PART 2: ANALYSIS OF ARTICLES 33-37
Article 33: The principle of democratic
|The Union's operation shall be founded on the principle of the equality of citizens, who shall receive equal attention from the Union's institutions.
"Article 33 introduces the general principle of the equality of citizens in relation to the European institutions. The institutions must take account of this in their dealings with European citizens."
7. Article 33 is new. The statement of a principle
of equality before the Union's institutions would complement Article
7(1), which provides for equality before the law.
It is noteworthy that equality before the institutions may not
be the right of everyone but only of "citizens". This
may mean EU citizens (ie nationals of Member States). The
drafting is unclear. Contrast the wording of Articles 33a, 35a,
and 36, referring to "citizens of the Union", and of
Article 36a, referring to "everyone". Persons (third
country nationals) resident in a Member State would not be entitled
to benefit from Article 33, though such persons would expressly
have rights of access to EU documents (see Article 36(3) below).
Article 34: The principle of participatory
1. Every citizen shall have the right to participate in the democratic life of the Union.
2. The Union institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their opinions on all areas of Union action.
3. The Union institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society.
"1. The purpose of this Article is to provide a framework and content for the dialogue which is largely already in place between the institutions and civil society (note that the social dialogue has been consigned to Part Two of the Constitution in the provisions relating to social policy, as is the case in the TEC.)
2. Paragraph 2 refers to the forums, opportunities for Internet chat and other similar mechanisms which the institutions have now put in place.
3. In paragraph 3 associations are mentioned in addition to civil society since there are associations which do not come under the civil society heading (employers' and employees' trade unions, associations representing the interests of the regions and regional and local authorities, etc.)."
8. This Article is also new. The principle enunciated
is unexceptionable. But problems with the Article arise from the
vagueness of its provisions and the absence of the definition
of key terms such as "representative associations" and
"civil society". We doubt whether all the grand words
in Article 34 will have much effect in re-engaging the citizen
in the political life and legislative processes of the Union.
Article 34 should spell out much more clearly what is intended
by the concept of participatory democracy, what it means for the
individual citizen and by what practical means he or she may take
advantage of the rights given.
9. The present Convention process has shown the
potential for making the individual more aware of and getting
him or her more involved in the development of Union policy. Key
elements in the process have been the initial "listening
stage" of the Convention's work and the opportunity given
by the Convention Forum to follow the proceedings of the Convention
as well as to make contributions to the debate. Article 34(2)
makes clear that the involvement of citizens and representative
associations covers "all areas of Union action". It
is not limited, for example, to Social Policy. The Article leaves
open the question as to what would be the "appropriate means".
10. In practice NGOs and other groups and organisations
play a more significant role than the individual in the identification
and formulation of policies at both European and national levels.
Article 34 makes a distinction between the individual and representative
associations and also between representative associations and
civil society. There are potential problems of definition. The
Praesidium's Explanatory note explains that "representative
associations" is intended to cover employers' associations
and trade unions (the "social partners") as well as
"associations representing the interests of the regions and
regional and local authorities, etc". However, "civil
society" is undefined and is not a precise term of art. The
Commission's White Paper on Governance includes "trade unions
and employers' organisations (the "social partners");
non-governmental organisations; professional associations; charities;
grass roots organisations; organisations that involve citizens
in local and municipal life with a particular contribution from
churches and religious communities".
11. In our recent Report on "Social Europe"
we examined the participation of both the social partners and
civil society in Union decision-taking. We concluded that if the
social partners and civil society were to be given a greater role
a number of important issues would need to be clarified, especially
regarding the definition of civil society, the determination of
its role and the need to distinguish between different civil society
organisations regarding their respective powers.
The use in Article 34 of the terms "representative associations"
and "civil society" makes such clarification even more
necessary and important. Does "civil society" include
12. The reference, in Article 34(3) to an 'open
and regular dialogue' is welcome in principle. But it raises various
questions: Would there be an obligation on the institutions to
consult in all cases? Would such 'dialogue' cover legislative
proposals, broader policy action or any action by the institutions?
Should, and if so how would, such 'dialogue' be formalised? Is
dialogue always to be initiated by the institution or could "representative
associations" and "civil society" set an agenda
to which the institutions would be obliged to respond? What will
be the resource implications when 25 Member States are involved
in "regular" dialogue? Unless these questions are thought
through and clear answers given, the welcome intention that appears
to underlie Article 34(3) is likely to lead to disillusion.
Article 35: The European Ombudsman
An Ombudsman shall be appointed to receive, investigate and report on complaints concerning instances of maladministration within the Union institutions.
"This Article, which is based on Article 195 TEC, lets citizens know that they can appeal against maladministration. The detailed provisions will appear in Part Two of the Constitution."
13. Under Article 21 TEC every EU citizen has
the right to complain to the Ombudsman about maladministration
(a term which has been widely construed by the Ombudsman) in the
activities of any Community institution or body. The Ombudsman
is appointed by the European Parliament and is required by the
Treaty to be "completely independent in the performance of
his duties" (Article 195 TEC). We note that Article 35 does
not say how the Ombudsman is to be appointed. The requirement
that he or she be appointed by the European Parliament (Article
195 TEC) is an important guarantee of the Ombudsman's independence
which we believe could usefully be included in this Article rather
than in Part Two of the new Treaty.
Article 35a: Political parties at
Political parties at European level contribute to forming a European awareness and to expressing the political will of the citizens of the Union.
"This Article is based on Article 191 TEC and the wording of Article 12(2) of the Charter."
14. The notion of European Political Parties
(EPPs) was first recognised in the Maastricht Treaty. They have
operated as umbrella groups for like-minded national parties.
The larger EPPs share the same name as their respective MEP Groups
in the European Parliament: the European People's Party (centre-right);
the Party of European Socialists (centre-left); and the European
Liberal, Democratic and Reformist Group (ELDR).
15. Article 35(a) repeats the wording of Article
191 TEC. There are, however, two significant changes. First, the
new text contains no reference to EPPs being "important as
a factor for integration within the Union". Some explanation
would be helpful. Second, the second paragraph of Article 191,
which was added by the Nice Treaty to give an express power to
provide for the regulation and funding of EPPs, is omitted. Proposals
for a Regulation on the status and funding of EPPs have been the
subject of controversy, not least as to the definition of EPPs
(whether they need be active in more than one Member State), the
principles by which EPPs would have to abide, and the possibility
of individual or corporate donations to EPPs. It is unclear whether
the omission of the second sentence of Article 191 TEC is deliberate
and if so what and where in the new Treaty is provision to be
made for regulating EPPs.
7 Article 7(1) states: "Every national of a Member
State shall be a citizen of the Union. Citizenship of the Union
shall be additional to national citizenship; it shall not replace
it. All citizens of the Union, women and men, shall be equal
before the law". Back
Doc COM (2001) 418, at p 14. For a more precise definition the
Commission refers the reader to the Opinion of the Economic and
Social Committee on "The role and contribution of civil society
organisations in the building of Europe",  OJ C 329/30. Back
The Future of Europe: "Social Europe" (14th Report,
Session 2002-03, HL Paper 79). Back
14th Report at para 28. The issues identified were: the definition
of what constitutes "civil society"; the different functions
that civil society can perform in the Union; the difference in
outcomes between greater consultation of civil society and greater
involvement in decision-making processes; how civil society would
be supported by the Union; the criteria for deciding which groups
from civil society should be given a greater role to play in the
Union; and whether there is a role for "pan-European"
representation of civil society (and of social partners) given
the greater processes of European integration. Back
The latest version, Proposal for a Regulation of the European
Parliament and of the Council on the Statute and Financing of
European Political Parties (Doc COM (2003) 77) is currently under
scrutiny in Sub-Committee E (Law and Institutions). Back