Year XXXVII, 1995, Number 1 - Page 50
EUROPEAN UNION REFORM AND CONSTITUTION*
The Maastricht Treaty provides that an Intergovernmental Conference be held in 1996 in order to consider revisions to the Treaty. It is in the common interest of the citizens to enhance the capacity of the European Union to safeguard their freedom, security and prosperity. It is essential, as the debate about Maastricht has shown, to ensure that the Union earns the citizens’ support and fosters the feeling that they belong together and share a European identity. The institutions of the Union need moreover to be strengthened so as to enable enlargement to take place without impairing its stability and effectiveness. The UEF has accordingly drawn up the twenty eight proposals contained in this report as recommendations for the Conference; in order to make the Union more effective, democratic and demonstrably relevant to the citizens and to launch the process of establishing a federal constitution.
The proposals include the following:
– The EU should become a party to the European Convention on Human Rights and Fundamental Freedoms and should incorporate its provisions into European Union law. The EU should also draw up a Declaration of European Citizenship, affirming the values, principles and purposes on which it is based.
– The principle that laws shall be enacted only when approved by both the Council and the European Parliament should apply to all Community legislation. The Parliament should play a full part in the 1996 Conference.
– Meetings of the Council at which legislation is enacted should be open to the public and a record published of the proceedings, the amendments proposed and the votes. Voting by qualified majority should be extended to legislation on almost all existing Community competences.
– The European Parliament should elect the President of the Commission on a proposal from the European Council; and the President should nominate the other Commissioners, subject to the approval of the Council and the Parliament.
– The structure of pillars established by the Maastricht Treaty should be eliminated. The co-operation in the fields of Justice and Home Affairs should be transferred to the competence of the Community institutions. The Common Foreign and Security Policy should be brought by stages into the Community institutions.
-The 1996 Conference must clearly express the competences ofthe Union. It should review those introduced by the Maastricht Treaty to determine the most appropriate levels ofdecision, in accordance with the principle of subsidiarity. It should provide for the withdrawal of any opting out from the Treaty.
– The European Parliament should complete its draft federal constitution for the Union for presentation to the 1996 Conference. The Conference should lay down the procedure for thorough consultation on the draft throughout the Union, followed by a convention at which Members of the European Parliament and of member states’ parliaments as well as government representatives should establish the Constitution, to be presented for approval to the European Parliament and member states’ parliaments and in referenda throughout the Union.
– A core group of member states should proceed to adopt reforms and constitution if all are not ready to do so.
The Reform Conference of 1996.
The Maastricht Treaty provides that an Intergovernmental Conference be held in 1996 in order to consider revisions to the Treaty. Among the matters specified for consideration, four are particularly important. Art. 189b.8 provides that widening of the scope for codecision between European Parliament and Council is to be considered. So are the provisions relating to the Common Foreign and Security Policy (CFSP) and in particular defence (Art. J.10, J.4.6). More generally, Article B enjoins that the forms of co-operation introduced through the Treaty be considered for possible revision “with the aim of ensuring the effectiveness of the mechanisms and the institutions of the Community.” This Report puts forward twenty eight proposals for the 1996 Conference, designed to make the Community and the Union more effective and democratic and to launch the process of establishing a federal constitution.
Common European Interests.
Strengthening the Union. The Community has brought its citizens freedom, security and prosperity through common decisions and laws based on common interests articulated within its institutions. This is the best response so far devised to the close and growing interdependence among European states. We must continue to build on this experience by strengthening the Union, making it more democratic, and thus making possible enlargement without disintegration. The 1996 Conference offers an opportunity to work towards these aims.
Democracy and Citizens’ Rights. Experience since the signing of the Maastricht Treaty has revealed some serious problems. Too many citizens feel remote from the Community institutions and fail to understand how they work or what changes the Treaty will make to this. They rightly feel that political power is being used in obscure ways, not subject to democratic control. Many also fear that cultural diversity, which is one of Europe’s greatest strengths, is threatened by too much harmonisation. There are very real problems in dealing with interdependence among states. But citizens are entitled to better assurance that their rights are safeguarded in the process and that their votes will influence the direction of policy and of action. Without this, the “mechanisms and institutions” of the Community, as Article B puts it, will not be effective, because the citizens will not support them. So long as the EU is dealing mainly with technical matters, its citizens will not develop the genuine feelings of solidarity without which it cannot over the long run survive.
Enlargement. The European Union’s aim is to enlarge the Union as soon as possible to states of Central and Eastern Europe, following the accession of the new member states from EFTA. The UEF shares this aim. But there are consequences for the Union. It is essential that the 1996 Conference acts to strengthen the institutions. If this is not done, it will become yet harder to reach the consensus that is now required to take many decisions in the Council. The entry of more neutrals may cause some problems for the CFSP, especially in the field of defence. The Central and East Europeans will not only intensify the difficulty of reaching unanimity but also require a very solid basis of democracy in the Union to underpin their own new democratic institutions. The stronger its institutions become, the better prepared the Union will be to accept an early entry of Central and East Europeans without impairing its stability and effectiveness.
Reform and Constitution. To meet these needs the European Union requires a federal constitution. This alone can give it a democratic form of government that is clearly understood and supported by the citizens and that is strong enough to deal with the challenges ahead. The European Parliament has considered in February 1994 a draft constitution which meets many of the requirements; and the new Parliament, elected in June 1994, should complete this work by June 1995 so as to present it in good time to the 1996 Conference. But a thorough process of consultation with the parliaments and governments of member states, as well as with the citizens and non-governmental organisations, is required before a constitutional convention can be held. The 1996 Conference must therefore adopt a series of reforms that will help to meet the immediate needs and at the same time pave the way towards the federal constitution. The reforms proposed in the first twenty seven points that follow would provide the Union with the essential elements of a federal constitution. The twenty eight point outlines a procedure for the adoption of the constitution itself. Finally, we propose a way in which a core group of member states can proceed to adopt both reforms and constitution if all are not ready to do so.
Twenty Eight Proposals for Reform and Constitution
The UEF therefore puts forward the twenty eight proposals for Treaty revision in Sections A to G below.
Proposals in Section A are designed to ensure that the citizens are central to the Union by improving the guarantees for citizens’ rights and affirming the values on which citizenship is based.
Democracy and effectiveness of the institutions are the subject of Section B, through greater accountability in the legislative process, more effective taking and execution of decisions, and strengthening the rule of law.
Section C proposes that the European Parliament have the right to approve the revenue as well as the expenditure side of the budget.
Safeguarding citizens’ rights and democratic principles with respect to the Co-operation in Justice and Internal Affairs is the main concern of Section D.
The shameful events in former Yugoslavia and dangers elsewhere in Eastern Europe show how much the Union needs a capacity for more decisive action in the CFSP. Section E contains proposals for this.
It is essential that the Union respect the principle of subsidiarity: that in the words of Article A of the Treaty, “in the process of creating an ever closer union among the peoples of Europe” decisions are to be taken “as closely as possible to the citizen.” While this should also apply within member states as well as between them and the Union, Section F concerns only the latter division of competences, seeking an appropriate division between the Union and the member states.
The debate about Maastricht has shown how much the citizens need a short, clear constitution which guarantees fundamental rights and shows how the exercise of power by the Union is controlled by the citizens and their representatives. A way in which the 1996 Conference should provide for the drawing up of such a constitution is proposed in Section G.
Section H outlines a way in which a core group could proceed to adopt reforms and a constitution if all member states are not ready to do so.
1. The European Union should become a party to the European Convention on Human Rights and Fundamental Freedoms and should incorporate its provisions into Union law, pending the adoption in the constitution of the Union’s own bill of rights.
2. Union citizens’ rights should be further guaranteed by the addition of the words “sex, age, race, colour, sexual orientation, political convinction or religious belief” after the word “nationality” in Article 7 EC, which prohibits discrimination within the scope of application of the EC Treaty, and Article 48.2, which guarantees the free movement of workers within the Community.
3. The European Union should also provide that every citizen shall have the right to express, preserve and develop in complete freedom his/her national, religious, ethnic, linguistic and cultural identity and enjoy this right individually or in association with others equally under the law, provided that no such rights shall infringe equivalent rights of other persons or groups.
4. The Treaty should guarantee the rights under point 2 and 3 above to all persons legally and permanently resident in the Union.
5. All citizens are free to express their membership of a national minority. This does not release the citizen from civic obligations. The cultural identity and the rights of national and ethnic minorities must be protected by the state and local authorities and necessary support should be provided.
6. The Union cannot long survive unless its citizens respect its laws, support its institutions and feel sufficient solidarity with the Union and with each other. In order to make clear the moral basis for this, the Union should draw up a Declaration of European Citizenship, to be annexed to the Treaty, affirming its fundamental values, principles and purposes, to serve as a guide both for the citizens and for the education policies of the Union and the member states.
7. The principle that laws shall be enacted only when approved by both the Council and the European Parliament should apply to all Community legislation. This will give the voters of the Union a clear assurance that the representatives they elect at Union level will have real influence over European legislation. It will also enhance the role of European political parties, enabling them to articulate citizens’ wishes at European level. The position of the member states’ parliaments remains as now. Their influence is exercised through government representatives in the Council; and legislation is not enacted if the Council rejects it.
8. Treaty amendments and decisions on the Union’s own tax resources (Articles 236, 201 EC) should, like the accession of new member states, require the European Parliament’s assent. An Interinstitutional Agreement should be concluded by the Parliament, the Council and the Commission to provide that the Parliament shall play a full part in the 1996 Conference and in any subsequent Reform Conference.
9. The Treaty should require that a uniform electoral procedure be adopted by the European Parliament and by the Council voting by qualified majority in time for the European elections in 1999.
10. Meetings of the Council at which legislation is enacted should be open to the public and a record published of the proceedings, the amendments proposed and the votes. This will both offer reassurance to the citizens as a measure of open government and enable member states’ parliaments to exercise more effective control over the legislative performance of their government representatives in the Council.
11. Voting by qualified majority should be extended to legislation under all the present Community competences. This will enable the legislative procedure to proceed effectively as the number of member states increases.
12. The weighting of votes for a qualified majority should be adjusted in favour of member states with larger populations, in order to redress the imbalance that will result from a growing number of smaller member states. In order to safeguard the position of the smaller states, this should be accompanied by the additional requirement of a qualified majority of the number of member states as is already provided for CFSP joint actions by Article J. 3. 2. The proportion of votes required for a qualified majority should at the same time be reduced to two-thirds. .
13. The Maastricht Treaty improves the democratic control of the Commission by the elected representatives of the Union’s voters, through giving the European Parliament the right to approve the appointment of each new Commission (Art. 158.2), as well as to scrutinise the Commission’s administration (Art. 138c, e) and its execution of expenditure and operation of financial control (Art. 206). This democratic control should be strengthened by according the European Parliament the right to elect, on a proposal by the European Council, the Commission’s President, whose role in the appointment of the other Commissioners should be enhanced as proposed in point 15 below.
14. The Commission will, if it continues to contain at least one Commissioner from each member state, become increasingly unwieldy as the number of member states grows. The size of the Commission should therefore be determined in relation to the number of portfolios required and not to the number of member states.
15. The President of the Commission should, in consultation with the governments of member states, nominate the other Commissioners, with due regard to geographical balance and subject to the approval of the Council as well as the Parliament.
16. The President of the Commission should also have the right to appoint by the same procedure and again with due regard for geographical balance a limited number of Deputy Commissioners, each of whom would assist a Commissioner within a specified field among the Commissioner’s responsibilities and who could be invited to attend the meetings of the Commission but would not have the right to vote. The Commissioners and Deputy Commissioners taken together would include at least one national from each member state.
Court of Justice.
17. One of the greatest strengths of the Community has been the rule of law as a fundamental principle of its operation. This will become yet more important as the Union is enlarged to include member states that do not have a long and deep experience of the rule of law in a democratic system. Yet the Court of Justice has, with certain possible exceptions, no jurisdiction with respect to Co-operation in the fields of Justice and Internal Affairs despite the major implications for the rights of Union citizens. Nor is there any provision for the rule of law with respect to the CFSP. While legislation is not a major instrument of foreign policy, it is essential that member states respect their Treaty obligations; and the need to ensure this can only become the greater as the Union is enlarged. Article L of the Maastricht Treaty should be amended to give the Court of Justice jurisdiction with respect to the Union as well as the Community.
18. All the revenue as well as the expenditure of the Union should be entered in the budget which should be approved each year by both the Parliament and the Council. The Parliament should have the right to determine the size of the Union’s income, subject to the agreement of the Council.
D. Co-operation in Justice and Internal Affairs.
19. The Maastricht Treaty affirms that the Union shall be “founded on the European Communities, supplemented by the forms of co-operation established by this Treaty” (Art. A). These supplementary forms of cooperation should be brought into the competence of the Community institutions. As well as extending the jurisdiction of the Court of Justice as proposed in point 17 above, the 1996 Conference should provide for the transfer of responsibility for the Co-operation in Justice and Internal Affairs to the EC institutions. It is of critical importance in these fields for citizens to be assured that democratic principles as well as citizens’ rights based on the rule of law will be respected throughout the Union. The Community institutions will provide better safeguards for this than the more intergovernmental method stipulated by the Maastricht Treaty for Justice and Internal Affairs.
E. Common Foreign and Security Policy.
20. The Union’s external policy is weakened by the division of responsibility among three sets of institutions: those of the Community, of the structure established by the Maastricht Treaty for the CFSP, and of the WEU. The 1996 Conference should establish a programme for bringing the CFSP and its implementation by stages into the competence of the Community institutions. The Conference and the member states of WEU, in view of the expiry of the WEU Treaty in 1998, should also provide for the transfer of responsibility for WEU to the Union, whose Council should meet without the representatives of any of the Union’s member states that have not become members of WEU. The functions of the Parliamentary Assembly of WEU should be subsumed within the European Parliament.
21. While some co-operation in foreign and security policy is possible with the procedure of unanimity, a sufficiently effective common policy cannot be formed and executed in this way; and the difficulty will become yet greater with enlargement. Voting by qualified majority for joint actions under the CFSP should therefore be adopted as the general rule in the first stage of the programme for all matters save those relating to defence. In order to avoid crises that could result if minorities of member states were placed in unacceptable positions, the programme should provide for a transitional period during which member states could opt out of joint actions which they have demonstrable reasons for being unable to accept.
22. Nor does the Treaty establish procedures that will enable the Union to form an effective common defence. There is provision for Union decisions and actions which have defence implications, which the Western-European Union (WEU) is to “elaborate and implement”; and the Union’s CFSP is required to include “the eventual framing of a common defence policy, which might in time lead to a common defence”, compatible with the policy of the Atlantic Alliance (Art. J. 4). But the Union is likely, particularly after the accession of further neutral states, to be ineffective in this field unless it is prepared to decide upon joint actions as provided by the Treaty for other aspects of foreign and security policy. Article J. 4. 3, which excludes joint actions on “issues having defence implications”, should be deleted.
23. While the Commission’s role with respect to defence will remain limited until a later stage when the Union has full defence responsibilities, the Commission should from the first stage play a leading part in other aspects of the CFSP, as it already does in trade policy. Thus Article J. 5. 1 and 1. 5. 2 should be amended to provide that the Commission, not the Presidency of the Council, shall represent the Union and be responsible for the implementation of common measures in all matters coming within the CFSP save those relating to defence. Article J. 5. 3 should be amended to provide that the Presidency, together with the previous and next member states to hold the Presidency, shall be fully associated with the Commission in these tasks. The 1996 Conference should also provide that the relationship between the General Secretariat of the Council and the Commission, to which Declaration No. 27 attached to the Maastricht Treaty refers, be such as to ensure that the Commission shall have the means to carry out these tasks, in full cooperation with the Council.
24. The 1996 Conference should clearly define the competences of the Union, particularly affirming that the current competences in the Maastricht Treaty do not need to be extended but should be properly implemented.
25. The Conference should review the competences of the Union introduced by the Maastricht Treaty to assess whether any should, in accordance with the principle of subsidiarity, be limited or returned to the member states.
26. The principle of subsidiarity requires an appropriate allocation of powers to the different levels of government, including to the level of the Union in fields where this is justified by scale or external effects which invalidate independent action by the member states. Thus there should be no further opting out of Treaty articles; and the opt-outs allowed with respect to the Maastricht Treaty should be withdrawn.
27. The Treaty should specify that the Committee of the Regions is to issue an opinion in all cases where it considers that the principle of subsidiarity is involved. The Protocol on the Economic and Social Committee and the Committee of the Regions should be amended so as to ensure that the Committee of the Regions has its own organisational structure, adequate for the performance of its tasks.
28. The Union needs a clearly understandable constitution. The European Parliament should complete its draft constitution by June 1995, in good time for presentation to the 1996 Conference. The Parliament should adopt an active and determined stand in both the reflection group and the process of revision. It should present to the reflection group a concise paper stating the constitutional principles on which the Union should be based. The constitution requires a large consensus among the citizens as well as very thorough preparation by its drafters. The 1996 Conference should therefore lay down a procedure for thorough consultation of member states’ parliaments and governments and of citizens and non-governmental organisations, on the basis of the European Parliament’s draft, to be followed by a constitutional Convention in which members of the European Parliament and of member states’ parliaments as well as government representatives should participate. The constitution should come into force after it has been finalised and adopted by the Convention, then approved by the European Parliament and the parliaments of member states and in referenda to be held simultaneously throughout the Union. The 1996 Conference should, in addition to the reforms in point 1-27 above, provide for amendment of the European Union Treaty to establish this procedure.
H. Action by a Core Group.
These revisions to the Union Treaty would make the Union more effective, more democratic and better understood by the citizens, to the mutual benefit of the peoples of all the member states.
We have to face the fact, however, that some member states may refuse to take part in such steps towards a federal constitution although a substantial core of states wishes to undertake them. These core states should in that case be prepared to take such steps while respecting rights of the others under the existing Treaties. The core states might thus conclude among themselves a Treaty for a Federal Europe, going beyond the existing Treaty by providing in addition for: a) an unequivocal commitment to establish the economic and monetary union by 1999 at the latest; b) a commitment to establish a European defence union of the core states, with its own institutions and instruments, including an expanded Eurocorps; c) a timetable for moving to majority voting among the Council representatives of the core group on joint actions by them in the field of foreign and security policy and on joint legislation and action in the field of Justice and Internal Affairs; d) an agreement to support as a group the nomination only of citizens of the core states for the President of the Commission and for the Commissioners responsible for economic and monetary affairs, for foreign and security policy and for the fields of justice and internal affairs; e) an agreement not to vote to enact legislation which has not been approved by the European Parliament; f) a commitment to undertake with those member states that accept the federal goal for the Union and the establishment of a European government distinct from the member states governments. They should, in particular, commit themselves to implement the constituent process proposed in point 28 and to adopt the federal constitution once it has been approved by member states containing at least two-thirds of the population of the Union; g) a standing invitation to other member states to adhere to the Treaty for a Federal Europe when they are prepared to accept its terms and objectives; h) a Commitment of the federal core group thus constituted to set in train a progressive improvement of employment conditions.
*This document was approved by the XVI Congress of the European Union of Federalists (UEF), held in Bocholt, 21st-23rd October 1994.