In the Treaty of Lisbon version of the Treaty on European Union (TEU), among the Final provisions, we find the new Article 49b (OJ 17.12.2007 C 306/40), slim as the lid of Pandora’s box:
59) The following Article 49 B shall be inserted:
Article 49 B
The Protocols and Annexes to the Treaties shall form an integral part thereof.
***
There is no corresponding Article in the existing TEU, but Article 311 of the Treaty establishing the European Community (TEC) has the following wording (for the latest consolidated version of the TEU and TEC go to OJ 29.12.2006 C 321 E):
Article 311
The protocols annexed to this Treaty by common accord of the Member States shall form an integral part thereof.
According to the Lisbon Treaty, Article 311 TEC is repealed (OJ 17.12.2007 C 306/132, point 293).
***
Since the European Convention’s draft Treaty establishing a Constitution for Europe was unified, the corresponding Article IV-6 referred to the whole Treaty (OJ 18.7.2003 C 169/92):
Article IV-6
Protocols
The protocols annexed to this Treaty shall form an integral part thereof.
***
The same unified structure applied to the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/189):
Article IV-442
Protocols and Annexes
The Protocols and Annexes to this Treaty shall form an integral part thereof.
***
In the law of the European Union, a new legal order, the Treaties are primary legislation. Currently the Treaties are the Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC). If the Treaty of Lisbon enters into force, there would be the amended Treaty on European Union (TEU) and the amended and renamed Treaty on the Functioning of the European Union (TFEU).
The current TEC speaks of the protocols as an integral part of the Treaty, as did the draft Constitution. The Constitution added the Annexes to the Protocols (annexed to the Treaty by common accord), as does the Lisbon Treaty. The scope of the provision widens from the EC to the EU.
The Protocols form an integral part of the Treaties, and they are ratified as such. They have legal force, and they can contain detailed provisions meant not to burden the Treaty texts themselves.
The Declarations have political force, but are not to be legally binding. There have been joint Declarations, based on common accord, and unilateral Declarations made by one or more member states, but not politically binding on the whole.
The new wording ‘and Annexes’ merits attention. The UK House of Commons new Research Paper (page 75) a bit hastily says that Article 49b “like the present Article 311 TEC, states that the Protocols and Annexes will form an integral part of the Treaties”.
As we have seen, the words “and Annexes” have been added, although Article 311 TEC uses the phrase “(t)he protocols annexed to this Treaty by common accord of the Member States”. But the conclusion of the Research Paper seems sound:
“This is a new clause in the TEU, extending the application of current Article 311 TEC, which is repealed. It means the Protocols and Annexes will have the full legal effect of the Treaty articles themselves. This is not the case for Declarations attached to the Treaties.”
***
We can now take a look at how the intergovernmental conference (IGC 2007) has structured its Final Act (OJ 2007/C 306/02).
As far as I understand, the legally binding parts are:
I the TEU and the TFEU
II the Protocols, namely:
A. Protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community, and/or the Treaty establishing the European Atomic Energy Community
B. Protocols annexed to the Treaty of Lisbon
III. Annex to the Treaty of Lisbon (tables of equivalences)
They form an integral part of the Treaties.
FINAL ACT (OJ 17.12.2007 C 306/229)
THE CONFERENCE OF THE REPRESENTATIVES OF THE GOVERNMENTS OF THE MEMBER STATES,
convened in Brussels on 23 July 2007 to adopt by common accord the amendments to be made to theTreaty on European Union, the Treaty establishing the European Community, and to the Treaty establishing the European Atomic Energy Community, has adopted the following texts:
I. The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community
II. Protocols
A. Protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community, and/or the Treaty establishing the European Atomic Energy Community:
— Protocol on the role of national Parliaments in the European Union
— Protocol on the application of the principles of subsidiarity and proportionality
— Protocol on the Euro Group
— Protocol on permanent structured cooperation established by Article 28 A of the Treaty on European Union
— Protocol relating to Article 6(2) of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms
— Protocol on the internal market and competition
— Protocol on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom
— Protocol on the exercise of shared competence
— Protocol on services of general interest
— Protocol on the Decision of the Council relating to the implementation of Article 9 C(4) of the Treaty on European Union and Article 205(2) of the Treaty on the Functioning of the European Union between 1 November 2014 and 31 March 2017 on the one hand, and as from 1 April 2017 on the other
— Protocol on transitional provisions
These are mainly new Protocols, some of them derived from the Constitutional Treaty and some the result of the IGC 2007 negotiations.
***
B. Protocols annexed to the Treaty of Lisbon
— Protocol No 1 amending the Protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community and/or to the Treaty establishing the European Atomic Energy Community
— Tables of equivalences referred to in Article 2 of Protocol No 1 amending the protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community and/or the Treaty establishing the European Atomic Energy Community
— Protocol No 2 amending the Treaty establishing the European Atomic Energy Community
Behind Protocol 1 of this group we find adaptations to 26 existing Protocols, including rules for the Court of Justice and the European Central Bank, as well as traditional opt-outs from areas of Community (EU) law for the United Kingdom, Ireland and Denmark.
Ten redundant Protocols are repealed according to the count of the Swedish government (page 398).
Protocol number 2 is an adaptation of the Treaty establishing the European Atomic Energy Community (EAEC). – In Declaration 54 the Federal Republic of Germany, Ireland, the
Republic of Hungary, the Republic of Austria and the Kingdom of Sweden note that the core provisions of the Treaty establishing the European Atomic Energy Community have not been substantially amended since its entry into force and need to be brought up to date. They therefore support the idea of a Conference of the Representatives of the Governments of the Member States, which should be convened as soon as possible.
***
III. Annex to the Treaty of Lisbon:
— Tables of equivalences referred to in Article 5 of the Treaty of Lisbon
This binding Annex contains the tables with the numbering of the current TEU, the original numbering of the Treaty of Lisbon and the numbering for the future consolidated TEU. The same goes for the TEC, the Treaty of Lisbon and the consolidated TFEU.
In addition to the current, Lisbon and future numbers of Articles, we have the Lisbon Treaty itself, divided into seven Articles. “Article 5 of the Treaty of Lisbon” refers to this numbering, under the Final Provisions in the Official Journal, page 133, where the renumbering is ordered:
Article 5(1) ToL
1. The articles, sections, chapters, titles and parts of the Treaty on European Union and of the
Treaty establishing the European Community, as amended by this Treaty, shall be renumbered in accordance with the tables of equivalences set out in the Annex to this Treaty, and which form an integral part of this Treaty.
The reader who feels slightly bewildered is excused.
***
The Declarations adopted by the IGC 2007 are annexed to the Final Act, but not to the Treaty. The joint Declarations would still be politically but not legally binding on the member states as a whole. There are two groups of joint Declarations:
A. Declarations concerning provisions of the Treaties
B. Declarations concerning Protocols annexed to the Treaties
The Conference has adopted the following declarations annexed to this Final Act.
A. Declarations concerning provisions of the Treaties
1. Declaration concerning the Charter of Fundamental Rights of the European Union
2. Declaration on Article 6(2) of the Treaty on European Union
3. Declaration on Article 7a of the Treaty on European Union
4. Declaration on the composition of the European Parliament
5. Declaration on the political agreement by the European Council concerning the draft Decision on the composition of the European Parliament
6. Declaration on Articles 9 B(5) and (6), Articles 9 D(6) and (7), and Article 9 E of the Treaty on European Union
7. Declaration on Article 9 C(4) of the Treaty on European Union and Article 205(2) of the Treaty on the Functioning of the European Union
8. Declaration on practical measures to be taken upon the entry into force of the Treaty of Lisbon as regards the Presidency of the European Council and of the Foreign Affairs Council
9. Declaration on Article 9 C(9) of the Treaty on European Union concerning the European Council decision on the exercise of the Presidency of the Council
10. Declaration on Article 9 D of the Treaty on European Union
11. Declaration on Article 9 D(6) and (7) of the Treaty on European Union
12. Declaration on Article 9 E of the Treaty on European Union
13. Declaration concerning the common foreign and security policy
14. Declaration concerning the common foreign and security policy
15. Declaration on Article 13a of the Treaty on European Union
16. Declaration on Article 53(2) of the Treaty on European Union
17. Declaration concerning primacy
18. Declaration in relation to the delimitation of competences
19. Declaration on Article 3 of the Treaty on the Functioning of the European Union
20. Declaration on Article 16 B of the Treaty on the Functioning of the European Union
21. Declaration on the protection of personal data in the fields of judicial cooperation in criminal matters and police cooperation
22. Declaration on Articles 42 and 63a of the Treaty on the Functioning of the European Union
23. Declaration on the second paragraph of Article 42 of the Treaty on the Functioning of the European Union
24. Declaration concerning the legal personality of the European Union
25. Declaration on Articles 61 H and 188 K of the Treaty on the Functioning of the European Union
26. Declaration on non-participation by a Member State in a measure based on Title IV of Part Three of the Treaty on the Functioning of the European Union
27. Declaration on Article 69 D(1), second subparagraph, of the Treaty on the Functioning of the European Union
28. Declaration on Article 78 of the Treaty on the Functioning of the European Union
29. Declaration on Article 87(2)(c) of the Treaty on the Functioning of the European Union
30. Declaration on Article 104 of the Treaty on the Functioning of the European Union
31. Declaration on Article 140 of the Treaty on the Functioning of the European Union
32. Declaration on Article 152(4)(c) of the Treaty on the Functioning of the European Union
33. Declaration on Article 158 of the Treaty on the Functioning of the European Union
34. Declaration on Article 163 of the Treaty on the Functioning of the European Union
35. Declaration on Article 176 A of the Treaty on the Functioning of the European Union
36. Declaration on Article 188 N of the Treaty on the Functioning of the European Union concerning the negotiation and conclusion of international agreements by Member States relating to the area of freedom, security and justice
37. Declaration on Article 188 R of the Treaty on the Functioning of the European Union
38. Declaration on Article 222 of the Treaty on the Functioning of the European Union regarding the number of Advocates-General in the Court of Justice
39. Declaration on Article 249 B of the Treaty on the Functioning of the European Union
40. Declaration on Article 280 D of the Treaty on the Functioning of the European Union
41. Declaration on Article 308 of the Treaty on the Functioning of the European Union
42. Declaration on Article 308 of the Treaty on the Functioning of the European Union
43. Declaration on Article 311a(6) of the Treaty on the Functioning of the European Union
B. Declarations concerning Protocols annexed to the Treaties
44. Declaration on Article 5 of the Protocol on the Schengen acquis integrated into the framework of the European Union
45. Declaration on Article 5(2) of the Protocol on the Schengen acquis integrated into the framework of the European Union
46. Declaration on Article 5(3) of the Protocol on the Schengen acquis integrated into the framework of the European Union
47. Declaration on Article 5(3), (4) and (5) of the Protocol on the Schengen acquis integrated into the framework of the European Union
48. Declaration concerning the Protocol on the position of Denmark
49. Declaration concerning Italy
50. Declaration concerning Article 10 of the Protocol on transitional provisions
***
Then there are the unilateral Declarations, by one or more member states, without legal force for the whole, but expressing the political intent of the declarants.
Furthermore, the Conference has noted the declarations listed hereafter and annexed to this Final Act:
51. Declaration by the Kingdom of Belgium on national Parliaments
52. Declaration by the Kingdom of Belgium, the Republic of Bulgaria, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the Italian Republic, the Republic of Cyprus, the Republic of Lithuania, the Grand-Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Republic of Austria, the Portuguese Republic, Romania, the Republic of Slovenia, and the Slovak Republic on the symbols of the European Union
53. Declaration by the Czech Republic on the Charter of Fundamental Rights of the European Union
54. Declaration by the Federal Republic of Germany, Ireland, the Republic of Hungary, the Republic of Austria and the Kingdom of Sweden
55. Declaration by the Kingdom of Spain and the United Kingdom of Great Britain and Northern Ireland
56. Declaration by Ireland on Article 3 of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice
57. Declaration by the Italian Republic on the composition of the European Parliament
58. Declaration by the Republic of Latvia, the Republic of Hungary and the Republic of Malta on the spelling of the name of the single currency in the Treaties
59. Declaration by the Kingdom of the Netherlands on Article 270a of the Treaty on the Functioning of the European Union
60. Declaration by the Kingdom of the Netherlands on Article 311a of the Treaty on the Functioning of the European Union
61. Declaration by the Republic of Poland on the Charter of Fundamental Rights of the European Union
62. Declaration by the Republic of Poland concerning the Protocol on the application of the Charter of Fundamental Rights of the European Union in relation to Poland and the United Kingdom
63. Declaration by the United Kingdom of Great Britain and Northern Ireland on the definition of the term ‘nationals’
64. Declaration by the United Kingdom of Great Britain and Northern Ireland on the franchise for elections to the European Parliament
65. Declaration by the United Kingdom of Great Britain and Northern Ireland on Article 61 H of the Treaty on the Functioning of the European Union
***
If my understanding is correct, the only legally binding addition to the Treaties themselves and the Protocols is the Annex containing the tables of equivalences. Thus, there is no change concerning the political nature of the Declarations annexed to the Final Act, but not to the Treaties.
Ralf Grahn
Sources:
UK House of Commons Library Research Paper 08/09, 24 January 2008: The Treaty of Lisbon: amendments to the Treaty on European Union
http://www.parliament.uk/commons/lib/research/rp2008/rp08-009.pdf
Government of Sweden, Regeringskansliet: Lissabonfördraget, Statsrådsberedningen, Departementsserien (Ds) Ds 2007:48, 20 december 2007
http://www.regeringen.se/sb/d/108/a/94981
Government of Denmark: Lov om aendring af lov om Danmarks tiltraedelse af De Europaeiske Faelleskaber og Den Europaeiske Union (Danmarks ratification af Lissabon-traktaten); Lovforslag nr. L 53, Fremsat den 9. januar 2008 af udenrigsministeren (Per Stig Møller); Bind III
http://www.eu-oplysningen.dk/upload/application/pdf/c510022c/BindIII.pdf
Wednesday, 6 February 2008
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ReplyDeleteThe Declarations have political force, but are not to be legally binding. There have been joint Declarations, based on common accord, and unilateral Declarations made by one or more member states, but not politically binding on the whole.
I find a problem with your statement. Declaration 27 states that, despite not beiong included in the Treaty, it is attached, and remember, EU States, that EU law has Primacy, whether you sign this Treaty or not. OK, these are my emotive words, but I don't feel, as is so often the case with the Brussels Government, that things are ever as simple as they first appear.
The whole Declaration is reproduced below, which has now been renumbered Declaration 27.
27. Declaration concerning primacy
The Conference recalls that, in accordance with well settled case law of the EU Court of Justice, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.
The Conference has also decided to attach as an Annex to this Final Act the Opinion of the Council Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260):
"Opinion of the Council Legal Service
of 22 June 2007
It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL,15 July 1964, Case 6/641 Note 1) there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice."
Note 1 "It follows (…) that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question."
CIG 3/1/07 REV 1
All most interesting were we sure that contrary to it present practises the EU planned to abide by the Treaties.
ReplyDeleteAs you are now quoting in support of your explanations items placed in the House of Commons library by Britain's dishonourable and lying government, could you perhaps offer a comment on this point on the protocols made on the floor of the House yesterday, as reported by hansard:
Mr. Philip Hammond (Runnymede and Weybridge) (Con)
"6 Feb 2008 : Column 999
Finally, I turn to the legal implications of the changes to the treaty and the impact that they will have on EU jurisprudence. The Secretary of State said that there were none, and that nothing would change. But there are serious concerns that the changes to the treaty will undermine the political and constitutional support for anti-trust action by the EU and will inevitably have an impact on the ECJ’s interpretation of EU law. It is true that the protocol has the same legal force as the treaty itself, but the Vienna Convention on the Law of Treaties emphasises the importance of objective and purpose as a guide to the interpretation of treaties.
The ECJ has developed a “purposive interpretation” tradition to deal with conflicts. In other words, it considers the objectives and purposes of the Union in deciding which of the conflicting arguments should be given greater weight. In relation to how the Court conducts itself, it is a simple matter of fact that no mere protocol can achieve the same interpretative status as an article of principle or an objective in the treaty itself."
http://www.publications.parliament.uk/pa/cm200708/cmhansrd/cm080206/debtext/80206-0010.htm
Alfred, as I understand it, the declaration on primacy of EU law follows the normal pattern.
ReplyDeleteIt is not a protocol with legal force, but it is a joint declaration politically binding on all the national governments, since they have all agreed on the contents.
But, in practice it does not do that much, since the doctrine is well established by the Court of Justice.
In my view, the new Lisbon treaty would have given a clearer view to its readers if there had been a clause on primacy, as in the Constitutional Treaty.
Martin, as I am favourably disposed towards clear and comprehensive legislation, as well as transparency and accountability, I am no friend of tucking away different items unnecessarily in protocols or declarations (speaking of the EU treaties).
ReplyDeleteFree and undistorted competition is a key element to a well functioning internal market and to European competitiveness in the long run.
I regret the demotion of a clear objective from the treaty to a fuzzy protocol, although I believe that the actual damage is going to be limited.
This, as many other less than ideal outcomes are, of course, daily bread in politics (everywhere), but the problems are accentuated in a setting which requires unanimous decisions, which translate into 'liberum veto'.
This was an example of French veto power utilised to placate domestic opinion.
But if we use that as a measure, the UK surely must be in a league of its own.
This was an example of French veto power utilised to placate domestic opinion.
ReplyDeleteBut if we use that as a measure, the UK surely must be in a league of its own.
Interesting how we can see things so differently. Yes, the vetos have been used to attempt to placate domestic opinion, but the tone of your remark suggests that this was a bad thing to do. (Please excuse me if I do you an injustice here)
It might just be that domestic opinion is not fickle, but is becoming better and better informed about the federal ambitions of this Brussels Government and more and more concerned about its almost daily impact in attempting to change life in the UK. If mainland european countries want to come under a federal Brussels Government, that is their choice. The British people seem to be saying louder and louder that they want the opportunity to make this choice as well, as our politicians seem to have the wool pulled over their eyes. Thank God for people like Mr. Philip Hammond (Runnymede and Weybridge) (Con)
Alfred, I admit my lack of admiration for populist behaviour of leading politicians, whatever their nationality.
ReplyDeleteMy modest viewpoint is to look at our common interests as an EU citizen, and to the extent possible abstain from national bias.
This leads to the basic choice that I want to critisize the underdeveloped nature of democracy at the EU level, in order to improve it, not to abolish what there already is.
"My modest viewpoint is to look at our common interests as an EU citizen, and to the extent possible abstain from national bias.... I want to critisize the underdeveloped nature of democracy at the EU level, in order to improve it, not to abolish what there already is."
ReplyDeleteI love working in mainland Europe, working with European countries, holidaying there, but I am beginning to detest the operations of the European Government.
I do wonder if it is actually possible to improve the democratic deficit. many have tried. The very structure and workings of the Brussels Government seem to work against effective democracy. As I've said before, the EU Parliament might appear democratic, at first glance, in that we elect our representatives, but they are almost completely ineffective. No opposition, miniscule amount of time to debate each item of legislation, or other important matters, movements of politicians criticising the parliament are crushed in a way that makes historians tremble. I see slight improvements in the Lisbon treaty but I see a Commission purely focused on implementing a federal state that wants to interfere with almost all aspects of our lives and control all the powers that we thought belonged to national parliaments.
Alfred, my first concern is a working democracy, which requires reforms beyond the Lisbon Treaty. Second, I think that Alexander Hamilton was very near the truth, when he described the fundamental matters the proposed union was needed for. (Quoted in some of my older posts.)
ReplyDeleteThe rest is best left to the states, especially in Europe where traditions, cultures, languages and political sensitivities are different from one country to the next.
As you say, Alexander Hamilton in the Federalist Papers, number XXIII:
ReplyDeleteThe principal purposes to be answered by the union are these – the common defense of the members; the preservation of the public peace, as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries.”
But there is a fundamental difference. The States were united in not just a common culture, but also in a common goal of ridding itself of British Oppression. The European States have hugely varying cultures and differing goals. The UK has a history of supporting individual rights and freedoms that, from my perspective anyway, are secondary in some European States, still focussed on the horrors of WWII. But weren't we achieving much of this very effectively through NATO and EFTA which required Intergovernmental cooperation rather than supranational imposition?
As you say
The rest is best left to the states, especially in Europe where traditions, cultures, languages and political sensitivities are different from one country to the next.
But the Brussels Government seems not to want to leave anything for national governments to do, judging by the Tsunami of legislation that has flooded our shores over the last few years, and the removal of competencies from us. It wants to dictate our lives down to considerable detail. If you genuinely believe that you can stem this flood and reverse this trend, then I take my hat off to you. Those are very honorable aspirations.
Alfred, thank you for taking the trouble to locate the quote from the Federalist.
ReplyDeleteI readily admit that I admire the foresight of the Founding Fathers, the Continental vision they had when framing a Constitution for 13 disparate former colonies.
Establishing a system of democratic governance as an improvement on British parlamentarianism and at the same time creating a federal system, with few precedents, more than two centuries ago, was a defining moment, not only for the USA, but for the rest of the world.
You must understand as I do, that I won't personally create an EUtopia, so your hat will stay safely on.
But I want to make a small contribution a) towards a better understanding of EU/EC law and b)sharing my personal thoughts on the advantages and failings of European integration.