11 MARCH 2003
By the Select Committee appointed to consider European
Union documents and other matters relating to the European Union.
THE FUTURE OF EUROPE: CONSTITUTIONAL TREATYDRAFT
CONV 571/03 Draft of Articles 24 to 33 of the
PART 1: introduction
1. This is our second Report on the draft Treaty
Articles now being discussed in the Convention on the Future of
2. The text of the new Constitutional Treaty
is appearing in stages. In our first Report
on the Treaty we considered Articles 1 to 16 (Titles I-III, Definition
and objectives of the Union, Union citizenship and fundamental
rights and Union competences and actions). In paragraph 2 of that
Report we drew attention to the unsatisfactory nature of a procedure
which required us to review groups of Articles without sight of
the full text of the Treaty. We repeat that comment now.
3. In this Report we consider the second batch
of Articles prepared by the Praesidium. This comprises Articles
24-33 (Title VImplementation of Union Action), which set
out the instruments available to the Union's institutions for
the exercise of their competences. There is new terminology ("European
laws" and "European framework laws") and an attempt
to separate legislative from executive functions and to establish
a hierarchy of measures with the creation of a new level of EU
legislation, "delegated acts".
4. The format of this Report follows that of
our Report on Articles 1-16. Each Article is followed by an Explanatory
(the text of which has been prepared by the Convention Secretariat)
and a Commentary added by the Committee.
5. We make this Report to the House for information.
PART 2: Analysis of articles 24-33
Article 24: The legal acts of the
|1 In exercising the competences conferred on it in the Constitution, the Union shall use as legal instruments, in accordance with the provisions of Part Two, European laws, European framework laws, European regulations, European decisions, recommendations and opinions.
A European law shall be a legislative act having general application. It shall be binding in its entirety and directly applicable in all Member States.
A European framework law shall be a legislative act which shall be binding, as to the result to be achieved, on the Member States to which it is addressed, but shall leave the national authorities entirely free to choose the form and means of achieving that result.
A European regulation shall be a non-legislative act having general application for the implementation of legislative acts and of certain specific provisions of the Constitution. It shall be binding in its entirety and directly applicable in all Member States.
A European decision shall be a non-legislative act, binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.
Recommendations and opinions adopted by the institutions shall have no binding force.
2 When considering proposals for legislative acts, the European Parliament and the Council shall refrain from adopting acts not provided for by the Constitution.
"This Article lists the instruments which the Institutions may use to implement competences. The list is an exhaustive one, which applies to all areas covered by the Constitution in accordance with the provisions of Part Two. In the case of the common foreign and security policy, the common defence policy and the policy on police matters and crime, the report from Working Group IX had envisaged maintaining their specific characteristics while harmonising the legal instruments. Those characteristics will be the subject of Articles 29, 30 and 31.
The definitions of the new instruments are in line with the proposals of Working Group IX, the acts themselves having been classified into two groups: legislative and nonlegislative.
The definitions of laws and framework laws reproduce the current definitions of regulations and directives under Article 249 of the TEC.
The full titles are European law and European framework law. The Working Group's conclusions proposed "European Union law and European Union framework law". The titles proposed here take account of the need to distinguish Union laws from national laws, which was the priority for the Working Group, but is without prejudice to the name which the Convention will give to the European entity.
The definition of a European regulation reproduces the current definition of regulations in Article 249 applied, as a nonlegislative act, to the implementation of legislative acts and certain specific provisions of the Constitution.
The definition of a European decision - again in line with Working Group IX's conclusions corresponds to the definition in Article 14 ECSC. Unlike the definition in Article 249, it is not necessary to indicate those to whom it is addressed. One aim of this broader definition is to make decisions the legal instrument in the CFSP area, in place of "the joint action" and the "common position".
Paragraph 2 limits the use of non-standard acts, which is in line with Working Group IX's conclusions. The Working Group considered that non-standard acts (resolutions, conclusions, declarations, etc.), while they had no binding force, nonetheless afforded the Institutions a degree of flexibility which should be safeguarded. However, the Working Group suggested including in the Treaty a rule whereby the legislator (Parliament/Council) should refrain from adopting nonstandard acts on a given subject when legislative proposals or initiatives on the same subject had been submitted to it. Such a rule already appears in Article 7 of the Council's Rules of Procedure. The aim is to avoid the impression that the Union legislates through a multiplicity of non-standard instruments."
6. Title V of the Constitution is based on the
recommendations of Working Group IX on Simplification. Their recommendations
were essentially threefold: to reduce the number of Union legal
instruments; to give the instruments names more readily understandable
to the public; and to introduce a hierarchy of legislation. In
giving effect to those recommendations the draft also makes a
distinction between "legislative" and "non-legislative"
measures in an attempt to establish a clear line between the legislature
(the Council and the European Parliament) and the executive (the
Commission). But that distinction is blurred because, as Articles
26 and 28(2) show, sometimes the Council or the European Central
Bank may constitute the executive.
7. Article 24 lists six types of instrument,
of which one, the "European regulation", is new. The
Article also introduces new terminology: "European law",
"European framework law", and "European decision".
These terms replace "regulation", "directive"
and "decision" respectively. Only "recommendations"
and "opinions" have remained unchanged.
8. The definitions of "European laws"
and "European framework laws" follow those in Article
249 TEC for regulations and directives respectively but both have
the additional feature of being expressly classified as being
"legislative acts". In this context, as Article 25 explains,
a "legislative act" is one made by the legislature (the
Council and the Parliament or, exceptionally, the Council acting
9. "European laws" will be, as "regulations"
currently are, directly applicable, having the force of law without
national legislatures normally having either the need or the right
The main difference in future will be that while at the moment
the Commission, when authorised by or under the Treaty, can make
regulations, it will not be able to make "European laws".
The Commission will, however, be able to make "delegated
regulations" (under Article 27) and "European implementing
regulations" (under Article 28). These measures would, according
to Article 26, be "European regulations" as defined
in Article 24. But for the fact that they are stated to be "non-legislative
acts", "European regulations" have the same legal
effects as "European laws", having, in words similar
to Article 249 TEC, general application and being binding in their
entirety and directly applicable in all Member States.
10. The authors of the new Constitution contend
that this new categorisation of measures and terminology will
add to transparency. But what added value, if any, there might
be in trying to distinguish some generally applicable and legally
binding rules as "legislative acts" and some as "non-legislative
acts" is at first sight obscure. The reality is that at present
there is no single Union legislature and Union legislation is
made by the Council, the Parliament and the Commission. Further,
there is no neat separation of powers. It may be that the scheme
of Articles 24-26 is seeking to distinguish the Legislature from
the Executive in the new Constitution of the Union. But what seems
clear is that if that is the objective any separation will remain
blurred, at least so long as the Treaty provides for the Council
to take executive action (which we imagine will continue to be
the case at least as regards the CFSP for some time) and for the
Commission to have a virtual monopoly of the right of initiative
as regards Union legislation and the extensive power to make directly
applicable secondary legislation. 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.
11. A further difficulty is created by the use
of the term, in English, "European law". This hardly
adds to the clarity. While the German and French texts may translate
well into "europaisches Gesetz" and "loi
the term does not work in English. In English, "laws"
derive from many sources (including Parliament, the courts, local
authorities, the judges and, not least, the Union). Calling a
rule "a law" does not indicate its origin or status
compared with other laws. "European law" and "European
laws" in current parlance simply means law made by or emanating
from the Union. Yet another problem, at least in the English language,
is the recognition that European law is not restricted to European
legislation but also includes principles laid down by the Court
of Justice. The new Constitution recognises this (see, for example,
Article 5(3) of the new Treaty). The term "a European
law" in Article 24 raises difficulties which need further
12. "European framework laws" replaces
"directives". The terminology is not entirely new in
the sense that "framework decisions" are currently used
in the Third Pillar (TEU Title VIPolice and Judicial Cooperation
in Criminal Matters). But it is expressly provided there that
they shall not entail direct effect (Article 34(2)(c)). Whether,
with the collapse of the Pillar system in the new Treaty, "European
framework laws" will replace both First Pillar directives
and Third Pillar "framework decisions" remains to be
seen. There is to be a special provision (Article 31) dealing
with Police and criminal justice policy. Whether framework decisions/laws
in this sector should continue not to have direct effect (ie
confer rights on individuals which national courts will protect)
is a sensitive issue. 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.
13. The term "European decision" is
also not trouble-free. It is said to have been derived from Article
14 ECSC and the definition of "decision" in Article
24(1) is significantly different from that currently in Article
249 TEC. First, European decisions are expressed to be "non-legislative"
acts. As already mentioned that does not mean that they are devoid
of (general) legal effect but, it would appear, merely that they
emanate from the Council or the Commission (as the executive?).
As we have indicated above (para 10) it is very confusing to say
that something is a "non-legislative act" when it results
in a binding legal rule to which sanctions are or may be attached.
Second, the words "upon those to whom it is addressed",
currently in the Article 249 TEC definition of "decision",
are not necessary for the definition of "European decision".
This is the influence of Article 14 ECSC. Under the ECSC Treaty,
"decision" covered acts providing general rules of law
(ie "regulations" in EC terms) as well as those
which were individually addressed to specific persons. And later
Articles of the ECSC Treaty distinguished between "general
decisions" and "individual decisions". The intention
in adopting the ECSC definition in preference to Article 249 TEC
appears to be to enable inter alia European decisions to
replace the "joint actions" and "common positions"
currently used in the Common Foreign and Security Policy (CFSP).
A European decision will, however, be "binding in its entirety",
except where it specifies those to whom it is addressed when it
will only be binding on them. What "binding in its entirety"
will mean in this context is uncertain. In the ECSC context it
meant that a general decision could establish a legal principle,
impose abstract conditions for its implementation and set out
the legal consequences entailed thereby.
Whether and when "European decisions" might have a general
normative effect is unclear. Such an effect might not always be
appropriate for "European decisions" in CFSP, where
if no addressee is specified the decision is presumably intended
only to be binding on those party to it (ie the Member
States under the CFSP).
14. The final paragraph of Article 24(1) reproduces
the last paragraph of Article 249 TEC with the addition of the
words "adopted by the institutions". As mentioned above,
"recommendations" and "opinions" have not
15. Article 24 is intended to limit the number
of types of legal instrument available to EU institutions. But,
as the Explanatory note to Article 24(2) suggests, the list in
Article 24(1) may not be exhaustive, at least as regards measures
not intended to have binding effect. Further, instruments under
the CFSP and Police and criminal justice policy are to have their
own "specific characteristics". 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.
Article 25: Legislative acts
|1 European laws and European framework laws shall be adopted, on the basis of proposals from the Commission, jointly by the European Parliament and the Council in accordance with the rules of the legislative procedure referred to in Article X (Part Two of the Constitution). If the two institutions cannot reach agreement on an act, it shall not be adopted.
Specific provisions shall apply in the cases referred to in Article Z (ex-third pillar).
2 In the specific cases provided for by the Constitution, European laws and European framework laws shall be adopted by the Council.
3 When acting under any procedure for the adoption of a European law or a European framework law, the European Parliament and the Council shall meet in public.
"As proposed in Working Group IX's report and accepted by the plenary, the general decisionmaking rule is that laws and framework laws are to be adopted under the codecision procedure, as currently referred to in Article 251 TEC.
Neither the discussions in the Working Group nor those in the plenary could settle the name of that procedure. The Working Group's report notes the proposal that it should be called "legislative procedure" but also that some members preferred "codecision procedure". The Praesidium proposes the name "legislative procedure" as this is more comprehensible to members of the public and in order to emphasise that this procedure is the general rule for the adoption of legislative acts.
The report of Working Group IX recommends that decision-taking procedures should be listed and their key elements outlined in Part One of the Constitutional Treaty, whereas a detailed description of the way they operate should be given in Part Two. The procedure as outlined in Article 25 is therefore limited to the key elements: Commission initiative, joint decision of the Parliament and the Council, parity between the two institutions and transparency. The detailed rules are to be laid down in Part Two of the Treaty.
In accordance with Working Group X's conclusions, specific procedural rules are laid down for the area covered by the present third pillar. They concern the right of initiative which could also be exercised by the Member States in accordance with rules to be determined in Article 31.
Working Group IX recommended generalising qualified-majority voting in the Council in all cases where the legislative (former codecision) procedure applies. This rule will need to be reflected in the adjustments to Part Two of the Constitution. The majorities in the Council and in Parliament, which, moreover, change from stage to stage of the legislative procedure, are aspects of the latter's detailed rules.
Paragraph 2 recognises that there are exceptions to the general rule that legislative acts are adopted by the codecision procedure. Those exceptions must be expressly specified in Part Two of the Constitution. The Praesidium intends to submit the list of exceptions for consideration by the Convention so that it can take it into account in the debate on these draft Articles.
Only the institution that takes the decision is mentioned, namely the Council. The question has arisen as to whether the Parliament's role (consultation) and the Commission's initiative should not also be mentioned.
The Praesidium has elected not to do so in order to highlight the exceptional nature of this procedure and avoid giving the impression that it might be an alternative for the adoption of legislative acts. Acts will of course be adopted in accordance with the provisions of Part Two, particularly in the case of legislative initiative and opinions.
It should also be noted that the Working Group's report proposes that Article 251 should be simplified and its wording amended in order to make clear the parity between Parliament and Council.
Lastly, the codecision procedure is the only procedure that need be considered here. In all other cases (decision taken by the Council acting unanimously or by a qualified majority, alone or after receiving the Parliament's opinion or its assent), the procedure corresponds to each institution's general decision-making rules or to special voting rules laid down in given legal bases."
16. The principal aim of Article 25 is to establish
co-decision as the normal legislative procedure subject to limited
exceptions. Though co-decision is now well-established, making
it the universal rule, albeit with some exceptions, is controversial.
But the debate is likely to focus on those areas/matters that
should continue to be the exceptions. We note that a list of exceptions
is to be produced to assist the discussion of this Article in
the Convention Plenary.
17. Successive Treaty amendments have seen the
growth of co-decision. The Maastricht Treaty introduced the co-decision
procedure into the legislative processes of the Community, thus
according the Parliament an enhanced role as legislator alongside
the Council. The Amsterdam Treaty extended substantially the range
of matters to which co-decision applied. The number of policy
areas subject to the procedure was extended from 15 to 38. The
Amsterdam Treaty also simplified the procedure itself and gave
the Parliament a definitive veto, though the position (currently
set out in Article 251 TEC) remains somewhat complex. Further
extension of the co-decision procedure was discussed in the run-up
to the Nice Inter-Governmental Conference (IGC) but extension
of co-decision was not as great as some parties (the Commission
and the Parliament) had wished. Another 12 matters were added
by the Nice Treaty, but there was no amendment of the procedure
18. The main areas where co-decision currently
applies are the Single Market, Transport, Environment, Freedom
of Movement, Equal Pay for men and women, Public Health, Customs
cooperation, Vocational Training, Development Aid, Countering
fraud, Research, Transparency and Access to Information. Co-decision
is therefore well-established in the First (EC) Pillar. There
are, however, some notable exceptions (such as Article 37Agriculture,
Article 94approximation of laws, Article 161administration
of regional aid, and Article 279the Budget). Most significantly,
co-decision does not apply in the Second (Common Foreign and Security
Policy) or the Third (Police and Judicial Cooperation in Criminal
19. Article 25 provides for, but itself does
not list, exceptions. The Third (Police and Judicial Cooperation
in Criminal Matters) Pillar is an acknowledged special case. There
is no reference to CFSP, presumably because it is not envisaged
that it will involve "European laws" and "European
framework laws". But First Pillar measures (for example under
Article 301 TEC) may be used to give effect to Second Pillar policies.
20. Article 25(1) presumes that in all matters
subject to co-decision the Commission will have the sole right
of initiative (note the words "on the basis of proposals
from the Commission"). Whether, if co-decision is to apply
generally, the Commission should have such a monopoly needs consideration.
In particular, Member States currently have the right of initiative
in certain Justice and Home Affairs matters (Title IV TEC) and
under the Third Pillar. The Explanatory note acknowledges that
the special rule on the Third Pillar might preserve Member States'
right of initiative.
21. As the Praesidium notes, only the "essential
components" of the procedure are set out in Article 25 (ie
parity between the Parliament and the Council, the legislative
initiative of the Commission and the transparency of the procedure).
The detail of the co-decision procedure, currently contained in
Article 251 TEC, is to be set out in Part Two of the new Treaty.
What appears to be assumed is that the present complex procedure
will largely remain. It is noteworthy that the Convention Working
Group IX did not offer any proposals for its amendment save making
the composition of the Conciliation Committee more flexible in
order to maintain the parity of the Council and the Parliament.
22. Further, Article 25 is silent on the question
of whether decisions in the Council on proposals subject to co-decision
will be subject to qualified majority voting (QMV). Convention
Working Group IX (Simplification) recommended that "co-decision
should become the general rule for the adoption of legislative
acts" and that "the logic of the co-decision procedure
requires qualified majority voting in the Council in all cases".
The Group recognised, however, that there would be exceptions
to the QMV/co-decision rule "where the special nature of
the Union requires autonomous decision-making, or in areas of
great political sensitivity for the Member States".
23. It is proposed that the co-decision procedure
should in future be known as the "legislative procedure".
According to the Praesidium, this is "a name which is more
fitting for its status as the general rule for the adoption of
legislation and more comprehensible for citizens".
In one way this is helpful. The Treaty currently uses the somewhat
awkward (and inaccessible) phrase, "in accordance with the
procedure referred to in Article 251", to refer to what is
more familiarly called "co-decision". But while the
term "legislative procedure" may be meaningful in other
languages it is not helpful in the English text. There will be
other ways in which European laws will be made. The procedure
for making those laws will also be "legislative" in
the normal sense of the word. To call one particular procedure
by which laws are made "legislative" to the exclusion
of other legislative procedures is a recipe for confusion. Accordingly
we disagree with the Praesidium. "Co-decision" would
be a better and far more accurate term to describe the type of
legislative procedure in question.
24. Article 25(3) is especially welcome.
The Committee has previously urged greater openness in the Council
Some improvements were agreed at the Seville European Council.
But a general rule in the Treaty requiring "any procedure
for the adoption of a European law or a European framework law"
to be public would be a major step forward. We assume that "any
procedure" would include meetings of the Conciliation Committee
in the co-decision procedure.
Article 26: Non-legislative acts
The Council and the Commission as well as the European Central Bank, shall adopt European regulations or European decisions in the cases referred to in Articles 27 and 28 and in cases specifically laid down in the Constitution.
"This Article covers all non-legislative acts, in particular (last sentence) cases where the Council and the Commission adopt non-legislative acts directly on the basis of the Treaty.
Where acts are adopted by the Commission, there can be no question as to whether an act is legislative or non-legislative in nature, since it is not able to adopt legislative acts. However, when an act is adopted by the Council, a question arises as to whether it is:
¾ a legislative act that is exceptionally adopted by a procedure other than codecision;
¾ a non-legislative act adopted by the Council directly on the basis of the Treaty.
The issue has repercussions in cases where the current Treaty explicitly provides which instrument (currently a regulation or a directive) is to be used. With a legislative act, these will need to be replaced by law and framework law; with a non-legislative act, the terms regulation or decision will need to be used. In practice the legal bases in the Treaties rarely specify the instrument to be used and when they do, there can be no doubt as to its nature, as it is always a legislative act. Of course, if acts adopted directly on the basis of the Constitution were classified as "non-legislative", codecision would not apply in any case.
Conversely, where provisions do not specify any particular instrument, the issue would have no repercussions, since the procedure is determined by each specific legal basis. In any case, once the list of exceptions to the legislative procedure has been decided on, the other legal bases providing for the Council to take the decision would result in nonlegislative acts.
The European Central Bank also adopts nonlegislative acts in carrying out its task as is now already the case in accordance with Article 110."
25. Working Group IX proposed a three level hierarchy
of Union legislation:
Legislative Acts ("acts adopted
on the basis of the Treaty and containing essential elements in
a given field");
Delegated Acts ("these acts would
flesh out the detail or amend certain elements of a legislative
act, under some form of authorisation defined by the legislator");
Implementing Acts ("acts implementing
legislative acts, "delegated legislation" or acts provided
in the Treaty itself").
26. In advocating this tripartite division, the
Group sought to clarify which matters should fall to the legislator
and which to the executive (though it recognised that a clear
legislator/executive distinction might not be possible to attain).
The Group also sought to produce a system which would enable the
legislator to produce legislation whose democratic legitimacy
was beyond dispute but would retain a degree of flexibility to
respond "rapidly and effectively to the challenges and demands
of the real world".
27. The establishment of a hierarchy of Community/Union
acts (a so-called "hierarchy of norms") is not new.
The question of the classification of Community acts was raised
at the time of Maastricht and a Declaration was annexed to the
Treaty on European Union (TEU) requesting the 1996 IGC (Amsterdam)
to examine "to what extent it might be possible to review
the classification of Community acts with a view to establishing
an appropriate hierarchy between the different categories of act".
When we ourselves considered this issue in 1996 we doubted whether
the form of Community legislation was capable of denoting its
importance any more than was the case within the UK's legal system.
There was a case for setting clear criteria for the use of directives
and regulations. But the replacement of regulations, directives
and decisions by instruments with new names and descriptions was
not the solution.
We have commented above on the new terminology being put forward
in the Praesidium's text. We consider below (when commenting on
Articles 27 and 28) the "hierarchical status" of the
different forms of act being proposed.
28. Article 26 paves the way into Article 27
(Delegated regulations) and Article 28 (Implementing acts). It
also envisages implementing measures being taken under other Articles
of the new Treaty, presumably in relation to particular subject
29. We have commented above on the inaptness
of the title "non-legislative acts". It is clear that
"European regulations" will be subordinate legislation
directly applicable in the Member States. "European decisions"
may also give rise to generally, if not directly,
applicable rules. European decisions will be "binding in
their entirety". If they are not directly applicable, that
will simply mean that they may need implementation. But what is
the difference between a European implementing regulation and
a European implementing decision? Neither Article 26 nor Article
28(4) explains. Both are binding in their entirety and both may,
but will not necessarily, require implementation. Both are presumably
capable of producing direct effects (ie of conferring rights
on individuals which national courts will protect). Neither is
1 See Appendix 1 for membership of the European Union
Committee, and of Sub-Committee E (Law and Institutions) which
undertook the detailed scrutiny work. Back
The Future of Europe: Constitutional Treaty-Draft Articles
1-16, 9th Report, 2002-03, HL Paper 61. Back
The Convention document uses the term "Technical comment". Back
The second and third paragraphs of Article 249 specify that "a
regulation shall have general application. It shall be binding
in its entirety and directly applicable in all Member States.
A directive shall be binding, as to the result to be achieved,
upon each Member State to which it is addressed, but shall leave
to the national authorities the choice of form and methods". Back
See footnote 4. Back
The second paragraph of Article 14 ECSC specifies that "decisions
shall be binding in their entirety". Back
The fourth paragraph of Article 249 TEC specifies that "a
decision shall be binding in its entirety upon those to whom it
is addressed". Back
The second paragraph of Article 7 of the Council's Rules of Procedure
specifies that "Where legislative proposals or initiatives
are submitted to it, the Council shall refrain from adopting acts
which are not provided for by the Treaties, such as resolutions
or declarations other than those referred to in Article 9"
(the declarations referred to in Article 9 are those entered in
Council minutes relating to the adoption of legislative acts). Back
Member States may exceptionally need or have the right to intervene.
This will not change: see Article 28(1). Back
It is interesting that 50 years on the word "loi"
is now being proposed. It is understood that it was deliberately
avoided in the original Treaty of Rome lest its use put at risk
ratification of the Treaty by national parliaments, according
to an observation made by the late Professor J.D.B. Mitchell in
Legal Problems of an Enlarged European Community (1972)
at p 89. Back
Case 13/57 Eisen- und Stahlindustrie v High Authority [1957-8]
ECR 265, at p 275. Back
Article 29 will stipulate that legislative acts cannot be used
for the CFSP. Back
Doc CONV 571/03. Introduction at p 2. Back
Final Report, Doc CONV 424/02, at pp 14-15. Back
Ibid, at p 15. It is also significant that Working Group
X (Freedom, Security and Justice) also anticipated that QMV and
co-decision would become the standard legislative procedure in
the new Treaty (Final Report Doc CONV 426/02). Accordingly the
Group recommended that QMV should be applicable to minimum rules
defining certain crimes and penalties, criminal procedure, and
police and judicial cooperation (pp13-15). (Unanimity would be
retained for "co-operation in criminal matters concerning
core functions" such as the creation of Union bodies with
operational powers, approximation of substantive criminal laws,
rules on action by police authorities, joint investigation teams
and law enforcement agencies (p14). Back
Doc CONV 571/03. Introduction at p.2. Back
See our Reports The Convention on the Future of Europe
30th Report, Session 2001-02, HL Paper 163; and Review of Scrutiny
of European Legislation 1st Report, Session 2002-03, HL Paper
The problems of exercising effective Parliamentary scrutiny when
a co-decision measure becomes subject to the conciliation process,
and our recommendations for change, are set out in our Report
Review of Scrutiny of European Legislation, 1st Report,
2002-03, HL Paper 15, at paras 32-35. Back
Paragraph 1 of Article 110 specifies that: "In order to carry
out the tasks entrusted to the ESCB, the ECB shall, in accordance
with the provisions of this Treaty and under the conditions laid
down in the Statute of the ESCB:
¾ make regulations to the extent
necessary to implement the tasks defined in Article 3(1), first
indent, Articles 19(1), 22 and 25(2) of the Statute of the ESCB
and in cases which shall be laid down in the acts of the Council
referred to in Article 107(6);
¾ take decisions necessary for
carrying out the tasks entrusted to the ESCB under this Treaty
and the Statute of the ESCB;
¾ make recommendations and deliver
Final Report, Doc CONV 424/02, at pp 8-11. Back
Final Report, Doc CONV 424/02, at p 8. Back
See 1996 Inter-Governmental Conference, 21st Report, 1994-95,
HL Paper 105, at para 291. Back
Whether European decisions will be directly applicable is not
clear. Commentators took the view that ECSC general decisions
were akin to EC regulations and were directly applicable - see
the analysis of Prof Eberhard Grabitz in Thirty years of Community
law (1981) at p 84. But whereas the definitions of "European
law" and "European regulation" in Article 24 expressly
say that such measures are "directly applicable in all Member
States" those words do not appear in the definition of "European