UK’s Labour Government gave no such ground, much to the chagrin of the British trades union. 239 How should we approach this Protocol? Again, our answer depends on the interaction between a blend of various factors: not only interpretation of the Protocol’s own clumsy text per se, but also the potential impact on Poland and the UK of the case law on fundamental rights as general principles of Union law pursuant to Article 6(3) TEU, which in turn must be considered in tandem with our previous discussion about how to construct a workable relationship  between the Court’s case law and the legal effects of the revised Charter as a whole. And again, this leads to several possible outcomes. For example, the Court could decide simply to treat the Protocol as it has often been presented politically: it operates as an “opt-out” for Poland and the UK from certain aspects of the Charter’s legally binding status; as such, its derogating effects should not be undermined by recourse to the silver tongued interpretation of meddling lawyers, nor bypassed by the invocation of other legal devices (such as the general principles of Union law) capable of guaranteeing fundamental rights in a manner equivalent to the Charter itself. However, that approach would lead to the peculiar situation that the Union offers certain supposedly “fundamental rights” to its c itizens only so long as they are resident in 25 of its 27 Member States – a prospect which might seem to undermine the very concept of basic freedoms which is meant to lie at the heart of a common legal heritage for Union citizens.240 Avoiding that outcome is a  perfectly legitimate objective – but how best to achieve it? One possibility would be to focus on various recitals in the Protocol’s very own preamble: the Charter merely reaffirms rights and principles which already exist under Union law, without creating any new ones; this Protocol is without prejudice to the other obligations devolving upon Poland and the UK under the Treaties and Union law generally. Those recitals are highly suggestive of the following, more radical approach. Even a ccepting that the Protocol is intended to be, and could actually serve as, an “opt-out” from certain of the

238. Declaration No 62 annexed to the Final Act. 239. See the resolution adopted at the Trades Union Congress (September 2007) expressing  bitter disappointment at the UK Government’s position in relation to the Charter of Fundamental Rights (available via www.tuc.org.uk). In the same resolution, the TUC called upon the Government to hold a referendum o n the TL, though it refused to back another motion calling for a “no” campaign should such a referendum be held. 240. A view shared by the European Parliament in its opinion on the IGC mandate (Resolution of 11 July 2007, para 12).

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full legal effects of the revised Charter, the relevant Charter provisions merely codify fundamental freedoms which already exist, in particular, as general  principles of Union law.241 So, whatever the Protocol says and actually achieves within its own limited field of application, an equivalent range and level of fundamental rights protection will be assured, through the general principles of Union law, which remain fully binding upon and justiciable within Poland and the UK whenever those Member States act within the scope of the Treaties. This approach clearly has the merit of promoting a universal standard of fundamental rights protection for all Union citizens. However, it implies treating the Protocol in a relatively abrasive manner, and thus at the risk of inviting accusations that an important element of the political bargain underpinning the TL has been blatantly undone by the Court. Moreover, it resurrects the problems associated with a dual system of human rights protection within the Union legal order: 25 countries are governed by the Charter; two Member States by the general principles, or rather, by the Charter in certain situations,  by the general principles in others. In addition, this approach also complicates the broader debate about the optimum interaction between the general princi ples and the revised Charter: if, in our eagerness to scupper the machinations of Poland and the UK, we resort to the principle that the Court’s case law can  play an active role in protecting fundamental rights even  in certain specific situations which should otherwise be governed by the Charter (and thus the Protocol), that would make it very difficult to assert, more generally, that the revised Charter should act as the primary instrument for fundamental rights review within the Union, while the general principles perform a purely residual role in accommodating future and unforeseen challenges. Another possibility for neutralizing the impact of the Protocol would be to recall the general principle, familiar across national and international human rights law, that any instrument seeking to delimit the effects of a written bill of fundamental rights must be strictly construed. If this Protocol is intended to derogate from the full binding effects of the Charter, one may insist that it do so clearly and unambiguously; otherwise, it should be interpreted in the manner most compatible with the full extent of human rights protection sought by the Charter (and which the text can reasonably sustain). In that regard, one could draw attention to another combination of the recitals contained in the Protocol’s very own preamble: the Charter merely reaffirms rights and principles which already exist under Union law; this Protocol seeks to clarify cer-

241. See, in particular, Viking Line  and Laval un Partneri , both cited  supra note 228, where the ECJ recognized the right to collective action, including the right to strike, as a general principle of Community law.

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tain aspects of the Charter ’s application, in particular, in relation to Polish and UK law and its justiciability within these two Member States. Those recitals are highly suggestive of an alternative, less radical but equally e ffective analysis: the Protocol is not intended to have any novel legal effects, only to clarify the full implications of the legal obligations imposed by Union law, apparently because the populations of Poland and the UK have particular anxieties that call for an extra effort of illumination. Consider, for example, Article 1(1) of the Protocol. That provision would  best be interpreted as stating the obvious: that the Charter does not extend the  possibility of judicial review of Polish / British law into situations which fall altogether outside the scope of the Treaties. In other words, Article 1(1) serves to debunk the myth that the Charter is intended effectively to usurp the ECHR and act as a universally applicable bill of rights, divorced from the division of competences between the Union and its Member States, and from the distinction between the Member States acting within or outside the scope of Union law.242 Conversely, however, Article 1(1) does not prejudice the jurisdiction of the Union or national courts in situations that do indeed fall within the scope of the Treaties, on the basis of the revised Charter qua codification of the existing acquis.243 If the Protocol had wanted actively to diminish the possibilities for judicial review, it should have used much stronger language: for example, that the Union / national courts are hereby divested of their jurisdiction to carry out judicial review in respect of Polish / British law, even when those Member States are acting within the scope of the Treaties, on the grounds of incompatibility with the rights and principles now embodied in the Charter.244 When it comes to Article 1(2) of the Protocol, that provision also emerges as a largely declaratory text: it rules out the justiciability of the Title IV provisions to the extent that they might create directly effective individual rights;  but none of the Title IV provisions actually purport to confer  freestanding   justiciable rights in any case. In fact, the Title IV provisions are all based – explicitly or implicitly – on the idea that the rights set out therein shall be exercised within the scope and under the conditions provided for by Union or national implementing measures.245 As Article 1(2) affirms, the binding e ffect

242. Cf. Art. 6(1), second para TEU; and also Declaration No 1 annexed to the Final Act. 243. In keeping with the above argument, which treats the general principles of Union law as relevant only in a residual category of cases, not as a truly parallel system of fundamental rights protection. 244. Or with the general principles of Union law as applicable in the residual category of cases. 245. Explicitly as with, e.g. Art. 27 on workers’ rights to information and consultation; Art. 28 on collective bargaining and action; Art. 30 on unjustified dismissal. Implicitly, on the basis of Art. 52(2) of the Charter, as with, e.g. Art. 31 on fair and just working conditions. Similarly

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and justiciability of any national implementing legislation is obviously inherent within the domestic legal system; however, as the preamble to the Protocol recalls, any relevant Union implementing measures will remain binding on and justiciable within Poland / the UK as such – and indeed, take priority over conflicting national provisions in accordance with the usual principle of su premacy.246 In fact, Article 1(2) appears little more than a partial restatement, for the benefit of Poland and the UK, of the distinction between the legal effects of rights and principles applicable to the Char ter as a whole under Article 52(5) thereof.247 Moving on to Article 2 of the Protocol, similar interpretative techniques suggest that its legal effects are also rather minimalist. To the extent   that a Charter provision refers to national law, it shall only apply to Poland or the UK insofar as that provision is already recognized under national law. Fair enough  – but equally, one might point out, to the extent  that a Charter provision also or instead refers to Union law,248 it will apply to Poland and the UK to the full degree demanded by any applicable Union secondary acts, the binding nature and direct effect of which remains unaffected by Article 2 of the Protocol, and if necessary will override any conflicting provisions of national law. It is therefore possible to interpret the Protocol effectively out of existence, without adversely affecting the legal position of Poland or the UK under Union law. This approach perhaps best reflects the understanding that the Protocol’s  primary purpose is to serve as an effective political response to a serious failure of public discourse. Indeed, the Protocol emerges as a fantasy solution to a fantasy problem: the Charter is not actually a serious threat to UK labour law; for its part, the Protocol is not really an opt-out from anything. Or at least, whatever limits Union law imposes upon the degradation of e mployment pro-

with Art. 37 on environmental protection, and Art. 38 on consumer protection, derived from the relevant “integration” clauses contained in the Treaties, which are not intended to be enforceable  per se: see Arts. 6 and 174 EC / Arts. 11 and 191 TFEU as interpreted in Case C-341/95,  Bettati, [1998] ECR I-4355; Case C-284/95, Safety Hi-Tech , [1998] ECR I-4301; and Art. 153 EC / Art. 12 TFEU as interpreted in Case C-233/94, Germany v. Parliament and Council , [1997] ECR I-2405. 246. E.g. consider the relationship between Art. 27 of the Charter and Directive 2002/14 on information and consultation of workers, O.J. 2002, L 80/29. Or between Art. 31 of the Charter and Directive 89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work, O.J. 1989, L 183/1, or Directive 93/104 concerning certain as pects of the organization of working time, O.J. 1993, L 307/18. 247. Even if it were arguable that Art. 1(2) of the Protocol was indeed intended to go further than Art. 52(5) of the Charter, ruling out the justiciability of Title IV provisions even as tools for the correct interpretation of any applicable Union / national implementing measures, the am biguous drafting is hardly compelling enough to oblige the judges to construe the text in that manner. 248. Either expressly or by virtue of Art. 52(2) of the Charter.

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tection under UK law derive from the Treaties, Union secondary measures and (possibly) the general principles of Union law – regardless of the Charter, or the Protocol. More fundamentally, this approach also has the merit of preserving a coherent, workable system of fundamental rights protection – based on the primacy of the Charter and a purely residual role for the general principles  – which will apply in full to all 27 Member States of the Union. 7.3.

Accession to the ECHR

Despite all these difficulties, it would be wrong to give the impression that the TL’s main contribution to the protection of fundamental rights under Union law is to render the system more complex, ignoring the significant gains which will indeed be made under the revised Treaties: not only incorporation of the Charter, but also (as we shall see shortly) changes to the jurisdiction of the Union courts so as to enable them better to safeguard fundamental rights, in  particular, as regards access to justice.249 Another important reform is contained in Article 6(2) TEU, which imposes upon the Union an obligation to accede to the European Convention on Human Rights (though it is expressly provided that such accession shall not affect the Union’s competences as defined in the Treaties). 250 The implications and modalities of Union accession to the ECHR are too well-rehearsed to warrant another airing here.251 Suffice to say that, by overcoming the legal objections to accession first identified by the Court in Opinion 2/94,252 the TL paves the way for an important series of additional fundamental rights guarantees under Union law: for example, a more direct means of challenging the infringement of fundamental rights by primary Treaty provisions than that currently offered  by the Matthews  and  Bosphorous  jurisprudence;253  and the sort of external scrutiny by the Strasbourg Court of the ECJ’s own approach to fundamental rights interpretation which is already taken for granted, in r espect of their own national supreme courts, by the domestic legal orders of every Member State. Before those gains can be realized, of course, the Union will have to work w ith

249. Sections 8.2 and 8.3. 250. On the accession procedure itself, see Art. 218(8) TFEU. Note also the provisions of the Protocol relating to Art. 6(2) TFEU on the Union’s accession to the ECHR; and of Declaration  No 2 annexed to the Final Act. 251. See further, e.g. Alston (ed), The EU and Human Rights (OUP, 1999) ; Turner, “Human Rights Protection in the European Community: Resolving Conflict and Overlap Between the European Court of Justice and the European Court of Human Rights”, 5 EPL (1999), 453. 252. Opinion 2/94, [1996] ECR I-1759. 253. Matthews v. United Kingdom , Judgment of ECtHR, 18 Feb. 1999;  Bosphorous v. Ireland, Judgment of ECtHR, 30 June 2005.

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the Council of Europe to overcome the institutional barriers to accession built into the framework of the ECHR itself. 254

8.

8.1.

The Union judiciary

Reforms to judicial architecture

The most obvious change to the Union’s judicial system is contained in Article 19(1) TEU: the “Court of Justice of the European Union” shall include the Court of Justice (currently the Court of Justice of the European Communities), the General Court (currently the Court of First Instance of the European Communities) and any specialized courts (currently designated “judicial panels” as introduced by the Treaty of Nice). Two further points are worth noting. First, Articles 253 and 254 TFEU would require the Member States to consult a panel, before appointing judges and advocates general of the Court of Justice or the General Court, for its opinion on candidates’ suitability for office. According to Article 255 TFEU, that panel is to comprise seven persons chosen from among former members of the Court of Justice and the General Court, members of national supreme courts and lawyers of recognized competence, one of whom is to be proposed  by the European Parliament. The Council is to lay down the panel’s operating rules and appoint its members. Although the panel’s views will not be binding on the Council, it is anticipated that this new layer of scrutiny will dissuade Member States from nominating potentially inappropriate persons for senior  judicial office, and thereby contribute to the maintenance of high levels of competence within the Union courts. In any case, the new appointments procedure should not be viewed with suspicion as a first step towards greater politicization of the Union judiciary: the nature of the panel itself hardly harks in the direction of the US Senate’s confirmation hearings for appointing Supreme Court justices; surely the constitutional culture of Europe in general, and the EU in particular, frowns upon the selection of Union judges on blatantly political grounds. If anything, the new panel should reinforce that culture still further. 255

254. For discussion, see Council of Europe Steering Committee for Human Rights, Study of Technical and Legal Issues of a Possible EC/EU Accession to the European Convention on Human Rights (Report Adopted on 28 June 2002) DG-II(2002)006. Note Protocol 14 to the ECHR (agreed in 2004), which expressly provides for the EU to accede to the ECHR, though without determining the necessary conditions and modalities. 255. Cf. Barents, “The Court of Justice in the Draft Constitution”, 11 MJ (2004), 121.

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Secondly, as part of a deal to win Polish approval for the TL, Declaration  No 38 annexed to the Final Act provides that, should the Court of Justice request that the number of advocates general be increased by three (to eleven), the Council will agree to such an increase; in that event, Poland will join Germany, France, Italy, Spain and the UK in having a permanent advocate general, rather than taking part in the rotation system. Increasing the number of advocates general makes sense from the point of view of the Court’s back breaking workload, albeit at the risk of undermining the coherence of the advice offered to the Court by its advocates general; in any case, it seems eminently sensible that Poland – as one of the larger Member States, comparable in size to Spain, and certainly the largest of the ex-Communist legal systems now represented within the Union – should acquire a permanent advocate general, if and when the number rises. 8.2.

Jurisdiction: Various reforms

The Union’s basic judicial architecture is not significantly modified by the TL; however, there are several changes to the detailed jurisdiction of the Union courts.256 For example, the procedure for imposing sanctions upon defaulting Mem ber States within the context of enforcement proceedings would be simplified in two ways.257 First, where the Member State has already been found by the Court to be in breach of its obligations, the Commission would no longer be required to issue a reasoned opinion, only to give the Member State an opportunity to submit its observations. Secondly, where enforcement proceedings relate to an alleged failure to notify domestic measures transposing a directive adopted under a legislative procedure, the Commission would be able in its initial application to the Court  to request the imposition of a financial penalty.258 There would be a significant extension of the Court’s jurisdiction within the Area of Freedom, Security and Justice: the limitations on preliminary references under current Title IV, Part Three EC would be removed; the extensive

256. See further, e.g. Tridimas, “The European Court of Justice and the Draft Constitution: A Supreme Court for the Union?” in Tridimas and Nebbia (Eds.),  EU Law for the Twenty-First Century (Volume 1) (Hart Publishing, 2004); Arnull, “From bit part to starring role? The Court of Justice and Europ e’s Constitutional Treaty”, 24 YEL (2005), 1. 257. See Art. 260 TFEU. 258. This provision should be understood as referring to breach, not of the purely procedural obligation to notify implementing measures, but rather of the substantive duty to transpose directives fully and properly into national law: see further, e.g. Dougan, op. cit.  supra note 10, 788.

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restrictions applicable to the Court’s jurisdiction to hear preliminary references, actions for annulment and actions for non-contractual liability under existing Title VI TEU would likewise be erased.259 However, the Court’s jurisdiction as regards pre-existing Third Pillar acts would remain subject to the current Treaty provisions for a five-year transitional period f ollowing the entry into force of the TL.260 Moreover, Article 276 TFEU would continue to exclude the Court’s ability, when exercising its powers in the field of PJC, to review the validity or proportionality of the activities of national law-enforcement agencies, or relating to the Member State’s responsibilities with regard to the maintenance of law and order, or to the safeguarding of internal security.261 In any case, under the jurisdiction to deliver preliminary rulings, Article 267 TFEU would expressly provide that, as regards cases involving a person in custody, the competent Union court must act “with the minimum of delay”  – presumably in accordance with the accelerated and urgent procedures provided for under the Court’s Rules of Procedure.262 Article 275 TFEU will continue to exclude the Court’s jurisdiction over  both the Treaty provisions relating to the CFSP and any acts adopted on the  basis of those provisions. However, the Court will be able to rule in proceedings, based on Article 40 TEU, designed to ensure that implementation of the CFSP does not affect the Union’s competences elsewhere under the Treaty (or vice versa);263 and to hear actions for annulment against decisions imposing restrictive measures upon natural or legal persons adopted by the Council pursuant to the CFSP. 264 In fact, the combined effect of these reforms will be a considerable im provement in the Court’s ability to review the imposition of restrictive measures upon individuals.265 Under the current Treaties, CFSP measures identifying individuals or groups for the imposition of restrictive measures are not amenable to judicial review by the Union courts.266 As regards “external” indi-

259. See further, e.g. Peers,  EU Justice and Home Affairs Law (OUP, 2nd ed, 2006) Ch 2; Claes, “Judicial protection in the Area of Freedom, Security and Justice: Passing the hot potato?” in Schneider (Ed.), Migration, Integration and Citizenship: A Challenge for Europe’s Future – Volume II (Forum Maastricht, 2005). 260. Section 9.2. 261. Cf. existing Art. 35(5) TEU. 262. See Art. 104a of the Court’s Rules of Procedure on accelerated references, and Art. 104b on urgent references (as introduced by O.J. 2008, L 24/39). 263. Section 3. 264. See Chapter 2 of Title V TEU, together with Arts. 215 and 275 TFEU. 265. See further, e.g. Spaventa, “Fundamental what? The difficult relationship between foreign policy and fundamental rights” in Cremona and de Witte (Eds.),  EU Foreign Relations  Law: Constitutional Fundamentals (Hart Publishing, 2008). 266. See the current extent of the ECJ’s jurisdiction over the TEU as set out in existing Art. 46 TEU.

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viduals / groups, those CFSP measures are implemented by First Pillar regulations. The latter are subject to judicial scrutiny, albeit within the limits imposed  by the doctrine of circumscribed powers recognized by the CFI in Yusuf  (though that doctrine is currently being considered on appeal by the ECJ). 267 As regards “internal” individuals / groups, restrictive measures are imposed  by Third Pillar acts, which cannot be directly impugned by natural or legal  persons. The Court affirmed in SEGI  that it does possess jurisdiction to review any such act (whatever its formal designation, for example, as a “common  position”) at the request of a competent national court; 268 however, this is of little value in the case of Member States which have refused to accept the Court’s jurisdiction to deliver preliminary rulings under the Third Pillar. 269 Under the revised Treaties, by contrast, the Court will have jurisdiction over all Union acts imposing restrictive measures on individuals: both the CFSP decision identifying the relevant individuals;270 and the implementing regulation actually imposing restrictions, regardless of whether the situation is “external” or “internal”.271 Finally, the Court’s limited jurisdiction to conduct judicial review in situations where a Member State has been the subject of a fundamental rights determination, as currently provided for under existing Articles 7 and 46 TEU, would be retained as Article 269 TFEU: such actions are admissible only at the suit of the relevant Member State and only as regards respect for the procedural conditions set out in the Article 7 TEU. 8.3.

Jurisdiction: Action for annulment 

The changes agreed during the constitutional reform process as regards the action for annulment – Article 263 TFEU under the revised Treaties – warrant special attention.

267. Case T-306/01, Yusuf v.  Council and Commission , [2005] ECR II-3533; on appeal in Case C-415/05,  Al-Barakaat , (Opinion of 23 Jan. 2008; judgment pending). Similarly: Case T-315/01,  Kadi v. Council and Commission , [2005] ECR II-3649; on appeal in Case C-402/05,  Kadi, (Opinion of 1 6 Jan. 2008; judgment pending). See also, e.g. Case T-253/02, Ayadi, [2006] ECR II-2139; Case T-228/02, Organisation des Modjahedines du peuple d’Iran , [2006] ECR II-4665. 268. Cases C-354/04 & 355/04, SEGI , [2007] ECR I-1579. Presumably this jurisdiction is also subject to whatever limits are imposed by the Yusuf  case law. 269. See further, e.g. Davies, “Segi and the future of judicial rights protection in the Third Pillar of the EU”, 14 EPL (2008), (forthcoming). 270. In accordance with Art. 275 TFEU, which refers explicitly to “decisions” adopted by the Council “on the basis of Chapter 2 of Title V” TEU – a formulation which is clearly intended to cover the parent CFSP act as well as any subsidiary implementing regulations. 271. Under Arts. 215 and 75 TFEU (respectively). Again, presumably this jurisdiction is subject to whatever limits are imposed by the Yusuf  case law.

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The Court’s jurisdiction is extended to cover acts of the European Council which are intended to produce legal effects vis-à-vis third parties.272 Annulment actions will also be permitted against the wider category of Union bodies, offices or agencies established by or pursuant to the Treaties, again where their acts are intended to produce legal effects vis-à-vis third parties.273 The Committee of the Regions will acquire “semi-privileged applicant” status, i.e. able to bring annulment actions for the purposes of protecting its own  prerogatives;274 and also in respect of legislative ac ts for the adoption of which the TFEU provides that the Committee should be consulted, specifically on the grounds that such acts infringe the principle of subsidiarity. 275 As we have already seen, national parliaments (through the medium of their Member States) will also enjoy standing to seek the annulment of Union legislative acts on subsidiarity grounds.276 Perhaps the most significant reform relates to the standing of natural and legal persons to bring actions for annulment. As is well known, the Court currently adopts a very strict approach to the locus standi of non-privileged ap plicants under Article 230(4) EC, in particular, as regards the definition of “individual concern”. In most cases, applicants will be expected to bring an action before their national courts; the latter will then make a preliminary reference under Article 234 EC where they harbour serious doubts as to the validity of the disputed Community act. 277 This creates a problem of access to justice particularly as regards so-called “self-executing” Community acts, whose full legal effects do not depend upon the adoption of national implementing measures; in the absence of such a measure, the national courts of various Member States may refuse to consider the applicant’s request for a preliminary reference to Luxembourg. In cases such as UPA  and  Jégo-Quéré, the Court of Justice was asked, but refused, to rec onsider its position; and indeed, suggested that the proper solution lay with a revision of the Treaty itself. 278

272. Art. 263(1) TFEU. Cf. the extension of actions for failure to act to cover the European Council: Art. 265 TFEU. 273. Cf. Art. 263(5) TFEU, which provides that acts creating Union bodies and agencies “may lay down specific conditions and arrangements concerning actions brought by natural or legal persons against acts of these bodies, offices or agencies intended to produce legal effects in relation to them”. Note also the extension of actions for failure to act to cover Union bodies, offices and agencies: Art. 265 TFEU. 274. Art. 263(3) CT. 275. Art. 8 of the Protocol on the application of the principles of subsidiarity and proportionality. 276. Section 6.3. 277. See further, e.g. Arnull et al., op. cit. supra note 11, Chapts. 13 and 14. 278. Case C-50/00, Unión de Pequeños Agricultores (UPA) , [2002] ECR I-6677; Case C-263/02 P, Jégo-Quéré, [2004] ECR I-3425.

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That invitation was accepted by the Convention which drafted the Constitutional Treaty, and its proposals are now finally embodied in Article 263(4) TFEU: any natural or legal person may institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.279 This new provision has the merit of codifying case law such as  Extramet and Cordorniu, according to which the strict legal categorization of the dis puted act (as a decision, regulation or even directive) is not in itself determinative of the claimant’s standing. 280  But beyond that, on any reading, Article 263(4) TFEU is a minimalist solution to the problem of access to justice for natural and legal persons: the individual concern requirement is retained for all cases except   self-executing regulatory acts. Yet despite its crucial importance in delimiting the extent to which direct access to judicial review has  been liberalized under Article 263(4) TFEU, the concept of a “regulatory act” is not defined anywhere in the revised Treaties. The ordinary, natural meaning of that phrase would be any binding act of general application, whether legislative or non-legislative in nature. However, it seems that the Convention which originally drafted these reforms intended the phrase “regulatory act” to refer only to non-legislative measures; Union legislative acts, even if self-executing, would remain subject to the individual concern requirement. 281 That would be a minimalist solution indeed: after all, the disputed measure in UPA itself would be classified under the revised Treaties as a legislative regulation (adopted under the current Treaties by the equivalent of a special legislative  procedure, under the revised Treaties by the ordinary legislative procedure); the fact that that regulation was self-executing, and the competent national court refused on that basis to recognize any standing under domestic law to seek a preliminary reference, implies that the claimant in UPA  would have  been no better off post-TL than it was before.282 The rationale behind the Convention’s restrictive understanding of its own  phrase “regulatory acts” appears to have been the idea that measures adopted 279. See further, e.g. Usher, “Direct and individual concern: An effective remedy or a conventional solution?”, 28 EL Rev. (2003), 575; Dougan, op. cit.  supra note 10, 763; Schwarze, “The legal protection of the individual against regulations in European Union law”, 10 EPL (2004), 285. 280. Case C-358/89, Extramet , [1991] ECR I-2501; Case C-309/89, Codorniu , [1994] ECR I-1853. Similarly, Art. 264 TFEU codifies the Court’s case law on upholding the legal effects of void acts, e.g. Case C-271/94, Re Edicom Decision, [1996] ECR I-1689. 281. See CONV 636/03, p. 8; CONV 734/03, p. 20. 282. Cf. Usher, op. cit. supra note 279, 599; Koch, “ Locus standi of private applicants under the EU Constitution: preserving gaps in the protection of individu als’ right to an effective remedy”, 30 EL Rev. (2005), 511.

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 by the Union legislature, which stand at the summit of the Union’s new hierarchy of secondary norms, should be relatively more cushioned against the  possibility of challenge by natural and legal persons. However, that rationale is seriously flawed in several ways. First, the problem addressed by the Convention was not that of access to justice per se, only of access to justice via the direct action for annulment rather than the indirect preliminary reference. If the “hierarchy of norms” approach were to be pursued consistently, it would imply restricting the ability of natural and legal persons to challenge the validity of Union legislation by any means. As it stands, the Convention understanding would lead to the result, inconsistent by its very own criteria, that Union legislative acts are indeed shielded from challenge under Article 263(4) TFEU, but may still be left wide open to judicial review by way of a preliminary reference under Article 267 TFEU, depending on the arbitrary factor of how far national rules on standing will permit such indirect actions to proceed. Secondly, and perhaps more fundamentally, the Convention understanding  borrows from an approach developed in the national constitutional systems: there, it is true that access to the courts often becomes more restrictive as one moves up through the hierarchy of norms; thus, in many jurisdictions, the ability to challenge the legality of primary legislation is relatively limited or even non-existent. However, the rationale for such restrictive standing rules does not derive from the hierarchy of norms  per se, but rather from the system of democratic accountability that is assumed to underpin it: the citizen finds it more difficult to challenge rules enacted by the democratically elec ted legislature, as compared to measures adopted by the unelected executive authorities. When that argument is transplanted into the particular constitutional context of European integration, it probably begins to run against   recognizing any special treatment as regards access to justice for acts of the Union legislature, whose institutions clearly do not enjoy the same degree of democratic legitimacy as their domestic counterparts. If anything, one might argue that the rule of law – through the medium of effective judicial review, directly at the behest of the citizen, in respect of all Union measures, legislative as well as nonlegislative – plays an even more important role in legitimizing the existence and exercise of Union power than it does within the ordinary national legal systems. Thirdly, it should be recalled that, having regard to the applicable decisionmaking procedures and the substantive nature of the relevant measures, the distinction between legislative and non-legislative acts as dr awn in the revised Treaties is often formalistic and sometimes even arbitrary.283 To insist that such 283. Section 5.3.1.

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a flawed distinction should now perform a crucial role in determining the scope of access to justice under Article 263(4) TFEU would merely serve to magnify that formalism and arbitrariness still further.284 One hopes that the combined effects of the ratification crisis and the 2007 IGC will create enough distance for the Court to feel free from any sense of obligation to follow the Convention’s narrow but flawed understanding of “regulatory acts”. But it is probably hoping too much to argue that the TL’s strengthening of the concept of the Union as an organization of limited com petences, against the background of obviously conditional or even tenuous  popular support for the integration process, will persuade the Court to broaden as far as possible access to judicial review, simply by rewriting its own restrictive case law on individual concern. The best one can realistically expect is that the Court will adopt a broad definition of “regulatory acts” under Article 263(4) TFEU so as to dispense with the individual concern requirement as regards all self-executing Union measures of general application; then make good use of the new provision contained in Article 19(1) TEU – that Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law – so as to oblige national cour ts to accept bona  fide requests for preliminary references by those natural and legal persons still excluded from direct access to judicial review.285 Finally, one might note that the plea of illegality (to be found in Art. 277 TFEU) would be extended so as to cover not only regulations adopted by the institutions expressly listed in current Article 241 EC, but any “act of general application adopted by an institution, body, office or agency of the Union”. It is clear from the expanded list of potential a uthors of the relevant acts that the latter need not be legislative in nature; non-legislative acts of general application would also be capable of falling within the scope of Article 277 TFEU.

284. Cf. Dougan, op. cit. supra note 10; Barents, op. cit.  supra note 255. 285. The Court’s approach has tended so far only to encourage national courts to construe their own standing rules, as far as possible, so as to permit indirect challenges to Community measures to proceed to substantive consideration: see e.g. UPA,  supra note 278;  Jégo-Quéré,  supra note 278; Case C-15/06, Regione Siciliana, [2007] ECR I-2591. See further, e.g. Dougan,  National Remedies before the Court of Justice: Issues of Harmonisation and Differentiation (Hart Publishing, 2004) Ch 6; Cortés Martín, “ Ubi ius, Ibi Remedium? Locus Standi of private applicants under Article 230(4) EC at a European constitutional crossroads”, 11 MJ (2004), 233.

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The Area of Freedom, Security and Justice

It seems appropriate, in this overview, to highlight the key features of the new rules on the Area of Freedom, Security and Justice (AFSJ): not only because of the increasing volume and importance of Union activity within this field;  but also taking into account that the reforms (based largely on the provisions of the CT) represent a very far-reaching overhaul when compared to the existing Treaty provisions; and since certain special provisions – transitional as well as structural – applicable to the exercise of the Union’s AFSJ competences deserve the attention of EU lawyers in general. 286 9.1.

The general provisions on the Area of Freedom, Security and Justice

The current provisions of Title VI TEU (police and judicial cooperation in criminal matters) would be amalgamated with the current provisions of Title IV, Part Three EC (border checks, asylum, immigration and judicial cooperation in civil matters) so as to create a new Title V, Part Three TFEU. Through this process, the AFSJ emerges with several new characteristics. First, Title V provides a unified set of legal bases for comprehensive Union action across the field of justice and home affairs, including an explicit legal  basis for adopting directives on the definition of criminal offences and sanctions in areas already subject to harmonization measures; 287 an express legal  basis for the eventual creation, out of Eurojust, of a European Public Prosecutor’s Office;288  and new default powers to adopt measures concerning pass ports, ID cards, residence permits etc, to promote the free movement of Union citizens.289 Secondly, Union action under the new AFSJ would be conducted through the newly unified set of legal acts; the specific instruments currently available under the Third Pillar would be suppressed and measures adopted in the field of PJC would no longer be prohibited per se from having direct effect within the national legal systems. 290 Thirdly, the new AFSJ would see a significant enhancement of the powers of the European Parliament, and the use of

286. See, for analysis of the Convention proposals, e.g. den Boer, “Crime and the Constitution: A brief chronology of choices and circumventions”, 11 MJ (2004), 143; and of the CT  provisions, e.g. Vogel, “The European integrated criminal justice system and its constitutional framework”, 12 MJ (2005), 125. 287. Art. 83(2) TFEU. Cf. the existing position after Case C-176/03, Commission v. Council (Environmental Crimes), [2005] ECR I-7879 and Case C-440/05, Commission v. Council (Ship Source Pollution) , judgment of 23 Oct. 2007, nyr. 288. Art. 86 TFEU. 289. Art. 77(3) TFEU. 290. Cf. existing Art. 34(2) TEU.

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QMV within the Council of Ministers: the “ordinary legislative procedure” would become the standard decision-making process across the entire AFSJ.291 Fourthly, as we have seen, the new AFSJ would significantly strengthen the supervisory powers of the Court of Justice, particularly in the area of PJC. 292 Finally, the abolition of the Third Pillar would see the elimination of the distinct provisions applicable to enhanced cooperation under existing Title VI TEU, so that the entire AFSJ would be governed by the new rules on enhanced cooperation applicable to all Union action outside the particular context of the CFSP. 293 Taken together, those reforms mean that the Union’s power to act within the AFSJ will be significantly strengthened as compared to its competenc es under the existing Treaties. Moreover, the quality of the Union’s new powers will considerably improve, for example, as regards democratic accountability and the protection of individual rights.  Nevertheless, Title V would still manifest certain specific characteristics as compared to other fields of internal Union action, particularly as regards PJC, thus reflecting the sensitivities which still surround the Union’s involvement in the field of criminal law. First, the Commission would continue to share its  prerogative of legislative initiative in the field of PJC: proposals may also be  brought forward by one-quarter of Member States.294 Secondly, certain Union competences under the new AFSJ would remain subject to a “special legislative procedure” based on the Council a cting unanimously, either after consulting the European Parliament,295  or with the latter’s consent. 296  However, in certain situations, failure to secure the required unanimity in the Council may lead to a group of at least nine Member States being exceptionally authorized to proceed with an enhanced cooperation on the basis of the draft act. 297 Thirdly, even as regards certain legal bases governed by the “ordinary legislative  procedure”, it will be recalled that the revised Treaties provide for an “emer-

291. Section 5.2.2. 292. Section 8.2. 293. See Title IV TEU and Title III, Part Six TFEU. Cf. existing Arts. 40–40b and 43– 45 TEU. 294. Art. 76 TFEU. See section 5.2.1. 295. E.g. Art. 77(3) TFEU on default powers to facilitate the free movement of Union citizens; Art. 81(3) TFEU on measures concerning family law with cross-b order implications; Art. 87(3) TFEU on operational cooperation between national law enforcement services. 296. E.g. Art. 86(1) TFEU on establishing a European Public Prosecutor’s Office. 297. I.e. as regards the establishment of a European Public Prosecutor’s Office, or operational cooperation between national law enforcement services (other than measures that constitute a development of the Schengen acquis). Contrast with the ordinary procedure for authorizing an enhanced cooperation under Art. 329(1) TFEU.

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gency brake” mechanism.298 Where application of that emergency brake results in the vetoing of a draft act, it may again lead to at least nine Member States being granted automatic authorization to establish an enhanced cooperation on the basis of the relevant proposal. 299 Fourthly, the threshold for national parliaments to show a “yellow card” to a Union legislative proposal in the field of PJC, on the grounds that it breaches the principle of subsidiarity, would be lowered to one-quarter.300 Finally, the Court’s jurisdiction in respect of PJC activities would still be limited in accordance with the terms of Article 276 TFEU.301 9.2.

The transitional provisions on existing Third Pillar acts

An especially sensitive issue, addressed in particular by the 2007 IGC, concerned the legal status of Third Pillar acts already extant when the TL enters into force. In this regard, Article 9 of the Protocol on Transitional Provisions states that the legal effects of such pre-existing Third Pillar acts – including the exclusion of any direct effect for framework decisions and decisions – should  be preserved until those acts are repealed, annulled or amended in accordance with the revised Treaties. In addition, Articles 10(1)-(3) of the same Protocol contain transitional rules on the treatment of pre-existing Third Pillar acts. The basic effect of those  provisions is that, for a period of 5 years after the entry into force of the TL, in respect of pre-existing Third Pillar acts, the Commission will not be able to  bring enforcement actions against Member States for failure to fulfil their obligations; for the same period, the Court of Justice will continue to exercise only its limited jurisdiction as currently provided f or under existing Article 35 TEU – including the total exclusion of jurisdiction to hear preliminary references from Member States which have refused to make a declaration voluntarily accepting the Court’s involvement. The only concession is that, when a  pre-existing Third Pillar act is amended in accordance with the Treaties, the Commission and the Court will assume their full powers under the Treaties in

298. I.e. judicial cooperation in criminal matters and the definition of criminal offences and sanctions under Arts. 82(3) and 88(3) TFEU (respectively). 299. Section 5.2.4. 300. See Art. 69 TFEU and Art. 7(2) of the Protocol on the application of the principles of subsidiarity and proportionality. See section 6.3. Note also the national parliaments’ involvement in the evaluation / scrutiny of certain Title V activities, e.g. Arts. 85 and 88 TFEU on Eurojust and Europol (respectively). 301. Excluding national law-enforcement agencies; cf. section 8.2 supra.

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respect of that act, as regards those Member States to which the act ap plies.302 From one perspective, this transitional regime might be seen as relatively unobjectionable. It represents the price to be paid for persuading all the Mem ber States to accept the eventual integration of existing Title VI TEU into the full legal order of the new AFSJ. It might also be seen, in its historical context, as a continuation of the pattern of gradual integration in the field of justice and home affairs begun at Maastricht and continued under Amsterdam and Nice. But from another perspective, the transitional regime deserves serious criticism. The arrangements for judicial protection under the existing Third Pillar are generally regarded as highly unsatisfactory, if not an outright breach of the European Convention on Human Rights, particularly in respect of Member States which have refused to accept the jurisdiction of the ECJ to deliver preliminary rulings.303  Having accepted the principle that the Court should assume full jurisdiction as regards PJC matters, can there be any good reason for delaying that essential reform for a further period of 5 years? In any case, the UK’s “red lines” approach to the 2007 IGC has resulted in additional provisions, peculiar to that Member State, dealing with the integration of existing Title VI TEU into the new AFSJ. 304 At least 6 months before the expiry of the 5 year transitional period contained in Articles 10(1)-(3) of the Protocol on Transitional Provisions, the UK may notify the Council that it refuses to accept the impending activation of the full enforcement powers of the Commission and the jurisdiction of the Court of Justice in respect of preexisting Third Pillar acts. In that case, all pre-existing Third Pillar acts will cease to apply to the UK upon expiry of the 5 year transitional period. 305 However, the UK may subsequently notify the Council that it wishes to participate in specific pre-existing Third Pillar acts, in accordance with the relevant provisions of the (amended) Schengen or Title V Protocol (as the case may be), and with the full powers of the Commission and the Court under the Treaties ap plicable to the UK in respect of those acts. This is the first time a reform treaty has offered a particular Member State not just the right to opt-out from the adoption of future measures in a given field, but also the right to repudiate its obligations under an entire corpus of  pre-existing measures. Read in combination with the right to opt back in again, these provisions effectively give the UK freedom to pick-and-choose which 302. In which regard, consider Declaration No 50 annexed to the Final Act. 303. See, e.g. Spaventa, “Remembrance of principles lost: On fundamental rights, the Third Pillar and the scope of Union law”, 25 YEL (2006), 153. 304. See Arts. 10(4)-(5) of the Protocol on Transitional Provisions. 305. With the exception of subsequently amended acts already applicable as such to the UK.

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aspects of the pre-existing Third Pillar acquis it will continue to participate in. It scarcely seems possible that the UK objects so strongly to the Court of Justice assuming full interpretative jurisdiction over certain pre-existing Third Pillar measures that it would rather not be bound by those measures at all. But  perhaps it would be unfairly cynical to suppose that the UK wishes to use the  prospect of extending the Court’s jurisdiction merely as an excuse for shaking off particular legislative measures, already binding on the UK, but with whose substance that Member State now disagrees. Perhaps these special provisions on pre-existing Third Pillar acts were viewed by the UK primarily as a useful means of differentiating the old CT from the new TL, as part of the Government’s bid to avoid being forced into holding a popular referendum, but with no real intention of later exercising its repudiatory opt-out in practice. 9.3.

Amendments to the Schengen Protocol 

Most of the amendments to the Schengen Protocol are purely technical, intended merely to update the text in the light of the current state of Union law. However, more substantial amendments are envisaged for Article 5 on measures building on the Schengen acquis. In particular, Article 5(1) continues to  provide that, as regards initiatives to build on the Schengen acquis, where the UK or Ireland does not notify its intention to participate in a given proposal, the other Member States are authorized to engage in e nhanced cooperation for the purposes of adopting that proposal. However, a new Article 5(2) clarifies that, where the UK or Ireland has already opted into an existing Schengen measure pursuant to Article 4, and a new proposal is made to build on that act, the UK or Ireland may then decide to opt-out of that proposal. In such event, the Council may decide that the UK or Ireland’s original opt-in shall cease to apply in whole or in part – taking into account the need to retain the widest  possible measure of participation by the UK or Ireland without seriously affecting the practical operability of the Schengen acquis and while respecting the latter’s coherence. The TL clearly anticipates that this de facto “expulsion” mechanism may give rise to difficult political negotiations: if the Council fails to reach a decision within the applicable deadline, the matter may be referred to the European Council for resolution; if the European Council also fails to reach a decision, the Commission itself is empowered to take appropriate action.306

306. See Arts. 5(3)-(5) of the amended Schengen Protocol.

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These amendments to Article 5 should be read against the background of the two recent disputes in United Kingdom v. Council .307 Those cases raised the question whether the unconditional opt-in for the UK or Ireland in respect of new measures building on the Schengen acquis under existing Article 5(1), applies only as regards proposals relating to existing measures in respect of which the UK or Ireland has already exercised its conditional opt-in under Article 4; or instead whether the right to opt-in under existing Article 5(1) ap plies as regards all proposals relating to existing Schengen measures, regar dless of whether the UK or Ireland already participates in accordance with Article 4. The Court of Justice adopted the former interpreta tion: existing Article 5(1) indeed applies only to proposals to build upon an area of the Schengen acquis which the UK or Ireland has already been authorized to take part in  pursuant to Article 4. Does the structure of Article 5, as amended by the TL, affect that interpretation? In cases where the UK or Ireland already par ticipates pursuant to Article 4, new Article 5(2) will apply and offers the Member State an unconditional right to opt-out of the relevant proposal to build on the Schegen acquis (but that also activates the Council’s de facto power to expel the UK or Ireland from the relevant parts of the existing Schengen acquis). So as not to render Article 5(1) altogether redundant, the amended protocol must therefore mean that, in cases where the UK or Ireland does not already participate pursuant to Article 4, Article 5(1) will apply and offers that Member State an unconditional right to opt-in to the relevant proposal to build on the Schengen acquis (though without any adverse consequences for the UK or Ireland should it choose to remain outside, since it cannot be expelled from a measure it does not participate in anyway). But that does not necessarily overrule the Court’s existing case law entirely. Advocate General Trstenjak had suggested that, even if Article 5(1) were in principle capable of applying independently of Article 4, then in order to safeguard the effet utile of the Schengen Protocol, the UK or Ireland’s unconditional opt-in should only be possible as regards measures building on the Schengen acquis which can be applied autonomously.308 That interpretation could still apply to the provisions of the Schengen Protocol even as amended by the TL.

307. Case C-77/05, United Kingdom v. Council   and Case C-137/05, United Kingdom v. Council , judgments of 18 Dec. 2007, nyr. 308. Case C-77/05, United Kingdom v. Council , and Case C-137/05 United Kingdom v. Council , Opinions of 10 July 2007.

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Amendments to the Protocol on the UK and Ireland

The main changes here concern the scope of the UK’s and Ireland’s rights of opt-out / opt-in. That system will be extended beyond its current field of ap plication (Title IV, Part Three EC) so as to cover the new AFSJ as a whole. As a result, the UK and Ireland will acquire rights of opt-out / opt-in across several fields where they currently fully participate in Community / Union legislation. In particular, the opt-out / opt-in will extend to all measures in the field of PJC. Under the existing Title VI TEU, such measures are currently fully  binding on the UK and Ireland. Moreover, the opt-out / opt-in will also extend to Union directives on the definition of criminal offences and sanctions in fields already subject to harmonization measures.309 As confirmed by the Court of Justice in the  Environmental Crimes  and Maritime Safety cases, at least some such measures may currently be adopted under the First Pillar and as such are again fully binding on the UK and Ireland. 310 In addition, the opt-out/ opt-in will apply to any new competences conferred upon the Union under Title V: for example, the default power to adopt measures concerning pass ports, ID cards, residence permits etc, to promote the free movement of Union citizens.311 As well as those changes to the scope of the opt-out / opt-in system, it is worth noting three further reforms as regar ds the actual substance of the UK’s and Ireland’s special rights. First, new provisions make clear that the opt-out / opt-in system applies also to proposals / measures amending an existing measure already binding on the UK or Ireland. As with the parallel provisions of the Schengen Protocol, however, where the UK or Ireland chooses to opt-out of a proposal to amend an existing binding act, the Council may decide that the  previous opt-in in respect of the existing act shall cease to apply, in cases where application of the relevant measure for other Member States would otherwise be rendered inoperable.312  Secondly, the UK or Ireland will not be  bound by the Union’s data protection rules, as regards PJC acts in respect of which the UK or Ireland does not participate. 313 Thirdly, whereas Ireland has waived any right to opt-out of Union measures imposing restrictive measures against natural and legal persons pursuant to the new AFSJ, 314  the UK has merely declared its intention (voluntarily) to opt into all such acts. 315

309. Art. 83(2) TFEU. 310.  Environmental Crimes case and Ship Source Pollution case, both supra note 287. 311. Art. 77(3) TFEU. 312. Art. 4a of the Protocol. 313. Art. 6a of the Protocol. 314. Art. 9 of the Protocol. 315. See Declaration No 65 annexed to the Final Act.

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One might observe that the combined effect of the various “re d line” amendments and special provisions applicable to the UK is that that Member State  participates in the AFSJ to an even lesser degree under the Lisbon Treaty than it does under the existing Treaties.316 9.5.

Amendments to the Protocol on Denmark 

There are three main changes to this Protocol. First, Denmark’s opt-out will again be extended beyond its current field of application (Title IV, Part Three EC) so as to cover Title V, Part Three TFEU as a whole. In particular, the amended Protocol states that pre-existing Third Pillar acts which are amended  pursuant to the new provisions of Title V will continue to apply to Denmark in their unamended form.317 Secondly, Denmark will not be bound by the Union’s data protection rules in respect of PJC activities. 318 Thirdly, a new Article 8 of the Protocol gives Denmark the possibility of abandoning its existing opt-out in favour of a system whereby the Schengen acquis, and all measures adopted to build upon it, will bind Denmark as a matter of Union (not merely international) law; in respect of all other measures adopted or proposed under Title V, the position of Denmark would be governed by an opt-out / out-in system equivalent to that applicable to the UK and Ireland (as amended by the TL).

10.

Accession, withdrawal and amendment

10.1.  Accession The procedure for acceding to the Treaties, now contained in Article 49 TEU, differs from the current system in several ways: prospective applicant States must not only respect the Union’s basic values, but also be committed to promoting them; the European Parliament and the national parliaments shall be notified of any application for ac cession; the European Parliament’s consent to that application shall be given by a majority rather than absolute majority of MEPs; there is also an explicit acknowledgment of the role performed by the eligibility conditions agreed upon by the European Council. 319 Beyond that,

316. By contrast, Ireland has signalled its intention to review its current position under the AFSJ within three years of the TL’s entry into force: see Declaration No 56 annexed to the Final Act. 317. See Art. 2 of the Protocol. 318. Art. 2a of the Protocol. 319. Note also Art. 20(4) TEU: enhanced cooperation measures are not part of the acquis which must be accepted by candidate countries.

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the basic accession process – including conclusion of an accession treaty and its ratification by the contracting states in accordance with their respective constitutional requirements – remains unaffected. 10.2.  Withdrawal  Even though the current Treaties have been concluded for an indefinite period and contain no express provisions per mitting a Member State to exit the Union, it is beyond doubt that – politically and le gally – nothing can prevent a country from seceding should it wish to do so. Nevertheless, a consensus emerged early in the constitutional reform process that it would enhance legal certainty  by defining the right to withdraw in a more explicit fashion. According to Article 50(1) TEU, any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. The procedure for withdrawal is then set out in Article 50(2)-(4) TEU. It involves, in particular, the negotiation of an agreement between the Union and the Member State concerned, setting out the arrangements for the latter’s withdrawal and the framework of its future relationship with the Union. The agreement shall be negotiated in accordance with guidelines established by the European Council; it is to be concluded by the Council, acting by QMV, with the consent of the Euro pean Parliament. The Treaties shall cease to apply to the relevant State as from the date of entry into force of the withdrawal agreement or (failing that) two years after the relevant State’s original notification of its intention to withdraw (unless the European Council, in agreement with the relevant State, unanimously decides to extend this period). It is expressly provided that representatives of the withdrawing State shall not participate in the relevant discussions or decisions of the European Council or the Council. It is perhaps curious that there is no express bar on MEPs from the withdrawing State taking part in the European Parliament’s vote to approve the withdrawal agreement. Perhaps that is intended to reflect the “institutional unity” of the European Parliament, i.e. the idea that (like the Commission and the Court of Justice) it is an indivisible supranational organization. However, the preferable view would be that, once a Member State has exercised its unilateral and unconditional right to withdraw from the Union, there is no good reason to offer its MEPs the right to exerc ise any influence (let alone a potentially decisive one) over the agreement which will determine future relations between that country and the Union. 320

320. See further: Dougan, op. cit. supra note 4.

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In any case, pursuant to Article 50(5) TEU, should the withdrawing State subsequently change its mind, its application for readmission will be treated like any other accession to the Union. 10.3.  Amendment The “ordinary” procedure for revising the Treaties is contained in Articles 48(2)-(5) TEU. Any Member State, the European Parliament or the Commission may submit amendment proposals to the Council; those proposals shall  be forwarded to the European Council and notified to the national parliaments. If the European Council, having consulted the European Parliament and the Commission, decides (by simple majority) in favour of examining the proposals, it may convene a Convention charged with drawing up recommendations for consideration by an IGC. However, the European Council may decide, with the consent of the European Parliament, that the scale of the proposals does not warrant a Convention, and proceed to define for itself the terms of reference for the IGC. In either event, the IGC shall determine the amendments by common accord, and they will e nter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.321 In addition to that ordinary revision procedure, the revised Treaties also contain several “simplified” revision procedures. We have already mentioned the two “passerelle clauses” contained in Article 48(7) TEU, by which unanimity in Council may be converted into QMV, or a special legislative procedure may be upgraded to the ordinary one. 322 In addition, Article 48(6) TEU  provides that the provisions of Part Three TFEU, containing the detailed legal  bases governing internal Union policies, may be amended (on a proposal from any Member State, the European Parliament or the Commission) by unanimous decision of the European Council (after consulting the European Parliament and the Commission).323  That decision must then be approved by all Member States in accordance with their respective constitutional requirements; and must not, in any case, increase the Union’s existing competences under the Treaties. It is worth bearing in mind that certain decisions of constitutional significance, which under the current system would require a fully-fledged Treaty

321. If, after two years, four fifths of the Member States have ratified the amendments and one or more Member States have encountered difficulties in ratification, the matter shall be referred to European Council. 322. See sections 5.2.3 and 5.3.1. 323. And the ECB, in the case of institutional changes in the monetary area.

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amendment, may be put into effect under the revised Treaties through acts of the Union institutions alone: for example, the European Council decision determining the future composition of the European Parliament as regards the allocation of MEPs between Member States.324 Nevertheless, it remains true that in no case can the Union’s fundamental constitutional arrangements be amended without the unanimous agreement of its Member States.

11.

Some overall reflections on the revised treaties

Having explored in detail many of the major reforms to the Union’s primary law contained in the Treaty of Lisbon, it is worth attempting some broader (but necessarily still selective) assessment of the new settlement. 11.1.

The TL’s black letter balance sheet 

If one examines the TL purely on its own merits, it should surely be we lcomed as a significant improvement on the existing Treaties, particularly as regards the Union’s effectiveness and accountability. Many of the problems which  prompted the constitutional reform process in the first place – complexities and inconsistencies caused by the Union’s ad hoc development, concerns about the Union’s capacity for decisive action resulting from successive enlargements, the desire for an institutional apparatus better capable of representing the popular will – are comprehensively addressed. On this very positive side, several reforms stand out as particularly valuable: the abolition of the Community as a distinct legal entity and the demolition of the pillar structure erected at Maastricht, so that the Union’s basic constitutional footprint emerges more rationally than before; the reformulation and continued expansion of QMV, so as to enhance the decision-making ca pacity of the enlarged Council; the reorganization of the CFSP and the introduction of the High Representative, so as to enable the Union to play a role in world affairs more commensurate with its size and economic strength; the triumph of co-decision, the guarantee of greater transparency in Council proceedings, the “citizens’ initiative” and the “yellow card” subsidiarity mechanism, which should all help carry the Union still closer to the democratic optimum that it is arguable any such supranational organization could realistically hope to attain; incorporation of the Charter of Fundamental Rights, the possi bility of accession to the ECHR, and the extended jurisdiction of the Court of Justice, particularly in areas such as criminal cooperation and restrictive mea324. Art. 14(2) TEU. See section 4.3.

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sures, which considerably strengthen the legal framewor k for the protection of individual rights; the diversified possibilities for amending the Treaties, such as passerelle clauses and other simplified revision procedures, which should make future adjustments to the Union’s primary law less cumbersome to realize. Unsurprisingly, there are also some negative entries on the TL’s balance sheet: the definition of QMV is surely excessively complex, though that is a  problem which will trouble officials and their skill on the calculator more than it should bother the average citizen or legal commentator; more deserving of serious criticism is the five-year transitional period for the treatment of preexisting Third Pillar acts (including the UK’s unilateral right to repudiate its obligations under those measures); nor should we forget the Protocol on the application of the Charter of Fundamental Rights to Poland and the UK – a veritable dog’s dinner, and not only due to its abominable dra fting. But such eminently regrettable provisions are happily few and f ar between. More common are those reforms which could have been executed with greater  panache: for example, how to demarcate the boundary which separates the CFSP from the Union’s other external competences in the absence of a clear rule of preference such as that contained in existing Article 47 TEU; the division between legislative and non-legislative acts, which appears purely formal in its conception and rather arbitrary in both its application and its potential implications; the distinction between fully justiciable rights and partially justiciable principles in the Charter of Fundamental Rights, which seems to hinder more than it helps in clarifying the precise legal effects of incorporation; the failure over successive stages in the constitutional reform process to satisfy the obvious demand for a clearer definition of “regulatory acts” within the context of the action for annulment. In each such case, responsibility for resolving the ambiguities and ironing out the inconsistencies left behind by the TL, as best one can, will fall ultimately to the Court of Justice.  Nevertheless, the TL does create other hostages to fortune which are not for any judge to rescue. This is true, in particular, of the multiplication of institutional  gros légumes: European Council President, Commission President, High Representative, European Parliament President (not to mention other sectoral figures such as the Presidents of the European Central Bank and of the Euro-Group Member States).325  With decision-making power fragmented across so many potentially powerful offices, there are fears that the TL might have created a system with an in-built tendency to desce nd into crippling rivalries and institutional paralysis – for example, pitting European Council President against Commission President here, and against High Representative 325. See Art. 2 of the Protocol on the Euro Group.

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there – rather than to encourage clear and cooperative leadership in the general interest to deliver effective substantive policies capable of meeting the Union’s actual needs. At the very least, the Union seems to have travelled further down a path already familiar in many Member States and other Western nations, of shifting the emphasis of government away from collective institutions and more towards individual personalities, so that the functioning of the inter-institutional balance becomes overly dependent on the particular qualities of a collection of transient office-holders, and thus prone to a process of unpredictable and disruptive reconfiguration each time there is a change of hands at one of the many helms. 11.2.  Intergovernmentalism resurgent? Indeed, perhaps the most challenging questions opened up by the TL are concerned less with the interpretation of this or that provision in the formal text of the new Treaties, and more with the latter’s broader role in providing the fundamental legal habitat within which the integration process adapts and evolves. From that perspective, it is worth considering the post-TL balance between supranationalism and intergovernmentalism – the two polar forces whose constant cycle of confrontation and accommodation drives much of the EU’s institutional and constitutional development. Unsurprisingly, the TL continues the trend of balancing those forces one against the other: each step towards greater supranational governance is counter-weighted by more effective checks and balances to protect Member State prerogatives and ensure the Union remains responsive to domestic concerns. On the one hand, as has often been observed, perhaps the largest gains from the constitutional reform process have been reaped by the European Parliament. Through a combination of the extension of the ordinary legislative process across many more legal bases, increased budgetary powers particularly in areas currently designated as compulsory expenditure, and greater powers to control the exercise of Union executive power as regards delegated and implementing acts, the European Parliament’s position emerges stronger than ever. Indeed, in fields such as the common agricultural policy and the Area of Freedom, Security and Justice, as compare d to the existing Treaties, the inter-institutional balance will be utterly transformed. Supranationalism has other tro phies to brandish: for example, the extension of QMV within the Council, the total reshaping of PJC, and a range of new shared and complementary competences in fields from energy to space and sport, all keep alive the spirit of “ever closer union”.326 326. As referred to in the preambles to both the TEU and TFEU, and in Art. 1, second para TEU itself.

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On the other hand, reforms such as the increased emphasis placed on the  principle of attributed powers, the “yellow card” system for monitoring the  principle of subsidiarity, and the generally more prominent role offered to the national parliaments within the functioning of the Union, all demonstrate the Member States’ exercise of greater control over the Union’s institutions and competences. Furthermore, liberalization of the conditions for enhanc ed cooperation, the retrenchment of variable geometry in fields such as economic and monetary union and justice and home affairs, and ultimately the possibility for withdrawal from the Union, illustrate that that control extends also to the degree of the Member States’ very participation in the integration process itself. But the balance between supranationalism and intergovernmentalism is most interesting when the legal provisions hint at certain potential futures whose realization will depend ultimately upon political action. For that pur pose, perhaps the most immediate variable concerns the degree to which the ratification crisis and the 2007 IGC will galvanize the Member States to reaffirm their role and potency as “masters of the Treaties” and ultimately signal a resurgence of the intergovernmental element within the daily functioning of the Union. Consider, for example, the relative standing of the Commission and the European Council, particularly in exercising responsibility for the Union’s strategic direction. The Commission hardly jumps out of the TL as the main loser in the programme of institutional reform. After all, its chief prerogative – the near monopoly over initiating the Union’s legislative processes – has survived unscathed (and indeed, been enshrined expre ssly in the Treaties for the first time). Moreover, certain amendments are intended to strengthen the basis for the Commission’s claim to power and its capacity for effective action: consider, for example, the expectation that the character of future Commissions should reflect the results of the elections to the European Parliament; the fact that the Commission will eventually reduce in size to a more compact College capable of more cohesive decision-making;327 and the prospect that the High Representative, a Vice-President of the Commission, will perform a central role in the Union’s external policies in general and the CFSP in particular. Further reflection, however, suggests that such reforms may prove in certain respects to be a poisoned chalice. For example, making the Commission ever more responsive to and indeed reflective of the political complexion of the European Parliament might risk undermining one of the Commission’s tradi-

327. A reform admittedly already envisaged by the existing Treaties: see Art. 213(1) EC as amended by Art. 4 of the Pro tocol on enlargement of the European Union; and also (specifically as regards the period of entry into force) by the Treaty of Accession 2003.

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tional institutional strengths: its relative independence from the rough-andtumble of the ordinary left-right politics that still dominate public life within and across the Member States. Of course, the inseparability of the technical aspects of integration from broader choices of economic and social policy, combined with the Union’s ever expanding competences, have inevitably led to a raising of the Commission’s profile within the political arena. One need only recall the impassioned and acrimonious debate surrounding the Services Directive328  to appreciate that the Commission’s institutional neutrality has inherent limits. But any overt step towards politicizing the Commission carries the danger not of bolstering its democratic legitimacy, but actually of undermining it, i.e. by drawing attention away from the intrinsic merits of the Commission’s unique institutional position, and inviting observers to judge the Commission instead by the standards of democratic r epresentation and accountability which with the average citizen might feel more familiar, but which the Commission itself could never (and should not) hope to satisfy. At present, the interested citizen may at least appreciate that the Commission is intended to represent the collective interest in a neutral manner, a merit which in itself compensates for the democratic limitations of a non-elected institution. It would do the Commission no favours if, as a result of the TL, a substantial proportion of the Union population instead felt that a College whose President was consciously graven in the image of the majority grouping in the European Parliament would act as a partisan advocate for the interests of their political adversaries – in which event, being non-elected would become for the Commission an active liability. Particularly when exercising (for example) its quasi-judicial enforcement powers against the Member States,  perceptions of the Commission could shift from “ guardian of the Treaties” to vanguard of a given political platform. 329 The problem may well be exacerbated if one considers that, in this conscious effort to make the Commission appear more democratically responsive, the Treaties have chosen as the relevant barometer of public opinion a body which, although directly elected, is not necessarily very representative of the  population as a whole. Thanks to factors such as the consistently low turnout at European Parliament elections, and their tendency to be treated as protest votes against the domestic policies of the incumbent national governments,330 there is a risk that a Commission President chosen to chime with the majority 328. Directive 2006/123, O.J. 2006, L 376/36. 329. Note that Art. 17(3) TEU and Art. 245 TFEU guarantee the Commission’s institutional independence, rather than its political agnosticism. 330. See further, e.g. Blondel, Sinnott & Svensson (Eds.),  People and Parliament in the  European Union: Participation, Democracy and Legitimacy (Clarendon Press, 1998); Schmitt and Thomassen (Eds.),  Political Representation and Legitimacy in the European Union (OUP,

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of MEPs will fail accurately to reflect the true political sympathies of the Union’s citizens. With not only its traditional independence undermined, but also its newfound democratic credentials built on shaky foundations, will the Commission end up being doubly disadvantaged? Reservations can also be expressed about the impact of reforms to the Commission’s size on its standing within the inter-institutional balance. Even though totally independent of the national governments, Commissioners are nevertheless seen as an important element in maintaining the credibility of the College within their country of origin, particularly among the smaller Member States.331  The Commission’s authority to order Germany to repay State aid unlawfully granted to a failing national industry is bolstered by the presence of a German commissioner in the College; or at least, the authority of that order could be undermined by the absence of a German commissioner. The price of a more cohesive Commission is greater vulnerability to the charge among certain Member States – cheap and effective, however unjust, and surely tempting as a tool to serve short-term diplomatic ends, without thought to the longer-term damage it may inflict – that power in “Brussels” grows ever more remote from or even alien to the interests of the citizen. 332  Nor, from the Commission’s perspective, is the High Representative an unreservedly positive asset. After all, the Treaties have chosen to resolve any  potential conflict of institutional interest by making clear that the High Representative’s loyalties lie ultimately with the Council, while the new European External Action Service offers him / her the prospect of an effective power  base independent of the Commission itself. 333 In the entirely likely event that the Council and Commission continue their existing tendency to clash over the  precise boundary between the CFSP and ordinary external action, there is thus a genuine risk of the High Representative coming to be viewed with suspicion as something approaching a “fifth column”, souring working relations with his / her fellow members of the College, and hampering the ability of the Commission as a whole to act coherently and effectively.334

1999); Steunenberg and Thomassen (Eds.), The European Parliament: Moving Toward Democracy in the EU  (Rowan & Littlefield Publishers, 2002). 331. See further, e.g. Temple Lang, “Checks and balances in the European Union: The institutional structure and the Community method”, 12 EPL (2006), 127. 332. Contrast the final TL reforms with the Convention’s original proposals for two tiers (voting and non-voting) of Commissioners: see Dougan, op. cit.  supra note 10, 777–779. 333. On the European External Action Service, see Art. 27 TEU. Note, in particular, that the EEAS will be composed of officials from the General Secretariat of the Council, as well as from the Commission, and of staff seconded from the national diplomatic services. 334. Note also the High Representative’s relative independence from censure by either the Commission President (Arts. 17(6) and 18 (1) TEU) or the European Parliament (Art. 17(8 ) TEU and Art. 234 TFEU).

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The threat to the Commission’s position which emanates from reforms to its own internal functioning is magnified when one then considers its standing relative to that of the European Council, whose profile and power increase significantly under the revised Treaties. Indeed, the European Council perhaps rivals the European Parliament in its debt to the TL: not only is it given formal institutional status for the first time, but also a range of quasi-constitutional decision-making powers, as well as confirmation of its overall responsibility for the Union’s general interests and direction. Perhaps most importantly, as we have seen, the creation of the semi-permanent Presidency could   witness the emergence of a new and potentially influential power centre within the institutional framework – as well as a focus capable of rivalling the Commission President as the “public face” of the Union.335 The revised Treaties may therefore facilitate a further shift in the strategic balance of power away from the Commission and back towards the Member States, a trend which began with the fall of Santer, so that even the Commission’s formal prerogative of legislative initiative may increasingly be exercised in practice under the constraints imposed by an invigorated European Council.  None of this is to deny, of course, that real problems of legitimacy and accountability also surround the European Council and its reformed Presidency. The point is rather that, thanks to the intergovernmental momentum already generated through the ratification crisis and the 2007 IGC, the European Council now enjoys an opportunity to consolidate and expand its already considerable influence – for better or for worse – while the Commission risks emerging under the revised Treaties with a more modest role in the inter-institutional  balance, less the motor of integration than a specialized bureaucracy.336 Another situation where the reassertion of Member State authority at a fundamental constitutional level might translate into a more prominent role for intergovernmentalism within the daily functioning of the Union after the TL comes into effect concerns the relationship between drafting Conventions and IGCs in the ordinary revision procedure for future amendment of the Treaties as provided for under Article 48 TEU.337 That ordinary amendment procedure is clearly based on the model of the Convention on the Future of Europe, established by the Laeken Declaration, which was responsible for drafting the original Constitutional Treaty. However, there are interesting questions about how the experience of the ratification crisis might end up affecting the balance of power within this amendment model. In particular, the Member States at the

335. Though such an outcome is far from assured: see section 4.1. 336. Cf. “Barroso worried Commission could take a hit in new EU Treaty” (www.euobserver.com on 9 Oct. 2007). 337. Section 10.3.

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2003/2004 IGC seemed to accept the Convention proposals as the starting  point for their own deliberations, and did not stray too far from the draft text  presented by the Convention when finalizing their own version of the Constitutional Treaty. That could have been interpreted as indicative of a new constitutional convention for the Union, i.e. that Treaty amendments drafted by a Convention, comprising representatives from the Member State governments, national parliaments, European Parliament and the Commission, and operating in a relatively transparent manner with the engagement of civil society, enjoy a significant degree of legitimacy; as such, they should only be tinkered with at the subsequent IGC, and even then, only for very good reasons. 338 Arguably, the ratification crisis and the functioning of the 2007 IGC have  blown apart any such emergent constitutional convention. At a superficial level, one can find bemusement in the idea that the revised Treaties envisage an amendment process which actually failed in practice, and that the TL itself was drafted by a procedure which would not have complied with its very own  proposals – one which has certainly been accused of amply displaying all an IGC’s worst characteristics of exclusionary, opaque and unaccountable decision-making.339 More fundamentally, the ratification crisis and the 2007 IGC  point to a very different power balance between a future Convention’s proposals and the IGC convened to consider them, than might otherwise have emerged had the CT entered smoothly into force. In particular, perhaps the Member States will feel they should learn the lesson that it should not be taken for granted that supposedly more representative and transparent Conventions will  produce draft amendments actually capable of commanding popular support. One could speculate about other situations where the ratification crisis might have an informal impact upon the Union’s functioning: for example, whether the Union institutions’ increased sensitivity towards national prerogatives might convert what is meant to be a “yellow card” into a de facto “red card” for monitoring compliance with the principle of subsidiarity; or whether the sense of intergovernmental power that imbued the 2007 IGC will dissolve any remaining inhibitions about putting enhanced cooperation into practice, and indeed transform it into a commonplace mechanism for accommodating diverse Member State regulatory prefe rences. The underlying point, however, remains the same: if the Member States feel that the tectonic plates have in-

338. See, for praise of the Convention method, e.g. Lenaerts and Gerard, op. cit.  supra note 10. Cf. Craig, “Constitutional process and reform in the EU: Nice, Laeken, the Convention and the IGC”, 10 EPL (2004), 653; Monjal, “Le projet de traité établissant une Constitution pour l’Europe: quels fondements théoriques pour le droit constitutionnel de l’Union européenne?”, 40 RTDE (2004), 443. 339. See, e.g. House of Commons European Scrutiny Committee,  European Union Inter governmental Conference (35th Report of Session 2006–2007, published in October 2007).

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deed shifted, then our understanding of the Union’s inter-institutional balance, which derives not only from the primary law contained in the Treaties, but also from the conventions which emerge from institutional practice, might also have to accommodate a relative resurgence in intergovernmental influence within the functioning of the Union. 11.3.

Constitutionalism moribund?

A related but distinct question concerns the potential implications for the Union’s legal discourse of the express rejection, at the highest political level, of an expressly constitutional basis for the integration proce ss – or, to be more  precise, the European Council’s explicit statement, in the mandate for the 2007 IGC, that the “constitutional concept” is abandoned. The careful wording of the European Council conclusions suggest that abandonment of the “constitutional concept” was meant only in a relatively narrow and technical sense, i.e. abandonment of the repeal-and-replace ap proach to the existing Treaties, the title “Constitution”, and the various unnecessary trimmings and inappropriate terminologies contained in the old CT.340 There is no indication that the Member States implied any more fundamental rejection of the idea of the Union as an organization based on the rule of law. Indeed, the Treaties’ continued emphasis on the proper functioning of the inter-institutional balance, reinforcement of the provisions governing the existence and exercise of Union competences, and the strengthening of the Union’s commitment to fundamental rights, all suggest that the “constitutional concept” – now used in its broader sense – which underlies the European integration project should emerge from this reform process all the stronger.  Nevertheless, the “constitutional wobble” produced by the ratification crisis and final rejection of the CT still poses interesting questions about the political consensus underpinning and informing the continuing evolution of EU constitutional law. Such questions will reverberate across the revised Treaties for the foreseeable future, and if indeed the “tone” of the Union’s constitutional discourse has changed since the 2007 mandate, that has the potential to exercise an important if more subtle influence over issues that the TL does not directly and / or definitively resolve. We have already encountered some illustrations of this. Consider the definition of “regulatory” act for the purposes of determining the standing of natural and legal persons to bring actions for annulment under Article 263(4) TFEU, where the Court might be persuaded by the renewed emphasis on the Union as an organization of limited competences to

340. See the Presidency Conclusions of 23 June 2007, esp. paras. 1–4 of Annex I.

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 broaden access to judicial review as a means of legitimizing Union power.341 Or recall the conundrum over the legal effects of the Protocol on application of the Charter of Fundamental Rights to Poland and the UK, where the Court will be presented with the unenviable task of balancing unclear political will against vague legal drafting.342  More broadly, even though the Charter will  become binding and of equal status to the Treaties themselves, it would be most unfortunate if the decision to remove its full text from the Union’s primary law, in favour of incorporation by simple cross-reference, were to make the Union or national courts more hesitant about using the Charter in a creative and ambitious fashion, i.e. not because they cannot rely on the Charter as an entirely valid source of law, but because the political sensitivities surrounding the Charter as evidenced by the IGC mandate argue for greater judicial restraint.343 Perhaps the most interesting arena for exploring the impact of the ratification crisis and the 2007 IGC on the Union’s constitutional underpinnings will  prove to be the debate over the principle of supremacy. Against the background of the long-running tension between the Court’s assertion of the unconditional supremacy of Community over national law (save where Community law itself admits otherwise), and the refusal by many domestic courts to accept any such conception of supremacy within their own legal systems, the CT had proposed introducing an express clause whereby “[t]he Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States”. 344 That provision was widely criticized on the grounds that, compared to the myriad nuances which embellish the Court’s case law, the CT offered a sim plistic and potentially misleading statement of the relationship between Community and national law.345  Nevertheless, the CT’s primacy clause offered clear political endorsement to the Court’s case law and could have increased the pressure on national courts to offer fuller obedience to the supremacy of Union law.346

341. Section 8.3 supra. 342. Section 7.2 supra.. 343. Though such caution is hardly evident in rulings such as Viking Line  and  Laval un  Partneri, both cited  supra note 228. 344. Art. I-6 CT. 345. See further, e.g. Dougan, op. cit. supra note 233. 346. See further, e.g. Cramér, “Does the codification of the principle of supremacy matter?”, 7 CYELS (2004–2005), 57. For a broader discussion of national sovereignty and the CT, see Albi and van Elsuwege, “The EU Constitution, national constitutions and sovereignty: An assessment of a European constitutional order”, 29 EL Rev. (2004), 741.

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However, the European Council’s mandate for the 2007 IGC agree d that the idea of an express primacy clause should be dropped. Instead, the Member States adopted a simple declaration recalling the existing jurisprudence of the ECJ on the principle of supremacy of Union over national law “under the c onditions laid down by the said case law”, and referring to an opinion of the Council Legal Service delivered on 22 June 2007, according to which “[t]he fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case- law of the Court of Justice”. 347 That approach is arguably preferable from the perspective of capturing better the subtlety of the Court’s own case law, but the question nevertheless arises: will removal of the expre ss primacy clause, com bined with the general strengthening of the principle that the Union is an organization of limited powers, encourage certain national courts to continue their  previous approach of accepting the principle of supremacy only under the conditions deemed acceptable within their own domestic legal order? Clearly, the threat of intergovernmentalism resurgent, or constitutionalism moribund, concerns not only the zeitgeist  of the Union institutions themselves, but also the attitude of those national actors whose input also helps shape the character of the integration process. 11.4.

From “effectiveness and legitimacy” to “effectiveness v. legitimacy”?

A final set of questions opened up by the TL concerns the Union’s legitimacy. After all, the constitutional reform process was meant to be guided by the fundamental Laeken objective of bringing Europe closer to its citizens through a combination of greater effectiveness and greater accountability. As we have seen, the reforms contained in the TL deliver greater effectiveness and accountability in abundance. But have those achievements been seriously tarnished through the process by which we finally arrived in Lisbon on 13 December 2007 – almost to the point of driving Europe even further away from even more of its citizens than ever before? Over a period of several years, we have moved from a CT which was drafted in the hope of fulfilling the expectations of the Union population, as understood by the institutions and actors which participated in the constitutional reform process up to that point; through a ratification process which revealed that large sections of the Union population did not actually feel their will to have been accurately reflected in that CT; so as now to finish with a new Treaty that seeks (quite understandably) to salvage most of the CT’s valuable technical reforms, but falls easy victim to the accusation that it was deliber347. Declaration No 17 annexed to the Final Act.

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ately conceived and executed so as to re-impose the terms of the rejected CT whatever the popular will.  No one could envy the European Council its responsibility for reconciling the wishes of the many Member States who had ratified the CT with those who had already rejected it or were no longer committed to its success.348 By that stage, perhaps, no solution better than one like Lisbon was even possible – certainly in the absence of a genuine willingness on the part of the Member States, in part collectively but surely individually, to address deep seated problems of misunderstanding and misinformation about European integration. But that does not help us escape from the danger that the constitutional reform  process may have inflicted incalculable damage on popular perceptions of the entire basis upon which the European edifice is constructed – the feeling that it consults the people only so as to hear the answers it wants to hear, and ultimately works against rather than for their will – worse still, not only among those diehard Eurosceptics resolutely opposed to European integration in any case, but also as regards those ordinary citizens in all Member States concerned about any apparent attempt to subvert full and proper democratic de bate. That feeling was hardly helped by the tendency of each Member State to sell the TL to its own domestic audience: countries which had previously ratified the CT promised their constituents that the TL was identical in every meaningful respect; those which had rejected the CT or wished to avoid putting it to a popular vote vowed that the TL was fundamentally different from its predecessor. Against that background, it is not without a certain irony that the sort of pan-European media coverage whose absence has often been  blamed as a negative factor in the search for a supranational democratic consciousness, now sprang to life in bringing to the attention of citizens across the Union that the story their own government spun them about the TL was flatly contradicted by what was being said by the leaders of other Member States. The results of this unedifying spectacle are har dly surprising. Any observer of British political life will testify to the groundswell of public resentment which greeted the Government’s decision to forgo a referendum on the TL in favour of ordinary parliamentary ratification – a decision which was constitutionally entirely proper, but almost universally attributed to the fact that it was also politically manifestly safer than consulting the man and woman on the Clapham omnibus.349 Yet the phenomenon has not been confined to Member

348. Cf. Editorial, “From the Constitution to a new round of Treaty amendments: Step-bystep”, 44 CML Rev. (2007), 1229. 349. A traditional reference among English lawyers about how to gauge the views of the average citizen.

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States such as the UK, which many continental observers seem to find misguided comfort in dismissing as only a half-baked European anyway. Harder for such observers to sideline ar e the opinion polls suggesting a majority of the French population also wanted the chance to vote on the replacement for the CT they had previously rejected, rather than settle for the parliamentary ratification which was eventually secured in February 2008. 350 And so it seems appropriate to ask: will the post-Laeken constitutional reform process have ended up creating a more effective Union, but also a less legitimate one? Or at least, has the Laeken process proved a lost opportunity to win over an entire generation of citizens not just to the idea of a “Europe of results”,351  but also to an ingrained understanding and acceptance of the Union’s underlying constitutional framework? And might the resulting sense of public disenchantment and mistrust sap the strength and da mpen the imagination of the Union’s constitutional interlocutors, so that, even without anything so dramatic as the abandonment of a “constitutional concept” for the Union, we shall nevertheless enter a period of more insidious, more pervasive hesitance or (worse still) regression?

12.

Conclusions

If either the CT had been ratified successfully by all the Member States, or if a text such as the TL had emerged directly from the Convention on the Future of Europe, it is quite likely that we would now be celebrating a major achievement in the history of European integration and a complete vindication of the optimism once embodied in the Laeken Declaration. But events proved to be more tumultuous, and hindsight can be an unforgiving judge. After the hubris of the proposals for a European Constitution, followed by the nemesis of the ratification crisis initiated by France and the Netherlands, it is tempting to hope that the Treaty of Lisbon will finally rekindle the Union’s institutional strength and its capacity to deliver. But for many, this might seem a hollow victory: the Union’s image has been tarnished by these long years of wrangling and indecision, which have revealed pate nt differences between political vision and public opinion within and across the Member States, and been resolved only at the cost of a widespread perception that the “future of Europe” in reality translates as “Brussels knows best – like it or lump it”. One can only

350. As reported on www.euobserver.com (30 Oct. 2007 and 4 Feb. 2008). Indeed, consider “EU public wants referendums on new Treaty, survey says” (18 June 2007). 351. To use the phrase employed by the Commission in A Citizens’ Agenda: Delivering Re sults for Europe, COM(2006)211 Final.

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hope that the whole experience has extinguished for the foreseeable future any further appetite for major constitutional upheaval.352 Perhaps the Union’s safest bet is now to get down to the business of delivering on policy, taking full advantage of the greater effectiveness and accountability promised by the TL, in the hope that time coupled with success will eventually heal all wounds.

352. That certainly seems to have been the view of the European Council at its meeting in December 2007: see Presidency Conclusions of 14 Dec. 2007, para 6. Note that the “Reflection Group” set up to consider the long term challenges facing the Union is specifically instructed not to consider institutional matters: see paras. 8–13 of the Presidency Conclusions. It is interesting to observe that the European Parliament in its opinion on the IGC mandate signalled its resolve to put forward “new proposals for a further constitutional settlement for the Union” after the 2009 elections (Resolution of 11 July 2007, para 21); but there is no mention of such proposals in the European Parliament’s opinion on the final TL, wh ich describes the latter as providing “a stable framework which will allow further development of the Union in future” (Resolution of 20 Feb. 2008, para 8).