Select Committee on European Union Forty-First Report



The Government welcomes the Committee's Report, which provides a useful factual compendium of the Praesidium's draft Articles and commentary. The Government is grateful for the Committee's own comments on the draft Articles and notes the amendments presented to the Convention by the Right Honourable Peter Hain, as the UK Government Representative to the Convention.

In the Praesidium's re-drafted Constitutional Treaty, presented to the Convention on 12 June, these Articles now feature as Articles 44-51 in Part I, Title VI: The Democratic Life of the Union. The Government believes that the re-drafted Articles represent an improvement. There is much to commend these draft Articles.

Article 33: The principle of democratic equality

This is now Article 44 of the draft Constitutional Treaty, which reads:

"In all its activities, the Union shall observe the equality of citizens. All shall receive equal attention from the Union's Institutions."

The Government shares the Committee's concern about the generality of the term "citizens" in this, and other Articles. We have stressed that such terms must be precise throughout the Constitutional Treaty. We have, accordingly, proposed that the text makes clear that the citizens referred to here are those of the Union.

The latest Praesidium draft includes a new Article 45: The principle of representative democracy. This reads:

1.  The working of the Union shall be founded on the principle of representative democracy.

2.  Citizens are directly represented at Union level in the European Parliament. Member States are represented in the European Council and in the Council by their governments, themselves accountable to national Parliaments, elected by their citizens.

3.  Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly as possible and as closely as possible to the citizen.

4.  Political parties at European level contribute to forming European political awareness and to expressing the will of Union citizens.

Article 34: The principle of participatory democracy

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.

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 voluntary associations?

This is now Article 46. The revised wording reads:

1.  The Union shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views on all areas of Union action.

2.  As per previous draft Article 34(3).

3.  The Commission shall carry out broad prior consultations with parties concerned in order to ensure that the Union's actions are coherent and transparent.

4.  A significant number of citizens, no less than one million, coming from a significant number of Member States may invite the Commission to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing this Constitution. A European law shall determine the provisions for the specific procedure and conditions required for such a citizens' request.

The Government welcomes the new commitment in Article 46(3) for the Commission to consult broadly with all parties concerned. This is important to ensure that, inter alia, the regions are involved as fully and early as possible in discussions about issues that will affect them. In this respect, we have also proposed that the Union Institutions maintain a dialogue with the regions, as well as representative associations and civil society, under Article 46(2). This will help to improve the Union's transparency and enhance its democratic credentials. However, the Government remains to be convinced that the provision in Article 46(4) would improve the existing arrangements for submitting a legislative proposal.

As with Article 33 above, the Government agrees with the Committee that the terminology must be legally clear.

The Praesidium's draft of 26 May inserts a new Article 47: The social partners and autonomous social dialogue. This reads:

"The European Union recognises and promotes the role of the social partners at Union level, taking into account the diversity of national systems; it shall facilitate dialogue between the social partners, respecting their autonomy."

Article 35: The European Ombudsman

The requirement that he or she be appointed by the European Parliament (Article 195 TEC) is an important guarantee of the Ombudsman's independent which we believe could usefully be included in this Article rather than in Part Two of the new Treaty.

This is now Article 48 and has been revised in line with the Committee's point, that the appointment of the Ombudsman by the European Parliament be included in this Article. It now reads:

"A European Ombudsman appointed by the European Parliament shall receive, investigate and report on complaints about maladministration within the Union Institutions, bodies or agencies. The European Ombudsman shall be completely independent in the performance of his duties."

The Government is broadly content with this draft Article. However, we have questioned whether it is appropriate for this Article to apply to the common foreign and security policy (CFSP), given the distinct, intergovernmental nature of that policy area. We have proposed a new Article (238) in Part III of the draft Constitutional Treaty that would exclude CFSP from the provisions of this Article.

Article 35a: Political parties at European level

This draft Article has been removed from the Praesidium's 26 May re-draft and succeeding drafts. It now appears in Article 45(4).

Article 36: Transparency of the proceedings of the Union's institutions

The application of the principle should be expressly extended to include all agencies and bodies established or created by or under the Treaties.

But a general rule in the Treaty, such as that in Article 36(2), would be an important step forward.

We recommend that Article 36(3) be amended so that any natural or legal person (irrespective of his, her or its nationality or residence) should have the right of access to EU documents.

We recommend therefore that Article 36(3) be extended to cover all bodies and agencies established or created by or under the Treaties.

The Government believes that the revised Article represents an improvement in clarity and drafting. It now reads:

1.  In order to promote good governance and ensure the participation of civil society, the Union Institutions, bodies and agencies shall conduct their work as openly as possible.

2.  As previously.

3.  Any citizen of the Union, man or woman, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union's Institutions, bodies and agencies in whatever form they are produced, in accordance with the conditions laid down in Part Three of the Constitution.

4.  A European law shall lay down the general principles and limits which, on grounds of public or private interest, govern the right of access to such documents.

5.  Each institution, body or agency referred to in paragraph 3 shall determine in its own rules of procedure specific provisions regarding access to its documents, in accordance with the European law referred to in paragraph 4 above.

The Government's position on openness is clear. We are keen advocates of greater openness in the working of the EU. However, protection must be ensured for genuinely sensitive information and to ensure legal certainty for the EU's citizens and its Member States. It was in this spirit that the UK approached negotiations of the EU's Access to Documents Regulation.

Article 2(2) of the Access to Documents Regulation already provides that the Union Institutions may extend the right of access to natural or legal persons not residing or having their registered office in the Union.

Article 36a: Protection of personal data

We believe that the limits of the power in Article 36(2) need to be defined. It must be clear that Article 36a does not confer any general power on the Union to legislate on data protection.

This is now Article 50. It has been redrafted to read:

1.  As previously.

2.  A European law shall lay down the rules relating to the protection of individuals with regard to the processing of personal data by the Union's Institutions, bodies and agencies, and by the Member States when carrying out activities which come under the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of an independent authority.

We have recommended that Article 50(1) be deleted as it simply repeats what is already in the Charter of Fundamental Rights. Such repetition does not aid legal clarity. We have further proposed that Article 50(2) would be more appropriate in Part III of the Constitutional Treaty.

Article 37: Status of churches and non-confessional organisations

Whether Article 37 is necessary or helpful requires careful consideration.

This Article, now 51, has been slightly re-drafted:

1.  The European Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States.

2.  The Union equally respects the status of philosophical and non-confessional organisations.

3.  Recognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organisations.

As the Committee notes, this Article formalises the status of churches and non-confessional organisations as set out in the Treaty of Amsterdam. It helpfully recognises that Member States, rather than the EU, have responsibility for policy on religious matters.

The Government notes the Committee's comments about this Article. In keeping with the aim of greater clarity, the Treaty sets the scope of the Union's relations with Member States and non-state actors. This Article deals with churches and non-confessional organisations. Other provisions cover participatory democracy and the Union's relations with social partners.

145   Government Response dated 20 June 2003.  Back

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