Select Committee on European Union Twenty-First Report

Article 18: The European Commission

1. The European Commission shall safeguard the general European interest. It shall ensure the application of the Constitution, and steps taken by the institutions under the Constitution. It shall also exercise coordinating, executive and management functions as laid down in the Constitution.

2.  Except where the Constitution provides otherwise, Union acts can be adopted only on the basis of a Commission proposal.

3.  The Commission shall consist of a President and up to fourteen other members. It may call on the help of Associate Commissioners.

4.  In carrying out its responsibilities, the Commission shall be completely independent. In the discharge of their duties members of the Commission shall neither seek nor take instructions from any government or other body.

Article 18a : The President of the European Commission

1.  Taking into account the elections to the European Parliament, the European Council, deciding by qualified majority, shall put forward to the European Parliament its proposed candidate for the Presidency of the Commission. This candidate shall be elected by the European Parliament by a majority of its members. If this candidate does not receive the required majority support, the European Council shall within one month put forward a new candidate, following the same procedure as before.

2.  Each Member State shall submit a list of three persons, of which at least one must be a woman, whom it considers qualified to be a European Commissioner. The President-elect, taking account of European political and geographical balance, shall, from among the names submitted, select as members of the Commission up to thirteen persons chosen for their competence, European commitment, and guaranteed independence. The President and the persons so nominated for membership of the Commission shall be submitted as a body to a vote of approval by the European Parliament.

3.  The Commission, as a body, shall be responsible to the European Parliament. Under the procedures set out at Art. X of the Constitution, it may pass a censure motion on the Commission. If such a motion is passed, the members of the Commission must all resign. They shall continue to handle everyday business until their successors are nominated.

4.  The Commission shall work to guidelines laid down by its President. He shall decide its internal organisation, ensuring that it acts consistently, efficiently and on a collegiate basis. He shall appoint vice-presidents from among the members of the Commission.

5.  The President may appoint Associate Commissioners, chosen according to the same criteria as apply for members of the Commission. Their number must not exceed the number of members of the Commission.

34.   The Draft articles propose keeping the current system of appointment of the Commission President by the European Council (acting by QMV) and endorsement by the European Parliament (Article 18a(1)) but reducing the size of the Commission from 25 to a maximum of 15 commissioners and a number of associate commissioners (Article 18(3)). As a consequence not every Member State will appoint a Commissioner; and some existing Member States will need to give up a post.

35.   The Government is in favour of strengthening the Commission. This means that the President of the Commission will need to continue to be 'independent, strong and accountable but not changing according to the whims of the majority party', as could be the case if this person were to be elected by the European Parliament[20]. Hence, the Government is 'not enthusiastic about changing the system of ratification'[21].

36.   In an EU of 27 members, the Government does not favour retaining the practice of one commissioner per country. According to Peter Hain, a system of principal and delegate commissioners would retain the principle that "each country should have right of admission" while ensuring a strong, functioning Commission[22].

37.   It is reported that Commission President Romano Prodi is pushing for a reform of the Commission which would ensure that the number of Commissioners would remain such that each Member State would still appoint one Commissioner. The Commission would, however, be divided between a core of Commissioners with policy portfolios supported by a range of posts equivalent to junior ministers in the United Kingdom[23].

38.   We are aware of arguments that having a directly elected Commission President would provide a clear link between citizens and the EU but we note that no such provision is made in the draft articles. We also note that the Government is against any enhancement of the role of the European Parliament in appointing the Commission President.

Article 19: The Foreign Minister

1.  The European Council, deciding by qualified majority, with the agreement of the President of the Commission, shall appoint the Union's Foreign Minister. He shall conduct the Union's common foreign and security policy.

2.  The Foreign Minister shall contribute by his proposals to the development of the common foreign policy, which he shall carry out as mandated by the Council. The same shall apply to the common security and defence policy.

3.  The Foreign Minister shall be one of the Vice-Presidents of the Commission. He shall be responsible there for handling external relations and for co-ordinating other aspects of the Union's external action. In exercising these responsibilities within the Commission, and only for these responsibilities, he shall be bound by Commission procedures.

39.   Article 19(1) proposes creating a new post of a foreign minister to conduct the Union's common foreign and security policy. This person shall be appointed by the European Council, deciding by qualified majority, with the agreement of the President of the Commission. The Foreign Minister will be one of the Vice-Presidents of the Commission. In handling Community external relations, but only those, this person shall be bound by Commission procedures (Article 19(3)). We have considered this proposal in a separate report on the articles on external Action[24].

Article X: The Union's Democratic Life

1.  The Congress of the Peoples of Europe shall provide a forum for contact and consultation in European political life. It shall meet at least once a year. Its meetings shall be public. The President of the European Parliament shall convene and chair them.

2.  The Congress shall not intervene in the Council's legislative procedure.

3.  The President of the European Council shall report on the State of the Union. The President of the Commission shall present the annual legislative programme.

4.  One third of the Congress shall be members of the European Parliament: two thirds shall be representatives of national Parliaments. The total shall not exceed seven hundred.

40.   The Draft article proposes a Congress of the Peoples of Europe, to meet at least once a year for "contact and consultation in European Political Life". One third of the Congress shall be members of the European Parliament: two thirds shall be national parliamentarians.

41.   The Government did not propose the Congress of Peoples of Europe but did not think it would necessarily upset the institutional balance. As such we accept that it may have some value as a symbolic focal point of the European legislative year[25].

42.   We have, however, consistently argued against the creation of a second chamber for the European Parliament[26]. We are satisfied that this Congress will not be a new institution (not least because it is not listed in Article 14). However, we cannot see what purpose a Congress as proposed here will serve. It has no clear function, and no mandate. It has been widely opposed in the Convention. There is a danger that such a body will repeat the failings of the 1990 Assizes[27]. There are as yet no details on key questions such as how the seats of national parliaments are to be allocated and we await further provisions.

43.   We see merit in national parliaments scrutinising the annual programmes of the Council and the Commission. The body proposed, however, is too large and diffuse to provide meaningful scrutiny of these initiatives and will accordingly be purely symbolic. Presentations to a much smaller group of national parliamentarians with expertise in EU affairs would allow more time for genuine discussion and questioning and therefore be of more value in ensuring accountability.

Article 20: The Court of Justice of the European Union
1.  The Court of Justice, including the High Court, shall ensure respect for the Constitution and Union law.

  The Member States shall provide rights of appeal sufficient to ensure effective legal protection in the field of Union law.

2.  The Court of Justice shall consist of one judge from each Member State, and shall be assisted by Advocates-General. The High Court shall include at least one judge per Member State: the number shall be fixed by the Statute of the Court of Justice. The judges of the Court of Justice and the High Court, and the Advocates-General of the Court of Justice, chosen from persons whose independence is beyond doubt and who satisfy the conditions set out at Article [XX] of Part II, shall be appointed by common accord of the governments of the Member States for a term of six years, renewable.

3.  The Court of Justice shall be competent for :

-  ruling on actions brought by the Commission, a Member State, an institution or a natural or legal person in the cases and according to the modalities foreseen in article [YY] of Part II;

-  preliminary rulings, at the request of Member State courts, on the interpretation of Union law or the validity of acts adopted by the institutions;

-  ruling on appeals on decisions given by the High Court or exceptionally reviewing these decisions under conditions laid down in the Statute of the Court.

44.   Article 20 requires the "Court of Justice, including the High Court" (the new name proposed for the Court of First Instance) to "ensure respect for the Constitution and Union law". Article 220 TEC currently requires the "Court of Justice and the Court of First Instance, each within its jurisdiction," to "ensure that in the interpretation and application of this treaty the law is observed". Two main points arise. First, it may be significant that the Court would in future be concerned with "the Constitution and the Union law" and not with "the law" more generally. Article 220 TEC has enabled the Court to develop a system of Community law including the general principles, which have, for example, required the Community and its institutions to respect fundamental rights. Second, it is unclear what is intended by the use of the word "including" to describe the relationship between the Court of Justice and the High Court. Is the High Court part of the Court of Justice or are they are separate bodies/institutions? There is some internal inconsistency in the drafting of Article 20. Paragraphs 2 and 3, dealing with the composition of the two courts and jurisdiction of the Court of Justice, suggest that the two courts are distinct (as is presently the case). The Article might usefully say that the Court of Justice and the High Court together comprise one institution of the Union, if that is what is intended. And what is to be the status of judicial panels which may be created under Article 225a, inserted by the Treaty of Nice?

45.  The second sentence of Article 20 (1) is new and introduces a further element of confusion. We assume that it is not intended to create any new procedures between national courts and the ECJ. While it is common parlance to refer to "appeals" from a national court to the Court of Justice, there is no general right of appeal and the circumstances in which a matter can be referred from a national court and the purpose and nature of those proceedings is not strictly speaking an appeal. National courts can only make references to the Court of Justice to give preliminary rulings on the interpretation of the Treaty and the validity and interpretation of acts of the institutions (Article 23 TEC). The second sentence of Article 20 therefore seems to be misplaced. It does not define or describe the role of the Court of Justice or the relationship between national courts and the Union's courts. What it appears to be doing is to codify a corollary to the principle of the supremacy of Community law, namely that national courts must provide effective remedies to support rights accorded to the citizen by or under the Treaties.

46.  Article 20 (2) includes provisions similar to those currently found in Articles 221-4 TEC (numbers and qualification of judges). It is significant that while Article 20 defines the number of judges in the Court of Justice (one for each Member State) it does not define the number of Advocates General and only lays down a minimum number of judges for the High Court (CFI). The Article says how the number of judges of the High Court will be fixed but not the number of Advocates General.

47.  Finally it is to be noted that Article 20(3) purports to summarise the jurisdiction of the Court of Justice. The objective is praiseworthy but the formulation is not particularly helpful. It is muddled and incomplete. There are, for example, no references to the Court of Justice's jurisdiction under Articles 225, 238 and 239[28]. The reference to appeals on decisions given by the High Court is meaningless without knowledge of what the jurisdiction of the High Court will be and adds to the confusion, mentioned above, as to the status of that Court. Indeed, why is the jurisdiction of the High Court not set out here? More generally, we question whether it is appropriate and always helpful to include in Part I (Constitutional Structure) of the Treaty provisions which cannot be understood without reference to Part II. Article 20(3) needs substantial revision.

Article 21: The European Central Bank (ECB)

1.  The European Central Bank shall direct the European System of Central Banks, of which it, alongside the national central banks, forms part.

2.  The primary objective of the Bank shall be to maintain price stability. Without prejudice to the objective of price stability, it shall support general economic policies in the Union with a view to contributing to the achievement of the Union's objectives.

3.  The Bank shall define and implement the monetary policy of the Union. It alone may authorise the issue of the Union currency, the Euro. It shall conduct other Central Bank tasks according to the provisions of Part II of the Constitution.

4.  The Bank shall have legal personality. In the exercise of its powers and for its finances, it shall be independent. Union institutions and bodies, and the governments of the Member States, shall undertake to respect this principle.

5.  The Bank shall adopt such measures as are necessary to carry out its tasks in accordance with the provisions of Articles [A-B] of Part II of the Constitution, and with the conditions laid down in the Statutes of the Bank and of the European System of Central Banks. In accordance with these same provisions, those Member States which have not adopted the Euro, and their central banks, shall retain their powers in monetary matters.

6.  Within its areas of competence, the Bank shall be consulted on all proposed Union acts, and all proposals for regulation at national level; and may given an opinion.

7.  The organs of the Bank, their composition and operating methods are set out in articles X to Y of Part II, as well as in the Statute of the Bank.

48.  The ECB is listed for the first time as an institution, although the relevant Articles may in the end appear elsewhere in the Treaty. Sub-Committee A has just launched an inquiry into the European Central Bank. The inquiry is reviewing the workings of the Bank since it was established in 1998 and asking whether any changes should be implemented ahead of the enlargement of the EU in 2004. The dual focus of the inquiry will be to review:

·  the two-pillar monetary policy strategy of the ECB; and

·  the structure and workings of the Bank.

49.   The emphasis of the inquiry will be on the institutional questions raised in relation to the second of these two issues. In particular, the Sub-Committee is seeking answers to the following questions relating to the structure of the ECB and accountability:

·  What would be the effect of the recent decision of the European Council to amend the voting modalities of the Governing Council?

·  What would be the optimal solution to the problems posed to the workings of the Governing Council by enlargement? Is there a conflict between national interests and European interests? If so, how might these be reduced? What should be the relative size of the Executive Board in relation to the Governing Council? Should there be an independent monetary policy committee, along the lines of the MPC of the Bank of England?

·  What should be the roles of the European Council, the European Parliament and national parliaments in appointing the President and the other Members of the Executive Board?

·  Should the ECB continue to set its own inflation target? What alternatives are there?

·  What is the experience of the testimonies of the ECB before the European Parliament? Does the European Parliament sufficiently call the ECB publicly to account? To what extent has the ECB been ready to listen, to explain and, if necessary, to learn?

·  How regularly have members of staff of the ECB appeared before national parliaments?

20   Q 4. Back

21   Q 4. Back

22   Q 24. Back

23   FT 1st May 2003. In addition, the Commission has issued a press notice. See note 18 above: "The Commission's independence from national interests and its collegial nature are key to expressing the general European interest. As to the size of the Commission, the college expressed its preference to have one Commissioner per Member State. The Members of the European Commission are important in terms of embodying the European Union in each Member State. The composition of the Commission is not simply a technocratic question. The Commission must be credible through its connection with the people and by representing all sensitivities." Commission Press Release:  Back

24   23rd Report, 13 May 2003 HL Paper 107.  Back

25   Q 24. Back

26   See our report "An unreal solution to some real problems" (HL Paper 48, session 2001-02, 27 November 2001). Back

27   The Assizes was the subject of our 5th Report, Session 1990-91 (HL paper 20). Back

28   Dealing with first instance actions and proceedings, arbitration clauses and disputes between Member States respectively. Back

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