Although it seems unsuitable and unrealistic, at present, to consider transforming the EU's Constitutional Charter into a Constitution like that of a State, it would, however, be possible and desirable to make a number of improvements to this Charter and to the way it is implemented. Such improvements should be specifically adapted to the sui generis character of the Union and would seek to improve the effectiveness, democratic legitimacy and transparency of its system of governance. Six possible issues will be mentioned which could be addressed in this connection. A number of other issues could also be mentioned. The most important of them, which will not be discussed here, is obviously the strengthening of the powers of the Union in the field of defence and security, a subject on which the debate among Member States has recently become concrete and which will probably lead to important decisions in the short or medium term74.. Another issue not discussed below would be the strengthening of certain institutions of the Union such as the Court of Justice, the Court of First Instance75 and the Court of Auditors.
· A single and simpler "Treaty-Charter" ?
Everybody agrees that the form taken by the results of the successive IGCs, i.e. an accumulation of long and complicated treaties, is not ideal. The form and presentation of the Treaties are lacking in the clarity they would need in order for them to be understood by some and accepted by all.
The suggestion, which I have already made in the past76, would therefore be to replace the present Treaties by a single, short "Treaty Charter", which would provide for the merger of the EU and of the three European Communities into one entity and which would be as short and readable as possible. It would contain only the fundamental provisions, including the objectives of the Union, citizenship, the attribution and division of powers and institutional matters. All the other provisions, including those governing the common policies, would be contained in protocols annexed to the Treaty Charter. This would not change much legally, and the Treaties would not become a Constitution like that of a State as a result, but it could change things psychologically and politically. The Amsterdam IGC adopted a Declaration on this point77.
However, one cannot ignore the fact that a great deal of efforts were made in order to try to achieve this during the Amsterdam IGC, and that they failed. The reason was that certain Member States were firmly opposed to re-submitting existing Treaty provisions, in a different shape and form, to their national ratification procedures. They feared that doing so could risk calling the existing Treaties and policies into question. As this political point seems to be quite weighty, the chances of success look slim. In any case, one can observe that not all States have short and simple Constitutions: was that the case of Switzerland until the Constitutional reform of 1999?78 Is it the case of Bosnia and Hertzegovina?79 Is it the case of Belgium?80
· A Bill of Rights ?
As has already been shown, human rights and fundamental freedoms are recognised in Community law and must be respected. The Community legal system provides for judicial review and it provides individual citizens with the opportunity to protect their rights. The situation has been further improved, both by the Maastricht and by the Amsterdam Treaties.
The suggestions here would be both to improve these rights81 and to codify them - including those deriving from the European Convention for the Protection of Human Rights and Fundamental Freedoms - into a Bill of Rights, which could eventually become an integral part of the Treaty, whilst also codifying existing rights at the European level, i.e. the right to free movement and non-discrimination, the right to vote in elections to the European Parliament and local elections, etc. That would not change the legal situation dramatically, unless it entailed improving the access of individuals to the Court of Justice and/or the accession of the EC to the of European Convention on Human Rights and Fundamental Freedoms, and thereby access to its Court of Justice, but it would have an important political impact. The European Council, at its session in Cologne on 3rd-4th June 1999, adopted a "decision on the drawing up of a Charter of Fundamental Rights of the European Union". A draft Charter is to be presented in advance of the meeting of the European Council due to take place in December 2000. The "European Charter of Fundamental Rights", which should be proclaimed as a solemn declaration, could subsequently be integrated into the Treaties82.
However, here again, one should not under-estimate the substantial difficulties involved with this exercise. Firstly, the list of fundamental rights recognized by the Constitutions of the fifteen Member States are different, and it would be difficult for a Member State, having recognized one of those rights at the national level, to accept that the same right be left out at the European level (or vice-versa). Secondly, the constitutional definitions and practices with regard to a fundamental right, and the way in which it is protected, may differ in each Member State, and a right which appears not to entail significant financial consequences in a given State could actually do so in another State. Thirdly, and in particular for the same reasons, it would seem difficult to provide for a EU list which would be different from the European Convention list, and if indeed that were not to be the case, the usefulness of the exercise might be questioned. Fourthly, it would be difficult to solve the problem of determining which European Court of Justice should have jurisdiction for reviewing implementation by the parties concerned (i.e. the Court in Luxembourg or the one in Strasbourg ?)
What is known in Euro-jargon as the "democratic deficit" or, better said, the "democratic malaise", is often seen in over-simplistic terms. For a number of writers on this subject, the solution looks easy: according to them, it would be necessary and sufficient to give more powers to the European Parliament. If that were right, however, the democratic malaise would largely disappear with the implementation of the Amsterdam Treaty, since the new powers which this Treaty has given to the European Parliament are extremely important. In particular:
- the co-decision procedure has been extended to a great number of matters;
- above all, it has now become real co-decision, particularly by having done away with the stage of the so-called "third reading", where the Council could impose its views hitherto;
- the Parliament has the right to approve the President of the Commission and then the Commission as a whole;
- the Parliament has acquired new powers in the fields of visas, asylum and immigration as well as on police and judicial cooperation in criminal matters.
However, if the reforms aimed at enhancing the democratic legitimacy of the EU were limited to an increase of the powers of the European Parliament, that would not be the miracle solution: the "democratic malaise" of the EU will not disappear simply by giving more powers to the European Parliament. The EU is at one and the same time both a sui generis entity in itself, and a Community of States83, out of which most of its institutions are emanations. Its democratic legitimacy is double: it has to be founded not only in its own institutions, but also in its Member States84. According to Dieter Grimm85, Joseph Weiler86, and others 87, giving the European Parliament too much power could actually have disruptive effects and aggravate the legitimacy problem of the EU even further.
In this connection, one has to recognise that the real political game is still played out not at the EU level, but at the Member State level. The Members of the Council are accountable to their national parliaments, not to the Strasbourg Assembly. The European Parliament is not divided between a minority opposition and a majority supporting a government (which does not exist), nor can it be dissolved, even in the event of a major conflict with the European Council and the Council. Whatever their assiduity or their voting record, the members of the European Parliament are elected for a five-year period, and their personal responsibility towards the electorate is weak, given the electoral procedures presently applicable in most of the Member States (i.e. national lists). People participating in the elections of the European Parliament do not have the feeling of influencing policy choices at the European level, which probably explains the low turn-out rate for these elections.
In a recent interview, the British Prime Minister Tony Blair said :
"The European Parliament is more directly democratic but it is more remote from people than their National Parliaments or their elected Governments. The Council of Ministers is closer to people in the sense that the British Prime Minister is directly accountable to the British electorate in a very obvious way and yet, in terms of the European decisions we take, it [the Council] is less directly democratic. That's the dilemma."88
That being said, something might be done in the future to try to solve this "remoteness" of the European Parliament from the people, in particular by agreeing on a uniform procedure for the election of its members, which should aim at ensuring that these members are known to their constituents and more responsible towards them89. But one has to recognize that this is not something which is presently envisaged by the Member States90.
Other suggestions have been made, which would strongly enhance the "double legitimacy"of the EU; they would consist:
- on the one hand, of giving the European Council the right to dissolve the European Parliament, and
- on the other hand, of dividing the European Parliament into two chambers, the first one being the present European Parliament, the second one being made up of elected representatives of the national Parliaments91.
Enhancing the democratic legitimacy of the European Union through greater involvement at the level of the Member States
Greater involvement at the Member States' level is absolutely necessary. The EU has two facets and needs two legitimacies, one through the European Parliament and the other through the democratic legitimacy and the political institutions of its Member States.
A former Permanent Representative of Germany to the EC once wrote that: "The democratic deficit is essentially the incapacity of national parliaments to control their governments in EC matters"92.. That is partly true and is the reason why the Member States annexed to the Amsterdam Treaty a "Protocol on the role of national parliaments in the EU", which provides for a number of important elements:
"1. All Commission consultation documents (green and white papers and communications) shall be promptly forwarded to national parliaments of the Member States.
2. Commission proposals for legislation as defined by the Council in accordance with Article 207(3) of the Treaty establishing the European Community, shall be made available in good time so that the government of each Member State may ensure that its own national parliament receives them as appropriate.
3. A six-week period shall elapse between a legislative proposal or a proposal for a measure to be adopted under Title VI of the Treaty on European Union being made available in all languages to the European Parliament and the Council by the Commission and the date when it is placed on a Council agenda for decision either for the adoption of an act or for adoption of a common position pursuant to Article 251 or 252 of the Treaty establishing the European Community, subject to exceptions on grounds of urgency, the reasons for which shall be stated in the act or common position."
This implies that national parliaments have a say on any Community legislative proposal (paragraph 2), as well as and especially for a proposed measure on police and judicial cooperation in criminal matters (paragraph 3: obligatory waiting period of six weeks before taking a decision). It will now be up to the political institutions of each Member State to make full use of this possibility.
In some Member States, the practice has already moved in that direction. It is for example the case in France, where an Article 88-4 was introduced in the Constitution to that effect on the occasion of the ratification of the Maastricht Treaty, and enhanced during the ratification process of the Amsterdam Treaty. It has been the case for a long time in Denmark, with the long-standing activity of the Danish Parliament in European matters. Generally speaking, the use of so-called "Parliamentary reservations" has become quite a frequent practice over the last few years for other members of the Council as well.
Greater involvement at the level of the Member States should not stop at the doors of their Parliaments. National governments should also organize themselves in order to coordinate and control their individual Ministers better, when sitting in the twenty different formations of the Council. Individual Ministers should also exercise more control over their civil servants in the 250 committees and working parties of the Council which are active at present93.. That would also be a key to implementing properly the "subsidiarity" principle, according to which decisions should be taken at the EU level only when they can be better achieved at that level rather than at the level of the Member States.
After the crisis which led to the resignation of all the Members of the Commission in March 1999, this a must.
It is vital for the EU to preserve the balance which has existed up to now between the institutions and, therefore, the essential and central role of the Commission, symbolised by its quasi-monopoly of the right of initiative, which should be extended even further, and by strictly preserving its independence vis-à-vis the other two political institutions.
On the question of the number of the Commission's members, if each Member State insists that the Commission include a member having its own nationality, and if this, as seems probable, were considered as being politically unavoidable, a distinction could be made in practice between some of the members of the Commission, who would form an "inner Cabinet", and its other members, even if all members would retain the right to participate fully in the taking of decisions. The role of the President could be further enhanced, leaving the President with the task of choosing his or her colleagues according to their capacities and of distributing appropriate portfolios and responsibilities to them94.
The European Parliament should not be given the right to dismiss one or several members of the Commission: the balance of powers between the two institutions would be changed dramatically. Moreover, the collegiality of the Commission is essential to the proper exercise of its functions, as well as to the independence of each of its members, even and above all in delicate cases where the opinion of the European Parliament might be different from the Commission's position. However, the President of the Commission should have the right to change portfolios around, or to alter the importance of the responsibilities given to a particular Commissioner during the term in office of a Commission, according to changing needs or to the performances of the Commissioners involved. This point has already been taken into account by the Declaration nº 32 adopted by the Amsterdam IGC on the question of the organisation and functioning of the Commission, which states that:
"The Conference notes the Commission's intention to prepare a reorganization of tasks within the college in good time for the Commission which will take up office in 2000, in order to ensure an optimum division between conventional portfolios and specific tasks.
In this context, it considers that the President of the Commission must enjoy broad discretion in the allocation of tasks within the college, as well as in any reshuffling of those tasks during a Commission's term of office.
The Conference also notes the Commission's intention to undertake in parallel a corresponding reorganization of its departments. It notes in particular the desirability of bringing external relations under the responsibility of a Vice-President."
One could even consider giving the President of the Commission the right to propose to the Governments of the Member States that a particular Commissioner be dismissed95 .
This is also a must, especially with an enlarged Union in prospect96..
The Treaties have given the Council executive powers as well as powers to legislate.
In order to exercise its legislative powers better, and especially in view of the enlargement of the Union, the Council should preserve its effectiveness. It should do so by more qualified majority voting, through the "quasi-elimination of unanimity"97.. Qualified majority voting is more democratic than unanimity. More democracy could also be brought about by re-weighting the votes of each Member of the Council, in order to take better account of the relative importance of the Member States, and more particularly of their populations. The Council should also adapt its working methods to the new co-decision procedure, i.e. to the new powers of the European Parliament. It should do so by introducing new working methods 98, as well as through more openness in its legislative deliberations.
In exercising its executive powers, the Council should increase its effectiveness, continuity and consistency. Particularly in the area of foreign policy, there is a real need for delegating authority, to a greater or lesser degree, on bodies able to act rapidly and effectively under the Council's supervision. A foreign policy cannot be conducted effectively through a fifteen-member Council (and twenty, twenty-five or maybe even thirty would of course make things more difficult in the future), nor by a Presidency and staff changing every six months. It requires a delegation of authority, with a degree of latitude, to a personality or a permanent body accountable to the Council.
More generally, the Council should improve its continuity, by organising its Presidency better (especially for its preparatory organs)99, as well as its consistency through better co-ordination of the work going on in its twenty different formations100.. It will have to adapt its working methods, in order to take account of an increase in the number of its Members, as well as by improving the way the "General Affairs" Council deals with institutional and horizontal matters on the one hand, and with external policy matters on the other hand.
Therefore, the proposed answer to be given to the fourth question would be that yes, there is now an imperative need, specially with the Union's enlargement in prospect, to improve the EU's Constitutional Charter and the way it is implemented, in order to bring more efficiency, more democratic legitimacy and more transparency to its system of governance. The continued political debate about the use of the term "Constitution" should not hamper the achievement of this imperative, notwithstanding the difficulties, which have already been encountered during the Amsterdam IGC.
74 See, in Annex I, the "European Council Declaration on Strengthening the Common European Policy on Security and Defence", adopted in Cologne on 3rd June 1999.
75 See the document forwarded to the Council on 28 May 1999 by the Court of Justice on the "Future of the judicial system of the European Union".
76 See Justus Lipsius, "The 1996 Intergovernmental Conference", in European Law Review 20/95, pp. 265-6.
77 Declaration nº 42 on the consolidation of the Treaties :
"The High Contracting Parties agreed that the technical work begun during the course of this Intergovernmental Conference shall continue as speedily as possible with the aim of drafting a consolidation of all the relevant Treaties, including the Treaty on European Union.
They agreed that the final results of this technical work, which shall be made public for illustrative purposes under the responsibility of the Secretary-General of the Council, shall have no legal value."
78 Constitution of 1874.
79 Established by Annex 4 to the Agreement initialled in Dayton in November 1995 and signed in Paris on 14 December 1995.
80 Constitution of 17 February 1994.
81 See the 1995 Report of the Court of Justice, already mentioned.
European Council will propose to the European Parliament and the Commisison
that, together with the Council, they should solemnly proclaim on the basis of
the draft document a European Charter of Fundamental Rights. It will then have
to be considered whether and, if so, how the Charter should be integrated into
(See the full text of this decision of the European Council in Annex II).
83 Even the European Parliament accepts the principle of "dual legitimacy". See for instance its Resolution of 17 June 1987 (OJEC C190, 20.7.1987).
84 See Philippe de Schoutheete, "Une Europe pour tous", Editions Odile Jacob, Paris, 1997 : "La légitimité démocratique ... prend, assez naturellement, des formes tout aussi hétérogènes que l'ensemble lui-même. Elle repose, pour une part, sur la légitimité propre du Parlement européen, sur le rôle qu'il joue dans le domaine législatif et budgétaire, sur le contrôle politique qu'il exerce sur le Conseil et sur la Commission par les voies classiques des débats, des questions, des commissions d'enquête. Elle repose, d'autre part, sur la légitimité de chacun des Parlements nationaux, sur le contrôle politique que ceux-ci exercent, ou devraient exercer, sur les décisions des gouvernements dans les enceintes diverses de l'ensemble européen."
85 Dieter Grimm : "Does Europe need a Constitution?" in European Law Journal 3/95, page 296 : "The conclusion may be drawn that full parliamentarisation of the EU on the model of the national Constitutional State will rather aggravate than solve the problem".
86 Joseph Weiler : "Parlement européen, intégration européenne, démocratie et légitimité" in "Le Parlement européen", V. Louis and M. Waelbroek (eds), Brussels, 1988, page 340 : "Certes, je considère qu'il conviendrait de donner des pouvoirs accrus au Parlement (...) mais, à mon avis, il est pour le moins discutable que la crise de légitimité s'en trouvera automatiquement résolue. Au contraire, elle peut même s'en trouvée aggravée".
87 See also Jörg Gerkrath : "L'émergence d'un droit constitutionnel pour l'Europe", Editions de l'Université de Bruxelles, 1997, in particular pages 339 to 343.
88 Financial Times, 23 March 1999.
89 However, an attempt of the French Government to adopt legislation going in this direction recently failed.
90 See, for instance, the recent reform to the procedures for electing the members of the European Parliament in the United Kingdom.
91 "A European Union that Works - Blueprint for reform", published in June 1999 by "Friends of Europe", a group chaired by Etienne Davignon (former Vice-President of the European Commission (55, Avenue de Saturne, B-1180, Brussels).
92 Werner Ungerer, "Institutional consequences of broadening and deepening the Community : the consequences for the decision-making process", (1993) C.M.L. Rev. , p. 76.
93 Whilst one should not forget that a great majority of the Council's decisions are adopted under the "A point" procedure (i.e. without any discussion by the Council), the significance of this phenomenon should not be exaggerated, given that civil servants work under instructions from their ministers, and also that many "A point" items would have been discussed previously as "B points" by the Council itself and come back only for formal adoption after legal editing of the texts in all eleven languages.
94 See Declaration no 32 of the Amsterdam IGC, on the organization and functioning of the Commission:
"The Conference notes the Commission's intention to prepare a reorganization of tasks within the college in good time for the Commission which will take up office in 2000, in order to ensure an optimum division between conventional portofolios and specific tasks.
In this context, it considers that the President of the Commission must enjoy broad discretion in the allocation of tasks within the college, as well as in any reshuffling of those tasks during a Commission's term of office.
The Conference also notes the Commission's intention to undertake in parallel a corresponding reorganisation of its departments. It notes in particular the desirability of bringing external relations under the responsability of a Vice-President."
95 On this point, Mr Romano Prodi, President designate of the Commission, has expressed the opinion that he should be able to decide himself on such a dismissal.
96 The European Council in Vienna in December 1998 noted that a "report from the Secretary-General on the functioning of the Council in the perspective of an enlarged Union will be presented at the beginning of 1999".. This report was completed in March 1999 and presented to the "General Affairs" Council on 31 May 1999. The European Council on 3-4 June 1999 welcomed it and called upon the Council to submit, in the light of that report and in time for the December 1999 European Council in Helsinki, "specific proposals for improving the operation of the Council with a view to enlargement".
97 Justus Lipsius, "The 1996 Intergovernmental Conference", ELR 20/1995, pp. 258-9.
98 In particular through the establishment of a Vice-Chairman for Coreper I.
99 The Treaty requires a six-month rotation for the Presidency of the Council itself, but not for its preparatory organs. Up to now, the rule has been, however, that most of the 250 committees and working parties of the Council work under the same chairmanship as the Council. That is not a legal necessity, nor is it the most efficient way to work. As regards the different formations of the Council, the Treaty does not prevent them from designating a vice-President; this could be quite useful, at least for some formations of the Council.
100 On this point, the above-mentioned booklet, "A European Union that works - Blueprint for reform", has made far-reaching suggestions, such as a reduction to just four formations of the Council : Foreign Affairs (to deal only with CFSP), Economy and Finance, Justice and Home Affairs, and a new coordinating formation, called "General Affairs", made up of senior government ministers. All the other present formations of the Council would become ministerial working committees and would report to the "General Affairs" Council.