EU Law Blog

New Rules on Comitology Proposed

The Commission has made a proposal to the Council and European Parliament - COM (2010) 83 final - to reform the "comitology" procedure.

The proposal seeks to implement Article 291 TFEU that lays down that the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall adopt in advance the rules and general principles concerning mechanisms for control by member States of the Commission's exercise of implementing powers. If adopted, the new measure will replace Council Decision 1999/468/EC.

Instead of having four different procedures (the advisory, the management, the regulatory and the regulatory with scrutiny procedures) as now, the proposal suggests that there be only two: The advisory procedure, like the existing advisory procedure, and a new "examination" procedure, to replace the management and regulatory procedures (Articles 4 and 5).

According to the proposal, the advisory procedure will be the default procedure can be applied to all policy domains and for all types of binding implementing measures (Article 2(3)) whereas the examination procedure would only be used when certain binding criteria are met (Article 2(2)).

The proposed examination procedure would work as follows:
- Where the Committee delivers a negative opinion on the draft measures, the Commission could not adopt them. The Commission can re-submit the draft to the committee for reconsideration, or table an amended draft. In very exceptional circumstances, the Commission would be able to adopt the draft measures despite a negative opinion but in such a case the committee would have the last word within a time-period which will not exceed one month;
- Where the committee reaches no opinion, the Commission could ultimately decide whether to adopt the measures or not.
- If the committee gives a positive opinion, the Commission would adopt the measures unless exceptional circumstances or new facts would justify them not being adopted.

Under the examination procedure, the committee itself would be able to prevent the adoption of the draft measures by the Commission if a qualified majority of member States were against.

For a previous post on comitology, look here.

New Publication of Consolidated Treaties

There's a new publication of the consolidated version of the Treaties in the OJ, 2010 C 83, p. 1.

You can download the complete version here.

Here's the link to the full collection which includes the Treaty on the European Union, the Treaty on the Functioning of the European Union, the Protocols, Annexes,and Declarations. There's also the all important and useful Table of Equivalences showing the correspondence between the old and new article numbering.

This publication also includes the Charter of Fundamental Rights which now has legal force.

And there's a consolidated version of the European Atomic Energy Community Treaty in the OJ 2010 C 84, p. 1.

Implementation of Lisbon Treaty and Delegated Acts : Commission Communication on Article 290 TFEU

The new Article 290 TFEU provides:

1. A legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act. The objectives, content, scope and duration of the delegation of power shall be explicitly defined in the legislative acts. The essential elements of an area shall be reserved for the legislative act and accordingly shall not be the subject of a delegation of power.
2. Legislative acts shall explicitly lay down the conditions to which the delegation is subject; these conditions may be as follows:
(a) the European Parliament or the Council may decide to revoke the delegation;
(b) the delegated act may enter into force only if no objection has been expressed by the European Parliament or the Council within a period set by the legislative act.
For the purposes of (a) and (b), the European Parliament shall act by a majority of its component members, and the Council by a qualified majority.
3. The adjective "delegated" shall be inserted in the title of delegated acts.

That is a new category of acts.

The Commission has recently published an interesting Communication on the implementation of Article 290 TFEU (COM(2009) 673 final) which sets out the Commission's views on the scope of the delegated acts, the framework for delegations of power, the working methods the Commission intends to use for preparing the adoption of delegated acts and, finally, the conditions under which the legislator might exercise control over the way the powers conferred on the Commission are implemented.

Well worth reading.

Lisbon Treaty and Changes to the Court of Justice

As you know by now, the Lisbon Treaty entered into force today, December 1st 2009.

The Court of Justice has published this very useful short guide to the changes that the Lisbon Treaty makes to the Court of Justice itself, the General Court, as the Court of First Instance is now known, their jurisdiction and their procedures.

It is definitely worth reading.

UPDATE: Link fixed !

Lisbon Treaty, Czech Constitutional Court (Again) and Ratification

The Czech Constitutional Court has lifted the last major obstacle to the entry into force of the Lisbon Treaty.

On November 3rd 2009 it handed down a second judgment (a summary and a press release are available in English) finding that ratification of the Lisbon Treaty by the Czech Republic did not violate its constitutional provisions.

This second case was brought by a group of senators after the Czech Parliament of had already consented to ratification. The senators sought a review of the Lisbon Treaty as a whole as well as of the Treaties of Rome and Maastricht.

The Constitutional Court declared the petition to review the Treaties of Rome and Maastricht as inadmissible as those Treaties were unaffected by the process of ratification of the Lisbon Treaty.

As to the Lisbon Treaty itself, the Constitutional Court confirmed its ruling of November 28th 2008. We wrote a post about that first judgment here. It held that there was no democratic deficit in the European Union as a whole as the European Parliament is not an exclusive source of democratic legitimacy for decisions adopted on the European Union level. That legitimacy derives from a combination of structures existing both on the domestic and European level, and it held that it is not possible to demand absolute equality among voters in individual member states.

It also held that ratification of the Lisbon Treaty carried with it no loss of sovereignty for the Czech Republic. It stated that “in a modern democratic state governed by the rule of law, state sovereignty is not an aim in and of itself, i.e. in isolation, but is a means to fulfilling the fundamental values on which the construction of a democratic state governed by the rule of law stands [...] The transfer of certain competences to the state, which arises from the free will of the sovereign and will continue to be exercised with its participation in a pre-agreed, controlled manner, is not a sign of the weakening of sovereignty, but, on the contrary, can lead to strengthening it in the joint process of an integrated whole.”

The Czech President signed the ratifcation instrument, the last one. As a consequence, it seems that the new Treaty could enter into force on December 1st 2009.

German Constitutional Court and Lisbon Treaty Ratification

The German Federal Constitutional Court has handed down its judgment on the compatibility of the Lisbon-Reform Treaty with the German Basic Law (as the constitution is called).

The Constitutional Court concluded that there was no incompatibility between the Lisbon Treaty and the Basic Law and therefore the Federal Republic could in principle complete the ratification process without a problem.

It held that the Lisbon Treaty does not transform the EU into a federal state and such a transformation would have been contrary to domestic German law. It also held that the Lisbon Treaty does create an EU citizenship to supersede a national one, and does not oblige member states to provide troops for a European army. In essence, the Constitutional Court finds that the member States of the EU wield the political power.

But, the Constitutional Court continued, the German bill ratifying the Treaty requires modification before it can enter into force and be compatible with the Basic Law. The Court held that in order for the bill to be constitutional, it must provide for more participation of the German Parliament in matters bringing about the transfer of greater powers the EU institutions.

Consequently, ratification cannot proceed in Germany until the domestic legislation is brought into line with the Basic Law.

You can read the full judgment in English here but it is long. A press release giving the salient points is available here.

For our post on the Lisbon Treaty and the Czech Constitutional Court, see here.

The Number of European Commissioners: Past, Present and Future

How about starting the year with a general post of institutional interest ? Let us look at how the composition of the EU Commission has changed.

At present, the EC Commission currently has 27 members, known (un)popularly as “Commissioners”. That is one per member State. The number is currently fixed by Article 213 §1 EC. The Commissioners are appointed for a term of five years and are “chosen for their general competence and of indisputable independence”.

There has been quite a debate over the years about how many Commissioners there should be.

Originally, in the Treaty of Rome before any amendment and when there were six member States, the number of Commissioners was fixed at nine by Article 157: At least one and no more than two Commissioners from each member State. In reality, every member State had one except for Germany, France and Italy which had two. The number of the Commissioners could be changed by a Council decision taken in unanimity.

Those interested in the history of the European institutions should note that the Commission of the EC had nine members, the High Authority of the ECSC had nine also, but the Commission of the EAEC (Euratom) had only five. With the Merger Treaty of 1965, merging the three Communities, the number was fixed at nine Commissioners. When the United Kingdom acceded to the EC in 1973, it was allocated two Commissioners. The same happened for Spain in 1986.

Before the last two enlargements of the EC in 2004 and 2007 respectively, the EU comprised 15 member States, and the Commission was composed of 20 Commissioners.

With a wave of negotiations for the accession of new member States, things had to change or else there would be too many Commissioners with too little to do.

So, the Treaty of Amsterdam (or, a more reliable link, here) which entered into force on May 1st 1999, the rule was modified so that there would be one Commissioner per member State and the big member States (Germany, France, Italy, United Kingdom and Spain) were deprived of their two Commissioners.

The Treaty of Nice entered into force on February 1st 2003 and the system of one Commissioner per member State was maintained. That’s the current rule laid down by Article 213 §1 EC. But ten new member States were set to join the EU in 2004. Consequently, a Protocol on the enlargement of the Union annexed to the Treaty of Nice provided two things. First it provided that on January 1st 2005 and with effect from when the first Commission following that date takes up its duties, the Commission should comprise one Commissioner per member State. But it also provided that when the Union comprised 27 member States a reduction of the number of the Commissioners would take place on the basis of a unanimous decision of the Council providing for a fair rotation taking into consideration the demographic and geographical range of all the member States. That provision in the Protocol applies as from the date on which the first Commission following the date of accession of the twenty-seventh member State of the Union takes up its duties, that is as of November 2009. (The date of January 1st 2005 mentioned in Article 4 §1 of the protocol was changed to November 1st 2004 by Article 45§2(d) of the 2003 Act of Accession).

To go off an historical tangent for a moment, a curious thing happened between May 1st 2004 and October 30th 2004: There were 30 Commissioners during that time. Why? Because Article 42§2(a) of the 2003 Act of Accession provided that one Commissioner per new member State would be added from the moment of accession. As ten new countries acceded on May 1st 2004 which was during the term of office of a Commission, that meant adding ten Commissioners to the existing 20. Germany, France, Italy, the United Kingdom and Spain still had two Commissioners each at that time and there was no provision permitting their reduction to one each during their term of office. Consequently, the Commission continued from May 1st 2004 until the end of its term of office on October 30th 2004 with the “extra” five Commissioners.

At present, the Commissioners number 27 because a Commissioner from Bulgaria and Romania is added from the date of accession of those countries. But from the next Commission (i.e. as of November 2009), their number should be reduced. The final figure remains to be determined by a unanimous Council decision according to the system of rotation mentioned. That’s the system as long as the Nice Treaty remains in force.

But then there’s the Lisbon Treaty that complicates matters (for a consolidated version, see here). That Treaty provides – should it enter into force – that the Commission appointed until October 31st 2014 shall consist of one national of each member State, including its President and the High Representative of the Union for Foreign Affairs and Security Policy who shall be one of its Vice-Presidents. As from November 1st 2014, the Commission shall consist of a number of members, including its President and High Representative of the Union for Foreign Affairs and Security Policy, corresponding to two thirds of the number of the member States, unless the European Council, acting unanimously, decides to alter that number. For our post on this, see here.

The European Council has already committed to changing that number in order, apparently, to accommodate Ireland should there be a second referendum there on the ratification of the Lisbon Treaty. It decided on December 11th and 12th 2008 as follows:

“On the composition of the Commission, the European Council recalls that the Treaties currently in force require that the number of Commissioners be reduced in 2009. The European Council agrees that provided the Treaty of Lisbon enters into force, a decision will be taken, in accordance with the necessary legal procedures, to the effect that the Commission shall continue to include one national of each Member State.”

That probably means that from November 1st 2014 the current rule of one Commissioner per member State will continue.

What we’ve seen over the years is EU membership multiply by four and a half to go from six to 27 member States but the number of Commissioners has multiplied only by three. We’ll leave political scientists and the intellectually inclined to debate whether that fact fits into or supports any of the theories of European integration such a federalism, functionalism, neofunctionalism, intergovernmentalism, institutionalism or whatever.

For some more history:
Hallstein Commission: 9 members;
Rey Commission: 9 members
Malfatti Commission: 9 members
Mansholt Commission: 9 members
Ortoli Commission: 13 members
Jenkins Commission: 13 members
Thorn Commission: 17 members
Delors Commission: Ist and 2nd terms, 17 members, third term also 17 members.
Santer Commission: 20 members
Prodi Commission: 20 members but from May 1st 2004, 30 members
Barroso Commission (in French): 27 members.

Lisbon Treaty and Czech Constitutional Court

The Czech Constitutional Court handed down its judgment of November 26th 2008 on whether ratification of the Lisbon Treaty was compatible with the Czech Constitution.

The Constitutional Court held that Articles 2 § 1 (before renumbering, Article 2a § 1), 4 § 2 (before renumbering, 2c), 352 § 1 (before renumbering, 308 § 1), 83 (before renumbering, 69b § 1) and 216 (before renumbering, 188l) of the Treaty on the Functioning of the European Union and Articles 2 (before renumbering, Article 1a), 7 and 48 §§ 6 and 7 of the Treaty on European Union, as amended by the Treaty of Lisbon, and the Charter of Fundamental Rights of the European Union are not inconsistent with the constitutional order of the Czech Republic.

The Constitutional Court stated that there would be a breach of the Czech Constitution if, on the basis of a transfer of powers, an international organization could continue to change its powers at will, and independently of its members, i.e. if a constitutional competence (competence competence) were transferred to it. But, the Court held, the Treaty of Lisbon does not have such consequences in relation to the EU, and and consequently it is consistent with the constitutional order of the Czech Republic.

Challenge to British Ratification of Lisbon Treaty Dismissed: Wheeler v Prime Minister

This is something that came up in the comments on the recent post on the future (if any) of the Lisbon Treaty.

We noted that there was a case requesting judicial review pending in the English High Court against ratification by the United Kingdom of the Lisbon-Reform Treaty in the absence of a referedum. There was something of a spat as the government tried to force ratification through so that any court judgment would be rendered useless. The government then undertook not to deposit the instruments of ratification until judgment.

The High Court delivered its judgment yesterday in Wheeler v Office of Prime Minister dismissing the application for judicial review of the decision not to hold a referendum.

The judgment is an interesting one, not least because it compares certain salient provisions of the Lisbon Treaty with those of the now defunct Constitution.

The High Court concluded:

"For the reasons we have given, we are satisfied that the claim lacks substantive merit and should be dismissed. Even if we had taken a different view of the substance of the case, in the exercise of the court's discretion we would have declined to grant any relief, having regard in particular to the fact that Parliament has addressed the question whether there should be a referendum and, in passing the European Union (Amendment) Act 2008, has decided against one.

At a late stage in the proceedings, a few days before we expected to hand down judgment, we were informed by the Treasury Solicitor that, following Royal Assent to the European Union (Amendment) Act 2008, the government "is now proceeding to ratify the Treaty of Lisbon". We were concerned that the government might be intending to pre-judge or pre-empt the decision of the court by ratifying the treaty while the lawfulness of doing so without a referendum was still in issue before the court. The Prime Minister, however, acted promptly to remove our concern by making clear that ratification would not take place before the judgment was handed down.
In the event, the decision of the court is itself clear. We have found nothing in the claimant's case to cast doubt on the lawfulness of ratifying the Lisbon Treaty without a referendum."

Lisbon Treaty and European Council

The European Council met today and yesterday to discuss, inter alia, what to do next after the Irish "No" vote in the referendum on whether that country should ratify the Lisbon-Reform Treaty.

As you can see from the "conclusions", the result was well, err, inconclusive.

Here's what the bit on the Lisbon Treaty actually says:

"1. The European Council took note of the preparatory work carried out in line with its December 2007 conclusions.
2. The European Council noted the outcome of the referendum in Ireland on the Lisbon Treaty and took stock of the situation on the basis of an initial assessment provided by the Taoiseach Brian Cowen.
3. The European Council agreed that more time was needed to analyse the situation. It noted that the Irish government will actively consult, both internally and with the other Member States, in order to suggest a common way forward.
4. Recalling that the purpose of the Lisbon Treaty is to help an enlarged Union to act more effectively and more democratically, the European Council noted that the parliaments in 19 Member States have ratified the Treaty and that the ratification process continues in other countries1.
5. The European Council agreed to Ireland's suggestion to come back to this issue at its meeting of 15 October 2008 in order to consider the way forward. It underlined the importance in the meantime of continuing to deliver concrete results in the various policy areas of concern to the citizens."

Some of that is a bit cryptic (and perhaps provides the start of an explanation of the problem). The footnote reads as follows:

"The European Council noted that the Czech Republic cannot complete their ratification process until the Constitutional Court delivers its positive opinion on the accordance of the Lisbon Treaty with the Czech constitutional order."

Looks like a promise of more interesting things to come. We'll keep an eye on that case for you.