Memorandum by Brendan Donnelly, Director,
Federal Trust (evidence submitted in a personal capacity)
THE REFORM
TREATY AND
ITS IMPACT
ON THE
EU INSTITUTIONS
Introductory Comment
1. Many institutional provisions of the
Reform Treaty are framed, perhaps deliberately, in general, permissive
or tentative terms. The real impact of these provisions will therefore
only emerge in the course of their implementation. This implementation
will be influenced by the personalities involved in the workings
of the new structures and the general political background against
which implementation takes place. As a result, some uncertainty
must still attach to many answers offered to the Committee's questions.
Reform Treaty Structure and Legal Personality
2. If the European Constitutional Treaty
had been adopted in its original form, it would have constituted
a clearer and more accessible document than the structure arising
from the Reform Treaty and its interaction with the existing European
Treaties. This is a definite drawback of the abandonment of the
"constitutional concept" by the European Council in
June 2007. The often confused controversy caused over the past
three years by the use of the phrase "European constitution,"
however, was such that the abandonment of the "constitutional
concept" was probably the only politically acceptable option
open to the European Council.
3. The question of the legal personality
of the European Union has both a practical and a symbolic aspect.
Practically, the recognition of the Union's legal personality
puts an end to an existing controversy about whether the Union
may not already have this legal personality. The Union's recognition
by third parties as having treaty-signing power would strongly
suggest that it does already have this personality and that the
Reform Treaty simply recognises an existing reality. Symbolically,
legal personality for the European Union is seen by some of the
Treaty's critics as creating a new (or consolidating an existing)
state-like characteristic of the European Union. It should be
pointed out that a number of organisations, such as the UN, already
enjoy legal personality without being states. More generally,
a distinction should be drawn between "state-like" characteristics
for the European Union and its potential development towards becoming
a state or "superstate". The European Union already
enjoys and will continue to enjoy a number of state-like characteristics,
such as a common currency, a directly-elected parliament, an independent
court and an (admittedly small) central budget. It lacks many
others, such as an army, a large central budget, direct powers
of taxation and welfare policy. To recognise that the Union already
has, and should continue to have certain "state-like characteristics"
is not the same as asserting it is, will or should become a "superstate".
European Council and Council of Ministers
4. When the concept of a semi-permanent
President of the European Council was first mooted in the European
Constitutional Convention, it was the hope of some advocates of
the creation of this post that he or she would be endowed with
a range of substantial powers to co-ordinate the work of the sectoral
Councils and thereby possibly to modify the existing institutional
balance of the European Union. Typically, the new Presidential
post was seen by its supporters and opponents as being likely
to shift the institutional balance of the Union in a more "intergovernmental"
direction. In the event, the powers of the new Presidency seem
in the Reform Treaty to be limited to the point of marginality.
It must be more than questionable just how substantial an impact
the new President will be able to make on the day to day workings
of the Union. Even less plausible is the hypothesis that he or
she will be able, even if willing, to alter in any significant
manner the existing institutional balance of the European Union.
5. It is true that the Reform Treaty gives
to the European Council the right to define the "general
political priorities and directions" of the Union. Few would
anyway have disagreed before the Reform Treaty that this was the
case. The President of the European Council is also enjoined to
promote the cohesion and effectiveness of the European Council's
work. A quasi-permanent Presidency may well be better able to
do this than a rotating Presidency, where priorities and preoccupations
tend to shift every six months. But because the European Council
stands somewhat aside from the day to day activities of the European
Union's working institutions (sectoral Councils, Commission and
Parliament) its capacity corporately to shape the work of these
institutions is limited. General and occasional exhortations from
the European Council become diluted in the complexities of the
Union's institutional and negotiating structures, where national
ministers are by no means always simply the creatures of their
national Presidents or Prime Ministers. The new President's relationship
with the proposed "team presidencies" will be another
source of uncertainty and diffusion of his or her potential influence
on the Union's overall decision-making.
6. One of the few specific powers given
to the new President, that of external representation, is subject
to an unhelpful sharing of responsibility with the High Representative.
If, as is widely expected, the new President is a former head
of a national government, it may be that he or she initially enjoys
greater personal prestige than does the High Representative. It
does not follow, however, that he or she will exercise over time
more real influence than will the High Representative, whose integration
into the European Union's decision-making structures will be much
greater than that of the President. (The High Representative's
chairmanship of the Foreign Affairs Council and ability to call
on the resources of the External Action Service are particularly
relevant in this regard.)
Qualified Majority Voting
7. Both because of the increase of the number
of areas in which Qualified Majority Voting can be used and because
of the re-weighting of votes within the Council, some streamlining
of decision-making (with its consequent risk that the United Kingdom
or other countries may be outvoted) may be expected within the
Council. It should stressed, however, that even in matters theoretically
susceptible of majority voting the Council normally tries to proceed
by consensus, particularly to meet the wishes of a large country
such as the United Kingdom; and that the United Kingdom is more
likely to be the beneficiary of streamlined decision-making over
time than its victim. The re-weighted voting system of the Constitutional
Treaty, now taken over by the Reform Treaty, is an improvement
on that contained in the Nice Treaty, in that it replaces the
laborious system of the "triple majority" with a somewhat
more comprehensible "double majority". This improvement
in comprehensibility, however, is likely to be more apparent to
specialists and scholars than to the general public.
European Parliament
8. The extension of the co-decision procedure
will undoubtedly increase the influence of the European Parliament
in a number of policy areas where until now its legislative role
has been limited. In the new areas now subject to co-decision,
democratically elected politicians will come to play a larger
role in a decision-making process traditionally dominated by civil
servants, both national and international, and national ministers
for whom European questions represented often only a small proportion
of their responsibilities. This is certainly a development to
be welcomed. Some commentators attach in this connection particular
importance to the extension by the Reform Treaty of the European
Parliament's powers over the European budget. It should not, however,
be assumed that the European Parliament, representing as it does
the widest range of political and national positions, will necessarily
be an ally of the British government on such questions as the
reform of the Common Agricultural Policy and the British budgetary
abatement.
9. Indeed, the general implications for
the democratic life of the European Union of the extension of
co-decision should not be overstated. The co-decision procedure
is already well established in many areas of the Parliament's
work and the Parliament is entirely used to regarding itself as
a co-legislator with the Council. This sense of its own identity
will be reinforced by the Reform Treaty, but it is not the Reform
Treaty which has created it. The Reform Treaty is best regarded
as a further step along a road which the Union has followed over
the past three decades of integrating the European Parliament
more fully into the Union's decision-making. A powerful argument
in the deliberations of the European Constitutional Convention
was that there seemed little rationality in the only partial application
of the co-decision procedure. The generalisation of the procedure
appeared the appropriate and logical next step in the interests
of consistency and simplicity.
10. Members of the European Parliament are
themselves uncomfortably aware of a striking paradox, namely that
their increasing powers over the past three decades have not led
to generally greater public prestige for or greater public interest
in their institution. This is seen by many of them as detracting
from the political legitimacy and democratic representativity
of their institution, a concern accentuated by the traditionally
low turnout for European Elections. It may be doubted whether
the extension of the co-decision procedure will of itself reverse
this phenomenon. Many factors certainly contribute to the lack
of public salience of the debates and decisions of the European
Parliament, such as the consensual nature of much of its work,
the complex nature of the European Union's decision-making system
and the Parliament's role in it and perhaps above all the absence
of an identifiable European executive arising directly from the
European Parliament. The Reform Treaty offers the possibility
of at least a partial solution to the last problem. (Please see
following paragraph.)
European Commission
11. How the new Commission envisaged by
the Reform Treaty will function is largely subject to the caveats
of this submission's introductory comment. The European Parliament
already regards itself as exercising a large measure of supervision
over the European Commission, and this self-assessment will no
doubt be enhanced by the extension of co-decision. More important
potentially for the relationship between Parliament and Commission
are the provisions of the Reform Treaty on the election of the
European Commission's President in the light of the European Elections.
If the President of the European Commission were demonstrably
a candidate issuing from and supported by the current majority
in the European Parliament, then this would fundamentally change
the relationship between Commission and Parliament, making it
more like that between national parliaments and national governments.
It would also change the nature of European Elections, giving
to electors a sense of personal choice and involvement in European
decision-making. This in its turn might well enhance the democratically
legitimising capacity of the European Parliament. The apparent
absence of political consequences following from European Elections
is certainly one reason why many electors doubt the European Parliament's
capacity to make the European Union more democratic in its structures.
Charter of Fundamental Rights
12. Serious technical and legal questions
surround the application in the United Kingdom of the Charter
of Fundamental Rights and the UK Protocol on the Charter. These
technical and legal issues should not be confused with the separate
question of whether the Charter could represent in any genuinely
foreseeable circumstances a significant threat to the United Kingdom's
economic well-being. If it does not represent any such threat,
then the interesting technical and legal questions about the Charter
and the British Protocol logically deserve less political salience
than they have enjoyed until now in the discussion of the Reform
Treaty.
National Parliaments
13. The provisions of the Reform Treaty
represent a clear compromise between those who wished to create
for national parliaments a central and specific role within the
European Union's legislative process and those who, for practical
or philosophical reasons, did not favour such a role. Practical
arguments cited by the latter included the difficulty of establishing
any common view between 40 different elected national parliaments
and the new complication which would have been introduced into
an already complex legislative system by anything approaching
a veto for these national parliaments on European legislation.
Philosophically determining for many was the belief that the main
contribution of national parliaments to the Union's legislative
procedure should be their control of their national executives
and what they do in the Council of Ministers rather than any attempt
directly to shape European legislation in competition with the
European Parliament. The compromise attained by the Reform Treaty
arguably gives to national parliaments no powers that they do
not already enjoy. If a large number of national parliaments today
protested to the European Commission about the supposed infraction
by a new legislative proposal of the principles of subsidiarity
or proportionality, it would be surprising indeed if the Commission
took no notice. It also has to be asked how often the Commission
would anyway put forward proposals which a large number of national
parliaments would find unacceptable specifically on grounds of
subsidiarity or proportionality.
14. Many of those eager to involve national
parliaments more directly in the Union's decision-making did so
in the certainly justified belief that national parliaments represent
an important source of legitimacy and national political discourse
for the European Union, its institutions and workings. It may
well be that the Reform Treaty is an occasion for national parliaments
to review more carefully than hitherto the specific role they
can play in the future evolution of the European Union. Better
methods, consonant with differing national parliamentary systems,
for scrutinising the role of national ministers in the Council
would be one obvious starting-point. National parliamentary reports,
such as those regularly produced by the House of Lords, on matters
of current European controversy, would be another, compelling
attention by the force of their arguments rather than by formal
institutional structures to support these arguments.
Enlargement
15. Please refer to introductory comment.
If there are public and political reservations surrounding any
particular proposed new member of the European Union, be it Croatia,
the Ukraine or Turkey, the Reform Treaty will help the expression
of those reservations, but it will not itself have created them
or even substantially facilitated their emergence.
Simplified Revision Procedure
16. Throughout the European Union, there
is a widespread sense among politicians, officials and commentators
that in recent years enough, or even too much time has been devoted
by the Union to the discussion of institutional matters. It would
be surprising indeed if unanimity could be achieved between the
27 member states in the foreseeable future for any use of the
simplified revision procedure or the other passerelles of the
Treaty on anything other than genuinely marginal and technical
changes. It is worth pointing out in conclusion that modification
in the practical workings of the Reform Treaty will be entirely
possible in the coming years through inter-institutional agreements
rather than new Intergovernmental Conferences and treaty amendments.
The respective roles of the High Representative and the President
of the European Council in the external representation of the
Union would be an obvious candidate for an agreement of this kind.
12 December 2007
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