Examination of Witnesses (Quesitons 40-59)
MR CHRISTIAN
LEFFLER AND
MR MICHEL
PETITE
19 SEPTEMBER 2007
Q40 Lord Roper: But also how you translate
"contribuent" into English.
Mr Petite: Exactly.
Q41Chairman: It is a declaratory statement they
are contributing and presumably will continue to do so. I think
it is clear that it is declaratory and there is no intention to
impose an obligation. Is there anything you want to add to that,
Mr Leffler, or not?
Mr Leffler: No, just to underline that I do
not think there was anyone, be it a representative of Member States
or any of the institutions, when the Mandate was drafted and agreed
who even in their wildest fantasies thought that somehow the Union
Treaty could or should instruct national parliaments to contribute.
If anything, there was an expectation that most national parliaments
would be banging on the door saying, "We want to contribute",
and this was a way of expressing that expectation. It is certainly
not prescriptive.
Chairman: They would have preferred saying
"shall contribute up to a certain point".
Q42 Baroness Cohen of Pimlico: "Shall
contribute but not too much".
Mr Leffler: That would be outside the Mandate.
Q43 Lord Roper: I wonder whether
I could ask, and it has been covered in your remarks so far, whether
the nature of this IGC is somewhat different from some preceding
IGCs insofar as the IGC is very significantly constrained by the
degree of unanimity which the Council had reached in defining
the Mandate, and how far the Commission has felt constrained in
terms of its own inputs to the process of the IGC by the nature
of that Mandate?
Mr Petite: I think this is absolutely right.
I have participated in many IGCs now and it is an entirely new
one because the Mandate has completely sealed the issue. Most
of the players, including the Commission, absolutely willingly
tied their hands to the Mandate because the feeling was that if
anything was reopened by somebody it would call for reopening
many other issues and it would result in a different ballgame.
Everybody felt reasonably content with the Mandate and content
to stick with it. On the Commission side in the IGC we have defended
the Presidency's text, which we feel is very good, and the Mandate,
because we felt it was the only reasonable way to find a quick
outcome. We have been sitting on that, refraining from any new
ideas and sticking to both the Presidency's text and the Mandate.
Q44 Lord Roper: If I can just pursue
that with something Mr Leffler said. He said that one wants a
Treaty that works, a reasonable and ratifiable Treaty and, therefore,
to some extent one may have to say that the best in some respects,
and I noticed this in the comments of the European Parliament,
might occasionally be the enemy of the good.
Mr Leffler: Quite.
Mr Petite: If I may add one or two things. We
have contributed here and there on technical grounds to find solutions
which were raised on the way the Charter would be treated, for
example. The group has followed our advice but it was always within
the Mandate and very carefully confined.
Q45 Chairman: We have raised the
issue already, and you have, of what would and would not be within
the Mandate, and the lawyers will see very clearly what that is,
but has any decision been taken yet, or how will it be taken if
it is taken at all, on the Polish request to come in on the application
of the Charter of Fundamental Rights in the UK Protocol so-called?
If that was an addition presumably it would be ruled out of court
as not being within the Mandate and yet it does not seem as though
what they want entirely corresponds with what is in the Protocol
regarding the British opt-out. Are they just crying in the wilderness
when they say they want to raise this issue?
Mr Petite: No, they are not.
Q46 Chairman: Protocol 7 now does
apply to both.
Mr Leffler: One point to bear in mind was that
when the Mandate was agreed in June there was a footnote to this
Protocol where it was flagged that two other Member States had
reserved themselves the right to join that Protocol but they had
not quite made up their minds. One of those two was Poland. They
have that possibility. They flagged it before the Mandate was
agreed and, therefore, I do not think it would be ruled out of
court, it would be accepted, but in that case it is the Protocol
that is there because that is the one that was agreed and the
one that they flagged their interest in possibly joining. That
being said, and no doubt M Petite can elaborate on the legal specific
aspects of that, ultimately, and it is in the very name, in an
intergovernmental conference everybody has to agree on the outcome.
We have a Mandate, we expect everybody to negotiate on that basis
in good faith since we all agreed it, and so far that has certainly
been the case. Going back to one of your earlier comments or questions,
there will be differences of interpretation of the Mandate. Where
the experts, at whatever level, cannot come to an agreement on
what is ruled in and what is ruled out, or for that matter agreement
on how to solve an issue even if it is ruled in, that becomes
a political question and at the appropriate moment will be raised
to the political level.
Mr Petite: Poland had mentioned the fact that
they could join basically and this was provided for in the Mandate.
I think they have now officially decided to join, so they will
join in the special Protocol on the Charter which was initially
drafted for the UK in conformity with UK terms.
Q47 Chairman: That is interesting
because there was a stage at which they were saying they did not
find that the actual terms of the Protocol suited them entirely,
but they have now changed their minds, is that right?
Mr Petite: Yes. On our reading, the Mandate
was: either they joined the existing Protocol or it would be outside
the Mandate and they could not draft a different Protocol. They
either joined or refrained from joining.
Q48 Chairman: Presumably that will
apply also to the Ioannina principle, they will not get anywhere
with that, will they, because it is outside?
Mr Petite: It is. We have treated the issue
so far as outside the Mandate insofar as their request remains
that they want the "Ioannina principle" to be inserted
as a provision of a Treaty. There are things which can be done
with an existing Declaration, but to transform the Declaration
into a Treaty provision would not be part of the game. It was
raised by Poland but considered outside the Mandate.
Q49 Lord Wright of Richmond: Can
I raise a question on the Mandate, which is the question of what
is or is not a so-called Schengen building measure? This is obviously
quite a controversial point. The Mandate envisages that the Title
IV Protocol, the UK opt-in, may also address the application of
the Protocol in relation to Schengen building measures. How much
discussion has there been of this in the IGC? Is there anything
you can tell us about it?
Mr Petite: Well, strangely enough, we had expected
that debate on these issues, which are quite technical and quite
complex, because the Schengen Protocol and the Title IV Protocol
are different in nature and almost the other way round from each
other and do raise complex issues when you try to make them work
in the new system: but there had been hardly any discussion at
all until the beginning of last week. We have had a first discussion,
very broad, and there is nothing much more I can say. It is very
technical and very complex, we understand the British problem.
In a way the contradiction between the UK position and the Schengen
countries almost results from a factual situation which is hard
to handle: how to insert the existing Protocol in a system which
was not necessarily designed for it. It is a technical matter
which I think we will have to finalise in the coming days.
Q50 Lord Wright of Richmond: Can
we be optimistic about the outcome?
Mr Petite: I think so, we all are. It would
be a pity if it became an insurmountable problem. To a large extent,
and this is a personal view, my impression is that people feel
there is a large part of psychology of presentation in this issue
and it would be a pity not to find a solution that is acceptable
to everybody.
Q51 Chairman: Speaking of optimism,
without inviting you, as we say in England, to go out on a limb,
or probably in this case on a branch that is creaking ominously,
do you feel confident that all the work will be done in time for
the General Affairs Council on 15-16 October? Is there not going
to be any slippage?
Mr Petite: Frankly, I do not think so. The commitment
is to do so. We have been ahead of time so far on the whole, there
remains the issue you have just mentioned, but the odds are that
we should be on time.
Q52 Chairman: Presumably Commissioner
Wallström and you are confident that this is going to be
done in time?
Mr Leffler: I think that Michel Petite is being
somewhat too modest as one of the chief legal experts on the work
of the IGC. I think that the Legal Expert Group has done remarkable
work in a short period and has been able to clear off the table
virtually all issues. Like in any IGC there will be a small handful
of issues that will go to the political level and that will need
to be decided at the political level. We are well placed to see
that happen in a traditional two-step approach. This goes to the
General Affairs Council on 15-16 and then to the European Council,
to the Heads of State and Governments, and if there is any final
issue left to be sorted out at their level they will do it.
Chairman: Lord Wright, I think you were
interested in some matters about the outcome of the informal meeting?
Q53 Lord Wright of Richmond: Yes,
the informal Foreign Ministers meeting. You have referred already
to the Polish problem. The public presentation of the Foreign
Ministers meeting was extremely positive. Indeed, to quote you
quoting Chris Patten, it gave the impression that all foreign
ministers were using the same hymn sheet. Have you got any comment
to make on the success or otherwise of the Foreign Ministers meeting?
Mr Leffler: Let me say that this Foreign Ministers
meeting as an informal meeting was not there to take formal decisions.
They received a report on the state of play, state of progress
in the negotiations of the legal experts, they were pleased with
what they heard and that contributed to the positive sound of
joyous music coming out of the meeting, as did the weather and
the warm welcome of the Portuguese. The meeting, even if it was
informal, did serve to confirm overall orientations, to confirm
very clearly everybody's respect for an attachment to the Mandate.
The music coming out was, "We all love the Mandate and we
all look forward to 18 October". That in itself is an important
message because it is a recognition that we have made sufficient
progress to make this possible. It also served to confirm provisional
agreement on a number of issues. Michel Petite has already mentioned
the citizenship issue and the addition, or rather the copying,
of an element of text from the Treaty on the Functioning of the
Union into the Treaty of the Union to have the citizenship highlighted
also in the Treaty of the Union. There may be one or two question
marks and people will scrutinise how this will play but, on the
whole, everybody has said, "This is a good thing, we want
it to go ahead", so it could be put to bed at the expert
level. Similarly, the procedure for the adoption of the revised
Charter of Fundamental Rights, to be confirmed formally but broad
agreement on how and when this is best done so that it inter-relates
with the new Treaty as and when the new Treaty is finally in place.
That was another issue that could be dealt with. Thirdly, it served
to tease out some of the other questions that were in ministers'
minds that some of the Member States still have concerns about
which are or are not in the Mandate but are nevertheless issues
that will have to be addressed before we conclude the IGC. Whether
that has to do with an Austrian concern about overpopulation of
their universities, because they do not have any entrance thresholds,
and how to deal with that, the answer from most participants at
the meeting was, "Please deal with it outside the Treaty
framework", or rather, "within the current Treaty framework",
but we have said from the Commission's side that we are happy
to sit with the Austrians and look at what solutions can be found
which still respect the current Treaty or on the Bulgarian point
about how to spell the euro in Bulgaria. Why anybody thinks they
know this better than the Bulgarians is beyond me but that seems
to have been an issue in the past and is still an issue, so it
has to be dealt with. We teased out those small issues which we
do not want to become big issues. Lastly, and I think quite significantly,
there was general recognition at that meeting that communicating
about the Treaty and, for that matter, communicating about the
Union, the broader context which I described in my introduction,
is an essential common task in which we all have to invest and
in which we all have to work together to better inform our citizens,
our constituencies across Europe, in the hope that information,
without turning it into propaganda, will deliver a recognition
that the Union is a useful thing and, therefore, one worth having
a revised Treaty.
Chairman: Unfortunately, there are some
countries, and I will not mention them, where some politicians
believe that even giving information is propaganda. However, we
will cross that bridge when we come to it.
Q54 Lord Wright of Richmond: Is it
your impression that by the end of the informal ministers meeting
the Polish problems had been put to bed?
Mr Leffler: No, not all of them, or at least
not to bed and to sleep!
Baroness Thomas of Walliswood: You mean
they may pop their little heads up with their nightcaps on later
on.
Chairman: Shall we move on to the orange
card procedure.
Q55 Baroness Cohen of Pimlico: We
are very interested in the Commission's understanding of the proposed
orange card procedure. A first look at it raises a number of questions
on which the Committee would be grateful for any intelligence
that you have to offer. If I can just start with a specific question.
The text appears to give national parliaments an advisory role
rather than direct power of veto, and it appears that either the
Council or the European Parliament can give effect to it. Is a
formal power for the European Parliament to act on behalf of national
parliaments in this way a constitutional innovation?
Mr Petite: It is Mrs Wallström who deals
with the Parliament, and maybe in the future the national parliaments.
Mr Leffler: If you will allow me, maybe I could
say one word first on where the Commission comes on relations
with national parliaments. I leave aside for a moment the technicalities
of the yellow and orange cards. I will gladly leave the intricacies
of those procedures to M Petite. This Commission—and I dare
say in particular Mrs Wallström, being responsible for institutional
relations and relations with parliaments, the European and national
ones— believes that engaging more actively with national
parliaments is an important element in strengthening both the
legitimacy and the effectiveness of the Union. It is not an attempt
to somehow circumvent established procedures, to go behind the
back of the Council, of governments in the Council and enlist
the support of their national parliaments, or to go behind the
back of the European Parliament. It is a way of trying to offer
a dialogue which will allow national parliaments to be better
informed and more actively engaged at an early stage in the preparation
and formation of European policy so that they are better placed
to engage in the dialogue at national level with their governments
to establish that national position which will then be represented
by their Member States in the Council. We came with a proposal
on this, a ten point plan, in 2005. We are rather pleased with
how this has evolved. Over the past two years we have had more
than 300 visits by Commissioners to national parliaments for committee
hearings, plenary debates, whatever, as a way of putting ourselves
at the disposal of national parliaments when they want to discuss
issues. As you well know, over the year we systematically send
all Commission communications and proposals to national parliaments,
and in just over a year we have had more than 120 well worked
through, reasoned replies, many of them from yourselves, which
we then commit to responding to and taking into account in the
future work that we do. As I say, all this is a way of trying
to make sure that governments will be better placed when they
are in the Council to make sure that they fully represent their
national positions because those national positions will have
been built on the input of well-informed parliaments. It allows
us to pick up early signals from parliaments if they feel that
we are going beyond our remit or if they feel that we are going
down the wrong path. Obviously we will now need to look at how
some of these procedures will be adapted or refined in the light
of the new yellow and orange card procedure in the Treaty which
formalises a role for parliaments, which is indeed a new role,
with a specific focus on the issue of division of competences
which is one, but only one, of the many roles that in our view
national parliaments can play.
Q56 Chairman: Thank you. Before Michel
Petite gets into the fine print on the orange and yellow cards,
let me raise one other point about national parliaments. You will
recall that in the Council conclusions in June 2006 we had what
has become known as the Barroso initiative, which was that national
parliaments were encouraged to correspond with the Commission,
not just on subsidiarity and proportionality but on any legislative
matter. This is not reflected in the Reform Treaty. At the recent
COSAC meeting in Lisbon, and indeed at the previous COSAC meetings
in Berlin, there was much discussion as to whether or not the
Barroso initiative was being, as it were, shunted aside by not
being mentioned in the Mandate or, as others put it in defence
of its not being in the Mandate, it was so obvious it did not
need to be spelt out. I have to tell you there is still quite
a lot of feeling in COSAC about this, that many of us wonder was
a conscious decision made to exclude that reference to "any
legislative matters"?
Mr Leffler: My sense on that, and then I will
hand over to Michel Petite, is we should distinguish between the
formal role now given to national parliaments in the competence/subsidiarity
scrutiny, where parliaments are given a very prominent role and
are the first instance of formal scrutiny, and the informal role,
if that is the correct term, but one that was seen by many as
self-evident, of conveying views on the substance, not on the
issue of competence but on the substance, allowing us as the Commission
to build that in or factor that into the work as we take forward
and allowing parliaments to give an early signal to their own
governments, or to their colleagues in the European Parliament,
of where they see the key substantive elements. It is two slightly
different roles but, as far as the Commission is concerned, we
very much hope that national parliaments will continue to be active
in both of these areas.
Q57 Lord Roper: Just for the avoidance
of any doubt on this, just because there was no explicit reference
to the Commission's commitment which was made in the Barroso Declaration,
the Commission will continue to respond to any submissions which
are made by national parliaments in response to documents which
the Commission have submitted to them?
Mr Leffler: Absolutely.
Lord Roper: I just want to get that on
the record.
Q58 Chairman: In fact, those kinds
of questions or comments put to the Commission far outweigh the
number of any references to subsidiarity and proportionality,
which is the more formal part.
Mr Leffler: We will definitely continue to do
that.
Q59 Chairman: I am sorry, we have
strayed a little bit from Lady Cohen's original question. Maybe
we can go to Michel Petite, if there is anything you would like
to add.
Mr Petite: Just to confirm this, my Lord Chairman:
I think there is a difference of nature in these two areas. The
"Barroso commitment" is a unilateral commitment from
the Commission and, therefore, does not need to be embodied in
Treaty provisions which are inter-institutional, whereas the yellow
card and orange card refer to inter-institutional obligatory provisions
and have to be written down in the Treaty. That is the difference.
On the original question, I think you are absolutely right in
all the elements of your question. These two new devices are institutional
innovations, to start with, and they are because for the first
time it marks a direct interaction between the national parliamentary
level and Europe. It has been formalised. It did not really exist
before except informally. This is a new trend, or at least a new
institutional device. Also, I think that there is no veto power
embodied in this system, it amounts to a strong advisory role
from a combination of national parliaments. At this stage that
is the most we can say. Maybe there is one technical addition.
The IGC group has not discussed these provisions at all because
they derive completely and fully either from the previous text
or, for the orange card, from the Mandate which attaches the text,
and we had to take it as it was. So it was not even scrutinised:
it was taken as it emerged from a long night during the June summit.
Chairman: Would you like to follow up
on some of the other questions we have on that?
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