How could this have happened ? We forgot to point you to the EU Select Committee of the British House of Lords report on the Lisbon Treaty. It is entitled "The Treaty of Lisbon: An Impact Assessment". It was published back in March...Ouch.
That Committee is renowned for its high quality reports on EU affairs and this report is no exception.
It is probably the best, single publication to date on the new Treaty. Just go ahead and read it. But beware, the report itself is quite voluminous, about 300 pages long. The copious evidence provided by a wide range of individuals and organizations is available here.
A while ago, the Court of Justice handed down a significant judgment on the issue of the standing of individuals to challenge acts of the EU institutions. The judgment in Case C-125/06 P Commission v. Infront WM AG broadens a little the otherwise fairly restrictive rules on standing of individuals.
You'll recall that Article 230 §4 EC requires that individuals demonstrate that they are directly and individually concerned by an act which is not addressed to them. In its classic statement in Case 25/62 Plaumann v Commission, the Court of Justice held that persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed by such a decision.
In its judgment in Case T-33/01 Infront WM v. Commission, the Court of First Instance held that a Infront, which owned the exclusive rights to broadcast certain soccer matches in European countries, was directly and individually concerned by a Commission decision that approved a measure taken by the British authorities under Article 3a of Directive 89/552/EC, the TV without frontiers directive. That measure, as inserted by Directive 97/36/EC, allowed national authorities to strip broadcasters of their exclusive rights to broadcast TV programs of "major importance for society" so that a substantial portion of the population could see them. The British authorities, applying the Juvenal's metaphor of panem et circenses, decided that the sports broadcasts of which Infront owned the exclusivity came within that category and deprived Infront of the exclusive right to transmit them in the United Kingdom. The British authorities notified their decision to the Commission and the Commission took a decision in its turn approving the British measure. Infront then challenged the Commission measure and won in the Court of First Instance.
The Court of First Instance held that Infront was directly concerned by the contested decision in so far as it enables the implementation of the mechanism of mutual recognition by the other member States of the measures adopted by the United Kingdom pursuant to Article 3a(1) of Directive 89/552. It also held that Infrant was individually concerned by the Commission decision because it concerns Infront by reason of a characteristic peculiar to it, namely its capacity as the exclusive holder of the TV broadcasting rights for one of the designated events. Although Infront, in its capacity as broker of the relevant television broadcasting rights is not expressly covered by the national measures approved by the Commission, the effect of the measure was to impede its ability freely to dispose of its rights by restricting their transfer exclusively to a broadcaster established in a member State other than the United Kingdom which wishes to broadcast that event in the latter State.
The Commission then appealed the judgment in Case T-33/01 to the Court of Justice on the point of standing.
The Court of Justice in its judgment in Case C-125/06 P upheld the ruling of the Court of First Instance.
The Court of Justice held first that Infront was directly concerned by the Commission measure since it imposes certain restrictions on broadcasters where they envisage broadcasting designated events for which Infront acquired exclusive rights and those restrictions are linked to the circumstances in which those broadcasters acquire the TV broadcasting rights to designated events from Infront. Consequently, the effect of the measures adopted by the United Kingdom and the Commission decision is to subject the rights held by Infront to new restrictions which did not exist when it acquired those broadcasting rights and which render their exercise more difficult. Those new restrictions were imposed by the Commission measure and the member States implementing it were left with no discretion as to how to apply it (see, Case C-386/96 P Dreyfus v. Commission, paragraph 43).
The Court also held that Infront was individually concerned because the Commission decision altered a right acquired by Infront prior to its adoption (see Joined Cases 106/63 and 107/63 Toepfer and Getreide-Import Gesellschaft v. Commission, paragraph 411). It found that Infront acquired those exclusive rights prior to the adoption of the Commission decision and that, at that time, there were only six companies which had made substantial investments in the acquisition of TV broadcasting rights to events in that list. Thus, Infront was perfectly identifiable at the time when the contested decision was adopted.
What is interesting in this judgment is that the Court finds that an affectation of exclusive rights held by the plaintiff, not their abolition, is enough to give the plaintiff standing.
We've not given much thought to this, but this caselaw could soon be superseded - on the issue of individual concern - by the new Article 263 §4 of the Treaty on the Functioning of the European Union as amended by the Lisbon-Reform Treaty that provides that an individual has standing to challenge "a regulatory act which is of direct concern to them and does not entail implementing measures". Provided of course that the Commission measure impugned is characterized as a "regulatory act" which is not defined.
The ratification process of the Reform-Lisbon Treaty is underway in the United Kingdom. That process is sure to generate some interesting, even heated, debates.
The British House of Commons Library has published an informative research paper on the bill that, if passed, will ratify the new Treaty in British law. The research paper summarizes the Treaty and how it will be ratified in the United Kingdom. Also, there is an Appendix describing briefly the ratification process in the other member States.
We conclude that there is no material difference between the provisions on foreign affairs in the Constitutional Treaty which the Government made subject to approval in a referendum and those in the Lisbon Treaty on which a referendum is being denied.
One of the most important changes brought about by the Reform-Lisbon treaty is the establishment of a taxonomy of competence: It defines - or at least attempts to - who does what in the EC.
The new Treaty maintains the existing but frequently forgotten system of conferred powers. According to that, the EC can only do what the Treaty expressly allows it to do and its competence cannot be extend with the agreement of the member States.
The new Treaty then divides the powers of the Union into three categories:
Competence exclusive to the Union;
Competence shared between the Union and the member States which the latter can exercise when the Union does not exercise it,
And exclusive competence of the member States but in which the Union can provide "support, coördination or supplemental action".
Let's look at what each category comprises.
The Union has exclusive competence in the following areas:
The Customs union;
Competition rules for the functioning of the internal market (thus continuing the process of eurapeanization of competition policy);
Conservation of marine resources as part of the common fisheries policy;
Common external trade policy,
Conclusion of an international agreement in the framework of a legislative act of the Union, when required for the exercise of existing internal competence or if existing internal rules will need changing.
Competence is shared between the Union and the member States in the following domains:
The internal market;
Social policy as specifically defined in the Treaty;
Economic, social and geographic cohesion;
Agriculture and fisheries except of the conservation of marine resources which is a matter of exclusive competence (see above);
Area of freedom (or lack of it !), security and justice,
Joint security issues concerning the protection of public health as specifically defined in the Treaty.
The member States have exclusive competence but the Union can act to support, coördinate or supplement it in the following areas:
Protection and improvement of human health care;
Education, vocational training, youth and sport;
Ostensibly, the new Treaty does not create any new area of exclusive competence for the Union. But it does finish off usurping all competence of the member States in the area of competition law when the internal market is at stake. New competence is created for space and energy policies which is shared with the member States.
The category of areas of competence that are exclusive to the member States but in which the Union can "support, coördinate and complement" the action of the States is a new one. The ordinary legislative procedure applies in those areas (codecision Council/Parliament and qualified majority in the Council).
The new Treaty reinforces the role of the Union in the areas of freedom, security and justice and defence and in its external action but we'll be looking at those separately.
A certain number of safeguards are introduced to prevent "competence creep" or the arrogation of competence by stealth in favor of the Union. In particular, the existing Article 308 EC (to be renumbered as Article 352), the competence clause, will be amended to exclude all use in the field of the common foreign and security policy and to prevent any harmonization measures in areas where the Treaty express excludes them. The new rendering of Article 308 (to be Article 352) contains a clause obliging the Commission to involve national parliaments in the procedure for the adoption o measures based on that article. On the increased role of national parliaments generally, see our previous post "Reform Treaty - Institutional Changes, part 2 (National parliaments and participatory democracy)".
One of the biggest changes that the Lisbon-Reform Treaty brings about concerns qualified majority voting.
First, the new Treaty extends the scope of qualified majority voting. 24 existing legal bases currently requiring unanimity in the Council can be adopted by qualified majority. They concern the implementation of the area of freedom, security and justice (border controls, asylum, immigration, Eurojust, Europol), proposals under the CFSP made by the High Representative for Foreign and Security Policy at the request of the European Council, and the arrangements for monitoring the exercise of the Commission's executive powers ("comitology"). Also, 20 new legal bases have been created for adoption of measures by qualified majority. They deal with matters such as the principles and conditions for operating services of general economic interest, the arrangements for protecting intellectual property, energy, humanitarian aid, civil protection.
The second change, and the greater one, concerns the way votes in the Council are calculated. At present each member State has a "weighted vote" (29 for Germany, the UK, France and Italy, 27 for Poland and Spain, down to 3 for Malta). A qualified majority is attained - according to a complicated formula - if the bill is approved by a majority of member States and obtains 255 votes at least out of a total of 345. In addition, a member State may request that the bill be approved by member States representing at least 62% of the Union's population. That's the system established by the Nice Treaty. According to the new Treaty, that system will continue until November 1st 2014.
But from November 1st, 2014, a new system of "double majority" will apply. That new mechanism comprises two parts. The first part is that the bill must be approved by a 55% of the member States (with 27 member States, that is 15 of them). The second part is that those 15 member States must represent 65% of the population of the Union. There's a mechanism to prevent a small number of the populous states from blocking a bill: A blocking minority must comprise at least four member States. If the blocking minority is less than four states, the qualified majority will be deemed to be reached even if the population percentage is not met.
Well, that is the system that applies when the Council acts on a proposal from the Commission. But when the Council does not act on a proposal from the Commission or from the High Representative for Foreign and Security Policy, a threshold of 72% of the member States, representing 65% of the population is required.
There's a transitional period from November 1st 2014 to March 31st 2017 (a concession to Poland). During that period a member State may still request application of the old weighting system in the current Article 205 EC. If new member States accede between now and 2017 the weighting system will be adapted accordingly.
If that were not complicated enough, the system is topped up by another quasi-blocking minority mechanism similar to the Ioannina compromise. That was a mechanism which took its name from an informal meeting of Foreign Affairs ministers in Ioannina, Greece in 1994 that enables a group of states close to a blocking minority but not actually amounting to one to request re-examination of a decision adopted by qualified majority. Under the new system, a group of states that cannot form a blocking minority (1/3 of the member States or states representing 25% of the population of the Union) can temporarily suspend a decision of the Council. In such a case, the Council will not take a vote and will continue to discuss the proposal for a "reasonable time" if requested to do so by a group of member States representing at least 75% of the total number of member States or 75% of the population needed to constitute a blocking minority. From April 1st 2017, the 75% threshold will be lowered to 55%. Although the Council may amend or repeal this simple-majority system, a protocol states that consensus must first be reached in the European Council.
That's it for now. Next installment will be on the changes to the division of competence between the Union and its member States.