12299 EU Guide 8/4/08 14:10 Page 2

A guide to the Treaty of

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Hugh Mercer, Philippa Watson and Tim Eicke, Essex Court Chambers 12299 EU Guide 8/4/08 14:10 Page 3

FOREWORD

The Law Society's Guide to the has proved invaluable to solicitors, policy makers and parliamentarians alike.

"The Law Society has taken an objective, professional view of the matter, not a politician's view. The guide is not prejudiced in any way, but offers a clear elucidation of what the treaty contains. It gives good advice to the legal profession about how the treaty will help those who practise criminal, civil and commercial law. It will simplify the legal code, and allow legal professionals to do their business in Europe on behalf of this country's people and companies much more effectively." Michael Connarty MP, Chair of the European Scrutiny Committee, House of Commons

“This Guide is simple, accessible and well put together. It provides a clear and concise overview of information on the new treaty.” Diana Wallis MEP, Vice President of the European Parliament

“This is an excellent, useful, and incidentally positive guide to the Treaty. Well worth reading.” John Purvis CBE, MEP

Such has been the demand for the Guide that it has now been reprinted and I thank the sponsors who have made this possible. For further information please contact the Law Society's Brussels Office at: [email protected]

Andrew Holroyd, President of the Law Society of England and Wales 03 Overview:This one 21/1/08 09:18 Page 3

OVERVIEW Treaty unveiled

THE TREATY OF LISBON he Treaty of Lisbon (the legislation is proposed and UK, it does not address political WAS SIGNED BY THE EU Treaty) was adopted on 13 adopted. questions such as whether a COUNTRIES ON 13 TDecember 2007 and ● Through the creation of an referendum should be held in the DECEMBER 2007 amends the existing EU treaties. elected fixed-term president of the UK to ratify the Treaty. AND, SUBJECT TO It does not have the same European Council and the formal Key EU terms are highlighted RATIFICATION, WILL ambitions as the previous attribution of legal personality to and explained in the glossary COME INTO FORCE IN Constitutional Treaty, which was the EU, alongside the High of terms on page 22, which also JANUARY 2009. THE not fully ratified. The Treaty will Representative of the Union for lists further sources of LAW SOCIETY’S EU now be subject to national Foreign Affairs and Security information. COMMITTEE LOOKS AT ratification procedures and it is Policy, it enhances the EU’s role This guide has been prepared by THE DETAILS AND LEGAL hoped that it will enter into force on the international stage in key the EU Committee of the Law IMPLICATIONS OF THIS in January 2009. areas such as trade, international Society of England and Wales in LANDMARK AGREEMENT On 17 December 2007, the relations, and energy and climate order to provide the solicitors’ European Union (Amendment) change. profession with an overview of the Bill was introduced in the ● It impacts on the tools available Treaty (1). It aims to offer a clear, House of Commons. The Bill is to you to assist your clients. concise and insightful overview of intended to enable the UK to ● It improves the rights of the practical effects of the Treaty ratify the Treaty. individuals, businesses and and its future relationship with This guide sets out to explain organisations in the EU. UK law, and as such, is aimed at briefly how the Treaty will ● It spells out the EU’s role in assisting key stakeholders as well update the legal order of the EU areas of day-to-day legal practice as solicitors. and how this relates to you as where lawyers have not always We hope that it will be of solicitors. had to focus on the EU dimension benefit to a wider audience during This new Treaty will affect to a large extent, for example, in the UK’s ratification Bill. your work in the following ways. the fields of criminal law, ● It adapts the structures of the alternative dispute resolution and EU and its institutions to an family law (see chart below). The Treaty of Lisbon can be found at: enlarged membership, and While the guide refers to the http://www.consilium.europa.eu/igcpdf brings about changes in how EU particular implications for the /en/07/cg00/cg00014.en07.pdf

Treaty of Lisbon – the EU’s role in areas of day-to-day legal practice

It should be simpler under the Treaty of Lisbon for individuals and businesses to challenge the legality of certain EU regulatory acts Dispute Resolution directly. An improved redress mechanism will thus be available for clients. The Treaty also highlights the development of alternative methods of dispute resolution.

Family law matters fall within the remit of the Treaty and this will build on work already under way in cross-border divorce, parental responsibility and wills and succession matters. Such measures will, Family Law however, be subject to unanimous agreement. Any plan to remove the national veto in relation to family law must be approved by West- minster and every other national parliament in the EU.

The Treaty underlines the principle of mutual recognition, allowing a court in one EU country to recognise and enforce a criminal conviction from another. It also envisages that minimum rules will be adopted in relation to the mutual admissibility of evidence, rights of Criminal Law individuals and victims of crime in criminal proceedings. It allows for the possibility of a European Public Prosecutor should all national governments agree to create this office.

(1) Members of the EU Committee are: Rachel Bickler (Chair), John Wotton, Mark Clough Q.C, Julian Creasey, Kiran Desai, Jane Golding, David Harrison, Paul Henty, Louise Hodges, Hugh Mercer, Megan Pullum, John Forman (Observer), Diana Wallis MEP (Observer) and Dr Christopher Kerse (Observer).

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BACKGROUND The Treaty establishing a Constitution for Europe 2004

This section contains a brief overview of the Treaty and the general principles that underpin it The EU’s effectiveness on the he main purpose of the the Constitutional Treaty and Germany took over the six-month international stage and its Treaty establishing a thus be legally binding. It also set presidency of the EU in January difficulty in dealing with issues TConstitution for Europe out a vision of the EU on the 2007, Chancellor Merkel steered such as the Balkans led many to 2004 (the Constitutional Treaty) world stage, with a Foreign her fellow leaders towards a ‘road- conclude that it was necessary to was to update and, at the same Minister representing the EU. map for the future of Europe’. At have a single voice in foreign and time, consolidate and replace the The Constitutional Treaty was the European Council summit security policy. The creation of a disparate European treaties that billed by some as the ‘blueprint’ meeting at the end of June 2007, Foreign Minister under the Con- have accumulated over the years. for the future of Europe. It was the EU’s national leaders declared stitutional Treaty was intended to The Constitutional Treaty signed on 29 October 2004 by the that, ‘after two years of address this issue. sought to improve the EU’s (then) 25 EU countries and uncertainty over the EU’s treaty institutional structure by: national ratifications began. reform process, the time has come With the expansion into central changing decision-making However, this process came to an to resolve the issue and for the EU and eastern Europe in 2004, and procedures to re-balance voting abrupt halt when, in their to move on’. A detailed mandate with the accession of Bulgaria rights between EU countries; national referenda, Dutch and for negotiation was prepared and and Romania in 2007, the EU enhancing the role of the directly French voters said ‘no’. Although an Inter-Governmental now has 27 member countries. elected Parliament in certain some EU countries continued the Conference convened. For the Post-enlargement, it was areas where it had little ratification process, ultimately avoidance of doubt, the message increasingly difficult for the EU to influence; and streamlining the Constitutional Treaty did not from the summit was ‘the function effectively because the legislative procedures. enter into force. constitutional concept is institutional structure and It emphasised the concept of Consequently, it was time for abandoned’. This opened on 23 decision-making mechanisms European citizenship and national leaders to go back to the July 2007. Political agreement on were those put in place in 1957 associated rights, and drawing board. the Treaty of Lisbon was reached for the original six EU countries, provided for the Charter of on 19 October 2007, and the final and had remained largely Fundamental Rights (the The road to reform 2007 declaration and signature took unchanged since then. Charter) to be incorporated into When the Federal Republic of place on 13 December 2007.

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The Treaty of Lisbon 2007

1951 1957 1986 1992 1997 20012004 2007

Treaty of Treaty of Single Treaty of Treaty of Treaty of Constitutional Treaty Paris (ECSC) Rome (EEC) European Act Maastricht Amsterdam Nice (EU) Treaty of Lisbon (EU) (failed)

The Treaty of Lisbon takes the EU’s make-up. democratically-elected European form of an amending treaty, one Of particular significance is Parliament (the Parliament) Member States of the that updates the existing Treaty the new system of qualified shares decision-making power European Union “EU countries” on European Union and the majority voting – the re- with the Council – known as ‘co- Austria Treaty establishing the European balancing of the voting system decision’ – becomes the norm Belgium Community. between national governments and is referred to as ‘the ordinary Bulgaria This follows the model of in the Council of Ministers (the legislative procedure’. This Czech Republic other amending treaties such as Council). This is designed not ensures that, as in other areas of Cyprus the Treaty of Amsterdam and the only to reflect the growth of the EU law, Members of the Denmark Estonia Treaty of Nice (see chart above). EU from 15 to 27 EU countries, Parliament (MEPs) have a right to Finland In this respect, it differs from the but also to ensure a balance decide on matters in the field of France Constitutional Treaty, which between large and small criminal justice and fair-trial Germany would have consolidated and countries, old and new EU rights. Greece replaced the existing treaties. countries and Northern and The European Court of Justice Hungary Institutional change is the key Southern Europe (see chapter 4, (the ECJ) also assumes full Ireland Italy driver behind the Treaty of Who does what and how) jurisdiction in this area. Under Latvia Lisbon. The need for In terms of legislative the Treaty, national parliaments Lithuania transparency, better democratic procedure, the model whereby also have a stronger voice and Luxembourg accountability and enhanced the European Commission (the greater power in terms of Malta judicial scrutiny has led to some Commission) proposes screening legislative proposals Netherlands important improvements in the legislation and the (see chapter 4). Poland Romania The Treaty of Lisbon: Slovakia

European Community 2007 Slovenia Does not introduce a written Constitution into the UK through the back door Sweden Does not create a European federal super-state

Under the Treaty of Lisbon: the European Community has ● The UK has secured certain done previously. political and legal exceptions and ● In due course, the EU, in guarantees compared to most addition to individual EU other EU countries. Ireland, countries, may become party to Denmark and Poland have the European Convention on secured similar exceptions (see Human Rights (ECHR) (see chapter 1). chapter 3). ● Key areas of activity are ● An elected president of the emphasised such as alternative European Council replaces much dispute resolution, energy, of the role of the rotating climate change, and data presidency and the European protection (see chapter 2). Council now has institutional ● The Charter of Fundamental recognition in the EU’s legal Rights becomes a fundamental order. part of EU law, although the UK ● The position of the High has reserved its position (see Representative of the Union for chapter 3). foreign affairs and security policy ● The conferring of legal is strengthened. The High personality on the EU allows the Representative will act as the EU to enter into international EU’s ‘ambassador’ to the world agreements in its own right as (see chapter 5). The need for transparency, better democratic accountability and enhanced judicial scrutiny has led to some important improvements in the EU’s make-up

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CHAPTER 1 The UK perspective

This section explains the impact of the Treaty of Lisbon on the relationship between UK and EU law

The political perspective with the Parliament, the UK is he UK, in the course of the well represented. The primacy of EU law since the Court of Justice devel- negotiations on the Treaty It is often said that EU-sourced oped it in the 1960s, before the Tof Lisbon, maintained a The legal perspective laws take precedence over UK joined the EU. While the number of pre-conditions for its Since the UK joined the domestic laws. This means that Constitutional Treaty re-stated this agreement – known as ‘red lines’. European Economic Community once an EU-sourced law is principle in the text, the Treaty of These were designed to: in 1973, the treaties themselves, applicable in the UK, it would be Lisbon does not explicitly refer to it, ● protect the UK’s existing legislation passed under them, contrary to the EU treaties for the but rather includes this in a decla- labour law and social legislation; and the rulings of the European UK to keep or pass any laws that ration. However, this was a political ● protect the UK’s common law Court of Justice, have all been contradicted the EU-sourced law. move, and it is clear that the case system, and police and judicial sources of UK law. These EU- The primacy of European law is law of the Court of Justice and the processes; sourced laws have a unique not new. This well-established primacy of European law remain ● maintain the UK’s character because of the way principle has applied in the EU cornerstone principles. independent foreign and defence they are created, their policy; and application to people, businesses ● protect the UK’s tax and social and the governments of EU of the Charter of Fundamental security system. countries, and the ability and Rights of the European Union to The UK also wished to make it method of enforcing those laws. Poland and to the UK has been clear that national security is a A key element of EU law is that agreed. matter for EU countries and it has primacy over UK law and This states that ‘the Charter provisions, to that effect, have this has been the case since the does not extend the ability of the been included. UK joined the EU in 1973. The Court of Justice of the European The UK Government’s effect of this is particularly Union, or any court or tribunal of The UK has been a member of position is that these objectives apparent for EU law that seeks to Poland or of the UK, to find that the EU since January 1973. have, by a variety of means, been create a common market (more the laws, regulations or Successive governments have achieved through a number of often referred to as the ‘internal administrative provisions, confirmed that the UK could leave express provisions set out in the market’ or ‘single market’) practices or action of Poland or of the EU if it wished. The Treaty of Treaty and its Protocols, which within the EU for goods, services, the UK are inconsistent with the Lisbon makes clear that EU have equal legal value. people and capital. fundamental rights, freedoms countries may withdraw from the It should be recalled that the Such laws are often intended and principles that it reaffirms’. EU in accordance with their own UK’s ability to influence to harmonise or approximate This specific position appears constitutional requirements. legislation is significant the various laws of EU countries to suggest that the Charter has compared to most other EU on a particular topic. The Treaty been interpreted as introducing countries. will not change the relationship new rights. Arguably, this move The UK, along with Italy, between EU and UK law, was not necessary, as the Charter France and Germany, has the although it does make clearer does not create new general largest number of votes in the what are the UK’s withdrawal rights under national law, and European Council. In addition, rights from the EU. only applies when national the UK MEPs are a material force governments are implementing in the Parliament, as The legal implications of the EU law. approximately 1 in 10 MEPs are UK’s political perspective on Exactly how this Protocol will from the UK. Given that the Treaty of Lisbon work in practice remains to be decisions made at EU level are Under the Treaty, the Charter of seen. determined by the national Fundamental Rights of the governments, sharing power European Union (the Charter) EU justice measures: der legal aid, but not measures that becomes an integral part of EU the UK opt-in deal with divorce and family law. law. Rather than being Ratification of the Treaty Since 1999, the UK and Ireland Under the Treaty of Lisbon, this opt- incorporated into the body of the of Lisbon in the UK have had the right to choose out has been extended to cover Treaty itself, as was the case Ratification is the act, by a whether to be bound by legislation police and judicial co-operation, under the Constitutional Treaty, country’s government or parlia- in the field of civil judicial co-opera- essentially measures that deal with the Charter remains a separate ment, of formally approving a tion – essentially, measures that the fight against organised crime instrument, but has the same treaty. The Treaty of Lisbon is to relate to cross-border civil litigation and terrorism, cross-border prosecu- legal value as the treaties. be ratified by all of the EU coun- and family law. Often called an ‘opt- tion, and investigation and rights for Solemnly declared in December tries by 1 January 2009. The UK out’, the UK has a right to signal that the individual. It remains to be seen 2007, it has since been published has said that it will not hold a ref- it wishes to opt in to a proposal whether the UK will choose to opt in separately in the Official Journal. erendum to ratify the treaty. The three months after it has been pub- to those measures which will bolster However, the fact that the European Union (amendment) lished or following its adoption. So individual rights and procedural Charter is to be found in a Bill, presently before Parliament, far, the UK has chosen to take part guarantees, or only those which will Protocol does not in itself change is intended to enable the UK to in most civil litigation measures, expand cross-border police powers its legal status. ratify the treaty. such as small claims and cross-bor- and investigative activity.

Photographs: European Community 2007/Getty Images Photographs: European Community 2007/Getty A Protocol on the application

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CHAPTER 2 The EU: policies and procedures

The Treaty of Lisbon is the legislative and political framework within which the EU will function for the foreseeable future

What does the EU do? U law can only be made in EXCLUSIVE SHARED CO-ORDINATION SUPPORT those areas in which all EU COMPETENCE COMPETENCE COMPETENCE COMPETENCE Ecountries, including the UK, have agreed that it is appropriate There are five areas in There are 11 areas EU countries will The EU will support and for action to be taken at European which the UK and other where the EU and the co-ordinate their complement EU coun- level. EU countries have UK will share responsi- economic and tries’ activities in The European treaties define the agreed that the EU bility to pass new laws, employment policies seven areas, including role and responsibilities of EU alone may pass new with the EU focusing on with one another to protection and improve- institutions and other bodies laws. None of these is the cross-border effects minimise distortions or ment in human health; new to the Treaty of and the importance of disruptions in the single tourism; industry; involved in the decision-making Lisbon. minimum standards market. education; and civil process. They define where the EU (such as on the envi- This applies even to protection. None of this has competence to act. ● Customs union; ronment) within a those countries outside would restrain EU The scope of EU activity has ● Competition rules single market, if trade the eurozone. This countries from acting developed over the years and necessary for the barriers are to be represents no change alone in these areas. successive treaties have led functioning of the removed. This is not to existing EU treaties. This represents no to an expansion in the range internal market; new. change to existing EU of activities undertaken at ● Monetary policy for treaties. ● EU level. The Treaty of Lisbon those countries which Internal market; ● follows in that line of expansion. It have the euro; Social policy; ● Conservation of ● Economic, social and sets out clearly the circumstances in marine resources under territorial cohesion; which the EU would have exclusive the common fisheries ● Agriculture and competence to make law, where it policy; and fisheries; would have shared competence ● International trade ● Environment; alongside national governments, policy. ● Consumer protection; and those circumstances in which its ● Transport; role would be purely supportive. ● Trans-European Whatever the level of EU networks; ● involvement, the exercise by Energy; ● the EU of these competences must Safety in relation to public health; and take into account a number of ● Area of freedom, principles (see box, bottom). security and justice.

TREATY OF LISBON OBJECTIVES In the Treaty, a new set of objec- The EU alone may pass laws tives for the EU does not include ‘a that affect the monetary single market where competition is policy of those countries free and undistorted’, as had which have adopted the euro been the case in the draft Constitutional Treaty. Instead, a Protocol records that the EU’s internal market includes a system which ensures that competition is undistorted. This does not change the current legal position.

EU competence under the national level or at regional and Treaty of Lisbon is established local level, or can be better on the following principles: achieved at EU level. National ● Conferral: the EU can only parliaments have an enhanced exercise those competences role under the Treaty in terms which are conferred on it by of raising concerns about the treaties. subsidiarity. ● Subsidiarity: in areas that do ● Proportionality: neither the not fall within its exclusive content nor the form of any competence, the EU may only action taken by the EU can go act if and insofar as the beyond what is necessary to objectives of the intended achieve the objectives set by action cannot be achieved by EU countries in the Treaty individual EU countries, either at of Lisbon. Photographs: European Community 2007

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The Treaty introduces a small number of new areas of EU activity, and it goes into more detail on the scope of co-operation at EU level in a number of areas of particular interest to solicitors and their clients, such as co-operation in criminal matters. The objective to adopt measures to facilitate access to justice is also set out. It is not possible to deal with all these changes in detail in this guide, but the main areas where there are significant changes are set out below.

Criminal justice EU criminal justice policy is built on police and judicial co-operation; minimum rules concerning the definition of criminal offences, and sanctions in the areas of particularly serious crime with a cross-border dimension; and the organisations of Europol and Eurojust. The Treaty reinforces and consolidates progress in this area to date. It underlines the principle of mutual recognition, allowing a court in one EU country to recognise and enforce a criminal conviction from another. It also would allow for minimum rules to be adopted in relation to the mutual admissibility of evidence, rights of individuals, and victims of crime in criminal proceedings.

Substantive criminal law Under the Treaty, the EU is only able to legislate to influence national criminal law in two circumstances: ● Where serious crime with a cross- Sniffing out drug trafficking: EU legislation can influence national criminal law border dimension is concerned, for example, in relation to terrorism; trafficking in human beings; sexual definitions and sanctions are the ordinary legislative procedure. exploitation of women and needed to make the law work This means that decision-making children; illicit drug trafficking; properly and consistently. For power will be shared between the illicit arms trafficking; money- example, the EU would like to Parliament and national laundering; corruption; introduce minimum criminal governments in the Council. counterfeiting of means of penalties for environmental Until now, the need for unanimity payment; computer crime; and crimes, which already have has made it difficult for EU countries organised crime. standard definitions. to agree on certain proposals in this ● Where the law in a certain field Under the Treaty, legislation in the area, such as procedural safeguards has already been harmonised field of judicial co-operation in for individuals, but the abolition of throughout the EU, and uniform criminal matters will be decided by the national veto should break the deadlock. A minimum level of protection in criminal matters victims do not take a central role in criminal Continued on page 10 across the EU will be particularly relevant for proceedings in the UK, there is an increasing To off-set the removal of the people involved in criminal proceedings outside emphasis on the rights of victims, and this will national veto, the UK can decide on their home state, although it is unlikely to affect continue if new European rules are introduced. a case-by-case basis whether to opt the level of protection already afforded to Therefore, there may be some impact from this in to a piece of legislation in the suspects in the UK. While the rights of crime on the UK’s criminal procedure. criminal law field.

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Continued from page 9 Police co-operation The Treaty provides for police co- operation involving all police and specialised law enforcement agencies, for example Revenue & Customs, and the Serious Organised Crime Agency, and so on. This co- operation is to include the collection, storage, processing, analysis and exchange of relevant Photographs: European Community 2007 information. This is likely to impact on the conditions for availability and admissibility of evidence in cross-border cases.

Civil justice and family law The Treaty offers greater impetus for more co-operation in civil law on issues with a cross-border dimension. Specifically, the EU can already act to improve cross-border service of documents, develop co- operation in the taking of evidence, and make provision for the cross- border recognition and enforcement of judgments in civil cases. In common with the provisions on criminal law, the ordinary legislative procedure applies, and the UK can choose to opt in to these provisions. World at your feet: The EU only legislates on family greater co-operation at What does greater co-operation in civil and criminal matters mean for solicitors and their clients? law issues that have cross-border a European level could help to resolve cross- implications, and which might act A growing number of individuals are now travelling, living and working in as a barrier to people moving border problems relating to civil and other countries. Inevitably, some of them become involved in legal around within the EU. proceedings or become victims or suspects of crime. criminal matters Issues under consideration ● Greater co-operation at a European level could help not only to include divorce, parental resolve cross-border problems experienced by clients more quickly, but responsibility, and wills and could also act as a separate check and balance on the developments in succession, where there is a cross- our own system. ● border element. Clients who are arrested in another EU country cannot easily obtain Family law decisions under the bail under the current system. An extension of co-operation between EU countries in the future should enhance the availability of bail before to Treaty are subject to a special and during proceedings. This should mean less time spent by individuals procedure. National governments in detention in a foreign country. will continue to wield their ● More co-operation between criminal justice systems will allow for national veto and the European exchange of information on criminal records and enable courts to take Parliament will only be consulted. Access to justice into account convictions from another EU country. Any change to this decision-making The Treaty of Lisbon ● Areas of traditional practice for solicitors, which have remained model will have to be approved by gives the EU the right largely unaffected by EU law, such as wills and succession, family law national parliaments. This actually to legislate to promote and even conveyancing, will be subject to increasing pressure to develop gives more power to national alternative dispute cross-border solutions to deal with the problems of those who lead parliaments in this area than they legislation and access cross-border lives. to justice. have at present.

National interest – the ‘emergency brake’ while the matter is referred to the European Council. The European Public Under the Treaty of Lisbon, an EU country can The European Council has four months to refer Prosecutor can only be apply the emergency brake procedure if it feels that the draft back to the Council of Ministers, thus created when all national the measures proposed will affect fundamental terminating the suspension. If there is no governments agree to this aspects of its criminal justice system. agreement on referral back then, within the same move. Therefore, the UK This provision applies both to mutual recognition time frame, if at least nine EU countries want to go Government can prevent and to substantive law reform. Once applied, the ahead with the proposal, they can do so under a any move in this direction. emergency brake will halt the legislative process procedure called ‘enhanced co-operation’.

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Dealing with climate combating climate change. Promotion of sport change and energy Preserving the environment is also central to the EU’s Sport is added to the area of Environmental policy is at the energy policy. Under the Treaty education and culture, and a clear heart of EU legislative and of Lisbon, the aims are clearly reference is made to the European political activity. The Treaty of set out: Union contributing to the promotion Lisbon addresses one of the ● Ensure the functioning of the of European sporting issues. most pressing global issues of energy market; our time – climate change. A ● Ensure security of energy core aim is promoting supply in the Union; and Turning on the power: promoting new forms of measures at international level ● Promote energy efficiency and to deal with regional or energy saving, and the energy, such as windfarms (below), is at the heart worldwide environmental development of new and of the EU legislative agenda; and the European problems, and in particular renewable forms of energy. Commission headquarters (bottom) spells out the ‘You control climate change’ campaign

Data protection Intellectual property rights

The Treaty of Lisbon sets The Treaty of Lisbon builds on the out that everyone has the numerous measures already in right to the protection of personal place to harmonise aspects of data. trademark law, copyright and related The EU shall lay down the rules rights and design rights, aspects of relating to the protection of patent law, and certain procedural individuals with regard to the matters relating to intellectual processing of personal data property. by European Union institutions, A new specific provision is set out bodies, offices and agencies, and under which the EU will establish by EU countries when measures for the creation of carrying out activities which European Intellectual Property fall within the scope of EU law. Rights. This puts providing uniform Data protection compliance intellectual property rights protection shall be subject to the control of at the heart of the EU’s internal independent authorities. market strategy.

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Photographs: Rex Features/European Community 2007 12-13 groupshot:This one 21/1/08 09:28 Page 13

Head to head: EU leaders attended a ceremony in the Portuguese capital to ratify the Treaty of Lisbon 14-16 chapter 3:This one 21/1/08 13:20 Page 14

CHAPTER 3 The Treaty of Lisbon and your rights

This section deals with the principal ways in which the Treaty affects the rights of EU citizens, businesses and other organisations

Charter of Fundamental Scope of Charter rights Rights The rights under the Charter he Treaty of Lisbon amends apply to the activities of EU article 6 of the Treaty on institutions to the benefit of all European Union to provide T EU citizens. The rights will also for recognition of the Charter, apply when EU law is which was originally proclaimed Photograph: Getty Images implemented in national law by EU institutions at the Nice but ONLY in this situation. The Inter-Governmental Conference Charter would not create fun- in December 2000. damental rights of general On 12 December 2007, the day application in national law, for before the signing of the Treaty, example a general right to the Presidents of the European strike will not be created. Parliament and the European All EU countries, both Commission, and the current present and future, will have to President of the Council of abide by these rights when Ministers, signed and ‘solemnly implementing EU law. The UK declared’ a revised version of the The Charter of Fundamental Rights sets out the right to a fair trial and Poland have a separate Charter, which was published in Protocol to clarify their position. the Official Journal together with important safeguards and could bring positive benefits to In addition, there will be the official Explanations. principles to be borne in mind as individuals. scope for relying directly on the While the text of the Charter the EU moves towards greater Moreover, where Charter rights provisions of the Charter before has not been incorporated into co-operation in criminal justice. correspond to those set out in the European courts. the Treaty, article 6 provides that The Charter also covers social ECHR, the Treaty provides that it will have the same legal value and economic rights and the meaning and scope of those as EU treaties – it will thus principles, such as the right to rights would be the same – this currently is in relation to become legally binding, which fair and just working conditions, would allow lawyers and their domestic matters where ECHR will make the fundamental and the right to a family and clients to rely on the issues arise. In other words, the rights that it contains professional life. Furthermore, interpretation of fundamental EU institutions would be directly operational. This means that for the Charter sets out modern rights developed by the case law subject to the ECHR and the the first time, the EU has set out rights, such as the right of access of the European Court of Human European Courts would be able in one place the existing to information in relation to the Rights. However, the UK has to directly apply the ECHR as fundamental rights from which EU institutions, and the negotiated a Protocol (annexed to part of EU law. This means that if every EU citizen can benefit. protection of personal data. the Treaty) on the Charter. It a lawyer wished to raise The Charter covers a whole These rights are not new, and the seeks to clarify the scope of arguments before the European raft of traditional human rights, treaty does not change the legal application of the Charter in the Courts, based directly on the such as the right to life, and the effect or enforceability of those UK (see Chapter 1). rights set out in the ECHR, or to prohibition of torture, drawn rights. The Charter does not the provisions of the treaties from those set out in the create new general rights under Accession to the European themselves, this will be possible. European Convention on national law and only applies Convention on Human Rights Following accession to the Human Rights (ECHR). In the when national governments are (ECHR) ECHR (provided for by the area of civil rights, it expressly implementing EU law. However, Accession to the ECHR will mean Treaty), the EU will be required sets out the right to a fair trial, the fact that they will have the that the EU and its institutions to accede to the ECHR. EU law the presumption of innocence same legal value as the EU will be accountable to the will then have to be interpreted until proved guilty, and the right treaties is significant because it European Court of Human Rights in the light of the ECHR, not only not to be punished twice for the will allow them to be recognised for issues concerning the ECHR, as a general principle of EU law same offence. These are all or interpreted in new ways that in the same way that the UK but as a Convention directly

What is the difference between the Charter of Fundamental Since the EU itself does not have legal personality, it cannot yet itself Rights of the EU and the European Convention on accede to the ECHR, but the EU must already comply with the rights in Human Rights? the ECHR. The European Convention on Human Rights (ECHR) is an international The Treaty of Lisbon will amend the EU Treaty to allow the EU to treaty which was signed on 4 November 1950 in Rome under the become a party to the ECHR and ensure that the interpretation of auspices of the . human rights made by the EU and ECHR move in parallel in future. It sets out a number of fundamental rights. To date, 47 countries The Charter of Fundamental Rights, on the other hand, is a across the European continent have ratified this convention, including declaration of fundamental rights made by EU leaders in December all 27 EU countries. However, the EU itself is not, and currently cannot 2000, which contains many rights similar to those set out in the be, a party. The fundamental rights it protects must be respected by ECHR, in addition to further rights and principles already recognised the national courts in all states that are signatories, and individuals can in EU law. bring cases against the signatory states in the European Court of Until now the Charter has had no binding effect, but this will change Human Rights in Strasbourg (which is NOT an EU Court). as a result of the Treaty of Lisbon.

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applicable to the EU and to which the EU adheres. Nevertheless, the Treaty of Lisbon and its Protocols do state that accession to the ECHR will not affect the EU’s competences and that provision will be made for preserving the specific characteristics of the EU and EU law. Photograph: European Community 2007

Citizens’ rights The Treaty sets out the citizens’ rights which were agreed under the Maastricht Treaty. Citizenship is a key principle. All EU nationals are citizens of the EU and the Treaty recognises the importance of the rights that flow from that status. These citizens’ rights include: ● The right to move and reside freely within the territory of EU countries; ● The right to stand and vote in elections to the European Parliament and at municipal elections in the country in which an EU citizen resides (even if this is not the home state); ● The right of access to documents; and ● The right to diplomatic and consular protection. As well as providing for greater involvement of the directly elected national and European parliaments in EU decision-making, the Treaty also contains a new measure designed to promote direct participatory democracy in the EU. It gives European citizens the right to propose a ‘citizens’ initiative’. Citizens will be entitled to invite the European Commission to take action in one of the areas covered by the Treaty if at least one million citizens from a ‘significant number’ of EU countries put forward such a proposal.

Access to justice in the EU The Treaty improves access to justice before the European courts for one important category of cases. Currently, a person or business can challenge the legality of certain EU acts directly before the Court of Maastricht: the Treaty of Lisbon outlines citizens’ rights agreed under the Maastricht Treaty First Instance, if it can be shown that the act is of ‘direct and opening the doors for these regulatory act which does not individual concern’ to that person individuals and to ensure their entail implementing measures’. or business. right to effective judicial protection This can cover certain regulations The Court has been heavily at EU level was to amend the EU which previously were almost criticised for interpreting the Treaty. The Treaty of Lisbon impossible to challenge. notion of ‘individual concern’ in a removes the requirement of Individuals may challenge the strict manner so that few can bring ‘individual concern’ when a person legality of those acts if they can a challenge. The only way of or business challenges ‘…a show ‘direct concern’.

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What does this mean for solicitors and their clients?

● The improvement in direct access to European courts for individuals and organisations through the abolition of the require- ment of individual concern for regulatory acts which are not subject to implementing measures represents a big improvement on the current situation, and paves the way for many more challenges to be brought by individual businesses in European courts.

● The recognition of the Charter of Fundamental Rights in the Treaty of Lisbon and confirmation that it will have the same legal value as the EU Treaty will have little impact in the UK. The European Court of Justice ● The Treaty of Lisbon will clarify the position of the ECHR under EU (below) has been re-named the law and make it easier for lawyers to raise arguments based on the Court of Justice of the EU by the rights set out in the ECHR before European courts. Treaty of Lisbon Photograph: Rex Features

What are the European Non-judicial remedies Courts? While using European law can be a powerful tool in arguing your client’s case before national courts and/or There are two European courts in the European courts, there are also some non-judicial remedies that may assist. They have the advantage of the EU system: the Court of generally being less costly and time-consuming than legal proceedings. While none of these is new, the Justice of the European Treaty of Lisbon tries to focus more on citizens and their rights. Here are examples of remedies that you Communities (called the could use on behalf of your client: European Court of Justice, or ECJ) ● Petitions before the European Parliament. Any EU citizen or natural or legal person present in the EU can and the Court of First Instance. submit a petition to the petitions committee of the European Parliament. The subject matter of the petition These are renamed the Court of must come within the EU’s sphere of activity. An example of a petition could be a client from another EU Justice of the EU and the General member state not receiving the social security benefits to which they are entitled: Court by the Treaty of Lisbon. The http://www.europarl.europa.eu/parliament/public/staticDisplay.do?id=49. Court of First Instance deals in ● Complaints to the European Commission. Any EU citizen or business present in the EU can make a particular with direct actions formal complaint to the European Commission where it suspects that European law is being misapplied. An against EU institutions (including example of this was a solicitor wishing to practise in Luxembourg being required to sit an exam in those brought by individuals). The Luxembourgish before being permitted to do so. The Commission intervened on his behalf and took the ECJ deals, among other things, case to the European Court of Justice. The SOLVIT network contains information on how to enlist the with appeals from such decisions Commission’s help: http://ec.europa.eu/solvit/. and ‘preliminary references’ from ● Access to documents. Under the ‘access to documents’ regulation, EU citizens and natural or legal a national court. Preliminary persons present in the EU can request documents from the Parliament, Council and Commission. This is references are made where a similar in some respects to ‘discovery’ requests in legal proceedings and can be particularly useful in national judge requires a ruling competition cases: http://ec.europa.eu/transparency/access_documents/index_en.htm. from the ECJ on a specific point of ● Complaints to the European Ombudsman. The Ombudsman is empowered to deal with complaints of EU law, which is essential to maladministration by EU institutions. He can also carry out investigations on his own initiative. In other words, if deciding the case in the national one of the EU institutions has not acted according to a rule or principle which is binding on it, then you and/or court. The General Court shall your client can bring this to the attention of the ombudsman who must look into the matter. Examples of this also have jurisdiction to hear being used successfully include a case concerning a change to the EU fisheries regime, access to documents preliminary rulings in specific (refusal) and late payments by EU institutions: http://ombudsman.europa.eu/home/en/default.htm. areas.

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CHAPTER 4 Who does what and how?

This chapter goes behind the scenes of the EU decision-making process and looks at the roles each actor plays

U decision-making advising their clients. then adopted by the Parliament processes involve a variety The main legislative and the Council once they arrive Eof actors in order to ensure instruments are directives (fairly at an agreement on a text that the EU works as efficiently general, leaving much of the through a process of up to three and as democratically as detail to be worked out once readings. possible. implemented) and regulations The Treaty will result in more The EU is a political entity, as (more prescriptive), as well as proposed legislation being well as being a legal entity, and non-binding recommendations adopted using the co-decision this is reflected in the powers it and opinions. procedure, which means that possesses and the instruments The Treaty shied away from both the Parliament and the that emerge following the renaming these instruments, as Council must agree before interaction between the had been suggested in the legislative instruments can be institutions. Constitutional Treaty. adopted and become EU law. As has been stated previously, Depending on the subject Under the Treaty, the co-decision EU law takes precedence over matter under discussion, procedure is renamed the national law and, therefore, different legislative procedures ‘ordinary legislative procedure’, solicitors may come into contact are followed. In its simplest in recognition of the with EU legislative and non- form, this usually involves a presumption that it will apply legislative instruments when Commission proposal, which is unless otherwise stated. European Community 2007

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Who are the main actors?

European Council High-level political deliberations Composed of heads of state or government of 27 EU countries (UK Prime Minister and counterparts) Under Treaty of Lisbon (ToL), formally recognised as an institution, and a president will be appointed

European Commission Executive body Once strategic direction set by Council, drafts legislative proposals, which are sent to the Council and Parliament Composed of 27 Commissioners from EU countries (UK: Peter Mandelson) Under ToL, number of Commissioners will be reduced. Only two-thirds of EU countries will have a Commissioner at any one time

Council of Ministers European Parliament Legislative body – without its consent, Legislative body legislation cannot be adopted Shares powers with the Council to amend Shares powers with the Parliament to EU legislation amend EU legislation Composed of 785 deputies Composed of different national (78 from the UK) government ministers according to Under ToL, Parliament will have greater subject under discussion say over legislation, since the ordinary Presidency of Council rotates every six legislative procedure gives Council and months between EU countries Parliament equal powers. Under ToL team, presidencies will Number of members reduced to 750 plus be introduced the President

European Court of Justice Responsible for ensuring the correct interpretation and application of EU law Under ToL, courts will be renamed and have jurisdiction over new areas including justice and home affairs

National Parliaments Composed of national parliamentarians Scrutinise EU legislation before it is adopted Implement certain EU legislative proposals into national law Under ToL, parliaments will have a formalised role in decision-making through its new powers of review

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National Parliaments

So far in the life of the EU, there practices have arisen. the opportunity to challenge it is sent back to the Commission has been no formalised role for Under the Treaty, however, proposed legislation if it does for review (a ‘yellow card’). national parliaments in the the involvement of national not conform to the principle of The Treaty also introduces European decision-making parliaments in the EU legislative subsidiarity (ie legislation what has been dubbed an ‘orange process. process is increased and should be adopted at the card’: if a majority of national It has been left to each formalised. appropriate (which might be parliaments oppose a individual EU country to decide For the first time, the adoption national rather than European) Commission proposal, and they how far to involve its national of EU legislation will be subject level). have the backing of the parliament in European law- to prior scrutiny by national If one-third of national Parliament or the Council, then making, and very different parliaments, which will be given parliaments object to a proposal, the proposal is abandoned.

The voting system in Council Fig 1: Who is involved when? At present, where unanimity is not required (the vast majority of cases), From the EU to the UK Who is involved? at least 255 votes out of a total of 345 votes must be in favour, repre- senting a majority of EU countries. Under the Treaty, new areas of law, EU policy & strategy Heads of each EU country such as criminal law, will be decided this way. The UK currently possess- es 29 votes. The voting rules under the Treaty of Lisbon will become Proposal of legislative draft Commission more complex. From 2014 onwards, a weighted system will apply whereby at least 55% of EU countries representing 65% of the EU’s Discussion, amendments European Parliament, & adoption Council of Ministers population will need to agree in order for proposals to become law. This strengthens the position of the larger EU countries, including the UK. Implementation UK Government

Figure 1 illustrates the different participants who are involved UK law UK Parliament in each stage of the life of any piece of European legislation European Community 2007

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CHAPTER 5 The EU on the world stage

This chapter looks at how the Treaty of Lisbon seeks globally to strengthen the EU’s voice and how it will affect trade

he EU has a total population of nearly 500 Tmillion and now accounts for around 30% of global GDP and 20% of global trade flows.

Photographs: European Community 2007 The new arrangements will strengthen the ability of the EU to speak with a single voice in the international arena. However, inadequacies in the existing treaty arrangements have prevented the EU from gaining due recognition for its economic might at an international level. The Treaty of Lisbon seeks to strengthen the EU’s voice on the world stage by bolstering the position of the High Representative of the Union for Foreign Affairs and Security Policy, who will have a dual role. He will preside over the Foreign Affairs Council, replacing the current six-month post occupied by the Minister of Foreign Affairs for the country holding the rotating EU Presidency, and will also be Vice-President of the Commission. The expansion of this new position is intended substantially to reinforce the EU’s presence on the world stage. The High Representative will be supported by the creation of a The Treaty of Lisbon defines how international trade agreement negotiations should be carried out European External Action Service, made up of EU officials In contrast to the lack of designed to provide a significant how the negotiation of and national civil servants and transparency which has hitherto strengthening of the EU’s capacity international trade agreements designed to co-ordinate with the surrounded Council decisions, to act in international relations. It should be carried out by the EU. diplomatic services of EU the principles and objectives of is hoped that the changes will For example, not only will the EU countries. EU countries or the the Community’s external ensure that appropriate weight is represent its members at the High Representative, rather than competence are expressly set out, given at an international level to World Trade Organisation, as it the Commission, will propose and a procedure is again laid the views and initiatives of the EU does at present, but it may also common foreign and security down for the manner in which countries. sign treaties on their behalf. initiatives, with the European the EU will negotiate and The powers of the Parliament in Council deciding by unanimity conclude treaties. However, the Trade the domain of trade will be whether or not to implement the relevant declaration makes it As the EU is one single trading increased under the Treaty, giving proposals. This is a compromise clear that the common foreign area with common customs it the power of co-decision with between the reluctance of EU and security policy will not affect tariffs, the external trade policy of the Council. In addition, all trade countries to give the Commission the responsibilities of the EU the EU is already decided agreements will remain subject to more direct powers to act on their countries, as they currently exist exclusively at EU level. The Treaty the approval of the Parliament, behalf and their recognition of for the formulation and conduct provides for a common external which will have to be kept the need for the EU to act more of their foreign policy. commercial policy and defines informed of the state of play of effectively on the world stage. Overall, these measures are more clearly than existing treaties negotiations on such agreements.

What does this mean for solicitors and their clients?

● The EU’s international policies will become more predictable and agreements will allow for public participation in the process of carry more weight on the international stage. ratification and will create greater transparency in the debate leading ● The greater involvement of Parliament in the negotiation of trade to the adoption of such agreements.

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Glossary of key EU terms

Term Definition

Enhanced Co-operation When new developments cannot be undertaken by the EU as a whole, a group of at least a third of all EU countries can proceed on the basis of enhanced co-operation by themselves in an area of non-exclusive EU competence. Acts adopted under enhanced co-operation are only binding on participating EU countries. European Citizenship Nationals of EU countries are also citizens of the EU. Citizenship of the EU is in addition to national citizenship. Citizens of the EU enjoy various rights and duties as provided for in the Treaty of Lisbon, such as the right to move and reside freely within the EU, the right to vote in Parliament elections, the right to consular protection by any EU country when outside the EU, and the right to petition the Parliament. Legal Personality The EU has a single legal personality under the new Treaty of Lisbon. This will enable the EU to act at an international level and make treaties in all areas of its competence. Citizens’ Initiative Citizens have the opportunity to make known and publicly exchange their views on EU action, and the institutions must maintain transparency and open dialogue. The Commission must carry out broad consultations with stakeholders. In addition, one million or more citizens from a significant number of EU countries can submit a ‘Citizens’ Initiative’, a form of petition, to the Commission, calling on it to take action in one of the areas covered by the Treaty of Lisbon. Any citizen, or resident, of the EU and any company registered in an EU country has the right to petition the Parliament. Representative Democracy Citizens are directly represented at the EU level in the Parliament. EU countries are represented in the Council by the heads of state or government and in the council by their governments, themselves democratically accountable either to their national parliaments, OR to their citizens.

Useful websites and contacts As English is one of the 23 official languages of the EU, you can write to/call all of these contacts in English.

Website/Institution Contact details Comment Consilium www.consilium.europa.eu The Council of the European Union: Tel: +32 (0)2 281 6111 information and news European Court of Justice www.curia.europa.eu Responsible for the interpretation and Tel: +352 43031 application of European law

EU-ABC www.euabc.com A dictionary of words relating to the EU: includes a reader-friendly version of the Reform Treaty

Europa www.europa.eu The European Union On-line: a vast website with news information on policies, law and the institutions, and contacts European Commission www.ec.europa.eu The European Commission: information, key issues and guides to EU policy European Commission www.ec.europa.eu/unitedkingdom The London office co-ordinates the European Representation in the UK Tel: +44 (0)20 7973 1992 Commission’s activities in the UK and takes Email: reijo.kemppinen.ec.europa specific responsibility for England European Court of Auditors www.eca.europa.eu Oversees Community expenditure Tel: +352 4398 European Parliament office in the UK www.europarl.org.uk The European Parliament’s office in the UK London Office: + 44 (0)20 7227 4300 exists to provide information about the role and Edinburgh Office: +44 (0)131 557 7866 activities of the Parliament itself and the EU more generally Europe Direct www.europa.eu/europedirect A service which will help you find an answer to Freephone: 00 800 67 89 1011 your questions about the EU From any EU country The Foreign and Commonwealth www.fco.org.uk Information on the FCO, its services and policies, Office Home Page Tel: +44 (0)20 7008 1500 with links to the Treaty of Lisbon The Law Society www.lawsociety.org.uk The Law Society: news and events, what we do, Tel: +44 (0)20 7242 1222 and how to become a lawyer

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