Leaders of European Union member states will sign a new reform treaty next month. But what are the legal implications of this landmark agreement for the UK?


At the European summit last month, heads of state and government overcame fraught negotiations and domestic pressures to reach agreement on a new framework Treaty for the European Union (EU). The political relief at having brokered a deal was tangible, since before the beginning of the summit it was far from clear that agreement would be reached. Armed with a hard-fought consensus, the Portuguese prime minister declared this accord a ‘European victory’. Though the politicians have now had their say, the full legal implications of what was agreed are still emerging.



At a summit in June, German Chancellor Angela Merkel kick-started the debate on the future of Europe, an inter-governmental conference was convened and the hard work began. It was clear that the defeat of the Constitutional Treaty of 2004 by Dutch and French voters weighed heavily on the minds of the negotiators. In addition, clashing national priorities and talk of ‘red-line’ negotiating positions looked set to jeopardise progress.



However, national leaders recognised that the ever-expanding EU was creaking under the weight of its own inadequate institutional structure and all agreed that the present regime could not continue. Ultimately, consensus and co-operation prevailed and the Reform Treaty was born.



Is this a new constitution for Europe?

Yes and no. The controversial references to a ‘constitution’ have disappeared, along with all references to flags, mottos, anthems and so on. However, the bulk of the amendments in the Constitutional Treaty have been taken on board and the new procedures reflect that. Indeed, the House of Commons’ European scrutiny committee deemed that this Reform Treaty was ‘substantially equivalent’ to its predecessor.



Essentially, the Reform Treaty is exactly what is said on the tin. It makes extensive changes to the existing treaty on the EU and the treaty establishing the European Community. The EU itself will have legal personality and will no longer be simply a geographic concept.



What does the Reform Treaty change?

The biggest changes that the Reform Treaty makes are institutional. Of particular significance is the new system of qualified majority voting and the rebalancing of the voting system in the European Council (also known as the Council of Ministers). This is designed not only to reflect the growth of the EU from 15 to 27 member states but also to ensure a balance between large and small countries, old and new member states and northern and southern Europe.



Moreover, decision-making power will be redistributed more equally between the EU institutions, with the role of the European Parliament enhanced. As in other areas of law, members of the European Parliament will now share decision-making power with the council in the field of police and criminal justice. The European Court of Justice also assumes full jurisdiction in this area. The European Council will have institutional recognition in the Treaty and will be headed by an elected president, doing away with the current system of rotating the presidency between member states every six months.



Does the role of national parliaments change?

Yes. One of the major innovations in the Reform Treaty has been to bolster the role of national parliaments. The main role of the national parliaments will be to assess proposed legislation in light of the principle of subsidiarity, which seeks to ensure that action will only be taken at EU level where to do this would be more effective than action taken at national, regional or local level. Where a third of national parliaments raise a ‘subsidiarity warning’, the European Commission has to consider whether to maintain, review or withdraw the proposal.



Will Europe now have control over our criminal law and policing?

The EU already has the power to enact legislation in the field of serious organised crime and to set down rules on cross-border investigation and policing. Currently, any member state can vote against a measure – the so-called ‘national veto’. This has made adoption of legislation in this area very difficult, and virtually impossible in the field of procedural safeguards and protection of the rights and freedoms of EU citizens.



Under the new Reform Treaty, the veto will go, to be replaced by majority voting. However, the UK has struck a deal whereby rather than being automatically bound by any legislation in this field, the government can decide whether to opt in to a proposal or not. There are fears that the government will opt-in to measures that enhance cross-border police powers but not participate in measures trying to establish EU-wide standards of procedural safeguards and rights of the accused.



Does the Charter of Fundamental Rights create new rights?

No. The charter does not create any new rights for EU citizens. It is intended to incorporate all existing EU civil, social, economic rights, personal and political freedoms into one document – now legally binding. However, a specific protocol for the UK and Poland has been agreed in order to clarify the charter’s applicability in these jurisdictions.



For the UK, neither the European Court of Justice nor any UK court will be able to hold that any of the UK’s legislative provisions or administrative practices are inconsistent with the charter. Exactly how this will work in practice remains to be seen, but at the very least, a new line of case law based on the charter may soon evolve.



Has the new treaty downgraded competition law?

The Reform Treaty does not substantively change the EC Treaty provisions on competition (including those on state aid). Nevertheless, the future role of competition law and policy in the EU did become a matter of political controversy following the June council. This was because, reportedly at the insistence of France, a new set of objectives for the EU were adopted without the inclusion of a reference to ‘a single market where competition is free and undistorted’. Instead, a protocol to the Reform Treaty records that the EU’s internal market includes a system ensuring that competition is undistorted.



The reaction of the European Commission, which enforces competition law at the EU level, was to insist upon the continued fundamental importance of competition policy and enforcement. Accordingly, the real question is to what extent member states have lost the appetite for some of the more wide-sweeping industry liberalisation policies which have marked policy in recent years.



Does the role of the European Court of Justice change?

Yes. The most interesting change for lawyers and their clients is that citizens’ recourse to the court has been made easier in certain circumstances. Individuals will no longer need to prove that Community decisions ‘individually affect’ them in all cases, which removes what has, in the past, proved to be a significant obstacle to access to the court.



However, overall the basic role of the European Court of Justice remains unchanged: its primary function is to ensure that the interpretation and application of EU law is observed and it will continue to do so in line with a long-established body of case law. In particular, the primacy of EU law, although not specifically mentioned in the Reform Treaty, is reconfirmed by a declaration and an annexed opinion from the European Commission’s legal service.



What is in a name?

The treaty also makes a number of changes to nomenclature and the way in which different types of legislation is categorised. Some institutions will also be renamed, most significantly for lawyers will be the change to the name of the courts. The ‘Court of Justice of the European Union’ now encompasses three entities: the Court of Justice (currently known as the Court of Justice of the European Communities), the General Court (currently the Court of First Instance) and the specialised courts (currently only the EU Civil Service Tribunal, but which may exist in other areas in the future such as for trade mark cases).



Why does this matter to me?

Despite the high-level political rhetoric and the sometimes-incomprehensible ‘euro-speak’ that clouds the debate, it is important for solicitors practising in all areas of law to be familiar with EU law when advising their clients in order to ensure that they can give the best possible service to those clients. This article is intended only as a brief introduction, and a fuller Guide to the Reform Treaty will be presented by the EU committee following the final signature, which is due to take place in Lisbon on 13 December 2007.



When will this come into force?

Member states appear to be shying away from the referendum process, having been burnt by it once before. It seems only those member states constitutionally compelled to hold a referendum, Ireland for example, will go ahead – the others opting for the apparent safe option of a parliamentary ratification procedure instead.



In the UK, the draft Reform Treaty Bill is likely to be introduced in the House of Commons in January 2008. The deadline for ratification by member states, in order for the new treaty to come into force, is 1 January 2009.



Julia Bateman is acting head of the Law Society’s Brussels office, and Louise Hodges, Megan Pullum and John Wotton are members of the Society’s EU committee. For further information, contact: brussels@lawsociety.org.uk