2.17 House of Commons European Scrutiny Committee’s Report on the EU Intergovernmental Conference

The European Council agreed on 23 June 2007 to convene an Intergovernmental Conference (IGC) on the new ‘Reform Treaty', with the objective of opening the IGC before the end of July.¹

The text of the ‘Draft Treaty Amending the Treaty on European Union and the Treaty Establishing the European Community' - the ‘Reform Treaty' - was made available on 23 July at the start of the IGC.² The final text of the Treaty was released on 5 October 2007 by the Presidency of the EU for submission to the IGC (Foreign Ministers) meeting of 15 October, with a view to its final adoption at the IGC (Heads of State or of Government) meeting in Lisbon on 18 October 2007. ³

The House of Commons European Scrutiny Committee (ESC) released its report on the EU IGC on 9 October 2007.⁴

Key conclusions the ESC Report were:

(i) The Constitutional Treaty and the Reform Treaty compared (paragraph 45)

• "Taken as a whole, the Reform Treaty produces a general framework which is substantially equivalent to the Constitutional Treaty."
• "Even with the with the "opt-in" provisions on police and judicial cooperation in criminal matters, and the Protocol on the Charter, we are not convinced that the same conclusion does not apply to the position of the UK under the Reform Treaty. We look to the Government to make it clear where the changes they have sought and gained at the IGC alter this conclusion in relation to the UK."

(ii) The "constitutional concept" (paragraphs 46-50)

• Paragraph 46: "The IGC Mandate [agreed 23 June 2007] emphasises that the "constitutional concept" has been "abandoned" in the Reform Treaty, but it should be recalled that the "constitutional concept", as referred to in the IGC Mandate, was only the proposition that the existing EU, EC and Euratom Treaties should be replaced by a single text. As the IGC Mandate itself makes very clear, the intention is nevertheless to integrate the "innovations resulting from the 2004 IGC" [leading to the Constitutional Treaty] into the existing Treaties."
• Paragraph 50: "Accordingly, we do not consider that references to abandoning a "constitutional concept" or "constitutional characteristics" are helpful and consider that they are even likely to be misleading in so far as they might suggest the Reform Treaty is of lesser significance than the Constitutional Treaty. We believe that the Government must offer evidence if it is to assert that the processes are significantly different."

(iii) The Government's "red-line" issues (paragraphs 51-67)

The ESC discussed the Government's "red-line" issues in some detail.^5,6

It was clearly concerned that the European Court of Justice (ECJ) would sidestep the attempts to limit the impact of the Charter. For example:

• Paragraph 58: "To take a possible example, the Working Time Directive contains provisions limiting the weekly hours of work of a worker to 48 hours a week, but with the possibility of agreements to waive those limits. As Article II-91 of the Charter provides that "every worker has the right to limitation of maximum working hours" we have some concern that, in the light of the Charter, the [UK] derogation from the Directive allowing such waivers has to be interpreted more restrictively than before (i.e. before the Charter had legal effect)."

On criminal justice and policing, which concerns the collapsing of the current 3^rd pillar into the 1^st pillar, the Report noted, with concern, that:

• Paragraph 21: "We are concerned that removing the "distinction" between the EU and the EC in relation to matters currently dealt with under the third pillar (with the subsequent increase in powers of the Commission to bring infraction proceedings and those of the ECJ to interpret and apply Union measures) will change the legal relationship between the EU and national Governments in a way that will increase their powers in relation to UK law. We call on the Government to set out the safeguards which they will expect to gain at the IGC to prevent this happening."

(iv) The new "simplified revision procedure" (paragraph 42)

The new "simplified revision procedure" - the amendment to the Treaties without going through the full procedure of an IGC as currently provided for in Article 48 - was commented on with concern:

• "We are concerned that these provisions could allow substantial changes to be made without convening an IGC and so lead to even less transparency in the way the EU is governed, and less accountability of governments to their national parliaments. We ask the Government to outline what safeguards they would put in place to prevent this further erosion of transparency and accountability."

(v) The Report's Annex

The Annex comprised a comprehensive table comparing the Constitutional Treaty and the Reform Treaty. It confirmed that that the vast majority of powers of the Constitutional Treaty have been transferred directly to the Reform Treaty. 

Footnote: Membership of the House of Commons European Scrutiny Committee

References

1. See Global Vision Fact Sheet 2.14 "The 'Reform Treaty': the IGC mandate".

2. See Global Vision Fact Sheet 2.15 "The 2007 IGC and the draft ‘Reform Treaty'".

3. Conference of the Representatives of the Governments of the Member States, Draft Treaty Amending the Treaty on European Union and the Treaty Establishing the European Community, Brussels, 5 October 2007.

4. House of Commons European Scrutiny Committee, European Union Intergovernmental Conference, 35^th Report of the Session 2006-07, HC 1014, October 2007.

5. See Foreign and Commonwealth Office, The British Approach to the European Union's Intergovernmental Conference, July 2007, Cm 7174, 23 July 2007. This White Paper can be accessed on http://www.fco.gov.uk/. The "red-lines" were stated as: (1) protection of the UK's existing labour & social legislation - specifically referring to the Charter of Fundamental Rights, (2) maintenance of the UK's independent foreign and defence policy, (3) protection of the UK's common law system, and ‘our' police and judicial processes, (4) protection of the UK's tax and social security system.

6. See Global Vision Fact Sheet 2.16 "The draft Reform Treaty: the UK Government's approach".

Ruth Lea, October 2007