Will the link with the European Parliament become stronger?

4.101.  Other witnesses have argued that the terms of the Treaty will do little but reinforce already close ties between the Commission and the European Parliament. Sir Stephen Wall told us that there would be a "closer linkage" between the outcome of European Parliamentary elections and the selection of the Commission President (Q S222), and that "there is probably going to be greater regard for political balance as well as geographical balance" in the selection of the leaders of the European Union, but that this would not just apply to the President of the Commission (Q S224). The requirement to take account of European Parliament election results in selecting the nominee for President "could be important" in the view of Professor Peers, but in his opinion this already appeared to be a factor in the 2004 selection. He told us that "there appears to be nothing to prevent it becoming a factor on a regular basis under the present system" since the party with the largest group in the Parliament "will be reluctant to support a nominee with a different political background". The provision in the Lisbon Treaty "would likely cement the significance of this factor". Professor Peers also pointed out that it would be possible under the existing Treaty framework for European Parliamentary parties to nominate candidates for President and "try to insist that EU leaders select the candidate whose party secured the biggest number of votes in elections" (p S153).

4.102.  The Minister for Europe considered that the current situation, where a nomination was put to the European Parliament for its agreement or dissent, "will still be the case under the Lisbon Treaty". In his opinion, "[w]hat is different" was the phrase requiring the European Council to take into account the Parliament's election result. This he called "a statement of the political reality", because under the current Treaties, "the fact is that a candidate proposed to the European Parliament that did not command the support of the majority of the European Parliament would not be elected by the European Parliament". Therefore, "in an operational sense, a practical sense and even a political sense, that changed phraseology has no impact; it simply codifies … the current arrangements as they stand" (Q S266).

4.103.  The Minister thought that the fact that a European Parliamentary party had supported a particular candidate during campaigning "may be" taken into account in the European Council's nomination for a President, but he thought this outcome unlikely. If the parties were to support candidates, that might "send a signal" to the European Council in its nomination, but "there is no sense that that is what is currently being considered at all". The parties would have "no formal influence". Furthermore, he would be surprised if a party was able to agree on a candidate and surprised if they chose to do so, and he thought "it would seem in many capitals to be extraordinarily presumptuous" (Q S269).

4.104.  Professor Hix told us that the "election" of the Commission President by the European Parliament was not a real change and that in practice, "the procedure for selecting the Commission President in the Reform Treaty is exactly the same as the existing procedure" (p S145). The European Council "already has to 'take account' of the results of the European elections", so the Lisbon Treaty provisions were "purely symbolic" (p S146).

The possibility of packaging

4.105.  Frank Vibert[41] saw a graduated role for the European Parliament in the selection of three of the senior leaders of the European Union, as shown in his table (p S158). However, in his opinion a "highly important qualification to this picture" was to be found in Declaration 6 of the IGC, which reads: "In choosing the persons called upon to hold the offices of the President of the European Council, President of the Commission and High Representative of the Union for Foreign Affairs and Security Policy, due account is to be taken of the need to respect the geographical and demographic diversity of the Union and its Member States." According to Mr Vibert, this implied that "the three appointments are to be chosen as a package", following inter-institutional bargaining between the European Parliament and the Council (p S159).

4.106.  Mr Vibert questioned whether this arrangement would produce the people most suited for these very different positions. He also wondered whether the arrangement would be seen as a step forward for parliamentary democracy, and whether the package would be viewed by the electorates as providing for a "balanced ticket" which would be more broadly representative. Mr Vibert felt that there was a danger that caucusing by party groupings within the Parliament accompanying the selection procedure might appear as "a division of the spoils of office between Council and Parliament" (p S159).

CONCLUSIONS

4.107.  The Commission will have a clearer role in justice and home affairs following the merger of the first and third pillars. The Commission retains its near-monopoly of legislative initiative.

4.108.  The reduction in the size of the College of Commissioners is an important change, and is intended to enable the Commission to function more effectively. If this is not the outcome, the European Council will be able to rethink its composition. The provision that seats be allocated on a strict rotation basis will mean that each Member State will not have a Commissioner of its nationality in the College for five years out of every 15. Although Commissioners ought not to be regarded as national representatives, the concern that a Member State without a Commissioner is disadvantaged will undoubtedly be raised, whether or not it is justified. The rotation rule will also be an arbitrary influence on the College's membership, and will restrict the candidates available for the posts of President of the Commission and High Representative.

4.109.  The Treaty states that the European Council will need to take into account the elections to the European Parliament in nominating its candidate for election by the European Parliament to the post of Commission President. One consequence of this is that the European Parliamentary parties are more likely to go into European Parliamentary elections with proposed candidates for Commission President as well as their parliamentary candidates and programmes. The need for the European Council to take into account the results of the parliamentary elections is not a bar to the European Council coming to its own decision as to its preferred candidate, but the Council will continue to be unlikely to nominate a candidate who could not command the parliamentary majority necessary for election. In that sense there is no fundamental change from the current system which requires the Parliament's approval of the European Council's nominee, but the practical consequences of the Treaty provisions are as yet unclear.

4.110.  The Treaty adds little to the formal powers of the Commission President. A more effective Commission could strengthen the Commission President's position in the balance of power among the institutions. This should be seen in the context of other factors affecting this balance (see below).

The impact of the Treaty on the European Parliament

FUNCTION

4.111.  Under the Lisbon Treaty the role of the European Parliament (EP) is increased[42]. Symbolically, the European Parliament is described as exercising legislative functions "jointly" with the Council, rather than simply exercising "the powers conferred upon it" by the TEC, in recognition of the increasing role of co-decision in Union legislation. It will also exercise budgetary functions jointly with the Council (see Chapter 10), and have an increased role in Treaty revision (see below) and in the selection of senior European Union leaders (as discussed above) (Article 189 of the TEC; Article 14 of the amended TEU).

THE EXTENSION OF CO-DECISION

4.112.  Under the Treaty, the co-decision method of legislating, whereby the Council and European Parliament are equal partners in the formation of legislation, is renamed the "ordinary legislative procedure" (Article 294 TFEU). The change is more than semantic: co-decision is extended to a substantially wider range of areas (the change is made by alterations to the specific articles dealing with each of these areas). The Government's assessment is that there are 40 moves to co-decision in the Treaty (Q S271). Of these, Andrew Duff MEP felt that "[p]articularly important is the extension of co-decision into agriculture, fisheries, transport and structural funds—in addition to the whole of the current 'third pillar' of justice and interior affairs" (p S135). Co-decision is not extended to the CFSP.

4.113.  Professor Peers told us that "it is appropriate to extend the co-decision powers of the EP to all areas where the Council adopts legislation by QMV" (p S152).

4.114.  Many witnesses saw the extension of co-decision as heralding a substantially expanded role for the European Parliament. John Palmer told us that under the Lisbon Treaty the European Parliament would have "greater powers and potentially greater influence" (p S14); Neil O'Brien agreed that "there are a lot of new powers for the Parliament" (Q S81); Professor Peers thought the Treaty "will impact significantly on the EP's powers" (p S152). Brendan Donnelly considered that "[t]he extension of the co-decision procedure will undoubtedly increase the influence of the European Parliament in a number of policy areas where until now its legislative role has been limited" (p S133).

4.115.  Richard Corbett MEP told us that the ordinary legislative procedure will apply "to virtually all European legislation. In the few cases where it does not apply, in many of those there will still be consent or assent of the Parliament to an act of the Council or, indeed the other way around" (Q S330). Andrew Duff MEP reiterated to us that "[t]he European Parliament now becomes the co-equal legislator for almost all European laws" (p S135).

Other alterations to the European Parliament's role

4.116.  There are also other additions to the European Parliament's strength. Andrew Duff MEP noted that "Parliament has to approve all … association agreements, and those with budgetary or institutional implications" (p S137). According to Mr Duff, "[t]he new budgetary procedure ensures full parity between Parliament and Council for approval of the whole annual budget" (p S135)—an issue that is explored below (in Chapter 10). According to the EP Committee on Constitutional Affairs report, the Treaty is "thus ensuring full parity between Parliament and Council as regards approval of the whole annual budget" (European Parliament resolution of 20 February 2008 on the Treaty of Lisbon, point 2(d)). Professor Peers also identified an extension of the Parliament's powers over the conclusion of international treaties (p S152): the Parliament was now asked for consent rather than assent in a number of cases (Article 218, amended TFEU).

4.117.  The European Parliament is given an enhanced role in deliberations on any future revisions of the Treaties, as discussed above (Chapter 3). The EP Committee on Constitutional Affairs report calls the new procedures "more open and democratic" (European Parliament resolution of 20 February 2008 on the Treaty of Lisbon, point 2(i)).

4.118.  The European Parliament also gains a role in the conferral of delegated powers. Article 202 TEC currently provides that the Council may confer implementing powers on the Commission to adopt detailed rules within the framework of legislation adopted by the Council or by the Council and the European Parliament. This Article is replaced by two new Articles on delegated powers, Article 290 and Article 291. Under the revised provisions, a legislative act itself can delegate the power (rather than the Council), thereby empowering the European Parliament in situations of co-decision. It is explicitly provided that the legislative act may give the European Parliament or the Council power to revoke the delegation of a power. Article 291 provides that legislative acts can confer implementing powers on the Commission subject to the supervision of committees of representatives of the Member States ("comitology").

4.119.  In describing these changes to delegated legislation, Andrew Duff MEP stated that under the Lisbon Treaty, "[the European] Parliament and Council have co-equal powers to decide how to control delegated and implementing acts (comitology)" (p S138). The report of the European Parliament Constitutional Affairs Committee says that "democratic control in relation to the legislative powers delegated to the Commission will be reinforced through a new system of supervision in which the European Parliament or the Council may either call back Commission decisions or revoke the delegation of such powers" (European Parliament resolution of 20 February 2008 on the Treaty of Lisbon, point 2(e)). Richard Corbett MEP called these powers "an extra safeguard" (Q S330).

4.120.  There will also be greater scrutiny by the European Parliament of agencies, notably Europol (Article 88, TFEU) (European Parliament resolution of 20 February 2008 on the Treaty of Lisbon, point 2(h)), and the Parliament is asked for consent rather than simply consulted in relation to actions to combat discrimination (Article 19, TFEU) and to strengthen the rights of Union citizens (Article 25, TFEU).

4.121.  Finally, and as already discussed, the European Parliament will have a significant relationship with three of the five senior leaders of the Union. The Commission President will be elected by the European Parliament on the basis of a nomination which takes into account the results of European Parliamentary elections, the Commissioners including the High Representative are approved by and accountable to the European Parliament, and a third senior leader is the European Parliament's own elected President. Only the rotating Council Presidency and the European Council President are appointed without reference to the European Parliament.

Comments on the European Parliament's expanded role

4.122.  Some of our witnesses supported the strengthening of the European Parliament's position in the Union. The Minister for Europe told us that the Government "strongly welcome the extension of co-decision for the European Parliament … it is clearly an extension of power and influence for the European Parliament which is the correct balance" (Q S240). The Coalition for the Reform Treaty sounded a similar note, telling us that "the extension of the co-decision procedure should strengthen the role of the European Parliament, which is something we welcome" (p S129).

4.123.  Many witnesses saw the expansion of the European Parliament's role as good news for European democratic representation. Andrew Duff MEP told us that the increase in the Parliament's powers "will greatly improve the democratic character of the Union" (p S135). In its report, the EP Committee on Constitutional Affairs "[w]elcomes the fact that democratic accountability and decision-making powers will be enhanced, allowing citizens to have greater control over the Union's action" (European Parliament resolution of 20 February 2008 on the Treaty of Lisbon, point 2). Brendan Donnelly welcomed the fact that "[i]n the new areas now subject to co-decision, democratically elected politicians will come to play a larger role in a decision-making process traditionally dominated by civil servants, both national and international, and national ministers for whom European questions represented often only a small proportion of their responsibilities" (p S133). This was echoed by the European Parliamentary Labour Party, not surprisingly (p S139).

4.124.  Sir Stephen Wall regretted that "in this country, we treat the European Parliament as a kind of state secret". In his view, "if we are talking about popular support for the European project … the more people know about their democratic representation through the European Parliament, the better" (Q S219). He felt that the fears of people who had worried that co-decision would give the European Parliament too much power vis-à-vis the other institutions had not been realised, and that "the British Government's experience by and large has been that this process has led to, on the whole, acceptable outcomes" (Q S220). However, in general those largely in favour of an active EU will tend to support the strengthened role of the European Parliament in providing EU-level democratic accountability, while those largely opposed to an active EU will tend to regard this as a shift away from the democratic control of national parliaments and governments.

Scrutiny of legislation

4.125.  The European Parliamentary Labour Party pointed out that the process of co-decision required "the dual approval of elected governments in the Council of Ministers and directly elected MEPs in the European Parliament", and that "[t]his dual scrutiny provides a double quality control for all European legislation" (p S139). Richard Corbett MEP said that in co-decision "we have two quality controls before European legislation is adopted: acceptability to the Council—Ministers who are accountable to their national parliaments—acceptability to those directly elected by the electorate to act at the European level on European issues" (Q S330). He thought that "enhancing the role of the Parliament is something that brings added value to the scrutiny of European legislation". He considered that "[o]ur European Union will be more democratic than any other international structure in the world" (Q S330). The Minister for Europe thought that while the extension of co-decision might mean slower legislation, it would also mean improved legislation (QQ S271, S274, see also p D15).

The party-politicisation of the European Parliament

4.126.  John Palmer told us that the Parliament would, with its extended role in co-decision, "intervene more strongly … than past practice would have suggested", because of the "growing politicisation of the European Union decision-making process". National divisions in the European Parliament were being replaced by political divisions, with the "gradual emergence of the European parties" and changing voting records (Q S22). Accordingly, John Palmer thought that we would "see an increasingly self-confident Parliament", in its relations both with the Commission and with the Council (Q S23). Although the Treaty did not create the trend, it "will allow new avenues in which this developing tendency can express itself" (Q S26).

4.127.  Lord Brittan of Spennithorne said: "I thought [the European Parliament] was pretty politicised already so I cannot see how it can become more politicised … We have waited a long time for there to be a situation in which the political parties do not take much account of national differences and I certainly do not see anything in the Treaty which will accelerate that process" (QQ S363-364).

Is the extended role of the European Parliament overstated?

4.128.  Some witnesses thought that the change would not be great. Professor Hix told us that the Lisbon Treaty's extension of co-decision to "a limited number of areas" would mean that the European Parliament will experience "a relatively minor extension" of its powers compared to previous Treaties (p S145); Lord Brittan of Spennithorne agreed (Q S362). "The co-decision procedure is already well established in many areas of the Parliament's work", Brendan Donnelly stressed, and the Lisbon Treaty would reinforce, but not create, the European Parliament's sense of identity as co-legislator with the Council. According to Mr Donnelly, the Lisbon Treaty was "a further step" in the process of integrating the European Parliament into the Union's decision-making, and the extension of co-decision an "appropriate and logical next step" (p S133).

4.129.  Brendan Donnelly described an awareness in the European Parliament of a paradox that the Parliament's increasing powers over the past three decades had not improved its public standing. He doubted that the Lisbon Treaty's extension of co-decision would reverse this divergence (p S133).

"First-reading deals"

4.130.  With the extension of co-decision, the European Parliament's workload will increase. To maintain the European Parliament's efficiency, it would be necessary to adopt more acts by first-reading co-decision "deals" between the European Parliament and the Council, according to Professor Peers[43]. He objected to the "current lack of rules of any kind on the transparency and accountability" of such deals given that the negotiation of such agreements took place between a small number of key players behind closed doors. It would be preferable if the public could see where a proposal would be subject to a first-reading deal, what stage discussions had reached, and what drafts were being discussed—as they should whenever there were informal co-decision negotations (p S153). We note that the problem will be mitigated by the new Transparency provision, which will require the Council to prepare its first reading position in public.

CHANGES TO THE EUROPEAN PARLIAMENT'S MEMBERSHIP

4.131.  The European Parliament will, in a symbolic change, be composed of "representatives of the Union's citizens" rather than "representatives of the peoples of the States brought together in the Community" (Articles 189 and 190 of the TEC; Article 14 of the amended TEU). The Campaign against Euro-federalism considered that this linguistic change illustrated "the constitutional shift the Treaty would make from the present European Union of national States and peoples to a new federal Union of European citizens" (p S126).

4.132.  Under the Lisbon Treaty, the Parliament will be restricted to 750 Members, plus its President (i.e. 751). This cap was welcomed by the Coalition for the Reform Treaty as an important step if the Parliament "is to remain a central, efficient actor in the EU system" (p S129). The minimum number of national representatives will be six members per Member State (Malta) and the maximum 96 (Germany) (Article 14, amended TEU).

Distribution of seats

4.133.  Before the 2009 European Parliament elections, the European Council shall adopt by unanimity, on the initiative of the European Parliament and with its consent, a decision determining the composition of the European Parliament from 2009 (Article 14 of the amended TEU; Protocol on transitional provisions, Title I, Article 2). This decision will be made on the basis of a proposal by the European Parliament. Declaration 5 of the IGC states that the European Council will base its decision on the content of the draft Decision annexed to the Resolution of the European Parliament dated 11 October 2007.

4.134.  The new Article in the TEU specifies that the European Parliament representation "shall be degressively proportional", and the draft decision spells out what degressive proportionality means: "the larger the population of a country, the greater its entitlement to a large number of seats; the larger the population of a country, the more inhabitants are represented by each of its Members of the European Parliament" (Article 14, amended TEU; Annex 1 to the resolution of the European Parliament of 11 October 2007 on the composition of the European Parliament).[44]

4.135.  The distribution of seats in the European Parliament will be as follows:

European political parties

4.137.  The Lisbon Treaty removes the TEC's statement recognising the importance of European political parties "as a factor for integration within the Union". They will now "contribute to forming European political awareness and to expressing the will of the citizens of the Union" (previously, this was "a European awareness" and "the political will") (Article 10, TEU).

CONCLUSIONS

4.138.  The Lisbon Treaty considerably increases the powers of the European Parliament—in particular because of the extension of co-decision to a substantially larger range of areas, including agriculture, fisheries, transport and structural funds, in addition to the whole of the current "third pillar" of justice and home affairs—to the extent that the European Parliament will become co-legislator for most European laws. This will have an effect on the balance of power between the institutions (see below).

4.139.  The number of MEPs will be reduced from 785 to 751. (The number of UK MEPs will increase by one from 2009.) Also, Members of the European Parliament will be described as "representatives of the Union's citizens" instead of "representatives of the peoples of the States brought together in the Community", which has a symbolic significance for some (see Chapter 2). The Treaty will not otherwise have a significant impact on the composition or membership of the European Parliament.

4.140.  Oversight by the European Parliament and Council of Ministers of the Commission's delegated legislation powers will be reinforced.

The impact of the Treaty on the European Court of Justice

TITLE AND MEMBERSHIP

4.141.  The Lisbon Treaty calls the EU Courts collectively the "Court of Justice of the European Union" (CJEU). This continues to cover three entities: the Court of Justice itself (colloquially the ECJ), the General Court (currently named the Court of First Instance), and specialised courts (currently named "judicial panels") (Article 19 of the amended TEU).

4.142.  The membership of the ECJ is unchanged. However, an IGC Declaration (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) states that if the ECJ requested that the number of Advocates-General be increased from eight to 11, the Council would, acting unanimously, agree on such an increase: this would give Poland a permanent Advocate-General (joining those from Germany, France, Italy, Spain and the UK) and add two more rotating posts. In a substantial change to the way Judges are appointed, a new panel will be established to give an opinion on candidates' suitability to perform the duties of Judge and Advocate-General (Article 255, TFEU; Sir Francis Jacobs p S150). However, the proposal and approval of candidates remain a matter for Member States alone.

The capability to make changes to the CJEU in future

4.143.  The Council, acting by qualified majority and in co-decision with the European Parliament (formerly the Council by unanimity in consultation with the Parliament) will be able to set up specialised courts (formerly "judicial panels"). There is currently only one such court, the EU Civil Service Tribunal. Under this provision, a new court might be established to decide on trademark law cases; other new courts might follow. The Minister for Europe told us that the Government "strongly supported" the use of specialised tribunals (Q S281).

4.144.  The Statute of the CJEU can be modified by the Council acting by qualified majority and in co-decision with the European Parliament, rather than only by unanimity, with the exceptions of Title I (judges), which may only be amended by treaty and Article 64 (languages), which requires unanimity.

4.145.  In the opinion of Professor Peers, "[t]he greater facility to adapt the EU judicial system provided by the Treaty of Lisbon (due to majority voting on the Statute of the Court and the creation of new third-level tribunals) should be welcomed" (p S154). Andrew Duff MEP pointed out that, as currently, any further expansion of the ECJ's powers would have to be agreed unanimously (p S137).

FUNCTION

4.146.  The function of the CJEU, which is unchanged, is summarised in the amended TEU:

THE JURISDICTION OF THE CJEU

4.147.  In the area over which the Courts have jurisdiction, they have power to carry out seven main types of proceedings. These are:

• references for preliminary rulings—national courts referring to the Court for a ruling concerning the interpretation of Union law or the validity of an act of Union law;
• actions for failure to fulfil obligations—an action brought against a Member State, usually by the Commission;
• actions for annulment—an application for the annulment of a Union regulation, directive or decision, for example by an individual, Member State or EU institution;
• actions for failure to act—an action brought against an EU institution for failing to act when called upon to do so;
• giving opinions on the compatibility of EU international agreements with the Treaties;
• appeals—against judgments of the Court of First Instance;
• reviews—of Court of First Instance decisions on appeals from the EU Civil Service Tribunal.

The role of the CJEU in justice and home affairs law

4.148.   The CJEU has jurisdiction only over the law of the European Community—i.e. the "first pillar" and to a limited extent in the "third pillar" (police and judicial cooperation in criminal matters). The transfer of the third pillar into the first means that the CJEU gains jurisdiction over this area. All national courts and tribunals will be able to refer questions relating to immigration, asylum and civil law (in place of final courts only), as well as policing and criminal law (with complications—see Chapter 6, which examines this subject in greater detail) (p S154).

4.149.  Professor Wallace told us that "[t]he fact that the Court is now going to be able to receive litigation in justice and home affairs is hugely important" and something that she welcomed as increasing the rights of the individual to have access to litigation (Q S170). The Minister for Europe stated that the Government was "certain it should happen because the effect of the ECJ is absolutely essential" (Q S277). The move "establishes a clear and coherent system of jurisdiction to replace the present confusing jumble", according to Sir Francis Jacobs, and it was "valuable" that the jurisdiction was being extended to justice and home affairs. He felt that the Union provided a model to all international organisations in the extent to which it was based on the rule of law, and that it would be "paradoxical, and perhaps unacceptable" if the Union's actions in this field were to remain outside the Court's jurisdiction (p S149).

4.150.  However, the situation relating to the United Kingdom could be substantially different due to the UK's ability to opt in to (or, in effect, out of) all EU justice and home affairs legislation and therefore this part of the CJEU's jurisdiction (see The UK opt-ins in Chapter 6) (see also Palmer p S15, Edward Q S128, Chalmers Q S29, and Wall Q S225).

4.151.  There is a further exception to the CJEU's "third pillar" jurisdiction. The Lisbon Treaty maintains the rule (Article 35(5), current TEU) that the Courts "shall have no jurisdiction to review the validity or proportionality of operations carried out by the police or other law-enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security" (Article 276, TFEU).

The role of the CJEU in foreign policy law

4.152.  Activity under the old "second pillar", the Common Foreign and Security Policy, remains outside the jurisdiction of the CJEU (see Duff p S137) (Article 24, amended TEU). New Article 275 of the TFEU states that the CJEU "shall not have jurisdiction with respect to the provisions relating to the common foreign and security policy nor with respect to acts adopted on the basis of those provisions".

4.153.  However, the CJEU will have jurisdiction to monitor whether common foreign and security policy actions comply with Article 40 of the amended TEU, which states that the implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union's competences (Article 275, TFEU). In other words, it will have "oversight in the case of a breach of procedure or a conflict over competence (in effect, patrolling the frontier between the first and second pillar)" (p S137). Sir David Edward envisaged that the CJEU might be faced, "as it is faced at present, with the question of: does this fall within foreign and security policy or does it fall within some other competence of the Union?" As a decision that a certain area fell within another competence would mean that it fell within the Court's jurisdiction, there was a risk that the Court might be accused of "meddling" (Q S129).

4.154.  The CJEU will also be able to rule on the legality of decisions providing for restrictive measures (sanctions) against natural or legal persons adopted by the Council under the common foreign and security policy (Article 275, TFEU). In other words, it "can hear appeals against restrictive measures" (p S137).

4.155.  The Minister for Europe told us that the Government had been particularly keen to ensure that the relationship of the CJEU to the Common Foreign and Security Policy was clear, and welcomed that the Treaty "confirms … that there is no role for the ECJ in terms of Common Foreign and Security Policy … that was important for us" (Q S280).

The CJEU's controls on legality and failure to act

4.156.  Under the TEC, the European Parliament, Council or Commission could have an action brought against them for a failure to act (Article 232, TEC). The Lisbon Treaty amends this so that it applies also to the European Council, European Central Bank and any other body, office or agency of the Union (Article 265, TFEU). The Lisbon Treaty also adds the European Council and other bodies, offices and agencies to the list of institutions the legality of whose acts is monitored by the CJEU (judicial review of the institutions) (Article 263, TFEU).[45] This means that EU institutions, Member States and individuals can challenge any of the Union's institutions or bodies for acting in infringement of the Treaties or for failing to act as required by the Treaties.

4.157.  Sir Francis Jacobs considered that the new jurisdiction in respect of the acts and failures to act of bodies and agencies was "significant as there is an increasing number of entities with power to take decisions directly affecting the interests of individuals but which are at present not subject to the jurisdiction of the Court" (p S149). Sir David Edward thought that this new jurisdiction "could become significant" (Q S127), but that whether the CJEU's considerable additional powers of judicial review would be extremely significant was "totally unforeseeable". He told us that "[i]n so far as powers are conferred on the European Council, then probably the majority of Member States would require that there should be a jurisdiction of control [by the Court]" (Q S131). Professor Chalmers considered that "the European Council does not have many duties or responsibilities, so … yes, formally [the CJEU] does have increased powers of judicial scrutiny but the circumstances where that will happen will be quite narrow" (Q S29). The Commission said that "[w]hen you read the Conclusions of the European Council it is very difficult to see how the European Court can come in on them … it is not a substantial change" (Q S313). Professor Peers welcomed the jurisdiction over the European Council as "essential" (p S152).

4.158.  The Committee of the Regions joins the European Central Bank and Court of Auditors in having the right to stand before the Court "for the purpose of protecting their prerogatives" (Article 263, TFEU).

Actions for failure to fulfil obligations

4.159.  Currently, if the Commission considers that a Member State has failed to fulfil an obligation under the TEC (for example, to transpose a directive), it can take the Member State to the Court of Justice (Article 226, TEC; this Article is not substantively amended by the Lisbon Treaty). Under the TFEU, the stages that lead to a reference to the Court for the imposition of a fine on the Member State are now shortened, because the Commission will no longer have to submit to the Member State a "reasoned opinion" detailing the Member State's failing (Article 260(2), TFEU; Article 228(2), TEC), and allow it time to respond.

4.160.  The Commission[46] regarded the procedure on penalties as "reinforced" (p S161). Andrew Duff MEP told us that "the powers of the Court and the Commission to impose penalties in case of infringement are increased" (p S137), and Sir David Edward saw "a significant extension of the power to fine" in the new provisions of Article 260. The removal of the reasoned opinion procedure meant that the Commission "can come more quickly from the stage of a finding of a breach of an obligation to a request for the Court to fine" (Q S127). Secondly, "there is power to fine in respect of failure to implement directives and that can be requested by the Commission … directly in the application to the Court which asks for a finding of a failure to implement a directive" (Q S127). This is in a new paragraph (3) of Article 260. Sir David thought it "would ensure that the pressure on Member States to implement directives would be strengthened" (Q S127).

4.161.  Professor Peers told us that, "[t]he speedier application of Article 228 to bring proceedings for enforcement of prior ruling is welcome, but the possibility of imposing fines for the initial breach of the obligations to transpose a Directive under Article 226 is not" (p S154). He thought that the amendment was "unnecessary in light of the speedier application of Article 228": if the Commission frequently applied for these fines it would slow down the Court, and "the Commission will have to spend much time arguing about the collection of the fines". According to Professor Peers, the system should be replaced by a system "whereby the Commission could take a decision finding a failure to transpose a Directive by a Member State, which could then be subject to annulment actions by a Member State, and which could subsequently be enforced by proceedings under Article 228". This would speed up the process of determining failures to transpose EU legislation and reduce the burden on the EU judiciary. He told us that "[a] Member State like the UK, with a relatively good record of transposing EU legislation, should welcome such a move".

4.162.  The Courts also gain a jurisdiction to rule on procedural issues in relation to acts of the European Council or the Council under Article 7 TEU which can lead to the suspension of the rights of a Member State which is in serious breach of its obligations (Article 269, TFEU; see Edward Q S127).

Right of individuals to refer cases to the Court

4.163.  The right of citizens or corporations to challenge EU acts is widened slightly. Under the current TEU, a person can institute proceedings against an act addressed to that person—this does not change. A person can also institute proceedings against an act which is of "direct and individual" concern to him or her—this does not change. Additionally, under the TFEU, a person will be able to institute proceedings against a regulatory act which is only of "direct concern" to him or her (i.e. not also of "individual" concern to him or her), as long as the regulatory act does not entail implementing measures (which would be a matter for national, not EU, courts) (Article 263, TFEU).

4.164.  Sir Francis Jacobs told us that this alteration increased the scope for protection of individuals and companies against regulatory acts, because the condition that the regulatory act be of "individual" concern "has often made it difficult or impossible for individuals and companies to take cases to the Court". He said that the reform would be widely welcomed, although the term "regulatory acts" was not clear (p S149). Sir David Edward thought it "potentially could give rise to a significant extension, at least of the workload of the Court to the extent that legislative and regulatory activity of the Union directly affects individuals" (Q S127). However, Professor Peers felt it "does not go far enough to address the concern that access to judicial review of EU measures by individuals is too limited under the existing system" (p S154).

Emergency preliminary rulings

4.165.  The Lisbon Treaty adds a specification to the provisions regarding preliminary rulings from the ECJ: "If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay" (Article 267, TFEU). The ECJ made a proposal for an urgency procedure in July 2007 (see Edward, QQ S127-8).

Intellectual property

4.166.  The Council, acting by unanimity, can confer jurisdiction on the CJEU in disputes relating to the application of acts adopted on the basis of the TFEU which create Union intellectual property rights (Article 262, TFEU). Professor Chalmers told us that this was codification; the Court had been interpreting legislation on intellectual property rights since 1997 (Q S29).

IS AN EXPANDED ROLE FOR THE CJEU A GOOD THING?

4.167.  An expanded role for the CJEU means more judicial oversight of EU laws and law-making. Some welcome this as a change which may improve legislation and other acts of the institutions, and give additional legal rights to the EU's institutions, Member States, corporations, organisations and citizens. The Minister for Europe told us that the role of the CJEU was "absolutely essential" (Q S277). In its response to a report on the Treaty by the House of Commons European Scrutiny Committee, the Government stated that "ECJ jurisdiction is an important element of assuring the application of Community Law in every Member State. Overall, the UK has benefited from this"[47]. Professor Wallace thought that "there are areas of justice and home affairs where the right of the individual to have access to litigation seems to me critically important" (Q S170). Sir Francis Jacobs considered that the changes "can be seen as providing substantially greater judicial protection against European Union measures and as strengthening the rule of law in the Union" (p S150).

4.168.  Giving more powers to the Courts will not be welcome in all quarters, however. Lord Pearson of Rannoch referred us to the "judicial activism" of the Court, which in his view made the Government's red lines unreliable (p S151). Martin Howe QC spoke about cases in which in his view the ECJ had "advanced the goal-posts". He said that "once you have the jurisdiction of the European Court of Justice in interpreting a measure its expansive philosophy comes into play and you lose control, really, over the interpretation and application of a measure as part of your law" (QQ E204, E206-11). There was a view in the UK that the Court was a "constructionist court that wants to advance the frontiers of European competence", in the words of Sir Stephen Wall (Q S226).

4.169.  We heard some arguments against this view. Sir Stephen Wall told us that the history of the ECJ over the past 10 or 15 years did not bear it out (Q S226), and John Palmer thought that Judges "have not been driven by any great political agenda" in his experience (Q S32). Sir David Edward, for twelve years a Judge of the Court of Justice himself, said: "I detected no propensity one way or the other [to stand back or creep forward] for the very simple reason that … I did not have the time and none of us had time to develop propensities" (Q S130).

Can the CJEU cope with its expanded role?

4.170.  "[T]he Court of Justice is currently operating at close to full capacity", according to Professor Chalmers (Q S29). The expansion of the CJEU's jurisdiction in combination with recent enlargements will further swell the Court's docket, particularly in the area of justice and home affairs, and there is discussion about the Courts' ability to cope with the effects of the Lisbon Treaty. The expansion of the area in which the CJEU can take action will also have implications for the range of expertise which its Judges will need to possess. Both of these issues are explored in Chapter 6.

"VARIABLE GEOMETRY"

4.171.  Enhanced cooperation, opt-ins, and opt-outs will mean that EU law and the jurisdiction of the Court will vary across the Member States. Sir David Edward acknowledged that in an EU of 27 Member States, "variable geometry" was "almost inevitable", but was sorry that "there will be the disadvantages of unequal application of the law and unequal application of the Court's jurisdiction" (Q S137). Jo Leinen MEP told us that while the positive side of opt-outs was flexibility, "the negative side is that we are a community of law … and opt-outs create incoherence in this Union" (Q S334) (see also Chapter 6).

A POINT OF PRINCIPLE: MUTUAL SINCERE COOPERATION

4.172.  David Heathcoat-Amory MP brought to our attention that the Treaty specifies that "[t]he institutions shall practice mutual sincere cooperation" (Article 13, amended TEU). He found it "alarming that the Court is mandated to cooperate not with Member States but with the other institutions", particularly as the Courts often hear cases between the Commission and a Member State. In Mr Heathcoat-Amory's opinion, "this undermines the status of the Court and it will cease to be an independent arbiter between the rights of the Union and the rights of Member States" (Q S96). Lord Leach of Fairford agreed: "The whole principle is wrong" (Q S96).

4.173.  Sir David Edward was not convinced that there was a problem. "This particular provision goes with the provision that the Member States shall practice mutual sincere cooperation. I would suspect that in this particular context 'The institutions shall practice mutual sincere cooperation' is aimed at the relationship between the Council, the Commission and the European Parliament" (Q S152). He supposed that such an obligation could be imposed on the CJEU "in so far as the Court is acting as an institution as opposed to a jurisdiction … There are circumstances in which the Court is indirectly involved in treaty negotiations" (Q S153).

PRIMACY OF LAW

4.174.  Without it being directly mentioned in the Treaty, the treaty-making process has affirmed the primacy of EU law over the law of Member States. In a Declaration, the IGC recalled that "in accordance with well settled case-law of the Court of Justice of the European Union, 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" (Declaration concerning primacy). It quoted an opinion of the Council Legal Service which asserted that "[t]he fact that the principle of primacy will not be included in the future [i.e. Lisbon] treaty shall not in any way change the existence of the principle". Likewise, the affirmation of this principle in the Declaration does not give it any meaning that it has not previously had: it is a statement of the existing position.

CONCLUSIONS

4.175.  The Treaty significantly expands the role of the ECJ. The Treaty's most important impact on the ECJ is that it will gain jurisdiction over the justice and home affairs area as a result of the merger of the third pillar with the first. The impact of the Court's jurisdiction on the UK will differ from that on other Member States to the extent that the UK uses its opt in/out from all justice and home affairs legislation (see Chapter 6).

4.176.  The ECJ's jurisdiction will not be extended to the Common Foreign and Security Policy except in the two clearly defined areas cited above. However, in exercising its oversight in a case of conflict of competence involving foreign and security policy, a decision that the competence lay elsewhere, bringing it into the Court's jurisdiction, might lead to charges that the Court was extending its role.

4.177.  The new provision on actions for failure to fulfil obligations is likely to place extra pressure on Member States to implement directives. In addition, the Treaty provides that action for failure to act will be able to be brought against not just the European Parliament, the Council of Ministers or the Commission, but also against the European Council, European Central Bank or any other body or agency of the Union. The Treaty also provides for a slight widening of the right of individuals to challenge EU acts.

Overall impact on institutional balance

THE EUROPEAN PARLIAMENT

4.178.  Professor Chalmers told us that if there was "one big message from the Treaty, it would be that there is a significant growth in the powers of the European Parliament, largely at the expense of the Commission, but not exclusively so" (Q S2). Elmar Brok MEP said that "we [the European Parliament] have more or less all that we wanted to have" (Q S333). Richard Corbett MEP, Andrew Duff MEP and the European Parliamentary Labour Party all agreed that the role of the European Parliament would be enhanced by the Treaty, as did Professor Peers and Brendan Donnelly (Q S330; p S135; p S139; p S152; p S133). Professor Wallace noted that "each successive Treaty reform has produced an expansion of the European Parliament's legislative powers" and that this was "as true of this Treaty as is it of its predecessors" (Q S179). The Commission also told us that "[t]he powers of the European Parliament will be strengthened" (p S160). John Palmer concurred that "[t]he European Parliament has emerged with greater powers and potentially greater influence", and considered: "You are going to see an increasingly self-confident Parliament in general terms and both in relations vis-à-vis the Commission and to its co-legislative partner in the Council" (p S14; Q S23). However, Lord Brittan of Spennithorne did not think that the Treaty would make "a very big, further difference" to the powers of the European Parliament (Q S362).

DEMOCRACY AND NATIONAL PARLIAMENTS

4.179.  Some considered that an increased role for the European Parliament was part of a victory for democracy as a whole in the Union. Federal Union saw democracy as the "big idea" of the Lisbon Treaty, and Andrew Duff MEP and the European Parliamentary Labour Party also saw democracy as the winner (p S143; p S135; p S139). Elmar Brok MEP told us that the Treaty was good for democratic accountability, and that the important Treaty change was "the stronger roles of national parliaments and the European Parliament" (Q S333) (for analysis of the role of national parliaments under the Lisbon Treaty, see Chapter 11). The Government saw national parliaments among the winners from the Treaty, particularly this Parliament when its veto over passerelles (see Chapter 3) was taken into account (Q S240). Professor Peers agreed that the national parliaments stood to gain, and Lord Brittan of Spennithorne concurred: the Treaty, and in particular the card procedures (see Chapter 11), enhanced the role of national parliaments and this was one of the Treaty's most important aspects as far as the UK was concerned (p S155; Q S385). The Speaker of the Portuguese Assembleia da Republica, Jaime Gama, addressing a parliamentary meeting hosted by the European Parliament in December 2007, went so far as to say that "national parliaments are the greatest winners". The Commission stated: "The Treaty of Lisbon significantly increases the involvement of national parliaments" (p S161).

4.180.  Federal Union told us that "[n]ational parliaments are one of the big gainers from the Reform Treaty, or rather, they are if they want to be" (p S143). This was due not only to the cards, but also to the requirement for the Council to legislate in public, which would make it easier to hold national ministers to account (see also p S161). However, the actual impact would depend on national politicians' willingness to organise themselves, rethink their procedures, and get involved. Likewise Timothy Kirkhope MEP said, "I am concerned about the quality of democracy as opposed to the quantity in this context. The level and standard of scrutiny which exists in terms of our own national legislatures is extremely patchy" (Q S332). Elmar Brok MEP called for cooperation: "It is not a question of whether it is the national parliament or European Parliament. We have to become stronger through cooperation to do our job and control our bureaucracies, both the national and European ones ... the Treaty of Lisbon gives us a better possibility of doing that if we want to do so" (Q S333). John Palmer advised national parliaments to combine forces with the European Parliament, for instance by admitting their MEPs as non-voting members of EU scrutiny committees (Q S24). Sir Stephen Wall observed that this Parliament had been more cautious about involving MEPs than some others (Q S230). Brendan Donnelly reckoned that the Treaty's provisions embodied the view that "national parliaments represent an important source of legitimacy and national political discourse" for the EU (p S134). He recommended that parliaments should respond by improving their scrutiny of national ministers in the Council; and by producing reports which compelled attention on merit, quite apart from procedural rules.

4.181.  David Heathcoat-Amory MP was one of the representatives of the House of Commons in the Convention on the Future of Europe. He considered that, whereas each of the EU institutions gained something from the Treaty, "the losers are national parliaments" (Q S48). In his view this was because in the Convention national parliaments were disorganised and had no unifying agenda. Neil O'Brien, Director of Open Europe, likewise considered that, weighing the provisions regarding national parliaments against the simplified revision procedure (see Chapter 3) and other changes, the net effect was negative (Q S100). The Campaign against Euro-federalism saw the cards as "small compensation" for the transfer of law-making powers to the EU (p S125).

THE EUROPEAN COUNCIL AND THE COUNCIL OF MINISTERS

4.182.  Lord Brittan of Spennithorne had "no doubt at all that [the Treaty's] re-ordering of affairs leads to more power for Member States as expressed in the European Council, if you like at the expense of the Commission" (Q S350). According to the Coalition for the Reform Treaty, "[o]ne could argue that [the creation of the full-time European Council President] actually constitutes a strengthening of the nation state, as it will improve the functioning of the Council of Ministers" (p S129). However, Brendan Donnelly did not think that the Treaty would make a great difference to the role of the European Council (p S132). No witnesses told us that the influence of the Council of Ministers would change significantly.

THE COMMISSION

4.183.  Professor Wallace told us that "there has been something of a secular decline of the Commission in the system generally and part of the embedding of the European Council is an illustration of that in this new Treaty". She did not see the Treaty as "having lots of obvious prizes for the Commission in the way it operates in the institutional system" except that "it has a clearer role now in justice and home affairs which it has worked very hard for", and possibly some role in relation to the External Action Service (Q S183). According to Jens Nymand Christensen for the Commission, "[t]he Commission's powers are not fundamentally changed" by the Treaty (Q S298). However, he considered that the extension of co-decision in the Treaty would impact on the Commission, which would have to adjust to the European Parliament becoming "a player on a par with the Council in deciding agricultural policy" (Q S298). He noted that the European Parliament "is there in the Treaty to control the Commission and to monitor what we do" (Q S314); as mentioned above, Professor Chalmers and John Palmer considered that the European Parliament's powers would affect the Commission's influence. Professor Chalmers thought that the Commission was "a winner in some areas, a loser in others". It had acquired a monopoly of initiative in new areas, but the new consent procedure for the appointment of the Commission President, the confirmation of co-decision as the ordinary legislative procedure, and the introduction of the citizen's initiative "lead to a diminution of Commission influence" (Q S28).

4.184.  John Palmer thought that while "[t]he Commission has not gained formally from the Treaty to the extent that the European Parliament has … the point about its weakening can be greatly over-stated." According to Mr Palmer, "[i]f the presidential Commission emerges more strongly … the Commission will play a more important part in the balance of powers than some people right now imagine" (Q S28). The Minister agreed that the Commission itself would be more effective, and thereby gain greater respect and consent, and greater influence for the Commission President (Q S266).

THE BALANCE OF INFLUENCE

4.185.  David Heathcoat-Amory's judgement was that all of the EU institutions "get more powerful"; he compared the Convention to Lewis Carroll's caucus race where "'[a]ll have won and all must have prizes'" (Q S89). The Minister, the Coalition for the Reform Treaty and Jo Leinen MEP all presented the Treaty as a response to the enlargement of the EU and a consequent need to "make the EU function" again after enlargement (QQ S295, S329, p S128), implying that more effectiveness was necessary.[48] Lord Brittan of Spennithorne said that "if the Treaty as a whole makes the European Union more efficient, that is to the benefit of all its institutions including the Commission because it knows that what it says and does is more likely, if accepted by the Member States, to be implemented in an effective way" (Q S350). Whether one thinks that the institutions needed to become more effective depends on how one views the consequences of greater effectiveness.

4.186.  Lord Brittan of Spennithorne stated: "I do not regard it as a Treaty that hands power in any significant way to the European Union institutions beyond what they already have" (Q S348). In his opinion, "this Treaty does not involve … any significant transfer of sovereignty" (Q S349). While members of the public disagreed with this assessment in their submissions to us, and did not think the Treaty was in the British interest, Elmar Brok MEP told us that "Britain was a winner in the negotiations … It was a winner as no other country" (Q S339).

CONCLUSION

4.187.  The Treaty's effects on the balance of influence between the various EU institutions will only be observable over time. The European Parliament gains significant extra influence, which is seen by some as being at the expense of the Commission and the Council. The addition of a full-time President of the European Council introduces a rival pole of influence to the Commission President. The position of High Representative is significantly enhanced by the Treaty. But a smaller Commission may be a more effective Commission. The ECJ's jurisdiction is significantly extended. The opportunities for national parliaments to exercise their role are enhanced (see Chapter 11).

42   The Government, in its White Paper on its approach to the IGC, stated: "The Reform Treaty will strengthen the role of the European Parliament" (Cm 7174 p 13).  Back

43   "First reading deals" are based on private meetings between relevant players in the Council, the European Parliament and the Commission, to allow agreement to be reached after a first consideration by the Parliament. Changes which will be proposed by the European Parliament at first reading are agreed in advance with the Council, which allows the measure to be speedily adopted. They are discussed further in Chapter 11 in the context of the yellow card, and in Chapter 6 in the context of the enhanced role of the European Parliament in the Area of Freedom, Security and Justice.  Back

44   The additional seat in the European Parliament created by the promotion of the President to number 751 was allocated to Italy by IGC Declaration 4, in derogation from the principle of degressive proportionality. Andrew Duff MEP called this move paradoxical, and the European Parliamentary Labour Party found it a matter of regret. Richard Corbett MEP told us that the European Parliament thought the move was "pretty outrageous", but recognised the importance of making the Treaty acceptable to all 27 Member States (p S136; p S140; Q S334). Back

45   The bodies and organs of the EU are also added to the list of bodies for whose acts the Court can provide interpretation (Article 267 TFEU). Back

46   In written evidence submitted by Vice-President Margot Wallström, Commissioner for Institutional Relations and Communication Strategy.  Back

47   First Special Report, Session 2007-08, HC 179, p. 21 Back

48   However, according to Professor Wallace the processes of the EU have coped well with enlargement to date (Q S160). Back