Select Committee on European Union Forty-First Report



We make this Report to the House for information.

1. The Government welcomes the Committee's Report, which provides a helpful introduction to this set of draft Treaty Articles. The legal procedures and instruments at the Union's disposal is a very technical, but important, area. We have broadly welcomed the proposals, which would go some way to making the Union simpler and easier to understand.

2. These Articles can now be found in the draft Constitutional Treaty at Part I, Title V: Exercise of Union Competence. Chapter I: Common Provisions contains draft Articles 24-28, 32 and 33. Chapter II: Specific Provisions, contains the draft Articles set out here as 29-31.


Article 24: The legal acts of the Union

In the meantime creating a new category of "regulation" and categorising some Union legislation "legislative acts" and some "non-legislative acts" does not seem helpful.

The term "a European law" in Article 24 raises difficulties which need further consideration.

Working Group IX (on Simplification) recognised that the new Treaty might continue to provide that instruments adopted in the area of police and judicial cooperation in criminal matters be characterised as not having direct effect. We agree.

Limiting the number of types of act to a few (six in Article 24(1))may be a useful simplification but corralling what are essentially different types of acts (particularly under the CFSP) under one name is far from desirable and could be counterproductive.

3. The Government welcomes the proposals to simplify and reduce the number of instruments, and rename them. We believe the new terms "Law" and "Framework Law" reflect better the underlying concept and purpose of those instruments. We note the Committee's concerns about making a distinction between legislative and non-legislative acts. However, the Government believes that such a distinction will contribute to greater clarity, in particular of the legislative role of the Council.

4. We have proposed amendments to the Convention that aim to ensure simplification whilst preserving the key elements of the current system, which we believe has served us well.

5. The Government has also made clear its commitment to retaining the distinctive instruments for the common foreign and security policy (CFSP) and some elements of justice and home affairs (JHA).

Article 25: Legislative acts

"Co-decision" would be a better and far more accurate term to describe the type of legislative procedure in question.

Article 25(3) is especially welcome.

6. The Committee rightly points to the gradual extension of the co-decision procedure since its introduction at Maastricht. In practice, co-decision is already the standard procedure for adopting legislative acts. Of crucial importance is that the draft Article provides for exceptions to the norm of the co-decision procedure (to be specified in Part III of the Constitutional Treaty).

7. There are some policy areas where the Government believes co-decision is not appropriate. For example, the distinct nature of CFSP and some elements of JHA must be preserved.

Article 26: Non-legislative acts

8. This draft Article, which is now Article 34, has been re-drafted to read:

1.  The Council and the Commission shall adopt European regulations or European decisions in the cases referred to in Articles I-35 and I-36 and in cases specifically laid down in the Constitution. The European Central Bank shall adopt European regulations and European decisions when authorised to do so by the Constitution.

2.  The Council and the Commission, and the European Central Bank when so authorised in the Constitution, adopt recommendations.

9. The Government welcomes this Article.

Article 27: Delegated regulations

In the meantime we welcome the overall objective of Article 27.

10. The Government welcomes the Committee's positive reaction to this Article, which would alter the way that the EU's primary legislation is implemented. Under the new category of "delegated acts", the Commission would adopt legislation to supplement non-essential aspects of primary legislation. Delegation to the Commission would be subject to control mechanisms by the European Parliament and the Council.

11. The Government broadly supports the proposal for a new category of "delegated acts". The Council and the European Parliament should more often set the frameworks in primary law at the EU level. The implementing of the detail of legislation within those frameworks could then be carried out through simpler decision-making procedures. The Government believes that this would result in lighter and speedier legislation. This would make the Union more efficient, and be particularly welcome in fast-moving policy areas. Giving the European Parliament the same role as the Council in scrutinising a large amount of secondary legislation would also help to make the process more transparent, and enhance the Union's democratic accountability.

12. We have suggested to the Convention that the detail of the conditions of application for delegated regulations should be set out in Part III, in order to keep Part I clear and simple.

Article 28: Implementing acts

We have for some time argued that the Parliament should have a greater role in comitology. That will now extend to establishing the ground rules for comitology. We therefore welcome this.

The future of comitology under the new Treaty is something to which we will want to return.

13. The Government welcomes this Article which, along with Article 27, proposes to distinguish between delegated and implementing acts. This should allow a more effective European Parliament role in a large swathe of implementing legislation.

14. As with Article 27 above, we have proposed that the detail of the conditions of application for implementing acts should be set out in Part III, in order to keep Part I clear and simple.

Article 29: [Common foreign and security policy]

15. This draft Article is now Article 39: Specific provisions for implementing common foreign and security policy. It is currently drafted to read:

1.  The European Union shall conduct a common foreign and security policy, based on the development of mutual political solidarity among Member States, the identification of questions of general interest and the achievement of an ever-increasing degree of convergence of Member States' actions.

2.  The European Council shall identify the Union's strategic interests and determine the objectives of its common foreign and security policy. The Council of Ministers shall frame this policy within the framework of the strategic guidelines established by the European Council and in accordance with the arrangements in Part Three of the Constitution.

3.  The European Council and the Council of Ministers shall adopt the necessary decisions.

4.  The common foreign and security policy shall be put into effect by the Union's Minister for Foreign Affairs and by the Member States, using national and Union resources.

5.  Member States shall consult one another within the Council and the European Council on any foreign and security policy issue which is of general interest in order to determine a common approach. Before undertaking any action on the international scene or any commitment which could affect the Union's interests, each Member State shall consult the others within the Council or the European Council. Member States shall ensure, through the convergence of their actions, that the Union is able to assert its interests and values on the international scene. Member States shall show mutual solidarity.

6.  The European Parliament shall be regularly consulted on the main aspects and basic choices of the common foreign and security policy, and shall be kept informed of how it evolves.

7.  European decisions relating to the common foreign and security policy shall be adopted by the European Council and the Council of Ministers unanimously, except in the cases referred to in Part Three of the Constitution. Discussion shall be based on a proposal from a Member State, from the Union's Minister for Foreign Affairs or from the Minister with the Commission's support. Laws and framework laws are excluded.

8.  The European Council may unanimously decide that the Council should act by qualified majority in cases other than those referred to in Part Three of the Constitution.

16. The Government welcomes the overall thrust of this Article, which makes clear that CFSP is conducted by the Member States, the European Council, the Council of Ministers and the European Foreign Minister. The Government also welcomes the retention of unanimity as the general voting rule for CFSP, and the inclusion of the possibility of the European Council deciding unanimously that the Council should act by qualified majority on a case by case basis. Article 39(8) duplicates the formula we suggested in the External Action Working Group last autumn.

17. We have raised our concern about the impracticality of having a commitment to prior consultation on CFSP. Given that the European Council meets only every three months, there will be occasions when CFSP decisions cannot await the next Council meeting. Introducing this time-sensitive element contradicts the overall objective of making CFSP more operational and more effective.

Article 30: [Common defence policy]

18. This is now Article 40: Specific provisions for implementing common defence policy. It reads:

1.  The common security and defence policy shall be an integral part of the common foreign and security policy. It shall provide the Union with an operational capability drawing on assets civil and military. The Union may use them on missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. The performance of these tasks shall be undertaken using capabilities provided by the Member States.

2.  The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements.

  The policy of the Union in accordance with this Article shall not prejudice the specific character of the security and defence policy of certain Member States and shall respect the obligations of certain Member States, which see their common defence realised in the North Atlantic Treaty Organisation (NATO), under the North Atlantic Treaty, and be compatible with the common security and defence policy established within that framework.

3.  Member States shall make civilian and military capabilities available to the Union for the implementation of the common security and defence policy, to contribute to the objectives defined by the Council. Those Member States which together establish multinational forces may also make those forces available to the common security and defence policy.

Member States shall undertake progressively to improve their military capabilities. A European Armaments, Research and Military Capabilities Agency shall be established to identify operational requirements, to put forward measures to satisfy those requirements, to contribute to identifying and, where appropriate, implementing any measure needed to strengthen the industrial and technological base of the defence sector, to participate in defining a European capabilities and armaments policy, and to assist the Council in evaluating the improvement of military capabilities.

4.  Decisions on the implementation of the common security and defence policy, including those initiating a mission as referred to in this Article, shall be adopted by the Council acting unanimously on a proposal from the Union's Minister for Foreign Affairs or from a Member State. The Minister for Foreign Affairs may propose the use of both national resources and Union instruments, together with the Commission where appropriate.

5.  The Council may entrust the execution of a task, within the Union framework, to a group of Member States in order to maintain the Union's values and serve its interests. The execution of such a task shall be governed by Article [III-206 (ex 18)] of the Constitution.

6.   Those Member States whose military capabilities fulfil higher criteria and which have made more binding commitments to one another in this area with a view to more demanding missions shall establish structured cooperation within the Union framework. Such cooperation shall be governed by the provisions of Article [III-208 (ex 20)], of the Constitution.

7.  Until such time as the European Council has acted in accordance with paragraph 2 of this Article, closer cooperation shall be established, in the Union framework, as regards mutual defence. Under this cooperation, if one of the Member States participating in such cooperation is the victim of armed aggression on its territory, the other participating States shall give it aid and assistance by all the means in their power, military or other, in accordance with Article 51 of the United Nations Charter. In the execution of closer cooperation on mutual defence, the participating Member States shall work in close cooperation with the North Atlantic Treaty Organisation. The detailed arrangements for participation in this cooperation and its operation, and the relevant decision-making procedures, are set out in Article [III-209 (ex 21)] of the Constitution.

8.  The European Parliament shall be regularly consulted on the main aspects and basic choices of the common security and defence policy, and shall be kept informed of how it evolves.

19. The Government welcomes the clear articulation on the link between CFSP and the European Security and Defence Policy (ESDP) at the beginning of this draft Article. We also welcome the re-statement of the need for compatibility between ESDP and NATO. However, the Government has made clear in the Convention that we consider the introduction of a common defence guarantee, including as a form of enhanced co-operation, to be a divisive and unnecessary duplication of the guarantees that 19 of the future 25 EU Member States enjoy through NATO.

20. We welcome the creation of an intergovernmental agency to support the efforts of Member States, as we believe capability development is fundamental to the credibility and operationality of ESDP.

21. We have expressed concern at the proposal to create standing inner groups for ESDP operations. Such proposals risk undercutting the inclusive and flexible arrangements for operations that were agree at the Nice European Council. We want to maintain an approach to ESDP which allows groups of States to co-operate flexibly in carrying out operations, but under the control of the Council and on a basis which values all contributions, whether military or civilian, from large or small States.

Article 31: [Police and criminal justice policy]

22. This is now Article 41: Specific provisions for implementing the area of freedom, security and justice. It reads:

1.  The Union shall constitute an area of freedom, security and justice:

-  by adopting European laws and European framework laws intended, where necessary, to approximate national laws in the areas listed in Part Three of the Constitution;

-  by promoting mutual confidence between the competent authorities of the Member States, in particular on the basis of mutual recognition of judicial and extrajudicial decisions;

-  by operational cooperation between the competent authorities of the Member States, including the police, customs and other services specialising in the prevention and detection of criminal offences.

2.  Within the area of freedom, security and justice, national parliaments may participate in the evaluation mechanisms foreseen in Article [III-156 (ex 4)] of the Constitution, and shall be involved in the political monitoring of Europol and the evaluation of Eurojust's activities in accordance with Articles [III-169 (ex 19)] and [III-172 (ex 22)] of the Constitution.

3.  In the field of police and judicial cooperation in criminal matters, Member States shall have a right of initiative in accordance with Article [III-160 (ex 8)] of the Constitution.

23. The Government welcomes the inclusion of mutual recognition as a fundamental constitutional feature of the area of Freedom, Security and Justice. Indeed, we would like to see this reference strengthened further. It should also be made clear that the approximation of national laws should take place only where necessary, in accordance with the provisions of Part III of the draft Constitutional Treaty.

24. The Government supports the proposal in Article 31(3) to retain Member States' right of initiative in the fields of police and judicial co-operation in criminal matters. In line with the proposals from the Convention's Working Group on Freedom, Security and Justice, such Member State initiatives would require the support of one-quarter of Member States. The Government supports this requirement to have the backing of a significant proportion of other Member States prior to launching a legislative initiative. We believe that it will result in much greater coherence to future work in the area of justice and home affairs.

Article 32: Principles common to acts of the Union

25. The Government welcomes this draft Article, which would require EU legislation to state the reasons for the measures it adopts.

Article 33: Publication and entry into force

26. The Government welcomes this draft Article.

140   Government Response dated 14 July 2003.  Back

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