Year XXX, 1998, Number 3, Page 201
EUROPEAN UNION AND EUROPEAN COMMUNITY: TWO INCOMPATIBLE INSTITUTIONAL SYSTEMS?*
When the European Parliament approved the Draft Treaty establishing the European Union, it decided to subordinate the enforcement of the new treaty to the ratification by a number of Community Member States whose population amounted to two thirds of the EEC population (Art. 82 of the Draft Treaty approved on February 14th 1984). The reasons for this decision are the same as those which led the Philadelphia Convention in 1787 to establish that ratification by 9 of the 13 states would be sufficient to implement the federal constitution of America: in both cases, the attempt was to avoid a small minority of States, or even a single state, from blocking the process of federal unification desired by the majority.
The 1984 Draft Treaty did not provide for the nature and the discipline of the legal ties which would develop between the States of the future European Union and the States in the Community which decided not to join the Union itself, at least immediately. It merely established that the governments of the States of the Union “will meet to decide in common agreement… on the relationships with the member states which have not yet ratified” (Art. 82 of the Draft Treaty). The question is important, since the attitude of the States which might be contrary to the transition from the Community to the Union might be very different according to whether the latter is seen as a breach of Community commitments or as a further step in construction designed to protect these commitments.
Even in the not improbable case that some States were in any case contrary to the prospect of the Union, an institutional system of the Union and a formal commitment of its members such as not to prejudice the acquis communautaire vis-à-vis the member states of the EEC who are not members of the Union would remove one of the politically and juridically very strong objections of those states who are contrary to the Union.
The moment will arise, sooner or later, though precisely when cannot to be forecast today, when the circumstances and political will of some states will once again place the objective of the Union on the order of the day, in which there will be an institutional perspective similar to that indicated in the 1984 Draft Treaty: powers of codecision of the European Parliament in legislative matters, abolition of the veto right, strengthening of the power of government of the Commission. It is hardly necessary to recall that underlying these proposals for institutional reform there are, at one and the same time, issues relating to greater efficiency (inasmuch as the requirement for unanimity produces the inevitable effect of paralyzing every decision in controversial cases) and issues of principle (inasmuch as the current Community institutions violate both the criterion of the separation of powers and the basic canons of democracy since the body which represents the people is not endowed with legislative power).
It will thus be important to have previously explored and perfected a series of legal and institutional criteria regarding the compatibility between the European Union and the current Community, for the reasons stated above.
On this theme, which has so far been neglected, a Colloquium was organized on November 16th 1987 by the Faculty of Law of the University of Milan, in which several well-known Italian scholars in international law, constitutional law and community law took part.
The political premises, the reasons for and the prospects that induce experts to raise the problem of compatibility between Community and Union were explained by Francesco Rossolillo, Vice-President of the Union Européenne des Fédéralistes. Since it is unrealistic to posit an identical desire for progress in all the Community countries — he stated — it is necessary to provide for procedures and solutions which do not hold up the process, but at the same time safeguarding the interests of all. Moreover, not even the ECSC or the EEC would have been born if we had had at all cost, from the outset, insisted on the participation of, for example, the United Kingdom.
The juridical and institutional proplem of the compatibility between Union and Community was raised by Antonio Padoa Schioppa (University of Milan), who suggested a solution (see the following documentation) regarding which he solicited the agreement of scholars of international and community law present in the Colloquium. The fundamental basis for this hypothesis is the principle whereby the Union would not in any case be empowered to violate Community Law and the acquis communautaire. The resources of the Union would appear to be different and additional with respect to Community revenue. The institutions of the Union, although formally distinct from Community ones, are made up of the same people, limited, however, to the members of countries participating in the Union. The powers of the Union would in part be competitive (in keeping with the principle mentioned above), in part separate.
On these lines the Colloquium enjoyed an articulated and lively discussion.
In relation to the basic question of the Colloquium the speakers agreed in their reply that institutional mechanisms like those indicated in the enclosed document may be certainly conceived, with the purpose of making it possible to achieve compatibility between the Community and a possible European Union.
The difficulties are of a different nature, however, regarding the various bodies and power. As regards the bodies, a relatively simple two-tier functioning of the European Parliament and the Council of Ministers may be envisaged, while it is relatively more complex to see what could happen in the Commission. As regards powers, matters not included in the Treaties of Rome (from currency to energy, and defence itself) could more easily be pursued by the Union; for other matters, it would certainly be possible to create a mechanism of concurrent powers such as to attribute primacy to Community law.
More generally, Art. 41 of the Vienna Convention on international treaties lays down the possibility of a new treaty between only some of the states which have subscribed to a previous treaty, provided that the latter does not prohibit it and provided it is not incompatible with it. The treaty of the Union could be seen in this light according to Francesco Capotorti (University of Rome), who however observed that the compactness of the Community construction could be damaged and that the European Parliament could have difficulty in following this road. Moreover, Fausto Pocar (University of Milan) pointed out that the Vienna Convention itself does not necessarily presuppose the consent of all states in order to ratify a second one.
Other speaker stressed the positive potential of the current Community institutions, in their opinion not fully developed so far. Antonio Tizzano (University of Naples) reconstructed the events that led to the approval of the Single Act, in the course of which one country (Italy) for the first time subordinated its agreement to the agreement of the European Parliament — stressing the aspects which involve a more active role of the European Parliament and holding that the time has not yet come for further progress in the institutional field to be achieved. The creative role of Community law was stressed by Alberto Santa Maria (University of Milan), with reference to the deeply innovative results that derived from the principle of the direct application of Community law within the legal systems of the individual member states.
Alberto Predieri (University of Florence) also pointed out the major obstacles that the prospect of Union presents in this phase although the inadequacy of current Community institutions, particularly as regards democratic legitimation, is clear. A constituent mandate attributed to the European Parliament could be decisive, and to this end a referendum carried out in the individual states (or even at Community level) could constitute a strong thrust. A consultative referendum for Europe could be arranged in Italy even without the need for constitutional legislation.
It will not be impossible or inappropriate in future to carry out the procedure provided for under Art. 236 for the revision of the Treaties of Rome, Franco Mosconi pointed out (University of Pavia), concretely verifying the prospects of involvement of all the states in the current Community in the further steps towards the Union. If then it should emerge that some states are not in any way disposed to this proceeding and do not even consent to other proceedings, it would be necessary to ask, as Riccardo Luzzatto (University of Milan) pointed out, if it is not inevitable that we will have to pay (or at least be prepared to pay) the price of break-up.
This is a central issue regarding which the Colloquium was designed to stimulate debate. It is precisely the question of consensus of all — a consensus which is obviously required and desired, but equally indispensable to proceed — which makes the question of the compatibility between Community and Union even more pregnant. A positive reply to the question of compatibility would have the result of placing the states which want the Union in a strong position, even as regards negotiations, vis-à-vis other states in the Community. Thus it is not at all impossible that all would end up joining the Union. If this did not happen, not only would the entry of the Union be always possible but the commitment not to violate Community law should be scrupulously observed by the Union, making the Community Court of Justice its guarantor.
Antonio Padoa Schioppa
Let us assume that a group of member states in the European Community (e.g. the six founder states plus Spain and Ireland) manifested the political will to proceed towards a European Union by adopting institutional reforms corresponding to those envisaged by the Draft Treaty of the European Parliament of February 14th 1984: attribution of Community legislative power to the European Parliament itself, to be exercised in agreement with the Council of Ministers deciding on a majority basis; reinforcement of the powers of government of the Commission.
The question on which we wish to begin reflection is the following: is it possible to imagine an institutional system of the Union which does not prejudice the working of Community institutions, so that it protects the member states of the Community who do not belong to the Union itself?
If the reply were to be affirmative, it would be conceivable that the new treaty on the European Union could be drawn up with the agreement of all member states, even with those who at least at the beginning — but the door would naturally be always open — did not agree to join the Union. Certainly the alibi of opposing the Union in the name of the Community would thus be removed.
Let us try to outline schematically some principles of a positive reply (in the sense that is of compatibility) on the question that we have formulated: on the practicability and coherence of which — in addition to other aspects of the theme which interests here — the speakers and the participants will express their position.
We may consider the problem of compatibility between Union and Community from four standpoints: the principles, resources, institutions and powers.
1. The principles.
a) The Union should not be allowed to make any decision which conflicts with Community law and with the acquis communautaire;
b) the legal limits which should be placed on the Union are the same that hold for the member states vis-à-vis the Community: where a state can decide independently without violating the Treaties of Rome and Community law, the Union should be able to do the same;
c) the Union should therefore be able to decide — with the procedures and with the bodies that are proper to it — secundum legem and praeter legem not contra legem (where lex is Community law);
d) if the Union decided on a matter not yet dealt with by the Community, but belonging to its powers, the bodies of the Community should be able to decide as such, according to Community procedures at any time;
e) the member states of the Union could be allowed to adopt — in view of Community decisions — preliminary procedures in keeping with the principles of the Union, which with regard to the Community would be worthwhile as simple interna corporis (e.g. preliminary vote of the European Parliament);
f) guarantor of all this would be the Court of Justice.
2. The resources.
The financial means and the budget of the Union should be distinguished from those of the Community. The initiatives of the Union would be financed with additional resources as compared with Community resources, e.g. by earmarking an additional share of national VAT to the Union budget.
3. The institutions.
The European Union could adopt the same bodies as the Community (European Parliament, Council of Ministers, Commission, Court of Justice), which in the Union would be made up of the same people who belong to the Community but without the participation of the representatives of the states which do not belong to the Union. The powers and ties between the bodies of the Union would be defined in the Union treaty.
European Parliamentarians, ministers, commissioners and judges coming from the states in the Union would thus act in two ways, as officials of the Community in Community affairs, and as officials of the Union in Union affairs. If from the standpoint of legal identity and powers, the institutions were naturally distinguished, the unitary nature of the procedure of appointment and the identity of the persons would greatly simplify matters. Days of meetings and presidents would be distinguished. The administrative structures of the Community, duly strengthened and subsidized to cover the cost of the additional labour, could also serve the Union.
The problems arising from the compatibility of the two structures (the Community’s and the Union’s) deserve careful examination to be carried out sector by sector. In this paper, we only go so far as to stress the fact that there are certainly sectors in which compatibility will be lesser or least and others in which it will be greater or greatest.
Agriculture: since this is the sector which is most fully covered by the EEC, it could stay outside the sphere of Union intervention.
Single market: the states in the Union could — when respecting the principles mentioned above — give the process a further push e.g. proceeding with greater rapidity to the adoption of measures suggested by the White paper. On this it should be necessary to carry out a specific study of compatibility.
Social and regional policy: the states in the Union could earmark a considerable amount of the Union budget to these two sectors;
Currency: the example of the EMS has shown the practicability of wide-reaching agreements, assumed by a group of states in the Community. Further institutional progress — including the creation of a central Union Bank — could be achieved without raising problems of legal compatibility with the principles of Community law.
In conclusion we must stress that what has been formulated above is only some of the possible means of solving the problems mentioned at the outset, means that could be adopted only by virtue of political will whose entity and breadth cannot be foreseen now. It will be the authoritative specialists who have agreed to take part in the Colloquium — and for this I wish to thank them in the name of the Faculty — who will give the first assessment of this set of problems.
For once, we will carry out here an intellectual exercise on the grounds of ius condendum, starting from the basis of Community ius conditum. For all, and in particular for the students who I see are many, it will be an interesting experience.
*Summary of the Colloquium held at the Faculty of Law of the University of Milan on November 16th 1987.
**This is a document presented at the Colloquium by Antonio Padoa Schioppa. The document is the result of discussions with Franco Mosconi and Francesco Rossolillo.