The Lisbon Treaty

Some of you who are studying law may already know something about the sources of law and the effect of EU law on UK law. Now that the Lisbon Treaty has been ratified, you have the opportunity to say something about the Lisbon Treaty.

As any first year law student should know, Treaties are a primary source of European Union Law.  Treaties are directly applicable.  In the event therefore that a treaty creates individual rights then those rights can be relied upon by the individual  Van Duyn v Home Office (1974), Macarthys Ltd v Smith (1980).  In addition Treaties have both vertical and horizontal direct effect.

As we all know, the law needs to be certain. So what of  the effect of Treaties so far as our own law is concerned?  The question was raised as long ago as 1972, when we joined the European Community.   Does anything further need to be done to bring Treaties to life so that they are law?  The answer is a clear and firm 'no'.  To become effective they only need the ratification of each of the 27 member states.

The Lisbon Treaty was ratified by the Czech Republic - the last EU country to do so - on the 3 November 2009, more out of reluctance than enthusiasm it seems.  Following the second vote on the Treaty by the Irish Republic the way was clear for the Treaty to be ratified so long as the Czech Republic could be convinced.  On the 3 November the Czech constitutional court threw out a legal challenge to the treaty presented by a group of senators. Later that day the country's president, Vaclav Klaus, signed the pact more by way of apology than anything else, finishing the ratification procedure.

The Treaty is expected to officially become law in December 2009.  Section 2 (1) of the European Communities Act 1972 provides that all treaties are 'without further enactment to be given legal effect or used in the United Kingdom'.

Some of you may remember that a European constitution had been planned but many saw it as yet another step towards a 'united states of Europe' and it was rejected and replaced by the Lisbon Treaty.  The Treaty itself is about streamlining the EU institutions to enable the enlarged Union, with its 27 states, to function better. You may want to take the opportunity of discussing some of the changes that will now come about.  These changes include:

  • The present system where countries take turns in nominating a president is to be done away with and replaced by an elected politician who will act as the president of the European council for two-and-a-half -years;
  • The appointment of a new foreign policy/affairs official to give the EU more clout;
  • A redistribution of voting weights between member states which is to be phased in between 2014 and 2017 based on population figures;
  • Enhanced powers for the European Commission, European Parliament and the European Court of Justice;
  • A smaller European Commission from 2014.  The EU is to move away from equality of states in the sense that it does not see the need for there to be 27 Commissioners-fewer members are presumably likely to be more effective.

Before we leave this matter for now, some of you may be wondering what the case of Van Duyn was about.  The case supports the legal point that not only does Section 2 (1) of the European Communities Act 1972 make EU law part of our law,  but it enables individuals to rely on it.  In the case of Van Duyn v Home Office (1974), the European Court of Justice decided that individuals were entitled to rely upon Article 39 giving the right of individuals to the freedom of movement.  The Court held that the Article was clear and conferred rights on individuals and therefore took direct effect. 

As a result the rights conferred on individuals could be enforced in the European Court of Justice as well as the national courts.  The Home Office, being the government department responsible for immigration controls, were found wanting in that they failed to correctly recognise the significance of Article 39.

The case of Macarthys Ltd v Smith (1980) further supported the fact that UK citizens are entitled to rely upon the provisions of the Treaty of Rome and other treaties, such as the Maastrict Treaty and the Lisbon Treaty if they create rights.  This is so even though the rights have not been enacted in English law.  In the case in question, Wendy Smith claimed that she was paid less than her male predecessor for doing what was effectively the same job.  As her predecessor had left her employer's employment, a breach of UK legislation did not arise but she was able to successfully argue that her employers were in breach of Article 141 of the Treaty of Rome which entitled men and women to equal pay.

No doubt the debate about the lack of sovereignty of Parliament will continue, as will the debate to the effect that we are not fully embracing the EU, but merely a bystander in many respects.  For example the UK has ratified the Treaty on the basis that the Charter of Fundamental Rights has been excluded so far as the UK is concerned, by a written guarantee that it will not effect UK employment law or other social rights. This is quite an important provision some of you may think, but you have not been given any say in the matter, because unlike Northern Ireland we were not allowed to have a referendum.  It would be nice to be consulted but it is now too late, the Treaty has been ratified despite the fact that it went through something closely resembling a metamorphosis in the sense that  when the text was originally agreed in October 2004 it took the form of a written constitution for member states.



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