Select Committee on European Union Twenty-First Report


PART 2: The proposed institutional articles

Article 14: The Union's Institutions

1.  The Union shall be served by a single institutional framework which shall aim to:  

-  advance the objectives of the Union,

  -  promote the values of the Union,

  -  serve the interests of the Union, its citizens and its Member States,

and ensure the consistency, effectiveness and continuity of the policies and actions which it undertakes in pursuit of its objectives.

2.  This institutional framework comprises:

  The European Parliament,

  The European Council,

  The Council of Ministers,

  The European Commission,

  The Court of Justice of the European Union,

  The European Central Bank,

  The Court of Auditors.

3.  Each institution shall act within the limits of the powers conferred on it in the Constitution, and in conformity with the procedures and conditions set out in it. The institutions shall practice full mutual cooperation.

12.   Article 14 provides for the Union to be "served by a single institutional framework" (as does Article 3TEU). This may mean in effect that the three pillar structure adopted at Maastricht is abolished, although it is clearly intended by our Government[8] that inter-governmentalism will remain the norm for matters currently under the Defence and Security Pillar. Changing the procedures even for JHA matters alone, however, could have consequences for national parliamentary scrutiny, by increasing the number of proposals that could be subject to scrutiny (for example, an enhanced role for the European Parliament would mean more texts emerging from that body that need consideration).

Article 15: The European Parliament

1.  The European Parliament shall, jointly with the Council, enact legislation, as well as exercise functions of political control and consultation as laid down in the Constitution. It shall elect the President of the European Commission.

2.  The European Parliament shall be directly elected by universal suffrage of European citizens in free and secret ballot for a term of five years. Its members shall not exceed seven hundred in number. Representation of European citizens shall be degressively proportional, with a minimum threshold of four members per Member State.

3.  The European Parliament shall elect its President and its officers from among its members, for a term of five years.

13.   Article 15(1) presents in simple language the function of the Parliament (largely unchanged from the existing Treaties) as follows:

"The European Parliament shall, jointly with the Council, enact legislation, as well as exercise functions of political control and consultation as laid down in the Constitution. It shall elect the President of the European Commission."

14.   What is significant, however, is the presumption that co-decision will become the normal method of agreeing EU laws. While this is welcome from the point of view of accountability (in that the European Parliament is to be more involved) it will mean that there is a greater responsibility on national governments and national parliaments to ensure that they perform effective scrutiny of proposals subject to such procedures. We have already made recommendations to this end[9].

15.   We have ourselves made a small number of recommendations for changing the functions of the Parliament (for example by providing a greater role for the Parliament to scrutinise some subordinate legislation (Comitology)[10]. We wish to see further consideration given to enhancing the Parliament's scrutiny role in such matters and hope to see suggestions in subsequent texts when they emerge.

16.   Article 15 (2) provides for elections to the Parliament. The Parliament's members shall not exceed 700. The Draft articles propose making the number of members of the European Parliament more proportional to the size of the countries' populations and states that representation shall be "degressively proportional". We would welcome an explanation of this term.

Article 16: The European Council

1.  The European Council shall provide the Union with the necessary impetus for its development, and shall define its general political directions and priorities.

2.  The European Council shall consist of the Heads of State or Government of the Member States, together with its President and the President of the Commission. The Foreign Minister shall take part in its work.

3.  The European Council shall meet quarterly, convened by its President. When the agenda so requires, its members may decide to be assisted by a minister, and, in the case of the President of the Commission, a Commissioner. When the situation so requires, the President shall convene an additional meeting of the European Council.

4.  Except where the Constitution provides otherwise, decisions of the European Council shall be taken by consensus.

Article 16a : The European Council Chair

1.  The European Council shall elect its President, by qualified majority, for a term of two and a half years, renewable once. The person elected must be, or have been for at least two years, a member of the European Council. In cases of serious malpractice, the European Council can end his mandate according to the same procedure.

On issues concerning its common foreign and security policy he shall ensure that the Union at his level is effectively represented in the wider world.

2.  The President of the European Council shall chair it and drive forward its work, ensuring proper preparation and continuity. He shall endeavour to facilitate cohesion and consensus within the European Council. He shall present a report to the European Parliament after each of its meetings.

3.  The European Council may decide by consensus to create a board consisting of three of its members chosen according to a system of equitable rotation.

4.  The President of the European Council may not be a member of another European institution or hold a national mandate.

17.   Under Article 14, the European Council is, for the first time, clearly identified in the Treaty as an institution of the Union[11].

18.   Article 16(1) gives the function of the European Council:

"The European Council shall provide the Union with the necessary impetus for its development, and shall define its general political directions and priorities."

19.   While mainly re-stating a provision of the existing Treaty[12] this provision is subtly different and clearly represents a determination to ensure that the European Council has a key - and openly stated - role in driving the future of the European Union. In the existing Treaty, the European Council is to "define the general political guidelines [of the Union]". The new reference to "general political directions and priorities" is a highly significant change, which needs to be fleshed out and complemented with proposals for greater transparency and accountability. In addition, the relationship between the European Council and the other Council formations is not sufficiently clearly defined.

20.   While we accordingly welcome the restatement of the existing provision for the President to report to the European Parliament after each meeting we note that this appears to water down existing Article 4 TEU which also provides for a yearly written report on the progress of the Union. We accordingly stress the need for further accountability of the individual members of the European Council, including the President, to national parliaments. Such accountability should include accountability of an individual Head of Government to their national parliament.

21.   Article 16(4) states that, except where provided otherwise, decisions of the European Council shall be taken by consensus. We would welcome an explanation of this term.

22.   Article 16a(1) proposes a new post of a president of the European Council serving a renewable term of two and a half years. The person shall be elected by qualified majority by the European Council. The person elected must be, or have been for at least two years, a member of the European Council but (under Article 16(4)) "may not be a member of another European institution or hold a national mandate".

23.   We assume that the reference to a national mandate is intended only to mean that the President will not at the same time serve as the representative of their Member State (in which case, who will?) If this is so, the proposal is that the President must be a serving or former Head of State or Government of a Member State or a former President of the Commission. We would welcome clarification that the Foreign Minister of the Union does not count as a member of the European Council for this purpose[13]. In any event, it is not clear that any serving holder of these offices - particularly a serving Prime Minister - would have the time also to be President of the European Council, given the nature of the role as envisaged here, or at least they would not necessarily have the time to do both jobs well. There is also no provision for substitution if a member is absent.

24.   Article 16a(1) also provides that "On issues concerning its common foreign and security policy [the President] shall ensure that the Union at his level is effectively represented in the wider world." It is not clear how this role would overlap - or clash - with that of the Foreign Minister (see paragraph 39 below).

25.   Under Article 16a(3) the European Council can create a board consisting of three of its members chosen according to a system of equitable rotation. No indication is given of the function of this body but there must be an assumption that it would be a bureau to support the President and drive the Council. The purpose of this body should be explained (as should the selection procedure) and the board must be publicly accountable.

26.  The Government is 'particularly keen' to see the creation of a full-time President of the Council[14]. Having a full-time President would allow for greater strategic direction and continuity than the present six-monthly presidencies. To counter-act the danger of such a President only serving the interests of the larger countries, the Government supports the proposed team presidencies, called 'boards' in the draft articles[15]. The Commission, however, opposes the proposal and will seek to amend it in the Convention[16].

27.   The proposal for a President of the European Council is clearly intended to alter the institutional balance in the European Union. Further clarification - and further provisions on accountability - are required before we can give the proposal our full support.

Article 17: The Council of Ministers

1.  The Council of Ministers shall, jointly with the European Parliament, enact legislation, and shall carry out policy-making and co-ordinating functions, as laid down in the Constitution.

2.  The Council of Ministers shall consist of a representative of each Member State at ministerial level for each of its formations. Only this representative may commit the Member State in question, and cast its vote.

3.  Except where the Constitution provides otherwise, decisions of the Council shall be taken by qualified majority.

Article 17a : Council formations

1.  The General Affairs Council shall ensure consistency in the work of the Council of Ministers. With the participation of the Commission, it shall prepare meetings of the European Council.

2.  The Legislative Council shall consider and, jointly with the European Parliament, enact European laws and European framework laws, in accordance with the provisions of the Constitution. Each Member State's ministerial representative may be assisted by one or, if necessary, two specialist ministers, reflecting the business on the Council agenda.

3.  The Foreign Affairs Council shall, on the basis of strategic guidelines laid down by the European Council, flesh out the Union's external policies, and ensure that its actions are consistent. It shall be chaired by the Union's Foreign Minister.

4.  The Council shall also meet in the configuration of an Economic and Financial Affairs Council, and a Council on Justice and Security.

5.  The Council, in its General Affairs formation, may decide on further formations.

6.  The European Council may decide by consensus that the Presidency of a Council formation, other than that of Foreign Affairs, should be undertaken by a Member State for a period of at least a year, taking into account European political and geographical balance and the diversity of all Member States.

Article 17b : Qualified majority

1.  When the European Council or the Council take decisions by qualified majority, such a majority shall consist of the majority of Member States, representing at least three fifths of the population of the Union.

2.  Within the European Council, its President and the President of the Commission do not vote.

28.   Articles 17 specifies the powers of the Council as follows:

"The Council of Ministers shall, jointly with the European Parliament, enact legislation, and shall carry out policy-making and co-ordinating functions, as laid down in the Constitution."

29.   Under Article 17(3) all decisions will be by qualified majority unless provided otherwise. This provision alters that in existing Article 205 TEC under which decisions are by majority unless otherwise provided.

30.   Article 17a makes provisions for the formations of the Council which are stated for the first time in the Treaty. There are three significant developments. First, only some of the existing Council formations are identified, although the General Affairs Council has the power to create other formations of the Council. We would welcome clarification on what is intended to happen in this regard.

31.  Secondly, Article 17b appears to changes the voting system in the European Council so that decisions could be taken by a simple majority of Member States representing more than 60 percent of EU citizens. This is a departure from the existing Treaty provisions[17] which set out a detailed system of qualified majority. This provision requires clarification.

32.   Thirdly, for the first time, a specific legislative Council is identified (Article 17a(2)) as follows:

"The Legislative Council shall consider and, jointly with the European Parliament, enact European laws and European framework laws, in accordance with the provisions of the Constitution. Each Member State's ministerial representative may be assisted by one or, if necessary, two specialist ministers, reflecting the business on the Council agenda."

We would welcome clarification on this point too. Is it intended that there be a single legislative Council (and if so how will this relate to the other policy-based formations)? Or is it intended that each policy-based formation can mutate at will into the legislative council and, if so, is there provision for more than one such legislative council to meet at any one time?

33.   We have repeatedly called[18] for the Council, when legislating, to meet in public and we are pleased to see this written into the Treaty[19]. We eagerly await further details on how this new Council formation is to operate. The Treaty should also provide for a verbatim record of legislative proceedings to be made quickly and readily available.


8   See evidence from Dr Denis MacShane in our 15th Report on the Convention's Working Groups on Defence and External Action (HL Paper 80, 31 March 2003, Q 24).  Back

9   See our Report "Review of Scrutiny of European Legislation" (1st Report, HL Paper 15, 3 December 2002) paragraphs 32-35. Back

10   Review of scrutiny (see n 10 above) para 91: "We also propose that the Convention considers whether the European Parliament's procedures in this area could be strengthened by setting up an equivalent of our committees which scrutinise Statutory Instruments, including both the Joint Committee on Statutory Instruments and the proposed new committee on the merits of Statutory Instruments; by strengthening the work of their existing committees in scrutinising comitology legislation; and by giving consideration to a procedure analogous to our negative and affirmative resolution procedure. This would supplement the Parliament's existing power to express a view on comitology legislation arising out of legislative instruments adopted under the co-decision procedure." Back

11   Although the European Council is referred to in Article 4TEU this is not an Article in the institutional section of that treaty. Back

12   Article 4TEU. Back

13   Article 16 (2) states: "The European Council shall consist of the Heads of State or Government of the Member States, together with its President and the President of the Commission. The Foreign Minister shall take part in its work". The Foreign Minister also has a role in the Commission - see paragraph 39 below - so even if the Foreign Minister does count as a member of the European Council, the post's role in the Commission would exclude the Foreign Minister from the post of President if still serving. Back

14   Q 4. Back

15   Q 5. Back

16   "At this stage, the Commission remains unconvinced about the idea of establishing a full-time President of the European Council, assisted by a 'Bureau', and in charge of high-level external representation as well as of the organisation and preparation of the European Council's work. It is not clear how such a President would improve the effectiveness and accountability of the Union. Moreover, given that the current text transforms the European Council into a separate institution, it would inevitably lead to a duplication of the administrative machinery and create rivalry and conflicts between institutions. In addition, it is not clear who will take over the tasks currently performed by the national administrations in charge of the Presidency. The Praesidium proposals on this topic do not meet the requirements in the Declaration of Laeken of clarity, simplicity, efficiency and democratic accountability. Effective and accountable action requires that the European Council is prepared by Council and Commission." Commission Press Release: http://europa.eu.int/rapid/start/cgi/guesten.ksh?p_action.gettxt=gt&doc=IP/03/611|0|RAPID&lg=EN&display. Back

17   Article 205 TEC. Back

18   See our report on the proposed Protocols on National Parliaments and Subsidiarity (11th Report, HL Paper 70, 13 March 2003, Paragraph 5).  Back

19   Article 36(2) states "The European Parliament shall meet in public as shall the Council when it is discussing a legislative proposal".  Back


 
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