Strengthening the foundations of the European house

Strengthening the foundations of the European house

The draft Praesidium Constitutional Treaty includes some considerable progress towards outlining a clear legal structure for the Union, but sends ambiguous signals as to the future division of powers.

Introduction

1. The text of a Preliminary draft Constitutional Treaty, “drawn up by the Praesidium”, was presented to the plenary session of the European Convention on 28 October 2002.

2. The draft contains the following disclaimer:

“The aim of this text is to illustrate the possible articulation of a Treaty. The inclusion (or non inclusion) in Part I of some articles, and the exact content of others, will depend on the Convention’s proceedings. Their treatment in this text is in no way intended to prejudge the result of the Convention’s debates.”

3. The text contains a preamble plus three parts namely:

I. Constitutional structure

II. Union policies and their implementation

III. General and final provisions.

4. There is then a summary description of Part I with its 46 articles.

General remarks

5. The objective of Convention President Giscard d’Estaing is to conclude a detailed Constitutional Treaty for adoption by consensus at the end of the Convention next summer. A second, revised draft is expected before Christmas.

6. Confirmation that the architecture is a good one may be deduced from its welcome by both federalists and the British government.

7. This is a shrewd approach for three reasons. First, the ‘constitutional’ approach will force the Convention to focus on a holistic solution. Second, it will be easier to reach consensus on a complete package than on a series of individual recommendations. Third, it will make it much more difficult for the Member States not to follow the text in the Intergovernmental Conference if it is backed by a broad consensus of legitimate representatives of national and European institutions.

8. Members of the Convention now share a basic text which represents a concrete point of reference for future work.

9. As remarked during the debate in plenary session, only a few months ago the concept itself of a founding document of a constitutional nature seemed to many suitable for academic debate, but not for serious political negotiations. Today, the context for European integration has changed: Europe will have a constitutional treaty.

10. The structure of Part I is broadly satisfactory as a basis for further discussion.

11. Although it is only a framework, the document already provides some political indications, at least of Giscard himself – on the future shape of the Union.

12. As is natural at this stage, the document is not fully consistent. It is important to distinguish between provisions affecting the entire institutional and political framework, and those affecting more particular aspects.

13. The draft Constitutional Treaty introduces a number of systemic innovations and improvements.

14. The Treaty on the European Union (TEU) and the Treaty establishing the European Community (TEC), and the many associated protocols, will be repealed and merged into a single text divided in three parts. This will lead to a much simpler instrument and will stop the ever-growing accumulation of legal acts since the Treaty of Rome. The division between provisions of a ‘constitutional’ nature in the first part of the new document and the rest in the second part will boost the political relevance of the Union and enhance its understanding by citizens.

15. However, it is not clear why some important provisions – including mechanisms for the entry in to force of the Constitutional Treaty and its amendment – have been allocated to the third part as opposed to being incorporated at the end of the first part. That would be a further contribution to simplification, and would not seem to raise legal problems.

16. It makes sense that the division into different treaties or different ‘pillars’ is replaced by a single political-institutional system, corresponding to a single legal actor.

Preliminary comments

17. There follows comments on individual articles.

Article 1: creation

18. Four possible names are suggested – European Community, European Union, United States of Europe and United Europe.

19. The reason why the Union is defined only as “A Union of European States”, neglecting the present reference to the people of Europe in Article 1 TEU, is not self-evident. It is contrary to the word and spirit of the existing Treaties and it is to be expected that this will be rectified.

20. The provision that certain common competences are to be administered “on a federal basis” is to be welcomed.

Article 2: values

21. “Solidarity” has been omitted – no doubt erroneously.

Article 4: legal personality

22. Following the conclusions of the Working Group on Legal Personality chaired by Giuliano Amato, the legal personality of the Union is explicitly recognised. This is an important step to enable the Union to play a fully-fledged international role – including negotiations and representation in international organisations – and for it to be legally responsible to EU citizens.

Article 5: citizenship

23. The idea that every citizen of the Union enjoys a “dual citizenship” – European and national – seems an appropriate and constructive contribution to reconciling multiple standards of rights and obligations, and essentially multiple identities.

Article 6: Charter of Fundamental Rights

24. This article reflects the findings of the Working Group on the Charter of Fundamental Rights chaired by Antonio Vitorino, providing for the Charter to be incorporated in the Constitutional Treaty. Three options are outlined: merely referring to the Charter, including the Charter in a protocol or, inserting it in the body of the Treaty. The Working Group’s strong favouring of the binding legal value of the Charter was largely backed at the plenary session. The majority of the group called for direct incorporation

Article 8: primacy of Community law, subsidiarity

25. The primacy of Union law over national law, a long-established principle in the jurisprudence of the European Court of Justice, is rightly restated. The difficult and delicate question as to whether this would also apply to the Constitutional Treaty in relation to national constitutions requires further investigation and debate.

26. The principle that “the acts of the Institutions are implemented by Member States” is correct, but such unconditional wording could lead to misunderstanding over the future role of the Commission, in the light of the current wording of Article 202 TEC. The impact of this principle on the reform of the ‘comitology’ system is a matter which requires further reflection in the light of the problems for uniform implementation that enlargement could entail.

27. National parliaments would have a role in monitoring subsidiarity but its nature is not specified. It is important that they not be allowed to block decision-making.

Article 9: competences

28. Articles 9 to 12 envisage listing competences in three catalogues, namely exclusive Union powers, shared responsibility or belonging to the Member States (in which case the Union only “supports or coordinates” acti on by them). At this stage, the nature of these provisions is ambiguous and it is unclear whether they have legal or political value. If these catalogues are to delimit powers legally, then this is neither desirable nor appropriate. Fortunately, a detailed delimitation is not achievable: if it were achievable, it would be far too complex (in particular for a constitutional document). If it were not so complex, it would be legally pointless, and would have as a sole result the constraining of policy-making by the Union.

Article 14: institutional structure

29. The combined reading of the second indent with Articles 1 (second indent), 3 (last paragraph) and 13 leads to an awkward distinction being made between policy areas within the scope of exclusive or shared EU competence, and areas where Member States “closely coordinate their policies at the European level”, “define and pursue common policies, within the Union framework” and jointly7 exercise competences belonging to them.

30. This distinction seems regressive when looking at the evolution of the Union’s powers and the political priorities ahead. Rather than carrying out the declared intention of dismantling the current ‘pillars’ while preserving different procedural mechanisms for specific cases (e.g. decisions with military implications), a division is apparently made between a broadly speaking ‘Community’ pillar and an explicitly ‘intergovernmental’ dimension of policy-making.

31. Such division conveys an incorrect perception of daily practice, as both EU officials and national policy-makers stress the added value of working within the EU legal and political framework. Javier Solana speaks for the Union, not for Member States coordinating their foreign and security policies. It is also the wrong direction for real progress. Instead of three pillars, we may end up with two (ivory) towers.

Articles 15 and 15 bis: European Council

32. This article provides that the European Council becomes a fully-fledged institution and a Presidency of the European Council is established. Irrespective of its merits, this idea has been inserted in the absence of discussion within the Plenary sessions of the Convention. The institutionalisation of the European Council, moreover, seems somewhat at variance with the indications provided in the conclusions of the European Council of Seville, aimed at making its functioning less formalized and at limiting its mandate to providing strategic impulse.

Article 17: Council formations

33. No separation of Legislative and Governing Councils is indicated.

Article 18: Commission

34. The monopoly of initiative of the Commission is confirmed. This is a very welcome clarification given the suggestion of some Conventionists to extend such right to the European Parliament, or even to national parliaments.

Article 19: Congress

35. The “possibility of establishing a Congress of the Peoples of Europe” involving members of the European parliament and members of national parliaments was mentioned in the report by Gisela Stuart’s Working Group on the role of national parliaments. There is concern that this means creating either a new institution that would have concrete powers, and therefore complicate the system, or would be a chat-room, and therefore of little use.

Article 25: legislative procedures

36. The widespread support for simplification of the legislative instruments and procedures available to the Union is reflected in this article, which refers to the simple concepts of “laws and framework laws”. On the other hand, the indication of legislative “procedures”, implying something that goes beyond co-decision and majority voting, requires clarification.

Articles 29-31: current Pillars II and III policies

37. These articles are to outline implementing procedures for, respectively, common foreign and security policy, defence policy, and police matters and crime. Specific procedures will be required to manage these policy areas but drafting three related articles in the constitutional part of the Treaty apparently seeks to maximise their continued intergovernmental character at the expense of simplification and efficiency. It would be preferable to state the standard procedures in the first part of the Treaty, referring to the relevant exceptions in the second part.

Article 32: enhanced cooperation

38. Provisions concerning enhanced cooperation are grouped in this article. This marks a significant progress when looking at their present division across ‘pillar’ lines and remedies previous failed attempts at simplification.

Article 36: transparency

39. This article establishes that the legislative debates of the Council are to be public. However, no reference is made to the separation of legislative formations of the Council from executive formations.

Article 38: Union’s resources

40. The financing of the EU by own resources is a major innovation on the revenue side of the budget, and will enhance the financial independence of the Union from Member States’ contributions.

Article 42: neighbouring states

41. This article is designed to create privileged relationships with neighbouring states, presumably differing from Association Agreements.

Concluding remarks

42. Finally, some questions as to the way the provisions are distributed across the text:  

First, the need for a specific title dedicated to “The democratic life of the Union” should be tested against the heterogeneous nature of the provisions included. These range from stating the principle of participatory democracy to establishing a uniform procedure for the election of the European Parliament, and from ensuring the publicity of Council legislative deliberations to defining qualified majorities. Each of these useful provisions would better be transferred to the relevant part of the text, as – assuming there to be no hidden challenge to this democratic nature – there is no clear added value in clustering them.

Second, similar reservations apply to locating Article 41 under a specific title concerning “Union action in the world” which seems to contain little action. The role and future rank of the CFSR High Representative would seem better placed together with the other institutional provisions.

Third, establishing a title on “The Union and its immediate environment” in what should be the core part of the Constitutional Treaty deserves some further thinking. Alternatives include grouping Article 42 with other provisions related to the external dimension, or transferring it to the second part of the Treaty.

43. Our overall assessment of this preliminary draft Constitutional Treaty is favourable. It constitutes a constructive step towards the functioning of a legitimate and efficient Union of 25 or more countries. Given the state of the debate in the Convention, it is early to say which of the seeds currently sowed in the draft will grow, but particular attention will have to be paid to the balance of the institutional framework and the coherence of decision-making. The inspiration, above all, should lead to more cooperation in achieving common goals and less separation between tasks and mandates.

By Stanley Crossick, Director and Founding Chairman of The EPC, and Giovanni Grevi, Associate Director of Studies of The EPC

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