EUlawblog

Free movement law and private schools

2007-09-13T16:35:00.000+01:00

Just for a change, a post about a recent judgment of the Court of Justice. On Tuesday, the Court ruled that Germany was breaching free movement law by means of its tax law rules which limited a tax deduction for private education to cases where children were sent to private schools on German territory, or to 'German schools' or 'European schools' outside the territory.

In a reference from the German courts (C-76/05 Schwarz), alongside an infringement action brought by the Commission (C-318/05), the Court ruled that the German tax law breached EC free movement law. The full judgments are on the Court's website; the press release is here:

http://www.curia.europa.eu/en/actu/communiques/cp07/aff/cp070054en.pdf

In a nutshell, the rules breached the free movement of services because they made it more difficult for the recipients of services to receive those services from service providers (private schools, which, confirming previous case law, fall within the scope of the Treaty rules on the provision of services) established in other Member States. They also breached the free movement of workers and freedom of establishment, because they could deter parents from moving to Germany because the parents would not receive a tax break if they left their children 'behind', receiving private education in the home Member State. The rules also affected the free movement right of those Germans who leave Germany but who are subject still to German taxation (ie public servants), because they limit the ability of such persons to send their children to private education in the host State. Finally, the rules disadvantaged the free movement rights of the children pursuant to Article 18 EC.

The Court did not accept the German justifications put forth, because: national competence over tax and education must be exercised in accordance with EU law; the argument that the foreign schools and German schools were not comparable was irrelevant since the grant of the tax benefit did not depend on the characteristics of the German schools; and the argument that the tax credits foregone would be too expensive was dismissed on the facts.

Comments

The Court did not consider the free movement rights of those parents who move to Germany for non-economic reasons. This is unfortunate, because the parents might have to be considered distinctly from the children, in the event that one of the parents is an EU citizen, but the child is a third-country national. Surely the same reasoning applies in this scenario. (Remember that while third-country nationals can benefit from the free movement of services as service recipients, if the service provider is an EU citizen or company, this applies only where the recipients do not themselves cross a border: Case C-290/04 FKP Scorpio Konzertproduktionen GmbH).

The Court's judgment on the application of the free movement rules to tax credits to support private education is not too surprising, although it is interesting to remember that about 10 years ago a high-level German court ruled that these tax credits don't violate EU free movement law, without referring the point to the Court of Justice. This isn't mentioned in the Court's judgment this week. Another indication that it can take some time to have an EU law right vindicated if the national courts are reluctant to send questions to Luxembourg.

Of course the judgment is only directly relevant if a Member State provides tax credits for private education -- or by analogy, direct subsidies to parents -- at all. In my view such credits or subsidies are outrageous -- there is no way that taxpayers as a whole should pay more tax to, in effect, subsidise generally wealthier taxpayers to send their children to private school (and equally it is wrong for taxpayers as a whole to support a direct subsidy for those wealthy taxpayers). Worse still if the tax credit (or direct subsidy) comes directly out of the general state education budget, ie if it takes money straight out of public education (cf the appalling proposal for tax rebates for parents with children in private schools, pushed by the Tories at the last UK election).

But there is no way that EU law should or could get involved with the issue of whether tax credits or subsidies for private education should exist. If a Member State wants to redistribute money from poorer taxpayers to wealthier parents in this way, that's their decision, and should always remain so. These judgments do make that decision more expensive, however, since the subsidies or credits would have to be extended to at least some parents who send their children abroad to private schools. So the judgments make it more likely that Member States will scale back the level of such subsidies or credits, or abolish them, or refrain from introducing them. Hooray!

As for the issue of justifications, the Court, it seems to me, leaves it open to Germany to devise some sort of alternative method of restricting tax credits for private education received abroad. The most obvious route would be to restrict the tax credit to a fixed amount (rather, under the current rules, to a percentage of the fees), which the Court expressly endorses. The Court also seems to accept that some sort of objective accreditation procedure, based on the content of curriculum or somesuch, might be justified. It seems to me that this would be awfully difficult to manage and, if it is tried, would give rise to litigation raising delicate issues about curriculum content.

Plus I don't believe a language requirement could be justified. Yes, I know it was justified in the famous Groener case. But it is one thing for Ireland to require all pupils to learn Irish in schools located on its territory, and another thing for it to require the children of all parents subject to Irish taxation to learn Irish, even when the children attend schools outside Irish territory. Surely that would be disproportionate, even if the rule only concerned tax credits or subsidies to support private education.

And surely it would be hugely disproportionate, in light of this judgment, to ban children from receiving private education abroad at all, even if private education is banned, or heavily regulated, in a State. So much for the old idea of the Labour left that private schools should be banned in the UK -- if they were (as the opponents of this idea always maintained) they could always be set up abroad (assuming, of course, that the foreign law in question allowed this); and it is now clear that the UK could not stop parents sending their children there (and how extreme would it look if it seriously tried to do this). This is a good thing too, in my view -- I am not keen on private schools myself, but it is a sign of extreme intolerance to stop parents from sending their children to private schools if they wish to do so. The distortion this undoubtedly causes in the education system is probably less than the distortion caused by the middle-class parents who remain in the state education system and drive up house prices (and so drive away poorer parents) around the most popular state schools. Anway, the only long-term way to address this is to improve standards of state education.

Of course Member States with bans or severe restrictions on private schools presumably do not offer tax credits to support private education, or take the draconian step of banning children from attending foreign private schools. What they might be doing, however, is refusing to fully recognise the qualifications obtained abroad in private schools -- and these judgments, although on a different issue, obviously aid the argument that such qualifications must be recognised as a matter of EU free movement law.

Do the judgments apply where a state gives a direct subsidy to support private schools? Yes, if the subsidy is linked to the student (ie if the German government gave a direct subsidy to a private school for each student it enrols, the judgments would apply by analogy. This would get really messy to apply to foreign schools if the subsidy were given through the German tax system, though). But I am not convinced that a subsidy given to a private school by a Member State to support its operating costs would be covered by these judgments -- not that such subsidies should be given, in my view -- because it is not the same sort of situation. You can hardly expect the German government to send cash direct to Eton and Marlborough!

It seems to me also that if governments give a tax credit to benefactors of private schools, this tax credit must apply equally depending on the location of the school within the EU. (This would be an application of the free movement of capital, of course; and in this case, the nationality of the benefactor wouldn't matter). It might be arguable that private schools registered as a charity (as in the UK) are not comparable to private schools registered as companies or in some other legal form in other Member States -- does anyone have any thoughts on that?

The judgments will facilitate free movement of persons, of course. But they will also facilitate competition between schools, since foreign schools will be less expensive (now that tax credits or direct subsidies, where they exist, are extended to them) as compared to private schools in the student's home State -- and indeed, as compared to state schools in the student's home state. But the finance available to state schools won't be reduced unless the tax credits or subsidies come straight from the general state education budget (so the Tory proposal in the 2005 UK election looks even madder, in light of these judgments). And it seems unlikely that vastly increased numbers of students will end up in private schools as a whole as a result of the judgments. Again, any increased take-up of private education will not have much impact compared to the existing distortions within the state system (at least, the state education system as it works in England and Wales); and the numbers attending private school might even decrease if the effect of the judgment is that States offering tax credits or subsidies for private education decided to reduce them.

Private schools should hardly be whinging about this increased competition -- since the effect of having private schools around is to provide competition for the state sector.

As for advertising, surely it follows from the judgments that foreign schools should be allowed to advertise for students on the same basis as private schools in the home State. What if advertising by private schools is banned or severely restricted in the home State? Is this a non-discriminatory restriction on the freedom to provide services? I think so, although it might possibly be justified -- but I doubt it's very important anyway, since anyone who can fund a foreign private school for their children can surely afford access to the Internet and will just search for foreign schools' websites.

A final point - the distinction between state education and private education is reaffirmed by the Court here, as regards the free movement of services. This is likely to cause continued problems of definition. A more subtle point, though, is that the judgments don't just turn on the free movement of services, but also on several other types of free movement rights. Could it be argued, then, that the free movement of workers, et al, is restricted if a Member State does not reimburse to parents the cost of educating their child in the State education system of another Member State? This could be considered analogous to the Watts judgment concerning the NHS and foreign medical treatment, and there is also a pending case before the Court of Justice (Morgan) raising a comparable point as regards post-secondary education. Any thoughts?

The European far-right

2007-09-04T15:46:00.000+01:00

In response to my previous post on 'Open Europe's Big Lie', an anonymous comment first stated:

At least we pro UK types are not traitors and quislings like you. People like you want to betray national democracy to the unelected crowd who rule the Empire (EU).Are you Oswald Mosley reincarnate?

I replied:

I rather think that Mosley would be supporting the Eurosceptic side, rather than the EU. But I do NOT mean to suggest that any more than a tiny handful of Eurosceptics are fascists....

'Stuart' then commented:

Oswald "Europe a Nation" Mosley likely to be "supporting the eurosceptic side"? You're a bit mixed up there.Fans of the emerging EU State have some very nasty bedfellows in the foundation of their ideas.In supporting democracy and diversity on our continent I regard myself as a pro-European in the real sense. It is why I cannot support the EU political centralisation process which, in steadily undermining Europe's flexible, representative national democracies, is surely putting the stability of our continent at risk once more. After all, healthy democracy is the only sure guarantor of peace."Absolute national parliamentary democracy" is perfectly feasible. What is needed to enhance it are flexible, democractically-acceptable forums for international co-operation. Not out-dated superstate / integration projects like the EU.This simply isn't the 1950s any more.

This led me to investigate the political beliefs of Oswald Moseley -- which I will admit I am unfamiliar with. Some Wikipedia entries filled in some basic backgrounds, and linked me to some sort of 'tribute' site. Excerpts from two of the Wikipedia entries:

Europe a nation: [a Mosley idea from the 1950s-60s]

Europe a Nation consisted of the idea that all European states should come together and pool their resources (including their colonies) to work as one giant superstate under a system of corporatism. For Mosley, it was the only viable alternative to the prospect of individual European countries carrying on alone, whilst the growing global market continued to make them poorer. Autarky was, therefore, a central aim of Europe a Nation, with Africa retained in colonial status to serve the needs of the European people (explaining the occasional use of the term Eurafrika as an alternative name).

National Party of Europe:

The National Party of Europe (NPE) was an initiative undertaken by a number of far right parties in Europe during the 1960s to help increase cross-border co-operation and work towards European unity.

There is a summary of the party objectives there, but the full text of an agreed policy statement of the party can be found on the 'tribute' site, at http://www.oswaldmosley.com/archives/npe.html

The policy statement is as follows:

That Europe a Nation shall forthwith be made a fact. This means that Europe shall have a common government for purposes of foreign policy, defence, economic policy, finance and scientific development. It does not mean Americanisation by a complete mixture of the European peoples which is neither desirable nor possible.
That European government shall be elected by free vote of the whole people of Europe every four years at elections which all parties may enter. This vote shall be expressed in the election of a parliament which will have power to select the government and at any time to dismiss it by vote of censure carried by a two-thirds majority. Subject to this power of dismissal, government shall have full authority to act during its period of office in order to meet the fast moving events of the new age of science and to carry out the will of the people as expressed by their majority vote.
That national parliaments in each member country of Europe a Nation shall have full power over all social and cultural problems, subject only to the overriding power of European Government in finance and its other defined spheres, in particular the duty of economic leadership.
That the economic leadership of government shall be exercised by means of the wage-price mechanism, first to secure similar conditions of fair competition in similar industries by payment of the same wages, salaries, pensions and fair profits as science increases the means of production for an assured market, thus securing continual equilibrium between production and consumption, eliminating slump and unemployment and progressively raising the standard of life. Capital and credit shall be made available to the underdeveloped regions of Europe from the surplus at present expatriated from our continent.
That intervention by government at the three key points of wages, prices, where monopoly conditions prevail and the long term purchase of agricultural and other primary products alone is necessary to create the third system of a producers' state in conditions of a free society which will be superior both to rule by finance under American capitalism or rule by bureaucracy under communist tyranny. It is at all times our duty in the solidarity of the European community to assist each other to combat the destruction of European life and values from without and from within by the overt and covert attack of communism.
That industries already nationalised will be better conducted by workers' ownership or syndicalism than by state bureaucracy, but the system of the wage-price mechanism will, in full development, make irrelevant the question of the ownership of industry by reason of the decisive economic leadership of elected government, arid will bring such prosperity that workers will have no interest in controversies which belong to the 19th century.
With the creation of Europe a Nation as a third power strong enough to maintain peace, a primary object of the European government will be to secure the immediate and simultaneous withdrawal of both Russian and American forces from the occupied territories and military bases of Europe. Europe must be as strongly armed as America or Russia until mutual disarmament can be secured by the initiative of an European leadership which will have no reason to fear economic problems caused by disarmament as has capitalist America, nor to desire the force of arms for purposes of imperialist aggression as does communist Russia.
The emergence of Europe as a third great power will bring to an end the political and military power of the U.N., because these three great powers will then be able to deal directly and effectively with each other. The peace of the world can best be maintained by direct and continuous contact between these three great powers which represent reality instead of illusion and hypocrisy. The production of nuclear weapons will be confined to these three great powers until mutual disarmament can be secured.
That colonialism shall be brought to an end. A way will be found to maintain or to create in Africa states under government of non-European but African origin amounting to about two-thirds of the continent, and other states under government by peoples of European and Afrikaner origin amounting to about one-third. In non-European territory, any European who chose to remain should stay without vote or political rights. He would be in the same position as any resident in another country, subject to the maintenance of human rights within their own communities, by reciprocal arrangement between European and non-European territories. Conversely, any non-European remaining in European territory would have neither vote nor political rights, subject to the maintenance of the same basic human rights. Multi-racial government breaks down everywhere in face of the non-European demand for one man one vote which they learnt from the West and becomes a squalid swindle of loaded franchises to postpone the day of surrender rather than to solve the problem. Better by far is the clean settlement of clear division. Europe must everywhere decide what it will hold and what it will relinquish. The Europeans in union will have the power of decision. Today they lack only the will. We will hold what is vital to the life of Europe, and we will in all circumstances be true to our fellow-Europeans, particularly where they are now threatened in African territory.
That the space of a fully united Europe including the lands to be liberated by American and Russian withdrawal, the British Dominions and other European overseas territories, and approximately one-third of Africa is a just requirement for tile full life of the Europeans in a producer and consumer system which shall be free of usury and capitalism, of anarchy and communism. Within the wide region of our nation the genius of modern science shall join with the culture of three millennia to attain ever higher forms of European life which shall continue to be the inspiration of mankind.

What to make of this? I had no idea that there ever was a pro-European far right, for the simple reason that all the far-right groups that I know of in various Member States seem to be profoundly hostile toward the EU. And indeed you would expect that extreme nationalists would not like an organisation that reduces national sovereignty and facilitates immigration, etc. It is striking that this pro-European far right did not seem to enjoy any electoral success at the time, and certainly as far as I can see there are no traces of it today.

While I obviously don't agree with the policy platform of the NPE, I can see after reading it how a pro-European far-right policy can be envisaged -- their thinking being that it is a necessary evil (in their minds) to band together with some foreigners in order to more effectively exclude the less desirable 'foreigners' (some of whom, like black citizens, obviously aren't actually foreign, but of course the far-right don't see it that way).

The interesting thing is that just as there are pro- and anti-European wings of the more moderate shades of political opinion, and indeed of the far-left, there are/were both pro- and anti-European wings of the far-right. But it surely not suprising that the pro-European wing of the far right was unsuccessful and died out, because it was surely too much to ask for far-right supporters to compromise their 'ideal' of basic hatred of all foreigners in order to team up with some foreigners in order to exclude the remaining foreigners. These people are just too stupid and angry to grasp the subtlety of that argument -- which is why they are far-right supporters in the first place.

To get back to Stuart's specific comments, I could hardly be considered the 'new' Moseley since I entirely disagree with corporatism, autarky, kicking Americans out of Europe, shutting down the UN, or (in particular) reserving a third of Africa for white people or disenfranchising 'non-Europeans' who remain within Europe. Indeed, I doubt there is much support now for any of these views among the vast majority of people, whether they are Eurosceptic, Europhile or however they would describe themselves.

I also think that the NPE policy also would transfer too much power to the European level, although some Europhiles would support this. But since those Europhiles would not support key elements of the rest of the NPE policy, they should not be slurred by association.

Since the current EU, as it would be developed further by the Reform Treaty, hardly supports these policies either, I rather think that Mosely would be against it, and would therefore be considered a Eurosceptic. (I suspect he would also become a Eurosceptic anyway for tactical reasons, since a pro-European far-right position was just not viable). Could you really see him supporting, say, the new Article 10 of the Treaty on the Functioning of the Union -- 'In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on...racial or ethnic origin'? Never mind the power in the current Article 13 TEC to adopt legislation to combat racial discrimination.

As for Stuart's statement that 'Fans of the emerging EU State have some very nasty bedfellows in the foundation of their ideas', you might as well say that Open Europe is a bedfellow of the French National Front, because both of them strongly criticise the EU. But that is a stupid argument, as Open Europe and the National Front have nothing else in common. Equally it is stupid to say that supporters of the Reform Treaty are bedfellows of the far right, for exactly the same reasons.

I was told the first day I joined a university debating society that the moment I compared my opponents to Hitler, I had lost the debate, because my opponents were undoubtedly arguing for some policy far short of a thousand-year Reich and the Holocaust. Stuart, that was good advice.

The only real bedfellows of Mosely are those Conservatives of the 1960s/70s who would have backed his idea of reserving a third or so of Africa for Europeans and Afrikaaners. But again, today's Conservatives would hardly back this view and should not be slurred by the association of their predecessors with some of Mosely's ideas.

Almost finally -- I was overstating the case in saying that pure national parliamentary democracy is not feasible at all. Rather it is vastly less effective than qualified majority voting at achieving shared objectives such as the single market and the protection of the environment.

Right, it is not the 1950s, but then again the EEC has profoundly changed since then by means of multiple Treaty amendments -- as Eurosceptics find it convenient to point out when they want to make the case for a referendum. The point still stands that an EU of 27 states will be ineffective at accomplishing its key objectives without a lot of QMV.

Finally -- all this is quite a detour from my original post, which solely concerned Open Europe's claim that the British opt-out from policing and criminal law which appears in the draft Reform Treaty was already present in the Constituional Treaty. Again, this assertion is utterly false -- but they have continued to make it. See Neil O'Brien's Guardian comment piece of 31 August:

....The government also argues that the UK will have "opt outs" from all the significant bits.

One problem with this argument is that they are the same "opt outs" that were in the original constitution - on which the government promised a referendum....

online at: http://commentisfree.guardian.co.uk/neil_obrien/2007/08/dodging_the_ballots.html

A permanent Polish Advocate-General?

2007-09-04T13:49:00.000+01:00

An interesting story on euobserver.com (story in italics, my comments in normal font):

Poland seeks EU court adviser post in treaty talks03.09.2007 - 17:23 CET By Mark BeundermanEUOBSERVER / BRUSSELS - Poland is demanding that it gets a permanent legal adviser to the European Court of Justice (ECJ) - a so-called advocate general - as part of ongoing talks on a new EU treaty. The ECJ currently has eight advocates-general, who are the EU court's highest advisers. Five of them are normally drawn from the EU's 'big five' states Germany, France, the UK, Italy and Spain, with the other three posts rotating between smaller member states.

Poland now wants to be treated on an equal footing with the big five, Polish EU treaty negotiator Marek Cichocki said."In my opinion this is about equal representation of Poland in the different EU institutions. Every country in the EU wants to keep an eye on its own particular issues in the institutions. This is only obvious and natural and this is why Poland wants to have a permanent representative."Before each ECJ ruling, one advocate-general issues a legal opinion, which is not binding, but in practice it is followed by judges in the majority of cases. Warsaw now wants the number of court advisers to be increased from eight to nine, allowing it to have its own permanent post. EU diplomats said Warsaw had raised the issue in Brussels, where member states' legal experts are currently studying a draft of the EU's new Reform Treaty.

In my view, we should look to be reducing the number of A-Gs, not increasing them, since their involvement in cases entails cost and delays and they are generally not necessary -- as proved by their absence from the Court of First Instance, Civil Service Tribunal, and 30% of ECJ judgments. But since cutting the numbers is not on the agenda at the moment, I guess adding just one more is not a tragedy, and it is reasonable enough to argue that Poland should be on the same footing as Spain.

The curious thing here is that Poland has linked this issue to the IGC, whereas the Treaty permits the Council, acting unanimously, to increase the number of A-Gs at any time (the Reform Treaty wouldn't alter this). So it makes no sense legally to ask for this change in the context of the IGC, since a Council decision increasing the numbers could instead take effect immediately and would not be subject to the risk of non-ratification, as the Reform Treaty will be. It may make sense politically though -- ie a Polish threat not to sign or ratify the Reform Treaty unless this further demand is made. Presumably it also makes good domestic politics to make further demands of the EU during an election campaign.

Foreign ministers will meet for a first political discussion on the draft in Portugal later this week. Poland's latest demand comes in addition to earlier concerns it had raised on the treaty draft - particularly on its voting weight in the EU council, member states' decision making body. Poland wants to see a reference in the treaty text to the so-called Ioannina mechanism, whereby it can delay an EU decision if its vital interests are at stake. But most member states only want to have the Ioannina clause mentioned in a separate declaration which has less legal status. "The main issue is the question where this mechanism is included," Mr Cichocki said. "Legally it has a bit lower value when it is put in a declaration. We would like it to be a little stronger." "I believe this will be decided at the political level," he added. Poland already fought hard for its voting rights at a bitter EU leaders summit in June, which saw a head-to-head clash between Warsaw and Berlin before an eleventh-hour deal on the treaty blueprint was reached. Warsaw is now also set to dominate part of the last round of treaty negotiations, which the Portuguese EU presidency wants to wrap up at an EU leaders meeting in October. The Poles are also still considering to opt out from the EU's Charter of Fundamental Rights, following the example of the UK which already secured an exemption from the rights charter at the June summit. Poland's embattled conservative government dislikes the charter for its supposed liberalism on moral issues, but at the same time it is under pressure from trade unions - who support the charter's social rights catalogue - to refrain from the opt-out."This will rather be decided in the last period of the IGC," said Mr Cichocki.

What should happen, in my view, is that the Treaty should provide a legal basis for the Decision on the delay in decision-making. Otherwise the Council Decision is just weird, because what power does the Council have to take it? And what if the Council wanted to amend or repeal it? The Decision should either be referred to in a new para in (say) Article 205 EC, or take the form of a separate Protocol.

As for the Charter, the Poles had explicitly reserved their decision on whether to join the British opt-out Protocol as part of the IGC mandate, so signing up to this Protocol would not constitute a new Polish demand for the IGC. It will look odd, though, that the birthplace of Solidarity will be signing up to a protocol that in particular specifies that Chapter IV of the Charter -- the 'solidarity' provisions! -- cannot raise social standards in national law. The Polish government would probably prefer to target the equality provisions in Chapter III of the Charter -- but I think a demand along these lines would not be well-received by other Member States.

The Labour rebels' agenda: an analysis

2007-08-28T18:30:00.000+01:00

According to today's Daily Telegraph, 'Labour MPs' (by which they mean some Labour MPs) have a list of 12 changes they want to see to the Reform Treaty. Let's look at these in turn (I am using the Telegraph's description of this agenda -- it is possible that there is an official version of this agenda which is more precise or differently worded in some respects. I can't find one on Ian Davidson's website).

The point I want to examine in particular is how much scope there might be to re-open negotiations on any of these points -- although I doubt that an attempt to renegotiate any point will be well received by other Member States.

1) 'keep policing and criminal justice away from the Court of Justice'. Read literally, this is a stupid position to take, since the Court of Justice already has jurisdiction in these areas. Presumably the rebels' point is that the UK should keep its current opt-out as regards references from its national courts on these issues. The UK could perhaps argue that all Member States should retain such an opt-out (about half of them have used it), or at least that the UK (and perhaps Ireland) alone should have such an opt-out. A compromise position could be that the UK could be permitted to restrict references to final courts only (and perhaps even make references optional for final courts).

Of course, judgments of the Court following references from other Member States' courts would have the force of precedent in the UK -- unless the European Communities Act makes clear that (as at present) the precedential effect of Court rulings does not apply in this area. There would still be a persuasive effect of Court of Justice rulings on the UK courts, but that is already the case under the current regime -- ie the House of Lords has already followed the Pupino judgment on the indirect effect of framework decisions.

One thing the UK could do unilaterally, even without changing the text of the Reform Treaty, is to specify in the European Communities Act that judgments of the Court of Justice in this area would only have persuasive effect, unless the reference came from a UK court. After all, there is no obligation in EU law to provide for such a strong precedential effect of Court of Justice judgments as the European Communities Act provides for. A more radical unilateral move would be to specify in the Act that in all cases, judgments of the Court of Justice only have persuasive effect, unless the reference came from a UK court.

But there is also the separate issue of jurisdiction over infringement actions, which the Reform Treaty would introduce. It would be hard to argue that other Member States, but not the UK, should be subject to this jurisdiction.

conclusion: a total opt-out for the UK from jurisdiction over references should satisfy the critics (although they might still whinge about the jurisdiction over infringement actions. God forbid that the UK should have to implement measures it has opted into!). It seems hard to believe that this significant concession could now be extracted from the other Member States, having already extracted the UK's opt out from legislation in this area. The government could propose that the European Communities Act will limit the effect of Court of Justice judgments in this area, or more generally.

2) 'prevent the Court using EU competition law to undermine public services'. The Reform Treaty includes a Protocol on the 'public services' clause, which was not found in the Constitutional Treaty, which Eurosceptic groups like Open Europe tend not to refer to. I cannot judge the effect of this Protocol, as I am not a competition lawyer.

conclusion: The government could either make more noise about the existence of this Protocol (which perhaps has been overlooked in this country because it was a Dutch 'red line', not the UK's), or (more implausibly) seek to get it amended (or at least clarified in a declaration) if it is felt to be insufficient on this point.

3) 'scrap the new post of EU foreign policy chief and the EU diplomatic service'. This is an obvious deal-breaker that other EU Member States will not agree to unless the ratification process of the Reform Treaty collapses entirely (and perhaps not even then). The best that could be hoped for here, falling short of a veto, is to clarify and ideally weaken the post. It could be specified that the Member States may, not shall, ask that the High Representative speak in the Security Council on the EU's behalf. It could also become an option only that the High Representative will chair the External Relations Council. It could be specified more clearly that the High Representative can only act within the limits set by the Member States' foreign ministers, and that national diplomatic services are retained and not replaced by the EU service (in fact the Treaty refers to national diplomatic services several times expressly; the EU service consists of seconded staff only. But the point could be made clearer to satisfy the critics).

It is clear, from an objective viewpoint, that in the IGC mandate the goverment got a 'good deal' as regards policing and criminal law and the Charter, but didn't get much (apart from a specific clause on data protection and the limitation of the scope of Article 308 EC) as regards foreign policy. (Of course, the critics will never admit that the UK got a good deal on anything, and the government will never admit that it had to compromise its position on anything).

Anyway, it is often forgotten that Article 23(1) EU allows any Member State just to opt out of any foreign policy decision. This will be retained by the Reform Treaty. Perhaps the government should make more of this clause.

conclusion: a radical change of the text is impossible, but it is possible that clarifications regarding the High Representative and external acton service could be agreed, and (more unlikely) that the High Representative's wings could be clipped.

4) 'Member States to regain international aid budgets'. Read literally, this is claptrap -- in the Reform Treaty, international aid is a shared but parallel competence, as it is at present (meaning the UK can give as much or little aid as it likes to developing countries, regardless of what the EU does). Perhaps the point is that the Member States should regain exclusive competence over international aid -- this is an unrealistic position to take, since killing the Reform Treaty would leave us with the status quo on this point, ie shared but parallel competence. So killing the Reform Treaty would not accomplish this objective.

Anway, shared but parallel competence means that this is additional aid given to developing countries by the EU on top of national budgets. So if the EU's development aid powers are abolished, total aid flows to developing countries will be cut, unless you believe that all this aid is stolen by Commission officials (which would surely have been noticed by the Court of Auditors by now!), or that Member States would agree that they will make up from their national aid budgets all the EU aid that will be cut. How likely is that? Are the Labour rebels seriously supporting a cut in aid to developing countries?

Or perhaps the point is that Member States should retain control over a particular aid fund, the EDF, which is implicitly the subject of a particular clause in the current Treaty, which would be abolished by the Reform Treaty. It is not clear anyway whether this particular clause guarantees the continuance of Member States' control over this fund, or how the legal position would change if it were dropped.

conclusion: hard to judge since the rebels' position is unclear -- but that may be the fault of the Telegraph.

5) 'scrap new rules that allow a 'passerelle' to further majority voting without treaty amendments': a weak argument, since the application of the new general passerelle clause would be subject to unanimity of Member States and the prospect for national parliaments to block the process within the six months of the decision.

conclusion: easy to address this concern by an amendment to the European Communities Act specifying that the UK government will withhold final consent to the use of any passerelle (ie including the specific passerelles relating to social policy, environmental law, family law, the financial framework and foreign policy -- only the last two are new) unless both Houses of Parliament have voted in favour

6) 'drop plans for further extension of majority voting and stick with the provisons agreed at Nice in 2000': this appears to confuse the separate issues of the scope of majority voting and the mechanism for majority voting (again this may be the fault of the Telegraph). Since the UK has an opt-out or emergency brake over all the signficant extensions of QMV in the Reform Treaty (ie legal migration, foreign policy, policing and criminal law, aspects of monetary union, social security, expanded competence over other aspects of immigration, asylum and civil law), further objections would be a particularly difficult sell to other Member States -- although it would be useful to specify expressly that when the European Council is asked to deal with an issue after an emergency brake has been pulled, it must act by unanimity, rather than by 'consensus', which is not defined. Or alternatively, the Treaty should define 'consensus'.

This point is anyway irrelevant for foreign policy, where the Treaty specifies that the European Council should act unanimously if the emergency brake is pulled. But it would be better to specify expressly that when the European Council asks the High Representative to make a proposal, which in turn triggers QMV, the European Council acts by unanimity, not consensus (or again, alternatively, define 'consensus'.

As for the mechanism for majority voting, this is perhaps the single most difficult issue in the Treaty, and Poland only managed to get a (significant) delay in application of the new rules. While a better rule more favourable to the UK could be imagined, as I have set out in previous posts, it is hard to imagine that this issue could be reopened again, at least to the extent of giving up on any change. Rather the government could point out that the changes obtained by Poland also work to the advantage of the UK, in delaying the dilution of our ability to form blocking minorities as well (albeit at the cost of making it harder during that time to put together a majority in favour of a proposal in the UK's interests). Anyway, I suspect many Labour MPs and trade unions would want to see the UK outvoted on the working time and temporary workers' directives...have they thought their position through?

conclusion: a clarification/amendment regarding the functioning of emergency brakes is perhaps just about possible -- for the rest, dream on

7) 'drop plans for a list of areas of shared competence': what a load of cobblers. The EU and Member States already share competence over a large number of areas and the list of shared competences in the Reform Treaty essentially confirms this. If the clause listing the shared competences is dropped, this would be purely cosmetic; if the UK actually is going to spend political capital trying to obtain further changes to the text it would be mad to spend it on changes that are purely cosmetic, rather than substantive changes. Dropping this clause would not change the status quo.

Is the idea that the EU's action should be limited to areas of exclusive competence? Or that Member States can pre-empt the EU in areas of shared competence? Either way the EU would be so ineffective that there would be no point to its existence. Advocates of this position simply need a short explanation of EU law. If they still maintain their position after that then they are just being intellectually dishonest -- they should simply be calling for UK withdrawal from the EU.

conclusion: learn some EU law

8) 'return powers over regional spending to national governments': is the idea to scrap the EU's state aid rules, its regional policy, or both? Would this be helpful to UK businesses competing with state-funded adversaries from other Member States, or the beneficiaries of EU aid in the UK?

In any case the argument is strategically stupid -- because the Reform Treaty does not alter the rules on regional policy whatsoever. So rejecting it would make no change in the status quo on this point.

conclusion: the rebels should make sure that they are shooting at the right target, and indeed that they are not shooting at themselves

9) 'enable the government to 'automatically' deport foreign criminals': again (*sigh*) the Reform Treaty has nothing do with this. so rejecting it would make no change in the status quo on this point. The rules stem from legislation originally dating before we joined the EEC, and case law and legislation since.

conclusion: learn some more EU law

10) 'scrap plans to deprive national voting rights if they breach EU economic rules': well, so what? Voting on sanctions against naughty Member States is by QMV, so the accused State does not have a veto, and the sanctions (for non-participants in monetary union) are toothless anyway. Even for eurozone Member States, the sanctions are toothless since France and Germany gutted the Stability Pact in 2003.

conclusion: why bother? We might as well insist on legislation banning flea bites.

11) 'abandon plans to give Brussels the power to determine composition of the European Commission': what on earth does this refer to? Are the rebel MPs confused or just the Telegraph?

If this refers to the appointment of the Commission President, the Reform Treaty basically confirms the status quo that the EU leaders choose a candidate and the EP votes for or against the candidate. OK, the Treaty states that the EP is 'electing' the President and that the selection must 'take account' of EP elections, so the EP may be more pushy about using its powers. But it could, and probably will, get gradually pushier at using the powers it has already, even though they are described differently. So changing this would not alter the status quo.

Does it refer to the selection of other Commissioners? The Reform Treaty confirms the status quo that they must be selected on the basis of national proposals, and then approved by the Commission President-elect, and then the whole Commission must be approved by the EP and Council. So rejecting this changes nothing.

Is the objection to the cut in the number of Commissioners? The existing Treaty requires them to be cut from 2009, whereas the Reform Treaty delays this until 2014, and gives the Member States the option to alter the numbers of Commissioners. So rejecting the Reform Treaty wouldn't alter the fundamentals of the status quo -- rather it would bring forward the cut in the number of Commissioners.

Is the objection to the power of EU leaders to determine the criteria for rotation of Commissioners? Again the current Treaty provides for this power, requires its use from 2009 rather than 2014, and gives EU leaders carte blanche over the criteria, whereas the Reform Treaty specifies some criteria. Anyway Member States have a veto agreeing on the criteria.

Is the objection to the power of EU leaders to alter the number of Commissioners? Well, rejecting this clause would alter the status quo -- since under the current Treaties the number of Commissioners must be cut from 2009 and there is no power to alter this. But isn't it better to have flexibility over the number of Commissioners, considering that each Member State has a veto on this issue? Anyway such a power existed throughout the history of the EU until 2004 -- it hardly seems worth dying in a ditch for.

conclusion: sort yourselves out

12) 'retain national veto over trade agreements relating to public services' -- This is a valid argument, although again it is difficult to see how the Treaty could easily be renegotiated on this point now the IGC mandate has been agreed.

conclusion: there is a case for this, but is this a realistic objective?

It is interesting to note that the Labour MEPs are not raising an issue about the Charter opt-out. Rather the unions are objecting to the opt-out. But it is hard to see how a referendum on the Treaty, which is sure to produce a 'no' vote, will secure the objective of increasing social rights in the UK. Rather it is likely to kill the Treaty dead, and I can't see how more social rights would arise like a phoenix from the Treaty's ashes. A referendum on the Treaty without the Charter opt-out (ie supposedly with the social rights) would surely produce a 'no' vote as well, indeed probably a bigger one because the British public, apart from the unions, have been convinced that the Charter would murder us all in our beds.

Anyway, have the unions actually taken competent legal advice as to whether a fully binding Charter would in fact achieve anything at all for them? Is Article 51 of the Charter, and the constant jurisprudence of the Court of Justice limiting the scope of the general principles of EC law, totally meaningless?

Furthermore the rebels make no issue about the legal personality of the EU, or the president of the European Council, or the EU's criminal law powers. So they do show some sense on these points (see my previous posts on these non-issues).

Also, there is no mention of the opt-outs from policing and criminal law, although the chief supporter of these demands, Ian Davidson, is quoted on the BBC site as saying that the Court of Justice would not respect them. Again, if our opt-outs are not respected by the EU, how come we have not been forced to accept monetary union, the abolition of border controls or the EU immigration legislation that we have opted out of?

Overall conclusion: points 4, 7, 8, 9 and 11 are just confused and vetoing the Reform Treaty on these grounds would not change the status quo. Point 5 is already covered by sufficient safeguards -- the European Communities Act could clarify its application in national law. Point 10 is not worth fighting.

This leaves points 1, 2, 3, 6 and 12, where it is just about imaginable that the government could get clarifications or even changes to the text as regards 1, 2 and 3 (but not as much as the rebels want as regard points 1 and 3) but little chance that they could get much as regards points 6 and 12. If the government is, say, able to get an opt-out or a limitation regarding the Court's jurisdiction over policing and criminal law, and further able to get the High Representative's wings clipped, will there still be 120 Labour MPs (assuming there are really that many already) so keen to demand a referendum that would work in practice to the benefit of the Conservative Party?

The Eurosceptic Labour rebellion

2007-08-28T14:15:00.000+01:00

As I had suggested during the run-up to the agreement on the IGC mandate in June, it has provided politically difficult for the UK government to justify a U-turn on holding a referendum on the deal on the Reform Treaty, since it preserves a very large proportion of the Constitutional Treaty. The critics are, of course, exaggerating the extent of the similarity -- ignoring, in particular, the new opt-out on policing and criminal law which the government has secured -- but the fundamental point that the two treaties are otherwise very similar (although not identical) is valid.

While it is possible to argue that the two new opt-outs (on policing and criminal law and the Charter) are sufficient to justify the U-turn, this argument does not seem to be proving successful in practice -- in part surely because groups like Open Europe are lying about the new opt-out on policing and criminal law. Also, the critics who thought that the safeguards attached to the Charter were ineffective are insisting that the further safeguards provided by the new UK Protocol on this issue are ineffective too. Although neither argument is convincing in light of the Court of Justice's record on the Charter and on limiting the scope of human rights as general principles of EU law, the fact remains that this new Protocol is not defusing calls for a referendum.

Anyway, the government's anti-Charter position is irritating trade unions -- so it is trapped between its desire to please business critics of the Charter and its desire to please its trade union supporters. Both sides are wrong in their assumptions that the Charter would change the status quo as regards the protection of social rights in EU law -- but it is hard to convince them of that, and hard to prove what would happen in the event that the Treaty was ratified.

If there really are significant numbers of Labour MPs willing to vote for a referendum, as the press suggests, there are several options open to the government.

a) give in and call a referendum. This would damage the government's relations with its European partners, who might feel compelled (as in 2004/05) to call their own difficult referendums in turn and in any event, since the UK demanded changes to the Treaty in order to avoid a referendum, consider that the UK has reneged on the 'deal' in June (ie, you can have some Treaty changes in return for not calling a referendum). A massive loss in the referendum would also then perhaps be difficult politically for the government to recover from.

b) call an election. This is attractive since the Labour party is well ahead in the polls, although this support might prove soft. There is a risk that the election will itself become regarded as a referendum on the Treaty or that the polls which show that significant numbers of Labour voters would change their vote on the referendum issue are correct. (Then again, if so many voters are annoyed about this issue, why has the government built up a significant polling lead over the last two months?). The other downside for Labour in calling an election is that the party is strapped for cash.

c) demand major changes to the Treaty along the lines of the arguments made by the Labour rebels. This would again irritate the government's partners in light of the deal in June, and they would be unlikely to make major concessions. So either the government would have to soldier on with a handful of minor concessions, or veto the Treaty -- having signed up to a deal in June. (Of course, it was Blair, not Brown, who signed up to the deal, although partner governments will still perceive any demand for renegotiation by the UK as duplicitous).

Minor concessions would only satisfy a few of the critics. On the other hand, a veto would delight a lot of public opinion in the UK but it would take some time to restore relations with the government's European partners. In fact it is very likely that if the UK vetoed the Reform Treaty, having already signed up to a negotiation mandate in June, other Member States would very seriously consider the possibility of going ahead without the UK in some way, potentially by denouncing the existing Treaties.

I will comment in a separate post about what minor concessions could be achieved, and about the agenda of the Labour rebels.

d) wait and see if a Polish election, or a referendum in Ireland or possibly the Netherlands or elsewhere, might kill the Treaty, as was the case in 2005. If not, then at least the government will be able to rely on the argument that if the UK is the last to ratify, then failure to ratify will mean de facto departure from the EU. I doubt this, by itself, would convince enough voters in a referendum or quite enough MPs to work, though. And there will not be much time to wait if other Member States are serious about ratifying the Treaty by early in 2009; this scenario also means that the government may be reluctant to call an election in what would otherwise be favourable political circumstances.

The way forward The easiest path may be to combine c) and d), trying to get some concessions while waiting to see if someone else kills the Treaty or successfully demands to renegotiate it. Furthermore, the government also has other titbits that it can offer its rebels and trade unions, and other distractions which can be offered to the public. However, politics can develop a certain momentum and it is entirely possible that a hard choice between calling an election, holding a referendum or vetoing the Treaty will be unavoidable before too long.

All this could have been avoided if, as I argued in the spring, the EU leaders had agreed a rather more modest negotiating mandate that departed more significantly from the Constitutional Treaty and could not so easily be presented (partly truthfully) by critics as an attempt to sneak the Constitutional Treaty past the public again with purely cosmetic changes. But now the mandate has been agreed, it is hard to see how the EU could be brought around to that position without vetoes or referendum defeats for the Reform Treaty.

Let's hope that the third time around at a new Treaty, if the second attempt fails (as is starting to look likely) the maximalists will have the good grace to admit that their strategy has failed and indeed damaged the EU, and accept that the way forward is to proceed with more modest Treaty amendments that are closer to the grain of public opinion in the more Eurosceptic Member States.

The Chindamo case

2007-08-21T16:44:00.000+01:00

The convicted killer of Philip Lawrence is obviously a horrible individual who is deservedly subject to a life sentence. EC legislation (if that is what the Asylum and Immigration Tribunal has applied in its recent judgment) would only permit him to be expelled back to Italy if he is a threat to national security. But this has nothing to do with his life sentence -- EC law has no impact on that. It is even possible that the UK system will be less lenient in permitting his future release than the Italian system. If the UK penal system never releases this murderer from his life sentence, that would be fine by me.

But is it wrong in principle that EC law does not allow his deportation? (Perhaps the tribunal was relying on the Human Rights Act; in that case the outcome is not so clearly required by Strasbourg case law). Obviously this is a difficult case, but the EC legislation strikes the correct balance. Once someone is on the territory of a Member State for over ten years, it makes sense that the concept of EU citizenship transfers responsibility for that person -- except in national security cases -- to the host State. This in no way restricts the prosecution and sentencing of individuals if they are found guilty of serious crimes.

One thing that is clear is that this is a matter of free movement law, not JHA law, since the person in question is an Italian man who is relying on an EC Directive (not adopted by the Commission, but by the Council and EP).

Open Europe is therefore wrong to make comparisons with JHA law:

http://www.openeurope.org.uk/media-centre/pressrelease.aspx?pressreleaseid=55

This case has nothing to do with asylum legislation, the rights of suspects, the European supervision order, or the prohibition of double jeopardy in the Charter. In any case, the UK could either veto or opt out of these legislative measures at present, or opt out of them under the Reform Treaty, and the UK's opt-out from the Charter quite clearly would mean that our law on double jeopardy would not be affected (in any case, there are exceptions to the double jeopardy principle, as set out in the relevant Protocol to the ECHR and which can be assumed to be incorporated into the Charter).

Open Europe's big Lie: the Reform Treaty and the UK opt-outs

2007-08-14T17:49:00.000+01:00

Actually, another final post for today -- on a central issue -- the Reform Treaty and the UK opt-outs.

While it is true that the Reform Treaty is very similar to the Constitutional Treaty, this is less true for the UK than for other Member States -- due to the opt-outs regarding policing and criminal law and the EU Charter of Rights.

Eurosceptics are quite right to point to the government's dishonesty in failing to admit to the degree of similarity between the Constitutional Treaty and the Reform Treaty -- but they are themselves dishonest in understating or ignoring the extent of the changes between the two texts, particularly the importance of those two UK opt-outs.

Here is the key claim from Open Europe in a recent bulletin:

http://www.openeurope.org.uk/media-centre/bulletin.aspx?bulletinid=61

(iii) The UK’s “safeguards” and opt outs are not new – and won’t work

The Government, caught off balance by the many “unhelpful” comments from the other member states, has now started to fall back on the line that even if other EU governments view the new “treaty” as identical to the Constitution, the UK remains a special case on account of a tranche of opt-outs, opt-ins, emergency brakes and other “safeguards”.

But these safeguards are not new, and were in the original version of the Constitution - on which the Government promised a referendum. For example:

- The “emergency brake” on some aspects of social security is not new
- The “opt in” arrangement in Criminal justice and Policing is not new
- Most of the so-called “safeguards” on the Charter of Fundamental rights are not new, although the text adds some words specific to the UK.

Whether these particular safeguards (and others, which are not specific to the UK) will 'work' is a matter of opinion (although no-one should claim that they will, or won't, work without evidence). Let's leave that argument for another day (except for a specific point they make about criminal law and EC law -- see below).

Whether the safeguards are 'new' is, however, a matter of fact. It is correct to say that the 'emergency brake' on social security for migrant workers and self-employed workers is not 'new', as it appeared in the Constitutional Treaty -- although Open Europe fails to mention that the Reform Treaty clarifies this 'emergency brake' a little.

As for the other two opt-outs (criminal law and policing, and the Charter):

THEY ARE NEW. OPEN EUROPE IS LYING.

The Constitutional Treaty simply did not provide for the UK to have an opt-out as regards criminal law and policing. Article 1 of Protocol 19 to that Treaty provided as follows:

Subject to Article 3, the United Kingdom and Ireland shall not take part in the adoption by the Council of proposed measures pursuant to Section 2 or Section 3 of Chapter IV of Title III of Part III of the Constitution or to Article III-260 thereof, insofar as that Article relates to the areas covered by those Sections, to Article III-263 or to Article III-275(2)(a) of the Constitution.

What does this gobbledygook mean? Section 2 of Chapter IV of Title III of Part III concerned border checks, asylum and immigration. Section 3 of the same Chapter concerned civil law. Article III-260 concerns evaluation of JHA policies. Article III-263 concerns administrative cooperation. Article III-275(2)(a) concerns 'the collection, storage, processing, analysis and exchange of relevant information' by police forces. Article 3 of the Protocol permits the UK to opt in to measures in these areas, on a case-by-case basis. (Ireland is also covered by this Protocol in the same way).

This leaves sections 4 (criminal law: Articles III-270 to III-274) and 5 (policing: the rest of Article III-275 plus Articles III-276 and III-277) of that chapter. THE PROTOCOL DOES NOT GIVE THE UK AN OPT-OUT FROM THOSE PROVISIONS.

Read it yourself if you don't believe me:

http://europa.eu.int/eur-lex/lex/en/treaties/dat/12004V/htm/C2004310EN.01035301.htm

Compare this with the Reform Treaty. The mandate to negotiate the Reform Treaty states clearly that, in Section III: 'The following modifications will be introduced compared to the results of the 2004 IGC' [meaning the Constitutional Treaty]:

point 12: 'Moreover, the scope of the Protocol on the position of the United Kingdom and Ireland (1997) will be extended so as to include, in relation to the UK, and on the same terms, the Chapters on judicial cooperation in criminal matters and on police cooperation. '

This refers to the current Protocol giving the UK an opt-out from immigration, asylum and civil law, which states in Article 1:

Subject to Article 3, the United Kingdom and Ireland shall not take part in the adoption by the Council of proposed measures pursuant to Title IV of the Treaty establishing the European Community.

Neither this Protocol, nor any other current measure, gives the UK an opt-out from measures concerning policing and criminal law (the current Title VI TEU). That is why the Reform Treaty mandate refers to 'extend[ing]' this Protocol to cover policing and criminal law. So an opt-out for the UK and Ireland from these areas is clearly new, as compared to the current Treaties and as compared to the Constitutional Treaty.

This is not a statement of opinion, but a statement of fact. Open Europe might as well claim that the House of Lords is directly elected. And there is no reasonable excuse for them misunderstanding the Reform Treaty mandate -- these people are obsessives who read every word on the subject (not like me, not at all!) and the wording of the mandate on this point is not so difficult to understand, and certainly not for specialists, as they purport to be. It is their choice to pontificate on the subject on their website -- if they can't understand the text, they should keep quiet or admit that they are confused.

The Reform Treaty mandate is now implemented in the draft Reform Treaty, in pages 54-56 of the text which deals with new or amended Protocols.

http://www.consilium.eu.int/uedocs/cmsUpload/cg00002.en07.pdf

The revisions simply leave intact the current opt-out from Title IV of Part Three of the TEC for the UK and Ireland. But crucially, they do not limit the opt-out to sections 2 and 3 of Title IV (as did the Constitutional Treaty -- leaving aside the different numbering of the Treaty Titles, etc.). So the opt-out applies to sections 4 and 5, as well -- ie criminal law and policing.

As for Charter, the Reform Treaty mandate includes the text of the following Protocol, which is NOT found attached to the Constitutional Treaty:

Article 1
1. The Charter does not extend the ability of the Court of Justice, or any court or tribunal of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.
2. In particular, and for the avoidance of doubt, nothing in [Title IV] of the Charter creates justiciable rights applicable to the United Kingdom except in so far as the United Kingdom has provided for such rights in its national law.

Article 2
To the extent that a provision of the Charter refers to national laws and practices, it shall only apply in the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of the United Kingdom."

The Open Europe bulletin goes on to argue that this Protocol (notice they don't quote it) will not be effective at achieving the UK's objectives. But that is a different question from whether it is new as compared to the Constitutional Treaty, ie: 'these safeguards are not new, and were in the original version of the Constitution' (with a very limited later qualification).

And notice that there is only one argument in their bulletin to back up the claim that the opt-out from policing and criminal law won't work:

Indeed, in some ways the force of these safeguards has deteriorated since the original agreement in 2004. The much-vaunted opt-in on justice and policing can now be circumvented by the Commission as a result of a controversial 2005 European Court of Justice ruling which means the EU is able to propose criminal sanctions in all areas of ‘Community competence’. At present, this competence is limited to ‘environmental crimes’. But the Constitution changes this through a huge extension of Community competence, meaning the UK would be unable not to ‘opt-in’, and therefore would have to participate in any criminal justice measure that the Commission feels is necessary to “ensure the full effectiveness of a Community policy”.

Richard Plender QC, who represented the UK in the case in question, told Open Europe, “There is no opt-in or opt-out under this judgment”.

Well, let's unpack this. The current competence to adopt EC measures concerning criminal law is probably not limited to environmental crimes; the Commission has argued for a wider scope and an Advocate-General agrees in a pending case (C-440/05 Commission v Council). If this is correct, the Constitutional/Reform Treaty clause on this issue (Article 69f(2), to be inserted into the TEC/TFU) would confirm the status quo on this point, not alter it.

The adoption of legislation in this area, in the draft Treaty, is not down to the Commission's judgment as to whether the measure is 'essential to ensure the effective implementation of a Union' (moreover this must be 'in an area which has been subject to harmonisation measures'), but whether the Council and EP agree with that view (the same could be said of the present position).

There is no opt-out from the 2005 judgment, but what about from the relevant provision of the Reform Treaty? The issue is now dealt with under a specific clause, as I said already. I admit it is not clear from the text of the draft Reform Treaty whether the UK could opt out from such measures (because they concern criminal law) or not (because they concern another EU policy). Of course the UK could certainly opt out if the measure concerns an area of policy subject to a different UK opt out -- such as immigration law or monetary union. The UK should press to get this point clarified during the negotiations on the Reform Treaty - it is not clearly covered by the Reform Treaty mandate.

In any case, the 'emergency brake' certainly applies to this area (see Article 69f(3)) -- although of course Open Europe think that these brakes are meaningless. They have a good point when they argue that the 'emergency brake' must be different from a veto, otherwise there is no point in making the change -- but equally the brake must be different from QMV, otherwise there would be no point making that distinction either. So, assuming that the Court confirms the EC's competence to adopt criminal law to enforce any area of EU policy, then the UK would be in a stronger position under the Reform Treaty, even if it only gets an gets an 'emergency brake' out of it. If it gets an opt-out out of it, it will be much better off.

I had expected that Eurosceptics would argue that we still need to have a referendum despite the opt-outs that the government secured, and the other changes which the Reform Treaty makes to the Constitutional Treaty. I also expected them to argue that the opt-outs would be ineffective. But to claim that a significant new opt-out secured by the government is not new at all (and to suggest that another significant new opt-out is not really new) is just an inexcusable lie for a specialist organisation to make -- and they know full well that press stories will repeat it, using them as a source.

Europe in 2020

2007-08-14T15:51:00.000+01:00

Finally for today -- a response to a historian's analysis of what the Reform Treaty would mean by 2020:

http://www.dailymail.co.uk/pages/live/articles/news/worldnews.html?in_article_id=474658&in_page_id=1811#StartComments

As they sat on the concrete benches in the forbidding "special" unit of Paddington Green police station, the five Englishmen considered the charges against them and how they had got there.

....Certainly, the European arrest warrant had all been in perfect legal order.

Signed by the European Public Prosecutor in Brussels and correctly dated August 12, 2020, it named the five citizens of the EU's English region and accused them of contravening the 2012 Weights and Measures Directive No. 531/85.

For this scenario to be valid, a) the UK would have to opt-in to, and then not veto, the legislation establishing the EPP; b) all Member States would have to agree that the EPP would have to have the power to issue warrants; c) all Member States would have to agree that the EPP would have power over breaches of weights and measures law since it was a 'serious crime having a cross-border dimension' -- Article 69i(3) of the TFU, to be inserted by the draft Reform Treaty; d) the UK would have to opt in to a measure that amended the Framework Decision establishing the EAW to abolish the option (which has been exercised by the UK) to refuse to execute arrest warrants relating to acts carried out on UK territory, e) the sentences which could be imposed for breaching that law would have to at least a six months' prison sentence; and f) the Commission would have to backtrack on its reported recent commitments to let the UK retain imperial measurements.

It was, perhaps, unnecessary for the armed response unit of Europol's Special Branch to have smashed down their doors at 3am to arrest them, but that was pretty much standard practice with anyone who was suspected of committing crimes "likely to be prejudicial to the good-standing of the Union".

This phrase does not come from the current Europol Convention, the proposed Europol Decision or the draft Reform Treaty. Rather, Article 69k(1) TFU, which would be inserted by the draft Reform Treaty, describes Europol's powers as 'preventing and combating serious crime affecting two or more Member States, terrorism and forms of crime which affect a common interest covered by a Union policy'.

Europol is pretty unlikely (to put it mildly) to be kicking down doors at 3am as long as Article 69k(3) of the TFU, to be inserted by the draft Reform Treaty, reads as follows:

3. Any operational action by Europol must be carried out in liaison and in agreement with the authorities of the Member State or States whose territory is concerned. The application of coercive measures shall be the exclusive responsibility of the competent national authorities.

Neil Herron noted how until the infamous 2007 "Reform Treaty" - which was really the 2005 proposed European Constitution in all but name - Britain had control over her own criminal justice system.
But all that had changed.
New powers had been given to the European Commission, European Parliament and especially the European Court of Justice (ECJ), including the setting up of a European 'FBI', European Public Prosecutor and the institution of European arrest warrants.

We would of course have to opt in to any measure whatsoever relating to criminal law or policing under the draft Reform Treaty...and the European arrest warrant exists already, so would not be instituted by the Reform Treaty.

There had been some opposition, of course, such as in 2013 when the ECJ ordered the release of the Moors murderer Ian Brady from Ashworth Hospital, on the grounds of 'compassion'.
The English regional interior minister had protested, but found that his rights over sentencing and parole policy had been superseded by the ECJ.

The Court of Justice has no jurisdiction to order the release of individuals as such. Again, the UK would only lose powers relating to sentencing or parole if it opted in to proposals which might be made on these issues.

....Any more serious expression of discontent would easily have been put down by the European Army, which had come into being under the 2001 Treaty of Nice and, by 2015, had taken over from the British, French, German and other national forces in the control of EU security policy.

Article 17(1) of the curent TEU states that the EU defence policy 'might lead to a common defence, should the European Council so decide. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements'. Even if this entails a European army, rather than (as it appears) a full military alliance, it would require unanimous agreement and national ratification.

The demise of Nato, which had protected Europe for 65 years before its abolition in 2014, was mourned by some, but not those who looked forward to a brave new European future.

Well, NATO wouldn't be abolished by the Reform Treaty, as Article 27(7) TEU makes clear:

Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisation, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation.

The EU's insistence that, as a European citizen, King Charles could not also wear the "foreign" crowns of Australia, Canada and New Zealand, was accepted with reluctance by a Palace that was keen to fit in with Britain's "exciting" new European identity.

Since the current UK monarch can wear 'foreign' crowns, and the draft Reform Treaty would not change the citizenship provisions to provide otherwise, this is ridiculous. Moreover, the Court of Justice has confirmed that the UK can let Commonwealth citizens vote in European elections -- Case C-145/04 Spain v UK -- this hardly suggests that UK monarchs cannot be head of state of Commonwealth countries.

The refusal of the European Army's high command to agree to go to war to defeat the 2016 re-invasion of the Falklands by Argentina was perhaps predictable.

Although the English regional parliament - still based in the Westminster Heritage Site - had protested, and begged for the Royal Coastal Defence Force to be sent to liberate the islands, it was pointed out that the four billion euros the operation would cost far exceeded what Strasbourg had earmarked for London's security budget for the fiscal year 2016/17, so the request was refused.

With the former Royal Navy fully integrated into the European Navy all around the continent, it would have been near impossible to disentangle it anyhow, and there was no political will in Brussels to go to war for what were described as "irrelevant imperialist relics" anyhow.

This scenario would only happen if -- unanimously and under national ratification (Article 269 TEC, not changed on this point by the Reform Treaty) -- we and other Member States agreed that the next 'own resources' decision would allocate the vast majority of Member States' spending decisions to the EU (the EU spends about 1.2% of national income at the moment).

And how does this fit in with Article 4(2) of the TEU, as revised (and strengthened by) the draft Reform Treaty:

2. The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self‑government. It shall respect their essential State functions, including those for ensuring the territorial integrity of the State, and for maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.

It was, after all, for that very reason that Gibraltar had been "reunited" with the South Spanish Region only the previous year.

Well, this would certainly not result from the draft Reform Treaty -- which reinforces Gibraltar's status under the current Treaties as an overseas territory for which the UK is responsible (see Article 313(3) TFU, as revised by the Reform Treaty; this would now apply to the TEU as well as the TEC). And again, see Article 4(2) TEU.

Westminster might have had a stronger financial case had the "pan-European resource" of North Sea Oil not been handed over to Strasbourg in 2012, under the European Energy Directive 412/98, but that was all in the past.

(I wonder when Eurosceptics will realise that one of the numbers in EC Directives concerns a year -- ie a directive adopted in 2012 could not be numbered '412/98'). Anyway, I can only observe that the new Article 176a TEC states that '[EC energy legislation] shall not affect a Member State's right to determine the conditions for exploiting its energy resources...'. The phrase 'pan-European resource' does not appear in the Treaties.

Plus -- what a wonderfully deceptive technique, putting words in quotes to let readers think they are quotations from the Treaty, not (here again) fantasies from the author's head. As Directive 25-2432/3522533 says, 'how dishonest is that?'

The British and French seats on the United Nations Security Council were replaced by two EU seats, one of which (for an initial period at least) the English, Scots, Ulster and Welsh, and Northern, Central and Southern French regions were allowed to occupy in rotation.

The Reform Treaty would require Member States to request that the High Representative speak in the Security Council on their behalf, if the EU has adopted a common position -- a far cry from abolishing national seats in the Security Council. Article 19(2) TEU as amended by the Reform Treaty, confirms explicitly that Member States will reatin their separate seats:

Member States which are also members of the United Nations Security Council will concert and keep the other Member States as well as the High Representative fully informed. Member States which are permanent members of the Security Council will, in the execution of their functions, ensure the defence of the positions and the interests of the Union, without prejudice to their responsibilities under the provisions of the United Nations Charter.

And what is this business of breaking up the UK and France? It would certainly not result from the Reform Treaty -- see Article 4(2) TEU again.

All diplomatic services and embassies of EU member states were rolled up into a giant Brussels-based corps diplomatique, with the former British Foreign and Commonwealth Office performing sterling work ruling over the EU colonies of the Turks and Caicos and Tristan da Cunha.

The Treaty provision creating the External Action service makes it unmistakably clear that national diplomatic services are not being abolished (Article 13a(3) TEU):

3. In fulfilling his or her mandate, the High Representative shall be assisted by a European External Action Service. This service shall work in cooperation with the diplomatic services of the Member States and shall comprise officials from relevant departments of the General Secretariat of the Council and of the Commission as well as staff seconded from national diplomatic services of the Member States.

Plus -- Article 313(2) TFU retains the current status of the UK's colonies. Needless to say there is no Treaty provision allowing the EU to take them over!

With a new single legal personality instituted by the 2007 Reform Treaty, the EU was able to sign treaties with foreign powers, which it sent Lord Kinnock to do on a large number of occasions.

Can the Eurosceptics find any EU law specialist who thinks that an EU legal personality is 'new', rather than a confirmation of the existing implied legal personality?

Some were controversial, such as the anti-American Treaty of Cooperation with China.

This particular treaty made no mention of human rights abuses, the nuclear agreement with Iran and the trade agreement that had effectively kept Robert Mugabe in power until 2015, but the national vetoes signed away in 2007 made all that immaterial.

Oh, except Article 10a (1) TEU states that 'The Union's action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law'.

As for vetoes, the Reform Treaty (Article 17 TEU) only abolishes them where the EU leaders (acting by consensus) ask the High Representative for foreign policy to make a proposal -- and then an 'emergency brake' can still be pulled by a Member State for 'vital' reasons of foreign policy. If the deadlock cannot be resolved, the issue is referred to EU leaders, who must act by unanimity.

Of course, the UK foreign policy establishment is dying for the EU to sign anti-American treaties, to continue our fanatic anti-American foreign policy of the last 70 years, which has only escalated since 2002...but then I suppose the foreign policy establishment would be consumed by the external action service (see above) ....

...After that, the Union Jack was relegated to the top left-hand area of the EU flag, the better, Brussels insisted, to emphasise the sporting prowess of the Union "in a corporate sense".

For Darfur 2016, the EU flag fluttered over each of the 28 national teams, but by the Kabul Olympics of 2020, there was only one - admittedly enormous - 'European' team permitted to compete.

And how would this happen with the 'EU flag' clause dropped from the Constitutional/Reform Treaty? And does the 'sports' clause of the Treaty say anything about common EU teams? "Plus there is another spurious quote".

After the EU had created its own foreign minister, it was only natural that it should also create its own finance minister, which duly happened in 2013, although for a time the official title was "High Representative of the Union for Financial and Economic Policy."

There is no way this can happen under the Reform Treaty -- the Council Presidency rotates between teams of Member States (see Article 9c TEU).

The decision to impose tax "harmonisation" (i.e. total uniformity) in 2011 had already led, as leading think-tanks such as Global Vision had repeatedly warned it would, to reduced flexibility in the way that member state economies could react to the increasing risks and opportunities posed by globalisation.

Since the Reform Treaty does not alter the voting rules on tax (unanimity), this is about as likely as the Darfur Olympics of 2016.

Changing economic conditions required diversity of tax policy rather than uniformity, but a policy of stealth tax harmonisation meant that the European Commission imposed tax rates even when there was no mandate for them.

Just as the Commission has already harmonised all our VAT rates and company tax rates, with no power to do so! Except, wait it hasn't....

Moreover, because Britain had generally lower taxes than most of the rest of the EU, taxation only ever seemed to go in one direction. The rise of VAT to 22.5 per cent in 2011 was only the beginning.

Of course, we would let the Commission raise our VAT rates 5% without complaint! So would all other EU Member States and their population! We all just love to be dominated by the Commission!!! More, more, MORE!!!!!!!

Huge Serbian enclaves in Sussex, vast Bulgarian communities in Leicestershire, entire towns full of Romanian gipsies in Yorkshire and Lancashire - the 600,000 Eastern Europeans who had flooded in under New Labour in 2005/6 were as nothing to the mass immigration that had taken place under the EU's Free Movement of Peoples Directive 856/88 of 2019.

Serbians in Sussex! The free movement rights of EU citizens of course stem largely from the Treaties, including accession Treaties, not legislation. If the UK becomes so impoverished by this point, why are so many people moving here? Can people move here under EU law just to collect social welfare? Is there any chance that richer Member States would ever vote to allow them to do so?

Finally...

In the European elections due in the following October, the Conservative Party leader was standing for the Europresidency on an unashamedly patriotic ticket.

The Reform Treaty does not provide for an elected Presidency.

I don't think a single point being made about the Reform Treaty is accurate. This must be a record. Perhaps the article was meant entirely in jest -- even perhaps as an ironic parody of Eurosceptics (because Daily Mail readers would so obviously get that joke, uh-huh).

What a shame when there is a valid argument to be made about aspects of the EU -- the article almost starts to make one about the Financial Services Action Plan -- that this sort of bilge is turned out instead.

But I suppose that making up a fantasy Reform Treaty and criticising that is much easier than having to trouble oneself reading the real Treaty and making more complex and nuanced -- but accurate -- criticisms of the real one.

The problem is that many Daily Mail readers, thanks to decades of this sort of journalism, live in this fantasy land -- and in a referendum people would be voting on the fantasy Reform Treaty, and not the real one.

A corrupt Treaty?

2007-08-14T14:36:00.000+01:00

Where to start with this?

Brown turns his back on the people to embrace a corrupt EU treaty
Simon Jenkins Sunday Times - 12 August 2007

Err...how can a treaty be 'corrupt'? Individuals or groups can, sure, but a treaty? And even if it could, isn't the Reform Treaty a bit new to be committing acts of corruption? Wouldn't the Treaty at least have to be signed before it say, started to sell peerages for cash or have kinky sex at party conferences?

Assuming that he meant corrupt individuals -- well, it is certainly arguable that even for the UK, with its two new opt-outs on the Charter and policing/criminal law, the Reform Treaty is similar enough to the Constitutional Treaty that the U-turn on the promised referendum is dishonest. But that doesn't mean it is corrupt -- for who is paying off Brown or Miliband to do this U-turn?

Now, if we are going to use the word 'corrupt' when we really mean 'dishonest', then this article shows that Simon Jenkins is one of the most 'corrupt' journalists working in Britain today.

Let's examine the claims point by point:

As for Britain’s proclaimed “opt-outs”, they are moot. It is true they are substantive, at least on law and order, cross-border justice and foreign policy. But similar opt-outs were being negotiated for Britain under the old constitution.

Actually, there is no foreign policy opt-out, and the government hasn't claimed it got one (nor did it exactly ask for one). But it is a total FIB to claim that a identical opt-out on criminal law and policing was 'being negotiated' under the Constitutional Treaty. For one thing, that Treaty was signed back in October 2004 -- nothing could be 'negotiated' after that point. And the Constitutional Treaty as signed only contained the UK's existing opt-out from immigration, asylum and civil law measures, with a minor extension to cover criminal law relating to taxation -- NOT an extension to cover criminal law and policing matters.

But the draft Reform Treaty gives us an opt-out concerning all policing and criminal law matters -- therefore entailing an opt-out from the biggest area of the Treaty where QMV and the jurisdiction of the Court of Justice has been extended.

The Swedish government even told its people, eager for similar easements, that our new opt-outs were really just “clarifications” and would anyway be subject to oversight by the reinforced European courts, notably in matters of human rights.

In Eurosceptic-land, pro-European UK politicians are devious and cynical, but foreign politicians -- when they say something that Eurosceptics find useful to quote -- are as innocent as lambs. Obviously the Swedish government is throwing bones to placate the Eurosceptic elements of public opinion there. An opt-out from each policing and criminal law measure is not just a 'clarification', and there is no case where the UK's opt-out from immigration, asylum and civil law (which is what is being extended to policing and criminal law) has been circumvented by the EU courts.

Blair’s pretence that the “new” treaty was so diluted that a vote on it would be “like holding a referendum on an open-plan office” was an insult to the public’s intelligence. If the opt-outs were good enough for a referendum two years ago, surely they are today.

Except, again, two of the opt-outs are new. In fact, the Constitutional Treaty contained no new opt-outs for the UK -- except for the marginal extension of the immigration opt-out mentioned above.

The new constitution/treaty extends EU discipline into new areas of human rights, transport, law enforcement and social regulation. It creates a continent-wide “legal space” and another covering defence and foreign policy, albeit in embryo. It specifically enables future ministerial councils to extend Brussels’ power and to alter veto rights without a need for new treaties. This centralist “power creep” can thus be rendered virtually self-validating.

What utter codswallop. The human rights Charter, as stated in its preamble and as confirmed by the Court of Justice (Case C-540/03), simply restates rights which are already protected as part of the general principles of EU law.

There are no new powers over transport whatsoever (how can this lie be repeated now that the Reform Treaty makes clear which existing Treaty Articles are being amended?). There is only the repeal of a unanimous voting requirement if a transport measure had a major effect on a national economy -- but this clause was never really used. There are no new powers relating to social or employment policy whatsoever, and no change to decision-making relating to those issues. The words 'legal space' exist in Jenkins' mind, not in the Reform Treaty. There are existing EU powers relating to defence and foreign policy -- again, now that it is clear how the Reform Treaty amends the existing Treaties, how can any respectable journalist continue to give the impression that the idea of an EU foreign policy is new?

Yes, there is wider scope to abolish veto rights without Treaty amendment -- but there is still a safeguard of unanimous approval by Member States and, in most cases, national parliaments would have to be informed and could block the move.

In 1997 Blair signed the Maastricht social chapter (originally “opted-out” by John Major) because it was “in the manifesto”. Brown at the Treasury failed to implement most of it, much to the benefit of British labour market flexibility. This may now be subject to judicial challenge.

Utter nonsense. As far as I can see, not even Open Europe is claiming this. The fact is that back in 1998 or so, the Council adopted legislation (at the UK's request, and with the UK's consent) applying to the UK all four measures that were adopted under the 'Social Chapter' and which the UK was therefore not covered by (works councils, parental leave, part-time work and the burden of proof in sex discrimination issues). Since the UK social policy opt-out was formally repealed in May 1999 with the entry into force of the Treaty of Amsterdam, the UK has been bound by any social legislation adopted by the EC. So there is no non-implementation by the UK that would be subject to challenge as a result of the Reform Treaty.

If Jenkins means that the UK is deliberately failing to implement EC social policy legislation which we are covered by (and he gives no evidence of this), the Commission can sue the UK before the ECJ, and individuals or unions could sue the government before the national courts, possibly with a reference to the ECJ. The Reform Treaty would not change this situation.

An expanded concept of human rights is intended to see common standards of welfare benefits across the continent. As any student of European health and safety regulation knows, not a year passes without such intervention growing.

What part of Article 51 of the Charter, which limits the scope of the Charter to measures adopted by EU institutions and their implementation by Member States -- does Jenkins -- and other Eurosceptics -- fail to understand? The fact is that the EC cannot adopt legislation on social welfare without a unanimous vote of the Council -- Article 137 EC -- and the Reform Treaty does not change that.

As for health and safety law -- quite obviously a different issue from social welfare law -- in my experience, any competent 'student' would start by looking at the list of legislation on this issue on the Commission's social law DG website:

http://ec.europa.eu/employment_social/health_safety/legislation2_en.htm

This shows that a whopping 12 legislative measures in this field (one of them a codification, and one of them simply reducing the number of national reports) have been adopted since 1997 - as opposed to 21 adopted from 1988 to 1996 (a shorter period). (Over each period, there have also been a handful of Commission implementing measures). God forbid that the EU sets minimum standards to protect workers working with radiation and carcinogenic substances, working in mines, and so on, in order to avoid a 'race to the bottom' by governments/firms trying to cut costs in the single market. Even Mrs. Thatcher saw the force of this argument -- by agreeing to qualified majority voting on this issue back in the Single European Act.

And this is written by one of the most respected journalists in the country!

In the end, this article demonstrates conclusively exactly the opposite point that Jenkins wishes to make. It shows why a referendum should not be held. Either Jenkins is deliberately lying, or he is totally stupid, or he just cannot be bothered to check or correct the basic factual errors in his arguments, or a combination of the above. It doesn't really matter which. The point is that when such grossly inaccurate articles are being widely published (and they have been since the summer of 2003), how could the vote in a referendum be considered to be an honest and genuine expression of informed public opinion?

Eurojust, the European Public Prosecutor, and the draft Reform treaty

2007-08-14T13:38:00.000+01:00

I'm back!

And just in time, because there are so many fibs to expose.

Let's start with a short tale found in the Sunday Telegraph on August 5th:

http://www.openeurope.org.uk/media-centre/article.aspx?newsid=1977

It starts by telling us that:

A powerful new European public prosecutor with the right to order the British police to investigate UK citizens could be introduced under the new EU treaty.

This is a little confused. The EPP is based on a civil law model of an investigating magistrate. According to Article 69i(2) EC/TFU, as would be inserted by the draft Reform Treaty, it would 'shall be responsible for investigating, prosecuting and bringing to judgment' perpetrators of certain crimes (more on that later), and 'shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences'. It is not clear from Article 69i whether the EPP would gather evidence for its prosecutions by ordering national police forces to begin investigations; this would presumably depend on whether the Regulation establishing the EPP provides for this.

But having said that, there is enough there in the idea of the EPP to frighten Telegraph readers genuinely (mind you, Telegraph readers are probably easily frightened by anything with the word 'European' in it). And there is no disputing that the EPP is probably the single stupidest idea in the draft Reform Treaty. The crucial question is, though, will the UK be forced to go along with it?

The prosecutor would be able to instruct national police forces to carry out cross-border investigations on fraud, counterfeiting, terrorism and trafficking in drugs and people.

Yes, leaving aside the point about instructing national police -- if a) there is unanimous approval of legislation to set up the EPP and b) if there is unanimous agreement by the European Council, ie the EU leaders to extend the EPP's competence beyond fraud against the EU budget (see Article 69i(4)).

Then the JHA Commissioner is quoted as saying:

“Once the treaty is adopted and enters into force, we will start talking about Eurojust having the power and the responsibility of initiating an investigation, not only of coordinating it,”

This part is true -- since Article 69h refers expressly to Eurojust's power over 'the initiation of criminal prosecutions'. But this is distinct from its power, also in Article 69h regarding 'proposing the initiation of prosecutions by competent national authorities' (my emphasis). The Telegraph article gives the impression that the EPP and Eurojust are one and the same, and that an initiation of an investigation is the same thing as an order to British police to carry one out. But it is clear that the Treaty only mentions proposing the start of investigations by national authorities.

Next we hear from a Eurojust official:

Johannes Thuy, a spokesman for Eurojust, confirmed that the “end goal” was for the body to evolve into a public prosecutor’s office. “We could compel the British police to make a prosecution,” he admitted.

Yes, but only if the UK opted into the legislation giving Eurojust the power to do this (and Eurojust could only have these powers if the list of the powers of Eurojust in the Treaty is non-exhaustive), and/or into the legislation establishing the EPP -- assuming again that the UK opts in and votes for the EPP legislation to provide for this.

A British government spokesman argued that the UK would have a veto. ”[We] consider there is no need for such a prosecutor,” he said. But he conceded that decisions to boost Eurojust could be made by a qualified majority vote, allowing other countries to go ahead despite British objections.

True, Eurojust legislation will be adopted by QMV, but the UK will have an opt-out over that legislation. The Article gives the impression that the UK will simply be outvoted over the Eurojust proposal and then be compelled to accept the Prosecutor. But the Prosecutor, although linked to Eurojust, is the subject of a separate legal base, this time subject to unanimity and a separate UK opt-out. So even if legislation concerning the EPP were proposed under the wrong legal base (ie the Eurojust legal base), which would obviously leave it open to legal challenge, we would still be able to opt out of the proposal.

Timothy Kirkhope, leader of the Tory MEPs, said that the government, despite claiming its right to veto, would “opt-in surreptitiously without parliamentary scrutiny”.

The solution to that possibility is to make sure when the European Communities Act is amended that the UK cannot opt in to JHA legislation without an affirmative vote of both Houses of Parliament -- which is the approach followed by Ireland since 1999 as regards the current UK/Irish opt-out over immigration, asylum and civil law.

Neil O’Brien, director of the think tank Open Europe, claimed that Britain’s veto on the public prosecutor could be easily circumvented.

Even if EPP legislation were proposed under the Eurojust legal base, and assuming that the Court of Justice quite wrongly approved this following a legal challenge, the fact remains that the UK has an opt-out at the outset of each Eurojust proposal under the draft Reform Treaty.

This is an extension of our current opt-out regarding immigration, asylum and civil law -- and in over eight years, there is not a single example of the UK opt-out on these issues being circumvented.

The end result is that there is not the slightest prospect of the UK being compelled to accept the European Public Prosecutor, or of being compelled to accept any new powers concerning Eurojust that it does not wish to accept. If the UK parliament wishes to make sure that it maintains control of the government's decisions to opt-in in this area, it is up to parliament to insist on the same level of control as the Irish parliament has.

calculating voting weights

2007-06-22T11:45:00.000+01:00

A quick thought about calculating voting weights in the Council -- we shall see within 48 hours or so whether it is irrelevant or not.

Let's leave aside the hypothetical Polish population of 66 million -- after all, most other EU states lost citizens in the war, including Germany, although as Basil Fawlty would point out, they did start the war. (Plus we could ask how many Polish citizens were actually killed by the Russians rather than the Germans, and speculate what the German population would be if the war had never begun, meaning that much of northern and western Poland would still be German territory. But let's not go there).

I think a fair basis for calculating voting weights would be a majority of small Member States and a majority of larger (ie the big six) Member States in favour. This would in effect make it harder to pass legislation than under the Constitutional Treaty (since under the CT rules three of the big six cannot, by themselves, block a measure, and there are scenarios under which a majority of smaller MS can be outvoted if five or six of the biggest support a measure). I am not sure whether it would be easier to pass legislation than under the Nice Treaty -- I can't do the maths on that to be certain. (The system certainly would make it possible for any three of the biggest six to block legislation -- which is impossible under the Nice or Constitutional Treaty rules. So it would benefit all six of them, including the UK and Germany).

This would treat Poland equally to the other big Member States and would compensate the smaller Member States too. Raising the bar for passing legislation would have the useful impact of taking away the argument that the 'Reform Treaty' (to use the Presidency's title) would make it harder for Member States to block measures they disagree with. The EU already seems to have sufficient ability to pass legislation under its current rules for QMV -- if my alternative would make it a little harder to pass legislation, I doubt that the EU would really grind to a halt.

This system could either be introduced as the sole criterion for voting, or added to one or both of the criteria currently set out in the CT. (The criteria that at least four MS are necessary to block a measure would have to be dropped, though). If we retain the 65% population requirement, this would still satisfy German interests in having its population recognised.

Or the system could be introduced indirectly -- if we drop the requirement that four MS are necessary to block a measure, and raise the requirement for 55% of MS to block a measure to 65% (ie the same as the population criterion). Again this would compensate both big and small MS simultaneously.

By no means should anyone accept the Czech idea that we should need FIVE Member States to block a measure -- this would make it significantly easier to pass legislation, perhaps even against the objection of MS with a majority of the population, plus it seems to me it would weaken the ability of the Poles, as one of the biggest six, to form part of a blocking minority. They would be daft to go along with this, it seems to me.

Open Europe's Bulletin on the New Treaty

2007-06-19T18:41:00.000+01:00

Let's have a look at the Open Europe Bulletin on the plans for a quasi-Constitutional Treaty, online at:

http://www.openeurope.org.uk/media-centre/bulletin.aspx?bulletinid=58

First (excerpts from their Bulletin in italics):

The reality is that the UK Government would never sign up to a deal involving either the Charter of Fundamental Rights or giving the EU a legal personality – that has been clear for some time now. Both would mean a huge transfer of power and would make the EU look more like a country than an international agreement. Even a messy fudge in which there were “safeguards” to stop the Charter from affecting national law would be a disaster for the Government – and they will never sign up to a deal which included it.

I have my doubts that the government will win its argument on these points, as I pointed out in my last post. But in fact they are not really trying to -- the 'red lines' as set out by Blair on Monday do not specifically state that the Charter should not be binding at all, or that the EU should not get a legal personality. It appears to me that Open Europe is distorting the government's actual position so that if the government 'fails to get its [supposed] red lines' then it can be criticised for 'selling out'. They accuse the government of misleading the public -- with some justice -- but they are actively engaged in misleading the public themselves.

On the merits of the arguments here, as I have pointed out before, the Charter (according to the Court of Justice) has the same content as the existing 'general principles of Community law', and Article 51 of the Charter expressly limits its application to acts of EU institutions and Member States only when they implement EU law. The same Article goes on to specify that it does not expand EU competence. Has any Eurosceptic ever acquainted him/herself with Article 51? Or the jurisprudence of the Court of Justice, which has refused to apply the general principles to purely national issues? (see Case 12/86 Demirel).

Also, the European Community already has express legal personality (signing hundreds of treaties since the 1960s), and the European Union has implied legal personality (signing a couple of dozen treaties since 2001). International organisations do have the capacity to sign treaties, without therefore being regarded as states -- that is the reason why there is a Vienna Convention on the law of treaties signed by international organisations, dating back to 1986.

So let's be clear, neither a binding Charter nor an express legal personality for the EU would transfer any powers at all from Member States to the EU.

This is despite the fact that the UK was defeated during the set-up of both the EU President and the EU Foreign Minister.

Open Europe does not point to any evidence that the UK was defeated as regards the EU President during the prior negotiations. That is because the creation of the President was a prime objective of the UK during the 'Convention' which originally drafted the Constitutional Treaty. The creation of the post was therefore a victory for the UK, and for the other big Member States which supported the idea. The UK supported the idea because the EU summits (the European Council) are perceived to be the primary avenue for large Member States to influence EU affairs, and the creation of a 'permanent' President of this body (NOT a President of the EU) would therefore strengthen large Member States' effectiveness. The point was discussed in detail during the press coverage of the Convention.

If an EU Foreign Minister appears in the same form as the original Constitutional Treaty national vetoes in several areas of foreign policy would be abolished. The original version of the Constitution proposed that votes on policies or actions proposed by the EU Foreign Minister would not be subject to national vetoes. This would represent a substantial shift in power from member states to the EU.

The final text of the Constitutional Treaty provides that the veto would be abolished if the Foreign Minister makes a proposal following a request by the European Council (the EU leaders). In the absence of a specified voting rule, the European Council would act by consensus when making that request.

But the most important point is that there is an 'emergency brake' in the Constitutional Treaty as regards any form of majority voting over foreign policy, stopping the voting dead unless the issue is referred to EU leaders, and unless EU leaders decide by unanimity how to resolve the deadlock (discussed in detail in my last post). As I pointed out in my last post, Eurosceptics are loath to mention the existence of this clause. And here is Open Europe confirming this point already.

The EU Foreign Minister would also have an automatic right to speak on the UK’s behalf in key international meetings like the UN security council. The original version of the Constitution said that “When the Union has defined a position on a subject which is on the United Nations Security Council’s agenda, those Member States which sit on the Security Council shall request that the Union Minister for Foreign Affairs be asked to present the Union's position.” The UK asked for this to be removed, but later gave in, and allowed it to be included.

The Foreign Minister would be presenting the EU's position, as the text makes clear. So he/she would only exercise this power when the EU has agreed a common position -- and the EU could only define that position by means of unanimous voting of foreign ministers or voting with the 'emergency brake'. I agree that it would be better if this clause were removed though -- see the last post.

But let's see what changes the UK can get to the foreign policy provisions this week, before jumping to conclusions. The UK is not diverting attention from a 'cave-in' on this issue -- according to today's Financial Times, it has disturbed other Member States by raising the precise issue of the power of the Foreign Minister.

An EU President would fundamentally change the lawmaking process in Brussels. Instead of new laws being negotiated between the supranational Commission and a national head of Government (with a vested interest in protecting the rights of member states), negotiations would in future take place between one independent Brussels institution and another.

Absolute claptrap. Stop lying, please! Negotiations take place currently within the Council (of national ministers), and often also between the Council and the European Parliament (not between the Commission and 'a national head of government', whatever that means). The Commission and the European Council have a role as agenda-setters as regards policy development. The Constitutional Treaty would not alter this.

So why would negotiations in future take place between the Commission and the European Council (NOT the EU) President? How would the President be 'independent', when his only power is to chair meetings of EU leaders, in which he or she does not even have a single vote? (ditto the president of the Commission: Article I-25(4)). Why would the European Parliament support the Treaty so strongly if it was going to lose its lawmaking powers? How will the European Council take part in 'negotiations' in the 'lawmaking process' when the Treaty states that 'It shall not exercise legislative functions' (Article I-21(1))?

In fact it would mean a radical 30% cut in the UK’s power to block damaging EU laws. Even just looking at the proposals that are currently in the pipeline, we can see that less power would mean trouble for the UK - never mind anything unpleasant that might be further down the line. The UK and a few other liberal states are currently blocking the Temporary Agency Workers Directive, which would give temporary workers the same rights as permanent workers. The UK and other countries are blocking moves to restrict the UK’s individual opt-out from the 48 hour working week – which would cost £9bn per year according to the DTI.

As an academic study points out, the role of the UK as the swing vote would be increased (see my post yesterday). As I have already pointed out again, the temps directive has not been discussed for years, and the UK would easily maintain its blocking minority on the working time directive under the CT voting rules. And have any Eurosceptics noticed that Sarkozy has said that he wants workers to be able to work as many hours as they choose?

Because the negotiations are taking place completely behind closed doors it is difficult to know what else might appear. For example, there have been some suggestions that the European Court of Justice might gain jurisdiction over issues like justice and home affairs for the first time – a move resisted by successive UK governments since 1992. This could be even worse than giving up the veto over crime and justice. If criminal law was moved to qualified majority voting, the UK could at least try to persuade other member states to help it block things it was opposed to. But when the ECJ makes a ruling, there is simply no come-back at all.

Does this organisation have any integrity, or knowledge of EU law at all? I have already pointed out in my posts -- as anyone writing about EU law should know or bother to find out -- that the Court had a limited jurisdiction over these matters since 1993, which was expanded in 1999 with the Treaty of Amsterdam. The UK and all other MS have accepted the Court's jurisdiction (in a limited way) over the civil law and immigration and asylum law aspects, but not over criminal law and policing; about half of the Member States have accepted the Court's jurisdiction over the latter. The Constitutional Treaty would expand the Court's jurisdiction further (as distinct from giving it jurisdiction 'for the first time'!), but that is no secret. Presumably the quasi-Constitutional Treaty will do so again -- as no-one has suggested taking the Court's jurisdiction out of it. God forbid that the EU has a Court to observe the rule of law as regards issues like criminal law or asylum!

I ask again -- how can we have a referendum when campaigners and newspapers -- never mind politicians on both sides of the argument -- just cannot tell the truth?

The UK's 'red lines'

2007-06-19T13:52:00.000+01:00

The UK government has officially announced its 'red lines' for the summit talks this week, ie the points which it will insist on being met otherwise it will either require a referendum or refuse to sign up to the ensuing treaty (remember that no Member State can veto the decision to start talks at an IGC).

Some thoughts on the context and then the detail of these 'red lines'.

Context

One could understand the UK government to be saying that the Constitutional Treaty which it signed up to in 2004 already crosses these 'red lines' -- otherwise why raise the issue now? No-one is suggesting that very much be added to the text of the Constitutional Treaty. Also, if the government could not be trusted to defend these issues back in 2004, why could it be trusted to do so now? Of course the government does not put it that way, because the point of the exercise is to provide political cover for the decision not to hold a referendum on the treaty.

Having said that, the government has nonetheless raised expectations about what it intends to obtain from the summit talks, and so it will presumably have to have something to show for the summit negotiations. And this needs to be something concrete -- simply changing the name of the Foreign Minister, for instance, will not fool anyone. But we have to bear in mind that it is not the job of this summit to draft Treaty texts -- the forthcoming IGC will do that. Yet there should at least be an agreement in outline as to what concrete changes would be made to the Constitutional Treaty text to address the UK's position.

Otherwise it may prove practically impossible to resist the argument for a referendum. Would the supporters of the Constitutional Treaty really prefer not to compromise on the UK's objections, thus ensuring the second defeat for their project? Of course, some people will call for a referendum whatever emerges from the summit talks, but a concrete agreement to amend the Treaty text in order to address the government's concerns could convince a sufficient number of MPs and members of the Lords to hold off a referendum -- rightly so, I would add.

Criminal law and policing

As I have pointed out in previous posts, the Constitutional Treaty already provides for an 'emergency brake' as regards substantive criminal law and domestic criminal procedure. If a Member State objects to a measure, the process is suspended, the EU leaders (European Council) get involved, and after 4 months, the discussions either resume, or the original proposal is killed, with a request to issue a new proposal. If the European Council is deadlocked, or if the revised proposal is not adopted within 12 months, then a group of Member States (at least one-third) can, if it wishes, go ahead with the measure on the basis of 'enhanced cooperation'.

Unanimous voting applies to the adoption of measures on the European public prosecutor, operational cooperation between police, or cross-border police actions.

It seems to me this is already sufficient to address concerns about sovereignty in this area. True, there is no specific rule for voting in the European Council as regards this 'emergency brake', but the CT clearly specifies that in the absence of such a specific rule, then the European Council acts by consensus (Article I-21(4)). I understand 'consensus' to mean unanimous voting without the possibility of abstention. But if the process could be considered ambiguous, it should be clarified simply that the European Council must act unanimously. It would probably be better just to keep unanimous voting in the Council on these measures -- but it will be hard for the CT-devotees to agree to such a concession. A reasonable compromise would be unanimous voting on the 'emergency brake', and/or an opt-out for Member States. I see no need to limit the decision on the opt-out to the first three months after a proposal is made (as is the case with the UK and Ireland's current opt-outs on immigration).

The Charter of Rights

The 'red line' here is not that the Charter should remain non-binding, but that it should have no impact on UK law. This would presumably mean no impact on any area of UK law, not just the issue of trade union law.

As I have already argued in previous posts, the Charter already provides sufficient protection for the prospect that it will impact on national law outside the scope of EU law -- ie Article 51, which would be clarified by the Constitutional Treaty, and the explanations to Article 51, which Article 52(7) of the Charter as modified by the Constitutional Treaty gives greater status to. Perhaps the best concrete amendment that would be forseeable as a compromise would be a further paragraph of Article 51, which spells out expressly that 'This Charter shall have no impact whatsoever on matters of national law on which the EU has not legislated or on which the EU has no competence to legislate.' If necessary, continue the sentence: '...in particular, the regulation of trade union rights or abortion [etc etc]'.

The UK 'red line' cannot surely mean that the Charter should have no impact on UK law even where UK law falls within the scope of EU law because it implements or derogates from EU law -- ie UK implementation of a Directive. For then it would be impossible to ensure the uniform interpretation of EU law as interpreted or ruled invalid in light of the Charter. In practice then an EU law which the ECJ ruled was invalid for breaching the Charter would continue to remain valid in the UK, and an EU law interpreted in a particular way (for example, to reconcile the money laundering directive to lawyer-client confidentiality) would mean something different in the UK. This would violate basic legal principles -- it would be better that the Charter remain non-binding than adopt such a fudge.

Anyway, the ideal outcome would be that the Charter remain wholly non-binding, as this would be a decisive argument for avoiding a UK referendum. But I am not optimistic that the CT-devotees would go so far.

Tax and benefits

There is no provision of the CT which provides for majority voting on tax -- so this point is indeed partly a 'red herring'. But then Eurosceptics on some occasions have seemed to suggest that the Treaty would extend majority voting on tax. Let's not have any fibs, please.

As for benefits, the issue appears to be social security for migrant workers and migrant self-employed persons. Article III-136 of the Constitutional Treaty already sets out an 'emergency brake' in this area, which applies the same way as the brake for criminal law, except that there is no prospect of a group of Member States going ahead via means of 'flexibility'.

It seems that the UK wants some sort of possible opt-out in this area. This is an exceptionally badly-thought out position. First of all, this legislation is necessary to ensure the free movement of persons, and has always been an important part of the internal market (literally the first Reg in this field was adopted immediately after the EEC Treaty entered into force in 1958). Anyway individuals can rely directly on the EC Treaty articles on free movement of persons to claim directly effective access to social benefits, and EU institutions can challenge the legislation for breach of the free movement rules (cf Case C-299/05, pending). It would be better simply to clarify ideally that the Council will still act unanimously in this area, or at the very least to clarify that the European Council will take its decision unanimously.

Foreign policy

It seems that the UK wishes to go beyond renaming the Foreign Minister and to clarify that CFSP issues remain distinct. In several respects the CT provides for this already, ie as regards decision-making (Article I-40 and I-41) and exclusion of the ECJ's jurisdiction (Article III-376). However, more could be done. The provision on the Court's jurisdiction should be amended to exclude jurisdiction over Article I-16, which concerns EU competence for the CFSP, as well as Protocols and any other treaty articles to the extent that they apply to the CFSP.

Article I-16 should refer not just to loyalty by Member States to the Union, but to the national foreign policy powers which Member States still enjoy. So it should specify that if the Union has not acted to adopt a foreign policy measure, then Member States are still free to adopt national measures. It should also re-iterate that MS obligations to the Union are without prejudice to current EC Treaty Articles 296 and 297 (exceptions for the arms trade and national security/alliance/UN obligations) or to the national identity, etc. of Member States (Article I-5(1)). It should also refer to the possibility for a MS to diverge from an EU foreign policy operational decision in cases of 'imperative need' (Article III-297(4)), a rule which should be extended to other types of EU foreign policy act. It should also make clear that foreign policy competence belongs to Member States -- and that they are coordinating that competence at Union level, not transferring it to the Union.

As for decision-making, it would be preferable to remove extensions of QMV from Article III-300 -- although some of those possibilities exist already, and it must be admitted that all these possibilities are subject to an unqualified 'emergency brake' -- ie a vote is not taken at all if the brake is pulled, referral to the European Council (which is politically awkward) is only a possibility, the European Council will expressly act by unanimity, and there is no proviso for reviving the proposed measure if it is killed (how often do Eurosceptics mention that the emergency brake applies to foreign policy QMV? Just about never). Also it would be best to drop the possible simplified extension of QMV from this Article -- the general passerelle clause (which gives powers to national parliaments) would still apply -- although it must be admitted that the extension would be subject to unanimous approval in the European Council.

As for the foreign minister, Article I-28 should make it more explicit that s/he is a servant of Member States' foreign ministers in the Council, with a cross-reference to Member States' national foreign policy powers and control over EU foreign policy. The functions of the FM should be curtailed, certainly his role in the Security Council (Article III-305) and perhaps also chairing the Council.

The direct effect and supremacy of CFSP measures could be excluded by ruling out direct effect explicitly, as is the case with some current third pillar measures. As for supremacy, the changes I suggest to Article I-16 should make it clear that the principle is not applicable (I am assuming that the clause on primacy of EU law will be dropped from the Treaty. If not, then it could be explicitly state that such primacy is without prejudice to Article I-16 as amended).

If a significant number of these suggested changes are made, there should be no need to resist the merger of the pillars or the 'creation' of an EU legal personality. For reasons I have set out in earlier posts, these are essentially 'presentational' issues. But if it is really considered absolutely politically necessary it might be best to compromise on these points too.

Conclusion

So, the red lines have been sorted in a way that clarifies or amends the Treaty to address the UK's key concerns without damaging fundamental legal principles or altering the basic features of the CT (like the abolition of the pillars) unnecessarily. Something along these lines would easily justify not holding a referendum -- although the government also has to tackle fibs and distortions about the Treaty full on. (How about a rapid response unit to respond to tabloid and thinktank fibs and distortions the same day? I'd love that job).

That leaves the Polish objections to the Constitutional Treaty -- the subject of my next post!

Council voting weights: an analysis

2007-06-18T14:27:00.000+01:00

An interesting paper on Council voting weights online at:

http://www.cepr.org/pubs/PolicyInsights/PolicyInsight5.pdf

The statistics here (figures 3 and 4) demonstrate that the UK's voting share and the likelihood of it being the pivotal vote would increase, as compared to the status quo, under the Constitutional treaty voting rules.

Is there any chance that Open Europe and Eurosceptic papers will stop arguing that the UK's power will be '30% less' under the Constitutional Treaty rules?

There is a further interesting paper on the effectiveness of the current voting rules -- arguing that the flow of legislation has been reduced since the Nice Treaty rules were applied...

http://www.cepr.org/pubs/PolicyInsights/PolicyInsight3.pdf

The Polish question

2007-06-14T12:18:00.000+01:00

The Polish government is threatening to 'veto' the talks on a 'new' Treaty unless its objections to the text of the Constitutional Treaty regarding the calculation of qualified majority voting is dropped.

Let's first remind ourselves that a Member State cannot veto the calling of an IGC. The Council decides to call one by a simple majority. Mrs. Thatcher tried to veto the calling of the IGC that led to the Single European Act and failed. Of course, however, a Member State can veto any draft treaty that emerges from the IGC.

Is the Polish position rational? I see a catch-22. The Poles are focussing on cases where the veto has already been dropped (or would be dropped by the next Treaty). Yes, their position would mean that Poland had more power when a qualified majority vote takes place; but for that to mean anything in practical terms of blocking a proposal, then Poland needs allies to form a blocking minority -- and particularly it needs allies among big Member States. But it is alienating those allies by its approach to the negotiations.

It would make more sense for the Poles at least to open a second front by arguing for the retention of more unanimous voting. Let's remind ourselves also that (unlike what the Czechs argue) unanimous voting is not the norm now, and was never intended to be the norm in the original Treaty of Rome -- unanimity is, and always has been (following the end of the transition periods in the original treaty), an exception to the general rule of qualified majority voting.

Yes, the Luxembourg compromise meant continued unanimous voting in practice until the mid-1980s -- but this violated the text and spirit of the original treaties. And the use of the compromise on a regular basis ended long before the Czechs joined the EU.

There are some good arguments for retaining unanimous voting -- so let's hear less of this bad argument, please.

Trade union law and the EU Charter of Rights

2007-06-11T13:03:00.000+01:00

An article in the Daily Mail on the plans for the quasi-Constitutional Treaty is online on the Open Europe site: http://www.openeurope.org.uk/media-centre/article.aspx?newsid=1917

This is a good moment for me to respond in detail to a common argument in the UK Eurosceptic press, that making the EU Charter binding would alter British domestic labour law.

An excerpt from the article:

Mr Brown will refuse to sign up to a charter of fundamental rights ñ which would scrap laws banning closed shops and secondary picketing...

But would the Charter do that?

Let's have a look. The Charter states in Article II-88 of the Constitutional Treaty (Article 28 of the current Charter), that ‘[w]orkers and employers, or their respective organisations, have, in accordance with Community [CT: Union] law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflict of interest, to take action to defend their interests, including strike action’.

Does this entail a requirement to alter national trade union law on these issues? Article II-111 (current Article 51) sets out the scope of the Charter. It is addressed to the 'institutions, offices, bodies and agencies of the Union' and 'to the Member States only when they are implementing Union law'. This Article goes on to provide that the Charter 'does not extend the field of application of Union law beyond the powers of the Union or establish any new power or tasks for the Union, or modify powers and tasks defined in other parts of the Constitution'.

This point is highly relevant because the EU, at present or under the Constitutional Treaty, has no power to adopt laws on the regulation of the right to strike. Article III-210(6), current Article 136 EC, states that the EC's social policy powers as set out in that Article 'shall not apply to pay, the right of association, the right to strike or the right to impose lock-outs'. There is indeed no EC legislation at present regulating such core aspects of trade union activity.

It is true that EC measures have some impact on trade union activities (for example the relationship between free movement rules and collective action -- see the recent opinions in Cases C-341/05 Laval and C-438/05 Viking Line). Also, for example, the working time legislation provides that certain opt-outs can only be applied pursuant to collective agreements (see Art. 18 of Directive 2003/88, online at: http://eur-lex.europa.eu/LexUriServ/site/en/oj/2003/l_299/l_29920031118en00090019.pdf). But this is not the same thing as regulating the right to strike generally, or regulating the closed shop.

In any event, the Charter goes on to provide that rights may be limited (Article II-112(1), or current Article 52(1)). The Laval opinion specifically points out the relevance of this point to the right to strike (see para. 81 of the opinion). A new para 6 of this Article, which would be added by the Constitutional Treaty, states that 'full account shall be taken of national laws and practices as specified in this Charter'; as we saw above, the phrase 'national laws and practices' appears in the trade union article. Another new para 4 refers to interpretation of Charter rights 'in harmony with' national constitutional traditions.

Article 52(3) of the Charter also requires 'the same' interpretation of rights which appear in the ECHR and in the Charter. The notes on the interpretation of the Charter (attached as a declaration to the Constitutional Treaty, and which 'shall be given due regard by the courts', according to Article II-112(7)) state that Article 12 of the Charter (freedom of association) have the same meaning as Article 11 ECHR on the same topic, except that the freedom applies to EU level. But the restrictions set out on the freedom in Article 11(2) ECHR remain applicable. (Incidentally, the notes on Article 28 of the Charter state expressly that 'the modalities and limits for the exercise of...strike action, come under national laws and practices').

What is the relevance of these limitations? As the Opinion in Laval points out, 'the abovementioned instruments protecting human rights and the Constitutions of the Member States examined above all recognise the possibility of imposing certain restrictions on the exercise of the right to take collective action' (para. 81). And (para. 83) '[p]rovided that the Member States authorise one or more forms of [collective] action within their territory, they also have the right to define the limits and the conditions for taking such action, in accordance with the instruments for the protection of human rights referred to earlier'.

As regards the right to strike in particular, the Opinion in Laval rightly points out (para. 71) that '...it is apparent from the case-law of the European Court of Human Rights that Article 11(1) of the ECHR, by leaving each Member State free to choose the means to be used for that purpose, does not necessarily imply a right to strike, since the interests of union members may be defended by other means and, moreover, the right to strike is not expressly upheld by Article 11 of the ECHR and may be subject under national law to regulation of a kind that limits its exercise in certain instances'. In para. 72: '[t]hat [Strasbourg] case-law could thus be summarised as meaning that Article 11(1) of the ECHR requires the Contracting Parties to enable trade unions to strive to defend their members’ interests, without thereby imposing on them the means to be used to that end'. This conclusion would not be disputed by anyone with the least familiarity with the case law.

Since I have a little familiarity with the case law myself, let's look at the issue of closed shops, the subject most recently of the Strasbourg judgment in Sorensen and Rasmussen v Denmark, which was referred to expressly in the Laval opinion. In this judgment (Jan. 2006), the Human Rights Court stated that 'where the domestic law of a Contracting State permits the conclusion of closed-shop agreements between unions and employers which run counter to the freedom of choice of the individual inherent in Article 11, the margin of appreciation must be considered reduced'. And 'legislative attempts to eliminate entirely the use of closed-shop agreements in Denmark would appear to reflect the trend which has emerged in the Contracting Parties, namely that such agreements are not an essential means for securing the interests of trade unions and their members and that due weight must be given to the right of individuals to join a union of their own choosing without fear of prejudice to their livelihood. In fact, only a very limited number of Contracting States including Denmark and Iceland continue to permit the conclusion of closed-shop agreements'.

In para. 72 of the judgment, the HR Court refers also to the criticism of the closed-shop in Denmark on two occasions by the European Committee on Social Rights (which supervises application of the Council of Europe's Social Charter). The Court then goes on to rely on the EU's Charter on workers' rights (dating from 1989) and the EU's main Charter of Rights to bolster its criticism of closed-shop agreements.

In any case, it appears clear from the opinion in Laval that the position on this issue if the Charter were binding would be no different from the current position under the general principles of Community law. Moreover, the Charter cannot be used to circumvent the general principles under the Constitutional treaty, since the Constitutional Treaty provides that the general principles will continue to apply independently of the Charter.

To conclude:

a) the Charter refers to a right to strike, but does not expressly require States to implement closed-shops or to ban secondary picketing;
b) in any case, the Charter only applies to Member States when they implement Union law;
c) the EU has no competence to adopt legislation on the closed shop or the right to strike, and has never attempted to exercise such a competence, so Member States' implementation of EU law will rarely if ever touch on such issues;
d) even if the EU did have such a power and tried to use it, Member States retain a general power to regulate the rights in the Charter;
e) the Member States could also rely on the provisions of Article II-112 of the Charter referring to national laws and practices, and to national constitutions which limit the strike right, and to the ECHR, given its criticism of the closed shop, in order to defend such regulation;
f) finally, in any case, conferring binding status upon the EU Charter would not change the current legal position on this issue, as governed by the general principles of EU law.

In light of all the above, and given in particular that only one Member State out of 27 still retains the closed shop (and for a very limited group of employees), and that this Member State has moreover received a kicking from both the European Court of Human Rights and the European Committee on Social Rights, the Daily Mail's argument is -- if I may use a technical legal term -- absolute bollocks.

However, since this argument is widely believed and will be difficult to displace in the British public imagination, I stick to my view (see the 'cherry-picking' post) that in the interests of securing other useful Treaty amendments (ie saving the rest of the quasi-Constitutional Treaty), either the binding effect of the Charter should be dropped or further language on this point should be added. (Remember that dropping the Charter does not sacrifice human rights, since the general principles are applicable anyway).

How about a new Article 51(3): 'This Charter shall not in any way affect national law concerning secondary strikes or closed-shop agreements'.

What Monnet did: a further response to the Grahnlaw blog

2007-06-07T10:46:00.000+01:00

The Grahnlaw blog has a new post, 'What did Monnet do?', responding to some of my recent posts. See:

http://www.grahnlaw.blogspot.com/

My point in asking what Monnet did in this situation was not directed specifically to the position of the UK, since, of course, other Member States are also raising objections to the Constitutional Treaty.

The point -- as I referred to earlier in my 'cherry-picking' post -- is what Monnet did when faced with a veto on a proposed major European treaty. In particular, when the French parliament effectively rejected the European Defence Community Treaty in the 1950s, and therefore in effect also the planned European Political Community Treaty, Monnet did not sit and argue that the EDC and EPC were wonderful treaties that should have been adopted, that French politicians were 'intransigent deserters' (to borrow a phrase from the Grahnlaw blog), and that no more limited approach to European integration was acceptable.

Rather Monnet waited a couple of years for passions to cool and then supported the process of European integration via the economic route (and the atomic energy route), with the idea that further integration would follow after. This obviously proved to be a brillantly successful approach. Again and again in his memoirs (although I admit it is awhile since I read them) Monnet takes a pragmatic approach to European integration -- if a particular route forward is blocked, then think what other route can be taken, even if it is a slower one. In fact the EEC/Euratom Treaties (in their original form) were vastly less ambitious than the EDC/EPC project. But that is probably why European integration has lasted 50 years since -- the EDC/EPC project, if it had been approved, was probably too ambitious to have lasted more than a few years (would De Gaulle have stayed in?) or to have attracted a large number of new members.

My suggestion for the best way forward in my 'cherry-picking' post would preserve far more of the Constitutional Treaty than Monnet sought to preserve of the EDC/EPC in the short (or even medium) term. The UK government's position (or rather, what we know of it) would seem to preserve even more of the Constitutional Treaty. Perhaps Monnet would have argued that the treaty reform negotiations should have started from scratch, to make sure that a treaty reform could command sufficiently broad support across the EU in all Member States to establish a lasting basis for European integration.

Response to the Grahnlaw blog

2007-06-05T18:03:00.000+01:00

The Grahnlaw blog has two recent posts responding to my posts on 'cherry-picking' the Constitutional Treaty, and calling upon Open Europe to 'tell the truth' about it.

See:

The 'cherry-picking' post on the Grahnlaw blog reads (in bold, my reply in italics):

Interestingly, EUlawblogger found that any reasonable compromise was threatened by the intransigence of pro-Constitution states, not the ones reneging on their signature. Is this stance unbiased?

It's not 'unbiased', since I am not working as a judge. As I point out separately, there is no legal obligation to proceed to ratification of the Constitutional Treaty after signing it, so I would not describe the Member States seeking changes to the text as 'reneging on their signature'. It is, in my view, fair to describe the pro-Constitution states as 'intransigent', if they would not accept a single word being removed from the Constitutional Treaty despite the public 'No' votes in France and the Netherlands. Since I wrote my post, though, some of these governments have qualified their position a little.

Pragmatism, including inter-governmental wrangling behind closed doors, looked more enticing to him or her than the transparent work of the Convention.

No, it is surely clear from my posts that I don't support a secretive process of Treaty amendment. However, I do support pragmatism as to the contents of an amended Treaty.

Although EUlawblogger is no abolitionist, the approach is fairly minimalist, in my view, and one or a few revisionist governments are unduly allowed to outweigh a clear majority.

The bottom line is that the Treaty requires the consent of all Member States to enter into force. That won't happen, due to the opposition of the public in two Member States. The best way forward, in my view, is not to count up governments on one side or the other, but to reconnect the EU with the public. I am concerned about ensuring a connection between the EU and the public not just as a supporter of democracy, but also as a (moderate) supporter of European integration, since the integration process simply won't last in the longer term without ensuring a sufficiently wide degree of popular support.

The Treaty of Nice should have been the last of its kind. The Convention was a clear improvement and the subsequent inter-governmental conference only a moderate failure. The real calamity was leaving the European Union hostage to national vetoes, when Europe needs coherence in a less secure world.

While the last IGC was fine from the point of view of public transparency, it was obviously a 'failure' from the point of view of negotiating a treaty that could attract sufficient public support to enter into force.

The EU Charter of Fundamental Rights is broader in scope as well as more systematic and up-to-date than the ECHR. It does not confer new powers on the EU, but it can be seen as the most visible example of a Union which was going to place its citizens at the centre of its actions. Leaving the Charter out of the Treaty sends the wrong (or perhaps realist?) signal the population and it should give cause to wide-spread concern.

My objection is not to the Charter as such. My argument is purely tactical. If the constitutional ship is sinking, something must be thrown overboard for it to stay afloat. The Charter should be sacrificed as a) there is a significant chance that including the Charter would reduce the prospect of any Treaty amendment being agreed or ratified, and thereby seriously damage the process of European integration; and b) human rights are already protected as general principles of EU law, and should be further protected by retaining, in the future quasi-Constitutional Treaty, the provision in the Constitutional Treaty requiring the EU to ratify the ECHR. So it is not a question of trading-off human rights protection to get some Treaty reform (that would be unacceptable).

The problem is that public opinion has been turned against the Charter in some Member States, and although there are excellent arguments to support the Charter, it would take too much political capital at the moment to convince the public otherwise. Best to concentrate on rebuilding public confidence in the EU first, and to consider again the legal effect of the Charter in several years' time.

In a further post, called 'Generosity and Stealth', Grahnlaw wrote as follows:

Back to EUlawblogger, who wrote: there is no justification for trying to bring back the vast bulk of the Constitutional Treaty by stealth, and it would be preferable to focus instead on going forward with only those provisions of the Constitutional Treaty which connect the EU more closely to its citizens.

By stealth? I find the perspective and the choice of words odd. The negotiations on a ‘simplified treaty’ are going to be closely watched all over Europe, in spite of their secretive, inter-governmental character (whereas the Convention was a lot more open to citizens). The end-result, at least, is going to be in the public domain, open to public debate and parliamentary scrutiny.

I used the term 'stealth' because that was the tone of the Open Europe report and the UK press coverage when I wrote my post. In fact I agree with the perception that, up until now, the negotiations have been 'stealthy'. I agree that a final treaty, if one is negotiated, will be in the public domain, and I certainly hope that all drafts during the IGC are public also. But when I wrote my post, the Merkel letter to governments concerning the plans for a quasi-CT was secret (although widely leaked), and this letter could fairly described as cynical -- suggesting only 'presentational' differences in the text of the Constitutional Treaty. The UK government's response to the Merkel letter was (and still is) secret, although it seems it is being selectively leaked by the government itself. Since some of the public opposition to European integration concerns the degree of secrecy of EU business, surely this cloak-and-dagger approach is objectionable both from the point of view of democratic legitimacy and because it endangers the future of the European integration project.

Plus in the UK, the accusation of behaving by 'stealth' has long been levied against the outgoing and (in particular) the incoming Prime Minister (the accusation is partly unjustified, I think, but it has stuck). If the UK government is perceived to be 'sneaking' a quasi-CT past the public, its chances of ratification will be limited. So will the government's chances of re-election -- and if you think this government is too critical of European integration, wait until you see what a Conservative government would be like.

Officially, the UK government has been tight-lipped, but at the same time the “red lines” floated more or less point to wholesale scrapping of a treaty signed by 27 member states, ratified by 18 of them and supported by two more.

I don't think that objections to EU legal personality, the collapse of the pillars, the binding force of the Charter and qualified majority voting on criminal law and policing, while significant, amount to 'wholesale scrapping' of the Treaty.

Why does this blog only mention the UK? What about the French and Dutch citizens who voted no, and the Polish and Czech governments? What are the chances of the Constitutional Treaty as it stands being accepted in a British referendum? What should we do if some Member States' citizens vote No to an EU treaty amendment? Shout at them and paralyse EU business until they change their minds? Throw them out of the EU? Invade them? What did Monnet do in the same situation?

Who, if any, seems to act by stealth? How do these actions connect the EU more closely to its citizens?

Well, both Merkel and the UK government are being stealthy. We can judge at the end of the summit, or perhaps the future Treaty negotiations, whether the outcome is a closer connection between the EU and its citizens.

Part II of the Constitutional Treaty, the Charter of Fundamental Rights of the Union, is dedicated to rights, freedoms and principles aimed at putting the citizens of the Union at the centre of European integration. How would scrapping the Charter connect the European Union more closely to its citizens?How does a Union paralysed by vetoes serve the interests of its citizens?

OK, scrapping the Charter (or rather, leaving it non-binding) would not connect the EU more closely to its citizens. But leaving in a binding Charter would, as I said, seriously risk another failure of Treaty reform and thereby damage the ongoing process of European integration.

For many citizens of the EU, the national veto (where it exists) does bring the EU closer to its citizens as it ensures that national governments and parliaments have the final decisive say over issues deemed sufficiently important for national sovereignty and national interests. If the veto were entirely abolished, could it still be said that Member States were sovereign? Would citizens feel more connected to European integration if the EU effectively replaced its Member States? There is a tension between efficiency and democracy in the EU -- but it can hardly be solved by abolishing national vetoes entirely.

Is there an obligation to ratify the Constitutional Treaty in international law?

2007-06-05T16:38:00.000+01:00

Some interesting comments on my recent posts on the grahnlaw blog:

http://grahnlaw.blogspot.com

I want to respond to a particular point separately first, since it has been repeated again and again by the most devout supporters of the Constitutional Treaty, those who cannot countenance that any provisions of the Treaty could be dropped (let's call them 'CT-devotees' for short).

Commenting on the UK's objections to reviving some provisions of the Constitutional Treaty, he argues:

Wouldn’t it have been more to the point to scrutinise the ‘good faith’ of the British government? Perhaps the Vienna Convention on the Law of Treaties, Article 18 Obligation not to defeat the object and purpose of a treaty prior to its entry into force, could have been a more meaningful point of reference on the obligations of a ‘civilised nation’(?).

I am not a specialist in public international law (neither, I suspect, are many of those CT-devotees who raise this argument), but I have researched the issue in a textbook, Aust's Modern Treaty Law and Practice (Cambridge, 2000). Pages 93-96 cover the issue of a State's 'rights and obligations prior to entry into force' of a treaty.

First of all, let's look at the full text of Article 18. A State is 'obliged to refrain from acts which would defeat the object and purpose of a treaty when' a) 'it has signed the treaty [or performed similar acts], until it shall have made its intention clear not to become a party to the treaty' or b) 'it has expressed its consent to be bound by the treaty, pending the entry into force of that Treaty...'.

Clearly, b) does not apply to any Member State. But look closely at a): the obligation only applies until a State makes its intention clear not to become a party. These words are not mentioned in the grahnlaw blog. The point is crucial since the UK, it seems to me, has made such an intention clear. And certainly the French and Dutch governments have stated such an intention in unambiguous terms, and the Poles and Czechs could be considered to have stated the same position.

According to Aust, 'there is...uncertainty as to whether the provision reflects customary law', an important point since some Member States have not ratified the Vienna Convention (offhand, I don't know which -- the point was discussed ten years back in A-G Jacobs opinion in Racke).

Moreover, 'A state is not required to comply in any general sense with a treaty or its object and purpose before it enters into force. It is sometimes argued that a State which has not yet ratified a treaty must, in accordance with Article 18, nevertheless comply with it, or, at least, do nothing inconsistent with its provisions. The argument is clearly wrong'.

And, 'A question that sometimes...arises is whether a state which has consented to be bound may nonetheless withdraw its consent before the treaty enters into force.....in principle, there would seem to be no reason why it cannot be done given certain circumstances.' In fact, 'No delegate [at the Vienna Conference] challenged the assertion' that there was a 'sovereign right of a State to withdraw from the treaty at any time before it finally became binding'. Moreover, this is supported by the text of Article 68 of the Convention, and accepted by the International Law Commission and by the UN Secretary-General. The Article 18 obligation is substantive, not procedural.

There is nothing in the Aust book which suggests that a party to a treaty is obliged pursuant to Article 18 to attempt ratification of a treaty. Surely not -- since Article 18 explicitly provides for States to indicate that they will not ratify a treaty despite their signature, and implicitly allows for a ratification to be withdrawn, and applies to substantive issues only, how could it be understood to prevent a State deciding not to ratify a Treaty? Even if it did, how could such a rule possibly be considered applicable in the circumstances of the Constitutional Treaty, where two States whose ratification is essential for the Treaty to enter into force have declared that they will not ratify it?

In light of this analysis, it is clear to me that:

a) the UK is not legally bound to present the Constitutional Treaty for ratification to its parliament, or to hold a referendum upon it;
b) the UK can legally indicate at any time that it will not proceed with ratification of the Constitutional Treaty;
c) even if it had ratified the Constitutional Treaty, the UK could legally withdraw its ratification any time before that Treaty entered into force.

It must follow that the UK is legally entitled to argue that changes must be made to the text of the Constitutional Treaty before it would sign up to a new treaty incorporating some of that text.

These considerations apply regardless of whether the other parties to the treaty whose ratification is essential for its entry into force are able to ratify it not -- but surely they apply a fortiori if some of those other States are indeed not able to ratify it.

Also these considerations apply to other Member States as well as the UK, a point which is obviously relevant in practice -- although for some reason the grahnlaw blog is fixated upon the UK's position.

In conclusion, the UK is therefore not violating the principle of good faith in international law, as set out in Article 18 of the Vienna Convention on the law of treaties, by deciding not to proceed with ratification of the Constitutional Treaty, and by arguing that some changes would have to be made to that text before it would sign a quasi-Constitutional Treaty.

Proposal for a quasi-Constitutional Treaty

2007-06-05T11:57:00.000+01:00

A group of 'wise men' has put online a detailed proposal for what I am calling a 'quasi-Constitutional Treaty':

http://www.eui.eu/RSCAS/Research/ACED/Index.shtml

It consists of very nearly the entirety of the Constitutional Treaty, but with a different structure. It is made up of: a) a new Treaty which comprises most of Parts I and IV of the Constitutional Treaty; b) a first Protocol amending the current EC and EU Treaties, which contains the institutional changes which the Constitutional Treaty would have brought about; and c) a second Protocol amending the current EC and EU Treaties, which contains the substantive changes which the Constitutional Treaty would have brought about in certain key areas. The Charter would be referred to as legally binding in a single clause. The current EC and EU Treaties would be merged.

I assume that the authors of the report also support the retention of the substantively 'new' or amended Protocols from the Constitutional Treaty, ie on subsidiarity and national parliaments. (In fact there would also have to be some technical changes to some other existing protocols, and there were some other 'new' Protocols attached to the Constitutional Treaty, for instance on EU ratification of the ECHR).

Remarkably they suggest changing almost nothing of the substance from the Constitutional Treaty, except:

- changing the name of the Treaty, obviously
- again, obviously, changing the structure of the Treaty, including making only a cross-reference to the Charter of Rights, thereby making the quasi-Constitutional Treaty much shorter than the Constitutional Treaty, as it would be an amending Treaty only
- dropping the clause on the 'symbols' of the Union
- dropping Article I-1 of the Constitutional Treaty, and replacing it with with Art. 1 of the current EU Treaty (with a few amendments) instead
- dropping the preamble to the Constitutional Treaty
- dropping three minor clauses (concerning powers over sport, tourism and administrative cooperation) which appear in their Annex 2c.

And that's it! There is a reference in a footnote to changing the name of the foreign minister maybe, but nothing else. This is not going to satisfy those who want significant changes to the substance of the Consitutional Treaty, and in fact the wise men retain even more of the text than the Merkel letter suggests (that letter also suggested dropping the revised names of EU laws and the reference to the primacy of EU law, and changing the name of the Foreign Minister). But to be fair, the wise men admit quite openly that they do not intend to change the substance of the Treaty.

I have already discussed, in my previous post and my 'cherry-picking' post, what approach should be taken to drafting a quasi-Constitutional Treaty. So I will confine myself here to technical comments on this draft.

Overall, the technical standard of this draft is high, but I think there are several points that should be reconsidered if this text is to serve as a starting point for negotiations on the quasi-Constitutional Treaty.

First of all, it is very odd that the Community and Union would be merged into the 'Union' by the wise mens' draft, but that the detailed Treaty would still be called the EC Treaty. If we are going to merge the pillars, then the 'Community' should be completely abolished too. Otherwise the public would understandably be confused.

Next, Article 1 of the wise mens' basic Treaty appears to suggest that the basic Treaty would establish the European Union. But it wouldn't -- the EU was established by the TEU and the wise men merely want to amend the TEU, not to re-establish it the EU. It would be better to leave the current Art. 1 TEU as the first clause of the detailed EC/EU Treaty. Article 1 of the basic Treaty should instead make a short and simple point such as, 'This Treaty sets out the basic institutional framework of the European Union'.

Article 8, which refers to the Constitutional Treaty version of the Charter of Rights, is weird. It makes little sense to cross-refer to a separate text, which is moreover not going to come into force. Politically this also would be a mistake, since it would alarm the diehard opponents of the Constitutional Treaty (then again, nearly everything alarms them). If the point is to incorporate the changes to the preamble and Articles 51 and 52 of the Charter that the Constitutional Treaty would have made, then the wise mens' Treaty should simply include a clause which amends the Charter to this effect.

I don't like the wording of Article 9, as it could be understood to suggest that only EU citizens have rights under the Charter. I know the point is rather to refer to the Charter as a basic Treaty text along with the others, but I have a rule which I'll call 'EU Blogger's Law' (with apologies to 'Murphy's Law'): "Anything about EU law which can be misunderstood, will be". Besides, I don't think there is need to spell out here that EU citizens have rights and duties under the Charter. If the Charter is made legally binding by Article 8, and that Charter contains rights for and duties of citizens (and others), then why make that point again in Article 9? (In fact, I have never been able to find any duties of EU citizens, but that is a side issue).

Articles 64, 65 and 66(3) of the wise mens' basic Treaty are unnecessary, as these provisions already exist in the EC Treaty and could just be left there.

The institutional protocol in fact contains substantive provisions, concerning agriculture, economic and monetary union, state aids, IP, health and cohesion. Plus it has two Article 13s.

I appreciate the intention to make the consequences of the Protocols transparent for citizens by splitting up the protocols and organising them thematically, but it would be very useful to see what a consolidated detailed treaty would look like. This should be made available for consultation during the ratification process -- with some notes to indicate what changes the 'New Treaty' (as the wise men call it) would actually make to the status quo.

The quasi-Constitutional Treaty: state of play

2007-05-31T19:07:00.001+01:00

It seems at present that the German presidency will have very broad, or even unanimous, support at the upcoming summit meeting to call an IGC in the summer/autumn to consider a draft treaty which incorporates much of the failed Constitutional Treaty. Let's call this the 'quasi-Constitutional Treaty' (or 'quasi-CT') for now, until a more official name emerges.

It would be better, as I said in my 'cherry-picking' post, to be far more selective about what bits of the Constitutional Treaty should be retained. But let's leave that issue aside for now, and examine where we are at with the idea of a quasi-CT.

Where are we at with this initiative? It appears that there is broad support for the idea that the quasi-CT will simply amend the existing treaties, rather than take the form of a free-standing treaty which will repeal them. This is perfectly technically possible (in fact, it has of course been the normal approach for decades). It will mean also that the overall text will be far shorter, as most of the lengthy Part III of the Constitutional Treaty need not appear, since much of it constituted the existing EC Treaty provisions. Also (this point has been overlooked) there will be no need to include most of the Protocols to the Constitutional Treaty -- since most of them are pre-existing. Instead there will need to be only a handful of amendments to existing Protocols, and a small number of new Protocols (most or all of these new or amended Protocols carried over from the Constitutional Treaty text).

The key question is going to be which bits of the Constititutional Treaty will be kept in the quasi-CT and which bits will get chucked.

The bits which may be chucked or amended are as follows, according to press stories:

- the 'symbols' of the EU like the flag and anthem (broad support to chuck), including it seems the primacy of EU law (which will continue to exist anyway);

- the EU's Charter of Fundamental Rights (it seems unlikely that the whole text will form part of the quasi-CT, in the way that it formed Part II of the Constitutional Treaty; the great controversy will be whether to mention the Charter at all, and if so, how to mention it);

- issues of subsidiarity, competence and the role of national parliaments: it seems likely that there will be stronger language on these points, although the detail would be important and would have to be carefully negotiated and scrutinised;

- the change in voting weights re the Council's qualified majority voting, where Poland and the Czech Republic have great concerns;

- the extension of qualified majority voting (QMV) to new areas; it seems that the main area concerned is policing and criminal law, where the UK may be offered an opt-out to address its concerns (I suspect this might also be an important factor in ensuring that the quasi-CT gets a Yes vote in an Irish referendum) ; press reports have not mentioned any other areas of concern, although it appears that the Poles, Czechs and Dutch have been making general noises opposing extension of QMV;

- the legal personality of the EU, opposed by the UK; and

- the collapse of the pillar structure, mainly opposed by the UK.

Analysis

The Charter

The first particularly interesting legal issue is the Charter. Of course, this exists already, as do the binding general principles of EU law. And no-one appears to want to remove the provisions of the Constitutional Treaty which would provide for EU ratification of the ECHR (although it the EU had no legal personality, how could it accede to the ECHR? Unless it had legal personality for this purpose only).

Since the Court of Justice has stated that the existing Charter is simply a restatement of the existing general principles, and the Charter contains many provisions (strengthened by the Constitutional Treaty) which would limit its impact on national law, this is, legally speaking, a non-issue. But since the public perception is that the Charter would entail significant changes in the content and process of protecting human rights within the EU, politically the issue is very important.

Also, it should not be forgotten that a failure to refer to the Charter at all, or a brief reference making the Charter legally binding (or leaving its legal force ambiguous) would mean that those aforementioned amendments to Articles 51 and 52 and the preamble of the Charter (which the UK fought for) would not be adopted. Something of a catch-22 for the UK, then.

The idea that Member States could in some way opt out of the Charter is absurd, as its main function is to govern the legality and interpretation of EU law, and its implementation in the Member States. An opt-out would strike at the fundamental nature of the EU legal system and should not be tolerated. Far better to ignore the Charter altogether, leaving it non-binding -- or alternative to add some more existing text to it addressing areas of concern (clarifying, for instance, that it would not entail changes to national trade union law).

QMV

For practical reasons, the issue of the extension of QMV can only be solved by opt-outs where it concerns substantive policy areas. The use of opt-outs is a tried and tested approach to solving objections to the expansion of EC/EU competence at IGCs (particularly Maastricht and Amsterdam) and so it would be no surprise or shock to see this approach applied again in the quasi-CT. It would be harder to apply opt-outs to new substantive areas such as energy and public services, which overlap with existing powers of the EC/EU.

Legal personality of the EU

The EC already has a legal personality (Art. 210 EC) and has ratified many hundreds of treaties within the scope of the first pillar -- including the Kyoto Protocol (an example referred to by European Voice as a treaty which the EU might sign). The EU does not have an express legal personality but in fact many treaties have been signed in the name of the EU since 2001 and it is widely understood that the EU has an implied legal personality -- which it would continue to have even in the absence of a Treaty provision giving it express legal personality.

So this is another non-issue. But again, it has obtained political importance and so needs to be addressed. It would be particularly odd if the pillars were merged and the UK insisted still on this point -- because what would then happen to the Community's legal personality in the merged Union structure? So these two points are necessarily connected.

It would be better, if the UK has some specific concerns about what a legal personality for the EU might mean, to address them directly -- by providing for more unanimous voting or shared competence over foreign policy or criminal law treaties, limiting the scope of the EU's treaty-making power in some other way, or dropping the provisions on the role of the EU Foreign Minister (whatever the final name of this post) in the UN Security Council, which particularly appears to concern the UK.

Merging the pillars

It would be entirely possible to amend the EU Treaty provisions on the second and third pillars in order to introduce all the changes that would apply to these areas brought about by the Constitutional Treaty. Or alternatively, it would be possible to merge the three pillars but without making any change to the current foreign policy or criminal law provisions whatsoever.

So it follows that the abolition of the pillars is just another 'symbolic' issue. Since abolishing the pillars would be desirable in the interest of clarity and transparency, even if no substantive changes were made to the relevant rules, the UK should again focus instead on addressing any specific substantive concerns it may have -- for instance, making it clear that foreign policy measures have no direct effect, clarifying the nature of the EU's foreign policy competence and the capacity of Member States to continue independent foreign policies where the Union has not acted, making sure that the jurisdiction of the Corut of Justice over foreign policy is more clearly excluded, and that (if this is really believed to be politically necessary) that the UK can continue to opt out of the Court's jurisdiction over references from national courts as regards criminal law and policing.

Structure of the Treaty

A final point is the question of whether Part I of the Constitutional Treaty should be retained as one part of the quasi-CT, perhaps as a separate Treaty (ideally as a new Treaty co-existing alongside a merged EC/EU Treaty, rather than as a third treaty, or rather a fourth, taking into account the Euratom Treaty!). This would be fine legally -- although it would require more consequential amendments to be made to the existing EU/EC Treaties, including surely another renumbering (don't all cheer in support of this idea!).

Also the idea that the separate quasi-Constitutional Treaty could be ratified by all Member States, while the amendments to the existing Treaties need not be, is a non-starter -- there are too many links between the two, and non-participation by some Member States in the entirety of the amendments to the existing Treaties (as distinct from opt-outs from some substantive provisions) would not be feasible. Presumably this separate Treaty would also incorporate most of Part IV of the Constitutional Treaty (the final provisions).

A plus point is that Part I of the Constitutional Treaty, while not the finest example of legal drafting in history, would at least be much easier to understand and teach than the status quo.

The main concern would I think be political -- retaining Part I of the Constitutional Treaty in this form would make it blindingly obvious that the Constitutional Treaty is being largely retained. But this will be blindingly obvious to everyone anyway. The best way forward would be to retain Part I of the Constitutional Treaty (taking account of changes like the removal of the EU symbols, but including also much of Part IV) as a separate Treaty or part of a combined Treaty, while explaining to the public the considerable amendments which will likely otherwise be made to the text of the Constitutional Treaty.

A blocking minority on the Working time Directive

2007-05-08T18:24:00.000+01:00

A short return to the question of whether the UK could maintain its blocking minority on the working time directive under the Constitutional Treaty. According to the BBC news website report on the Council of 2 June 2005, online at: http://news.bbc.co.uk/1/hi/business/4602743.stm

'Mr Johnson [the UK minister] was backed at the meeting in Luxembourg [blocking a working time deal] by his fellow ministers from Germany, Poland, Austria, Hungary, Malta, Cyprus and others.'

That means that seven Member States with 40.7% of the EU population are in the UK blocking minority (even assuming that Romania, Bulgaria and the unnamed 'others' reported to be on the UK's side in fact all vote on the opposite side). This is easily a blocking minority under the Constitutional Treaty, constituted by at least four Member States with at least 35% of the population. Indeed, the blocking minority under the Constitutional Treaty could constitute the UK, Germany, Poland and ANY other Member State, including Malta -- whereas at the moment a minority made up of the UK, Germany, Poland and Malta would be outvoted by one vote (only 90 votes of the 91 needed to block a measure; plus this group would have only 36.8% of the population, short of the 38% needed to block a measure under the current voting criterion relating to population).

The UK would therefore find it EASIER to block this proposal under the Constitutional Treaty rules, even if it loses some smaller allies. The necessity to point this out repeatedly is becoming rather tiring...

regulating sport

2007-05-08T13:58:00.000+01:00

The Open Europe website states that the UK sports minister 'speaks of his desire to bring in new regulations that would allow the EU to control football throughout Europe' in an FT interview.

Luckily they provide a link to the interview, so we can read what the article actually says about what the sports minister believes: 'The European Commission will soon publish a white paper setting out a new framework for sport, and ministers, led by Mr Caborn, are pushing to include measures that could change the way sport is governed across the Continent. They want the Commission to give sport an exemption from European Union rules that encourage free markets and open competition, a logical and concrete outcome, they say, of the European Council's Nice declaration of 2000 that acknowledged the specific characteristics of sport and its social role in Europe.' And, 'He claims the support of the International Olympic Committee, Uefa and Fifa, football's world governing body, and says sports bodies need to be free to manage their affairs without the impact of court decisions such as the Commission's Bosman ruling on the free movement of players.' [yes, it was of course the Court, not the Commission, that decided the Bosman case]

So, err, far from having the EU 'control football', the minister actually wants the Commission and the Court of Justice to be excluded from a role in professional sports, and leave it to international sports bodies to regulate the sport. Not that this is a good idea (between the Commission and those international sports bodies, who would win a competition for the most corruption and unaccountability?), but let's be accurate about what the minister actually believes!

The Constitutional Treaty: Open Europe, please tell the truth

2007-05-08T10:53:00.000+01:00

As I observed in my last blog, there is no justification for trying to bring back the vast bulk of the Constitutional Treaty by stealth, and it would be preferable to focus instead on going forward with only those provisions of the Constitutional Treaty which connect the EU more closely to its citizens.

But it also objectionable to produce misleading or inaccurate analyses of the current position, which are clearly particularly designed to provide grist for even more inaccurate tabloid press stories. A prime example is the recent 'research' report by Open Europe on 'a New Treaty', online at:

http://www.openeurope.org.uk/research/newtreaty.pdf

Let's look at the particular issues raised by this report in turn. First of all, it criticises the idea of a new full-time permanent head of the European Council, the EU summit meetings. I agree that this idea is unnecessary and that the holder of the role would likely attempt to accrue power and influence. But the fact is that the role is as nowhere near as 'dangerous' as the Open Europe report suggests.

The basic point is: what powers would the 'President' have? No powers to propose legislation or to veto it. The power to run the Council Secretariat is in fact conferred by the Constitutional Treaty upon the Secretary-General of the Council (Article III-344(2)), not the European Council President. In any event, what power does the Council Secretariat have? Only the power to organise the functioning of the Council (Art. III-344(2)), not the power to take or propose measures. Implementing measures would be generally adopted by Member States or the Commission (Art. I-37(1)); even in the cases where they would be adopted by the Council, this would entail a vote of Member States' ministers, not of the President of the European Council or the Council Secretariat. The European Council President might want to expand his/her powers -- but it would take a further Treaty amendment, unanimously approved by all Member States' governments and parliaments, to do it.

The suggestion that the President would 'fundamentally change the nature of the legislative process' and that all measures would in future be agreed between the Commission and the European Council President is just absurd. The voting rules for the adoption of EU measures in the Constitutional Treaty are discussed later on in the Open Europe report. They require a qualified majority or unanimity of the Council of Ministers and usually the consent or joint legislative approval of the European Parliament. As I pointed out already, there is no voting power for the European President at all as regards EU legislation. And Member States' leaders in the European Council usually vote by consensus (Article I-21(4)). So would Open Europe have us believe that Member States' ministers and leaders, and the European Parliament, would under the Constitutional Treaty not bother to exercise their powers, and instead leave it to the President, even though he or she would have no decision-making power over legislation, to make decisions for them?

In fact, the Open Europe report goes on to criticise the Constitutional Treaty's decision-making rules for the Council. This line of argument makes no sense if, as the report initially suggests, the European Council President would simply supplant the Council's role in decision-making. It is impossible for both of of these criticisms to be valid.

The report states that Member States would lose the power to influence the Council's agenda. But since, as the report admits, most Councils (in fact, 8 out of 9) would still be chaired by the rotating Presidency (albeit of 3 Member States over 18 months, rather than 1 over 6 months), this is not a plausible argument.

Yes, as the report points out, some people think that someday the President should be directly elected. This would of course require a Treaty amendment, agreed and ratified unanimously by national governments and parliaments. So the Constitutional Treaty itself would in no way provide for this. But even if it did, so what? Open Europe is terribly concerned about democracy, and indeed criticises the Presidency for being an 'unelected' post -- so why not elect him or her? It seems that it would be wrong for the President to be unelected, and wrong for him or her to be elected too.

Also, it is true that some people support the idea that the President should also be the President of the Commission, and that the Constitutional Treaty does not directly rule this out. However, the post of Commission President and European Council President are rather different (in particular as regards the requirement for Commission Presidents to be independent on the one hand, and the accountability of the European Council President to EU leaders on the other). So the better view is that a combination of the roles is indirectly ruled out. In any case, the Commission President's individual powers are not that great (Art. I-27(3)), so combining them with the European Council President's powers would be no big deal.

Again the Open Europe report tries to have it both ways -- the role of the President is criticised as an additional layer of bureaucracy, et al, but the idea of simplifying the system by combining the Presidency of the European Council and the Commission is also rejected.

The Foreign Minister

Next, the Foreign Minister. Is this role 'powerful', as the report states? Would it 'represent a considerable transfer of power over foreign policy from the Member State to the EU'? Er, no. The Foreign Minister would be appointed by a qualified majority of Member States, and could be removed by the same majority. He or she would be 'conducting' the EU's foreign policy, which sounds powerful -- but the Treaty goes on to say that he or she 'shall carry out [the policy] as mandated by the Council'. So national foreign ministers, not the EU foreign minister, decide on the policy -- the EU minister simply carries out national wishes. (This demonstrates a good reason for changing the title of the EU 'foreign minister', as it clearly runs the risk of confusing people as to the extent of the minister's powers).

Therefore the crucial question is how EU foreign policy would be decided by national ministers. Yes, the Constitutional Treaty would expand the current cases where the EU votes by a qualified majority, but it would retain the current 'emergency brake' for such decisions -- ie a single Member State could block a decision, and require a vote by EU leaders by unanimity if the deadlock could not be broken (Article III-300(2)). Moreover, all decisions with 'security and defence' implications would have to be unanimous (Article III-3oo(4)). These vital safeguards are simply not mentioned in the Open Europe report.

The Foreign Minister's power to 'initiate foreign policy' is simply a power to make proposals -- which would have to be approved by the Member States by unanimity or subject to the safeguard of the emergency brake. The role of the Foreign Minister would not suddenly give the Commission a role in EU foreign policy -- the current EU Treaty already provides that the Commission is 'fully associated' with the policy (Art. 27 TEU). In fact, the Constitutional Treaty clearly provides that the Foreign Minister would not be subject to normal Commission rules when exercising foreign policy powers (Art I-28(4)).

True, the Foreign Minister would speak on the EU's behalf in conferences and in political dialogue, and at the Security Council, but this would take place only when EU foreign policy had already been agreed. Member States therefore retain the safeguard to conduct individual foreign policies simply by using their veto or pulling the emergency brake in order to prevent an EU policy they disagree with from being adopted. Where they are able to agree on a policy, what is wrong with trying to ensure that the policy is as influential as possible, by means of having a single high-profile representative argue for the policy on behalf of all 27 Member States which have agreed to it?

The Open Europe report is concerned by the possibility of the conflict between the Foreign Minister and national foreign policies. Let's leave aside the fact that Member States already diverge from EU foreign policy positions, so this would be nothing new. The problem with Open Europe's report is that, having criticised the idea of the Foreign Minister for reducing the scope for national foreign policies, the report then criticises the continued risk of divergence. They say it is not clear what would happen in the event that Member States and the EU foreign minister took a different line. The answer is nothing -- as the Foreign Minister has no legal or political mechanism to ensure that Member States stick to the EU foreign policy positions that they have agreed in the Council. Not even Open Europe suggests that the Foreign Minister will lead the Council Secretariat and the EU diplomatic service in an invasion of the recalcitrant Member State.

So, even if the UK (or any other Member State), having agreed not to exercise our veto or 'emergency brake' and to support a common EU policy in the Council, then decided that it did not want to comply with the commitment we had made after all, then there would be nothing that anyone can do to stop us. National power over foreign policy would therefore not be fundamentally affected.

As for majority voting on foreign policy, I have already pointed out that the emergency brake would apply to any proposals made by the Foreign Minister (in any case, this procedure would only apply following a request to the Foreign Minister by the European Council, ie EU leaders, who would be acting by consensus). Yes, there would also be QMV on funding foreign policy measures -- but this would not 'dictate what action Member States took', since the decision on the policy itself is a separate matter from decisions on the budget. As for the EU's external action service, some might want it to issue consulates and replace national embassies one day, but the Constitutional Treaty does not provide for this. And the creation of rules concerning such a service is obviously, again, a different matter from decision-making on foreign policy, as is the rules concerning the protection of EU citizens by the consulates of other Member States, which the current Treaties already provide for in principle. While Article III-127 of the Constitutional Treaty confers power to adopt rules on this right, it does not confer power relating to 'consular issues' generally, as the Open Europe report claims.

Moving on to qualified majority voting, this has been an issue in my earlier posts, when I pointed out that Open Europe was using the figures dating from before the most recent enlargement -- they are still doing this (the current figures are, again, 255 out of 345 votes to pass a measure). Again, as discussed in reponse to their comments on my post, there is a current additional voting threshold that Member States representing 62% of the population must support a measure -- the Constitutional Treaty would raise this to 65%, but counteract this by requiring that four Member States must oppose a measure to block it. In fact, it has been impossible since the 2004 enlargement for any three Member States to block a proposed measure -- so a four-Member State minimum would be nothing new.

The LSE paper referred to appears (to this non-mathematician) to demonstrate its point convincingly that most Member States would find it harder to participate in a blocking minority, although as I have pointed out before the mathematics of this may be politically naive, in that some blocking minorities are inherently more likely than others to be formed in practice for political reasons, even if the mathematics suggest an equal probability of any conceivable blocking minority forming.

The problem is with the reference to the Baldwin/Widgren paper. This paper, if you read it, does indeed conclude that the EU's decision-making capacity will increase as compared to the Nice Treaty's rules -- but it makes this comparison on the assumption that the Nice Treaty rules will 'cripple' the EU's ability to act. But, as other research referred to in the Open Europe report points out, and as any observer of EU developments would acknowledge, the Nice Treaty has not crippled the EU's ability to act. So the comparison made in the Baldwin/Widgren paper is meaningless and invalid. And the loopy statistic of a 3.6% or 12.9% chance of success of a legislative proposal is so far removed from actual political reality that one might wonder whether any of this mathematical analysis is at all practically useful.

One very striking point in the Baldwin/Widgren paper is that it concludes that the biggest 4 nations would benefit from the Constitutional Treaty, and indeed that the UK's ability to block measures would increase, not decrease (figure 5, on page 5 of the paper). While this conclusion may be doubted, due to the obvious flaw in the paper's empirical assertions as regards voting under the Nice Treaty, the broader point is that the Open Europe report never refers to it. The report instead refers to the conclusion in the other paper, that the UK's blocking power will be reduced.

So evidence is only quoted if it backs Open Europe's political argument; contrary evidence is not quoted; and evidence based on wrong assumptions (which have moreover been contradicted by other research relied upon in the report) is quoted (indeed, displayed in a large graph) without any qualification. On these grounds alone, this Open Europe 'research' paper would probably get a failing grade at any academic institution: as researchers, the Open Europe staff make great politicians. It must simply be concluded that the Open Europe report uses academic research in a selective and misleading fashion.

Council votes in practice

Having reached conclusions about QMV in Council after mangling the academic evidence, the Open Europe report then makes suggestions about which proposed legislation could 'easily' be passed under the Constitutional Treaty. The report inaccurately states that there is no voting record in the Council; in fact the Council rules of procedure have provided for years that a voting record must be kept when legislation is adopted. (The absence of a record of voting when legislation is blocked is, I agree, unhelpful -- although probably votes are not held where a blocking minority exists. Nor would I defend Council secrecy).

As for the working time directive, I have already pointed out on this blog (in a post to which Open Europe replied) that the UK-led blocking minority could still stop this legislation under the Constitutional Treaty -- and that in fact it is the French who had to scrabble together a blocking minority last time there was a vote. But the report simply falsely claims that the 'UK will need to find more allies somehow'.

Next, powers for foreign police on UK soil. Errr...this subject is currently governed by unanimity (Art. 32 TEU), and indeed it still would be under the Constitutional Treaty (Art. III-277). I think I had pointed this one out as well.

The temporary work directive -- this has been off the Council agenda for several years.

A green card for migrants -- this is governed by the different issue of the removal of the veto, not altering the balance of QMV. But in any case the UK has an opt-out from legal migration law anyway, under the current Treaty and the Constitutional Treaty -- though this is NEVER mentioned in the Open Europe report.

The examples relating to financial services and congestion charging are just vague. In fact, the report does not identify in detail a single case of a UK-led blocking minority that could no longer be formed in future.

More majority voting

Yes, the Constitutional Treaty would have expanded QMV over criminal law issues, and expanded the role of the EP and the Court of Justice. These bodies do have a role over criminal law at present, cf last Thursday's judgment on the validity of the European arrest warrant. (God, I am tired of reading that they don't. A decade has passed since the Treaty of Amsterdam was agreed -- how many more decades have to pass before people read about it before they write about it?).

The report mentions that the Constitutional Treaty included an 'emergency brake' by which Member States could have blocked much criminal legislation. However, it gets the detail of that rule wrong (the European Council would have to have voted by consensus to end a deadlock, since that is the normal voting rule for them unless the Constitutional Treaty provides otherwise -- cf Art. I-21(4)). Then it gives a list of EU criminal law measures that could be adopted by QMV -- forgetting to mention that the emergency brake would be applicable to these. In fact it does not get its facts straight regarding the Framework Decision on criminal suspects -- the idea of a letter of rights was dropped from this proposal long ago, and the 'current' proposal in fact simply lists rights already applicable by virtue of the ECHR. So national legal systems could hardly be transformed by a reiteration of existing rights. And how would handing out a letter to suspects in custody, which just lists their rights, have transformed the common law anyway?

A reader of the Open Europe report would conclude that the Lords Select Committee had slammed this proposal. In fact, while the committee had some legal base concerns (which is what the quote in the Open Europe report refers to), it concluded generally that:

200. Measures based on the principle of mutual recognition in criminal matters adopted to date have placed great strain on the confidence and trust of Member States in each other's criminal justice systems. This underlines the importance of having minimum standards that are actually observed in Member States. Such standards should be put in place as quickly as possible both to improve public perception of criminal procedures in other Member States and to enhance mutual trust between the authorities in Member States responsible for executing mutual recognition requests.

The UK did not 'back down' in its objections to QMV for criminal procedural law -- it obtained the emergency brake safeguard.

Equally any proposal on the presumption of innocence -- if one is made -- would be subject to the emergency brake under the Constitutional Treaty. So in what sense could a Member State be 'forced to accept' it?

Next, immigration, where '[t]he UK government gave up the country's veto over asylum and illegal immigration' in 2004. Except -- argggh -- the UK DOES NOT HAVE A VETO on this issue! And we never did. (I REALLY have got tired of this inaccuracy too). What we have instead is an opt-out -- which has in fact been used as regards nearly every legal migration measure. If we opt in to negotiations then we run the risk of being outvoted -- but we are not obliged to opt in in any way whatsoever. Even when other Member States had a veto, we never did -- our choice was either to opt out, or, if we opted in to discussions, our objections would just have meant that other Member States could eventually go ahead without us to adopt a measure. Also, the veto on most asylum measures was dropped not in Dec. 2004, but as a result of the Nice Treaty, when legislation was adopted in different areas between 2003 to 2005 (see Art. 67(5) EC).

The same point would apply if the issue of legal immigration were subject to QMV; and the Constitutional Treaty keeps our opt-out arrangements intact.

The technical annex

Yes, the current Treaty already provides for a cut in the number of Commissioners to fewer than the number of Member States (a point often ignored in debates). But this must happen automatically from 1 Nov. 2009, according to the current rules. The report is wrong, though, in stating that this could be set out in an enlargement Treaty -- as the protocol on the EU institutions instead requires the Council to agree this by means of a separate decision. In any case, even it the report's interpretation were correct, the moment has passed -- the accession Treaties have been ratified and are in force already without altering the number of Commissioners.

As for the Council voting weights, it is true that the current Treaties require an adjustment in Council voting weights to take account of enlargement -- but it is clear from the texts quoted that this is a purely automatic adjustment, ie there is no power for the Council to make 'extensive' changes to the rules, or indeed any changes to the rules at all. Purely automatic changes are therefore inserted into an accession treaty -- but again it is clear from the text that all that an accession treaty can do is to use the threshold for Council voting agreed at the time of the Nice Treaty. There is therefore no way to alter Council voting weights, apart from technical adjustments for enlargement, other than by Treaty amendment.

Conclusions

It is true, as Open Europe notes in its reports, that many of the supporters of the Constitutional Treaty or some alternative text are not at all honest in their dealings. But how honest is Open Europe? A report which miscontrues research, fails to mention simple points like the emergency brake, and contains detailed factual or legal errors should not be taken into account in the debate. But the tabloid stories based on this report will be.

And that is the problem with a referendum. There are many reasons why people could validly vote against the Constitutional Treaty or any replacement treaty, but their understanding of the Treaty will be based on inaccurate and misleading reports like this one, or tabloid versions of it. On the YES side, secrecy and deceit, and on the NO side lies and distortions.

I think the way forward is a simpler set of amendments with explanatory notes that can be understood by the public -- so that no-one is fooled either by the cunning stratagems of the pro-Europeans or the hysterical lies of the Europhobes. But will anyone read the notes, or believe them? It might at least be a step forward, but the liars wouldn't stop lying.

I would like to trust the people -- but I can't trust the people who will be informing the people.

Picking the cherries

2007-05-01T17:17:00.000+01:00

Which parts of the EU's Constitutional Treaty should be retained, if any? And how should the EU go about deciding on this?

These two closely linked questions are likely to be the most contested issue this year in EU law or politics. And if a deal on a new Treaty is reached, they will be contested for more years to come.

The first question is how to go about deciding on this issue. Here Angela Merkel has decided to provide for us a demonstration of how it should NOT be done. Or at least, that is the only plausible explanation for her tactics. Did she really imagine that her secret letter, suggesting a handful of minor changes to the Treaty for the sake of 'presentation', would not be made public? Even assuming that it would not be made public, did she really assume that no-one would notice that a new IGC convened with such a mandate, and then the new Treaty agreed on such a basis, would consist of the old Constitutional Treaty except for a handful of minor changes for the sake presentation?

Europhobes will probably say that any new Treaty, no matter what its content, is the same as the old Constitutional Treaty, which just a handful of presentational changes. Why make it easier for them by actually taking this approach?

The Eurosceptical press and websites are, despite their misunderstanding (to put it kindly) of some of the content of the Constitutional Treaty, quite right to object to the approach outlined in the Merkel letter, which smacks of cynicism and deceit.

A vaguely more plausible explanation for the Merkel letter saga would be that it constitutes an opportunity for the anti-Constitution Member States to shoot the suggestions down, and so to prove their credentials to a domestic audience. But such a tactic risks rather increasing the irritation and suspicion of members of the public and parliamentarians who are critical of the Constitutional Treaty, as well as those who are not.

Anyway, if that is the script, Tony Blair at least is not playing his role. The government has not systematically rejected the approach of the Merkel letter. But it has not approved it either. The government's detailed position does not seem to have been set out in public -- Blair has expressly refused to negotiate in public. So while the Eurosceptic press is wrong to say that Blair has signed up to the Merkel approach, it is understandable that people are suspicious when they don't know what the government's position actually is. The government is saying it rejects the idea of an EU legal personality, one point mentioned in the Merkel letter -- but what else would it reject, if anything?

And so for the substance -- should anything be saved from the Constitutional Treaty at all? Or, from a different angle, should any attempt to keep anything from the Constitutional Treaty be subject to a referendum, at least in those states which held one, or promised to hold one, on the original text?

The 'No' votes in France and the Netherlands obviously have to be respected. Of course, so do the public and parliamentary 'yes' votes in a larger number of Member States. But there is no escaping the fact that approval by all Member States is necessary for the Constitutional Treaty to take effect, and furthermore the defeat of the Constitutional Treaty in the UK and probably at least one more Member State was looking likely by summer 2005, according to the opinion polls. Any way forward therefore has to be a compromise between those Member States that accepted 100% of the Constitutional Treaty, and those who could or probably would not.

Could it be said that that the two 'No' votes should mean that it is illegitimate to negotiate any new treaty containing any part of the Constitutional Treaty? No. The post-referendum research showed that French and Dutch voters had a number of reasons for voting 'no'. Some were unconnected to the EU, some were about the EU in general (in particular enlargement), some concerned misconceptions about the Constitutional Treaty, some concerned the provisions of the Constitutional Treaty that just repeat some provisions of the existing Treaties (and some of these were in turn based on misconceptions of the current Treaties), and some were genuinely about the Constitutional Treaty. Some 'No' votes were surely cast for a combination of those reasons.

But even among the voters voting 'No' solely because of the specific provisions of the Constitutional Treaty (assuming that they had not been misled about its provisions), who were surely a minority of the overall 'No' vote, how many were voting against every 'new' provision of the Treaty (ie, as distinct from the parts of the Treaty that reproduce the current Treaties)?

There cannot be many 'No' votes which were cast on such a basis. So bringing back parts of the Constitutional Treaty cannot be seen as ignoring the public will. Of course, the greater the proportion of the Constitutional Treaty which is brought back, the greater will be the perception that the public will is being ignored. And there will be truth to that, too. If 95% of the Treaty is brought back, it is likely that this 95% will include a large number of provisions that many of the 'No' voters sought to vote down (to the extent that the 'No' voters were actually voting against the specific provisions of the Constitutional Treaty. Even if they weren't, a large number will be peeved by such an approach).

If only 50% of the Treaty is brought back, then it will surely contain rather fewer provisions which a large number of 'No' voters had sought to vote down. Of course, this depends on the selection of provisions which are retained. Another factor is the question of whether any new provisions are added, or whether parts of the Constitutional Treaty are kept but amended (ie changing the provisions on subsidiarity to strengthen the powers of national parliaments).

So what is the right way forward? The Constitutional Treaty contained some useful provisions to strengthen the democratic legitimacy of the EU and to ensure more effective functioning of the political institutions, as well as to enhance the effectiveness of the Court of Justice, including the removal of unjustified restrictions on its jurisdiction over the area of 'freedom, security and justice'. It also contained some useful provisions on human rights, although unfortunately the provisions, scope and effect of the EU's Charter of Rights have been widely misunderstood. There were also a number of extensions of qualified majority voting (many of which were limited by 'emergency brakes' or opt-outs) and some new or revised EU powers, some of which were pointless (what would the powers over energy really add to the EU's ability to regulate energy by means of its current internal market and environment powers, and the Euratom Treaty? Any does the EU need a power to regulate public services, since it can already liberalise them and regulate them in the process by means of its internal market and competition powers?).

It would be better, in light of public disaffection with and alienation from the EU, to focus on the provisions of the Treaty which would most reconnect the EU with its population, such as the provisions on subsidiarity and transparency, which should be strengthened, and avoiding as much as possible new powers or extensions of qualified majority voting regarding substantive EU powers (ie powers to adopt legislation) unless very clear and airtight limits and safeguards are provided for. On the other hand extensions of QMV relating to the institutional functioning of the EU (ie QMV for the creation of new EU lower courts or the adoption of a code of administrative procedure for EU institutions) do not impose any further on national policies.

The various provisions regarding the Court of Justice should be retained in order to ensure the effective review of and uniform interpretation of EU law. On the grounds of increasing democratic control at EU level, so should the provisions extending co-decision, budget and external relations powers of the EP, except where this would also mean abolishing unanimity for Member States over the adoption of legislation.

As for the institutions, the Commission seems to function effectively enough with 27 members -- or at least the gain in efficiency from an 18-member Commission would be outweighed by the loss of public legitimacy that would follow. But the provisions on EP involvement in the appointment of the Commission President should be retained and strengthened. The political risks in retaining the revised system for Council voting are probably not worth the bother. It would be sufficient to strengthen the existing post of the foreign policy high representative modestly for now. There is no point to the post of 'President' of the European Council, whatever the post is called, as long as this body meets only 3 or 4 times a year. Is the rotating Council, and European Council, Presidency really as ineffective as is made out? What decisions are not being made, and what legislation is not being adopted, or significantly delayed, as a result of this system?

In light of widespread misunderstanding about its effect and scope, the EU Charter of Rights should either be left out of the Treaty altogether or subject to further amendment to address public concerns, ie to specify that nothing in the Charter shall affect national law on abortion or strikes. But to strengthen external review of the EU's actions, the provision for EU accession to the ECHR should be left in.

A further IGC could be scheduled for, say, 2012, to see if further changes might be necessary, including the remaining provisions of the Constitutional Treaty which were left out.

Such a treaty could enhance democratic and judicial control of the EU and limit the extension of its powers, and of majority voting, to the minimum which is strictly justified, while sufficiently improving the functioning of its institutions.

Finally, it should be observed that the possibility of any reasonable compromise on this issue is being threatened by the intransigence of the pro-Constitution states, such as Spain, insisting on 100% of the Constitutional Treaty or even more.

What if you felt you were worth another 10,000 pounds in salary, and there was no realistic prospect of finding another employer or starting another career? (By analogy there is no alternative process of European integration which could very easily be set up). Would you insist that your current employer pay you the full 10,000, or else you would quit? Would you refuse to accept 1,000, or 3,000, or even 5,000 or 8,000, and the promise of a further review later? A rational employee under these circumstances would accept what he or she could get.

And was European integration ever pushed forward by these methods? Did Monnet say 'give me the European Defence Community, or the European Political Community, or British membership, or nothing else'? No -- the cleverest supporters of European integration have always been pragmatists, searching for the windows of opportunity which were politically realistic to pursue, as far as they could be pursued, at any given moment. (a badly mixed metaphor, but never mind). If that strategy had been pursued, we would still be waiting for the original Common Market to be formed.

The alternative federalist approach of a constituent assembly drafting a European constitution has now been (essentially) tried -- and has failed.

Eurosceptics should get down on their knees and thank God that we have Zapatero instead of Monnet as the high priest of European integration today -- unless, of course, Zapatero is simply playing a tactical game...

Data retention: a reply to Bignami's paper

2007-05-01T12:51:00.000+01:00

Another EU law blog [http://eulaw.typepad.com/eulawblog/] has a link to an upcoming article by Francesca Bignami, on the EC data retention directive, which requires Member States to require telecom companies to retain data on telecom users (including Internet users) for at least 6 months for the use of law enforcement authorities.

The article can be found online at:

http://eprints.law.duke.edu/archive/00001602/01/7_Chi._J.__Int%27l_L._(2007).pdf

(this link works, whereas the link from the other blog doesn't, at the moment)

The Directive can be found online at:

http://eur-lex.europa.eu/LexUriServ/site/en/oj/2006/l_105/l_10520060413en00540063.pdf

The author asks the key question (on p. 16 of the online version of her article), 'Is privacy adequately protected in the Data Retention Directive'?

Her answer is 'Basically...Yes'.

My answer is simply, 'No'.

Let's have a look at the arguments supporting the author's conclusion. The two main arguments are the type of law used to adopt the Directive and the proportionality of the measure (p. 16). As to the type of law, the author argues that taken together, the Directive, national laws on police access to telecom data and 'once agreement is reached in the Council', an EU Framework Decision on access to police data are sufficient. But no agreement has been reached in the Council on the latter measure -- and the European Data Protection Supervisor (EDPS) has just released his third critical report on the progress of negotiations. And there is no proof that national laws all fully meet the standards of Article 8 ECHR as regards access to police data. Maybe they do, maybe they don't. Probably some do and some don't. Member States have certainly lost quite a few cases on this point over the years in the European Court of Human Rights.

As for proportionality, the author states that 'a maximum retention period of two years is reasonable' (p 18). Perhaps this is true -- she makes a good case for it, and rebuts the contrary arguments of the EDPS.

But...does the Directive in fact set a 'maximum' retention period of 2 years? Look at Article 12 (which is not mentioned in the article), which deals with 'future measures'. It gives power for Member States to have 'an extension for a limited period of the maximum retention period'. The 'limited period' is not defined, and there is nothing to rule out a renewal of the initial extension. Member States need only argue that they are 'facing particular circumstances' to justify an extension. Procedurally, the Commission has to approve the Member State's action within six months (although if the Commission doesn't act within that time, approval is deemed), but the Commission is limited to ruling on whether the national measure is 'a means of arbitrary discrimination or a disguised restriction on trade between Member States' or 'constitute[s] an obstacle to the functioning of the internal market'.

So there is no power for the Commission to rule on the proportionality of the national measure from a human rights perspective. This Article is not adequately explained (or rather, not explained at all) in the preamble to the Directive, but it appears to derive from Article 95(1o) EC, which provides that measures using the general internal market legal base can provide for a safeguard clause allowing Member States to introduce future measures derogating from the harmonisation rules in a Directive.

But wait, there's more! Member States can also retain their existing rules providing for extension of the 'maximum' time limit for retaining data (again the Directive fails to refer to this point in the preamble). This is permitted according to Article 95(4) EC, as a rule which applies to all legislation adopted with the internal market legal base of Article 95. A Member State only needs to argue that that is 'necessary' on a ground set out in Article 30 EC -- ie 'public security' in this case. The same rules for Commission approval apply (as does the same limitation on the grounds on which the Commission can reject a measure). However, in this case there is no time limit on how long the pre-existing measures can be retained for.

So, the 'maximum' time limit on retention, which is the centrepiece of the proportionality argument in the paper, can be exceeded by existing or future national legislation, subject to the Commission's supervision -- which cannot be exercised on human rights grounds.

We can only conclude that the drafters of the Directive intended the word 'maximum' to be ironic.

The author goes on to argue further that the limit on the types of data kept, and the rules on record-keeping, contribute to the proportionality requirement. Fair enough. Then the author refers (starting on p. 19) to other 'critical' safeguards for privacy. These are the obligations placed on service providers, the ability of law enforcement authorities only to access the data in 'specific cases' in order to limit 'fishing expeditions' , and the 'eliminat[ion'] of crime prevention and the investigation of ordinary crimes as 'acceptable uses of personal data'. The last of these safeguards was referred to earlier, on p 13 of the article, which refers to 'The decision to limit the use of traffic data to "serious criminal offences" and to exclude crime prevention...'

Yes, I agree that these are all important safeguards -- if they in fact exist in the Directive. I agree that two of the three safeguards do exist.

But does the Directive actually limit the use of data retention for crime prevention, or for the investigation of less serious crimes? In fact, it does not. It it true to say that there is no obligation under the Directive for all Member States to require the retention of data for such purposes. But does that mean that there is no power of individual Member States under their national law to require the retention of data for such purposes?

Point 12 in the preamble to the Directive addresses this. It states that 'Article 15(1) of Directive 2002/58 [the general directive on data privacy in the telecom sector] continues to apply...to retention for purposes, including judicial purposes, other than those covered by this Directive'. That Art. 15(1) states expressly that 'Member States may, inter alia, adopt legislative measures providing for the retention of data for a limited period on the grounds' of national security, public security, defence or 'the prevention, investigation, detection and prosecution of criminal offences' (my emphasis added there). This refers to data referred in Articles 5,6,8 and 9 of that Directive (content data, traffic data, calling ID data and location data). So Member States' power to require data retention for the purposes of prevention of crime, and for non-serious criminal offences, is clearly unaffected legally by the data retention Directive.

You might argue that even though the data retention Directive does not oblige Member States to refrain from data retention as regards crime prevention and non-serious crime, this issue is nevertheless not a big deal, because the Directive equally does not harden the pre-existing national discretion on this issue into an obligation to collect and use data for such purposes. But let's think about what will happen in practice. Without the data retention directive, at least some Member States would not have bothered with data retention obligations at all, or they would have established such obligations for a more limited period, and/or for more limited categories of data. So the data would not even have been available, or at least not as much would be available. If data is not collected, obviously it cannot be used.

But now that data will be collected. Retained data, or more retained data, will be available, in all Member States, because of the Directive, so it will be easier in practical terms for all (or at least more) Member States to decide that they want to use this data for purposes of crime prevention and for dealing with less serious offences. So although the legal position will remain unchanged, the practical reality will be that the Directive will very likely increase the use of data for these other purposes.

The author argues that the threats to privacy could be diminished considerably if the specificity rule in the Directive is combined with other checks on national authorities -- 'For instance, the draft legislation on Third Pillar data protection might be amended to contain a warrant requirement for access to personal data' (p 20). But, in light of the discussions on this proposal to date, how likely is that?

Finally, let's look at a technical point, the question of whether the European Data Protection Supervisor (EDPS) had the authority to issue an opinion on the proposal for a Directive. At p 8 of the online text, the paper states that, 'Strictly speaking, the [EDPS] did not have jurisdiction over data processing at the national level, including the right of consultation on directives regulating national data processing'. At p 21: '...it is doubtful that the [EDPS's] opinion was his to give.' But this point is clearly dealt with by Art. 28(2) of Reg. 45/2001, which establishes the EDPS, which states that 'When it adopts a legislative proposal relating to the protection of individuals' rights and freedoms with regard to the processing of personal data, the Commission shall consult the [EDPS].' So, far from the EDPS exceeding his powers, consultation with him was a legal requirement, which would presumably have meant that the Directive would have been invalid had he not been consulted.

In conclusion, this article is an important contribution to the debate about the need to strike a balance between the protection of human rights and the need to ensure public security and fight crime effectively. The author starts from the right point (a balanced position) and rightly observes that the co-decision process was politically preferable and that the Directive contains some important features contributing to ensuring that the right balance is met (particularly the limitations on access to specific cases and the obligations placed on service providers). If only the Directive contained all of the safeguards which the author believes it does, and the additional safeguards which the author believes exist (in national law) and will or should exist (in the Data Protection Framework Decision), then her conclusion would have been correct.

The problem is that the central arguments and assumptions about the legal process and proportionality of the Directive are not correct. We cannot be certain about the quality of national law on police access to personal data, the Framework Decision on data protection has not been agreed, and when and if it is agreed it is unlikely to set out sufficiently high standards. The Directive does not in any meaningful sense set a 'maximum' limit for retaining data, and there is no control on human rights grounds of Member States' decisions to extend the time limit. Finally, the Directive does not rule out data retention for the purposes of crime prevention and for non-serious crimes, and while it does not require data retention for those purposes either, it makes the use of data for those purposes more likely, because it requires an increase in the retention of data for the purposes of dealing with serious crime, which would then be available for other purposes.

It would be technically possible to tell law enforcement authorities to refrain from accessing retained data for additional purposes once it has been collected -- just as it is technically possible to tell a roomful of small children that they cannot have access to a box full of sweets placed in full view of the centre of the room. How long until the demands for the goodies wear down the resistance of the parents? And unless there are enough grown-ups to watch all of the children all of the time, you can be sure that no matter how firm and clear the rules are, some sweets will go missing....

Regardless of what MEPs tell themselves and the public, the data retention Directive fails to protect privacy rights effectively, and is a significant step towards mass surveillance of the population by law enforcement authorities.

Academics should acknowledge this reality, rather than approve the Directive by overlooking its massive exceptions and limitations.

Population Thresholds for Council voting

2007-05-01T10:33:00.000+01:00

I thought it might be useful, in light of the discussion on Council voting thresholds in response to an earlier blog, to put online a simplified method of calculating the threshold for a qualified majority in the Council by population.

This method simply lists Member States by their percentage of the total current EU population, ie after the most recent enlargement using the official figures used by the Council for this purpose (see OJ 2007 L 1).

Remember that presently the votes of Member States with 62% of the EU population are needed to pass a measure, so 38% are needed to block. Under the Constitutional Treaty, it would be 65% in favour, or 35% to block, with the additional rule that at least four Member States must vote against a measure to block it (thus removing the possibility, which would otherwise exist, of any three of the biggest four Member States -- or indeed of any three of the biggest six Member States, if Germany is one of them -- from being able to form a blocking minority against a measure).

To see how blocking minorities can be formed, add up the numbers for each Member State until they total 38 (or, under the Constitutional Treaty, 35). If the percentage is very close to 38 or 35 it is best to calculate using the full official figures (I have rounded them to one decimal place). The Council updates these population figures every year -- so the movement of people from Poland to the UK, for instance, increases our voting power and decreases theirs (this is irrelevant, though, if we are voting on the same side).

Also remember that the current rules impose two further requirements: a majority of Member States (14) and a qualified majority of weighted votes in the Council, which over-represent small Member States relative to population. Under the Constitutional Treaty, there would be one further requirement, of 55% of Member States in favour (15 of them). If it weren't for this rule, the six biggest Member States could push a measure through against the other 21, as they have over 65% of the population between them.

Ger 16.7
Fra 12.8
UK 12.3
Ita 11.9
Spa 8.9
Pol 7.7
Rom 4.4
Neth 3.3
Gre 2.3
Port 2.1
Belg 2.1
Cze 2.1
Hung 2.0
Swe 1.8
Aust 1.7
Bulg 1.6
Den 1.1
Slvk 1.1
Fin 1.1
Ire 0.9
Lith 0.7
Lat 0.5
Slvn 0.4
Est 0.3
Cyp 0.2
Lux 0.1
Malt 0.1

Euromyths and Europol (etc)

2007-04-30T14:21:00.000+01:00

Look at the excerpt from a Telegraph article below. What a shame it cannot restrict itself to the truth. It is of course impossible for an EC Treaty measure to have anything to do with Europol. And the EU human rights agency has the power only to provide EU bodies with 'assistance and expertise' as regards fundamental rights issues (the Charter of Rights is only briefly mentioned in the preamble), within the scope of EC law (ie at EU level and when Member States implement EC law) -- a far cry from 'administering' the Charter.

The 'coordination' of national social security systems concerns the position of self-employed persons and other persons who move between Member States, setting out for instance rules which make sure that they still receive their pensions despite working in several Member States. Not only does this legislation not harmonise social security law (as a reader of the column would be left to assume), it also manifestly falls within even the narrowest possible interpretation of the scope of Article 308 -- since the movement of self-employed persons and other persons between Member States is quite obviously linked to the 'common market', and such movement would obviously be deterred if social security rules were not coordinated. The movement of the self-employed was always provided for in Article 52 EEC (now 43 EC). The link between the movement of persons and the internal market is re-inforced by the definition of the internal market in Article 14 EC. The other persons concerned derive free movement rights as EU citizens from Article 18 EC and (as regards students) Articles 12 and 149 EC. Should a self-employed plumber or barrister who works in another Member State end up with less pension as a result? Would the Telegraph's pensioner readership agree that this issue is not linked to the common market?

The reader is left to assume that the EU Health and Safety Agency wields major power, like its UK equivalent -- in fact the Agency was set up in 1994 (ie 10 years before 2004) and quite clearly has the power only to collect and share information on workplace health and safety. The legislation adopted since 2004 simply updates the rules on access to documents and the financial regulation of the agency, and then a subsequent amendment essentially amends only the rules on managing the agency. Have a look at:

http://europa.eu/agencies/community_agencies/osha/index_en.htm

The existence of such an agency is hardly shocking, since the EC has had express powers over health and safety law since 1987 and much legislation in the field has been adopted. Would these powers be exercised more effectively in the absence of an EU-wide body gathering and sharing this information?

And no-one is suggesting that Article 308 could be used to adopt the Constitutional Treaty -- given that the rules for Treaty amendment are set out in Article 48 TEU. In any case, 'ever closer union' is NOT a task or activity of the Community as defined by Article 2 or 3 EC -- and as I have pointed out already, Article 308 cannot apply to the second or third pillar.

The column never manages to mention that the use of Article 308 requires unanimity of Member States in the Council -- the reader is rather left to understand that the 'EU' is victimising its helpless Member States when adopting this legislation.

Has anyone seen this list online? It would be useful to see whether there is anything in it that even the most frothing Europhobe could object to on legal grounds. If the examples quoted in the column are the 'worst' there is, I suspect not.

[excerpt from article:]

EU's back door is at No 308
As our EU partners, led by Angela Merkel, flounder about trying to find ways to get the EU constitution back on track without any need for those beastly referendums, startling light has been shed on another way the EU is already misusing the famous Rome treaty to extend its powers.
The importance of the treaty, of which the constitution was merely another instalment, is that everything the EU does has, in theory, to be legally authorised by the articles it contains. These represent the powers legally ceded by nation states to Brussels. But when the original treaty was signed 50 years ago, it included a catch-all Article 235, which could be used to justify laws not authorised elsewhere in the treaty - so long as they served the purposes of the "common market".
In 1997 the article was renumbered as 308 and has long been used to smuggle in laws which had nothing to do with the "common market". Only now, thanks to the persistence of a Ukip peer, Lord Pearson of Rannoch, has the Government finally come clean on how extensively Article 308 has been abused.
A list placed in the Lords Library shows that since 2004 the EU has used it no fewer than 45 times. Many of these laws represent major extensions of its power, such as that setting up an agency to administer the Charter of Fundamental Rights, a significant part of the as-yet unratified constitution. Article 308 has also been used to authorise a whole range of other important measures, from setting up a European Health and Safety Agency and increasing the powers of Europol, the EU's police force, to co-ordinating national social security systems.
When Lord Blackwell recently asked the Government how it could justify the misuse of Article 308 in this way, he was sent a letter written in 2004 by Jack Straw, as foreign secretary, explaining that 308 was no longer considered to serve just its original "narrow and restrictive" purpose of promoting the common market. It can now be used to justify anything that would help to achieve "one of the objectives of the Community". Since one of those objectives is to pursue "ever closer union", it is hard to see how, by Mr Straw's logic, Article 308 could not be used to whistle into law the whole of the constitution. Perhaps Mrs Merkel would like to suggest it?

In the beginning...

2007-04-26T19:20:00.000+01:00

Starting a blog still seems to me as a rather curious thing to do. My goal in setting one up is to provide a forum for my comments on EU law issues that I have not (or not yet, or will not be able to) make elsewhere.

Also ideally if anyone reads it (fingers crossed!) and wishes to reply it could be a more general forum for discussion of the issues I'm interested in.

The main impetus for setting a blog up right at the moment is my recent experience reading other blogs on EU law issues, and in particular the approach taken by the Eurosceptic site, openeurope.org.uk -- who could tolerate my posting a couple of short responses to their blog and then would not publish or respond to the rest! How 'open' is that?? And on top of that the 'Sun' leader yesterday was partly based on inaccurate information on their blog and website, which I tried to get them to correct -- fat chance of that. Outrageous inaccuracies about EU law really wind me up -- as I suspect this blog will demonstrate in the months to come.

That brings me to my second post...

The Sun shines on EU law

2007-04-26T11:37:00.000+01:00

Let's have a closer look at the Sun's article (Wed 25 April) on the plans to have another go at changing the EU Treaty framework. My comments in Bold:

TONY Blair was accused last night of “smuggling” through a surrender of British power to Brussels without giving voters a say.
The PM was savaged for plotting with Germany to bring in a rewritten EU Constitution by the back door.
The deal, which would see an irreversible handover of power, was “stitched up” in talks in Berlin. He has said there will be NO referendum.
Critics say it will mean: No more OVERTIME for millions of workers; UNELECTED European judges with power over UK suspects and FOREIGN cops acting on British soil.

But a) the EC working time Directive can already be amended by a qualified majority vote under the existing Treaties, and there already is a proposal to this effect. b) very few countries elect judges c) the constitutional treaty would retain a veto for all Member States concerning cross-border movements of police forces

Firms will have JOB-destroying laws foisted on them and WEALTH-hitting laws will hamper the City.

Does it ever occur to Sun journalists and their readers to wonder why any UK politician would sign up to such a thing? In fact, the Constitutional Treaty would make only marginal changes to the EC's internal market or social law powers.

Mr Blair plans to put the finishing touches to the blueprint in June as virtually his last act as Prime Minister.
Shadow Foreign Secretary William Hague said: “Tony Blair made a clear promise — to hold a referendum on the EU Constitution.
“And Labour promised it would not be brought in via the back door. This will be an outrageous breach of that.
“There should be a referendum on any treaty that hands yet more power to Brussels.”

It isn't yet clear whether the UK and other countries critical of the Constitutional Treaty will accept the creation of any 'new' EU powers (the new powers in the Constitutional Treaty in any event largely comprise powers that the EU already exercises in practice) or that they will accept any extension of qualified majority voting. To me these are the crucial questions in determining the importance of any revived attempt at Treaty amendment.

The EU Constitution was effectively dropped two years ago after French and Dutch voters rejected it. But last night Mr Blair and German leader Angela Merkel were drawing up a replacement.
They insist it is a treaty, NOT a Constitution, and Mr Blair says there is no need for a national vote on its contents.
Yet three years ago he said: “You cannot have a situation where you get a rejection of the treaty and bring it back with a few amendments and say, ‘Have another go’.”
One crucial change will be over our power to veto barmy EU laws. At present, we can do deals with other EU states to block laws. But the treaty will alter the “weight” of each country’s voting powers, making blocking far harder.

This confuses the two separate issues of shifting from unanimity to qualified majority voting on the one hand, and the question of weighting the QMV on the other. As for weighting QMV, the Sun's argument is simply astounding, for the Constitutional Treaty would INCREASE the UK's voting weight.

Let's look at the facts. At present Article 205 EC requires that most EC acts adopted by QMV need support from a majority of Member States and 255 votes out of 381 -- of which the UK has 29 votes, or 7.6%. As a back-up it must also be demonstrated that a measure has the support of Member States with 62% of the EU population. According to the annex to the Council's rules of procedure, the UK has 60m people out of 493m in the EU -- or 12%. The Constitutional Treaty would drop the second rule, which gives extra voting weight to small and medium-sized countries as compared to the big ones, and amend the first and third -- so that it will take 55% of Member States with 65% of the population to approve a measure. Clearly this would mean that it will be easier to block legislation for the biggest four Member States, since a) the threshold for a blocking minority will be lower (35% of the population instead of 38%); b) the second rule, which hugely reduced those countries' voting power as compared to their population, would be dropped; and c) the threshold for applying the first voting rule would go up from 50.1% to 55% of Member States.

Campaigners Open Europe say this could mean Britain having to accept a string of job-destroying laws. The Working Time Directive would see us having to adopt a maximum 48-hour week.

The particular example given is absurd, because the UK has struck an alliance with Germany and several smaller Member States in blocking the abolition of the individual opt-out in the working time directive, and, as the biggest Member State, German voting weights would increase by far more than any other's if the Constitutional Treaty were approved.

I invited the open people at Open Europe to correct the Sun's misapprehension -- they did not publish my reply to their blog...do carry on bravely fighting against inaccuracies and for democracy and free speech!

Trade ministers have warned this would cost industry £9billion a year and deny millions vital overtime cash.
There would be new “EU rights” for criminals, with European judges being given a say over large parts of our procedural criminal law.

The content of any EU criminal procedural legislation would depend on what legislation gets adopted, and whether the UK participates in it (see below). God forbid that the EU does anything to strengthen the right to a fair trial!

Our veto on criminal justice affairs will go, and the European Court of Justice would get sweeping new powers.

Our veto over criminal justice would be replaced by an 'emergency brake' -- so we could either block the adoption of legislation or not participate in it.

The treaty will also mean a permanent EU President and foreign minister, with a seat on the UN Security Council.

No, the Member States with seats on the Security Council would have to let the EU foreign affairs minister state the EU position -- if there is one -- in their stead.

An EU diplomatic service would be set up at a cost of billions to represent EU citizens abroad.

It is not clear whether this service would entail any extra cost, and if so how much -- the basis of it would be the Commission's existing external representations. The constitutional Treaty does not say that the external action service would have the function of representing EU citizens abroad.

But wait, let's look at the leader article too:

....The extended Charter of Fundamental Rights is being quietly finessed under existing clauses.

The Constitutional Treaty would not 'extend' the Charter in the sense of adding substantive rights to it.

And the decision not to give EU law primacy over Westminster’s is irrelevant because we lost that battle years ago.

Indeed, before we joined, and before 2/3 of the public voted to stay in...

So what’s left?
Just a few “meaningless” items, like a full-time EU President and a Foreign minister to represent us at the UN.

An even bigger inaccuracy than in the article -- as if the Foreign Minister would take over our seat in the General Assembly and UN committees!

We will lose our veto over criminal justice, immigration and the right to defend ourselves militarily without EU approval.

On the veto over criminal law see above; we would retain our opt-out over immigration law; and the third assertion is just absurd. The Constitutional Treaty clearly states that it is without prejudice to national defence policies and NATO; the veto is retained for military and defence issues; and there is only a requirement of consultation with other EU Member States before taking a foreign policy action which could affect the EU's interests.

Brussels will be able to pick and choose any new powers it takes from member states.

Where on earth does this idea come from?

Unaccountable Euro MPs will gain extra powers.

They are only accountable to the electorate, in direct elections...

And if we don’t like it, we’ll have to lump it because any act of protest which holds the EU up to ridicule will become an offence.

How on earth would the Constitutional Treaty accomplish this? If they are thinking of the recently agreed Framework Decision on racism and xenophobia, which is separate from the Constitutional Treaty anyway, how can it be seriously argued that it would have this effect? It requires only criminalisation of racist statements intended to incite violence, or condoning or denying the Holocaust or other genocide with the intent that it is likely that violence will result. This is a far cry from ridiculing the EU.

But perhaps telling porkies about EU law should be an offence. That would clear the streets of Sun journalists....