Common

Law Review 45: 617703, 2008

LisbonMarket
Treaty
2008 Kluwer Law International. Printed in the Netherlands

617

THE TREATY OF LISBON 2007: WINNING MINDS, NOT HEARTS

MICHAEL DOUGAN*

Introduction**

1.

It would be tempting to say of the Treaty of Lisbon 2007 (TL):1 alls well that
ends well. Except, of course, that not everything is well, and matters are far
from ended. This article seeks to provide an overview of the main reforms to
the Unions primary law contained in the TL, highlighting some of the problems those reforms create and some of the issues they are likely to generate in
the future. For ease of reference within this admittedly lengthy piece, the article is structured as follows:
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.

the long process of constitutional reform;

the Unions constitutional architecture;
the Union institutions;
decision-making instruments and procedures;
decision-making powers;
human rights and fundamental freedoms;
the Union judiciary;
the Area of Freedom, Security and Justice;
accession, withdrawal and amendment;
some overall reections on the revised Treaties.

The TL obviously contains a great deal more amendments to the existing Treaties than that. However, space precludes analysis of the detailed reforms to
various individual elds of Union activity (including the far-reaching changes
to the Unions external competences in general and the CFSP in particular);2
*

Professor of European Law and Jean Monnet Chair in EU Law, Liverpool Law School.
This article draws upon work presented at the Universities of Durham, Swansea, Leiden and
Malta. I am very grateful to participants for their comments and discussions. I am indebted to
Eleanor Spaventa, and to my colleagues on the CML Rev Editorial Board, for their invaluable
suggestions on previous drafts.
**
The editorial board decided that the exceptional length of this article was warranted given
the importance of the new treaty, despite at the time of writing the lack of complete certainty
as to whether it will enter into force.
1. O.J. 2007, C 306.
2. See Title V TEU and Part Five TFEU.

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and indeed other issues of broader constitutional importance (such as certain

new exibility features,3 and the revised rules on enhanced cooperation).4 Various amendments to the Treaty establishing the European Atomic Energy
Community must also go unexplored,5 though these are largely technical
concerning the alignment of Euratoms institutional and nancial provisions
with those of the Union according to the revised Treaties, while still retaining
Euratoms separate legal status and personality and do not signicantly affect the substantive regime for the regulation of civil nuclear energy.6
Before proceeding, an important note on references, necessitated by the fact
that the TL will implement another major renumbering exercise across the
Unions two main treaties. Provisions of the Treaties as they are revised by the
TL will be referred to by their new numbers, in accordance with the table of
equivalence provided for in the Annex referred to in Article 5 TL, in either the
Treaty on European Union (TEU) or the Treaty on the Functioning of the European Union (TFEU).7 Provisions of the Treaties as they currently stand, before the entry into force of the TL, will be referred to by their existing numbers, explicitly identied as such where the context so requires, in either the
Treaty on European Union (TEU) or the Treaty establishing the European
Community (EC).

2. The long process of constitutional reform

It might be helpful briey to recall the main stages in the process of constitutional reform which eventually culminated in the TL.
The IGC which was concluded in December 2000, as well as agreeing the
Treaty of Nice, adopted a Declaration on the Future of the Union, highlighting the need for a more thorough reection upon the Unions constitutional
framework.8 One year later, the Laeken European Councils Declaration on
the Future of the European Union laid down the detailed parameters for this
3. E.g. the provisions on closer integration between members of the Euro-group: see Chapt.
4, Title VIII, Part Three TFEU.
4. See Title IV TEU and Title III, Part Six TFEU. For consideration, see Dougan, The unnished business of enhanced cooperation: Some institutional questions and their constitutional
implications in Ott and Vos (Eds.), 50 Years of European Integration: Foundations and Perspectives (TMC Asser Press, forthcoming).
5. See Protocol No 2 annexed to the TL.
6. In which regard, note Declaration No 54 annexed to the Final Act.
7. In fact, the author beneted greatly from a consolidated version of the Treaties published
in January 2008 by the UK Foreign and Commonwealth Ofce: Cm 7310 (available via www.
fco.gov.uk).
8. See Presidency Conclusions of 8 Dec. 2000.

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process of constitutional reection.9 Building on the perceived success of the

Convention which had previously drafted the Charter of Fundamental Rights,
the Laeken Declaration also established a Convention on the Future of Europe to prepare a set of proposals for presentation to the Member States at a
future IGC. That Convention composed of representatives of the Member
States, the European Parliament, the national parliaments and the Commission
commenced its work in February 2002 and presented a draft Treaty establishing a Constitution for Europe to the European Council in July 2003.10 An
intergovernmental conference was convened in autumn 2003 to deliberate on
the Convention draft and agree on a new Treaty, as required under existing
Article 48 TEU, leading to signature of the Treaty establishing a Constitution
for Europe (Constitutional Treaty or CT) at a ceremony in Rome on 29 October 2004.11
According to Article IV-447 CT, the Treaty had to be ratied by the High
Contracting Parties in accordance with their respective constitutional requirements, with a view to entering into force on 1 November 2006. At rst, ratication by national parliaments (and, in the case of Spain, through a popular
referendum) proved unproblematic. However, the ratication process descended into crisis following negative results in popular referenda in France
(29 May 2005) and the Netherlands (1 June 2005). In the light of those events,
the European Council meeting in June 2005 called for a period of reection
across all Member States.12 Opinion proved to be deeply divided about the best
way forward.13 For example, some believed that the CT was effectively dead
9. See Presidency Conclusions of 14 Dec. 2001.
10. O.J. 2003, C 169. See, for general analysis of the Convention draft, e.g. Dashwood, The
Draft EU Constitution: First impressions, 5 CYELS (20022003), 419; Dougan, The Conventions Draft Constitutional Treaty: Bringing Europe closer to its lawyers?, 28 EL Rev. (2003),
763; Kokott and Ruth, The European Convention and its Draft Treaty establishing a Constitution for Europe: Appropriate answers to the Laeken Questions?, 40 CML Rev. (2003), 1315;
Lenaerts and Gerard, The structure of the Union according to the Constitution for Europe: The
emperor is getting dressed, 29 EL Rev. (2004), 289.
11. O.J. 2004, C 310. See, for general analysis of the CT, e.g. Dashwood, The EU Constitution: What will really change?, 7 CYELS (2004/2005), 33; Constantinesco, Gautier and Michel
(Eds.), Le Trait tablissant une Constitution pour lEurope (Presses Universitaires de Strasbourg, 2005); Arnull, Dashwood, Dougan, Ross, Spaventa and Wyatt, Wyatt & Dashwoods EU
Law (Sweet & Maxwell, 5th ed, 2006) Chapt. 11.
12. See the Declaration by the Heads of State or Government of the Member States of the
European Union on the Ratication of the Treaty establishing a Constitution for Europe (18 June
2005). The period of reection was extended by the European Council meeting in June 2006
(see Presidency Conclusions of 16 June 2006). Note also the Commissions Plan D for Democracy, Dialogue and Debate: COM(2005)494 and COM(2006)212.
13. See further: Editorial, What now?, 42 CML Rev. (2005), 905; Editorial, What should
replace the Constitutional Treaty?, 44 CML Rev. (2007), 561. Also, e.g. Rossi, En cas de nonratication Le destin prilleux du Trait-Constitution, 40 RTDE (2004), 621.

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and the best option was to make the existing post-Nice arrangements work as
best they could in the enlarged Union;14 possibly also cherry picking some
of the more uncontroversial reforms proposed under the CT and adopting them
(so far as possible) through secondary legislation, changes to institutional rules
of procedure and new inter-institutional agreements.15 Others did not give up
hope that the CT might still enter into force: Member States such as Belgium
and Luxembourg pressed ahead with ratication and secured positive votes; it
was possible that (as with the Danes over Maastricht and the Irish over Nice)
a second referendum could eventually be held in France and the Netherlands,
with changed political circumstances increasing the chances of popular approval.
In the end, however, the outcome of the period of reection was that the
European Council, meeting in June 2007 under the presidency of Germany,
agreed to declare the CT defunct; it approved the mandate for another intergovernmental conference charged with drafting a new Reform Treaty.16 That
Reform Treaty was to shed the form, language and symbols of a European
Constitution, in favour of having another amending Treaty, similar in nature
to the Single European Act, Treaty of Amsterdam or Treaty of Nice; but within this new garb, to preserve as many as possible of the technical reforms
proposed under the old CT which were intended to improve the Unions effectiveness, efciency and accountability. The IGC itself was convened by the
Portuguese Presidency in July 2007,17 and reached political agreement on the
text in October 2007. The Reform Treaty was then signed by the Member
States at a ceremony in Lisbon on 13 December 2007. Assuming that ratication proceeds without upset, the new Treaty should enter into force on 1 January 2009, before the European Parliament elections scheduled for June of that

14. In which regard, consider the ndings of Wallace, Adapting to Enlargement of the European Union: Institutional Practice Since May 2004 (Trans-European Policy Studies Association, December 2007) available at www.tepsa.be/TEPSA%20-%20Wallace%20Publication%20
website.doc.
15. Consider, e.g. the Councils moves towards greater transparency in its legislative deliberations through amendments to its Rules of Procedure, and the European Parliaments greater
inuence over Commission implementing powers thanks to amendments to the Second Comitology Decision: sections 4.2 and 5.3.3 (respectively). See further: Editorial, In the meantime
Further progress in transparency and democracy while the Constitution is dormant, 43 CML
Rev. (2006), 1243.
16. See Presidency Conclusions of 23 June 2007.
17. 12004/07. The IGC was formally based on a proposal submitted by Germany (11222/07)
reproducing the European Council mandate. Note the Commissions generally positive opinion
on the IGC mandate (COM(2007)412 Final); as well as the more ambivalent opinion of the
European Parliament (Resolution of 11 July 2007). Note also the opinion of the European Central Bank (annexed to 11624/07).

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year.18 At the time of writing, only Ireland plans to hold a popular referendum
on the TL; the remaining Member States will ratify by parliamentary votes
alone.19

3. The Unions constitutional architecture

The most obvious difference between the CT and the TL concerns their respective approaches to the existing Treaties. Whereas the Laeken Declaration
had posed the question whether reform of the current Treaties might eventually lead to the promulgation of some form of European constitution, the subsequent Convention decided to present its proposals already in the form of a
Treaty establishing a Constitution for Europe. That ambiguous phrase acknowledged the international law basis of the text, but nodded towards a more
fundamental status.20 For some, that more fundamental status was essentially
a matter of simplication: a mere recasting of the ground rules governing the
Unions institutions and competences, based upon the existing Treaties as interpreted by the Court of Justice, which were anyway already acknowledged
to enjoy a constitutional character.21 In particular, the CT would have repealed and replaced the existing Treaties (including Rome, Maastricht, Amsterdam and Nice) in their entirety, brought an end to the current pillar structure, and abolished the European Community as a distinct legal entity. Instead,
there would have been a unitary European Union, based upon a single Constitutional Treaty, and possessing its own legal personality.
For others, however, the very idea of a constitution suggested something
more far-reaching: accustomed to understanding political systems according
to the model of the nation State, and unwilling or unable to conceive of a constitutional order which could indeed be constitutional without being national, the new European Union appeared either (to those who at least knew

18. See Art. 6(2) TL.

19. At the time of writing, the following Member States had already successfully ratied the
TL: France, Hungary, Malta, Romania, Slovenia. For France, ratication required a constitutional amendment: see Dcision no. 2007560 DC of Le Conseil constitutionnel (20 Dec.
2007).
20. For broader discussion, see von Bogdandy, The prospect of a European Republic: What
European citizens are voting on, 42 CML Rev. (2005), 913; Birkinshaw, Constitutions, constitutionalism and the State, 11 EPL (2005), 31; Dyvre, The constitutionalisation of the European Union: discourse, present, future and facts, 30 EL Rev. (2005), 165.
21. See, e.g. Opinion 1/91, Draft Agreement between EEC and EFTA, [1991] ECR I-6079,
para 21. See further, e.g. Piris, Does the European Union have Constitution? Does it need
one?, 24 EL Rev. (1999), 557; Craig, Constitutions, constitutionalism and the European Union, 7 ELJ (2001), 125.

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something of its institutions and competences) as a rather poor imitation of a

fully-edged federal government, or (to those whose knowledge was rather
less probing) as a purported super-state directly threatening the continued
existence of their own national sovereignty. Unfortunately, such misperceptions were further fuelled by other proposals brewed up in the ush condence
of the Convention and adopted by the Member States at the 2004 IGC: trimmings such as the Unions ag, motto and anthem, whose symbolic resonance
attracted disproportionate attention; and terminologies such as the Minister
for Foreign Affairs, and the renaming of regulations and directives as laws
and framework laws (respectively), that wantonly encouraged comparisons
to national political systems, seldom with favourable results.
The Member States, during their period of reection, seem to have concluded that failure to ratify the CT was attributable, at least in part, to the overambition of the Conventions grand constitutional designs, and / or that salvaging the substantive reforms contained in the CT would be easier to achieve
if they shed the form and language of a constitution. Accordingly, the European Councils mandate for the 2007 IGC declared that [t]he constitutional
concept is abandoned:22 gone are the repeal-and-replace approach to the
existing Treaties, the title Constitution and the various trimmings and terminologies referred to above.23 Instead, the TL simply amends the existing Treaties (albeit extensively) along the same lines as the Treaties of Amsterdam and
Nice. However, the Union still replaces and succeeds to the European
Community,24 the Union as a whole will possess its own legal personality,25
and most of the technical reforms proposed under the CT are reincarnated
though sometimes with important alternations by way of insertion into the
revised Treaties.26
The Treaty on European Union, which retains its present title, contains certain core constitutional principles such as those setting out the Unions objectives, the limits of its competences, and respect for fundamental rights (Title
I), those identifying the democratic principles upon which the Union is founded (Title II), those dealing with the Unions institutions (Title III) and the pos-

22. Presidency Conclusions, Annex I. 11177/07 p. 15.

23. Though note Declaration No 52 annexed to the Final Act. Two further victims of abandoning the constitutional concept the decision to incorporate the Charter of Fundamental
Rights by reference rather than full text, and the deletion of any express clause afrming the
primacy of Union over national law in favour of a declaration recalling the supremacy of Community law according to the ECJs established case law are dealt with in greater detail in sections 7 and 11.3 infra (respectively).
24. Art. 1, third para TEU.
25. Art. 47 TEU.
26. The latter providing the basis for the great majority of this articles analysis.

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623

sibility of engaging in enhanced cooperation (Title IV). However, the bulk of

the text of the TEU in fact, Articles 21 to 46 is found in Title V: general
provisions on external action and specic provisions on the CFSP. Title VI
contains the nal provisions dealing with issues such as legal personality,
amendment of the Treaties and accession to / withdrawal from the Union.
The Treaty of Rome is renamed the Treaty on the Functioning of the European Union and, according to Article 1(1), organises the functioning of the
Union and determines the areas, delimitation of, and arrangements for exercising its competences. Part One contains certain other core constitutional
principles such as the various categories of Union competence, as well as the
provisions of general application intended to have pervasive effects throughout the Unions activities (such as ensuring sex equality, safeguarding the environment and protecting personal data). Part Two concerns non-discrimination and Union citizenship, while Part Three contains the substantive provisions on Union policies and internal actions. Part Four continues to deal with
the association of overseas countries and territories, and a new Part Five covers external action by the Union (other than the CFSP). Part Six contains more
detailed provisions on the functioning of the Unions institutions, the arrangements governing its nances and the detailed rules on enhanced cooperation.
The general and nal provisions make up Part Seven.
As usual, the TL introduces a series of new protocols, as well as amending
many of the existing protocols, which form an integral part of the Treaties;27
and the Final Act is accompanied by a series of declarations adopted either by
the entire IGC or by individual Member States.
At rst glance, it is difcult to identify any compelling reason why the
Union should continue to be founded on two separate treaties, and the logic of
apportioning provisions between the two texts is sometimes hard to fathom:
for example, the principles of attributed powers, subsidiarity and proportionality are located in the TEU, whereas the provisions on exclusive, shared and
complementary competences are found in the TFEU. However, the TLs approach represents the price to be paid for jettisoning the constitutional concept: if two treaties are what we currently have, and the TL is merely amending those treaties in a technical fashion, then two treaties is what should emerge
at the end; to repeal one of those treaties, and leave the other in places indistinguishable from the old CT, might be more difcult to sell to an already
sceptical public. Moreover, it is possible to identify a rough-and-ready division of labour between the two texts: besides the detailed CFSP provisions, the
TEU has more the character of a mission statement coupled with some basic
organizing principles on issues such as the institutional architecture; the TFEU
27. Art. 51 TEU.

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seems more concerned with the nitty-gritty work of setting out the legal bases
required to full that mission statement, and eshing out more of the details on
the institutional framework. Indeed, the TEU contains no legal bases for the
adoption of Union legislation; all Union legislative acts will be adopted pursuant to the TFEU.28
Although that rough-and-ready division might suggest a de facto order of
precedence between the two texts, Article 1, third paragraph TEU and Article
1(2) TFEU each state that the Union is founded on both Treaties, which shall
have the same legal value. In other words, the TEU and TFEU together with
their various protocols should be read as a seamless ensemble of primary law
for the Union. However, that does not render the existence of the two Treaties
merely a matter of historical nostalgia, or political expediency. It raises some
interesting legal issues, not least concerning the degree to which the CFSP
remains distinct from the remainder of the Union legal order, and the nature of
its relationship to other elds of Union action.
It would surely be inappropriate, after the TL, to continue conceptualizing
the Union in terms of distinct pillars each possessed of their own peculiar
legal sub-orders. After all, the Community which makes up the existing First
Pillar will be suppressed as an entity separate from the Union; the provisions
on police and judicial cooperation in criminal matters (PJC) which make up
the existing Third Pillar will be absorbed into Title V, Part Three TFEU on the
Area of Freedom, Security and Justice (AFSJ).29 In fact, the degree of crossfertilization between the TEU and the TFEU, on issues such as the Unions
objectives, competences and institutional framework, is such that pillar-talk
becomes largely meaningless or even positively unhelpful. Across the great
majority of legal bases on internal and external Union action, variations in the
strength and scope of decision-making powers, the applicable decision-making procedures or the available legal instruments certainly exist but they are
not such as to call into question the essential unity of the underlying legal order.
Exceptional treatment is reserved only for the CFSP, which is not only distinguished by its placement in the TEU rather than the TFEU, but is also more
strongly differentiated from the rest of the Unions policies: for example, by
the continued predominance of unanimity within the European Council and
the Council, the express exclusion of any competence to adopt legislative acts,
the special role of the High Representative for Foreign Affairs, the more mar-

28. However, the TEU does provide for the adoption of certain non-legislative acts, especially as regards the functioning of the Union institutions and in the eld of the CFSP. On legislation and non-legislation: section 5.
29. Section 9.

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ginal inuence of the Commission and especially the European Parliament,

and the virtual exclusion of the jurisdiction of the Court of Justice.30 Moreover,
although the peculiar legal instruments currently available under the Second
Pillar (such as joint actions and common positions) will be replaced by decisions, as currently employed by the Community and now classied as a generic legal instrument for the entire Union,31 it is arguable that any decisions
adopted specically pursuant to the CFSP will remain distinct, as regards their
potential effects within the national legal systems, from decisions adopted in
any other eld of Union activity. In particular, the deletion from the TL of any
express provision that Union acts per se have primacy over national law,32
coupled with the IGCs declaration recalling the principle of supremacy as
developed in the case law of the Court of Justice, with particular reference to
the Council Legal Services opinion on the supremacy of Community law,33 all
support the view that CFSP acts should not generally be capable of having
independent effects (such as direct effect and / or primacy) within the domestic legal orders.34 In any case, it is expressly provided that the exibility
clause currently found in Article 308 EC, and in the revised Treaties as Article 352 TFEU, cannot be used to attain CFSP objectives.35
Physical separation and institutional differentiation hardly warrant continuing to treat the CFSP effectively as a separate pillar; to recognize the existence of such an autonomous sub-system would undermine the clear intention
of the revised Treaties that the Union should constitute a unitary entity. But the
special characteristics of the CFSP mean that certain problems will continue to
arise, in particular, that of distinguishing between when the Union should act
using its ordinary external relations powers, and when it should instead exercise its special CFSP powers. The pillars may have gone, but similar problems
of cross-pillar coordination will persist, although they would now be better
termed problems of determining the correct legal basis. What principles do the
revised Treaties lay down for resolving this legal basis issue? In fact, no clear
answer emerges from the texts.
Currently, the choice between employing CFSP powers qua Union, or ordinary external action powers qua Community, is assisted by (existing) Article

30. See Art. 24(1) TEU. Also Art. 31 TEU. On the High Representative: section 4.5. On the
ECJs CFSP jurisdiction: section 8.2.
31. Section 5.1.
32. Cf. Art. I-6 CT. See section 11.3.
33. Declaration No 17 annexed to the Final Act.
34. See further, e.g. Arnull at al. op. cit. supra note 11, para 11013.
35. Art. 352(4) TFEU. See section 6.1. Note that the revised Treaties also envisage the adoption of specic data protection rules within the context of the CFSP: see Art. 39 TEU and Art.
16(2) TFEU.

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47 TEU, according to which nothing in the Treaty on European Union shall

affect the EC Treaty. That provision has already been interpreted by the Court
to mean that, if a given initiative is possible under the First Pillar, then the
Third Pillar provisions should not be used instead, as a means of encroaching
upon the Communitys own criminal law powers.36 It seems likely that the
same Community preference approach will also determine the choice between the First and Second Pillars as the proper basis for external action.37 The
problem is that, according to the new provisions contained in Article 40 TEU,
implementation of the CFSP should not affect other Union action under TFEU
powers, but conversely, implementation of other Union action under the TFEU
should not affect the exercise of Union competences as regards the CFSP.
Without an express presumption favouring one body of Treaty provisions over
another, it will be left to the ECJ to establish an alternative set of criteria (such
as a lex generalis / lex specialis rule) for allocating the exercise of the Unions
external relations powers between the CFSP provisions of the TEU and the
ordinary external action powers of the TFEU.38

4. The Union institutions

The main provisions on the Union institutions are contained in Title III TEU
and Part Six TFEU. To the existing list of Union institutions, Article 13(1)
TEU adds two newcomers: the European Central Bank;39 and the European
Council. The latters position deserves considerable attention, as do various
reforms to the Council, the European Parliament and the Commission.40 The
new High Representative also warrants brief attention, while the Court of Justice will be considered in greater detail later.41
36. See Case C-170/96, Commission v. Council, [1998] ECR I-2763; Case C-176/03, Commission v. Council, [2005] ECR I-7879; Case C-440/05, Commission v. Council, judgment of 23
Oct. 2007, nyr.
37. See A.G. Mengozzi Opinion of 19 Sept. 2007 in Case C-91/05, Commission v. Council,
pending.
38. An issue discussed extensively by Marise Cremona and Alan Dashwood at a seminar on
the Lisbon Treaty held at Durham University in December 2007. For an indication of how the
ECJ might approach this issue, consider Case C-403/05, European Parliament v. Commission,
judgment of 23 Oct. 2007, nyr.
39. Despite requests for amendments to the draft text so as to confer upon the ECB a special
institutional status: see the Letter from the President of the European Central Bank to the Portuguese Presidency, Clarication of the institutional status of the ECB (2 Aug. 2007).
40. See, for analysis of the CTs institutional provisions, e.g. Dashwood and Johnston, The
institutions of the enlarged EU under the regime of the Constitutional Treaty, 41 CML Rev.
(2004), 1481.
41. Section 8.

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4.1. European Council

According to Article 15 TEU, the European Council shall provide the Union
with the necessary impetus for its development and shall dene the general
political directions and priorities thereof. That provision also states that the
European Council shall not exercise legislative functions. However, numerous
provisions of the revised Treaties give the European Council power to take
legally binding decisions of a quasi-constitutional or high politics nature:
for example, on the Councils future congurations and system of rotating
presidencies;42 the future composition of the European Parliament as regards
the allocation of MEPs between Member States;43 the future rotation of Commissionerships between the Member States (including the power to alter the
number of Commissioners);44 proposing the candidate for Commission President and nal appointment of the Commission after its nominees have received the consent of the European Parliament;45 appointing the High Representative for Foreign Affairs;46 dening the strategic interests and objectives of
the Union in the eld of external relations,47 and its strategic guidelines for
action within the Area of Freedom, Security and Justice.48
As we shall see further below, the European Council also plays an important role in issues such as mediating after the use by a Member State of an
emergency brake within the Council,49 or in situations where lack of unanimity within the Council could lead to a group of Member States being exceptionally authorized to embark on an enhanced cooperation;50 and also as
regards accession to / withdrawal from the Union,51 and amendment of the
Treaties by the ordinary or various special revision procedures.52
The TL follows the approach of the CT in bringing to an end the current
system of rotating the Presidency of the European Council among the Member
States. That system was deemed to create problems of consistency and conti-

42. Art. 236 TFEU. Section 4.2.

43. Art. 14(2) TEU. Section 4.3.
44. Art. 17(5) TEU and Art. 244 TFEU. Section 4.4.
45. Art. 17(7) TEU. Section 4.4.
46. Art. 18(1) TEU. Section 4.5.
47. Art. 22(1) TEU.
48. Art. 68 TFEU. See also e.g. Art. 42(2) TEU on the decision to adopt a common defence
policy; Art. 86(4) TFEU on expanding the powers of a future European Public Prosecutors Ofce; Art. 7(2) TEU on determining that a Member State is guilty of a serious and persistent
breach of the Unions core values.
49. Section 5.2.4.
50. Section 9.1.
51. Sections 10.1 and 10.2 (respectively).
52. Section 10.3.

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CML Rev. 2008

nuity in dening the Unions political agenda; the tasks associated with the
Presidency had become too demanding to be discharged effectively by a person who acts at the same time as his / her Head of Government; certain concerns were voiced about the potential for conicts of interest between the
Presidents role as impartial chair of the European Council and his / her duty
to protect the national interests of the relevant Member State; moreover, the
benets of rotation in encouraging a sense of ownership by all Member
States over the European Council had become tenuous in a Union of 27 countries. The European Council therefore acquires a more stable Presidency. Article 15(5) TEU provides that the President is to be elected by the European
Council, acting by QMV, for a term of two and a half years (renewable once).
According to Article 15(6) TEU, he / she will be responsible for chairing European Council meetings, ensuring the preparation and continuity of the European Councils work, facilitating cohesion and consensus within the European
Council, presenting reports to the European Parliament after European Council meetings, and representing the EU externally at his / her level as regards the
CFSP.53
Article 15(6) TEU expressly states that the President of the European Council may not hold a national ofce. While there is no explicit bar to his / her
holding another ofce within the Union itself, one may discount the theoretical possibility for the same person to be President of the European Council and
of the Commission: such an accumulation of ofces would be inconsistent not
only with the implicit assumption throughout the text of the revised Treaties
that the two posts are to be occupied by different individuals,54 but more fundamentally with the spirit of the Unions inter-institutional balance, which entrusts such different responsibilities, and the representation of such different
interests, to the European Council and the Commission.
One assumes that the ofce of European Council President will be occupied
by an experienced politician who has previously attained high ofce in his /
her country of origin.55 In the hands of such a gure, the European Council
Presidency could become a formidable new fulcrum of power less in a formal sense, since the revised Treaties give the Presidency itself no real decision-making powers independent of the other members of the European Council, but rather in providing a strong and focused nucleus at the very centre of
Union policy-making with the opportunity to harness the European Councils
53. Though without prejudice to the powers of the new High Representative for Foreign Affairs (see section 4.5).
54. And note also Declaration No 6 annexed to the Final Act.
55. At the time of writing, there is lively speculation about the prospects of appointing
former UK Prime Minister Tony Blair: Frances Nicholas Sarkozy is reported to be in favour,
Germanys Angela Merkel to have serious reservations (see, e.g. The Guardian, 20 Feb. 2008).

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strategic inuence, and thereby channel the activities of the Unions other
main political institutions too. However, much will depend not only on the
ambitions and the abilities of the individual ofce-holder, but also on the precise latitude (and degree of administrative support) offered to the Presidency
itself by the European Council under its own internal institutional
arrangements;56 as well as the attitudes of the Heads of State or Government,
many of whom may not take well to the idea of replacing a system based on
the principle of primus inter pares with the conferral of signicant imperative
powers upon a gure lacking any direct electoral mandate and (according to
the revised TEU) largely unaccountable short of impediment or serious misconduct.57 Indeed, public criticism by a current Commissioner of the shady
backroom bargaining among Member States to identify the rst new-style
President of the European Council perhaps foreshadows the limits that such a
shallow reservoir of legitimacy may in itself impose upon his / her effective
political power.58 Appointing someone with established Union-wide or even
global recognition might well energize the workings of the European Council
but it also carries the risk either of creating a Frankensteins Monster, or of
trapping a very big sh within a rather small pond.59
According to Article 15(4) TEU, except where otherwise provided, the European Council shall reach decisions by consensus. True enough, some decisions are to be adopted by unanimity,60 certain others by QMV.61 Where relevant, Article 235(1) TFEU provides that the denition of a qualied majority
within the European Council is based on that applicable to the Council (though,
in that context, the European Council President and the Commission President
do not vote).62 For those purposes, under Article 3 of the Protocol on Transitional Provisions, the denition of QMV within the European Council will,
until 31 October 2014, be that derived from the Treaty of Nice and applicable
also in respect of Council acts; as from 1 November 2014, the new denition
of QMV contained in Article 16(4) TEU will be activated.63 However, unlike
the situation within the Council, there does not appear to be any option, be-

56. See Art. 235(3) TFEU on adoption of the European Councils Rules of Procedure. At the
time of writing, the Presidencys job description is being negotiated by the Member States.
57. Cf. Kokott and Ruth, op. cit. supra note 10, 13378.
58. As reported on www.euobserver.com (8 February 2008).
59. On the European Council Presidents institutional role, see further section 11.2.
60. I.e. so that abstentions will not prevent adoption of the relevant decision. E.g. Arts. 14(2),
17(5), 42 TEU; Art. 86(4) TFEU.
61. E.g. Arts. 15(5), 17(7), 18(1) TEU; Art. 236 TFEU.
62. Section 4.2.
63. As with the Council, higher thresholds apply where the relevant proposal does not emanate from the Commission or the High Representative: see Art. 238(2) TFEU.

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tween 1 November 2014 and 31 March 2017, for members of the European
Council to pick-and-choose between the old and new denitions of QMV.64
4.2. The Council
Article 16(6) TEU expressly refers to two Council congurations: General Affairs and Foreign Affairs. The European Council must establish a list of other
Council congurations.65 Article 16(9) TEU states that the Presidency of
Council congurations66 shall be held by the Member States on the basis of
equal rotation, in accordance with conditions established by the European
Council.67 The draft text of those conditions is to be found in Declaration No
9 annexed to the Final Act of the TL. The Presidency should be held by preestablished groups of three Member States for a period of 18 months. Groups
are to be made up on the basis of equal rotation, taking into account the diversity of Member States and their geographical balance. Unless they decide otherwise, each member of the group shall in turn chair for six months the relevant
Council congurations, with the other members assisting the Chair on the basis of a common programme. It is anticipated that this arrangement, which
should be adopted on the TLs date of entry into force, will facilitate greater
coherence and continuity in the Councils activities assuming, of course, that
the relevant Member States work together in a cooperative and constructive
manner.
According to Article 16(3) TEU, the Council shall act by QMV, except
where the Treaties provide otherwise. The denition of QMV was perhaps the
thorniest issue to be addressed by the Convention and the subsequent IGCs.
On the one hand, it was generally considered that the post-Nice denition of
QMV, consisting of more and higher thresholds before a qualied majority is
attained, constitutes an obstacle to efcient decision-making within the Council. On the other hand, the Member States were not prepared to swallow the
Conventions relatively straightforward proposal that a qualied majority
should consist of a simple majority of Member States representing at least
60% of the Union population.68 Negotiations were further complicated by the

64. Art. 3(2) of the Protocol on Transitional Provisions refers only to a member of the Council, not of the European Council.
65. Acting by QMV under Art. 236(a) TFEU; pending which, see Art. 4 Protocol on Transitional Provisions.
66. Other than Foreign Affairs, which is presided over by the High Representative for Foreign Affairs (section 4.5).
67. Acting by QMV under Art. 236(b) TFEU.
68. See Art. 24(1) of the Conventions draft Constitutional Treaty; under Art. 24(2), higher
thresholds were to apply in respect of proposals not emanating from the Commission or the

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determination of the incumbent Polish administration to preserve the highly

favourable if disproportionate voting inuence its country (together with
Spain) had previously secured under the Treaty of Nice. The resultant provisions, which can be divided into three periods, and apply regardless of whether the Council is adopting legislative or non-legislative acts,69 are hardly a
triumph of simplication. Nevertheless, they succeed in consigning to the history books the idea of weighted votes, which gave disproportionate voting
power to the smaller Member States and were increasingly unsustainable in
the enlarged and enlarging Union, while retaining safeguards against the possibility that the larger Member States might, by the sheer size of their populations, nd it too easy either to steamroll or scupper decisions within the Council.
The rst period runs, according to Article 16(5) TEU and Article 3(3) of the
Protocol on Transitional Provisions, until 31 October 2014: the denition of
QMV as currently contained in Article 205 EC will continue to apply, i.e. the
triple threshold introduced by the Treaty of Nice requiring a weighted majority of votes from a simple majority of Member States representing at least
62 percent of the actual Union population. The second period runs from 1
November 2014 until 31 March 2017. According to Article 16(4) TEU, a new
denition of QMV will come into play, i.e. consisting of at least 55 percent of
Member States, comprising at least 15 countries, representing at least 65 percent of the actual Union population; furthermore, a blocking minority must
include at least 4 Member States, failing which the qualied majority shall be
deemed attained (a provision intended to reassure the smaller Member States
that a few very large countries cannot form an automatic blocking minority
solely on the basis of their populations).70 However, during this period, pursuant to Article 16(5) TEU and Article 3(2) of the Protocol on Transitional Provisions, any Member State may instead request that the vote be taken in accordance with the old triple threshold denition of a qualied majority as inherited from Nice. Finally, as from 1 April 2017, the new denition of QMV
contained in Article 16(4) TEU alone will apply.71
To complicate matters further, Poland had lobbied with excruciating persistence that the text of the revised Treaties should contain a formal mechanism
often referred to as the Ioannina Compromise for protecting the interests
of dissenting countries, where the qualied majority made up by the other
proposed Minister for Foreign Affairs.
69. On the distinction between legislative and non-legislative acts: section 5.1.
70. Higher thresholds apply where the Council does not act on a proposal from the Commission or the High Representative: see Art. 238(2) TFEU.
71. Again, with higher thresholds applicable where the proposal does not emanate from the
Commission or the High Representative: see Art. 238(2) TFEU.

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Member States was relatively slim. In the end, the 2007 IGC agreed to the following package of reforms. First, Declaration No 7 annexed to the Final Act
of the TL contains the text of a draft decision containing the Ioannina Compromise itself, to be adopted by the Council when the TL is signed,72 with a view
to entering into force on the same day as the TL. According to that decision,
between 1 November 2014 until 31 March 2017, if countries representing at
least three-quarters of the Member States or of the actual Union population
necessary to constitute a blocking minority resulting from the application of
Article 16(4) TEU73 indicate their opposition to the adoption of an act by QMV,
the Council must try to reach a satisfactory solution addressing their concerns,
within a reasonable period and without prejudicing any mandatory deadlines.
As from 1 April 2017, the same obligation will arise at the initiative of countries representing at least 55 percent of the Member States or of the actual
Union population necessary to constitute a blocking minority under Article
16(4) TEU.74 Secondly, a new Protocol on the Council decision relating to the
implementation of the QMV rules provides that, before examining any proposal intended to amend or abrogate the Ioannina Decision or any of its provisions, or to modify indirectly its scope or meaning through the modication of
another Union act, the European Council must reach a consensus on that proposal. Thus, while Poland failed to secure for the Ioannina Compromise a
formal basis in primary Union law, it nevertheless succeeded in conferring
upon the Ioannina Decision a signicant degree of constitutional protection
against future alteration.
It is worth noting that, under Article 16(8) TEU, the Council shall meet in
public when it deliberates and votes on a draft legislative act.75 That is an important step towards countering widespread criticism of the Councils perceived secrecy as a legislative chamber, and suspicions about cynical political
horse-trading between Member States. In fact, thanks to reforms to the Councils Rules of Procedure enacted during the period of reection, the Councils deliberations are already open to the public when it acts under the codecision procedure, as are its rst deliberations on important new legislative
proposals to be adopted other than by co-decision; certain other debates may
also be held in public, for example, on important (non-legislative) initiatives
affecting the interests of the Union and its citizens.76

72. O.J. 2007, C 306/250.

73. Or, where applicable, Art. 238(2) TFEU.
74. Or, where applicable, Art. 238(2) TFEU.
75. See also Art. 15(2) TFEU.
76. See Art. 8 of the Councils Rules of Procedure, O.J. 2006, L 285/47. See further, e.g.
Editorial, In the meantime op. cit. supra note 15.

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European Parliament

In accordance with Article 2 of the Protocol on Transitional Provisions, the

composition of the European Parliament during its 20042009 term shall not
be affected by the entry into force of the TL. However, in good time before the
2009 elections, Article 14(2) TEU and Article 2 of the Protocol on Transitional Provisions oblige the European Council, acting unanimously, on the
Parliaments initiative and with its consent, to adopt a decision establishing its
composition. For these purposes, the number of MEPs shall not exceed 750,
plus the President, divided between Member States on a degressively proportional basis, with a minimum of six and maximum of 96 MEPs per Member
State. This new system of allocating MEPs to Member States through secondary instruments is intended to offer greater exibility, particularly in the light
of future enlargements, as compared to the existing approach (whereby changes to the allocation of MEPs to Member States require formal amendment of
the Treaty itself).77
The CT had proposed capping the number of MEPs in the future European
Parliament at 750. On that basis, the European Council meeting in June 2007
requested that the European Parliament submit a draft decision on its future
composition, which the Parliament did in October 2007, shortly before the nal summit meeting to reach political agreement on the new TL.78 However,
the Parliaments proposal received a very frosty reception in Italy: its number
of MEPs was projected to fall from 78 (the same as France and the United
Kingdom) to 72 (compared to 74 for France and 73 for the British), reecting
the relative decline in the Italian population. To avert the real risk of an Italian
refusal to conclude negotiations on the TL, the IGC therefore agreed to increase the number of MEPs in the future European Parliament to 751; Declaration No 4 annexed to the Final Act states that the additional seat will go to Italy, and on that basis, Declaration No 5 signals the European Councils political agreement to the revised draft decision.79 That compromise may well have
restored Italian pride, but it hardly sits easily with the principle of degressively proportional representation proclaimed by the revised Treaties. Moreover, this episode serves as a portent of the difcult political problems likely
to arise, should projections of signicant population changes in various Member States, even within the next few decades, prove to be accurate.80 But it is
77. Cf. section 10.3 on the ordinary revision procedure.
78. European Parliament resolution of 11 Oct. 2007 on the composition of the European
Parliament (2007/2169(INI)).
79. See also Presidency Conclusions of 14 Dec. 2007, para 5.
80. See, e.g. Eurostat, Long-Term Population Projections at National Level (Issue Number
3/2006).

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perhaps in that very context that the simplied procedure for determining the
composition of the European Parliament under Article 14(2) TEU will prove
its true worth, i.e. by isolating the question of how to (re)allocate MEPs between Member States in a demographically evolving Union, from initiatives
to reform other (unrelated) provisions of the Treaties, so that the latter amendment process is not held blackmail to a given countrys quest to protect its
existing political weight within the European Parliament.
Another interesting question concerns the subtle change in wording, from
the current Treaties to the revised Treaties, concerning exactly who the European Parliament is meant to represent. In Spain v. United Kingdom, the ECJ
was asked to clarify whether only Union citizens were entitled to vote and
stand in elections to the European Parliament, or whether those rights could
also be extended to certain third country nationals.81 The Court noted that the
relevant provisions of the current Treaties neither expressly dene who may
vote / stand in the European Parliament elections, nor clearly exclude the possibility that a third country national might be entitled to do so. In particular, the
reference in Articles 189 and 190 EC to the European Parliament representing
the peoples of the Member States had different meanings in different countries and languages and could not be taken as determinative of the issue. The
Court concluded that, in the current state of Community law, the denition of
the persons entitled to vote / stand in the European Parliament elections falls
within the competence of each Member State.82
However, the relevant provisions of the revised Treaties seem more precise
about the European Parliaments democratic franchise. For example, Article
14(2) TEU states that the European Parliament shall be composed of representatives of the Unions citizens; Article 10 TEU concerning the principle of
representative democracy also refers repeatedly to citizens.83 It is therefore
unclear whether the approach adopted by some Member States, of permitting
certain third country nationals to vote in elections to the European Parliament,
would remain compatible with Union law after the entry into force of the TL.
One might feel somewhat uneasy at the prospect of disenfranchising whole
classes of persons whose rights to vote / stand in the European Parliament
elections have already been sanctioned under Community law. For its part, the
Court may yet decide that, while the new Treaty text undeniably leaves less
81. Case C-145/04, Spain v. United Kingdom, [2006] ECR I-7917. See further, e.g. Besselink, annotation of Spain v. United Kingdom, 45 CML Rev. (2008), 787813.
82. Albeit that that competence must be exercised in compliance with Community law.
For an indication of what this might require, see Case C-300/04, Eman and Sevinger, [2006]
ECR I-8055.
83. That is true not only of the English version, but also, e.g. the French, Italian, Spanish and
German texts.

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635

room for manoeuvre, the changes agreed under the TL nevertheless fail to
outweigh the other sorts of factor taken into consideration in reaching the conclusion in Spain v. United Kingdom: for example, that an express principle of
parliamentary representation for Union citizens does not necessarily exclude
the recognition of limited electoral rights also for certain third country nationals; or that, given the territorial basis upon which MEPs are allocated across
Member States, the decision by one country to confer electoral rights upon
specic categories of third country nationals has no effect upon the choice or
number of MEPs elected in any other Member State.84
4.4.

European Commission

The composition of the Commission is dealt with by Articles 17(4)-(5) TEU.85

The Commission appointed between the date of entry into force of the TL and
31 October 2014 will consist of one national per Member State.86 However,
subsequent Commissions shall consist of a number of members equal to twothirds of the number of Member States,87 unless the European Council, acting
unanimously, decides to alter this number. Those members are to be selected
on the basis of equal rotation between the Member States, and must reect the
demographic and geographical range of all Member States. The detailed rotation system is to be established by the European Council, acting unanimously,
and subject to the rule contained in Article 244 TFEU, whereby the difference
between the total number of terms of ofce held by nationals of any given pair
of Member States may never be more than one.88
The procedure for appointing the Commission is contained in Article 17(7)
TEU: the Commission President is to be proposed by the European Council
(acting by QMV) and elected by the European Parliament (by a majority of its
members); the Commissioners are to be proposed by the Council, by common
accord with the Commission President-elect; the entire Commission89 requires

84. Note Declaration No 64 annexed to the Final Act, in which the UK expresses its understanding that the revised Treaties are not intended to change the basis for the franchise for EP
elections; though the rather cryptic Declaration No 57, made by Italy, might seem to express a
contrary understanding.
85. Note that the impact of the entry into force of the LT upon the existing Commission (in
particular, the appointment of the rst High Representative) is dealt with under Art. 5 of the
Protocol on Transitional Provisions.
86. Including the President and the High Representative.
87. Including the President and the High Representative.
88. Note also Declaration No 10 annexed to the Final Act, intended to assuage Member State
nerves about the balanced functioning of a Commission in which not all nationalities are represented.
89. Including the President and the High Representative.

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the consent of the European Parliament, before nally being appointed by the
European Council (again acting by QMV). When proposing its candidate for
Commission President, the European Council is expressly instructed to take
into account the elections to the European Parliament a reform which is
meant both to increase the political inuence of the MEPs and hence the incentive for citizens to vote at the European parliamentary elections, and also
to bolster the Commissions own legitimacy by linking its complexion more
closely to the popular will as represented in the European Parliament.90
4.5.

High Representative

One of the principal objectives of the reform process launched at Laeken was
to furnish the Union with an institutional framework capable of executing its
external policies more effectively and coherently. The Convention and CT
proposed creating the post of Minister for Foreign Affairs an amalgamation of the existing functions of the High Representative for the CFSP and the
Commissioner for External Relations. However, following the ratication crisis and the period of reection, the title Minister was considered unhelpful
in conveying the true nature of this institutional reform to the wider public,
and the post is now called High Representative of the Union for Foreign Affairs and Security Policy.
According to Article 18 TEU, the High Representative shall conduct the
Unions CFSP.91 In particular, he / she will enjoy a power of initiative as regards CFSP proposals; and will be responsible for implementing the CFSP
under mandate from the Council.92 The High Representative will, moreover,
preside over the Foreign Affairs Council, whether it is considering CFSP or
other external relations matters such as the common commercial policy.93 But
the chief constitutional novelty of the High Representative is that he / she will
simultaneously be associated with the Council and a member of the Commission (in fact, one of its Vice-Presidents). In the latter capacity, according to
Article 18(4) TEU, the High Representative shall ensure the consistency of the
Unions external action, with responsibility within the Commission for external relations and coordinating other aspects of the Unions external action.
Under Article 15(2) TEU, the High Representative shall also take part in the

90. But see section 11.2 for reservations about this idea.
91. Cf. Art. 15(6) TEU on external representation of the Union by the President of the European Council, without prejudice to powers of the High Representative (section 4.1).
92. See the detailed provisions on external action in general and the CFSP in particular contained in Title V TEU.
93. Art. 18(3) TEU.

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637

work of the European Council, though without formally becoming a member

thereof.
When the Conventions proposals were rst published, doubts were expressed about whether the same person could really owe their institutional
loyalty to both the Council and the Commission. However, the nal text of the
TL makes clear that the High Representative should be bound by the Commissions procedures only when discharging his / her responsibilities under Article
18(4) TEU, and only to the extent that this is consistent with his / her position
within the Council. In other words, the High Representative may well be double-hatted but his / her Council hat will sit on top of the Commission one at
the nal stage of decision-making by the Foreign Affairs Council.94
According to Article 18(1) TEU, the High Representative is to be appointed
by the European Council (acting by QMV) with the agreement of the Commission President.95 However, as one of the Vice-Presidents of the Commission,
he / she must also be approved, collectively with the remainder of the College,
by the European Parliament.96 Moreover, in the event of a motion of censure
being passed by the European Parliament against the Commission, the High
Representative must resign from his / her duties within the Commission (but
will remain in post for those responsibilities associated with the Council).97

5. Decision-making instruments and procedures

5.1.

Legal instruments

As regards the Unions legal instruments, the TL implements two main reforms aimed at greater simplication, democratic legitimacy and decisionmaking efciency.98 The rst is abolition of the various legal instruments used

94. As pointed out by Arnull et al., op. cit. supra note 11, para 11010. On the High Representatives responsibilities, see further Editorial comments: Mind the Gap!, 45 CML Rev.
317322.
95. The European Council may end his / her term of ofce by the same procedure. This applies also in situations where the Commission President requests the High Representative to
resign: see Art. 17(6) TEU.
96. Section 4.4. As regards the role of the European Parliament in the appointment of the
very rst High Representative, i.e. into the Commission already holding ofce on the date of
entry into force of the TL, see Declaration No 12 annexed to the Final Act.
97. Art. 17(8) TEU and Art. 234 TFEU.
98. On the current position, see further, e.g. Bast, Legal Instruments in von Bogdandy and
Bast (Eds.), Principles of European Constitutional Law (Hart Publishing, 2006); Schtze, The
morphology of legislative power in the European Community: Legal instruments and the federal division of powers, 25 YEL (2006), 91.

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in the existing Second and Third Pillars (such as joint actions, common positions, framework decisions and conventions) in favour of a unied set of legal
acts for the Union as a whole. The second is the introduction, within that unied set of legal instruments, of a distinction between legislative acts and nonlegislative acts. A similar distinction was proposed in the CT, which divided
the Unions instruments into two discreet categories: legislative acts (taking
the form of laws and framework laws); and non-legislative acts (in the
form of regulations and decisions).99 However, the 2007 IGC was instructed by the European Council to jettison the language of laws and
framework laws as part of the wider process of abandoning the constitutional concept, while still retaining the substantive idea of introducing a
clearer hierarchy of norms into the Union legal order. The TL fulls this mandate by means of a technically suave solution. On the one hand, the revised
Treaties specify a unied set of legal acts based on those currently employed
in the First Pillar: regulations, directives, decisions,100 recommendations and
opinions.101 On the other hand, those legal acts can then be divided into their
discreet legislative and non-legislative categories, less according to some
qualitative difference in the nature of the instruments themselves, and rather
according to the decision-making procedure by which the Treaties specify
they should be adopted. Thus, legislative acts are regulations, directives or
decisions adopted through the ordinary or a special legislative procedure
as identied in the relevant legal basis.102 Non-legislative acts comprise all
other legal instruments, i.e. adopted under or pursuant to the Treaties through
a non-legislative procedure.
This distinction between legislative and non-legislative acts has important
consequences in several elds:103 for example, the national parliaments right
to object to Union measures on the grounds of an alleged incompatibility with
the principle of subsidiarity applies only as regards draft legislative acts;104
99. See further, e.g. Dougan, op. cit. supra note 10, 781783; von Bogdandy, Arndt and
Bast, Legal Instruments in the European Union and their reform: A systematic approach on an
empirical basis, 23 YEL (2004), 91; Lenaerts and Desomer, Towards a hierarchy of legal acts
in the European Union? Simplication of legal instruments and procedures, 11 ELJ (2005),
744.
100. The denition of which is amended so as expressly to acknowledge the possible adoption of decisions without a specic addressee.
101. See Art. 288 TFEU.
102. See Art. 289(1)-(3) TFEU.
103. See further, e.g. Liisberg, The EU Constitutional Treaty and Its Distinction between
Legislative and Non-Legislative Acts: Oranges Into Apples?, Jean Monnet Working Paper Series 01/06 (NYU School of Law).
104. Section 6.3. The possibility for national parliaments, and the Committee of the Regions,
to seek judicial review on subsidiarity grounds is also limited to Union legislative acts: sections
6.3 and 8.3.

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similarly, the Councils obligation to deliberate and vote in public applies only
to draft legislative acts;105 the distinction between legislative and non-legislative measures may also prove crucial to the new rules on the standing of natural and legal persons to bring an action for annulment directly before the Union
courts.106
5.2. Adoption of legislative acts
5.2.1. Initiation of legislative procedures
According to Article 17(2) TEU, Union legislative acts may be adopted only
on the basis of a Commission proposal, except where the Treaties provide
otherwise.107 The main exception to the general principle that the Commission
enjoys a monopoly over the initiation of Union legislation is contained in Article 76 TFEU: in the eld of police and judicial cooperation in criminal matters, acts may also be adopted on the initiative of a quarter of the Member
States.108
In addition to the existing power of the Council and the European Parliament to request the Commission to consider submitting a proposal on any
given issue,109 Article 11(4) TEU follows the CT by introducing a further innovation: at least one million citizens from a signicant number of Member
States may invite the Commission to submit appropriate proposals for the purposes of implementing the Treaties. The detailed conditions for exercising this
citizens initiative (including the minimum number of Member States whose
citizens must be involved) are to be laid down by regulations adopted by the
European Parliament and the Council under Article 24 TFEU.
5.2.2. Ordinary legislative procedure
Article 10 TEU contains a concise statement of the Unions dual basis of democratic legitimacy: citizens are directly represented at the Union level in the
European Parliament; Member States are represented in the European Council
and the Council, those representatives being themselves democratically accountable either to their national parliaments or their citizens.
That dual democratic basis is best reected in the ordinary legislative procedure co-decision since it is based on an equal say between the European

105.
106.
107.
108.
109.

Art. 16(8) TEU and Art. 15(2) TFEU. See section 4.2.
Section 8.3.
See also Art. 289 TFEU.
But see the additional exceptions referred to in Art. 289(4) TFEU.
See Arts. 241 and 225 TFEU (respectively).

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Parliament and the Council.110 The TL is therefore to be applauded for extending the ordinary legislative procedure across many more legal bases: for example, agricultural policy (currently subject to mere consultation of the Parliament by the Council);111 and the common commercial policy (as regards which
the Parliament is currently denied any formal right of participation).112 Perhaps
most signicantly, the ordinary legislative procedure will apply across most of
the Area of Freedom, Security and Justice.113 Furthermore, variants of the codecision procedure which currently instruct the Council to act by unanimity
will see QMV become fully applicable: for example, measures to facilitate the
taking up and pursuit of self-employed activities;114 and incentive measures in
the eld of culture.115 This extension of co-decision brings with it not only
improvements in democratic legitimacy, but also greater consistency in decision-making procedures, thereby reducing the incentive for the Union institutions to engage in wasteful legal basis disputes.
5.2.3. Special legislative procedures and passerelle clauses
However, the TL still does not bestow upon the Union a uniform legislative
process, nor eradicate completely the potential for inter-institutional wrangling over the correct legal basis. Despite the impressive expansion in the
scope of the ordinary legislative procedure, certain legislative acts are still to
be adopted under so-called special legislative procedures.
Special legislative procedures generally involve the Council acting by
unanimity, sometimes after consulting,116 sometimes with the consent of,117 the

110. The full procedure is described in Art. 294 TFEU. For these purposes, the Council acts
by QMV, save where Arts. 293 and 294 TFEU specically provide otherwise.
111. Art. 43 TFEU. Cf. Art. 37 EC.
112. Art. 207 TFEU. Cf. Art. 133 EC.
113. See Title V, Part Three TFEU and section 9.1.
114. Art. 53 TFEU.
115. Art. 167 TFEU.
116. E.g. Art. 21(3) TFEU on social measures for migrant Union citizens; Art. 22 TFEU on
electoral rights of Union citizens; Art. 64(3) TFEU on regressive measures on the free movement of capital to / from third countries; Art. 77(3) TFEU on border / residency documents for
migrant Union citizens; Art. 81(3) TFEU on cross-border family law; Art. 87(3) TFEU on operational cooperation between national law enforcement agencies; Art. 89 TFEU on cross-border operation of national law enforcement agencies; Art. 113 TFEU on the harmonization of
indirect taxation; Art. 115 TFEU on internal market harmonization; Art. 118 TFEU on language
arrangements for European IPRs; Art. 311, third para TFEU on the initial decision on Union own
resources.
117. E.g. Art. 19(1) TFEU on general anti-discrimination measures; Art. 86(1) TFEU on
establishment of a European Public Prosecutors Ofce; Art. 312(2) TFEU on the Unions multiannual nancial framework; the exibility clause contained in Art. 352 TFEU.

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European Parliament;118 though a few such special legislative procedures permit the Council to act by QMV.119 Nevertheless, the revised Treaties contain
various passerelle clauses (simplied revision procedures) which may be
used to alter some of those deviant legislative processes without recourse to
the full-blown drama of a Treaty amendment.120
First, there are passerelle clauses which provide for the extension of the
ordinary legislative procedure. In particular, Article 48(7) TEU states that, as
regards legal bases contained in the TFEU which provide for legislative acts to
be adopted by the Council in accordance with a special legislative procedure,
the European Council (acting unanimously and with the consent of the European Parliament) may decide to provide instead for the future application of
the ordinary legislative procedure. Any such proposal must be notied to the
national parliaments, each of which has an effective right to veto the proposal
within a six month period.121 Specic provisions of the TFEU are excluded
from the scope of application of this passerelle clause.122 In addition, Article
81 TFEU contains a more specic passerelle clause whereby the Council may
identify which aspects of family law having cross-border implications shall in
the future be adopted by the ordinary legislative procedure (rather than by a
special legislative procedure based on unanimity in the Council and consultation with the European Parliament); any such proposal to extend the ordinary
legislative process must also shall be notied to the national parliaments, each
of which has a right to veto the proposal within a six month period.123 The
Council also enjoys specic passerelle powers based in part on the existing
EC Treaty to convert the applicable legislative procedure from special to

118. Note that the cooperation procedure, currently contained in Art. 252 EC, will be entirely abolished: in one area replaced by the ordinary legislative procedure (see Art. 99(5) EC /
Art. 121(6) TFEU); in the rest by a non-legislative procedure involving mere consultation of the
EP by the Council (Arts. 102(2) and 103(2) EC / Art. 125(2) TFEU; Art. 106(2) EC / Art. 128(2)
TFEU).
119. E.g. Art. 23 TFEU on diplomatic protection of Union citizens (after consulting the EP);
Art. 311, fourth para TFEU on implementing the Unions own resources (with the EPs consent).
120. See section 10.3 on the ordinary revision procedure.
121. Cf. Art. 6 of the Protocol on the role of national parliaments in the European Union.
122. See Art. 353 TFEU: the relevant provisions are Art. 311, third and fourth paras. on
Union own resources; Art. 312(2), rst para on the multiannual nancial framework; and the
Art. 352 exibility clause.
123. Note also the enhanced cooperation passerelle clause in Art. 333 TFEU: if the legal
basis to which an enhanced cooperation relates provides for the Council to legislate according
to a special legislative procedure, then the Council (acting unanimously and in its restricted
enhanced cooperation formation, after consulting the European Parliament) may decide instead
to apply the ordinary legislative procedure. The national parliaments have no role here: see
Dougan, op. cit. supra note 4.

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ordinary in respect of various aspects of the Unions social and environmental policies, though in those situations, the national parliaments hold no right
of veto.124
Secondly, there are passerelle clauses which provide for the extension of
QMV within the Council. In particular, Article 48(7) TEU provides that, as
regards legal bases contained in the TFEU under which the Council acts by
unanimity within the context of a special legislative procedure, the European
Council (acting unanimously and with the consent of the European Parliament) may authorize the future use of QMV.125 By these means, the Member
States may decide that the legislative procedure should become more efcient
within the Council while remaining special as regards the participation of
the European Parliament. Again, any such proposal must be notied to the
national parliaments, each of which has an effective right to veto the proposal
within a six month period;126 and again, specic provisions of the TFEU are
excluded from the scope of application of this passerelle clause.127 Among the
latter is Article 312(2) TFEU on the adoption of the Unions multiannual nancial framework by the Council, acting unanimously according to a special
legislative procedure, with the consent of the European Parliament. However,
that provision contains a specic passerelle clause of its own: the European
Council may authorize the Council to act by QMV; that decision may be taken
unilaterally, without the national parliaments having any right of veto.128
It is worth noting that other special legislative procedures under the revised
Treaties involve different combinations of actors and decision-making rules.
For example, legislative acts concerning the status of MEPs and the exercise
of the European Parliaments supervisory prerogatives are to be adopted by
the Parliament with limited participation from the Council and the Commission.129 Such legal bases are not amenable to conversion into the ordinary legislative procedure by means of Article 48(7) TEU. Other legislative acts are to
be adopted by the Council according to a special legislative procedure, but

124. See Art. 153(2) TFEU (social policy) and Art. 192(2) (environment). Cf. Arts. 137(2)
and 175(2) EC (respectively).
125. This passerelle clause may also be used in the context of certain legal bases for the
adoption of non-legislative acts: section 5.3.1.
126. Cf. Art. 6 of the Protocol on the role of national parliaments in the European Union.
127. See Art. 353 TFEU: the relevant provisions are Art. 311, third and fourth paras. on
Union own resources; Art. 312(2), rst para on the multiannual nancial framework; and the
Art. 352 exibility clause.
128. Note also the enhanced cooperation passerelle clause in Art. 333 TFEU: if unanimity
applies under the legal basis to which an enhanced cooperation relates, then the Council (acting
unanimously and in its restricted enhanced cooperation formation) may move instead to QMV.
Again, the national parliaments have no role here: see Dougan, op. cit. supra note 4.
129. See Arts. 223(2), 226 and 228(4) TFEU.

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may not enter into force until approved by the Member States in accordance
with their own constitutional requirements.130 Even where such legal bases can
be converted into the ordinary legislative procedure, or to the use of QMV,
pursuant to Article 48(7) TEU,131 the prescribed role of the Member States
themselves will remain inviolate.
5.2.4. Emergency brakes
Under a few legal bases, the CT proposed introducing a new emergency
brake procedure, based on the ordinary legislative procedure but deviating
from the general rules applicable to QMV in Council, in particular, by offering
each Member State an effective right of veto, albeit one which is intended to
be used only in special circumstances. Those emergency brakes, which were
then modied at the 2007 IGC, can now be divided into two variants.
The rst variant applies to the coordination of national social security systems. Whereas existing Article 42 EC uses co-decision, but with the Council
acting unanimously throughout, the revised Article 48 TFEU employs the ordinary legislative procedure, with Council acting by QMV as normal. However, where a Member State declares that draft legislation would affect fundamental aspects, or the nancial balance, of its social security system, it may
refer the matter to the European Council, suspending the ordinary legislative
procedure. Within four months, the European Council may (by consensus)
refer the draft back to the Council, permitting the ordinary legislative procedure to resume; or instead kill off the draft, by either taking no action or requesting the Commission to submit a new proposal.132
The second emergency brake variant applies to various legal bases for
Union action to promote judicial cooperation in criminal matters and the denition of criminal offences and sanctions.133 Here, where a Member State considers that draft legislation would affect fundamental aspects of its criminal
justice system, it may refer the matter to the European Council, again suspending the ordinary legislative procedure. This time, however, if the European
Council fails to reach a consensus in favour of resuming the ordinary legislative procedure, and at least nine Member States wish to establish an enhanced
cooperation on the basis of the draft act, authorization to proceed with that
enhanced cooperation shall automatically be deemed to have been granted
130. E.g. Art. 25 TFEU on additional rights for Union citizens; Art. 223(1) TFEU on a uniform electoral procedure for the EP; Art. 262 TFEU on ECJ jurisdiction over European IPRs;
Art. 311, third para TFEU on the initial decision on Union own resources.
131. I.e. other than in the case of Art. 311, third para TFEU: see Art. 353 TFEU.
132. Note Declaration No 23 annexed to the Final Act.
133. See the detailed provisions of Arts. 82(3) and 83(3) TFEU. On the AFSJ, see section
9.

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(without having to comply with the usual procedural requirements applicable

to the initiation of an enhanced cooperation, such as obtaining Commission
support, Council approval and European Parliament consent).134
Since all those legal bases are explicitly described as using the ordinary
legislative process, and decision-making within the Council is at no point formally subject to a requirement of unanimity, one assumes that the specicities
of the emergency brake mechanism the de facto veto and (where applicable) the extraordinary authorization to engage in enhanced cooperation could
not be suppressed pursuant to the passarelle clause contained in Article 48(7)
TEU.
5.3. Adoption of non-legislative acts
Non-legislative acts in particular, regulations, directives and decisions adopted other than by an ordinary or special legislative procedure may be divided into three main categories: those adopted directly under the Treaties,
where provided for by a specic legal basis; delegated acts in situations where
the Commission has been authorized to supplement or amend non-essential
elements of a legislative act; and implementing acts of the Commission or the
Council which are required for the uniform application of Union law.135
5.3.1. Non-legislative acts adopted directly under Treaties
Myriad legal bases across the Treaties directly authorize the adoption of nonlegislative acts: for example, the Commission adopts measures in the eld of
competition and State aids;136 the European Central Bank does so in the eld
of monetary policy.137 The Council also adopts various non-legislative measures directly under the Treaties: sometimes by unanimity (for example, rules
governing the languages of the Union institutions,138 and authorizing enhanced
cooperation within the CFSP);139 sometimes by QMV (as with administrative
cooperation between Member States within the Area of Freedom, Security and
Justice,140 and authorizing enhanced cooperation in other elds of non-exclusive Union competence).141 So too the European Council: for example, in es-

134. See Art. 20 TEU and Art. 329 TFEU.

135. Note also, on the adoption of recommendations, Art. 292 TFEU. Also, e.g. Arts. 60 and
97 TFEU.
136. Arts. 105 and 108 TFEU.
137. Art. 132 TFEU.
138. Art. 342 TFEU.
139. Art. 329(2) TFEU.
140. Art. 74 TFEU.
141. Art. 329(1) TFEU.

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tablishing the list of Council congurations,142 or extending the powers of a

future European Public Prosecutors Ofce.143 One of the most important categories of non-legislative acts adopted directly under the Treaties is measures
of the European Council and the Council in the eld of the CFSP (where the
use of legislative instruments is precluded, and unanimity remains the general
rule).144
As regards legal bases contained in the TFEU or Title V TEU which provide
for the Council to adopt non-legislative acts by unanimity, the passerelle clause
contained in Article 48(7) TEU empowers the European Council (acting unanimously, with the consent of the European Parliament, and subject to a veto by
each national parliament) to authorize the Council to act thenceforth by
QMV.145 As before, specic provisions of the TFEU are excluded from the
scope of application of this simplied revision clause;146 so too are the remaining provisions of the TEU, and any decisions with military implications or
those in the area of defence. But in addition, Chapter 2, Title V TEU on the
CFSP seems to contain its own passerelle clause: under Article 31(3) TEU, the
European Council may unanimously decide to extend the use of QMV by the
Council within this eld (though again excluding decisions with military or
defence implications).147
The relationship between Article 48(7) TEU and Article 31(3) TEU gives
rise to certain problems: the latter does not provide for the involvement of the
European or national parliaments, making the procedural implementation of
the two passerelle clauses signicantly different; yet it is difcult to identify a
coherent way of dividing their respective scopes of application without rendering one or other clause redundant. For example, one might think that Article
31(3) TEU is intended to act as a lex specialis within Chapter 2 as regards
decision-making under the CFSP but since the remainder of Title V TEU
nowhere empowers the Council to adopt decisions by unanimity, that would
make the relevant provisions of Article 48(7) TEU superuous.148 It would

142. Art. 236 TFEU.

143. Art. 86(4) TFEU.
144. See Chapter 2, Title V TEU, esp. Art. 31 TEU. Further: section 3.
145. Note Art. 6 of the Protocol on the role of national parliaments in the European Union.
146. See Art. 353 TFEU: the relevant exclusions are non-legislative acts adopted under the
Art. 352 TFEU exibility clause; and decisions to suspend Member State rights under Art. 354
TFEU.
147. Art. 31(4) TEU.
148. Assuming that the specic provisions concerning the common security and defence
policy are intended to be an integral part of Chapter 2, Title V TEU. That seems correct, given
that those provisions state explicitly when the Council shall act by QMV; where they remain
silent, it must be on the understanding that the relevant decisions will be taken by unanimity in
accordance with Art. 31(1) TEU.

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also deny the national parliaments any inuence over future decisions to convert unanimity to QMV within such a sensitive area of Union competence,
thereby contravening the spirit which underpins the various procedures for
amending the Treaties.149 The alternative interpretation would be to treat the
operation of Article 31(3) TEU as implicitly subject to the higher procedural
requirements imposed under Article 48(7) TEU which would not only render
the more specic passerelle clause otiose, but also give the European Parliament a signicant say in the future framework of decision-making within the
CFSP, something which would arguably run counter to the peculiarities of the
inter-institutional balance within that particular eld.150 Neither choice, therefore, seems ideal.
Setting aside the CFSP, the European Parliament does exercise inuence
over the adoption of certain non-legislative acts directly under the Treaties.
That inuence tends to take the form of ex ante input into the decision-making
process through the consultation procedure;151 in a few cases, however, the
European Parliaments supervisory powers are strengthened by a requirement
to obtain its consent to the proposed measures.152 There are still legal bases
where the European Parliament exercises no direct control over the adoption
of executive acts, though these generally concern individual administrative
measures,153 or the appointment of members to ancillary Union bodies.154
So much for the institutional aspects of non-legislative acts adopted directly
under the Treaties. More generally, the distinction between legislative and
non-legislative acts drawn in the TL is clearly not based on the sort of institutional criterion familiar to national legal systems which are organized according to a traditional separation of powers: with an institutional structure as complex as that of the EU, patently lacking a clear and stable legislature such as
the UKs Queen in Parliament, it would have been difcult to state (for example) that only acts of the Council and the European Parliament, or all acts
of the Council and / or the European Parliament, are to be considered legislative in nature. The TL settles instead on a purely formal criterion for distinguishing between legislative and non-legislative acts, i.e. based on the appli149. Section 10.3.
150. Section 3.
151. E.g. Art. 27(3) TEU on the organization and functioning of the European External Action Service; Art. 78(3) TFEU on emergency measures to cope with asylum inuxes.
152. E.g. Art. 50(2) TEU on conclusion of agreements between the Union and withdrawing
states; Art. 352 TFEU on non-legislative measures adopted under the exibility clause.
153. E.g. Art. 66 TFEU on urgent and exceptional safeguard restrictions on capital movements as regards third countries; Art. 75, second para TFEU on the implementation of restrictive
measures against natural and legal persons / groups.
154. E.g. Arts. 257(4), 301 and 305 TFEU on members of specialized courts, the Economic
and Social Committee and the Committee of the Regions (respectively).

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cable decision-making procedures for their adoption, as they are identied in

specic legal provisions and on an ad hoc basis under the Treaties. But could
such a criterion ever hope to reect any coherent underlying constitutional
principle? It seems instead to emerge as a labelling exercise with an essentially pragmatic basis and some rather arbitrary consequences.155
After all, from the point of view of process, many special legislative procedures (based on a Commission proposal, unanimity or QMV in Council,
and consultation with or the consent of the European Parliament) appear identical to non-legislative procedures conducted in the same manner.156 Moreover,
as regards their substance, many measures identied as non-legislative in
nature will seem indistinguishable from legislative ones in terms of their
scope of application (in general terms across the entire Union territory) and
subject matter (regulating the rights and obligations of natural and legal persons). Consider, for example, regulations and directives adopted to give effect
to the competition principles set out in current Articles 81 and 82 EC, which
will become Articles 101 and 102 TFEU.157 Is a measure such as Regulation
1/2003 on competition enforcement really any less legislative in nature in
terms of the procedure for its adoption, or its substantive content than many
of the legislative acts which would be adopted elsewhere under the Treaties?
Or again, consider Council measures implementing agreements between the
social partners falling within the elds of social policy competence entrusted
to the Union under existing Article 137 EC, which will become Article 153
TFEU.158 Are directives enacting binding Union-wide rules on issues such as
parental leave,159 part-time workers160 or xed-term workers161 really best categorized as non-legislative in character?
The desire to bestow upon the Union a clearer hierarchy of norms, for the
sake of enhancing the transparency of its activities, has therefore been undermined by a combination of shallow conception and poor execution. Of course,
the system will work but its operation will not be totally free from anomalies
or controversies. In the rst place, the lack of a coherent distinction between
legislative and non-legislative acts will produce similarly arbitrary knock-on
effects for other provisions premised on exactly the same distinction: for ex-

155. See further, e.g. Dougan, op. cit. supra note 10, 783784; Kokott and Ruth, op. cit.
supra note 10, 13411343.
156. Consider, e.g. Art. 74 TFEU on administrative cooperation within the Area of Freedom,
Security and Justice.
157. I.e. adopted under Art. 83 EC / Art. 103 TFEU.
158. I.e. as provided for under Art. 139(2) EC / Art. 155(2) TFEU.
159. Directive 1996/43, O.J. 1996, L 145/4.
160. Directive 1997/81, O.J. 1998, L 14/9.
161. Directive 1999/70, O.J. 1999, L 175/43.

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ample, the national parliaments right to object to legislative proposals on subsidiarity grounds;162 the Councils obligation to deliberate and vote on legislative acts in public;163 and the ability of natural and legal persons to bring actions for annulment without having to demonstrate individual concern.164 In
the second place, certain legal bases raise particular problems because they
offer the Union institutions the option between adopting legislative or nonlegislative acts. Consider, for example, the exibility clause contained in Article 352 TFEU, which empowers the Council to adopt measures either by a
special legislative procedure or by a non-legislative procedure, in each case on
the basis of a Commission proposal and with the consent of the European Parliament.165 Will the consequences of that choice for issues such as subsidiarity monitoring, legislative openness and access to judicial review effectively
oblige the Court of Justice to develop objective criteria for identifying situations in which legislative acts must be used in preference to non-legislative
ones, thus serving to circumscribe the otherwise apparently unlimited discretion of the Union institutions to pick for themselves? If so, the Courts task is
hardly enviable: the formalistic and arbitrary criteria embodied in the Treaties
themselves will surely militate against any judicial attempt to construct a more
persuasive substantive test for distinguishing legislative from non-legislative
measures.166
5.3.2. Non-legislative acts adopted as delegated acts
The second category of non-legislative Union instrument is governed by Article 290 TFEU: a Union 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 parent act. The latter must explicitly dene the objectives, content, scope and duration of the Commissions
delegated powers. It must also lay down the conditions to which the delegation
is subject: the possibility of the delegated powers being revoked by the Council and / or the European Parliament; or of the delegated act entering into force
only in the absence of objection from the Council and / or the European Parliament within a pre-dened period.

162. And to seek the annulment of Union legislation on subsidiarity grounds. See sections
6.3 and 8.3.
163. Section 4.2.
164. Section 8.3.
165. Section 6.1. Similar problems apply to Art. 203 TFEU, which offers the Council a
choice between adopting legislative or non-legislative measures for the association of overseas
countries and territories.
166. Note that Art. 296(1) TFEU on the criteria for choosing between available legal instruments is of little practical assistance in this context.

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The primary aim of Article 290 TFEU is to encourage the Union legislature
to concentrate on dening only the central tenets of legislation, in the hope that
this will make it easier for the Council and / or European Parliament to agree
on any given regulatory package, and permit the latter to be adapted more
quickly and effectively to changes in market behaviour or scientic technology. The introduction of delegated acts is also a useful attempt to divide the
Unions executive activities more clearly between the quasi-legislative and the
purely administrative subjecting the former category of powers to more direct scrutiny by the Union legislature itself, including a signicantly enhanced
role for the European Parliament.
However, it is possible to foresee certain controversies arising in the detailed operation of the new regime on delegated acts. Concepts such as what
amounts to the Commission supplementing or amending, rather than merely
implementing, a legislative measure will play a crucial part in dividing the
scope of application of delegated acts under Article 290 TFEU from that of
implementing acts under Article 291 TFEU (discussed below): one assumes
that these two categories of non-legislative measure are intended to be mutually exclusive, yet the criterion for distinguishing between them leaves much
to the imagination.167 Similarly, what constitutes the essential, as opposed to
non-essential, elements of a legislative measure, for the purposes of dividing
the delegated powers of the Commission from the primary powers of the
Council and / or the European Parliament, cry out for further clarication
through institutional practice and judicial review.
Other uncertainties relate to the scope of the Council and / or the European
Parliaments scrutiny powers: are the possibilities of revocation or veto explicitly identied in Article 290 TFEU intended to be exhaustive or purely indicative? On the one hand, the fact that the Treaty species (for example) that the
Council shall exercise its enumerated scrutiny powers by QMV suggests that
Article 290 TFEU is indeed intended to be prescriptive, at least to the extent
that the Council should not be entitled to subject its own decision to revoke or
veto the Commissions delegated powers instead (say) to unanimous agreement among the Member States. On the other hand, what if the Council and /
or European Parliament were to attempt to subject the exercise of the Commissions delegated powers (for example) to a system similar to comitology? That
could well have certain advantages: for example, in ensuring that the Commissions decisions are based on the most reliable scientic and technical exper-

167. Though some situations will be clear, e.g. if implementation relates to a non-legislative
parent act, or is to be carried out by the Council, it must take the form of an implementing act
under Art. 291 TFEU (since delegated acts under Art. 290 TFEU are only available as regards
legislative parents acts and may only be adopted by the Commission).

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tise available, and reect all relevant social and cultural differences between
the Member States. But the possible intermediary of a system like comitology
is not specically envisaged by Article 290 TFEU. Furthermore, such a scenario could hamper any attempt to formulate a meaningful division between
the new concept of delegated powers (apparently based on the direct scrutiny
of Commission delegated powers by the Union legislature) and the alternative
category of implementing acts under Article 291 TFEU (which does expressly
envisage the continued operation of the comitology system).
5.3.3. Non-legislative acts adopted as implementing acts
The third category of non-legislative Union instrument is governed by Article
291 TFEU: although Member States will generally adopt all national measures
necessary to implement binding Union acts,168 where uniform conditions for
implementation are needed, those acts shall confer implementing powers (i.e.
the ability to adopt non-legislative measures) upon the Commission or, in duly
justied specic cases, upon the Council.169 The revised Treaties also provide
a new legal basis for the comitology system, including a greater role for the
Parliament in setting out the relevant rules: regulations adopted by the ordinary legislative procedure shall lay down in advance the rules and general
principles concerning mechanisms for control by Member States of the Commissions exercise of implementing powers.170
The new provisions of Article 291 TFEU will perpetuate certain debates
which already exist under Community law: for example, about precisely how
to interpret the concept of duly justied specic cases in which the Council
may reserve implementing powers directly to itself.171 However, Article 291
TFEU will also generate new questions of its own. Consider, for example, the
role of the European Parliament in supervising the exercise of implementing
powers. In certain respects, the European Parliament has emerged a clear winner from the TL here: the necessary rules and general principles will be adopted in advance according to the ordinary legislative procedure (rather than
mere consultation as currently provided for under Article 202 EC) as regards
all situations in which the Commission exercises implementing powers (even
under legislative acts originally adopted by a special legislative procedure,
and non-legislative acts enacted without any participation by the European
Parliament). In other respects, however, Article 291 TFEU threatens to under168. Cf. Art. 10 EC / Art. 4(3) TEU.
169. And in any case upon the Council within the eld of the CFSP as provided for under
Arts. 24 and 26 TEU.
170. Art. 291(3) TFEU.
171. E.g. Case 16/88, Commission v. Council, [1989] ECR 3457; Case C-257/01, Commission v. Council, [2005] ECR I-345.

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mine some of the recent gains made by the European Parliament, particularly
as regards the daily supervision of the exercise of Union executive power. It
will be recalled that recent amendments to the Second Comitology Decision
introduced a regulatory procedure with scrutiny in respect of Commission
proposals implementing legislation adopted under the co-decision procedure.
Those amendments offer the European Parliament much more extensive powers to veto a Commission measure even if approved by the regulatory committee; and (where the regulatory committee delivers a negative or no opinion) to
veto the adoption of implementing measures by either the Council or the Commission (as the case may be).172 Such extensive scrutiny powers for the European Parliament are fully consonant with the text of existing Article 202 EC,
but at rst glance, they appear difcult to reconcile with the more restrictive
wording of Article 291 TFEU: the latter refers to mechanisms for control of
the Commission (not the Council), by the Member States (not the European
Parliament). Are the revised Treaties intended to limit the European Parliaments participation to the adoption in advance of general principles? If so,
might the desire to engage in a more active and detailed supervision of the
Commissions executive activities lead the European Parliament to lobby for
a very broad denition of delegated acts under Article 290 TFEU, so as to
escape the restrictions now apparently imposed under Article 291 TFEU?
Before leaving the subject of non-legislative acts, it is worth asking how far
this package of reforms might affect the Commissions competence to subdelegate implementing powers to autonomous regulatory agencies established
pursuant to the Treaties. As is well known, the existing position is governed by
the Meroni principle, which places very strict limits on the degree to which
Community institutions may sub-delegate their powers to other bodies not
directly established by the Treaties.173 As a result, although the Community has
indeed established numerous agencies charged with executive activities across
a broad range of activities, those agencies rarely exercise meaningful discretionary powers, and are generally conned to the performance of purely technical or advisory functions.174 That situation has been criticized on the grounds
that the Community administration, as it currently stands, is unable to make
full use of the advantages potentially offered by autonomous regulatory bodies
(for example) in terms of expertise, political independence and output legiti-

172. See Decision 2006/512, O.J. 2006, L 200/11.

173. Case 9/56, Meroni, [1958] ECR 11; Case 10/56, Meroni, [1958] ECR 53.
174. See further, e.g. Chiti, The emergence of a Community administration: The case of
European agencies, 37 CML Rev. (2000), 309; Geradin and Petit, The development of
agencies at EU and national levels: Conceptual analysis and proposals for reform, 23 YEL
(2003), 137; Craig, EU Administrative Law (OUP, 2006) Chapt. 5.

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macy.175 It is arguable that the TL now lays the basis for reconsidering the restrictive Meroni doctrine. After all, the revised Treaties provide a much more
explicit primary law basis for the Unions various ofces and agencies,176 including their amenability to investigation by the Ombudsman,177 the possibility of bringing actions for annulment and for failure to act,178 and of seeking
preliminary references in respect of their activities.179
5.4.

Budget

Based on the previous CT proposals, the TL will alter the Unions nancial
principles and budgetary procedure in several important respects. Space precludes any detailed examination of the provisions to be found in Title II, Part
Six TFEU, but some of the principal reforms are as follows. First, the system
of nancial perspectives, which in the existing practice form part of a soft
law text (the current Inter-Institutional Agreement on budgetary discipline
and improvement of the budgetary procedure) would be formalized under the
revised Treaties as the Unions multiannual nancial framework.180 Secondly, the budgetary procedure itself would be simplied into a special legislative
procedure (modelled on the ordinary legislative procedure) with the Commission presenting a draft budget (rather than an initial draft) and the Council and
Parliament engaging (where necessary) in a process of conciliation in accordance with strict deadlines. Thirdly, the existing distinction between compulsory expenditure and non-compulsory expenditure would be abolished. The
European Parliament would thus obtain greater inuence over the budget as a
whole (though it would, incidentally, lose its existing power to have the nal
say over non-compulsory expenditure).

6.

Decision-making powers

The authors of CT and TL alike were keen to highlight that the Union is an
organization of derived and limited powers, on which the Member States
confer competences to attain objectives they have in common.181

175. E.g. Majone, Dilemmas of European Integration: The Ambiguities and Pitfalls of Integration by Stealth (OUP, 2005).
176. E.g. Art. 9 TEU. See, in particular, Arts. 2(2)(f) and 2(6) TL.
177. Art. 228(1) TFEU.
178. Arts. 263 and 265 TFEU.
179. Art. 267 TFEU.
180. See section 5.2 on the voting rules applicable here.
181. Art. I-1(1) CT; Art. 1(1) TEU.

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Articles 2 and 3 TEU state, in a concise fashion, the Unions basic values
and objectives. On the one hand, the TL does not affect the fundamental principle that the Union can only take action to uphold its values and pursue its
objectives where a specic legal basis contained in the Treaties empowers it to
do so, and only under the particular conditions institutional and otherwise
laid down in that legal basis.182 On the other hand, the precise wording of the
Unions values and objectives not only hold an important political symbolism,
but also provide a touchstone for interpreting the specic legal bases contained
elsewhere in the Treaties.
That symbiotic relationship is illustrated by the debate over the extent to
which the 2007 IGC altered the proposals contained in the CT when using the
latter text as its basis for the revised Articles 2 and 3 TEU. In particular, the
Unions offering to its citizens of an Area of Freedom, Security and Justice
(under the CT) has been elaborated so as to include reference to ensuring the
free movement of persons in conjunction with appropriate measures on external border controls, asylum, immigration and crime (under the TL). Conversely, the commitment to an internal market where competition is free and undistorted (under the CT) has been replaced by a reference to the internal market simpliciter (under the TL) though a new paragraph does expressly refer
to the establishment of an economic and monetary union with the euro as it
currency. That change was demanded by the new French President, elected in
spring 2007, no doubt keen to address the fears of those French citizens who
voted non in the 2005 referendum out of concern that constitutional reform
of the Union posed a serious threat to the future of the national social model.183
However, Sarkozys demand caused equal concern in several Member States
that, without a clear and fundamental commitment to free and undistorted
competition, the legal framework for Union action in core elds such as State
aids, or for the adoption of harmonizing measures aimed at liberalizing certain
economic sectors, might be appreciably weakened. The compromise is that,
under a new Protocol on the Internal Market and Competition, the High Contracting Parties consider that the internal market referred to in Article 3 TEU
includes a system ensuring that competition is not distorted; to that end, the
Union shall, if necessary, take action under the provisions of the Treaties.184

182. See Art. 3(6) TEU. Cf. Case C-9/99, Echirolles Distribution, [2000] ECR I-8207; Case
C-181/06, Deutsche Lufthansa, judgment of 5 July 2007, nyr.
183. Cf. the post-referendum opinion poll conducted at the request of the Commission in
France (Flash Eurobarometer Poll No 171).
184. Including under Art. 352 TFEU: see section 6.1.

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In any case, the underlying legal framework governing the existence and
exercise of Union competences has not changed; the TLs amendments affect
only the detailed application of that framework.185
6.1.

Principle of conferral

According to Article 5(1) TEU, the limits of Union competences are governed
by the principle of conferral. Article 5(2) TEU then restates, in strengthened
form, the idea currently contained in the rst paragraph of Article 5 EC: the
Union shall act only within the limits of the competences conferred upon it by
the Member States in the Treaties in order to attain the objectives set out therein. Articles 4(1) and 5(2) TEU further afrm that competences not conferred
upon the Union in the Treaties remain with the Member States.186
There was much discussion before and during the Convention about how to
overcome the problem of legal bases such as Articles 95 and 308 EC, whose
open-ended nature (combined with a good dose of institutional connivance)
have given rise to the problem of competence creep.187 In the end, Article 95
EC has become Article 114 TFEU but without any signicant amendments.188
Perhaps it was felt that the new judicial wind blowing since the rst Tobacco
Advertising Directive judgment was a sufcient safeguard for Member State
competences.189 By contrast, Article 308 EC will be replaced by Article 352
TFEU, which provides that if action by the Union should prove necessary,
within the framework of the policies dened in the Treaties, to attain one of the
objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council (still acting unanimously on a Commission proposal,
though now with the Parliaments consent) shall adopt the appropriate measures. Those measures may be legislative in character, in which case they are
deemed to have been adopted according to a special legislative procedure.190
On the one hand, the reference to action in furtherance of the Unions objectives in toto makes the potential scope of application of Article 352 TFEU
185. See, for analysis of the original Convention proposals, e.g. Davies, The Post-Laeken
division of competences, 28 EL Rev. (2003), 686; Dougan, op. cit. supra note 10, 763; Hanf
and Baum, Vers une clarication de la rpartition des comptences entre lUnion et ses Etats
membres, (2003) CDE 135; Craig, Competence: Clarity, conferral, containment and consideration, 29 EL Rev. (2004), 323.
186. See also Declaration No 18 annexed to the Final Act.
187. See further, e.g. Lenaerts and Desomer, Bricks for a Constitutional Treaty of the European Union: values, objectives and means, 27 EL Rev. (2002), 377; Weatherill, Competence
creep and competence control, 23 YEL (2004), 1.
188. Though its relationship to existing Art. 94 EC / new Art. 115 TFEU is revised.
189. Case C-376/98, Germany v. Parliament and Council, [2000] ECR I-8419.
190. On the problems this may cause, see section 5.3.1.

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much broader than that of Article 308 EC, which refers only to action in furtherance of the common market. On the other hand, the comparatively restrictive wording of Article 308 EC rarely acted in itself as a practical barrier to its
liberal employment by the Community across a wide range of policy elds; it
seems more likely that extensive recourse to Article 352 TFEU and with it
any further competence creep will be rendered unnecessary by the sheer
range of sector-specic legal bases under which the Union is now empowered
to act. In that regard, it is signicant that measures based on Article 352 TFEU
shall not entail harmonization of national laws in cases where the Treaties
exclude such harmonization thus preventing Article 352 TFEU being used to
undermine the distinction between shared and supporting competences.191 Furthermore, the 2007 IGC narrowed the scope of the exibility clause as compared to the version contained in the CT, by excluding the use of Article 352
TFEU as the basis for attaining objectives pertaining to the CFSP, or its use in
the implementation of other Union policies so as to affect the exercise of CFSP
powers.192
In any case, it is expressly provided under Article 352(2) TFEU that the
Commission must draw national parliaments attention to proposals made under the exibility clause, using the new procedure for monitoring the subsidiarity principle.193 However, it is unclear whether this provision is intended to
act merely as an explicit cross-reference to the yellow card system, which
would in any case apply to all proposals for the adoption of legislative acts
under Article 352 TFEU; or whether it is instead meant materially to extend
the national parliaments power to issue reasoned opinions, and the Union institutions obligation to take them into consideration, so as also to cover proposals for the adoption of non-legislative measures under Article 352 TFEU
(proposals which would not otherwise fall within the scope of the yellow
card procedure at all). The latter interpretation seems to be more in keeping
with the restrictive spirit of the new exibility clause, but it is far from obvious or compelling from the actual wording of Article 352 TFEU.
6.2. Categories of Union competence
In what is arguably one of the TLs most successful exercises in clarifying and
explaining the nature of Union power, for the benet of specialist practitioners
and the interested public alike, Article 2 TFEU offers for the rst time ge-

191. Art. 352(3) TFEU. See section 6.2.

192. Art. 352(4) TFEU. See section 3. Note also Declaration Nos 41 and 42 annexed to the
Final Act.
193. Section 6.3.

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neric denitions of the meaning of exclusive, shared and supporting Union

competences.194 Articles 3 (exclusive), 4 (shared) and 6 (supporting) TFEU
then give an indicative list of the various elds of Union activity which are
deemed to fall within each category of competence though some of the TLs
choices, especially about what constitutes an exclusive Union competence,
might seem to go beyond the pre-existing academic consensus (which was in
turn based on the available case law).195 In any event, the precise scope of, and
arrangements for exercising, the Unions competences are determined by the
individual legal bases contained elsewhere in the Treaties.196 Those set out in
greater detail the principles governing Union activity within the relevant eld,
and more elaborate rules on the impact of Union competence upon national
regulatory powers: for example, whether harmonizing measures adopted in
elds of shared competence may be fully pre-emptive or should consist only
in the setting of minimum standards;197 and whether specic aspects of a eld
otherwise designated as one of shared competence do not in fact confer upon
the Union any power to harmonize national laws, and thus exhibit the characteristics of a purely supporting competence.198
Most of the competences referred to in the revised Treaties already exist and
are subject only to minor amendments though some revisions are more signicant, such as the explicit commitment, in the provisions on Union environmental policy, to promoting international action to combat climate change.199
But there are some new legal bases for Union action: for example, shared
competence as regards services of general economic interest200 and energy
policy;201 and complementary competences as regards space,202 tourism,203

194. Those denitions should be read in conjunction with the Protocol on the exercise of
shared competence; and also Declaration No 18 annexed to the Final Act. Note that the Unions
coordinating powers in relation to the Member States economic and employment policies, and
in the eld of CFSP, are accorded a special status falling outside the scope of those generic categories: see Arts. 2(3)-(4) and 5 TFEU.
195. In particular, the reference in Art. 3(1) TFEU to establishing the competition rules necessary for the functioning of the internal market; and the rather shoddy denition of exclusive
external competence contained in Art. 3(2) TFEU.
196. See Art. 2(6) TFEU.
197. See, e.g. Arts. 153(4) TFEU (social policy), 193 TFEU (environment) and 169(4) TFEU
(consumer policy).
198. E.g. Arts. 79(4) and 84 TFEU on TCN integration and crime prevention measures (respectively).
199. Art. 191(1) TFEU.
200. Art. 14 TFEU.
201. Title XXI TFEU.
202. Art. 189 TFEU.
203. Title XXII TFEU.

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sport,204 civil protection205 and administrative cooperation for the effective

implementation of Union law.206
6.3.

Principle of subsidiarity

According to Article 4(2) TEU, the Union must respect the national identities
of the Member States, inherent in their fundamental political and constitutional structures, including regional and local self-government. Against the
background of that hortatory principle, Article 5 TEU recalls that the use of
Union competences is governed by the principles of subsidiarity and proportionality, which are then restated in formulae based on, but more elaborate
than, the terms of existing Article 5 EC.207 However, the most signicant
changes enacted by the TL in this eld concern the manner in which subsidiarity is to be monitored and enforced within the Union. Article 5(3) TEU states
that the Union institutions shall apply the principle of subsidiarity as laid down
in the Protocol on the application of the principles of subsidiarity and proportionality, and that national parliaments ensure compliance with that principle
in accordance with the procedure set out in that Protocol.208
Article 4 of the Protocol seeks to increase the ow of information about the
Unions legislative activities to the national parliaments. Thus, the Commission must notify all its legislative proposals to the national parliaments at the
same time as to the Union institutions themselves. Similar obligations apply to
the Unions other institutions and bodies: for example, the Council is obliged
to notify national parliaments of draft legislative acts originating from a group
of Member States in the eld of PJC. Legislative resolutions of the European
Parliament and positions of the Council must also be forwarded to the national parliaments.209
In addition, Articles 6 and 7 of the Protocol implement the famous yellow
card system rst proposed by the Convention. Each national parliament (or
chamber thereof) has the power to object to any given legislative proposal by
means of a reasoned opinion, specically on the grounds that it infringes the
204. Title XII TFEU.
205. Title XXIII TFEU.
206. Title XXIV TFEU.
207. E.g. in the principle of subsidiarity, there is an express reference to objectives being
sufciently achieved by the Member States either at central level or at regional and local level;
the phrase and can therefore, which has grated on so many academic nerves, will be replaced
with but can rather.
208. See further, e.g. Davies, op. cit. supra note 185; Weatherill, Better competence monitoring, 30 EL Rev. (2005), 23.
209. Note also the provisions on greater transmission of information about the Unions activities, contained in the Protocol on the role of national parliaments in the European Union.

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principle of subsidiarity, within a deadline of eight weeks from the date of

transmission of the draft.210 The Union institutions (and other relevant bodies)
would be obliged to consider all such reasoned opinions; but if one-third or
more of the national parliaments object, then the draft legislation must be formally reviewed. That threshold is lowered to one-quarter, in the case of drafts
proposed by the Commission or a group of Member States in the eld of
PJC.211 For these purposes, each national parliament has two votes: both votes
may be used by a unicameral legislature; the votes are to be divided out between the chambers in a bicameral legislature.212 After the necessary review,
the Commission (or other institution / body from which the draft legislation
originated) must give reasons for its decision either to maintain, amend or
withdraw the proposal.
Despite support for the idea that a sufcient number of negative reasoned
opinions from national parliaments should be capable of acting as a red card,
the 2004 and 2007 IGCs refused to confer upon national parliaments any such
formal veto powers over the progress of the Unions own legislative processes.
After all, one assumes that, if a sufcient number of national parliaments were
to register serious objections to a given legislative proposal on subsidiarity
grounds, the political costs for the Union institutions of simply ignoring that
opposition or at least, of doing so on any sort of regular basis would be
severe, particularly for those ministerial representatives who remain accountable to their national parliaments in respect of how they cast their Council
votes.213 Nevertheless, the Protocol nally agreed in 2007 does go further than
previous versions of the yellow card system, in particular, as regards proposals made under the ordinary legislative procedure, where negative reasoned
opinions represent a simple majority of the votes cast by national parliaments.
If, having carried out its formal review, the Commission nevertheless decides
to maintain its proposal, the Commission must produce its own reasoned opinion, justifying why the draft does comply with the principle of subsidiarity.
Before concluding the rst reading of the ordinary legislative procedure, the
Council and the European Parliament must consider the reasoned opinions of
the national parliaments and the Commission. If 55 percent of Council members, or a simple majority of voting MEPs, consider that the proposal does not

210. Under the CT, the deadline was 6 weeks; many thought this was too tight, so the European Council mandate for the 2007 IGC instructed that it be extended to 8 weeks.
211. Under Art. 76 TFEU.
212. National parliaments may arrange on their own account for the consultation of regional
parliaments with legislative powers: see Art. 6, rst para of the Protocol.
213. Though note that the results of a Commission pilot study on operation of the yellow
card system were hardly promising: see Arnull et al., op. cit. supra note 11, para 11020.

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comply with the principle of subsidiarity, the ordinary legislative procedure

will be terminated.
The Protocols yellow card system reects the widespread view that compliance with the principle of subsidiarity would be more effectively achieved
through a system of ex ante political input into the legislative procedure as it
unfolds, rather than ex post judicial review of legislation after it has already
been adopted.214 More fundamentally, giving teeth to the principle of subsidiarity by entrusting national parliaments with responsibility for monitoring its
application could increase the accountability and legitimacy of the EUs lawmaking bodies, and enhance in an unprecedented way the sense of ownership of the European project at national level. In that regard, the yellow
card system should be read in the broader context of Article 12 TEU, which
summarizes the various ways in which national parliaments can actively contribute to the good functioning of the Union: not only through monitoring the
principle of subsidiarity, but also (for example) by participating in the evaluation of various Union policies within the Area of Freedom, Security and
Justice,215 and taking part in the ordinary and simplied procedures for revising the Treaties.216 Indeed, it is arguable that the importance of the yellow
card system itself is secondary to the more general goal of facilitating the
fruitful engagement of national parliaments with the Union institutions, with a
view to enhancing scrutiny of the Unions activities by domestic as well as
supranational representative assemblies.217
Nevertheless, there are doubts about just how well the yellow card system
will work even assuming that national parliaments take their new role seriously and actually exercise their power to issue reasoned opinions in practice.218 For example, although the TL extended the deadline for responses to
eight weeks, rather than the six weeks originally proposed under the CT, it is
still uncertain whether such a tight timetable will offer sufcient opportunity
for the national parliaments to formulate (and if desired, coordinate) their subsidiarity objections. Moreover, the Protocol assumes that national parliaments
will issue reasoned opinions specically on grounds of subsidiarity. What happens if the grounds for objection actually relate to complaints about (say) the
principle of proportionality, or the simple desirability of the proposed regulatory standards?
214. Though see below on Art. 8 of the Protocol.
215. See Arts. 70, 71, 85 and 88 TFEU.
216. See Art. 48 TEU and Art. 81(3) TFEU. See section 10.3.
217. See Crum, Tailoring representative democracy to the European Union: Does the European Constitution reduce the democratic decit?, 11 ELJ (2005), 452.
218. Something that cannot be taken for granted: see Apathy undermines national parliaments EU power (www.euobserver.com on 5 Nov. 2007).

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Another potential problem relates to the procedure for activating the system
of heightened scrutiny, where negative reasoned opinions account for half the
votes cast by national parliaments, which depends on the Commission maintaining rather than amending the relevant proposal. What if the Commission indeed amends its draft, but not in a way that materially affects, or substantially meets, the objections originally made by the national parliaments:
would this nevertheless absolve the Commission from any obligation to produce its own reasoned opinion, and the Council and European Parliament from
any need to carry out a preliminary subsidiarity vote? Further issues derive
from the decision to limit the system of heightened scrutiny to proposals made
under the ordinary legislative procedure. At rst glance, it may seem of little
consequence that such heightened scrutiny does not apply to proposals made
under a special legislative procedure: the latter generally require the Council
to act by unanimity, thus ensuring de facto that national parliamentary objections will carry some political clout; in the few situations where the revised
Treaties do permit the Council to act by QMV, the subject matter of the relevant Union competences is such as to raise no serious subsidiarity objections.219
However, the exclusion of heightened scrutiny may become more problematic
if the passerelle clause contained in Article 48(7) TEU eventually sees the
extension of QMV within the Council to other special legislative procedures.220
In that case, heightened scrutiny would be excluded under a special legislative
procedure which is comparable, in all relevant respects, to the ordinary legislative procedure.
Of course, if such problems arise, they are likely to be resolved by political
pragmatism and mutual negotiation. But the new yellow card system does
raise other interesting questions about the future role of the Court of Justice in
subsidiarity disputes. As is well known, the Court for several years shied away
from becoming engaged too deeply in assessing the substantive merits of actions for annulment against Community acts based on breach of the principle
of subsidiarity;221 though more recent rulings suggest that the Court feels
greater condence about investigating whether the criteria for the legitimate
exercise of Community competence contained in the second paragraph of Article 5 EC are in fact satised.222 On the one hand, it could be argued that the

219. See Art. 23 TFEU on diplomatic protection of Union citizens; Art. 311, fourth para
TFEU on implementing the Unions own resources.
220. Section 5.2.3.
221. E.g. Case C-84/94, United Kingdom v. Council, [1996] ECR I-5755; Case C-233/94,
Germany v. European Parliament and Council, [1997] ECR at I-2427.
222. E.g. Case C-377/98, Netherlands v. European Parliament and Council, [2001] ECR
I-7079; Case C-491/01, ex parte British American Tobacco, [2002] ECR I-11453; Case C-154
155/04, Alliance for Natural Health, [2005] ECR I-6451.

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emphasis placed by the TL on ex ante political monitoring by the national

parliaments should be taken by the Court as an indication that it need no longer
strain itself towards adopting a more rigorous substantive test for judicial review on grounds of subsidiarity. On the other hand, Article 8 of the Protocol
expressly confers upon the Court of Justice jurisdiction to hear actions for the
annulment of Union legislative acts based on the principle of subsidiarity,
brought by Member States or notied by them in accordance with their legal
order on behalf of their national parliaments or a chamber thereof.223 Overlooking the important interpretative question of whether national parliaments
are thereby given an inalienable right of access to the Court, or remain dependent on the cooperation of their Member State to initiate action on their
behalf,224 this provision suggests that, if anything, ex post judicial review on
subsidiarity grounds may be poised to take on a whole new potency. After all,
the Treaties have deliberately enlarged the possibilities for judicial scrutiny
specically on subsidiarity grounds; thanks to the yellow card system, the
Court may be presented with a mass of reasoned opinions detailing the substantive objections held by national parliaments. With such a wealth of material, argumentation over subsidiarity could metamorphose from the politically
subjective into the readily justiciable.

7. Human rights and fundamental freedoms

At present, the Community / Union has a single, workable fundamental rights
regime centred around the general principles of Community / Union law, as
developed by the Court in its case law, drawing inspiration from the common
constitutional traditions of the Member States and international instruments of
which the most inuential is the ECHR.225 The proclamation of the Charter of
Fundamental Rights in December 2000 provided the basis for an alternative
system centred around a future written bill of rights for the Union.226 That idea
was taken up by the Constitutional Treaty, which proposed fully incorporating
the Charter into the Unions primary law and conferring upon it binding legal
status, subject to certain amendments (in particular) to its preamble and hori-

223. Art. 8 also permits the Committee of the Regions to seek annulment of Union legislative acts in respect of which the TFEU provides for its consultation, for alleged breach of the
subsidiarity principle. On the Committees standing to bring annulment actions more generally:
section 8.3.
224. See further, e.g. Dougan, op. cit. supra note 10, 763, 768; Kokott and Ruth, op. cit.
supra note 10, 1335.
225. See further, e.g. Arnull et al., op. cit. supra note 11, Chapt. 8.
226. O.J. 2000, C 364/1.

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zontal provisions, while still expressly preserving the case law on fundamental
rights as general principles of Union law.227 During the post-referenda period
of reection, perhaps in a judicial attempt to cherry-pick those parts of the
Constitution that it seemed politically worthwhile and legally possible to salvage, the Court succeeded in conferring an indirect legal status upon the Charter by referring to it as another valid source of inspiration for the Courts own
case law: in effect, if a right is contained in the Charter, this acts as an irrebuttable presumption that it is already protected under the general principles.228
It is against that already complicated background that we must understand
the TLs approach to the Unions future human rights regime. First, Article
6(1) TEU states that the Union recognizes the rights, freedoms and principles
set out in the Charter, which shall have the same legal value as the Treaties.
For these purposes, the Charter must be interpreted not only in accordance
with the horizontal provisions contained in Title VII thereof, but also with due
regard to the explanations drawn up by the original drafting convention. Secondly, however, the Charter is not incorporated into the Treaties by text, only
by reference another victim of the European Councils decision to abandon
the constitutional concept. In fact, both the Charter and its accompanying
explanations were re-proclaimed by the Commission, Council and European
Parliament on 12 December 2007, incorporating the various revisions agreed
earlier in the constitutional reform process, with a view to taking effect as
from the date of entry into force of the TL itself.229 Thirdly, Article 6(3) TEU
states that fundamental rights, as guaranteed by the ECHR and resulting from
the common constitutional traditions of the Member States, shall constitute
general principles of Union law thus offering a clear legal mandate for the
Court to retain and develop its own case law, albeit to an unspecied degree.
Fourthly, the TL introduces a special Protocol on the application of the Charter
of Fundamental Rights to Poland and the United Kingdom a text whose po-

227. See Art. I-9 and Part II CT. See, for analysis of the Convention draft and CT proposals,
e.g. Williams, EU Human Rights Policy and the Convention on the Future of Europe: A failure
of design, 28 EL Rev. (2003), 794; Carruthers, Beware of lawyers bearing gifts: A critical
evaluation of the proposals on fundamental rights in the EU Constitutional Treaty, (2004)
EHRLR 424.
228. E.g. Case C-540/03, Parliament v. Council, [2006] ECR I-5769; Case C-432/05, Unibet, [2007] ECR I-2271; Case C-303/05, Advocaten voor der Wereld, [2007] ECR I-3633; Case
C-438/05, Viking Line, judgment of 11 Dec. 2007, nyr; Case C-341/05, Laval un Partneri, judgment of 18 Dec. 2007, nyr; Case C-450/06, Varec, judgment of 14 Feb. 2008, nyr. See further,
e.g. Drywood, Giving with one hand, taking with the other: Fundamental rights, children and
the family reunication decision, 32 EL Rev. (2007), 396.
229. O.J. 2007, C 303/1 (Charter) and C 303/17 (explanations).

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litical sensitivities and poor drafting confuse the potential legal effects of the
revised Charter for those two Member States (and potentially beyond).230
Detailed critical analysis of the revised Charter is a job best left to specialist
commentators. Our attention will instead focus on some of the broader constitutional challenges created by the TLs human rights package. In particular, the
task of maintaining a coherent, workable fundamental rights regime for the
Union is complicated by two main and intertwined issues: the relationship
between the revised Charter and the case law on general principles; and the
proper interpretation of the Protocol on Poland and the UK.
7.1. The Charter and the case law on general principles
As is well known, the Charter itself suffers from various drafting deciencies.231 Some of those deciencies derive from the original 2000 version of the
text. For example, according to Article 51(1) of the Charter, its provisions are
addressed to the Member States only when implementing Union law. As has
often been pointed out, this seems to contradict the well-established principle
that fundamental rights bind the Member States whenever they act within the
scope of Community law, which also includes derogating from the Treaty.232
Other deciencies result from the constitutional reform process itself and have
now found their way into the 2007 text. For example, Article 52(5) provides
that Charter provisions containing principles, which may be implemented
by Union legislative and executive acts, and by Member State acts implementing Union law, shall be judicially cognisable only in the interpretation of such
acts and in the ruling on their legality. That is a very clumsy attempt to ensure
that exhortatory principles usually embodying certain social and cultural
aspirations, rather than conferring more traditional civil and political liberties,
or concrete economic and social rights cannot in themselves form the basis
of directly effective individual rights, enforceable even in the absence of the
necessary implementing measures at Union or national level; but should instead act merely as useful yardsticks against which to measure the relative
success (or otherwise) of Union / national regulatory activity. The problem is
that the task of identifying fully justiciable rights as opposed to partially
justiciable principles for the purposes of Article 52(5) is very far from
230. Another main reform a legal basis for Union accession to the ECHR is considered
in section 7.3.
231. See further, e.g. Special Issue on the Charter of Fundamental Rights, 8 MJ (2001), Issue 1; Ward and Peers (Eds.), The EU Charter of Fundamental Rights: Politics, Law and Policy
(Hart Publishing, 2004).
232. E.g. Case C-368/95, Familiapress, [1997] ECR I-3689; Case C-60/00, Carpenter,
[2002] ECR I-6279. See further, e.g. Arnull et al., op. cit. supra note 11, esp. para 9023.

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straightforward, and neither the Charter nor its explanations offer any denitive guidance for these purposes.233
The situation becomes more complicated because resolving such problems
cannot be based on an isolated interpretation of the Charter text alone. In fact,
the solution is inextricably bound up with how we approach Article 6(3) TEU:
what role does that provision now allocate to the Courts case law on fundamental rights as general principles, and how will this interact with the legal
effects of the revised Charter? After all, the potential exists for a very signicant coincidence between the scope and content of the Charter and that of the
general principles especially taking into account the Courts decision, during
the interregnum between CT and TL, to begin treating the Charter as a valid
source of inspiration for its own case law. How the Court negotiates the relationship between Charter and case law perhaps mutually discreet but if so,
where the demarcation line is drawn; perhaps overlapping but if so, which
norm takes priority is another of those post-TL challenges that may yet exercise as great an inuence on this eld of Union law as the TL reforms themselves.
Several possibilities can be identied. For example, it would be theoretically possible for the Court to decide that its case law will continue to evolve
much as it does now: the touchstone for protecting fundamental rights within
the Union remains the general principles, and the Charters primary role is to
act as a valid source of inspiration for their development, but its drafting deciencies can safely be ignored because they are not directly relevant to determining the scope or legal effects of the case law itself. However, such an approach is surely unlikely to emerge in practice: it would be constitutionally
indefensible for the Court to ignore the clear will of the Treaty drafters to furnish the Union with a written bill of rights, intended to act as the primary repository of fundamental rights protection, and capable of having direct legal
effects of its own, though only within the limits negotiated and agreed upon by
the Union institutions and the Member States. Another possibility would be
for the Court to manage two separate but parallel fundamental rights regimes:
the Charter applying to the Union institutions and Member States implementing Union law (and subject to its various drafting deciencies); the general
principles applying in all other situations, such as Member State derogations
from the Treaties (and thus free from the Charters inherent limitations). But
such a dual system might prove bothersome, where the range of rights pro-

233. The explanations do give some indications, but they are far from exhaustive: see O.J.
2007, C 303/35. See further, e.g. Dougan, The Conventions Draft Constitutional Treaty: a
Tidying-Up Exercise That Needs Some Tidying-Up of Its Own Federal Trust Constitutional Online Essay 27/03 (available at www.fedtrust.co.uk/eu_constitution.htm).

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tected may be exactly the same in each situation, but the actual quality and
potency of those rights could differ in an almost arbitrary manner.
Perhaps the best solution would be for the Court to treat the revised Charter
for all practical purposes as the authoritative source of fundamental rights protection within the Union, and overcome its textual deciencies by sheer interpretative perseverance: for example, by construing the concept of Member
States implementing Union law as equivalent to the broader case law notion
of acting within the scope of Union law; and by allocating Charter provisions between the categories of rights and principles on a case-by-case
basis consistent with the spirit behind the bungled drafting. With the Charter
serving as the Unions primary and perfectly workable fundamental rights regime, the general principles as referred to in Article 6(3) TEU could perform a
more modest role: lying dormant in most situations, they could nevertheless be
called upon in the future to provide an effective legal basis for the exible
evolution of the Unions human rights jurisprudence, lest the incorporated
Charter have the unintended effect of constraining the Unions response to
new and unforeseen social and moral problems.234
7.2.

The Protocol on Poland and the UK

If the poor drafting of the revised Charter, coupled with the preservation of the
general principles, amounts to a recipe for uncertainty and perhaps incoherence, the situation becomes even more complex when another ingredient is
added to the mix: the Protocol on Poland and the UK.
The failure of the Constitutional Treaty, and the desire of the British Government to avoid having to hold a referendum on its replacement, led the UK
to impose its infamous red lines upon the 2007 negotiations, satisfaction of
which became a sine qua non for British signature of the Lisbon Treaty. In
several cases, those red lines involved the UK wriggling out of reforms it
had previously seemed content to sign up to at previous IGCs, and ultimately
amounted to demands for special treatment compared to the other Member
States, so that the new TL would appear sufciently different from the previous CT as to make an ordinary parliamentary vote appropriate for its ratica-

234. See, e.g. Weiler, Does the European Union truly need a Charter of Rights?, 6 ELJ
(2000), 95. In this regard, however, Art. 6(3) TEU could have certain chilling effects of its
own: by referring only to the ECHR as an external source for the general principles of Union
law, is Art. 6(3) TEU implicitly ruling out reliance on other international human rights instruments (such as the UN Charter on the Rights of the Child, already cited by the ECJ as a valid
source of inspiration for the general principles of Community law, in Case C-540/03, Parliament v. Council, [2006] ECR I-5769)?

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tion. One such red line concerned the Charter.235 Even with its potential
signicance hemmed in by its revised horizontal provisions, the prospect of
full legal status for the Charter provided the basis for an acutely paranoid, often embarrassingly childish and sometimes simply dishonest smear campaign
(by sections of the media and various political parties alike). Prominent in that
campaign was the accusation that the economic and social rights contained in
Title IV of the Charter would provide the basis for a judicial assault upon the
UKs (neo-)liberal employment legislation: for example, overturning restrictions on the right to strike, limiting the ability of employers to hire-and-re
with relative ease, and generally undermining the UKs supposed competitive
advantage in the market for low-skilled, low-productivity labour.236 It is a depressing fact of life in the arena of public political debate that, in the face of
such forcefully put and simplistically appealing allegations, any attempt at
careful and rational analysis to explain the actual limits and nuances of the
Charter within their complex constitutional context falters and ultimately
fails.
It is against that heated political background that we must understand both
the British desire to avoid a referendum on the new TL, and the tenacity with
which the UK asserted the red lines it deemed essential to the success of that
strategy including the demand (in which it was subsequently joined by the
incumbent Polish administration)237 for a special Protocol on the Charter. Article 1(1) of the Protocol provides that the Charter does not extend the ability
of the Court of Justice, or any court or tribunal of Poland or the UK, to nd that
the laws, practices or action of Poland or the UK are inconsistent with the
fundamental rights, freedoms and principles that it reafrms. Article 1(2) then
states that, in particular, and for the avoidance of doubt, nothing in Title IV of
the Charter creates justiciable rights applicable to Poland or the UK except in
so far as Poland or the UK has provided for such rights in its national law. Finally, according to Article 2, to the extent that a provision of the Charter refers
to national laws and practices, it shall only apply to Poland or the UK to the
extent that the rights or principles it contains are recognized in the law or practices of Poland or the UK. To make matters even cloudier, the new Polish administration elected between the conclusion of the IGC in October 2007 and
the nal signature of the TL in December 2007, feeling unable formally to
235. Another concerns the status of pre-existing Third Pillar acts: section 9.2.
236. On the Title IV provisions, see further, e.g. Hervey and Kenner (Eds.), Economic and
Social Rights under the EU Charter of Fundamental Rights: A Legal Perspective (Hart Publishing, 2003).
237. Whose concerns seem to have centred not around the Title IV economic and social
rights, but rather on issues such as abortion and same-sex marriage: note Declaration No 61 annexed to the Final Act.

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repudiate its predecessors adhesion to the Protocol, instead adopted a unilateral declaration: having regard to the tradition of Solidarity, Poland fully respects social and labour rights as established by Union law and, in particular,
those reafrmed in Title IV of the Charter.238 The UKs Labour Government
gave no such ground, much to the chagrin of the British trades union.239
How should we approach this Protocol? Again, our answer depends on the
interaction between a blend of various factors: not only interpretation of the
Protocols own clumsy text per se, but also the potential impact on Poland and
the UK of the case law on fundamental rights as general principles of Union
law pursuant to Article 6(3) TEU, which in turn must be considered in tandem
with our previous discussion about how to construct a workable relationship
between the Courts case law and the legal effects of the revised Charter as a
whole. And again, this leads to several possible outcomes.
For example, the Court could decide simply to treat the Protocol as it has
often been presented politically: it operates as an opt-out for Poland and the
UK from certain aspects of the Charters legally binding status; as such, its
derogating effects should not be undermined by recourse to the silver tongued
interpretation of meddling lawyers, nor bypassed by the invocation of other
legal devices (such as the general principles of Union law) capable of guaranteeing fundamental rights in a manner equivalent to the Charter itself. However, that approach would lead to the peculiar situation that the Union offers
certain supposedly fundamental rights to its citizens only so long as they are
resident in 25 of its 27 Member States a prospect which might seem to undermine the very concept of basic freedoms which is meant to lie at the heart
of a common legal heritage for Union citizens.240 Avoiding that outcome is a
perfectly legitimate objective but how best to achieve it?
One possibility would be to focus on various recitals in the Protocols very
own preamble: the Charter merely reafrms rights and principles which already exist under Union law, without creating any new ones; this Protocol is
without prejudice to the other obligations devolving upon Poland and the UK
under the Treaties and Union law generally. Those recitals are highly suggestive of the following, more radical approach. Even accepting that the Protocol
is intended to be, and could actually serve as, an opt-out from certain of the

238. Declaration No 62 annexed to the Final Act.

239. See the resolution adopted at the Trades Union Congress (September 2007) expressing
bitter disappointment at the UK Governments position in relation to the Charter of Fundamental
Rights (available via www.tuc.org.uk). In the same resolution, the TUC called upon the Government to hold a referendum on the TL, though it refused to back another motion calling for a no
campaign should such a referendum be held.
240. A view shared by the European Parliament in its opinion on the IGC mandate (Resolution of 11 July 2007, para 12).

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full legal effects of the revised Charter, the relevant Charter provisions merely
codify fundamental freedoms which already exist, in particular, as general
principles of Union law.241 So, whatever the Protocol says and actually achieves
within its own limited eld of application, an equivalent range and level of
fundamental rights protection will be assured, through the general principles
of Union law, which remain fully binding upon and justiciable within Poland
and the UK whenever those Member States act within the scope of the Treaties.
This approach clearly has the merit of promoting a universal standard of
fundamental rights protection for all Union citizens. However, it implies treating the Protocol in a relatively abrasive manner, and thus at the risk of inviting
accusations that an important element of the political bargain underpinning the
TL has been blatantly undone by the Court. Moreover, it resurrects the problems associated with a dual system of human rights protection within the
Union legal order: 25 countries are governed by the Charter; two Member
States by the general principles, or rather, by the Charter in certain situations,
by the general principles in others. In addition, this approach also complicates
the broader debate about the optimum interaction between the general principles and the revised Charter: if, in our eagerness to scupper the machinations
of Poland and the UK, we resort to the principle that the Courts case law can
play an active role in protecting fundamental rights even in certain specic
situations which should otherwise be governed by the Charter (and thus the
Protocol), that would make it very difcult to assert, more generally, that the
revised Charter should act as the primary instrument for fundamental rights
review within the Union, while the general principles perform a purely residual role in accommodating future and unforeseen challenges.
Another possibility for neutralizing the impact of the Protocol would be to
recall the general principle, familiar across national and international human
rights law, that any instrument seeking to delimit the effects of a written bill of
fundamental rights must be strictly construed. If this Protocol is intended to
derogate from the full binding effects of the Charter, one may insist that it do
so clearly and unambiguously; otherwise, it should be interpreted in the manner most compatible with the full extent of human rights protection sought by
the Charter (and which the text can reasonably sustain). In that regard, one
could draw attention to another combination of the recitals contained in the
Protocols very own preamble: the Charter merely reafrms rights and principles which already exist under Union law; this Protocol seeks to clarify cer-

241. See, in particular, Viking Line and Laval un Partneri, both cited supra note 228, where
the ECJ recognized the right to collective action, including the right to strike, as a general principle of Community law.

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tain aspects of the Charters application, in particular, in relation to Polish and

UK law and its justiciability within these two Member States. Those recitals
are highly suggestive of an alternative, less radical but equally effective analysis: the Protocol is not intended to have any novel legal effects, only to clarify
the full implications of the legal obligations imposed by Union law, apparently because the populations of Poland and the UK have particular anxieties
that call for an extra effort of illumination.
Consider, for example, Article 1(1) of the Protocol. That provision would
best be interpreted as stating the obvious: that the Charter does not extend the
possibility of judicial review of Polish / British law into situations which fall
altogether outside the scope of the Treaties. In other words, Article 1(1) serves
to debunk the myth that the Charter is intended effectively to usurp the ECHR
and act as a universally applicable bill of rights, divorced from the division of
competences between the Union and its Member States, and from the distinction between the Member States acting within or outside the scope of Union
law.242 Conversely, however, Article 1(1) does not prejudice the jurisdiction of
the Union or national courts in situations that do indeed fall within the scope
of the Treaties, on the basis of the revised Charter qua codication of the existing acquis.243 If the Protocol had wanted actively to diminish the possibilities
for judicial review, it should have used much stronger language: for example,
that the Union / national courts are hereby divested of their jurisdiction to
carry out judicial review in respect of Polish / British law, even when those
Member States are acting within the scope of the Treaties, on the grounds of
incompatibility with the rights and principles now embodied in the Charter.244
When it comes to Article 1(2) of the Protocol, that provision also emerges
as a largely declaratory text: it rules out the justiciability of the Title IV provisions to the extent that they might create directly effective individual rights;
but none of the Title IV provisions actually purport to confer freestanding
justiciable rights in any case. In fact, the Title IV provisions are all based
explicitly or implicitly on the idea that the rights set out therein shall be exercised within the scope and under the conditions provided for by Union or
national implementing measures.245 As Article 1(2) afrms, the binding effect

242. Cf. Art. 6(1), second para TEU; and also Declaration No 1 annexed to the Final Act.
243. In keeping with the above argument, which treats the general principles of Union law
as relevant only in a residual category of cases, not as a truly parallel system of fundamental
rights protection.
244. Or with the general principles of Union law as applicable in the residual category of
cases.
245. Explicitly as with, e.g. Art. 27 on workers rights to information and consultation; Art.
28 on collective bargaining and action; Art. 30 on unjustied dismissal. Implicitly, on the basis
of Art. 52(2) of the Charter, as with, e.g. Art. 31 on fair and just working conditions. Similarly

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and justiciability of any national implementing legislation is obviously inherent within the domestic legal system; however, as the preamble to the Protocol
recalls, any relevant Union implementing measures will remain binding on
and justiciable within Poland / the UK as such and indeed, take priority over
conicting national provisions in accordance with the usual principle of supremacy.246 In fact, Article 1(2) appears little more than a partial restatement,
for the benet of Poland and the UK, of the distinction between the legal effects of rights and principles applicable to the Charter as a whole under Article
52(5) thereof.247
Moving on to Article 2 of the Protocol, similar interpretative techniques
suggest that its legal effects are also rather minimalist. To the extent that a
Charter provision refers to national law, it shall only apply to Poland or the UK
insofar as that provision is already recognized under national law. Fair enough
but equally, one might point out, to the extent that a Charter provision also
or instead refers to Union law,248 it will apply to Poland and the UK to the full
degree demanded by any applicable Union secondary acts, the binding nature
and direct effect of which remains unaffected by Article 2 of the Protocol, and
if necessary will override any conicting provisions of national law.
It is therefore possible to interpret the Protocol effectively out of existence,
without adversely affecting the legal position of Poland or the UK under Union
law. This approach perhaps best reects the understanding that the Protocols
primary purpose is to serve as an effective political response to a serious failure of public discourse. Indeed, the Protocol emerges as a fantasy solution to
a fantasy problem: the Charter is not actually a serious threat to UK labour
law; for its part, the Protocol is not really an opt-out from anything. Or at least,
whatever limits Union law imposes upon the degradation of employment prowith Art. 37 on environmental protection, and Art. 38 on consumer protection, derived from the
relevant integration clauses contained in the Treaties, which are not intended to be enforceable
per se: see Arts. 6 and 174 EC / Arts. 11 and 191 TFEU as interpreted in Case C-341/95, Bettati,
[1998] ECR I-4355; Case C-284/95, Safety Hi-Tech, [1998] ECR I-4301; and Art. 153 EC / Art.
12 TFEU as interpreted in Case C-233/94, Germany v. Parliament and Council, [1997] ECR
I-2405.
246. E.g. consider the relationship between Art. 27 of the Charter and Directive 2002/14 on
information and consultation of workers, O.J. 2002, L 80/29. Or between Art. 31 of the Charter
and Directive 89/391 on the introduction of measures to encourage improvements in the safety
and health of workers at work, O.J. 1989, L 183/1, or Directive 93/104 concerning certain aspects of the organization of working time, O.J. 1993, L 307/18.
247. Even if it were arguable that Art. 1(2) of the Protocol was indeed intended to go further
than Art. 52(5) of the Charter, ruling out the justiciability of Title IV provisions even as tools for
the correct interpretation of any applicable Union / national implementing measures, the ambiguous drafting is hardly compelling enough to oblige the judges to construe the text in that
manner.
248. Either expressly or by virtue of Art. 52(2) of the Charter.

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tection under UK law derive from the Treaties, Union secondary measures and
(possibly) the general principles of Union law regardless of the Charter, or
the Protocol. More fundamentally, this approach also has the merit of preserving a coherent, workable system of fundamental rights protection based on
the primacy of the Charter and a purely residual role for the general principles
which will apply in full to all 27 Member States of the Union.
7.3. Accession to the ECHR
Despite all these difculties, it would be wrong to give the impression that the
TLs main contribution to the protection of fundamental rights under Union
law is to render the system more complex, ignoring the signicant gains which
will indeed be made under the revised Treaties: not only incorporation of the
Charter, but also (as we shall see shortly) changes to the jurisdiction of the
Union courts so as to enable them better to safeguard fundamental rights, in
particular, as regards access to justice.249
Another important reform is contained in Article 6(2) TEU, which imposes
upon the Union an obligation to accede to the European Convention on Human Rights (though it is expressly provided that such accession shall not affect
the Unions competences as dened in the Treaties).250 The implications and
modalities of Union accession to the ECHR are too well-rehearsed to warrant
another airing here.251 Sufce to say that, by overcoming the legal objections
to accession rst identied by the Court in Opinion 2/94,252 the TL paves the
way for an important series of additional fundamental rights guarantees under
Union law: for example, a more direct means of challenging the infringement
of fundamental rights by primary Treaty provisions than that currently offered
by the Matthews and Bosphorous jurisprudence;253 and the sort of external
scrutiny by the Strasbourg Court of the ECJs own approach to fundamental
rights interpretation which is already taken for granted, in respect of their own
national supreme courts, by the domestic legal orders of every Member State.
Before those gains can be realized, of course, the Union will have to work with

249. Sections 8.2 and 8.3.

250. On the accession procedure itself, see Art. 218(8) TFEU. Note also the provisions of the
Protocol relating to Art. 6(2) TFEU on the Unions accession to the ECHR; and of Declaration
No 2 annexed to the Final Act.
251. See further, e.g. Alston (ed), The EU and Human Rights (OUP, 1999); Turner, Human
Rights Protection in the European Community: Resolving Conict and Overlap Between the
European Court of Justice and the European Court of Human Rights, 5 EPL (1999), 453.
252. Opinion 2/94, [1996] ECR I-1759.
253. Matthews v. United Kingdom, Judgment of ECtHR, 18 Feb. 1999; Bosphorous v. Ireland, Judgment of ECtHR, 30 June 2005.

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the Council of Europe to overcome the institutional barriers to accession built

into the framework of the ECHR itself.254

8. The Union judiciary

8.1. Reforms to judicial architecture
The most obvious change to the Unions judicial system is contained in Article
19(1) TEU: the Court of Justice of the European Union shall include the
Court of Justice (currently the Court of Justice of the European Communities),
the General Court (currently the Court of First Instance of the European Communities) and any specialized courts (currently designated judicial panels as
introduced by the Treaty of Nice).
Two further points are worth noting. First, Articles 253 and 254 TFEU
would require the Member States to consult a panel, before appointing judges
and advocates general of the Court of Justice or the General Court, for its
opinion on candidates suitability for ofce. According to Article 255 TFEU,
that panel is to comprise seven persons chosen from among former members
of the Court of Justice and the General Court, members of national supreme
courts and lawyers of recognized competence, one of whom is to be proposed
by the European Parliament. The Council is to lay down the panels operating
rules and appoint its members. Although the panels views will not be binding
on the Council, it is anticipated that this new layer of scrutiny will dissuade
Member States from nominating potentially inappropriate persons for senior
judicial ofce, and thereby contribute to the maintenance of high levels of
competence within the Union courts. In any case, the new appointments procedure should not be viewed with suspicion as a rst step towards greater politicization of the Union judiciary: the nature of the panel itself hardly harks in
the direction of the US Senates conrmation hearings for appointing Supreme
Court justices; surely the constitutional culture of Europe in general, and the
EU in particular, frowns upon the selection of Union judges on blatantly political grounds. If anything, the new panel should reinforce that culture still
further.255

254. For discussion, see Council of Europe Steering Committee for Human Rights, Study of
Technical and Legal Issues of a Possible EC/EU Accession to the European Convention on Human Rights (Report Adopted on 28 June 2002) DG-II(2002)006. Note Protocol 14 to the ECHR
(agreed in 2004), which expressly provides for the EU to accede to the ECHR, though without
determining the necessary conditions and modalities.
255. Cf. Barents, The Court of Justice in the Draft Constitution, 11 MJ (2004), 121.

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Secondly, as part of a deal to win Polish approval for the TL, Declaration
No 38 annexed to the Final Act provides that, should the Court of Justice request that the number of advocates general be increased by three (to eleven),
the Council will agree to such an increase; in that event, Poland will join Germany, France, Italy, Spain and the UK in having a permanent advocate general, rather than taking part in the rotation system. Increasing the number of
advocates general makes sense from the point of view of the Courts backbreaking workload, albeit at the risk of undermining the coherence of the advice offered to the Court by its advocates general; in any case, it seems eminently sensible that Poland as one of the larger Member States, comparable
in size to Spain, and certainly the largest of the ex-Communist legal systems
now represented within the Union should acquire a permanent advocate general, if and when the number rises.
8.2. Jurisdiction: Various reforms
The Unions basic judicial architecture is not signicantly modied by the TL;
however, there are several changes to the detailed jurisdiction of the Union
courts.256
For example, the procedure for imposing sanctions upon defaulting Member States within the context of enforcement proceedings would be simplied
in two ways.257 First, where the Member State has already been found by the
Court to be in breach of its obligations, the Commission would no longer be
required to issue a reasoned opinion, only to give the Member State an opportunity to submit its observations. Secondly, where enforcement proceedings
relate to an alleged failure to notify domestic measures transposing a directive
adopted under a legislative procedure, the Commission would be able in its
initial application to the Court to request the imposition of a nancial penalty.258
There would be a signicant extension of the Courts jurisdiction within the
Area of Freedom, Security and Justice: the limitations on preliminary references under current Title IV, Part Three EC would be removed; the extensive

256. See further, e.g. Tridimas, The European Court of Justice and the Draft Constitution:
A Supreme Court for the Union? in Tridimas and Nebbia (Eds.), EU Law for the Twenty-First
Century (Volume 1) (Hart Publishing, 2004); Arnull, From bit part to starring role? The Court
of Justice and Europes Constitutional Treaty, 24 YEL (2005), 1.
257. See Art. 260 TFEU.
258. This provision should be understood as referring to breach, not of the purely procedural obligation to notify implementing measures, but rather of the substantive duty to transpose
directives fully and properly into national law: see further, e.g. Dougan, op. cit. supra note 10,
788.

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restrictions applicable to the Courts jurisdiction to hear preliminary references, actions for annulment and actions for non-contractual liability under
existing Title VI TEU would likewise be erased.259 However, the Courts jurisdiction as regards pre-existing Third Pillar acts would remain subject to the
current Treaty provisions for a ve-year transitional period following the entry
into force of the TL.260 Moreover, Article 276 TFEU would continue to exclude the Courts ability, when exercising its powers in the eld of PJC, to
review the validity or proportionality of the activities of national law-enforcement agencies, or relating to the Member States responsibilities with regard
to the maintenance of law and order, or to the safeguarding of internal security.261 In any case, under the jurisdiction to deliver preliminary rulings, Article
267 TFEU would expressly provide that, as regards cases involving a person
in custody, the competent Union court must act with the minimum of delay
presumably in accordance with the accelerated and urgent procedures provided for under the Courts Rules of Procedure.262
Article 275 TFEU will continue to exclude the Courts jurisdiction over
both the Treaty provisions relating to the CFSP and any acts adopted on the
basis of those provisions. However, the Court will be able to rule in proceedings, based on Article 40 TEU, designed to ensure that implementation of the
CFSP does not affect the Unions competences elsewhere under the Treaty (or
vice versa);263 and to hear actions for annulment against decisions imposing
restrictive measures upon natural or legal persons adopted by the Council pursuant to the CFSP.264
In fact, the combined effect of these reforms will be a considerable improvement in the Courts ability to review the imposition of restrictive measures upon individuals.265 Under the current Treaties, CFSP measures identifying individuals or groups for the imposition of restrictive measures are not
amenable to judicial review by the Union courts.266 As regards external indi-

259. See further, e.g. Peers, EU Justice and Home Affairs Law (OUP, 2nd ed, 2006) Ch 2;
Claes, Judicial protection in the Area of Freedom, Security and Justice: Passing the hot potato? in Schneider (Ed.), Migration, Integration and Citizenship: A Challenge for Europes Future Volume II (Forum Maastricht, 2005).
260. Section 9.2.
261. Cf. existing Art. 35(5) TEU.
262. See Art. 104a of the Courts Rules of Procedure on accelerated references, and Art.
104b on urgent references (as introduced by O.J. 2008, L 24/39).
263. Section 3.
264. See Chapter 2 of Title V TEU, together with Arts. 215 and 275 TFEU.
265. See further, e.g. Spaventa, Fundamental what? The difcult relationship between foreign policy and fundamental rights in Cremona and de Witte (Eds.), EU Foreign Relations
Law: Constitutional Fundamentals (Hart Publishing, 2008).
266. See the current extent of the ECJs jurisdiction over the TEU as set out in existing Art.
46 TEU.

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viduals / groups, those CFSP measures are implemented by First Pillar regulations. The latter are subject to judicial scrutiny, albeit within the limits imposed
by the doctrine of circumscribed powers recognized by the CFI in Yusuf
(though that doctrine is currently being considered on appeal by the ECJ).267
As regards internal individuals / groups, restrictive measures are imposed
by Third Pillar acts, which cannot be directly impugned by natural or legal
persons. The Court afrmed in SEGI that it does possess jurisdiction to review
any such act (whatever its formal designation, for example, as a common
position) at the request of a competent national court;268 however, this is of
little value in the case of Member States which have refused to accept the
Courts jurisdiction to deliver preliminary rulings under the Third Pillar.269
Under the revised Treaties, by contrast, the Court will have jurisdiction over
all Union acts imposing restrictive measures on individuals: both the CFSP
decision identifying the relevant individuals;270 and the implementing regulation actually imposing restrictions, regardless of whether the situation is external or internal.271
Finally, the Courts limited jurisdiction to conduct judicial review in situations where a Member State has been the subject of a fundamental rights determination, as currently provided for under existing Articles 7 and 46 TEU,
would be retained as Article 269 TFEU: such actions are admissible only at the
suit of the relevant Member State and only as regards respect for the procedural conditions set out in the Article 7 TEU.
8.3. Jurisdiction: Action for annulment
The changes agreed during the constitutional reform process as regards the
action for annulment Article 263 TFEU under the revised Treaties warrant
special attention.

267. Case T-306/01, Yusuf v. Council and Commission, [2005] ECR II-3533; on appeal in
Case C-415/05, Al-Barakaat, (Opinion of 23 Jan. 2008; judgment pending). Similarly: Case
T-315/01, Kadi v. Council and Commission, [2005] ECR II-3649; on appeal in Case C-402/05,
Kadi, (Opinion of 16 Jan. 2008; judgment pending). See also, e.g. Case T-253/02, Ayadi, [2006]
ECR II-2139; Case T-228/02, Organisation des Modjahedines du peuple dIran, [2006] ECR
II-4665.
268. Cases C-354/04 & 355/04, SEGI, [2007] ECR I-1579. Presumably this jurisdiction is
also subject to whatever limits are imposed by the Yusuf case law.
269. See further, e.g. Davies, Segi and the future of judicial rights protection in the Third
Pillar of the EU, 14 EPL (2008), (forthcoming).
270. In accordance with Art. 275 TFEU, which refers explicitly to decisions adopted by
the Council on the basis of Chapter 2 of Title V TEU a formulation which is clearly intended to cover the parent CFSP act as well as any subsidiary implementing regulations.
271. Under Arts. 215 and 75 TFEU (respectively). Again, presumably this jurisdiction is
subject to whatever limits are imposed by the Yusuf case law.

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The Courts jurisdiction is extended to cover acts of the European Council

which are intended to produce legal effects vis--vis third parties.272 Annulment actions will also be permitted against the wider category of Union bodies, ofces or agencies established by or pursuant to the Treaties, again where
their acts are intended to produce legal effects vis--vis third parties.273 The
Committee of the Regions will acquire semi-privileged applicant status, i.e.
able to bring annulment actions for the purposes of protecting its own
prerogatives;274 and also in respect of legislative acts for the adoption of which
the TFEU provides that the Committee should be consulted, specically on the
grounds that such acts infringe the principle of subsidiarity.275 As we have already seen, national parliaments (through the medium of their Member States)
will also enjoy standing to seek the annulment of Union legislative acts on
subsidiarity grounds.276
Perhaps the most signicant reform relates to the standing of natural and
legal persons to bring actions for annulment. As is well known, the Court currently adopts a very strict approach to the locus standi of non-privileged applicants under Article 230(4) EC, in particular, as regards the denition of
individual concern. In most cases, applicants will be expected to bring an
action before their national courts; the latter will then make a preliminary reference under Article 234 EC where they harbour serious doubts as to the validity of the disputed Community act.277 This creates a problem of access to justice particularly as regards so-called self-executing Community acts, whose
full legal effects do not depend upon the adoption of national implementing
measures; in the absence of such a measure, the national courts of various
Member States may refuse to consider the applicants request for a preliminary reference to Luxembourg. In cases such as UPA and Jgo-Qur, the
Court of Justice was asked, but refused, to reconsider its position; and indeed,
suggested that the proper solution lay with a revision of the Treaty itself.278

272. Art. 263(1) TFEU. Cf. the extension of actions for failure to act to cover the European
Council: Art. 265 TFEU.
273. Cf. Art. 263(5) TFEU, which provides that acts creating Union bodies and agencies
may lay down specic conditions and arrangements concerning actions brought by natural or
legal persons against acts of these bodies, ofces or agencies intended to produce legal effects
in relation to them. Note also the extension of actions for failure to act to cover Union bodies,
ofces and agencies: Art. 265 TFEU.
274. Art. 263(3) CT.
275. Art. 8 of the Protocol on the application of the principles of subsidiarity and proportionality.
276. Section 6.3.
277. See further, e.g. Arnull et al., op. cit. supra note 11, Chapts. 13 and 14.
278. Case C-50/00, Unin de Pequeos Agricultores (UPA), [2002] ECR I-6677; Case
C-263/02 P, Jgo-Qur, [2004] ECR I-3425.

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That invitation was accepted by the Convention which drafted the Constitutional Treaty, and its proposals are now nally embodied in Article 263(4)
TFEU: any natural or legal person may institute proceedings against an act
addressed to that person or which is of direct and individual concern to them,
and against a regulatory act which is of direct concern to them and does not
entail implementing measures.279
This new provision has the merit of codifying case law such as Extramet
and Cordorniu, according to which the strict legal categorization of the disputed act (as a decision, regulation or even directive) is not in itself determinative of the claimants standing.280 But beyond that, on any reading, Article
263(4) TFEU is a minimalist solution to the problem of access to justice for
natural and legal persons: the individual concern requirement is retained for
all cases except self-executing regulatory acts. Yet despite its crucial importance in delimiting the extent to which direct access to judicial review has
been liberalized under Article 263(4) TFEU, the concept of a regulatory act
is not dened anywhere in the revised Treaties. The ordinary, natural meaning
of that phrase would be any binding act of general application, whether legislative or non-legislative in nature. However, it seems that the Convention
which originally drafted these reforms intended the phrase regulatory act to
refer only to non-legislative measures; Union legislative acts, even if self-executing, would remain subject to the individual concern requirement.281 That
would be a minimalist solution indeed: after all, the disputed measure in UPA
itself would be classied under the revised Treaties as a legislative regulation
(adopted under the current Treaties by the equivalent of a special legislative
procedure, under the revised Treaties by the ordinary legislative procedure);
the fact that that regulation was self-executing, and the competent national
court refused on that basis to recognize any standing under domestic law to
seek a preliminary reference, implies that the claimant in UPA would have
been no better off post-TL than it was before.282
The rationale behind the Conventions restrictive understanding of its own
phrase regulatory acts appears to have been the idea that measures adopted
279. See further, e.g. Usher, Direct and individual concern: An effective remedy or a conventional solution?, 28 EL Rev. (2003), 575; Dougan, op. cit. supra note 10, 763; Schwarze,
The legal protection of the individual against regulations in European Union law, 10 EPL
(2004), 285.
280. Case C-358/89, Extramet, [1991] ECR I-2501; Case C-309/89, Codorniu, [1994] ECR
I-1853. Similarly, Art. 264 TFEU codies the Courts case law on upholding the legal effects of
void acts, e.g. Case C-271/94, Re Edicom Decision, [1996] ECR I-1689.
281. See CONV 636/03, p. 8; CONV 734/03, p. 20.
282. Cf. Usher, op. cit. supra note 279, 599; Koch, Locus standi of private applicants under
the EU Constitution: preserving gaps in the protection of individuals right to an effective remedy, 30 EL Rev. (2005), 511.

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by the Union legislature, which stand at the summit of the Unions new hierarchy of secondary norms, should be relatively more cushioned against the
possibility of challenge by natural and legal persons. However, that rationale
is seriously awed in several ways. First, the problem addressed by the Convention was not that of access to justice per se, only of access to justice via the
direct action for annulment rather than the indirect preliminary reference. If
the hierarchy of norms approach were to be pursued consistently, it would
imply restricting the ability of natural and legal persons to challenge the validity of Union legislation by any means. As it stands, the Convention understanding would lead to the result, inconsistent by its very own criteria, that
Union legislative acts are indeed shielded from challenge under Article 263(4)
TFEU, but may still be left wide open to judicial review by way of a preliminary reference under Article 267 TFEU, depending on the arbitrary factor of
how far national rules on standing will permit such indirect actions to proceed.
Secondly, and perhaps more fundamentally, the Convention understanding
borrows from an approach developed in the national constitutional systems:
there, it is true that access to the courts often becomes more restrictive as one
moves up through the hierarchy of norms; thus, in many jurisdictions, the ability to challenge the legality of primary legislation is relatively limited or even
non-existent. However, the rationale for such restrictive standing rules does
not derive from the hierarchy of norms per se, but rather from the system of
democratic accountability that is assumed to underpin it: the citizen nds it
more difcult to challenge rules enacted by the democratically elected legislature, as compared to measures adopted by the unelected executive authorities.
When that argument is transplanted into the particular constitutional context
of European integration, it probably begins to run against recognizing any
special treatment as regards access to justice for acts of the Union legislature,
whose institutions clearly do not enjoy the same degree of democratic legitimacy as their domestic counterparts. If anything, one might argue that the rule
of law through the medium of effective judicial review, directly at the behest
of the citizen, in respect of all Union measures, legislative as well as nonlegislative plays an even more important role in legitimizing the existence
and exercise of Union power than it does within the ordinary national legal
systems.
Thirdly, it should be recalled that, having regard to the applicable decisionmaking procedures and the substantive nature of the relevant measures, the
distinction between legislative and non-legislative acts as drawn in the revised
Treaties is often formalistic and sometimes even arbitrary.283 To insist that such
283. Section 5.3.1.

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a awed distinction should now perform a crucial role in determining the

scope of access to justice under Article 263(4) TFEU would merely serve to
magnify that formalism and arbitrariness still further.284
One hopes that the combined effects of the ratication crisis and the 2007
IGC will create enough distance for the Court to feel free from any sense of
obligation to follow the Conventions narrow but awed understanding of
regulatory acts. But it is probably hoping too much to argue that the TLs
strengthening of the concept of the Union as an organization of limited competences, against the background of obviously conditional or even tenuous
popular support for the integration process, will persuade the Court to broaden
as far as possible access to judicial review, simply by rewriting its own restrictive case law on individual concern. The best one can realistically expect is
that the Court will adopt a broad denition of regulatory acts under Article
263(4) TFEU so as to dispense with the individual concern requirement as
regards all self-executing Union measures of general application; then make
good use of the new provision contained in Article 19(1) TEU that Member
States shall provide remedies sufcient to ensure effective legal protection in
the elds covered by Union law so as to oblige national courts to accept bona
de requests for preliminary references by those natural and legal persons still
excluded from direct access to judicial review.285
Finally, one might note that the plea of illegality (to be found in Art. 277
TFEU) would be extended so as to cover not only regulations adopted by the
institutions expressly listed in current Article 241 EC, but any act of general
application adopted by an institution, body, ofce or agency of the Union. It
is clear from the expanded list of potential authors of the relevant acts that the
latter need not be legislative in nature; non-legislative acts of general application would also be capable of falling within the scope of Article 277 TFEU.

284. Cf. Dougan, op. cit. supra note 10; Barents, op. cit. supra note 255.
285. The Courts approach has tended so far only to encourage national courts to construe
their own standing rules, as far as possible, so as to permit indirect challenges to Community
measures to proceed to substantive consideration: see e.g. UPA, supra note 278; Jgo-Qur,
supra note 278; Case C-15/06, Regione Siciliana, [2007] ECR I-2591. See further, e.g. Dougan,
National Remedies before the Court of Justice: Issues of Harmonisation and Differentiation
(Hart Publishing, 2004) Ch 6; Corts Martn, Ubi ius, Ibi Remedium? Locus Standi of private
applicants under Article 230(4) EC at a European constitutional crossroads, 11 MJ (2004),
233.

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9. The Area of Freedom, Security and Justice

It seems appropriate, in this overview, to highlight the key features of the new
rules on the Area of Freedom, Security and Justice (AFSJ): not only because
of the increasing volume and importance of Union activity within this eld;
but also taking into account that the reforms (based largely on the provisions
of the CT) represent a very far-reaching overhaul when compared to the existing Treaty provisions; and since certain special provisions transitional as
well as structural applicable to the exercise of the Unions AFSJ competences deserve the attention of EU lawyers in general.286
9.1.

The general provisions on the Area of Freedom, Security and Justice

The current provisions of Title VI TEU (police and judicial cooperation in

criminal matters) would be amalgamated with the current provisions of Title
IV, Part Three EC (border checks, asylum, immigration and judicial cooperation in civil matters) so as to create a new Title V, Part Three TFEU.
Through this process, the AFSJ emerges with several new characteristics.
First, Title V provides a unied set of legal bases for comprehensive Union
action across the eld of justice and home affairs, including an explicit legal
basis for adopting directives on the denition of criminal offences and sanctions in areas already subject to harmonization measures;287 an express legal
basis for the eventual creation, out of Eurojust, of a European Public Prosecutors Ofce;288 and new default powers to adopt measures concerning passports, ID cards, residence permits etc, to promote the free movement of Union
citizens.289 Secondly, Union action under the new AFSJ would be conducted
through the newly unied set of legal acts; the specic instruments currently
available under the Third Pillar would be suppressed and measures adopted in
the eld of PJC would no longer be prohibited per se from having direct effect
within the national legal systems.290 Thirdly, the new AFSJ would see a signicant enhancement of the powers of the European Parliament, and the use of

286. See, for analysis of the Convention proposals, e.g. den Boer, Crime and the Constitution: A brief chronology of choices and circumventions, 11 MJ (2004), 143; and of the CT
provisions, e.g. Vogel, The European integrated criminal justice system and its constitutional
framework, 12 MJ (2005), 125.
287. Art. 83(2) TFEU. Cf. the existing position after Case C-176/03, Commission v. Council
(Environmental Crimes), [2005] ECR I-7879 and Case C-440/05, Commission v. Council (Ship
Source Pollution), judgment of 23 Oct. 2007, nyr.
288. Art. 86 TFEU.
289. Art. 77(3) TFEU.
290. Cf. existing Art. 34(2) TEU.

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QMV within the Council of Ministers: the ordinary legislative procedure

would become the standard decision-making process across the entire AFSJ.291
Fourthly, as we have seen, the new AFSJ would signicantly strengthen the
supervisory powers of the Court of Justice, particularly in the area of PJC.292
Finally, the abolition of the Third Pillar would see the elimination of the distinct provisions applicable to enhanced cooperation under existing Title VI
TEU, so that the entire AFSJ would be governed by the new rules on enhanced
cooperation applicable to all Union action outside the particular context of the
CFSP.293
Taken together, those reforms mean that the Unions power to act within the
AFSJ will be signicantly strengthened as compared to its competences under
the existing Treaties. Moreover, the quality of the Unions new powers will
considerably improve, for example, as regards democratic accountability and
the protection of individual rights.
Nevertheless, Title V would still manifest certain specic characteristics as
compared to other elds of internal Union action, particularly as regards PJC,
thus reecting the sensitivities which still surround the Unions involvement
in the eld of criminal law. First, the Commission would continue to share its
prerogative of legislative initiative in the eld of PJC: proposals may also be
brought forward by one-quarter of Member States.294 Secondly, certain Union
competences under the new AFSJ would remain subject to a special legislative procedure based on the Council acting unanimously, either after consulting the European Parliament,295 or with the latters consent.296 However, in
certain situations, failure to secure the required unanimity in the Council may
lead to a group of at least nine Member States being exceptionally authorized
to proceed with an enhanced cooperation on the basis of the draft act.297 Thirdly, even as regards certain legal bases governed by the ordinary legislative
procedure, it will be recalled that the revised Treaties provide for an emer-

291. Section 5.2.2.

292. Section 8.2.
293. See Title IV TEU and Title III, Part Six TFEU. Cf. existing Arts. 4040b and 4345
TEU.
294. Art. 76 TFEU. See section 5.2.1.
295. E.g. Art. 77(3) TFEU on default powers to facilitate the free movement of Union citizens; Art. 81(3) TFEU on measures concerning family law with cross-border implications; Art.
87(3) TFEU on operational cooperation between national law enforcement services.
296. E.g. Art. 86(1) TFEU on establishing a European Public Prosecutors Ofce.
297. I.e. as regards the establishment of a European Public Prosecutors Ofce, or operational cooperation between national law enforcement services (other than measures that constitute a development of the Schengen acquis). Contrast with the ordinary procedure for authorizing an enhanced cooperation under Art. 329(1) TFEU.

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gency brake mechanism.298 Where application of that emergency brake results in the vetoing of a draft act, it may again lead to at least nine Member
States being granted automatic authorization to establish an enhanced cooperation on the basis of the relevant proposal.299 Fourthly, the threshold for national parliaments to show a yellow card to a Union legislative proposal in
the eld of PJC, on the grounds that it breaches the principle of subsidiarity,
would be lowered to one-quarter.300 Finally, the Courts jurisdiction in respect
of PJC activities would still be limited in accordance with the terms of Article
276 TFEU.301
9.2. The transitional provisions on existing Third Pillar acts
An especially sensitive issue, addressed in particular by the 2007 IGC, concerned the legal status of Third Pillar acts already extant when the TL enters
into force. In this regard, Article 9 of the Protocol on Transitional Provisions
states that the legal effects of such pre-existing Third Pillar acts including the
exclusion of any direct effect for framework decisions and decisions should
be preserved until those acts are repealed, annulled or amended in accordance
with the revised Treaties.
In addition, Articles 10(1)-(3) of the same Protocol contain transitional rules
on the treatment of pre-existing Third Pillar acts. The basic effect of those
provisions is that, for a period of 5 years after the entry into force of the TL, in
respect of pre-existing Third Pillar acts, the Commission will not be able to
bring enforcement actions against Member States for failure to full their obligations; for the same period, the Court of Justice will continue to exercise
only its limited jurisdiction as currently provided for under existing Article 35
TEU including the total exclusion of jurisdiction to hear preliminary references from Member States which have refused to make a declaration voluntarily accepting the Courts involvement. The only concession is that, when a
pre-existing Third Pillar act is amended in accordance with the Treaties, the
Commission and the Court will assume their full powers under the Treaties in

298. I.e. judicial cooperation in criminal matters and the denition of criminal offences and
sanctions under Arts. 82(3) and 88(3) TFEU (respectively).
299. Section 5.2.4.
300. See Art. 69 TFEU and Art. 7(2) of the Protocol on the application of the principles of
subsidiarity and proportionality. See section 6.3. Note also the national parliaments involvement in the evaluation / scrutiny of certain Title V activities, e.g. Arts. 85 and 88 TFEU on Eurojust and Europol (respectively).
301. Excluding national law-enforcement agencies; cf. section 8.2 supra.

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respect of that act, as regards those Member States to which the act applies.302
From one perspective, this transitional regime might be seen as relatively
unobjectionable. It represents the price to be paid for persuading all the Member States to accept the eventual integration of existing Title VI TEU into the
full legal order of the new AFSJ. It might also be seen, in its historical context,
as a continuation of the pattern of gradual integration in the eld of justice and
home affairs begun at Maastricht and continued under Amsterdam and Nice.
But from another perspective, the transitional regime deserves serious criticism. The arrangements for judicial protection under the existing Third Pillar
are generally regarded as highly unsatisfactory, if not an outright breach of the
European Convention on Human Rights, particularly in respect of Member
States which have refused to accept the jurisdiction of the ECJ to deliver preliminary rulings.303 Having accepted the principle that the Court should assume full jurisdiction as regards PJC matters, can there be any good reason for
delaying that essential reform for a further period of 5 years?
In any case, the UKs red lines approach to the 2007 IGC has resulted in
additional provisions, peculiar to that Member State, dealing with the integration of existing Title VI TEU into the new AFSJ.304 At least 6 months before
the expiry of the 5 year transitional period contained in Articles 10(1)-(3) of
the Protocol on Transitional Provisions, the UK may notify the Council that it
refuses to accept the impending activation of the full enforcement powers of
the Commission and the jurisdiction of the Court of Justice in respect of preexisting Third Pillar acts. In that case, all pre-existing Third Pillar acts will
cease to apply to the UK upon expiry of the 5 year transitional period.305 However, the UK may subsequently notify the Council that it wishes to participate
in specic pre-existing Third Pillar acts, in accordance with the relevant provisions of the (amended) Schengen or Title V Protocol (as the case may be), and
with the full powers of the Commission and the Court under the Treaties applicable to the UK in respect of those acts.
This is the rst time a reform treaty has offered a particular Member State
not just the right to opt-out from the adoption of future measures in a given
eld, but also the right to repudiate its obligations under an entire corpus of
pre-existing measures. Read in combination with the right to opt back in again,
these provisions effectively give the UK freedom to pick-and-choose which
302. In which regard, consider Declaration No 50 annexed to the Final Act.
303. See, e.g. Spaventa, Remembrance of principles lost: On fundamental rights, the Third
Pillar and the scope of Union law, 25 YEL (2006), 153.
304. See Arts. 10(4)-(5) of the Protocol on Transitional Provisions.
305. With the exception of subsequently amended acts already applicable as such to the
UK.

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aspects of the pre-existing Third Pillar acquis it will continue to participate in.
It scarcely seems possible that the UK objects so strongly to the Court of Justice assuming full interpretative jurisdiction over certain pre-existing Third
Pillar measures that it would rather not be bound by those measures at all. But
perhaps it would be unfairly cynical to suppose that the UK wishes to use the
prospect of extending the Courts jurisdiction merely as an excuse for shaking
off particular legislative measures, already binding on the UK, but with whose
substance that Member State now disagrees. Perhaps these special provisions
on pre-existing Third Pillar acts were viewed by the UK primarily as a useful
means of differentiating the old CT from the new TL, as part of the Governments bid to avoid being forced into holding a popular referendum, but with
no real intention of later exercising its repudiatory opt-out in practice.
9.3. Amendments to the Schengen Protocol
Most of the amendments to the Schengen Protocol are purely technical, intended merely to update the text in the light of the current state of Union law.
However, more substantial amendments are envisaged for Article 5 on measures building on the Schengen acquis. In particular, Article 5(1) continues to
provide that, as regards initiatives to build on the Schengen acquis, where the
UK or Ireland does not notify its intention to participate in a given proposal,
the other Member States are authorized to engage in enhanced cooperation for
the purposes of adopting that proposal. However, a new Article 5(2) claries
that, where the UK or Ireland has already opted into an existing Schengen
measure pursuant to Article 4, and a new proposal is made to build on that act,
the UK or Ireland may then decide to opt-out of that proposal. In such event,
the Council may decide that the UK or Irelands original opt-in shall cease to
apply in whole or in part taking into account the need to retain the widest
possible measure of participation by the UK or Ireland without seriously affecting the practical operability of the Schengen acquis and while respecting
the latters coherence. The TL clearly anticipates that this de facto expulsion
mechanism may give rise to difcult political negotiations: if the Council fails
to reach a decision within the applicable deadline, the matter may be referred
to the European Council for resolution; if the European Council also fails to
reach a decision, the Commission itself is empowered to take appropriate action.306

306. See Arts. 5(3)-(5) of the amended Schengen Protocol.

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These amendments to Article 5 should be read against the background of

the two recent disputes in United Kingdom v. Council.307 Those cases raised
the question whether the unconditional opt-in for the UK or Ireland in respect
of new measures building on the Schengen acquis under existing Article 5(1),
applies only as regards proposals relating to existing measures in respect of
which the UK or Ireland has already exercised its conditional opt-in under
Article 4; or instead whether the right to opt-in under existing Article 5(1) applies as regards all proposals relating to existing Schengen measures, regardless of whether the UK or Ireland already participates in accordance with Article 4. The Court of Justice adopted the former interpretation: existing Article
5(1) indeed applies only to proposals to build upon an area of the Schengen
acquis which the UK or Ireland has already been authorized to take part in
pursuant to Article 4.
Does the structure of Article 5, as amended by the TL, affect that interpretation? In cases where the UK or Ireland already participates pursuant to Article
4, new Article 5(2) will apply and offers the Member State an unconditional
right to opt-out of the relevant proposal to build on the Schegen acquis (but
that also activates the Councils de facto power to expel the UK or Ireland
from the relevant parts of the existing Schengen acquis). So as not to render
Article 5(1) altogether redundant, the amended protocol must therefore mean
that, in cases where the UK or Ireland does not already participate pursuant to
Article 4, Article 5(1) will apply and offers that Member State an unconditional right to opt-in to the relevant proposal to build on the Schengen acquis
(though without any adverse consequences for the UK or Ireland should it
choose to remain outside, since it cannot be expelled from a measure it does
not participate in anyway). But that does not necessarily overrule the Courts
existing case law entirely. Advocate General Trstenjak had suggested that,
even if Article 5(1) were in principle capable of applying independently of
Article 4, then in order to safeguard the effet utile of the Schengen Protocol,
the UK or Irelands unconditional opt-in should only be possible as regards
measures building on the Schengen acquis which can be applied autonomously.308 That interpretation could still apply to the provisions of the Schengen
Protocol even as amended by the TL.

307. Case C-77/05, United Kingdom v. Council and Case C-137/05, United Kingdom v.
Council, judgments of 18 Dec. 2007, nyr.
308. Case C-77/05, United Kingdom v. Council, and Case C-137/05 United Kingdom v.
Council, Opinions of 10 July 2007.

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9.4. Amendments to the Protocol on the UK and Ireland

The main changes here concern the scope of the UKs and Irelands rights of
opt-out / opt-in. That system will be extended beyond its current eld of application (Title IV, Part Three EC) so as to cover the new AFSJ as a whole. As
a result, the UK and Ireland will acquire rights of opt-out / opt-in across several elds where they currently fully participate in Community / Union legislation. In particular, the opt-out / opt-in will extend to all measures in the eld
of PJC. Under the existing Title VI TEU, such measures are currently fully
binding on the UK and Ireland. Moreover, the opt-out / opt-in will also extend
to Union directives on the denition of criminal offences and sanctions in
elds already subject to harmonization measures.309 As conrmed by the Court
of Justice in the Environmental Crimes and Maritime Safety cases, at least
some such measures may currently be adopted under the First Pillar and as
such are again fully binding on the UK and Ireland.310 In addition, the opt-out/
opt-in will apply to any new competences conferred upon the Union under
Title V: for example, the default power to adopt measures concerning passports, ID cards, residence permits etc, to promote the free movement of Union
citizens.311
As well as those changes to the scope of the opt-out / opt-in system, it is
worth noting three further reforms as regards the actual substance of the UKs
and Irelands special rights. First, new provisions make clear that the opt-out /
opt-in system applies also to proposals / measures amending an existing measure already binding on the UK or Ireland. As with the parallel provisions of
the Schengen Protocol, however, where the UK or Ireland chooses to opt-out
of a proposal to amend an existing binding act, the Council may decide that the
previous opt-in in respect of the existing act shall cease to apply, in cases
where application of the relevant measure for other Member States would otherwise be rendered inoperable.312 Secondly, the UK or Ireland will not be
bound by the Unions data protection rules, as regards PJC acts in respect of
which the UK or Ireland does not participate.313 Thirdly, whereas Ireland has
waived any right to opt-out of Union measures imposing restrictive measures
against natural and legal persons pursuant to the new AFSJ,314 the UK has
merely declared its intention (voluntarily) to opt into all such acts.315
309.
310.
311.
312.
313.
314.
315.

Art. 83(2) TFEU.

Environmental Crimes case and Ship Source Pollution case, both supra note 287.
Art. 77(3) TFEU.
Art. 4a of the Protocol.
Art. 6a of the Protocol.
Art. 9 of the Protocol.
See Declaration No 65 annexed to the Final Act.

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One might observe that the combined effect of the various red line amendments and special provisions applicable to the UK is that that Member State
participates in the AFSJ to an even lesser degree under the Lisbon Treaty than
it does under the existing Treaties.316
9.5. Amendments to the Protocol on Denmark
There are three main changes to this Protocol. First, Denmarks opt-out will
again be extended beyond its current eld of application (Title IV, Part Three
EC) so as to cover Title V, Part Three TFEU as a whole. In particular, the
amended Protocol states that pre-existing Third Pillar acts which are amended
pursuant to the new provisions of Title V will continue to apply to Denmark in
their unamended form.317 Secondly, Denmark will not be bound by the Unions
data protection rules in respect of PJC activities.318 Thirdly, a new Article 8 of
the Protocol gives Denmark the possibility of abandoning its existing opt-out
in favour of a system whereby the Schengen acquis, and all measures adopted
to build upon it, will bind Denmark as a matter of Union (not merely international) law; in respect of all other measures adopted or proposed under Title V,
the position of Denmark would be governed by an opt-out / out-in system
equivalent to that applicable to the UK and Ireland (as amended by the TL).

10. Accession, withdrawal and amendment

10.1. Accession
The procedure for acceding to the Treaties, now contained in Article 49 TEU,
differs from the current system in several ways: prospective applicant States
must not only respect the Unions basic values, but also be committed to promoting them; the European Parliament and the national parliaments shall be
notied of any application for accession; the European Parliaments consent to
that application shall be given by a majority rather than absolute majority of
MEPs; there is also an explicit acknowledgment of the role performed by the
eligibility conditions agreed upon by the European Council.319 Beyond that,
316. By contrast, Ireland has signalled its intention to review its current position under the
AFSJ within three years of the TLs entry into force: see Declaration No 56 annexed to the Final
Act.
317. See Art. 2 of the Protocol.
318. Art. 2a of the Protocol.
319. Note also Art. 20(4) TEU: enhanced cooperation measures are not part of the acquis
which must be accepted by candidate countries.

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the basic accession process including conclusion of an accession treaty and

its ratication by the contracting states in accordance with their respective
constitutional requirements remains unaffected.
10.2.

Withdrawal

Even though the current Treaties have been concluded for an indenite period
and contain no express provisions permitting a Member State to exit the Union,
it is beyond doubt that politically and legally nothing can prevent a country
from seceding should it wish to do so. Nevertheless, a consensus emerged
early in the constitutional reform process that it would enhance legal certainty
by dening the right to withdraw in a more explicit fashion. According to Article 50(1) TEU, any Member State may decide to withdraw from the Union in
accordance with its own constitutional requirements. The procedure for withdrawal is then set out in Article 50(2)-(4) TEU. It involves, in particular, the
negotiation of an agreement between the Union and the Member State concerned, setting out the arrangements for the latters withdrawal and the framework of its future relationship with the Union. The agreement shall be negotiated in accordance with guidelines established by the European Council; it is
to be concluded by the Council, acting by QMV, with the consent of the European Parliament. The Treaties shall cease to apply to the relevant State as from
the date of entry into force of the withdrawal agreement or (failing that) two
years after the relevant States original notication of its intention to withdraw
(unless the European Council, in agreement with the relevant State, unanimously decides to extend this period).
It is expressly provided that representatives of the withdrawing State shall
not participate in the relevant discussions or decisions of the European Council or the Council. It is perhaps curious that there is no express bar on MEPs
from the withdrawing State taking part in the European Parliaments vote to
approve the withdrawal agreement. Perhaps that is intended to reect the institutional unity of the European Parliament, i.e. the idea that (like the Commission and the Court of Justice) it is an indivisible supranational organization. However, the preferable view would be that, once a Member State has
exercised its unilateral and unconditional right to withdraw from the Union,
there is no good reason to offer its MEPs the right to exercise any inuence (let
alone a potentially decisive one) over the agreement which will determine
future relations between that country and the Union.320

320. See further: Dougan, op. cit. supra note 4.

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In any case, pursuant to Article 50(5) TEU, should the withdrawing State
subsequently change its mind, its application for readmission will be treated
like any other accession to the Union.
10.3. Amendment
The ordinary procedure for revising the Treaties is contained in Articles
48(2)-(5) TEU. Any Member State, the European Parliament or the Commission may submit amendment proposals to the Council; those proposals shall
be forwarded to the European Council and notied to the national parliaments.
If the European Council, having consulted the European Parliament and the
Commission, decides (by simple majority) in favour of examining the proposals, it may convene a Convention charged with drawing up recommendations
for consideration by an IGC. However, the European Council may decide,
with the consent of the European Parliament, that the scale of the proposals
does not warrant a Convention, and proceed to dene for itself the terms of
reference for the IGC. In either event, the IGC shall determine the amendments by common accord, and they will enter into force after being ratied by
all the Member States in accordance with their respective constitutional requirements.321
In addition to that ordinary revision procedure, the revised Treaties also
contain several simplied revision procedures. We have already mentioned
the two passerelle clauses contained in Article 48(7) TEU, by which unanimity in Council may be converted into QMV, or a special legislative procedure may be upgraded to the ordinary one.322 In addition, Article 48(6) TEU
provides that the provisions of Part Three TFEU, containing the detailed legal
bases governing internal Union policies, may be amended (on a proposal from
any Member State, the European Parliament or the Commission) by unanimous decision of the European Council (after consulting the European Parliament and the Commission).323 That decision must then be approved by all
Member States in accordance with their respective constitutional requirements; and must not, in any case, increase the Unions existing competences
under the Treaties.
It is worth bearing in mind that certain decisions of constitutional signicance, which under the current system would require a fully-edged Treaty

321. If, after two years, four fths of the Member States have ratied the amendments and
one or more Member States have encountered difculties in ratication, the matter shall be referred to European Council.
322. See sections 5.2.3 and 5.3.1.
323. And the ECB, in the case of institutional changes in the monetary area.

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amendment, may be put into effect under the revised Treaties through acts of
the Union institutions alone: for example, the European Council decision determining the future composition of the European Parliament as regards the
allocation of MEPs between Member States.324 Nevertheless, it remains true
that in no case can the Unions fundamental constitutional arrangements be
amended without the unanimous agreement of its Member States.

11. Some overall reflections on the revised treaties

Having explored in detail many of the major reforms to the Unions primary
law contained in the Treaty of Lisbon, it is worth attempting some broader (but
necessarily still selective) assessment of the new settlement.
11.1.

The TLs black letter balance sheet

If one examines the TL purely on its own merits, it should surely be welcomed
as a signicant improvement on the existing Treaties, particularly as regards
the Unions effectiveness and accountability. Many of the problems which
prompted the constitutional reform process in the rst place complexities
and inconsistencies caused by the Unions ad hoc development, concerns
about the Unions capacity for decisive action resulting from successive enlargements, the desire for an institutional apparatus better capable of representing the popular will are comprehensively addressed.
On this very positive side, several reforms stand out as particularly valuable: the abolition of the Community as a distinct legal entity and the demolition of the pillar structure erected at Maastricht, so that the Unions basic constitutional footprint emerges more rationally than before; the reformulation
and continued expansion of QMV, so as to enhance the decision-making capacity of the enlarged Council; the reorganization of the CFSP and the introduction of the High Representative, so as to enable the Union to play a role in
world affairs more commensurate with its size and economic strength; the
triumph of co-decision, the guarantee of greater transparency in Council proceedings, the citizens initiative and the yellow card subsidiarity mechanism, which should all help carry the Union still closer to the democratic optimum that it is arguable any such supranational organization could realistically
hope to attain; incorporation of the Charter of Fundamental Rights, the possibility of accession to the ECHR, and the extended jurisdiction of the Court of
Justice, particularly in areas such as criminal cooperation and restrictive mea324. Art. 14(2) TEU. See section 4.3.

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sures, which considerably strengthen the legal framework for the protection of
individual rights; the diversied possibilities for amending the Treaties, such
as passerelle clauses and other simplied revision procedures, which should
make future adjustments to the Unions primary law less cumbersome to realize.
Unsurprisingly, there are also some negative entries on the TLs balance
sheet: the denition of QMV is surely excessively complex, though that is a
problem which will trouble ofcials and their skill on the calculator more than
it should bother the average citizen or legal commentator; more deserving of
serious criticism is the ve-year transitional period for the treatment of preexisting Third Pillar acts (including the UKs unilateral right to repudiate its
obligations under those measures); nor should we forget the Protocol on the
application of the Charter of Fundamental Rights to Poland and the UK a
veritable dogs dinner, and not only due to its abominable drafting.
But such eminently regrettable provisions are happily few and far between.
More common are those reforms which could have been executed with greater
panache: for example, how to demarcate the boundary which separates the
CFSP from the Unions other external competences in the absence of a clear
rule of preference such as that contained in existing Article 47 TEU; the division between legislative and non-legislative acts, which appears purely formal
in its conception and rather arbitrary in both its application and its potential
implications; the distinction between fully justiciable rights and partially justiciable principles in the Charter of Fundamental Rights, which seems to hinder more than it helps in clarifying the precise legal effects of incorporation;
the failure over successive stages in the constitutional reform process to satisfy the obvious demand for a clearer denition of regulatory acts within the
context of the action for annulment. In each such case, responsibility for resolving the ambiguities and ironing out the inconsistencies left behind by the
TL, as best one can, will fall ultimately to the Court of Justice.
Nevertheless, the TL does create other hostages to fortune which are not for
any judge to rescue. This is true, in particular, of the multiplication of institutional gros lgumes: European Council President, Commission President,
High Representative, European Parliament President (not to mention other
sectoral gures such as the Presidents of the European Central Bank and of the
Euro-Group Member States).325 With decision-making power fragmented
across so many potentially powerful ofces, there are fears that the TL might
have created a system with an in-built tendency to descend into crippling rivalries and institutional paralysis for example, pitting European Council President against Commission President here, and against High Representative
325. See Art. 2 of the Protocol on the Euro Group.

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there rather than to encourage clear and cooperative leadership in the general interest to deliver effective substantive policies capable of meeting the
Unions actual needs. At the very least, the Union seems to have travelled
further down a path already familiar in many Member States and other Western nations, of shifting the emphasis of government away from collective institutions and more towards individual personalities, so that the functioning of
the inter-institutional balance becomes overly dependent on the particular
qualities of a collection of transient ofce-holders, and thus prone to a process
of unpredictable and disruptive reconguration each time there is a change of
hands at one of the many helms.
11.2.

Intergovernmentalism resurgent?

Indeed, perhaps the most challenging questions opened up by the TL are concerned less with the interpretation of this or that provision in the formal text of
the new Treaties, and more with the latters broader role in providing the fundamental legal habitat within which the integration process adapts and evolves.
From that perspective, it is worth considering the post-TL balance between
supranationalism and intergovernmentalism the two polar forces whose constant cycle of confrontation and accommodation drives much of the EUs institutional and constitutional development. Unsurprisingly, the TL continues
the trend of balancing those forces one against the other: each step towards
greater supranational governance is counter-weighted by more effective checks
and balances to protect Member State prerogatives and ensure the Union remains responsive to domestic concerns.
On the one hand, as has often been observed, perhaps the largest gains from
the constitutional reform process have been reaped by the European Parliament. Through a combination of the extension of the ordinary legislative process across many more legal bases, increased budgetary powers particularly in
areas currently designated as compulsory expenditure, and greater powers to
control the exercise of Union executive power as regards delegated and implementing acts, the European Parliaments position emerges stronger than ever.
Indeed, in elds such as the common agricultural policy and the Area of Freedom, Security and Justice, as compared to the existing Treaties, the inter-institutional balance will be utterly transformed. Supranationalism has other trophies to brandish: for example, the extension of QMV within the Council, the
total reshaping of PJC, and a range of new shared and complementary competences in elds from energy to space and sport, all keep alive the spirit of ever
closer union.326
326. As referred to in the preambles to both the TEU and TFEU, and in Art. 1, second para
TEU itself.

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On the other hand, reforms such as the increased emphasis placed on the
principle of attributed powers, the yellow card system for monitoring the
principle of subsidiarity, and the generally more prominent role offered to the
national parliaments within the functioning of the Union, all demonstrate the
Member States exercise of greater control over the Unions institutions and
competences. Furthermore, liberalization of the conditions for enhanced cooperation, the retrenchment of variable geometry in elds such as economic and
monetary union and justice and home affairs, and ultimately the possibility for
withdrawal from the Union, illustrate that that control extends also to the degree of the Member States very participation in the integration process itself.
But the balance between supranationalism and intergovernmentalism is
most interesting when the legal provisions hint at certain potential futures
whose realization will depend ultimately upon political action. For that purpose, perhaps the most immediate variable concerns the degree to which the
ratication crisis and the 2007 IGC will galvanize the Member States to reafrm their role and potency as masters of the Treaties and ultimately signal a
resurgence of the intergovernmental element within the daily functioning of
the Union.
Consider, for example, the relative standing of the Commission and the
European Council, particularly in exercising responsibility for the Unions
strategic direction.
The Commission hardly jumps out of the TL as the main loser in the programme of institutional reform. After all, its chief prerogative the near monopoly over initiating the Unions legislative processes has survived unscathed (and indeed, been enshrined expressly in the Treaties for the rst time).
Moreover, certain amendments are intended to strengthen the basis for the
Commissions claim to power and its capacity for effective action: consider,
for example, the expectation that the character of future Commissions should
reect the results of the elections to the European Parliament; the fact that the
Commission will eventually reduce in size to a more compact College capable
of more cohesive decision-making;327 and the prospect that the High Representative, a Vice-President of the Commission, will perform a central role in
the Unions external policies in general and the CFSP in particular.
Further reection, however, suggests that such reforms may prove in certain
respects to be a poisoned chalice. For example, making the Commission ever
more responsive to and indeed reective of the political complexion of the
European Parliament might risk undermining one of the Commissions tradi-

327. A reform admittedly already envisaged by the existing Treaties: see Art. 213(1) EC as
amended by Art. 4 of the Protocol on enlargement of the European Union; and also (specically
as regards the period of entry into force) by the Treaty of Accession 2003.

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tional institutional strengths: its relative independence from the rough-andtumble of the ordinary left-right politics that still dominate public life within
and across the Member States. Of course, the inseparability of the technical
aspects of integration from broader choices of economic and social policy,
combined with the Unions ever expanding competences, have inevitably led
to a raising of the Commissions prole within the political arena. One need
only recall the impassioned and acrimonious debate surrounding the Services
Directive328 to appreciate that the Commissions institutional neutrality has
inherent limits. But any overt step towards politicizing the Commission carries the danger not of bolstering its democratic legitimacy, but actually of undermining it, i.e. by drawing attention away from the intrinsic merits of the
Commissions unique institutional position, and inviting observers to judge
the Commission instead by the standards of democratic representation and accountability which with the average citizen might feel more familiar, but which
the Commission itself could never (and should not) hope to satisfy.
At present, the interested citizen may at least appreciate that the Commission is intended to represent the collective interest in a neutral manner, a merit which in itself compensates for the democratic limitations of a non-elected
institution. It would do the Commission no favours if, as a result of the TL, a
substantial proportion of the Union population instead felt that a College
whose President was consciously graven in the image of the majority grouping
in the European Parliament would act as a partisan advocate for the interests
of their political adversaries in which event, being non-elected would become for the Commission an active liability. Particularly when exercising (for
example) its quasi-judicial enforcement powers against the Member States,
perceptions of the Commission could shift from guardian of the Treaties to
vanguard of a given political platform.329
The problem may well be exacerbated if one considers that, in this conscious effort to make the Commission appear more democratically responsive,
the Treaties have chosen as the relevant barometer of public opinion a body
which, although directly elected, is not necessarily very representative of the
population as a whole. Thanks to factors such as the consistently low turnout
at European Parliament elections, and their tendency to be treated as protest
votes against the domestic policies of the incumbent national governments,330
there is a risk that a Commission President chosen to chime with the majority
328. Directive 2006/123, O.J. 2006, L 376/36.
329. Note that Art. 17(3) TEU and Art. 245 TFEU guarantee the Commissions institutional
independence, rather than its political agnosticism.
330. See further, e.g. Blondel, Sinnott & Svensson (Eds.), People and Parliament in the
European Union: Participation, Democracy and Legitimacy (Clarendon Press, 1998); Schmitt
and Thomassen (Eds.), Political Representation and Legitimacy in the European Union (OUP,

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of MEPs will fail accurately to reect the true political sympathies of the
Unions citizens. With not only its traditional independence undermined, but
also its newfound democratic credentials built on shaky foundations, will the
Commission end up being doubly disadvantaged?
Reservations can also be expressed about the impact of reforms to the Commissions size on its standing within the inter-institutional balance. Even
though totally independent of the national governments, Commissioners are
nevertheless seen as an important element in maintaining the credibility of the
College within their country of origin, particularly among the smaller Member
States.331 The Commissions authority to order Germany to repay State aid
unlawfully granted to a failing national industry is bolstered by the presence of
a German commissioner in the College; or at least, the authority of that order
could be undermined by the absence of a German commissioner. The price of
a more cohesive Commission is greater vulnerability to the charge among certain Member States cheap and effective, however unjust, and surely tempting as a tool to serve short-term diplomatic ends, without thought to the longer-term damage it may inict that power in Brussels grows ever more
remote from or even alien to the interests of the citizen.332
Nor, from the Commissions perspective, is the High Representative an unreservedly positive asset. After all, the Treaties have chosen to resolve any
potential conict of institutional interest by making clear that the High Representatives loyalties lie ultimately with the Council, while the new European
External Action Service offers him / her the prospect of an effective power
base independent of the Commission itself.333 In the entirely likely event that
the Council and Commission continue their existing tendency to clash over the
precise boundary between the CFSP and ordinary external action, there is thus
a genuine risk of the High Representative coming to be viewed with suspicion
as something approaching a fth column, souring working relations with his
/ her fellow members of the College, and hampering the ability of the Commission as a whole to act coherently and effectively.334
1999); Steunenberg and Thomassen (Eds.), The European Parliament: Moving Toward Democracy in the EU (Rowan & Littleeld Publishers, 2002).
331. See further, e.g. Temple Lang, Checks and balances in the European Union: The institutional structure and the Community method, 12 EPL (2006), 127.
332. Contrast the nal TL reforms with the Conventions original proposals for two tiers
(voting and non-voting) of Commissioners: see Dougan, op. cit. supra note 10, 777779.
333. On the European External Action Service, see Art. 27 TEU. Note, in particular, that the
EEAS will be composed of ofcials from the General Secretariat of the Council, as well as from
the Commission, and of staff seconded from the national diplomatic services.
334. Note also the High Representatives relative independence from censure by either the
Commission President (Arts. 17(6) and 18(1) TEU) or the European Parliament (Art. 17(8) TEU
and Art. 234 TFEU).

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The threat to the Commissions position which emanates from reforms to its
own internal functioning is magnied when one then considers its standing
relative to that of the European Council, whose prole and power increase
signicantly under the revised Treaties. Indeed, the European Council perhaps
rivals the European Parliament in its debt to the TL: not only is it given formal
institutional status for the rst time, but also a range of quasi-constitutional
decision-making powers, as well as conrmation of its overall responsibility
for the Unions general interests and direction. Perhaps most importantly, as
we have seen, the creation of the semi-permanent Presidency could witness
the emergence of a new and potentially inuential power centre within the
institutional framework as well as a focus capable of rivalling the Commission President as the public face of the Union.335 The revised Treaties may
therefore facilitate a further shift in the strategic balance of power away from
the Commission and back towards the Member States, a trend which began
with the fall of Santer, so that even the Commissions formal prerogative of
legislative initiative may increasingly be exercised in practice under the constraints imposed by an invigorated European Council.
None of this is to deny, of course, that real problems of legitimacy and accountability also surround the European Council and its reformed Presidency.
The point is rather that, thanks to the intergovernmental momentum already
generated through the ratication crisis and the 2007 IGC, the European Council now enjoys an opportunity to consolidate and expand its already considerable inuence for better or for worse while the Commission risks emerging
under the revised Treaties with a more modest role in the inter-institutional
balance, less the motor of integration than a specialized bureaucracy.336
Another situation where the reassertion of Member State authority at a fundamental constitutional level might translate into a more prominent role for
intergovernmentalism within the daily functioning of the Union after the TL
comes into effect concerns the relationship between drafting Conventions and
IGCs in the ordinary revision procedure for future amendment of the Treaties
as provided for under Article 48 TEU.337 That ordinary amendment procedure
is clearly based on the model of the Convention on the Future of Europe, established by the Laeken Declaration, which was responsible for drafting the
original Constitutional Treaty. However, there are interesting questions about
how the experience of the ratication crisis might end up affecting the balance
of power within this amendment model. In particular, the Member States at the

335. Though such an outcome is far from assured: see section 4.1.
336. Cf. Barroso worried Commission could take a hit in new EU Treaty (www.euobserver.com on 9 Oct. 2007).
337. Section 10.3.

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2003/2004 IGC seemed to accept the Convention proposals as the starting

point for their own deliberations, and did not stray too far from the draft text
presented by the Convention when nalizing their own version of the Constitutional Treaty. That could have been interpreted as indicative of a new constitutional convention for the Union, i.e. that Treaty amendments drafted by a
Convention, comprising representatives from the Member State governments,
national parliaments, European Parliament and the Commission, and operating in a relatively transparent manner with the engagement of civil society,
enjoy a signicant degree of legitimacy; as such, they should only be tinkered
with at the subsequent IGC, and even then, only for very good reasons.338
Arguably, the ratication crisis and the functioning of the 2007 IGC have
blown apart any such emergent constitutional convention. At a supercial level, one can nd bemusement in the idea that the revised Treaties envisage an
amendment process which actually failed in practice, and that the TL itself
was drafted by a procedure which would not have complied with its very own
proposals one which has certainly been accused of amply displaying all an
IGCs worst characteristics of exclusionary, opaque and unaccountable decision-making.339 More fundamentally, the ratication crisis and the 2007 IGC
point to a very different power balance between a future Conventions proposals and the IGC convened to consider them, than might otherwise have emerged
had the CT entered smoothly into force. In particular, perhaps the Member
States will feel they should learn the lesson that it should not be taken for
granted that supposedly more representative and transparent Conventions will
produce draft amendments actually capable of commanding popular support.
One could speculate about other situations where the ratication crisis
might have an informal impact upon the Unions functioning: for example,
whether the Union institutions increased sensitivity towards national prerogatives might convert what is meant to be a yellow card into a de facto red
card for monitoring compliance with the principle of subsidiarity; or whether
the sense of intergovernmental power that imbued the 2007 IGC will dissolve
any remaining inhibitions about putting enhanced cooperation into practice,
and indeed transform it into a commonplace mechanism for accommodating
diverse Member State regulatory preferences. The underlying point, however,
remains the same: if the Member States feel that the tectonic plates have in338. See, for praise of the Convention method, e.g. Lenaerts and Gerard, op. cit. supra note
10. Cf. Craig, Constitutional process and reform in the EU: Nice, Laeken, the Convention and
the IGC, 10 EPL (2004), 653; Monjal, Le projet de trait tablissant une Constitution pour
lEurope: quels fondements thoriques pour le droit constitutionnel de lUnion europenne?,
40 RTDE (2004), 443.
339. See, e.g. House of Commons European Scrutiny Committee, European Union Intergovernmental Conference (35th Report of Session 20062007, published in October 2007).

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deed shifted, then our understanding of the Unions inter-institutional balance,

which derives not only from the primary law contained in the Treaties, but also
from the conventions which emerge from institutional practice, might also
have to accommodate a relative resurgence in intergovernmental inuence
within the functioning of the Union.
11.3.

Constitutionalism moribund?

A related but distinct question concerns the potential implications for the
Unions legal discourse of the express rejection, at the highest political level,
of an expressly constitutional basis for the integration process or, to be more
precise, the European Councils explicit statement, in the mandate for the 2007
IGC, that the constitutional concept is abandoned.
The careful wording of the European Council conclusions suggest that
abandonment of the constitutional concept was meant only in a relatively
narrow and technical sense, i.e. abandonment of the repeal-and-replace approach to the existing Treaties, the title Constitution, and the various unnecessary trimmings and inappropriate terminologies contained in the old CT.340
There is no indication that the Member States implied any more fundamental
rejection of the idea of the Union as an organization based on the rule of law.
Indeed, the Treaties continued emphasis on the proper functioning of the inter-institutional balance, reinforcement of the provisions governing the existence and exercise of Union competences, and the strengthening of the Unions
commitment to fundamental rights, all suggest that the constitutional concept now used in its broader sense which underlies the European integration project should emerge from this reform process all the stronger.
Nevertheless, the constitutional wobble produced by the ratication crisis
and nal rejection of the CT still poses interesting questions about the political
consensus underpinning and informing the continuing evolution of EU constitutional law. Such questions will reverberate across the revised Treaties for the
foreseeable future, and if indeed the tone of the Unions constitutional discourse has changed since the 2007 mandate, that has the potential to exercise
an important if more subtle inuence over issues that the TL does not directly
and / or denitively resolve. We have already encountered some illustrations
of this. Consider the denition of regulatory act for the purposes of determining the standing of natural and legal persons to bring actions for annulment
under Article 263(4) TFEU, where the Court might be persuaded by the renewed emphasis on the Union as an organization of limited competences to

340. See the Presidency Conclusions of 23 June 2007, esp. paras. 14 of Annex I.

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broaden access to judicial review as a means of legitimizing Union power.341

Or recall the conundrum over the legal effects of the Protocol on application
of the Charter of Fundamental Rights to Poland and the UK, where the Court
will be presented with the unenviable task of balancing unclear political will
against vague legal drafting.342 More broadly, even though the Charter will
become binding and of equal status to the Treaties themselves, it would be
most unfortunate if the decision to remove its full text from the Unions primary law, in favour of incorporation by simple cross-reference, were to make
the Union or national courts more hesitant about using the Charter in a creative
and ambitious fashion, i.e. not because they cannot rely on the Charter as an
entirely valid source of law, but because the political sensitivities surrounding
the Charter as evidenced by the IGC mandate argue for greater judicial restraint.343
Perhaps the most interesting arena for exploring the impact of the ratication crisis and the 2007 IGC on the Unions constitutional underpinnings will
prove to be the debate over the principle of supremacy. Against the background of the long-running tension between the Courts assertion of the unconditional supremacy of Community over national law (save where Community law itself admits otherwise), and the refusal by many domestic courts
to accept any such conception of supremacy within their own legal systems,
the CT had proposed introducing an express clause whereby [t]he Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States.344
That provision was widely criticized on the grounds that, compared to the
myriad nuances which embellish the Courts case law, the CT offered a simplistic and potentially misleading statement of the relationship between Community and national law.345 Nevertheless, the CTs primacy clause offered
clear political endorsement to the Courts case law and could have increased
the pressure on national courts to offer fuller obedience to the supremacy of
Union law.346

341. Section 8.3 supra.

342. Section 7.2 supra..
343. Though such caution is hardly evident in rulings such as Viking Line and Laval un
Partneri, both cited supra note 228.
344. Art. I-6 CT.
345. See further, e.g. Dougan, op. cit. supra note 233.
346. See further, e.g. Cramr, Does the codication of the principle of supremacy matter?,
7 CYELS (20042005), 57. For a broader discussion of national sovereignty and the CT, see
Albi and van Elsuwege, The EU Constitution, national constitutions and sovereignty: An assessment of a European constitutional order, 29 EL Rev. (2004), 741.

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However, the European Councils mandate for the 2007 IGC agreed that the
idea of an express primacy clause should be dropped. Instead, the Member
States adopted a simple declaration recalling the existing jurisprudence of the
ECJ on the principle of supremacy of Union over national law under the conditions laid down by the said case law, and referring to an opinion of the
Council Legal Service delivered on 22 June 2007, according to which [t]he
fact that the principle of primacy will not be included in the future treaty shall
not in any way change the existence of the principle and the existing case-law
of the Court of Justice.347 That approach is arguably preferable from the perspective of capturing better the subtlety of the Courts own case law, but the
question nevertheless arises: will removal of the express primacy clause, combined with the general strengthening of the principle that the Union is an organization of limited powers, encourage certain national courts to continue their
previous approach of accepting the principle of supremacy only under the conditions deemed acceptable within their own domestic legal order? Clearly, the
threat of intergovernmentalism resurgent, or constitutionalism moribund, concerns not only the zeitgeist of the Union institutions themselves, but also the
attitude of those national actors whose input also helps shape the character of
the integration process.
11.4. From effectiveness and legitimacy to effectiveness v. legitimacy?
A nal set of questions opened up by the TL concerns the Unions legitimacy.
After all, the constitutional reform process was meant to be guided by the fundamental Laeken objective of bringing Europe closer to its citizens through a
combination of greater effectiveness and greater accountability. As we have
seen, the reforms contained in the TL deliver greater effectiveness and accountability in abundance. But have those achievements been seriously tarnished through the process by which we nally arrived in Lisbon on 13 December 2007 almost to the point of driving Europe even further away from
even more of its citizens than ever before?
Over a period of several years, we have moved from a CT which was drafted in the hope of fullling the expectations of the Union population, as understood by the institutions and actors which participated in the constitutional
reform process up to that point; through a ratication process which revealed
that large sections of the Union population did not actually feel their will to
have been accurately reected in that CT; so as now to nish with a new
Treaty that seeks (quite understandably) to salvage most of the CTs valuable
technical reforms, but falls easy victim to the accusation that it was deliber347. Declaration No 17 annexed to the Final Act.

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ately conceived and executed so as to re-impose the terms of the rejected CT

whatever the popular will.
No one could envy the European Council its responsibility for reconciling
the wishes of the many Member States who had ratied the CT with those who
had already rejected it or were no longer committed to its success.348 By that
stage, perhaps, no solution better than one like Lisbon was even possible
certainly in the absence of a genuine willingness on the part of the Member
States, in part collectively but surely individually, to address deep seated problems of misunderstanding and misinformation about European integration.
But that does not help us escape from the danger that the constitutional reform
process may have inicted incalculable damage on popular perceptions of the
entire basis upon which the European edice is constructed the feeling that
it consults the people only so as to hear the answers it wants to hear, and ultimately works against rather than for their will worse still, not only among
those diehard Eurosceptics resolutely opposed to European integration in any
case, but also as regards those ordinary citizens in all Member States concerned about any apparent attempt to subvert full and proper democratic debate.
That feeling was hardly helped by the tendency of each Member State to
sell the TL to its own domestic audience: countries which had previously ratied the CT promised their constituents that the TL was identical in every
meaningful respect; those which had rejected the CT or wished to avoid putting it to a popular vote vowed that the TL was fundamentally different from
its predecessor. Against that background, it is not without a certain irony that
the sort of pan-European media coverage whose absence has often been
blamed as a negative factor in the search for a supranational democratic consciousness, now sprang to life in bringing to the attention of citizens across the
Union that the story their own government spun them about the TL was atly
contradicted by what was being said by the leaders of other Member States.
The results of this unedifying spectacle are hardly surprising. Any observer
of British political life will testify to the groundswell of public resentment
which greeted the Governments decision to forgo a referendum on the TL in
favour of ordinary parliamentary ratication a decision which was constitutionally entirely proper, but almost universally attributed to the fact that it was
also politically manifestly safer than consulting the man and woman on the
Clapham omnibus.349 Yet the phenomenon has not been conned to Member

348. Cf. Editorial, From the Constitution to a new round of Treaty amendments: Step-bystep, 44 CML Rev. (2007), 1229.
349. A traditional reference among English lawyers about how to gauge the views of the
average citizen.

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States such as the UK, which many continental observers seem to nd misguided comfort in dismissing as only a half-baked European anyway. Harder
for such observers to sideline are the opinion polls suggesting a majority of the
French population also wanted the chance to vote on the replacement for the
CT they had previously rejected, rather than settle for the parliamentary ratication which was eventually secured in February 2008.350
And so it seems appropriate to ask: will the post-Laeken constitutional reform process have ended up creating a more effective Union, but also a less
legitimate one? Or at least, has the Laeken process proved a lost opportunity
to win over an entire generation of citizens not just to the idea of a Europe of
results,351 but also to an ingrained understanding and acceptance of the
Unions underlying constitutional framework? And might the resulting sense
of public disenchantment and mistrust sap the strength and dampen the imagination of the Unions constitutional interlocutors, so that, even without anything so dramatic as the abandonment of a constitutional concept for the
Union, we shall nevertheless enter a period of more insidious, more pervasive
hesitance or (worse still) regression?

12.

Conclusions

If either the CT had been ratied successfully by all the Member States, or if a
text such as the TL had emerged directly from the Convention on the Future of
Europe, it is quite likely that we would now be celebrating a major achievement in the history of European integration and a complete vindication of the
optimism once embodied in the Laeken Declaration. But events proved to be
more tumultuous, and hindsight can be an unforgiving judge. After the hubris
of the proposals for a European Constitution, followed by the nemesis of the
ratication crisis initiated by France and the Netherlands, it is tempting to
hope that the Treaty of Lisbon will nally rekindle the Unions institutional
strength and its capacity to deliver. But for many, this might seem a hollow
victory: the Unions image has been tarnished by these long years of wrangling and indecision, which have revealed patent differences between political
vision and public opinion within and across the Member States, and been resolved only at the cost of a widespread perception that the future of Europe
in reality translates as Brussels knows best like it or lump it. One can only

350. As reported on www.euobserver.com (30 Oct. 2007 and 4 Feb. 2008). Indeed, consider
EU public wants referendums on new Treaty, survey says (18 June 2007).
351. To use the phrase employed by the Commission in A Citizens Agenda: Delivering Results for Europe, COM(2006)211 Final.

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hope that the whole experience has extinguished for the foreseeable future any
further appetite for major constitutional upheaval.352 Perhaps the Unions safest bet is now to get down to the business of delivering on policy, taking full
advantage of the greater effectiveness and accountability promised by the TL,
in the hope that time coupled with success will eventually heal all wounds.

352. That certainly seems to have been the view of the European Council at its meeting in
December 2007: see Presidency Conclusions of 14 Dec. 2007, para 6. Note that the Reection
Group set up to consider the long term challenges facing the Union is specically instructed not
to consider institutional matters: see paras. 813 of the Presidency Conclusions. It is interesting
to observe that the European Parliament in its opinion on the IGC mandate signalled its resolve
to put forward new proposals for a further constitutional settlement for the Union after the
2009 elections (Resolution of 11 July 2007, para 21); but there is no mention of such proposals
in the European Parliaments opinion on the nal TL, which describes the latter as providing a
stable framework which will allow further development of the Union in future (Resolution of
20 Feb. 2008, para 8).

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