Julia Bateman looks at Portuguese efforts to produce a slimline version of the European Constitution and what this could mean for lawyers and their clients
It is one thing to talk about the future of Europe, it is another thing to get 27 heads of state around the table to sign up to a slimline version of the European Constitution - the new Reform Treaty.
When the Portuguese took over the reigns of the EU's sixth-month presidency from Germany, they took on a big responsibility - namely to produce a new draft treaty. With an informal foreign affairs ministers meeting earlier this month, the presidency appears to be discharging this responsibility admirably and seems to be cracking the diplomatic whip.
Portuguese foreign affairs minister Luís Amado reported that the meeting was very positive and political agreement is pencilled in for October, with signature scheduled for the end of the year. As to what changes the Reform Treaty will make, and the impact for lawyers and their clients, the forthcoming Law Society's EU committee guide to the Reform Treaty, due to be published in December, will seek to explain the key issues in more depth.
One of the major areas of change will be in the field of police and judicial co-operation and in the area of criminal law more broadly. Currently, action in the area of criminal law is dealt with through specific provisions that differ from the usual mainstream decision-making processes. For example, the European Parliament does not play a decisive role in the decision-making process - it is merely consulted - while the European Court of Justice (ECJ) has a very limited role.
Many would argue that in an area of law that deals with deprivation of liberty, pan-European arrest and surrender, and the rights of the individual, this obvious lack of judicial and democratic scrutiny is worrying to say the least. Others would counter that these particular procedures and processes are necessary to ensure that the European Union does not step on the sovereign toes of member states.
A number of these questions were tackled recently at a roundtable held by the Law Society in Brussels. Entitled the 'Criminal law competence of the European Community', the debate was hosted in the European Parliament by solicitor MEP Diana Wallis. As the European Commission pushes forward with action on green crimes, Europe-wide counterfeiting and piracy, and standard criminal penalties sanctioning the employers of illegal immigrants, the ECJ has recently sounded a cautious note as to where the power to create criminal offences actually lies.
This so-called 'competence creep' has caused consternation among anti-Europeans, but even in pro-European circles it has become increasingly difficult to reconcile the legal, political and constitutional principles involved in this tricky topic. To make progress on the question of who creates new criminal offences in Europe and determines the penalties attached to them, the Brussels office rounded up a number of experts in the field - including the commission's top lawyer and a senior representative from the ECJ. We wanted them to go head-to-head on the issue of whether Brussels really has the right to set down Europe-wide criminal rules for the breaching of regulatory regimes. With a number of national governments in attendance and representatives from the Houses of Lords and the Commons, discussion soon turned to how far these rules could go before they cross the red line.
This argument may soon be settled as the Reform Treaty would allow criminal law proposals on items such as bail and probation, gathering of evidence, definitions of terrorism and organised crime to be dealt with according to the ordinary legislative procedure used at EU level. This would involve the European Parliament and the Council (member states) sharing decision-making power and individuals having recourse to the ECJ in Luxembourg. National governments would no longer have a veto but could avail themselves of a form of 'emergency brake' to put legislative negotiations on hold where they considered that the proposal would affect fundamental aspects of their criminal justice system. A complicated red, orange and yellow-card system has been developed to allow national parliaments to raise the 'subsidiarity alarm'.
The UK government has gone one step further and secured a powerful position where it can select, or 'opt-in' to, a legislative proposal rather than automatically being bound by it once it has been adopted. This cherry-picking has caused consternation in Brussels because some commentators suggest this patchwork approach undermines the goal of a single area of freedom, security and justice.
On the other hand, the UK government has billed this as a triumph of national sovereignty. This sentiment appears to be currying favour with other member states - following this month's meeting, Poland declared that it too would seek a UK-style opt-out of the Charter of Fundamental Rights set out in a protocol to the new Reform Treaty.
Whether the Portuguese will keep their fellow member states in line during the next few weeks remains to be seen. What has become clear, though, is that, for a small country, Portugal has big plans.
Julia Bateman is acting head of the Law Society's Brussels office. Email: Julia.Bateman@lawsociety.org.uk.
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