As the 25 EU countries decide whether to ratify the constitutional treaty, Jane Golding and Kiran Desai pore over the fine print and outline how it would affect lawyers in the UK
|
The UK electorate is being given the opportunity to vote on whether the UK should ratify the Constitutional Treaty. A ‘no’ vote would mean that the current array of treaties and legislative texts would continue to apply rather than the Consti-tutional Treaty, which consolidates them all in one place with some innovations. Here is a chronology of those treaties and texts:
• 1951 – The European Coal and Steel Community Treaty. This represented the beginning of post-war co-operation in Europe and involved agreement on coal and steel production. It is no longer in force.
• 1957 – The European Atomic Energy Treaty/ Economic Community. This EEC treaty established co-operation between the six founding members of the EC based on the formation of a customs union with no trade barriers.
• 1986 – The Single European Act. This amended the EEC treaty and paved the way for the single market.
• 1992 – The Treaty on European Union. This introduced the three pillars of the EU and also paved the way for the introduction of the Euro as a common unit of currency.
• 1997 – The Treaty of Amsterdam. This amended EU and EC treaties and renumbered the EU treaty articles.
• 2001 – The Treaty of Nice. This amended the treaties and attempted to streamline the institutions’ work in anticipation of enlargement.
‘Our constitution… is called a democracy because power is in the hands not of a minority but of the greatest number.’ Thucydides II, 37.
By these words, the next significant step in the constitutional evolution of the EU is proposed in the form of the Constitutional Treaty. As EU leaders gathered in Rome last week to sign the document they agreed over the summer, and which was preceded by a few years of in-depth negotiations, lawyers may be wondering about the relevance of this to the legal profession.
The treaty would have a direct effect on some practice areas and an indirect but significant effect on all practice areas. It is important for all solicitors practising in all areas of law to be familiar with EU law when advising their clients to ensure that they can give the best possible service to them.
The treaty only comes into force when all 25 EU countries have ratified it. Each country can choose how to do this, whether through their parliaments or by putting it to a referendum. Several countries, including the UK, have agreed to let their electorates have the final say in a referendum. There is no time-limit as such in the treaty for ratification. If all EU countries ratify the treaty in good time, it will come into force on 1 November 2006.
The UK electorate is being given the opportunity to vote on whether or not it would like the treaty to replace the existing set of European treaties. Therefore, a ‘no’ vote for the Constitutional Treaty would mean that the current array of treaties and legislative texts would continue to apply. The referendum is not about the UK’s continued membership of the EU but rather about the way decisions will be taken and how laws will be made at European level.
It is recognised that not all EU countries want to move together at the same speed. For those wishing to push ahead with legislation or policies in a particular area, this would become possible through what, under the Constitutional Treaty, is called enhanced co-operation. Countries that do not wish to be bound would remain outside the sphere of such action and would not be covered by it. A similar procedure exists already to a limited extent – for example, the Schengen agreement on the abolition of internal border checks does not apply to the UK and Ireland, while the Euro replaced national currencies in 12 EU countries.
The Constitutional Treaty does not affect the existing position of the UK’s rights concerning economic policy, taxation, foreign policy and national defence, which also means that the UK retains full control of its armed forces.
The purpose of the treaty is to consolidate and bring together all the existing European treaties that have accumulated over the years. The Constitutional Treaty would not bring about any fundamental reforms of the way in which the EU is governed. Rather, it attempts to simplify and clarify the existing system while introducing some innovations.
There are areas in which practitioners should take particular note of the changes the treaty would make:
• Litigation. It should be simpler under the treaty for individuals and businesses to challenge the legality of certain EU regulatory acts directly. This offers a redress mechanism for clients;
|
There would be five areas where the UK and other EU countries have agreed in the treaty that the EU alone may pass new laws. None of these areas would change the current position:
• Customs union;
• Competition rules;
• Monetary policy for those countries which have the Euro;
• Conservation of marine resources through a fisheries policy; and
• Common commercial policy.
2 Shared competence
There would be 11 areas where the EU and the UK would share responsibility to pass laws. None of these would change the current position on the following:
• Internal market;
• Social policy;
• Agriculture;
• Environment;
• Consumer protection;
• Transport;
• Trans-European networks;
• Safety in public health;
• Energy;
• Cohesion; and
• Freedom, security and justice.
3 Coordination competence
The UK would coordinate economic and employment policies with other EU countries. None of this would change the current position.
4 CFSP
The EU would define and implement a common foreign and security policy. This would be a change to the current position.
5 Support competence
The EU would support the EU countries in each of their activities in seven areas, including protection and improvement in human health, tourism, education and civil protection. None of this would change the current position.
• Family law. Greater emphasis will be placed on developing co-operation on issues with a cross-border dimension such as divorce, parental responsibility, and wills and succession. However, such measures would be subject to unanimous agreement;
• Asylum and immigration. While the UK and Ireland would still retain their present opt-out, the treaty would establish a common policy on border controls and asylum and immigration;
• Criminal law. The treaty envisages that minimum rules would be adopted for the mutual admissibility of evidence, rights of individuals and victims of crime in criminal proceedings;
• Public and administrative law. The requirement for good administration is a right expressly stated in the treaty and should, together with the services of the European ombudsman, allow greater scrutiny and accountability of EU institutions.
What does this mean for solicitors and their clients? A growing number of individuals are now travelling, living and working in other countries. Inevitably, some of them become involved in legal proceedings or become victims or suspects of crime.
Many criminal practitioners may not particularly welcome further changes in criminal procedure driven by the EU on top of those being implemented domestically. But greater co-operation at a European level could help not only to resolve more quickly cross- border problems experienced by clients, but could also act as a separate check and balance on developments in our own system.
Clients who are arrested in another EU country cannot easily obtain bail under the current system. An extension of co-operation between EU countries will mean less time spent by individuals in detention before proceedings begin.
Areas of traditional practice for solicitors that have remained largely unaffected by EU law such as probate, family law and even conveyancing may start to be influenced by the need to develop cross-border solutions. These will specifically deal with the problems of those who have developed cross-border lives – for example, a divorced couple with children, living in two different countries.
There is still much to be done to ensure that clients have access to additional opportunities to obtain redress across borders that the treaty provides them with. This is an area in which the Law Society has urged both the UK government and the EU to take further action.
These are just some of the less obvious areas that may be affected by the treaty. There are more obvious areas in which the treaty will have effects – for example, in the field of human rights law, where the incorporation of the Charter of Fundamental Rights will provide a basis on which individuals can rely to enforce their fundamental rights.
Who takes decisions in the EU and on what basis? EU law can only be made in those areas in which all countries, including the UK, have agreed that it is appropriate for co-operation to be at a European level. The scope of EU activity has developed over the years as the need for European cross-border co-operation has increased and successive treaties have led to an expansion in the range of activities undertaken at EU level. This has sometimes left observers of the EU’s work unclear as to what the precise range of its powers actually are.
The treaty sets out a much clearer and more logical classification of the circumstances in which the EU would have the competence to make law, where it would have a partial role and where its role would be purely supportive. Five types of involvement are set out in the treaty (see box, top left). There are three basic principles for determining EU competence in the treaty:
• Principle of conferral. The EU would only be able to exercise those competences that were conferred on it by the EU countries in the constitution to attain its objectives;
• Principle of subsidiarity. In areas that do not fall within its exclusive competence, the EU may only act if, and insofar as, the objectives of the intended action cannot be achieved by the individual EU countries, either at national level or at regional and local level, or can be better achieved at EU level;
• Principle of proportionality. Neither the content nor the form of any action taken by the EU can go beyond what is necessary to achieve the objectives set by the EU countries in the treaty.
|
Learning the lingo
Lawyers who have got used to existing EU terminology, including familiar terms such as directive and regulation, will have to re-learn certain terms.
The reason behind the name changes is to make the legal instruments more comprehensible and descriptive, and therefore more accessible to lawyers and their clients. These instruments can be divided into legislative acts (which determine the most important rules) and non-legislative acts (which are complementary and contain more detailed and technical rules).
Here is a summary of the existing and new titles:
• European law (currently called a regulation) – a legislative act, no substantive change in definition.
• European framework law (currently called a directive) – a legislative act, no substantive change in definition.
• European regulation (an old name for a different act) – a non-legislative act of general application for the implementation of legislative acts and of certain specific provisions of the Constitutional Treaty. A European regulation may also take the form of a delegated or implementing act.
• European decision (no name change) – a non-legislative act, no substantive change in definition.
• Recommendation (no name change) – a non-legislative act, no substantive change in definition.
• Opinion (no name change) – a non-legislative act, no substantive change in definition.
The constitution is divided into four parts that are subdivided into titles and then further subdivided into chapters. By far the largest section is part 3, which is principally aimed at incorporating existing treaties with few substantive amendments. The four parts are:
• Part I – this is a general introduction. It contains titles on definitions and objectives of the union, competencies, finances and membership.
• Part 2 – the Charter of Fundamental Rights of the Union. These are dignity, freedoms, equality, solidarity, citizens’ rights and justice. There is a separate title on the general provisions governing the interpretation and application of the charter.
• Part 3 – the policies and functioning of the union. This section contains more than 200 pages outlining general provisions relating to the institutions and specific policy areas.
• Part 4 – general and final provisions that deal with issues such as repeal of earlier treaties, transitional arrangements, scope, duration and a revision procedure.
One of the areas of the Constitutional Treaty that has generated much discussion is the notion of supremacy of European law. According to article I-6 of the treaty: ‘The constitution and law adopted by the institutions of the union in exercising competences conferred on it shall have primacy over the law of the member states.’
It is often said that EU laws are ‘superior’ to domestic laws. This means that once an EU law is applicable in the UK, it would be contrary to EU treaties for the UK to keep or pass any laws that contradicted the EU-sourced law.
This principle has applied in the EU since the Court of Justice developed it in the 1960s, before the UK joined the EU. Therefore, the Constitutional Treaty would not change the current position, though for the first time it would be stated directly in an EU treaty that EU laws ‘shall have primacy over the law of the member states’. Another particular feature of the treaty is the right for EU countries formally to withdraw from the EU. This is spelled out in article 1-60 (1) of the treaty, which states: ‘Any member state may decide to withdraw from the union in accordance with its own constitutional requirements.’
The UK has been a member of the EU since January 1973. Under the doctrine of parliamentary sovereignty, the UK could leave the EU subject to certain conditions. However, the treaty spells out clearly that EU countries are free to leave should they wish to do so. A formal procedure has been devised to minimise the disruption that would be caused by any such exit. EU countries would be able to negotiate an agreement to leave, or leave of their own accord, after two years.
• A general introduction or companion guide to the Constitutional Treaty has been produced by the Law Society’s EU committee and is available in printed and electronic form on request; e-mail: brussels@lawsociety.org.uk; and on the Law Society’s Web site at: www.lawsociety.org.uk. A copy of the treaty can be obtained at the following Web site: http://ue.eu.int/gcpdf/en/04/cg00/cg00087-re01.eno4.pdf
Jane Golding is a partner at Crosby Renouf and Kiran Desai is a partner at US/UK firm Mayer Brown Rowe & Maw. They are both members of the Law Society’s EU committee
No comments yet