House of Commons - Foreign Affairs

Select Committee on Foreign Affairs Sixth Report

OTHER IGC ISSUES

29. The Helsinki Council agreed that the Portuguese Presidency would report to the Feira Council on the additional issues to be included in the IGC. As noted above, the Presidency reported that there was agreement that flexibility or closer co-operation should be included in the IGC's agenda. It also noted that amendments had been proposed to Article 7 of the Treaty on European Union, which deals with breaches of the principles laid down in Article 6, which sets out the values of the European Union.[87] On the question of additional issues for the IGC agenda, the Government has stated that it is "keen to press ECJ [European Court of Justice] reform, on which discussion is already progressing well, and we expect the Presidency also to include closer co-operation, the extension of codecision and the composition of the European Parliament, Economic and Social Committee, Committee of the Regions and the European Court of Auditors. We are content to discuss all these within the IGC."[88] We address each of these issues in turn, as well as the European Charter and the Common European Security and Defence Policy, which may also be on the agenda of the IGC.

Flexibility

30. A distinction must be drawn between two sorts of flexibility in the EU. One may be called "one off" flexibility (the Portuguese Presidency has called this "predetermined flexibility"): for example, some Member States have adopted the euro, while others have not. The Foreign Secretary told us that there might be scope for further flexibility of this sort in dealing with questions related to the EU's defence identity.[89] The second sort of flexibility, which has been the focus of discussions in this IGC, refers to a set of procedures introduced by the Treaty of Amsterdam. It is also known as "closer co-operation" or "reinforced co-operation" or "enhanced co-operation", and permits a group of Member States to integrate or co-operate more closely than is provided for by the rules which apply to all Member States. This sort of flexibility covers the first (Community) pillar and the third pillar (police, customs, and judicial cooperation in criminal matters), but not the second pillar (the Common Foreign and Security Policy). These provisions have not yet been used. M. Barnier, the Commissioner for the IGC, told the Committee on 3 February 2000 that in an EU of 30, it would be necessary to allow a small group to move ahead without blocking the work of the EU. He said that without reinforced co-operation members would move ahead outside the EU. Mr Mather has pointed out that "heavyweight players" such as Jacques Delors, former President of the Commission, have now begun to discuss flexibility.[90] President Chirac added impetus to these discussions by making the question of a "pioneer group" served by a "secretariat" the centrepiece of his address to the Bundestag on 27 June 2000.[91]

31. Some argue that existing examples of one-off flexibility, such as border controls, are working well, and that there is no requirement to change the rules introduced at Amsterdam. The Government has opposed extending the scope for flexibility on the basis that the existing procedures have not yet been used, and that too much flexibility would undermine the Single Market.[92] Overall, Mr Vaz told us that too much flexibility would result in "a two-tier Europe."[93] He also told us that he believed that flexibility was a "sort of insurance" for some Member States, so that in an enlarged EU they could be sure that they would not be blocked from increasing their co-operation.[94] In contrast, Lord Brittan has said that he believes that the flexibility debate is "not much to do with enlargement...it is much more to do with the balance within the existing Member States."[95]

32. Divisions on this issue relate to two areas. The first is the question of the number of Member States able to establish closer co-operation. The requirement under the Treaty as it stands is that a majority of Member States must move ahead together—with the current membership of the EU, this means eight countries. The Commission has proposed that this threshold should be reduced to a third of Member States. The second is whether any individual state should continue to be able to veto closer co-operation by others (the so-called "emergency brake"). The UK argues that this condition should be maintained: the Commission argues that it should be dropped. The Portuguese Presidency noted in its Report to the Feira Council that "the conditions set for closer cooperation could be differentiated according to pillars and fields so that rights which the Treaty accords to non-participants, notably in the area of the internal market, are fully preserved, and that no artificial barriers stand in the way of initiatives which, by their nature, cannot affect the interests of non-participating Member States." It also proposed that "the role of the Commission and the general requirement to give reasons should be strengthened in whatever new procedure is adopted and that the open nature of the models should always be preserved, on the basis of transparent and objective catch-up conditions."[96]

33. The Commission does not make this point, but one of the implications of the changes it proposes to the flexibility procedure would be that if the next wave of enlargement took in at least three candidates—a conservative assumption—the original six members of the EU could establish closer co-operation without reference to any other Member State.

34. Professor Wallace argued that flexibility risks becoming "a vehicle for extensive opting out of collective regimes by one government after another...the second danger is that flexibility is used as a tool to deny the new member states a real voice in the EU process."[97] These must be real concerns in discussions of flexibility. On the other hand, Mr Mather has said that "the idea that in two or three years you would have a highly fragmented European Union seems to be very unlikely."[98] The Foreign Secretary also rather down-played the prospects for reform of the flexibility procedure, telling us that the supporters of changes "have not come up with a model of how it would work" and that the proposals are "relatively modest."[99] Particularly in the light of President Chirac's intervention in the debate, this analysis appears questionable.[100] One of the particular concerns raised by the efforts to enhance the scope for flexibility is how the extra costs of any enhanced co-operation will be distributed among Member States. Under the current flexibility arrangements, any administrative costs are carried by the institutions in the normal way, but other expenditure is borne only by the participating states unless the Council decides otherwise by unanimity. As with the rest of the flexibility provisions, this arrangement has not yet been tested, and may be called into question if flexibility becomes a significant part of the work of the EU. President Chirac recognised this in his speech to the Bundestag by proposing a separate secretariat for the "pioneer group"—this would ensure that only the pioneers pay the administrative costs of their pioneering activities. Of course, the creation of a new secretariat raises a range of new questions, but, as President Chirac has said, his speech to the Bundestag aimed to "set out a vision for the future" rather than being part of a "clearly defined agenda" of the French Presidency.[101]

Article 7

35. The sanctions imposed by fourteen Members of the EU against Austria have created an impetus in some Member States for the reform the EU's procedures for dealing with issues of this sort. The Portuguese Presidency Report to the Feira European Council noted that proposed amendments in this area mainly involved "the addition to Article 7 of a procedure for determining the existence in a Member State of a threatened breach of the principles laid down in Article 6(1)."[102] Article 6(1) states that "the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States."[103] Article 7 concerns the sanctions which the Council may take against a Member State deemed to be in breach of Article 6(1). According to the Portuguese Presidency, some delegations felt that Article 7 should be amended so that decisions on breaches should be taken not by QMV, but by other sorts of majority. The Presidency has proposed a draft amendment which would allow decision making by a majority of nine tenths on this issue.[104]

Reform of the European Court of Justice (ECJ)

36. Discussions in the IGC appear to have made most progress in the area of reform of the ECJ. The ECJ exists to safeguard the law in the interpretation and application of the Community treaties, to decide on the legality of decisions of the Council of Ministers or the Commission, and to determine infringements of the treaties. Cases may be brought to it by the Member States, European institutions, companies or individuals. It is composed of one judge per Member State, plus one additional judge if necessary to bring the total number of judges to an odd number (not currently necessary in the EU of fifteen). Pressure for reform of the ECJ has been created by the dramatic rise in case-load brought about by the increase in the ECJ's powers introduced in the Amsterdam Treaty. The consequence of this, Mr Vaz told us, is that "it takes a great deal of time to get cases referred and then to get cases through the procedure."[105] These problems are likely to get worse with the enlargement of the EU. As a result of the BSE crisis, and the time it has taken to obtain judgements under the ECJ, the UK is particularly sensitive to the need to reform, although there is a broad consensus across the EU that reform is necessary. (However, it should be noted that the French Prime Minister did not mention the need for ECJ reform when he set out the priorities for the French Presidency to the French Parliament).[106]

37. We have already referred to the Government's support for the introduction of QMV for the amendment of the Court's procedures.[107] The Government also suggests that "the IGC might look at...how to filter appeals to the ECJ from the Court of First Instance[108] and the setting up of a tribunal to handle disputes involving staff of the Community institutions."[109] The Commission has submitted detailed proposals for the reform of the Court,[110] which draw upon a previous report by EU legal experts. The Commission supports the UK position that there should be QMV on the Court's rules of procedure, but the Commission's proposals appear to be more radical than is likely to be acceptable to Member States. For example, the Commission proposes that infringement proceedings against Member States should be ruled upon by the Commission (rather than by the ECJ, as at present), with the right for Member States to appeal to the ECJ, thereby shifting the burden of proof from the Commission to the Member States. The Court itself has also submitted proposals for reform.[111] According to the Report of the Portuguese Presidency to the Feira European Council, "all delegations agree that it is necessary to provide...for a sufficient degree of flexibility so that, in the future, adjustments can be made to the new circumstances that enlargement will bring, without any need for a cumbersome procedure of amendments to the Treaty." There was also agreement that the number of judges should equal the number of Member States (with one delegation reserving its position on this matter); that there should be a specialised board of appeal for staff matters, rather than having these issues dealt with by the ECJ; that it should not be compulsory for Advocates-General to intervene in all the cases before the ECJ; and that the number of Advocates-General should be stipulated in the Treaty.[112] A number of other issues remained to be negotiated. This is an area which our colleagues on the European Scrutiny Committee have reported on in particular detail.[113]

The extension of codecision

38. The Commission has proposed that all decisions of the European Council which are of a legislative nature and which are subject to QMV should also be subject to codecision, whereby the European Parliament has the right to vote on Commission proposals, and amend them by a simple majority.[114] It also proposes that some provisions which are currently subject to unanimity, but which are of a legislative nature, should also be subject to codecision[115] (the Commission appears to be suggesting that, even if its proposals for the extension of QMV were not accepted,[116] codecision should be extended to legislation subject to unanimity.) The Government takes a more limited approach, arguing that "where qualified majority voting is newly extended to legislative articles, codecision is likely to be appropriate." [emphasis added].[117] On the other hand, Mr Vaz told us that "we do not envisage this IGC resulting in any increase in the power of the European Parliament."[118] It is difficult to reconcile this statement with an extension of codecision, which will give the Parliament greater scope to block and amend legislation. The Portuguese Presidency noted in its Report to Feira that "most delegations—while willing to consider some extension—thought the matter should be examined by the Conference at the same time as the question of the extension of qualified majority voting."[119]

Composition of the European Parliament

39. Enlargement raises the question of the number of Members of the European Parliament, as there are currently 626 MEPs, and the Treaty of Amsterdam states that the number of MEPs shall not exceed seven hundred. The Commission argues that it is for the Parliament to propose new arrangements for the allocation of seats, but offers suggestions as to how this question might be resolved. The current allocation of seats is according to "digressive proportionality"[120] although the principle has not been strictly applied. The Commission suggests:

either allocating seats on a strictly proportional basis according to population, but notes that "this is not a realistic option at this stage";

or revising the current formula to start from a lower minimum number of members and allocating fewer seats per capita and/or altering population bands, but notes that this will exacerbate the bias against the most populous countries;

or reducing the number of seats allocated to each Member State as a function of the ratio of the 700-member limit to the theoretical total number of seats which would result from the application of the current formula for both current Member States and the accession countries.[121]

The Government notes merely that it would "like to see a sustainable formula that can then be applied at successive enlargements."[122] Mr Sheinwald of the FCO has said that "it is not yet clear in this IGC whether we will be able to get this formula which will work for the foreseeable future of enlargement agreed in the IGC or whether you will have to leave that until the final stage of the accession negotiations themselves."[123] Clearly from the point of view of preventing delays to enlargement, it would be better to resolve this question at the IGC. The Portuguese Presidency noted in its Report to Feira that "there is broad agreement that the number of seats should not exceed 700 and that the allocation between Member States should take account of the dual nature of the Union—both a Union of States and a Union of peoples. However, there are differences of opinion as to the method to be applied."[124]

43. The Commission also believes that "the Union would greatly benefit from having a number of members of the European Parliament elected on European lists, presented to all European voters throughout the Union."[125] The Government has stated that it "sees little merit in a Europe-wide list system of the European Parliament. Nor is it an idea which has so far attracted any serious support from other member states in the Intergovernmental Conference."[126] Mr Vaz told us that he did "not believe that that was a palatable idea."[127]

Composition of the Economic and Social Committee

44. The Economic and Social Committee has an advisory role within the European Institutions, and represents various economic and social interests in the EU. It faces a potential increase in size with enlargement, and the Commission recommends that the Committee should be restricted to its current size of 222. The Commission also proposes that it should be "more representative of the various components of civil society of the European Union as a whole and of its different geographical aspects"[128] and that the principle of distributing seats by Member State should be examined. The Portuguese Presidency Report to the Feira Council noted that "most delegations were in favour of setting an absolute limit on the number of Committee members. Some thought that this should correspond to approximately one half—others approximately one third—of the ceiling for the European Parliament...however, a number of delegations were opposed to introducing an absolute limit." The Presidency also noted that there was no significant support in the Conference for amending the composition of the Committee.[129]

Composition of the Committee of the Regions

45. The Committee of the Regions is an advisory body which brings together representatives of regional and local authorities. The Commission proposes that the numbers of Members of the Committee of Regions should be limited to one third of the number of MEPs and the distribution between Member States should be on the same basis as that for the European Parliament.[130] According to the Portuguese Presidency Report to the Feira European Council, "several delegations were in favour of an absolute limit on the number of Committee members...other delegations seemed to prefer an extrapolation of the number of members based on the current allocation of seats."[131]

Composition of the European Court of Auditors

46. The Court of Auditors examines the legality and regularity of revenue and expenditure and the soundness of financial management within the Commission. The Court has fifteen members, whose task is to direct the work of the Court's staff. Currently each Member State appoints one member of the Court. The Commission proposes fixing the number of members of the Court to twelve, and making the auditors' six year term of office non-renewable.[132] The Government has stated that it "will consider any sensible measures which could be taken which would improve standards of financial management in the EU."[133] The Presidency Report to the Feira Council noted that "most delegations consider that the Court should consist of one national from each Member State in order to facilitate cooperation with the competent national audit bodies...most delegations were open to the idea of setting up chambers within the Court and enabling the Court to draw up its own rules of procedure, with the exception—some pointed out—of the rules governing languages."[134]

The European Charter

47. There have been a number of discussions about the possibility of introducing a statement of the rights available to citizens of the EU since the signature of the Treaty of Rome in 1957. The idea was considered at the 1996 IGC which led to the Amsterdam Treaty, but in the event no proposals were adopted.[135] The German Presidency reintroduced a proposal for a Charter of Fundamental Rights in early 1999. The Cologne European Council in June 1999 stated that the question of "whether and if so how the Charter should be integrated in the Treaties" will only be considered once the drafting body has presented its draft before the Nice European Council in December 2000. It is therefore not certain that the Charter will form a part of the IGC. The Government's White Paper does not refer to the Charter, and has said that it does not want it to be a part of the IGC.[136]

48. Following the Cologne Council, a Convention of 62 representatives was established, which is drafting a European Charter of Fundamental Rights. The Convention consists of representatives of national parliaments (30 members), the European Parliament (16), heads of State and Government (15) and other European institutions. The UK representatives are Mr Win Griffiths (Labour) from this House, with Lord Bowness (Conservative) and Lord Goldsmith QC (Labour, UK Government representative) from the House of Lords.

49. The Charter has been controversial, both within the Convention of representatives and outside it. The most fundamental area of argument has been whether a Charter is justified at all.[137] Another important area has been the question of the Charter's form and legal status and relationship with the EC Treaties, that is, whether the Charter should be declaratory (i.e. a statement of the existing rights of EU citizens) or binding and incorporated into the Treaty. The European Parliament and the German government believe that the Charter should be incorporated into the Treaty. The UK Government holds the contrary position, and has noted that: "We believe that a Charter which sets out rights already enjoyed by EU citizens in a clear and accessible way will help to deepen and strengthen the culture of rights and responsibilities at all levels across the EU. We consider that these objectives can best be met if the Charter is drafted as a declaratory document, identifying and complementing existing legal instruments on fundamental rights. We do not therefore favour the Charter's incorporation into the Treaties."[138] Since then the Government has also stated that the Charter should "not disturb Member States' relations with citizens in areas of national competence [and] be consistent with other EU policies and objectives, in particular the Conclusions of the Lisbon Summit on economic reform and social policies."[139] The Foreign Secretary amplified this position by telling us that making the Charter binding "could have the perverse effect of undermining the present structure of human rights law in Europe which is firmly based on the European Convention and the European Court of Human Rights in Strasbourg. It would not seem to us actually helpful in reinforcing the primacy of human rights law within European societies if we were to create a rival to a system which has served us well. Presumably, if the Charter of Rights were to be legally justiciable, one could envisage a situation in which the European Court of Justice was giving rulings which may not necessarily be the same as the rulings in the Strasbourg Court."[140]

50. Mr Vaz told us that a declaratory Charter would be of benefit as "a showcase of rights for the people of Europe"[141] and that "people often accuse the European Union of not being able to communicate effectively with its citizens. I believe this is an important way we can remind citizens of what they get from being members of the European Union"[142]—except, of course, that if the Government achieves its aim and the Charter is merely declaratory, the Charter will not be a source of any of those rights, and the rights will for the most derive from being a citizen of a state which is a party to the European Convention on Human Rights. The Foreign Secretary told us that "there is a case for a declaratory code which establishes what the existing legal human rights are in the European Union and I do not think anybody could reasonably object to gathering them in one document."[143] After the Feira European Council, the Prime Minister told the House that "there was a good deal of support for [the UK's approach] from other Heads of Government."[144]

51. Another area of difference has been over the question of the type of rights to be protected in the Charter. Some have proposed that economic rights should be included in the Charter. The Foreign Secretary told us that the UK Government opposed this, drawing "a distinction between what is a fundamental human right and what is a desirable social and employment goal."[145] In particular, there had been a proposal that "we should create a right for every citizen to three months' paid parental leave. That may or may not be a desirable policy goal but it plainly is not a fundamental human right."[146]

52. Other areas of controversy have included the mechanisms for monitoring compliance and dealing with breaches in the Charter.[147] The House of Lords Committee on the European Union has produced a full Report on the Charter.[148]

The Common European Security and Defence Policy (CESDP)

53. The Government has said that defence will not be a specific item on the IGC agenda. However, if discussions on the development of a European defence identity "result in the need for Treaty change, these changes could be folded into the IGC process later in the year."[149] Prior to the Feira European Council, the Government stated that one of its objectives for the Council was for Heads of Government to agree "that the EU can carry out crisis management operations under existing Treaty provisions; but that a package of desirable Treaty amendments could be incorporated into the IGC."[150] The Foreign Secretary told us that "the balance of probability is that the European Security Initiative will proceed without Treaty amendment but any Treaty amendment required is of a fairly narrow and technical character."[151] He also clarified that the question of whether there would be a treaty amendment was not related to the question of the relationship between NATO and the CESDP, because "the country, at the moment, that is most attracted to a Treaty amendment is the Netherlands, which alongside Britain is the most pro-NATO member of the European Union. I would not see this, in any way, infringing upon the prerogatives of...NATO."[152] The Feira European Council took note of the Council Legal Service view that "the conclusions of the Cologne and Helsinki European Councils regarding European security and defence policy can be implemented without it being legally necessary to amend the Treaty on European Union. However, such amendments would be necessary if the intention is to transfer the Council's decision-making powers to a body made up of officials, or to amend the Treaty's provisions regarding the Western European Union (WEU). Furthermore, it is for Member States to determine whether amendments to the Treaty would be politically desirable or operationally appropriate."[153]

54. There is not scope in this Report for a full review of the issues surrounding the creation of a CESDP: we aim here to set out briefly some of the challenges facing the CESDP.[154] Our colleagues on the Defence Committee have recently produced a Report on European Security and Defence.[155]

55. The end of the Cold War and successive conflicts in the former Yugoslavia have encouraged proposals for the strengthening of Europe's capacity to deal with crises. The St Malo Summit of December 1998 saw the UK Government's acceptance of the French position that this capacity should be built within the EU, although the Summit also saw acceptance by the French that this capacity should be used where NATO "as a whole is not engaged." The Kosovo conflict gave urgency to these proposals.

56. The Helsinki Summit in December 1999 called for the creation of an "autonomous capacity" to be used "where NATO as a whole is not engaged, to launch and conduct EU-led military operations in response to international crises." This is in line with the UK (and Dutch) view that NATO should have "first refusal" in the event of a crisis. According to the Helsinki conclusions, this autonomous capacity would, by 2003, be able "to deploy within 60 days and sustain for at least 1 year military forces of up to 50,000-60,000 persons capable of the full range of Petersberg tasks."[156] The Foreign Secretary told us that "wherever it is possible and appropriate to do so, United Nations authorisation"[157] for CESDP actions would be sought, but that Security Council authorisation would not be a precondition, as this would entail giving a veto on the CESDP to all permanent members of the Security Council.[158] However, in practice, CESDP actions would require US support, "because any significant operation requires access to NATO common assets, such as planning, intelligence, logistics support, and it is not going to be possible to get access to that without the consensus of NATO."[159]

57. On 1 March 2000 the EU established an interim political and security committee comprising representatives of Member States at senior official or ambassadorial level to manage and help develop policy, and an interim military body comprising representatives of the Member States' chiefs of staff to give military advice to the political and security committee and Mr Javier Solana, the EU's foreign policy High Representative. Mr Lyall Grant told us that "areas where we think the Treaty amendment may be required...[will] give the committees that will be set up, particularly the Political and Security Committee, the authority to take operational decisions in times of crisis."[160] National military experts were also seconded to the general secretariat of the EU Council of Ministers to advise the military body and Mr Solana.

58. The Lisbon Council invited "the Council to establish by or at Feira a Committee for Civilian Crisis Management." This Committee was established by a Council decision on 22 May 2000, and held its first meeting on 16 June 2000. The Committee will "provide information, formulate recommendations and give advice on civilian aspects of crisis management to the interim Political and Security Committee and to the other appropriate Council bodies in accordance with their respective competences."[161] The Feira European Council set targets for civilian police capabilities, in particular that Member States should be able to deploy by 2003 up to 5,000 police officers for international missions across the range of conflict prevention and crisis management operations.[162] We examined some of the challenges facing international police deployments in our recent report on Kosovo.[163]

59. A number of questions remain to be answered about the CESDP. Most fundamental is the fact that, as Mr Vaz told us, "people will have to come up with the resources and the capability in order to meet the headline goal."[164] Taking a slightly different line, the Foreign Secretary argued that "this is not necessarily going to be a question of uplift in the total bottom line of the defence budget, but it will require some searching examination of what they [our European allies] require their defence spending to do and what is the posture of their military forces."[165] The EU does not have any enforcement mechanisms in this area, and while all Member States have agreed to achieve capability targets, how these are achieved, and indeed whether they are achieved, is a matter for Member States. The risk is that, if EU Member States do not enhance their capabilities, CESDP will be a fine bureaucratic construction with little practical consequence. Other areas of concern are addressed in the paragraphs which follow.

EU-NATO RELATIONS

60. The central issue facing the development of CESDP is how the new structures will relate to existing ones—the most important of these being NATO. One of the main questions in this area is how the six European members of NATO which are not members of the EU[166] will be involved in decision-making. The US has been pressing the EU to ensure that these countries' voices are heard within the mechanisms that will be established, and the Foreign Secretary told us that "we have played a leading part in trying to broker arrangements with which they would be content."[167] Mr Lyall Grant told us that "under defence there will be flexibility arrangements whereby there may be less than the fifteen who want to join in some form of defence operation, and there may be more than the fifteen who want to join in, so you will have some form of ad hoc committee. Now, to create that ad hoc committee again might require Treaty amendment."[168] He has also said that "we want the non-European Union NATO allies to be involved up-stream in decision shaping and down-stream in being able to participate in operations, and once we get to any military operational phase it is the contributors to that operation who will make the day-to-day decisions, and those contributors may well not all be members of the European Union, but may well include other countries from the NATO allies."[169] The Foreign Secretary told us that the six "will have the right to routine meetings—at least one at ministerial level—during every Presidency, to discuss common co-operation in this area. They will have the right to consultation if we are contemplating launching a European led operation. And they will have the right to participate in it. If they choose to participate in it, they will have the same rights over the management of that operation as any other participant, whether or not they are members of the European Union."[170] So far, Turkey, Poland, the Czech Republic and Norway have offered capabilities to the CESDP.[171]

61. Another main area of concern is how non-European members of NATO (the USA and Canada) will be involved in the CESDP, and how in particular, US concerns on Capitol Hill will be assuaged. The CESDP's "single inclusive structure" consists of the fifteen Members of the EU, plus the non-EU European NATO members and the candidates for accession to the EU, and does not include the US. The Foreign Secretary pointed out that "President Clinton, when he was in Portugal at the European Union Summit only last week, did make a very bald statement saying that there is no contradiction between a strong European and strong trans-Atlantic partnership,"[172] and told us that "we are looking for ways in which we can reassure the Canadians that contributions from them will be possible when it is appropriate."[173] However, it remains to be seen how US political opinion will react if the EU is being seen to "go it alone": as one commentator has put it recently, "American concern about the potential negative consequences of ESDP will increase in direct proportion to the emphasis EU governments put on 'autonomy' in describing their ESDP goals."[174]

62. The other group of countries which raise questions for the CESDP are the Members of the EU which are not members of NATO—Austria, Finland, Ireland and Sweden. Although these countries are traditionally neutral, their neutrality pertains to the collective defence element of NATO. Each of these states has strong traditions of United Nations peacekeeping, and there is no reason to expect that Petersberg tasks will cause particular problems for them. The Prime Minister said on 5 July that these countries are "...supportive of the setting up of the rapid reaction force."[175] Nevertheless, there might well be some unease in such countries if a particular operation were not supported by the United Nations.

63. The Feira Conclusions noted that "substantive progress had been made...with the identification of appropriate arrangements for the participation of third countries [in] EU military crisis management, as well as of principles and modalities for developing EU-NATO relations." The Conclusions note that, with regard to "modalities of consultation and/or participation concerning the non-EU European NATO members and other countries who are candidates for accession to the EU...the aim has been to identify...arrangements for dialogue, consultation and cooperation on issues related to crisis management ensuring the decision-making autonomy of the EU." One of the new institutions established will be "a single inclusive structure in which all of the 15 countries concerned (the non-EU European NATO members and the candidates for accession to the EU) can enjoy the necessary dialogue, consultation and cooperation with the EU." Overall, the discussions on the subject appear to have made some progress, but not to have reached any firm conclusions, such as the decision-making procedures in the "EU plus 15" body.

64. The Feira Conclusions note that on the central issue of consultation and cooperation with NATO, the Council has recommended the creation of four "ad hoc working groups" covering security issues, capabilities goals, modalities enabling EU access to NATO assets and capabilities and the definition of permanent arrangements for EU-NATO consultation. In other words, much remains to be decided in important areas, and the Council has passed on the responsibility for producing recommendations in these areas to other bodies. It may be that, as in the Kosovo crisis, carefully constructed institutional arrangements fall by the wayside when the pressure of events forces rapid decision-making by those countries which are actually capable of providing military assets.

THE WESTERN EUROPEAN UNION (WEU)

65. Another significant area where the interface between existing and new institutions is unresolved is the relationship between the Common European Security and Defence Policy (CESDP) and the WEU. The Government has stated that "Feira will be a key staging post on the road to final decisions to wind up the WEU."[176] There are two particularly sensitive areas. The first is parliamentary oversight of the Common European Security and Defence Policy. Mr Vaz told us that there would be no role for the WEU Assembly in the oversight of the EU's activities[177] and that the CESDP would have "exactly the same parliamentary oversight that we have at the moment" which is to say, a limited role for the European Parliament, and oversight of national governments by national parliaments. The Secretary of State for Defence, Mr Hoon, told the Defence Committee on 16 February that "a continuing role and function for the Assembly...could be something that the British Government would decide was acceptable."[178] In contrast to Mr Vaz's statement, on 7 June 2000 the WEU Assembly agreed in line with the Lisbon Initiative of the WEU Council of 21 March,[179] to its transformation into the "Assembly of Western European Union—the Interim European Security and Defence Assembly", and created a steering committee to manage the transformation. The steering committee will have a representative of the European Parliament. The European Parliament has proposed that "within the framework of the CESDP and on the basis of the COSAC's experience, a 'European interparliamentary forum on security and defence' should be set up, comprising European and national MPs responsible for security and defence issues and possibly also representatives from the parliaments of the applicant countries and the WEU associate countries."[180] The Foreign Secretary told us that "it is difficult to see how the European Parliament could properly become involved in this in circumstances in which the Commission has no immediate role"[181] and stressed the role of national parliaments in holding national ministers to account. It is not at this stage clear if any arrangements will be made, for example, for national parliaments to require evidence in a formal manner from Mr Solana, as the High Representative of the European Council.

66. A second issue confronting the WEU is the WEU Treaty's Article V collective security guarantee. The WEU was established as a collective security organisation, but the EU's proposals are concerned with developing its crisis management capacity. It is not yet clear where the Article V guarantee will be left once the decision has been taken to "wind up" the WEU. The Foreign Secretary told us clearly that the CESDP will not encompass a collective security guarantee:[182] thus WEU members will be left with a strong collective security guarantee—stronger than that of NATO[183]—but no means to give practical expression to it beyond NATO. Of course, it may be that the WEU Treaty will itself be wound up, rather than simply the WEU organisation—in which case the problem will not arise.

RUSSIA

67. As we noted in our recent Report on the Russian Federation,[184] Russia strongly opposed NATO's action over Kosovo, and this action would appear to fit within the definition of Petersberg tasks. Russia has been opposed in particular to the Baltic States joining NATO: it remains to be seen whether Russia will come to oppose Baltic membership of the EU. Mr Vaz told us on 28 March 2000 that "we have received no representations which show in any way that Russia is in any way concerned about the accession of the Baltic States."[185] The Foreign Secretary told us that the Russians would only be concerned if discussions focussed on an Article V-type collective security guarantee: because they had not, "we have detected no unease about this on the part of Russia."[186]

68. Another issue for the CESDP is the institutional relationship with Russia. NATO has established a Permanent Joint Council with Russia, but the CESDP's "single inclusive structure" consists of the fifteen Members of the EU, plus the non-EU European NATO members and the candidates for accession to the EU, and does not include Russia.

THE INTER-GOVERNMENTAL CHARACTER OF CESDP

69. Until the appointment of Mr Solana as the EU's High Representative, the European Council's foreign and defence policy making was clearly in the hands of national authorities, acting inter-governmentally in the Council. Because of the uncertainty of decision-making which resulted from this, former US Secretary of State Henry Kissinger posed the question "who can I call in Europe?" Now that there is an international staff in Brussels under an international official (Mr Solana) which is responsible for co-ordinating European defence issues, it is possible that the inter-governmental model of defence decision making will move towards a more supranational model. There is thus a number for Mr Kissinger to call. The European Commission has not been given a significant role in these issues in order to avoid the development of supranational policy in this field—Mr Lyall Grant stressed to us that "everything we do in the defence field, as it is in the Common Foreign and Security Policy field, is inter-governmental"[187]—but it is not clear why the Council staff dealing with this issue will not develop a similar supranational approach to the Commission. This point was put to the Foreign Secretary, but he did not respond to it.[188] On another institutional area, Professor Wallace has pointed out that the introduction of the CESDP will "make it even harder for the General Affairs Council (of foreign ministers) to coordinate on other areas of EU work."[189] A further problem is that the handling of defence matters requires a degree of security and security procedures, while the prevailing culture in EU institutions is open and leaky. Mr Solana has called for a new CESDP building to be established to help to overcome these difficulties.

87 Presidency Report, p. 49. Available on www.europa.eu.int/comm/igc2000/index_en.htm. Back

88 Feira ev. p. 25. Back

89 QF164. Back

90 Q46, evidence to the Select Committee on the European Union, House of Lords, not yet published. Back

91 Financial Times, 28 June 2000. Back

92 White Paper, p. 25. Back

93 Q67. Back

94 Q70. Back

95 Q149, evidence to the Select Committee on the European Union, House of Lords, not yet published. Back

96 Presidency Report, p. 54. Available on www.europa.eu.int/comm/igc2000/index_en.htm. Back

97 Ev. p. 24, appendix 4. Back

98 Q37, evidence to the Select Committee on the European Union, House of Lords, not yet published. Back