TWENTY FIRST REPORTTHE FUTURE OF
EUROPE: CONSTITUTIONAL TREATYDRAFT ARTICLES ON THE INSTITUTIONS|
In paragraph 11 of their Report, the Lords' Select
Committee concludes that:
We make this report to the House for information.
We stress, however, that it is clear that the balance of power
in the European Union is going to shift from the Commission in
favour of the Member States if the proposals here are adopted.
This makes it all the more important that the Treaty makes adequate
provision for the role of national parliaments and that all national
parliaments effectively hold their own national ministers to account.
In addition, steps need to be taken to ensure both accountability
and transparency in the work of the Council.
1. The Government welcomes the Committee's Report
which provides a further useful contribution to the debate about
the work of the Convention. The Government has broadly welcomed
the draft Articles on the Institutions. Many elements reflect
the Government's thinking on, for example, creating a full-time
elected Chair or President of the European Council. However, there
are still some elements which need to be addressed.
2. The Government believes that any reform or strengthening
of the Institutions must preserve the existing institutional balance,
which has served the Union well.
3. The Convention's President, Valéry Giscard
d'Estaing, presented the text of Parts I, II and IV of the draft
Constitutional Treaty to Heads of State or Government at the Thessaloniki
European Council on 19-20 June. In that version, the Institutions
Articles can be found as Articles 18-31, in two Chapters. Chapter
One - Institutional framework encompasses Articles 18-28; the
remaining Articles are in Chapter Two - Other Institutions and
Article 14: The Union's Institutions
4. The text as presented to the Thessaloniki European
Council does not include the European Central Bank or the European
Court of Auditors as Institutions. We have no difficulty with
the European Central Bank not being an Institution. However, we
would prefer the European Court of Auditors to remain an Institution.
To withdraw this status could reduce its role and imply a watering
down of its independent status.
Article 15: The European Parliament
We wish to see further consideration given to
enhancing the Parliament's scrutiny role in such matters and hope
to see suggestions in subsequent texts when they emerge. (Paragraph
15 of the House of Lords' Report.)
We would welcome an explanation of this term ("degressively
proportional"). (Paragraph 16 of the House of Lords' Report.)
5. The revised draft Article 19 provides for a maximum
number of Members of the European Parliament to be 736 rather
than the 700 proposed in the initial draft. This represents the
number agreed at Nice (732) plus two extra for both the Czech
Republic and Hungary, who were under-represented in the Nice figures
vis-à-vis Member States with a similar population size.
There is a new additional paragraph which reads:
"Sufficiently in advance of the European
Parliamentary elections in 2009, and, as necessary thereafter
for further elections, the European Council shall adopt by unanimity,
on the basis of a proposal from the European Parliament and with
its consent, a decision establishing the composition of the European
Parliament, respecting the principles set out above."
6. The Government agrees with the Committee that
the European Parliament's ability to scrutinise some subordinate
legislation should be enhanced. Draft Articles 27 and 28 of the
draft Constitutional Treaty, as submitted to the Thessaloniki
European Council, relate to the so-called comitology procedure.
They propose a new category of "delegated acts" which
aims, inter alia, to give the European Parliament a similar role
as the Council in scrutinising a large amount of secondary legislation.
The Government supports this move, which would help to increase
the transparency of the process and enhance the EU's democratic
7. The Committee asks about the term "degressively
proportional". A degressively proportional system would allocate
seats in the European Parliament in proportion to the population
size of the Member States. The "degressive" element
would mean that increasingly larger populations are represented
by increasingly fewer additional seats. The draft also makes provision
for a minimum of four seats per Member State. The Government broadly
welcomes a proportional system, although a final decision would
depend upon the ratio of degressivity.
Article 16: The European Council; and Article
16a: The European Council Chair
The new reference to "general political directions
and priorities" is a highly significant change, which needs
to be fleshed out and complemented with proposals for greater
transparency and accountability. In addition, the relationship
between the European Council and the other Council formations
is not sufficiently clearly defined. (Paragraph 19 of the House
of Lords' Report.)
We accordingly stress the need for further accountability
of the individual members of the European Council, including the
President, to national parliaments. Such accountability should
include accountability of an individual Head of Government to
their national parliament. (Paragraph 20 of the House of Lords'
We would welcome an explanation of this term ("except
where provided otherwise, decisions of the European Council shall
be taken by consensus"). (Paragraph 21 of the House of Lords'
The proposal for a President of the European Council
is clearly intended to alter the institutional balance in the
European Union. Further clarification - and further provisions
on accountability - are required before we can give the proposal
our full support. (Paragraph 27 of the House of Lords' Report.)
8. As noted above, the Government believes firmly
that any reform of the Institutions must not upset the existing
institutional balance. The proposals for a full-time President
of the European Council would strengthen the European Council,
in parallel to the suggestions for enhancing the role and working
practices of the European Parliament and the European Commission.
We have been a strong advocate of having a full-time figure at
the head of the European Council; the rotating Presidency system
cannot provide the effectiveness required of the Council in a
Union of 25 or more Member States.
9. We envisage the role of a full-time President
of the European Council being largely that of the existing rotating
Presidency. That individual would be elected by Heads of State
or Government who are themselves elected by their citizens. By
virtue of being a more permanent figure, the President would be
able to co-ordinate the work of the European Council in a more
strategic and longer-term manner. The Government believes that,
in order to fully realise the potential gains in coherence and
consistency, the Council President should also co-ordinate the
work of the sectoral Council formations.
10. The Government acknowledges the Committee's concerns
that some of the detail remains unclear. This will be a matter
for the discussions at the intergovernmental conference (IGC).
11. The Government notes the Committee's emphasis
on enhancing the accountability of members of the European Council
to their national Parliament. We support efforts to increase the
democratic credentials of the Union. The precise way in which
national Parliaments hold their Governments to account is a matter
for each Member State to determine. The Government would welcome
any proposals from the Committee about how this might be achieved
even better at Westminster.
12. The term "except where provided otherwise,
decisions of the European Council shall be taken by consensus"
refers to those policy areas where the Constitution specifies
that the European Council shall act according to a different rule.
This includes unanimity (for example the common foreign and security
policy (CFSP)) or qualified majority voting (the appointment of
the European Council Chair and the External Representative, and
the nomination of the President of the European Commission).
Article 17: The Council of Ministers; Article
17a: Council formations; and Article 17b: Qualified majority
This provision (on the voting system in the European
Council) requires clarification. (Paragraph 31 of the House of
The Treaty should also provide for a verbatim
record of legislative proceedings to be made quickly and readily
available. (Paragraph 33 of the House of Lords' Report.)
13. The revised draft Article 23 on the Council of
Ministers now reads:
1. The Legislative and General Affairs Council
shall ensure consistency in the work of the Council of Ministers.
When it acts in its General Affairs function,
it shall, in liaison with the Commission, prepare, and ensure
follow-up to, meetings of the European Council.
When it acts in its legislative function, the
Council of Ministers shall consider and, jointly with the European
Parliament, enact European laws and European framework laws, in
accordance with the provisions of the Constitution. In this function,
each Member State's representation shall include one or two representatives
at ministerial level with relevant expertise, reflecting the business
on the agenda of the Council of Ministers.
2. The Foreign Affairs Council shall, on the
basis of strategic guidelines laid down by the European Council,
flesh out the Union's external policies, and ensure that its actions
are consistent. It shall be chaired by the Union Minister for
3. The European Council shall adopt a European
decision establishing further formations in which the Council
of Ministers may meet.
4. The Presidency of Council of Ministers
formations, other than that of Foreign Affairs, shall be held
by Member State representatives within the Council of Ministers
on the basis of equal rotation for periods of at least a year.
The European Council shall adopt a European decision establishing
the rules of such rotation, taking into account European political
and geographical balance and the diversity of Member States.
14. As noted above, there remain some outstanding
details on which discussion will focus at the IGC. The proposed
reforms to the calculating of Qualified Majority would mean that
voting arrangements agreed at Nice would be replaced by an alternative
system. Under Nice, 321 votes will be distributed amongst the
25 Council members, from 2005. A qualified majority would be formed
by 232 votes, cast by a simple majority of states (or two-thirds
when not acting on a Commission proposal), with a population lock
that the majority must represent 62% of the EU population. This
is a triple majority system.
15. The draft Constitutional Treaty proposes replacing
this system with a dual majority system. The adoption of any measure
would thus be subject to support from a simple majority of Member
States representing 60% of the EU population.
16. In line with our support for equality of Member
States, we advocate a system of team presidencies in which four
or five countries, by rotation, would chair the sectoral councils
for a set period of time. The team presidency idea would spread
the burden or chairmanship between Member States and provide longer-term
continuity, whilst maintaining the important connection between
the Member States and the EU that is inherent in the current rotating
17. The Government is not convinced of the case for
having a Legislative Council. We recognise that there could be
benefits, for example in the better co-ordination of legislation.
However, we have concerns that a permanent Minister, based in
Brussels, sitting on a Legislative Council, could weaken that
individual's link to their national Parliament. That would have
negative consequences for accountability. The Government is also
not persuaded that the legislative and executive functions carried
out by the Council could be separated easily or logically.
18. The Government believes that a new Constitutional
Treaty should provide clarity and stability for the EU. We have
not supported proposals in draft Article 24(4) for the so-called
"passerelle" clause, which would build provision for
changes in voting procedure throughout the Treaty.
19. Paragraph 5 of The Protocol on the Role of National
Parliaments, annexed to the draft Constitutional Treaty, proposes
"The agendas for and the outcome of meetings
of the Council of Ministers, including the minutes of meetings
where the Council of Ministers is deliberating on legislative
proposals, shall be transmitted directly to Member States' national
Parliaments, at the same time as to Member States' governments."
20. The Government supports this initiative wholeheartedly.
Article 18: The European Commission; and Article
18a: The President of the European Commission
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. (Paragraph 38 of the House of Lords'
21. The revised draft Article 25 on The European
Commission, as presented to the Thessaloniki European Council
on 20 June reads:
1. The European Commission shall promote the
general European interest and take appropriate initiatives to
that end. It shall ensure the application of the Constitution,
and steps taken by the Institutions under the Constitution. It
shall oversee the application of Union law under the control of
the Court of Justice. It shall execute the budget and manage programmes.
It shall exercise coordinating, executive and management functions,
as laid down in the Constitution. With the exception of the common
foreign and security policy, and other cases provided for in the
Constitution, it shall ensure the Union's external representation.
It shall initiate the Union's annual and multiannual programming
with a view to achieving interinstitutional agreements.
2. Except where the Constitution provides
otherwise, Union legislative acts can be adopted only on the basis
of a Commission proposal. Other acts are adopted on the basis
of a Commission proposal where the Constitution so provides.
3. The Commission shall consist of a College
comprising its President, the Union Minister of Foreign Affairs/Vice-President,
and thirteen European Commissioners selected on the basis of a
system of equal rotation between the Member States. This system
shall be established by a European decision adopted by the European
Council on the basis of the following principles:
(a) Member States shall be treated on a strictly
equal footing as regard determination of the sequence of, and
the time spent by, their nationals as Members of the College;
consequently, the difference between the total number of terms
of office held by nationals of any given pair of Member States
may never be more than one;
(b) subject to point (a), each successive
College shall be so composed as to reflect satisfactorily the
demographic and geographical range of all the Member States of
The Commission President shall appoint non-voting
Commissioners, chosen according to the same criteria as apply
for Members of the College and coming from all other Member States.
These arrangements shall take effect on 1 November
4. In carrying out its responsibilities, the
Commission shall be completely independent. In the discharge of
their duties, the European Commissioners and Commissioners shall
neither seek nor take instructions from any government or other
5. The Commission, as a College, shall be
responsible to the European Parliament. The Commission President
shall be responsible to the European Parliament for the activities
of the Commissioners. Under the procedures set out in Article
III-238, the European Parliament may pass a censure motion on
the Commission. If such a motion is passed, the European Commissioners
and Commissioners must all resign. The Commission shall continue
to handle everyday business until a new College is nominated.
22. The revised Article 26 on The President of the
European Commission now states:
1. Taking into account the elections to the
European Parliament and after appropriate consultations, the European
Council, deciding by qualified majority, shall put 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
2. Each Member State determined by the system
of rotation shall establish a list of three persons, in which
both genders shall be represented, whom it considers qualified
to be a European Commissioner. By choosing one person from each
of the proposed lists, the President elect shall select the thirteen
European Commissioners for their competence, European commitment,
and guaranteed independence. The President and the persons so
nominated for membership of the College, including the future
Union Minister for Foreign Affairs, as well as the persons nominated
as non-voting Commissioners, shall be submitted collectively to
a vote of approval by the European Parliament. The Commission's
term of office shall be five years.
3. The President of the Commission shall:
- lay down guidelines within which the Commission
is to work;
- decide its internal organisation, ensuring
that it acts consistently, efficiently and on a collegiate basis;
- appoint Vice-Presidents from among the members
of the College.
A European Commissioner or Commissioner shall
resign if the President so requests.
23. The Government is keen to look at ways to reform
the European Commission to make it more efficient and effective.
In doing so, it is essential that the Commission's core strengths
of independence and impartiality are preserved. We believe the
current proposal does that.
24. However, the Government does not consider that
the system for selecting Commissioners proposed in Article 26,
paragraph 2, would attract the best candidates for the positions.
The complexity of the proposed system risks dissuading candidates
of the highest calibre from putting themselves forward.
Article 19: The Foreign Minister
25. The Government welcomes the fact that the "European
Foreign Minister" would be mandated by, and answerable to,
the Council on CFSP. But we believe there must be greater clarity
about the exact status of any "European Foreign Minister"
in the Commission. We also believe that naming this individual
the "External Representative" (as suggested by the External
Action Working Group report published last December) rather than
"Foreign Minister" would be a better reflection of the
nature of the job.
Article X: The Union's Democratic Life
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. (Paragraph 43 of the House of Lords' Report.)
26. The Government agrees with the Committee that
national Parliaments could usefully scrutinise the annual programmes
of the Council and the European Commission, and welcomes the Committee's
commitment to becoming more involved, and further upstream, in
the Commission's Annual Policy Strategy.
27. This draft Treaty Article, which proposed the
creation of a Congress of the Peoples of Europe, did not receive
broad support in the Convention. It has accordingly been removed
from the draft Constitutional Treaty. However we see merit in
the Committee's proposals.
Article 20: The Court of Justice of the European
Article 20(3) needs substantial revision. (Paragraph
47 of the House of Lords' Report.)
28. The Government agrees that the earlier draft
of this article needed revision. It is important that the jurisdiction
of the ECJ is clear. There have been helpful changes to the text,
making it narrower in scope and clearly subject to the detailed
provisions in Part III. In its current form, Part III of the draft
Constitutional Treaty provides a complete and accurate description
of the Court's competences. On this basis, the Government broadly
welcomes this draft Article.
29. The revised draft Article 28 now reads:
1. The Court of Justice shall include the
European Court of Justice, the High Court and specialised courts.
It shall ensure respect for the law in the interpretation and
application of the Constitution.
Member States shall provide rights of appeal
sufficient to ensure effective legal protection in the field of
2. The European Court of Justice shall consist
of one judge from each Member State, and shall be assisted by
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 and the Advocates General of the European
Court of Justice and the judges of the High Court, chosen from
persons whose independence is beyond doubt and who satisfy the
conditions set out in Articles III-256 and III-257, 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:
- rule on actions brought by a Member State,
an Institution or a natural or legal person in accordance with
the provisions of Part III;
- give preliminary rulings, at the request
of Member State courts, on the interpretation of Union law or
the validity of acts adopted by the Institutions;
- rule on the other cases provided for in
Article 21: The European Central Bank (ECB)
30. The Government welcomes this draft Article.
Article 22: The Court of Auditors
The Committee remains concerned that, with the
enlargement of the EU now imminent, it is still the case that
very little has been done to reform the ECA. The opportunity afforded
by the Convention to reform the Court appears to be passing by.
We look forward to further proposals from, and discussions with,
the Government on this question. (Paragraph 50 of the House of
We are therefore deeply disappointed that the
new Article 22(3) simply retains the provisions introduced by
the Nice Treaty and states that the Court "shall consist
of one national of each Member State." (Paragraph 52 of the
House of Lords' Report.)
The Government must be more pro-active in promoting
reform of the ECA, both within the Convention and ahead of the
forthcoming Intergovernmental Conference. The IGC will present
the Member States with a unique opportunity to equip the Court
to meet the challenge of enlargement; it is an opportunity which
we urge the Government to exploit. (Paragraph 53 of the House
of Lords' Report.)
31. The Government agrees with the Committee that
a Court of Auditors with 25 Members is less than satisfactory.
That is why we put forward a paper to the Convention with proposals
for an alternative structure. That would have seen the 25 member
Court being replaced by:
- a Governing Committee, made up of one representative
from each Member State, to elect the President, provide strategic
direction and agree the annual business plan; and
- a nine member executive Board of Auditors General,
made up from Member States, strictly rotated on the basis of equality,
with a President at its head.
32. These proposals made no headway at the Convention.
However, the Government will continue to pursue the question of
reforming the Court of Auditors at the IGC.
Article 23: The Union's Advisory Bodies
33. The Government welcomes this draft Article.
144 Government Response dated 23 July 2003. Back