Monday, April 23, 2007

presentational changes

A letter from Angela Merkel to the other heads of Government seems to be doing the rounds.

The contents rather cut across the Government's line that the new treaty is going to be a completely "different animal" to the old European Constitution. In the letter she asks a series of questions which imply that the discussions are taking place in a spirit of pretty mindblowing cynicism. As far as we can see, the plan is to make as many "presentational changes" as necessary - while keeping the contents the same.

The things that jump out at us are suggestions that: “The consolidated approach of part one of the Constitutional Treaty is preserved with the necessary presentational changes.”

Also the proposal, “To use different terminology without changing the legal substance - for example with regard to the title of the treaty, the denomination of legal acts, and the unions minister of foreign affairs.”

And the plan to “Replace the full text of the Charter of Fundamental Rights by a short cross reference having the same legal value.”

That last one seems unlikely as it would drive the CBI nuts if it happens: remember that the Government promised Trevor Kavanagh of the Sun that the Charter would have “no more legal force than the Sun or the Beano”. It has been gradually gaining legal force through relentless use by the ECJ - but putting it in the treaties would let the judges really go wild...

The whole thing gives an interesting insight into the state of the negotiations - the reference to legal primacy and the symbols of the EU will get the chop, there will be lots of opt-ins to placate various countries, and a renewed reference to the existing Copenhagen criteria as a sop to anti-enlargement types.

THOSE MERKEL QUESTIONS IN FULL

1 How do you assess the proposal made by some Member States not to repeal the existing treaties but to return to the classical method of treaty changes while preserving the single legal personality and overcoming the pillar structure of the EU?
2 How do you assess in that case the proposal made by some Member States that the consolidated approach of part 1 of the Constitutional Treaty is preserved, with the necessary presentational changes resulting from the return to the classical method of treaty changes?
3 How do you assess in that case the proposal made by some Member States to use different terminology without changing the legal substance for example with regard to the title of the treaty, the denomination of EU legal acts and the Union’s Minister for Foreign Affairs?
4 How do you assess the proposal made by some Member States to drop the article that refers to the symbols of the EU?
5 How do you assess the proposal made by some Member States to drop the article which states the primacy of EU law?
6 How do you assess the proposal made by some Member States that Member States will replace the full text of the Charter of Fundamental Rights by a short cross reference having the same legal value?
7 Do you agree that the institutional provisions of the Constitutional Treaty form a balanced package that should not be reopened?
8 Are there other elements which in your view constitute indispensable parts of the overall compromise reached at the time?
9 How do you assess the proposal made by some Member States concerning possible improvements/clarifications on issues related to new challenges facing the EU, for instance in the fields of energy/climate change or illegal immigration?
10 How do you assess the proposal made by some Member States to highlight the Copenhagen criteria in the article on enlargement?
11 How do you assess the proposal made by some Member States to address the social dimension of the EU in some way or the other?
12 How do you assess the proposal made by some Member States applying opt-in/out provisions to some of the new policy provisions set out in the Constitutional Treaty?

3 comments:

Anonymous said...

Typical EU appraoch, if they can't get what they want don't stop and respect the wishes of the people - resort to deceit. Then wonder why the people don't trust you...

Anonymous said...

I fully agree that this is a very cynical and deceitful approach, if it were adopted -- but it is hard to imagine that the Member States critical of the constitution will go along with the whole thing. The crucial question will be how much they will go along with.

The ECJ has hardly been 'relentless' in referring to the Charter -- they waited six years to refer to the substance of the Charter in a judgment (Case C-540/03 EP v Council, June 2006) and then made it explicitly clear that the Charter was non-binding and only confirmed the previous status quo (ie the protection of human rights as 'general principles of law', a legal rule developed by the ECJ since 1970 and already set out in the Treaties since the Maastricht Treaty). The Court has referred to the substance of the Charter only once briefly since then -- the recent judgment in Unibet.

There are a few more judgments of the Court of First Instance referring to the Charter, but they are along the same lines.

Fewer conspiracy theories and more facts, please!

Open Europe blog team said...

You obviously know a lot about this Anon.

There have been a lot of references to the charter in ECJ judgements - a quick search on ECJ case law turns up 201 references to "Charter of Fundamental Rights".

That's important given the "soft law" and incremental qualities that EU jurisprudence seems to have. Its not a "conspiracy theory" to point that out.

A lot of people in Brussels want this thing to have legal force eventually. And the ECJ is capable of some really spectacular judgements sometimes (like on enviromental crimes - that came out of left field).

Thanks for flagging up the Unipart thing though.