Year XXXIII, 1991, Number 1 - Page 62
NOTES ON THE INSTITUTIONAL REFORM OF THE EEC AND ON POLITICAL UNION
1. The point of arrival.
At a time when the European Community is formally aiming at completing both economic and monetary union simultaneously, at reforming its institutions and achieving political union, the goal of a historical process started off about forty years ago must be very clear. Not only is a common market, a space for free trade exchanges, being realized in Europe; what is being built is a new economic and political reality within its own institutions, which by now has had many successes and is able to develop enormous further potentials both within our continent and in the world; a reality lucidly perceived by the founders, from Jean Monnet to Paul Henri Spaak, from Konrad Adenauer to Altiero Spinelli.
The point of arrival – it does not matter how close or far away in time: there are only nine years to the beginning of the third millennium – can be summed up in the formula “European Federation” or in “United States of Europe”, which summarize the two basic elements already characterizing the establishment of a community: the common management of some of the fundamental sectors of collective life and the retention of different political, cultural and civil traditions, which are the result of centuries of history.
We must be well aware of the exceptional historical period in Europe. An internal and international situation which is so favourable to the achievement of the union might never occur again.
2. The constitutional principles.
The constitutional structure of a united Europe must be founded on the subsidiarity principle, so as to entrust the Community institutions only with those competences and decisions which cannot effectively be assumed by the single states of the Community.
Therefore the constitution will be of a federal nature (with some limited but real Community competences, others entrusted to the states and inferior territorial organs, still others to the autonomy of social groups), but it will not identify with any of the existing historical models. The European model will have to be constructed afresh, starting from a Community reality which is constantly evolving and has many original aspects.
In any case some fundamental principles that the Europe of the past has created must remain valid, as they represent important victories of civilization: in particular, the principle of the people’s sovereignty and that of the separation (or rather, the balancing) of powers. This involves adopting incisive reforms of the present Community regulations.
3. The completion of Economic and Monetary Union.
The directions of monetary union have been laid out in the Delors Report, the stages have been planned, the institutions by now defined. The intergovernmental conference announced at the Dublin summit will have the task of putting the finishing touches to the Treaty establishing a Monetary Union regarding its monetary, institutional and procedural aspects, according to the precise mandate received from the European Council held in Rome on 27th and 28th October 1990: a central European Bank to be established in 1994, the beginning of the third phase in 1997, with a single currency (ECU) as the final target. A complete statute of the future central Bank has been drawn up by the Committee of 12 governors.
Economic Union requires in turn a series of integrations to fulfil it. The single market objective imposes the problematic setting up of fiscal harmonization modules acceptable to all 12 countries. Once this has been achieved, the single market will urgently require an adequate development of the social and regional policies of the Community, if social tension is to be avoided and equity achieved. To this must be added the need to allocate further resources to the environment policy and to up-to-date technologies: energy, information technology, telematics, space research and other sectors in which the isolated efforts and investments of the single states are unable to achieve optimum results. It is therefore evident that the Community budget will have to grow along analogous lines to those indicated at the time in the MacDougall Report. It will be necessary to define measures and procedures for the increase of the Community’s own resources and of an autonomous power of taxation.
All this requires the definition and start of a vast series of measures including modifications to treaties, Community legislative directives, and operative decisions. Moreover they require animportant series of reforms of the Community’s institutions.
4. The reform of Community institutions: democracy and efficiency.
The Dublin summit has emphasized two requirements which must be met by the reform of Community institutions: the need for greater democracy and that for greater efficiency.
The first requirement can be met only by establishing a direct link between the sovereignty of the people and the government of the Community. Just as a national election determines the formation of the executive and legislative body of the single states, and regional and municipal elections determine the formation of regional and municipal organs, thus European elections must constitute the primary source of government and legislation of the Community.
There are two possible models: a double election (for the Parliament and for the Head of the Executive, as in France and the United States) or only one election (for the European Parliament). The first hypothesis seems difficult to put into practice at a European level. Therefore the principles of democracy require that the European Parliament not only should be fully entrusted with the exercise of the legislative and budget function, but also that it should significantly contribute to the appointment of the Community executive and to the approval of its government programme. Only in this way will it be possible to achieve within the European Parliament, the formation of majority governments and opposition minorities acting according to the normal dialectics of political democracy, in which the forces and tendencies present in society find a positive outlet. After every election, the results of people’s votes will determine the future majorities, and therefore the basic choices of the elected Parliament, as democracy requires. The possibilities for institutional reform are many, all acceptable so long as they are coherent with this fundamental principle: at the European level democratic legitimacy to its full extent is represented solely by European elections, in which the voters of the various countries take part as a whole, as one “people of peoples”.
It is no less essential to realize a second postulate of modern democracies, which consists in the separation of powers, or rather in the balancing of powers: the same function (legislative or executive) can certainly be allotted to different constitutional organs, but no organ can exclusively or prevailingly monopolize to itself various functions. This is a fundamental principle which safeguards citizens’ freedom. The Europe of the Community, according to its present institutional structure, is characterized by the prevalence of one organ (the Council of Ministers, provided with legislative and government competences) with respect to the other organs (the Commission and the European Parliament). In the economic and monetary sphere – prospects in the sphere of security and foreign affairs are different at present – is becoming necessary to restore balance. This objective can only be achieved within the ambit of a global growth process of the Community: the greater powers to be conferred to the European Parliament and the Commission would thus be transferred from the Council (both the European and the Ministers) which in turn would be strengthened thanks to the attribution of new competences concerning foreign policy and security.
The second requirement can be met by adopting more effective decision-making procedures than the present ones. It is of fundamental importance that decisions within Community organs should always be made by a majority, either simple or qualified, according to the case. This principle must hold also as far as the evolutionary dynamism of the Community is concerned: both concerning the implicit powers (with the consequent adoption of the majority principle in the procedure of article 235 of the Treaty), and the future modifications of Community Treaties (with a consequent pro-majority reform of article 236 of the Treaty). All this satisfies the need for democracy, because the right of veto makes many become the prisoners of the opposing will of few, and even of one alone; and because in those sectors which, by a previous unanimous decision of the states, have been assigned by the Treaty to the competence of the Community, the common interest must prevail over the particular interests of the individual, just as within a single state in relations with its regions.
In those sectors where concurrent competence between the Community and the states can in some cases make it impossible for the representative of a member state to submit to the will of the majority of the other states (the case of fiscal regulations is a typical example), it will be necessary to define better, through a treaty, the respective spheres of competence and also the procedures for co-ordinating the two levels, so as to allow the necessary decisions at the European level to be made according to the normal physiology of collegiate organs, in other words by the majority.
5. The reform of Community institutions: functions and organs.
The two principles of popular sovereignty and the balancing of powers involve a partial re-distribution of the competences among the organs of the Community. Two models can be conceived of:
i) The legislative function in the proper sense (in other words, public discussion and the approval of innovative general norms with respect to previously existing law) must be exercised jointly by an organ representing the people (therefore the European Parliament) and by an organ representing the states. If the Council should keep its competences as the high government authority of the Community – and indeed it will grow in new directions: foreign policy, security – in return it will have to shed its strictly legislative competences. The second legislative Chamber could then be made up of a Senate composed (wholly or largely) by national Members of Parliament: this would allow an organic connection between the national Parliaments and the European Parliament, particularly important in those cases where there is concurrent competence between the Community and the states. The power of initiating laws could be left to the Commission, but the European Parliament should be allowed, whenever it considers it necessary, to exert the power of proposal over it, and also over the European Council concerning any initiative to modify treaties or to draw up new Community Treaties. To avoid long delays and pointlessly complex procedures, the second Chamber could always be obliged to pronounce on statutes concerning matters of concurrent competence with the member states and on those of constitutional relevance (organic statutes), and on others only where part of its members (for example a third) expressly demand it. For cases of conflict between the two legislative bodies, mechanisms of cooperation must be foreseen, but in any case it will be impossible to make a positive decision against the will of the European Parliament. As regards the categorisation of norms, exhaustive Community legislation, Community outline-statutes, and competition between national norms will make up an integrated whole. It might be advisable to foresee different procedures and requisites for the fundamental Community statutes which are of constitutional relevance (organic statutes) and for ordinary statutes.
The regulatory function, which establishes the means to carry into effect the general norms, can profitably be entrusted to different organs from those which are actually legislative: it could be the concern of the Council, according to drafts pre-disposed by the Commission.
Government decisions and executive acts would be divided between the Council and the Commission, which is what happens now. The European Council would assume the role of collegiate presidency of the Community. The Council (both the European Council and that of the Ministers) should act as the clearing house for contentious political matters among member states as well as being the organ delegated to set up new Community treaties, a sort of permanent intergovernmental conference. The European Council and the Council of Ministers would retain some power of political initiative, would have a role in the appointment procedure of the Commission together with the European Parliament, and probably for a significant time would perform the functions of foreign policy and defence gradually taken on by Europe. The Commission would perform the normal government functions in the field of Community economy. Its president should be proposed by the European Council; the other members should be proposed by the president after taking the advice of the Council, and should be elected – together with the president – by the European Parliament, which should also give a vote of confidence in the Commission and its programme and approve the Community budget. In the field of Community competences, the Commission should be provided with some instruments for direct action and coercion. For additional functions of foreign policy and security the Commission would act merely as the technical organ of the Council: this is important because the creation of collateral auxiliary structures to the Council could be destructive and in every sense expensive for the Community. In certain sectors the formula of the specialized authorities might turn out to be functional, on condition that it is connected with the Community organs as far as hierarchic dependence and political responsibility are concerned.
ii) A different distribution of functions is also possible. The Council of Ministers could retain its legislative competences, exercising them (with resolutions made by majority) in co-decision and co-operation with the European Parliament, which by then would be a wholly legislative organ as mentioned above. In this case the government competences (and probably the regulatory functions) should be the concern of the Commission and not of the Council. The Council of Ministers would in fact represent the second legislative House (and might in perspective become a real House of States). Meanwhile it would retain the joint functions of legislative organ and government organ for the new sectors, that is, for foreign policy and security. The European Council would perform the role of collegiate presidency of the Community, with the power to designate the President of the Commission. The European Parliament would give a vote of confidence in the Commission and its government programme.
The involvement of national Parliaments in the construction of Europe, and the attribution to the Council of a series of high government functions which are suitable to the composition and nature of this organ, favour the first solution. However, it must also be noted that the second model is characterized by a clearer logic in the division of functions between the Commission and the Council of Ministers, which on principle makes it preferable.
The judicial functions must be carried out, in two stages, by first degree Courts and by the Court of Justice. The Court of Justice should also perform the important function of controlling constitutionality at the European level. Therefore the fundamental principles of the Community constitution (subsidiarity, supremacy of Community law, relations between member states, European Community and Union, implicit powers and so on) would also be subject to the jurisdiction of the Court.
6. Towards political Union.
When thinking of political union as an objective it must be considered that the Community, with its present competences and policies, already forms an economic unity with respect to the outside world: economics is an essential part of politics. In this perspective, the completion of economic and monetary Union will in itself bring a very high degree of political Union. A Europe with over 300 million consumers within a single market, the Europe of industry, services, scientific and technological research, provided with a currency able to compete successfully with the dollar, this Europe – once the above-mentioned institutional reforms have been carried out – will act in the field of economics vis-à-vis the outside world as a unitary structure, with its own decision-making organs and general policy.
As for any extension of Community competences and fields such as health, education, the criminal system, civil procedure and so on, it will be necessary to carry out a series of specific analyses based on the principle of subsidiarity to establish if and where a normative intervention at the European level is appropriate. This is also true for the basic characteristics of a future European citizenship.
The future Treaty on the Union will have to contain an indication of the sectors to be included in the construction of Europe. The countries underwriting it will commit themselves from the start to follow the process through to its completion. The division of competences between the national and the European level, can be set up by resorting to a series of complementary instruments: a) a general treaty, where in the fields and some of the principles are set; b) specific treaties, to be realized perhaps with simpler mechanisms with respect to the procedure of parliamentary ratifications; c) Community legislation and regulations; d) Community government acts; e) national statutes for the realization of Community regulations; f) judgements of the Court of Justice.
In the field of security and defence – where Europe has so far shown only partial and fragmentary attempts at co-ordination – it can be imagined that a European defence force would be established along evolutionary lines which are not unlike those characterizing the origin of the Community and its evolution towards union. It is possible to imagine that common defence will be entrusted, for a defined interval, to the confederal co-ordination of the European Council and the Council of Ministers (deliberating by majority), before being transferred to the federal level. Likewise for Community foreign policy. The Commission could act as technical and executive organ. The extraordinary developments which have taken place in Eastern Europe impose a global reconsideration of the theme of security, so as to guarantee jointly the European countries, the Soviet Union and the United States.
It should not to be taken for granted, however, that Europe should provide itself with its own force of nuclear deterrent. On the contrary, there are good reasons to affirm that the position of united Europe would indeed be stronger politically – also with respect to the Third World if it decided to renounce the nuclear deterrent in the perspective of a freely accepted international control over the use of force. The role of the UN could be enormously strengthened if federal Europe were to follow this policy. At this point, thanks to the impulse given by Europe, the road which might lead one day to the elimination of war from the history of mankind might open up, analogously to what has happened historically within the single states.
Europe certainly cannot refuse to open the door to the other states of the Continent that will wish to become part of the Community, and which accept the constraints and obligations necessary to achieve this end. In the end, a unified Europe on a federal basis could gather more than 20 states and over half a billion people.
7. The procedures.
No less important than the constitutional principles and the new sectors of common action and management are the procedural principles to be adopted for the future developments of the Community. In this respect, a few points can be mentioned:
a) Graduality. The building up of Europe is being achieved (and will have to continue) by successive stages, according to an insight of the founders which has proved to be fruitful: from coal and steel, to the completion of economic union with its implications of social and regional policy, to common defence, up to full political union. The evolution of the institutions and the progress of Community law proceed at the same rate as the extension of competences and the geographical extension of the Community.
b) Evolutionary dynamism. The system of Community institutions is structured so as to generate continuously new impulses, towards completing the building of Europe. Up to now the Commission has played (and will have to continue to play) an essential role concerning this.
c) Institutional coherence. The principal of graduality and that of evolutionary dynamism involve as a consequence that the Community, in gradually tackling new tasks, should not establish structures that are contradictory or superfluous. It will therefore be necessary to use, whenever possible, the Commission and its offices to implement new Community policies, or eventually to use specialised authorities which are responsible to the Commission, the Council and the European Parliament.
d) Variable geometry. The example of the European Monetary System has shown how it is possible to open new integration fronts without having to include all the members of the Community from the start, if some of them do not wish to participate. Variable geometry constitutes a good instrument to progress, on condition that entry always remains open without any discrimination. This principle should be valid also in the procedures of decisions which extend Community competences and policies, at least in the field of economy: therefore the requisite of unanimity required by article 236 for modifications of the treaty would have to be abolished, and it would simply be necessary to ask for the ratification of a group of states, the population of which amounts to 2/3 or 3/4 of the total population of the Community. Wherever possible, of course, it is advisable to proceed through unanimous consensus, however allowing the single member states to dissociate themselves from actually taking part in the new policies at least initially, although they have contributed to defining their normative and institutional framework (agreement to disagree).
e) Compatibility of the Community with the Union. The progress towards a European Union (with the above-mentioned institutional implications) is legally compatible – according to article 41 of the Vienna Convention on international treaties – with the preservation of the Community system and law for those countries that should not consider themselves ready or at least interested in the Union: the same organs could in fact perform the two functions with separate and distinct procedures.
f) Concentric circles. By observing the above-mentioned principles, the Community will be able to function effectively adopting a system of concentric circles: at the centre the group going towards federal union, then the Community of the Twelve (in case some of them should wish, albeit temporarily, to avoid the Union), then the states of Northern and Eastern Europe which are preparing for entry (which should entail from the start a commitment to achieve the final phase of the Union), and finally states which are tied by a simple permanent link of association.
g) Constituent role of the European Parliament. A specific role should be assigned to the Parliament in the elaboration of projects for European Union and the reform of Community institutions. It must not be forgotten that the Single Act and the start of the single market were determined precisely by the European Parliament, following its Draft Treaty establishing the European Union of 14th February 1984; and that a country of the Community has already pronounced itself by large majority with a universal suffrage vote in favour of the attribution of a constituent mandate to the European Parliament. Already for the Single Act, a member state of the Community decided to subordinate its ratification to the favourable vote of the European Parliament. The intergovernmental Conference should establish that the new treaty be discussed and voted on by the European Parliament before being ratified by the national Parliaments.
h) Permanent intergovernmental conference. In this phase of Community evolution it might be useful to find a simplified procedure for setting up the modifications of details made necessary by the development both in depth and breadth of the Community, without having to resort every time to the complex mechanism of ratifications. Joint meetings of European MPs and national MPs are a possibility.
The new Treaty on political union should therefore:
1) state the constitutional principles of subsidiarity, popular sovereignty and the balancing of powers in its preface;
2) make majority (simple or qualified according to circumstances) decisions a general rule within the Council of Ministers, including the hypotheses of articles 235 and 236 of the Treaty of Rome (which concern ratifications);
3)make the procedure of co-operation general by fully associating the European Parliament in legislative functions and moreover attributing to it the ability to act as impulse to the Commission regarding the power to initiate laws;
4) assign to the Commission (besides the legislative initiative) full executive and regulatory powers in the field of Community economics, after a vote of confidence by the European Parliament in the Commission and its government programme;
5) foresee, together with the attribution of an autonomous power of taxation, a substantial increase in Community resources for the development of regional, social, technological and environmental policies;
6) extend Council competences to the sectors of security and foreign policy, fixing the stages which allow the transition from co-operation to Union;
7) subordinate the approval of the new Treaty and the start of ratification procedures to the favourable vote of the European Parliament.
Antonio Padoa Schioppa