Select Committee on European Union Written Evidence

Submission by Jo Shaw, Professor and Jean Monnet Chair of European Law, University of Manchester; Senior Research Fellow at the Federal Trust for Education and Research, London

  1.  The evidence which follows reviews some important aspects of the Draft Constitutional Treaty agreed by the Convention on the Future of Europe in June/July 2003, which has been under scrutiny before this Committee, notably in the Thirty-fifth Report of 11 July 2003 (Session 2002-03, HL Paper 150) which raises some important questions.

  2.  An important preliminary question concerns the role of the IGC now that the Convention's mandate has ended. This was not addressed in the Committee's Report. The Government clearly maintains the legitimacy of its desire to ensure that the final text is one which is in the UK interest, and it follows that it fully supports the view that the IGC is decisive and the Convention was merely a preparatory body. This is very clear from the White Paper of September 2003 (A Constitutional Treaty for the EU. The British Approach to the European Union Intergovernmental Conference 2003, Cm5934). However, Parliament could conceivably take a different view, considering that it was directly represented in the Convention via the national Parliamentary representatives, two of whom were members of the House of Lords, while it is limited in its engagement with the IGC to exercising scrutiny and report functions.

  3.   To what extent, in fact, should the IGC be seeking to change the consensus agreed at the Convention, bearing in mind the risks that this entails? While each individual Member State can doubtless see how the settlement pushed through by President Giscard d'Estaing and the other members of the Presidency at the end could be improved upon from its perspective, there are two distinct risks attendant upon each Member State separately pursuing its interests in this way.

    —  In the first place, the claim by State A for Change X in the DCT may encourage State B to seek Change Y and State C to seek Change Z. In the end, these changes may be bargained against each other, even though none of them attracts the widespread enthusiasm amongst the Member States, and the matters bargained against each other (eg size and composition of the Commission vs qualified majority voting in the CFSP sector) are largely unrelated. The cumulation of all these changes to the DCT, by unravelling much of what the Convention has done, may result in an outcome which, from the perspective of measurement standards such as efficiency, legibility and transparency, is worse than the current settlement, and consequently it serves no Member State well when viewed in the wider context of the project of European integration. In other words, from the perspective of the collective interest, the settlement agreed at the Convention may be the best which can be obtained under the present conditions.

    —  Even if this risk is not realised, and any changes resulting from separate Member States deliberately pursuing their interests in the IGC do not undermine the qualities of the current settlement, there is a risk that the IGC, given its exclusive membership and its intransparent diplomatic processes, may undermine the small amount of progress which the Convention experiment has enabled the EU to take towards facilitating wider public `ownership' of European constitutional debate amongst national as well as European elites. This outcome would not satisfy the Laeken mandate which provides a framework for action for the Member States acting in the context of the IGC as much as it does for the Convention itself. Some of the changes to the institutions which were inserted into the Convention settlement at the eleventh hour may in fact already come within that rubric. Others, such as the citizen initiative project or the symbols, flags, etc provision have a naked ambition to facilitate that ownership, but will not necessarily succeed given that they may well remain primarily rhetorical in effect.

  4.  To conclude, at this stage, given that the Member States have made clear their intention to take a proactive role in `improving' the DCT, it may seem a little tardy to draw attention to these risks. None the less, it might be appropriate for the Select Committee itself to ask whether its work on the IGC might be influenced by the risks outlined here in relation to the nature and type of national action at the IGC which it sees as desirable.

  5.  A closely associated question concerns the risks which arise if the UK finds itself in a minority and is forced to veto the whole process because it cannot sign up to a Treaty which it sees as transgressing its red lines on stated issues of national interest, such as qualified majority voting or perhaps defence. The result would be that the EU would carry on with the current acquis, as latterly amended by the Treaty of Nice with a view to facilitating enlargment. The Nice Treaty is flawed and indeed the European Council in the Laeken Declaration in December 2001 effectively acknowledged that acquis to be unsatisfactory for an enlarged EU. Consequently for a state to be seen to be blocking such a settlement and to be causing the jettisoning of eighteen months of work by the Convention could be disastrous politically for the UK. This is particularly so in view of the heightened sensitivities about the UK's position in the EU given the Iraq crisis and the nature of UK government policy on joining the euro. In a sense, therefore, this risk speaks in favour of allowing national governments a free hand to compromise over the final Treaty text if this is the only way to ensure that a Treaty which preserves the essential elements of the Convention's achievements, especially in the area of simplification is actually adopted. Equally, it may be taht the insistence by one or more Member States on a watered down Constitutional Treaty could trigger the break up of the European Union if a core group of States were to re-institute the Convention's consensus as some sort of "Union refondée" (ie via a new Treaty limited to a smaller group of Member States) and were to leave the EU as it currently stands behind in pursuit of deeper integration. Although that eventually is relatively remote, it needs to be fed into political calculations about what are "genuine" red lines in the intergovernmental negotiations.

  6.  The general lines of the DCT as agreed by consensus in June and July 2003 need little further elaboration in this exposition. In terms of simplification, the following key improvements can be noted:

    —  The establishment of a "single" legal personality for the Union (with the exception of Euratom);

    —  The overhaul of the existing treaties in such a way as to achieve in large measure the abolition of the "pillar" structure and the creation of a more simplified treaty structure (although of course, in some ways the pillars simply disappear "underground" as many have already commented);

    —  The clarification of competences and the strengthening of the attributed powers principle;

    —  The simplification of instruments as well as law-making and decision-making procedures;

    —  The introduction of a hierarchy of norms relating to legislative and non-legislative instruments;

    —  The shift to a simplified and more easily understood and applied definition of a qualified majority (50 per cent of Member States representing three fifths of the overall population of the EU) which gets away from the invidiousness associated with the weighting of votes (allbeit not until 2009: Article I-24(3));

    —  The grouping together of all the external policy provisions.

  7.  In terms of those Laeken objectives concerned with normative values of democracy and accountability, with a view to meeting citizen expectations of the EU, the key improvements include:

    —  The incorporation of the text of the Charter of Rights in Part II of the Constitution, a reference to the "recognition" of these rights, etc, in Article I-7, and the commitment to seek accession to the European Convention on Human Rights and Fundamental Freedoms. This has been widely interpreted as instituting legal enforceability for the Charter, since the Court has jurisdiction under Article I-28 to ensure "respect for the law in the interpretation and application of the Constitution", with no limitations placed upon this. The wording, however, is slightly ambiguous. Moreover, the UK Government has reserved its decision on the incorporation of the Charter explicitly until the end of the IGC (para 103 of the White Paper), a restriction which does not meet with the expectations of citizens and the widespread acceptance amongst Member States and other political actors that the Charter should be legally binding.

    —  Increased responsibility has been conferred on the EU institutions in the area of justice and home affairs with the promise of increased policy effectiveness.

    —  Increased involvement of national parliaments in policy-making processes has been secured, including a limited "yellow card" procedure in relation to subsidiarity concerns, without the creation of a (cumbersome) new institution.

  8.   Institutionally and structurally, in terms of the functioning of the EU, a number of improvements have been made. The processes within the Convention which led to the consensus amongst the vast majority of Convention members on reforms to the institutions to address some of the Nice/Laeken lacunae in terms of the effectiveness of institutions and the possibilities of policy-making in an enlarged European Union left much to be desired, but in practice the results skillfully appear to offer something for everyone, preserving the spirit, if not always the substance, of the historical fudge of institutional power which has marked the EC/EU Treaties since the Treaty of Rome 1957. In other words, they appear to offer something for everyone. Amongst the key changes are:

    —  The budgetary process has been altered to remove the distinction between compulsory and non-compulsory expenditure and to increase the powers of the European Parliament.

    —  The "ordinary" legislative procedure (ie co-decision) and qualified majority voting in the Council of Ministers to be the default scenario for decision-making, thus increasing the European Parliament's role in the legislative process, with the Commission's largely exclusive power of legislative initiative and power to initiate annual and multiannual programming for the Union explictly preserved.

    —  Closely linked is the increased use of qualified majority voting in some areas to restrict decision-making blockages, eg in relation to administrative cooperation in relation to some forms of taxation with cross-border implications, an area the UK Government is concerned about.

    —  The creation of a new post of European Council Chair or President is seen by many larger Member States as essential to ensuring the effectiveness of leadership in the EU context, although others fear it will undermine the authority of the Commission.

    —  Equally, while the creation of the post of Union Minister for Foreign Affairs seems an important innovation combining the external relations functions of the Council Secretary General and the Commissioner for External Relations, it is also marked with doubts about whether the job could realistically be done by a single person, and what the Minister's precise powers (and resources) might be.

    —  Furthermore, the DCT provides some answers to the question posed by the Select Committee which asks whether it is reasonable for a vetoing Member State—where unanimity still prevails—to frustrate the common will of the other 24 (or more) states. There are a number of references to constructive abstention in the Treaty, notably in relation to CFSP, whereby an abstaining state will not prevent the others taking action. Further, the provisions on enhanced cooperation are eased in certain key respects in comparison to the Nice status quo, which itself eased the original Amsterdam conditions applying to groups of Member States which wished to further their integration process by borrowing the institutions and procedures of the EU in order to adopt policies in areas where all Member States could not agree on progress. Notably, in the CFSP area, authorisation to proceed requires only a European decision, namely an act adopted by QMV. Furthermore, Member States engaging in enhanced cooperation can themselves, unanimously, decide to apply QMV and the ordinary legislative procedure in an area where unanimity and a special legislative procedure currently prevail. In other words, they are given their own "passerelle" (Article III-328).

  9.  The Select Committee's Thirty-fifth Report draws attention—by asking pertinent questions—to some areas of the DCT which are frankly unsatisfactory. Sometimes that is attributable to the rushed nature of the final compromise; in other cases, it appears to be simple carelessness somewhere within the workings of the Convention. The most egregious example of the latter lies in Article III-17, concerned with distortions of competition. The originating provision—Article 298 EC—refers to the circumstances referred to in Articles 296 and 297 (security interests, military questions, serious internal disturbances), and this was replicated in earlier versions. In the final version, these provisions were substituted by references to Article III-6 (services of general interest) and III-34 (restrictions on services). This is a bizarre mistake and must be corrected by the IGC, as a technical question. However, it detracts from the work of the Convention which was largely—in respect of Part III—supposed to be working with the acquis provided by the EC and EU Treaties.

  10.  One institutional question which has not been satisfactorily resolved is the size and composition of the Commission. The debate has become horribly stagnated not least because the composition of the Commission, and especially the question of its representativity (or lack of it) has become a potent symbol of the equality of Member States within the EU, which is particularly important to small Member States. Hence the provisions on the so-called "European Commissioners" (the full ones . . .) are hedged around with a provision requiring geographical and demographic balance to be reflected in each tranche of Commissioners, as well as a strictly equal rotation between Member States. The (ordinary) "Commissioners" are not dealt with fully in the DCT, and consequently it seems hard, as the Select Committee Report hints, to envisage a proper role for these Commissioners. In order to assuage sensibilities the terms "vice" Commissioners or "assistant" Commissioners have been avoided in the DCT, resulting in the idiocy of a distinction to be drawn between European Commissioners and (plain) Commissioners. It should be noted that the original term was "Commissioner" under the EC Treaty. Two primary possibilities can be envisaged for the future: hopeless terminological confusion with no-one quite sure which set of members of the Commission is being referred to or an effective elision of the difference between the two sets of Commissioners, all in practice referred to as simple "Commissioners", as the laudable attempt to reduce the size of the Commission to make it an efficient organ is effectively washed away by the waters of national protectionism.

  11.  This is one of the many examples, moreover, where compromises to delay the effects of certain changes, the effects of which will be felt most keenly if agreement, signature, ratification and entry into force of the new Treaty proceeds promptly, very substantially undermine the objective of promoting simplification and citizen accessibility. It appears to citizens constitutionally disreputable for Member States to agree that such and such a change is a "good thing" and should be put in place, but then to delay that change until after certain key financial decisions (eg the next multi-annual financial perspective) have been taken. The point is compounded by the fact that the DCT adopts a number of delayed-entry provisions from the Treaty of Nice, such as Article III-318 on the implementation of the budget and Financial Regulations, where QMV is delayed until after 1 January 2007 (Article 279 EC).

  12.  The question of national opt-outs is not specifically dealt with in the DCT, with the exception of EMU, where the text replicates the existing—Maastricht-derived—provisions for Member States with a derogation, and therefore not participating in the euro (Articles III-91 to III-96). As to the derogations for the UK, Ireland and Denmark in relation to various Schengen and free movement related matters, no provision is made. This cannot be attributed to the suggestion that the Convention did not deal with matters of detail, such as Protocols, as it drafted a number of Protocols which it deemed important to attach to the Treaty, eg on the Euro Group. Notwithstanding the abolition and succession clauses in Part IV (Articles IV-2 and IV-3), it seems unlikely that the IGC will opt for any solution other than the continuation of the status quo negotiated at Amsterdam, despite the hostility that has been directed towards the opt-outs in a number of quarters (eg the Commission) and despite the fact that they appear to run counter to the principle of unitary simplified framework that the DCT attempts to establish. In relation the UK, for example, this would be the only feasible solution since the UK's primary national concern is the applicability of the underlying primary obligations in relation to the free movement of persons. It has had considerably fewer difficulties with quartes (eg the Commission) and despite the fact that they appear to run counter to the principle of unitary specific measures which it sees as being in the national interest. Hence the application of the enhanced cooperation provisions to facilitate variable geometry within the framework of a unitary EU would not be a sufficient outlet for the project embodied by the opt-out.

  13.  One of the most jumbled sections of the DCT which fell victim to last minute "amendments on the hoof" concerns the so-called Legislative Council, an innovation which was intended to enable a politicisation of the Council's "end" of the co-decision process which matches the European Parliament's, which often operates in practice via its quite specialised and expert Committees. Unfortunately, in the endgame the Legislative Council was re-amalgamated with the General Affairs Council, compounding the fact that no-one is quite sure how the General Affairs Council should evolve, since it is now in practice quite impossible for Ministers of Foreign Affairs to deal effectively with its business, given the increasing Foreign Affairs remit of the EU. The Member States, on the other hand, remain reluctant to have dedicated Ministers of European Integration across the board, who could service the European legislative and executive processes, notably in conjunction with specialists from subject-specific Ministries. As it stands, therefore, it seems extremely unclear how the Legislative Council could work, and it might indeed not contribute at all to the transparency of the legislative process, which it is what it is intended to do.

  14.  One final question which the Select Committee might care to take up, which was not mentioned in the Report, concerns the Open Method of Coordination (OMC). There were numerous failed attempts to incorporate OMC into the DCT, notably led by Vice President Giuliano Amato. The Praesidium discussed the question on several occasions and considered inserting an OMC article into Part I. However, it failed to agree on a wording. At the eleventh hour (these wordings were inserted only into the very last draft of the DCT, presented after Praesidium deliberations between the plenary sessions on 9 and 10 July 2003: CONV 848/03), a descriptive reference to the Commission's role in OMC was inserted into four provisions of the DCT: Article III-107 (social policy); Article III-148(2) (research and technological development); Article III-179(2) (health); Article III-180(2) (industry). The latter three are the most intersting examples. In each case, the current EC Treaty provision allows the Commission to take "any useful initiative" to promote coordination between the Member States (Articles 165(2), 152(2) and 157(2)—successively concerned with RTD, health and industry). The new provisions add to this: "in particular initiatives aiming at the establishment of guidelines and indicators, the organisation of exchange of best practice, and the preparation of the necessary elements for periodic monitoring and evaluation. The European Parliament shall be kept fully informed." The missing elements concern (a) the role of national political bodies, notably Parliaments, which presumably remains a matter solely for national law and (b) the role of civil society. The latter role, which has been specifically recognised in the democratic life of the EU, with the discussion of the principle of participatory democracy in Article I-46, was much discussed in relation to OMC, especially in relation to the implementation of new practices "learned" by public bodies in the context of an OMC process. OMC is an important mode of so-called new governance in the EU. It was unfortunate that the Praesidium was not able to find a clause which could be fully discussed in the plenary, since there did seem to be substantial support in the Convention Plenary to include OMC in the Constitution, not in order to constrain it, but in order to provide constitutional guarantees for all the relevant actors. The outcome of a number of ad hoc amendments to specific policy sectors rushed through at the end, and looking only at the EU institutional end of OMC is distinctly sub-optimal.

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