Julia Bateman reports on the winners and losers as heads of state attempt to reshape the EU's institutional and legislative process


When heads of state and government met in Brussels last month, they had a daunting task ahead of them: sort out the future of Europe. With a major new arrival ready to make his name on the European stage, a soon to be ex-prime minister legacy-shopping, and twin heads of state refusing to be treated like the poor relation, the political powder keg was charged. However, despite predictions to the contrary, a consensus on the future of Europe was actually achieved, leaving Chancellor Merkel and the German Presidency to take a celebratory curtain call before they passed the EU baton onto the Portuguese.



Yet this last-ditch attempt to address the creaking institutional structure and burdensome legislative process weighing down the Europe of 27 was not exactly a triumphant relaunch of the Constitutional Treaty for Europe. Rather, it was a lukewarm mandate to launch proceedings on the so-called Reform Treaty.



The treaty text not only lost the reference to undistorted competition, but also removed proposed references to the supremacy of European law. This is a long-standing principle, rather than a recent phenomenon, as the more euro-sceptic media would have us believe. Indeed, such was the need to keep this quiet that even the sensible changes in legislative terminology were rejected, leaving us with a myriad of directives, decisions and regulations rather than laws and framework laws. While this could be a case of 'what's in name?', the message not to rock the boat was loud and clear.



Further retreats became clear as the details of the deal came out. Where the draft constitution had significantly improved democratic and judicial scrutiny in the area of police and judicial co-operation, reinforcing the role of the European Court of Justice and the European Parliament, this time particular member states were given the option to back out of collective action in this area, reversing their previous commitments.



The UK government fought hard for the right to be able to cherry-pick the pieces of legislation in the area of police and criminal justice it would sign up to. The Republic of Ireland is considering a similar move. While this is billed as a way to protect our national sovereignty and the integrity of domestic criminal law, it ignores the fact that both the unratified Constitutional Treaty of 2004 and its successor would allow national governments to press the 'emergency brake'. If a member state felt that a European initiative would have a significant impact on domestic law and procedure in the home affairs and justice area, it could withdraw from the proposal.



Yet the UK, which ironically proposed the get-out clause the first time round, decided that this was not enough. Conferring 'red-line' status on this issue, the government secured an opt-out - or, rather, the right to opt-in on any specific proposal. While some welcomed this move as a sensible protection of our different legal system and common law regime, there are others who are concerned that the UK will only opt-in to the law enforcement and cross-border prosecution measures rather than those that serve to protect the rights of the individual and reinforce procedural rights. We only have to look at the role the UK played in killing off the draft framework decision on procedural rights, and its hand in pushing through the directive on data retention for law enforcement purposes, to think that this latter argument might hold true.



Similarly, the Charter for Fundamental Rights, a political declaration that had been nailed down into the European Union's legal framework, was rejected by the UK government. Where it had previously accepted that this should be incorporated into the Constitutional Treaty, provided it only referred to implementation of European law and in reference to the EU institutions, this time the government went once step further, stating: 'For the avoidance of doubt, nothing in [Title IV] of the charter creates justiciable rights applicable to the United Kingdom except in so far as the United Kingdom has provided for such rights in its national law.'



It is not the first time that the UK and Ireland have taken such a move. They both enjoy a similar right of opt-in in the field of judicial co-operation in civil matters, essentially cross-border dispute resolution and family law. To some, this is seen as politically advantageous; to others, dangerously sidelined. So much for the common area of freedom, security and justice - it is more like a patchwork.



So what next for the Reform Treaty? Well, the Portuguese prime minister swiftly convened the inter-governmental conference for 23 July and national governments will be sending their envoys to dot the i's and cross the t's, with 2009 talked about for entry into force. So far, so good. However, signature is one thing, ratification quite another. With voters in Denmark and Ireland rehearsing their right to a referendum, and calls from some quarters for this in the UK, whether the Reform Treaty sees the light of day or not remains to be seen.



Julia Bateman is acting head of the Law Society Brussels office. Email julia.bateman@lawsociety.org.uk.