Friday, October 30, 2009

Agreement on the “legal guarantee” to be offered to the Czech Republic on the EU Lisbon Treaty

The blackmail tactic employed by Eurosceptic Czech President Klaus proved effective to the extent that EU leaders of the 27 Members States agreed yesterday that the Lisbon Treaty will be enriched by a new Protocol coming in addition to the 2007 Protocol no. 30 on the Application of the EU Charter of Fundamental Rights to Poland and to the United Kingdom.

According to the draft document made available on Euractiv’s website, this new Protocol simply states that Protocol no. 30 “shall apply to the Czech Republic” as well. In order not to reopen the ratification process, it was also decided that this new Protocol will be subject to national ratification procedures at the time of the conclusion of the next Accession Treaty, provided that the Lisbon Treaty enters into force (a  roughly similar mechanism was devised in relation to the June 2009 Decision on the concerns of the Irish people on the Treaty of Lisbon:

The agreement on a new Protocol is somewhat surprising considering that Klaus “only” demanded that a “footnote” be added to the Lisbon Treaty in order to guarantee that the EU Charter could not be used against some ancient and discriminatory Czech laws (the so-called Beneš decrees). This was a plainly ridiculous argument, among other things, as it has always been obvious that the EU Charter – or EU law for that matter – poses (unfortunately) no threat to the Beneš decrees: see Peer’s analysis. In any case, the solution adopted today goes much further than that as it offers a full “opt-out” from the EU Charter. 

Today’s agreement on the Czech Protocol also sets an extremely bad precedent as it “rewards” a unilateral attempt by a constitutionally incompetent national authority to renegotiate a treaty previously agreed and signed by the national government. It might be, however, that this new Protocol is a small price to pay when considering the length of time and energy spent on agreeing and ratifying a rather modest set of institutional reforms. 

From a legal point of view, it may also be worth emphasizing that Protocol no. 30 does not in fact offer any general “opt-out” regime from the EU Charter of Fundamental Rights. Indeed, Protocol no. 30 rather clarifiesthe application of the Charter in relation to the laws and administrative action of Poland and of the United Kingdom and of its justiciability within Poland and within the United Kingdom.” In other words, Protocol no. 30 does not render the Charter wholly inapplicable in the UK/Poland.

A brief look at the two provisions contained in this Protocol appears to confirm that it was essentially conceived as a PR exercise, whose main objective was to help the British government deflecting unprincipled criticism from British tabloids (the Polish twins only followed suit because of their personal obsession regarding abortion rights). 

For instance, by providing that the EU Charter does not extend the ability of the Court of Justice, or any court or tribunal of the UK/Poland to find that UK/Polish legal norms or administrative practices “are inconsistent with the fundamental rights, freedoms and principles that it reaffirms,” Article 1(1) merely restates what the Charter already provides. Indeed, several of its provisions unambiguously indicate that the Charter does not establish any new power or task for the Union. Article 1(1) does so, however, in an incredibly awkward manner by referring to the puzzling notion of “ability” rather than the traditional notion of jurisdiction. On the other hand, Art 1(1) of the Protocol will not preclude the European Court of Justice from ruling that UK/Polish legal norms or administrative practices are contrary to EU fundamental rights which are guaranteed or further developed by other provisions of EU law. Finally, one may be tempted to argue that there is a subtle difference between extending the “ability” of the Court of Justice and denying the “ability” of the Court to act. If one agrees that the Court of Justice already has the “ability” to scrutinize UK/Polish laws or practices in light of EU fundamental rights the new reservation obtained by the UK/Poland is rather pointless.

Paragraph 2 of Article 1 further states that “for the avoidance of doubt, nothing in Title IV of the Charter [the Solidarity’s title] creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.” This provision seems both superfluous and misleading. First of all, the Charter’s Title IV on Solidarity does not create justiciable rights but lists a series of principles. These principles must guide the legislative action of EU institutions and may guide the European Court of Justice when it has to review the legality of EU legislation. Secondly, the provision will be clearly ineffective with regard to the “solidarity” rights which are already guaranteed on the basis of current provisions of the EC Treaty and have been further developed by several European Regulations and Directives. Those socio-economic rights will continue to be exercised under the conditions and within the limits defined by EU law regardless of the entry into force of the Charter. And, as is well known, any provision of EU law which is clear, precise and unconditional must be given direct effect, i.e. must be justiciable. In other words, Article 1(2) of the Protocol should not be understood as giving the UK/Poland a license not to comply with its other obligations under the EU Treaties and EU law generally. In the situation where the Charter guarantees a solidarity right, which no other legally binding provision of EU law already guarantees or develops (e.g. the right to strike, a right of access to preventive healthcare), one may assume it is because the EU has not been granted the power to legislate in this particular area. The clarification obtained by the UK/Poland then serves no legal purpose since, by definition, the EU does not have the power to transform a “solidarity right” into a justiciable one by issuing more detailed legislation in order to give it a concrete meaning.

Finally, according to Article 2 of Protocol no. 30, “To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom.” On British insistence, when the Charter was finalized in 2000, it was agreed that those rights for which the EU has little or no competence will be guaranteed “in accordance with in the cases and under the conditions provided for by Community law and national laws and practices”. This wording was justified on the ground that it was critical to preserve the current allocation of powers between the EU and the Member States and the principle of subsidiarity. In practice, it means, for instance, that the right to protection against unjustified dismissal, unless further developed by EU legislation, must be interpreted and implemented in light of national law. The additional clarification obtained in 2007, therefore and once again, only restates the obvious.

The new Protocol will, therefore, merely enable the Czech Republic to rely on the “clarifying” and rather futile, if not embarrassing, provisions of Protocol no. 30. President Klaus must be proud. He secured a legally-binding yet meaningless guarantee to answer a non-existing problem. The cost? Serious damage to the Czech Republic’s reputation as a serious and reliable country.

Laurent Pech

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