Convention split over powers for Court

Date: 13/02/03

By Dana Spinant

DEEP divisions have emerged within the Convention on the future of Europe over whether to extend the powers of the European Court of Justice (ECJ) to cover foreign affairs and justice matters.

While some perceive this as a "logical" development, others see it as a political no-hoper. A reflection group was due to gather in Brussels today (13 February) to discuss the issue, which has hardly been addressed compared to the high-profile debate over the distribution of power between the major institutions.

If the Court were to be given expanded jurisdiction - a prospect regarded as heresy by Peter Hain, UK representative on the Convention - the result would be a seismic shift in the political and legal landscape of the Union.

Commissioner António Vitorino, chair of the Convention's ECJ 'reflection group' meeting today, insists that everything is still open in the debate. However, other senior Convention members believe that extending the Court's powers over all parts of the future treaty is "a logical step".

The insertion of the Charter of Fundamental Rights into the treaty and the abolition of the intergovernmental pillars, under which member states have authority over common foreign and security policy (CFSP) and justice and home affairs (JHA), could lead to an extension of the ECJ's jurisdiction over these sensitive areas.

The Court could impose penalties on member states for non-respect of their CFSP treaty obligations and be given authority to ensure that citizens' rights are respected by EU institutions.Vitorino, a member of the Convention's praesidium, insists "it is not automatic that the Court has jurisdiction over CFSP. It could have different degrees of authority over parts of the treaty," he told European Voice.

MEP Andrew Duff, a member of the reflection group, believes that bringing CFSP and JHA under the Court's jurisdiction is "the logical extension" of the abolition of the pillars.

He thinks the Court should be given jurisdiction over all EU activity, however the sanctions the Court could apply in relation to breaches of CFSP treaty provisions could differ from breaches of internal market rules.

Others are not so sure that extending the ECJ's power is realistic.

A member of the Convention's secretariat suggested that the political sensitivity and nature of CFSP would make it difficult.

"It is a policy based on member states' political will, and, moreover, it is not ruled with laws whose application can be easily verified by the Court," he said.

Duff, a constitutional law specialist, agrees that "you cannot trap member states in a CFSP that they do not like".

However, he believes the Court will have a role to play in foreign affairs, for instance over the EU's new rapid reaction force.

"The Court could be called to observe if the force went outside its mandate, if, let's say, instead of peacekeeping in Macedonia, it started an attack on Moldova.

"It would rule on a breach of its instructions during a mission," he added.

However, the Liberal MEP does not foresee the Court imposing fines on countries which depart from a common line on foreign policy, such as the five whose leaders recently signed a letter expressing solidarity with the US.

The biggest extension of the Court's powers would be over citizens' rights, through the incorporation of the Charter, said Duff.

"We would need to think of mechanisms and resources to help the Court cope with this," he added.

Deep divisions have emerged within the Convention on the future of Europe over whether to extend the powers of the European Court of Justice (ECJ) to cover foreign affairs and justice matters.

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