EU: Cementing the European state
01 October 2007
- new emphasis on internal security and operational cooperation at EU level
The Reform Treaty agreed by EU governments in Lisbon on 17-18 October is to be formally "signed-off"by the Council in December. All EU governments are then expected to get their national parliaments to adopt it by the end of 2008 so that it can come into effect by the time of the European Parliament elections in June 2009. National parliaments will be allowed to "debate" the contents of the Treaty but not to change a "dot or comma - they either have to accept or reject the whole package.
A wholly undemocratic process
As Deirdre Curtin sets out on p18 the "process" of adopting the Reform Treaty was shrouded in mystery and secrecy. In June the Council adopted a "negotiating mandate" for the new Treaty which was utterly incomprehensible - it contained hundreds of changes to the two existing Treaties which could not be comprehended unless transposed into those texts. The Council did not provide this transposition until 5 October, just two weeks before agreement was to be reached.
In the whole of the EU only the
Statewatch website carried the transposed texts (from 9 August) thanks to Steve Peers' (Professor of Law, University of Essex) superb and ongoing, series of analyses which set out the legal changes to the two amended Treaties - the Treaty on the European Union (TEU) and the renamed Treaty on the Functioning of the European Union (TFEU) [1]
Overall it is hard not to conclude - as a number of commentators have - that after the debacle of the rejected Constitution EU governments did not want there to be a debate in national parliaments or civil society which might interfere. The Council was happy to leave the level of public debate preoccupied with the sole question of whether or not the Treaty was the same as the Constitution.
The abolition of the "third pillar"?
Much play has been made of the fact that "third pillar" police and judicial cooperation is finally to be brought under "normal" EU legislative procedures (immigration and asylum was moved over in 2006). This means the Council and the European Parliament having to jointly agree on new measures - this is currently called "co-decision" and will be called the cumbersome "ordinary legislative procedure". It is said to replace "consultation" where the opinion of the parliament was routinely ignored by the Council. The reality is somewhat more complicated.
First, the legal status of the third pillar acquis, some 700-plus measures adopted between 1976-2009 will be preserved (Article 9, Protocol 10) unless they are subsequently amended or replaced. The new powers for the European Court of Justice will not apply to this acquis for five years (ie: 2014).[2] Moreover, the third pillar acquis, to be inherited and perpetuated under the Treaty, lacks legitimacy as it was adopted with little or no democratic input by parliaments or civil society.
Second, the "third pillar" moves to the TFEU, Title IV where it is declared that, finally, it will all comes under current co-decision procedure where the European Parliament (EP) has an equal legislative role to that of the Council. Since March 2006 the EP has had co-decision powers over nearly all immigration and asylum measures. However, all nine immigration and asylum measures that have gone through have been agreed in secret, "trilogue", negotiations with the Council - will the same happen when it has powers over police and judicial procedures? (see "Secret trilogies and the democratic deficit" in vol 16 no 5/6)[.3]
Third, under the new Title IV there are ten areas covered by the new "ordinary legislative procedure". However, there are still four areas where the EP is only to be "consulted" and four areas where the new (that is, to justice and home affairs issues) concept of "consent" is introduced.
Under the "consent" procedures the Council will act unanimously and the EP will be "asked to "consent" without