Having reviewed the latest version of the draft Treaty I have an ‘Emperor Has No Clothes’ question; the self-evident question that nobody wants to raise in public: could an EU Council Regulation not be enacted to give effect to what is in the Treaty? In other words, taking account of what is already in the Lisbon Treaty, why is an inter-governmental agreement seeking to set down ‘new’ powers over economic policy as many such powers and Union competences in this area already exist.
The draft Treaty speaks about the coordination of economic policies; so does Lisbon in the form of the Stability and Growth Pact. The draft Treaty sets out rules about a Member States’ budgetary positions which are as clear as the Lisbon Treaty’s provisions about the requirement to have sound public finances. The draft Treaty envisages a degree of flexibility as indeed do the economic surveillance rules under Lisbon. A final point for the EU constitutional lawyers: can an EU Treaty (as this may be one day) change secondary legislation (specifically Regulation 1177/2011) as is proposed by way of Treaty amendment? Surely an amendment to the Regulation can set detailed rules about benchmark average rates of reference values (whatever that means).
It is worth recalling that in the Lisbon Treaty we voted for the following:
- The adoption of an economic policy based on close coordination of Member State’s economic policies based on the principles of stable prices, sound public finances and a sustainable balance of payments (Article 119).
- Economic policies are a matter of common concern to the Union and the European Council has power to recommend broad guidelines of the economic policies of the Member States and of the Union. The Council has power to monitor economic developments and where there is a risk of jeopardising EMU make a recommendation to that Member State (Article 121).
- There is a clear Treaty requirement for Member States to ‘avoid excessive government deficits’ and the Commission is obliged to identify ‘gross errors’ with regard to set reference values. The Council must act in the event of an excessive deficit ‘with a view to bringing the situation to an end within a given period’ and has power to impose fines on the Member State in question (Article 126).
To my mind it is arguable that to a very large extent the purpose and scope of the draft Treaty could be enacted by way of secondary legislation (i.e. not requiring a referendum).
If that is in fact the case, what is the net contribution of the proposed Treaty to the vires of the Union?
Ten schillings (new currency) for anyone who proves me wrong!
