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CONVENTION ON THE FUTURE OF THE UNION

Information Note by Andrew Duff MEP

LAEKENÕS

QUESTIONS ...

... ANSWERED !

COMPETENCIES & SUBSIDIARITY

1. Can we ... make a clearer distinction between three types of competence: the exclusive competence of the Union, the competence of the Member States and the shared competence of the Union and the Member States?

Probably. The powers of the EU are widespread but fairly thin. The concept of Ôexclusive competenceÕ is nowhere defined. In any case there can be very few of them (eg. customs union, euro) because in general the Union works through power-sharing between different tiers and spheres of governance. There has never been a rigid, vertical demarcation of powers between the EU and its member states and it would be almost impossible to agree on one now. There are certainly sectors where the EU has the more forceful or principal power Ñ such as trade or monetary policy Ñ and others where it clearly plays second string to the member states, such as education and health, and this could be spelt out more clearly.

2. At what level is competence exercised in the most efficient way?

That depends wholly on the subject area. The objective is to make both the EU and its member states more efficient in delivering good policy. Many EU common policies, including agriculture, could be improved with more decentralised management. But that is not the same as ÔrepatriationÕ or ÔrenationalisationÕ: there still needs to be a CAP, with decisions over basic policy choices, regulation and finance taken at the EU level.

3. How is the principle of subsidiarity to be applied here?

1. At present, through the conventional ÔCommunity systemÕ. If it is not being applied well the fault lies with all the institutions Ñ not excluding the Council which is itself responsible for having improvised by using Article 308 TEC over 700 times to take on more powers to attain common market goals. 2. The relative activism of the Community method is less a constitutional problem than a political issue. Liberals tend to want less intervention than socialists at any level. 3. The style of EU law is in any case changing: approximation of national rules is preferred to rigid uniformity. ÔSelf-regulationÕ and other forms of soft law are popular in some quarters. 4. It would be wise, however, to redraft Article 5 TEC to remove the reference to (and the derogation from the application of the principle of subsidiarity for) ÔexclusiveÕ competence. 5. Subsidiarity means that powers can flow up to the supranational level as well as down. So any institutional innovation to ÔpoliceÕ subsidiarity would have to be able to weigh matters judiciously after having conducted in-depth policy analysis on a case by case basis. It would also need to make a proven contribution to improving the overall efficiency and openness of the UnionÕs decision making.

4. And should we not make it clear that any powers not assigned by the Treaties to the Union fall within the exclusive sphere of competence of the Member States?

No, this is a false problem. The EU enjoys no power of general competence and nobody is arguing that it should acquire one. Better to say that (1) the EU shall act only in accordance with the new Constitution; (2) it will not go beyond what is necessary to achieve its (more clearly stated) objectives; and (3) the constitutions of member states apply save where they are inconsistent with the EU Constitution.

5. And what would be the consequences of this?(ie. question 4)

1. A far more rigid system than we enjoy now in which the capacity of the EU to act would be limited rather than enhanced. Is this really what we want? 2. It would in any case be next to impossible to agree a classical definition of the exclusive powers of the EU. The Convention would quarrel and risk paralysis. It would likewise be difficult to agree a definition of the powers of the member state governments, as all differ.

REORGANISATION OF COMPETENCIES

6. How can citizens' expectations be taken as a guide here?

They can, and should. The poll evidence suggests that the citizen wants the EU to be more effective in foreign and security policy, overseas development, environment policy and in fighting organised crime. Above all, it is important not to offer the citizen a false prospectus: for example, the EU is not empowered to create more jobs for all, and member states should not pretend otherwise. Nor was it empowered in the 1990s to stop war in the Balkans, and should not therefore be blamed for not having done so.

7. What missions would this produce for the Union?

September 11th has already stretched the UnionÕs ambitions and quickened the pace of integration in the fields of both internal and external security. One could expect the EU to want to be more assertive in the Middle East, but also more widely within the United Nations Organisation. There is no want of things to be done: only the ways and means are lacking at an EU level.

8. And, vice versa, what tasks could better be left to the Member States?

1. For the Union as a whole, nothing that is not already their preserve, such as education, tourism, sport, culture, public health and social security. Here the EU can contribute to policy formation, the sharing of best practice and modest financial contributions (eg. Socrates), but the main responsibility lies clearly with member states and will continue to do so. The EU has a duty however to ensure that national social welfare systems are not impeding the mobility of labour and that the concept of EU citizenship begins to take shape on the ground. 2. For members of the eurozone there is already a tightening of the coordination of macro-economic policies. How necessary it proves to be to centralise fiscal policy will depend to a great extent on the success of the on-going structural reforms of the member statesÕ own economies. 3. Member states should take on a more direct responsibility for the delivery and co-financing of some EU common policies, including CAP and fisheries. They should also make a more positive contribution to EU information policy.

9. What amendments should be made to the Treaty on the various policies?

On the presumption that the Treaty of Nice is in the bag, one proposes in the first pillar (TEC) to make the following main changes to the Treaty. They are designed to enhance the UnionÕs capacity to act at home and abroad:- Article 3 activities of the Union: (i) needs overall clarification, but (ii) specifically, energy supply needs to be subjected to a common policy. Article 5 subsidiarity: overall revision (see Q. 3 above). Article 13.1 discrimination: QMV + codecision. Article 37 CAP: codecision. Article 42 social security for migrants: QMV. Article 47.2 self-employed: QMV. Article 52 liberalisation of services: codecision. Article 57 free movement of capital: codecision. Article 62 external frontiers: QMV + codecision. Article 63 asylum, refugees & immigration: QMV + codecision. Article 71.2 transport workers: QMV + codecision. Article 83 competition policy: codecision. Article 89 state aid: codecision. Article 93 harmonisation of indirect taxation: QMV + codecision. Article 94 approximation of law: QMV + codecision. Article 99.2 coordination of economic policies: codecision Article 128.2 employment guidelines: codecision. Article 133 commercial policy: (i) full integration of services, IPR & transport; (ii) QMV; (iii) power of assent for Parliament. Article 137.3 social conditions for workers: QMV + codecision. Article 151 culture: QMV. Article 161 structural & cohesion funds: QMV + codecision. Article 172 R&D undertakings: codecision. Article 175.2 environment tax, land use, energy supply: QMV + codecision.

10. How, for example, should a more coherent common foreign policy and defence policy be developed?

1. Combine the functions of the Commissioner responsible for external relations and the CouncilÕs High Representative on foreign policy; coupled with the creation of a proper EU foreign service. 2. Establish all operational expenditure of CFSP as part of the EU budget (Article 28.3 TEU), and integrate the European Development Fund into the same. 3. Formalise the Council of defence ministers. 4. End the exclusion of the arms industry from the single market and competition regime (Article 296 TEC). 5. Allow differentiation between member states in military decisions (Article 23.2 TEU). 6. Assert an international legal personality for the Union. 7. Adopt common policies (not just coordinated) within international fora (Article 19 TEU).

11. Should the Petersberg tasks be updated?

Add a Protocol to the Treaty to allow individual member states to commit themselves to mutual assistance (comparable to Article V of the WEU).

12. Do we want to adopt a more integrated approach to police and criminal law cooperation?

Unequivocally. At the very least Article 42 TEU should be amended to QMV + codecision to allow for the subjection of all third pillar activities to the conventional democratic and judicial safeguards of the Community method.

13. How can economic-policy coordination be stepped up?

1. By all existing member states joining the euro. 2. For member states of the eurozone to institutionalise their closer cooperation (Article 11 TEC).

14. How can we intensify cooperation in the field of social inclusion, the environment, health and food safety?

By adopting the reforms above and continuing with what we are doing now.

15. But then, should not the day-to-day administration and implementation of the Union's policy be left more emphatically to the Member States and, where their constitutions so provide, to the regions?

Admirable. But we need (i) more trustworthy national and sub-national authorities to administer EU policy; (ii) a streamlined and transparent regime for the EU agencies; and (iii) stronger Commission oversight of the whole.

16. Should they not be provided with guarantees that their spheres of competence will not be affected?

Member states already enjoy fully justiciable guarantees in this respect. Autonomous regional and local government should be given the right under a reformed Article 230 TEC to protect their own constitutional prerogatives.

17. Lastly, there is the question of how to ensure that a redefined division of competence does not lead to a creeping expansion of the competence of the Union or to encroachment upon the exclusive areas of competence of the Member States and, where there is provision for this, regions.

Hence the need for the Constitution to entrench a settlement of where power lies in the Union and who exercises it.

18. How are we to ensure at the same time that the European dynamic does not come to a halt?

1. Strengthen the European Council by adding to its number the President of the European Parliament and by subjecting it to the Community method (Article 4 TEU). 2. Allow the Commission to chair Council meetings and to become responsible for the day-to-day coordination of its work. (Reserve the six monthly rotation to the European Council.) 3. Give the European Council the power to settle the annual work programme of the Union on a proposal of the Commission, after having consulted the European and member state parliaments.

19. In the future as well the Union must continue to be able to react to fresh challenges and developments and must be able to explore new policy areas. Should Articles 95 and 308 of the Treaty be reviewed for this purpose in the light of the Ôacquis jurisprudentielÕ?

Both articles have served their different purposes, and will continue to do so, especially after enlargement Ñ although use of Article 308 should continue to decline.

SIMPLIFICATION OF INSTRUMENTS

20. The key question is therefore whether the Union's various instruments should not be better defined and whether their number should not be reduced. In other words, should a distinction be introduced between legislative and executive measures?

1. The number of instruments should be streamlined, and will be so dramatically once the second and third pillars integrate with the first. The cooperation procedure (Article 252 TEC) should be abolished. 2. There should be a clear hierarchy established between legislative and executive acts, possibly as follows: · organic laws of constitutional importance · regulations, entirely binding and directly applicable · directives, binding as to result but not to method · decisions of an executive nature · opinions of an advisory nature · codes of conduct · interinstitutional agreements.

21. Should the number of legislative instruments be reduced: directly applicable rules, framework legislation and non-enforceable instruments (opinions, recommendations, open coordination)?

See above. ÔOpen-coordinationÕ and Ôself-regulationÕ have yet to prove themselves.

22. Is it or is it not desirable to have more frequent recourse to framework legislation, which affords the Member States more room for manoeuvre in achieving policy objectives?

That depends on the case in question. There is no single administrative model with universal application, and the variable geometry of the Union will grow sharply after enlargement. In the areas of the single market that are still formative, namely financial services and telecoms, EU regulation has to adapt quickly, surely and transparently to the markets and to technology. Here there must be a growth in delegated legislation with a commensurate growth in the executive powers of the Commission, but also of the scrutiny powers of the Council and Parliament to check compliance with the original framework law.

23. For which areas of competence are open coordination and mutual recognition the most appropriate instruments?

Not self-evident.

24. Is the principle of proportionality to remain the point of departure?

This should certainly be retained, at least, from the revision of Article 5 TEC referred to in Q. 3 above.

DEMOCRACY, TRANSPARENCY AND EFFICIENCY

25. The first question is thus how we can increase the democratic legitimacy and transparency of the present institutions, a question which is valid for the three institutions. How can the authority and efficiency of the European Commission be enhanced?

1. Reducing its size and strengthening its collegial character. 2. Let it chair Council meetings & COREPER. 3. Reducing the involvement of the Council in comitology, giving the Commission more autonomy to act as the EUÕs executive. 4. Implementing its own package of administrative reforms, and then by increasing its resources. 5. Off-loading much of its hands-on micro-management of common policies to member states and competent agencies.

26. How should the President of the Commission be appointed: by the European Council, by the European Parliament or should he be directly elected by the citizens?

Nominated by the European Parliament and then appointed by the Council. This would help to personalise the ParliamentÕs election campaign and, gradually, to allow the transnational political parties to assert themselves.

27. Should the role of the European Parliament be strengthened?

A stronger and better governed European Union must be a mature parliamentary democracy. Crucial to this goal is the extension of the codecision procedure to all legislation where QMV applies in the Council (see Q. 9 above). In addition, the following: 1. The President of the Parliament should be made a full member of the European Council in give parliamentary input to the leadersÕ strategic thinking. 2. ParliamentÕs budgetary powers must extend across all EU spending (Article 272 TEC). 3. It should nominate the next President of the Commission in 2004. 4. It should acquire greater powers to scrutinise delegated legislation (along the lines of the Lamfalussy settlement.) 5. It must have the power of assent over future constitutional amendments (Article 48 TEU). 6. Codecision or assent must apply in all cases to the choice of legal base Ñ eg. Article 308 TEC (common market action where no legal base exists), use of differentiated integration among certain member states (Articles 43, 44 TEU, 11 TEC). 7. It must have power over its own working arrangements (including Statutes for Members and for Political Parties), and to settle its location. 8. Parliament should have a say in the appointment of EU judges, bankers and auditors. 9. The size of the Parliament should be capped at 700 seats in the interests of efficiency.

28. Should we extend the right of co-decision or not?

See Q. 9 above.

29. Should the way in which we elect the members of the European Parliament be reviewed?

1. Regional constituencies should be mandatory in all member states with a population of over 30 million. 2. The dual mandate should be suppressed.

30. Should a European electoral constituency be created, or should constituencies continue to be determined nationally?

630 MEPs should be elected from member states. 70 MEPs should be elected from EU wide lists.

31. Can the two systems be combined?

Why not?

32. Should the role of the Council be strengthened?

1. It would attain reinforced internal coordination and a higher external profile if it were to be presided over by the Commission. 2. It would gain democratic credibility if it were to make laws in public. 3. It would also gain respect and efficency if it were to scrap the present convoluted system of QMV and instead establish that a qualified majority will be achieved by a straight majority of states representing a straight majority of the population of the Union. (Super QMV could apply for organic laws.)

33. Should the Council act in the same manner in its legislative and its executive capacities?

There should be a greater separation of the two roles. A Law Council, composed of Ministers of Europe, should undertake all legislative acts and participate in the codecision procedure.

34. With a view to greater transparency, should the meetings of the Council, at least in its legislative capacity, be public?

The Law Council should meet in public and publish a verbatim record of its proceedings (Article 207.3 TEC).

35. Should citizens have more access to Council documents?

The classification of confidential documents should be subject to a revised interinstitutional agreement (Article 255 TEC).

36. How, finally, should the balance and reciprocal control between the institutions be ensured?

1. A Code of Conduct setting out principles and standards of good governance should be concluded and made binding on all the institutions. 2. The Ombudsman should be given privileged access to the Court of Justice.

37. A second question, which also relates to democratic legitimacy, involves the role of national parliaments. Should they be represented in a new institution, alongside the Council and the European Parliament?

1. The main duty of national parliaments is to hold their own ministers to account for their performance in the Council and to influence the general direction of their governmentÕs European policy. Some member state parliaments work better than others. All would benefit from the closer involvement of MPs at Council meetings, alongside ministers. 2. However, to give MPs their own, third chamber of the EU legislature would weaken the European Parliament, infuriate ministers, over-burden the Commission, delay decision making and confuse the public. It would be an incoherent and unloved chamber. The pre-1979 European Parliament was made up of appointed national MPs: if it did not work then it certainly will not work now.

38. Should they have a role in areas of European action in which the European Parliament has no competence?

1. There is no area of European action where the Parliament does not have competence. Its powers are variable, but comprehensive. 2. National MPs could collaborate usefully and regularly with MEPs in addressing particular political dossiers, especially in the field of security and defence.

39. Should they focus on the division of competence between Union and Member States, for example through preliminary checking of compliance with the principle of subsidiarity?

No. They should focus on scrutinising their own governments and communicating with their electorates. That is what national parliaments are for. Why a random selection of part-time MPs, with different national mandates and without party political coherence, should be able to check compliance with the Constitution is unclear. The arbiter of the Constitution is the Court of Justice.

40. The third question concerns how we can improve the efficiency of decision-making and the workings of the institutions in a Union of some thirty Member States. How could the Union set its objectives and priorities more effectively and ensure better implementation?

1. Strengthen the European Council as in Q. 18 above. 2. Strengthen the Commission as in Q. 25 above. 3. Strengthen the European Parliament as in Q. 27 above. 4. Strengthen the Council as in Q. 32 above. 5. Extend QMV in the Council to all legislation or risk paralysis. Reform the legislative, regulatory and executive instruments as in Q. 20 above. And oblige governments, when passing laws in the Council, to state publicly how they intend to implement the matter within their own state.

41. Is there a need for more decisions by a qualified majority?

Self-evidently.

42. How is the co-decision procedure between the Council and the European Parliament to be simplified and speeded up?

The codecision procedure is not unduly complex or slow, but, to inject more politics, ministers should participate in key meetings of the conciliation committee.

43. What of the six-monthly rotation of the Presidency of the Union?

It is the Presidency of the Council, not Presidency of the Union. Such typical self-aggrandisement is a sign that the present system has run its course, and should be retained only for the European Council for reasons of national prestige. Otherwise the Commission should chair the Council.

44. What is the future role of the European Parliament?

Bright. The reforms outlined above will dramatise for the public the fact that important decisions are being taken by the Union and that the Parliament has a key say in them.

45. What of the future role and structure of the various Council formations?

Ministers of Europe should form a Law Council. They should also prepare meetings of the European Council, taking on the role of the General Affairs Council, and leave foreign ministers to get on with foreign affairs. A defence Council should be formed.

46. How should the coherence of European foreign policy be enhanced?

See Q. 10 above.

47. How is synergy between the High Representative and the competent Commissioner to be reinforced?

Assimilation. See Q. 10 above.

48. Should the external representation of the Union in international fora be extended further?

The EU needs full legal personality to be able to represent itself in the UN, WTO, World Bank, IMF and other international fora. It should become a High Contracting Party to the ECHR.

TOWARDS A CONSTITUTION

49. Four sets of questions arise in this connection. The first concerns simplifying the existing Treaties without changing their content. Should the distinction between the Union and the Communities be reviewed?

The distinction between the Union and Communities is now (more than a decade after Maastricht) out of date. It has always been confusing, particularly for third countries. It has involved tortuous and distracting diplomatic procedures and some legal uncertainty.

50. What of the division into three pillars?

The Constitution must finish off the clumsy and rather undemocratic three pillar system. Things can still be done in different ways depending on the policy sector, but there must be a single basic law and a uniform institutional structure. No aspect of EU affairs should be off limits to the jurisdiction of the Court of Justice.

51. Questions then arise as to the possible reorganisation of the Treaties. Should a distinction be made between a basic treaty and the other treaty provisions?

The basic law should entrench the main features of the constitutional settlement, and be very difficult to alter subsequently. But many aspects of the present Treaties should be demoted to sub-treaty status and laid down in a set of organic laws of the Union which will be more liable to potential amendment. For example, the financial regime of the Union, which at the moment requires unanimous ratification by each member state according to their respective constitutional requirements, would fall into that category (Article 269 TEC).

52. Should this distinction involve separating the texts?

Yes, and shortening them too.

53. Could this lead to a distinction between the amendment and ratification procedures for the basic treaty and for the other treaty provisions?

One might envisage the following:- 1. The Constitution can be amended only by a Convention whose proposals require either the assent of Parliament and unanimous national ratification or the assent of Parliament, a referendum and a large majority of member states. 2. Organic laws can be amended by, say, three-quarters of MEPs and two-thirds of the Council Ñ without national ratification.

54. Thought would also have to be given to whether the Charter of Fundamental Rights should be included in the basic treaty and to whether the European Community should accede to the European Convention on Human Rights.

Indubitably. A powerful EU needs to protect its citizens against an abuse of its power. This can only be achieved if the Charter is annexed to the Constitution and made wholly binding upon EU institutions and agencies and binding on member states when and in so far as they act in the EU dimension. A constitutional chamber of the Court of Justice should be formed to deal with fundamental rights issues.

55. The question ultimately arises as to whether this simplification and reorganisation might not lead in the long run to the adoption of a constitutional text in the Union. What might the basic features of such a constitution be?

ÔLong runÕ is too long. Either the Union constitutionalises itself now, before enlargement, or resigns itself to juggling an ever-growing pile of obscure treaties. Citizens deserve to know how they are governed, by whom and from where Ñ and they deserve this now.

56. The values which the Union cherishes, the fundamental rights and obligations of its citizens, the relationship between Member States in the Union?

These are to some extent set out in the Charter which should be annexed to the Constitution with some minor amendment, including abolition of the controversial preamble (we will have a better one in the basic law) and the horizontal Articles 51-54 on scope, prohibition and level of protection.

A.N.D. 15/02/02

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Andrew's work
in the European Parliament since 1999

Andrew is Vice-President of the European Parliament delegation to the Constitutional Convention on the Future of Europe.

Rights for EU citizens

Andrew drafted the Charter of Fundamental Rights which has strengthened the rights of all the citizens of the European Union.

Turkey

Andrew is working for improved links between the EU and Turkey, to encourage improvements in Turkey's human rights record and to enhance its democracy.

Andrew's campaigning in the East of England

Airport Expansion

Andrew has led calls for the Air Travel industry to be sunjected to the same rigourous environmental criteria as other modes of transport