A Constitution for the Union

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV Media network.

A Constitution for the Union

An EPC dialogue on “A Constitution for the Union ” was addressed by Giuliano Amato, Vice-President of the Convention on the Future of Europe and Professor Franklin Dehousse, of the Royal Institute for International Affairs. A question and answer session followed. This is not an official record of the proceedings and specific remarks are not necessarily attributable.

Introduction

EPC Director and Founding Chairman Stanley Crossick opened the Dialogue by reporting a “broadly favourable” first response to the “Giscard draft Constitutional Treaty”, the architecture being welcomed by federalists and non-federalists alike. The “negotiating phase” had now clearly begun, and two important submissions were awaited – the Commission’s position on 18 November and a Franco-German joint position paper. A second, revised framework text of the constitution was expected before Christmas from the Presidium of the Convention and in January the work of filling in the details should begin.

The Convention’s objective was a detailed constitutional treaty for adoption by consensus at the end of the Convention next summer. It would be in the form of one integrated text, making it harder for the Member States to ignore the findings, especially as they set up the Convention as a fully representative body.

But it was now important to move the discussion from one involving only the elite. The EPC was following the Convention closely, preparing working papers and presenting its views. The EPC’s mission was European integration and its preferred outcome therefore “integrationist” rather than “intergovernmentalist”.

The problem at the moment was that the broadly intergovernmental faction comprising London, Paris, Madrid and increasingly Rome, was the loudest voice. A large majority of the Convention was broadly integrationist and it was essential that all interest groups be heard, not just directly in the Convention but more importantly in national capitals.

The EPC’s current priorities were:

– Establishing a structure that would allow non-constitutional treaty amendments to be adopted without ratification by Member States. Also, amendments to the constitutional part should not require unanimous ratification – although constitutional law implications have to be studied further.

– Opposing the establishment of a detailed catalogue of competences.

– Strengthening subsidiarity, without giving national Parliaments blocking powers over its application.

– Maintaining the Commission’s sole right of legislative initiative.

– Strictly separating the Legislative and Governing or Executive Councils.

– The Commission President being elected by the European Parliament and confirmed by the Council.

– The Council Presidency rotating between the Member States every six months, as it does now, but if the Legislative and Executive Councils were separated, an integrated President of the European Council and Commission might be acceptable.

– Simplifying procedures by abolishing unanimity in Council, introducing voting by double majority of Member States and population, rationalising co-decision and applying it generally.

– Increasing the role of national parliaments in particular by holding Member State governments to account, without making decision-making more cumbersome.

– Strengthening EU powers in external policy and introducing more integrated procedures for external trade policy, CFSP and defence matters.

The Perils of a European Constitution

Professor Franklin Dehousse, of the Royal Institute for International Affairs, made three key points about the difficulties of drafting a European Cons titution. Based on his personal experience of the constitutional exercise, he made the following remarks and drew conclusions with respect to the achievements of the Convention so far:

1. Drafting a Constitution is very complex. The idea is supposed to be to make things clear and simple, but the process to achieve this inevitably gets complicated.

2. It takes more time than expected. Meeting current deadlines will be difficult for the Convention without detailed discussions starting now.

3. The scope of the negotiation is almost limitless. The Convention process and the following IGC are by far the broadest negotiation that have taken place in the Union since its beginning. Thus, solutions will be impossible without taking account of the global picture and the fact that everything is interrelated.

There were already “all kinds of problems” in the draft Treaty and he predicted the end game would be the hardest part, when the final terms of a constitution were being put in place. By that time, the drafters were unlikely to feel rewarded for their hard work since they would be subject to criticism from all quarters and put under intense pressure.

Meanwhile, the following questions needed addressing:

  • role of the Charter of Fundamental Rights;
  • division of powers between the Legislative and Executive Councils;
  • “efficient” reform of the Council Presidency;
  • Commission President;
  • scale of the constitutional aspect;
  • fate of the pillar system;
  • role of national parliaments;
  • revision of the EU financing system.

Current Steps Towards a Constitution for the Union

Convention Vice-President Giuliano Amato said he was generally satisfied with the architecture of the draft Treaty so far. The result was substantially what he had in mind, but one problem would be the relationship between the text on the constitution and the non-constitutional part. This was both a political and legal problem – the search for a single legal identity coupled with a constitution. The choice was between consolidating the existing treaties with a separate self-standing constitutional declaration, and creating a new legal text – a “constitutional chapeau” – sitting above the rest.

Mr Amato initially favoured the latter, because a constitution was always the “supreme law of the land”. But he acknowledged that giving the constitution more legal force could downgrade the legal status of many aspects of EU policy, such as the “beautiful” competition articles. Other people, he said, might have the same views about other articles.

That was why he finally backed the option of a single text divided into a constitutional part and a part containing policy provisions. Mr Amato suggested that the amendment procedure to be included in the future Constitution could do away with ratification and require unanimity within Union institutions.

The problem would come if the final text were not unanimously approved, because current legal arrangements (i.e. unanimous ratification by Member States) will apply to the outcome, even if the constitutional Treaty proposed arrangements in which unanimity would not be required in future.

However, it was politically unthinkable that one Member State could block the whole constitutional process alone. And there cannot be any derogation since “opting outs” could only apply to specific policies and not to the basic institutional framework. This was the “unspoken” issue, at the centre of Convention attention.

On the Charter of Fundamental Rights, he said the agreement so far is based on a Charter embodying both principles and rights. Economic and social issues were “principles”, while civil, political and personal freedoms and liberties were directly enforceable “rights”. The question now was the “competence of competences” to decide whether one single articl e of the Charter embodied a principle or a right. This was an intriguing point, but in any event the Charter, originally seen as a big obstacle, was in place.

More difficult was agreement on the institutional aspects because “there is nothing so difficult and complex as simplification.”

Mr Amato suggested ending the confusing administrative terms “regulations” and “directives”. They should be replaced by “laws” and “framework laws” respectively. But a big question in a constitutional structure was to establish what was a legislative and what was an executive measure?

In the new set-up, it must be clear which measures required European Parliamentary consent and which basic executive decisions did not. Here, there is a conflict between the procedural definition of a “law” (i.e. any legal act that is adopted through the legislative procedure) and the substantive definition (i.e. any legal act that sets out basic political choices) – an issue that has still to be debated and decided upon.

A single voice for the EU?

Another controversial institutional issue is the role of the Council’s “High Representative” for foreign policy and the Commission’s External Relations Commissioner. The question was whether the two functions should merge and whether there should be a single person responsible. In any case, a “double-hatted” person would give the EU the single voice in foreign and defence issues that it so desperately needed

Similar questions arose regarding the Presidency of the European Council. Mr Amato wondered what a permanent, separate President of the Council on a long mandate (as proposed by Tony Blair, Jacques Chirac and José Maria Aznar) would do between the four EU summits each year: “run around the President of the Commission probably,” commented Mr Amato. Therefore, clarification of roles and competences would be vital if the separate roles continued. If the Presidencies were “integrated”, this problem would be solved. The “double-hat solution”, applied to the European Council and to the Commission, would imply that the President of the Commission was also the President of the European Council.

On external relations, Mr Amato noted that some, such as the Swedes, were sincerely European, but saw Europe as a joint venture and not a merger. Mr Amato considered this to be a wrong approach but felt that an effort was required to come to terms with this. However, he argued that CFSP required a single voice, just as the EU with Trade Commissioner, Pascal Lamy: “When he speaks none of our ministers dares to interfere: I dream of a future of European ministers, instead of Prime Ministers queuing outside President Bush’s door – it is so humiliating” said Mr Amato.

Discussion

Answering questions, Mr Amato said an integrated presidency with double accountability, as proposed by MEPs Andrew Duff and Pervenche Berès might be the only way to avoid the inevitable institutional clashes between Council and Commission presidencies, occupied by former Prime Ministers. Mr Amato could see no insuperable obstacles to double hatting but admitted that a debate about the implications was needed. Indeed, the common argument that it was not desirable to have two potentially conflicting presidencies was essentially negative and should be buttressed by more positive ones.

Asked about competences, Professor Dehousse said he was wary of predicting any Convention agreement at all on the issue, and he was particularly sceptical about the suggestion of listing Member State responsibilities – or of European competences for that matter.

Vice-President Amato, however, held a different view. If the future Constitution explicitly recognised, for the first time, the existence of exclusive Union competences, it would be very odd, puzzling and frustrating for citizens, not to spell out what they were.

Meanwhile, the relationship between economic and social policies had not been resolved at working group level but might be in plenary later. A majority in the Convention supported the need for a link, not in any way to modify the Stability and Growth Pact, but to enhance it with other performance indicators, such as employment.

Mr Amato acknowledged a questioner’s concern about the absence of any solutions so far to the issue of secondary legislation. It was a very complicated problem, because in the legislative process, all institutions are involved but the biggest hat of all is worn by the Member States as the EU’s executive power-base. Comitology had often been criticised by anti-Europeans and federalists alike. However, in practice it has been a coordinating device under which Member States coordinate with each other to execute primary regulations.

There were problems for those fearing the erosion of Member State prerogatives, but the simplest solution was to conclude that any act of a legislative nature is for the European Parliament and the Council, while implementation is for the Commission, with responsibility to the legislators. “This is clear and simple, but I am not sure we can reach this simplified solution because it would cut out the Member States entirely, and make the system much more federal than it can probably afford to be,” said Mr Amato. Apart from anything else, it would require a huge and expensive administrative machine compared with present arrangements under which national authorities effectively pay most of the cost of implementing EU rules via their own legislative machinery.

Asked which of the draft treaty’s options for the EU’s future name he preferred, Mr Amato pointed out that the current name had developed roots, but he favoured “United Europe” because it reflected unity at a time of enlargement and a new constitution.


For more analyses from The European Policy Centre, visit the

EPC website.  

Subscribe to our newsletters

Subscribe