Examination of Witnesses (Questions 114
THURSDAY 6 DECEMBER 2007
Professor Sir David Edward KCMG QC
Sir David, thank you very much indeed for giving of your time
to come to see us; we really appreciate this. We are a little
bit thin on the ground this afternoon because two of our Committee
reports are being debated in the Chamber this afternoon, so some
of our Members are not here but we have a more than healthy quorum
to put questions to you. I will, as is traditional, say that a
list of declared interests of the Members has been passed around.
As you know, you are on the record and we will be sending you
a transcript as quickly as we can after today so that you can
check and see your points have been properly reflected. As you
know, we are making progress on a fairly profound examination
of the Reform Treaty, the purpose being to present, as is our
duty, an impact assessment of this Treaty on the European Union
and, by extension, the United Kingdom so that our Members will
be informed when the ratification of the Treaty comes in the form
of a Bill into the House at some future date, maybe late January.
Would you like to make an opening statement?
Professor Sir David Edward: No, I do not think
My first question is a rather general one, but there may be some
underlying points that you would like to take up. Do you have
views on the restructuring of the Treaties, that is to say that
we now have a Treaty on European Union and a Treaty on the Functioning
of the European Union? There has been some discussion as to whether
the subordination of the second to the first has any real impact
or whether they are both of entirely equal value. Perhaps you
might like to begin by making a comment on that.
Professor Sir David Edward: Very briefly, it
seems to me that the advantage of this restructuring is that it
brings the two Treaties together in what ought at least to be
a more coherent way: the Treaty on European Union, as it were,
setting out the objectives and principles, as they used to be
and are at present set out at the beginning of the EC Treaty;
leaving the Treaty on the Functioning of the European Union for
the detail. What is the downside, so it seems to me, is that,
whereas the objectives of the EC Treaty were very clear, the objectives
in the proposed Treaty on European Union might be said to amount
in some respects to little more than a wish list. From the point
of view of the citizen and from the point of view of a court,
the proliferation of objectives, without any very clear indication
of which are to take precedence over others, is going to create
difficulty. It is, by comparison with the proposed Treaty establishing
a Constitution, an advantage that there is really no tinkering
with the substantive provisions of the EC Treaty; they remain
substantially the same and the structure remains the same. The
question, so it seems to me, is the extent to which, and My Lord
Chairman has already alluded to this, the new Treaty will downgrade
the core value of the internal market. I have always believed
that the internal market was the absolute key to the success of
the EU. In relation to that, it seems to me to be potentially
difficult that the internal market provisions are susceptible,
according to this version, to the simplified revision procedure.
There could be substantial change in the internal market provisions
without the necessity of the full revision procedure as opposed
to the simplified revision procedure. That is all I would like
to say about that.
Thank you very much. We may be coming on to the simplified procedure
a little bit later. It is something we need to raise because it
has implications for parliamentary scrutiny as well.
Professor Sir David Edward: Indeed.
Q117 Lord Tomlinson:
Will there be any and if so what will be the effect of expressly
conferring legal personality on the Union?
Professor Sir David Edward: As far as I can
see, none, in this respect, that all three Communities, all the
original three Communities had legal personality. All three Treaties
provided expressly for them to have legal personality and Article
1 of the new Treaty on European Union simply says that the European
Union replaces and succeeds the Community, by this time only one.
It is valuable to note what the Coal and Steel Treaty said about
legal personality because it really explains the logic of it.
Article 6 spelled it out in more detail and said that "The
Community shall have legal personality" and that "In
international relations, the Community shall enjoy the legal capacity
it requires to perform its functions and attain its objectives".
In other words, it could enter into binding relations in public
international law with other states and bodies. Secondly, it said
that "In each of the Member States, the Community shall enjoy
the most extensive legal capacity accorded to legal persons constituted
in that State; it may in particular acquire or dispose of movable
and immovable property and may be a party to legal proceedings".
In other words, the Community and now the Union could not enter
into contracts without having legal personality within the Member
States. Therefore I do not see that the conferring of legal personality
on the Union, in so far as it replaces and succeeds the Community,
really has any extensive effect at all. However, I may be wrong
Q118 Lord Tomlinson:
I am very grateful Lord Chairman for the clarity of that answer.
Can you, in your wildest imagination, hypothesise why so many
people are so concerned about this particular issue? I find it
impossible, but you might have a more fertile imagination than
Professor Sir David Edward: Except in the Coal
and Steel Treaty, it was tucked away at the end of the other Treaties
and possibly was not noticed. In the Treaty establishing a Constitution,
it came up front and it was perceived as part of the "European
state" proposal; but, at least understood as a lawyer would
understand it, that is a red herring.
Before I ask you the next question, I should have said earlier
that we have found the brief which you provided extremely interesting
and very helpful, and I know some of my colleagues will be referring
to it in the course of this conversation. May I come on now to
the question of the statement of the respective competences that
we now have in the new Treaty? Would you say that this is a mere
codification of the existing position as reflected in the Court's
case law? Will the statement be helpful and, if so, in what context?
What difference does it actually make?
Professor Sir David Edward: I would not say
that it is merely a codification of Court case law. There
are certainly reflections of Court case law, particularly in the
context of shared competence where it provides that where the
Union has legislated then the Member States cannot act on their
own; they must respect the legislation which has been taken in
fields of shared competence. It also reflects the jurisprudence
of the Court of Justice as regards the common commercial policy.
I am not conscious that in any other way it can be said to codify
the jurisprudence, but I do not find anything particularly surprising
or shocking in it, or new.