Commentary on Sections Restrictions relating to amendments of TEU or TFEU Section 3: Amendment of TFEU under simplified revision procedure
44.This section requires certain conditions to be met before any Article 48(6) decision can be approved by the UK. An Article 48(6) decision can amend any aspect of Part Three of TFEU (see paragraph 22 above). The conditions are almost identical to those set out in section 2 in respect of proposed treaties, namely that: (a) a Minister has, in accordance with section 5, laid a statement before Parliament as to whether or not a referendum is required; (b) the decision to be approved by the UK has been approved by an Act of Parliament; and (c) either the ‘referendum condition’, the ‘exemption condition’ or the ‘significance condition’ has been met in each case.
45.The requirements of this section differ from those of section 2 in that they include the ‘significance condition’ provided for by subsection (4). Some Article 48(6) decisions may be proposed which seek to confer on an EU institution or body a new or extended power to require Member States to act in a specified way in accordance with the EU’s existing competence; or to confer on an EU institution or body a new or extended power to impose sanctions on Member States for their failure to act in a specified way already provided for by the Treaties. Such a move would not, in itself, transfer competence (the ability for the EU to act in a given area) from the Member States to the EU – instead, such a proposal would allow an institution or body of the EU to use the competence conferred on it already by the Member States in a different way. These two ‘transfers of power’ from the UK to the EU would be caught by section 4(1)(i) or (j), and a future proposal to do either of these things would generally require a referendum to be held under section 3.
46.However, there may be instances in the future where the Simplified Revision Procedure might be used to give a new power to a body in an area which is not significant to the UK. In these cases, the Minister’s statement under section 5, and the Act of Parliament required by this section, may state that the proposed Article 48(6) decision would confer on an EU institution or body a new or extended power to require Member States to act in a specified way; or to confer on an EU institution or body a new or extended power to impose sanctions on Member States for their failure to act in a specified way already provided for by the Treaties. This would be a transfer of power from the UK to the EU falling within section 4 of this Act, but the Minister would be able to specify that the proposed changes were not significant, give reasons why this is the case, and therefore decide that a referendum would not be required.
47.The inclusion in this section of the ‘significance condition’ minimises the risk that a referendum will be required in relation to the transfer of a power considered to be insignificant. As with all Ministerial decisions, it would be possible for a member of the public to challenge the decisions of the Minister in such a statement. Even when the ‘significance condition’ is met, the proposed Article 48(6) decision would still require Parliamentary approval by Act before the UK could approve the Article 48(6) decision which gave rise to the change, and during the passage of that Bill the question of significance could be considered.
48.This ‘significance condition’ only relates to any changes which would fall under the criteria in section 4(1)(i) or (j) and only in those cases where the Minister judges that the proposed transfer of power is not significant to the UK. If any Article 48(6) decision also satisfied another criterion in section 4, a referendum would then be required in accordance with the provisions of this section and section 4.