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EU Reform Treaty: Comments on the final texts

28 March 2012

Comments on the texts which constitute the final agreement on the proposed Reform Treaty by Steve Peers, Professor of Law, University of Essex

DS 865/07: this is a new Declaration which will protect the European Parliament's prerogatives as regards the appointment of the CFSP High Representative when the Reform Treaty enters into force (this is likely to be early in 2009, if the Treaty is successfully ratified), and as regards the appointment of the High Representative as part of the next Commission (taking office in November 2009).

DS 866/07: this is a new Declaration approving in advance a proposal the Court of Justice might make to increase the number of Advocates-General (who give advisory opinions on most cases) at the Court of Justice from 8 to 11. Presumably the Court will be willing to make such a proposal. At present 5 of the 8 Advocates-General are allocated permanently to the five biggest Member States, and the remaining 2 Advocate-General posts rotate among the other 22 Member States. The change will mean that 6 of the 11 Advocates-General will be allocated to the six biggest Member States, while the remaining five posts will rotate among the remaining 21 Member States.

Although the Treaty could be amended to provide for more Advocates-General, it has instead been agreed that this change will take place on the bassis of the existing Treaties, which provide for the appointment of additional Advocates-General if the Court proposes them and the Council agrees unanimously. So it is possible that the change will be made and take effect even before the Reform Treaty enters into force, and would therefore remain valid even if the Treaty is not ratified. It would always be possible, however, to wait until the Treaty is ratified for the Court to make the proposal or for the Council to approve it. It remains to be seen which option is chosen.

DS 869/07 amends the draft Treaty itself (Article 9a TEU) to provide that the EP President shall not be counted against the ceiling of 750 MEPs. This wording does not appear to deprive him/her of a vote (which is usually only cast to break a tie). A new Declaration states that Italy gets the extra seat thus created, so that Italy will have an equal number of seats as the UK, and a further declaration states that the European Council will approve the EP's proposal on seat distribution (which the EP plenary adopted on October 10th) as amended. The EP will still have to give its consent to this decision, which seems likely; and this decision cannot be adopted formally until the new Treaty enters into force. But Member States and political parties can now plan for the next European Parliament election in June 2009 knowing how many seats each Member State will then have.

DS 870/07 amends declaration 28, which exists already in the draft Reform Treaty, to add a sentence at the end of the second paragraph. This new sentence provides that the Conference welcomes that the Commission will give particular attention to Council requests to propose the repeal of legislation. The Czechs had pushed for this -- but it does not go as far as they wanted in requiring the Commission to make such proposals upon the Council's request.

DS 871/07 amends declaration 4, which already exists in the draft Reform Treaty. The text of the decision in the declaration, which concerns delays in decision-making if there are nearly enough votes in the Council to form a blocking minority, will now be adopted on signature of the Treaty, not six months after signing. The problem that there is no legal base for this decision in the existing Treaty or the future Treaty as amended is ignored. Point 3 in the preamble, which stated that the decision will be retained as long as necessary, is dropped. The point in Article 7, according to which the decision would enter into effect on 1 November 2014, has been dropped. But it is hard to see how the decision could have any legal impact before that date anyway, since it only governs the position when the voting rules in the Council change, and this change will only take effect from that date.

DS 878/07 is a new protocol on the same issue. It simply says that the European Council will discuss any amendment to that Council decision on decision-making, acting by consensus. This does NOT mean that the draft Decision has been transferred to a Protocol, as the Poles had wanted and as the press had suggested (this would have been by far the best solution from a technical legal point of view). It does not exactly mean that the European Council must approve any amendment by consensus either.

There were other issues raised at the informal summit meeting in relation to the proposed Treaty. The Austrian demand to restrict the number of university students from other Member States coming to Austria has been settled, according to the press, by the Commission freezing infringement proceedings. There was also a Bulgarian demand regarding the spelling of 'euro' as 'evro'. It is not clear how this was settled.