The treaty of Lisbon 2007: Winning minds, not hearts

Common Market Law Review

Volumn 45, Issue 3, 2008, Pages 617-703

  Dougan, Michael ^a  

^a Department of European Law ^*

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EID: 46649105661     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (489)

1. O.J. 2007, C 306.
2. See Title V TEU and Part Five TFEU.
3. E.g. the provisions on closer integration between members of the Euro-group: see Chapt. 4, Title VIII, Part Three TFEU.
4. See Title IV TEU and Title III, Part Six TFEU.
5. For consideration, see Dougan, "The unfinished business of enhanced cooperation: Some institutional questions and their constitutional implications" in Ott and Vos (Eds.), 50 Years of European Integration: Foundations and Perspectives (TMC Asser Press, forthcoming).
6. See Protocol No 2 annexed to the TL.
7. In which regard, note Declaration No 54 annexed to the Final Act.
8. In fact, the author benefited greatly from a consolidated version of the Treaties published in January 2008 by the UK Foreign and Commonwealth Office: Cm 7310 (available via www. fco.gov.uk).
9. See Presidency Conclusions of 8 Dec. 2000.
10. See Presidency Conclusions of 14 Dec. 2001.
11. O.J. 2003, C 169.
12. See, for general analysis of the Convention draft, e.g. Dashwood, "The Draft EU Constitution: First impressions", 5 CYELS (2002-2003), 419;
13. Dougan, "The Convention's Draft Constitutional Treaty: Bringing Europe closer to its lawyers?", 28 EL Rev. (2003), 763;
14. Kokott and Ruth, "The European Convention and its Draft Treaty establishing a Constitution for Europe: Appropriate answers to the Laeken Questions?", 40 CML Rev. (2003), 1315;
15. Lenaerts and Gerard, "The structure of the Union according to the Constitution for Europe: The emperor is getting dressed", 29 EL Rev. (2004), 289.
16. O.J. 2004, C 310.
17. See, for general analysis of the CT, e.g. Dashwood, "The EU Constitution: What will really change?", 7 CYELS (2004/2005), 33;
18. Constantinesco, Gautier and Michel (Eds.), Le Traité établissant une Constitution pour l'Europe (Presses Universitaires de Strasbourg, 2005);
19. th ed, 2006) Chapt. 11.
20. See the Declaration by the Heads of State or Government of the Member States of the European Union on the Ratification of the Treaty establishing a Constitution for Europe (18 June 2005).
21. The "period of reflection" was extended by the European Council meeting in June 2006 (see Presidency Conclusions of 16 June 2006).
22. Note also the Commission's "Plan D for Democracy, Dialogue and Debate": COM(2005)494 and COM(2006)212.
23. See further: Editorial, "What now?", 42 CML Rev. (2005), 905;
24. Editorial, "What should replace the Constitutional Treaty?", 44 CML Rev. (2007), 561.
25. Also, e.g. Rossi, "En cas de non-ratification. . . Le destin périlleux du 'Traité-Constitution'", 40 RTDE (2004), 621.
26. In which regard, consider the findings of Wallace, Adapting to Enlargement of the European Union: Institutional Practice Since May 2004 (Trans-European Policy Studies Association, December 2007) available at www.tepsa.be/TEPSA%20-%20Wallace%20Publication%20 website.doc.
27. Consider, e.g. the Council's moves towards greater transparency in its legislative deliberations through amendments to its Rules of Procedure, and the European Parliament's greater influence over Commission implementing powers thanks to amendments to the Second Comi-tology Decision: sections 4.2 and 5.3.3 (respectively).
28. See further: Editorial, "In the meantime . . . Further progress in transparency and democracy while the Constitution is dormant", 43 CML Rev. (2006), 1243.
29. See Presidency Conclusions of 23 June 2007.
30. 12004/07. The IGC was formally based on a proposal submitted by Germany (11222/07) reproducing the European Council mandate. Note the Commission's generally positive opinion on the IGC mandate (COM(2007)412 Final);
31. as well as the more ambivalent opinion of the European Parliament (Resolution of 11 July 2007).
32. Note also the opinion of the European Central Bank (annexed to 11624/07).
33. See Art. 6(2) TL.
34. At the time of writing, the following Member States had already successfully ratified the TL: France, Hungary, Malta, Romania, Slovenia. For France, ratification required a constitutional amendment: see Décision no. 2007-560 DC of Le Conseil constitutionnel (20 Dec. 2007).
35. For broader discussion, see von Bogdandy, "The prospect of a European Republic: What European citizens are voting on", 42 CML Rev. (2005), 913;
36. Birkinshaw, "Constitutions, constitutionalism and the State", 11 EPL (2005), 31;
37. Dyèvre, "The constitutionalisation of the European Union: discourse, present, future and facts", 30 EL Rev. (2005), 165.
38. See, e.g. Opinion 1/91, Draft Agreement between EEC and EFTA, [1991] ECR I-6079, para 21.
39. See further, e.g. Piris, "Does the European Union have Constitution? Does it need one?", 24 EL Rev. (1999), 557;
40. Craig, "Constitutions, constitutionalism and the European Union", 7 ELJ (2001), 125.
41. Presidency Conclusions, Annex I. 11177/07 p. 15.
42. Though note Declaration No 52 annexed to the Final Act.
43. Two further victims of abandoning the "constitutional concept" - the decision to incorporate the Charter of Fundamental Rights by reference rather than full text, and the deletion of any express clause affirming the primacy of Union over national law in favour of a declaration recalling the supremacy of Community law according to the ECJ's established case law - are dealt with in greater detail in sections 7 and 11.3 infra (respectively).
44. Art. 1, third para TEU.
45. Art. 47 TEU.
46. The latter providing the basis for the great majority of this article's analysis.
47. Art. 51 TEU.
48. However, the TEU does provide for the adoption of certain non-legislative acts, especially as regards the functioning of the Union institutions and in the field of the CFSP. On legislation and non-legislation: section 5.
49. Section 9.
50. See Art. 24(1) TEU.
51. Also Art. 31 TEU.
52. On the High Representative: section 4.5. On the ECJ's CFSP jurisdiction: section 8.2.
53. Section 5.1.
54. Cf. Art. I-6 CT. See section 11.3.
55. Declaration No 17 annexed to the Final Act.
56. See further, e.g. Arnull at al. op. cit. supra note 11, para 11-013.
57. Art. 352(4) TFEU.
58. See section 6.1.
59. Note that the revised Treaties also envisage the adoption of specific data protection rules within the context of the CFSP: see Art. 39 TEU and Art. 16(2) TFEU.
60. See Case C-170/96, Commission v. Council, [1998] ECR I-2763;
61. Case C-176/03, Commission v. Council, [2005] ECR I-7879;
62. Case C-440/05, Commission v. Council, judgment of 23 Oct. 2007, nyr.
63. See A.G. Mengozzi Opinion of 19 Sept. 2007 in Case C-91/05, Commission v. Council, pending.
64. An issue discussed extensively by Marise Cremona and Alan Dashwood at a seminar on the Lisbon Treaty held at Durham University in December 2007. For an indication of how the EC J might approach this issue, consider Case C-403/05, European Parliament v. Commission, judgment of 23 Oct. 2007, nyr.
65. Despite requests for amendments to the draft text so as to confer upon the ECB a special institutional status: see the Letter from the President of the European Central Bank to the Portuguese Presidency, "Clarification of the institutional status of the ECB" (2 Aug. 2007).
66. See, for analysis of the CT's institutional provisions, e.g. Dashwood and Johnston, "The institutions of the enlarged EU under the regime of the Constitutional Treaty", 41 CML Rev. (2004), 1481.
67. Section 8.
68. Art. 236 TFEU. Section 4.2.
69. Art. 14(2) TEU. Section 4.3.
70. Art. 17(5) TEU
71. and Art. 244 TFEU.
72. Section 4.4.
73. Art. 17(7) TEU.
74. Section 4.4.
75. Art. 18(1) TEU.
76. Section 4.5.
77. Art. 22(1) TEU.
78. Art. 68 TFEU.
79. See also e.g. Art. 42(2) TEU on the decision to adopt a common defence policy;
80. Art. 86(4) TFEU on expanding the powers of a future European Public Prosecutor's Office;
81. Art. 7(2) TEU on determining that a Member State is guilty of a serious and persistent breach of the Union's core values.
82. Section 5.2.4.
83. Section 9.1.
84. Sections 10.1 and 10.2 (respectively).
85. Section 10.3.
86. Though without prejudice to the powers of the new High Representative for Foreign Affairs (see section 4.5).
87. And note also Declaration No 6 annexed to the Final Act.
88. At the time of writing, there is lively speculation about the prospects of appointing former UK Prime Minister Tony Blair: France's Nicholas Sarkozy is reported to be in favour, Germany's Angela Merkel to have serious reservations (see, e.g. The Guardian, 20 Feb. 2008).
89. See Art. 235(3) TFEU on adoption of the European Council's Rules of Procedure. At the time of writing, the Presidency's "job description" is being negotiated by the Member States.
90. Cf. Kokott and Ruth, op. cit. supra note 10, 1337-8.
91. As reported on www.euobserver.com (8 February 2008).
92. On the European Council President's institutional role, see further section 11.2.
93. I.e. so that abstentions will not prevent adoption of the relevant decision. E.g. Arts. 14(2), 17(5), 42 TEU;
94. Art. 86(4) TFEU.
95. E.g. Arts. 15(5), 17(7), 18(1) TEU;
96. Art. 236 TFEU.
97. Section 4.2.
98. As with the Council, higher thresholds apply where the relevant proposal does not emanate from the Commission or the High Representative: see Art. 238(2) TFEU.
99. Art. 3(2) of the Protocol on Transitional Provisions refers only to a member of the Council, not of the European Council.
100. Acting by QMV under Art. 236(a) TFEU;
101. pending which, see Art. 4 Protocol on Transitional Provisions.
102. Other than Foreign Affairs, which is presided over by the High Representative for Foreign Affairs (section 4.5).
103. Acting by QMV under Art. 236(b) TFEU.
104. See Art. 24(1) of the Convention's draft Constitutional Treaty;
105. under Art. 24(2), higher thresholds were to apply in respect of proposals not emanating from the Commission or the proposed Minister for Foreign Affairs.
106. On the distinction between legislative and non-legislative acts: section 5.1.
107. Higher thresholds apply where the Council does not act on a proposal from the Commission or the High Representative: see Art. 238(2) TFEU.
108. Again, with higher thresholds applicable where the proposal does not emanate from the Commission or the High Representative: see Art. 238(2) TFEU.
109. O J. 2007, C 306/250.
110. Or, where applicable, Art. 238(2) TFEU.
111. Or, where applicable, Art. 238(2) TFEU.
112. See also Art. 15(2) TFEU.
113. See Art. 8 of the Council's Rules of Procedure, O.J. 2006, L 285/47.
114. See further, e.g. Editorial, "In the meantime . . ." op. cit. supra note 15.
115. Cf. section 10.3 on the "ordinary revision procedure".
116. European Parliament resolution of 11 Oct. 2007 on the composition of the European Parliament (2007/2169(INI)).
117. See also Presidency Conclusions of 14 Dec. 2007, para 5.
118. See, e.g. Eurostat, Long-Term Population Projections at National Level (Issue Number 3/2006).
119. Case C-145/04, Spain v. United Kingdom, [2006] ECR I-7917.
120. See further, e.g. Besselink, annotation of Spain v. United Kingdom, 45 CML Rev. (2008), 787-813.
121. Albeit that that competence must be exercised "in compliance with Community law". For an indication of what this might require, see Case C-300/04, Eman and Sevinger, [2006] ECR I-8055.
122. That is true not only of the English version, but also, e.g. the French, Italian, Spanish and German texts.
123. Note Declaration No 64 annexed to the Final Act, in which the UK expresses its understanding that the revised Treaties are not intended to change the basis for the franchise for EP elections; though the rather cryptic Declaration No 57, made by Italy, might seem to express a contrary understanding.
124. Note that the impact of the entry into force of the LT upon the existing Commission (in particular, the appointment of the first High Representative) is dealt with under Art. 5 of the Protocol on Transitional Provisions.
125. Including the President and the High Representative.
126. Including the President and the High Representative.
127. Note also Declaration No 10 annexed to the Final Act, intended to assuage Member State nerves about the balanced functioning of a Commission in which not all nationalities are represented.
128. Including the President and the High Representative.
129. But see section 11.2 for reservations about this idea.
130. Cf. Art. 15(6) TEU on external representation of the Union by the President of the European Council, without prejudice to powers of the High Representative (section 4.1).
131. See the detailed provisions on external action in general and the CFSP in particular contained in Title V TEU.
132. Art. 18(3) TEU.
133. As pointed out by Arnull et al., op. cit. supra note 11, para 11-010.
134. On the High Representative's responsibilities, see further "Editorial comments: Mind the Gap!", 45 CML Rev. 317-322.
135. The European Council may end his / her term of office by the same procedure. This applies also in situations where the Commission President requests the High Representative to resign: see Art. 17(6) TEU.
136. Section 4.4. As regards the role of the European Parliament in the appointment of the very first High Representative, i.e. into the Commission already holding office on the date of entry into force of the TL, see Declaration No 12 annexed to the Final Act.
137. Art. 17(8) TEU and Art. 234 TFEU.
138. On the current position, see further, e.g. Bast, "Legal Instruments" in von Bogdandy and Bast (Eds.), Principles of European Constitutional Law (Hart Publishing, 2006);
139. Schutze, "The morphology of legislative power in the European Community: Legal instruments and the federal division of powers", 25 YEL (2006), 91.
140. See further, e.g. Dougan, op. cit. supra note 10, 781-783;
141. von Bogdandy, Arndt and Bast, "Legal Instruments in the European Union and their reform: A systematic approach on an empirical basis", 23 YEL (2004), 91;
142. Lenaerts and Desomer, "Towards a hierarchy of legal acts in the European Union? Simplification of legal instruments and procedures", 11 ELJ (2005), 744.
143. The definition of which is amended so as expressly to acknowledge the possible adoption of decisions without a specific addressee.
144. See Art. 288 TFEU.
145. See Art. 289(1)-(3) TFEU.
146. See further, e.g. Liisberg, The EU Constitutional Treaty and Its Distinction between Legislative and Non-Legislative Acts: Oranges Into Apples?, Jean Monnet Working Paper Series 01/06 (NYU School of Law).
147. Section 6.3. The possibility for national parliaments, and the Committee of the Regions, to seek judicial review on subsidiarity grounds is also limited to Union legislative acts: sections 6.3 and 8.3.
148. Art. 16(8)TEU and Art. 15(2) TFEU.
149. See section 4.2.
150. Section 8.3.
151. See also Art. 289 TFEU.
152. But see the additional exceptions referred to in Art. 289(4) TFEU.
153. See Arts. 241 and 225 TFEU (respectively).
154. The full procedure is described in Art. 294 TFEU.
155. For these purposes, the Council acts by QMV, save where Arts. 293 and 294 TFEU specifically provide otherwise.
156. Art. 43 TFEU. Cf. Art. 37 EC.
157. Art. 207 TFEU. Cf. Art. 133 EC.
158. See Title V, Part Three TFEU and section 9.1.
159. Art. 53 TFEU.
160. Art. 167 TFEU.
161. E.g. Art. 21(3) TFEU on social measures for migrant Union citizens;
162. Art. 22 TFEU on electoral rights of Union citizens;
163. Art. 64(3) TFEU on regressive measures on the free movement of capital to / from third countries;
164. Art. 77(3) TFEU on border / residency documents for migrant Union citizens;
165. Art. 81(3) TFEU on cross-border family law;
166. Art. 87(3) TFEU on operational cooperation between national law enforcement agencies;
167. Art. 89 TFEU on cross-border operation of national law enforcement agencies;
168. Art. 113 TFEU on the harmonization of indirect taxation;
169. Art. 115 TFEU on internal market harmonization;
170. Art. 118 TFEU on language arrangements for European IPRs;
171. Art. 311, third para TFEU on the initial decision on Union own resources.
172. E.g. Art. 19(1) TFEU on general anti-discrimination measures;
173. Art. 86(1) TFEU on establishment of a European Public Prosecutor's Office;
174. Art. 312(2) TFEU on the Union's multi-annual financial framework;
175. the flexibility clause contained in Art. 352 TFEU.
176. Note that the "cooperation procedure", currently contained in Art. 252 EC, will be entirely abolished: in one area replaced by the ordinary legislative procedure (see Art. 99(5) EC / Art. 121(6) TFEU);
177. in the rest by a non-legislative procedure involving mere consultation of the EP by the Council (Arts. 102(2) and 103(2) EC /Art. 125(2) TFEU;
178. Art. 106(2) EC / Art. 128(2) TFEU).
179. E.g. Art. 23 TFEU on diplomatic protection of Union citizens (after consulting the EP);
180. Art. 311, fourth para TFEU on implementing the Union's own resources (with the EP's consent).
181. See section 10.3 on the "ordinary revision procedure".
182. Cf. Art. 6 of the Protocol on the role of national parliaments in the European Union.
183. See Art. 353 TFEU: the relevant provisions are Art. 311, third and fourth paras, on Union own resources;
184. Art. 312(2), first para on the multiannual financial framework;
185. and the Art. 352 flexibility clause.
186. Note also the enhanced cooperation passerelle clause in Art. 333 TFEU: if the legal basis to which an enhanced cooperation relates provides for the Council to legislate according to a special legislative procedure, then the Council (acting unanimously and in its restricted enhanced cooperation formation, after consulting the European Parliament) may decide instead to apply the ordinary legislative procedure. The national parliaments have no role here: see Dougan, op. cit. supra note 4.
187. See Art. 153(2) TFEU (social policy) and Art. 192(2) (environment). Cf. Arts. 137(2) and 175(2) EC (respectively).
188. This passerelle clause may also be used in the context of certain legal bases for the adoption of non-legislative acts: section 5.3.1.
189. Cf. Art. 6 of the Protocol on the role of national parliaments in the European Union.
190. See Art. 353 TFEU: the relevant provisions are Art. 311, third and fourth paras, on Union own resources;
191. Art. 312(2), first para on the multiannual financial framework;
192. and the Art. 352 flexibility clause.
193. Note also the enhanced cooperation passerelle clause in Art. 333 TFEU: if unanimity applies under the legal basis to which an enhanced cooperation relates, then the Council (acting unanimously and in its restricted enhanced cooperation formation) may move instead to QMV. Again, the national parliaments have no role here: see Dougan, op. cit. supra note 4.
194. See Arts. 223(2), 226 and 228(4) TFEU.
195. E.g. Art. 25 TFEU on additional rights for Union citizens;
196. Art. 223(1) TFEU on a uniform electoral procedure for the EP;
197. Art. 262 TFEU on ECJ jurisdiction over European IPRs;
198. Art. 311, third para TFEU on the initial decision on Union own resources.
199. I.e. other than in the case of Art. 311, third para TFEU: see Art. 353 TFEU.
200. Note Declaration No 23 annexed to the Final Act.
201. See the detailed provisions of Arts. 82(3) and 83(3) TFEU.
202. On the AFSJ, see section 9.
203. See Art. 20 TEU and Art. 329 TFEU.
204. Note also, on the adoption of recommendations, Art. 292 TFEU.
205. Also, e.g. Arts. 60 and 97 TFEU.
206. Arts. 105 and 108 TFEU.
207. Art. 132 TFEU.
208. Art. 342 TFEU.
209. Art. 329(2) TFEU.
210. Art. 74 TFEU.
211. Art. 329(1) TFEU.
212. Art. 236 TFEU.
213. Art. 86(4) TFEU.
214. See Chapter 2, Title V TEU, esp. Art. 31 TEU. Further: section 3.
215. Note Art. 6 of the Protocol on the role of national parliaments in the European Union.
216. See Art. 353 TFEU: the relevant exclusions are non-legislative acts adopted under the Art. 352 TFEU flexibility clause;
217. and decisions to suspend Member State rights under Art. 354 TFEU.
218. Art. 31(4) TEU.
219. Assuming that the specific provisions concerning the common security and defence policy are intended to be an integral part of Chapter 2, Title V TEU. That seems correct, given that those provisions state explicitly when the Council shall act by QMV;
220. where they remain silent, it must be on the understanding that the relevant decisions will be taken by unanimity in accordance with Art. 31(1) TEU.
221. Section 10.3.
222. Section 3.
223. E.g. Art. 27(3) TEU on the organization and functioning of the European External Action Service;
224. Art. 78(3) TFEU on emergency measures to cope with asylum influxes.
225. E.g. Art. 50(2) TEU on conclusion of agreements between the Union and withdrawing states;
226. Art. 352 TFEU on non-legislative measures adopted under the flexibility clause.
227. E.g. Art. 66 TFEU on urgent and exceptional safeguard restrictions on capital movements as regards third countries;
228. Art. 75, second para TFEU on the implementation of restrictive measures against natural and legal persons / groups.
229. E.g. Arts. 257(4), 301 and 305 TFEU on members of specialized courts, the Economic and Social Committee and the Committee of the Regions (respectively).
230. See further, e.g. Dougan, op. cit. supra note 10, 783-784;
231. Kokott and Ruth, op. cit. supra note 10, 1341-1343.
232. Consider, e.g. Art. 74 TFEU on administrative cooperation within the Area of Freedom, Security and Justice.
233. I.e. adopted under Art. 83 EC /Art. 103 TFEU.
234. I.e. as provided for under Art. 139(2) EC/Art. 155(2) TFEU.
235. Directive 1996/43, O.J. 1996, L 145/4.
236. Directive 1997/81, O.J. 1998, L 14/9.
237. Directive 1999/70, O.J. 1999, L 175/43.
238. And to seek the annulment of Union legislation on subsidiarity grounds. See sections 6.3 and 8.3.
239. Section 4.2.
240. Section 8.3.
241. Section 6.1. Similar problems apply to Art. 203 TFEU, which offers the Council a choice between adopting legislative or non-legislative measures for the association of overseas countries and territories.
242. Note that Art. 296(1) TFEU on the criteria for choosing between available legal instruments is of little practical assistance in this context.
243. Though some situations will be clear, e.g. if implementation relates to a non-legislative parent act, or is to be carried out by the Council, it must take the form of an implementing act under Art. 291 TFEU (since delegated acts under Art. 290 TFEU are only available as regards legislative parents acts and may only be adopted by the Commission).
244. Cf. Art. 10 EC /Art. 4(3) TEU.
245. And in any case upon the Council within the field of the CFSP as provided for under Arts. 24 and 26 TEU.
246. Art. 291(3) TFEU.
247. E.g. Case 16/88, Commission v. Council, [1989] ECR 3457;
248. Case C-257/01, Commission v. Council, [2005] ECR I-345.
249. See Decision 2006/512, O.J. 2006, L 200/11.
250. Case 9/56, Meroni, [1958] ECR 11;
251. Case 10/56, Meroni, [1958] ECR 53.
252. See further, e.g. Chiti, "The emergence of a Community administration: The case of European agencies", 37 CML Rev. (2000), 309;
253. Geradin and Petit, "The development of agencies at EU and national levels: Conceptual analysis and proposals for reform", 23 YEL (2003), 137;
254. Craig, EU Administrative Law (OUP, 2006) Chapt. 5.
255. E.g. Majone, Dilemmas of European Integration: The Ambiguities and Pitfalls of Integration by Stealth (OUP, 2005).
256. E.g. Art. 9 TEU. See, in particular, Arts. 2(2)(f) and 2(6) TL.
257. Art. 228(1) TFEU.
258. Arts. 263 and 265 TFEU.
259. Art. 267 TFEU.
260. See section 5.2 on the voting rules applicable here.
261. Art. I-1(1) CT;
262. Art. 1(1) TEU.
263. See Art. 3(6) TEU. Cf. Case C-9/99, Echirolles Distribution, [2000] ECR I-8207;
264. Case C-181/06, Deutsche Lufthansa, judgment of 5 July 2007, nyr.
265. Cf. the post-referendum opinion poll conducted at the request of the Commission in France (Flash Eurobarometer Poll No 171).
266. Including under Art. 352 TFEU: see section 6.1.
267. See, for analysis of the original Convention proposals, e.g. Davies, "The Post-Laeken division of competences", 28 EL Rev. (2003), 686;
268. Dougan, op. cit. supra note 10, 763;
269. Hanf and Baumé, "Vers une clarification de la répartition des compétences entre l'Union et ses Etats membres", (2003) CDE 135;
270. Craig, "Competence: Clarity, conferral, containment and consideration", 29 EL Rev. (2004), 323.
271. See also Declaration No 18 annexed to the Final Act.
272. See further, e.g. Lenaerts and Desomer, "Bricks for a Constitutional Treaty of the European Union: values, objectives and means", 27 EL Rev. (2002), 377;
273. Weatherill, "Competence creep and competence control", 23 YEL (2004), 1.
274. Though its relationship to existing Art. 94 EC / new Art. 115 TFEU is revised.
275. Case C-376/98, Germany v. Parliament and Council, [2000] ECR I-8419.
276. On the problems this may cause, see section 5.3.1.
277. Art. 352(3) TFEU.
278. See section 6.2.
279. Art. 352(4) TFEU.
280. See section 3.
281. Note also Declaration Nos 41 and 42 annexed to the Final Act.
282. Section 6.3.
283. Those definitions should be read in conjunction with the Protocol on the exercise of shared competence; and also Declaration No 18 annexed to the Final Act. Note that the Union's coordinating powers in relation to the Member States' economic and employment policies, and in the field of CFSP, are accorded a special status falling outside the scope of those generic categories: see Arts. 2(3)-(4) and 5 TFEU.
284. In particular, the reference in Art. 3(1) TFEU to establishing the competition rules necessary for the functioning of the internal market;
285. and the rather shoddy definition of exclusive external competence contained in Art. 3(2) TFEU.
286. See Art. 2(6) TFEU.
287. See, e.g. Arts. 153(4) TFEU (social policy), 193 TFEU (environment) and 169(4) TFEU (consumer policy).
288. E.g. Arts. 79(4) and 84 TFEU on TCN integration and crime prevention measures (respectively).
289. Art. 191(1) TFEU.
290. Art. 14 TFEU.
291. Title XXI TFEU.
292. Art. 189 TFEU.
293. Title XXII TFEU.
294. Title XII TFEU.
295. Title XXIII TFEU.
296. Title XXIV TFEU.
297. E.g. in the principle of subsidiarity, there is an express reference to objectives being sufficiently achieved by the Member States "either at central level or at regional and local level"; the phrase "and can therefore", which has grated on so many academic nerves, will be replaced with "but can rather".
298. See further, e.g. Davies, op. cit. supra note 185;
299. Weatherill, "Better competence monitoring", 30 EL Rev. (2005), 23.
300. Note also the provisions on greater transmission of information about the Union's activities, contained in the Protocol on the role of national parliaments in the European Union.
301. Under the CT, the deadline was 6 weeks; many thought this was too tight, so the European Council mandate for the 2007 IGC instructed that it be extended to 8 weeks.
302. Under Art. 76 TFEU.
303. National parliaments may arrange on their own account for the consultation of regional parliaments with legislative powers: see Art. 6, first para of the Protocol.
304. Though note that the results of a Commission pilot study on operation of the "yellow card" system were hardly promising: see Arnull et al., op. cit. supra note 11, para 11-020.
305. Though see below on Art. 8 of the Protocol.
306. See Arts. 70, 71, 85 and 88 TFEU.
307. See Art. 48 TEU and Art. 81(3) TFEU.
308. See section 10.3.
309. See Crum, "Tailoring representative democracy to the European Union: Does the European Constitution reduce the democratic deficit?", 11 ELJ (2005), 452.
310. Something that cannot be taken for granted: see "Apathy undermines national parliaments' EU power" (www.euobserver.com on 5 Nov. 2007).
311. See Art. 23 TFEU on diplomatic protection of Union citizens;
312. Art. 311, fourth para TFEU on implementing the Union's own resources.
313. Section 5.2.3.
314. E.g. Case C-84/94, United Kingdom v. Council, [1996] ECR I-5755;
315. Case C-233/94, Germany v. European Parliament and Council, [1997] ECR at I-2427.
316. E.g. Case C-377/98, Netherlands v. European Parliament and Council, [2001] ECR I-7079;
317. Case C-491/01, ex parte British American Tobacco, [2002] ECR I-11453;
318. Case C-154 -155/04, Alliance for Natural Health, [2005] ECR I-6451.
319. Art. 8 also permits the Committee of the Regions to seek annulment of Union legislative acts in respect of which the TFEU provides for its consultation, for alleged breach of the subsidiarity principle. On the Committee's standing to bring annulment actions more generally: section 8.3.
320. See further, e.g. Dougan, op. cit. supra note 10, 763, 768;
321. Kokott and Ruth, op. cit. supra note 10, 1335.
322. See further, e.g. Arnull et al., op. cit. supra note 11, Chapt. 8.
323. O.J. 2000, C 364/1.
324. See Art. I-9 and Part II CT.
325. See, for analysis of the Convention draft and CT proposals, e.g. Williams, "EU Human Rights Policy and the Convention on the Future of Europe: A failure of design", 28 EL Rev. (2003), 794;
326. Carruthers, "Beware of lawyers bearing gifts: A critical evaluation of the proposals on fundamental rights in the EU Constitutional Treaty", (2004) EHRLR 424.
327. E.g. Case C-540/03, Parliament v. Council, [2006] ECR I-5769;
328. Case C-432/05, Uni-bet, [2007] ECR I-2271;
329. Case C-303/05, Advocaten voor der Wereld, [2007] ECR I-3633;
330. Case C-438/05, Viking Line, judgment of 11 Dec. 2007, nyr;
331. Case C-341/05, Laval un Partneri, judgment of 18 Dec. 2007, nyr;
332. Case C-450/06, Varec, judgment of 14 Feb. 2008, nyr.
333. See further, e.g. Drywood, "Giving with one hand, taking with the other: Fundamental rights, children and the family reunification decision", 32 EL Rev. (2007), 396.
334. O.J. 2007, C 303/1 (Charter) and C 303/17 (explanations).
335. Another main reform - a legal basis for Union accession to the ECHR - is considered in section 7.3.
336. See further, e.g. Special Issue on the Charter of Fundamental Rights, 8 MJ (2001), Issue 1;
337. Ward and Peers (Eds.), The EU Charter of Fundamental Rights: Politics, Law and Policy (Hart Publishing, 2004).
338. E.g. Case C-368/95, Familiapress, [1997] ECR I-3689;
339. Case C-60/00, Carpenter, [2002] ECR I-6279.
340. See further, e.g. Arnull et al., op. cit. supra note 11, esp. para 9-023.
341. The explanations do give some indications, but they are far from exhaustive: see O.J. 2007, C 303/35.
342. See further, e.g. Dougan, "The Convention's Draft Constitutional Treaty: a 'Tidying-Up Exercise' That Needs Some Tidying-Up of Its Own. . ." Federal Trust Constitutional Online Essay 27/03 (available at www.fedtrust.co.uk/eu_constitution.htm).
343. See, e.g. Weiler, "Does the European Union truly need a Charter of Rights?", 6 ELJ (2000), 95.
344. In this regard, however, Art. 6(3) TEU could have certain "chilling effects" of its own: by referring only to the ECHR as an "external" source for the general principles of Union law, is Art. 6(3) TEU implicitly ruling out reliance on other international human rights instruments (such as the UN Charter on the Rights of the Child, already cited by the ECJ as a valid source of inspiration for the general principles of Community law, in Case C-540/03, Parliament v. Council, [2006] ECR I-5769)?
345. Another concerns the status of pre-existing Third Pillar acts: section 9.2.
346. On the Title IV provisions, see further, e.g. Hervey and Kenner (Eds.), Economic and Social Rights under the EU Charter of Fundamental Rights: A Legal Perspective (Hart Publishing, 2003).
347. Whose concerns seem to have centred not around the Title IV economic and social rights, but rather on issues such as abortion and same-sex marriage: note Declaration No 61 annexed to the Final Act.
348. Declaration No 62 annexed to the Final Act.
349. See the resolution adopted at the Trades Union Congress (September 2007) expressing bitter disappointment at the UK Government's position in relation to the Charter of Fundamental Rights (available via www.tuc.org.uk). In the same resolution, the TUC called upon the Government to hold a referendum on the TL, though it refused to back another motion calling for a "no" campaign should such a referendum be held.
350. A view shared by the European Parliament in its opinion on the IGC mandate (Resolution of 11 July 2007, para 12).
351. See, in particular, Viking Line and Laval un Partneri, both cited supra note 228, where the ECJ recognized the right to collective action, including the right to strike, as a general principle of Community law.
352. Cf. Art. 6(1), second para TEU; and also Declaration No 1 annexed to the Final Act.
353. In keeping with the above argument, which treats the general principles of Union law as relevant only in a residual category of cases, not as a truly parallel system of fundamental rights protection.
354. Or with the general principles of Union law as applicable in the residual category of cases.
355. Explicitly as with, e.g. Art. 27 on workers' rights to information and consultation; Art. 28 on collective bargaining and action; Art. 30 on unjustified dismissal. Implicitly, on the basis of Art. 52(2) of the Charter, as with, e.g. Art. 31 on fair and just working conditions. Similarly with Art. 37 on environmental protection, and Art. 38 on consumer protection, derived from the relevant "integration" clauses contained in the Treaties, which are not intended to be enforceable per se: see Arts. 6and 174 EC/Arts. 11 and 191 TFEU as interpreted in Case C-341/95, Bettati, [1998] ECR I-4355;
356. Case C-284/95, Safety Hi-Tech, [1998] ECR I-4301;
357. and Art. 153 EC /Art. 12 TFEU as interpreted in Case C-233/94, Germany v. Parliament and Council, [1997] ECR I-2405.
358. E.g. consider the relationship between Art. 27 of the Charter and Directive 2002/14 on information and consultation of workers, O.J. 2002, L 80/29. Or between Art. 31 of the Charter and Directive 89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work, O.J. 1989, L 183/1, or Directive 93/104 concerning certain aspects of the organization of working time, O.J. 1993, L 307/18.
359. Even if it were arguable that Art. 1(2) of the Protocol was indeed intended to go further than Art. 52(5) of the Charter, ruling out the justiciability of Title IV provisions even as tools for the correct interpretation of any applicable Union / national implementing measures, the ambiguous drafting is hardly compelling enough to oblige the judges to construe the text in that manner.
360. Either expressly or by virtue of Art. 52(2) of the Charter.
361. Sections 8.2 and 8.3.
362. On the accession procedure itself, see Art. 218(8) TFEU. Note also the provisions of the Protocol relating to Art. 6(2) TFEU on the Union's accession to the ECHR; and of Declaration No 2 annexed to the Final Act.
363. See further, e.g. Alston (ed), The EU and Human Rights (OUP, 1999);
364. Turner, "Human Rights Protection in the European Community: Resolving Conflict and Overlap Between the European Court of Justice and the European Court of Human Rights", 5 EPL (1999), 453.
365. Opinion 2/94, [1996] ECR I-1759.
366. Matthews v. United Kingdom, Judgment of ECtHR, 18 Feb. 1999;
367. Bosphorous v. Ireland, Judgment of ECtHR, 30 June 2005.
368. For discussion, see Council of Europe Steering Committee for Human Rights, Study of Technical and Legal Issues of a Possible EC/EU Accession to the European Convention on Human Rights (Report Adopted on 28 June 2002) DG-II(2002)006. Note Protocol 14 to the ECHR (agreed in 2004), which expressly provides for the EU to accede to the ECHR, though without determining the necessary conditions and modalities.
369. Cf. Barents, "The Court of Justice in the Draft Constitution", 11 MJ (2004), 121.
370. See further, e.g. Tridimas, "The European Court of Justice and the Draft Constitution: A Supreme Court for the Union?" in Tridimas and Nebbia (Eds.), EU Law for the Twenty-First Century (Volume 1) (Hart Publishing, 2004);
371. Arnull, "From bit part to starring role? The Court of Justice and Europe's Constitutional Treaty", 24 YEL (2005), 1.
372. See Art. 260 TFEU.
373. This provision should be understood as referring to breach, not of the purely procedural obligation to notify implementing measures, but rather of the substantive duty to transpose directives fully and properly into national law: see further, e.g. Dougan, op. cit. supra note 10, 788.
374. nd ed, 2006) Ch 2;
375. Claes, "Judicial protection in the Area of Freedom, Security and Justice: Passing the hot potato?" in Schneider (Ed.), Migration, Integration and Citizenship: A Challenge for Europe's Future - Volume II (Forum Maastricht, 2005).
376. Section 9.2.
377. Cf. existing Art. 35(5) TEU.
378. See Art. 104a of the Court's Rules of Procedure on accelerated references, and Art. 104b on urgent references (as introduced by O.J. 2008, L 24/39).
379. Section 3.
380. See Chapter 2 of Title V TEU, together with Arts. 215 and 275 TFEU.
381. See further, e.g. Spaventa, "Fundamental what? The difficult relationship between foreign policy and fundamental rights" in Cremona and de Witte (Eds.), EU Foreign Relations Law: Constitutional Fundamentals (Hart Publishing, 2008).
382. See the current extent of the ECJ's jurisdiction over the TEU as set out in existing Art. 46 TEU.
383. Case T-306/01, Yusuf v. Council and Commission, [2005] ECR II-3533;
384. on appeal in Case C-415/05, Al-Barakaat, (Opinion of 23 Jan. 2008; judgment pending).
385. Similarly: Case T-315/01, Kadi v. Council and Commission, [2005] ECR II-3649; on appeal in Case C-402/05, Kadi, (Opinion of 16 Jan. 2008; judgment pending).
386. See also, e.g. Case T-253/02, Ayadi, [2006] ECR II-2139;
387. Case T-228/02, Organisation des Modjahedines du peuple d'Iran, [2006] ECR II-4665.
388. Cases C-354/04 & 355/04, SEGI, [2007] ECR I-1579. Presumably this jurisdiction is also subject to whatever limits are imposed by the Yusuf case law.
389. See further, e.g. Davies, "Segi and the future of judicial rights protection in the Third Pillar of the EU", 14 EPL (2008), (forthcoming).
390. In accordance with Art. 275 TFEU, which refers explicitly to "decisions" adopted by the Council "on the basis of Chapter 2 of Title V" TEU - a formulation which is clearly intended to cover the parent CFSP act as well as any subsidiary implementing regulations.
391. Under Arts. 215 and 75 TFEU (respectively). Again, presumably this jurisdiction is subject to whatever limits are imposed by the Yusuf case law.
392. Art. 263(1) TFEU. Cf. the extension of actions for failure to act to cover the European Council: Art. 265 TFEU.
393. Cf. Art. 263(5) TFEU, which provides that acts creating Union bodies and agencies "may lay down specific conditions and arrangements concerning actions brought by natural or legal persons against acts of these bodies, offices or agencies intended to produce legal effects in relation to them". Note also the extension of actions for failure to act to cover Union bodies, offices and agencies: Art. 265 TFEU.
394. Art. 263(3) CT.
395. Art. 8 of the Protocol on the application of the principles of subsidiarity and proportionality.
396. Section 6.3.
397. See further, e.g. Arnull et al., op. cit. supra note 11, Chapts. 13 and 14.
398. Case C-50/00, Unión de Pequeños Agricultores (UPA), [2002] ECR I-6677;
399. Case C-263/02 P, Jégo-Quéré, [2004] ECR I-3425.
400. See further, e.g. Usher, "Direct and individual concern: An effective remedy or a conventional solution?", 28 EL Rev. (2003), 575;
401. Dougan, op. cit. supra note 10, 763;
402. Schwarze, "The legal protection of the individual against regulations in European Union law", 10 EPL (2004), 285.
403. Case C-358/89, Extramet, [1991] ECR I-2501;
404. Case C-309/89, Codorniu, [1994] ECR I-1853.
405. Similarly, Art. 264 TFEU codifies the Court's case law on upholding the legal effects of void acts, e.g. Case C-271/94, Re Edicom Decision, [1996] ECR I-1689.
406. See CONV 636/03, p. 8;
407. CONV 734/03, p. 20.
408. Cf. Usher, op. cit. supra note 279, 599;
409. Koch, "Locus standi of private applicants under the EU Constitution: preserving gaps in the protection of individuals' right to an effective remedy", 30 EL Rev. (2005), 511.
410. Section 5.3.1.
411. Cf. Dougan, op. cit. supra note 10;
412. Barents, op. cit. supra note 255.
413. The Court's approach has tended so far only to encourage national courts to construe their own standing rules, as far as possible, so as to permit indirect challenges to Community measures to proceed to substantive consideration: see e.g. UPA, supra note 278;
414. Jégo-Quéré, supra note 278;
415. Case C-15/06, Regione Siciliana, [2007] ECR I-2591.
416. See further, e.g. Dougan, National Remedies before the Court of Justice: Issues of Harmonisation and Differentiation (Hart Publishing, 2004) Ch 6;
417. Cortes Martin, "Ubi ius, Ibi Remedium? Locus Standi of private applicants under Article 230(4) EC at a European constitutional crossroads", 11 MJ (2004), 233.
418. See, for analysis of the Convention proposals, e.g. den Boer, "Crime and the Constitution: A brief chronology of choices and circumventions", 11 MJ (2004), 143;
419. and of the CT provisions, e.g. Vogel, "The European integrated criminal justice system and its constitutional framework", 12 MJ (2005), 125.
420. Art. 83(2) TFEU. Cf. the existing position after Case C-176/03, Commission v. Council (Environmental Crimes), [2005] ECR I-7879 and Case C-440/05, Commission v. Council (Ship Source Pollution), judgment of 23 Oct. 2007, nyr.
421. Art. 86 TFEU.
422. Art. 77(3) TFEU.
423. Cf. existing Art. 34(2) TEU.
424. Section 5.2.2.
425. Section 8.2.
426. See Title IV TEU and Title III, Part Six TFEU. Cf. existing Arts. 40-40b and 43-45 TEU.
427. Art. 76 TFEU. See section 5.2.1.
428. E.g. Art. 77(3) TFEU on default powers to facilitate the free movement of Union citizens; Art. 81(3) TFEU on measures concerning family law with cross-border implications; Art. 87(3) TFEU on operational cooperation between national law enforcement services.
429. E.g. Art. 86(1) TFEU on establishing a European Public Prosecutor's Office.
430. I.e. as regards the establishment of a European Public Prosecutor's Office, or operational cooperation between national law enforcement services (other than measures that constitute a development of the Schengen acquis). Contrast with the ordinary procedure for authorizing an enhanced cooperation under Art. 329(1) TFEU.
431. I.e. judicial cooperation in criminal matters and the definition of criminal offences and sanctions under Arts. 82(3) and 88(3) TFEU (respectively).
432. Section 5.2.4.
433. See Art. 69 TFEU and Art. 7(2) of the Protocol on the application of the principles of subsidiarity and proportionality. See section 6.3. Note also the national parliaments' involvement in the evaluation / scrutiny of certain Title V activities, e.g. Arts. 85 and 88 TFEU on Eurojust and Europol (respectively).
434. Excluding national law-enforcement agencies; cf. section 8.2 supra.
435. In which regard, consider Declaration No 50 annexed to the Final Act.
436. See, e.g. Spaventa, "Remembrance of principles lost: On fundamental rights, the Third Pillar and the scope of Union law", 25 YEL (2006), 153.
437. See Arts. 10(4)-(5) of the Protocol on Transitional Provisions.
438. With the exception of subsequently amended acts already applicable as such to the UK.
439. See Arts. 5(3)-(5) of the amended Schengen Protocol.
440. Case C-77/05, United Kingdom v. Council and Case C-137/05, United Kingdom v. Council, judgments of 18 Dec. 2007, nyr.
441. Case C-77/05, United Kingdom v. Council, and Case C-137/05 United Kingdom v. Council, Opinions of 10 July 2007.
442. Art. 83(2) TFEU.
443. Environmental Crimes case and Ship Source Pollution case, both supra note 287.
444. Art. 77(3) TFEU.
445. Art. 4a of the Protocol.
446. Art. 6a of the Protocol.
447. Art. 9 of the Protocol.
448. See Declaration No 65 annexed to the Final Act.
449. By contrast, Ireland has signalled its intention to review its current position under the AFSJ within three years of the TL's entry into force: see Declaration No 56 annexed to the Final Act.
450. See Art. 2 of the Protocol.
451. Art. 2a of the Protocol.
452. Note also Art. 20(4) TEU: enhanced cooperation measures are not part of the acquis which must be accepted by candidate countries.
453. See further: Dougan, op. cit. supra note 4.
454. If, after two years, four fifths of the Member States have ratified the amendments and one or more Member States have encountered difficulties in ratification, the matter shall be referred to European Council.
455. See sections 5.2.3 and 5.3.1.
456. And the ECB, in the case of institutional changes in the monetary area.
457. Art. 14(2) TEU. See section 4.3.
458. See Art. 2 of the Protocol on the Euro Group.
459. As referred to in the preambles to both the TEU and TFEU, and in Art. 1, second para TEU itself.
460. A reform admittedly already envisaged by the existing Treaties: see Art. 213(1) EC as amended by Art. 4 of the Protocol on enlargement of the European Union; and also (specifically as regards the period of entry into force) by the Treaty of Accession 2003.
461. Directive 2006/123, O.J. 2006, L 376/36.
462. Note that Art. 17(3) TEU and Art. 245 TFEU guarantee the Commission's institutional independence, rather than its political agnosticism.
463. See further, e.g. Blondel, Sinnott & Svensson (Eds.), People and Parliament in the European Union: Participation, Democracy and Legitimacy (Clarendon Press, 1998);
464. Schmitt and Thomassen (Eds.), Political Representation and Legitimacy in the European Union (OUP, 1999);
465. Steunenberg and Thomassen (Eds.), The European Parliament: Moving Toward Democracy in the EU (Rowan & Littlefield Publishers, 2002).
466. See further, e.g. Temple Lang, "Checks and balances in the European Union: The institutional structure and the Community method", 12 EPL (2006), 127.
467. Contrast the final TL reforms with the Convention's original proposals for two tiers (voting and non-voting) of Commissioners: see Dougan, op. cit. supra note 10, 777-779.
468. On the European External Action Service, see Art. 27 TEU. Note, in particular, that the EEAS will be composed of officials from the General Secretariat of the Council, as well as from the Commission, and of staff seconded from the national diplomatic services.
469. Note also the High Representative's relative independence from censure by either the Commission President (Arts. 17(6) and 18(1) TEU) or the European Parliament (Art. 17(8) TEU and Art. 234 TFEU).
470. Though such an outcome is far from assured: see section 4.1.
471. Cf. "Barroso worried Commission could take a hit in new EU Treaty" (www.euob-server.com on 9 Oct. 2007).
472. Section 10.3.
473. See, for praise of the Convention method, e.g. Lenaerts and Gerard, op. cit. supra note 10. Cf. Craig, "Constitutional process and reform in the EU: Nice, Laeken, the Convention and the IGC", 10 EPL (2004), 653;
474. Monjal, "Le projet de traité établissant une Constitution pour l'Europe: quels fondements théoriques pour le droit constitutionnel de l'Union européenne?", 40 RTDE (2004), 443.
475. See, e.g. House of Commons European Scrutiny Committee, European Union Intergovernmental Conference (35th Report of Session 2006-2007, published in October 2007).
476. See the Presidency Conclusions of 23 June 2007, esp. paras. 1-4 of Annex I.
477. Section 8.3 supra.
478. Section 7.2 supra..
479. Though such caution is hardly evident in rulings such as Viking Line and Laval un Partneri, both cited supra note 228.
480. Art. I-6 CT.
481. See further, e.g. Dougan, op. cit. supra note 233.
482. See further, e.g. Cramér, "Does the codification of the principle of supremacy matter?", 7 CYELS (2004-2005), 57.
483. For a broader discussion of national sovereignty and the CT, see Albi and van Elsuwege, "The EU Constitution, national constitutions and sovereignty: An assessment of a European constitutional order", 29 EL Rev. (2004), 741.
484. Declaration No 17 annexed to the Final Act.
485. Cf. Editorial, "From the Constitution to a new round of Treaty amendments: Step-by-step", 44 CML Rev. (2007), 1229.
486. A traditional reference among English lawyers about how to gauge the views of the average citizen.
487. As reported on www.euobserver.com (30 Oct. 2007 and 4 Feb. 2008). Indeed, consider "EU public wants referendums on new Treaty, survey says" (18 June 2007).
488. To use the phrase employed by the Commission in A Citizens 'Agenda: Delivering Results for Europe, COM(2006)211 Final.
489. That certainly seems to have been the view of the European Council at its meeting in December 2007: see Presidency Conclusions of 14 Dec. 2007, para 6. Note that the "Reflection Group" set up to consider the long term challenges facing the Union is specifically instructed not to consider institutional matters: see paras. 8-13 of the Presidency Conclusions. It is interesting to observe that the European Parliament in its opinion on the IGC mandate signalled its resolve to put forward "new proposals for a further constitutional settlement for the Union" after the 2009 elections (Resolution of 11 July 2007, para 21); but there is no mention of such proposals in the European Parliament's opinion on the final TL, which describes the latter as providing "a stable framework which will allow further development of the Union in future" (Resolution of 20 Feb. 2008, para 8).